Delhi Development Authority vs M/S Bedi Foundary Works & Anr.
2012 Latest Caselaw 4125 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 13th July, 2012

+                        LPA No.623/2006

%     DELHI DEVELOPMENT AUTHORITY             ....Appellant
                  Through: Mr. Pawan Mathur, Adv.

                                  Versus

    M/S BEDI FOUNDARY WORKS & ANR.          ..... Respondents
                  Through: Mr. Arvind Minocha, Adv.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                               JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. This Intra-Court appeal impugns the order dated 11th August, 2004 of

the learned Single Judge allowing W.P.(C) No. 2105/1992 preferred by the

respondent no.1 (hereinafter called writ petitioner) by quashing the letters

dated 12th February, 1990 and 14th November, 1990 of the appellant DDA

and by directing the appellant DDA to execute the necessary conveyance

deed with respect to plot no.C-296 ad-measuring 400 sq. yds., Rewari Line

Group Industrial Area, Phase-II, Mayapuri, New Delhi in favour of the writ

petitioner. The appeal also impugns the subsequent order dated 4th March,

2005 of the learned Single Judge dismissing the review petition filed by the

appellant DDA. Notice of this appeal was issued and vide detailed order

dated 20th January, 2010 the delay in preferring the appeal was condoned on

payment of costs. The counsels have been heard.

2. The writ petition was filed by the writ petitioner pleading:-

a. that it was carrying on its manufacturing activity at J-136,

Motia Khan Dump, New Delhi;

b. that Shri Inder Singh proprietor of the writ petitioner was a

member of the Hind Co-operative Industrial Estate Ltd. and

had submitted an application through the said society for

allotment of an industrial plot;

c. that the appellant DDA vide letter dated 22 nd March, 1968

allotted plot no.C-296 ad-measuring 400 sq. yds. (supra) to the

writ petitioner on the terms and conditions contained therein;

d. that the writ petitioner deposited 50% of the demanded amount

and physical possession of the plot was handed over to it;

e. that the writ petitioner was, vide letter dated 6th April, 1971 of

the appellant DDA, directed to deposit the final amount of

Rs.9,159.05 against the aforesaid plot, but which could not be

deposited owing to an accident met by Shri Inder Singh;

f. that subsequently when Shri Inder Singh wanted to deposit the

said amount, the same was not accepted by the appellant DDA

on the ground that the allotment stood cancelled;

g. that subsequently vide letter dated 24th January, 1975 of the

appellant DDA, a warehousing plot no.F-63 ad-measuring 92

sq. yds. in Rewari Line, Phase-II, Industrial Area was allotted

in the name of the said Shri Inder Singh;

h. that Shri Inder Singh sought adjustment of the amounts

deposited against plot no.C-296 (400 sq. yds.) against the

demand for plot no.F-63 (92 sq. yds.);

i. that in the meantime the possession of plot no.F-63 (92 sq.

yds.) was handed over to Shri Inder Singh;

j. that the writ petitioner on 26.06.1976 also applied for

restoration of plot no.C-296 (400 sq. yds.);

k. that the appellant DDA vide its letter dated 1 st May, 1978

informed the writ petitioner of its decision to restore the

allotment of plot no.C-296 (400 sq. yds.) on payment of the

amounts mentioned thereunder and on surrender of plot no.F-

63 (92 sq. yds.);

l. that vide letter dated 11 th September, 1978 the writ petitioner

was asked to deposit Rs.24,592/- within one month for

restoration of plot no.C-296 (400 sq. yds.);

m. that the writ petitioner represented against the amount

demanded and without prejudice to its contention also

deposited sums of Rs.2,000/- on 2nd March, 1971, Rs.4,500/- on

30th July, 1970, Rs.6,600/- on 10th November, 1980 and

Rs.13,611/- on 11th August, 1980;

n. that thereafter the writ petitioner was put into possession of plot

no.C-296 (400 sq. yds.) and the House Tax and ground rent

with respect thereto is being assessed in its name;

o. that however notwithstanding the entire demanded amount

against plot no.C-296 (400 sq. yds.) having been paid and also

being put into possession thereof, the documents with respect

thereto were not executed in its favour and on the contrary vide

letters dated 12th February, 1990 and 14 th November, 1990 its

request for restoration of plot no.C-296 (400 sq. yds.), rejected;

p. accordingly the writ petition was filed impugning the letters

dated 12th February, 1990 and 14th November, 1990 and

seeking a direction to the appellant DDA to execute the lease

deed of plot no.C-296 (400 sq. yds.) in favour of the writ

petitioner.

3. It appears that the appellant DDA inspite of several opportunities did

not file counter affidavit to the writ petition. The learned Single Judge vide

impugned order dated 11th August, 2004, believing the case of the writ

petitioner that the allotment of plot no.C-296 (400 sq. yds.) by virtue of

membership of the Hind Co-operative Industrial Estate Ltd. and as a matter

of right and the allotment of plot no.F-63 (92 sq. yds.) to the writ petitioner

was in lieu of rehabilitation from the non-conforming area of Motia Khan

and further holding that the writ petitioner having already been allotted plot

no.C-296 (400 sq. yds.) was under Rehabilitation Scheme not entitled to

another plot, allowed the writ petition as aforesaid but with a direction to the

writ petitioner to hand over possession of plot no.F-63 (92 sq. yds.) to the

appellant DDA.

