Delhi Administration vs Jp Goel & Anr.
2012 Latest Caselaw 4612 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+      LPA No.93 of 2010 and CM No.2036/2012 (Condonation of
                  Delay) & CM No.2035/2012 (Stay)

                                        Reserved On: 6th August, 2012
%                                        Pronounced on: 24th August, 2012

       DELHI ADMINISTRATION                                . . . APPELLANT

                            through :         Ms.    Rachna     Srivastava,
                                              Advocate.

                                  VERSUS

       JP GOEL & ANR.                                   . . .RESPONDENTS

through: Mr. Ravi Gupta, Sr. Advocate with Mr. Gaurav Kejriwal, Advocate for the Respondent No.1 Ms. Sangeeta Chandra, Standing Counsel with Ms. Pooja Bahuguna, Advocate for the DDA.

CORAM :-

HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

A.K. SIKRI (Acting Chief Justice)

1. There is a delay of 2492 days in preferring the instant appeal and therefore, CM No.2036/2012 is preferred seeking condonation of delay. The explanation sought to be given in this application, in fact, touches the merits of the appeal as well. Thus, before we take note of the explanation given by the appellant in the application seeking condonation of delay, it would be necessary to state some material facts.

2. The respondent No.1 herein had filed Writ Petition (Civil) No.911/1985 in this Court questioning the validity of letter dated 06.7.1980 vide which allotment of plot of 200 sq. yds. Was cancelled. According to the respondent No.1, some lands purportedly belonging to him were acquired under the provision of Land Acquisition Act, 1894 [hereinafter referred to as „the LA Act‟] for which he was also paid the compensation. As per the scheme for allotment of alternative lands to those whose lands are compulsorily acquired under the provisions of LA Act, the respondent No.1 applied for such an allotment. The scheme provides that the appellant/Government would examine the entitlement of such persons under the Scheme and if a person is found eligible for alternative plot, recommendation shall be made by the Government to Delhi Development Authority for allotting the plot. Insofar as the respondent No.1 is concerned, the appellant after examining his case vide letter dated 15.1.1980, recommended to the DDA to allot him a plot of 250 sq.yds. However thereafter, the size of the plot was reduced to 200 sq. yds. DDA vide letter dated 23.9.1980 informed the respondent No.1 about his entitlement and asked him to deposit the earnest money which was deposited by him and thereafter a plot ad measuring 200 sq. yds. Bearing No.AG-46, Shalimar Bagh, New Delhi, was allotted to him. The allotment to this plot was cancelled subsequently vide letter dated 06.7.1980 by the appellant.

3. The respondent challenged this cancellation by filing the aforesaid Writ Petition, which was allowed by the learned

Single Judge vide judgment dated 20.2.2003 in the following manner:

"In my considered view, the compensation could not have been paid to the petitioner without establishing the right of the petitioner of the land in question. Once that right was established, only then the application to the petitioner for alternate allotment was processed. The show-cause notice or the letters do not show that the petitioner is not covered under the scheme of allotment for such alternative plot for any reason whatsoever. The mere allegation that it is open to respondent No.2.

In view of the aforesaid, the impugned orders dated 01.06.1982 and 06.07.1982 are hereby quashed."

4. No appeal was preferred against the aforesaid judgment immediately thereafter. As pointed out above, the instant appeal is filed now after the delay of 2492 days. However, the explanation given for filing the appeal after such a long delay is quite pertinent and has a direct bearing on the merits of the appeal itself which proceeds as follows.

5. As pointed out above, the allotment of alternate plot was in lieu of acquisition of lands. The Government had issued Notification dated 26.9.1966 under Section 4 of the LA Act notifying the intention to acquire various lands including lands in some Khasras comprised in the revenue estate of Village - Peepal Thala. Declaration under Section 6 of the LA Act was issued on 30.12.1966. It is much after the aforesaid Notification and declaration, that the respondent No.1 entered into Agreement to Sell dated 13.11.1972 to purchase land comprised in Khasra No.2148, 455/413/24/5, 27 Min., 52, 26 and 43 in the revenue estate of Village - Sarai Peepal Thala, which was under acquisition. Many persons had entered into

this common Agreement to Sell dated 13.11.1972 to purchase the aforesaid land. These persons included Smt. Nirmal Gupta, Shri Kanwar Sain and Shri J.P. Goel (respondent No.1 herein). All these three persons had applied for allotment of alternate plots and were so allotted. Thereafter, allotments in the case of these three persons were cancelled.

6. Challenging this cancellation, Smt. Nirmal Gupta filed Writ Petition (C) No.829 of 1985. Respondent No.1 herein filed Writ Petition (C) No.911/1985 and Shri Kanwr Sain filed Writ Petition (C) No.574 of 1985. Writ petition of the respondent No.1 herein was allowed vide judgment dated 20.2.2003. Writ Petition of Shri Kanwar Sain was also allowed at the same time on same grounds. As per the appellant, it had instructed its counsel to file the appeals in both these cases. Though in the case of Shri Kanwar Sain, the appellant filed LPA No.412/2004, because of some lapse on the part of the counsel, appeal could not be filed in the instant case, i.e., in the case of Shri J.P. Goel.

