Qamar Hassan vs Delhi Development Authority

Gita Mittal, J.—This writ petitioner is the erstwhile owner of the property comprising khasra No. 356 measuring about 1 bigha situated at the Magazine Road, Khyber Pass, Delhi. He was having a trade licence at this premises with a sanctioned electricity connection and was carrying on the business of an auto repair workshop there from. It is an admitted position that the petitioner was dispossessed from this property when possession of the site was taken over by the Delhi Metro Rail Corporation. The DMRC has claimed to have taken possession of the land including the site of the petitioner on 15th February, 2000.

The petitioner places reliance on a circular dated 21st January, 2002 issued by the Government of NCT of Delhi, Transport Department, wherein in Clause IV, it was stipulated that cases of project affected shopkeepers as verified by the concerned ADM/LAC, would be recommended to the DDA for making alternative allotment of shops at "predetermined prices" depending upon the availability.

As the petitioner was being deprived allotment of a shop despite possession of his premises having been taken, the petitioner filed a writ petition being WP (C) No. 853/2003 entitled Shri Qamar Hussain v. MCD and Ors. which was allowed by the court on 1st November, 2004 with directions to the Land Acquisition Collector to treat the petition as a representation and to consider the claim of the petitioner under the circular dated 31st January, 2002. It was further directed that in case the Land Acquisition Collector/ADM held in favour of the petitioner, the necessary recommendation was to be made to the DDA in terms of the Clause IV of the circular dated 31st January, 2002.

In such eventuality, the DDA was directed to proceed to consider the petitioner�s case for alternative allotment as per Clause IV of this circular.

So far as the period within which the consideration was required to be made, the court in the judgment dated 1st November, 2004, specifically directed that compliance be made by the Land Acquisition Collector/ADM within a period of six weeks. The DDA was directed to proceed to consider alternative allotment as per the policy within twelve weeks of the receipt of the recommendation from the Land Acquisition Collector/ADM. The court further clarified that the stand of the DDA was that the alternative shop/site to be allotted as per policy was subject to availability.

It is noteworthy that the court had only noticed the stand of the DDA that the plot to be allotted as per the policy was subject to availability of the same. There was no further direction to it.

According to the writ petitioner, the period of eight weeks granted to the Land Acquisition Collector/ADM to consider the representation of the petitioner, expired on or about 31st December, 2004.

The Land Acquisition Collector made its favourable recommendation to the DDA by its communication dated 31st March, 2005 that "DDA should make alternative allotment of shops at predetermined rates in terms of the basic guidelines of Relocation and Rehabilitation Policy in respect of project affected persons contained in the circular dated 31st January, 2002".

The period of 12 weeks from the date of the recommendations of the ADM-cum-Land Acquisition Collector thus expired on or about 30th June, 2005.

It appears that the DDA failed to consider the case of the petitioner in terms of the directions made by this Court on 1st November, 2004 compelling the petitioner to file a petition seeking initiation of proceedings under the Contempt of Courts Act against the DDA. Cont. Case (C) No. 74/2006 was thus filed by the petitioner on 5th January, 2006. This petition was disposed of on 20th of March, 2006 by this Court in view of the statement by the counsel for the DDA that he had been instructed to make a statement that alternative allotment would be made to the petitioner. It was further stated by the counsel for the DDA that the petitioner would be given necessary opportunity to give preferences within four weeks and that feeding of those preferences at a computerized draw of lot allotment would be effected within 12 weeks from today.

It is thus evident that allotment would thus have matured in favour of the petitioner within 16 weeks from 20th March, 2006, that is to say, by 20th July, 2006 or thereabouts.

There is no dispute before this Court that the DDA failed to give the list of available options to the petitioner within the time granted which expired on or about the 19th April, 2006.

Mr. Rajat Aneja, learned Counsel appearing for the petitioner, has contended that it was with great difficulty and pursuasion that the list of shops wherefrom options were to be exercised was supplied to the petitioner only on 5th June, 2006 which constituted of large number of plots and shops. The petitioner was required to ascertain the suitability of the options given by the respondent and on best efforts, was able to give the list of his five preferences to the DDA on 19th June, 2006.

It appears that even thereafter, despite repeated visits of the petitioner and expiry of the twenty weeks from 20th March, 2006 granted by the court, no action was taken on the preferences submitted by the petitioner. On enquiries conducted by him, the petitioner found that out of his five preferences, four of the shops were already allotted by the DDA. It is now stated by DDA that it had conducted draw of lots on 15th June, 2006 in which four of the shops for which the petitioner had opted, had been already allotted. Only one of the petitioner''s preferences remained for allotment.

