Delhi High Court

Subedar Major Ishwar Dass Suri vs Union Of India & Ors. on 10 August, 2011

Author: Dipak Misra,Chief Justice

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      LPA 532/2011

       SUBEDAR MAJOR ISHWAR DASS SURI            ..... Appellant
                   Through Mr. Siddharth Luthra, Sr. Advocate with
                   Mr. Amit Sharma, Advocate.

                            versus

       UNION OF INDIA & ORS.                        ..... Respondents
                     Through Mr. Ravinder Agarwal, CGSC & Mr.
                     Nitish Gupta, Advocate for UOI & L&DO.
                     Ms. Preeti Gupta, Advocate for Mr. P.K. Mittal,
                     Advocate for respondent No. 2-DDA.
                     Ms. Maninder Acharya, Advocate for MCD.

                                     WITH

2.     LPA 534/2011

       DEFENCE COLONY ASSOCIATION BLOCK A ..... Appellant
                   Through Mr. Siddharth Luthra, Sr. Advocate with
                   Mr. Amit Sharma, Advocate.

                            versus

       UNION OF INDIA & ORS                        ..... Respondents
                     Through Mr. Ravinder Agarwal, CGSC & Mr.
                     Nitish Gupta, Advocate for UOI & L&DO.
                     Ms. Maninder Acharya, Advocate for MCD.

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


LPA Nos.532 & 534 of 2011                                    Page 1 of 8
                  ORDER

% 10.08.2011

CM Nos. 11478-11479/2011 in LPA No. 532/2011 CM Nos. 11489-11490/2011 in LPA No. 534/2011

Exemption applications are allowed, subject to all just exceptions.

CM No. 11477/2011 & LPA No. 532/2011 CM No. 11488/2011 & LPA No. 534/2011

These are applications for condonation of delay. We have heard Mr.

Siddharth Luthra, learned senior counsel along with Mr. Amit Sharma,

learned counsel for the appellant on the question of delay. Before issuing

notice to the respondents, we have thought it appropriate to dwell into the

issue on merits. Be it noted, while dealing with the said issue we have been

assisted by Mr. Ravinder Agarwal, learned Standing Counsel for the Union

of India, Ms. Preeti Gupta, learned counsel for DDA and Ms. Maninder

Acharya, learned counsel for the MCD.

2. The present intra-court appeals are directed against the order dated

10.12.2010 whereby the learned Single Judge by a common order dismissed

two writ petitions, namely, W.P.(C) No.1288/1984 and W.P.(C)

No.1342/1984.

3. It is worth noting that the factual matrix of both the writ petitions was

similar and, therefore, the learned Single Judge has disposed of the writ

petitions by a singular order. The appellant in LPA 534/2011, is a society

and the appellants in LPA 532/2011 are residents of Block A of Defence

Colony. They had prayed for issue of writ of mandamus directing

Government of India and Land & Development Officer to transfer a plot of

land admeasuring 2.8 acres in favour of the association, the appellant in LPA

534/2011, and also for quashing of sale/transfer of plot admeasuring 0.72

acres in favour of Delhi Children Little Theatre (children theatre group, for

short) by Land & Development Officer, and also for prohibiting the children

theatre group from raising a theatre building or carry out any construction on

the plot.

4. The facts in nutshell are that in the year 1947, for rehabilitation of the

officers of armed forces, Navy and Air force, who were migrated to India on

partition, area around the erstwhile village Kirlokari was developed. The

said area is now known as Defence Colony, New Delhi. Plots were carved

out and sold as per the appellants at Rs.22/- per square meter for residential

plots and Rs.23/- per square meter for corner plots. The appellants have

stated that an area admeasuring 2.8 acres were earmarked for Junior

Commissioned Officers‟ Club. It is claimed that representations were made

for allotment of the said land for the club but without success. However, by

the letter dated 31st October, 1972, assurance was given by the Ministry of

Works and Housing, that the land would be made available to the appellant

society. It was/is the claim of the appellants that the land should be made

available to the appellant society either free of cost or on payment of a

nominal rate of Rs.5,000/- per acre in terms of the press note issued in 1965.

