Delhi High Court

Dda vs Meenakshi Choudhrie And Ors on 26 November, 2013

Author: S.Ravindra Bhat

*   IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                       Date of Decision: 26.11.2013

+   LPA 673/2012, LPA 878/2012, LPA 854/2012, LPA 859/2012, LPA
    876/2012, LPA 6/2013, LPA 18/2013, LPA 866/2012, LPA 883/2012,
    LPA 22/2013, LPA 864/2012, LPA 882/2012, LPA 857/2012, LPA
    21/2013, LPA 862/2012, LPA 880/2012,   LPA 30/2013, LPA
    871/2012, LPA 20/2013, LPA 861/2012,   LPA 875/2012, LPA
    11/2013, LPA 884/2012, LPA 874/2012, LPA 19/2013, LPA
    867/2012, LPA 873/2012, LPA 17/2013, LPA 23/2013, LPA
    872/2012, LPA 865/2012, LPA 879/2012, LPA 863/2012, LPA
    7/2013, LPA 868/2012, LPA 802/2013, LPA 804/2013


    DDA                                            ..... Appellant
                             Through: Mr.Ajay Varma, Advocate

                             versus

    MEENAKSHI CHOUDHRIE AND ORS          ..... Respondents

    MANMOHAN SINGH                       ..... Respondent
    MADAN LAL JAIN                       ..... Respondent
    CAPITAL LAND BUILDERS PVT. LTD       ..... Respondent
    GENERAL GARMENT (DELHI) PVT. LTD.    ..... Respondent
    USHA SERVICES & CONSULTANTS LTD.     ..... Respondent
    S.P.JAIN & COMPANY                   ..... Respondent
    MEXIT (INDIA) P. LTD.                ..... Respondent
    DHARAM BIR                           ..... Respondent
    S.P. SABHARWAL                       ..... Respondent
    SEIKI AUTO (I) LTD. & ORS.           ..... Respondent
    ASHA VIRMANI & ORS.                  ..... Respondents
    HARINDER SINGH                       ..... Respondent
    PEAREY LAL                           ..... Respondent
    S P VIRMANI & SONS P. LTD. & ORS.    ..... Respondents
    PAMA STEELS PVT. LTD.                ..... Respondent

JYOTI METAL & ALLIED INDUSTDRIES PVT. LTD. & ORS.

LPA Nos.673/2012, 878/2012, 854/2012, 859/2012, 876/2012, 6/2013, 18/2013, 866/2012, 883/2012, 22/2013, 864/2012, 882/2012, 857/2012, 21/2013, 862/2012, 880/2012, 30/2013, 871/2012, 20/2013, 861/2012, 875/2012, 11/2013, 884/2012, 874/2012, 19/2013, 867/2012, 873/2012, 17/2013, 23/2013, 872/2012, 865/2012, 879/2012, 863/2012, 7/2013, 868/2012,

..... Respondents CARMAN AUTO (P) LTD. ..... Respondent SHREE KISHAN ..... Respondent MAA KALI STEELS PVT. LTD. ..... Respondent PUSHKAR ENTERPRISES P. LTD. ..... Respondent PATAMBER STEELS (P) LTD. ..... Respondent JAIKISHAN DAS GUPTA & ORS. ..... Respondents KEI METAL (P) LTD. ..... Respondent SONAL UDYOG (P) LTD. ..... Respondent DELHI INDUSTRIAL CORPORATION & ORS. ..... Respondents SOUTH END INDUSTDRIES ..... Respondent SHIB CHANDRA BANERJEE FAMILY TRUST ..... Respondent ANA SALES PVT. LTD. ..... Respondent ORIENT BUILDING & FURNISHING CO.P.LTD...... Respondent S.K. AGGARWAL ..... Respondent S TECH INFO (P) LTD. ..... Respondent VINAYAKAM STEEL P. LTD. ..... Respondent SHYAM SUNDER ..... Respondent DESH INDUSTRIES ..... Respondent HINDUSTAN CONSTRUCTION CO LTD ..... Respondent RAJKAMAL PATTERNS PVT. LTD. & ORS. ..... Respondent Through: Ms.Pooja Saigal with Ms. Mithila Sharma, Advocates in LPA 883/12 Mr.Sumeet Pushkarna with Ms. Sara Sundaram, Advocates for DJB Mr.Keshav Dayal, Sr. Advocate with Mr. Aditya Kumar Choudhry, Mr.Nazish Fatima, Advocates for R-1 to 4.

