Harbans Lal Pahwa vs The Lieutenant Governor & Ors.
2011 Latest Caselaw 4162 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 26th August, 2011.

+                             W.P.(C) 15304/2004

%        HARBANS LAL PAHWA                                    ...Petitioner
                     Through:             Mr. D.G. Dastidar, Adv. for Ms.
                                          Nandni Sahni, Adv.

                                      Versus

    THE LIEUTENANT GOVERNOR & ORS.          ..... Respondents
                 Through: Ms. Deepika, Adv. for R-1&4.
                           Mr. M.K. Singh, Adv. for DDA.
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?

RAJIV SAHAI ENDLAW, J.

1. The respondent No.2 DDA, in pursuance to the Scheme and

recommendation of the respondent No.4 Land & Building (L&B)

Department of the Delhi Administration, vide letter dated 19.09.1978

allotted a plot of land admeasuring 334.45 sq. mtrs. equal to 400 sq. yds. and

bearing No. 43, Block G in East of Kailash Residential Scheme to one Sh.

Khem Chand as alternative residential plot in lieu of acquired land. The said

Sh. Khem Chand was put into possession of the said plot of land on

08.02.1980 and a Perpetual Lease Deed dated 29.05.1980 was executed in

favour of Sh. Khem Chand with respect to the said plot of land. Sh. Khem

Chand in the year 1980 itself agreed to sell the said plot of land to the

petitioner herein and is informed to have, on receipt of the entire sale

consideration, put the petitioner herein into possession of the land.

However, no sale deed having been executed in favour of the petitioner, the

plot, in the records of the respondent DDA remained in the name of Sh.

Khem Chand only. The petitioner raised construction on the said plot of land

and of which Occupancy Certificate dated 17.02.1983 was issued by the

respondent DDA.

2. The respondent DDA vide letter dated 19.09.1984 informed Sh. Khem

Chand that the Perpetual Lease Deed dated 29.05.1980 executed in his

favour with respect to the aforesaid plot of land had been cancelled on

17.08.1984 upon withdrawal vide letter dated 07.07.1982 by the respondent

Delhi Administration of the earlier recommendation on the basis whereof the

plot was allotted. Proceedings under the Public Premises (Eviction of

Unauthorized Occupants) Act, 1971 were also commenced.

3. Sh. Khem Chand filed W.P.(C) No.2482/1984 in this Court

impugning the order cancelling the Lease Deed and for restraining

dispossession from the said plot of land. On 17.04.1985, the counsel for the

Delhi Administration informed this Court that the letter dated 07.07.1982

(withdrawing the recommendation for allotment of land in the name of Sh.

Khem Chand) had been withdrawn. This Court accordingly vide order dated

17.04.1985 in W.P.(C) No.2482/1984 held that the order dated 17.08.1984

of cancellation of lease which was based on the letter dated 07.07.1982

(which had been withdrawn) could also accordingly not survive and

disposed of the writ petition as infructuous. The order dated 17.04.1985 also

records the statement of the counsel for Delhi Administration that the

eligibility of Sh. Khem Chand had been determined for a plot of only 250 sq.

yds.; it was as such further ordered that as and when the said order

determining eligibility for 250 sq. yds. instead of 400 sq. yds. will be served

on Sh. Khem Chand, he will be at liberty to take appropriate proceedings

thereagainst in accordance with law. This Court further directed that

consequently, the proceedings initiated by respondent DDA under the Public

Premises Act will also stand withdrawn.

4. There is nothing to show that the petitioner to whom the plot stood

sold was aware of cancellation of lease or of filing of W.P.(C) No.2482/1984

by Sh. Khem Chand or order aforesaid therein. Rather, an application for

sanction of further construction was made (by the petitioner as attorney of

Khem Chand) and allowed and Occupancy Certificate dated 03.08.1985 with

respect thereto issued.

