Daya Ram vs Commissioner, Mcd & Anr.
2012 Latest Caselaw 2199 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  W.P.(C) 1184/2011

                                   Reserved on:        31.01.2012
                                   Date of decision:   30.03.2012
IN THE MATTER OF:
DAYA RAM                                            ..... Petitioner
                        Through: Ms. Geeta Luthra, Sr.Advocate with
                        Mr.H.N.Takkar & Mr.Harish Malik, Advocates

                 versus


COMMISSIONER, MCD & ANR.                   ..... Respondents
                   Through: Ms. Mansi Gupta, Advocate with
                   Dr.Y.Kumar, V.O., MCD


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J.

1. The present petition is filed by the petitioner praying inter

alia for directions to the respondents/MCD to hand over possession of

plot No.A-141 at Ghogha Dairy Colony, allotted to him to carry on his

Dairy business by demanding the cost of the plot @ ` 2,500 per sq.

meter. The petitioner has also prayed for setting aside the impugned

letter dated 14.12.2010 issued by the respondents/MCD wherein, he

was informed that as his dairy was being run on a Govt. land/

encroachment land, the plots for the said purpose will be allotted @

`7,000/- per sq. mtr.

2. The brief facts of the case as set out in the writ petition

are that, the petitioner has been residing at the address, SE-64-65A,

Singhalpur village, Shalimar Bagh, Delhi much prior to the year 1998.

In or around the year 2004, the respondent/MCD had invited

applications for rehabilitation of dairy owners running unauthorized

dairies in the Delhi Urban areas so as to allot them plots at Ghogha

Dairy Colony for running their dairy businesses from there. The cost

of the developed plot was mentioned as `2,500 per sq. mtr. On

11.09.2004, the petitioner had submitted an application for allotment

of three plots by giving the aforesaid address as his dairy farm

address. On 09.02.2005, the petitioner had deposited an amount of

`1,20,000/- with the respondent/MCD, which was 50% of the earnest

money calculated @ `2,500 per sq. mtr.

3. It is averred by the petitioner that while issuing the

receipt, the respondent/MCD had mentioned two of his addresses, one

being "SE-64-65A, Singhalpur village, Shalimar Bagh, Delhi-88" and

the other being "Behind Ram Bagh, near Haryana Canal, Delhi". On

23.05.2005, the respondent/MCD issued an allotment letter to the

petitioner, allotting him a plot measuring 96 sq. mtr. in Ghogha Dairy

Colony. The address mentioned in the allotment letter was "SE-64/65,

Singhalpur village, Shalimar Bagh, Delhi". However, possession of the

aforesaid plot was to be handed over to the petitioner only on receipt

of the remaining 50% of the cost of the plot.

4. On 05.05.2010, the respondent/MCD had issued a letter

to the petitioner informing him that the plot would be allotted to him

@ `7,000/- per sq. meter instead of `2,500/- per sq. mtr. On repeated

representations made by the petitioner, requesting the

respondent/MCD to consider his request for allotment of the plot @

`2,500/- per sq. mtr, he was informed on 14.12.2010, that he would

be allotted the plot @ `7,000/- per sq. mtr. for the reason that his

dairy farm was found to be running on Govt. land as the address

mentioned in the receipt was " Behind Ram Bagh, near Haryana Canal,

Delhi", which is Govt. land. Aggrieved by the aforesaid letter dated

14.12.2010, the petitioner filed the present petition in February 2011.

5. Notice was issued on the present petition on 23.02.2011.

On 19.07.2011, counsel for respondent/ MCD had stated that on a

perusal of the documents pertaining to the applications submitted by

the petitioner, it had transpired that he had intentionally concealed

from the court the fact that he had applied twice over for allotment of

the dairy plot. It was submitted that while the first application of the

petitioner was submitted by him in the year 2004, the second one was

submitted by him in the year 2010. In view of the above statement,

the respondent/MCD was directed to file a counter affidavit placing on

record the relevant details of the applications and the allotments made

to the petitioner, as also the justification for the rate at which the

allotment had been made in terms of the impugned letter dated

14.12.2010 issued by the respondent/MCD.

