Delhi High Court
M/S Bansi Lal Kanhaiya Lal vs Delhi Development Authority on 4 August, 2011
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 4th August, 2011
+ W.P.(C) 2317/2007
M/S BANSI LAL KANHAIYA LAL ..... Petitioner
Through: Mr. Gaurav Barathi, Adv.
Versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Ms. Sangeeta Chandra, Adv.
AND
+ W.P.(C) 4415/2007
M/S HUKAM CHAND DURGA PERSHAD ..... Petitioner
Through: Mr. Gaurav Barathi, Adv.
Versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Ms. Sangeeta Chandra, Adv.
AND
W.P.(C) Nos.2317/07,4415/07,2844/08,2911/08,13226/09,13257/09,13262/09,13269/09 & 13280/09 Page 1 of 40
+ W.P.(C) 2844/2008
M/S ALLIANCE GLOBAL ..... Petitioner
Through: Mr. Arun Vohra & Mr. Ajay Aneja,
Advs.
Versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Ms. Sangeeta Chandra, Adv.
AND
+ W.P.(C) 2911/2008
M/S PREM DYES & CHEMICALS ..... Petitioner
Through: Mr. Arun Vohra & Mr. Ajay Aneja,
Advs.
Versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Ms. Sangeeta Chandra, Adv.
AND
+ W.P.(C) 13226/2009
M/S JETHANAND & CO. ..... Petitioner
Through: Mr. Arun Vohra & Mr. Ajay Aneja,
Advs.
Versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Mr. Rahul Bhandari & Ms. Razia Ali,
Advs. for Mr. Rajiv Bansal, Adv.
W.P.(C) Nos.2317/07,4415/07,2844/08,2911/08,13226/09,13257/09,13262/09,13269/09 & 13280/09 Page 2 of 40
AND
+ W.P.(C) 13257/2009
M/S R.K. CHEMICO ..... Petitioner
Through: Mr. Arun Vohra & Mr. Ajay Aneja,
Advs.
Versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Mr. Rahul Bhandari & Ms. Razia Ali,
Advs. for Mr. Rajiv Bansal, Adv.
AND
+ W.P.(C) 13262/2009
M/S SATYA CHEMICALS ..... Petitioner
Through: Mr. Arun Vohra & Mr. Ajay Aneja,
Advs.
Versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Mr. Rahul Bhandari & Ms. Razia Ali,
Advs. for Mr. Rajiv Bansal, Adv.
AND
W.P.(C) Nos.2317/07,4415/07,2844/08,2911/08,13226/09,13257/09,13262/09,13269/09 & 13280/09 Page 3 of 40
+ W.P.(C) 13269/2009
M/S DIAMOND RUBBER COMPANY ..... Petitioner
Through: Mr. Arun Vohra & Mr. Ajay Aneja,
Advs.
Versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Mr. Rahul Bhandari & Ms. Razia Ali,
Advs. for Mr. Rajiv Bansal, Adv.
AND
+ W.P.(C) 13280/2009
M/S KUKREJA AGENCIES ..... Petitioner
Through: Mr. Arun Vohra & Mr. Ajay Aneja,
Advs.
Versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Mr. Rahul Bhandari & Ms. Razia Ali,
Advs. for Mr. Rajiv Bansal, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may Yes
be allowed to see the judgment?
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
W.P.(C) Nos.2317/07,4415/07,2844/08,2911/08,13226/09,13257/09,13262/09,13269/09 & 13280/09 Page 4 of 40
RAJIV SAHAI ENDLAW, J.
1. The petitions concern the shifting of the Chemicals Market from
within the city, primarily in Lal Kuan and Tilak Bazar, to Holambi Kalan at
Narela.
2. The precursor to the said shifting was the fire on 31 st May, 1999 at Lal
Kuan. A Public Interest Litigation being W.P.(C) No.3678/1999 titled All
India Lawyers Union (Delhi Unit) Vs. UOI was filed seeking compensation
for loss of life and property of the affected families. During the hearing of
the said writ petition, directions were also issued for development of a
wholesale chemicals market so that the market thriving in the congested
areas of Lal Kuan and Tilak Bazar and Khari Baoli could be shifted out.
Ultimately upon land at Holambi Kalan at Narela being identified for the
said purpose, directions were issued in the said PIL for shifting of the entire
chemical trade from the city to the said site.
3. It is the case of the respondent DDA that a total number of 883
individual traders were identified for allotment of alternative plots at
Holambi Kalan at Narela at pre-determined rates.