5. It transpires that the Delhi Administration thereafter determined the

eligibility of Sh. Khem Chand for alternative plot in lieu of acquired land for

250 sq. yds. only and since in accordance with the earlier recommendation,

determining the eligibility of Sh. Khem Chand for plot of 400 sq. yds., the

respondent DDA had allotted the plot aforesaid to Sh. Khem Chand and

further since Sh. Khem Chand was already in possession of the plot, the

respondent DDA regularized the allotment of the balance / excess 150 sq.

yds. in favour of Sh. Khem Chand subject to payment of `81,91,414/- being

the market price of the land. However there is nothing to show that Sh.

Khem Chand was informed or the basis of the said demand.

6. However even if Sh. Khem Chand was informed of the above, having

already sold the plot to the petitioner and there being no threat of

dispossession, no action was taken by Sh. Khem Chand also against his

eligibility being determined for 250 sq. yds. only and/or against the demand

of `81,91,414/- for regularizing balance 150 sq. yds. allotted to him. In fact

there is nothing to show that respondent DDA thereafter took any action in

the matter, neither for demanding / recovering the said sum of `81,91,414/-

or for cancellation of the lease with respect to the said 150 sq. yds. upon non

payment of the said amount.

7. The matter rested as such till the year 1997 when respondent DDA

vide letter dated 27.08.1997, in response to the application of the petitioner

for conversion of leasehold rights in the land underneath the property into

freehold in his own name in accordance with the policy of freehold

conversion then introduced by the respondent DDA, informed the petitioner

that his application for freehold conversion could not be considered since the

said sum of `81,91,414/- was outstanding as balance cost of the plot.

8. Upon the representations of the petitioner thereagainst not meeting

with any success, the petitioner earlier filed W.P.(C) No.3684/1998 in this

Court challenging the demand for `81,91,414/- and for directing the

respondent DDA to convert the leasehold rights in the land into freehold

without insisting upon payment thereof.

9. It is the case of the petitioner that he was not aware of the cancellation

aforesaid of the lease, of filing of W.P.(C) No.2482/1984 by Sh. Khem

Chand or of order therein. Accordingly, all the said facts were not

mentioned in W.P.(C) No.3684/1998. However, the respondent DDA in its

counter affidavit in the said writ petition disclosed the said facts. The said

W.P.(C) No.3684/1998 came up for disposal on 13.07.2004 when upon this

Court observing that the petitioner had not challenged the order of the Delhi

Administration reducing the entitlement of Sh. Khem Chand from 400 sq.

yds. to 250 sq. yds., the petitioner sought to withdraw that writ petition with

liberty to file a fresh petition challenging the said order also . The said writ

petition was accordingly, vide order dated 13.07.2004, dismissed as not

pressed with liberty to the petitioner to file a fresh comprehensive petition.

10. It is thereafter that the present petition has been filed. Notice of the

petition was issued. The petitioner was permitted to amend the writ petition.

Pleadings have been completed and the counsels have been heard.

11. Though the petitioner has in the petition sought quashing and setting

aside, also of the order dated 17.08.1984 of the respondent DDA revoking

the Perpetual Lease Deed dated 29.05.1980 with respect to the aforesaid plot

of land but as aforesaid, the said order was quashed vide the order dated

17.04.1985 in W.P.(C) No.2482/1984. It is not the case of respondent DDA

that thereafter any fresh order of cancellation of allotment / Lease Deed

dated 29.05.1980 or with respect to 150 sq. yds. conveyed in excess of the

entitlement of the petitioner, has been passed. It has as such been enquired

from the counsel for the respondent DDA as to how the respondent DDA

can today urge that Sh. Khem Chand and the petitioner as his successor, is

not entitled to the entire 400 sq. yds. conveyed vide Perpetual Lease Deed

dated 29.05.1980 which subsists. No answer has been forthcoming.

