Society For Employment & Career ... vs The Chairman, Delhi Development ...
2011 Latest Caselaw 2845 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                               Reserved on : 13.05.2011
%                                                         Date of decision : 27.05.2011


+                               LPA No. 1095 of 2006


SOCIETY FOR EMPLOYMENT & CAREER COUNSELLING (REGD.)
     ...    ...   ...   ...    ...    ...   ...   ...    ...APPELLANT

                                Through:        Ms. Geeta Luthra, Sr. Advocate
                                                with Mr. Sanjeev Sahai &
                                                Mr. Shivkant Arora, Advocates.

                                     -VERSUS-

THE CHAIRMAN, DELHI DEVELOPMENT AUTHORITY & ORS.
     ... ...    ...    ...    ...   ...    ...   ...    ..RESPONDENT

                                Through:        Mr. Rajiv Bansal with
                                                Mr. Abhir Datt & Ms. Razia Ali,
                                                Advocates for R - 1 & 2 / DDA.
                                                None for R - 3 / UOI.

CORAM:

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL

HON‟BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?                   NO
2.        To be referred to Reporter or not?                    NO
3.        Whether the judgment should be                        NO
          reported in the Digest?

SANJAY KISHAN KAUL, J.

1. A number of educational institutions filed writ petitions under Article

226 of the Constitution of India before this Court aggrieved by the non-

allotment of land to them at pre-determined rates under the Delhi

_____________________________________________________________________________________________

Development Authority (Disposal of Developed Nazul Land) Rules,

1981 (hereinafter referred to as the „said Rules‟). Such petitioners

included higher and technical institutes, schools and even hospitals.

The common case made out was that their applications for allotment of

Nazul land at pre-determined rates was at advanced stage after due

clearance but on the eve of proposed allotment the policy was changed

and the land was now sought to be disposed of only by way of public

auction, which would imply much higher rates rather than the pre-

determined rates.

2. We may note at this stage that the said Rules have seen various

amendments, i.e. the position prevalent prior to 2002, amendments

made effective from 5.7.2002, amendments made effective from

9.12.2004 and amendments made effective from 19.4.2006. The said

Rules have been framed under the Delhi Development Act, 1957

(hereinafter referred to as the „said Act‟) and Section 22 of the said Act

provides for the developed and un-developed land in Delhi to be placed

at the disposal of the DDA by the Central Government, which is known

as Nazul land.

3. We may add that the last amendment to the said Rules was carried out

post the judgement rendered by the learned single Judge of this Court,

which has been impugned in the present LPA since the policy decision

taken by the DDA on 15.12.2003 to dispose of Nazul land only by

auction was held contrary to Rule 5 of the said Rules and was, thus,

declared illegal and void. The lacuna found in the said Rules by the said

judgement whereby societies registered under the Societies Registration

Act were not to be covered by the policy decision of 15.12.2003 was

sought to be got over by the last set of amendments.

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4. The challenge laid to the last set of amendments made effective from

19.4.2006 has been repelled by this Court in WP (C) No.2459-60/2005

titled Bhagwan Mahavir Education Society (Regd.) & Anr. Vs. DDA &

Ors. & other connected matters decided on 25.3.2011. It has been held

that under the existing Rules, it is the mode of auction which is

available for disposal of the Nazul land for higher and technical

education institutes, schools and hospitals other than cases which fall

within the domain of Rule 5 read with Rule 20 of the said Rules and the

petitioners therein did not fall in that category.

5. We had recorded in our order dated 5.5.2011 that the challenge laid by

the DDA to the impugned judgement in LPA Nos.1114/2006,

1115/2006, 1117/2006, 1118/2006, 1123/2006, 1125/2006, 1640/2006,

1642/2006, 1646/2006, 1647/2006 was withdrawn by the counsel for the

DDA as in his view our judgement in Bhagwan Mahavir Education

Society (Regd.) & Anr. Vs. DDA & Ors. & other connected matters

(supra) protected the interest of the DDA. In fact, other LPAs filed by

private parties also stand withdrawn.

