J.B.S. Chauhan & Ors. vs Uoi & Ors
2011 Latest Caselaw 907 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI
+                       WP(C) NO.19948-56/2005

%                                    Date of decision: 15th February, 2011


J.B.S. CHAUHAN & ORS.                                            ..... Petitioners
                          Through:      Mr. P. Chakraborty, Advocate

                                     Versus

UOI & ORS                                                      ..... Respondents
                          Through:      Mr. Yashish Chandra for
                                        Ms. Maninder Acharya, Advocate for MCD.
                                        Mr. Vinay Sabharwal and
                                        Ms. Neha Sabharwal, Advocate for R-3.


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 writ petition concerns price fixation with respect to plots of

land in J.J. Colony, Moti Bagh-II, New Delhi commonly known as Satya

Niketan, New Delhi. Plots of land admeasuring 80 sq. yds each were

allotted in the said colony by MCD, to relocate the squatters elsewhere on

public land, after their eviction therefrom. The said allottess under the

terms of their allotment were not entitled to transfer the said plots.

However they nevertheless transferred the plots so allotted to them and

executed agreement to sell, power of attorney etc with respect thereto.

The said illegal transferees represented to the various Governmental

agencies to grant leasehold rights with respect to the said plots in their

favour. On 11th October, 1972 a decision was taken that the 80 sq. yds.

plots, in the unauthorized occupation of persons to whom these plots were

passed on by the allottees under the garb of General Power of Attorney

executed by the original allottees, may be regularized by offering the said

plots on perpetual lease hold basis at the rate of 125/- per sq. yd. plus

penalty of 10% and annual ground rent at 2.5% of the premium from the

date of occupation and not from the date of regularization. Demand

notices in accordance with the said policy were issued to those in

unauthorized possession of the said plots.

2. Each of the 9 petitioners herein however were in possession of

more than one plot admeasuring 80 sq. yd. In the case of two of the

petitioners, demand letters on the aforesaid terms were issued with respect

to more than one plot; however the perpetual lease deed was executed for

one plot only of each of the petitioners and perpetual lease deed for more

than one plot was not executed.

3. The petitioners continued to represent for execution of lease deed in

their favour with respect to more than one plots in their possession also.

The Ministry of Urban Development, Government of India finally on 14th

October, 1992 decided that where the occupants were in possession of

more than one plot and had undertaken construction on the amalgamated

plots, lease deed may be issued provided the additional plot/plots are paid

for at the rates as notified by the Government. Demand for such

additional plot was made at the rate of Rs.10,500/- per sq. meter being the

notified market rate of the land. Not satisfied, the petitioners continued to

represent averring that they were entitled to execution of perpetual lease

with respect to more than one plot also at the rate of Rs.125/- per sq. yd.

only. Upon the said representations not meeting with any success, the

petitioners earlier filed WP(C) 1806/1996 in this Court seeking quashing

of the demand raised on them for the additional plots at the rate of

Rs.10,500/- per sq. meter and seeking a direction for execution of the

perpetual lease with respect to more than one plot also at the rate of

Rs.125/- per sq yd. The said writ petition was disposed of vide order

dated 28th July, 1999 with liberty to the petitioners to file further

documents with the respondents and with the direction to the respondents

to after affording a reasonable opportunity of hearing to the petitioners,

pass a speaking order on the demand of the petitioners.

4. The petitioners thereafter filed the present petition pleading that

inspite of the direction in the earlier writ petition, no order had been made;

however in view of the subsequent developments, rather than applying for

contempt, this second round of writ petition was being preferred for the

same relief i.e. for quashing of the demand notice of the year 1992 at the

rate of Rs.10,500/- per sq meter and for a direction to grant perpetual lease

of the additional plots also at the rate of Rs.125/- per sq yd only. The

subsequent events pleaded are of the formulation of the policy in the year

1992 of freehold conversion.

