M/S Rajindra Iron Mart & Anr vs Dda & Anr.
2011 Latest Caselaw 3442 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of decision: 20th July, 2011
+                            W.P.(C) 6398/2008

         M/S RAJINDRA IRON MART & ANR               ..... Petitioners
                       Through: Mr. Maninder Singh, Sr. Adv. with
                                Mr. P.S. Bindra, Mr. Harish Sharma
                                & Mr. V. Mukerjee, Adv.
                                   Versus
         DDA & ANR.                                         ..... Respondents
                            Through:      Mr. P.K. Mittal & Mr. Manoj Sinha,
                                          Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may          Not necessary
         be allowed to see the judgment?

2.       To be referred to the reporter or not?             Not necessary

3.       Whether the judgment should be reported            Not necessary
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The then Ministry of Health & Family Planning and Works, Housing

& Urban Development had in or about the year 1970 floated the Scheme of

Large Scale Acquisition, Development and Disposal of Land. The said

Scheme inter alia provided for extension of concessions, relating to the

allotment of land at pre-determined rates to the industries in non-

conforming areas which had to be shifted to areas earmarked for the said

purpose, also to the owners/occupants of warehouses in the non-

conforming areas which had to be shifted to areas earmarked for that

purpose. The petitioner no.1 Firm, of which petitioner no.2 is the partner

claiming to be trading in Iron and Steel in wholesale from its office at

3482, Hauz Qazi, Delhi with warehousing activity at 31/3-D, Gali No.4,

Anand Parbat, New Delhi applied for allotment of an industrial plot and

was vide letter dated 29th September, 1970 of the respondent DDA

informed that it has been allotted Plot No.179 in Block-A in Okhla

Industrial Area, Phase-I, New Delhi, in the draw of lots held on 14th

September, 1970 and Allotment-cum-Demand letter dated 30 th October,

1970 was issued to the petitioner.

2. The petitioner was vide letter dated 10th / 23rd December, 1993 of the

respondent DDA informed that as per verification by Dy. Director of

Industries (Lands), no warehousing activity was found at 31/3-D, Gali

No.4, Anand Parbat, New Delhi where the petitioner had claimed to be

carrying on warehousing activity; the respondent DDA for the said reason

cancelled the allotment aforesaid to the petitioner and informed the

petitioner that the amount deposited by the petitioner for the said plot shall

be refunded in due course.

3. The petitioner represented against the aforesaid cancellation. The

respondent DDA vide its letter dated 6th August, 1996 requested the Dy.

Director, Industries (Lands) of the Office of the Commissioner of

Industries, Govt. of NCT of Delhi to conduct an inquiry on the basis of the

documents filed by the petitioner along with its representation and other

material, whether the petitioner had carried on the warehousing activities

from Anand Parbat or not.

4. The Dy. Director of Industries (Land) of the Govt. of NCT of Delhi

vide letter dated 10th December, 1996 to the respondent DDA informed

that the documents produced by the petitioner and which were mostly

official papers and should thus be prima facie accepted as correct and true

unless proved otherwise, prima facie indicated the presence of the

petitioner at an office at Hauz Qazi and at a unit/property in the Anand

Parbat area till the year 1991-92; the respondent DDA was as such asked to

consider the allotment on the basis of the said documents.

5. The respondent DDA thereafter made further inquiries from the

petitioner and ultimately the Director (Lands) of the DDA on 4 th April,

2000 recommended restoration of allotment to the petitioner to be

considered favourably.

6. It is the case of the petitioner that notwithstanding the aforesaid,

nothing further was done at the end of the respondent DDA and nothing

further communicated to the petitioner inspite of repeated requests and

reminders of the petitioner. The petitioner ultimately in response to an RTI

query was under cover of reply dated 12 th October, 2007 furnished a copy

of the order dated 11 th May, 2000 of the Lt. Governor, Delhi as the

Chairman of the respondent DDA refusing to accept the recommendation

dated 4th April, 2000 of the Director (Lands) for the reason that there was

"no strong evidence to show that the warehousing activity was carried out

at premises no.31/3D, Gali No.4, Anand Parbat, New Delhi" by the

petitioner and that the same was "also borne out in the report of the

Industries Deptt. of Govt. of Delhi."

7. Aggrieved therefrom the present petition was filed. Notice of the

petition was issued. The petition was dismissed vide order dated 21 st

August, 2009 for the reason that the petitioner between the years 2000 and

2007 did not send any written letter or communication to the respondent

DDA and the petition had been filed after eight years of the rejection dated

11th May, 2000 and was thus belated and suffered from laches. It was also

held that the representation against the cancellation communicated in the

year 1993 was made after 2½ years and the petitioner had admittedly

stopped the business activity from Anand Parbat in the year 1991-92. It

was thus held that the cancellation effected in the year 1993 was rightful.