6. A short counter affidavit was filed by the respondent/MCD

on 20.8.2011, wherein it was stated that in terms of the judgment

dated 16.12.2002 and the subsequent directions issued by the High

Court in WP(C) No.3791/2000, entitled "Common Cause Society Vs.

UOI & Ors.", the respondent/MCD had decided to develop a modern

Dairy Colony at Ghogha, Narela, Delhi for the purpose of relocation of

eligible illegal dairies from the urban limits of Delhi. In the year 2004,

applications were invited from interested eligible illegal dairy owners

from the urban limits of Delhi for booking/allotment of dairy plots

under the name, Ghogha Dairy Colony Project. In response to the

aforesaid advertisement, in the early phase, a total number of 1373

applicants had booked dairy plots against 50% advance payment @

`1,250/- per sq.mtr. and accordingly, MCD had allotted dairy plots to

them and issued letters in this regard. Subsequent to the allotment of

dairy plots, complaints were received of alleged irregularities

committed in the allotment of dairies. As a result, vide order dated

30.8.2006, the High Court had directed that running of dairy business

would be the sole criteria to allot the plots and give possession.

7. On 8.3.2007, the High Court appointed a six member Stray

Cattle Committee to implement its directions and conduct a physical

verification of sites of illegal dairies mentioned by the applicants.

Pursuant to the verification report submitted by the Zonal Verification

Team, 535 applicants were found eligible for consideration of allotment

of dairy plots, whereas the bookings/allotments of 838 applicants, who

were found to be not running any illegal dairies at their given

sites/addresses, were cancelled, with intimation conveyed through a

public notice in leading newspapers.

8. As regards the petitioner herein, respondent/MCD stated

that on 11.09.2004, he had submitted an application for allotment of

three dairy plots measuring 96 sq. mtr. each in Ghogha Dairy Colony

Project and in the said application, the petitioner had left the column

of his dairy address blank, but, on 09.02.2005, at the time of

depositing the advance payment, he had given his dairy address as

"Behind Ram Bagh, near Haryana Canal, Delhi" which was duly

recorded in the receipt issued by the respondent/MCD (Annexure R-

1). Vide letter dated 23.5.2005, the petitioner was allotted Plot No.A-

141 in Ghogha Dairy Project. On 4.12.2007, when a physical

verification of the petitioner's dairy was conducted by the officers of

the respondent/MCD at the aforesaid address in the presence of the

petitioner, an illegal dairy was found to be running with 16 buffaloes

and the verification report was signed by the petitioner himself

(Annexure R-3). On 02.02.2008, an allotment of one dairy plot

measuring 96 sq.mtr. was recommended in favour of the petitioner on

the basis of his dairy having been verified on encroached Government

land situated "Behind Ram Bagh, near Haryana Canal, Delhi".

9. However, in the year 2010, when the respondent/MCD

issued an advertisement dated 30.03.2010, the petitioner once again

applied for allotment of two dairy plots measuring 96 sq.mtr. each. In

his application form dated 19.04.2010, the petitioner had indicated the

location of his dairy as "64-65 A, village Singhalpur, Shalimar Bagh,

Delhi". As per the verification report of the respondent/MCD dated

18.5.2010, sixteen buffaloes and two cows were found in the dairy of

the petitioner(Annexure R-8). Accordingly, the Allotment Committee

of the respondent/MCD recommended allotment of two dairy plots of

96 sq. mtr. each to the petitioner. Consequently, the earlier allotment

of one plot of 96 sq.mtr. made in favour of the petitioner was

cancelled. Thereafter, a demand-cum-allotment letter dated

24.09.2010 was issued to the petitioner calling upon him to deposit

the cost of the plots @ `7,000 per sq.mtr., so that the possession

letter could be issued to him. The petitioner had yet to complete the

documentation when he preferred the present petition seeking the

relief that the allotment of Plot No.A-141 be made by the

respondent/MCD at the notified rate of `2,500 per sq.mtr. and not @

`7,000/- per sq.mtr.

