Delhi High Court
B S Bhalla vs Dda on 29 April, 2016
Author: G.S.Sistani
Bench: G.S.Sistani
$~SB.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment dated 29 th April, 2016
+ W.P.(C) 9059/2011
B S BHALLA ..... Petitioner
Through : Mr.R.K. Saini, Adv.
versus
DDA ..... Respondent
Through : Mr.Arun Birbal, Adv.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.Sistani, J. (Oral)
CM APPL. 12421/2015
1. This is an application filed by petitioner/applicant under Section 151 of the Code of Civil Procedure seeking modification of the order dated 24.9.2012 passed by this Court.
2. Notice in this application was issued. Reply has been filed.
3. Learned counsel for the petitioner submits that the necessity for filing the present application has arisen after a demand-cum-allotment letter dated 14.12.2014 was received by the petitioner from the DDA on 18.4.2014, whereby the petitioner was allotted a flat on the fourth floor. Counsel further submits that pursuant to the initial letter of allotment, which was issued in favour of the petitioner allotment was made to the petitioner on the ground floor. Counsel also submits that despite the fact that a flat on the ground floor is available with the DDA, the allotment of a flat to the petitioner on the fourth floor would cause serious prejudice to the rights of the petitioner. Mr.Saini further submits that it is the policy of the DDA that DDA does not change the floor of the flat allotted.
W.P.(C) 9059/2011 Page 1 of 94. Mr.Birbal, learned counsel for the respondent-DDA, has opposed this application firstly on the ground that this application is barred by delay and laches. It is contended by the counsel for the DDA that in case any modification was necessary, the necessary application should have been filed by the petitioner within thirty days of the order dated 24.9.2012 passed by this Court. The second ground, on which this application is opposed, is that the order dated 24.9.2012 passed by this court, has merged with the final order dated 1.10.2013 passed by the Division Bench of this Court in the LPA filed by the DDA. Counsel further submits that the Division Bench dismissed the LPA by passing a detailed order after issuing notice to the petitioner and the said order has now become a final order in this case. Additionally, it is submitted by learned counsel for the DDA that thereafter a Special Leave Petition was filed by the DDA, which was dismissed, however, the Apex Court had made it clear that the order passed by the Apex Court would not be treated as a precedent.
5. I have heard learned counsel for the parties and also considered their rival submissions. Before the submissions of the parties can be appreciated, it would be necessary to notice the facts, which have led to the filing of the writ petition, being W.P.(C)9059/2011. The petitioner had applied to the DDA under the New Pattern Registration Scheme (In short NPRS-1979) for allotment of an LIG flat, vide registration no.13405. Till the year 1989, no allotment was made in his favour. At that time, the DDA introduced another scheme titled as Awas Sakar Yojna, (ASY) 1989. As per the said scheme, a registrant could get his registration transferred from a cooperative society and get allotment of a plot of land to built multi- storeyed cooperative group housing society flats. On account of a long wait, the petitioner was tempted to take benefit of ASY Scheme. At the request of the petitioner, his registration stood transferred to ASY 1989 W.P.(C) 9059/2011 Page 2 of 9 Scheme. The petitioner was declared successful and he was allotted an LIG Flat in Kondli Gharoli, Delhi. Despite the allotment, demand-cum- allotment letter was not issued to the petitioner. The ASY Scheme was closed by the DDA and the registrations of persons like the petitioner herein got transferred back to the NDPS 1979 Scheme with an entitlement to get a flat thereunder as per their seniority. After various representations, the petitioner learnt that allotment had been made in his favour on 16.4.2007. The petitioner requested to the DDA that allotment be made in the East Zone and as per the cost of the year 1989. The petitioner kept on contesting the matter. Ultimately the petitioner filed the present writ petition, which was decided by this Court on 24.9.2012. Paras 12 and 13 of the judgment dated 24.9.2012, being relevant, read as under:
"12. The petitioner belongs to the lower income group and was aspiring to own a property in Delhi and thus he applied for an LIG flat, as far back in the year 1979. His anxiety to have the roof over its head is borne out from the fact that he changed his category from NPRS to ASY Scheme in the hope of an earlier allotment, which did not happen. Petitioner had to revert back to the NPRS Scheme and he waited patiently for allotment in the NPRS Scheme with the hope that his first allotment of the year 1990 would not go completely waste. The only mistake committed by the petitioner was that he kept insisting for a flat in the same area i.e. East Zone, as was allotted to him in the year 1990.
