Avinash Kaur Ahluwalia vs Delhi Development Authority And ...
2009 Latest Caselaw 3462 Del

                   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       Writ Petition (Civil) No.6861/2009

%                         Date of Decision:   31.08.2009

Avinash Kaur Ahluwalia                              .... Petitioner
                   Through Mr.Sumit Bansal, Advocate.

                                   Versus

Delhi Development Authority and others             .... Respondents
                    Through Mr.Rajiv Bansal, Advocate for DDA.
                              Mr.M.M. Kalra, Advocate for the
                              respondent No.2.
                              Mr.Shiv Kumar, Advocate for the
                              respondent No.3.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.    Whether reporters of Local papers may be                 YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                   YES
3.    Whether the judgment should be reported in               YES
      the Digest?


ANIL KUMAR, J.

*

1. The petitioner seeks a declaration that the taking over the

possession of the land of the petitioner is illegal, arbitrary and against

the policy decision and a mandamus directing the respondent

No.1/DDA be issued not to interfere with the peaceful possession and

enjoyment by the petitioner of the petrol pump site at No.9/4, Mathura

Road, Badarpur, Delhi.

2. Brief facts to appreciate the controversies between the parties are

that the petitioner is the proprietor of M/s. Ahulwalia Highway Service

Station, which is stated to be a dealer of respondent No.2/Indian Oil

Corporation. Petitioner was granted dealership of respondent No.2

outlet by letter dated 22nd March, 1971 on the terms and conditions

stipulated in the said letter. According to the petitioner, the said firm

has continued to run the petrol pump and an auto gas has also been

installed. The husband of the petitioner who was running the petrol

pump under the name „M/s. Ahluwalia Highway Service Station‟ had

died and the firm was re-constituted which reconstitution was allegedly

approved by Indian Oil Corporation.

3. The petitioner asserted that she was shocked to receive a letter

dated 30th January, 2009 from respondent No.1 stipulating that the site

of the petrol pump was required by Delhi Metro Rail Corporation for

construction of Metro Station and Traffic Integration/Parking for its

Central Secretariat - Badarpur Metro Corridor which project is of larger

interest/convenience of public and cannot be delayed. Consequently, it

was conveyed to the petitioner that allotment of petrol pump at site

No.9/4, Mathura Road, Badarpur, has been cancelled, however,

resitement of the petrol pump will be considered by DDA as per policy

and availability of petrol pump sites.

4. The petitioner replied to the communication dated 30th January,

2009, cancelling the petrol pump site of the petitioner by

communication dated 11th February, 2009 stating that she has been

running the petrol pump since 1971 and the time granted to the

petitioner for vacation of the site is too short. The petitioner also

contended that she is a widow and has no source of income and in the

circumstances she demanded sufficient time to vacate the site and also

sought arrangement of another plot/land to carry on the business of

petrol pump.

5. Since the respondent No.1 was threatening to take possession of

the land where the petitioner has been running the petrol pump, the

petitioner filed the present writ petition. The petitioner contended that

the site of the petitioner is not immediately required by respondent No.3

for construction work as the pillars which were required to be

constructed in the area of the petrol pump have already been

constructed. The petitioner complained that the steps have not been

taken by the respondents with promptitude for resitement of the petrol

pump. The petitioner also made a grievance that the letter dated 30th

January, 2009, has been issued in violation of the principle of natural

justice as the petitioner had not been served with any notice. The

petitioner also contended that running of the petrol pump at the

present site would not in any manner hinder the work of respondent

No.3.

6. The petitioner also raised the plea that the petitioner is a person

interested in the land as the petitioner has rights in Petrol Pump on

that land and no proceedings have been initiated by respondents No.1

and 3 to acquire the land or the rights of the petitioner and since the

respondent no.2 still hold interest in the land, therefore, the same

cannot be acquired without proceedings under the Land Acquisition

Act. The reliance has been placed on behalf of petitioner on AIR 1968

Supreme Court 366, Sunderlal v. Paramsukhdas and Others.

7. The writ petition was taken up for hearing on 13th February,

2009, when relying on the fact that the documents placed on record

show that the petitioner is only an exclusive dealer of respondent

No.2/Indian Oil Corporation, which is in possession of the retail outlet,

the respondent no.1 was directed to consider the case of the petitioner

and respondent No.2 for resitement in terms of DDA (Commercial Land

Branch) Revised Policy of allotment of land for petrol pump/gas

godowns.

8. Pursuant to the directions given by this court, the case of the

petitioner was included in the draw of lots and a computerized draw of

the available sites was held on 20th March, 2009 and site at Sector 16B,

Phase II, at Dwarka, has been allotted to I.O.C. Limited. An affidavit

dated 10th August, 2009 was also filed on behalf of respondent No.1

contending that the computerized draw of lots was done in respect of

available sites and five sites were available and no other vacant petrol

pump site is now available. In the circumstances, it is contended that

Indian Oil Corporation is only a licensee, therefore, it is required to

surrender the existing site at 9/4, Mathura Road, Badarpur, New Delhi

as the same is required for the plan project of DMRC.

