Birkha Ram vs Dda & Anr.
2008 Latest Caselaw 1861 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                Date of decision: October 21, 2008

+                       W.P.(C) 2145/1990


      BIRKHA RAM                                ..... Petitioner
                        Through:    Mr. R.K. Saini, Advocate

                  versus


      DDA & ANR.                               ..... Respondents
                        Through:    Mr. Ajay Verma, Advocate


      CORAM:
      HON'BLE MR. JUSTICE VIPIN SANGHI

      1. Whether the Reporters of local papers may
         be allowed to see the judgment?

      2. To be referred to Reporter or not?                  Yes

      3. Whether the judgment should be reported             Yes
         in the Digest?

VIPIN SANGHI, J. (ORAL)

1. Agricultural land situated in Village Lado Sarai belonging to

the petitioner were acquired under the Land Acquisition Act by the

Central Government in the year, 1980 vide Award No.36/80-81

announced on 19.6.80. Under the scheme of alternative allotment of

land, the petitioner applied for allotment of a residential plot. The

case of the petitioner was recommended to the DDA by the Land and

Building Department of Delhi Administration vide communication dated

15.02.1984 for allotment of a residential plot. The recommendation

was for allotment of an alternative plot admeasuring 250 sq. yards in

South zone. On 04.06.1986, the Delhi Development Authority

communicated to the petitioner that plots are not available in South

zone and it had been decided to accommodate him in West zone. His

consent was sought by the respondent DDA and he was required to

deposit Rs.3,000/-. The petitioner objected to being allotted land in

another zone apart from South zone. He sought reconsideration of its

decision by the DDA. The DDA reiterated its position on 09.08.1989

stating that land would be allotted in North zone. The petitioner again

rejected this offer made by the DDA on 14.08.1986. The petitioner

was issued another communication dated 20.03.1990 informing him

that it had been decided to allot him a plot measuring 175 sq. meters

in Pappan Kalan Residential Scheme or the self-financing scheme flat

of category 3 to be constructed in Jasola, South Delhi. He was

required to make a deposit of Rs.5,000/- as earnest money by

20.04.1990. The petitioner deposited the said amount under protest

on 19.04.1990. The petitioner then preferred the present writ petition

in July, 1990. The petitioner prayed for the following reliefs in the writ

petition: -

"(a) To strike down the decision dated 30.3.90 changing allotment of the petitioner from South Zone to West Zone and the decision to charge the premium at the rate prevailing on the date of actual allotment as invalid.

(b) To issue a writ of mandamus to the respondent No.1 & 2 to allot the petitioner a developed plot of 250 sq. yds. in any residential scheme in South Delhi at the pre- determined rate prevailing in the year 1983.

(c) to issue a further writ of mandamus to respondent No.2 directing it to allot the petitioner a suitable alternative plot in South Zone immediately."

2. The petition was entertained and notice was issued to the

respondent. Thereafter, the petition was admitted on 16.07.1991 with

the issuance of "Rule". The Court dismissed the writ petition for non-

prosecution on 22.05.2003 since none appeared when it was called for

hearing as a regular matter.

3. In the meantime, in the year 1991, the respondent DDA

made allotment in favour of the petitioner in respect of Plot No.28,

Sector-19, measuring 207.75 sq. meters in Amberhai (Dwarka

Residential Scheme) vide demand-cum-allotment letter No.3386 dated

04.09.1991. The allotment had been made at the rate then currently

prevalent. It appears that the petitioner did not take any steps in

response to the said allotment letter. The respondent also did not

proceed to cancel the allotment. Mr. Verma states that, apparently,

no action was taken in deference to the pendency of the writ petition.

However, after the dismissal of the writ petition for non-prosecution on

22.05.2003, the respondent issued a communication dated 08.01.2004

to the petitioner informing him that, on account of his failure to make

payment of the aforesaid plot, the competent authority had

cancelled/withdrawn the allotment made in favour of the petitioner.

4. The petitioner filed an application for restoration of the writ

petition being C.M. No.3305/2007. The same was firstly filed on

20.12.2006. In this application the petitioner explained the reasons

for neither his, nor his counsel's appearance, when the matter was

listed for hearing before the Court on 22.05.2003. In paragraph 9 of

the application the petitioner stated that to put an end to the

unfortunate and prolonged litigation he had decided to accept the

aforesaid allotment made by the respondent, at the cost demanded at

the time of allotment to finish off the matter as the plot was still

available with the DDA. He sought the recall of the order dated

22.05.2003 dismissing the writ petition for non-prosecution, its

restoration and a further direction to the respondent DDA to give

possession of the allotted plot to the petitioner at the cost demanded

in the allotment letter. Along with the application, the petitioner also

placed on record the reply sent by him on 25.11.2004 to the letter of

cancellation aforesaid, wherein he requested for allotment of the

alternative plot in accordance with the policy of the DDA, or in the

alternative for restoration of allotment of Plot No.28, Sector-19,

Dwarka.