6. The appellant herein being one of the original petitioners is, however,

aggrieved by some part of the observations and directions in the

impugned judgment dated 17.04.2006. It is the case of the appellant

that the allotment in its favour already stood approved by the competent

authority in June, 2004 and, thus, contend that the observations made in

para 46 of the impugned judgment that the petitioners would be entitled

to be considered for allotment cannot apply to the case of the appellant

as it would amount to relegating the appellant to an original position of

fresh consideration para materia to other cases while the distinguishing

feature in the case of the appellant is that unlike the other cases where _____________________________________________________________________________________________

no consideration had taken place during the tenure of the old policy

prior to 09.12.2004, the formal offer of allotment was made to the

appellant on 07.07.2004.

7. The second limb of the appellant‟s case is that there was discriminatory

and mala fide conduct of the Lieutenant Governor (i.e., Chairman,

DDA), who kept the file of the appellant in abeyance for an indefinite

period without taking any decision on the same at different periods of

time - 7 months between September, 2001 to April, 2002; 17 months

between May, 2002 to September, 2003; and again 7 months between

November, 2003 to June, 2004 while approving allotments to other

applicants during the same period of time. The appellant, thus, claims a

vested right to the allotment of plot No. 50 (B & C), Tughlakabad

Institutional Area such right having arisen in September, 2001 prior to

the new policy of the DDA dated 09.12.2004, when the Vice-Chairman,

DDA had taken a decision for allotment of 1,479 sq. mtrs. of plot

against the minimum requirement of appellant of 2,000 sq. mtrs.

8. The appellant also relies upon a letter dated 07.07.1994 of the DDA,

which is stated to be an allotment letter and is in the following terms:-

                "No. F.12(50/96/1L/3098                         Dated 7/7/04

                To,

                        The Director,
                        New Delhi Institute of Management,
                        60 - 61, Tughlakabad Institutional Area,
                        New Delhi - 110 062.

Sub : Allotment of land for Management Institute.

Sir,

With regard to your pending request for allotment of 1,479 sq.mt. of land in Tughlakabad Institutional Area, you are requested to get us a confirmation from the AICTE whether they

_____________________________________________________________________________________________

have no objection to the allotment of 1,479 sq.mt. of land for the above purpose as per prescribed norms.

Yours faithfully,

Sd/- (Manish Gard) Deputy Director (IL) DDA

Copy to :

The Secretary, All India Council for Technical Education, Indira Gandhi Indoor Stadium, New Delhi."

9. Learned senior counsel for the appellant faced with the judgment in

Bhagwan Mahavir Education Society (Regd.) & Anr. Vs. DDA & Ors.‟s

& connected matters (supra) sought to distinguish the present case on its

own facts mentioned aforesaid to contend that despite the said

judgement, the appellant herein would be entitled to the plot. The

factual basis for the same is set out hereinafter. The appellant claims to

be a registered society under the Societies Registration Act, 1860

carrying on educational and social welfare activities from its 2,000 sq.

mtrs. of land allotted under a sponsorship in 1996/1999 at Tughlakabad

Institutional Area. In 1996, the appellant society started a Management

Institute from the same land in addition to its educational and social

welfare activities with the approval of the then Delhi Govt. (now, the

Govt. of NCT of Delhi) simultaneously applying for a separate

allotment of land for the Management Institute. It is the case of the

appellant that it was entitled to allotment of 4,000 sq. mtrs. of land for

the Management Institute. However, the Govt. of NCT of Delhi took a

decision in November, 2000 to allot only 2,000 sq. mtrs. of land on the

assurance that this land shall be allotted adjoining to the land of the

appellant so that the total land area in one location became 4,000 sq.

