Delhi High Court
Dharamveer Sharma vs Govt. Of Nct Of Delhi And Ors. on 3 January, 2007
Equivalent citations: 136(2007)DLT657
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat
JUDGMENT S. Ravindra Bhat, J.
1. Issue Rule. Mr. Sanjay Kumar Pathak and Mr. C. Mohan Rao, Advocates waive notice of Rule.
2. Large tracts of lands were acquired for development of the city of Delhi. One such acquisition, for the planned development of Delhi, initiated in 1962, notified the lands of Sh. Kanwar Lal. He was owner of some agricultural lands. Sh. Amir Singh was the son of Kanwar Lal and the petitioner, his son. It is claimed that Kanwar Lal had applied for allotment of an alternative plot pursuant to a public notice issued by the erstwhile Delhi Administration on 21/23.11.1963. That notice had invited applications by interested landlords on or before 10th December, 1963.
3. Kanwar Lal died in 1975. It is claimed that the petitioner's father Amir Singh and his uncle, the other son of Kanwar Lal, Raghunath Singh initiated the request for allotment of alternative plot. That request was acceded to by the Delhi Administrative on 28.1.1980, which recommended allotment of an alternative plot of 250 square yards to the sons of Kanwar Lal. At their request, in stead of composite/common plot, separate plots measuring 125 square yards each were recommended on 30.1.1980.
4. The Delhi Administration, unilaterally and without asking any of the allottees to show cause, withdrew the allotment by its letter 28.5.1982. The sons and legal heirs of Kanwar Lal, namely Raghunath Singh and Amir Singh filed writ petition being CWP 146/1983. Those writ proceedings were heard along with a batch of cases, namely, Raj Kumar Jain v. Union of India, CWP 1705/1982 and connected cases, and decided on 19.10.1984. The Court quashed the order and granted a liberty to the Delhi Administration to issue show cause notice to the allottees and take fresh decision in accordance with law. During pendency of the proceedings, the plots originally allotted were reserved and pursuant to the Court's order the said plot continued to be reserved till final decision by the Delhi Administration.
5. Apparently, on 7.2.1985, the petitioner's uncle Raghunath Singh was issued with a show cause notice as to why allotment of the 125 square yards plot, namely, B-6/Extn./22, Safdarjung Enclave ought not to be rescinded. He resisted the show cause notice; the Delhi Administration rejected his representation and decided that the allotment made to him ought to be withdrawn, by order dated 21.6.1985. The rationale apparently was that the application for alternative allotment was not made within time i.e. by 10th December, 1963 by the original land owner, namely, Kanwar Lal.
6. Dis-satisfied with the order, Raghunath approached this Court by filing CWP 3028/85. That writ petition was allowed on 2.4.1991, by the Division Bench. The Court quashed the order withdrawing the recommendation of Raghunath Singh. The order became final, and consequently, Raghunath Singh was given possession of the same plot.
7. Sometime on 23rd November, 1993, the respondent, Government of National Capital Territory of Delhi (hereafter referred to as "GNCT") issued a show cause notice ostensibly pursuant to the liberty reserved by the earlier order in CWP 146/1983 (dated 19.10.1984). The show cause notice sought to cancel the allotment on the ground that the land owner had not applied to the appropriate authority for an alternative plot within time. This notice was resisted by the petitioner, through a reply dated 6.12.1993 and 24.3.1994. As no final decision was taken, the present writ proceedings were initiated, seeking an appropriate direction for allotment of the 125 square yards plot reserved by the Court in the earlier writ petition No. 146/1983.
8. At the time of issuance of notice, this Court had directed that that status quo with regard to the handing over of the possession of the plot ought to be maintained.
9. The petitioner alleges that the show cause notice issued by the respondents cannot be sustained because the recommendation made in January 1980 was after considering the relevant facts. It is also contended that in view of the decision of this Court dated 19th October, 1984, the Government of NCT ought to have taken expeditious action. On the other hand, it sought to issue a show cause notice to Raghunath Singh, the allotment made to him was cancelled and eventually the cancellation order was quashed. That order, it is submitted is binding on the respondents and was delivered by a Division Bench of this Court. By analogy and parity of reasoning, it is claimed that the petitioners have to be allotted with the 125 square yards plot since the recommendation was a composite one in respect of the late Kanwar Lal.
