Strength India Educational Society vs Union of India and Others

Gita Mittal, J.—This writ petition bring to the fore an incident of the Delhi Development Authority effecting allotment of a plot to an educational institution on the admitted position that the allotment was effected without such plot being earmarked on the lay out plan of the area in question. The case also raises issues relating to the consequence of double allotment and encroachment existing on different portions of the land of which the allotted area forms a part, and the consequences of non-payment by the petitioner of the land cost demanded by the DDA towards such allotment for these reasons. The petitioner, a society registered under the Societies Registration Act, 1860 has claimed that it is running a college of professional studies by the name of Vivekananda Institute of Professional Studies as affiliated to the Guru Gobind Singh Indraprastha University since 2004. The institute is being run from rented premises and consequently the petitioner society was interested in acquiring land to raise construction of an institute for higher education. The petitioner''s application for allotment of five acres of land was recommended by the Directorate of Higher Education of the Government of NCT of Delhi by a letter dated 2nd August, 2000 sent to the Delhi Development Authority. An application dated 31st January, 2001 with the requisite documents was submitted by the petitioner to the Delhi Development Authority seeking allotment of such plot. The petitioner and the Delhi Development Authority (respondent no. 2 herein) exchanged extensive correspondence requiring the petitioners to submit its documents establishing its financial status; memorandum and articles of association; income tax sanctions and permissions etc.

Finally by a letter dated 26th September, 2001 after being fully satisfied with the petitioner''s eligibility and status, the DDA informed its decision in principle to allot land measuring about five acres in Pitampura to the petitioner. So far as the location of such land was concerned, the same was mentioned against the subject of the letter as the "allotment of college site at AU Block, Pitampura." This decision was taken in the meeting held on 13th November, 2001 of the Institutional Allotment Committee of the DDA.

Pursuant to the above decision, by an allotment letter dated 7th February, 2002, the DDA conveyed the decision to allot five acres of land in the AU Block, Pitampura to the petitioner. It was notified that the petitioner was required to pay a provisional premium of the land measuring five acres at the rate of Rs. 50 lakhs per acre plus 142% enhanced with 2.5% ground rent of the premium per annum. Thus the total premium payable by the petitioner was to the tune of Rs. 6,20,12,545/- while ground rent to the tune of Rs. 15,12,500/- per annum was payable. The petitioner was required to make payment of this amount within sixty days from the date of issue of the allotment cum demand letter. In case of delay beyond sixty days, the petitioner was liable for interest at the rate of 18% payable for the delay period up to six months of the issuance of the letter, after which the allotment was required to stand automatically cancelled.

There is no dispute that the petitioner submitted the required consent and undertaking to the DDA to pay interest in case of delay up to six months on 5th April, 2002.

In order to acquire the requisite finances to make the payment towards the allotment it appears that the petitioner sought assistance from the Canara Bank for the same. Towards processing of the petitioner''s application, the Canara Bank demanded several documents from the petitioner including the site plan of the land which had been allotted to it. It appears that by a letter dated 25th February, 2002, the petitioner had asked the Director (Land) of the DDA for the actual site plan of the allotted land for identification and demarcation of the land. No such plan was forthcoming.

On 16th May, 2002 the petitioner issued a reminder to the DDA for the site plan of the allotted land. It was also informed that when the petitioner identified and visited the land with the help of the local DDA officials, the petitioner found that the land allotted to it was encroached. A request was made to the DDA to remove the encroachments from the land and to also provide the site plan so that the petitioner can prepare the project report for approaching financial institutions.

This was followed with a letter dated 23rd July, 2002 reminding the DDA to remove the encroachment and also intimating the respondent no. 2 about the change of the petitioner''s address.

It is pertinent that this communication reminds the DDA that the time granted to the petitioner to make payment was nearing end and that the same may be extended by a reasonable period.

