Jaipur Golden Charitable ... vs Dda & Ors.
2009 Latest Caselaw 5095 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment Reserved on: November 23, 2009
                       Judgment Delivered on: December 09, 2009

+                          L.P.A. No.82/2003

        JAIPUR GOLDEN CHARITABLE CLINICAL       ....Appellant
             Through: Mr.D.R.Thadani, Advocate.

                                     Versus
        DDA & ORS.                              ....Respondents
            Through:       Mr.M.K.Singh, Advocate

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SURESH KAIT


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

     2. To be referred to the Reporter or not?              No

     3. Whether the judgment should be reported in the
        Digest?                                   No

PRADEEP NANDRAJOG, J.

1. Through the present appeal, the appellant Jaipur

Golden Charitable Clinical Laboratory Trust, seeks to challenge

the judgment and order dated 19.12.2002 delivered by a

Learned Single Judge of this court, dismissing W.P.(C)

No.1570/1989. The said writ petition was directed against the

demand dated 8/13 December, 1988 raised by the respondent

DDA, requiring the appellant to deposit an additional sum of

Rs.14,89,837.50 with DDA. The appellant also sought a refund

in sum of Rs.74,115/-.

2. The factual backdrop for the claim in the writ

petition, as per pleadings therein, was that the appellant

applied to DDA for allotment of land at pre-determined rates

for setting up a hundred bed hospital at Rohini. Vide letter of

allotment dated 14.5.1985, DDA allotted a parcel of land ad-

measuring 2.45 acres and indicated that 2.0825 acres was for

purposes of constructing a building to be used as a hospital

and the remaining 0.3675 acres was to be used for staff

quarters. It was indicated that the premium charged for

2.0825 acres of land was @ Rs.10,000/- per acre and for the

rest @ Rs.6,00,000/- per acre. Thus, total demand raised was

in sum of Rs.2,41,325/- which was paid without demur by the

appellant. Thereafter on 10.1.1986 DDA demanded further

sum of Rs.74,115/- in respect of the allotment stating that

premium was charged @ Rs.6,00,000/- per acre in respect of

0.3675 acres of land ignoring that the said rate was applicable

only for the years 1.4.1983 to 31.3.1985, as notified by the

Central Government and that effective for the period 1.4.1985

till 31.3.1987, on 3.12.1985 the Central Government had

notified that the rate applicable for the period 1.4.1985 to

31.3.1987 would be Rs.8,00,000/- per acre. This money i.e.

Rs.74,115/- was also paid by the appellant without demur.

Since on actual measurement at site the land was found to be

in excess by 0.02 acres, additional premium in sum of

Rs.1,908/- was paid by the appellant as demanded by DDA on

18.11.1985.

3. Before a perpetual lease deed could be executed in

favour of the appellant, it made a request for further land to be

allotted for purposes of a hospital building. On 11.11.1987

DDA allotted further 1.53 acres of land and intimated that the

premium payable for the same was Rs.8,00,000/- per acre.

4. The appellant questioned the premium charged and

while so doing questioned the premium charged even earlier

on and paid without demur, stating that DDA could not charge

any money in excess of Rs.10,000/- per acre. Notwithstanding

the protest, on 11.1.1988, the appellant deposited the

premium demanded @ Rs.8,00,000/- per acre for 1.53 acres of

land. On 15.3.1988, DDA raised further demand for the 1.53

acres of land allotted informing that by mistake premium was

demanded @ Rs.8,00,000/- per acre, whereas it ought to have

been @ Rs.9,50,000/- per acre. Under protest, the appellant

deposited further sum of Rs.2,29,500/-.

5. Possession of the additional land allotted i.e. 1.53

acres of land was thereafter handed over to the appellant.

6. On 28.12.1989 a perpetual lease deed was

executed for the land additionally allotted plus the excess

area, but not the additional land ad-measuring 1.53 acres.

