Delhi High Court

Bharatiya Janata Party & Anr. vs Uoi on 26 July, 2011

Author: Rajiv Sahai Endlaw

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of decision: 26th JULY, 2011

+                                W.P.(C) 2174/2008

           BHARATIYA JANATA PARTY & ANR.         ..... Petitioners
                       Through: Mr. Alok Kumar & Ms. Manisha A.
                                Narain, Advs.

                                         Versus
           UOI                                                 ..... Respondent
                              Through:      Mr. Mohit Auluck, Adv. for Mr.
                                            Neeraj Chaudhari, Adv
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 petition seeks mandamus to the respondent L&DO to deliver

possession of Plot No.1, Deen Dayal Upadhyay Marg, New Delhi to the

petitioner No.1. Though the writ petition also contains a prayer for a

mandamus directing the respondent to decide the representation of the

petitioner qua rate but the counsel for the petitioner has not made any

submissions thereon and states he does not press for the said relief.

2. The petitioner No.1 was vide letter dated 25th April, 2001 allotted a

plot of land ad-measuring 942.92 sq. mtrs. at a provisional premium of

`1,36,62,766/- and provisional ground rent of `3,41,570/- per annum to be

deposited within 45 days from the issuance of the letter and on the other

terms and conditions contained therein. The petitioner claims to have

deposited only a sum of `10,00,000/- with the respondent within 45 days of

issuance of the letter (supra) and made a representation to the respondent

regarding the rate of premium and ground rent. It was the plea of the

petitioner that the adjoining plot had been allotted to the Indian National

Congress (INC) at a premium of `14,14,405/- and annual ground rent of

`35,360/- only and thus the premium and the ground rent charged from the

petitioner was excessive. The said representation of the petitioner remained

under consideration as is borne out from the reply dated 29 th December,

2006 of the respondent to a query under the Right to Information Act, 2005.

The petitioner No.1 however on 8th May, 2007 deposited the balance

premium of `1,30,04,366/- and called upon the respondent to deliver

possession and upon the said demand remaining unfulfilled, filed the present

petition seeking delivery of possession of the plot.

3. Notice of the petition was issued. The respondent is stated to have

filed a counter affidavit. However the same is not found on record and copy

of the counter affidavit in the file of the counsel for the respondent has been

perused. The counsel for the respondent is directed to today itself place the

photocopy of the said counter affidavit on record.

4. The respondent in its counter affidavit has inter alia stated that the

difference in the premium and ground rent between the plot allotted to the

petitioner No.1 and the adjacent plot allotted to INC is owing to the date of

allotment. It is pleaded that while the allotment of adjacent plot to INC was

made as far back as in the year 1987, the allotment in favour of the petitioner

came to be made only in the year 2001. Else, it is contended that the

premium and ground rent have been computed on identical formula.

However, since the petitioner is not challenging the said aspect, need is not

felt to go into the said aspect. The respondent in its counter affidavit has

further contended that the petitioner No.1 was required to deposit the entire

premium within 45 days of issuance of the letter dated 25th April, 2001

(supra) and admittedly deposited the same after nearly six years in the year

2007 and without paying any interest for late payment. It is further

contended that on 5th February, 2009, a request had been received from the

petitioner No.1 for allotment of plots No.4&5 in lieu of the earlier allotted

plot No.1; that the said request of the petitioner No.1 was examined and

placed before the Land Allotment Steering Committee and which Committee

recommended allotment of the requested plots No.4&5 in lieu of earlier

allotted plot No.1. It is thus pleaded that the petitioner is now not entitled to

the possession of plot No.1. It is also pleaded in the additional affidavit filed

on behalf of the respondent that an allotment letter dated 12 th May, 2010 qua

plots No.4&5 has been issued to the petitioner.

5. Though no rejoinder / reply to the counter affidavit / additional

affidavit has been filed but the counsel for the petitioner has contended that

the petitioner had consented to the alternative plot on the terms contained in

the letter dated 5th February, 2009 (supra) and one of which terms was that

the petitioner "shall accept the alternative allotment of plots No.4&5 when

and after the encroachment thereon is removed" and peaceful and vacant

possession of the same can be given. It is further contended that the

proposal for alternative plot had in fact emanated from the then Urban

Development Minister, since it was felt that two major political parties

should not have their offices / buildings adjacent to each other. It is also

contended that the respondent had while making allotment of another plot on

the same road to another political party, got the similar encroachment as

existing on plots No.4&5 removed from that plot.