9. A short affidavit has also been filed on behalf of Indian Oil

Corporation contending that the site at 9/4, Mathura Road, Badarpur,

New Delhi, where petitioner is running retail outlet is an „A‟ site and all

investment on construction of petrol pump and the equipment has been

made by Indian Oil Corporation as per the policy. Respondent No.2

admitted the letter sent by respondent No.1. The respondent No.2 has

also contended that the request was made to allot the alternate plot

preferably near the land which is to be taken by the respondent no.1.

The alternate site allotted under the resitement was alleged to be

inspected and valued by Valuation Committee of respondent No.2 and

the site has been found to be economically unviable due to low sales

potential and on account of proximity of an electric sub-station and HT

line in front of the plot and consequently the respondent No.2 is alleged

to have sent a communication dated 10th August, 2009 to DDA.

10. The Delhi Metro Rail Corporation has also filed a counter affidavit

dated 10th August, 2009 contending that 8903.80 square meter land

was requisitioned from DDA for Mohan Co-operative Industrial Metro

Station and DDA has already allotted 7590 square meter land to the

answering respondent, leaving a portion of land measuring 1313.77

square meters, which is under the occupation of the petitioner who is

running a petrol pump allotted by Indian Oil Corporation. It is

contended that the land is required for construction of Metro Station

and Traffic Integration/Parking for its Central Secretariat - Badarpur

Metro Corridor.

11. A rejoinder affidavit is also filed by the petitioner contending that

the petrol pump of the petitioner falls under Zone „F‟ under the Master

Plan of Delhi 2001 and the Master Plan of Delhi 2021. According to the

petitioner, under the Master Plans, standard 74 petrol pump sites are

required under Zone „F‟ and the existing petrol pump sites are 46 and,

therefore, there are still 28 petrol pump sites. Reliance has also been

placed on the zonal development plan. It is contended that on 7th

February, 2007, the MPD 2021 was notified and in terms of said plan

one petrol pump per 150 hectares of gross residential area is required

and therefore, even for MPD 2021 there cannot be less than 74 petrol

pump sites in Zone „F‟. The petitioner claims an allotment of plot in

Zone „F‟ and not in a different Zone especially since the petitioner has

been carrying on the running of petrol pump in Badarpur area since

1971. The petitioner also contended that under the direction of Ministry

of Urban Development, another petrol pump of Taneja Service Station

has been relocated from Okhla to Ghazipur Highway after resitement on

the ground of feasibility.

12. I have heard the learned counsel for the parties and have also

perused the documents filed by the parties. The contention of the

learned counsel for the petitioner is that the land where the petitioner is

running the petrol pump cannot be acquired without having recourse to

the provisions of Land Acquisition Act. Learned counsel in order to

substantiate that the petitioner is an interested person has relied on

Section 3(b) of the Land Acquisition Act. It is contended that since the

petitioner is running her business from the said land, she has an

interest in the said property and, therefore, the acquisition without

having recourse to the Land Acquisition Act will not be permissible.

13. This is not disputed that the petitioner has got the right to run

the petrol pump pursuant to the dealership awarded to the husband of

the petitioner by letter dated 22nd March, 1971 stipulating the terms

and conditions of dealership. The terms and conditions of dealership

categorically stipulate that the dealer will not have any right, title or

interest in the outlet and the equipment belonging to the Corporation

and installed therein and the dealer will not claim any right of lessee,

sub-lessee or as a tenant or any other interest in the aforesaid property.

The relevant term 3 of the dealership agreement is as under:-

"3. LICENCE FOR NO OTHER RIGHT: That you will have no right, title or interest in the outlet and the equipment belonging to the Corporation and installed therein and you are not entitled to claim the rights of lessee, sub-lessee, tenant or any other interest in the property aforesaid."

14. If the dealership agreement does not confer any right as a lessee,

sub-lessee, tenant or any other interest in the property, the petitioner

cannot claim that she has a right as contemplated under Section 3 (b)