7. On 4.10.1988 the Central Government notified the

land rates with effect from 1.4.1987 to 31.3.1989, for the

reason, on 3.12.1985 land rate notified was restricted for the

period 1.4.1985 till 31.3.1987 and post 1.4.1987 no land rates

were notified. As per the notification dated 4.10.1988,

pertaining to North Delhi, rate notified was Rs.19,00,000/- per

acre. Since the additional land ad-measuring 1.53 acres was

allotted to the appellant on 11.11.1987, DDA demanded

further premium calculating the same @ Rs.19,00,000/- per

acre i.e. the rate notified by the Central Government vide its

notification dated 4.10.1988 for the period 1.4.1987 till

31.3.1989. Thus, demand in sum of Rs.14,89,837.50 was

raised with respect to the 1.53 acres of land.

8. At that stage the writ petition was filed praying as

noted in para 1 above. In a nutshell, case of the appellant in

the writ petition was that in respect of the allotment of 2.47

acres of land no premium in excess of Rs.10,000/- per acre

could be charged for the reason the entire land was for a

hospital. For the further 1.53 acres of land allotted to it on

11.11.1987, it was urged that even this land was for purposes

of a hospital and thus the premium could not exceed

Rs.10,000/- per acre. Alternatively, in respect of 1.53 acres of

land it was urged that the letter of offer dated 11.11.1987,

charged premium @ Rs.8,00,000/- per acre which offer was

accepted by the appellant and in turn DDA accepted premium

@ Rs.8,00,000/- per acre and thus DDA was estopped from

raising the demand firstly @ Rs.9,50,000/- per acre and

thereafter @ Rs.19,00,000/- per acre.

9. Response of DDA was that when allotment of 2.45

acres of land was made on 14.5.1985, land rates notified by

the Central Government required premium to be charged for

such land on which the hospital building was constructed @

Rs.10,000/- per acre and for the land where staff quarters were

to be constructed the premium to be charged was @

Rs.6,00,000/- per acre. Thus, DDA justified the initial demand

with reference to the land rates notified by the Central

Government when allotment of 2.45 acres of land was made.

On this basis DDA justified charging additional premium when

it was noted that 0.02 acres of land was in excess at the site

on actual measurement. Pertaining to the allotment of 1.53

acres of land made on 11.11.1987, DDA pleaded that while

charging premium @ Rs.8,00,000/- per acre it went unnoticed

that the allotment was made on 11.11.1987 and that the land

rate notified by the Central Government in sum of

Rs.8,00,000/- per acre was for the period 1.4.1985 till

31.3.1987 and that the Central Government was yet to take a

decision on the premium to be charged post 1.4.1987. The

demand in sum of Rs.9,50,000/- was explained as an

erroneous demand. The demand @ Rs.19,00,000/- per acre

was justified on the ground that the allotment being made on

11.11.1987, the rates notified by the Central Government on

4.10.1988 for the period 1.4.1987 till 31.3.1989 were to apply.

10. This then is the factual controversy between the

parties.

11. From the impugned order it is apparent that the

writ petitioner i.e. the appellant gave up the challenge

pertaining to the premium to be charged as claimed by it

pertaining to the first allotment. This is evident from the fact

that the impugned order has not dealt with the said issue. The

impugned decision shows that the battle was fought on the

premium chargeable for the allotment of 1.53 acres of land on

11.11.1987.

12. The appellant pleaded estoppel. The appellant

relied upon two decisions. The first being by a learned Single

Judge of this Court and the second by a Division Bench of this

Court. The former is reported as AIR 1990 Delhi 75 Rose

Education Scientific & Cultural Society (Regd.) Vs. UOI and the

later is reported as AIR 1991 Delhi 96 DDA Vs. Lala Amarnath

Educational & Human Society & Anr.

13. It may noted that the decision reported as Rose

Educational Society disposed of a large number of writ

petitions and the decision of the Division Bench pertained to a

challenge to the decision of the learned Single Judge.