4. The respondent DDA initially in the year 2001-02 offered 50 sq. mtrs.
plots with FAR of 200 to each of the traders entitled to re-location, at a pre-
determined rate of `5,400/- per sq. mtr. for FAR of 100. The premium so
claimed by the respondent DDA and costing thereof became the subject
matter of W.P.(C) No.6317/2002 preferred by the Rang Rasayan Vyapar
Sangh, an association of Chemical Traders. Vide interim order dated 1st
October, 2002 in the said writ petition, it was directed that the persons who
desired to pay the full amount in terms of the demand letter could pay the
demanded premium and take possession of the plot and if the amount
charged by the DDA was found to be in excess, they would be entitled to
refund of the excess amount paid together with interest; option was also
given to pay 50% of the demanded amount and subject to payment of which
stay of cancellation was granted; it was however provided that the balance
amount found payable would be payable along with interest. DDA was thus
free to cancel the allotment of those who did not pay 50% of the demanded
premium also.
5. However, notwithstanding the pendency of the said writ petition,
DDA on the representation of the chemical traders reconsidered the matter
and vide letter dated 12th July, 2005 revised the demand to `8,433/- per sq.
mtr. for an FAR of 100.
6. Another set of writ petitions, the lead one being W.P.(C)
No.381/2007, were filed by some of the traders. In the said writ petitions,
besides challenging the revised rate of `8,433/- per sq. mtr. for FAR of 100
as opposed to the earlier rate of `5,400/- per sq. mtr. for FAR of 100 with
available FAR of 200, the petitioners also complained of the lack of
development by the respondent DDA of the area where the plots were
located.
7. The rate aforesaid of `8,433/- per sq. mtr. was arrived at as per the
land rates prevalent in the year 2005. However, since some of the
petitioners in W.P.(C) No.381/2007 and connected petitions had already
made 50% payment in terms of order dated 1st October, 2002 (supra) in
earlier W.P.(C) No.6317/2002, DDA was vide order dated 14th May, 2008 in
W.P.(C) No.381/2007 asked to determine the rate for FAR of 100 in 2002
which was equivalent to the rate earlier demanded in the year 2002 of
`5,400/- per sq. mtr. per 100 FAR for total FAR of 200.
8. DDA, in compliance of the order dated 14th May, 2008 in W.P.(C)
No.381/2007 revised the rate from `8,433/- per sq. mtr. with FAR of 100 to
`6,075/- per sq. mtr. with FAR of 100.
9. The petitioners in W.P.(C) No.381/2007 and connected petitions
conveyed their agreement to pay the rate of `6,075/- per sq. mtr. with FAR
of 100 after adjustment of the amounts already deposited by them. W.P.(C)
No.381/2007 and connected petitions were therefore disposed of vide order
dated 4th December, 2008 with the direction for payment of the revised rate
of `6,075/- per sq. mtr. with FAR of 100 with interest at the rate of 6% per
annum from the year 2002 till the fresh demand letter was issued by the
respondent DDA.
10. As far as the plea of the petitioners in W.P.(C) No.381/2007 and
connected petitions of lack of development in the area was concerned, the
Court in order dated 4th December, 2008 reached a prima facie conclusion
that the development works in the area had been completed in the year 2002.
It was however held that the right of the petitioners to agitate in that respect
and to claim damages from respondent DDA would arise only after the
petitioners take possession of the plots since it was only then that the
petitioners would in fact suffer loss or damages on account of their inability
to carry on their trade due to failure of respondent DDA to fully develop the
area and to make it usable for the purpose for which it was allotted. The
petitioners were therefore granted liberty to agitate the said grievance after
they take over possession.
11. With the aforesaid background, now the dispute in the present set of
writ petitions may be considered.
W.P.(C) No.4415/2007 & W.P.(C) No.2317/2007
12. The petitioner in W.P.(C) No.4415/2007 was in the year 2002 allotted
plot No.328, Block-C, ad-measuring 50 sq. mtrs. and was / is a member of
the Rang Rasayan Vyapar Sangh which had filed W.P.(C) No.6317/2002
(supra) and claims to have, pursuant to the demand dated 12th July, 2005
(supra) paid a sum of `4,21,940/- on 29th December, 2006 under protest and
claims that possession of the plot has not been delivered to him inspite of
payment and he continues to carry on his business at the old place. The
grievance of the petitioner is to the rate of `8,433/- per sq. mtr. for FAR of
100 and he claims to be entitled to pay at the original rate demanded of
`5,400/- per sq. mtr. only. He claims to be entitled to refund of the excess
amount deposited by him. He also, seeks mandamus to the respondent DDA
to develop the area, to hand over possession of the plot, to allot an additional
plot in terms of the public notices issued and in pursuance to which he
claims to have applied; seeks a direction that he is liable to pay ground rent
only from the date of possession.
13. Notice of the petition was issued. On 14th January, 2008, this petition
was taken up along with other petitions and the counsel for respondent DDA
was directed to obtain instructions on the following two aspects:
1. Whether and from when ground rent has been charged from the
allottees who have made payment in terms of demand cum
allotment letter issued in 2002. The respondent will also clearly
indicate the date on which possession of first plot was handed
over to any allottee.
