Shri Ajit Singh vs Delhi Development Authority
2005 Latest Caselaw 380 Del

JUDGMENT

S. Ravindra Bhat, J.

1. In this petition, under Article 226 of the Constitution of India, the action of Delhi Development Authority (DDA) in refusing to hand over possession of a plot to the petitioners, for which an allotment had been made, and payment made earlier, has been assailed.

2. The DDA had formulated a policy for shifting industries from non-conforming area to a conforming area, in 1969. The petitioner was held eligible, for allotment of a plot, on 7.6.1969 for the reason that it was carrying on activity in residential premises, in premises bearing 3022, Sita Ram Bazar. By letter dated 14.4.1970, DDA informed the petitioner that plot 53, Block No A, Okhla Industrial Area, Phase-I, New Delhi was allotted to it.

3. There were certain disputes about the cost of the plots, and sometime in 1977, the allotment was cancelled. Subsequently, the amounts demanded were paid, and the allotment was restored. Sometime in 1983, the DDA offered Plot No B-269, in lieu of the plot allotted earlier. The petitioner gave its consent, and accepted the offer on 1st March, 1984. The petitioner as demanded, after restoration, had made all payments.

4. It is averred that in spite of repeated attempts, and representations, the DDA was not taking any action in regard to handing over possession of the plot. Letter of DDA dated 25th September 2002 informed the petitioner that instead of granting possession the allotment itself has been cancelled. 5.The petitioner has relied upon its representations, and the letter dated 27th September 2002 to DDA. This states that the Director of Industries had physically verified and inspected the godown at 3022, Bazar Sita Ram and its other premises at 3665, Chawri Bazar, Delhi. The Commissioner of Industries, Delhi Administration Kashmere Gate, Delhi, submitted a report of the godown mentioning the material stored there dated 26.3.1993 (in continuation of the an earlier of the Commissioner of Industry dated 24.11.1992) addressed to the Vice Chairman DDA in response to the letter of the Director Industries, DDA, Vikas Sadan, 26.2.1992 that has been relied in the said representation. That report reads, inter alia, as under:- I am to inform you that premises of M/s Partap Singh Harnam Singh, 3022, Bazar Sita Ram, Delhi was revisited at the request of the Unit that the warehouse at the above stated address is in existence. During the visit it was noticed that an area measuring approximately 160 sq. ft. is in possession of the unit and being used for storage of GI pipes etc. The unit was found functional at 3665, Chawri Bazar, Delhi.

Sd/-

H.L. Malik

Dy. Director of Industries Delhi.

The report was, according to the petitioners representation, confirmed by letter dated 7.1.1997 in response to letter of Director Land DDA dated 16.10.1996 by the Dy. Director of Industries.

6. The petitioner avers that DDA has neither issued any show cause notice to the allottee, nor heard it, before cancellation of the allotment. The allottee had, it is stated, acquired a vested interest in the property after all payments have been made consequent to allotment and the petitioner, therefore could not be denied possession of the plot. 7. The DDA, in its response, has not denied that according to its policy, the petitioner was found eligible, and was intimated about allotment, in 1970. It has also not denied about the cancellation of the allotment in 1977, its restoration, after payment of all charges, and the consideration for the plot, in 1981-82, the consent sought from the petitioner for allotment of another plot, in 1984, and the acceptance by the petitioner. This was necessitated, according to the DDA, due to its having auctioned the plot allotted to the petitioner. The main defense taken by DDA is that the premises at Sitaram Bazar were inspected on several occasions, when it was found that it was being used mainly for residential purposes, and only a small area, 160 Sq. feet, was used for storage of GI Pipes. It is also averred that the petitioner firm was functional in another premises, 3655, Chawri Bazar. It has been averred as follows: The firm was found functional at 3655, Chawri Bazar, Delhi. It is pertinent to mention that the said subsequent inspection was carried out at the request of the Petitioner and there is every possibility of manipulation in the change of use of the premises. It is submitted that the said premises at 3022 Sita Ram Bazar was inspected several times by the respective units and on all occasions it has been reported that the premises no. 3022 against which alternative allotment of Industrial Plot No. B-269 was made is being used for residential purposes.

The counter affidavit therefore states that the possession could therefore not be given to the petitioner, and that the amount deposited would be refunded shortly.