5. Notice of this petition was issued. On the averment of the

petitioners that they were being threatened with eviction from the

additional plot for non-payment of demand at the rate of Rs.10,500/- per

sq. meter, vide interim order dated 7th October, 2005 it was directed that

no punitive steps will be taken against the petitioners. The said order

continues to be in force. Pleadings have been completed and the counsels

have been heard.

6. The counsel for the petitioners with reference to the decision dated

11th October, 1972 (supra) has contended that the same did not prescribe

that the rate of Rs125/- per sq yd was for one plot only or that the rate

would be different for additional plot(s). It is further contended that the

respondents after having raised a demand for the additional plot also at the

rate of Rs.125/- per sq. yd. only, atleast against two of the petitioners, was

not entitled to grant perpetual lease hold rights with respect to only one

plot at the said rate. It is contended that the order dated 14th October,

1992 (supra) changes the order dated 11 th October, 1972 and which could

not have been done. It is yet further contended in the alternative that the

market rates qua additional plot could only relate to the year 1972 and

could not be of 1992 when the decision qua the second plot was taken.

Challenge is lastly made to the rate of Rs.10,500/- per sq. meter for

additional plots and it is contended that the said rate is for more posh and

better situated colonies with better amenities and could not be applied to

resettlement colony of Satya Niketan.

7. The counsel for the respondent no.3 Slum and JJ Department, of the

MCD at the time of filing of this petition and earlier of the DDA and now

succeeded by the Delhi Urban Shelter Improvement Board, has referred to

the Delhi Development Authority(Disposal of Developed Nazul Land)

Rules, 1981 (Nazul Rules), particularly to Rule 6(v) and Rule 17. On

inquiry as to how the said Rules are applicable, it is argued that the

petitioners themselves have in the petition relied upon the said Rules as

being applicable to the land in question. It is further informed that at the

time of allotment of the plots in Satya Niketan and also at the time of the

decision to regularize the trespassers/unauthorized occupants thereof, the

Slum and JJ Department which did the allotment and regularization, was

of the DDA. It is contended that the respondents were entitled to demand

Rs.10,500/- per sq meter for the additional plot.

8. It is not in dispute that the petitioners had no right to the said plots

and came into occupation thereof by an illegality, in violation of the terms

of allotment of the said plots and without any title with respect thereto.

The respondents were thus within their rights to evict the petitioners from

the said plots, without being liable for payment of any compensation to

the petitioners. The respondents however on 11th October, 1972, on

representation of the unauthorized occupants of the said colony decided to

regularize their occupation by offering perpetual lease hold rights on

terms aforesaid. I am unable to accept the contention of the petitioners

that the decision of 1972 was applicable qua more than one plot also in

occupation of one person. The petitioners have not been able to show any

representation of prior to the decision of 1972, where the respondents

were informed that any of the persons were in occupation of more than

one plot. As aforesaid, the decision of 1972 was not one which the

respondents were obligated to take. Rather the respondents were

obligated to remove the illegal encroachers on the land allotted at

concessional rates to relocate squatters on public land. The decision of

1972 was a welfare measure intended to give benefit to those who were

otherwise in breach of law.

9. The proposal/offer given to the unauthorized occupants of the

colony was of creation of leasehold rights. Such perpetual lease hold

rights under Rule 17(supra) could not have been created with respect to

more than one plot. The DDA or the Government of India while granting

perpetual lease hold rights with respect to the residential plots always

inserts a condition therein (under Rule 17) to the effect that only those

individuals who neither in their own name nor in the name of their spouse

or dependent children hold perpetual lease hold rights with respect to any

residential plots are eligible therefor. The decision of 1972 could not have

been and cannot be interpreted to be in violation of the said Rules.

10. There is thus no iota of doubt that the decision of 1972 applied to

only a single plot in the name of each occupant and did not apply with

respect to more than one plot with any one unauthorized occupant or in

occupation of any unauthorized occupant. No error thus can be found in

the action of the respondents of granting perpetual lease hold rights in

favour of each of the petitioners with respect to only one plot in their

occupation and denying lease hold rights with respect to the additional

plot(s).