Aggrieved by the failure of the DDA to even comply with the directions given by the court on 20th of March, 2006, the petitioner filed CM No. 12251/2006 in the contempt proceedings with the prayer that the DDA be restrained for allotting the fifth shop for which he had opted.

It may be noted that the respondent refused to allot this fifth shop to the petitioner for the reason that it was the only remaining shop within the preferences was bearing No. 74, Block J, LSC, Vikas Puri, New Delhi. Before this Court, the DDA has taken a stand that as per its policy, allotment of a shop can be done only by draw of lots to be held between more than one options and that a single available shop is never allotted to any particular person.

In these circumstances, a second list of possible option was given by the DDA to the petitioner on 17th August, 2006.

The petitioner in the meantime again submitted his preferences by his communication dated 19th September, 2006. On the 2nd November, 2006, the respondent sought an adjournment in the contempt proceedings on the ground that certain developments have taken place.

Thereafter, the petitioner received demand-cum-allotment letters dated 16/17th November, 2006 informing the petitioner that he had been allotted a shop No. 82, Pocket L(U), LSC, Pitam Pura, Delhi on the 3rd Floor at a total value of Rs. 5,16,195/-. The petitioner was informed that he was required to pay documentation charges of Rs. 45/- as well and make payment of the demanded amount by 16th December, 2006.

It is noteworthy that the DDA had given vacant list of draw of lots for the old and undisposed inventory to the petitioner on 17th August, 2006 wherein the cost of this very unit was mentioned as Rs. 3,38,250/-. It is apparent therefore that the cost of this property on 17th August, 2006 according the DDA was Rs. 3,38,250/- and that after a period of about three months for the same property, the DDA was demanding an amount of Rs. 5,16,195/-.

The petitioner had objected to this demand letter on the ground that the same was issued after a prolonged and inordinate delay as a result of which the respondent was charging excessive cost. According to the petitioner, the cost payable by him could only be Rs. 3,38,250/- as had been indicated in the list given to the petitioner.

These objections to the cost were raised in the contempt proceedings on the ground that the demand-cum-allotment letter had been issued after a prolonged and inordinate delay and that the same was exorbitant and excessive. However, the court was of the view that the issue as to whether the cost was excessive or not, could not be gone into in the contempt proceedings. Consequently, the contempt petition was disposed of reserving liberty to the petitioner to initiate substantive proceedings if so advised.

In these circumstances, this writ petition has thereafter been filed by the petitioner challenging the demand raised by the DDA in its demand-cum-allotment letter dated 16th/17th November, 2006 by way of the present writ petition.

On the very first day when the writ petition came up for hearing on 13th December, 2006, an interim order was passed directing that, subject to the petitioner making a without prejudice deposit of Rs. 3,38,250/-, on or before the expiry of 16th December, 2006, the last date for depositing the amount in terms of the demand-cum-allotment letter, the DDA would stand restrained from cancelling the allotment.

The petitioner is stated to have deposited that amount as directed.

Before this Court, the basic ground of challenge to the demand is based on the fact that the DDA had failed to comply with the directions made by this Court as back as on 1st November, 2004 whereby the DDA was required to comply with the allotment process on or before the 30th June, 2005. Mr. Rajat Aneja, learned Counsel for the petitioner, has pointed out that such allotment has been effected by the letters dated 1617th November, 2006 for which delay, the petitioner cannot be prejudiced.

On the other hand, Ms. Sangeeta Chandra, learned Counsel appearing for the DDA, has contended that the demand-cum-allotment letter dated 16-17th November, 2006 has been issued in accordance with the resolution No. 69/2002 governing the pricing of inventory of built up shops. According to the DDA, by a letter of the Commissioner (Land) dated 10th May, 2005, the petitioner was required to submit a copy of the court order in WP (C) No. 853/2003 as well as the documents relating to land acquired for processing the case for allotment. The DDA submits that these documents were furnished only in a public hearing held on 5th June, 2006 and consequently no delay was attributable to the DDA.

It is admitted by the DDA that out of the inventory of old and indisposed unit given to the petitioner on 5th June, 2006, some of the shops had already been allotted. Consequently, a final list was given to the petitioner out of which he submitted his preferences on 17th September, 2006. In this background, the petitioner was considered for allotment of the shop in the draw of lots held on 11th October, 2006.