Mr.Mr.Amit Mahajan, Advocate in items 883/12 & 20/2013 Ms.Manmeet Arora, Ms.Nidhi Parashar, Ms.Mansi Sharma, Advocates in LPA 872/2012 Mr.Sanjay Poddar, Sr. Advocate with Mr.Sunil Magon, Advocate in LPA 18/2013 Ms.Namrata Sharma, Advocate for Mr. B.

Shekhar, Advocate for South MCD Ms.Mansi Gupta, Advocate for R-2 in LPA 882/2012

Ms.Ruchi Jain, Advocate for SDMC in LPA 867/2012 Mr.Dhiraj Sachdeva, Advocate for R-1 in LPA 673/2012 Mr.Arjun Pant, Advocate for NCT of Delhi Mr.Naresh Sharma, Advocate for LPA 673/2012 Mr. R.Chakraborty, Advocate in LPA 23/2013 Mr.R.Chakraborty, Advocate in LPA 6/2013 Mr.Kapil Kumar, Advocate for SEIKI Mr.Harpreet Singh, Mr.Rajesh Gupta, Advocates for Mohan Co-operative Industrial Estate Ltd.

Mr.Sunil Fernandes, Standing counsel for BSES RPL with Mr.Deepak Pathak and Ms.Insha Mir, Advocates Mr.Dev Bhardwaj and Mr.Anubha Bhardwaj, Advocates for R-2/MCD in LPA 673/2013 Mr. Puneet Saini, Advocate for the respondent Mr.D.P.Mohanty with Ms.Sanjana, Advocates for respondent /HCC Ms.Pooja Kalra, Advocate for R-2/SDMC Mr.Sameer Jain with Mr.Siddharth Jain and Mr.Sandeep Bajaj, Advocates for respondent in LPA 880/2012.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

% MR. JUSTICE S.RAVINDRA BHAT (Open Court)

1. The present appeals are directed against a common judgment and order

of the learned Single Judge of 8th May, 2012. By the impugned

judgment, the learned Single Judge partly allowed the respondents'

(hereinafter referred to as 'petitioners') writ proceedings initiated under

Section 226 of the Constitution of India. It was contended by the

petitioners in those proceedings that the appellant/Delhi Development

Authority (hereinafter referred to as DDA) could not claim charges in

respect of the period when the plots allotted to them (i.e. the

petitioners) had not been constructed upon.

2. The brief facts are that the writ petitioners are the allottees of the sub-

lessee in the Mohan Co-operative Industrial Estate registered under the

provisions of the Societies Registration Act (hereinafter referred to as

'The Society').

3. The Society was allotted a land in 1963 for the purpose of development

and allotment of individual plots to be enjoyed on sub-lease basis to its

members. A perpetual lease deed dated 11.2.1971 was followed by a

sub-lease dated 7.1.1972. One of the conditions governing the lease and

the sublease was the timely construction of buildings/industrial

property upon the concerned plots allotted to each sub-lessee. It is a

matter of record and not a serious dispute that due to lack of facilities

and amenities that make up for the fuller enjoyment of such property,

constructions could not be carried out by the individual sub-lessees for

a considerable period of time. Consequently, the DDA granted several

extensions relieving the sub-lessee/individual plot holders of the

obligation to construct upon their properties; in default of which, the

plot owners would face cancellation of the allotment. This is of course

in the nature of a condonable breach, subject to payment of

composition fee. As stated earlier, it is a matter of record that on

several occasions, DDA granted extension to the plot owners having

regard to the realities on the ground - these were on 31.8.1997

(extension granted was up to 31.12.1998); on 17.1.1989 (granted up to

31.12.1989); 1.1.1990 (granted up to 31.12.1990), 3.6.1991 (extension

granted up to 31.12.1991) and last being on 21.3.1996 for a period upto

31.12.1992.

4. In this background of circumstances, the DDA sought to call upon the

plot owners to pay composition fee by individual notices as well as

through public notice. This led to a series of proceedings being filed

(some in 1999 and some from 2001 onwards).

5. In one of these proceedings, i.e. WP(C) no.79/98, (where the writ

petitioner's complaint was that the DDA acted in an arbitrary fashion in

seeking the recovery of composition fee), the Court directed a joint

inspection of the entire society land on 12.4.1999. This inspection was

carried out by senior officials of the DDA and other local authorities

such as MCD, and the erstwhile DVB (electricity service provider).