6. The counsel for the respondent has argued that the L&DO is merely a

land owning / allotting agency and does not have a machinery to clear the

encroachment.

7. Per contra, the counsel for the petitioner has argued that the petitioner

is willing to take either plot No.1 or plot Nos.4&5 if encroachment from the

latter is removed.

8. As far as the claim of the respondent of the petitioner having not paid

interest is concerned, admittedly no demand for interest has been raised as

yet. The occasion for raising the said demand for interest appears to have

not arisen owing to, after the petitioner having deposited the demanded

premium in 2007, the proposal for change having been under consideration.

Without any demand being raised, it is not deemed expedient to deal with

the said aspect and the said aspect is left open for adjudication if any dispute

survives with respect thereto.

9. I may notice that the allotment letter dated 25th April, 2001 with

respect to plot No.1 also provided that the encroachments if any will have to

be cleared by the allottee. The same Clause finds mention in the allotment

letter dated 12th May, 2010 qua the alternative plots No.4&5. The counsel

for the petitioner however states that while there is no encroachment on plot

No.1, there is encroachment on plots No.4&5. It is contended that the

petitioner had agreed to the change and / or agreed to accept the alternative

plot subject to the condition that the vacant possession of the plots No.4&5

shall be delivered. It is contended that now that the respondent has in the

allotment letter of 12th May, 2010 offered allotment of plots No.4&5 without

vacant possession, the same will not be acceptable to the petitioner.

10. A perusal of the letter dated 5th February, 2009 whereby the petitioner

had agreed to the alternative plot shows that the said proposal / offer /

agreement was conditional. The respondent could have either accepted the

same in toto or not and could not have accepted the same in part. The

respondent in the allotment letter with respect to plots No.4&5 having not

agreed to give vacant possession, it cannot be said that the rights of the

petitioner qua plot No.1 stand superseded or relinquished. The counsel for

the petitioner has also stated that the petitioner is willing to take either of the

two, plot No.1 or plots No.4&5. It is for the respondent to take a decision

thereon and if the respondent chooses to deliver possession of plots No.4&5,

they are obliged to deliver vacant possession thereof to the petitioner. I am

even otherwise of the opinion that the Government as the transferor of land,

particularly when the Government has reserved unto itself rights over major

tracts of land in the city, cannot offer land with encroachment and owes a

duty to deliver vacant and peaceful possession of the land allotted. It has

also come on record that the allotment aforesaid to the petitioner is in

pursuance of the right of the petitioner to such allotment recognized by the

respondent in an earlier writ petition being W.P.(C) No.4484/2006 preferred

by the petitioner.

11. This Court in Vardan Cooperative Group Housing Society Ltd. Vs.

DDA 129 (2006) DLT 278 held the DDA as the land allotting agency, being

obliged to remove the encroachments on the land and to ensure that the

allotted land is free from encumbrances. The Apex Court also in HUDA Vs.

A.K. Rampal (2005) 9 SCC 443 observed HUDA as the agency allotting the

plot which had been encroached upon and which was defective, to be under

obligation to allot some other plot or get the encroachment removed and

defects cured. Thus, the term in the allotment letter making the allottee

responsible for removing the encroachments himself is arbitrary and

contrary to law. Allotments of land by agencies such as Land and

Development Office (in the present case) are made only to those eligible for

allotment. It is unfair on the part of the L&DO to while fulfilling its said

obligation allot an encumbered or encroached upon land. There is

considerable merit in the contention of the counsel for the petitioner that

while the respondents have the State machinery available to them for

removal of encroachment, an allottee will have no option but to initiate long

drawn civil litigation. The same if permitted would make the allotment

illusory. The obligation of the respondent is to allot a land for utilization for

the allottee and not to allot litigation. The contention of the counsel for the

respondent that L&DO has no machinery to remove the encroachment is

fallacious. A visit to the official website of the L&DO describes "eviction

of squatters of Government Land" as function of the L&DO and "removal of

encroachment on such land" as a major activity of L&DO.

12. The writ petition is thus disposed of with the following directions:

(i) The respondent to on or before 31st October, 2011 put the

petitioner into vacant possession either of plot No.1 or of plots

No.4&5 (supra);

(ii) The respondent shall be entitled to before that date raise a

demand on the petitioner for whichever plot the respondent

decides to allot to the petitioner for the further amounts if any

claimed to be due with respect to either of the plots;