5. When the aforesaid application for restoration came up before

Court on 09.03.2007, counsel for the petitioner on instructions stated

that he is willing to take the plot (noted as flat in the order) aforesaid

at the current cost. The DDA was required to inform whether the plot

is still available for allotment. The aforesaid application for restoration

was considered by the Court and allowed by a detailed order dated

07.05.2005. The Court also observed that the affect of cancellation,

as communicated by the respondent vide its letter dated 08.11.2004,

shall be examined at the time of final hearing of the matter.

6. Mr. Saini, learned counsel for the petitioner submits that at

the time when the writ petition was preferred the issues as to whether

the allotment could be made in a zone other than in respect of which

the same had been recommended by the Delhi Administration, and at

a rate higher than a rate prevalent on the date of the

recommendation, were still alive. Other writ petitions were also

pending on the same issue. In fact, with the writ petition the

petitioner had annexed an order passed in C.W.P. No.1368/1990 in the

case of "Sh. K.S. Sharma v. Lt. Governor & Anr.", which was stated

to be a case raising similar issues. Mr. Saini submits that, however,

over the years the issues raised in the writ petition stand concluded

against the petitioner. It has already been decided that the allotment

could be made in a different zone other than the one recommended by

the Delhi Administration, and the rate at which the allotment is made

is the rate prevalent on the date of allotment and not the rate

prevalent on the date of the recommendation by Delhi Administration.

Therefore, the petitioner possibly cannot press the writ petition for

seeking the reliefs as originally prayed. He submits that the plot that

had been allotted to the petitioner in the year 1991 is still available as

it has not been allotted to any other person, even though the same

was purportedly cancelled on 08.11.2004. Mr. Verma has confirmed

that the said plot, in fact, has not been allotted to any other person till

date. Mr. Saini submits that the petitioner, as already recorded by the

Court on 09.03.2005, has expressed his willingness to pay the current

cost of the said plot. He submits that, if not to the petitioner, the DDA

would allot the said plot to some other person and would realize the

current cost. Since there is no dispute that the petitioner is entitled to

allotment of a plot, it would only be fair if the respondent is directed to

make allotment of the said plot to the petitioner at the current cost.

No prejudice would be caused to the respondent if the said plot is

allotted to the petitioner since the respondent would realize its

prevalent cost as on date. He submits that the petitioner is now more

than 85 years of age and he has been waiting since the year 1980 for

allotment of an alternative plot. The submission of Mr. Saini also is

that the petitioner is suffering the consequence of his not having

accepted the initial allotment made by the respondent, inasmuch as,

the petitioner is willing to pay the current cost, which is much higher

than the rate prevalent in the year 1991 when the allotment was

initially made. He submits that in exercise of the extraordinary writ

jurisdiction, the Court is empowered to mould the relief keeping in

view the changed circumstances and for the purpose of doing complete

and substantial justice in the matter. Mr. Saini relies on a decision of

this Court in "S.R. Yadav v. Delhi Development Authority" W.P.(C)

No.12517/2005 decided on 19.09.2005.

7. Mr. Verma, counsel for the DDA, submits that since the relief

sought in the writ petition cannot be granted, the same deserves to be

dismissed and the petitioner cannot be permitted to seek a fresh relief

at this stage. He submits that the petitioner did not accept the

allotment of the plot in Dwarka by making payment of the demanded

amount. The allotment was cancelled in the year 2004 when the DDA

learnt of the dismissal of the writ petition on 22.05.2003. He submits

that the policy of the DDA is to allot alternative plots in upcoming

projects and not in a developed area. He, therefore, submits that

even though the aforesaid plot has still not been allotted to any other

person, the petitioner is not entitled to allotment of the same plot, and

that his case would be considered in due course in accordance with

the policy. He submits that the petitioner would be relegated to the

end of the wait list of the recommendees and would be allotted a plot

when his turn matures. Mr. Verma states that three offers are made to

a person eligible for alternative plot under the scheme. Mr. Verma

submits that neither the allotment nor the cancellation of the aforesaid

plot are subject matter of the present petition. After the cancellation

of allotment had been effected on 08.11.2004, the petitioner apart

from writing to the respondent on 25.11.2004, did not take any steps

to challenge the cancellation of the allotment. Even the application for

restoration was not moved for over two year. The petitioner did not

amend the writ petition to include a challenge to the cancellation. Mr.