10. Counsel for the respondent/MCD had contended that the

petitioner has not approached this court with clean hands and has

intentionally suppressed the fact that he had applied twice over for the

allotment of a dairy plot. It was submitted that on this ground alone,

the petition is liable to be dismissed. On merits, she had submitted

that the Commissioner, MCD had approved conducting of manual draw

of lots for allotment of 204 plots to 152 applicants on 29.7.2010.

However, during the course of processing the documents, it was

observed that the petitioner herein(at S.No.132) was allotted one plot

of 96 sq.mtr. and another applicant, namely, Mr.Vikram Singh (at

S.No.15)was allotted a plot of 60 sq.mtr.in the first draw of lots. The

Stray Cattle Committee decided not to take action on the result of the

first draw till the modalities for allotment of plots were decided by it.

The modalities were finally decided by the Committee on 17.7.2008

and 17.10.2008. As per the said modalities, it was decided that the

applicants having dairies on encroached land would be allotted plots at

the market rate of the area. As per the decision of the Stray Cattle

Committee taken on 30.07.2009, it was decided that allotment letters

would be issued to such applicants who were found running dairies on

the premises belonging to them and were entitled for one plot at the

MCD notified rates.

11. Accordingly, demand-cum-allotment letters were issued

only to those successful applicants who were entitled for one plot and

were maintaining dairies on premises belonging to them. All other

applicants having dairies on encroached land including the petitioner

herein and Mr. Vikram Singh were not issued allotment letters as the

information about the location of their dairies was not clear. Pursuant

to the second advertisement issued by the MCD on 30.3.2010, the

petitioner as also Mr. Vikram Singh re-applied for booking of dairy

plots as per their current requirement. At that time, the Allotment

Committee recommended that Mr.Vikram Singh be allotted fourteen

plots of 96 sq.mtr. each, and the petitioner be allotted two plots of 96

sq.mtr. each, in terms of their requirement. As a result, it was

decided by the respondent/MCD that the earlier allotment made in

favour of the petitioner would stand cancelled.

12. Vide Resolution No.78 dated 24.5.2010, the

respondent/MCD decided to revise the rate applicable for allotment of

dairy plots in the Ghogha Dairy Colony Project as per the

requirements of the applicants who were running dairies on

encroached land, by fixing the revised rate as `7,000/- per sq.mtr.

The said decision was challenged by some of the allottees who filed

writ petitions in the High Court, wherein it was contended that there

was a binding contract between them and the MCD for allotment of

land @ `2,500 per sq.mtr. and the said contract could not have been

breached by MCD in the year 2010 by unilaterally demanding the price

@ `7,000/- per sq.mtr. and/or threatening to cancell the allotments for

non-payment thereof. The aforesaid issue was finally thrashed out in

the judgment dated 24.12.2010 in WP(C) No.12334/2009, entitled

"Rishi Pal Vs. Municipal Corporation of Delhi & Ors.", whereby all the

said petitions were dismissed. The operative paras of the aforesaid

judgment are reproduced hereinbelow:-

"23. The petitions therefore fail. The petitioners are not entitled to bind the respondent MCD to the rate of `2,500/- per sq.mtr. The respondent MCD is found entitled to the rate now demanded of `7,000/- per sq.mtr. Even if the respondent MCD has given any concession to those displacing their unauthorized dairies from their own land/property, the same would still not entitle them and others to contend that additional plots should be given with the same concession. The respondent MCD while developing the Scheme is fully entitled to grant the said concession. The respondent MCD is thus entitled to demand the price of `7,000/- per sq.mtr. To avoid any hardships to the petitioners, they are given an opportunity to now pay the differential price within four weeks hereof together with interest at the rate of 10% per annum from the last date prescribed of payment till the date of payment failing which respondent MCD shall be entitled to cancel the allotment or take other such coercive action as may

be deemed fit. I may record that the counsel for the respondent MCD during the hearing had offered that if any of the petitioners are not willing to pay the price of `7,000/- per sq.mtr., the respondent MCD will refund the amount deposited by them together with interest.

24. The respondent MCD having been awarded interest to compensate it for the delay and equities flowing from the interim order having been balanced, no order as to costs."