It is alleged that the land measuring 0.72 acre was transferred to the children

theatre group for nominal consideration of Rs.25,000/- though the said

earmarked land was/is marked for the club in the zonal development land

and that there is violation of Master Plan as well as layout plan as the theatre

cannot come up at the said location. It is further alleged that if the theatre is

allowed to come up it will lead to collapse of infrastructure as there are large

number of houses in the surrounding area.

5. We have heard the learned counsel for the appellant but do not find

any merit in the present appeal. The facts as have been explicit in the

impugned decision show that the area measuring 0.72 acres was allotted to

children theatre group in 1963 on payment of Rs.25,000/-. They have been

in possession of land since 1966 and it is their case that because of the

objections raised by the appellants and others, they have not been able to

effectively use and carry out construction. Defence Colony was carved out

of the land which was acquired in 1911 and was Nazul land. The ownership

of the said land measuring 0.72 acre was never transferred to the appellant

society. Respondent authorities have pointed out that two plots measuring

6.2 acres plot and 3 acres were earmarked for Officer‟s club in Sector „C‟

and JCO‟s Club in Sector „A‟ respectively. These were to be developed by

the Ministry of Defence but they did not show any interest in developing the

clubs. Accordingly, 6.2 acres of land was divided into 4 plots and allotted to

various institutions. Out of 3 acres of land earmarked for JCO‟s club, 0.72

acre was carved out and allotted to the children theatre group. Before the

allotment, the land use was changed to recreational. The said allotment had

taken place way back in 1963. It also transpires that a club had already

come up in Defence Colony. Therefore, the residents of the area have access

and can utilize the club facilities.

6. Learned Single Judge has rightly appreciated the submissions raised

before him and came to hold that the documents or representations filed by

the petitioners do not establish that they have any right over land whose

allotment was challenged. Mere representations made to authorities from

time to time did not create any right in their favour. The Land &

Development office had informed the appellants way back on 18th April,

1962, that the land on which right has been claimed by the appellants,

belonged to the Government. The appellants have not paid any amount

towards cost of land and the payment has been made by the children theatre

group. It has been further held that there was no promise on the part of the

Government authorities that the plot of land measuring 2.8 acres shall be

transferred to the appellants at the concessional or nominal price. Thus

appellants are not entitled to allotment in their favour even if for some

reason, land allotted to the children theatre group is cancelled and the claim,

therefore, for the allotment of the land is untenable.

7. With regard to violation of the Master Plan and the layout plan,

learned single Judge has rightly relied upon the affidavit of the Delhi

Development Authority. As per the said affidavit under the Zonal

Development Plan, the use is indicated as partly for club and partly for

social and cultural use (public and semi public use). Learned single Judge

has further observed that the appellant had not filed any document on the

basis of which it can be inferred that the allotment of the plot to the children

theatre group violates any statute, Master Plan or zonal plan. The children

theatre group, it is pointed out, is a social service organization and its object

and purpose is to advance and coordinate activities of school children and

others. It is obvious that the children theatre group will have to use the plot

as per zonal plan and not violate the same. Appellant cannot object to the

use of plot as per zonal plan and in case of violation, the statutory authorities

are is entitled to take action.

8. After opining this, learned single Judge has held thus:-

"38. In the entirety of the facts and circumstances, the petitioners have failed to make out a case seeking directions from this Court to issue a writ to Union of India and L & DO to transfer or sell or lease the land admeasuring 2.8 acres at concessional rates or free of cost in favor of the petitioners nor the petitioners are entitled for a direction to quash the sale of portion of the land admeasuring .72 acres made by the UOI and L&DO to the Delhi Children‟s Little Theatre."

9. Having heard learned counsel for the parties, we are of the considered

opinion the analysis made by the learned Single Judge and the findings

returned by him cannot be found fault with for the simon pure reason. The

Appellants have not been able to prove that they were the allotees of the land

in question and further the lands stood allotted in favour of the third

respondent in the year 1963. That apart, the writ petition was filed in 1984

for extension of the benefit on the ground that there is no justification to

grant the lease in favour of the third respondent the theatre group. Hence,

we concur with the view expressed by the learned Single Judge and,

therefore, there is no justification or warrant to issue notice on the question

of limitation to the other respondents and, accordingly, the applications for

condonation of delay stand rejected and as an inevitable corollary the