New Makrana Marble Traders And ... vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 561 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. That the petitioners in this batch of writ petitions were carrying on the business of sale of various qualities of marble from their respective premises in Rajouri Garden, New Delhi. A flyover was proposed to be constructed in the area in question as a result of which the petitioners land had to be acquired. In order to rehabilitate and relocate the petitioners, a decision was taken to allot alternative plots to the petitioners at Mangolpuri Industrial Area and letters were sent in May, 1994 to the petitioners informing them about the said proposed allotment.

2. That subject matter of the letters was as under :-

"Sub : Allotment of Industrial Plot to Marble Dealers in Mangolpuri Industrial Area, Phase - II.

Sir,

On the basis of survey list furnished by Delhi Tourism & Transportation Development Corporation Ltd., it has been provisionally decided to allot you an industrial plot measuring 60 sq. mtrs. in Mangolpuri Industrial Area, Phase - II. The premium of the plot will be charged @ Rs. 1290/- per sq. mtr. at the market rate of 1986 and 18% simple interest thereon up to date of payment. Specific plot number will be communicated to you shortly."

3. The subsequent communication shows that there had been some delay in the construction of the flyover. The allotment of the plot was not made and, thus, communications were addressed in the latter half of July, 1997 to the respondents asking the petitioners to communicate the specific number of plots to be allotted to the petitioners so that the petitioners could shift in time.

4. A draw of lots was held on 19.03.1999 for allotment of the specific plots and intimation was sent to the petitioners in June, 1999. An illustration of one such letter is as under :-

"Sub: Allotment of Industrial Plot to Marble Dealers in Mangolpuri Industrial Area Phase - II.

Sir,

In continuation of this office letter of even number dated 6.4.1999 on the subject noted above, I am directed to inform you that Plot No. 43, Block 'E', measuring 120 Sqm. in Mangolpuri Indul. Area Phase - II in the draw held on 19.3.99. Demand-cum-allotment letter will follow in due course."

5. Prior to issue of the said allotment letters, a notification was issued under Section 4 of the Land Acquisition Act, 1894 ( hereinafter to be referred to as, ' the said Act' ) seeking to acquire the plots belonging to the petitioners followed by a notification under Section 6 of the said Act. The petitioners were thereafter issued notices under Section 9 of the said Act.

6.The petitioners, apprehensive on account of the alleged threat by the respondents to get the premises vacated and demolished, filed the writ petition for restraining the respondents from disturbing the possession, use and enjoyment of the petitioners in respect of their respective premises and for directions to the respondents to give possession of the fully developed alternative plots to the petitioners in lieu of their premises before any action for dispossession is taken by the respondents.

7. In the counter affidavit filed on behalf of the respondent No. 5 DDA, it is stated that though the petitioners would have been entitled only to compensation for acquisition of the land, on representation of the Association of Marble Traders, it was decided to rehabilitate them by giving them alternative plots. Such a decision is stated to have been taken in December, 1993 and land rates charged were of 1989 with interest @ 18% per annum up to date of payment, which would work out in absolute terms in July, 1999 to around Rs. 16,192/- per sq. mtr. However, when the letter of intimation was sent in May, 1994, they were informed of the provisional decision to allot industrial plots at a premium of Rs. 1,290/- per sq. mtr. at the market rate of 1986 and 18% per annum simple interest thereupon till the date of payment. Thus, it is stated that though the original decision was actually to take the 1989 rates, it is in fact the 1986 rates, which were taken as the basis, which gave an extra benefit to the petitioners. The interest of 18% per annum from 1986 is sought to be charged and has been explained as really a component of the cost itself. This has to be appreciated along with the fact that the traders have enjoyed the benefits of the properties occupied by them, which they continued to occupy at the existing sites. The current land rates for the year 1999-2000 is stated to be Rs. 18,604/- per sq. mtr., while on the other hand fixing the rate as per 1986 rates with 18% per annum interest works out to about Rs. 4,386/- per sq. mtr. Reference has also been made to some auctions held in 1987 in this behalf in the same area where the average auction rates were about Rs. 3,387/- per sq. mtr. It is further stated in the counter affidavit that the land rates contained in the letter dated May, 1994 were never disputed by the petitioners and in fact letters had been received to make allotment in terms of the said letter and, thus, the petitioners are now estopped in law from challenging the demand. It is also stated that the development work has been carried out and the petitioners are unnecessarily delaying taking over possession of the plots.

