St.Sophias Christian Education ... vs D.D.A. And Anr
2012 Latest Caselaw 5503 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 13th September, 2012

+                                LPA 130/2006

       ST.SOPHIA'S CHRISTIAN EDUCATION
       SOCIETY                                     .... Appellant
                     Through: Mr. Susheel, Mr. Pranav Sapra for
                              Mr. Sunil Goel, Adv.

                                   Versus

       D.D.A. &ANR.                                       ..... Respondents

Through: Ms. Sangeeta Chandra, Adv. for DDA.

CORAM :-

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

A.K. SIKRI, ACTING CHIEF JUSTICE

1. This appeal of the year 2006 impugns the order dated 8th December,

2005 passed by the learned Single Judge dismissing W.P.(C)

No.14484/2004 preferred by the appellant Society.

2. From the order sheet we find that this appeal was admitted on 25 th

January, 2006; thereafter as per its turn it came up for hearing on 29th

January, 2010 but nobody appeared on behalf of the appellant Society on

that date. The appeal was dismissed for non-prosecution. Thereafter the

LPA 130/2006

appellant Society filed application for restoration. The appeal was restored

on 12th March, 2010 subject to payment of costs and it was directed that the

appeal be listed in the category of „Regular Matters‟. Thereafter the matter

reached for hearing on 15th March, 2012. As nobody appeared on behalf of

the appellant Society even on that date, this Bench, after going through the

records, on merits dismissed the appeal.

3. The appellant Society still chose to file another application for

restoration. In this application it was pointed out that an amount of

Rs.2,00,00,000/- was deposited sometime in the year 2008 and which fact

had not been considered by us while dismissing the appeal. Since this fact

was brought on record, this Court deemed it proper to give one more

opportunity to the appellant Society to argue the matter. Going by this

consideration, vide order dated 6th September, 2012 the application for

restoration was allowed and LPA was directed to be listed for hearing today.

4. Today again, the arguing counsel for the appellant Society is not

present and on his behalf adjournment is sought. Having regard to the

aforesaid history of this appeal, we are of the opinion that no further

indulgence needs to be given to the appellant Society. Neither there is any

justifiable reason for asking the adjournment nor the proxy counsel, who LPA 130/2006

appears for the appellant Society is ready to argue the matter. We feel that

the intention of the appellant Society is only to prolong the case and to

avoid hearing before this Bench. For this reason we have rejected the

request for adjournment. We have heard the counsel for the respondent

DDA.

5. The appellant Society was, vide demand-cum-allotment letter dated

19.04.1983, allotted (by the respondent DDA) land ad-measuring 4 acres at

Block-A, Paschim Vihar, Delhi for construction of a Higher Secondary

School. The said letter specified the terms and conditions of allotment,

including of the appellant Society being required to deposit with the DDA a

sum of `12,30,000/- towards cost of land and ground rent for one year for 2

acres of land and `1/- as Licence Fee for 2 acres of playfield, within 60 days

from the date of issuance of the letter. It was further provided that in case

payment of cost of land was not made within the stipulated period, it will be

presumed that the appellant Society is not interested in the allotment and the

same will be withdrawn. Vide subsequent letter dated 11.07.1983 of the

DDA, the amount which the appellant Society was required to deposit was

reduced to `6,15,901/- on provisional basis; the other terms and conditions

remained the same as in the letter dated 19.04.1983.

LPA 130/2006

6. Admittedly, even the said sum of `6,15,901/- was not deposited

within the stipulated time; only a sum of `1,00,000/- was deposited on

30.12.1983 and the appellant Society claims to have taken possession of the

land on the same day i.e. 30.12.1983.

