M/S Darbara Singh & Sons vs The Commissioner Of Industries & ...
2010 Latest Caselaw 3159 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of decision: 8th July, 2010.

+                           W.P.(C) No.4814/2008

%

M/S DARBARA SINGH & SONS                          ..... Petitioner
                 Through: Mr. Brajesh K. Srivastava, Advocate.

                                      Versus

THE COMMISSIONER OF INDUSTRIES & ORS.        ..... Respondents
                Through: Mr. Amiet Andlay, Advocate for R-
                         1&2.
                         Ms. Anshum Jain for Ms. Suparna
                         Srivastava, Advocate for MCD.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                       NO

2.       To be referred to the reporter or not?                NO

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

RAJIV SAHAI ENDLAW, J.

1. The petitioner in or about the year 1996 applied to the respondent no.1

Commissioner of Industries of the Government of NCT of Delhi (impleaded

as respondent no.2) for allotment of an industrial plot under the Relocation

Scheme framed in compliance of the order of the Supreme Court in M.C.

Mehta case. The said application of the petitioner was rejected. Neither the

petitioner nor the respondents are in a position to give the date of the order

of rejection. However, it appears that the petitioner applied for review of the

said order and which review was entertained and was disposed of vide

communication of the respondent no.1 to the petitioner filed as Annexure

'C' to the petition. Though the date of the said communication also is not

apparent but both counsels agree that the same is of later part of the year

1999. In the said communication, it was stated that opportunity had been

given by advertisement in newspaper to all the applicants whose applications

for alternate plot had been dismissed, to file an appeal. It appears that the

petitioner did not choose the remedy of appeal also. The respondent no.1

dismissed the review application of the petitioner on the ground that the

Name of the Applicant Unit/Property/Partner/Address differs from the one

mentioned in M.C.L./S.T Regn./S.S.I. Regn. etc. The petitioner was also

advised to approach Delhi State Industrial Development Corporation for

refund of the earnest money deposited by him along with his application.

2. The petitioner claims to have written two letters to the respondent no.1

thereafter and copies whereof have been annexed to the petition. The said

letters however are of September, 1999 i.e. of before the rejection aforesaid of

the review application of the petitioner. The petitioner after rejection of his

review application remained quiet for seven years till September, 2006. The

petitioner has annexed to the petition copies of the letters purported to have

been written in the later part of the year, 2006. However again there is no proof

of the said letters having been sent or served on the respondents. The petitioner

ultimately in December, 2006 applied under the Right to

Information Act, 2005 and in June, 2007 got issued a legal notice and

ultimately in or about July, 2008 preferred this petition. In response to the RTI

query, the petitioner in December, 2006 was informed that because of various

deficiencies, his review application and the file had been sent to DSIDC for

refund of EMD amount and as per the website of DSIDC, EMD amount had

been refunded to the petitioner on 4th April, 2002. The petitioner was also

directed to approach DSIDC for any further information.

3. The petitioner has in the writ petition besides claiming allotment of

plot sought to restrain the respondents from sealing his unauthorized

industrial unit till the allocation of alternative plot. The petitioner has also

sought compensation of Rs.10 lacs.

4. Inspite of the petitioner having been asked to approach DSIDC, the

petitioner neither approached DSIDC nor impleaded it as a party hereto.

Besides the Commissioner of Industries and the Government of NCT of

Delhi, only the MCD has been impleaded as respondent no.3.

5. The respondent no.3 MCD in its counter affidavit before this Court

has stated that it is not concerned with the allotment of industrial plot to the

petitioner under the Scheme aforesaid. It has however disclosed that an ad-

hoc licence had been issued to the petitioner at the address of 7/7 Ashok

Nagar, New Delhi for manufacturing small radio parts with half K.W. in the

non-conforming area and another ad-hoc licence was issued to the petitioner

at the address of WZ-55-A Minakshi Garden, New Delhi for radio parts

(Transformers and laminators) with 5 H.P. in the non-conforming area and

that both the licences were cancelled/revoked vide Notification dated 17th

November, 2000 as per directions of the Supreme Court in the M.C. Mehta

case.

6. The counsel for the respondents no.1&2 has contended that after the

rejection of the application for allotment under the Relocation Scheme, the

files were sent to DSIDC and the respondents no.1&2 are now not possessed

of any records and can only state that the application of the petitioner was

rejected and the review thereagainst also rejected for the reason of

discrepancy in the address of the applicant as given in the application and as

appearing in the documents filed in support thereof. The counsel for the

respondents no.1&2 has also contended that the present petition is liable to

be dismissed on the ground of laches alone. It is contended that even the

review of the petitioner was dismissed way back in the year 1999 and the

petition was filed after nine years therefrom in the year 2008. It is further

contended that the earnest money was also refunded to the petitioner way

back in 2002 i.e. six years prior to the institution of this petition.

7. The petitioner admits the receipt of refund of earnest money; however

attempts to explain the same by contending that the said refund was obtained

directly in his bank account and he did not come to know of the same. The

said explanation is not convincing. The petitioner has not filed any

document in support thereof. Even if the refund had been received directly in

the bank account, the petitioner if not immediately, at least at the end of the

financial year while preparing accounts would have come to know of the

said refund. There is thus merit in the contention of the counsel for the

respondents no.1&2 of the petition being liable to be dismissed on the

ground of laches. The petitioner is not found to have acted earnestly. The

facts of the case required the petition to act expeditiously. The Relocation

Scheme was launched to rehabilitate the industries functioning in non-

conforming areas. Such industries were required to immediately shut down

their operations in the non-conforming areas and to shift to the

alternate/relocated site. The petitioner however has not shown any such

urgency. From the reliefs aforesaid claimed in the petition, it is clear that the

petitioner continued to run its industry in the non-conforming area and was

not interested in relocating the same. The present petition appears to have

been filed only when the unauthorized industry of the petitioner in the non-

conforming area was sought to be sealed. From the said facts, a case of

waiver and abandonment of the rights by the petitioner is also made out.

8. Long time has elapsed since. The respondents before allotting

alternate industrial plot were required to investigate the claims. The said

investigation also may not be possible now after such long lapse of time.

9. It appears that the petitioner was operating two non-conforming

industries, as also borne out from the counter affidavit of the MCD. The

counsel for petitioner contends that it is possible that the petitioner may have

given one address in the application and documents filed of the other

address. It is urged the same ought not to disentitle the petitioner from the

benefit of the Scheme.

10. The petitioner was required to explain the said position in or about the

year 1996 or latest in 1999, and cannot be permitted to do so now. Rather the

petitioner by his action of continuing the industry in the non-conforming

area has disentitled himself from any discretionary relief under Article 226

of the Constitution.

There is no merit in the petition, the same is dismissed.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 8th July, 2010 pp