As a result, according to the learned Counsel for the DDA, the demand letter was correctly issued on 16th/17th November, 2006 for the sum of Rs. 5,16,195/-. According to the DDA, as per the resolution No. 69/2002, the date of draw has to form the basis of pricing in all cases of allotment made from old and indisposed inventory.

So far as the variation in the cost of the shop in question is concerned, according to the DDA, the prices for the old and undisposed inventory were revised from Rs. 9,830/- per sq. meter to Rs. 15,000/- per sq. meter with the approval of Vice-Chairman of the DDA dated 21st September, 2006. The basis of this revision has been explained that these units were lastly included in an open tender in February, 2003 and the reserve price of Rs. 9,830/- was fixed in the year 2001. It was in this background that considering increased average auction rate and the market trend, the price fixation committee was of the view that reserve prices deserved to be increased and recommended that the same be increased to Rs. 15,000/- per sq. meter. The recommendation dated 24th August, 2006 of the price fixation committee was approved by the Vice-Chairman of the DDA on 21st September, 2006. Ms. Sangeeta Chandra, learned standing counsel for the DDA has contended that in these circumstances, the demand made vide the letter dated 16th/17th November, 2006 is both justified and correct.

These assertions on behalf of the DDA are required to be considered against the factual background placed before this Court.

From the above discussion and the record, I find that there is no explanation whatsoever as to why the directions made by this Court on 1st November, 2004 were not complied with by the DDA. These directions had mandated that the allotment in favour of the petitioner, if recommended by the land acquisition collector, be complied with within a period of twelve weeks of the recommendation. It is an admitted position that the recommendation dated 31st March, 2005, was received by the DDA, yet the period of twelve weeks granted to it was permitted to expire on or about 30th June, 2005. The DDA had admittedly taken no action at all in the matter compelling the petitioner to even file a petition seeking initiation of proceedings under the Contempt of Courts Act by way of Cont. Cas. (C) No. 74/2006. The petition seeking initiation of the contempt proceeding was filed on the 5th January, 2006. Even the filing of this petition also did not move the respondent to take action. Mr. Rajat Aneja, learned Counsel for the petitioner, has pointed out that the DDA failed to file even a counter affidavit within three months in these proceedings.

Before this Court, the DDA has placed reliance on a communication dated 15th May, 2005 purportedly sent by the Commissioner (Land) to the petitioner calling upon the petitioner to make available copy of the order passed and documents in support of the acquisition.

The petitioner has disputed receipt of any such letter.

Perusal of the note sheet filed by the DDA shows that the DDA has in its notings required the petitioner to submit copy of the court order and other relevant documents in support of the land acquired. It is noteworthy that the noting of the DDA itself records that the case of the petitioner stands recommended by the Land Acquisition Collector.

The DDA has placed before this Court a copy of the letter dated 15th May, 2005 wherein this request was made to him. The address as reflected on the letter, is the address of those premises of the petitioner, which according to the petitioner, were acquired and possession whereof was taken by the Delhi Metro Rail Corporation as back as in the year 2000. Certainly, this letter could never have been served upon the petitioner at the address to which it was sent.

My attention has been drawn to the address of the petitioner as appears in the memo of parties of the WP (C) No. 853/2003. The petitioner has contended that this was his address even in the contempt proceedings. There is no dispute that the DDA has contested the writ petition of 2003 as well as the contempt proceedings. The DDA thus had available with it the correct address of the petitioner. There is no justification for sending such letter in this manner.

Furthermore, DDA''s reliance on the request for documents as contained in this letter, is to be noticed only for the sake of rejection. Even assuming that the DDA had genuinely required copies of such documents, nothing precluded its officers from taking steps to obtain such documents from the counsel who contested the case on their behalf. So far as the documents relating to the acquisition were concerned, the DDA had before it the recommendation by the Land Acquisition Collector and such record could have been obtained from the office of the Land Acquisition Collector. No such action was taken.

The notings dated 3rd March, 2006 and 7th March, 2007 on the DDA record show that even after receiving notices of the contempt petition which would have included copy of the order passed by this Court, no action towards compliance thereof was made. The officers have only noted that court be informed that the documents had not been furnished by the party. Other notings also reflect merely file pushing without any efforts to comply with the directions made by this Court as back as on 1st November, 2004.

