Delhi High Court
Shri Raj Kumar Chopra vs Delhi Development Authority Etc. on 22 November, 2002
Equivalent citations: 102(2003)DLT719
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Sanjay Kishan Kaul, J.
1. The petitioner is aggrieved by the allotment and disbursal of plots done by the respondents in Naraina Industrial Area Warehousing Scheme and has sought a writ of Mandamus for allotment of plots to the petitioner in the said Scheme.
2. The petitioner claims that he is an iron and steel merchant and has been carrying on two different businesses under the name and style of M/s Alita at 10188 Loha Mandi, Motia Khan and as M/s Raj and Company at T-885 Desh Bandhu Gupta Road, Paharganj. The business is stated to have been carrying on since 1947. The business at T-885, Desh Bandhu Gupta Road was on the site of the Municipal Corporation of Delhi, on payment of Tehbazari charges to the respondent corporation.
3. The Delhi Development Authority published advertisements in newspapers on 29.10.1965 inviting applications for allotment of industrial plots in different areas from those whose business was located in non-conforming areas of Delhi and the petitioner made two applications in the name of two entities. The petitioner was thereafter conveyed the decision to allot the warehousing plot separately in the name of two entitles and deposited 50% of the premium as demanded. However, subsequently vide letter dated 18.6.1968, the petitioner was informed that the petitioner would be allotted a plot of 450 square years in Narain Industrial Area Scheme Phase-I. This was followed up by another letter dated 23.5.1969 issued to the petitioner as proprietor of M/s Raj and Company stating that the plot of 450 sq. yards had already been allotted in the name of M/s Alita and that both the firms were functioning at the same address i.e. 10188 and thus the request for a separate plot in the name of M/s Raj and Company could not be acceded to. The petitioner made further representations.
On 16.3.1970, a draw of lots was held by DDA but the same was challenged in CW 317/1970. This petition was decided on 13.10.1970 and it was directed that fresh allotment of plots should be made applying a common denomination of all the members.
4. The letter dated 16.10.1971 was issued by the DDA to the petitioner cancelling the allotment of plot No. 74 in favor of Raj and Company and simultaneously another letter dated 16.10.1971 was issued stating that the Tehbazari permission granted to the M/s Raj and Company at Desh Bandhu Gupta Road was no longer in force w.e.f. 1.10.1971. The petitioner made a number of representations but there was silene on part of the petitioner after 1975 and again a representation was made on 3.4.1979. Thereafter, the present writ petition was filed.
5. In the counter affidavit field by the DDA, it is stated that M/s Raj and Company was functioning at Desh Bandhu Gupta Road and it was also in occupation of premises No. 10188 Motia Khan. However, the premises at Motia Khan was sold by the petitioner to M/s Khanna Steel Corporation before the clearance was undertaken by the DDA in 1975 and thus M/s Khanna Steel Corporation was given alternative allotment against the said premises in the year 1978. However, in the application for alternative allotment dated 16.11.1965 of M/s Raj and Company, the address mentioned was as 10188 Loha Mandi, Motia Khan. Since the petitioner was neither paying damages nor in existence at Motia Khan, the question of alternative allotment to the petitioner could not arise. The allotment was subsequently cancelled vide letter dated 16.10.1971 as the address of the firm M/s Raj and Company had been mentioned as 10188 Loha Mandi, Motia Khan, while in an earlier affidavit in June, 1967, the petitioner had mentioned that he was carrying on business in godown No. T-885, Desh Bandhu Gupta Road on Tehbazari basis on land measuring 170 sq. yards. Since the petitioner mis-represented and suppressed material facts, the allotment was cancelled. This was impugned by the petitioner in CW 1151/1971 which was allowed directing that the petitioner should be given an hearing before cancellation. Such hearing was granted and the petitioner was not found entitled to any allotment. It is also stated that the petitioner is still in occupation of premises at Desh Bandhu Gupta Road.
6. In the counter affidavit, it is further stated that even the wife of the petitioner applied for an allotment under the name and style of Pioneer Steel Corporation. No allotment was made to the petitioner or his wife as they were doing their business at premises that had not been taken up for clearance. Only those persons who were occupying the land at Motia Khan area were entitled to allotment since the clearance operation took place in Motia Khan.
7. Learned counsel for the petitioner contended that the two proprietary concerns were functioning from different premises and that the petitioner was a genuine iron and steel dealer in occupation at Motia Khan area. It is stated that the show cause noticed dated 8.10.1973 issued to the petitioner was only after the petitioner had filed the writ petition which had been allowed and the same was a mere formality. The show cause notice was issued for giving the address of 10188 Loha Mandi, Motia Khan on the application of M/s Ran and company and not at T-835, Desh Bandhu Gupta Road, as also for the reason that the petitioner had alleged that he was paying Tehbazari charges to the MCD for 170 sq. yards for premises at T-885. It is further stated that though the petitioner had two entities, a conscience decision was taken by the respondents after scrutiny of the applications of the petitioner to allot only one plot. The order dated 24.1.1975 by which the allotment was cancelled and possession resumed was without any application of mind. It was contended that the issue of M/s Khanna and Steel Corporation is irrelevant. Learned counsel contended that the petitioner should be allotted the plot No. A-15/2 Naraina Industrial Area which had been kept reserved in pursuance of the order of this Court dated 5.11.1985.