10. The Government of NCT in its return submitted that the subsequent Division Bench judgment was delivered in the absence of any assistance and also in the absence of a counter affidavit filed in Court. The Court had proceeded on the footing that the application for alternative plot had been made within time prescribed i.e. in 1963. However, it is contended that the petitioner's father Sh. Amir Singh had approached the Government of NCT only in 1979, clearly beyond the time and, therefore, the decision to withdraw the recommendation was justified.
11. The respondent Government of NCT has also averred that besides approaching the appropriate authorities after an inordinate delay even the petitioner approached the Court in a highly belated manner. It is claimed that the jurisdiction of the Court under Article 226 of the Constitution is equitable and discretionary and cannot be exercised to aid a slumbering litigant who does not seek recourse to judicial remedies within the reasonable time. In addition, the respondent has also submitted that the Lt. Governor had taken a policy decision on 11.10.1998 that unless an applicant seeking alternative allotment of a plot in lieu of the acquisition, approached the authorities or the Government concerned within the time stipulated in the scheme, there was no question of any right accruing in his favor. It is further claimed that there is no vested or inherent right to seek alternative allotment of a plot over and above the benefits which are made available to a dispossessed land owners under the Land Acquisition Act.
12. Mr. Yadav, learned Counsel for the petitioner submitted that the recommendation made on 28.1.1980 and subsequently modified on 30.1.1980 in favor of the petitioner's father was a composite one. It is indisputably in respect of the lands acquired from Kanwar Lal, the father of Raghunath Singh and Amir Singh. The unilateral withdrawal of the recommendation in 1982 having been quashed in the earlier writ petition No. 146/1983 decided on 19th October, 1994 (to which the petitioner's father was a party) the respondent ought to have initiated action if at all within reasonable time and for cogent and relevant reasons. However, it did not choose to do so and in stead only awaited the decision in Raghunath Singh's case who have been in the interregnum issued with the show cause notice and whose allotment was cancelled in 1985.
13. Mr. Yadav contends that the judgment in Raghunath Singh's case (W.P. (C) 3028/1985) is binding upon the respondent. It is claimed that the respondent cannot distinguish the said judgment since the fact situation on both the cases is identical. The displaced/ousted land owner is common, namely, Kanwar Lal, being father of Raghunath Singh who had approached this Court after the cancellation took place in 1985. However, in the case of Amir Singh, the respondent chose not to initiate any action and awaited for about 10 years. Under these circumstances, it is no longer open to them to contend that the initial application was made belatedly and cite that as the reason for withholding the allotment in question.
14. It is also contended that the facts relating to the petitioner as well as the Raghunath Singh are one and the same and that the judgment having attained finality, the respondent GNCT cannot seek to distinguish it and even say that the reasoning was flawed or was not binding.
15. Mr. Sanjay Kumar Pathak, learned Counsel for the Government of NCT submitted that the petitioner cannot claim any inherent or vested right for allotment. It was submitted that a reading of the judgment in Raghunath Singh's case, in writ petition No. 3028/1985 was delivered in the absence of any counsel for the respondent or in the absence of any return or counter affidavit. It proceeded on the pleadings by the parties that Kanwar Lal had approached the authorities, with a request for alternative allotment within time. It is submitted that such assumption is not borne out.
16. Learned Counsel contended that though the show cause notice in this case was issued on 23rd November, 1993, that did not, in any way, detract from the powers and duties of the respondents to ensure that only those who approached with a request for alternative allotment within time in terms of public notice issued in 1963 were given the benefit. On the facts, it was submitted that whatever be the reasoning and the decision in Raghunath Singh's case, there is no material to support the claim of the petitioner that Kanwar Lal had in fact approached the appropriate authorities within the time.
17. Learned Counsel relied upon the decision of the Full Bench of this Court in Ramanand v. Union of India AIR 1994 Delhi 29 and subsequent single Judge judgment in Sundari Bala v. Lt. Governor and Ors. 2000 V AD (Delhi) 604. It was contended that these decisions have insisted that no land owner whose holdings are acquired can claim an inherent and vested right outside of the scheme or rule to the alternative allotment of plots over and above the compensation under the Land Acquisition Act.
