Delhi High Court
M/S Rajindra Iron Mart & Anr vs Dda & Anr. on 20 July, 2011
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 20th July, 2011
+ W.P.(C) 6398/2008
M/S RAJINDRA IRON MART & ANR ..... Petitioners
Through: Mr. Maninder Singh, Sr. Adv. with
Mr. P.S. Bindra, Mr. Harish Sharma
& Mr. V. Mukerjee, Adv.
Versus
DDA & ANR. ..... Respondents
Through: Mr. P.K. Mittal & Mr. Manoj Sinha,
Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may Not necessary
be allowed to see the judgment?
2. To be referred to the reporter or not? Not necessary
3. Whether the judgment should be reported Not necessary
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The then Ministry of Health & Family Planning and Works, Housing & Urban Development had in or about the year 1970 floated the Scheme of Large Scale Acquisition, Development and Disposal of Land. The said Scheme inter alia provided for extension of concessions, relating to the W.P.(C)6398/2008 Page 1 of 15 allotment of land at pre-determined rates to the industries in non- conforming areas which had to be shifted to areas earmarked for the said purpose, also to the owners/occupants of warehouses in the non- conforming areas which had to be shifted to areas earmarked for that purpose. The petitioner no.1 Firm, of which petitioner no.2 is the partner claiming to be trading in Iron and Steel in wholesale from its office at 3482, Hauz Qazi, Delhi with warehousing activity at 31/3-D, Gali No.4, Anand Parbat, New Delhi applied for allotment of an industrial plot and was vide letter dated 29th September, 1970 of the respondent DDA informed that it has been allotted Plot No.179 in Block-A in Okhla Industrial Area, Phase-I, New Delhi, in the draw of lots held on 14th September, 1970 and Allotment-cum-Demand letter dated 30 th October, 1970 was issued to the petitioner.
2. The petitioner was vide letter dated 10th / 23rd December, 1993 of the respondent DDA informed that as per verification by Dy. Director of Industries (Lands), no warehousing activity was found at 31/3-D, Gali No.4, Anand Parbat, New Delhi where the petitioner had claimed to be W.P.(C)6398/2008 Page 2 of 15 carrying on warehousing activity; the respondent DDA for the said reason cancelled the allotment aforesaid to the petitioner and informed the petitioner that the amount deposited by the petitioner for the said plot shall be refunded in due course.
3. The petitioner represented against the aforesaid cancellation. The respondent DDA vide its letter dated 6th August, 1996 requested the Dy. Director, Industries (Lands) of the Office of the Commissioner of Industries, Govt. of NCT of Delhi to conduct an inquiry on the basis of the documents filed by the petitioner along with its representation and other material, whether the petitioner had carried on the warehousing activities from Anand Parbat or not.
4. The Dy. Director of Industries (Land) of the Govt. of NCT of Delhi vide letter dated 10th December, 1996 to the respondent DDA informed that the documents produced by the petitioner and which were mostly official papers and should thus be prima facie accepted as correct and true unless proved otherwise, prima facie indicated the presence of the petitioner at an office at Hauz Qazi and at a unit/property in the Anand W.P.(C)6398/2008 Page 3 of 15 Parbat area till the year 1991-92; the respondent DDA was as such asked to consider the allotment on the basis of the said documents.
5. The respondent DDA thereafter made further inquiries from the petitioner and ultimately the Director (Lands) of the DDA on 4 th April, 2000 recommended restoration of allotment to the petitioner to be considered favourably.
6. It is the case of the petitioner that notwithstanding the aforesaid, nothing further was done at the end of the respondent DDA and nothing further communicated to the petitioner inspite of repeated requests and reminders of the petitioner. The petitioner ultimately in response to an RTI query was under cover of reply dated 12 th October, 2007 furnished a copy of the order dated 11 th May, 2000 of the Lt. Governor, Delhi as the Chairman of the respondent DDA refusing to accept the recommendation dated 4th April, 2000 of the Director (Lands) for the reason that there was "no strong evidence to show that the warehousing activity was carried out at premises no.31/3D, Gali No.4, Anand Parbat, New Delhi" by the W.P.(C)6398/2008 Page 4 of 15 petitioner and that the same was "also borne out in the report of the Industries Deptt. of Govt. of Delhi."
7. Aggrieved therefrom the present petition was filed. Notice of the petition was issued. The petition was dismissed vide order dated 21 st August, 2009 for the reason that the petitioner between the years 2000 and 2007 did not send any written letter or communication to the respondent DDA and the petition had been filed after eight years of the rejection dated 11th May, 2000 and was thus belated and suffered from laches. It was also held that the representation against the cancellation communicated in the year 1993 was made after 2½ years and the petitioner had admittedly stopped the business activity from Anand Parbat in the year 1991-92. It was thus held that the cancellation effected in the year 1993 was rightful.