The findings and the observations of the Inspection Committee were

placed on record. The petitioners relied upon the said observations in

the inspection report as well as the report of the Lok Adalat

subsequently conducted on 26.12.2000. The Lok Adalat had considered

the record of the DDA, especially the file notings, related documents

and the minutes of the meeting of the concerned Committee dated

19.2.96 which recommended the last inspection up to 31 st December,

1992.

6. The learned Single Judge after considering the submissions of the

parties and the position taken by the DDA, held that in the

circumstances of the case, the DDA ought not to recover or demand

composition fee for the period up to 31.12.99. At the same time, the

learned Single Judge allowed the DDA to collect composition fee from

the period 1.1.2000 i.e. after reckoning the three year period given for

construction for some time in 1997.

7. The relevant findings of the learned Single Judge in the common

impugned order are as follows:-

"9. Having deliberated upon the submissions advanced in the light of the decisions cited and the material on record, I find that respondent‟s Lok Adalat order (Annexure P-7) does not have binding effect in view of the decision in Jalour Singh (Supra) but the cogent recommendation made therein can always be taken into consideration.

10. In any case, not only in the inspection conducted by the respondent‟s Lok Adalat but even in the Joint Inspection Report of 24th September, 1999 (Annexure P-17), it was found that the basic infrastructure in the Mohan Co- operative Industrial Estate was lacking i.e. trunk sewer and trunk water mains were in the process of being laid and the power supply was recently commissioned in July, 1999.

11. The averments made in respect of aforesaid Joint Inspection Report of 24th September, 1999 (Annexure P-

17) are contained in paragraph No. 16 of the writ petition and in the corresponding paragraph of the counter affidavit, it is merely stated by the respondent - DDA that it is a matter of record and needs no reply. In such a situation, the respondent cannot fall back upon the „no objection certificates‟ issued in respect of A Block of the Mohan Cooperative Industrial Estate. Pertinently, none of the „no objection certificate‟ pertain to B block of Mohan Cooperative Industrial Estate i.e., relating to the subject matter of these petitions.

12. In view of the ratio of the decision in Hamdard (supra) and the Joint Inspection Report of 24th September, 1999 (Annexure P-17), and particularly in view of the stand of

respondent - DDA in its counter affidavit of the basic amenities being available when the counter filed i.e. in May, 2001, it becomes apparent that the basic amenities to enable raising of construction on plots in „B‟ Block of Mohan Cooperative Industrial Estate were not available prior thereto. It cannot be ignored that the respondent

-DDA had issued a Public Notice (Annexure P-3) giving the deadline of 30th June, 2001 to complete the construction while making it clear that no further extension would be given beyond the aforesaid date.

13. Viewed in the afore-noted perspective, respondent -

DDA is precluded from charging the composition free from the petitioners up to 31st December, 1999 and for calculating composition fee, 1st January, 2000 would be treated as the fourth year after expiry of three years of perpetual sub-lease."

8. It is urged on behalf of the DDA that the learned Single Judge fell into

error in proceeding to enter what essentially was a policy choice and in

directing the DDA to recover composition fee on a particular basis.

The learned counsel relied upon the licence agreement of 24.7.1963,

and especially the following provisions:-

"I. The President hereby grants, for a period of three years commencing from the Twenty fourth day of July one thousand nine hundred and sixty three (and the time so specified shall be of the essence of the contract) a licence to the Society to enter upon the said land only for the purposes of making surveys and taking measurements and levels for preparing a lay-out plan with the necessary designs and specifications dividing the said land into streets, open spaces, plots, etc, and, and after the

sanction of the lay-out plan by the proper municipal or other authority, to enter upon the said land to carry out and complete and the Society hereby undertakes to carry out and complete within the said period of three years to the satisfaction of the Chief Commissioner at its cost and expense, development including metalling of streets, provision of sewers and drains, water and electric mains, amenities and other conveniences in and on the said land; in accordance with the said lay-out plan, and also in and on the land beyond and outside the said land for the proper use and enjoyment of the said land in accordance with the directions of the Chief Commissioner which he may in his absolute discretion issue in this behalf.

9. It was thus contended that the primary responsibility of developing and

creating facilities and other amenities for the proper or fuller enjoyment

of the property allotted to the sub-lessee was upon the Society. The

learned counsel also submitted that the failure on the part of the civic

agencies such as MCD or the DJB or the DVB, could not in any

manner restrict its right to recover composition fee in accordance with

existing policies that bound both the allottee and the DDA.

