Delhi High Court
M/S. Thakur Tankers vs D.D.A. And Anr. on 2 April, 2013
Author: Reva Khetrapal
Bench: Reva Khetrapal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4833/2004
M/S. THAKUR TANKERS ..... Petitioner
Through: Mr. R.K. Saini, Advocate
versus
D.D.A. AND ANR. ..... Respondents
Through: Mr. Pawan Mathur, Advocate
for the Respondent No.1.
% Date of Decision : April 02, 2013
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
JUDGMENT
: REVA KHETRAPAL, J.
1. Rule. With the consent of the parties, the matter is taken up for final hearing.
2. The facts in the aforementioned writ petition succinctly stated are that the Petitioner was carrying on business under the name and style of M/s. Thakur Tankers from a premises bearing No.2-B/1-E, Chara Mandi, Zakhira Chowk, Delhi, built on a plot of land measuring 200 sq. yds. The said premises of the Petitioner were burnt down in the riots of 1984 and before the same could be reconstructed by him, the whole area was taken over by the MCD and W.P.(C) 4833/2004 Page 1 of 16 DDA for construction of a flyover in 1986. A survey was conducted by the MCD and DDA on the persons doing business therefrom for allotment of alternative sites to them under the policy formulated by the DDA, viz., Alternative Allotment Scheme to provide alternative allotment to all those evictees whose business premises were demolished for construction of a flyover so that they could carry on their business at the alternative site allotted to them. It is the Petitioner's case that unfortunately the Petitioner was not present at the site at the time of carrying out the survey by the authorities as his premises had earlier been burnt down and business stopped on account of 1984 riots forcing him to shift to his native place in Himachal Pradesh for survival. On coming to know of the scheme formulated by the DDA for allotment of alternative sites, he made a number of representations along with all relevant documentary proof regarding the existence and running of business from the site in Zakhira Chowk to the DDA and for inclusion of his name in the list of evictees for allotment of an alternative site. As a result of the various and continuous representations made by the Petitioner, sometime in the month of August, 2001, the DDA ordered a fresh survey to be conducted, in the course of which a report was given to the effect that the existence and running of the business of the Petitioner from the site in question prior to the eviction of the traders from the Zakhira Chowk area stood established. Accordingly, in the month of January, 2002, the case of the Petitioner for allotment of alternative site was put up before the authorities and approved by the Vice Chairman, DDA. Two similar cases where the names could not W.P.(C) 4833/2004 Page 2 of 16 be included in the survey list of 1984 for one reason or the other, were also put up before the authorities and approved by the Vice Chairman, DDA, the particulars whereof are as under:-
Name Premises Alternative Plot
Allotted
Subey Singh Shop No.58, Chara E-10, Mangolpuri, Mandi, Zakhira Phase II Smt. Jaspal New Delhi Madhya BA-68, Mangolpuri, Kaur Pradesh Road Lines Phase II
3. After the approval of the case of the Petitioner by the Vice Chairman, DDA, it was put up before the Lieutenant Governor, Delhi for orders regarding allotment. However, the Lieutenant Governor vide his order dated 08.04.2002 declined to give allotment to the Petitioner. The order of the Lieutenant Governor reads as under:-
"I have gone through the facts of the case as well as the files of alternative allotment made to three other units in lieu of their premises at Zakhira Chowk. Though the cases of Shri Subey Singh and Smt. Jaspal Kaur are of similar nature, we should adhere to the survey list of 1984 for giving alternative plots only to 579 units mentioned therein. I am therefore, not inclined to consider the case of Thakur Tankers for allotment, as proposed."