8. During the pendency of the proceedings on 10.08.1999, when the matter was listed before the Court, the copies of the demand-cum-allotment letters in favor of the petitioners were handed over to the learned counsel for the petitioners. The petitioners sought to challenge the said demand and filed an additional affidavit dated 16.08.1999. In terms of the allotment letters, land has been allotted at the price of Rs. 1,290/- per sq. mtr. and interest on the land premium has been charged @ 18% per annum up to 31.08.1999 apart from certain other charges. It is stated in the affidavit that it is the respondent No. 5 DDA, which delayed in handing over possession of the plots and making demand of the premium from 1994 to 1999 and, thus, the respondent No. 5 DDA should not be permitted to charge interest for this period since it is the fault of the said respondent. It is further stated that the issue of charging interest could only arise in case the petitioners had failed to make payment in terms of the allotment letters. It may be noticed that the allotment letters themselves are dated 29.07.1999, which were handed over in Court on 10.08.1999.

9. The respondent No. 5 DDA filed a response affidavit to the same explaining the costing giving details of certain auctions held. It is to be noted that the auctions rates were much higher than the cost sought to be recovered from the petitioners.

10. Insofar as the delay is concerned, it is stated that the matter of earmarking plots required inter-action between different agencies, sub-division of plots, etc. and the same, thus, delayed the period of actual allotment for some period. It is further stated that in any case interest is really a part of the cost and the initial letters of 1994 have never been challenged by the petitioners all of whom accepted the same which provided for charging of the said interest.

11. The Delhi Tourism and Transport Development Corporation Ltd., the respondent No. 6, has also filed a separate affidavit opposing the writ petition. One of the pleas raised is that the petitioners are themselves violating the Master Plan of Delhi by misuse of the land for commercial activity, which plots are earmarked as residential plots. It is also stated that the Municipal Corporation of Delhi had sanctioned building plans for raising construction of residential buildings on the plots requiring a stretch of 60 feet to be left as right of way on the Ring Road without permission of construct.

12. It is further stated that insofar as the notifications under the said Act are concerned, the petitioners have filed CWP No. 4933/1999 challenging the said notifications.

13. Learned counsel for the parties state that the said petition is still pending consideration. Emphasis is laid on the fact that the petitioners are seeking to invoke the jurisdiction under Article 226 of the Constitution of India, while on the other hand are violating the law themselves having utilized what were residential plots sold by M/s. DLF Housing and Construction Limited in a residential colony for commercial purposes. A reference has also been made to the construction of a slip road, which was required as an integral part of the project of the flyover, which was under the occupation of the petitioners.

14. In respect of the aforesaid, certain pleadings in the form of affidavits were filed to explain that as far as the requirement of the slip road is concerned, the requirement was for 13 mtrs. of land and in CWP No. 4933/1999, learned counsel for the petitioners had given no objection on behalf of the petitioners for acquisition of the said 13 mtrs. of land.

15. In view of the proceedings held in these writ petitions from time to time when the matter was listed on 13.09.2002, it was recorded that the only controversy, which survives for consideration in the present petitions, was whether the petitioners were liable to be charged interest from 1994 to 1999. This is so as the petitioners were not disputing the liability to pay interest up to issuance of the letter in May, 1994 nor were disputing the fact that where the payments were delayed beyond the date of allotment, the petitioners would be liable to pay interest. In the proceedings of the said date itself, the orders were also passed on the application filed on behalf of the petitioners seeking directions against the respondent No. 5 DDA to hand over possession of the plots in view of the fact that payments had been made other than the disputed amount. A direction was passed in view of the statement of the learned senior counsel for the petitioners that the petitioners will deposit the amount in terms of the allotment letters without prejudice to their rights and contentions in the petition and on such deposit being made, the possession of the plots be handed over to the petitioners.

16. Learned senior counsel for the petitioners contended that the interest could not have been charged for the period 1994 to 1999 since the delay in allotment of the specific plots arose only on account of the fault of the respondents for which the petitioners cannot be penalized. It was further contended that the allotment letters should have been issued within a reasonable period of time and no explanation was forthcoming from the respondent No. 5 DDA in their pleadings explaining the reason for the delay.

17. Learned senior counsel referred to the Division Bench judgment of this Court in Link Engineers Pvt. Ltd. v. DDA & Ors., to contend that the interest can be charged only in cases where an allottee has failed to make payment of the dues after the demand had been communicated to the allottee and the time period for making the payment had expired.

