Shiv Mandir Jeernodhan Sanathan ... vs Delhi Development Authority
2005 Latest Caselaw 439 Del

JUDGMENT

S. Ravindra Bhat, J.

1. Issue Rule. With consent of parties, the matter was finally heard.

2. This petition, under Article 226 of the Constitution, challenges an action of the Delhi Development Authority, (DDA), by its letter dated 16th October 2002 cancelling the allotment of the petitioner plot. An appropriate direction, in the nature of mandamus enjoining the respondent not to take any action pursuant to the impugned cancellation letter, has also been sought.

3. The petitioner, is a registered society. It avers that sometime in 1977-78, an old Shiva Temple (Shiv Mandir) located near a well and a large Pepel tree, was discovered between plot Nos.B-17 and B-18, at Kirti Nagar. This took place when an existing Timber Market was moved from Motia Khan to Kirti Nagar. Some devotees started to maintain the area. Eventually, the petitioner society was formed, which bore the responsibility of the maintenance of the said temple. The aims of the society include development, maintenance and upkeep of the temple, extension of facilities promoting religion and cultural development etc. The society approached the Central Government some time in 1985 for regularization of the plot under its occupation. This was duly considered and a verification report was called for. After the submission of that report, the petitioner's request was forwarded to the DDA which decided the land should be allotted to it subject to payment of damages. This took place on 3rd July 1986.

4. The site plan was prepared on 30th July 1986 showing the location of the temple, the area occupied by it and the condition of the various existing structures. There were some difficulties in allotment, due to the existing land user of the plot, which, as commercial as per the master plan. Representations were therefore, addressed to the DDA and to the Ministry of Urban Development, Central Government, by the petitioner. The DDA wrote to the Central Government on 29.11.1989 seeking change of land use of an area measuring 384.64 Sq. Mtrs. from Commercial Warehousing to Public and Semi Public Facilities (Religious) site. The petitioner was informed by the Central Government, that necessary formalities under the Delhi Development Act, elciting objections etc. would be initiated and the master plan would be eventually amended to enable regularization/allotment of the plot.

5. The Central Government issued a notification on 14th July 1990 under Section 44 of the Delhi Development Act calling for objections as required by Section 11 for the purpose of change of user. No objections were received. Therefore, on 10th April 1991, a notification was issued under Section 11 modifying the master plan. The modification carried out through this notification, reads as follows :-

MODIFICATION The land use of an area measuring 384.64 Sq. Mtr. falling in one G-2 (Kirti Nagar Area) and bounded by proposed facilities and Elected Sub-Station in North-East, 36.58 wide road in South-East, 13.71 meter wide road in South-West and 1371 meter wide road in North-West is changed from 'Commercial (Warehousing) to Public and Semi Public Facilities' (Religious).

6. From 1991 to 1993, on various occasions, the DDA kept writing to the petitioner asking it to furnish certain certificates in connection with its bank balance, after intimating that the premium on institutional land had been revised by the Government of India w.e.f. 01.04.1989. The petitioner supplied the required information. When these issues were being considered, the petitioner had represented that it ought to be charged lower rates towards premium. Its request was being considered by the DDA. At that stage, a Writ petition being CW 3333/93 was filed before this Court, by (New Timber Market Dealers Association v. DDA) by certain timber dealers stating that any action by DDA for allotment of the land in question ought to be quashed and that the respondents ought not to change the user of this site except for Hanuman Mandir. The petitioner was initially not imp leaded as a party. It, therefore, sought for liberty to be imp leaded as a respondent. Eventually, the writ petition was withdrawn; the Court granted liberty to the petitioner in CW 3333/93 to file a fresh petition to challenge the allotment in favor of the Shiv Mandir. A suit, being Civil Suit No. 1642/94, was filed by the New Timber Market dealers association. An injunction was sought in those proceedings. By order dated 29.07.1994, the Court directed that (a) the status quo in respect of the property shall be maintained; (b) the allotment in favor of any party by DDA would be subject to final outcome of proceedings in the suit and that c) Members of the plaintiff there and the defendant No. 2-Association, namely, (the present petitioner herein), as well as the general public would be permitted to use the suit premises for purposes of worship and other religious purposes. This order was passed on 2nd December 1994.

