Delhi High Court
J.B.S. Chauhan & Ors. vs Uoi & Ors on 15 February, 2011
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) NO.19948-56/2005
% Date of decision: 15th February, 2011
J.B.S. CHAUHAN & ORS. ..... Petitioners
Through: Mr. P. Chakraborty, Advocate
Versus
UOI & ORS ..... Respondents
Through: Mr. Yashish Chandra for
Ms. Maninder Acharya, Advocate for MCD.
Mr. Vinay Sabharwal and
Ms. Neha Sabharwal, Advocate for R-3.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? NO
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported NO
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The writ petition concerns price fixation with respect to plots of land in J.J. Colony, Moti Bagh-II, New Delhi commonly known as Satya Niketan, New Delhi. Plots of land admeasuring 80 sq. yds each were allotted in the said colony by MCD, to relocate the squatters elsewhere on WP(C) 19948-56/2005 Page 1 of 12 public land, after their eviction therefrom. The said allottess under the terms of their allotment were not entitled to transfer the said plots. However they nevertheless transferred the plots so allotted to them and executed agreement to sell, power of attorney etc with respect thereto. The said illegal transferees represented to the various Governmental agencies to grant leasehold rights with respect to the said plots in their favour. On 11th October, 1972 a decision was taken that the 80 sq. yds. plots, in the unauthorized occupation of persons to whom these plots were passed on by the allottees under the garb of General Power of Attorney executed by the original allottees, may be regularized by offering the said plots on perpetual lease hold basis at the rate of 125/- per sq. yd. plus penalty of 10% and annual ground rent at 2.5% of the premium from the date of occupation and not from the date of regularization. Demand notices in accordance with the said policy were issued to those in unauthorized possession of the said plots.
2. Each of the 9 petitioners herein however were in possession of more than one plot admeasuring 80 sq. yd. In the case of two of the petitioners, demand letters on the aforesaid terms were issued with respect to more than one plot; however the perpetual lease deed was executed for WP(C) 19948-56/2005 Page 2 of 12 one plot only of each of the petitioners and perpetual lease deed for more than one plot was not executed.
3. The petitioners continued to represent for execution of lease deed in their favour with respect to more than one plots in their possession also. The Ministry of Urban Development, Government of India finally on 14th October, 1992 decided that where the occupants were in possession of more than one plot and had undertaken construction on the amalgamated plots, lease deed may be issued provided the additional plot/plots are paid for at the rates as notified by the Government. Demand for such additional plot was made at the rate of Rs.10,500/- per sq. meter being the notified market rate of the land. Not satisfied, the petitioners continued to represent averring that they were entitled to execution of perpetual lease with respect to more than one plot also at the rate of Rs.125/- per sq. yd. only. Upon the said representations not meeting with any success, the petitioners earlier filed WP(C) 1806/1996 in this Court seeking quashing of the demand raised on them for the additional plots at the rate of Rs.10,500/- per sq. meter and seeking a direction for execution of the perpetual lease with respect to more than one plot also at the rate of Rs.125/- per sq yd. The said writ petition was disposed of vide order WP(C) 19948-56/2005 Page 3 of 12 dated 28th July, 1999 with liberty to the petitioners to file further documents with the respondents and with the direction to the respondents to after affording a reasonable opportunity of hearing to the petitioners, pass a speaking order on the demand of the petitioners.
4. The petitioners thereafter filed the present petition pleading that inspite of the direction in the earlier writ petition, no order had been made; however in view of the subsequent developments, rather than applying for contempt, this second round of writ petition was being preferred for the same relief i.e. for quashing of the demand notice of the year 1992 at the rate of Rs.10,500/- per sq meter and for a direction to grant perpetual lease of the additional plots also at the rate of Rs.125/- per sq yd only. The subsequent events pleaded are of the formulation of the policy in the year 1992 of freehold conversion.
5. Notice of this petition was issued. On the averment of the petitioners that they were being threatened with eviction from the additional plot for non-payment of demand at the rate of Rs.10,500/- per sq. meter, vide interim order dated 7th October, 2005 it was directed that no punitive steps will be taken against the petitioners. The said order WP(C) 19948-56/2005 Page 4 of 12 continues to be in force. Pleadings have been completed and the counsels have been heard.
