Delhi High Court
Moti Bagh Mutual Aid Educational (Vidya ... vs Delhi Development Authority And Anr. on 3 December, 1990
Equivalent citations: 43(1991)DLT319, 1991RLR190
JUDGMENT M.L. Varma, J.
(1) In this writ petition rule nisi was issued on 11.5.1989. No counter affidavit has been filed by the respondents. On 21.9.1989 it was ordered that the main writ petition be listed for hearing on 26.9.1989 at number 1. This was because counsel for the petitioner and the respondents - were in agreement that this case was covered by the decision in the case of Rose Educational Scientific & Cultural Society (Regd.) and others v. Union of India and others reported in 1989 Vol. 38 Dlt at page 344. The final hearing of this matter was got adjourned for the reason that an Lpa had been filed against the aforesaid judgment. That appeal has been decided on 5.9.1990 and the judgment of the learned single Judge has been upheld.
(2) The petitioner in this case was allotted 0.5 acres of land by the respondent No. I vide letter bearing No. F. 19(6)/78. Institutional, dated 18.10.1982 for a nursery school building at the rate of Rs. 6 lacs per acre and the annual ground rent at the rate of two and half percent of the premium. It appears that subsequently on the representation made by the petitioner, the terms of allotment were varied vide letter dated 25.10.1984 which is Annexure C to the writ petition. As per the modification, the petitioner was informed that 0.25 acres of land had been allotted for the nursery school building at the rate of Rs. 3 lacs per acre and the remaining 0.25 acres of land was allotted on a temporary basis for play ground on payment of nominal ground rent of Re. if- per annum. The term regarding the annual ground rent in respect of the land for the school building at the rate of two and half percent per annum remained the same.
(3) It is not in dispute that the petitioner paid the premium due to the respondents and was also allotted the land, and further that the possession of such land was also handed over to the petitioner. It may be noticed here that this land was in Block B-3 Safdarjung Development Area. The residents of this colony filed a petition under Article 227 of the Constitution of India in this Court being C.M. (Main) 96 of 1989. ThisCM(M) petition was disposed of vide order dated 12.5.1986. It is recorded in this order that Dda had decided "to allot an alternative site in lieu of the site already allotted to Respondent No. 2 for Block-3, Safdarjung Development Area." Respondent No. 2 in that case was the petitioner herein and on 12.5.86, its counsel was also present in the court when the aforesaid order was passed. The said residents withdrew the CM(M) petition because of the aforesaid decision of the Dda to shift respondent No. 2 therein viz. the petitioner herein from Safdarjung Development Area to a nearby area.
(4) It appears that no alternative plot of land was allotted to the petitioner herein by respondent No. 1. The petitioner represented to the Chairman of the Dda vide letter dated 5.3.1987 making a grievance that the allotment of alternate plot of land had not been made. It is not dispute that the possession of the plot of land allotted to petitioner in the Safdarjung Development Area was surrendered by the petitioner. The petitioner received letter No.F. 19(l)/79-lnstl. dated 13.9.1988 inter-alia staling that the Dda has decided to "allot" 800 sq. mtrs. of land for nursery school building in VasantKunj at the rate of Rs. 8 lacs per acre (provisional). The details of the demand worked out by the respondent Doa were given in the letter and the petitioner was called upon to pay Rs. 87,113.00 .
(5) Obviously, on receiving this letter, the petitioner wrote back to the Dda on 11.10.1988 complaining against the injustice. It was pointed out in this letter that whereas the earlier allotment was for half an acre, the present allotment is of only 800 sq. mtrs. of land and a grievance was made that the demand had been raised on the basis of revised rates of land. It was also pointed out in this letter that in the case of Mount Carmel School, Anand Niketan, New Delhi, land rates prevailing at the time of submitting the application for allotment of land were charged by the DDA. Meanwhile, vide letter No.F. 19 (1)/79/lnstl., dated 18.1U.1988, sent by Dda, the petitioner was informed that the land rate bad since been raised from Rs. 8 lacs peracretors.28,50,OJO.00 per acre w.e.f. 1.4.1987 and on that basis, a sum of Rs. 5,02,459.40 was demanded within 30 days. As if this was not enough the petitioner was also threatened with interest at the rate of 18% per annum on belated payment. Obviously, the communication would not have been complete without mentioning in the letter that for non-payment, action for cancellation of allotment would be taken and it was so mentioned in the said letter dated 18.10.) 988.
(6) In response to its representation dated 11.10.1988, the petitioner received a reply dated 25.11.1988 from Dda rejecting the request for reduction of the rates and demanding the sum of Rs. 5,02,459.40 within 15 days from the date of that letter failing which it was threatened that action to cancel the allotment would be taken.
(7) The petitioner has impugned the letters dated 18.10.1988 and 25.10.1988 which are Annexures L &M respectively to the writ petition which are sought to be quashed. The petitioner has also prayed that the Dda should be directed to allot and hand over to the petitioner 0.50 acres of land in the nearby locality of Safdarjung; that Dda should not be allowed to demand any extra money for the alternative plot of land in lieu of the land in Safdarjung Development Area and it should be directed to charge the rate for the land given in Annexure A to the writ petition which is Rs. 3 lacs per acre.
