Metal Forging P.Ltd. vs D.D.A. & Anr.
2011 Latest Caselaw 4901 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 30th September, 2011
+                               W.P.(C) 8569/2007

         METAL FORGING P.LTD.                     ..... Petitioner
                     Through: Mr. Kamal Mehta, Adv.

                                      Versus
         D.D.A. & ANR.                                      ..... Respondents
                              Through:    Ms. Renuka Arora, 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 petitioner was on 2 nd March, 1976 granted a perpetual

lease of plot bearing No. 1/1 , Warehousing Scheme, Kirti Nagar, New

Delhi. It was inter alia a term of the said lease that the petitioner shall

within a period of two years from 16 th September, 1974 i.e the date the

petitioner was put into possession of the said plot, after obtaining the

sanction to the building plan, erect upon the said industrial plot and

complete an industrial building for carrying on the approved

manufacturing process or industry.

2. The petitioner admittedly did not raise construction and a notice

dated 12th June, 1979 to show cause was issued to the petitioner as to why

action therefor be not taken. The petitioner submitted a reply thereto

stating that he was using the open plot for storage purposes. A letter stated

to be dated 6th November, 1979 at page 120 of the paper book was issued

by the respondent DDA withdrawing the said show cause notice subject to

condition that the petitioner will use the plot exclusively for storage

purposes and the condition aforesaid of the perpetual lease deed will also

not apply if the plot is used for storage purposes.

3. The petitioner earlier filed W.P.(C)5580/2002 in this Court

impugning the demand made by the respondent DDA of composition fee

on account of non construction on the plot. The said writ petition was

disposed of vide order dated 19 th May, 2003. It appears that there was then

in force a decision of the Lt. Governor, Delhi for a grace period and waiver

of composition fee on account of non-construction. The writ petition was

disposed of with the direction to the respondent DDA to amend the

demand against the petitioner for composition fee for non-construction in

terms of the said decision of the Lt. Governor, Delhi.

4. The petitioner thereafter applied for extension of time till 31 st

December, 2007 for raising construction. The respondent DDA vide letter

dated 20th August, 2007 granted extension till 31 st December, 2007 for

raising construction but warned the petitioner that no further extension will

be granted as per the Policy and the Press Notice dated 18 th June, 2006.

This writ petition is filed impugning the said condition requiring the said

condition requiring the petitioner to raise construction before 31 st

December, 2007. The petitioner claims that he could not be so compelled

to complete the construction till 31 st December, 2007. The petitioner also

claims a declaration that the term of the perpetual lease deed aforesaid

requiring to raise construction within two years is now unenforceable in

view of the letter dated 6th November, 1979 (supra). Alternatively

mandamus claiming extension till December, 2010 on payment of

composition fee as per the Policy of the respondent DDA from time to time

is claimed.

5. Notice of the petition was issued. During the pendency of the

petition the parties were referred to the Mediation Cell of this Court. A

settlement agreement dated 23rd July, 2010 was signed by the parties

settling all disputes regarding composition fee up to the period of 31 st

December, 2007.

6. The counsel for the petitioner states that the respondent DDA still

has a Policy for extending the period for construction on payment of

composition fee and the petitioner in accordance with the said Policy of the

respondent DDA which is extended from year to year has already paid the

composition fee till the period ending on 31st December, 2011.

7. The counsel for the respondent DDA states that she has no

instructions as to whether composition fee for the period after 31 st

December, 2007 and till 31st December, 2011 as claimed has been paid.

8. Now the period till December, 2010 till when extension was sought

for raising construction has also elapsed. Construction has admittedly not

been raised till now.

9. As far as the plea of the petitioner of having paid composition fee

for period after 31st December, 2007 is concerned, the same does not fall

for consideration in this petition. If there is any such Policy and the

petitioner entitled to benefit thereof and complies with terms thereof,

would certainly be entitled thereto.

10. The only question which remains to be thus determined is whether

the clause in the perpetual lease limiting the time within which the

petitioner was to raise construction stands superseded by the letter dated 6 th

November, 1979 (supra). If the said term of the perpetual lease so stands

superseded, the petitioner would not be liable to any action, even in the

event of the Policy extending time for construction subject to payment of

composition fee lapsing. Else, till the time such Policy exists and the

petitioner in compliance thereof makes payment, the petitioner would be

exempt from raising construction.

