Delhi High Court
Sakal Sadh vs Commissioner Of Industires & Ors. on 5 December, 2014
Author: Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: December 05, 2014
+ RSA 377/2014
SAKAL SADH ..... Appellant
Through: Mr. Suresh C. Sati & Mr. Deepak
Kumar Pandey, Advocates
versus
COMMISSIONER OF INDUSTRIES & ORS. ..... Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
C.M.No.19874/2014 (u/S 5 of the Limitation Act r/w Sec.151CPC)
There is delay of 136 days in filing the accompanying second
appeal.
For the reasons stated in the application the delay of 136 days in
filing the accompanying second appeal is condoned.
The application is disposed of.
RSA No.377/2014 & C.M.No.19875/2014 (for stay)
Upon recording of the statement of representatives of respondent-
defendant, under Order X of CPC, appellant's suit for mandatory
RSA NO. 377/2014 Page 1
injunction to allot an alternate plot under the Industrial Relocation
Scheme of 1996 was decreed by trial court but the First Appellate Court
vide impugned judgment has set aside the decree and has remanded the
matter back to the trial court for proceeding with the suit in accordance
with law.
The factual background of this case as noticed by the trial court in
its order of 18th October, 2011 is as under:-
"The original file perused. The Joint Commissioner and
Dy. Commissioner of Commissioner of Industries are
present today and they are heard. From the perusal of the
file it transpires that the case can be disposed off if
representative of defendant no.2 and 3 is examined u/o 10
CPC because the facts will not remain disputed and
accordingly Sh. Brij Lal, Grade-II, Inspector of
Commissioner of Industries who is present today is
examined u/o 10 CPC. The pleas taken by the defendants
in the written statement is that the plaintiff was not
entitled to the allotment which is belied by document
Ex.PX which was never communicated to the
plaintiff/allottee/applicant. The facts on the file/record of
defendant no.2 and 3 are brought on the record by
examining the concerned person to the same effect. The
DSIIDC has submitted that they were unable to process
the case because the letter was never posted to DSIIDC
for actual allotment and if this recommendations as usual
could have been given to them they would have placed the
name of the allottee in the draw of lots as done in the
cases of other person but when the recommendation was
never received by them they could not do anything
further."
To assail the impugned judgment, learned counsel for appellant
contended that trial court has rightly decreed the suit after recording the
RSA NO. 377/2014 Page 2
statements of the senior officers of respondent-department and the First
Appellate Court has erroneously set aside the trial court judgment.
Learned counsel for appellant on instructions submits that
appellant is ready to pay the rate of allotment of the year 2001 because
for no fault of appellant and due to lapse on the part of respondents, the
allotment made was not communicated to appellant in the year 2001. It is
brought to the notice of this Court that in the fresh draw of lots on 10th
April, 2013, appellant has been allotted an industrial plot but at the
current rates. Thus, setting aside of impugned judgment and restoration
of trial court's judgment is sought in this appeal.
Upon hearing and on perusal of judgment of the courts below and
the material on record, I find that mere production of a recommended
allotment of industrial plot does not justify decreeing of the suit on the
basis of submissions made by Mr. Brij Lal, Grade II, Inspector, Office of
Commissioner of Industries, under Order 10 of CPC by invoking
provisions of Order 12 Rule 6 CPC because there is no clear and
unequivocal admission of a proper allotment of industrial plot, as there
was only a recommendation. In fact, there was no actual allotment of an
industrial plot in favour of appellant/plaintiff. It is apparent from the
statement of aforesaid Brij Lal that the recommendation was not
forwarded to the concerned department. In such a situation, decreeing of
suit on the basis of statement of an official of respondent-department
recorded under Order 10 of CPC would not justify decreeing the suit by
invoking the provisions of Order 12 Rule 6 CPC.
In the considered opinion of this Court, trial court had erred in
doing so and the First Appellate Court has rightly set aside trial court's
RSA NO. 377/2014 Page 3
order of 18th October, 2011. Impugned judgment of 5th April, 2014 does
not suffer from any perversity. No substantial question of law arises in
this second appeal.
Consequentially, this appeal and the application are dismissed with
no order as to cost.
(SUNIL GAUR)
JUDGE
DECEMBER 05, 2014
r/mb
RSA NO. 377/2014 Page 4