4. The Petitioner thereupon took his case to the Delhi Legal Services Authority, which, in turn, referred it to the Permanent Lok Adalat of DDA for settlement. The Permanent Lok Adalat of DDA directed the DDA to produce the files of those persons whose names did not figure in the survey list of December, 1984 and who were allotted plots. The Petitioner was also directed to submit W.P.(C) 4833/2004 Page 3 of 16 documentary proof regarding his status/possession in the premises prior to December, 1984. On 14.10.2003, after perusal of the record submitted by the DDA and the documentary proof of the Petitioner's possession of the premises at Zakhira Chowk submitted by the Petitioner, the Lok Adalat observed that the said documents clearly proved that the Petitioner was running his business of transporting chemicals and liquid in the name of M/s. Thakur Tankers at 2B/1E, Zakhira Chowk at least from 27.04.1979 onwards and the said premises of the Petitioner had been burnt down in the 1984 riots, on account of which the Petitioner had to shift to his native place in Himachal Pradesh with the result that his name could not be included in the survey concluded on 21.12.1984 in which 579 units were reported to be functioning from the area. It further noted that another survey was got conducted through the Joint Director (Survey) vide survey report dated 21.11.2001 and the existence of the Petitioner's unit was noted in the said survey report. It was further noted that admittedly two similarly situated persons, i.e., Smt. Jaspal Kaur and Shri Subey Singh, whose names were not found in the survey list of 21.12.1984, had been allotted plots after carrying out a fresh survey in their case, that the case of the Petitioner was in no way different from the case of Smt. Jaspal Kaur and that the non-allotment of the plot to the Petitioner amounted to discrimination by the DDA. The Petitioner has enclosed along with the writ petition a copy of the aforesaid order dated 14.10.2003 passed by the Lok Adalat recommending that the matter be again submitted to the Lieutenant Governor, Delhi/Chairman, DDA for reconsideration.
W.P.(C) 4833/2004 Page 4 of 165. It emerges from the record that on 27.11.2003, the case of the Petitioner was again put up before the Lieutenant Governor, but by his order dated 29.12.2003 the Lieutenant Governor once again rejected the case apparently without reconsidering the same in the light of the observations of the Lok Adalat by merely stating as under:-
"I reiterate my earlier decision taken on 8.4.2002 that allotment is to be made to only 579 units, whose names appear in the survey list and approved by the authority in 1984."
6. Aggrieved by the reiteration of the rejection order passed by the Lieutenant Governor, the Petitioner preferred the present writ petition principally on the ground that when the survey list of 579 persons had already been extended and persons not mentioned therein also allotted plots, there was no justification for declining the same relief to the Petitioner who was similarly placed and praying for the allotment of an alternative industrial plot as had been done in the case of other similarly situated persons who had been evicted/uprooted from their place of work in Zakhira Chowk.
7. In the Counter-Affidavit and the Additional Affidavit filed on behalf of the Respondent/DDA as well as in the course of hearing, the relief sought for by the Petitioner was opposed primarily on three grounds:-
(i) The name of the Petitioner did not figure either in the survey list conducted by the Planning Department of DDA on 21.12.1984 in which names of 579 units out of 639 units W.P.(C) 4833/2004 Page 5 of 16 were referred for alternative allotment or in the list of the units furnished by the four local traders' associations, namely, (a) Vishkarma Market, Amar Park, Zakhira (No.276), (b) Motor Works Association, Zakhira (No.142),
(c) New Rohtak Road Motor Works and Traders (No.101) and (d) Zakhir Motor Body Builders (No.276). Hence, the Lieutenant Governor in the minutes recorded on 08.04.2002 turned down the request of the Petitioner and ordered that the survey list approved by the authority in 1984 should be adhered to vide which alternative plots were allotted to 579 units. Accordingly, a rejection letter was issued to the Petitioner on 01.08.2002, which rejection was reiterated on 29.12.2003.
(ii) The cases of Shri Subey Singh and Smt. Jaspal Kaur were distinguishable from the present case, inasmuch as in both the aforesaid cases the parties had produced substantive proof of the existence of their respective establishments. Per contra, the documents and certificates furnished by the Petitioner failed to establish that the Petitioner was running a business from premises No.2-B/1-E, Chara Mandi, Zakhira Chowk, Delhi measuring 200 sq. yds. including the certificate of the Traders and Body Builder Association, New Zakhira Traders Association and Indian Federation of Transport Operators, Northern Zone Branch.
(iii) As per the case of the Petitioner, he had made several representations to the DDA since the year 1986 after his W.P.(C) 4833/2004 Page 6 of 16 office premises at Zakhira Chowk had been burnt down, inter alia, being representations dated 08.01.1986, 13.02.1986 and 3rd May, 1989. Therefore, the cause of action arose in favour of the Petitioner on 03.05.1989 itself. The writ petition having been filed in the year 2004 is clearly barred by delay and laches.