4. The appellant DDA applied for review, pleading the reasons for

which counter affidavit to the writ petition though stated to be filed, had not

come on record. A copy of the counter affidavit earlier filed was also

attached to the review application. In the said counter affidavit though the

membership of the writ petitioner of Hind Co-operative Industrial Estate

Ltd. and allotment of plot no.C-296 (400 sq. yds.) was admitted, it was

pleaded that the said allotment stood cancelled upon non-compliance (non-

payment) by the writ petitioner of the terms thereof. It was denied that the

possession of plot no.C-296 (400 sq. yds.) was ever handed over to the writ

petitioner. Again, though the offer for restoration of the allotment of plot

no.C-296 (400 sq. yds.) was admitted but it was pleaded that the writ

petitioner had not complied with the terms thereof also and thus the

restoration did not take place. It was thus the case of the appellant DDA that

the allotment of plot no.C-296 (400 sq. yds.) stood cancelled and the said

plot could not be given to the writ petitioner.

5. The learned Single Judge however vide impugned order dated 4 th

March, 2005, upon the writ petitioner showing a letter dated 11 th August,

1978 and copy of deposit challan dated 16 th August, 1980 for Rs.13,611/-

and 10th November, 1980 for Rs.6,600/- in the Court, dismissed the review

petition observing that the stand of the appellant DDA in the counter

affidavit was prima facie not borne out from the records of the appellant

DDA. It was further observed that no sufficient reasons for not having the

counter affidavit to the writ petition placed on record within time had also

been disclosed.

6. We may at the outset observe that the letters dated 12 th February,

1990 and 14th November, 1990 of the appellant DDA impugning which the

writ petition was filed were of intimation that the request for restoration of

plot no.C-296 (400 sq. yds.) stood rejected earlier. The learned Single Judge

however even while allowing the writ petition in the absence of the counter

affidavit of the writ petitioner has not adverted to the validity of the

rejection of the request for restoration of plot no.C-296 (400 sq. yds.) but

proceeded on the premise as if the only dispute was as to whether the writ

petitioner was entitled to plot no.C-296 (400 sq. yds.) or to plot no.F-63 (92

sq. yds.). On the said assumption, the learned Single Judge held that since

plot no.C-296 (400 sq. yds.) was allotted by way of membership of the co-

operative society and plot no.F-63 (92 sq. yds.) was allotted under

Rehabilitation Scheme in lieu of non-conforming site, the writ petitioner

was entitled to plot no.C-296 (400 sq. yds.) and not to plot no.F-63 (92 sq.

yds.). This was however, clearly, not the subject matter of the writ petition.

The order dated 11th August, 2004 of the learned Single Judge, even in the

absence of a counter affidavit by the appellant DDA to the writ petition,

cannot be sustained. Inspite of review being sought, the learned Single

Judge did not go into the controversy raised in the writ petition.

7. The question which arises is, whether there is any error in the refusal

by the appellant DDA of restoring allotment of plot no.C-296 (400 sq. yds.)

in favour of the writ petitioner.

8. From the averments of the writ petitioner in the writ petition itself and

the documents filed therewith, the following emerges:-

(i) Allotment on 22nd March, 1968 of plot no.C-296 (400 sq.

yds.) was subject to the writ petitioner stopping the non-

conforming use of J-136, Motia Khan and making the

payments as demanded therein;

(ii) the writ petitioner did not make the said payments and

the allotment of plot no.C-296 (400 sq. yds.) stood

cancelled;

(iii) when the writ petitioner was on 24th January, 1975

allotted plot no.F-63 (92 sq. yds.), he admitted

cancellation of plot no.C-296 (400 sq. yds.) and rather

sought adjustment of the part amounts paid therefor

against plot no.F-63 (92 sq. yds.);

(iv) this also shows that possession of plot no.C-296 (400 sq.

yds.) was not delivered to the writ petitioner and the writ

petitioner was not claiming both the plots in as much as

in that eventuality the question of adjustment of the

amount paid for plot no.C-296 (400 sq. yds.) against plot

no.F-63 (92 sq. yds.) would not have arisen;

(v) the writ petitioner till then had also not applied for

restoration of plot no.C-296 (400 sq. yds.) and applied

therefor only on 26th June, 1976 and which request was

rejected on 29th October, 1976 and the writ petitioner

informed that necessary action to refund the amount

deposited after forfeiting 10% was being taken;

(vi) the writ petitioner vide its letter dated 7th November,

1976 again admitted cancellation of plot no.C-296 (400

sq. yds.) and sought restoration thereof;

(vii) the appellant DDA vide letter dated 20th January, 1978

refunded earnest money of plot no.C-296 (400 sq. yds.)

to the writ petitioner;

(viii) that the writ petitioner again on 6th March, 1978

approached the Commissioner (Lands) for restoration of

plot no.C-296 (400 sq. yds.);

(ix) that it was in response thereto that vide letter dated 1st

May, 1978 the appellant DDA agreed to restore the same

on the condition of payment of amounts demand

wherefor was being sent to the writ petitioner „shortly‟

and on surrender of plot no.F-63 (92 sq. yds.);

(x) the appellant DDA vide letter dated 11th September,

1978 demanded Rs.24,592/- for restoration of plot no.C-

296 (400 sq. yds.). The said letter also provided as

under:-

"It is also made clear to you that in case you accept this allotment of Plot No.C.I-296 in Rewariline Indl. Area, Phase-II measuring 400 sq. yds. you will have to pay the damages for extra 60 sq. yds. also.