2. Whether the DDA has additional land available for allotment in
terms of Clause 5 of the letter dated 15th March, 2005 (this issue
arises for consideration only in W.P.(C) No.4415/2007).
14. On 18th February, 2008, the petitioner was granted six weeks time to
deposit `87,025/- demanded by the respondent DDA without prejudice to his
rights and contentions and the questions of payment of ground rent and right
of respondent DDA to claim current costs as of the year 2006 as well as
interest were kept open for decision.
15. The respondent DDA in its counter affidavit has stated that originally
it was decided to give FAR of 300 including basement and the rate of
`5,400/- per sq. mtr. per 100 FAR was approved accordingly; that
subsequently the Association of Chemical Traders represented for an out of
Court settlement and requested the respondent DDA to reduce the FAR to
100 and to charge the rate at `5,400/- per sq. mtr. for total FAR of 100; in
this background, the issue of costing was again gone into and the respondent
DDA agreed to reduce the FAR from 300 to 100. However, since the earlier
rate of `5,400/- per sq. mtr. had been computed on the basis of total FAR of
300, the rate for total FAR of 100 only had to be revised to `8,433/- per sq.
mtr. It is further stated that the petitioner had not made the payment in
accordance with the demand letter of the year 2002; that upon issuance of
the revised demand letter on 12th July, 2005, majority of the allottees being
satisfied made the payment and possession of the plots was delivered to
them; that the petitioner however did not make payment then also and paid
as aforesaid on 29th December, 2006 i.e. after the expiry of stipulated period
of 60 days; however respondent DDA was in the process of handing over of
possession to the petitioner. The respondent DDA also controverted that the
area had not been developed.
16. The petitioner has filed a synopsis of submissions in which it is also
stated that the respondent DDA has demanded the ground rent from the
petitioner since the year 2002 when the first allotment was made, for the first
five years at the rate of `1/- per year and thereafter at the rate 2.5% of the
premium originally payable per annum; that the respondent DDA had also
demanded interest on account of delayed payment of premium.
17. The counsels state that the position in W.P.(C) No.2317/2007 is the
same as in W.P.(C) No.4415/2007 save that the date of allotment letter is 2nd
September, 2002 and demand @ `8,433/- per sq. mtr. for 100 FAR was
made vide letter dated 10th June, 2005 and payment of `4,21,940/- made on
27th November, 2006.
18. The counsel for the petitioners has again argued that there is no
development at the site and it is not possible for the petitioners to shift their
business thereto.
19. However, this Court in the order dated 4th December, 2008 (supra)
having prima facie found the work of development to have been carried out
as far back as in the year 2002 and having held that such grievance could not
be raised without the petitioner taking over possession, I am not inclined to
take any different view. Moreover, it appears to this Court that the petitioner
is taking such a plea only to delay the shifting of his business from a Non
Conforming Area where the petitioner continues to carry on business inspite
of the directions nearly 10 years ago in the PIL aforesaid. Merit is also
found in the argument of the counsel for the respondent DDA that owing to
the chemical traders showing reluctance to shift to the alternative site
provided to them, the development already carried out therein is being
wasted; she has further urged that the area will develop only when more and
more chemical traders shift thereto and without the traders actually shifting
their business thereto, no such development will take place; it is said that
only when sufficient number of traders apply for and deposit money for
electricity connection, would the necessary infrastructure therefor be put in
place.
20. I am also of the opinion that this Court in the PIL aforesaid having
directed the shifting out of the chemical trade market from the crowded
areas of the city to a separate place earmarked therefor, the petitioners
cannot continue carrying on the business in the city in a Non Conforming
Area and if not satisfied with the plot which is offered to them, cannot on the
one hand keep holding on to the same and on the other hand continue
carrying on business in the Non Conforming Area. Option, during the course
of hearing has been given to the petitioners to, if not satisfied with the plots
and the development in the area, surrender the same and upon which
surrender, the monies deposited by the petitioners with the respondent DDA
till now shall be refunded with interest. The petitioners however did not opt
for the same. The said conduct of the petitioners shows the dog in the
manger policy which the petitioners have been adopting. The general trend
of land prices in Delhi is in the upward direction. It is obvious that the value
of the land which has been allotted to the petitioners would be much more
than what the petitioners have paid therefor.
21. As far as the claim of the petitioners for additional plot is concerned,
the counsel for the respondent DDA has stated that though at one time, there
was a proposal for acquiring further land and applications for additional plot
were invited but extra land could not be made available and at present it is
not possible for the respondent DDA to allot additional plots. The same is
also recorded in the Minutes of the Meeting held on 26 th October, 2010
between the Urban Development Minister and the Human Resource
Development Minister, copy whereof is filed by the petitioner along with the
synopsis of submission aforesaid. Even otherwise, I have enquired from the
petitioners as to what is the right of the petitioners to additional plot. None
has been shown. There is nothing to show that the stand of the respondent
DDA of no additional plots being allotted is wrong. Thus, no such relief
also can be granted to the petitioners.