8. As regards the first contention of the Respondent's counsel that the name of the Petitioner does not figure in the list of 579 units drawn up pursuant to the survey conducted on 21.12.1984, Mr. Saini, learned counsel for the Petitioner contends that the Petitioner's name admittedly finds mention in the survey report dated 21.12.2001 at page P-13/N, which records the fact that plot No.B-2/1-E belonging to Shri S.D. Raizada, proprietor of M/s. Thakur Tankers was demolished during the construction of Zakhira flyover. It had also been reported by the survey staff that the Petitioner's unit was engaged in the transport of liquid chemicals and repair of tankers, and electricity was being used by the unit from the common connection in the premises. Further, the Petitioner had furnished proof of physical possession at Zakhira Chowk by submitting the following documents, which clearly showed that the Petitioner was conducting his business from the aforesaid premises at Zakhira Chowk much prior to 21.12.1984 when the survey was conducted:-
(i) Shops Registration Certificate No.4168/7/II dated 27.02.1984 issued by Chief Inspector Shops and Establishment Delhi.W.P.(C) 4833/2004 Page 7 of 16
(ii) Verification Report of Vehicle No.DHG-2667 dated 27.04.1979 registered in the name of Sukhdarshan Raizada Prop. of M/s. Thakur Tankers issued from Transport Department Govt. of NCT of Delhi, on dated 28.07.2001.
(iii) Copy of Registration Certificate No.143221 of Vehicle No.DHG-2667 registered on 27.4.1979 at 2B/1E, Zakhira Chowk, Delhi.
9. Rebutting the second contention of Mr. Mathur that the cases of Shri Subey Singh and Smt. Jaspal Kaur were distinguishable, it was contended by Mr. Saini on behalf of the Petitioner that the DDA had allotted plots to Shri Subey Singh and Smt. Jaspal Kaur whose names did not figure in the survey list of 579 units, being Plot No. E-10, Mangol Puri Industrial Area, Phase-II, measuring 200 sq. mtr. and Plot No.B-68, Mangol Puri Industrial Area, Phase-II, measuring 200 sq. mtr. There was, therefore, no justification for refusing similar treatment to the Petitioner who was admittedly similarly placed. He emphatically urged that the fact that the Petitioner was similarly placed is borne out by the order of the Lieutenant Governor dated 08.04.2002, wherein the Lieutenant Governor has opined that the cases of Shri Subey Singh and Smt. Jaspal Kaur are of similar nature, yet has refused to consider the case of the Petitioner Thakur Tankers for allotment, as proposed by the Vice Chairman, DDA.
10. This Court in order to satisfy itself had called for the records of the aforesaid two cases, i.e., the case of Shri Subey Singh and Smt. Jaspal Kaur, but despite repeated adjournments granted for the W.P.(C) 4833/2004 Page 8 of 16 aforesaid purpose the case file of Shri Subey Singh was not produced by the Respondent/DDA and the records of Smt. Jaspal Kaur available with the DDA though produced, learned counsel for the DDA was not able to show as to how the case of Smt. Jaspal Kaur was in any manner distinguishable from the case of the Petitioner. On a specific query put to him by this Court, the learned counsel for the DDA could not refute the fact that the case of Smt. Jaspal Kaur was similar to the case of the Petitioner, that the Lieutenant Governor had himself recorded in the minutes dated 08.04.2002 that the cases of Shri Subey Singh and Smt. Jaspal Kaur were of a similar nature and that the Permanent Lok Adalat presided over by Shri S.M. Aggarwal, learned Additional District Judge had also returning a finding to the effect that the case of the Petitioner was at par with the cases of Shri Subey Singh and Smt. Jaspal Kaur. As a matter of fact, it was conceded by the DDA's representative before the Permanent Lok Adalat that the case of the Petitioner was in no way different from the case of Smt. Jaspal Kaur and Shri Subey Singh. The relevant part of the proceedings recorded by Judge S.M. Aggarwal on 14.10.2003 being apposite are reproduced hereunder:-
"5. It has been conceded by Shri Azad that Smt. Jaspal Kaur whose husband was running his business of transport in the name and style of New Delhi Madhya Pradesh Road Lines was allotted Plot No.B- 61 Mangolpuri Industrial Area Phase-II after the Hon'ble High Court of Delhi had directed the Director (Lands) to conduct investigation, passed in C.W.P. No.2946/91 and during investigation it was found that Smt. Jaspal Kaur's husband was engaged in the transport business although his name and name of his W.P.(C) 4833/2004 Page 9 of 16 firm was not mentioned in the survey list of 21.12.84.