12. In my opinion, the writ petition is entitled to succeed on this ground

alone. Admittedly, title with respect to the entire 400 sq. yds. was conveyed.

Though the said title was sought to be revoked / cancelled on 17.08.1984 but

the said cancellation was set aside by this Court vide order dated 17.04.1985

in W.P.(C) No.2482/1984. Even though according to the respondents,

thereafter the eligibility of Sh. Khem Chand was determined for a plot of

250 sq. yds. only and the allotment / possession of the remaining 150 sq.

yds. was sought to be regularized by demanding `81,91,414/- as the price of

the excess 150 sq. yds. but no steps having been taken for cancellation of the

lease already in existence with respect to the entire 400 sq. yds. and which

Lease Deed records the payment of premium for the entire 400 sq. yds., Sh.

Khem Chand and the petitioner as his successor thus continue to have a

lawful title with respect to the entire 400 sq. yds. and without the respondent

DDA demonstrating to this Court that any steps were taken for altering the

Lease Deed, it cannot be said that the title with respect to the entire 400 sq.

yds. has ceased to exist.

13. In the circumstances, I am of the opinion that there is no need for this

Court to adjudicate the challenge to the order reducing the eligibility of Sh.

Khem Chand from 400 sq. yds. to 250 sq. yds. I may however notice that

this Court in Sh. Subhash Chandra Goel Vs. The Secretary, Delhi

Development Authority AIR 1985 Delhi 466 has held that withdrawal of a

recommendation for allotment of alternative plot in lieu of acquired land

after execution of Perpetual Lease Deed and after construction having been

raised on the plot so allotted and without prior notice, opportunity and

compensation, is illegal, opposed to rules of natural justice and barred by

promissory estoppel. The respondents from 1985 till 1997 maintained

quietus and did not take any steps whatsoever. The property could well nigh

have changed further hands in the interregnum. The respondents did not

take any steps whatsoever to change the allotment from that already made of

400 sq. yds. to 250 sq. yds. only or to revoke the title with respect to the

excess land. The respondents by their conduct have allowed the petitioner to

continue enjoying the property and are not only estopped from demanding

the amount but have no legal right to demand the same. Without the title of

Sh. Khem Chand to the entire 400 sq. yds. under the perpetual lease

aforesaid being revoked, it cannot be said that the petitioner as successor of

Sh. Khem Chand, is in possession of any extra land for which he is liable to

pay the demanded amount.

14. Even otherwise, it was Sh. Khem Chand who was best equipped to

contest the reduction of his eligibility for alternative plot from 400 sq. yds.

to 250 sq. yds. The petitioner who is a transferee from Sh. Khem Chand

cannot be expected to be in the full know of all the relevant facts in this

regard. The respondents have not produced before this Court any material to

show as to why eligibility of Sh. Khem Chand was earlier determined for a

plot of 400 sq. yds. and what were the reasons for alteration thereof. The

respondents ought to have got the matter adjudicated in 1984 itself but chose

to withdraw the letter dated 07.07.1982 of revocation of earlier

recommendation. The entire conduct of the respondents is found to be such

for which the petitioner cannot be made to suffer.

15. The Division Bench of this Court in DDA v. Jayshree Bagley

180(2011) DLT 39 where also the transferees from a person allotment in

whose favour stood cancelled, had been in possession for long without any

claim from the persons to whom allotment had been subsequently made,

held that no case for disturbing them was made out.

16. The petition therefore succeeds. The demand of the respondent DDA

of `81,91,414/- from the petitioner is struck down / quashed. The

respondent DDA is directed to on or before 31.12.2011 and subject to the

petitioner complying with the requisite formalities, convert the leasehold

rights in the land underneath the property into freehold without insisting

upon the petitioner paying the said sum of `81,91,414/- or any other amount

with respect to the excess land of 150 sq. yds. However, in the

circumstances, no order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) AUGUST 26, 2011/'gsr' (corrected and released on 8th September, 2011)