22. As far as the challenge by the petitioners to the price is concerned, the
respondent DDA having in pursuance to the order in the petitions
culminating in the order dated 4th December, 2008 revised the price from
`8,433/- per sq. mtr. to `6,075/- per sq. mtr. for FAR of 100, the price
payable by the petitioners has to be the same. The counsel for the petitioners
also has not argued otherwise. If the amounts already paid by the petitioners
are at the higher rate of `8,433/- per sq. mtr., the petitioners would be
entitled to refund / adjustment of the excess amount if any paid.
23. The arguments of the counsels were rather concentrated on the aspect
of ground rent, with the counsel for the respondent DDA contending that the
ground rent is payable with effect from 2002 when initially the allotments
were made and the counsel for the petitioners contending that ground rent
would be payable only with effect from the date the petitioners are put into
possession of the land.
24. The counsel for the respondent DDA has invited attention to the
additional affidavit filed by the respondent DDA in this regard in earlier
W.P.(C) No.381/2007 file whereof was requisitioned and tagged to this
bunch of writ petitions. It is stated therein that as per Rule 42(2) of DDA
(Disposal of Developed Nazul Land) Rules, 1981, the ground rent for
holding the Nazul Land allotted under the Rules is payable at the rate of `1/-
per annum per plot for the first five years from the date of allotment and as
per Rule 42(3), the annual ground rent payable after the first five years is to
be at the rate of two and half per cent of the premium originally payable by
the allottee. It was further stated that the plots were ready for handing over
of possession in February, 2003 and the first possession was handed over on
28th December, 2006.
25. Rule 42 (supra) makes the ground rent leviable from "the date of
allotment". The question which arises is as to in the circumstances
aforesaid, what can be said to be the date of allotment; whether of the year
2002 when initially allotment was made; or, when the price was revised and
fresh demand-cum-allotment letters dated 12th July, 2005 / 10th June, 2005
issued; or when the rate was revised to `6,075/- per sq. mtr. in the year
2008; or, when the petitioners made the payment on 29th December, 2006 /
27th November, 2006; or, when the petitioners will be put in possession.
26. The counsel for the respondent DDA has urged that owing to the
allotment in favour of the petitioners in the year 2002, the land could not be
allotted to anyone else and as such the petitioners are liable for ground rent
with effect from that date.
27. Per contra, the counsel for the petitioners has urged that handing over
of possession having commenced admittedly on 28 th December, 2006, the
respondent DDA cannot be allowed to claim ground rent in any case from
prior thereto.
28. Rule 42 having made the ground rent leviable from the date of
allotment as distinct from the date of possession and / or the date of
execution of perpetual lease, the Nazul Land Rules have been looked into to
enquire as to what is intended to be the date of allotment. Chapter II thereof
deals with "Disposal of Nazul Land" and, Rule 3 thereunder defines the
"Purposes for which Nazul land may be allotted"; Rule 4 defines the
"Persons to whom Nazul land may be allotted"; Rules 5&6 deal with the
determination of premium or pre-determined rate for allotment of Nazul
land; and, Rule 8 concerns the "Manner of allotment"; Rule 8 provides for
"allotment to be made on payment of such premium as may be determined".
The same indicates the allotment to take place upon payment of premium
and / or pre-determined rate. The question which however arises is whether
a person can defer the date of allotment by delaying the payment. The
answer obviously has to be in the negative. The date of payment has to be
the date of actual payment and / or the date of payment stipulated in the
demand-cum-allotment letter. Thus, allotment takes place upon
determination of the pre-determined rate and demand-cum-allotment letter
being issued to the allottee.
29. Though the respondent DDA in the present cases determined the pre-
determined rate in the year 2002 but revised the same in the year 2005 and
yet again in the year 2008 as aforesaid. I have wondered whether for this
reason it can be said that the determination at which petitioners have been
held liable can be said to be of the year 2008 and thus liability for ground
rent cannot be said to commence at any time prior thereto.
30. Though at one stage it appeared to be so but on further consideration
it is found that the rate determined in 2008 is also of the year 2002 only.
Though the respondent DDA in the year 2005 had determined the rate at
`8433/- per sq. mtr. as per the land rates of the year 2005 but under direction
from this Court in W.P.(C) No.381/2007, reduced the rate to `6,075/- per sq.
mtr. as per the land rates of the year 2002. The petitioners cannot have their
cake and eat it too; they cannot pay pre-determined premium at the land
rates of the year 2002 and pay ground rent from the year 2008; if they want
to pay ground rent from the year 2008 or later, they ought to pay pre-
determined premium at the land rates of 2008 or later and which they are
unwilling to.