mtrs. to comply with the All India Council for Technical Education (for

_____________________________________________________________________________________________

short, „AICTE‟) norms. It is in these circumstances that plot No. 50 (B

& C) located nearest to the existing land of the appellant was

recommended by the DDA‟s Planning Department and the Institutional

Allotment Committee on 28.08.2001, which was approved by the

Commissioner (Lands Disposal) and the Vice-Chairman, DDA in

September, 2001. However, this land allotment was reduced to 1,479

sq. mtrs. on the assurance that this plot had to be necessarily allotted to

the appellant adjoining to the existing land and it was thereafter that the

file was sent for formal approval of the Chairman, DDA being the

Lieutenant Governor in September, 2001. The file, however, is stated to

have remained pending for one reason or the other up to June, 2004

when the DDA sent a letter dated 07.07.2004 to the appellant to furnish

confirmation and no objection to the allotment of AICTE. The AICTE

issued a letter dated 12.07.2004, which was handed over to the DDA on

15.07.2004, but the allotment was not made.

10. An important development, which took place during the pendency of the

appeal, was that the plot in question was put to auction on 06.03.2006

during the pendency of the writ petition before the learned Single Judge.

It is the case of the appellant that purchase of the plot in the auction was

a necessity as the appellant had taken a confirmation for allotment of

this plot from AICTE at the instance of the DDA in terms of the letter

dated 07.07.2004. The petitioner participated in the auction with leave

of the Court and was the successful bidder and obtained possession of

the plot on payment of the price under directions of the learned Single

Judge. This was, however, without prejudice to the entitlement of the

petitioner (appellant herein) for refund of the auction money, if the

petitioner succeeded in the writ petition. Thus, though the appellant is _____________________________________________________________________________________________

enjoying the additional land, the effective relief which the appellant now

claims is that it is not the auction rates, which would apply to the

appellant, but the pre-determined rates and, thus, the appellant is entitled

to the refund of the differential of the two amounts.

11. Learned counsel for the appellant in the written synopsis has sought to

build a case on parity with the allotment made to Lal Bahadur Shastri

Institute of Management, whose allotment was stated to have been

rejected on 11.07.2003, but re-activated on a new request made on

23.12.2003, though the policy decision providing the relevant cut-off

date is 15.12.2003. The allotment was made on 29.11.2004 on the plea

that additional land had to be allotted for completing the minimum land

requirements at one place as per the AICTE norms. This is stated to be

an identical position to that of the appellant as the appellant was allotted

1,479 sq. mtrs. of land in addition to the earlier allotment to complete

the minimum land norms as per the AICTE requirements and the noting

files are also stated to substantiate the parity of the two cases.

12. The second limb of the submission of learned counsel for the appellant

is predicated on the aforesaid unexplained delay on the part of the

Chairman, DDA when questions were raised from time to time. The

petitioner claims by relying on the judgment of S.B. International Ltd.

& Ors. Vs. Assistant Director General of Foreign Trade & Ors., (1996)

2 SCC 439 = AIR 1996 SC 2921 that the delay should not prejudice the

appellant, who should be entitled to the allotment as per the then

prevalent norms. These recommendations are stated to have been made

by three different Vice-Chairmen, DDA in favour of the appellant. The

allegations in the petition have been made qua the Chairman, DDA of

discrimination and mala fide and communications were also addressed _____________________________________________________________________________________________

to the Prime Minister by Justice Sarkaria vide his letter dated

24.07.2004. It is submitted that these pleadings are sufficient to

establish at least „legal malice‟ as enunciated in HMT Ltd. represented

by its Dy. General Manager (HRM) & Anr. v. Mudappa & Ors., (2007)

9 SCC 768 where „legal malice‟ has been defined as "an act done

wrongly and willfully without reasonable or probable cause and not

necessarily an act done from ill-will and spite". It is the deliberate act

in disregard of the rights of others. Similarly in Smt. S.R.

