Mount Carmel School Society vs Delhi Development Authority & ...
2014 Latest Caselaw 6932 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                           W.P. (C) No.1687/2014

                                    Decided on : 18th December, 2014

MOUNT CARMEL SCHOOL SOCIETY              ...... Petitioner
           Through: Dr. Jose Verghese, Mr. Jawahar Singh &
                     Ms. Priya Singh, Advocates.

                        Versus

DELHI DEVELOPMENT AUTHORITY & ANR. ...... Respondents
             Through: Ms. Shobhana Takiar, Adv. for DDA.
                      Ms. Zubeda Begum, SC for R-2 & 3.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

C.M. No.17983/2014

1. This is an application for staying the construction raised by

respondent Nos.2 and 3 in respect of plot of land in question, which is

purported to have been allotted to the petitioner. Alternatively, the

petitioner has prayed for grant of an order of status quo.

2. I have heard the learned counsel for the petitioner as well as

learned counsel for the respondents.

3. The case of the petitioner is that it has been allotted only two acres

of land while as its case was recommended in the year 1996 for four acres

of land. It is contended by Mr. Jose, the learned counsel for the petitioner

that prior to this, litigation was started by the petitioner society against

the respondent/DDA for allotment of four acres of land which went right

upto the Supreme Court; however, the same was unsuccessful. The case

which was setup by the petitioner in the said petition was that it was

recommended for four acres of land but it had been allotted only two

acres of land in accordance with the policy which was prevalent at the

time of allotment.

4. It is the contention of the learned counsel for the petitioner that

after disposal of the special leave petition by the Apex Court, the

petitioner learnt about the fact that there were nine other societies, who

were allotted four acres of land by the respondent/DDA and thus, the

petitioner was discriminated which resulted in filing of the present writ

petition.

5. It is contended by the learned counsel that as the petitioner's claim

for this additional land of two acres is the adjoining land to their plot of

land, the respondent be restrained from raising any construction.

6. The learned counsel has also stated that in order to show its bona

fides, the petitioner society has already deposited a sum of Rs.25 lacs on

16.10.2014 pursuant to the orders passed by this court and, therefore, the

respondent be restrained from creating equities in their favour.

7. The learned counsel for the respondent/DDA has contested the plea

of the learned counsel for the petitioner. She has drawn my attention to

the judgment of the learned single judge wherein the petitioner's claim

for allotment of four acres of land was rejected on account of the fact that

the DDA had taken a categorical stand that after October, 1999, no

society whatsoever was allotted four acres of land. The learned single

judge had also taken note of the fact that the premium which was being

charged by the respondent was known to the petitioner and the petitioner

was free to accept the allotment of the said parcel of land at the rate at

which it was being offered to it. Meaning thereby that it had a right to

accept or reject the allotment of the said parcel of land.

8. It has, accordingly, been contended by Ms. Takiar that once the

aforesaid issue of allotment of four acres of land stands concluded by the

learned single judge vide its judgment rejecting the claim of the

petitioner, which has been upheld right upto the Apex Court, the present

writ petition itself is not maintainable as it is barred by the principles of

res judicata. It has also been urged that in case the petition itself is not

maintainable, there is absolutely no question of grant of ad interim relief

during the pendency of the petition to the petitioner staying raising of

construction by the respondents, who are valid allottees of the plot of

land.

9. I have carefully considered the submissions and have also gone

through the record. I find merit in the contention of the learned counsel

for the respondent/DDA that before an ad interim injunction is granted in

favour of the petitioner, the petitioner must be able to show that it has a

prima facie case. By prima facie case, the petitioner is required to show

that it has some chance of success in the main writ petition and in case

the respondents are permitted to change the nature of the property, its

right will get defeated.

10. In the instant case, instead of the petitioner being able to show a

prima facie case in its favour, the learned counsel for the

respondent/DDA has, in my view, created a reasonable doubt regarding

maintainability of the petition itself because the issue of allotment of four

acres of land, on account of which the petitioner is alleged to have been

discriminated, must be clearly reflected in the petition even though the

learned counsel for the petitioner states that the present petition is

emanating from a fresh cause of action which is curiously missing from

the petition. The respondent has taken a categorical stand before the

court that earlier no allotment of four acres of land has been made in

favour of any party after October, 1999.

11. The petitioner ought to not only aver in the petition but also show

by some prima facie proof that after October, 1999, the respondent/DDA

has allotted some society four acres of land which, in my submission, the

petitioner has miserably been unable to show at this stage. Therefore, I

feel that the very absence of prima facie case in favour of the petitioner

disentitles the petitioner to any order or direction restraining the

respondents from raising any construction on the plot of land in question.

In any case, even if this direction or a restraint order is not passed, since

petition is pending, anything with regard to the suit property has to be

necessarily subject to the decision in the writ petition as the principles of

lis pendens will apply.

12. I am not dealing with the other two conditions of balance of

convenience and irreparable loss on account of the fact that the petitioner

has not been able to satisfy the first condition itself.

13. For the aforesaid reasons, I feel the application deserves to be

disallowed. Accordingly, the same is dismissed.

C.M. No.19085/2014 (u/O VI Rule 17 CPC)

1. Issue notice. Ms. Shobhana Takiar and Ms. Zubeda Begum, the

learned counsel accept notice on behalf of the DDA and respondent Nos.2

& 3 respectively.

2. Let reply to the application be filed before the next date of hearing.

3. List for disposal of remaining applications on 30th January, 2015,

the date already fixed.

V.K. SHALI, J.

DECEMBER 18, 2014 'AA'