7. On 23rd September 1999, the DDA issued an order / letter regularizing the possession of the petitioner and allotting the land formally to it, in respect of 384.64 Sq. Mtrs. The letter noted, the date of occupation, of the land, as 1986. It required the petitioner to deposit an amount of Rs.3,01,386/-, which included the premium of land applicable from the date of occupation, ground rent with arrears and interest on premium at 18% etc. The petitioner deposited the amount and the DDA issued a No Object on Certificate on 6th October 1999 to the petitioner to secure a sanction for its building etc. The petitioner, thereafter, approached different authorities such as Municipal Corporation of Delhi and Delhi Urban Arts Commission etc. for approval of drawings in regard to carry on further constructions on the site.

8. It appears that at this juncture, a letter was received by the DDA, in May 2001 from a Member of Parliament, stating that the area had already been transferred to the MCD on 30th January 1991. It was also stated in that by letter dated 01.05.2001 the Director (Horticulture) DDA had given this information to the President of the New Timber Market Dealers Association. Therefore, the Vice-Chairman, DDA was requested to look into the matter.

9. On 16.10.2002, the DDA issued the impugned letter. The same reads as follows :-

I am directed to inform you that the Competent Authority has been pleased to cancel the allotment of plot measuring 384.64 Sqm for temple at Kirti Nagar since the said plot is not suitable for construction of temple because of being surrounded by commercial as well as industrial plots and there is no residential areain the vicinity of Kirti Nagar Industrial Area.

Further it has been decided to make an alternative allotment of land at G-8 area Mayapuri or any other suitable site in lieu thereof.

You are, therefore requested to meet the undersigned on any working day at Room No. 210, A-Block, Vikas Sadan, DDA, New Delhi-23 so that alternative site in G-8 Area Mayapuri or any other suitable place can be located immediately.

10. The petitioner has impugned the above cancellation stating that it is not based on any valid or justifiable reason; it is violative of principles of natural justice ( since no opportunity to show cause was given before its issuance) and that after the allotment/regularization by the DDA and the deposit of charges, to it, by the petitioner the cancellation was utterly arbitrary and appeared to have been motivated by irrelevant and extraneous considerations.

11. The DDA in its return has stated that the cancellation was necessitated due to the New Timber Market Dealers Association's repeated representations to the effect that the land had been transferred to the MCD for development of a park. It was stated that on the basis of this representations, an inspection was carried out when it was found that the land have been transferred to MCD for maintaining a park and that a temporary shed occupying a small area had been in existence as Shiv Mandir. It was further stated that the entire area was part of the Industrial Warehousing Scheme, Kirti Nagar and the land had been put in possession of the MCD, Horticulture Department. The DDA was of the view that since no permanent and proper temple in the real sense of the term had been constructed, the request of the Timber Merchants Association to maintain the park land as a park and to allot the alternative site to the Shiv Mandir was considered favorably. It has denied that the cancellation was on account of any endue influence or pressure brought about by any person, as averred by the petitioner.

12. The files of the DDA in this case were called for. It shows that after the receipt of the representation by the Member of Parliament, matter was processed and that note was put up on 28th July 2001. That note reads as follows :-

PUC/P-653/COR. A letter dt.12.7.2001 placed opposite has been received from Sh. Begum Sumbrui Ex Member of Parliament (Lok Sabha) vide which he has intimated that a plot measuring 384.64 sqm was allotted to Shiv Mandir Jeernodhar Sansthan, Kirti Nagar on 6.10.99 and leased in the year 1999. The cost to land has already been deposited and no objection certificate has also been issued to Mandir Society.

Although the MCD has passed the Shiv Mandir Plan on 3.10.2000 but MCD is not allowing to carry out the work. He has further requested to withdraw the plot from MCD so as to clear Shiv Mandir's physical possession for progress of work.

PUC-II/P-652/cor. A representation DT. 1.5.2001 has been received from Sh. Mandan Lal Khurana, MP(Lok Sabha) along with the letter from New Timber Market Dealers Association wherein he has requested for cancellation of allotment which is illegal done. He came to know from Dir.(Hort) DDA through New Timber Mkt Dealers Assn vide letter dt.9.1.2001 that the above said area has already been transferred to MCD on 30.1.91 then how this allotment has been made and further requested take appropriate action in the matter.