Venkataraman Vs. Union of India & Anr., (1979) 1 L.L.J. 25 (SC)

„malice‟ in its legal sense was held to mean "doing of a wrongful act

intentionally without just cause of excuse or for want of a reasonable or

probably cause". In Pilling Vs. Abergele Urban District Council,

(1950) 1 KB 636, it was observed that if a discretionary power has been

exercised for an unauthorized purpose, it is generally immaterial

whether its repository was acting in good faith or in bad faith. A further

limb of this line of submission is that a legitimate expectation was

created in favour of the appellant when the DDA took a decision to

reduce the appellant‟s entitlement from 4,000 to 2,000 sq. mtrs. of land

in November, 2000 and when an assurance was made that the land

would be allotted adjacent to the land of the appellant. The consent of

the appellant was also taken for reduction of allotment from 2,000 sq.

mtrs. to 1,479.44 sq. mtrs. of land and on 07.07.2004, the appellant was

asked to obtain confirmation / no objection from AICTE. The appellant

claims to have acted in pursuance to the said communication by not

only obtaining the clearance from AICTE, but constructed 521 sq. mtrs.

additional space in the form of porta cabins on their existing land to

meet the deficient allotment to satisfy the minimum 2,000 sq. mtrs. _____________________________________________________________________________________________

norm of AICTE. Learned counsel has referred to the observations in

Eros City Developers Private Limited Vs. State of Haryana & Ors., CL-

(2008-2) PLR 492 in support of the plea of legal malice and legitimate

expectation where in para 31, it was observed as under :-

"31. We are further of the view that impugned notifications in the present case also suffer from legal malice. The petitioner- company having been given permission for change of land use and laying of approach road by the respondents has not been treated fairly by the respondents. In pursuance to the permission granted to the petitioner-company, it has deposited huge amount. Orders have also been passed by Hon‟ble the Supreme Court in favour of the petitioner-company. The petitioner- company has also levelled the land by removing hillocks and filling pits. The exercise of power of acquisition in such circumstances must be held to suffer from malice in law. In the case of State of Punjab v. Gurdial Singh, [1980] 1 SCR 1071, acquisition of land for construction of grain market was challenged on the ground of legal malice. Hon‟ble the Supreme Court has sustained the challenge and proceeded to explain the legal mala fide, which reads thus:

Pithily put, bad faith which invalidates the exercise of power - sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfactions - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated: "I repeat...that all power is a trust - that we are accountable for its exercise - that, from the people, and for the people, all springs, and all must exist.

The aforementioned observations have been approved by Hon'ble the Supreme Court in the case of Raja Ram Jaiswal (supra)."

13. Learned counsel for the appellant contended that the communication of

the DDA dated 07.07.2004 was really in the nature of an offer of _____________________________________________________________________________________________

allotment and, thus, gave rise to a legitimate expectation that the

allotment would be made in its favour even though it was to obtain a

NOC from AICTE. Thus, the DDA cannot be permitted to do a volte

face and as an after-thought deny the appellant its legitimate rights.

14. Learned counsel read through the file notings made in the case of the

appellant to substantiate the aforesaid plea of undue delay and legal

malice.

15. On the other hand, learned counsel for DDA submits that the judgment

of this Court in Bhagwan Mahavir Education Society (Regd.) & Anr.

Vs. DDA & Ors.‟s & connected matters (supra) would govern the case

of the appellant also.

16. Learned counsel sought to distinguish the case of Lal Bahadur Shastri

Institute of Management of which details were submitted in another

connected LPA No. 1781/2006 titled „Mother Teresa Institute of

Management (Regd.) v. DDA‟ in which judgment has been rendered by

us today. The demand-cum-allotment letter is stated to have been

issued on 22.11.2002 in the said case and only physical possession was

handed over on 29.12.2003 qua 3,000 sq. mtrs. of land. The Institute

vide letter dated 06.01.2003 had, in the meantime, requested for

allotment of 1 acre (4046 sq. mtrs. of land) and the Lieutenant Governor

vide letter dated 14.01.2003 had agreed to allotment of 1 acre. Thus, the

matter was processed for allotment of additional land of 1,000 sq. mtrs.,

which was allotted from the adjoining plot and the proposal was

approved by the Lieutenant Governor on 29.11.2004. In the case of the

appellant, it is stated that there was already a functioning Institute and

fresh allotment of land was claimed for the Management Institute. It is

only to meet the AICTE requirements, in the absence of availability of _____________________________________________________________________________________________