18. Learned senior counsel also relied upon the judgment of the learned Single Judge of this Court in Mohinder Malik v. D.D.A., 103 (2003) DLT 710 to advance the proposition that an innocent party cannot be made to suffer on account of the mistake and inefficiencies of the respondent No. 5 DDA and be saddled with higher liability. In the said judgment, the allottee's name was not included in the draw of lots by mistake and interest was sought to be recovered on the old cost, which was held not liable to be paid since the fault was of the respondent No. 5 DDA.

19. Learned senior counsel also referred to two specific petitions being M/s. Uttam Paints and Marbles and M/s. Diamond Electronics. In M/s. Uttam Paints and Marbles' case, the plot allotted was E - 6. However, it was subsequently found out that the plot No. E - 5 and E - 6 had already been amalgamated and allotted in 1989 to another party and, thus, the said petitioner could not take possession, despite full payment being made. In M/s. Diamond Electronic's case, plot No. E - 74 measuring 60 mtrs. had been allotted. The possession could not be given and no payment was also made and the reason for non-allotment is stated to be the fact that six persons including some petitioners were granted 10 mtrs. each out of the same very plot.

20. Insofar as the aforesaid two specific cases are concerned, learned counsel for respondent No. 5 DDA took instructions and has stated that approval of the Lieutenant Governor is being requested for to allot an alternative plot to M/s. Utam Paints and Marbles and the alternative vacant plot has already been earmarked. As far as M/s. Diamond Electronics is concerned, it is stated that the file has been sent to the Planning Wing to carve out the suitable plot and the needful shall soon be done and put up before the competent authority for approval.

21. Insofar as the main plea of the petitioners is concerned, learned counsel for the respondent No. 5 DDA submits that the interest is not really a penalty, but part of the cost. In this behalf, the averments made in the counter affidavit are sought to be relied upon to show as to how the current cost would be much higher and that the allotment is being made at concessional rates. It is further contended that none of the petitioners ever challenged the terms and conditions of allotment made in May, 1994, which provided for a specified rate of 1986 along with interest @ 18% per annum up to the date of payment. It is submitted that the terms and conditions of the said letter themselves had to be read and the demand letters have been issued in terms thereof.

22. It is further submitted that the petitioners continued in possession of their original sites and continued to enjoy the same, despite the notifications having been issued in 1994 under the said Act. This position continued in view of the status quo order passed in the present proceedings on 08.07.1999, even though there was no stay in the writ petition filed by the petitioners challenging the acquisition proceedings. The strip of 40 feet of land handed over voluntarily by the petitioners in view of the statement of the learned counsel in the writ petition of challenging the acquisition proceedings only permitted a part of the land to be utilized even though the acquisition is for the complete land.

23. Learned counsel for the respondent No. 5 DDA also sought to rely upon the pleadings filed by DTTDC, i.e., the respondent No. 6 to contend that the petitioners have in fact been misusing the land, which was meant for residential purpose and plots sold in the colony for the said use. It is, thus, submitted that there has been violation of the Master Plan and yet the case of the petitioners had been considered sympathetically for allotment of alternative plots. Reliance is also sought to be made on the prayer (b) in the writ petition seeking directions against the respondents to give possession of fully developed alternate plots to the petitioners " in lieu of their premises", which would imply that the whole land has to be handed over by the petitioners and not only the strip of land.

24. Insofar as the issue of delay is concerned, it is stated that the notification under Section 4 of the said Act was issued on 15.04.1999 and under Section 6 thereof was issued on 25.04.1999. The demand letters are dated 29.07.1999 and were handed over in Court on 10.08.1999. It is, thus, submitted that there is actually no delay as the intimation sent in May, 1994 communicated the provisional decision to allot industrial plots at a specified rates with simple interest, which was a component of the cost.

25. Without prejudice to the aforesaid, it is submitted that, in any case, no prejudice has been caused to the petitioners as they continued to enjoy the possession of their existing sites and even the notifications under the said Act were issued in the year 1999 and, thus, the price applicable for compensation would be of 1999.

26. Learned counsel for the respondent relied upon the judgment of the learned Single Judge of this Court in Jai Parkash Tyagi v. Delhi Development Authority, 1997 V AD (Delhi) 873 where it was held that an individual, whose land is acquired, does not have an absolute right to an alternative plot for residential purposes and such a person is only eligible to be considered for allotment subject to certain terms and conditions. The premium to be charged from such person is at pre-determined rates prevailing on the date when the offer is made to him by the DDA for allotment of a specific plot under the Nazul Rules. The said judgment also relied upon the Division Bench judgment of this Court in Bhagwana v. Union of India, to the effect that the locality where such plot is to be allotted is also a matter of policy.