of the Land Acquisition Act. Neither the petitioner has any right in the

land on which the Petrol Pump is run by her nor she has any rights in

the equipment which is also of the respondent no.2. Learned counsel

for the respondent No.2 has also contended that the petitioner does not

have any right in the land on which the petrol pump with equipment

has been made by respondent No.2. The judgment relied on by the

petitioner Sunderlal (supra) is also distinguishable. In case of petitioner,

no right is created in the land or equipment on the said land pursuant

to the agreement between the petitioner and the respondent No.2. The

dealership agreement categorically stipulates that the petitioner has no

right of any type in the property which is sought to be acquired by DDA

for the public purpose of construction of Metro Station and Traffic

Integration/Parking for its Central Secretariat - Badarpur Metro

Corridor. In contradistinction, in the case of Sunderlal (supra), a

creditor of a person whose land was sought to be acquired had claimed

himself to be a person interested. The Supreme Court had held that the

Section 3(b) of the Land Acquisition Act defines person interested which

is an inclusive definition and, therefore, it is not necessary that in order

the fall within the definition of interested person, he should have

interest in the land to be acquired. It was held that a person will

become a person interested, if he claims an interest in compensation to

be awarded. The petitioner shall not be entitled for any share in

compensation, in case the land of the Petrol Pump is acquired under

the provisions of Land Acquisition Act because the dealership

agreement does not create any right in favour of the petitioner in the

property or compensation if any, in any manner. Consequently, the

plea of the petitioner that the land of the petrol pump cannot be

acquired without having recourse to the provisions of Land Acquisition

Act is not sustainable and is rejected.

15. In the petition, the petitioner has only claimed that respondent

No.1 should not interfere with peaceful possession and enjoyment by

the petitioner of the petrol pump at 9/4, Mathura Road, Badapur,

Delhi. By order dated 13th February, 2009 relying on the dealership

agreement, it was observed that the petitioner is not the lessee of the

petrol pump and what was given to her is only the dealership.

Consequently, it was also ordered that the case of the petitioner and

respondent no.2 be considered for resitement in terms of DDA

(Commercial Land Branch) Revised Policy of Allotment. The resitement

policy of the respondent No.1 contemplates that resitement will be made

only when the existing petrol pump/gas godown is utilized for planned

project/scheme which directly necessitate the closing down of the petrol

pump/gas godwon site. The policy categorically stipulates that if the

allottee does not find the business lucrative due to certain reasons, he

can always choose to surrender the site and in cases of resitement the

existing rate for the new site will be charged. The policy also lays down

that alternative site will be allotted through computerized draw from the

available sites and for holding the draw at least three sites must be

available on the date of holding the draw. The relevant revised policy of

allotment of land for petrol pump/gas godown is as under:-

"C. Commercial component at Petrol Pump sites:-

1) There are no provisions in the Master Plan for commercial component at petrol pump sites. Hence Amendment in Master Plan is required to allow commercial activities of departmental stores, convenios, ATMs etc at the pp site as at present no commercial component is permitted on the FAR allowed at petrol pumps.

2) However, when such provisions are made DDA may allow commercial activity at Filling cum Service station only within the FAR permitted on such petrol pump site i.e. 20. No commercial activities at Filing Station will be allowed.

3) The additional licence Fee for the commercial component will be kept at 255 of the License Fee for the area used for commercial purposes in addition to the regular license fee of the petrol pump site. The commercial component/area that can be allowed within the permitted FAR shall be decided after the amendment for permitting commercial exploitation at the petrol pump site is made in the Master Plan.

4) The license will be allowed to exploit the commercial area on payment of additional License Fee as mentioned below. The commercial component will be part of the license deed executed for the petrol pump site and to be treated as part of the pp site.

III. Other important features

A. Resitement:-

1) Resitement will be made only when the existing petrol pump/gas godown site is utilised for a planned project/scheme while directly necessitates the closing down of the petrol pump/gas godown site. No resitement will be made on any other grounds. As the petrol pumps will be disposed on annual license fee basis rather than on upfront payment, if an allottee does not find the business lucrative due to certain other reasons, he can always chose to surrender the site.

2) In all cases of resitement, the existing rates for the new site will be charged and the possession of the old site will be handed over to DDA.

3) The alternative site will be allotted through computerised draw from the available sites. For holding the draw at least 3 sites must be available on the date of holding the draw.

16. This cannot be disputed that when computerized draw was held

on 20th March, 2009 more than three sites were available in accordance

with policy. Perusal of the writ petition reveals that the policy of

resitement of DDA has not been challenged. The petitioner has filed a

rejoinder to the affidavit filed on behalf of DDA/respondent No.1,

however, has not challenged the policy rather a new plea has been

taken that the resitement should be in the same zone where the

petitioner is running the present petrol pump. Pursuant to the order

passed by this Court, name of the petitioner was included for

resitement in computerized draw of lots and no objection was taken

prior to that that petitioner is to be heard before the name of the

petitioner is to be included in the computerized draw of lots or that the

computerized draw of lots is to be done in the presence of petitioner or

respondent no.2. Under the resitement policy, the petitioner is not

entitled to have a site of her choice as the policy categorically stipulates

that if an allottee does not find the business lucrative due to certain

reasons, the allottee can choose to surrender the site. The petitioner,

therefore, cannot insist for an allotment of a site other than that what

has been allotted to her under the computerized draw of sites as per the

policy of resitement.