13. In view of the Policy of 28 th May, 2003, and the peculiar facts of this case, the writ petition is allowed. The petitioner would be entitled to allotment of an LIG flat either at Lok Nayak Puram or in any other area at the cost prevailing in the year 1990, subject to petitioner paying interest from July, 2006, till 30 th September, 2012 @ 12% p.a. The cost of the flat and 12% interest will be deposited by the petitioner within one month of raising of the fresh demand- cum-allotment letter."W.P.(C) 9059/2011 Page 3 of 9
6. After passing of the aforesaid order dated 24.9.2012, the DDA failed to make the allotment in favour of the petitioner, which led to the filing of a contempt petition by the petitioner. Meanwhile, the DDA filed an LPA, which was dismissed by a detailed order after issuing notice to the petitioner herein. The DDA thereafter filed a SLP, which was heard and dismissed. Before the Single Judge, where the contempt petition was pending, on 18.12.2014 a statement was made by the counsel for the DDA that an allotment letter had been dispatched to the petitioner.
7. The first question, which arises for consideration, is that in case the petitioner was aggrieved in any way of the order dated 24.9.2012 and in case the petitioner was of the view that the order dated 24.9.2012 did not mention that a flat on the ground floor should have been allotted to the petitioner, in my view, the petitioner should have sought modification of the said order at the first opportunity available to him i.e. soon after 24.9.2012.
8. Learned counsel for the petitioner has sought to clarify that the petitioner was in fact under the misplaced impression that since the earlier allotment was with respect to a flat on the ground floor, he would be allotted a flat on the ground floor as well unless the flat was not available, but it was to his surprise that after his extreme struggle a flat was allotted to him on the fourth floor as late as on 14.12.2014. It is further submitted that it is only then that the petitioner realised the lapse; he also took time in ascertaining whether a ground floor flat was available or not; and upon learning that one flat was available on the ground floor, he approached the Court.
9. This argument of learned counsel for the petitioner is unacceptable for the reason that this case has a chequered history and paras 12 and 13 of the judgment dated 24.9.2012 would show that it was in the peculiar facts of the present case, that this Court had allowed the writ petition. Any W.P.(C) 9059/2011 Page 4 of 9 modification of the order should have been sought within a reasonable period after passing of the order.
10. Secondly, learned counsel for the respondent had submitted that the order dated 24.9.2012 passed by this Court stood merged with the order passed by the Division Bench and thereafter by the Supreme Court of India. In support of this contention, learned counsel for the respondent has relied upon Ram Kishor Gupta v. Ramesh Chandra Bhatnagar, reported at (2008) 17 SCC 635, more particularly para 6, which reads as under:
"6. After the revision was dismissed, the respondent filed an application for review of the order dated 19-1-2001. The appellant filed a revision claiming that a review was not maintainable. That revision was dismissed. A writ petition challenging the order of dismissal has been dismissed by the impugned order dated 22-3- 2001. Both the orders i.e. the order passed in the revision as well as the impugned order, hold that as the review is pending, it should be allowed to take its natural course. In our view, this reasoning cannot be sustained. Once a party decides to challenge an order before a higher forum and his appeal or revision is dismissed by the higher forum on merits, then no question arises for filing a review of the order which has been affirmed by the higher forum. Once the respondent's revision against the order dated 19-1-2001 was dismissed on merits, no question arose of filing a review of the order dated 19-1-2001. Such a review is clearly not maintainable and must be dismissed as such." (emphasis added)
11. The Apex Court in the aforesaid matter held that once a party decided to challenge the order before a higher forum and his appeal or revision is dismissed by the higher forum on merits, then no question arises for filing a review of the order , which has been affirmed by the higher forum.
12. Mr.Birbal, learned counsel for the respondent, also contends that the Doctrine of Merger would apply to this case. In support of this submission, reliance is placed by the counsel for the respondent on a W.P.(C) 9059/2011 Page 5 of 9 decision rendered by the Supreme Court of India in the case of Kunhayammed And Others v. State of Kerala And Another, reported at (2000) 6 SCC 359, more particularly paragraphs 7 to 12, which read as under:
"The doctrine of merger
7. The doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. On more occasions than one this Court had an opportunity of dealing with the doctrine of merger. It would be advisable to trace and set out the judicial opinion of this Court as it has progressed through the times.