18. Learned Counsel also contended that in the absence of any enforceable right, the respondents cannot be compelled to grant allotment of a plot to the petitioner. It was contended by counsel that there is question of discrimination vis-a-vis Raghunath Singh in whose case the judgment appears to have been delivered without noticing the full and correct facts. It was submitted that in any event the plea of discrimination cannot be entertained if the litigant who approaches the Court is unable to establish enforceable right on the facts of his case but relies upon the another instance where relief is granted either by the Courts or the Authorities themselves. It was submitted that Article 14 cannot be invoked in such cases to insist that a wrong or erroneous order ought to be taken as a precedent to claim positive right. Learned Counsel relied upon the decisions reported as State of Haryana and Ors. v. Ram Kumar Mann , Coromandel Fertilizers Ltd. v. Union of India and Ors. 1984 (Supp) SCC 457 and Karnataka State Industrial Investment and Development Corporation Ltd. v. Cavalet India Ltd. and Ors. .
19. The above narrative would show that there is no dispute about the following facts:
(i) The lands were originally owned by Kanwar Lal and were acquired in 1962;
(ii) Amir Singh and Raghunath Singh, the sons of Kanwar Lal who had died in 1975 made representation in 1979 to the respondents for allotment of an alternative plot; they asserted that the father had applied for an alternative plot within stipulated time;
(iii) The recommendation for allotment of plot was made on 28/30-1-1980. This recommendation was for allotment of two identically measured plots of 125 square yards.
(iv) The recommendation was unilaterally withdrawn by an order of the Government of NCT dated 28.5.1982. This was challenged by both the allottees.
(v) The earlier writ petition, namely, writ petition No. 146/82 was allowed on 19th October, 1984. The Government of NCT was granted liberty to issue a fresh show cause notice as a prelude for action as warranted by the facts.
(vi) The DDA issued notice to Raghunath Singh and cancelled his plot; that was challenged in W.P. (C) 3028/1985.
(vii) On 2.4.1991, the writ petition of Raghunath Singh was allowed and the plot was directed to be allotted and handed over to him. This order was complied with and not carried in appeal. It thus attained finality.
(viii) The respondents issued a show cause notice on 23.11.1993 after several representations were addressed by the petitioner, with a view to securing a positive order.
20. The question which arises in this case from the above facts is whether the petitioner can claim a direction to the respondent that the recommendation for allotment should be made in his favor.
21. The judgment in Raghunath Singh's case was no doubt rendered in the absence of a counter affidavit and the arguments/submissions on behalf of the respondents. However, the Court was in a second instance called upon to adjudicate the correctness of the reasoning of the Delhi Administration/Government of NCT that allotment cannot be made where the applicant had approached it belatedly. The Division Bench which decided the case held as follows:
We find great force in the contention of the learned Counsel for the petitioner. This Court vide judgment dated 19.10.1984 in CWP 182 of 1983 directed the Delhi Administration to issue Show Cause Notice and take afresh decision after considering the explanation for the delay. On perusal of the impugned letter dated 21.06.1985, it is clear that what has weighed in taking the impugned decision in withdrawing the recommendation is the decision taken by the Chief Secretary, Delhi Administration and not because the explanation is not satisfactory. In fact, the impugned letter does not indicate whether the explanation furnished by the petitioner was at all considered by the Delhi Administration. Furthermore, the petitioner had already submitted his explanation for the delay in submitting the application in the year 1979 itself and his explanation was considered at the time and only thereafter the recommendation to allot a plot ad measuring 250 sq. yds was made by the Delhi Administration on 28.01.1980. We find that the respondents have not given any reason in the impugned letter dated 21.06.1985 for reviewing the decision dated 28.01.1980. The petitioner has also averred in the writ petition that some other persons who had also applied beyond the prescribed time were also given alternative plots by the respondents. Thus, it appears that in cases in which explanation was found to be satisfactory, the Delhi Administration has been using its discretion to condone the delay and granted alternative plots. The Delhi Administration having once accepted the explanation of the petitioner and recommended the allotment of alternative plot and Delhi Development Authority having reserved a plot for the petitioner, we find it difficult to sustain the subsequent action of the respondents withdrawing the allotment on the basis of the general policy decision taken by the Chief Secretary, Delhi Administration at some later stage.
Undoubtedly, the Supreme Court in S.B. Kishore's case (supra) had directed the Delhi Administration to make allotment of alternative plot to the appellant in that case after condoning the delay for 19 years. However, we find that the Supreme Court has passed that order confined to the facts of that case and has observed that it shall not be treated as a precedent. We are of the view that the case of the petitioner herein stands on a stronger footing because, according to the petitioner, the petitioner's father had applied within the time prescribed and the application of the petitioner was only in continuation of the request made by his father. This fact is not controverter by the respondents. Thus, under the policy the petitioner became entitled to a plot in lieu of the land acquired for planned development of Delhi.