Verma submits that from the notings in the record available with him it

appears that a show cause notice was issued to the petitioner prior to

the cancellation in the year 1992. The petitioner, however, disputes

having received any show cause notice.

8. Having considered the rival submissions of the parties, I am

inclined to agree with the prayer made by the petitioner and to direct

the respondent to restore the allotment of the aforesaid plot bearing

No.28 in favour of the petitioner by charging the current cost of the

said plot.

9. The petitioner had made the deposit of Rs.5,000/- for being

considered for allotment in Pappan Kalan Residential Scheme, though

under protest. Thereafter, he was allotted the aforesaid plot. At that

stage, the petitioner did not comply with the terms of the allotment

letter by making payment of the amount due thereunder. He did not

even move the Court to seek any interim orders in respect of the said

allotment. There are factors going against the petitioner. However, it

is also pertinent to note that the respondent did not operate the

automatic cancellation of the allotment made to him upon the expiry

of the period within which the payment was to be made. The

respondent maintained status quo with regard to the said allotment

on its own, even though there was no order by the Court in the

present petition in respect of the said plot. Consequently, the case of

the petitioner was not reconsidered for another allotment, for which he

would have been entitled, had his initial allotment been considered as

cancelled automatically in the year 1991 itself, and the same would

have been communicated to him.

10. Mr. Verma submits that the petitioner did not ask for his

being considered for another allotment. However, since there was no

cancellation of the initial for all these years i.e. from 1991 to 2004

there was, in fact, no occasion for the petitioner to ask for being

considered for allotment of another allotment.

11. It is seen that the respondent on its own treated the initial

allotment made to the petitioner as being subject to the outcome of

this petition, since the automatic cancellation of the allotment was not

operated upon by it from 1991 to 2004. Pertinently, the respondent

did not make the allotment of the said plot to any other person since

the time of its cancellation till the restoration of the writ petition, and

even thereafter. Had the respondent treated the allotment of the said

plot as already cancelled, and had the respondent issued the

communication as the one issued on 08.11.2004 at an earlier point of

time, the occasion for the petitioner being reconsidered for allotment

of another plot would have arisen. However, on account of the

aforesaid conduct of the respondent, the petitioner was never

reconsidered for allotment.

12. In S.R. Yadav (supra) the relevant facts were that the

respondent had invited applications for allotment of, inter alia, MIG

plots admeasuring 60 sq. meters and larger plots of 90 sq. meters in

Rohini Residential Scheme in the year 1981. The petitioners had

applied for the larger plots of 90 sq. meters. The DDA subsequently

decided that it would allot only 60 sq. meters plots. A demand-cum-

allotment letter issued to the petitioner. However, since the allotment

was only of 60 sq. meters, he did not accept the same. The said

action of the respondent was challenged by filing W.P.(C)

No.5755/2004 "Major General Pradeep Kumar Mahajan v. DDA".

The same was dismissed on 15.02.2005. Thereafter, from the fire the

petitioner landed into the frying pan. The petitioner was confronted by

a typical DDA stand; that as the petitioner had not complied with the

allotment-cum-demand letter during the pendency of the petition

challenging the same and the petition had been dismissed, he could

not be delivered the possession of the plot in pursuance of the said

allotment. At that stage, the aforesaid writ petition was preferred by

S.R. Yadav and another writ petitioner was preferred by one Sh.

Rakesh Kumar Jain (petitioner in W.P.(C) No.887/2004). This Court

allowed the aforesaid writ petitions holding that the petitioners had

raised a bonafide dispute in the earlier writ petition and the petitioners

should not be penalized for having ventilated their rights. The Court,

inter alia, observed as follows:

"25. It is not the case of DDA that the writ petition filed by the petitioner challenging the amendment to the scheme was a malafide litigation. Indeed, decision dated 15.2.2005 shows that issue raised by the petitioner was a debatable issue and notwithstanding they lost, issue of substance were raised.

26. Rule of law demands that citizens of the country should be permitted to approach the court of law without any fear. But if consequences of losing the court battle are what I see in the present case, it would be putting fear in the minds of the citizen to seek legal redressal.

