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2007 DIGILAW 1468 (DEL)

SHANTI MEMORIAL SOCIETY v. UNION OF INDIA

2007-07-25

S.MURALIDHAR

body2007
S. MURALIDHAR, J. ( 1 ) THE petitioner was allotted land measuring 10,000 sq. m. (1 hectare) in lado Sarai by the Delhi Development Authority ('dda') for the purposes of construction of a hospital. The allotment was made on 6. 5. 1999. On 19. 5. 1999 the petitioner complied with all the formalities and paid the full price amounting to Rs. 4,45,76,229. On 30. 6. 1999 the petitioner wrote to the DDA confirming that it had taken physical possession of the land. The lease deed was not executed by the DDA. ( 2 ) IT appears that on 1. 9. 2001 the land in question was jointly surveyed and measured by Institutional Land (IL) and Nazul Land (NL) branches of the DDA and a report along with the demarcation report was submitted to the land department. The said demarcation report indicated that the land in possession of the petitioner was to the extent of 7528. 91 sq. m. against the alloted extent of 10,000 sq. m. On 3. 10. 2001 the petitioner again wrote to the DDA stating that the delay in execution of the lease was adversely affecting its plans to construct a hospital. The petitioner stated that if any survey required to be undertaken by the Planning Department, it should be done at the earliest so that the lease deed could be executed. The lease deed was still not executed. The petitioner then filed the present writ petition on 5. 9. 2006 praying for a direction to the DDA to execute the lease deed for the entire extent of 1 hectare that had been allotted to the petitioner. A further prayer was for a direction to the DDA to hand over peaceful and vacant possession of the remaining extent of land measuring 2471. 09 sq. m. ( 3 ) IN its reply to the writ petition, the DDA has not disputed any of the above facts. It is explained in the affidavit that the land allotted to the petitioner was to be bifurcated by a proposed Master Plan road of 80 meter width. Since this road could not be constructed as proposed, the competent authority felt that the matter required re-examination. It is stated that the remaining 2471. 09 sq. m. of land is encroached and under litigation. Even the extent of 7528. 91 sq. m. of land would be affected by the road if it was constructed. Since this road could not be constructed as proposed, the competent authority felt that the matter required re-examination. It is stated that the remaining 2471. 09 sq. m. of land is encroached and under litigation. Even the extent of 7528. 91 sq. m. of land would be affected by the road if it was constructed. In the circumstances it is stated that the DDA wrote to the ministry of Urban Development to examine the possibility of realignment of the road. ( 4 ) MR. Rajiv Nayyar, learned senior counsel for the petitioner submits that even if the extent of 2471. 09 sq. m. of land is under encroachment and litigation, there should be no legal impediment for the DDA to execute the lease deed in respect of the portion of 7528. 91 sq. m. of land, the possession of which is already with the petitioner. He states that there is an approach road to this piece of land. Since the construction of the hospital is held up for the last eight years only because the lease deed is not executed, the petitioner is willing to accept a lease deed for that portion of land for which the possession is already with it. This is without without prejudice to the rights and contentions of the petitioner. Mr. Nayyar states that the petitioner has also paid the ground rent in the sum of Rs. 76 lakhs as recently as January 2007. Reliance is placed upon the decision of this Court in K. K. Birla Academy v. DDA 115 (2004) DLT 361 to contend that where full payment has been made, a direction to the DDA to execute the lease deed can be issued. ( 5 ) APPEARING for the DDA, Mr. Ajay Verma, learned Advocate refers to the letter dated 26. 10. 2006 written by the DDA to the Ministry of Urban Development in which it is stated that the execution of the lease deed in favour of the petitioner was awaiting the approval of a proposal already sent to the Ministry by the DDA "regarding change of land use from recreational (District Park) to other uses in village Lado Sarai". 10. 