Roshan Lal vs Delhi State Industrial & ...
2015 Latest Caselaw 2290 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of decision: 18th March, 2015

+                               LPA No.253/2014

       ROSHAN LAL                                       ..... Appellant
                          Through:     Mr. Mithilesh Kumar Singh, Adv.

                                     Versus

    DELHI STATE INDUSTRIAL & INFRASTRUCTURE
    DEVELOPMENT CORPORATION LTD.            ..... Respondent

Through: Ms. Anusuya Salwan, Adv with Ms. Renuka Arora, Adv.

CORAM:-

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

RAJIV SAHAI ENDLAW, J

1. This intra-court appeal impugns the order dated 17th January, 2014 of the

Single Judge of this Court of dismissal of W.P.(C) No.308/2014 preferred by

the appellant.

2. The writ petition from which this appeal arises was filed by the appellant

impugning the cancellation dated 19th August, 2013 of the allotment in his

favour of an industrial plot under the Scheme of Re-location of Industries and

seeking a direction to the respondent to handover possession of the allotted

industrial plot No.68, Pocket-I, Sector-2, measuring 100 sq. mtrs. at Bawana

Industrial Complex, Delhi to the appellant.

3. The Single Judge found, i) that on 24th July, 2001, the appellant was

issued a notice for cancellation of the allotment on the ground that the appellant

had not deposited 50% of the cost; ii) that on 8th April, 2002, the appellant was

informed that in the event he had made payment of the entire consideration, he

would be eligible to take physical possession of the plot in question; it was

however clarified that those allottees who had not deposited 50% of the cost

before 31st March, 2001, their allotment was liable to be cancelled; iii) that in

2006, a letter was issued by the respondent to the appellant directing the

appellant to take possession of the plot allotted to him; iv) that vide letter dated

25th January, 2008, the respondent cancelled the appellant's allotment for the

reason of the appellant having not paid 50% of the cost by 31 st March, 2001 as

per direction dated 24th January, 2001 of the Supreme Court in W.P.(C)

No.4677/1988 titled M.C. Mehta Vs. Union of India published in leading

newspapers in the month of January, 2001; v) that the appellant however again

applied for possession and the respondent vide its letter dated 19 th August, 2013

informed that the ground of cancellation had already been communicated in the

year 2001 and 2008 and the appellant was thus not entitled to possession. The

Single Judge, in these facts held that the cancellation of the plot had taken

place in January, 2008 and not vide letter dated 19 th August, 2013 and the writ

petition filed in the year 2014 was thus clearly barred by laches.

4. Notice of this appeal was issued on the contention of the appellant that

though he had not deposited 50% of the cost by 31 st March, 2001 but the

respondent having issued letter dated 10th March, 2006 to him offering

possession of the plot after receiving 100% of the cost of the plot along with

interest, his case was different.

5. A counter affidavit has been filed by the respondent and to which

rejoinder has been filed by the appellant. We heard the counsels on 10th

February, 2015 and reserved judgment.

6. The counsel for the appellant has not disputed that qua the subject

Scheme of Re-location of Industries, vide order supra of the Supreme Court,

50% of the tentative cost of Rs.4,20,000/- i.e. Rs.2,10,000/- was to be paid by

31st March, 2001. The counsel for the appellant has also not disputed that

before 31st March, 2001, the appellant had deposited only Rs.1,20,000/- on 24th

January, 2001. He however states that a further sum of Rs.65,000/- was

deposited on 7th August, 2001 and the balance of the total price of

approximately Rs.2,35,000/- was deposited on 16th December, 2002. It is also

the admitted position that without payment of 50% of the tentative cost and

which the appellant had admittedly not paid, the appellant was not entitled to

allotment or possession.

7. The appellant has however pegged his case on two letters. The first is

the letter dated 8th April, 2002 supra offering possession. However the counsel

for the respondent points out that the said letter itself provides that those

allottees who had not deposited 50% of the cost by 31st March, 2001 were not

eligible. It thus appears that the respondent, without verifying as to which

allottees had paid 50% of the cost by 31st March, 2001, sent a general letter to

all. The appellant cannot take any advantage thereof. Moreover, the same is a

conditional letter and which condition the appellant admittedly had not

fulfilled. The second is the letter dated 10th March, 2006 supra and by which

date the appellant, though not within the prescribed time, had paid the entire

cost. By the said letter again, the appellant was offered possession and further

informed that if he did not take possession within 20 days, watch and ward

charges at the rate of Rs.5/- per sq. mtr. per month would be levied on him.

