Ram Kumar Gupta vs Delhi Development Authority And ...
2005 Latest Caselaw 421 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioner purchased the land measuring 9 bighas situated in Village Badarpur, Tehsil Mehrauli, Delhi by a registered Sale Deed on 28.06.1960. The land became the subject matter of a notification dated 10.11.1960 issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter to be referred to as, 'the said Act') and the Award No. 1436 dated 29.11.1962 was made.

2. There was a policy existing of making allotment of alternative industrial plots on account of acquisition of land and the petitioner, thus, made an application on 21.07.1971. The petitioner was asked vide letter dated 10.10.1972 to submit some valid documentary proofs showing cogent steps being taken to establish industry on the land in order to enable the respondent to consider the application of the petitioner. It may be noticed that it is the Land and Building Department of the then Delhi Administration who was to consider such an application. The steps taken by the petitioner were disclosed in the letter dated 30.11.1972. Some further information was also sought about the scheme of the industries, which were going to be set up by the petitioner, which was supplied.

3. The crucial letter on the basis of which the petitioner is claiming rights is a communication dated 05.09.1973 of the Land and Building Department of the Delhi Administration addressed to DDA in terms whereof the petitioner was found eligible for allotment of an industrial plot measuring 7654 sq. yds. and his case was to be placed before the Land Allotment Advisory Committee ( for short, 'LAAC' ) for necessary action. The petitioner was found entitled to 3600 sq. yds. of land at pre-determined rates whie the balance was to be paid at market price. Thus, the concerned Department found the petitioner eligible for allotment of land after scrutinisation of his case and the function of DDA was then to allot the land physically.

4. The case of the petitioner was placed before LAAC by DDA and LAAC in its meeting held in May, 1974 where it was decided that the Directorate of Industries should re-assess the land requirement of the petitioner. A communication to this effect was sent on 20.09.1974.

5. The petitioner addressed a communication dated 22.01.1975 setting forth this controversy in which it is noticed that the Directorate of Industries had again recommended the case of the petitioner as per the original recommendation and, thus, there was need to place the matter again before LAAC seeking allotment of the land. This was followed up by reminders and DDA vide letter dated 20.08.1975 informed the petitioner that the matter was under consideration and the final decision was to be arrived a soon. The petitioner kept on making certain representations and the Land and Building Department of Delhi Administration vide letter dated 20.10.1976 required certain documentary evidence in support of the financial position of the petitioner. The petitioner did the needful giving a list of companies with which he had been associated. This resulted in a communication by Delhi Administration to DDA dated 22.02.1978 to the effect that the petitioner had the capacity to establish and run the industry in case the plot measuring 7654 sq. yds. was allotted to him. The matter was directed to be placed before LAAC for allotment of industrial plots for consideration. This resulted in an allotment being made by DDA vide letter dated 19.07.1978. However, the allotment made was for a plot measuring 2000 sq. yds. in Okhla Industrial Area. This document was initially disputed by DDA, but the petitioner filed a photocopy of this document along with the rejoinder and was ready to produce the original. DDA was required to look into the records. In fact, directions were issued from time to time since both the Delhi Administration and DDA were shifting the burden on each other in so far as production of records was concerned. It ultimately transpired that the records had to be with DDA, but the records were not located. On 25.05.2004, it was clearly observed and recorded in the order-sheet that in case the records were not produced, an adverse inference would be drawn. On 10.12.2004, learned counsel for the respondent / DDA stated that since no records are available, the matter can be proceeded with in the absence of the same. In view of these facts, really speaking, there is no dispute about this communication dated 19.07.1978.

6. The matter is not really of much importance also in view of the fact that there is no dispute about a subsequent communication dated 13.08.1980 of DDA reiterating that the allotment of 2000 sq. yds. was being made. This was so since the petitioner was apparently wanting a larger plot as per the original recommendation. The Delhi Administration also again reminded DDA, at the request of the petitioner, for allotment of the land and it appears that this matter was kept alive in view of this communication dated 22.01.1986.

7. In the absence of the records, it is not clear as to why once the petitioner was found eligible for allotment of a plot and 2000 sq. yds. was allotted, no specific plot was allotted. It may possibly be due to the issue of larger plot being claimed by he petitioner. The respondents, in fact, have contended that there was no acceptance of the allotments made by the petitioner and, thus, no rights accrued in favor of the petitioner.