31. I have also considered whether notwithstanding the above, for the
reason of the determination of rate having remained in a state of flux from
the year 2002 till the year 2008, the date for commencement of ground rent
is to be deferred.
32. However, the facts aforesaid show that it was the petitioners
themselves who challenged the rate of `5,400/- per sq. mtr. per 100 FAR for
total FAR of 200 determined by the DDA in the year 2002 and DDA on the
request of the petitioners recomputed the rate for the total FAR of 100. Even
though DDA then wanted to demand at the land rates of 2005 but this Court
directed determination at the land rates of the year 2002. Thus, the rate of
`6,075/- per sq. mtr. with FAR of 100 which now has the imprimatur of this
Court is nothing but the equivalent of the rate initially demanded by DDA of
`5,400/- per sq. mtr. per 100 FAR for total FAR of 200. In these
circumstances, it cannot be said that there was any error in the rate computed
by DDA initially in the year 2001-02. It is owing to the disputes raised by
the petitioners that the same was not paid. Thus, it cannot be said that the
date of allotment can be said to be anything later than the year 2002.
33. I find that this Court in Parmod Kumar Vs. Lt. Governor of Delhi
MANU/DE/1876/2008 was also concerned with the question as to the date
from which ground rent becomes payable. It was held therein also that the
same is payable from the date of allotment but the said rule cannot be
applied strictly in all situations and its application has to be contextual.
Finding DDA to be in default in that case, it was held that it could not be
permitted to take advantage of its own default.
34. However, in the present case as aforesaid no fault has been found in
the rate determined by DDA in the year 2001-02. The challenge by the
petitioners to the said rate has been unsuccessful. Notwithstanding the
petitioners here having not paid the premium demanded in the year 2002 and
also not paying any part of the premium in terms of the order dated 1st
October, 2002 in W.P.(C) No.6317/2002, DDA has not cancelled the
allotment which it was entitled to and the petitioners are still being given
benefit thereof. In the circumstances, the date of allotment cannot be
deferred from that as per the demand-cum-allotment letter of the year 2002.
35. The factum of DDA having delivered the possession of the first plot in
the year 2006 would also be irrelevant in this regard. As aforesaid, it is the
traders who have been reluctant to take possession and to shift out their trade
from the non-conforming area notwithstanding the direction of this Court in
the PIL aforesaid. Except for a bare plea, there is nothing to show that
possession was demanded in pursuance of the demand-cum-allotment letter
of the year 2002 or denied by DDA. Thus, it cannot be said that DDA was
not in a position to deliver possession. If an allottee delays taking
possession, he cannot avoid the liability for ground rent from the date of
allotment.
36. Rule 42(1) of the Rules aforesaid makes the allottee of Nazul land,
notwithstanding the perpetual lease having not been executed in favour of
the allottee, a lessee of the President of India on the terms and conditions
prescribed by the Rules and "contained in the lease deed to be executed".
The same is also indicative of the rights in land vesting on allotment and not
on execution of the lease deed. It was so held by this Court in K.K. Birla
Academy Vs. DDA 115 (2004) DLT 361. Once rights are vested on the date
of allotment, the liability for ground rent with effect therefrom cannot be
disputed.
37. The next question which arises for consideration is as to interest. As
aforesaid, the order dated 4th December, 2008 permitted the petitioners to
pay at the rate of `6,075/- per sq. mtr. with interest at the rate of 6% per
annum from the year 2002; in consonance therewith the petitioners are found
liable to pay the pre-determined rate of `6,075/- per sq. mtr. with interest at
the rate of 6% per annum from the last date of payment as per allotment of
the year 2002 and till the date of payment which is informed to be 29th
December, 2006 / 27th November, 2006.
38. W.P.(C) No.4415/2007 and W.P.(C) No.2317/2007 are accordingly
disposed of with the following directions:
(i) The petitioners are found liable to pay for the respective plots
allotted to them at the rate of `6,075/- per sq. mtr. with FAR of
100;
(ii) The said premium is found payable by the petitioners in terms
of order dated 4th December, 2008 (supra) within 60 days of
26th August, 2002 / 2nd September, 2002;
(iii) The petitioners are liable to pay interest at the rate of 6% per
annum till the date of actual payment i.e. 29th December, 2006 /
27th November, 2006;
(iv) The petitioners are found liable to pay ground rent also with
effect from expiry of 60 days from 26th August, 2002 / 2nd
September, 2002 and would also be liable to pay interest on
ground rent in accordance with the policy of the respondent
DDA;
(v) The petitioners are directed to pay the amounts aforesaid within
eight weeks of today; respondent DDA is directed to supply its
calculation of amounts so due upon the petitioners so
approaching DDA;
(vi) The respondent DDA to put petitioners in possession of the
plots within six weeks of payment aforesaid and compliance of
other formalities;
(vii) Upon the petitioners failing to make payments within the time
aforesaid, it shall be open to the respondent DDA to cancel the
allotment;
(viii) The petitioners are not found entitled to the other reliefs
claimed;
(ix) However, the dismissal / disposal of these petitions would not
come in the way of the petitioners, after taking possession,
making claims if any maintainable against the respondent DDA
for non compliance of its obligation qua infrastructure
development etc.
