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2000 DIGILAW 290 (DEL)

RAMESHWAR DAYAL v. DELHI DEVELOPMENT AUTHORITY

2000-03-10

M.K.SHARMA

body2000
Dr. M. K. Sharma,j ( 1 ) THE present writ petition has been preferred TO by the petitioner seeking for issuance of a direction to the respondent to hand over possession of plot bearing No. 142, Block-C, Okhla Industrial Area, Phase I, New Delhi, or an alternative plot of land of the same size in Okhla Industrial Area, Phase I, New Delhi, to the petitioner and to execute the necessary conveyance/perpetual lease deed in terms of the allotment made by the respondent to the petitioner. ( 2 ) THE petitioner is a manufacturer of Wooden Cabinets which are being used for sewing machines and Television sets, carrying on his business from the premises bearing municipal No. 525/16 and premises bearing municipal No. 508 situated at Chhota Bazar, Shahdara, Delhi. The aforesaid area from which the petitioner was carrying on his business was found to be a non-conforming area and accordingly in terms of the scheme of the respondent/dda, the petitioner applied for allotment of an alternative industrial plot. The said application was filed some time in the year 1970 and a copy thereof has been placed on record as annexure-D . The aforesaid application filed by the petitioner was processed by the respondent and the said application was forwarded to the Officer on Special Duty (Lands), Directorate of Industries. ( 3 ) A letter was issued to the petitioner on 16. 11. 1971 by the respondent intimating the petitioner the decision of the respondent to allot to the petitioner a plot No. 142, Block-C in Okhla Industrial Area, Phase I, Delhi, measuring 4840 sq. yards on perpetual lease hold basis for shifting his industry/warehouse from the non-conforming location. It was mentioned in the said letter that the allotment would be on the specific conditions that the petitioner would within two months from the date of possession of the plot, stop use of the present premises for the purpose of warehouse and for any manufacturing process or running of any industry whatsoever. By the aforesaid letter the petitioner was asked to deposit the amount as mentioned therein. The petitioner, however, did not deposit the amount in terms of the letter and accordingly by letter dated 5. 8. 1972 the Delhi Development Authority informed the petitioner about cancellation of the allotment of the plot made in favour of the petitioner for non-payment of the amount in terms of the demand. The petitioner, however, did not deposit the amount in terms of the letter and accordingly by letter dated 5. 8. 1972 the Delhi Development Authority informed the petitioner about cancellation of the allotment of the plot made in favour of the petitioner for non-payment of the amount in terms of the demand. ( 4 ) BEING aggrieved by the said order, the petitioner submitted a representation to the Delhi Development Authority. The aforesaid cancellation of the allotment of the plot was, however, recalled by the respondent and the allotment of the plot was restored by the respondent in favour of the petitioner which was intimated to the petitioner by the respondent under their letter dated 14. 3. 1975. The petitioner deposited the balance amount of sale consideration and since inspite of the deposit of the aforesaid amount, lease deed was executed in favour of the petitioner and possession of the plot was not handed over to the petitioner, the present petition was filed seeking for the aforesaid reliefs. ( 5 ) THE Delhi Development Authority contested the writ petition by filing a counter affidavit wherein several contentions have been raised on its behalf. It is stated that under the Master Plan, now in force, the petitioner is entitled to continue and carry on his business from the present premises and, therefore, he is not entitled to allotment of an alternative plot. It was also stated that there was change in the layout plan due to which the said plot No. 142, Block-C, Okhla Industrial Area, Phase-I, New Delhi, ceased to exist. It was also stated that the petitioner did not make payment of the amount as demanded by the respondent for which the allotment made in favour of the petitioner was cancelled and the subsequent restoration of the allotment was illegal and was under a bona fide mistake as the same was done under the verbal orders of L. S. O. (I and D) thinking that payment of Rs. 67,340. 00 was 5-% of the price although in fact 50% of the price was not deposited by the petitioner which was a criteria for restoration of the allotment. 67,340. 