8. Mr. Ashok Sapra, learned counsel for the petitioner, has assailed the impugned action of DDA as arbitrary. He submits that having accepted the entire amounts, and carried out inspections from time to time, the DDA was bound, in terms of the allotment, to honour it, and hand over possession. He submits that the cancellation, without hearing renders the decision of DDA a nullity. He also submits that the reasons furnished in the counter affidavit are baseless, since the petitioner was always carrying on business in two premises, and had stated as much in its representations. It is submitted that the authorities seemed to have repeatedly carried out inspection at the wrong premises, viz at Chawri bazar. As far as the premises at Sita Ram bazar is concerned, he relies upon the report to the effect that a part of it was being used for storage/ godown, and that was the reason why the alternative plot was allotted. He relies on the representations of the petitioner, to the effect that if those premises were to be used for industrial purposes, the petitioner would face prosecution; that was the reason why the scheme envisaged allotment of the plot.

9. Learned counsel for the DDA, Shri Anil Sapra, submits that the petitioner cannot claim a vested or any manner of right to the plot. That was allotted on the footing that the use of the existing premises was a non-conforming one. Once it was found, even at this stage (as long as possession is not handed over) that the original premises are used for conforming purposes, the allotment can be cancelled. It is also submitted that the petitioner has approached the court after a long delay.

10. The files of DDA, relating to the allotment were produced. They reveal that the sole basis of the decision, not to hand over possession was the view expressed, based on a report, and dated 30th April 1998. The report is that the premises at Sitaram Bazar (from where the petitioner had to shift due to its activity being non-conforming) were a big one, under occupation of several sub-lessees; one such sub-lessee was reported to be the petitioner. The note/ report further states that the petitioners premises are lying locked, and have been reportedly locked for the last 20-25 years. The file also shows that the office of Commissioner of Industries (of the erstwhile Delhi Administration) had inspected the premises at Sitaram Bazar, as also the functional office of the petitioner at Chawri Bazar, and reported, on 26th March, 1993, that the petitioner was functioning in a part of the premises at Sita Ram Bazar. This was confirmed, to the DDA, by letter dated 7-1-1997, when the latter queried the Commissioner of Industries.

11. The record of the DDA shows that its action is essentially because the petitioner is not using the premises for trade/ industrial purposes, but that it is today being used for residential purposes, which is a confirming purpose or use. To put it mildly, the reasoning is specious. The basis for allotment of an alternative plot, and the formulation of a scheme, was that the use by the persons, of the premises, in 1970, was a non-conforming use/ purpose. At the DDAs behest, two inspections were carried out; the petitioner does not deny that it is in occupation of another premises at Chawri Bazar, where it has been carrying on its activities for a long period. Hence, the denial of the plot, allotted above three decades ago, and for which full payment was received over twenty years back, is arbitrary. No one can be expected to use the premises and carry on an activity, which is deemed non-conforming, in order to be eligible for a plot, which it has already been determined to be entitled, and for which the entire consideration was taken by the DDA. If the petitioner were to continue with the non-conforming use, in the premises, it would be inviting trouble.

12. Besides, the attitude of DDA in passing an order clandestinely, and judging the eligibility or entitlement of the petitioner on the basis of the present state of affairs, (or at least on the basis of a report of 1998, which is relied for the purpose) instead of keeping in mind the fact that eligibility, and entitlement had been considered, determined earlier, and the transaction had concluded in 1984, betrays an unfair and unreasonable approach. It is well settled that an executive or public authority, while deciding any matter, particularly concerning matters that are likely to impact adversely on an individual, has to act fairly, in a non-arbitrary manner, and reasonably. In a recent decision, viz State of U.P. v. Johri Mal, the Supreme Court held as follows :

where administrative action is challenged under Article 14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the Constitutional Courts as primary reviewing courts to consider the correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the administrator. For judging the arbitrariness of the order, the test of unreasonableness may be applied.

  xxx            xxx                     xxx  

A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness. 
 

13. Judging from the above standards, the action of the DDA is both unreasonable and arbitrary. It has also taken into consideration completely irrelevant considerations, viz as to the use put by the petitioner, of the original premises. The rationale for its action appears to be that only if the petitioner continues to use the premises in a non-confirming manner, even today, it would be given the plot. 14. The DDAs action is arbitrary, because it has chosen to, in September 2002, cancel the allotment, without giving any reasons. The reasons given, as noticed above, are irrelevant considerations, and not germane to the issue.

15. For the above reasons, the writ petition is entitled to entitled to succeed; it is accordingly allowed. The DDA is directed to complete all formalities, and hand over possession of the plot allotted to the petitioner in this case, within eight weeks. It shall intimate the action to be taken, if any, by the petitioner, within two weeks; possession shall be handed over within six weeks thereafter.

16. Interim applications pending in the matter, are disposed off in the light of the judgment. No costs.