17. On behalf of petitioner, it was contended that there was change of

site allotted to M/s.Taneja Service Station from Jhilmil Industrial Area,

G.T. Karnal Road, Shahdara to Okhla Phase I, near FCI godown and

therefore the petitioner cannot be discriminated and another site should

be given to her. On behalf of respondent no.1, it has been stated that

the site of M/s. Taneja Service Station was allotted to Capt. T.R. Taneja

who was LOI holder of I.O.C. Limited, who was first allotted a petrol

pump site at G.T. Karnal road, Shahdara in the year 1975 being a

disable person in the Indo-Pak War. Due to construction of flyover at

Shahdara, the petrol pump site was resited in 1977 to Jhilmil Industrial

Area and as even the said site was required in Jhilmil Industrial Area

for DMRC project, a computerized draw was held for its resitement as

per existing resitement policy and alternative petrol pump site had been

allotted. Since the site at Okhla was not acceptable and he submitted a

petition before the Committee of Petitions in Lok Sabha, pursuant to the

decision taken by the Ministry of Urban Development, the respondent

No.1 was directed to allot a petrol pump site available on the National

Highway No.24 as an exception to existing procedure/policy of

allotment through draw of lots. The resitement policy carves out an

exception in case of resitement of petrol pump sites operated by a war

disable person or a war widow who had been given petrol pump site on

compassionate ground that the draw of sites will be from the Petrol

Pump sites from the same zone, where he/she is operating a petrol

pump. The policy categorically stipulates that the concerned person will

be given an opportunity to give option for these sites from within the

available sites in the same zone for inclusion in the computerized draw.

The policy carves out further exception for war disabled person or a war

widow that in case number of sites available in the same zone are less

than three even then the draw of lots will be held amongst the available

sites and in case only one site is available in the same zone then the

same will be allotted to the concerned person with the approval of DDA.

The petitioner is neither a war widow nor can claim to be a war disabled

person and therefore, cannot claim rights equivalent to such persons.

In the circumstances, the petitioner cannot claim that she has been

discriminated.

18. The plea of the petitioner that there are 74 petrol pump sites in

the Zone „F‟ and, therefore, she is entitled for a petrol pump site in the

same zone also cannot be accepted because the policy does not entitle

the petitioner for resitement in the same zone. In any case, the zonal

development plans for MPD 2021 which is alleged to have been

approved on 17th December, 2008 does not show 74 petrol pumps sites.

The copy of the zonal plan rather earmark CNG station/petrol pumps

and their numbers do not appear to be 74 as has been alleged. Learned

counsel for the petitioner also states that 74 petrol pumps are not

shown in the said zonal development plan. In any case, the zonal

development plan gives the details of development to be carried out in a

particular area, however, that does not necessarily mean that the

developed sites are available which can be considered for allotment of

sites for resitement. In any case, as has been held earlier that under

the policy, the petitioner is not entitled to claim resitement in the same

zone from where the petitioner has been carrying on her business as a

dealer of respondent No.2, therefore, the consideration as to how many

petrol pump sites are available in zone `F‟ will not be relevant.

19. The plea of the respondent No.2 that the Valuation Committee of

the respondent No.2 has found the site to be economically unviable due

to low sales potential and also cannot be a ground for resitement under

the policy of DDA as the same categorically stipulates that in case the

allottee finds the business not lucrative due to certain reasons, he can

always choose to surrender the site, however, that will not be a ground

for resitement in any other area. The other plea raised by the

respondent no.2 about unsuitability for the site also cannot be accepted

as the same has not been established. If the site is not suitable, the

respondent no.2 is entitled to surrender it under the policy, however,

the respondent no.2 shall not be entitled to keep on lingering with the

matter and to delay the project of larger public importance. If the

respondent no.2 is not entitled to a site of its choice, the petitioner shall

also be not entitled to raise similar pleas. If the site allotted in draw of

lots at sector 5, Dwarka is not acceptable, it can be surrendered,

however, that will not be ground to quash the letter dated 30th January,

2009 cancelling the allotment in respect of Petrol Pump site at 9/4

Mathura Road, Badarpur, Delhi.

20. For the foregoing reasons, there are no grounds to set aside the

letter dated 30th January, 2009 requiring the respondent No.2 to

handover the site of the petrol pump at 9/4, Mathura Road, Badarpur,

New Delhi, which is required by Delhi Metro Rail Corporation for

construction of Metro Station and Traffic Integration/Parking for its

Central Secretariat - Badarpur Metro Corridor. The petitioner has been

allotted an alternative site in draw of sites under the resitement policy.

The writ petition is therefore, dismissed. Parties are however, left to

bear their own costs.

August 31, 2009                                         ANIL KUMAR, J.
'Dev'