8. The matter took a different turn in view of the communication of the Land and Building Department dated 06.10.1988 whereby the application of the petitioner was rejected as use of the acquired land as per the Zonal Plan was found to be recreational. This was in terms of MPD-1962 and PDP-2001.

9. The absence of documents of acceptance are sought to be explained away by learned senior counsel for the petitioner on the ground that with the passage of time possibly all the material was not available and in any case averments were made in the petition, which have not been specifically denied. Thus, an inference should be drawn in favor of the petitioner in view of judgment of the Supreme Court in Smt. Naseem Bano v. State of U.P. and Ors., . It was observed in para 11 as under:

11. The aforesaid reply would show that on behalf of respondents No. 1 to 4, it was not disputed that 40% plots which have to be filled up by promotion had not been filled up and the denial of promotion to the appellant was justified on the sole ground that she was not qualified to be promoted to L.T. grade. This shows that in the pleadings before the High Court, there was no contest on the question that the post of L.T. grade which was sanctioned on August 29, 1977 was required to be filled up by promotion for the reason that 40% posts had not been so filled. Even though there was no contest on this question the High Court has gone into it and has held that the appellant has failed to establish her case that at the time of the appointment of respondent No. 6 by direct recruitment 40% of the total number of posts in the college were not filled up by promotion as prescribed by Regulation 5(2)(a) of the Regulations. Since no dispute was raised on behalf of respondents No. 1 to 4 in their reply to the averments made by the appellant in the writ petition that 40% of the total number of posts had not been filled by promotion inasmuch as the said averments had not been controverter the High Court should have proceeded on the basis that the said averments had been admitted by respondents.

10. On the other hand, learned counsel for the respondent / DDA has sought to rely on the general denial contained in the counter affidavit and submitted that in view of the disputes about certain documents, there was no occasion in the counter affidavit of deal with some of the aspects specifically.

11. A letter dated 17.10.1981 was referred to by learned senior counsel for the petitioner, which is addressed by the Directorate of Industries to the Land and Building Department of the Delhi Administration in respect of allotment to the petitioner to submit that in this letter itself, it has been stated that there was no change with the old scheme in terms whereof the assessment of 7654 sq. yds. had been made. The fact that the matter was alive was supported by learned senior counsel for the petitioner reference to the communication dated 24.07.1986 of the Land and Building Department to DDA requiring the matter to be looked into in respect of allotment of the petitioner. These aspects were emphasised by learned counsel for the petitioner to state that the matter was being considered by the authorities at one stage or the other till the rejection letter dated 06.10.1988.

12. The petitioner protested against the letter of rejection dated 06.10.1988 vide letter dated 01.11.1988 and it was emphasised in the letter that the land was purchased in 1960 and was acquired in the same year itself when there was no Master Plan for Delhi. The scheme was of the year 1962, thus, no reliance could be placed on the subsequent Master Plan prescribing the particular land use. The petitioner had been found eligible for the plot and after so many years, the whole thing was sought to be turned on its head by referring to the subsequent land user of the acquired land to disentitle the petitioner.

13. It appears that the matter was again examined and DDA vide letter dated 22.01.1990 to the Land and Building Department stated that it appeared that the land was reserved for Railways and Railway Yards. There was, thus, again a change on the issue of what use the land could be put to.

14. There appears to be some gap thereafter since no communication is available till a letter dated 22/26.06.1992 whereby background of the case was set out and the allotment was once again requested. There were certain representations made through different channels and a communication dated 18.03.1997 was issued by the Land and Building Department to DDA in respect of the allotment of land for taking appropriate action in accordance with the policy in this regard. However, this letter also contained a statement in the following terms:

It is also added here that the detail of acquired land has not been verified in this department and this may not be treated as a recommendation.

15. The matter was considered by DDA and in terms of the letter dated 25.06.1997 it was stated that there was no policy of DDA to allot industrial plots at that stage against the acquisition of land.

16. The writ petition was filed on 12.01.1999 seeking allotment of alternative industrial plot measuring 7654 sq. yds. in lieu of the acquired land.