6. The counsel for the petitioners with reference to the decision dated 11th October, 1972 (supra) has contended that the same did not prescribe that the rate of Rs125/- per sq yd was for one plot only or that the rate would be different for additional plot(s). It is further contended that the respondents after having raised a demand for the additional plot also at the rate of Rs.125/- per sq. yd. only, atleast against two of the petitioners, was not entitled to grant perpetual lease hold rights with respect to only one plot at the said rate. It is contended that the order dated 14th October, 1992 (supra) changes the order dated 11 th October, 1972 and which could not have been done. It is yet further contended in the alternative that the market rates qua additional plot could only relate to the year 1972 and could not be of 1992 when the decision qua the second plot was taken. Challenge is lastly made to the rate of Rs.10,500/- per sq. meter for additional plots and it is contended that the said rate is for more posh and better situated colonies with better amenities and could not be applied to resettlement colony of Satya Niketan.
WP(C) 19948-56/2005 Page 5 of 12
7. The counsel for the respondent no.3 Slum and JJ Department, of the MCD at the time of filing of this petition and earlier of the DDA and now succeeded by the Delhi Urban Shelter Improvement Board, has referred to the Delhi Development Authority(Disposal of Developed Nazul Land) Rules, 1981 (Nazul Rules), particularly to Rule 6(v) and Rule 17. On inquiry as to how the said Rules are applicable, it is argued that the petitioners themselves have in the petition relied upon the said Rules as being applicable to the land in question. It is further informed that at the time of allotment of the plots in Satya Niketan and also at the time of the decision to regularize the trespassers/unauthorized occupants thereof, the Slum and JJ Department which did the allotment and regularization, was of the DDA. It is contended that the respondents were entitled to demand Rs.10,500/- per sq meter for the additional plot.
8. It is not in dispute that the petitioners had no right to the said plots and came into occupation thereof by an illegality, in violation of the terms of allotment of the said plots and without any title with respect thereto. The respondents were thus within their rights to evict the petitioners from the said plots, without being liable for payment of any compensation to the petitioners. The respondents however on 11th October, 1972, on WP(C) 19948-56/2005 Page 6 of 12 representation of the unauthorized occupants of the said colony decided to regularize their occupation by offering perpetual lease hold rights on terms aforesaid. I am unable to accept the contention of the petitioners that the decision of 1972 was applicable qua more than one plot also in occupation of one person. The petitioners have not been able to show any representation of prior to the decision of 1972, where the respondents were informed that any of the persons were in occupation of more than one plot. As aforesaid, the decision of 1972 was not one which the respondents were obligated to take. Rather the respondents were obligated to remove the illegal encroachers on the land allotted at concessional rates to relocate squatters on public land. The decision of 1972 was a welfare measure intended to give benefit to those who were otherwise in breach of law.
9. The proposal/offer given to the unauthorized occupants of the colony was of creation of leasehold rights. Such perpetual lease hold rights under Rule 17(supra) could not have been created with respect to more than one plot. The DDA or the Government of India while granting perpetual lease hold rights with respect to the residential plots always inserts a condition therein (under Rule 17) to the effect that only those WP(C) 19948-56/2005 Page 7 of 12 individuals who neither in their own name nor in the name of their spouse or dependent children hold perpetual lease hold rights with respect to any residential plots are eligible therefor. The decision of 1972 could not have been and cannot be interpreted to be in violation of the said Rules.
10. There is thus no iota of doubt that the decision of 1972 applied to only a single plot in the name of each occupant and did not apply with respect to more than one plot with any one unauthorized occupant or in occupation of any unauthorized occupant. No error thus can be found in the action of the respondents of granting perpetual lease hold rights in favour of each of the petitioners with respect to only one plot in their occupation and denying lease hold rights with respect to the additional plot(s).
