M/S. Chopra Enterprises vs Dda
2009 Latest Caselaw 4745 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment Reserved on: 17th November, 2009
                   Judgment Delivered on: 20th November, 2009

+                       LPA No.41/2004

       M/S. CHOPRA ENTERPRISES                 ....Appellant
                Through: Mr.Keshav Dayal, Sr. Adv. with
                         Mr.Arun Beriwal and Mr.Gagan
                         Mathur, Advocates

                                Versus

       DDA                                          ....Respondent
                  Through:     Mr.Bankey Bihari Sharma, 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. Claim for entitlement to an alternative industrial plot

was laid by the petitioner when he filed WP (C) No.1781/1998;

the claim was predicated on a policy decision taken to

rehabilitate all those who were carrying on industrial activity on

the land which was acquired requiring DDA to allot an industrial

plot to the person affected.

2. It was pleaded in the writ petition that the petitioner

was a tenant under Mr.S.S.Gill, Managing Partner of M/s.Alloys

Foundary Company and was running a manufacturing unit at

Khasra No.733/1, Village Madipur since 1979 and that on the

acquisition of land comprised in Khasra No.733, the petitioner

was displaced and that there being a policy to allot an industrial

plot to all those who were affected by the acquisition, the case of

the petitioner was considered for allotment of an alternative plot

and a decision dated 26.5.1981 was taken to allot a plot to the

petitioner but for reasons best known, none was allotted. It was

pleaded, that another unit M/s.S.S.Plastics also functioning from

the same land was allotted an industrial plot and thus it was

urged that the petitioner had been discriminated against. It was

pleaded that for unexplainable reasons case of the petitioner was

referred to the Land Allotment Committee, while no such

reference was made in the case of M/s.S.S.Plastics. Asserting

that even under the Nazul Land Rules 1981, the petitioner was

entitled to an alternative industrial plot, stating that after making

repeated representations till the year 1995 yielding no results,

the petitioner was constrained to file the writ petition.

3. It is apparent that the claim of the petitioner was

predicated on two distinct pleas and that the second plea had

two limbs. The first plea was of entitlement under the policy to

give an industrial plot to all those who were running

manufacturing units upon land on which the unit was running

being acquired. The second was the plea of discrimination vis-à-

vis M/s.S.S.Plastics being allotted an industrial plot; the second

limb pertained to the discriminatory procedure adopted in

considering the case of the petitioner differently than that of

M/s.S.S.Plastics; the discrimination being referring the case of the

petitioner to a Land Allotment Committee while no such route

being adopted in the case of M/s.S.S.Plastics.

4. The response of DDA was that the writ petition was

highly belated inasmuch as vide letter dated 16.4.1992 the

rejection letter was served upon the petitioner and that the writ

petition being filed in the year 1998 suffered from inordinate

delay. The letters written by the petitioner were wished away by

pleading that one cannot extend time by merely sending

representations. With reference to the claim of parity with

M/s.S.S.Plastics it was pleaded that the allotment to

M/s.S.S.Plastics was before the Nazul Land Rules 1981 came into

force. It was urged that on 9.12.1991 a policy guideline was

framed with reference to the Nazul Land Rules, para 8.04 whereof

reads as under:-

"8.04 Policy for allotment of industrial plots in lieu of acquisition of land in urban areas.

Resolved that "The allotment of an alternative industrial plot to the person whose land is acquired or proposed to be acquired may be considered only in such cases where an industrial unit was functioning on the acquired land, on a case-to-case basis with due regard to provisions of the Master Plan, Industrial policies in force, availability of alternative industrial plots and

other relevant factos. Provided that the size of the alternative plot would be determined as follows:-

      (a)         Area        under        Recommended
                  occupation     by        Maximum Size
                  the unit on the
                  acquired land
      (i)         50 to     300      sq.   100 sq. mtr. subject
                  mtr.                     to the size of the
                                           alternative plot at
                                           pre-determined
                                           rates not exceeding
                                           the size of the land
                                           under occupation of
                                           the unit that has
                                           been        acquired.
                                           Where      marginally
                                           excess     land     is
                                           allotted    for    on
                                           rational reasons, it
                                           shall be charged at
                                           prevalent     market
                                           rates.
      (ii)        300 to 500 sq.           200 sq. mtr.
                  mtr.
      (iii)       501 to 900 sq.           300 sq. mtr.
                  mtr.
      (iv)        901 to and above         500 sq. mtr.

