Ministry Of Works, Housing & ... vs Delhi Development Authority & ...
2009 Latest Caselaw 1583 Del

R-12
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+      W.P.(C) 5083/1997

                                      Date of decision: 22nd April, 2009


       MINISTRY OF WORKS, HOUSING AND SUPPLY COOPERATIVE
       HOUSE BUILDING SOCIETY LIMITED                ..... Petitioner
                      Through Mr. Sushil Dutt Salwan,Advocate.

                     versus

       DDA & ORS.                                     ..... Respondents
                          Through Ms. Sangeeta Chandra, Advocate for
                          DDA.
                          Mr. Sachin Nawani, Advocate for respondent No.
                          2.

       CORAM:
       HON'BLE MR. JUSTICE SANJIV KHANNA

       1. Whether Reporters of local papers may be
       allowed to see the judgment?
       2. To be referred to the Reporter or not ?
       3. Whether the judgment should be reported
       in the Digest ?

                                 ORDER

%

1. The petitioner-Ministry of Works, Housing and Supply Cooperative

House Building Society Limited filed the present writ petition on 24 th

November, 1997 with the following two prayers:-

"In view of the aforesaid facts and circumstances, it is most respectfully prayed that this Hon'ble Court would be pleased to issue a writ of mandamus or any other appropriate writ, order W.P. (C) No. 5083/1997 Page 1 and/or direction calling upon respondents No. 1 and 2 to sanction all the school plots situated in the colony of the petitioner society at Nirman Vihar in favour of the petitioner Society and the allotment made in favour of any other person or society including respondent No. 3 be directed to be cancelled. This Hon'ble Court would be further pleased to issue appropriate directions calling upon respondent No. 1 and 2 to return back to the petitioner society the amount of the lease money in respect of 18 Bighas 11 Biswas of land amounting to Rs.3,57,000/- alongwith interest from the date of deposit till the date of payment at the prevalent market rate. Such other order this Hon'ble Court may consider appropriate be made in favour of the petitioner society."

2. The first prayer was given up and not pressed as recorded in order

dated 11th February, 2009. The second prayer is being considered and

examined in the present judgment.

3. The petitioner is a cooperative society under the Delhi Cooperative

Societies Act, 1972. By a perpetual lease dated 10th February, 1977, the

petitioner society was granted lease hold rights in respect of 222 bighas

and 4 biswas of land on payment of consideration of Rs.19,14,044/-.

4. The respondent Delhi Development Authority (hereinafter referred

to as the respondent, for short) handed over possession of land

admeasuring 203 bighas and 13 biswas and could not hand over

possession of the remaining land consisting of 18 bighas and 11 biswas.

This fact is recorded and mentioned in the perpetual lease deed itself,

wherein it is mentioned as under:-

W.P. (C) No. 5083/1997                                                Page 2
               "     AND WHEREAS the possession of land

measuring 18 bighas 11 biswas bearing Khasra Nos ( as hown in annexure II) out of the total allotment of land measuring 222 bighas 4 biswas could not be handed over to the society on account of the fact that a portion of the said land measuring 16 bighas and 5 biswas is built up while the remaining 2 bighas and 6 biswas has not yet been got transferred from the Municipal Corporation of Delhi through book adjustments.

AND WHEREAS SOME OF THE SAID LAND is earmarked for residential purposes while some thereof is affecting the demarcation of plot Nos. 165, 166 & 183. The area earmarked for non-

residential purposes, as per terms of the Agreement executed with the Lessee society is to revert back to the President of India. Since the aforesaid plot Nos. 165, 166 & 183 are affected by the land which has not yet been handed over to the Lessee society, Perpetual Sub-leases in respect thereof shall not be executed till the possession of the above said land measuring 18 bighas and 11 biswas is transferred to the society."

5. The stand of the respondent is that the area of 18 bighas and 11

biswas, as per lay out plan, was allocated and demarcated for community

services and was to revert back to DDA for allotment. Learned counsel for

the petitioner, however, states that this is only partly true and some part

of the area consisting of 18 bighas 11 biswas was encroached upon by

third parties, who had carried out unauthorized construction and,

therefore, at least for the portion which was unauthorisedly occupied by

third parties, DDA should be asked to refund the consideration paid.

6. The stand of the petitioner society may be correct but I do not think W.P. (C) No. 5083/1997 Page 3 petitioners are entitled to relief on the ground of delay and laches.

Admittedly, in the present case payment was made to DDA in November,

1976. Possession of the available land minus 18 bighas and 11 biswas was

handed over to the petitioner in the year 1977. The present writ petition

as stated above was filed on 24th November, 1997 after nearly 20 years

from the date when possession of land subject matter of lease, less

possession of 18 bighas and 11 biswas was handed over. There is nothing

on record to show that the respondent had at any time subsequent to

execution of the lease deed promised to hand over the balance land or the

sale consideration paid for 18 bighas and 11 biswas. On the other hand, it

appears that the petitioner or their members had raised questions in

Parliament with regard to refund of sale consideration/possession of 18

bighas and 11 biswas of land but the respondent in reply had denied the

right of the petitioner to claim refund and it was stated that the

unauthorized constructions on the part of the land were prior to 1977 and

as per the Government policy it had been decided to regularize the same.

The petitioner has filed on record letter dated 28th July, 1987 written by the

President of the petitioner society to the Vice-Chairman, DDA giving history

of the case including the Parliamentary question, which was answered on 1st

August, 1993. The relevant portion of the letter reads as under:-

" The DDA, however did not refund the cost of 18 Bighas, 11 biswas of land to the Society.

Ultimately in 1981 the Society approached the Delhi Administration/DDA for provision of

W.P. (C) No. 5083/1997 Page 4 alternative land to enable a few plots to be carved out for members on the waiting list. This was followed up by a number of reminders but there was no reply from the DDA and it was found that the alternate site was being used by the DDA for MIG flats.

The Society accordingly reconciled itself to the loss of this land and requested DDA to refund the cost of the land together with interest @ 10% per annum amounting to Rs.3,57,000/- including interest upto 31.3.1984."

7. Thus, it is clear that at least as on 28th July, 1987, the petitioner

society had reconciled itself that additional land would not be allotted to

them and their only claim was for refund of Rs.3,57,000/- and interest.

There is no letter or communication written by the respondent accepting

the claim for refund or even stating that the claim for refund was under

consideration. The petitioner awaited for another 10 years before filing

the present petition in 1997. In the writ petition itself there is no pleading

or explanation for the period between 1977 till 1987 or from 1987 till

1997, when the writ petition was filed. Period for limitation in claiming

refund is three years. The said period began, when the petitioners

themselves in their letter dated 28th July, 1987 admitted that there was no

possibility of 18 bighas and 11 biswas of land being handed over to them

and they had reconciled to the said fact and had demanded refund of

money in 1987. The prayer for refund made in the present writ petition

filed in 1997 is clearly barred by limitation.

W.P. (C) No. 5083/1997 Page 5

8. In view of the above, I do not think the second prayer made by the

petitioner society can be granted and the writ petition is dismissed on the

ground of delay and laches. No costs.

SANJIV KHANNA, J.

       APRIL 22, 2009
       VKR/ap




W.P. (C) No. 5083/1997                                                 Page 6