8. Though the counsel for the appellant has not so spelt out but the case of

the appellant appears to be that notwithstanding the default in payment on the

part of the appellant and on which default the allotment was to stand cancelled,

the respondent having offered possession to the appellant, the appellant is

entitled to possession.

9. The counsel for the appellant in this regard places reliance on order dated

22nd July 2005 of a Single Judge of this Court in W.P.(C) No.1093/2002 titled

Prem Kishore Vs. The Lieutenant Governor of Delhi and on the order dated

7th August, 2008, again of a Single Judge of this Court, in W.P.(C)

No.483/2007 titled Ram Karan Dass Vs. State of Delhi.

10. In Prem Kishore (supra) though the allottee had tendered 50% of the cost

by 31st March, 2001 but in cash and which was not accepted. In this

circumstance and considering that the allottee had immediately approached the

Court and the plot till then had not been allotted to anyone else, the allottee was

held entitled to possession on payment of the balance amount with interest.

Ram Karan Dass (supra) was decided following Prem Kishore, even though

the allottee in that case had not even tendered 50% payment by 31st March,

2001.

11. The counsel for the respondent has however drawn our attention to the

order dated 12th May, 2009 of the Division Bench of this Court in LPA

No.101/2009 titled Sunil Dua Vs. Government of NCT of Delhi where it was

held that where as per the policy of the respondent formulated in terms of order

dated 12th September, 2000 of the Supreme Court, the allottee had not

deposited the required amount of 50% by the cut off date, no equity could be

shown. Attention in this regard is also invited to the subsequent judgment

dated 27th August, 2010 also of the Division Bench in LPA No.615/2010 titled

P.K. Jain Vs. Government of NCT of Delhi and other connected petitions

where also Sunil Dua was followed. We may also notice that the case of the

allottees therein also was, of the delay in payment being attributable to Delhi

Finance Corporation (DFC) in sanctioning the loan. Attention is yet further

invited to the order dated 18th March, 2013 of the Division Bench in LPA

No.166/2013 titled Digamber Garments Vs. Government of NCT of Delhi also

taking the same view.

12. In the light of the aforesaid judgments of the Division Bench, the

reliance by the counsel for the appellant on the orders / judgments of the Single

Judges of this Court is of no avail. We may notice that earlier also the Division

Bench of this Court in order / judgment dated 1st February, 2008 in LPA

No.48/2008 titled Dinesh Lalwani Vs. DSIDC had taken up the same view.

The same remained to be noticed in the order dated 7th August, 2008 of the

Single Judge in Ram Karan Dass (supra).

13. The counsel for the respondent has fairly placed before us the copy of the

order dated 28th May, 2012 of the Division Bench of this Court of which one of

us (Rajiv Sahai Endlaw, J.) was a member in LPA No.20/2012 titled Delhi

State Industrial and Infrastructure Development Corporation Vs. Sudhir

Makhija where the default of the allottee in payment was condoned. However,

it is specifically mentioned in the said order that the allottee in that case had

died leaving a young widow and two small children and the view taken therein

was being taken to provide a source of livelihood to the bereaved family.

14. Though the aforesaid is sufficient for dismissal of the appeal but we

would also like to state our reasons with respect to the letter dated 10th March,

2006 (supra) offering possession to the appellant and on account whereof this

appeal was entertained.

15. We are of the view that once the allotment in favour of the appellant

stood cancelled on non-payment by the appellant of 50% of the tentative cost

by 31st March, 2001, the subsequent unilateral deposit by the appellant of the

balance cost and the issuance of the letter dated 10 th March, 2006 by the

respondent are of no avail. The contractual obligation of the respondent to allot