17. Learned senior counsel for the petitioner contended that the aforesaid facts clearly showed that the petitioner was found eligible for allotment of plot and reconsideration of the matter at the subsequent stage when the only question was of the size of the plot is not tenable as the petitioner was sought to be disqualified on the basis of the subsequent prescribed land use. Even the subsequent prescribed land use has varied as it was prescribed as recreational earlier and thereafter as Railways and railway Yards. Learned senior counsel also referred to the policy dated 02.05.1961 to state that the allotment could be made at pre-determined rates for the purpose in question in terms of clause (i)(b) of para 8 of the policy by reference to para 7, which prescribed as under:

(b) If an industrial plot is to be allotted, its sizes may be determined with reference to the requirement of the industry to be set up, provided that the setting up of such an industry is in accordance with the Master Plan and the industrialist concerned has capacity to establish and run such industry and provided further that the extent of land allotted at pre-determined rates should be exceed the areas acquired from the industrialist concerned. In making such allotments for industries, the Chief Commissioner will be advised by an Advisory Committee to be nominated by him.

Thus, it was submitted that the allotment of industrial plot was within the policy and there would have been no occasion otherwise to make allotment at the initial stage.

18. Learned senior counsel for the petitioner also relied upon rule 6 of the Delhi Development Authority (Disposal of Developed Nazul Land) Rules, 1981 (hereinafter to be referred to as, 'the said Rules') which deals with the allotment of nazul land at re-determined rates and the relevant rule is as under:

6. Allotment of Nazul land at predetermined rates.

... ... ... ...

(ii) to individuals in the low income group or the middle income group, other than specified in clause (i) -

... ... ... ...

(v) to industrialists or owners and occupiers of ware houses who are required to shift their industries and ware houses from non-conforming areas to conforming area under the Master Plan, or whose land is acquired or is proposed to be acquired under the Act:

19. Learned senior counsel also pleaded promissory estoppel in view of the fact that the petitioner had been found eligible, yet the allotment had not been made.

20. Learned counsel for the respondent, on the other hand, raised the issue about the lack of acceptance of offer by the petitioner and the fact that acceptance is averred only in the petition and does not even form part of any subsequent communication's was submitted that the petition suffers from delay and laches as the rejection took place in the year 1988.

21. On the issue of applicability of the Master Plan, it was submitted that though the scheme was of the year 1961, the petitioner applied only in the year 1971 and it is the rules applicable at the stage of making the application which would be relevant.

In this behalf, the averments made in the counter affidavit were referred to that the allotment of alternative industrial plot could take place only in cases where lands had been acquired under the industrial scheme. It may be noticed that the document filed with the rejoinder show that the award was made in the year 1962, but the petitioner showed ignorance about the same in the year 1971 when the petitioner withdrew compensation. It was in these circumstances that the petitioner received a communication from the Land and Building Department stating that till such time as the land had not been finally acquired or compensation offered and paid, the application for allotment of alternative plot could not be entertained. After the receipt of compensation, the application was made by the petitioner.

22. Learned counsel for the respondent referred to the fact that the policy of 1961 itself referred to the Master Plan and there could be no promissory estoppel when the petitioner had not accepted the earlier allotment. It was further submitted that there could be no alteration of the position detriment to the petitioner since he had a mere intention to set up the industry and had not established the industry. It was, thus, submitted that there was no inherent right for the allotment of alternative industrial plot in view of the Full Bench judgment of this Court in Ramanand v. Union of India and Ors., .

23. Lastly, it was contended that there were no industrial plots now available as the plots had been placed at the disposal of the Government of National Capital Territory of Delhi for relocation of industries. It may be noticed that this was the stand on DDA since the Govt. of NCT of Delhi is also a party to the present proceedings.

24. On consideration of the pleas of learned counsel for the parties, one factor undoubtedly emerges, i.e., the petitioner was found eligible for allotment of plot by the Land and Building Department of the Delhi Administration. No doubt, in view of the Full Bench judgment of this Court in Ramanand's case (supra), there is no right as such for allotment, but a right for consideration, which consideration did take place in the case of the petitioner and the petitioner was found eligible. After the petitioner had made the application, the petitioner was asked to submit certain documents and vide communication dated 05.09.1973 of the Land and Building Department of Delhi Administration addressed to DDA, the petitioner was found eligible for allotment of an industrial plot measuring 7654 sq. yds. However, this recommendation had to be placed before the LAAC for necessary action.

25. There have been certain inter-se communications between the Land and Building Department of Delhi Administration and DDA arising on account of the quantum of land which should be offered to the petitioner since the LAAC was of the view that only 2000 sq.yds. should be allotted as against the recommendation of 7654 sq. yds. The allotment, however, made by DDA was only of 2000 sq. yds. in Okhla Industrial Area in pursuance to the letter dated 19.07.1978. Not only this, this recommendation was reiterate vide subsequent communication dated 13.08.1980 of DDA for allotment of 2000 sq. yds.