W.P.(C) No.2844/2008
39. The petitioner herein was allotted plot No.256, Block-C, ad-
measuring 50 sq. mtrs. vide demand-cum-allotment letter dated 21st August,
2002 and deposited a sum of `2,70,290/- on 30th April, 2004 being 50% of
the then demand in accordance with the order dated 1 st October, 2002 in
W.P.(C) No.6317/2002 (supra). No counter affidavit has been filed by the
respondent DDA in this petition.
40. The counsel for the petitioner has contended that since the total
demand on 21st August, 2002 of `5,40,290/- was for the FAR of 200 and the
petitioner has deposited 50% thereof being `2,70,290/- and further since
now the permissible FAR is 100 only, the entire premium stands paid and
the only question for consideration in this case is whether the petitioner is
liable for any interest with effect from expiry of 60 days with effect from
21st August, 2002 and till the date of payment till 30th April, 2004. He has in
this regard relied on a public notice stated to have been issued by the
respondent DDA in the "Indian Express" newspaper of 9th April, 2004
whereby the allottees were given last chance to remit the amount due from
them by 30th April, 2004. He has thus contended that the petitioner having
made the payment by the said date is not liable for any interest. Though no
copy of the said public notice has been filed along with the petition but the
counsel for the petitioner at the time of hearing has handed over a photocopy
though not of the newspaper. The counsel for the respondent DDA states
that without newspaper being produced, the publication of the public notice
cannot be believed.
41. I am of the opinion that even if such an advertisement is believed to
have been issued by the respondent DDA, the same would not affect the
liability if otherwise in law of the petitioner in as much as the advertisement
nowhere states that the same was an opportunity to pay without interest.
Merely because the date was extended for payment would not disentitle the
respondent DDA to interest if otherwise entitled to.
42. The counsel for the respondent DDA has also contended that the
petitioner cannot claim a right to pay the rate of `5,400/- per sq. mtr. per 100
FAR which was determined for the total FAR of 200, for reduced total FAR
of 100. It is contended that the said argument has already been negatived in
the earlier round of writ petitions and the rate as in 2002 for the FAR of 100
was determined at `6,075/- per sq. mtr. It is thus argued that the petitioner is
liable for making payment at the rate of `6,075/- per sq. mtr. for FAR of
100.
43. I find merit in the contention of the counsel for the respondent DDA.
It is not as if the petitioner had made the entire payment in terms of the
demand letter dated 21st August, 2002; the payment of `2,70,290/- was made
in terms of the order in W.P.(C) No. 6317/2002 to ward off cancellation and
which payment was without prejudice to the rights and contentions of the
parties. In the subsequent round of litigation culminating in the order dated
4th December, 2008, the rate for FAR of 100 was determined at `6,075/- per
sq. mtr. The petitioner cannot be treated differently from the others.
44. The other aspects raised in this petition are covered by the discussion
hereinabove under W.P.(C) No.4415/2007 & W.P.(C) No.2317/2007.
45. The writ petition is accordingly disposed of with the directions:
(i) The petitioner is found liable to pay for the plot allotted to him
at the rate of `6,075/- per sq. mtr. with FAR of 100;
(ii) The said premium is found payable by the petitioner in terms of
order dated 4th December, 2008 (supra) within 60 days of 21st
August, 2002;
(iii) The petitioner is liable to pay interest on `2,70, 290/- at the rate
of 6% per annum till the date of actual payment i.e. 30th April,
2004 and on the balance, till the date of payment thereof;
(iv) The petitioner is found liable to pay ground rent also with effect
from expiry of 60 days from 21st August, 2002 and would also
be liable to pay interest on ground rent in accordance with the
policy of the respondent DDA;
(v) The petitioner is directed to pay the amounts aforesaid within
eight weeks of today; respondent DDA is directed to supply its
calculation of amounts so due upon the petitioner so
approaching DDA;
(vi) The respondent DDA to put the petitioner in possession of the
plot within six weeks of payment aforesaid and compliance of
other formalities;
(vii) Upon petitioner failing to make payments within time aforesaid,
it shall be open to respondent DDA to cancel the allotment;
(viii) The petitioner is not found entitled to the other reliefs claimed;
(ix) However, the dismissal / disposal of this petition would not
come in the way of the petitioner, after taking possession,
making claims if any maintainable against the respondent DDA
for non compliance of its obligation qua infrastructure
development etc.