As alternative plot which would be considered only if the industrial unit satisfied the following conditions:-

(a) All industrial approvals have been obtained;

      (b)     Land title is clear;
      (c)     Conforming land use, or who were functioning

since prior to coming into force of Master Plan and were rendered non-conforming as a result of Master Plan provisions."

5. It was further pleaded by DDA that the petitioner had

no proof of carrying on any manufacturing activity at the site in

question since the year 1979 as claimed by the petitioner, much

less when the lands were acquired in the year 1981.

6. It is apparent that all those who were affected by

acquisition of land in the form of industrial units being run by

them were eligible to be considered for allotment of an industrial

plot contingent upon three conditions being satisfied. The three

conditions are as listed in sub-paras a, b and c noted hereinabove

i.e. the unit affected was having industrial approvals, land title

was clear and either the land use conformed to the prescribed

land use under the Master Plan if the unit came up after the

Master Plan for Delhi was enforced or was carrying on industrial

activity prior to the enforcement of the Master Plan in Delhi.

7. It may be noted at the outset that the so-called policy

decision on which the writ petition was founded, being the policy

decision in vogue when the lands were acquired was not filed

before the learned Single Judge and from the pleadings in the

rejoinder affidavit, it is apparent that the writ petitioner chose to

litigate the battle by pleading that its entitlement be considered

under the policy guideline afore-noted. The same is evidenced

from the pleadings in the rejoinder affidavit and the documents

annexed therewith. The petitioner filed certain orders issued by

the Sales Tax Officer pertaining to assessment of sales tax for the

year 1979-80 as per which the place of business of the petitioner

was the site in question; registration certificate issued by the

Sales Tax Authorities evidencing that the petitioner was

registered as a manufacturing and sale unit with it. The

petitioner also filed a photocopy of a Municipal Trade License

issued on 22.5.1986 evidencing that from the site in question the

petitioner was granted a license to manufacture goods. The

petitioner also filed a letter dated 20.10.1999 issued by the

licensing department of the Municipal Corporation of Delhi

informing that while granting the license, the license fee was

received with effect from 1.4.1979.

8. In view of the pleadings in the rejoinder affidavit and

evidenced by the impugned decision it is but obvious that the

petitioner did not urge that the policy guidelines issued in the

year 1991 did not have a retrospective operation and that its

claim needs to be considered with reference to the policy in force

in the year 1981 when the land was acquired. Thus, the learned

Single Judge decided the issue with reference to the entitlement

under para 8.04 of the policy framed and notified in the year

1991.

9. We may note that even in appeal the issue was fought

with reference to the policy of the year 1991. We may note that

for the reason the petitioner fought the battle with reference to

the policy decision of the year 1991, the existing policy in force in

the year 1981 was not ever brought on record.

10. On the issue of the writ petition being highly belated,

the learned Single Judge has held as under in paras 19 and 20 of

the impugned decision:-

"19. It will be appropriate to first consider the plea of delay and laches raised on the part of the respondent. There is no doubt that the case of the petitioner was rejected vide letter dated 16.4.1992. The petitioner thereafter continued to make representations. It will be seen that these representations were made periodically each year and admittedly there was no response from the respondent. Once the decision was taken in the case of the petitioner and the petitioner was receiving no response to his further representations, the petitioner should have approached the appropriate forum for redressal of the grievances, which the petitioner did not do and continued to make yearly representations.