Ms. Sangeeta Chandra, learned Counsel for the DDA, has placed reliance on the pronouncement of this Court in Delhi Development Authority Vs. Pushipendra Kumr Jain, to contend that the price of the property as on date of the draw of lot would prevail. Reliance is also placed on the pronouncement of this Court in D.S. Nakara and Others Vs. Union of India (UOI), to submit that the cut off date so far as the cost is concerned, as fixed by the DDA would bind the parties. The DDA also places reliance on the judicial pronouncement reported at Vardan Cooperative Group Housing Society Ltd. Vs. Delhi Development Authority,

There can certainly be no dispute with the legal principles laid down in these judgments.

It is well settled that a decision has to be applied in the facts and circumstances of the case. In this behalf, in JT 2002 (1) SC 485 Haryana Financial Corporation v. Jagdamba Oil Mills, the Apex Court held thus:

Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid''s theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton 1951 AC 737, Lord Mac Dermot observed:

The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge.

In Home Office v. Dorset Yacht Co. 1970 (2) All ER 294 Lord Reid said, "Lord Atkin''s speech...is not to be treated as if it was a statute definition. It will require qualification in new circumstances." Megarry, J. in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Parliament Board (1972) 2 WLR 537 Lord Morris said:

There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case.

Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

The judgments relied upon by the respondents, have to be applied in the facts noticed hereinabove.

So far as the challenge to cost of the shop allotted to the petitioner is concerned, there is no dispute that at the time the DDA communicated the inventory of shops for the first time to the petitioner on 17th August, 2006, so far as the shop which was finally allotted to the petitioner is concerned, its cost was reflected as only Rs. 3,38,250/-. This list which was furnished to the petitioner on 17th August, 2006, was almost two years after the passing of the order dated 1st November, 2004. There is no dispute that this shop was available for allotment at all times, even at the time the judgment dated 1st November, 2004 was passed in favour of the petitioner and on 31st March, 2005 when the Land Acquisition Collector recommended the case of the petitioner. The same shop was available for allotment even when the petitioner was constrained to file Cont. Cas (C) No. 74/2006 on 5th January, 2006 and on 20th March, 2006 when this Court passed orders directing the DDA to furnish the list of options within four weeks.

The DDA has failed to render any explanations as to why the directions made even on 20th March, 2006 to make available a list to the petitioner within four weeks i.e. on or before the 19th April, 2006 were not complied with. If the DDA had complied with the order made on 1st November, 2004, the allotment in favour of the petitioner would have stood effected on or before 30th June, 2005.

The DDA has taken a stand that the delay which was caused by it in not complying with the order dated 1st November, 2004, was condoned by this Court when it passed the order on 20th March, 2006. Even if this contention was accepted, the DDA was still bound to give the list of available preferences to the petitioner within four weeks and make allotment within 12 weeks thereafter which time expired on or about 20th June, 2006. The DDA admittedly failed to intimate the list within the stipulated period and handed over the list of available preferences to the petitioner only on 5th June, 2006. The petitioner admittedly communicated his options shortly thereafter on the 19th of June, 2006. However, without waiting for exercise of options by the petitioner, the DDA conducted a draw of lots on 15th June, 2006 in which it allotted four out of the five shops for which the petitioner had given his preferences.

The petitioner was given no intimation that a draw of these shops was scheduled on 15th of June, 2006.

In this background, certainly it cannot be contended that the DDA had acted fairly. It cannot prejudice a person waiting for allotment of a property for delays which have occurred on account of its own actions and faults. In the instant case, the DDA has failed to even abide by the specific directions of this Court firstly on 1st November, 2004 and again on 20th March, 2006. Even the pendency of the contempt proceedings did not deter the DDA from acting fairly. Court orders have not moved it either.

It is noteworthy that reliance has been placed on a communication dated 15th June, 2005 (referred to as 10th May, 2005) to urge that the DDA could not comply with the directions of this Court for the reason that the petitioner did not furnish documents.

Mr. Rajat Aneja, learned Counsel for the petitioner, has pointed out that no such plea was raised by the DDA on any occasion prior hitherto. This plea has been raised for the first time in these proceedings. Even in the contempt proceedings, the DDA had not raised such a plea. In any case, I have found that the copy of the letter filed before this Court reflects the address of the petitioner as that of the property which had admittedly been acquired by the DMRC and possession taken also as back as in 2000.

