Delhi High Court
Dda vs Meenakshi Choudharie on 30 November, 2009
Author: Pradeep Nandrajog
#9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision :30th November, 2009
+ LPA No. 499/2001
D.D.A. ..... Appellant
Through: Ms.Sangita Chandra, Advocate
versus
MEENAKSHI CHOUDHARIE ..... Respondent
Through: Mr.Sumeet 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 Reporter or not? No
3. Whether the judgment should be reported in the Digest? No
PRADEEP NANDRAJOG, J. (Oral)
1. Learned counsel for the parties state that the appeal may
be disposed of after hearing them today itself.
2. DDA is aggrieved by the order dated 29.05.2001 allowing
WP(C) No. 4197/2000 filed by the respondents.
3. The reason given by the learned Single Judge in allowing
the writ petition is as under:-
"When the matter taken up by this court on 19.9.2000,
the court directed that subject to the petitioner depositing
the amount of penalty according to the norms of the DDA
within two week from the date of the order, the DDA
would not re-enter the possession of the premises. This
order was challenged by the petitioner by view of a letters
patent appeal. The LPA was disposed of by the Division
Bench by order dated 19.03.2001. It was held by the
Division Bench that it appeared to them that since the
requisite infrastructure was not available on the site the
petitioner could not be expected to raise the construction.
According to the Division Bench for raising construction,
electricity was one of the requirements: the other
requirement was of a sewer pipeline. The counsel for the
MCD had informed the Division Bench that till the date of
passing of the order, there was no proper light in the area.
The Division Bench was, therefore, of the view that when
the authorities themselves had failed to provide the
requisite infrastructure, they could not ask the petition to
pay penalty for not raising the construction. The Court,
therefore, held that the petitioner could not asked to pay
the penalty imposed by the DDA for non construction of
the allotted plot. This order passed by the Division Bench
has not been challenged by the petitioner. A Division
Bench of this Court having already held that the petitioner
could not be directed to pay the penalty imposed by the
DDA for non-construction of the allotted site and the
delay in not constructing the plot was entirely on account
of the authorities having failed to provide requisite
infrastructure, in my opinion, nothing further survives in
this petition except to issue a direction to the DDA to
issue no objection certificate to the petitioner without
insisting upon the payment of the penalty for construction
of building on the site in accordance with the plan
approved by the MCD."
4. It may be noted that the learned Single Judge has
allowed the writ petition with reference to an order dated
19.03.2001 passed by a Division Bench of this Court disposing
of LPA No. 541/2000.
5. Let us note the relevant facts in brief.
6. DDA had raised a demand on 13.12.1999 charging
belated construction charges inasmuch as DDA alleged that
since the writ petitioner had not completed the construction of
an industrial building on the plot given to the petitioner under
a perpetual lease, DDA was entitled to charge composition
fee. The writ petitioner challenged the levy of composition fee
alleging that basic amenities were not made available, in that;
there was no sewer line, no water line and no electricity in the
area. It was alleged that in the absence of the said 3 facilities
the writ petitioner was obstructed in raising the construction.
7. On 29.05.2001, the learned Single Judge passed an
interim order directing that upon the writ petitioner depositing
the composition fee as demanded by the DDA, requisite no
objection certificate would be issued by DDA so that the writ
petitioner could obtain sanction from the Municipal Corporation
of Delhi to erect an industrial building on the plot in question.
8. The writ petitioner challenged the said interim order
dated 19.09.2000 by filing an appeal which was registered LPA
No. 541/2000.
9. The appeal was allowed vide order dated 19.03.2001. It
was directed as under:-
"We have heard learned counsel for the parties on the
aforesaid issue. It appears to us that since the requisite
infrastructure was not available on the site the appellant
could not be expected to raise the construction. For
raising the construction, electricity is one of the
requirements. The other requirement is of water. The third
requirement is of a sewer pipe line. We are also told by
the learned counsel for the MCD that even till date there
are no proper reads in the area. When the authorities
themselves had failed to provide the requisite
infrastructure they cannot ask the applicant to pay
penalty for not raising the construction. In the interest of
justice, the appellant cannot be asked to pay the penalty
imposed by the DDA for non-construction of the allotted
plot. Accordingly, the appeal is allowed and the order of
the learned Single Judge is set aside."
10. It is thus apparent that the learned Single Judge has
allowed the writ petition on merits with reference to an order
passed by the Division Bench, which was passed at an interim
stage of the matter. Needless to state, LPA No. 541/2000 was
directed against an interim order dated 19.09.2000. Thus, the
life and span of the order dated 19.03.2001 disposing of LPA
No. 541/2000 was obviously limited to an interim arrangement
between the parties till the writ petition was heard.
11. It is settled law that observations, findings or directions
given by a Court at an interim stage are never treated as a
final expression on merits with reference to the subject matter
of the view.
12. Thus, learned Single Judge could not have allowed the
writ petition treating the order dated 19.03.2001 disposing of
LPA No. 541/2000 as conclusive of the controversy between
the parties.
13. The observations of the Division Bench were limited to
prima facie findings for the purposes of grant of an interim
order.
14. We note that the DDA has challenged the order dated
19.03.2001 and the Special Leave Petition is still pending
before the Supreme Court.
15. Conscious of the fact that proceedings relating to interim
orders are still pending, noting that in the interregnum the
learned Single Judge has disposed of the writ petition on
merits; findings being as afore-noted, we allow the appeal and
set aside the impugned order dated 29.05.2001 allowing the
writ petition.
16. Since the writ petition has been allowed treating the
order dated 19.03.2001 in LPA No. 541/2000 as conclusively
determining the questions raised and required to be
adjudicated on the pleadings of the parties, we observe that
nothing said in the order dated 19.03.2001 shall be read as
conclusively opining on the issue raised in the writ petition.
Likewise, nothing said by us in the present order would be
treated as an expression on the merits of the controversy. The
learned Single Judge would proceed to re-decide WP(C) No.
4197/2000 on merits.
17. The appeal stands disposed of setting aside the order
dated 29.05.2001.
18. WP()C) No. 4197/2000 is restored to its original position
for fresh adjudication on merits.
19. Learned Single Judge would take note of the observations
in the present order while re-deciding the matter.
20. The writ petition would be listed for directions before the
learned Single Judge on 11.01.2010.
21. Learned counsel for the parties shall be deemed to have
served with a notice of the date fixed before the learned
Single Judge and for the date fixed i.e. 11.01.2010 no notice
need be issued to the parties.
22. No costs.
PRADEEP NANDRAJOG, J
SURESH KAIT, J
NOVEMBER 30, 2009
'hk'