20. In my considered view, such unilateral representations made after the decision has been taken in the case of the petitioner cannot really extend the time period for filing of the writ petition. A long gap of 6 years is unexplained other than the periodic representations made every year. I have, thus, no hesitation in holding that there is delay and laches on the part of the petitioner in approaching this Court for redressal of the grievances."

11. Save and except to urge that the officers of DDA did

not respond to the letters written by the petitioner and hence the

petitioner was justified in sending reminders, learned counsel for

the appellant/petitioner could take the argument no further.

12. It has to be noted that on 16.4.1992 DDA intimated

rejection of the claim in unequivocal terms. It has to be further

noted that the correspondence between the parties was going on

since the year 1981 and thus the petitioner was not justified to

continue to write on the issue for further 6 years when DDA

closed the issue at its end. It is true that it is not expected that

at the first sign of trouble a party should rush to Court and for

said reason Courts have been lenient on the issue of cause of

action, but the inaction to take resort to a judicial remedy cannot

spread spanning 6 years.

13. Affairs of the state are normally conducted with

reference to budgets framed on yearly basis. With respect to

rehabilitation of persons, alternative lands have to be acquired

and normally the Government functions by framing composite

schemes and allocating budget. If a person's entitlement to the

land is in the year 1990 and the claim is predicated 5 years later,

satisfaction of the claim would require the Government to

procure land 5 years later thereby upsetting the budget of the

Government. It is in this context that it becomes important that

claims to alternative lands be enforced with promptness.

14. Concurring with the learned Single Judge that the writ

petition merited dismissal on account of undue delay and laches,

we need speak no more, but do so for the reason the learned

Single Judge has dealt even with the merits of the writ petition.

15. On the issue of parity with M/s.S.S.Plastics, the learned

Single Judge found that it could not have been allotted the plot as

the case of M/s.S.S.Plastics was not referred to the Advisory

Committee which has been constituted. The learned Single Judge

has found that the procedure of law required was to screen the

applicants before an Advisory Committee which committee later

on came to be known as the Land Allotment Committee. So

holding, with reference to the decision of the Supreme Court

reported as 1999 (3) SCC 494 Jalandhar Improvement Trust Vs.

Sampuran Singh, it was held that an action contrary to law with

respect to one party would furnish no ground for claim of parity

by another party.

16. We concur with the view taken by the learned Single

Judge and that takes care of the second limb of the second

submission before the learned Single Judge that a different

procedure was followed while considering the claim of the

petitioner. Needless to state the illegal procedure followed while

considering the claim of M/s.S.S.Plastics could not form the claim

for foundation of similar illegal procedure to be followed qua the

petitioner.

17. At the heart of the matter was the germane issue

whether the petitioner had a Municipal Trade License in the year

1979 as claimed, for the reason the policy guideline required as

an eligibility condition, the unit affected, to have all industrial

sanctions. Needless to state in the areas under the control of the

Municipal Corporation of Delhi in the Union Territory of Delhi the

requirement of law is that the unit engaged in the manufacturing

activity should have a municipal trade license; it not being in

dispute that the site in question fell within the jurisdiction of the

MCD.

18. The pleadings and the applicable documents filed by

the petitioner along with the rejoinder affidavit have been noted

by us in para 7 above.

19. Noting that the land in question was earmarked under

the Master Plan for Delhi as agricultural land, but not taking the

issue any further, dealing straight with the issue of Municipal

License, the learned Single Judge concluded the issue in paras 37

to 40 of the impugned decision which reads as under:-

"37. The land is stated to be agricultural land and thus, not capable of being put to industrial use as per the prescribed user. However, the most material aspect and which formed basis of the decision even on reconsideration is whether the petitioner had all the industrial approvals. This would require a valid municipal licence.