10. The learned counsel for the DDA argued that the question as to whether

the amenities did not exist as alleged by the writ petitioner was

essentially one of the fact and the learned Single Judge would have

been better advised not to return any finding on such disputed questions

of fact. It was underlined in this regard that this caution ought to have

been borne in mind especially given the circumstance that out of 337

allottees or sub-lessees, more than 240 had constructed upon the plots

in 1999 itself, thus giving lie to the contentions of the writ petitioners

that the plots in question could not be constructed upon. The learned

counsel also relied upon the inspection note dated 24.9.99 submitted to

the Court and urged that an overall reading of the said document would

demonstrate that the writ petitioners' submissions about the lack of

amenities were only an afterthought to escape payment of composition

fee. The learned counsel particularly relied upon the contents of the

report to say that some fault was attributable to the Society which had

to share a substantial part of the blame for the delay in developmenst.

11. In these circumstances, the learned counsel submitted that the learned

Single Judge could not have restricted the DDA's right to recover the

composition fee on the basis of the instant policies.

12. Lastly, learned counsel relied upon the policy enabling the DDA to

grant relief in terms of the clause 1.4 of the revised guidelines for the

imposition of composition fee (notified through Office Order F. No.

AO(Proj)Misc./Composition/ Pt. 1/36 dated 31.10.1995), and submitted

that exemption could be granted only in respect of those identified

contingencies and not otherwise. Creating more heads would really

amount to the Court extending itself to what in essence is, a pure

administrative or policy-making function.

13. In this context reliance placed the judgment in Hamdard (Wakf)

Laboratories (India) v. Delhi Development Authority, WP(C) Nos.

4043/98, 2872 and 3412/2001 and 7372/2002 (decided on 22.11.2004),

identifying the relevant circumstances that the Court calls upon to

decide the case. The learned counsel also submitted that the impugned

order is in clear error in proceeding to consider the report of the Lok

Adalat which can never be the basis for a decision on merits. In this

regard, reliance was placed upon State of Punjab & Anr. v. Jalour

Singh & Ors, 2008 (2) SCALE 52.

14. The learned senior counsel for the respondents submitted that the

impugned order does not call for any interference as it properly

balanced the interests at stake. Refuting the DDA's contention that : in

fact the Society or some of its members were to be blamed for the delay

in development and creation of amenities, counsel submitted that the

very circumstance of the DDA having granted repeated extensions (the

last being in 1996 itself) evidenced the acceptance of the ground

realities and the lack of fault on the part of the sub-lessees. It was

further submitted that even though the Lok Adalat report is not binding

upon the Court, nevertheless, it has persuasive value inasmuch as the

concerned presiding officer of the Lok Adalat had the benefit of

examining the concerned files especially in respect of the last extension

granted on 21.3.96.

15. It was argued that the submissions with regard to construction of a

large number of plots and the inabilities of the other sub-lessee has to

be considered in the overall context of the circumstances and the

peculiar realities prevailing at the ground level. The learned counsel

urged in this regard that there was no consistent development of the

entire society which was even noticed by the learned Single Judge. It

was also argued that the DDA's reply in writ proceedings was bereft of

any particulars - an aspect which was taken note by the learned Single

Judge.

16. The above narrative would disclose that this Court is called upon to

pronounce upon a very narrow dispute i.e. the liability of the writ

petitioners to pay composition fee for the period between 01.1.1993 to

31.12.1999. Concededly, the DDA was allowed to grant extensions

and it granted not one but four repeated extensions. Moreover, a

significant aspect which cannot be overlooked is that the last extension

granted was on 21.3.96, and like in previous four cases, each of which

was effective prospectively, the last extension though made on

21.3.1996 was granted up to 31.12.1992. Whilst this Court has no

doubt about the competence of the DDA to limit the grant of a certain

benefit to a particular date and though the last extension granted was

only upto 31st December, 1992, no answers are forthcoming nor are

there materials on record able to justify why the benefit of extension of

time in the present instance was, though the last extension granted was

only upto 31st December, 1992, for a period almost four years prior to

the issuance of the order itself. Crucially, even the DDA's counter

affidavit and other pleadings are silent on this aspect, which surely

could have thrown some light on whether the developments had indeed

taken place to such an extent as to warrant denial of benefit w.e.f.