the plot to the appellant had come to an end on 31 st March, 2001. A Division

Bench of this Court as far back as in Uttam Chatterjee Vs. Union of India AIR

1986 Delhi 291 held that such unilateral payments do not create any right and

cannot nullify the cancellation. The same view was taken by a Division Bench

of Punjab High Court recently in Kasturi Devi Vs. State of Haryana

MANU/PH/0631/2012 (SLP(C) No. 18645/2012 whereagainst was dismissed

on 20th July, 2012). It is not the case of the appellant that any fresh contract

was arrived at thereafter and in pursuance to which the payments were made or

the letter dated 10th March, 2006 was issued. Without such fresh contract being

pleaded and established, the action of the appellant of deposit of the balance

cost after the stipulated date and of the respondent of issuance of the letter

dated 10th March, 2006 have but to be treated as stray incidents which would

not confer any right on the appellant to get possession. It is common

knowledge that such payments to the respondent are made by making a deposit

in the designated bank or in the treasury of the respondent. The appellant has

not filed any challans for such payment. The appellant has also not pleaded as

to how the said payments were made. The respondent / its banker was

admittedly receiving the balance payments from the allottees who had paid

50% of the cost by 31st March, 2001. It is not the case of the appellant that he

made any application to the respondent for permitting him to make delayed

payment or that such payment was authorized. A Division Bench of this Court

in Wazirpur Bartan Nirmata Sangh Vs. Union of India

MANU/DE/9428/2006 held that without there being any bilateral or consensual

arrangement, no right can be claimed or conferred. In the absence of any such

thing, the payment remains a unilateral one. It cannot be lost sight of that the

respondent is a State agency of which different functions / duties are performed

by different persons with very often one not knowing what the other is doing.

The reasoning as applicable to a natural person, if in a similar situation

receiving, accepting and retaining payment, would not apply to the respondent.

16. Similarly, the mistake of or collusion with the appellant of any official of

the appellant in issuing the letter dated 10th March, 2006 cannot also be made

binding on the respondent. A Division Bench of this Court in Santosh Kumar

Meena Vs. GNCT of Delhi MANU/DE/2202/2010 held that the doctrine of

promissory estoppel also requires a valid promise and not a promise based on a

mistake. It was further held that a petitioner well aware of the fact that he was

not eligible, cannot claim to be an innocent victim. The appeal against the said

judgment was dismissed in the order reported in MANU/SC/0820/2013 relying

on Rakesh Kumar Sharma Vs. GNCTD (2003) 11 SCC 58 where an

appointment made without the candidate possessing the requisite qualification

on the prescribed date had been terminated; it was held that the authority

issuing the advertisement is bound by the representation made therein and

cannot act contrary to it inter alia because if it were known that persons who

obtained qualification after the prescribed date would be considered, other

similarly placed persons could have also applied. It was further held that the

person who was not eligible cannot approach the Court for any relief for the

reason that he does not have a right which can be enforced through the Court.

Mention may also be made of Jit Ram Shiv Kumar Vs. State of Haryana

(1981) 1 SCC 11 approved in Hira Tikkoo Vs. Union Territory of Chandigarh

(2004) 6 SCC 765 laying down that when a person acting on behalf of State,

exceeds his authority, rule of ultra vires becomes attracted and the State would

not be bound by such action. (We may notice that Jit Ram Shiv Kumar supra,

to the extent holding that the plea of estoppel is not available against the State

in the exercise of its statutory functions was disapproved in Union of India Vs.

Godfrey Philips India Ltd. (1985) 4 SCC 369, as discussed in State of Punjab

Vs. Nestle India Ltd. (2004) 6 SCC 465. However on the legal point on which

we have relied on Jit Ram Shiv Kumar, the same continues to be good law.)

The respondent after all is State and for which reason, the writ petition is

maintainable. The respondent cannot selectively condone default of the

appellant. It is on record that default as committed by the appellant was

committed by a large number of other allottees. If it were to be held that the

default of the appellant is to be condoned, the same cannot be done without

giving an opportunity to all other allottees also. It is settled position in law that

governmental agencies cannot be bound by such illegal acts of their officials.

17. In fact we have wondered that if the possession was offered to the

appellant vide letter dated 10th March, 2006 and was not delivered, why the

appellant waited for eight years i.e. till the year 2014 to file the writ petition.

That brings into play the reasoning given by the learned Single Judge, of which

there is no explanation.

18. The appeal is thus thoroughly misconceived and is dismissed with costs

of Rs.10,000/- payable to the respondent.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE MARCH 18, 2015/'gsr'