8. The petitioner preferred an intra court appeal being LPA

No.510/2009 against the dismissal of the writ petition. The said appeal was

allowed on 1st December, 2009. It was held by the Division Bench that the

order dated 11th May, 2000 (supra) of the Lt. Governor, Delhi having not

been communicated to the petitioner and the petitioner having learnt of the

same only upon receipt of reply dated 12 th October, 2007 (supra), the

petition was not belated and did not suffer from laches. The writ petition

has as such been remanded for decision on merits.

9. Though a perusal of the order sheet does not show any interim relief

to have been granted qua the plot aforesaid but the senior counsel for the

petitioner has contended and the counsel for the respondent DDA has

confirmed that the aforesaid plot of land has been lying vacant and open

and has not been allotted by the respondent DDA to any other person.

10. The senior counsel for the petitioner has invited attention to the

verification carried out by the Directorate of Industries of the Govt. of

NCT of Delhi before the Land Allotment Advisory Committee of the Govt.

of NCT of Delhi recommended the name of the petitioner for allotment

under the Scheme aforesaid, of land at pre-determined rates.

11. The counsel for the respondent DDA has not controverted the

aforesaid document. The aforesaid document shows and as is to be

reasonably expected also, that the initial allotment to the petitioner was

also not merely on the asking but only after the authorities concerned had

satisfied themselves of the eligibility of the petitioner for allotment of land

under the Scheme aforesaid.

12. The senior counsel for the petitioner has also impugned the

cancellation of 1993 on the ground that the same was without issuing any

show cause notice and/or without any hearing. It is also contended that

reference in the order dated 11th May, 2000 of the Lt. Governor, Delhi to

the report of the Industries Department is inexplicable in as much as there

is no reference to any such report against the petitioner of the Industries

Department of the Govt. of NCT of Delhi, neither in the notice dated 10 th /

23rd December, 1993 issued to the petitioner nor in the recommendation

dated 4th April, 2000 of the Director (Lands) of the respondent DDA. It is

yet further contended that the respondent DDA in its counter affidavit has

stated that the said verification by the Industries Department was in the

year 1998. It is urged that no report of any such inspection has however

been produced. It is contended that once it is the stand of the petitioners

themselves that they had been compelled to close the warehouse at Anand

Parbat in the year 1991-92 for the reason of the same being a non-

conforming user, the inspection in the year 1998 was meaningless. It is

contended that the said reasoning amounts to malice in law as held in Smt.

S.R. Venkataraman v. Union of India (1979) 2 SCC 491. Reference is

also made to various documents including of the MCD produced by the

petitioners before the respondent DDA and Commissioner (Industries) and

which establish the existence of the premises/godown of the petitioner at

31/3-D, Gali No.4, Anand Parbat, New Delhi.

13. Per contra, the counsel for the respondent DDA has contended that

the arguments of the petitioner are misdirected. It is urged that the question

for determination is not whether the petitioner had a premises at Anand

Parbat (and which fact alone is proved from the documents produced and

relied upon by the petitioner) but whether the petitioner was having a

warehouse at the contemporaneous time. It is contended that the petitioner

has failed to produce any material whatsoever to show that it was

occupying any property at Anand Parbat as a warehouse at the

contemporaneous time. The counsel for the respondent DDA has taken me

through the various Income Tax Returns produced by the petitioner itself

to show that the annual turnover of the petitioner during the relevant time

was of `38,000/- and `7,000/-. It is contended that such low turnover itself

shows that the petitioner did not require any warehouse. It is yet further

contended that no document of registration under Delhi Shops and

Establishments Act,1954 or the Stock Register or documents of delivery or

release of goods from the said godown/warehouse or of incurring loading

and unloading charges have been produced. It is contended that the

averments in the petition also are vague. No date of actual closure of the

warehouse has been stated. It is further contended that the fact that the

petitioner waited from 2000 to 2008 itself shows that the petitioner was not

in the need of any godown and has filed the present petition only as a

speculator in immovable property.

14. I am unable to agree with the counsel for the respondent DDA. The

arguments of delay/laches/inaction on the part of the petitioner had on an

earlier occasion found favour with this Bench and the writ petition was

dismissed. However the said order was set aside by the Division Bench in

an intra court appeal and which judgment has attained finality and it is now

not open to the respondent DDA to at least before this Bench re-urge the

same contentions.