W.P.(C) No.2911/2008
46. The petitioner claims that in the draw-of-lots held on 10th July, 2002,
it was found successful for allotment of plot No.208, Block-C, ad-measuring
50 sq. mtrs. but no demand-cum-allotment letter was received by it inspite of
repeated visits to the office of the respondent DDA; that on enquiries in
January and February, 2007, it was learnt that the said plot had been offered
to somebody else. The writ petition has been filed in April, 2008 seeking
mandamus to the respondent DDA to allot the said plot to the petitioner and
for restraining the respondent DDA from allotting the same to any other
person.
47. Notice of the petition was issued. Though no interim order granted.
48. The respondent DDA in its counter affidavit has stated that the
petition suffers from delay and laches and is without any explanation
whatsoever for the delay of six years in approaching the Court. On merits, it
is stated that the Lieutenant Governor had on 3rd June, 1999 constituted a
Committee under the Chairmanship of Divisional Commissioner, GNCTD
for shifting of chemical traders form the walled city; a list of 883 eligible
chemical traders was received from the office of Deputy Commissioner,
GNCTD for allotment of plots at Holambi Kalan (Narela); the name of the
petitioner Prem Dyes and Chemicals with the address Shop No.780, Katra
Kirana, First Floor, Tilak Bazar Chowk, Delhi did not feature in the list of
883 eligible chemical traders received from the office of Deputy
commissioner GNCTD; however, the petitioner had in one of its letters
addressed to respondent DDA given the address of its registered office as of
146-A/A-1, Lawrence Road, Delhi and which address featured in a list of
226 persons sent by the office of the Deputy Commissioner, GNCTD under
the heading "List of Dealers whose names have been deleted after the
Survey"; that a total list of 1109 traders had been initially prepared and
which after survey was reduced to 883 since 226 names were deleted;
however name of one M/s Prem Dyes Chemicals having address as 2210/10,
Aggarwal Market, Katra Tobacco, Tilak Bazar, Delhi existed in the list of
883 eligible traders at serial No.604 and it was the said M/s Prem Dyes &
Chemicals, Aggarwal Market, Katra Tobacco, Tilak Bazar, Delhi which was
found successful in the draw-of-lots and to whom the allotment of the plot
claimed by the petitioner had been made; that the 883 persons found eligible
were also required to have deposited a sum of `20,000/- in accordance with
the directions in W.P.(C) No.3678/1999 (PIL) aforesaid; that subsequently it
was realized that M/s Prem Dyes and Chemicals, Aggarwal Market, Katra
Tobacco, Tilak Bazar, Delhi had not made the said deposit and the said
deposit of `20,000/- had been made by the petitioner and thus the allotment
in favour of M/s Prem Dyes and Chemicals, Aggarwal Market, Katra
Tobacco, Tilak Bazar, Delhi also was cancelled; that the petitioner though
found to have deposited `20,000/- would still not be entitled to allotment
having not featured in the list of 883 eligible traders forwarded by the
Divisional Commissioner, GNCTD.
49. The petitioner inspite of repeated opportunities has not filed any
rejoinder to the aforesaid counter affidavit.
50. The counsel for the respondent DDA has rightly contended that the
petitioner if at all aggrieved, is aggrieved from the decision of the GNCTD
of not finding the petitioner eligible for allotment of a plot and has not raised
the said grievance in this petition.
51. There is thus no merit in the petition. The same is dismissed.
W.P.(C) Nos.13226/2009, 13257/2009, 13262/2009, 13269/2009 &
13280/2009
52. The counsels have stated that the controversy in these petitions is the
same. Each of the said petitioners upon being found eligible was allotted a
plot of land and also claims to have in the year 2008 deposited `5,10,540/-
with the respondent DDA. The relief claimed in the petitions is of delivery
of possession of the plots, of development of the area etc.
53. Notices of the petitions were issued and the applications for interim
relief restraining the respondent DDA from cancelling the allotment in
favour of the petitioners dismissed as not pressed.
54. The respondent DDA in its counter affidavit in each of the petitions
has stated, that the Division Bench of this Court in PIL (supra) had vide
order dated 14th September, 2001 directed each of the chemical traders to
deposit a sum of `20,000/- in the Registry of this Court within two weeks
towards costs for disbursement to the victims of Lal Kuan fire and had
imposed a condition that unless such costs were deposited and proof of
deposit thereof shown to the allotting agency, no allotment of space shall be
made; it was further provided that if allotment was made without furnishing
proof of payment of the said costs of `20,000/-, the Commissioner, MCD
shall be held responsible; the MCD was also directed to seal the premises of
the traders who did not deposit the costs. It is yet further the case of the
respondent DDA that the allotments made were subject to the allottee being
required to furnish proof of deposit of the said costs of `20,000/- in the
Registry and it was also a term of allotment that if it was discovered at any
stage that the allotment had been obtained by suppression of any facts or
misrepresentation, the allotment will be cancelled. It is yet further the case
of the respondent DDA that during the verification of documents, it came to
the notice that each of the said petitioners had not deposited the costs of
`20,000/- in the Registry of this Court within the specified time and as such
the allotment in their favour was liable to be cancelled and thus the
petitioners were not eligible for allotment of alternative plot and the
allotment made in their favour liable to be cancelled.