the requisite land, that the allotment of land next to the existing land

was sought to be examined. Thus, it was a case of fresh allotment,

though adjacent to the existing land of the appellant and not in that

sense, a case of additional allotment of land. Learned counsel has

strongly rebutted the arguments of any deliberate delay by keeping the

file of the appellant in abeyance. The notings and movement of the file

show that various queries were raised and due precaution was liable to

be taken where there is distribution of State largesse through allotment

of land at pre-determined rates. A chart has been given setting out the

movement of the file to substantiate the plea that there was continuous

movement in the file, which is as under :-

Date Details of the Event

12.09.1996 Appellant applied for the Allotment of land for New Delhi Institute of Management under the Nazul Rules Oct / Nov Respondent DDA confirmed availability of 2000 land/plots in Tughlakabad through Department of Technical Education, Govt. of Delhi Dec, 2000 Director, Department of Technical Education, Govt. of Delhi offered 2000 sq.m land adjacent to the existing land of the Society instead of 4000 sq.m.

22.12.2000 Appellant gave an undertaking to the Director, Department of Technical Education, Govt. of Delhi about willingness to accept 2000 sq,m of land which was communicated to the Respondent DDA 28.08.2001 Institutional Allotment Committee (IAC) of DDA decided to recommend 1479 sq. m of land Dec 2001 After a gap of 3 months, Appellant consented to the offer of allotment of 1479 sq.m of land.

Commissioner (Lands) of DDA on behalf of the LG collected required information 28.09.2001 Proposal for allotment of land was put up 21.03.2002 before the LG 15.04.2002 LG sought report on the SC/ST activities of the Society which was a necessary process of inquiry keeping in mind the purpose of _____________________________________________________________________________________________

allotment of land for the upliftment of the backward sections of the society 24.04.2002 VC sent his report stating that the Appellant Society has been declared as a National Level NGO by the Government for contributing in the filed of SC/ST welfare 17.03.2003 The file was handed over to the VC and the LG requested the VC to examine and advise in the present matter 13.05.2003 The matter was again put up before the LG. It was observed by the LG that after 1999, for the last three years, Appellant has not applied for grant in aid from Government of India.

Also that the Appellant made an Affidavit stating that they would be running only GGS Indraprastha courses April to Several information was sought by DDA on August i. the agreement entered into by the 2003 Appellant and GGS Indraprastha and the affidavit signed by the Appellant ii. from the Department of Social Welfare Government of NCT, Delhi regarding grants in aid received by the Appellant for the last three years 04.09.2003 LG asked the Vice Chairman to take a view on gathered information 19.09.2003 Clarification sought from the Appellant regarding the signing of Affidavit by Appellant for running only GGS Indraprastha courses and not receiving grants from Department of Social Welfare Government of NCT, Delhi for last three years Oct, 2003 Appellant furnished information along with the details of such information, File was submitted by Director (Lands) to LG 15.12.2003 DDA policy decision taken whereby allotment of land would be made by way of auction 07.07.2004 Letter by Respondent DDA to enquire whether AICTE would have any objection to the allotment of 1479 sq.m of land instead of the prescribed 2000 sq.m land required for higher/technical institutes set up by registered societies 12.07.2004 AICTE conveyed no objection to the offered land of 1479 sq.m subject to the Appellant fulfilling the requirement of 2000 sq.m of land by constructing 521 sq.m of additional space 13.10.2004 Appellant filed Writ Petition No. 16691-

92/2004

_____________________________________________________________________________________________

17. Learned counsel has drawn the attention of this Court to the fact that

there are no specific averments against the then Lieutenant Governor

other than the general allegations of mala fide, while malice in law must

be specifically pleaded and proved. There cannot be a general

allegation that the Lieutenant Governor harboured malice towards the

appellant. Learned counsel has referred to the Law Lexicon by P.

Ramanthan Iyer where „malice in law‟ is defined as, "a depraved

inclination on the part of a person to disregard the rights of others,

which intent is manifested by his injurious acts".