7. Be as it may, LPA No.412/2004 came up for hearing before the Division Bench when it was brought to the notice that W.P.(C) No.829/1985 filed by Smt. Nirmal Gupta was still pending. The Division Bench, thus, took both the LPA and the Writ Petition together for hearing and vide judgment dated 09.12.2009, LPA of the appellant herein in the case of Shri Kanwar Sain was allowed. Writ Petition filed by Smt. Nirmal Gupta was also dismissed. The Division Bench categorically held that no right accrued in favour of these persons on the basis of said

common Agreement to Sell, to seek allotment of alternate plots.

8. The facts disclosed above would show that these persons had entered into Agreement to Sell after the Notification under Section 4 of the LA Act and Declaration under Section 6 was issued. Such Agreement to Sell is prohibited under provisions of the Delhi Land Restriction on Transfer Act. Moreover, even this Agreement to Sell was on a stamp paper of `2/-. Admittedly, it was not a Sale Deed and, thus, by mere agreement, no rights in the land were transferred in favour of these persons. The Division Bench noted that notwithstanding the aforesaid and when they were not even recorded as the owners of the subject property, they proceeded to stake a claim for alternate plot.

9. It is not in dispute that the policy for alternate allotment mandates that the person who makes the application should be the owner of the land as on date when Notification under Section 4 of the Act is issued. Thus, under no circumstances, these persons were eligible for allotment in support thereof, the officer concerned in the Land & Building Department recommended the entitlement of three persons to DDA. The allotment was initially made, but thereafter the same was cancelled. These facts are sufficient to demonstrate that the cancellation was proper, valid and in accordance with law. So held the Division Bench also in its judgment dated 09.12.2009 as under:

"22. The issue in the appeal and the writ petition requires a look at the policy as per which four conditions have been mandated for being eligible to be allotted an

alternative residential plot. The four conditions are as under:-

"(a) The application must have been filed within a period of one year from the date of receipt of compensation.

(b) He/she should be recorded owner of the acquired land on the date of Section 4 Notification.

(c) He must have received the compensation for the said land.

(d) Neither he nor his spouse or any of his dependent children own any residential property in Delhi."

10. Pertinently, while dealing with the aforesaid two cases, the Division Bench took note of the events that happened in the case of Shri J.P. Goel/Respondent No.1 herein which is clear from the following discussion in the said judgment:

"17. Briefly recorded, the learned Single Judge held that since Kanwar Sain and J.P.Goel had received the compensation it was apparent that both of them were the owners of the acquired lands. Thus, learned Single Judge has held that under the policy in question both of them would be entitled to a residential plot of land at the pre- determined rates. The allotment of a plot each to J.P.Goel and Kanwar Sain was restored.

xxx xxx xxx

21. Surprisingly enough, the same person concerned, took a decision to challenge the decision of the learned Single Judge in favour of Kanwar Sain, and not J.P.Goel. This resulted in DDA executing a conveyance deed in favour of J.P.Goel giving him a plot of land at pre- determined rates.

xxx xxx xxx

27. The plea urged before us today is that since J.P.Goel has been given the benefit of allotment, Smt.Nirmal Gupta and Kanwar Sain being identically situated, relief cannot be denied to them. We note and reject the argument for the reason, a plea of discrimination can never be founded on a wrong.

xxx xxx xxx

33. The facts of the instant case require refund of the loss to the Government in respect of the conveyance deed executed in favour of J.P.Goel to whom plot of land admeasuring 209 sq.yds. had been allotted at the predetermined rates. It is known to one and all that predetermined rates are a fraction of the market value of the land."

11. In the aforesaid backdrop, not only we find that the appellant has shown sufficient cause for condonation of delay, even on merits this appeal needs to be allowed. To put the record straight, it would be relevant to mention that though the respondent No.1 has been given the allotment, because of the pendency of this appeal, no construction is carried out therein.

The respondent No.1 was not entitled to allotment of the subject land. Law as well as equity also demand that he should not be given the land even when allotment is made more particularly, when two of his companions have been denied the same by the orders of this Court. As the respondent No.1 has made the payment, he can be refunded that amount along with interest.

12. In these circumstances, we condone the delay in filing the appeal.

13. We also allow this appeal and set aside the orders of the learned Single Judge with the direction that the DDA shall refund the amount received from the respondent No.1 and

shall reimburse the expenditure incurred by the respondent No.1 on the Conveyance Deed executed in respect of subject plot. DDA shall also pay interest @ 12% per annum from the date of payment of the amount made by the Respondent No.1 upto the date of refund.

14. In the aforesaid peculiar facts, there shall, however, no orders as to costs.

ACTING CHIEF JUSTICE

(RAJIV SAHAI ENDLAW) JUDGE AUGUST 24, 2012 pmc