(8) Mr. Vipin Sanghi, learned counsel for the petitioner has contended that the petitioners are entitled to the alternative plot of land in lieu of land in Safdarjung Development area as per the undertaking of Dda recorded by this court in the C.M. (M) petition on 22.5.1986. His submission is that it is very unjust on the part of the respondents to give only 800 sq. mtrs. of land instead of half an acre and then demand a much higher price for a land allotted in Vasant Kunj which is more than 10 Kms. away from Safdarjung Development Area. He points out that the DDA. should have allotted and handed over alternative plot of land immediately after 12.5.1986 at the same rate without charging any additional amount in a nearby area and such alternative plot should also have been of the same size.
(9) Mr. Sanghi submits that the petitioner has been put ' to great inconvenience and loss on account of this delay and that if the alternative plot of land had been allotted soon after 12.5.1986, then there would have been no question of any demand being raised on the revised rate which came into effect from 1.4.1987. Mr. Sanghi submits that the petitioner was sanguine in its hope that on the basis of order dated 12.5.1986, it will be allotted alternative plot in lieu of the plot of land in Safdarjung Development Area and therefore, it did not oppose an amicable settlement between the parties in the Cm (M) petition which was disposed of on the basis of and pursuant to the statement made on behalf of Dda as recorded in the said order.
(10) At the very outset it may be noticed that the petitioner had itself agreed or at least suggested that the alternative plot may be allotted to the petitioner in lieu of the plot in Safdarjung Development Area in the locality now known as Vasant Kunj. The petitioner was allotted land in Vasant Kunj. It is, therefore, not open to the petitioner to make a grievance about the fact that the land now allotted is in a locality far off from the Safdarjung Development Area. However, the grievance of the petitioner, against the charge of additional amount as well as the size of the plot of land to be allotted as an alternative in lieu of plot allotted earlier appear to have merit.
(11) Mr. Jayant Bhushan learned counsel for the Dda has vehemently argued on behalf of his client. He has contended that the words "alternative in lieu of" do not mean a plot of the same size. According to him it means that whatever can be allotted will be allotted. His contention is that such allotment can only be at the current rate and not at the rate at which the plot of land in Safdarjung Development Area had been allotted to the petitioner. Mr. Bhushan contends that the petitioner's case can either be of a breach of undertaking made to the Court on 12.5.86 in the Civil Miscellaneous (Main) Petition or that it is case of enforcing a promise based on the doctrine of promissory estopple. His contention is that there was no clear promise extended to the petitioner for it to invoke the doctrine of promissory estoppel and according to him the petitioner has also not acted upon any such promise to be able to invoke that doctrine. Mr. Bhushan has also pointed out that there is no plot of land in Vasant Kunj of a size larger than 800 sq. mtrs. which is earmarked for and/or allotted to a nursery school. It is, however, not disputed by Mr. Bhushan that there are larger plots of land in Vasant Kunj earmarked for schools even though they may not be for nursery schools. Mr. Bhushan contends that the petitioner had accepted a plot of land of 800 sq. metrs. and it cannot now go back on that.
(12) There is nothing on record to show that the petitioner had accepted a smaller plot of land measuring 800 sq mtrs. only as an alternative plot in lieu of the land allotted to it in Safdarjung Development Area. The reference to the prayer clause (b) in the stay petition does not help the respondent Dda in contending that the petitioner had agreed to accept only 800 sq. mtrs. of land in lieu of the plot allotted to it in the Safdarjung Development Area. Mr. Bhushan has also drawn my attention to a document at page 43, where, in the last sentence, the Honorary Secretary of the petitioner had written to the Dda requesting that the new site may be handed over. But this letter 'must be read as a whole and in paragraph I on page 43 itself the petitioner bad made it clear that it was asking for allotment of an alternative site in lieu of the site in the Safdarjung Development Area. This was admittedly of the size of 0.50 acre.
(13) Mr. Sanghi has drawn my attention to para 10 at page 33 which is a copy of the counter affidavit filed by the Dda in the CM(M) 98/86 wherein it has been categorically stated that the matter had already been sorted out and "the alternative allotment of the site has been made". This affidavit is verified on 24.4.86 Mr. Sanghi has also drawn my attention to pages 36 and 38 being documents dated 5.3.87 and 11.10.88 to show that the petitioner had all along been pressing for the alternative site in lieu of the plot in Safdarjung Development Area. It is surprising that the Dda should take the stand that the petitioner had accepted a plot of land of 800 sq. mtrs. in lieu of the land in Safdarjung Development Area. The contention on behalf of Dda in this regard is without merit and is rejected.
