Diamond Filling Station vs D.D.A. And Ors.
2007 Latest Caselaw 1817 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. This appeal is directed against the order dated 7th November, 2005 passed by the learned Single Judge dismissing the writ petition of the appellant. The writ petition was filed by the appellant praying for a direction to the Delhi Development Authority (for short the DDA) to re-site/re-locate its petrol pump by allotting an appropriate plot.

2. Before we deal with the issues raised before us it will be necessary to deal with some of the background facts on the basis of which the present appeal is filed. The appellant was allotted a retail petrol pump outlet on 13.6.1991 as dealer under IBP Company Limited. Initially, the appellant took a plot of land on lease at Village Dhansa for establishing the petrol pump. It is also stated that the said petrol pump became operational and functional from the said plot of land but later on, the Oil Company was of the opinion that the petrol pump was not remunerative. In the meantime the owner of the land was also asking the appellant to vacate the premises. Consequently, the IBP represented to the Ministry of Petroleum and Natural Gas for relocation of the petrol pump. The said prayer was considered by the Ministry and thereafter it granted approval on 6.1.1994 pursuant to which the IBP Company Ltd. requested the DDA to allot an alternative plot for re-sitement/relocation of the retail outlet. The appellant alleges that the DDA did not act with promptitude and dithered in taking a decision. Eventually on 15.12.1997, after the appellant met the Lt. Governor, the DDA decided that relocation of the petrol pump and assignment of seniority to the appellant would be taken up on priority basis. The case of the appellant was included in a draw of lots and it was allotted a plot of land in Sector 11, District Centre, Dwarka. The appellant protested the move by letter on 31.8.1998 and requested the DDA to adopt the usual practice of routing the re- sited case through the DDA. The appellant was informed about the allotment of plot at Sector 11, District Centre Dwarka. The IBP Company Ltd. also deposited a sum of Rs. 6.5 lakhs under protest with the DDA on 28.4.1999. It is also alleged that the IBP Company Ltd. also requested the DDA to allocate a better site on proper analysis of the potential of the location. It was also contended that the approval for re-sitement was given on 13.5.1994 for a site in South Delhi whereas the site actually was given in West Delhi. After sometime two plots were carved out at Dwarka which were later on given to Indian Oil Corporation and the same was protested by the appellant. The IBP Company Ltd. took the stand that the site allotted was in the inner lanes of the area and was commercially unviable and a considerable investment to the tune of Rs. 70 lakhs had to be made. On the basis of the above allegations the present writ petition was filed in this Court.

3. The DDA contested the aforesaid writ petition contending, inter alia, that the case of re-sitement was recommended by the Ministry of Petroleum and Natural Gas with a request to allot an alternative plot. The DDA also relied upon the policy of the Government of India dated 18.5.1998 that only those re- sitement proposals would be considered that are necessary on account of unavoidable circumstances like closure of traffic, construction of flyover, etc. It was also the case of the DDA that action for re-sitement was to be taken as per the policy of the DDA and that allotment of the alternative plot was in accordance with the aforesaid policy of the respondent. So far the additional two sites carved out at Dwarka are concerned it was stated that the said two additional sites in Sector 9 Dwarka were carved out not for the purpose of the appellant?s case but for allotment in other cases where letters of intent had already been issued. It was also the plea of the DDA that the appellant had itself accepted the offer of re-sitement of the land and possession was taken and therefore there is no case made out by the appellant for interference.

4. The learned Single Judge considered the contentions raised and after a detailed order dismissed the writ petition by recording reasons in paragraphs 34, 36 and 38 of the judgment which read as follows:

34. The factual matrix here discloses that the petitioner set up its retail unit in 1991, in rented premises. Two years later, the IBP sought for re- location. The rationale for such a request is, as yet, unknown. Admittedly, at the point in time, in 1994 or 1995, there was no impending threat of eviction; nor was the land needed for public purposes. Nevertheless, the Central Government, recommended re-sitement. The DDA included the case, in the draw of lots. No materials exit that any specific plot, or any plot in a specific zone had been earmarked for the petitioner, or ever allocated to it. When the draw of lots took place, and allotment was made in Dwarka, the representatives of the Oil Company were present; they presumably did not voice any concern or grievance. Even the consideration was paid by the IBP. Much later, when it felt that the plot was unviable (perhaps at the behest of the petitioner) it started corresponding with DDA for allotment of another plot. There is no stipulation in any policy or guideline of the DDA, or of any other authority (which was made available to the court) that enables shifting of a re-located site, or shifting of a re-located site, on the basis of commercial un-viability.