8. The petitioner preferred an intra court appeal being LPA No.510/2009 against the dismissal of the writ petition. The said appeal was allowed on 1st December, 2009. It was held by the Division Bench that the order dated 11th May, 2000 (supra) of the Lt. Governor, Delhi having not been communicated to the petitioner and the petitioner having learnt of the W.P.(C)6398/2008 Page 5 of 15 same only upon receipt of reply dated 12 th October, 2007 (supra), the petition was not belated and did not suffer from laches. The writ petition has as such been remanded for decision on merits.
9. Though a perusal of the order sheet does not show any interim relief to have been granted qua the plot aforesaid but the senior counsel for the petitioner has contended and the counsel for the respondent DDA has confirmed that the aforesaid plot of land has been lying vacant and open and has not been allotted by the respondent DDA to any other person.
10. The senior counsel for the petitioner has invited attention to the verification carried out by the Directorate of Industries of the Govt. of NCT of Delhi before the Land Allotment Advisory Committee of the Govt. of NCT of Delhi recommended the name of the petitioner for allotment under the Scheme aforesaid, of land at pre-determined rates.
11. The counsel for the respondent DDA has not controverted the aforesaid document. The aforesaid document shows and as is to be reasonably expected also, that the initial allotment to the petitioner was also not merely on the asking but only after the authorities concerned had W.P.(C)6398/2008 Page 6 of 15 satisfied themselves of the eligibility of the petitioner for allotment of land under the Scheme aforesaid.
12. The senior counsel for the petitioner has also impugned the cancellation of 1993 on the ground that the same was without issuing any show cause notice and/or without any hearing. It is also contended that reference in the order dated 11th May, 2000 of the Lt. Governor, Delhi to the report of the Industries Department is inexplicable in as much as there is no reference to any such report against the petitioner of the Industries Department of the Govt. of NCT of Delhi, neither in the notice dated 10 th / 23rd December, 1993 issued to the petitioner nor in the recommendation dated 4th April, 2000 of the Director (Lands) of the respondent DDA. It is yet further contended that the respondent DDA in its counter affidavit has stated that the said verification by the Industries Department was in the year 1998. It is urged that no report of any such inspection has however been produced. It is contended that once it is the stand of the petitioners themselves that they had been compelled to close the warehouse at Anand Parbat in the year 1991-92 for the reason of the same being a non- W.P.(C)6398/2008 Page 7 of 15 conforming user, the inspection in the year 1998 was meaningless. It is contended that the said reasoning amounts to malice in law as held in Smt. S.R. Venkataraman v. Union of India (1979) 2 SCC 491. Reference is also made to various documents including of the MCD produced by the petitioners before the respondent DDA and Commissioner (Industries) and which establish the existence of the premises/godown of the petitioner at 31/3-D, Gali No.4, Anand Parbat, New Delhi.
13. Per contra, the counsel for the respondent DDA has contended that the arguments of the petitioner are misdirected. It is urged that the question for determination is not whether the petitioner had a premises at Anand Parbat (and which fact alone is proved from the documents produced and relied upon by the petitioner) but whether the petitioner was having a warehouse at the contemporaneous time. It is contended that the petitioner has failed to produce any material whatsoever to show that it was occupying any property at Anand Parbat as a warehouse at the contemporaneous time. The counsel for the respondent DDA has taken me through the various Income Tax Returns produced by the petitioner itself W.P.(C)6398/2008 Page 8 of 15 to show that the annual turnover of the petitioner during the relevant time was of `38,000/- and `7,000/-. It is contended that such low turnover itself shows that the petitioner did not require any warehouse. It is yet further contended that no document of registration under Delhi Shops and Establishments Act,1954 or the Stock Register or documents of delivery or release of goods from the said godown/warehouse or of incurring loading and unloading charges have been produced. It is contended that the averments in the petition also are vague. No date of actual closure of the warehouse has been stated. It is further contended that the fact that the petitioner waited from 2000 to 2008 itself shows that the petitioner was not in the need of any godown and has filed the present petition only as a speculator in immovable property.
14. I am unable to agree with the counsel for the respondent DDA. The arguments of delay/laches/inaction on the part of the petitioner had on an earlier occasion found favour with this Bench and the writ petition was dismissed. However the said order was set aside by the Division Bench in an intra court appeal and which judgment has attained finality and it is now W.P.(C)6398/2008 Page 9 of 15 not open to the respondent DDA to at least before this Bench re-urge the same contentions.