11. During the hearing I have wondered whether the decision of 1992

to grant lease hold rights with respect to additional plots on payment of

market rate, determined of Rs.10,500/- per sq. meter can stand in the light

of Rule 17(supra) and whether the petitioners are liable to be necessarily

evicted from more than one plot in their occupation. However, a perusal

of the decision of 1992 shows that the same was taken because it was felt

that the additional plot(s) had been amalgamated with the first plot and

construction had been raised on the amalgamated plots and in view of the

difficulty likely to arise in enforcing eviction from such additional plot(s).

12. The only question which thus arises is as to whether the

respondents were entitled to claim a higher price with respect to the

additional plot.

13. The petitioners as aforesaid did not have any right with respect to

even one plot lest additional plot(s). The Supreme Court in Premji Bhai

Parmar Vs. Delhi Development Authority (1980) 2 SCC 129 and in Shri

Sitaram Sugar Company Limited Vs. Union of India 1990 (3) SCC 223

has held that it is not the function of the Court to sit in judgment and

interfere in price fixation matters or over such matters of economic policy

and it must be left to the Government to decide the same.

14. This Court also in Jaipur Golden Charitable Clinical Laboratory

Trust Vs. Delhi Development Authority 105 (2003) DLT 277 held that

the notified rates are binding and the final authority to fix the rates for

allotment of land is the allotting agency. The Division Bench while

dismissing the appeal vide judgment dated 9th December, 2009 in LPA

82/2003 reported as MANU/DE/3305/2009 held that no question of

estoppel arose. In Meerut Development Authority Vs. Association of

Management Studies (2009) 6 SCC 171 it was held that disposal of

public property by the State or its instrumentalities partakes the character

of a Trust and the Government cannot give a contract or sell or lease out

its property for a consideration less than the optimum.

15. In so far as the argument that the market rate with respect to the

second plot ought to have been fixed at the level of 1972 and not of 1992

is concerned, as aforesaid, the decision in 1972 was for regularization of

only a single plot. It was only in 1992 that the representation of the

petitioners for regularizing the unauthorized occupation of additional plots

also was acceded to. The Full Bench of this Court in Ramanand Vs.

Union of India 1993(26) DRJ 594 has held that it is the premium

calculated at the time prevailing when firm offer of allotment is made by

DDA that would properly constitute the consideration for concluding a

valid contract between the parties. Thus, the contention of the petitioners

that the market price as prevailing in 1972 ought to have been taken also

has no legs. In 1972 no rights in favour of the petitioners with respect to

the additional plots were created.

16. The petitioners are also not found entitled to challenge the rate of

Rs.10,500/- per sq meter. The Supreme Court in DDA Vs. Pushpender

Kumar Jain 1994 Supplement (3) SCC 494 held that in case the allottee is

not willing to take or accept the allotment at the rates, it is always open to

him to decline the allotment and the price of land prevailing at the time of

communication of the letter of allotment is the rate payable by the allottee.

17. There is thus no merit in the petition. The counsel for the

petitioners at the fag end of the hearing has stated that if the petition is

dismissed, the petitioners would pay at the rate of Rs.10,500/- per sq

meter. In view of the said statement, it is deemed appropriate to clarify

further. The petitioners by continuing to represent since 1992 i.e. for the

last over 18 years, have delayed the payment. Now after 18 years they

cannot be permitted to pay Rs.10,500/- per sq. meter only. If the same

were to be permitted, the petitioners even though losing in this writ

petition would still be the winners, having enjoyed the monies, which

would have gone out of their pocket 18 years ago, till date. It is thus

clarified that the respondents, in accordance with their policy, for the

delay in payment, shall be entitled to either charge interest or claim the

prevalent market rates for executing perpetual lease deeds of additional

plot(s). Upon the failure of the petitioners or any of them to make

payment of the entire amount within eight weeks from today, the

respondents shall be entitled to proceed for eviction of the petitioners.

The petition is otherwise dismissed with costs of Rs.20,000/-.

RAJIV SAHAI ENDLAW (JUDGE) 15th February, 2011 M..