55. Each of the said petitioners has along with the petitions itself filed
photocopy of the receipt of payment of the said costs. However, the said
receipt is in the form of acknowledgment by this Court of letters addressed
to the Registrar enclosing a cheque / demand draft of `20,000/- towards
costs aforesaid. The petitioners in their rejoinder to the counter affidavit of
respondent DDA have reiterated that they have deposited the said costs
instead of within two weeks of 14th September, 2001, in or about January,
2002 and the very fact that their names were included in the list of 883
eligible candidates forwarded by the Divisional Commissioner, GNCTD to
the respondent DDA showed that the delay by them in making the deposit
has been condoned. They have further contended that after the allotment in
their favour and deposit of the demanded amounts by them, such plea could
not be taken belatedly.
56. The counsel for the respondent DDA during the hearing has also
contended that the allotment in favour of each of the said petitioners has
been cancelled. The counsel for the petitioners has rejoined by contending
that there is no intimation of such cancellation to the petitioners.
57. Even during the hearing, no document effecting cancellation has been
produced. Till the filing of counter affidavit, admittedly no cancellation had
been effected. In the circumstances, the oral plea of cancellation cannot be
given any credence.
58. The order dated 14th September, 2001 of the Division Bench of this
Court is unequivocal, "those of the chemical traders who did not deposit the
cost of `20,000/- in this Court within two weeks thereof were to be not
entitled to allotment". However, the fact remains that notwithstanding the
petitioners herein having not deposited the costs of `20,000/- within two
weeks of 14th September, 2001, their names were included in the list of
eligible allottees and allotment letters were issued to them, of course
conditional upon furnishing proof of deposit of the said costs. The demand-
cum-allotment letters to these petitioners are of the year 2008, in pursuance
of the draw-of-lots held on 8th February, 2008 and not of 2002 as in the case
of the other petitioners. The petitioners as aforesaid had six years prior
thereto deposited the costs, though after the time prescribed therefor.
59. There is nothing on record to suggest that the premises in the non
conforming area where the said petitioners have been carrying on business
were sealed for the reason of non payment of costs within two weeks or that
any action was taken against the Commissioner, MCD for allotment in
favour of the said petitioners notwithstanding their having not paid the costs.
The MCD and GNCTD are not before this Court.
60. I have wondered whether this Bench can in the face of the order dated
14th September, 2001 of the Division Bench either extend the time for
payment of costs till the costs were so paid and / or whether the case for
such extension at all is made out.
61. The costs were required to be paid by the traders by way of
compensation to the victims of fire. There was nothing sacrosanct in the
time given of two weeks for deposit of the costs. The time having been
fixed by the Court can always be extended by the Court. From the proof of
cheques submitted by the petitioners to this Court and no action having been
taken against them of sealing their shops, it appears that all concerned were
satisfied that the costs were deposited by the petitioners. It is also not as if
the costs to be deposited within two weeks were to be disbursed to the
victims of fire. The Court had directed the same to be kept in a fixed deposit
for disbursement in accordance with the directions of the Court.
62. In the entirety of the circumstances, I do not deem it appropriate to
relegate the petitioners to now approach the Division Bench for extension of
time. The petitions have remained pending before this Court for the last
over two years and at this stage to now direct another proceeding is not
deemed appropriate. It is felt that interest of justice would be served by
imposing penalty on the petitioners for not depositing the costs within time.
63. Accordingly, it is directed that upon the petitioners depositing penalty
of `40,000/- each in this Court within two weeks of today and furnishing
proof of payment thereof to the respondent DDA, shall be entitled to
delivery of possession and other rights in the respective allotted plots. The
said amount of `40,000/-deposited by each of the petitioners be utilized in
compensation to the victims of the fire if still being disbursed under
directions in W.P.(C) No.3678/1999 and if the said process is over, be
remitted to the Delhi High Court Legal Services Authority for utilization for
tendering legal aid to victims of other such incidents as of fire.
64. Though other questions as in other petitions have not been raised in
these petitions but to avoid further litigation, it is deemed expedient to
clarify that these petitioners would also be bound by what has been held
hereinabove; save that the year of their allotment is of 2008 and amounts due
from them shall be computed accordingly.
65. The petitions are disposed of with the aforesaid directions. The
petitioners having agitated the grievance of non development of the
alternative area allotted to them notwithstanding the order dated 4th
December, 2008 in the earlier round of writ petitions though by the other
traders, are also burdened with costs of `15,000/- each payable to the
respondent DDA within four weeks of today.
RAJIV SAHAI ENDLAW
(JUDGE)
AUGUST 4th, 2011
„gsr‟
(corrected and released on 27th August, 2011)