2006 written by the DDA to the Ministry of Urban Development in which it is stated that the execution of the lease deed in favour of the petitioner was awaiting the approval of a proposal already sent to the Ministry by the DDA "regarding change of land use from recreational (District Park) to other uses in village Lado Sarai". He states that if there is a change of land use that would impact on the construction of the road that is proposed to be laid through this plot and in turn will affect the extent of land available for the petitioner. He states that the DDA will make further efforts to follow up with the Ministry to get its proposal approved. He clarifies that the purpose for which the land has been allotted to the petitioner is a permissible use. Mr. Verma sought to distinguish the decision in K. K. Birla Academy on the ground that the said decision concerned a case where possession had not been given on account of the changed norms under the Master Plan for Delhi 2001 under which the extent of covered area as proposed by the petitioner there was not permissible. ( 6 ) TO this Court there appears to be no justification whatsoever for the dda accepting a huge amount of Rs. 4. 45 crores from the petitioner way back on 17. 5. 1999 and not executing any lease deed till date. No serious attempt appears to have been made by the DDA for having the lease deed executed despite the fact that possession of 7528. 91 sq. m. of land was already handed over to the petitioner in 1999 itself. The offer of the petitioner that it is prepared to accept the lease deed executed for the extent of 7528. 91 sq. m. without prejudice to its rights and contentions, appears to be reasonable. The explanation offered by the DDA about a road having to be constructed through the plot in question does not appear to be convincing enough to delay the execution of the lease deed to the extent of land already in possession of the petitioner. The DDA could have easily explored the possibility of either providing an alternative plot of the same extent in another area, without any of these difficulties, in 1999 itself. The DDA could have easily explored the possibility of either providing an alternative plot of the same extent in another area, without any of these difficulties, in 1999 itself. Else, it could have even proposed that the proposed road should be laid through the plot already under encroachment so that the land already in possession of the petitioner remains unaffected. The DDA obviously has done neither. Resultantly, the petitioner, having paid Rs. 4. 45 crores in 1999 and in possession of 7528. 91 sq. m. of land is unable to use it till date. Meanwhile the DDA has enriched itself by earning interest on the said sum for over 8 years. The Court finds the conduct of the DDA in this case to be unreasonable and inexcusable. ( 7 ) A similar view was expressed by this Court in K. K. Birla Academy v. DDA (supra ). In the said case, possession had not been given to the allottee despite full payment, and this Court did not accept the explanation of the MPD norms not permitting the coverage proposed by the petitioner there and consequently requiring a reappraisal. The Court referred to Rules 42 and 43 of the DDA (Disposal of Developed Nazul Land) Rules, 1981 and observed: "rules aforesaid make it abundantly clear that once Nazul land is allotted to a body or person and premium is paid, an indefeasible right to the land is created in its favour. The allottee is entitled to execution of a lease in its favour. " Accordingly, a mandamus was issued to the DDA to put the petitioner in possession of the land and execute the perpetual lease deed. ( 8 ) THE Court finds that the petitioner here has made out an even better case for a direction to the DDA to execute a lease deed in favour of the petitioner to the extent of land already in its possession. Accordingly, a mandamus is issued to the DDA to execute the lease deed in favour of the petitioner to the extent of the land measuring 7528. 91 sq. m. within a period of four weeks from today and in any event not later than 22. 8. 2007. Accordingly, a mandamus is issued to the DDA to execute the lease deed in favour of the petitioner to the extent of the land measuring 7528. 91 sq. m. within a period of four weeks from today and in any event not later than 22. 8. 2007. If there are any other formalities that are to be completed by the petitioner, the DDA will inform the petitioner within a period of two weeks from today and those formalities will be completed by the petitioner within a period of one week thereafter. ( 9 ) IT is made clear that the petitioner's right to get the lease deed executed for the remaining extent of 2471. 09 sq. m. is kept alive and that the dda will take decision in that regard after it follows up the matter with the ministry of Urban Development. In any event, given the fact that the petitioner has paid the entire consideration, the DDA cannot be expected to delay its decision indefinitely. The decision of the DDA in respect of the land measuring 2471. 09 sq. m. be taken not later than 12 weeks from today. ( 10 ) THE DDA is also directed to pay costs of Rs. 10,000/- to the petitioner within a period of 4 weeks from today. ( 11 ) THE writ petition is allowed with the above directions. ( 12 ) A copy of this Order be given dasti to the counsel for the parties.