27. Learned counsel also referred to the Full Bench judgment of this Court in Ramanand v. Union of India & Ors., holding that there is no absolute right to be allotted an alternative plot, but only to be considered for allotment in case the land has been acquired. It was further held that Rules 2, 4 and 6 of the Delhi Development Authority (Disposal of Developed Nazul Land) Rules, 1981 ( hereinafter to be referred to as, 'the said Rules' ) confer the discretion on DDA to allot land to any of the named category of persons, but there is no right of allotment on any particular person. The price of the land to be fixed is to be on the basis of pre-determined rates notified by the Central Government prevailing on the date of offer by the DDA and not on the basis of the date of application. The same principle has also been followed in Khurseed Jahan v. Delhi Development Authority, 1997 III AD (Delhi) 1053.

28. Learned counsel lastly relied upon the judgment of the Supreme Court in Oil and Natural Gas Commission & Anr. v. Association of Natural Gas Consuming Industries of Gujarat & Ors., 90 (Supp.) SCC 397 where the Supreme Court was concerned with the issue of price fixation and administered price and held that the same was essentially a legislative function. It was also observed by the Supreme Court in para 31 as under :-

" 31. The opinion that the cost plus basis can be the only criterion for fixation of prices in the case of public enterprises stems basically from a concept that such enterprises should function either on a no profit - no loss basis or on a minimum profit basis. This is not a correct approach. In the case of vital commodities or services, while private concerns must be allowed a minimal return on capital invested, public undertakings or utilities may even have to run at losses, if need be and even a minimal return may not be assured. In the case of less vital, but still basic, commodities, they may be required to cater to needs with a minimal profit margin for themselves. But given a favorable area of operation "commodities profits" need not be either anathema or forbidden fruit even to public sector enterprises."

29. In rejoinder, learned senior counsel for the petitioners contended that reference to the auction rates was misplaced, as the allotment has to be at pre-determined rates and not at market rates and rule 2(l) of the said Rules itself defines how pre-determined rates have to be arrived at.

30. I have considered the submissions advanced by the learned counsel for the parties.

31. Insofar as the grievance in respect of the two specific petitioners is concerned, learned counsel for the respondent No. 5 DDA has already made a statement as noted aforesaid that the necessary steps are being taken to allot an alternative plot.

32. The nature of controversy in the present petition is very limited and arises from the plea of the petitioners whether they are liable to pay interest for the period from 1994 to 1999, which is sought to be denied by the petitioners on the ground of delay and laches on the part of the respondent No. 5 DDA.

33. In order to appreciate the rights and obligations of the parties, the origination of the right in favor of the petitioners has to be considered. The land of the petitioners was sought to be acquired for purposes of the project of the flyover. Under the said Act, the petitioners are entitled to compensation for their land. That issue of challenge to the notifications is pending consideration in a separate writ petition before this Court and it is not necessary to go into that aspect in the present proceedings.

34. The decision to allot alternative plots to the petitioners is an additional measure apart from the compensation, which would be available to the petitioners. It is really in the form of a rehabilitation measure. The decision to make these allotments of alternative plots was communicated to the petitioners in May, 1994. The terms and conditions on which the allotment was to be made were clearly set out in the said letters. It is stated that in the letter, which has been quoted above, that it has been provisionally decided to allot the plots. The premium of the plot was set out @ Rs. 1,290/- per sq. mtr. at market rates of 1986 and 18% per annum simple interest thereon up to the date of payment. The specific plot No. was to be communicated to the petitioners subsequently. The petitioners in the present proceedings have never challenged the terms and conditions of the allotment. In fact, they could not have done so as their right to get the allotment only arise as a consequence of issuance of the allotment letter.

35. This aspect has to be appreciated keeping in mind catena of judgments of this Court that in case of acquisition of land, there is no right to get an alternative plot. Under the said Rules, a particular category of persons can be considered for allotment, but there is no obligation on the respondent No. 5 DDA to make such allotment. Not only this, it has been clearly held that the allotment has to be made at pre-determined rates at the time of allotment. This is to take care of the issue of the cost of the plots. The judgment of the Full Bench of this Court in Ramanand's case (supra) is absolutely clear in this behalf and has repeatedly been followed. The same is the position in the case of the Division Bench in Bhagwana's case (supra). Thus, there would be no vested rights in the petitioners to get the allotment of the alternative plot, but for issuance of this allotment letter.