13. It is the stand of the respondent/MCD that it had already

allotted two dairy plots of 96 sq.mtr. each to the petitioner in the

fourth draw of lots conducted on 29.7.2010 and it had also issued a

demand-cum-allotment letter on 24.9.2010(Annexure R-12), calling

upon him to complete the requisite formalities within one month to

take over possession of the dairy plots. Learned counsel submitted

that the process of allotment of dairy plots under the Ghogha Dairy

Colony Project was concluded in the month of May 2011 with the

disposal of all pending applications and that all the allotments made

prior to the year 2007, without verification of dairies of applicants,

stood cancelled, which decision was duly intimated to the public at

large vide public notice inserted in the press on 19.9.2009(Annexure

R-13). It is thus submitted that the petitioner herein is not entitled to

allotment of a dairy plot @ `2,500/- per sq. mtr. as claimed by him.

14. The Court has heard the counsels for the parties and gone

through the pleadings, apart from perusing the records of the

Department, as summoned.

15. The issue of the revised price of the developed plots at

`7,000/- per sq.mtr. as demanded by the respondent/MCD is no

longer res integra. The said issue has attained finality in view of the

judgment dated 24.12.2010 in the case of Rishi Pal (supra) wherein,

it was held that the aforesaid rate as demanded by the

respondent/MCD had been fixed in accordance with the procedure

prescribed under the Delhi Municipal Corporation Act, 1957. Thus,

there is no scope for reopening the same in the present proceedings,

and the claim of the petitioner that the respondent/MCD be directed to

allot him a dairy plot @ `2,500/- per sq.mtr. is found to be untenable

and is turned down.

16. As regards the second relief sought by the petitioner which

is for quashing of the impugned letter dated 14.12.2010 issued by the

respondent/MCD informing him about the Resolution No.78 dated

24.5.2010 passed by MCD, a perusal of which document reveals that

the Standing Committee of the Corporation had decided that the rate

of `7,000/- per sq.mtr. would be applicable for allotment of dairy plots

in Ghogha as per the requirement of applicants found running dairies

on encroached land and further, the rate of `7,000/- per sq.mtr. would

be applicable to fresh applicants uniformly for the allotment of the

remaining dairy plots as per requirement/eligibility in Ghogha

irrespective of whether their dairies were being run from premises

belonging to them or on encroached land. In view of the fact that the

aforesaid Resolution of the MCD has been scrutinized in the judgment

dated 24.12.2010 in Rishi Ram(supra) and upheld, the petitioner

cannot insist that the respondent/MCD be called upon to allot him a

plot @ `2,500/- per sq.mtr. as fixed earlier. Therefore, the issue of

determination of the rate of the plots allotted in the Ghogha Dairy

Colony Project cannot be re-agitated by the petitioner in the present

proceedings.

17. The hub and core of the argument of the learned Senior

Advocate for the petitioner was that the petitioner was running his

dairy on private land and not by way of encroachment on government

land and therefore the demand raised on him by the respondent/MCD

towards the payment of the allotted plot ought to have been at the

rate applicable to such applicants whose dairies were being run from

premises belonging to them.

18. It is relevant to note that nowhere in the petition did the

petitioner mention the fact that he had applied to the respondent/MCD

twice for allotment of the plots, first time in the year 2004 and for the

second time in the year 2010. Rather, the manner in which the

averments have been made in the writ petition shows that the

petitioner has suppressed the fact that he had submitted a second

application to the respondent in the year 2010. Interestingly, the

sequence of events as narrated in the writ petition gives an impression

as if the correspondence exchanged between the petitioner and the

respondent/MCD in the year 2010 related to the first application

submitted by him in the year 2004, for an alternate allotment, which is

contrary to the record.