(14) The petitioner was allotted 0.50 acre of land and but for the said CM(M) petition the petitioner would have half an acre of land in Safdarjung Development Area and would have started the nursery school many years ago. The contention of Mr. Bhushan that the words "alternative in lieu of" do not mean the plot of the same size but means that whatever can be allotted will be allotted is wholly untenable. His argument is that such an allotment must be made at the current rate of land and not at the rate at which plot of land had been allotted to the petitioner in Safdarjung Development Area. I see no merit in this argument also. The words "alternative plot in lieu of" do not and cannot mean smaller plot of land at a higher price. The approach of the Dda in this regard is therefore wholly arbitrary and extremely unreasonable. On 12.5.86 when aforesaid CM(M) petition was disposed of, it is noteworthy, that the Dda did not take the stand that it would give to the petitioner herein a plot of such size as can be allotted and not the plot of the same size nor did it state that it would demand further sums for providing the alternative plot of land based on rates of land that may be revised from time to time regardless of whether such revision is made because of lapse of time owing to the delays on the part of the DDA. It is obvious that the petitioner was entitled to and should have been allotted the land equal in size and at the same price already paid by the petitioner and I hold accordingly. It appears to me that the affidavit filed on behalf of Dda verified on 24.4.86 in the aforesaid CM(M) petition staling therein that the matter had already been sorted out and the alternative allotment of the site had been made was not a true and correct statement of the fact.
(15) I am not impressed by the argument of Mr.Bhushan that the petitioner should have taken recourse to contempt proceedings because of breach of undertaking which given to the Court in CM(M) on 12.5.86. As far as the arguments regarding promissory estoppel is concerned Mr. Sanghi has pointed out that the petitioner has given up the plot of which it had taken possession after allotment in Safdarjung Development Area which was of the size of half an acre and that because of the representation made by the Dda, the petitioner has acted to its detriment by giving up possession of such land.
(16) In the case of Rose Education this Court has held that the Dda cannot charge the price of the land at the current rates. In that case original land allotment had been made at the rate of Rs. 8 lacs per acre and the demand was for Rs. 19 lacs per acre. This court held that keeping in mind the actual expenses the Dda should charge at the rate of Rupees nine and half lacs per acre. The argument that the Dda was entitled to charge at the current rate was rejected on the ground that the policy of charging only such price as was filed on no profit and no loss basis cannot be changed midstream. In my opinion the present case is on an even higher footing in so far as the land had been allotted to the petitioner in the Safdarjung Development Area; possession of the land bad been given to the petitioner. Thereafter, it was a case of giving an alternative plot in lieu of this land for which payment had already been made. I am therefore, clearly of the view that the Dda is not entitled to charge any amount over and above what the petitioner had paid for the plot of 0.5 acres of land. A case somewhat similar to this case is of Lawrence Road Modern Society v. DDA. being Cw 127/89. This case has been disposed of vide judgment and order dated 12.11.80. In this case Dda cancelled the allotment of plot made to the Lawrence Road Modern Education Society. The Dda was directed to restore the allotment. Dda wanted to charge premium for the land at the current rate of Rs. 19 lacs per acre. It was held in this case that Dda was not entitled to charge that rate.
(17) For the aforesaid reasons I am of the view that the respondent cannot take advantage of its own wrong. There is no fault of the petitioner in view of the facts and circumstances noticed above. It seems to me that the respondents are acting in an arbitrary manner in alloting the plot of land of a smaller size than the one which was already allotted to the petitioner in Safdarjung Development Area and the demand for higher premium is obviously arbitrary. It may be noticed that if the Dda had allotted an alternate plot of land in lieu of the land in Safdarjung Development Area immediately after 12.5.86 as was stated in the counter affidavit dated 24.4.86 then neither the question of alloting a smaller size of plot nor the question of charging any higher amount on account of the revision of land rates would have arisen. The lapse is on the part of the Dda and it cannot take advantage of its own wrong. As noticed above it is not the case of Dda that larger plots of land are not actually available in the Vasant Kunj.
(18) For the aforesaid reasons the writ petition is allowed. Annexure L and M demanding higher amount from the petitioner are quashed. Dda is directed to allot and hand over to the petitioner a plot of land of 0.50 acres size in Vasant Kunj at the price already paid by the petitioner i.e. at the rate of Rs. 3 lacs per acre on the terms as are contained in the letter No. F. 19(l)/79- Instl. dated 25.10.84. This means that for 0.25 acres of land there will be a premium at the rate of 3 lacs per acre and for the balance of 0.25 acres of land the nominal ground rent @ Re. I per annum would be charged. According to the Dda, it has already allotted to the petitioner a plot of land measuring 800 sq. mtrs. The Dda will have the option to give to the petitioner more lands contiguous to the land measuring 800 sq. mtrs. already allotted to the petitioner so as to make up the balance of the area and resulting in the allotment of 0.50 acres of land being made to the petitioner. In the alternative the Dda may allot and hand over to the petitioner the possession of an alternative plot measuring 0.50 acres in Vasant Kunj, New Delhi. This should be done within four months from today.
(19) At this stage both counsel point out that the actual plot of land at site in Safdarjang Development Area was 0.48 acre and not 0.50 acre. Therefore, it is clarified that the petitioner is entitled to a plot of land of a total area of 0.48 acre and not 0.50 acre. The respondent Dda will pay to the petitioners costs quantified at Rs. 2,000.00 . The writ petition stands disposer of.