7. The appellant Society in or about the year 2004 instituted W.P.(C)

No.14484/2004 (from which this appeal arises) pleading that it had

authorized Mr. M.M. Samuel, Chairman of the Managing Committee of the

School to deposit a sum of `3,76,000/- with the DDA and to take possession

of the land; however, the said Mr. M.M. Samuel deposited only `1,00,000/-

and took possession of the land and illegally started running a School of his

own on the said land; that the appellant Society was thus compelled, to in or

about October, 1984, institute a suit against the said Mr. M.M. Samuel; that

Mr. M.M. Samuel filed a counter suit asserting himself to be in the

management of the Society; that Mr. M.M. Samuel continued to so illegally

occupy the land and run a parallel school thereon till his death on

09.02.1988; that after his death his legal heirs retained possession of the said

land; that finally in the year 2003 a compromise was arrived at between the

legal heirs of Mr. M.M. Samuel and the appellant Society and all claims of

LPA 130/2006

Mr. M.M. Samuel / his legal heirs were withdrawn and the appellant Society

placed in possession of the land.

8. It is further the case of the appellant Society that after coming into

possession of the land, it deposited a sum of `5,00,000/- with the DDA in

October, 2003 towards the balance cost and a sum of `5,40,000/- towards

ground rent and sought No Objection Certificate (NOC) from the DDA for

raising construction on the said land. Upon DDA not issuing the said NOC,

the writ petition aforesaid was filed against the DDA to issue a demand note

in respect of the balance amount payable towards the cost of the land and to

issue NOC for raising the construction thereon.

9. DDA opposed the writ petition aforesaid pleading that the appellant

Society was, vide letter 11.02.1987 asked to pay the entire balance amount

of `11,31,001/- with interest at 18% per annum within 15 days and

informed that failing such payment, the allotment will be cancelled; no

payment was however made; that W.P.(C) No.798/1987 was however filed

by the appellant Society impugning the said letter dated 11.02.1987 and vide

interim order wherein DDA was restrained from effecting cancellation,

subject to the appellant paying a sum of `5,00,000/- to the DDA within two

weeks; the appellant Society however failed to comply with the said order LPA 130/2006

and as a result whereof the said interim order dated 23.04.1987 was vacated

and finally on 24.10.2002 writ petition was dismissed for non prosecution.

It was further pleaded that the appellant Society had been in possession of

the land for over 20 years inspite of allotment in its favour having stood

cancelled. It was yet further pleaded that restoration could only be on

current norms and at current prices. It was informed that as per the then

current norms, the appellant Society was entitled to only 2 acres of land. It

was yet further pleaded that even if the payment earlier made of `1,00,000

and of `5,00,000/- made in the year 2003 was to be taken into

consideration, the same was against the total payment of `12,30,000/- and

the appellant Society being in default, was not entitled to any relief.

10. Notwithstanding the aforesaid, DDA during the pendency of the writ

petition (from which this appeal arises), vide letter dated 15.03.2005 offered

terms for regularization to the appellant Society. As per the said terms, the

appellant was to vacate 2 acres of land and for the balance 2 acres to pay

`2,12,450.57 within 60 days of the issuance of the letter.

LPA 130/2006

11. Needless to state, the appellant Society did not deposit the said

amount.

12. The learned Single Judge vide impugned order dated 08.12.2005, in

the facts and circumstances aforesaid, held the appellant to be a constant

defaulter and upheld the action of the DDA of treating the allotment earlier

made in favour of the appellant Society to be cancelled and dismissed the

writ petition. Option was however given to the appellant Society to pay the

premium as per the fresh demand letter dated 15.03.2005 and seek

regularization.

13. The appellant Society did not comply with the fresh demand letter

dated 15.03.2005 for regularization also and instead filed this appeal. We

may highlight that there has been no interim order in this appeal. The

appellant however in its application dated 05.03.2010, earlier moved for

restoration of the appeal, informed that it had in terms of the liberty granted

by the learned Single Judge, deposited a sum of `2,00,00,000/- with the

DDA on 01.09.2008, "in the spirit of settling the matter and having the

allotment regularized".

LPA 130/2006

14. We had, while restoring the appeal on 06.09.2012, enquired from the

counsel for the appellant Society whether the appellant Society was even

now willing for regularization of the allotment earlier made in its favour.