00 was 5-% of the price although in fact 50% of the price was not deposited by the petitioner which was a criteria for restoration of the allotment. ( 6 ) COUNSEL for the petitioner vehemently submitted that none of the aforesaid ground as raised by the Delhi Development Authority in its counter affidavit could he held to be legal and justified grounds for denying possession of the plot as the right of the parties are to be judged on the date of institution of the present writ proceeding and, therefore, subsequent change in the Master Plan allowing the petitioner to carry on his business from his present premises would not have any material bearing on the facts of the present case and cannot and would not alter the status, validity and position of allotment made to the petitioner by the respondent. In support of the aforesaid contention, learned counsel for the petitioner relied upon the decision of the Supreme Court in Rameshwar and Others v. Jot Ram and Others; reported in AIR 1976 SC 49 . It was also submitted that even if there be any change in the layout plan due to which the aforesaid plot had ceased to exist, the respondent could give an alternative plot of land to the petitioner. In support of the aforesaid contention, the learned counsel also relief upon the averments made by the Delhi Development Authority in its counter affidavit filed in the month of July, 1994 wherein, it was stated by the respondent that the deponent was considering the scope of another plot to be allotted to the petitioner, when the C. B. I. , seized the main file. Relying on the said statement, it was submitted by the counsel for the petitioner that the Delhi Development Authority has been allotting alternative plots as and when there was a change in the layout plan and pursuant to such a policy of the respondent being followed, in the present case also the respondent was considering allotment of another plot of land to the petitioner and, therefore, the aforesaid contention has no relevance at all. Counsel also submitted that once the cancellation of the plot has been restored in favour of the petitioner and the said restoration having not been withdrawn by the respondent, in accordance with law, till the filing of the writ petition, no such ground could be raised at this distant date that is, after expiry of about 25 years to the effect that the said restoration was ordered under a mistaken belief. Counsel further submitted that the Delhi Development Authority could not have cancelled the allotment which was restored on the ground of making short payment of the fixed sale price for an opportunity was to be given to the petitioner to make payment of the shortfall, if any, charging interest on the said amount which is done in other similar cases. In support of his contention, the learned counsel relied upon the decision of this Court in Reliable Laboratories (P) Ltd. and Anr. v. Delhi Development Authority and Anr. , reported in 43 (1991) Delhi Law Times 312 and Promilla Sharma v. Delhi Development Authority and Anr; reported in 64 (1996) Delhi Law Times 805. ( 7 ) COUNSEL for the respondent, however, submitted that once the Master Plan is changed and the area from which the petitioner has been operating has been declared as a mixed zone, the petitioner is not entitled to be allotted with an alternative plot of land. He also submitted that it is for the Delhi Development Authority to decide which areas are conforming and non-conforming areas. It was submitted that, if a particular area was declared to be a non-conforming area at one stage and the said declaration is modified making the area a conforming area, question of allotment of alternative plot of land to the petitioner could not be re-considered and that the proposed transaction could also be called of. It is also submitted that the very basis of adopting a scheme for allotment of an alternative plot of land being to facilitate and extend benefit to the people who are required to be moved out from the place wherefrom they have been operating and the purpose of the said scheme being lo rehabilitate such persons at concessional rate and not at market rate, the very need and the purpose has been frustrated and rendered negatory in view of the adoption of revised Master Plan and thus the petition is mis-conceived. He further submitted that the allotment given to the petitioner was cancelled in 1972 and the restoration thereof ordered in 1975 was a mistake for the petitioner did not pay 50% of the price which was an essential condition and requirement for restoration of the allotment which was cancelled. According to him the petitioner did not satisfy the aforesaid essential condition and requirement and, therefore, no such restoration could have been ordered in favour of the petitioner on the verbal order of an officer of the Delhi Development Authority. He also submitted that since the plot in question which was allotted to the petitioner is not available for allotment in terms of the revised Master Plan, the order of allotment also cannot be given effect to and, therefore, the writ petition itself is liable to be dismissed as infructuous. ( 8 ) IN the light of the aforesaid submissions of the learned counsel for the prties, I have perused the records and proceed to decide this matter as hereunder. ( 9 ) IN order to decide the writ petition, three aspects need scrutiny which are specifically taken by the respondent in its counter affidavit. The first of the three aspects is the issue of non-availability of the plot in view of change in the layout plan whereas the other two issues being the issue of the legality of the order of restoration of the allotment which was cancelled and issue of frustration of the need and purpose for allotment of land in view of change in the Master Plan.