Allotment was approved by the Vice Chairman on 1.1.96 and was thereafter confirmed by the Hon'ble High Court of Delhi on 4th January, 1996. The case of the petitioner is in no way different from the case of Smt. Jaspal Kaur.
6. Similarly, the learned Vice-Chairman, DDA had made allotment of alternative industrial plot in favour of Shri Sube Singh bearing No.9-10 measuring 200 sq. mtr. in the Mangolpuri Industrial Area Phase-II in lieu of his demolished premises in Chara Mandi, Jakhira although the name of Shri Sube Singh was also not found in the survey list of 21.12.84. Similarity of these cases of the petitioner was accepted by the department vis-à-vis the aforesaid two cases and proposal for allotment of industrial plot in favour of the petitioner was also made. However, the Hon'ble Lt. Governor, Delhi vide his minutes dated 8.4.02 at page 21/N has declined to approve allotment of industrial plot only on account of the fact that the name of the petitioner did not find mention in the survey list of December, 1984.
7. I am of the considered view that the non-allotment of the plot to the petitioner whose case is in no way different from the aforesaid two admitted cases amounts to discrimination which DDA, as a government agency is not expected to do. I would, therefore, recommend that the matter be again submitted to the Hon'ble Lt. Governor, Delhi for reconsideration as I feel that if the petitioner who has been deprived of same treatment should not be forced to approach the Hon'ble High Court of Delhi for seeking justice.
Case to come up on 23.12.2003 awaiting approval of the competent authority."
11. From the aforesaid, in my considered opinion, there is no merit in the contention of the Respondent that there was a marked W.P.(C) 4833/2004 Page 10 of 16 dissimilarity between the case of the Petitioner on the one hand and the cases of Shri Subey Singh and Smt. Jaspal Kaur on the other.
12. As regards the insufficiency of the documents furnished by the Petitioner, it is the submission of the Petitioner's counsel that when an order is passed by a statutory authority (the DDA in the instant case) the same must be supported by the reasons set out therein. I find merit in the said submission as in my considered opinion, due application of mind on the part of the statutory authority is imperative, and as a matter of fact the statutory authority is estopped from urging reasons which do not form part of the order and relying upon grounds de hors the order. It is for this reason that production of records by the State or the statutory authority, as the case may be, is deemed necessary by Courts of Law. It is for the State/statutory authority to justify its action by production of records or otherwise and not by assigning reasons and grounds in the Affidavits and Additional Affidavits filed by them before the Court.
13. I am buttressed in coming to the aforesaid conclusion from the judgment of the Supreme Court in Commissioner of Police, Bombay vs. Gordhandas Bhanji, AIR 1952 SC 16, wherein it is stated:-
"...We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."W.P.(C) 4833/2004 Page 11 of 16
14. The aforesaid law was reiterated by the Supreme Court time and again and still holds the field. In the case of Mohinder Singh Gill and Anr. Vs. The Chief Election Commissioner, New Delhi and Others, (1978) 1 SCC 405, the Court observed:-
"The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji."
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Orders are not like old wine becoming better as they grow older."
15. The aforesaid law was again reiterated in Bahadursinh Lakhubhai Gohil vs. Jagdishbhai M. Kamalia and Others, (2004) 2 SCC 65, wherein it was emphatically laid down that statutory authorities are bound to pass orders in writing and discretion of the W.P.(C) 4833/2004 Page 12 of 16 Court must be exercised on the basis of such orders, fairly and non- arbitrarily.
16. In Hindustan Petroleum Corpn. Ltd. vs. Darius Shapur Chennai and Others, JT 2005 (8) SC 470, the following apposite observations were made with reference to the submission of the counsel for the Petitioner that the circumstances pointed out by the Respondent in the Counter-Affidavit, which were not mentioned in the order of the statutory authority, could not weigh with the Court while deciding a writ petition:-
"Submission of Mr Chaudhari to the effect that the circumstances pointed out in the counter-affidavit filed in WPMP No. 27633 of 2003 should be held to be substitute for the reasons which the State must be held to have arrived at a decision, cannot be countenanced. When an order is passed by a statutory authority, the same must be supported either on the reasons stated therein or the grounds available therefor in the record. A statutory authority cannot be permitted to support its order relying on or on the basis of the statements made in the affidavit de'hors the order or for that matter de'hors the records."