8. In Commissioner of Income-tax, Bombay Vs. M/s Amritlal Bhogilal and Co. AIR 1958 SC 868 this Court held :
"There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement."
9. However, in the facts and circumstances of the case this Court refused to apply the doctrine of merger. There, an order of registration of a firm was made by the Income-tax Officer. The firm was then assessed as a registered firm. The order of assessment of the assessee was subjected to appeal before the Appellate Commissioner. Later on the order passed by the Income-tax Officer in respect of registration of the firm was sought to be revised by the Commissioner of Income-tax. Question arose whether the Commissioner of Income-tax could have exercised the power of W.P.(C) 9059/2011 Page 6 of 9 revision. This Court held that though the order of assessment made by the ITO was appealed against before the Appellate Commissioner, the order of registration was not appeallable at all and therefore the order granting registration of the firm cannot be said to have been merged in the appellate order of the Appellate Commissioner. While doing so this Court analysed several provisions of the Income-tax Act so as to determine the nature and scope of relevant appellate and revisional powers and held if the subject matter of the two proceedings is not identical, there can be no merger. In State of Madras Vs. Madurai Mills Co.Ltd. AIR 1967 SC 681 this Court held that the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior authority and the other by a superior authority, passed in an appeal or revision there is a fusion or merger of two orders irrespective of the subject- matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. The application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction.
10. In Gojer Brothers (P) Ltd. v. Shri Ratanlal, AIR 1974 SC 1380, this Court made it clear that so far as merger is concerned on principle there is no distinction between an order of reversal or modification or an order of confirmation passed by the appellate authority; in all the three cases the order passed by the lower authority shall merge in the order passed by the appellate authority whatsoever be its decision whether of reversal or modification or only confirmation. Their Lordships referred to an earlier decision of this court in U.J.S. Chopra Vs. State of Bombay AIR 1955 SC 633 wherein it was held.
"A judgment pronounced by a High Court in exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing in the presence of both the parties would replace the judgment of the lower court, thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the courts below."
11. In S.S. Rathor Vs. State of Madhya Pradesh, AIR 1990 SC 10, a larger Bench of this Court (Seven-Judges) having reviewed the available decisions of the Supreme Court on the doctrine of merger, held that the distinction made between courts and tribunals W.P.(C) 9059/2011 Page 7 of 9 as regards the applicability of doctrine of merger is without any legal justification; where a statutory remedy was provided against an adverse order in a service dispute and that remedy was availed, the limitation for filing a suit challenging the adverse order would commence not from the date of the original adverse order but on the date when the order of the higher authority disposing of the statutory remedy was passed. Support was taken from doctrine of merger by referring to C.I.T. Vs. Amritlal Bhogilal & Co. (supra) and several other decisions of this Court.
12. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way
- whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view." (emphasis added)
13. In my view, there is force in the submission made by learned counsel for the respondent, as the judgment dated 24.9.2012 passed by this Court was upheld by the Division Bench in LPA No.633/2013 by a detailed order, which order was also upheld by the Supreme Court of India. In my view, the order passed by the Division Bench and upheld by the Supreme Court would be termed as the final order and this Court cannot modify the order, which has merged into the order of a higher court.
14. Another factor, which would disentitle the petitioner, in my view, to any relief, is that the allotment letter dated 14.12.2014 had fixed the last date W.P.(C) 9059/2011 Page 8 of 9 for making the payment as 12.6.2015. This payment has not been made by the petitioner and, thus, for the present there would be an automatic cancellation of any allotment in favour of the petitioner. Any order passed at this stage would give an unfair advantage to the petitioner whose allotment already stands cancelled. Resultantly, I find no merit in this application.
15. At this stage, learned counsel for the petitioner submits that he wishes to withdraw the present application to enable him to seek appropriate remedy.
16. Accordingly, application stands dismissed as not pressed.
G.S.SISTANI, J APRIL 29, 2016 msr W.P.(C) 9059/2011 Page 9 of 9