In this background, it has to be held that the rights of the petitioner, so far as the cost of the property on which allotment was to be effected, crystallized when the Land Acquisition Collector recommended the case of the petitioner on 31st March, 2005. This Court had directed that the allotment be effected within a period of 12 weeks from such recommendation which expired on 30th June, 2005. Even assuming that this Court had extended the time by the order dated 30th March, 2006, then the DDA was bound to give the petitioner the option within four weeks of the order and effected allotment of the shop within a period of 12 weeks. Such process, if effectuated as directed by this Court, would have come to an end long before the recommendations of the Price Fixation Committee on 24th August, 2006 and its approval by the Vice-Chairman on 21st September, 2006.

In this background, in my view certainly the petitioner cannot be prejudiced for the fault of the DDA and the delay which has been caused by it in compliance of specific directions of this Court.

It is noteworthy that a totally arrogant and obdurate stand is taken in court proceedings despite the failure to abide by the specific directions of the court. There is no regard for either the orders passed by the court or for rights of the petitioner. The same is manifested in the notings placed before the court. In the instant case, the petitioner has been deprived of his business by the act of acquisition of his property. Possession was taken as back as in the year 2000. Even these facts have not moved the officials of the DDA to comply with the spirit of the time bound directions issued by the court on 1st November, 2004 or on 31st March, 2006.

On the other hand, it has been vehemently argued on behalf of the DDA that in case the DDA is required to recover the costs of the flat at the lower rate, public interest would suffer. Reliance on all the afore-noticed judgments have been placed to urge that the costs fixed by the DDA are binding. In this behalf, it is astonishing that the DDA has made this submission without considering the fact that the delay which has occurred is a direct result of its failure to abide by the time bound orders of the court.

So far as the reliance on the communication dated 15th June, 2005, even this deserves to be examined from another angle.

No reminder was issued after the letter dated 15th June, 2005 as if the responsibility of the DDA to comply with the orders passed by the court on 1st of November, 2004 stood absolved after sending this letter. It was well within the knowledge of the DDA that it had contested the writ petition. A recommendation had been received from the Land Acquisition Collector.

If the DDA intended to comply with the directions of this Court in its letter and spirit, efforts were required and ought have been made to obtain the orders of the court from its own counsel who appeared in the matter in the court and any other documents either from this Court or from the office of the Land Acquisition Collector. Instead no such effort was made. Court orders are available even through the electronic mode. Without making any effort in the matter, fault is attributed to the panel counsel for delay in communication of the order in June, 2006. Such submission fails to consider that DDA was admittedly aware of the earlier order of 1st of November, 2004 which had not been complied with.

On the contrary after sitting upon the matter for over two years, it is now being contended that the petitioner is required to be burdened with the increased costs for the same flat which the petitioner had a fair chance of drawing earlier. This is clearly impermissible and unfair. The petitioner cannot legally be required to pay such increase which has resulted by the delay for which the DDA is clearly responsible.

It is noteworthy that the shop allotted to the petitioner is admittedly part of the undisposed inventory of shops lying unallotted. Such delay prevented the DDA in recovering the costs of a vacant shop for over two years since the passing of first order passed on 11th January, 2004. Thus, if the interest of the DDA has been prejudiced or jeopardized, the same is as a direct consequence of its own failure to take action as per the mandate of the orders of the court and to follow the prescribed procedure. The DDA would, therefore, be justified in recovering the differential from those who failed to take action as per the court orders.

For all these reasons, it has to be held that the demand made by the DDA in its letter dated 16-17th November, 2006 to the extent that it raises demand of Rs. 5,16,195/- upon the petitioner towards allotment of the shop No. 82, Pocket L(U), LSC, Pitam Pura, New Delhi, is illegal and is hereby quashed.

The allotment, however, of the shop No. 82, Pocket L, Sector U, Third Floor, LSC, Pitam Pura, Pocket L(U), New Delhi shall stand in the name of the petitioner.

The DDA is directed to issue within three weeks, a fresh demand upon the petitioner on the rate of the said shop as communicated by the DDA to the petitioner on 17th August, 2006.

The petitioner having already deposited such amount with the DDA pursuant to the orders of the court, would be entitled to possession of this shop forthwith.

The petitioner shall be entitled to costs of the present proceeding which are quantified at Rs. 25,000/- and shall be paid within three weeks.

The writ petition is allowed in the above terms.