The counsel for the DDA had informed that as per the changed Norms, the

appellant Society was not entitled to land admeasuring 4 acres and could get

land admeasuring maximum 2 acres only. It was yet further informed that

as per the amendment of the year 2006 to the Delhi Development Authority

(Disposal of Developed Nazul Land) Rules, 1981, the practice earlier

prevalent of allotment of land at pre-determined rates to the Societies, as the

appellant is, has been discontinued and all lands were disposed of through

auction. The counsel for the DDA had on that date as well as today also

produced before us the original records of the DDA pertaining to the land in

question and which show that the request made by the appellant Society to

the DDA in the year 2008 after deposit of the sum of `2,00,00,000/-

aforesaid was considered by the Hon‟ble Lieutenant Governor, Delhi on

16.03.2011 and it was ordered that the DDA was ready to consider the

request of the appellant for restoration of allotment and regularization only

if the appellant surrenders 2 acres of land and whereupon the balance

amount payable for the remaining 2 acres would be computed. The counsel

LPA 130/2006

for the appellant Society however on that date had unequivocally stated that

the appellant Society was not willing for the said terms and thus this appeal

was posted for hearing.

15. The appellant Society has impugned the order of the learned Single

Judge on the ground that it was not to be blamed for non payment of the

demanded amount within time, and placing the blame therefor on Mr. M.M.

Samuel. It is further pleaded that notwithstanding non payment, no

cancellation letter was issued; that the cancellation letter of 11.02.1987 had

lost relevance in view of the payments deposited by the appellant Society in

the year 2003 including of ground rent and the demand letter dated

15.03.2005. It is further pleaded that cancellation would affect the School

already being run on the said land.

16. We have considered the aforesaid grounds in the Memorandum of

Appeal and do not find any merit therein. The demand letter of 19.04.1983

was in the form of an offer, which the appellant Society was to accept in the

manner provided, by making payment as demanded. The letter itself

provided that upon the appellant not so accepting the offer, the same shall

stand withdrawn. Admittedly, the appellant did not accept the offer. The

internal disputes as to the management of the appellant Society cannot affect LPA 130/2006

the deemed cancellation in terms of letter dated 19.04.1983 itself. We are

also of the opinion that the appellant was not entitled to any relief in the writ

petition for the reason of the appellant having earlier preferred W.P.(C)

No.798/1987 impugning the cancellation of the year 1987 and which writ

petition was dismissed. Upon dismissal of the writ petition, cancellation

acquired finality and the second round of writ petition in any case was not

maintainable.

17. The subsequent payments of the year 2003 by the appellant Society,

of its own volition, cannot create any rights in favour of the appellant

Society. We are further of the view that the deposit in the year 2008 by the

appellant Society of `2,00,00,000/- is also of no avail. Firstly, it is to be

noticed that the said deposit was made after nearly three years of the

dismissal of the writ petition. It was also not within the time stipulated in

fresh demand letter dated 15.03.2005 and which also thus lapsed. No error

can thus be found in the order of the learned Single Judge of holding the

appellant Society to be a chronic defaulter and of dismissal of the writ

petition. Similarly, the pleas of the appellant of having a running a School

on the said land, carry no weight. Admittedly, no construction has been

authorized on the land till now and the School if any being run by the

LPA 130/2006

appellant Society on the said Land is illegal. Admittedly, no recognition

even has been granted thereto. The running of the said School itself is thus

contrary to law and no benefit of the same can be derived by the appellant

Society.

18. We cannot also but help observe that it is strange that the appellant

Society was delivered possession of the land on payment of a sum of

`1,00,000/- as against the demanded amount of `6,15,901/- and only upon

payment of which amount, the possession was to be delivered. We also find

it strange that notwithstanding the cancellation of allotment and dismissal of

the earlier writ petition preferred by the appellant, no steps have been taken

for recovering possession of the land. No rights accrued in favor of the

appellant Society on allotment without the appellant Society fulfilling the

terms thereof. Once it is found that no rights accrued in favour of the

appellant, the disposal of land by the DDA has to be in terms of the norms

as prevalent on the date when the decision is to be taken. It is common

knowledge that pre-determined rates on which allotment was earlier made,

were far below the market rate.

LPA 130/2006

19. We therefore do not find any merit in this appeal and dismiss the

same.

No costs.

ACTING CHIEF JUSTICE

RAJIV SAHAI ENDLAW, J SEPTEMBER 13, 2012 Pp/gsr

LPA 130/2006