36. Apart from reliance on letters of the Central Government, which did not talk of any specific plot, there is nothing to suggest that denial of the request to relocate the petitioner, yet again is covered by any policy. In the absence of such material, the DDA?s stand that it cannot re-locate(read: re- site) someone who had already been re-located or re-sited, cannot be termed arbitrary.

...

38. In the light of the above discussion, even if it is assumed that certain others were given allotment, contrary to the DDA?s policy, that would not afford any cause of action to the petitioner. The submission about discrimination, based on wrongful or illegal allotment in favor of other has no merit. It is settled law that one illegality or irregularity does not constitute a rational for its perpetuation through the process of court, by recourse to Article 14. In State of Bihar v. Kameshwar Prasad Singh it was held that:

The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favor of any individual or group of individuals, others cannot claim the same illegality or irregularity on the ground of denial thereof to them. Similarly, wrong judgment passed in favor of one individual does not entitle others to claim similar benefits.

5. Being aggrieved by the aforesaid findings and conclusions arrived at by the learned Single Judge the present appeal was filed before us. The grounds taken before us, while arguing the appeal, are also similar to the ones which were urged before the learned Single Judge. In order to appreciate the contentions we have also looked into the records. It is established from the records that the appellant initially took some land on lease wherefrom the petrol pump was made operational and functional. The said petrol pump continued to function from the said site for two long years. Thereafter a request was made by the IBP Company Ltd. for making a new site available. The lease which was executed in favor of the appellant by the owner of the land was for a period of 10 years. In the request made to the Ministry of Petroleum and Natural Gas no specific reasons were cited by the appellant for shifting the site. However, the Ministry of Petroleum and Natural Gas recommend for re-sitement, which was accepted by the DDA. There is no document on record to prove that the aforesaid re-sitement was directed to be made only in South Delhi area. The learned Single Judge on consideration and appreciation of the records also came to the conclusion that the Central Government had merely sought re-sitement without any indication as to any particular site or zone. The said findings are arrived at on the basis of records. The name of the appellant was included in the draw of lots for allotment of the plot of land in terms of the order of the Central Government. The draw of lots took place in 1999 and the plot was allotted at Sector 11, Dwarka. The amount was deposited by the IBP Company Ltd. in May, 1999. It is only thereafter that the IBP Company Ltd. started writing that the plot was commercially unviable and requesting the DDA to allot another site. The DDA, however, did not accept the aforesaid proposals and held that the aforesaid allotment of land has been made according to the existing policy of the respondent. The DDA also took up the stand that not only the payment has been made for the aforesaid land but it has also taken over possession of the land allotted and, therefore, no case for reconsideration is made out.

6. Counsel appearing for the appellant has stated before us that the location of the plot was at the dead end and there was negligible population in the vicinity. When the draw of lots took place and the allotment was made in Dwarka the representatives of the Oil Company were present. At that stage no voice of any concern or grievance was made. Amount was also paid by the IBP Company Ltd. It is only at a later stage that they took up the plea that it is not viable. It was pointed out by the counsel for the respondents that the grievance raised has no legs to stand. Our attention was drawn to the rules of the DDA according to which the DDA has to carve out the petrol pump sites on the basis of Master Plan 2001. The aforesaid plot was carved out as a petrol pump site in the District Centre at Sector 11, Dwarka and the respondent has carved out the site as per the master plan 2001. Consequently, it cannot be said that the said site is commercially unviable. The Oil Company had also accepted the aforesaid land and has deposited the amount and the license fee. Besides, the re-sitement is to take place according to the rules and norms for the aforesaid purposes. The case of the appellant for re-sitement was considered through draw of lots and when a particular plot comes out in that draw of lots in favor of the appellant, the said land which is also the carved out land, has to be allotted in favor of the appellant which was done in the present case.

Allotment of land having been made and the amount payable having been paid and possession having been handed over, the appellant thereafter could not have re- agitated the matter asking for allotment of better land. If such prayer of the appellant is accepted, the same would lead to an anomalous situation as everyone who is allotted a plot of land can take up a plea at later stage that he should have been given a better plot instead of the one allotted to him or her through the draw of lots. The appellant has, therefore, not been able to make out any case. The allotment having been made in accordance with the policy of the respondents, the same does not call for any interference at all. We, therefore, do not find any infirmity in the findings and conclusions arrived at by the learned Single Judge. There is no merit in this appeal and the same is dismissed accordingly.