Kanhaya Lal Madan vs N.D.M.C. & Anr.
2011 Latest Caselaw 3779 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    LPA No. 636/2011

%                               Date of Decision: August 5, 2011

Kanhaya Lal Madan                                       ....Appellant
                     Through    Mr. Vijaynder Kumar, Advocate.

                    VERSUS

N.D.M.C. & Anr.                             .....Respondents
                    Through

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA

                                ORDER

%                              05.08.2011
SANJIV KHANNA, J.

By the impugned decision dated 4th April, 2011, learned single

Judge has dismissed Writ Petition (Civil) No. 1862/2011 and given

liberty to the appellant to sue for refund of money. Learned single

Judge has further clarified that observations made in the decision were

only to deal with the contention of the appellant on the question of

maintainability of the writ petition and would not affect the

claim/proceedings which may be instituted by the appellant for refund

of money.

2. Having heard the learned counsel for the appellant, we are

entirely in agreement with the finding recorded in the impugned

decision. Learned single Judge has refused to exercise discretion and

entertain the writ petition for refund of money, which has been

deposited/paid towards misuse/damages to the respondent NDMC.

Learned single Judge has noticed that the appellant had unequivocally

and unconditionally deposited part payment towards misuse/damages

with the NDMC on 13th April, 2009. By another letter of the same day

relied upon by the appellant, he had informed the respondent NDMC

about deposit and requested them for conversion of rights into free-

hold rights and execution of the conveyance deed. He had further

offered to pay balance dues, if any, and sought more time to pay the

balance amount. Thereafter on 28th April, 2009, he deposited the

balance amount unconditionally and without any demur. By a letter

written on the same date, he informed the respondent NDMC about

the deposit and requested them for execution of the Conveyance Deed.

This letter was not written without prejudice or under protest or with a

right to claim refund. In the third letter dated 3rd July, 2009, the

appellant did not mention whatsoever about any protest or the fact

that the deposit was made without prejudice to his rights.

Consequently, the conveyance deed of free hold rights was executed by

the respondent NDMC in favour of the appellant on 28th June, 2010.

Six months thereafter on 16th December, 2010, the appellant made first

claim for refund of the payments.

3. Whether or not the payments were made under protest or

without prejudice to the rights of the appellant, or under undue

influence etc., are disputed questions of fact which have to be gone

into and examined. The appellant has contended that the clause

relating to prescribed user of the property as "Coal Depot" was

mistakenly inserted in the Lease Deed executed between L&DO and his

father way back on 11th January, 1983. This again, is a disputed

question of fact and the appellant has raised the said contention

alleging the mistake nearly 27 years after the Lease Deed was executed.

Reliance placed by the appellant on filing notings, has been rejected by

the learned single Judge in view of the judgments of the Supreme Court

in Sethi Auto Service Station vs. DDA, (2009) 1 SCC 180, Jasbir Singh

Chhabra vs. State of Punjab, (2010) 4 SCC 192, and Union of India vs.

Vartak Labour Union, JT 2011(3) SC 110.

4. Regarding other reliefs claimed in the writ petition, learned

Single Judge has observed as under:-

"17. As far as the other reliefs claimed in the petition are concerned, no blanket stay against the respondents from taking action against the property of the petitioner as sought can be granted. If any action is threatened or taken, the petitioner shall have remedies in law. Similarly, if it is the plea of the petitioner that it is entitled to additional FAR and the unauthorized construction in the property is regularizable, it is open to the petitioner to apply for the same and if the said application is rejected, to prefer an appeal thereagainst and a writ again would not lie. Rather, it appears that the said two prayers have been added merely to have the notice of the petition primarily claiming refund of monies issued."

5. In view of the aforesaid facts, we do not think that the order of

the learned single Judge requires any interference. The present intra

court appeal has no merit and is accordingly dismissed.

(SANJIV KHANNA) Judge

(DIPAK MISRA) Chief Justice August 05, 2011 kkb