19. Further, much emphasis was laid by learned Senior

Advocate for the petitioner on the fact that the correct address of the

dairy of the petitioner was "SE-64-65, Singhal Pur Village, Shalimar

Bagh, Delhi" and not "Behind Ram Bagh, near Haryana Canal, Delhi",

as mentioned in the receipt issued by the respondent/MCD. The

aforesaid submission loses significance in view of the fact that in

supersession of his earlier application submitted to the MCD in the

year 2004 for allotments of three plots, the petitioner had applied to

the respondent/MCD afresh in the year 2010 for allotment of two

plots and it was pursuant to the latter application that the

respondent/MCD had processed his case for allotment of two alternate

plots in the Ghogha Dairy Colony Project. It is also pertinent to note

that while submitting the said application in the year 2010, the

petitioner had affirmed the fact that he had not been allotted a dairy

plot in any authorized dairy colony by DDA/MCD/Govt. of NCT of Delhi

and that he had not concealed anything while submitting the

application. The aforesaid declaration submitted by the petitioner

alongwith his application was false to his knowledge as admittedly,

vide letter dated 23.5.2005, the respondent/MCD had already allotted

to the petitioner, one plot bearing No.A-141, measuring 96 sq.mtr.

under the same project.

20. The dispute with regard to the location of the dairy address

of the petitioner was sought to be urged by the learned Senior

Advocate for the petitioner by questioning the correctness of the

survey report dated 4.12.2007 prepared by the Committee constituted

by the respondent/MCD. In the said report, the residential address of

the petitioner was undoubtedly mentioned as "SE-64-65, Singhalpur

Village, Shalimar Bagh, Delhi", in column No.III, but in column IV, the

location of his dairy address was mentioned as "Behind Ram Bagh

Haryana Canal" . In the second last column of the aforesaid survey

report, the signature of the petitioner duly finds mention (Annexure

R-3). Similarly, a perusal of the survey report submitted by the Zonal

Committee to verify as to whether the dairy of the petitioner was

constructed on a government encroached land or on his own premises

also reveals that he was running the dairy on encroached government

land behind Haryana canal (Annexure R-4) and not on a premises

belonging to him. As a result of the above, on 2.2.2008, the

Allotment Committee had made a recommendation for allotting one

dairy plot measuring 96 sq.mtr. to the petitioner in the Ghogha Dairy

Colony Project.

21. All the aforesaid exercise was however brought to nought

by the petitioner himself when he applied to the respondent/MCD

afresh in the year 2010 and requested for allotment of two plots, each

measuring 96 sq.mtr. The said application clearly indicated that the

cost of each plot would be charged @ `7,000/- per sq.mtr. Having

applied afresh pursuant to the second advertisement invited by the

respondent/MCD in the year 2010 and having failed to reveal the fact

that earlier thereto allotment of a plot had been made in his favour

vide allotment letter dated 23.5.2005, the petitioner has forfeited his

right to seek entitlement to the earlier allotted plot bearing No.A-141,

measuring 96 sq.mtr. in the Ghogha Dairy Colony Project. Now, the

petitioner would have to abide by his latest application dated

19.4.2010 submitted to the respondent/MCD, pursuant to which he

had received a demand-cum-allotment letter dated 24.9.2010 from the

respondent/MCD approving allotment of two plots to him, each

measuring 96 sq.mtr. bearing No.K-34 & K-35 @ `7,000/- sq. mtr.,

which document the petitioner has not even bothered to place on

record, much less mention in his petition.

22. In view of the above discussion, the present petition,

therefore fails and is dismissed as being devoid of merits. As the time

fixed by the respondent/MCD for completion of formalities indicated in

its letter dated 14.12.2010 has long since expired, it is deemed

appropriate to grant the petitioner a period of four weeks from today

to complete the requisite formalities. If the petitioner approaches the

respondent/MCD within the stipulated time and submits all the

requisite documents as indicated in the demand-cum-allotment letter

dated 24.9.2010 and completes the formalities, including deposit of

the demanded amount, along with interest @ 10% p.a. from the last

date prescribed for payment, till the date of payment, after adjusting

the amounts, if any, already deposited by him, the respondent/MCD

shall process his application for handing over to him the possession of

the allotted plots. However, if the petitioner fails to make compliances

as noted above, the respondent/MCD shall be at liberty to cancel the

allotments or take such other action as it may deem fit. The parties

are left to bear their own costs.

                                                   (HIMA KOHLI)
MARCH 30, 2012                                        JUDGE
mk/sk