15. As aforesaid, the allotment in favour of the petitioner came to be made pursuant to the land owning and allotting agencies satisfying themselves of the eligibility of the petitioner for such allotment. Once the authorities have held the petitioner to be eligible for allotment i.e having a warehouse or carrying on warehousing activities in a non-conforming area from where the petitioner was required to be shifted, the said decision could not have been re-visited without a case of the petitioner, in the matter of procuring such allotment, having practiced fraud having been established. No such case has been made out. Such decisions if allowed to be re-opened and re-visited, would give an unguided arbitrary power in the hands of the officials to harass the applicants/allottees of land at their whims and fancies. Nothing has been pleaded as to why the need arose for a fresh verification in 1993 i.e. after nearly 23 years of the allotment of the land to the petitioner in the year 1970. In fact it appears that it was the respondent DDA which in the face of sea change in the property values W.P.(C)6398/2008 Page 10 of 15 between the years 1970 and 1993 was desirous of cancelling allotments earlier made and to re-allot the land to others.
16. Similarly once it is not disputed that the petitioner had a premises at Anand Parbat, it was for the respondent DDA to, for effecting cancellation plead and prove as to for what other purpose if not as a warehouse, the premises were being used by the petitioner. No such plea has been taken.
17. As far as the argument of the documents produced by the petitioner proving a low turnover is concerned, I may notice that it is also the argument of the counsel for the respondent DDA that the land was allotted dirt-cheap at `58 per sq. mtr. The turnover of the petitioner of the contemporaneous time has to be measured with the same scale. Even otherwise I have enquired from the counsel for the respondent DDA whether to be eligible any minimum turnover was prescribed. The answer is in the negative. Without the respondent DDA laying down any minimum and the documents admittedly proving the petitioner to be a trader of Iron & Steel and having a premises at Anand Parbat, the respondent DDA W.P.(C)6398/2008 Page 11 of 15 cannot be permitted to deal with its customers and citizens in the manner done.
18. The argument of non production of registration under Delhi Shops and Establishments Act is also misconceived. The counsel for the respondent DDA has been unable to show that any such registration was required for a warehouse. A perusal of the provisions of Delhi Shops and Establishments Act does not show that any such registration is necessary for a godown.
19. As far as the plea of the petitioner not having produced any stock registers, documents of incurring loading and unloading and transportation charges etc. is concerned, admittedly the respondent DDA did not call upon the petitioner to produce any of the said documents. Of course, the counsel for the respondent DDA upon being so confronted has urged that an opportunity be now given to the respondent DDA to hold such enquiry with a direction to the petitioner to produce all documents in this regard. However now after such long lapse of time, the respondent DDA cannot be given a second chance. The respondent DDA has failed to act in W.P.(C)6398/2008 Page 12 of 15 accordance with law and is found to have indulged in cancellation without any basis. As aforesaid, without the respondent DDA having made out a case of the petitioner having practiced any fraud, the earlier decision of the year 1970 finding the petitioner eligible for allotment of land could not have been re-opened/re-visited.
20. The counsel for the respondent DDA has lastly contended that the petitioner having admittedly closed down the warehouse as far back as in the year 1991-92 and it not being the plea of the petitioner that it is carrying on the trade as of today, the petitioner is in any case not eligible for allotment.
21. The aforesaid argument is also misconceived. The eligibility to be tested was in or about the year 1970 and not as of today. The respondent DDA cannot be heard to argue that the allotment is liable to be cancelled for the reason of the allottee having stopped carrying on the business in lieu of which the allotment was made. Once the allotment had been made, it would thereafter be governed by the terms & conditions of allotment. If the said terms & conditions permit more than one trade to be carried on the W.P.(C)6398/2008 Page 13 of 15 land, the allottee would be entitled to change the use/business. It is not the case of the respondent DDA that the petitioner under the terms of allotment was required to continue carrying on the activity of warehousing and the allotment was liable to be revoked upon the allottee ceasing to carry on the said activity.
22. The Division Bench of this Court in judgment dated 1 st February, 2011 in LPA NO.764/2010 titled Vishwa Nath Gupta v. MCD, in relation to allotments in Sanjay Gandhi Transport Nagar held that the relevant date for determining eligibility is the date of inviting applications for allotment and not any subsequent date. It was further held that if the applicant on the relevant date was carrying on the business which made him eligible, the factum of his activity in non-conforming area having subsequently ceased, would be irrelevant.
23. The petition therefore succeeds and is allowed. The cancellation of Plot No.179 in Block-A in Okhla Industrial Area, Phase-I, New Delhi in favour of the petitioner no.1 is set aside/quashed. The respondents are directed to forthwith within eight weeks of today do all acts, deeds and W.P.(C)6398/2008 Page 14 of 15 things for restoring the allotment and possession of the plot to the petitioner. I refrain from imposing any costs on the respondent DDA.
RAJIV SAHAI ENDLAW (JUDGE) JULY 20, 2011 pp (corrected and released on 28th July, 2011).
W.P.(C)6398/2008 Page 15 of 15