11. During the hearing I have wondered whether the decision of 1992 to grant lease hold rights with respect to additional plots on payment of market rate, determined of Rs.10,500/- per sq. meter can stand in the light of Rule 17(supra) and whether the petitioners are liable to be necessarily evicted from more than one plot in their occupation. However, a perusal of the decision of 1992 shows that the same was taken because it was felt that the additional plot(s) had been amalgamated with the first plot and WP(C) 19948-56/2005 Page 8 of 12 construction had been raised on the amalgamated plots and in view of the difficulty likely to arise in enforcing eviction from such additional plot(s).
12. The only question which thus arises is as to whether the respondents were entitled to claim a higher price with respect to the additional plot.
13. The petitioners as aforesaid did not have any right with respect to even one plot lest additional plot(s). The Supreme Court in Premji Bhai Parmar Vs. Delhi Development Authority (1980) 2 SCC 129 and in Shri Sitaram Sugar Company Limited Vs. Union of India 1990 (3) SCC 223 has held that it is not the function of the Court to sit in judgment and interfere in price fixation matters or over such matters of economic policy and it must be left to the Government to decide the same.
14. This Court also in Jaipur Golden Charitable Clinical Laboratory Trust Vs. Delhi Development Authority 105 (2003) DLT 277 held that the notified rates are binding and the final authority to fix the rates for allotment of land is the allotting agency. The Division Bench while dismissing the appeal vide judgment dated 9th December, 2009 in LPA 82/2003 reported as MANU/DE/3305/2009 held that no question of WP(C) 19948-56/2005 Page 9 of 12 estoppel arose. In Meerut Development Authority Vs. Association of Management Studies (2009) 6 SCC 171 it was held that disposal of public property by the State or its instrumentalities partakes the character of a Trust and the Government cannot give a contract or sell or lease out its property for a consideration less than the optimum.
15. In so far as the argument that the market rate with respect to the second plot ought to have been fixed at the level of 1972 and not of 1992 is concerned, as aforesaid, the decision in 1972 was for regularization of only a single plot. It was only in 1992 that the representation of the petitioners for regularizing the unauthorized occupation of additional plots also was acceded to. The Full Bench of this Court in Ramanand Vs. Union of India 1993(26) DRJ 594 has held that it is the premium calculated at the time prevailing when firm offer of allotment is made by DDA that would properly constitute the consideration for concluding a valid contract between the parties. Thus, the contention of the petitioners that the market price as prevailing in 1972 ought to have been taken also has no legs. In 1972 no rights in favour of the petitioners with respect to the additional plots were created.
WP(C) 19948-56/2005 Page 10 of 12
16. The petitioners are also not found entitled to challenge the rate of Rs.10,500/- per sq meter. The Supreme Court in DDA Vs. Pushpender Kumar Jain 1994 Supplement (3) SCC 494 held that in case the allottee is not willing to take or accept the allotment at the rates, it is always open to him to decline the allotment and the price of land prevailing at the time of communication of the letter of allotment is the rate payable by the allottee.
17. There is thus no merit in the petition. The counsel for the petitioners at the fag end of the hearing has stated that if the petition is dismissed, the petitioners would pay at the rate of Rs.10,500/- per sq meter. In view of the said statement, it is deemed appropriate to clarify further. The petitioners by continuing to represent since 1992 i.e. for the last over 18 years, have delayed the payment. Now after 18 years they cannot be permitted to pay Rs.10,500/- per sq. meter only. If the same were to be permitted, the petitioners even though losing in this writ petition would still be the winners, having enjoyed the monies, which would have gone out of their pocket 18 years ago, till date. It is thus clarified that the respondents, in accordance with their policy, for the delay in payment, shall be entitled to either charge interest or claim the prevalent market rates for executing perpetual lease deeds of additional WP(C) 19948-56/2005 Page 11 of 12 plot(s). Upon the failure of the petitioners or any of them to make payment of the entire amount within eight weeks from today, the respondents shall be entitled to proceed for eviction of the petitioners.
The petition is otherwise dismissed with costs of Rs.20,000/-.
RAJIV SAHAI ENDLAW (JUDGE) 15th February, 2011 M..
WP(C) 19948-56/2005 Page 12 of 12