15. As aforesaid, the allotment in favour of the petitioner came to be

made pursuant to the land owning and allotting agencies satisfying

themselves of the eligibility of the petitioner for such allotment. Once the

authorities have held the petitioner to be eligible for allotment i.e having a

warehouse or carrying on warehousing activities in a non-conforming area

from where the petitioner was required to be shifted, the said decision

could not have been re-visited without a case of the petitioner, in the matter

of procuring such allotment, having practiced fraud having been

established. No such case has been made out. Such decisions if allowed to

be re-opened and re-visited, would give an unguided arbitrary power in the

hands of the officials to harass the applicants/allottees of land at their

whims and fancies. Nothing has been pleaded as to why the need arose for

a fresh verification in 1993 i.e. after nearly 23 years of the allotment of the

land to the petitioner in the year 1970. In fact it appears that it was the

respondent DDA which in the face of sea change in the property values

between the years 1970 and 1993 was desirous of cancelling allotments

earlier made and to re-allot the land to others.

16. Similarly once it is not disputed that the petitioner had a premises at

Anand Parbat, it was for the respondent DDA to, for effecting cancellation

plead and prove as to for what other purpose if not as a warehouse, the

premises were being used by the petitioner. No such plea has been taken.

17. As far as the argument of the documents produced by the petitioner

proving a low turnover is concerned, I may notice that it is also the

argument of the counsel for the respondent DDA that the land was allotted

dirt-cheap at `58 per sq. mtr. The turnover of the petitioner of the

contemporaneous time has to be measured with the same scale. Even

otherwise I have enquired from the counsel for the respondent DDA

whether to be eligible any minimum turnover was prescribed. The answer

is in the negative. Without the respondent DDA laying down any minimum

and the documents admittedly proving the petitioner to be a trader of Iron

& Steel and having a premises at Anand Parbat, the respondent DDA

cannot be permitted to deal with its customers and citizens in the manner

done.

18. The argument of non production of registration under Delhi Shops

and Establishments Act is also misconceived. The counsel for the

respondent DDA has been unable to show that any such registration was

required for a warehouse. A perusal of the provisions of Delhi Shops and

Establishments Act does not show that any such registration is necessary

for a godown.

19. As far as the plea of the petitioner not having produced any stock

registers, documents of incurring loading and unloading and transportation

charges etc. is concerned, admittedly the respondent DDA did not call

upon the petitioner to produce any of the said documents. Of course, the

counsel for the respondent DDA upon being so confronted has urged that

an opportunity be now given to the respondent DDA to hold such enquiry

with a direction to the petitioner to produce all documents in this regard.

However now after such long lapse of time, the respondent DDA cannot be

given a second chance. The respondent DDA has failed to act in

accordance with law and is found to have indulged in cancellation without

any basis. As aforesaid, without the respondent DDA having made out a

case of the petitioner having practiced any fraud, the earlier decision of the

year 1970 finding the petitioner eligible for allotment of land could not

have been re-opened/re-visited.

20. The counsel for the respondent DDA has lastly contended that the

petitioner having admittedly closed down the warehouse as far back as in

the year 1991-92 and it not being the plea of the petitioner that it is

carrying on the trade as of today, the petitioner is in any case not eligible

for allotment.

21. The aforesaid argument is also misconceived. The eligibility to be

tested was in or about the year 1970 and not as of today. The respondent

DDA cannot be heard to argue that the allotment is liable to be cancelled

for the reason of the allottee having stopped carrying on the business in

lieu of which the allotment was made. Once the allotment had been made,

it would thereafter be governed by the terms & conditions of allotment. If

the said terms & conditions permit more than one trade to be carried on the

land, the allottee would be entitled to change the use/business. It is not the

case of the respondent DDA that the petitioner under the terms of allotment

was required to continue carrying on the activity of warehousing and the

allotment was liable to be revoked upon the allottee ceasing to carry on the

said activity.

22. The Division Bench of this Court in judgment dated 1 st February,

2011 in LPA NO.764/2010 titled Vishwa Nath Gupta v. MCD, in relation

to allotments in Sanjay Gandhi Transport Nagar held that the relevant date

for determining eligibility is the date of inviting applications for allotment

and not any subsequent date. It was further held that if the applicant on the

relevant date was carrying on the business which made him eligible, the

factum of his activity in non-conforming area having subsequently ceased,

would be irrelevant.

23. The petition therefore succeeds and is allowed. The cancellation of

Plot No.179 in Block-A in Okhla Industrial Area, Phase-I, New Delhi in

favour of the petitioner no.1 is set aside/quashed. The respondents are

directed to forthwith within eight weeks of today do all acts, deeds and

things for restoring the allotment and possession of the plot to the

petitioner. I refrain from imposing any costs on the respondent DDA.

RAJIV SAHAI ENDLAW (JUDGE) JULY 20, 2011 pp (corrected and released on 28th July, 2011).