You are, therefore, requested to deposit the above said sums within one month from the issue of this letter, failing which the restoration will be withdrawn without making any reference to you. The demand is provisional & subject to verification by the Accounts Branch afterwards."

(xi) The writ petitioner however did not deposit the amount

within one month but vide its letter dated 6th October,

1978 deposited part of the demand and also returned the

refund received under letter dated 20 th January, 1978

(supra). It may also be stated that even the admitted part

of the demand was not tendered till then;

(xi) The writ petitioner ultimately on 16 th August, 1980 i.e.

after more than two years of the demand dated 11 th

September, 1978 deposited a sum of Rs.13,611/- with the

appellant DDA instead of demanded amount of

Rs.24,592/-;

(xii) After another three months, on 10th November, 1980 a

sum of Rs.6,600/- was deposited. After waiting for

another 12 years, in the year 1992 the writ petition was

filed.

9. The aforesaid would disclose that the restoration offered of

cancellation was conditional on the demanded amount being paid within one

month of 11th September, 1978. The writ petitioner then neither paid the

amount nor challenged the demanded amount. In these facts, in our view,

the learned Single Judge could not have allowed the writ petition. No error

can be found in the letters dated 12 th February, 1990 and 14th November,

1990 intimating to the writ petitioner that his request (which appears to have

been repeatedly made) for restoration of plot no.C-296 (400 sq. yds.) could

not be acceded. The writ petitioner had not even made any ground

challenging the demand of Rs.24,592/- or any other demand in the letter

dated 11th September, 1978. Moreover no challenge to the said demands

could be made after 14 years in the writ petition filed in the year 1992. The

writ petition was clearly an abuse of the process of the Court. It appears that

in the circumstances aforesaid the plot no.C-296 (400 sq. yds.) remained

unallotted and vacant and the writ petitioner, taking advantage of the same,

illegally grabbed possession thereof and filed the writ petition.

10. The mala fides of the writ petitioner are also evident from the fact that

the writ petitioner while averring in the writ petition payment of Rs.24,592/-

, also referred to payments made earlier. However the amount of

Rs.24,592/- was demanded vide letter dated 11th September, 1978 only after

taking into consideration all earlier payments and as aforesaid if the writ

petitioner had any grievance with respect thereto the writ petitioner ought to

have then challenged the same. The writ petitioner did not do so and filed

the petition after 14 years, after taking illegal possession of the plot.

11. The counsel for the writ petitioner has during the hearing handed over

to us documents to show that the writ petitioner, after the order of the

learned Single Judge has vacated plot no.F-63 (92 sq. yds.) and tendered

possession thereof to the appellant DDA; he however states that possession

has not been taken. The same is however of no avail. The controversy in the

writ petition is qua plot no.C-296 (400 sq. yds.) and not qua plot no.F-63

(92 sq. yds.), though owing to the writ petitioner having abused the process

of the Court and having illegally enjoyed possession of both the plots he

ought to be disentitled from plot no.F-63 also.

12. The counsel for the writ petitioner has also invited our attention to the

counter affidavit where the appellant DDA has pleaded that the writ

petitioner is entitled to one plot only. On the basis thereof it is contended

that the writ petitioner can have either of the two plots. However a line here

and there cannot be picked out of context. A plain reading of the counter

affidavit clearly shows the stand of the appellant DDA to be that the writ

petitioner is entitled to plot no.F-63 only and not to plot no.C-296 (400 sq.

yds.). Even otherwise the allotment of such plots by the appellant DDA is in

the form of largesse and much below the market rates. Once the writ

petitioner is found to be not entitled to plot no.C-296 (400 sq. yds.), it

cannot be delivered the same even on the basis of any loosely drafted

pleading of the appellant DDA.

13. We therefore allow this appeal and set aside the orders dated 11th

August, 2004 and 4th March, 2005 of the learned Single Judge and dismiss

the writ petition filed by the writ petitioner. We also direct the appellant

DDA to immediately take steps for recovery of possession of plot no.C-296

(400 sq. yds.) and mesne profits/damages for illegal possession thereof and

to forthwith take steps for removing any unauthorized construction or

industry/works thereon and for having the supply of electricity, water etc.

thereto disconnected. The writ petitioner is also burdened with costs of

Rs.25,000/- of these proceedings payable to the appellant DDA within one

month hereof.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE

JULY 13, 2012 pp