38. The documents filed by the petitioner with the rejoinder do show that the activity of dealing with iron and steel being carried out for the assessment year 1979-80 in terms of the orders under the Sales Tax Act and the petitioner was also registered on 31.10.1979. However, to carry on the manufacturing activity, the municipal licence is mandatory. This becomes relevant since the party should have been carrying on the activity at the time prior to the acquisition. No fault can be attributed to such a policy decision, especially in view of the observations of the Supreme Court in M/s. Ambitious ENterprieses's case (supra). Thus, this document becomes the most material one for determining the controversy in the present case.

39. The municipal license itself has been issued on 22.05.1986, which is much after the acquisition

proceedings. However, the petitioner seeks to draw strength from this licence on the basis of the letter issued by MCD on 20.10.1999 stating that the licence fee received was w.e.f. 01.04.1979. The question, which would, thus, arise is whether the licence issued in 1986 which sought to recover fee from 1979 could amount to grant of a licence, which was valid as on the date when the notification was issued.

40. Other than the letter dated 20.10.1999, there is nothing else to show as to why the licence fee was taken retrospectively. The letter only states that "the licence fee was received w.e.f. 01.04.1979 as per record." The licence is dated 22.05.1986. Thus, admittedly the petitioner did not have a licence in 1981. In my considered view, the mere fact of payment made in 1986 retrospectively would not amount to a qualification within the parameters laid down since the petitioner did not hold a valid municipal licence as in 1981, the same having been issued only in 1986."

20. The learned Single Judge noted that in the decision

reported as AIR 1997 SC 3263 DDA Vs. M/s.Ambitious Enterprises

& Anr., the Supreme Court had held that for industrial units to be

shifted from non-conforming to conforming areas, the condition

of the applicant holding a valid Municipal License was held to be

neither arbitrary nor irrational.

21. We concur with the reasoning of the learned Single

Judge. We reinforce the findings by noting that evidence which is

created or is given birth to after a dispute has surfaced is always

treated with suspicion because of an opportunity available to

create self-serving evidence. Unless corroborated, such evidence

is treated as suspect.

22. Admittedly, the petitioner did not have any Municipal

Trade License till one was obtained on 22.5.1986. Wherefrom

could MCD claim to have received the fee with effect from

1.4.1979 has remained a mystery. No provision under the MCD

Act has been shown to us empowering MCD to grant licenses with

effect from retrospective dates. That apart, the license in

question does not record anywhere that it has retrospective

validity. Thus, the letter dated 20.10.1999 issued by the

Administrative Officer (Factory) of the MCD, which we note is not

even on the official letter head of the MCD and does not even

bear the stamp of the said organization, is highly suspect.

23. It is settled law that where a view taken by the

Primary Adjudicator of Facts is a reasonable probable view on

questions of fact, the Appellate Court would not interfere with the

finding returned.

24. It was vehemently urged that the rent receipts filed,

the sales tax registration certificate and the sales tax assessment

order for the year 1979-80 showed the presence of the appellant

at the site in question and conduct of business. But, the same

begs the basic issue; the issue being whether the petitioner was

carrying on manufacturing activity. It was not in dispute that the

appellant was in possession of the site in question. The sale tax

assessment order shows sale of some goods. Now, even a trader

can engage in the business of sale. The sales tax registration

certificate is a composite certificate registering the petitioner as a

manufacturer as well as a seller. It could well be that the

petitioner engaged only in the business of sale. We note that no

document pertaining to payment of excise duty has been

produced. Further, the issue had not to be resolved only with

reference to the carrying on of a manufacturing activity, if at all,

from the site. The requirement of the law was having industrial

sanctions i.e. a Municipal Trade License to carry on

manufacturing business.

25. Looked at from any angle, the reasoning of the

learned Single Judge is legal and valid and calls for no

interference.

25. The appeal is dismissed with cost assessed at

Rs.5,000/- to be paid by the appellant to DDA.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE November 20, 2009 mm