In this connection, it would be better to mention that the CWP No. 1657/95 titled as Shiv Mandir Jeernodhar Sanatan Sabha Versus DDA and Others has been dismissed vide Delhi High Court's order dt.14.03.2001 at (P-636/cor) And another CWP6835/2000 title as Devender Kumar Kapoor Versus DDA has also been dismissed on 26.7.01. The Court order is still awaited.

Since the physical possession of the site has already been handed over to Sabha on 5.10.99 and NOC also been issued on 15.10.99, we may request the Director (hort) South/DDA to take back the possession of the site from MCD which had been wrongly bee handed over as ark whereas this disputed site is never as Park in the layout plan. Submitted for orders please.

13. This note was processed further and on 31.10.2001, another note tracing the history leading to the recommendation of allotment of the land to the petitioner certain proceedings initiated against that allotment, by the Timber Market Dealers Association dismissal by the High Court of the writ petition filed by the Timber Market Dealers Association, dated 26.7.2001 was recorded. This note appears to have been considered by the Vice-Chairman, who directed an inspection. As per the file, the inspection took place and a report was made on 8.11.2001, which recommended that the request of the Timber Market Industrialists for maintaining the land as park, and that the petitioner may be allotted an alternative site in the nearby institutional area, was made.

The Vice-Chairman concurred with this and noted on 9th November 2001 that he too had visited the site and according to him, it was not a fit place for a temple. He was of the view that the temple promoters ought to be persuaded to take an alternative ite. The decision to cancel was consequently taken, and the impugned letter was, therefore, issued on 16.10.2002.

14. Shri R.P. Bansal, learned senior counsel, appearing for the petitioner submits that the impugned cancellation and the manner in which the decision taken for that purpose, shows arbitrariness. He urged that once the DDA had inspected the site, in 1986-87, given its verification report, recommended the allotment, taken steps and change the land use of the plot and subsequently allotted the land after which all payments demanded had been made, there was no question of the plot being found unsuitable. He has submitted that the DDA has taken completely irrelevant considerations into account, namely, the report of the Timber Market Industrialists who had been somehow agitating to get the petitioner and the temple out from the plot in question. The action of the DDA has been impugned also on the ground of misuse of power / before office as also mala fide.

15. Mrs. Sabharwal, learned senior counsel for the DDA submits that the allotment made in favor of the petitioner could be cancelled if the circumstances so warranted. He urged that when the allotment was made in 1999, the fact that the plot had been handed over to the MCD for development of a park, had not been considered. When this aspect was brought to the notice subsequently in 2001, a fresh inspection was carried out; the Vice-Chairman himself visited the site. After these developments, it was considered that the location of a temple on the site would be not desirable having regard to the nature of the surrounding areas. Hence, it was decided that the allotment would be cancelled and the petitioner would be offered another, alternative plot. He disputed that the decision was taken at the behest of anyone or that it was not bona fide. All the facts that were considered, were relevant considerations.

16. The factual narrative shows that the petitioner's society, formed sometime in the year 1985 had been repeatedly representing to DDA and Central Government for allotment / regularization of the Shiv Mandir. It existed in the timber market which had been shifted sometime in 1977. The requests of the petitioner led to the inspection and verification of the site and recommendations that the land use in the layout, for the plot, be changed. This was duly done after taking the steps required under the Act in 1990-91. The record shows that when the layout plan was changed, no objections were made by any person. After the change of layout plan, the matter was processed and correspondence was exchanged between DDA and the petitioner, in respect of the amount to be paid as premium for the land. During this period, a writ petition had been filed, which was withdrawn; a suit was thereafter filed challenging the possession of the petitioner. That is still pending. A status quo order with regard to possess on and use of the suit land was made in those proceedings. Eventually, the land was allotted in the year 1999; the petitioner paid all the amounts demanded and was issued with No Objection Certificate; its plans for putting up certain additional structures were processed and it received approval by some authorities. At this stage, objections to the location of the temple seems to have engaged attention of the DDA which ordered fresh inspection in 2002 and proceeded to cancel the allotment.