14. In a nutshell, the learned Single Judge and the

Division Bench concurrently held that the letters of allotment

issued to the writ petitioners clearly indicated that the land

was being allotted at „no profit no loss‟ basis and that the

letters of allotment contained no condition empowering DDA to

revise the land rate. The premium demanded was paid and

possession of the land was handed over by DDA. In some

cases DDA even executed the perpetual lease deed. Thus, the

contract stood concluded. Thereafter, neither party could

unilaterally revise the price. With reference to the stand of

DDA that the perpetual leased deed empowered it to enhance

the price, it was held that the relevant clause empowered DDA

to charge additional premium only in respect of compensation

being enhanced under the Land Acquisition Act 1894 to the

persons whose lands were acquired and that the same could

not be read as entitling DDA to enhance the premium de-hors

the payment of compensation to the original land owners.

15. It may be noted at the outset that the Division

Bench has noted a very important fact of the allotment and

the premium charged being with the knowledge and consent

of the Central Government when initial allotment was made.

The same is evident from para 13 of the decision of the

Division Bench wherein it is noted as under:-

"13. The DDA is the instrumentality of the State. Neither DDA nor the Central Government disowns the letter of allotment. It was no-where the case of DDA that the allotment letter was issued without the authority of the Central Government. It appears to us from the counter affidavit filed by the Central Government that the allotment letters were issued with the consent and knowledge of the Central Government and to which the Central will remain bound."

16. It may be noted that neither before the learned

Single Judge nor before the Division Bench the issue whether

there can be an estoppel against a statute was raised.

Further, as noted above, there was evidence in said writ

petitions that the premium charged by DDA was with the

consent and knowledge of the Central Government and that

the Central Government never objected to the same.

17. In the instant case there is no pleading, much less

any evidence, that when DDA issued the allotment letter dated

11.11.1987, it did so with the consent or the knowledge of the

Central Government. Thus, the rate intimated to the appellant

was neither with the consent nor to the knowledge of the

Central Government.

18. Vide impugned decision dated 19.12.2002 the

learned Single Judge has dismissed the writ petition holding

that DDA was bound to charge land rates notified by the

Central Government and that a learned Single Judge of this

Court, in the decision reported as AIR 1997 Delhi 50

Dr.V.N.Gupta Charitable Trust & Anr. Vs. DDA & Ors. had

upheld the levy of land rate as per the notification dated

4.10.1988 issued by the Central Government.

19. In appeal the issues raised by learned counsel for

the appellant were restricted to the premium charged for the

1.53 acres of land. It was urged that having made the

allotment @ Rs.8,00,000/- per acre which was accepted by the

appellant and money was accordingly deposited with DDA, the

contract stood concluded and there being no power vested in

DDA under the allotment letter dated 11.11.1987 to enhance

the premium, none could be enhanced.

20. To decide the controversy between the parties a

brief purview of the legislative provisions governing the

powers of DDA need to be noted.

21. The Delhi Development Act 1957 was promulgated

and an authority called the Delhi Development Authority (DDA)

was constituted. The said authority was charged with the duty

of planned development of Delhi. Vide Section 22 of the DDA

Act 1957, by and under a notification, the Central Government

was to place acquired lands, known as Nazul lands, under the

control and supervision of DDA. Under Sub-Section 3 of

Section 22 it is mandated that: after such Nazul land has been

developed by, or under the control and supervision of, the

Authority, it shall be dealt with by the Authority in accordance

with rules made and directions given by the Central

Government in this behalf. In the year 1981 the DDA (Disposal

of Developed Nazul Land) Rules 1981 were promulgated in

exercise of power vested under Section 56 (j) read with

Section 22 (3) of the Delhi Development Act 1957. Rule 5 and

Rule 6 thereof stipulated that Delhi Development Authority

shall allot Nazul lands at pre-determined rates notified by the

Central Government from time to time. Rule 2 (L) of the Rules

defines pre-determined rate as the rate notified by the Central

Government.