18. Insofar as the letter dated 07.07.2004 is concerned, it is stated that to be

merely a requirement of obtaining the consent of AICTE in the form of

a no objection to allotment of 1,479 sq. mtrs. of land instead of

prescribed 2,000 sq. mtrs. of land, but not an allotment itself.

19. We have given our thoughtful consideration to the matter in issue,

especially keeping in mind the judgement already rendered by us in

Bhagwan Mahavir Education Society (Regd.) & Anr. Vs. DDA & Ors.‟s

& connected matters (supra).

20. The case of the appellant is predicated firstly on a plea of allotment,

which is stated to be discernable from the letter dated 07.07.2004. We

have already reproduced the contents of the said letter so that it can be

appreciated. There is no doubt that the language of the said letter makes

it clear that it is only a communication to the appellant to obtain a no

objection from AICTE for allotment of 1,479 sq. mtrs. of land instead of

prescribed 2,000 sq. mtrs. of land. It is not an allotment by itself, but at

best, can be treated as a prelude to a possible allotment. This letter does

not, thus, help the appellant so as to take the case out of the purview of

_____________________________________________________________________________________________

our judgment in Bhagwan Mahavir Education Society (Regd.) & Anr.

Vs. DDA & Ors.‟s & connected matters (supra).

21. Now, turning to the plea of the appellant of an undue delay and, thus,

entitlement to the appellant of the land as per the then prevalent policy,

especially taking into consideration the observations of the Supreme

Court in S.B. International Ltd. & Ors.‟s case (supra). We have already

observed aforesaid that the letter dated 07.07.2004 does not constitute

an allotment. There is nothing else on the original record, which we

have perused carefully, to show any decision of allotment by the

Lieutenant Governor. Insofar as the case for allotment in question of

the appellant is concerned, the appellant was allotted 2,000 sq. mtrs. of

land earlier for a different objective. It is the proposed setting up of the

Management School which gave rise to the appellant making a request

for allotment of 4,000 sq. mtrs. of land, which was processed for

allotment of 2,000 sq. mtrs. of land possibly in view of scarcity of land.

The Institutional Allotment Committee, however, recommended

allotment of only 1,479 sq. mtrs. of land vide its decision dated

28.08.2001, which was acceptable to the appellant vide a

communication made after three months. We may hasten to add that the

decision of the Institutional Allotment Committee is only

recommendatory in nature as the Committee is to aid and assist the

Lieutenant Governor in making allotment of land. The Lieutenant

Governor wanted to verify the antecedents of the appellant insofar as its

earlier activities were concerned as it was already running an Institute.

This is apparent from the notings of 15.04.2002. Thereafter, requisite

information was sought and the Lieutenant Governor asked the Vice-

Chairman, DDA to look into the matter and opine on the same. It is _____________________________________________________________________________________________

after such opinion that the matter was again put up before the Lieutenant

Governor on 13.05.2003 and it was found that after 1999, the appellant

had not applied for Grants-in-Aid from the Government of India and

they had given an affidavit stating that they would be running only Guru

Gobind Singh Indraprastha University Courses. The information was,

thus, sought from the DDA about the agreement between the appellant

and the GGS Indraprastha University as also the affidavit affirmed by

the appellant and from the Department of Social Welfare, Govt. of NCT

of Delhi regarding Grants-in-Aid received by the appellant for the last 3

years. This process took place between April, 2003 to August, 2003 and

the Lieutenant Governor on 04.09.2003 asked the Vice-Chairman, DDA

to take a view on the gathered information. A clarification was also

sought from the appellant, which was furnished in October, 2003 and on

15.12.2003, the crucial policy decision was taken to make allotment

only through the auction mode. The aforesaid sequence of facts show

that there had been various queries raised by the Lieutenant Governor,

which cannot be said to be irrelevant and not germane to the important

aspect like the allotment of land at concessional (pre-determined) rates.

No doubt, there has been extra time taken at stages, but there is no such

inordinate delay in processing such a case as to give vested right to the

appellant to get allotment of land.

