DDA vs Shakuntla Devi and Others

A.K. Sikri, Acting Chief Justice

This intra-court appeal is preferred by the appellant-DDA questioning the validity of the orders dated 15th September, 2003 passed by the

learned Single Judge in the writ petition preferred by the petitioner on the very limited ground. In fact, as would be noted hereinafter the impugned

order decides the controversy raised in the writ petition in favour of the DDA hererin still at the end certain direction of refund of the respondent is

given and the appellant is aggrieved by those directions only. Refund of the premium paid by the respondent against the allotment of plot along with

interest @ 15%. As we are concerned of the justness of these directions only, it is not necessary to state the facts in detail and the purpose would

be served by stating the facts in capitulated form. The predecessor-in-interest of the respondent No. 1, Shri Radha Krishan, husband of the

respondent No. 1 had purchased a plot bearing No. B-4/35, Safdarjung Development Area, New Delhi in a public auction held on 27.1.1964. He

paid the full amount whereupon Lease Deed dated 20.12.1965 was executed in his favour. As per Clause II (3) of the Lease Deed, Shri Radha

Krishan was required to carry out construction within a period of two years from 20.12.1965. Admittedly, he did not do so for number of years.

Sometime in the year 1978, Shri Radha Krishan raised the issue about physical possession when DDA threatened to cancel the Lease Deed by

issuing notice that Shri Radha Krishan had not carried out the construction. Be as it may, on the representation of Shri Radha Krishan, DDA

agreed to extend the period of construction. However, even thereafter, construction was not carried out due to the reasons entirely attributed to

the purchaser as some disputes had arisen in M/s. Army Brush Factory, a partnership firm of Shri Radha Krishan. In any case, in failure to carry

out construction on the plot, show cause notice dated 14.3.1984 was issued and thereafter, cancellation order was issued on 16.2.1985. After the

cancellation, the plot was re-auctioned to a third party on 29.5.1986 and Lease Deed was executed in favour of the said party on 15.7.1986 who

got the plot converted into freehold and even constructed the same.

Much thereafter, Shri Radha Krishan filed Suit in November, 1987 for declaration that the cancellation of the plot was illegal and without

jurisdiction. This suit was dismissed vide orders dated 29.4.1993 on the ground of limitation as prescribed u/s 53(b)(2) of the Delhi Development

Act, 1957 (hereinafter referred to as ''the Act''). No appeal was preferred against this judgment and the said judgment became final.

However, after one and a half years, legal heirs of Shri Radha Krishan, viz., present respondent filed writ petition (out of which, the present

appeal arises) seeking a declaration that the cancellation of the Lease Deed was illegal, he be compensated with the market price of the plot or in

alternate, be given some other plot. This writ petition is dismissed, inter alia, observing as under:

Learned Counsel for the petitioners contends that the petitioners be given an alternative plot. I am unable to accept this claim of the petitioners. The

petitioners who are the legal heirs of late Shri Radha Krishan only derive rights from the said deceased allottee. The said Shri Radha Krishan did

not construct on the property for 19 years for one reasons or the other during which period of time a number of notices were issued to him and the

lease was also cancelled and restored. The final opportunity was given to Shri Radha Krishan when he even failed to construct the property in

1984. A show cause notice was issued on 14.3.1984 to Shri Radha Krishan to which a reply dated 9.4.1984 was sent. A reading of the reply

does not show any satisfactory explanation. Not only this, in the reply, the prayer made is for extension of the further six months'' period of time.

Admittedly, the construction as not made during this six months'' period nor was any further extension sought. The cancellation order was thus

issued on 16.2.1985 much after the expiry of six months'' period.

Insofar as the issue of the service of the cancellation order is concerned, it is apparent that Shri Radha Krishan had left the place wherefrom he

was communicating without giving an alternative address for which the respondent cannot be blamed. The cancellation order was thus pasted. The

plot was re-allotted in 1986 and lease deed executed. Thus, much water has flown since the cancellation which would even otherwise dis-entitle

the petitioners to get any relief of any alternative plot at prices in 1965 or otherwise.

After recording the above, the findings on the basis of which rejecting the prayer for allotment of alternate plot, which was the only relief pressed

at the time of hearing, the learned Single Judge stated that insofar as premium paid by Shri Radha Krishan is concerned, the same was only

refunded by the DDA and opined that this relief can be granted to the respondents. The order, thus, culminated in issuing the following directions:

In my considered view, the only relief which can be granted to the petitioners at this stage is to direct the refund of the amount of premium paid for

the plot in question along with interest @ 15% per annum from the date of cancellation of the lease till date of payment in view of the unauthorized

retention by the respondent.

As pointed out, it is this direction which is challenged before us. The respondent having challenged the order of the learned Single Judge holding

that the cancellation was valid and further that the respondents are disentitled for any relief of alternative plot.

Next submission made by the Learned Counsel for the appellant is that once there was a valid cancellation of the plot on justified ground, in

terms of lease, the respondents are not entitled to refund premium paid either. Our attention is drawn to Clause III, which is to the following effect:

III.

If the yearly rent hereby reserved or any part thereof shall at any time be in arrears and unpaid for one calendar month next after any of the days

whereon the same shall have become due, whether the same shall have been demanded or not, or if it is discovered that this Lease has been

obtained by suppression of any fact or by any mis-statement, mis-representation or fraud or if there shall have been, in the opinion of the Lessor,

whose decision shall be final, any breach by the Lessee or by any person claiming through or under him or any of the covenants or conditions

contained herein and on his part to be observed or performed then and in any such case, it shall be lawful for the Lessor, notwithstanding the

waiver of any previous cause or right of re-entry upon the residential plot hereby demised and the buildings thereon, to re-enter upon and take

possession of the residential plot and the buildings and fixtures thereon, and thereupon this Lease and everything herein contained shall cease and

determine and the Lessee shall not be entitled to any compensation whatsoever nor to the return of any premium paid by him.

Provided that, notwithstanding anything contained herein to the contrary, the Lessor may without prejudice to his right of re-entry as aforesaid, and

in his absolute discretion, waive or condone breaches temporarily or otherwise, on receipt of such amount and on such terms and conditions as

may be determined by him and may also accept the payment of the rent which shall be in arrears as aforesaid together with interest at the rate of

six per cent per annum.

The aforesaid Clause is amply clear which does not entitle the Lessee even to get a refund of the premium paid. At present, this Clause was not

brought to the notice of the learned Single Judge. Be as it may, in view of the aforesaid clause, the direction to the aforesaid claim cannot be

sustained and therefore that part of the impugned order dated 15.9.2003 which is extracted above is set aside holding that the respondents are not

entitled to any refund of any premium either. Appeal is allowed the aforesaid terms. No orders as to cost.