22. A full Bench of this Court, in the decision reported

as 1993 (26) DRJ 594 Ramanand Vs. UOI & Ors. held that the

DDA (Disposal of Developed Nazul Land) Rules 1981 are the

mandate of the Central Government to DDA under Section 22

(3) of the DDA Act 1957 and thus law requires DDA to charge

such premium for Nazul lands allotted in terms of Rule 5 and

Rule 6 of the Nazul Land Rules 1981, as is notified by the

Central Government. It may be noted that persons entitled to

land at pre-determined rates stipulated under Rule 5 and Rule

6 are different and that the full Bench was concerned with a

category under Rule 6. But, the ratio of law would be

applicable to allotments under Rule 5 as well.

23. From the facts noted hereinabove it is apparent

that on 11.11.1987 when the 1.53 acre of land was allotted to

the appellant no premium was fixed by the Central

Government and that the premium @ Rs.8,00,000/- per acre

which was notified on 3.12.1985 was applicable for the period

1.4.1985 till 31.3.1987. Thus, unless the plea of estoppel is

held good in favour of the appellant, no case is made out to

grant relief to the appellant for the reason DDA had to await

and charge the premium which was to be notified by the

Central Government post 1.4.1987. For the reason, the

statute requires DDA to charge premium in respect of Nazul

lands disposed of under Rule 5 of the Nazul Land Rules 1981 at

the rate notified by the Central Government.

24. It is settled law that there can be no estoppel

against a statute. It has been so held in the decisions reported

as AIR 1962 SC 745 Mathra Prashad & Sons Vs. State of Punjab

& Ors., 2003 (12) SCC 91 Ganga Retreat and Towers Ltd. &

Anr. Vs. State of Rajasthan & Ors., 2006 (2) SCC 545 State of

Bihar & Ors. Vs. Project Uchcha Vidya Shikshak Sangh & Ors.,

2007 (2) SCC 404 Hardev Singh Vs. Gurmail Singh (since

deceased through LRs, 2009 (6) SCC 194 Sneh Gupta Vs. Devi

Swaroop & Ors. and 2009 (11) SCALE 525 Vijay Narayan

Thatte & Ors. Vs. State of Maharashtra & Ors.

25. Being subordinate legislation, is the status of Delhi

Development Authority (Disposal of Developed Nazul Land)

Rules 1985 the same as that of a statute? In the decisions

reported as 1961 Cri LJ 773 State of U.P. Vs. Babu Ram

Upadhya, (1981) SCR 742 State of Tamil Nadu Vs. Hind Stones

and (2007) 6 SCC 143 Promoters and Builders Association of

Pune Vs. Pune Municipal Corporation & Ors., it was held that

the Rules would have the force of a statute.

26. Thus, looked at from any angle, the plea of estoppel

is not available to the appellant. Being a creature of a statute,

DDA is bound by the charter under which it is constituted and

its powers are circumscribed by the statute. Any

representation made by DDA beyond the statute can never

give rise to a plea of estoppel for the reason there can be no

estoppel against the statute.

27. The matter can be looked at from another angle.

As held in the decision reported as AIR 2001 SC 1121

Patangrao Kadam Vs. Prithviraj Sayajirao Yadav Deshmukh &

Ors. to bind the principal, the agent has to be acting within the

scope of the authority given to him. Though not strictly acting

as the agent of the Central Government, loosely said, DDA can

be called akin to an agent vis-à-vis the Nazul lands placed at

its disposal. Thus, DDA cannot bind Central Government with

respect to the Nazul Land Rules i.e. the rates notified.

28. We note that the notifications issued by the Central

Government from time to time fixing the pre-determined rates

has not been questioned. No challenge has been raised qua

said notification.

29. There is no merit in the appeal which is dismissed.

30. Vide interim orders passed in the appeal the

amount due and payable by the appellant to DDA has been

deposited in this Court. The same has been invested in a fixed

deposit.

31. We direct the Registry to endorse the Fixed Deposit

Receipt in favour of DDA and hand over the same under proper

receipt to counsel for the DDA who has filed a vakalatnama on

behalf of DDA in the instant appeal.

32. Since the appellant claims to be a charitable body

we refrain from imposing any cost.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE December 09, 2009 mm