11. The counsel for the petitioner invites attention to the order dated 16 th

April, 2009 in the present proceedings as under:-

"Parties will exchange computation sheets on the amount payable as composition fee for non-construction as per the decision of this Court in the case of S.K. Kapoor v. DDA.

The petitioner will also take instructions whether he is ready and willing to give an undertaking to this Court and DDA that presently he has no intention of carrying out any construction on the plot and the same will be used exclusively for storage purposes. If on a later date, the petitioner wants to

construct on the plot, he will approach DDA and if the request is rejected, he will be at liberty to approach this Court or initiate appropriate proceedings.

List on 13th July, 2009."

12. He contends that the petitioner has already filed an undertaking in

terms of the said order and the writ petition be disposed of in terms thereof.

13. I have enquired whether the respondent DDA has taken any other

action against the petitioner and/or with respect to the plot. The counsel for

the respondent DDA has no instructions. The counsel for the petitioner

states that since composition fee till 31 st December, 2011 stands paid, the

occasion for taking any action for the reason of non-construction does not

arise.

14. The counsel for the petitioner contends that the question whether in

view of the letter dated 6th November, 1979, even in the absence of a

Policy extending the time for construction on payment of composition fee,

the petitioner cannot be forced to raise construction or proceeded against

therefor be left to be adjudicated as and when the Policy ceases to exist and

the respondent DDA threatens any action against the petitioner.

15. The petitioner having raised the said question in this petition, unless

the petitioner itself gives up the same, cannot be left unadjudicated. The

procedure suggested by the counsel for the petitioner is a procedure which

would lead to endless litigation. It was for the petitioner to take a decision

as to whether in view of the Policy it was not required to take up the said

plea; once the said plea has been taken, it cannot be left unadjudicated.

16. The counsel for the petitioner has argued that the respondent DDA

as a contracting party to the perpetual lease has vide letter dated 6 th

November, 1979 waived for all times the right to take any action for non

construction on the condition that the petitioner uses the plot for storage

purposes.

17. I am unable to accept the aforesaid contention. The petitioner is

precluded from raising the said plea in this writ petition. The petitioner had

taken the same ground in the earlier writ petition also. However a reading

of the order dated 19 th May, 2003 in the earlier writ petition shows that the

petitioner did not press the said ground and sought adjudication of the

earlier writ petition only on the computation of the composition fee in

accordance with the then decision of the Lt. Governor, Delhi. The

petitioner having taken the said ground in the earlier writ petition and

having not pressed the same cannot now be permitted to agitate the same in

the second round of litigation.

18. The counsel for the petitioner contends that no relief regarding the

said letter dated 6th November, 1979 was claimed in the prayer paragraph

in the earlier writ petition. However a ground in the earlier writ petition

having been taken and the demand then of composition fee having been

impugned, the non mentioning of the said letter in the prayer paragraph is

irrelevant.

19. Not only so, the petitioner even thereafter, and as per its claim till

31st December, 2011, has paid the composition fee. The said conduct of the

petitioner again shows that the petitioner is not pressing the plea on the

basis of the said letter. Though the counsel for the petitioner states that

such payments were without prejudice but the settlement agreement dated

23rd July, 2010 does not show that the petitioner had kept open to itself the

said plea. The counsel for the petitioner in this regard refers to para 6 of

the settlement agreement but the same is not found to contain any "without

prejudice" clause as aforesaid. The same refers to the order dated 16 th

April, 2009 and which also does not contain any without prejudice clause.

20. Moreover, the waiver of a clause of a registered document could be

by another registered document only and not by issuance of a letter as

alleged.

21. Moreover, the perpetual lease in clause III thereof provides that

waiver of any term of lease at any occasion will not create any right in

favour of the lessee and not prohibit the lessor from enforcing the said

right in future.

22. There is thus no merit in the claim of the petitioner that the

respondent DDA is not entitled to enforce the clause aforesaid of the

perpetual lease deed for the reason of the letter dated 6 th November, 1979.

23. The petition therefore fails and is dismissed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) SEPTEMBER 30 , 2011 pp..