26. The absence of the records being produced before the Court has undoubtedly caused a problem since the clear sequence of processing of the application of the petitioner even subsequently could not come to light. However, it had been made clear, as recorded here-in-above, that an adverse inference would be drawn against the respondents on their failure to produce the records despite opportunities and the respondents confessed their inability to produce the records.

27. It has to be noticed that the Land and Building Department after lapse of considerable number of years suddenly issued the letter dated 06.10.1988 rejecting the application of the petitioner on the ground that the land as per the Zonal Plan was to be recreational. Even on this aspect, there is dispute in view of the subsequent communications where it was found that the land was meant for Railways and Railway Yards. No clear picture has emerged on this account, but there is a rejection letter dated 06.10.1988, which was protested too by the petitioner vide letter dated 01.11.1988. In between, there has been gaps of time, which has been unexplained by the petitioner. However, due weight age has to be given to the submission of learned senior counsel for the petitioner that the matter was admittedly in process and there was no reason for the petitioner to approach the Court till such time as representation of the petitioner against the rejection was duly considered. In fact on 18.03.1997, the Land and Building Department issued a letter to DDA in respect of the allotment of land albeit with the endorsement mentioned above. However, this endorsement does seem to be superfluous on account of the fact that it was the duty of the Land and Building Departments have verified the eligibility of the petitioner, which in fact had been done long time ago when the Land and Building Department had repeatedly reiterated its recommendation for allotment of land to the petitioner.

28.It is also relevant to note that the land of the petitioner was acquired in the year 1960 and the scheme came into being in the year 1961.

29. A reading of the para of the scheme relied upon by both the parties shows that there was a policy of allotment of industrial plots. It appears that subsequently there was modification in the policy whereby the allotment could be made only to those per sons who already had established industries. However, this would not make difference to the case of the petitioner. There would have been no occasion for the case of the petitioner to be considered, called upon to produce certain documents to show that propose to set up an industry and the steps taken in this behalf, if the petitioner was not eligible for allotment of industrial plot. Thus, in view of the aforesaid facts and more so in the absence of the records, the only conclusion to be arrived at is that the petitioner would be eligible for allotment of an industrial plot.

30. The next question, which arises for consideration, is the extent of allotment. The Land and Building Department continued to reiterate the eligibility of the petitioner for a plot measuring 7654 sq. yds., but the LAAC found the petitioner only entitled to 2000 sq. yds. The land has been in shortage and even in the past in respect of allotment of residential plots where recommendations have been made for bigger-sized plots, lesser-sized plots have been allotted on account of paucity of land. The petitioner was offered 2000 sq. yds. plot. The claim of the petitioner is itself based on the offer made to him and continuity of the same as otherwise the petition would suffer on account of delay and laches. I am, thus, of the considered view that the petitioner would be entitled to only a plot of 2000 sq. yds.

31. In so far as the issue of pricing is concerned, the petitioner has taken his own time in approaching the Court. There is no doubt that the respondents were considering and re-considering the matter, but if the petitioner was desirous of an expeditious allotment, the petitioner ought to have approached the Court at that stage of time. Taking all the factors into consideration, I am of the considered view that the petitioner would be entitled to the allotment of plot at the price prevalent on the date of allotment being the pre-determined rates under the said Rules.

32. The last question arises as to the place where such plot could be allotted. It is the case of the petitioner that there are no industrial plots available, but it is stated that the plots have been placed at the disposal of the Govt. of NCT of Delhi. The earlier allotment was made to the petitioner at Okhla Industrial Area. In case a plot is available in the said area, the same can be allotted, failing which it may be allotted in the nearest possible area of industrial plots to Okhla Industrial Area.

33. Since the petitioner is being bound to prices prevalent at the stage of allotment, the respondent Govt. of NCT of Delhi would be required to take necessary action for such allotment within a maximum period of three months from today.

34. A writ of mandamus is, thus, issued directing the Govt. of NCT of Delhi to allot an industrial plot measuring 2000 sq. yds. to the petitioner in Okhla Industrial Area subject to availability or in the nearest industrial area to the same where such plots would be available at the pre-determined rates under the Rules prevalent on the date of allotment within a period of three months from today.

35. The writ petition is allowed in the aforesaid terms leaving the parties to bear their own costs.