17. It is well settled that the State, its agencies and public authorities required to perform statutory or public functions have to act within the strict corners of the law which confers powers on them. Failure to take into account relevant factors, a decision taken in a palpably unfair manner, or in breach of principles of natural justice, when the circumstances warrant its observance, would vitiate the decision; it can be corrected in judicial review. In Indian Rly. Construction Co. Ltd. v. Ajay Kumar, the which ought to inform every decision maker, were summarized as follows:

It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. (See State of U.P. v. Renusagar Power Co. 1. At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor de Smith in his classical work Judicial Review of Administrative Action, 4th Edn., a pp. 285-87 states the legal position in his own terse language that the relevant principles formulated by the courts may be broadly summarized as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (i) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive.

The Supreme Court, in 1979, in its decision reported as S.R. Venkataraman v. Union of India, described the distinction between malice in law and malice in fact (legal mala fides, as is commonly understood) :

Malice in law is however, quite different. Viscount Haldane described it as follows in Shearer v. Shields:

A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently.

Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause.

6. It is however not necessary to examine the question of malice in law in this case, for it is trite law that if a discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether its repository was acting in good faith or in bad faith.

18. The facts here show that the DDA had taken all steps towards converting the use of the plot; the use had been changed under section 11 of the Act. As a matter of law, the plot has been earmarked for social/ religious/ public use. The DDA calculated the premium payable, and notified the petitioner, which was also required to pay interest @18% on it, till 1999. These amounts were paid by the petitioner, and accepted by DDA. There are no allegations of mis-representation or fraud, or impropriety, at the behest of the petitioner. Hence, the reopening of the decision, and seeking to unsettle a settled transaction, as it were, in the manner that has been done, is arbitrary. None of the considerations mentioned here, namely the change of land use, payment of amounts, including interest, issuance of no-objection, etc were considered by DDA. Instead, the DDA has proceeded on the footing of the undesirability of the plot being used for religious purpose- a factor that had been gone into earlier, and considered, while changing the lay out plan, for the plot, under the Act. This consideration of undesirability became irrelevant having regard to the change in the lay-out plan.

19. One of the fundamental basis of administrative or executive functioning is fairness. Every action, when called into question, ought show that it is free from unfairness, and unreasonableness. Fairness ordinarily relates to the manner in which the decision is taken, rather than the decision itself. That fairness is wanting in the impugned order. It was not preceded by any kind of notice, or hearing of the affected party, viz the petitioner. The impact that the decision would have, under such circumstances, was also not considered.

20. As noticed in the decision in S.R. Venkataraman case (supra) if a discretionary power is exercised for an unauthorized purpose, the motive of the repository of that power immaterial. Similarly, it is not necessary to examine whether the impugned action was motivated by personal mala fides; the scrutiny is restricted to whether that action was taken in excess of the power granted, or for a purpose, not permitted by the statute. Admittedly here, the lay out of the area had been changed; use of the plot had been prescribed as semi-public/ religious. Hence, while exercising the discretion to cancel, the DDA was under an obligation to see the change in lay out, and the settled nature of the transaction. The file does not show consideration of all the relevant factors. Hence, the impugned action is arbitrary, and amounts to wrongful exercise of discretion or malice in law.

21. As per the order passed in Suit No. 1642/1994, the allotment and possession of the suit plot is subject to final order/ judgment of the Court. Hence, it would not be correct to comment on the merits of those proceedings. Therefore, the final order that can properly be passed in these proceedings would be to allow the petition to the limited extent of setting aside the impugned cancellation letter. This would mean that the merits of the suit, and the order of allotment in the petitioners favor, would be subject to outcome in Suit No. 1642/1994.

22. In the light of the foregoing discussion, a direction or order, quashing the impugned letter of the DDA, dated 16th October, 2002, is issued. However, all contentions and rights of the parties in Suit No. 1642/1994 are kept open for a decision on their merits.

23. The writ petition is allowed to the extent indicated above; all pending interlocutory applications, are also disposed off in the light of this judgment.

24. No costs.