22. In this case, the Government of NCT inexplicably did not take any action in respect of the petitioner's portion of the allotment made on the claim on behalf of the Kanwar Lal for almost 10 years. Otherwise, there is no difference between the case of the Amit Singh and that of Raghunath Singh. Both are admittedly legal heirs/successors and interest of the original land owner. Therefore, the reasoning advanced by the respondent that the applicant had not approached it within the time stipulated in 1963, in my opinion, cannot be appreciated. The Division Bench as is evident from the above extract considered all those arguments and even commented upon the conduct of the respondent in not disclosing any reasons. It also took into consideration the reasoning that the landowner had applied beyond the prescribed time, but had allotted the plot in 1980. That order is binding for more than one reason. First the order has become final and has been implemented. Secondly, the order is of the Division Bench (although at that time the practice of this Court was that such matters were to be heard by the Division Bench, contrary to the present practice where such writ petitions are being heard by the single Judge nevertheless the writ of the court was issued pursuant to the judgment of the Division Bench). That judgment was rendered on the same facts and in respect of the same allotment. Hence, this Court is bound by its reasoning.
23. As far as the question of the petitioner not having any inherent or vested right for allotment of alternative plot is concerned, there is not quarrel with the proposition enunciated in Ramanand's case. However, the issue is not of the petitioner's entitlement, since the fact that the petitioner's predecessor in interest/grandfather Kanwar Lal was eligible is not in dispute. The only question is whether the allotment to his sons was correctly made. Even today, there is no material forthcoming that the said Kanwar Lal had not approached the respondent within time. Although, great emphasis was laid by counsel for the Govt. of NCT upon the pleading that the writ petitioners had not clearly averred the time and as to whether Kanwar Lal in fact approached the authorities within time time, that is an aspect which could have been dealt with and light thrown by the respondents also, apart from the petitioner. Besides the Division Bench has also gone into on this aspect. I, therefore, so no reason to take any contrary on that aspect.
24. The next question is whether this Court would be enforcing Article 14 where it is inapplicable in the sense that the petitioner is claiming benefit and drawing analogy with a principle which cannot be relied upon. It is no doubt true that there are several decisions of the Supreme Court which have ruled that Article 14 is positive in its contents and does not mandate illegality or enable Court to perpetrate errors of law in implementation of policies. Nevertheless, in this case, the facts were somewhat different. As noticed earlier, the decision to withdraw the allotment taken in 1982 was an unreasoned one. The subsequent order which withdraw the recommendation taken pursuant to notices issued by the respondent was quashed. Therefore, there is no question of illegality in such cases. The Division Bench in Raghunath's case was dealing with the same recommendation that was split into two at the request of two sons of the Kanwar Lal. It was only a single order, namely, issued on 28.1.1980. Therefore, the respondents are fully bound by that decision and had not chosen to carry the matter in appeal. It is no longer open for them to characterize that decision and its subsequent implementation as erroneous one. Therefore, I am not in agreement with the submission that if this Court accedes to the petitioner's request, it would be negatively enforcing an illegal order or responsible for illegality of a policy decision.
25. So far as the last plea by the respondents about the policy decision of 11.10.1988 is concerned, it is to be noted that the such policy decision is a general one and appears to have been issued for prospective implementation. It cannot and never be construed as binding upon the Court in pending proceedings. Further more, no materials were brought to my notice to show that such a policy decision was every communicated to any of the parties concerned. In matters of discretion although it is open to the policy maker to indicate a broad scheme for guidance, yet it cannot be so framed as to completely exclude discretion on a case by case basis where the fact so warrants. For the above reasons, I am of the opinion that a direction is necessary to the respondents to allot the plot measuring 125 square yards in Safdarjung Enclave which was reserved pursuant to the directions in CWP 146/1983 and also further to the interim order of this Court date 11.8.1995 (as made absolute till the disposal of this petition on 7.8.1997). Directed accordingly. The consequential orders shall be issued and the possession of the plot shall be handed over to the petitioner within four months at the same rate as was claimed from Raghunath Singh pursuant to the decision of this Court in CWP 3028/1985.
26. The writ petition is accordingly disposed off. Rule made absolute in the above terms. No costs.