17. In view of the aforesaid authoritative enunciation of the law, I am constrained to hold that the reasons set out in the Counter- Affidavit and Additional Affidavit of the Respondent which find no mention in the orders of the Lieutenant Governor dated 8 th April, 2002 and 14.10.2003 and are de hors the record cannot be allowed to be pressed into service by the Respondent at this stage. It is more than apparent from the record that the Lieutenant Governor rejected the case of the Petitioner for allotment of an alternative site only for W.P.(C) 4833/2004 Page 13 of 16 the reason that the name of the Petitioner did not figure in the list of 579 units, whose names appeared in the survey list of 1984 and for no other reason besides. It was specifically noted that though the cases of Shri Subey Singh and Smt. Jaspal Kaur are of a similar nature, adherence to the survey list of 1984 for giving alternative plots only to 579 units was required. The question which poses itself is: If a departure could be made in the cases of Shri Subey Singh and Smt. Jaspal Kaur whose names too did not figure in the survey list of 1984, why has the Respondent/DDA chosen to discriminate against the Petitioner? There is no satisfactory response from the side of the Respondent/DDA on the aspect that when the survey list of 579 persons had already been extended and the persons not mentioned therein also allotted plots, why was the case of the Petitioner singled out for adherence to the survey list of 579 persons.
18. The third and last contention of the Respondent's counsel viz., that the petition is barred by delay and laches is also devoid of merit and the said contention is being noted for the sake of rejecting the same. It is clear from the records that the Petitioner throughout was following up the matter with the DDA and the Permanent Lok Adalat and on the Permanent Lok Adalat's recommendation the matter was placed before the Lieutenant Governor for reconsideration on 29.12.2003. The present writ petition was filed on 5th April, 2004 and hence cannot be said to be inordinately delayed. The reliance placed by the learned counsel for the Respondent/DDA on the judgment of the Supreme Court in State of M.P. and Others vs. Nandlal Jaiswal and Others, AIR 1987 SC 251 is also misplaced as in the said case, as W.P.(C) 4833/2004 Page 14 of 16 noted by the Hon'ble Supreme Court, there was considerable delay on the part of the Petitioners in filing the writ petitions which could not be satisfactorily explained and in the intervening period third parties (Respondent Nos.5 to 11) had altered their position by incurring huge expenditure by acquiring land and had constructed distillery building, purchased plant and machinery and expended considerable time, money and energy towards setting up the distilleries. These circumstances were held to be sufficient to disentitle the Petitioners to the relief prayed for under Article 226 of the Constitution. However, while declining to grant relief to the Petitioners, the Supreme Court observed that:-
"This rule of laches or delay is not a rigid rule which can be cast in a strait jacket formula, for there may be cases where despite delay and creation of third party rights the High Court may still in the exercise of its discretion interfere and grant relief to the petitioner."
19. The instant case is not one in which there can be said to be any inordinate delay nor any third party rights can be said to have intervened.
20. In the aforesaid facts and circumstances, a writ of certiorari quashing the action of the DDA in refusing allotment to the Petitioner, as has been done in the case of other similarly situated persons, is issued and a writ of mandamus directing the DDA to forthwith allot and give possession of a suitable alternative industrial plot to the Petitioner measuring 200 sq. yds. in lieu of premises bearing No. 2-B/1-E, Chara Mandi, Zakhira Chowk, Delhi. Since it is imperative that the Respondent make the allotment at the earliest, it is W.P.(C) 4833/2004 Page 15 of 16 directed that the allotment shall be made latest within a period of three months from the date of this order and in any event not later than June 30, 2013. It is clarified that the aforesaid timeline shall be strictly adhered to by the Respondent/DDA and any deviation therefrom will be viewed seriously.
21. W.P.(C) 4833/2004 stands disposed of in the above terms.
REVA KHETRAPAL (JUDGE) April 02, 2013 km W.P.(C) 4833/2004 Page 16 of 16