D.D.A. vs Amar Nath Garg
2009 Latest Caselaw 1273 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                                                         #5
+      LPA 268/2007

       D.D.A.                                             ..... Appellant
                                Through Mr. Ajay Verma, Advocate.
                       versus

       AMAR NATH GARG                                        ..... Respondent
                     Through None.

       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE SANJIV KHANNA

                 ORDER

% 09.04.2009

The only issue which arises in this appeal is whether in the facts of this case the

Appellant DDA could decline to execute the conveyance deed and insist that the

respondent ought to deposit charges determined by it towards alleged misuse for a period

of 15 years as a pre-condition.

2. The respondent is a senior citizen and he has constructed a building, which is

occupied by his family. On 30.3.1999 the respondent had applied for conversion from

lease hold to free hold in respect of the above property and complied all the formalities as

per the rules and regulations of the DDA and also deposited all requisite charges as per

demanded of by the DDA in accordance with calculation mentioned in its Book-let. The

original scheme nowhere stipulated the payment or deposit of any misuse charges.

Indeed one of the circulars dated 15.7.1999, provided by Clause 3 that the conversion of

all these properties irrespective of any building violation or use violation would be

allowed. It was also provided that action for unauthorized construction or misuse or

would be taken care of by the MCD and DDA under various laws and regulations. Thus,

it is clear that while formulating the policy the DDA held out to the intended

beneficiaries that only the charges spelt out in the scheme of conversion were payable.

The DDA acted on this understanding and processed the application of the respondent

and approved the same vide decision dated 5.1.2000. The respondent acted upon it, made

entire payment and even purchased the stamp papers, and furnished them to the DDA.

Thereafter the respondent was called upon to appear in the office of the DDA on

31.3.2000 for execution of the Conveyance Deed. The Conveyance Deed was not

executed and subsequently by impugned letter dated 20.11.2000 demanded

Rs.11,55,656/- on account of misuse charge w.e.f. 13.9.1985 to 28.6.1999. Being

aggrieved the respondent filed writ petition which came to be allowed by learned single

Judge vide order under appeal and held that:

"10. It is no doubt true that no one can claim as vested or inherent right that the terms of the policy have to be enforced by a public authority as it existed on the date of its issuance and that subsequent changes would not govern him. As a general rule this is founded on sound principles of public policy. However, there are important exceptions to this. One of them, in my opinion, is the principle of estoppel. The facts of this case show that the DDA

and the petitioner had understood the terms of the policy, framed in 1999; both had acted upon it. The DDA's position to convert the property without recovering any dues other than conversion charges was communicated to the petitioner on 5.1.2000. The acceptance of the request was conditional upon the petitioner furnishing the requisite documents and also stamp paper within a stipulated time. There is no dispute that the petitioner did so. Upon compliance of those directions, the transaction as it were, was concluded.

11. The doctrine of promissory estoppel, which is but a facet of fairness and intimately connected with Article 14 of the Constitution of India, is that if an agency or authority holds out, or represents to another or the citizen, about something, and that other or the citizen acts upon the representation, by altering his circumstances (and to his detriment) the authority cannot resile from its representation. (M.P. Sugar Mills Vs. Union of India 1979 (2) SCC 409; Union of India Vs. Godfrey Philips Inida 1985 (4) SCC 369; State of Punjab Vs. Nestle India Ltd. 2004 (6) SCC

465). Being an equitable principle, promissory estoppel can be defeated if the agency's promise is prohibited or impermissible in law, or it is able to set out changed circumstances which disclose overwhelming public interest concerns against enforcement of the doctrine. None exist here; all elements for application of the doctrine were satisfied the policy of 1999 did not talk of misuse charges; the petitioner acted on it to his detriment, the respondent accepted the request. Hence, the fairness, the DDA should convert the property without insisting upon payment of misuse charges."

3. We are inclined to agree with the learned single Judge that in the facts of the case

the principle of promissory estoppel would be applicable and hence in the fairness, the

DDA should convert the property without insisting upon payment of misuse charges. On

behalf of the DDA reliance was placed on the judgment of the Supreme Court in Sharma

Transport Vs. Government of A.P. And Ors. (2002) 2 SCC 188 where the Supreme Court

held that promissory estoppel cannot be used to compel the Government or a public

authority to act contrary to law or beyond its authority. We fail to appreciate how this

judgment would be applicable, inasmuch as the case of the respondent is clearly covered

by the earlier policy of 1999 whereunder only charges as per the conversion policy were

payable.

4. The matter can also be looked from another point of view. The circular dated

4.2.2000 states that wherever the owner / occupier of the property misuses it, the

application for conversion would be processed on realisation in misuse charges. In t his

case processing of the documents furnished by the respondent had been completed in

December 1999 and he was communicated of the formal decision in January 2000.

Therefore, the case of the respondent would not be covered by circular dated 4.2.2000.

5. In the result, the appeal is dismissed. DDA is directed to execute the conveyance

deed within eight weeks insisting upon the payment of amounts demanded by the letter

dated 20.11.2000 as a pre-condition for conversion.

CHIEF JUSTICE

SANJIV KHANNA, J APRIL 09, 2009 dk