8. Learned counsel for the petitioner has referred to the Division Bench judgment in Om Prakash Gupta v. DDA, . The said judgment dealt with the allotment of alternative sites to former occupants of Motia Khan. It was held that the allotment had to be made to all the persons at the reserve price and not at market price. Thus, the distinction between persons who had paid damages as compared to persons whose cases were pending for assessment of damages or who were occupying and against whom no assessment of damages were initiated, was held to be violative of Article 14 of the Constitution of India. It was held that all the three categories of people had ultimately paid damages. Thus all such persons should be allotted at the reserve price.
9. Learned counsel for the respondent, on the other hand, contends that twin criteria of being located at the land at Motia Khan and being assessed to damages was a prerequisite to the allotment of the alternative plot. The petitioner had two firms and filed two separate applications. The petitioner with mala fide intentions to occupy an additional plot in the name of M/s Raj and Company deliberately gave the address of the same as 1088, Loha Mandi, Motia Khan when in fact, the firm was never in existence at the said address and the petitioner had sold the said place to M/s Khanna Steel Corporation. It is submitted that it is apparent from the fact that when notice was issued under the Public Premises (Eviction of Un-authorised Occupants) Act, 1958, it was reported that M/s Raj and Company had left the place and the land was in possession of M/s Khanna Steel Corporation.
10. Learned counsel has drawn the attention of this Court to the application submitted on behalf of M/s Raj and Company on 11.2.1978 stating the address as T-885 Desh Bandhu Gupta Road and has drawn the attention to para 2 and 5 of the said application which area as under:-
"2. I have clearly understood that in the event of the above information being found incorrect, I am liable to be prosecuted under the law, and my claim for alternative allotment will be rejected.
5. I also undertake to clear all the damages that may have been assessed against and demanded of me by the DDA in respect of land under my occupation in Motia Khan along with the interest at the prescribed rate."
In the application submitted on 16.11.1965 on behalf of M/s Raj and Company for allotment of industrial plot, the address given is 10188 Loha Mandi, Motia Khan and it is stated that damages have been paid. However, the application of 1965 is for allotment of industrial plot while of 1978 is for allotment of plot in lieu of land occupied at Motia khan.
Learned counsel for the respondent submits that in response to the show cause notice dated 8.10.1973, the petitioner vide his reply dated 3.11.1973 has failed to explain the mis-representation which they had made. It is further submitted that the petitioner himself withdrew the application of the Firm M/s Alita at premises No. 10188 as per his letter dated 3.11.1973 and thus there is no question of any allotment towards such firm. In sofar as the land at T-885 Desh Bandhu Gupta Road is concerned, the petitioner was occupying the MCD land but neither the petitioner was assessed to any damages nor proceedings were initiated by the respondent. M/s Raj and Company were never in occupation of the land at Loha Mandi. It is further stated that the petitioner mis-represented the same as M/s Raj and Company was not paying damages to MCD but Tehbazari was paid to MCD and thus the only question to be considered is whether M/s Raj and Company is entitled to allotment which it is not. Learned counsel for the respondent denies that there is any discrimination. Lastly, it is pointed out that the petition suffers from delays and laches as the petition has been filed more than four and a half years after passing of the order dated 24.1.1975.
11. I have considered the submissions advanced learned counsel for the parties. It is apparent that the Scheme provided for alternative allotment to persons who were located at Motia Khan and were paying damages. In the case of the petitioner M/s Raj and Company was not based at Motia Khan but at the Desh Bandhu Gupta Road. The petitioner had already withdrawn the request in the name of M/s Alita as per his letter dated 3.11.1973.
12. The important fact that the petitioner was not in occupation at Motia Khan and had parted possession to M/s Steel Corporation, cannot be ignored. When notices were issued to M/s Raj and Company, the same came back with the endorsement that the petitioner had left the place and the land was in possession of M/s Khanna Steel Corporation. There is no satisfactory explanation on behalf of the petitioner on this aspect. Once the petitioner is not in occupation of the land at Motia Khan, the question of allotment of any alternative land in favor of the petitioner could not arise. In lieu of the same space occupied by M/s Khanna Steel Corporation, allotment had already been made to it in 1978.
13. It is apparent that the petitioner has tried to take advantage of the fact that the petitioner was carrying on business under different names and styles and did not give the facts correctly but attempted to obtain two allotments. When the infirmity in the applications of the petitioner was found out, the petitioner has sought to contend that at least one plot should be allotted to the petitioner. The petitioner has given wrong address of M/s Raj and Company in the application of 1965. Further the petitioner in the application of 1965 has also stated that he was paying damages though the same was on Tehbazari basis.
14. As stated above, in my considered view, the most material aspect is the fact that M/s Raj and Company was not in occupation of premises at Motia Khan which was the very prerequisite for any allotment.
15. There is also force in the contentions of learned counsel for the respondent that there has been an inordinate delay in impugning the decision dated 24.1.1975 since the writ petition has been filed more than four and a half years later after the said decision was taken. No plausible explanation has been forthcoming by the petitioner.
16. In view of the aforesaid, I find no merit in the writ petition and the same is dismissed leaving the parties to bear their own costs. The interim order consequently stands vacated.