36. The petitioners, in fact, have been making representations including in 1997 for allotment of alternative plot in terms of the said letter. Thus, the request of the petitioners was for allotment of the alternative plot in terms of the stipulations, conditions and price stated in the said letter. In this behalf, the observations of the Supreme Court in Oil and Natural Gas Commission's case (supra) can be usefully referred to state that even commercial profits are not anathema or forbidden fruits for public sector enterprises.

37. There is no doubt that it is not the market rates, which should be taken, but the pre-determined rates. However, the benefit was extended to the petitioners by taking 1986 rates. Thus, the price was fixed at the said rates and the petitioners were to pay only interest on the same up to the date of allotment. The allotment letter, which has been issued in favor of the petitioners, is in terms thereof and the price is of 1986 with interest @ 18% per annum on the said amounts. It was open to the respondent No. 5 DDA, in normal circumstances, to have fixed the price at 1999 rates, when the draw was held and the allotment letters were issued. In such a case, the pre-determined rates of 1999 would be applied. Instead of doing the same, in order to abide by the terms of the original letter of May, 1994, interest has been charged @ 18% per annum. The net result is that the petitioners have benefited from the same and are not prejudiced from the same.

38. I am unable to accept the plea advanced by the learned senior counsel for the petitioners that the interest can be charged only in case the payment is not made within time in pursuance to the allotment letter. The interest element in the present case is really a part of the cost as explained above. The judgment in Link Engineers Pvt. Ltd.'s case (supra), thus, would have no application.

39. There is also no question of fault being attributed to the respondent No. 5 DDA as it is not a case where others have been allotted a particular plot at different rate and the name of the petitioners have not been included by mistake. Thus, the plea raised on the basis of the judgment in Mohinder Malik's case (supra) is also misplaced.

40. Another relevant aspect to be considered is the fact that it is not that the petitioners have vacated their existing sites, but in fact continued to enjoy the same. A 13 mtr. strip of land was released by the petitioners in pursuance to the order passed on 27.03.2000 and 18.04.2000 as also in CWP No. 4933 of 1999. The notifications under the said Act were issued in the year 1999 and, thus, the compensation to the petitioners would be paid in terms of the price prevalent at the time of issuance of the notification under Section 4 of the said Act. Thus, the petitioners are actually getting compensation at 1999 rates.

41. The prayer made by the petitioners in the present petition as also the terms and conditions of allotment clearly leads one to the conclusion that the allotment, which is a measure of rehabilitation, is an allotment of alternative plots in lieu of the premises occupied by the petitioners. The premises cannot mean only a strip of 40 feet, but the whole land in possession of the petitioners. The petitioners cannot say that they would continue to occupy the existing land and yet get the allotment of the alternative plots.

42. In my considered view, the petitioners were and are liable to vacate the complete sites in their possession, which is really a principal condition for allotment of the alternative plots.

43.Insofar as the matter relating to acquisition proceedings is concerned, the same is the subject matter of a separate writ petition.

44.There is also some force in the contention of the respondent No. 5 DDA that the petitioners' rights is in respect of residential plots and plans were sanctioned for residential plots which have been converted into commercial user and it is in lieu thereof, alternative plots are being given. In such a situation, no special equities arise in favor of the petitioners. However, it was for the respondents to have considered whether they should or should not have made allotment of alternative plots taking into consideration the misuse of the residential plots for commercial use. The respondents in their wisdom decided to make the alternative allotments and, thus, it is only the price in respect of these alternative plots, which has to be considered in the present proceedings.

45. The project in question was an important one of easing the traffic problems and the flyover was sought to be considered. Apart from the fact that there may be some time spent on the development of the plots, there is also some delay in the project as a result whereof even the acquisition proceedings got shifted in time period and were taken only in 1999. Thus, the occasion to make allotment of the alternative plots did not arise earlier as the alternative allotment was a rehabilitation measure in addition to acquisition of the land of the petitioners. It is the acquisition itself, which had got delayed.

46. In view of the aforesaid, I find no merit in the plea advanced on behalf of the petitioners that the petitioners are not liable to pay interest for the period from 1994 to 1999.

47.The writ petitions are dismissed leaving the parties to bear their own costs.

48. Interim orders stand vacated.