27. The principal of proportionality means that administrative measures cannot be more drastic that is necessary for attaining the desired result. Damages and penalties that are out of proportion to the circumstances have been corrected by the courts applying the principal of proportionality. A public authority has a duty to act with fairness while dealing with the public.

28. Rational of penalized a person who pays late is that he disturbs the cash flow of DDA. If a person has bonafide dispute and is not litigating malafide and on losing the litigation, he can be directed t restore the cash flow imbalance him to pay interest."

13. The Court directed that the petitioners should pay the

demanded amount along with interest @ 9% p.a. within 30 days of the

issuance of the demand-cum-allotment letter and the possession

should be handed over to them by the DDA.

14. Mr. Verma submits that the aforesaid decision in S.R. Yadav

(supra) cannot be applied in the facts of the present case since, in that

case, the issue with regard to the allotment of 60 sq. meters plot or 90

sq. meters plot was squarely raised before the Court, whereas in the

present case the issue with regard to the allotment and subsequent

cancellation of plot No.28, Sector 19, Dwarka has never been raised by

the petitioner. He submits that the allotment of the plot in question to

the petitioner, at this stage, would also tantamount to breach of the

policy of alternative land, since the policy is only to allot land in

upcoming projects and not in developed areas. However, I do not

agree with this distinction sought to be drawn by Mr. Verma. In the

present case, the fundamental issues raised by the petitioner were

such that if the petitioner would have succeeded, the allotment would

have had to be made in Sought Zone and at the rate prevalent on the

date of recommendation. Like in S.R. Yadav (supra) the petitioner

did not succumb to the pressure created by the DDA by going ahead

and making an allotment in Dwarka at the rate prevalent on the date

of allotment. He did not comply with the allotment letter and did not

make payment of the demanded amount. Like in S.R. Yadav (supra),

the petitioner admittedly cannot succeed on the basis of the original

relief sought in the writ petition. Does it mean that the petitioner

should be doomed for life? In my view: No. The consequences that

he would be visited with if the respondent DDA has its way, would be

to throw him back now to the position that he would have been in the

year 1991 when the allotment of the plot in Dwarka could have been

cancelled. In fact, the situation would be far worse than that for the

petitioner considering the fact that he is 85 years of age, the land

rates have shot up since 1991, the availability of land is less since the

year 1991, and the lands now considered for upcoming projects are in

even more remote areas than Dwarka, and the petitioner is sought to

be relegated to the end of the wait list of persons entitled to allotment

of alternative plot. These consequences would be highly

disproportionate to the failure of the petitioner in not responding to

the allotment letter issued to him in 1991 particularly keeping in mind

the failure of the respondent in not cancelling the allotment in 199

itself. It cannot be said that the petitioner, when he preferred the

present petition did not raise a bonafide dispute.

15. So far as the submission of Mr. Verma that neither the

allotment nor the cancellation of the plot in question is a subject

matter of the petition is concerned, I find that the petitioner at the

time of seeking restoration of the writ petition categorically stated that

he would accept the allotment of the plot in question as a way to settle

the long standing dispute. He sought a direction to be put in

possession of the allotted plot. Even prior to this in the year 2004,

soon after the cancellation he had written to the DDA to restore the

allotment of plot No.28. On his offer that he would pay the current

cost, the Court had directed the DDA vide order dated 09.03.2007 to

enquire whether the plot was available for being allotted to the

petitioner. It is well settled that writ proceedings are not shackled in

rules of procedure, which, in any even are the hand maids of justice.

What has to be seen is, whether there has been compliance of the

principles of natural justice. In my view, the respondent DDA has had

sufficient opportunity to meet the prayer made by the petitioner for

seeking allotment of plot No.28 at current cost. This prayer itself,

though not a part of the original prayer in the writ petition, can be

granted by the Court as it is a smaller relief compared to the one

prayed in the writ petition, and it is open to the Court to mould the

relief to do substantial justice between the parties. Since the

petitioner is, in any event, entitled to allotment of a plot. I see no

impediment in the plot in question being allotted to him at the current

cost.

16. For the aforesaid reasons, the writ petition is allowed in the

aforesaid terms. The respondent DDA is directed to issue a fresh

demand letter at the current cost in favour of the petitioner in respect

of the aforesaid plot bearing No.28, Sector-19, measuring 207.75 sq.

meters in Dwarka Residential Scheme, within one month.

Dasti.

VIPIN SANGHI, J.

OCTOBER 21, 2008 rsk