01.1.1993.

17. The contention of the DDA today that based upon these averments in

paragraph 22 ground 'C' of the counter affidavit that a majority portion

of the Society had been developed and built upon to the extent of 90%

or that 249 allottees had built plots, in the opinion of the Court, cannot

be accepted facially. The report, to the extent it is relevant, is

reproduced below:

"DVB- The report of DVB vide letter No.XD/NZD/2/268 dated 17.9.99 copy enclosed together with the annexures containing the background of the case as per letter dated 13.1.98. Electricity services-

1.0) Initially request for electrification of block „A‟ MCIE was received in the year 1965. But the scheme did not materialise as the payments were not remitted by the association/plot holders. Subsequently requests for Block „A‟ B-I, B-I Extn. and B-II were received from time to time.

1.1) However, subsequently, on realisation of 50% of party payable share towards electrification scheme of 14 nos. plots located in Block „A‟ were released for execution in June, 1984. 2.0) Thereafter, the electrification of „B‟ Block respective plots measuring 1000 sq. yards and above was also sorted out for granting connections on LV as per the resolution No.511 dt. 14.1.98 by DVB, refer Ann. I together with its enclosures. 2.1) Summarily, the schemes prepared for the electrification from time to time for meeting the demand of power did not materialise for reasons resting with the plot holders."

18. The above portions of the inspection report have been heavily relied

upon heavily by the DDA to contend that the fault primarily would be

on the Society and the plot holder concerned for the non-development

of the area leading to denial of amenities.

19. The reasoning given by the learned Single Judge accepted the

petitioner's contention on an overall consideration of the joint

inspection report, lack of particulars in the pleadings of the DDA and

the very circumstance in which the appellant/DDA itself had granted

inspections (the last one being on 21.3.96). This Court is of the opinion

that having regard to the materials presented before the Court, the

findings cannot be faulted. The DDA's contention in this regard that it

alone has the last word on policy, whilst as a proposition of law is

correct, it cannot be viewed in isolation of the facts before the Court.

The DDA's right to recover composition fee of charges undoubtedly is

to be within the parameters of its policy. What is in issue here is ether

the inconsistence in adhering to that policy despite certain external

circumstances can be called arbitrary or unreasonable. It is not as if the

DDA with good reason was oblivious to the concern of the plot holders

that the amenities had not been developed to the fullest or to the

requisite level for the fuller enjoyment and use of the allotted lands. By

granting extensions no less than five times, the DDA accommodated

the plot holders who were caught up in the crossfires of the workings of

the agency itself. However, it is inconsistent for the DDA to now hold,

and without any further material or rationale, that composition fee

would be recoverable w.e.f. 1.1.93 in the circumstances of this case.

Thus the finding of the learned single judge was reasonable and the

Court does not find any reason to interfere with the same.

20. Next is the DDA's contention that clause 1.4 of its composition fee

policy of 1995 limited the scope for grant of relief, and that this again

is a matter of policy. Nevertheless, if on an appreciation of the

materials on record, the Court in proceeding under Article 226 of the

Constitution is convinced that the discretion exercised by the DDA in

refusing composition fee was unreasonable, such an exemption clause

regarding limited choice would not create an impediment to granting

relief. It is not as if the policy is immutable; neither is it carved in

stone nor is it a statutory one, such that it could compel the Court to cut

down nature of the relief which it could grant, once the attendant

circumstances justified it. Consequently, this argument fails to persuade

to this Court, and the distinction sought to be drawn between the facts

of this Court and those in Hemraj's case, in the opinion of this Court,

are of no consequence. Undoubtedly, the Court was concerned with

the fault of the DDA, which led to the property owner being unable to

enjoy the plot. In this case, there are a series of circumstances, i.e. the

failure of the civic agency such as MCD, DVB and the

latters/successor, in making available the basic amenities such as

electricity and sewerage in the concerned areas where the plot owners

were given their sub-lessee, which distinguish it from Hemraj's case.

Having regard to all these facts, the Court is not persuaded by the

DDA's submission that the limited relief granted by the Single Judge

was not warranted.

21. In view of the above discussion, the Court holds that the DDA's

appeals are meritless and consequently, the same are dismissed.

S. RAVINDRA BHAT (JUDGE)

NAJMI WAZIRI (JUDGE) NOVEMBER 26, 2013 RN

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