22. We cannot lose sight of another aspect of the matter arising from the

nature of right claimed, i.e., the right is for allotment of land at

concessional rates. It is not a right to carry on any business, which is at

the cost of the businessmen and there had been delay in licence as in the

case of S.B. International Ltd. & Ors.‟s case (supra). It is in the nature

of a largesse from the Government to an organization like the appellant _____________________________________________________________________________________________

and, thus, due care and caution should be taken and parity with the

principles in the case of S.B. International Ltd. & Ors.‟s case (supra)

cannot be allowed.

23. There is also another aspect to the matter. Learned counsel while

referring to the appeal could only show at best general allegation that

the action of the Lieutenant Governor was „mala fide‟. No specific plea

of „legal malice‟ has really been raised. The Lieutenant Governor has

not been made a party to rebut any plea of mala fide or malice. It is not

a case where per se from facts a legal malice can be deciphered. Legal

malice must be properly pleaded and proved and, thus, the judgment

cited by the appellant on the general principles of legal malice cannot

come to the aid of the appellant. It is not as if the principle of legal

malice is unknown or undefined, but the question arises whether the

appellant has been able to establish such a legal malice. We are afraid

that the appellant has failed to do so.

24. The linked plea of any legitimate expectation also, thus, cannot be

substantiated. We have already observed that the letter dated

07.07.2004 was only for a limited purpose. The appellant could not

have presumed from the said letter that the allotment has been made.

Thus, any action taken by the appellant in that behalf stated to be of

construction of some porta cabins can hardly be said to have given any

right in favour of the appellant to get allotment at pre-determined rates.

25. We may add that the DDA, in fact, acted with utmost alacrity while

dealing with the file or in queries raised from the Lieutenant Governor

and learned counsel for the DDA hinted that such a process was

possible because of the close interest of some senior official of the DDA

at the relevant stage of time, who post-retirement is now actively _____________________________________________________________________________________________

engaged with the appellant while earlier his father was engaged with the

appellant. It was, thus, suggested that the Lieutenant Governor was, in

fact, bound to take an extra care and caution to see that there was no

undue haste being shown by the DDA to somehow process the case

irrespective of the queries raised by the Lieutenant Governor.

26. No doubt, there are certain notings seeking to draw parity between Lal

Bahadur Shastri Institute of Management and the case of the appellant.

However, the facts and circumstances of the said allotment has already

been recorded aforesaid and we are inclined to accept the plea of

learned counsel for the DDA that the appellant cannot claim parity, the

same being really a case for fresh allotment, which was sought to be

made adjacent to the existing land of the appellant to meet AICTE

requirements. In any case, merely on the plea of such parity, the

appellant cannot get the benefit of land at concessional (pre-determined)

rates by direction made under Article 226 of the Constitution of India.

27. We may note in the end that practically, the purpose of the appellant is

served as it has got the land and is utilizing the same albeit in a public

auction and without prejudice to the rights and contentions of the

appellant as prayed and permitted by the learned Single Judge. The

question, thus, only is whether the appellant is to be charged at auction

rates or at pre-determined rates and in case it has to be charged at pre-

determined rates, the differential should be refunded to the appellant

making available the land at concessional rates to the appellant. We

have already accepted that the amendment to the Rules is valid and the

mode of auction is the correct mode for disposal of land in our judgment

in Bhagwan Mahavir Education Society (Regd.) & Anr. Vs. DDA &

Ors. & other connected matters (supra). Thus, we are not inclined to _____________________________________________________________________________________________

grant any relief to the appellant or being re-compensated by the DDA

for the differential of auction and the pre-determined rates.

28. We are, thus, of the considered view that the case of the appellant is no

different and is governed by our judgment in Bhagwan Mahavir

Education Society (Regd.) & Anr. Vs. DDA & Ors. & other connected

matters (supra).

29. The appeal is accordingly dismissed in terms aforesaid.

SANJAY KISHAN KAUL, J.

MAY 27, 2011                                     SUDERSHAN KUMAR MISRA, J.
madan

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