The change of address was again repeated in a letter dated 23rd July, 2002 receipt whereof as available with the petitioner has been placed before the court. Thereafter the petitioner repeatedly requested the DDA to remove the encroachments and consequently extend the time for making payment by a reasonable extension. By the letter of 6th August, 2002 the petitioner also informed the respondent that the sanction of the loan to the petitioner stood approved in principle from the Canara Bank and an expression was made of the petitioner''s efforts to meet the financial schedule set up by the DDA. The petitioner had also informed the DDA that the bank required a physical inspection of the allotted plot. By letters dated 19th September, 2002 and 8th October, 2002 the petitioner enclosed the recent photographs of the sites showing the encroachments on the site for the perusal of the DDA. The petitioner sought expedition in removal of encroachments and clearance of the land so that the disbursement of the loan to the petitioner could take place and the loan deposited with the respondents.

The position on the site as notified to the respondent by the petitioner is supported by the letter dated 14th November, 2002 from the Canara Bank written after inspection of the site in the 3rd week of October, 2002. The petitioner was informed that there were encroachments on the site and that the petitioner clarified the position to the bank as to when the encroachments would be removed so that the financing of the land could be effected by the bank.

The petitioner has urgently followed up this matter with the DDA by its letter dated 18th November, 2002, 20th December, 2002 and 14th March, 2003. Photographs of the site were also enclosed with the communication to the DDA and have been placed before this court as evidence of the extensive encroachment on the land in question.

Noteworthy is the fact that DDA has nowhere repudiated the position emphasized by the petitioner with regard to encroachments. No identification of the plot was also ever furnished.

It appears that the DDA has issued a notice to show cause dated 21st January, 2003 to the petitioner which was sent to its old address at D-10, C.C. Colony, Opposite Rana Pratap Bagh, Delhi-110007 informing the petitioner that it has failed to deposit the amount within the stipulated period in terms of the letter dated 7th February, 2002 and that it had not submitted the consent or acceptance or the required undertaking.

The petitioner has submitted that this notice to show cause was never received by it.

In furtherance of this notice to show cause the DDA issued a letter dated 6th May, 2003 also addressed to its old address, in communicating the withdrawal/cancellation of the allotment cum demand letter dated 7th February, 2003. According to the petitioner, even this communication was not received by it. No copy of site plan was provided by the DDA at the time of allotment.

In continuation of the letters of the petitioner seeking removal of encroachment from the allotted plot the petitioner addressed letters dated 19th June, 2003 to the DDA requesting that if the DDA was unable to free the allotted land of encroachment, the petitioner be allotted an alternative plot.

In the meantime, as per the writ petition, the petitioner learnt of the cancellation of the allotment to it on a verbal enquiry from the office of the respondent no. 2. Ever since the petitioner has been running from pillar to post in attempting to get restoration of the allotment to it. It was pointed out that even at the time of submission of the representation to the Lieutenant Governor, the land was under the occupation of M/s Afcons for pre casting slabs and that no notice to show cause or the order of cancellation had been served upon the petitioner. A representation was also addressed to the Government of NCT of Delhi respondent no. 3 herein, reiterating that the land stood encroached by jhuggi clusters, temples as well as the horticulture department of the MCD and that ten acres of this land was also allotted by the DDA on 18th January, 1996 for construction of a college building of Keshav Mahavidyalaya to the Directorate of Education of the Government of NCT of Delhi vide an allotment letter no. F15(1)/93/II/44/B dated 1996 which was in possession thereof. On 21st April, 2003 the petitioner had requested the DDA to inform it about the balance amount payable. In other communications to the Lieutenant Governor of Delhi as well as to the Delhi Development Authority served on 20th February, 2004, the petitioner undertook that it was willing to pay interest as well.

It appears that the possession of the land which was allotted to the Director of Education of the Government of NCT of Delhi vide allotment letter no. F 15(1)93/IL/44/B/1 dated 8th January, 1996 for construction of the building of the Keshav Mahavidyalaya, was part of the area in AU Block, Pitampura, Delhi had been allotted to the petitioner.

At the time of handing over of possession of the land to the directorate of education on 30th January, 1997, the DDA had drawn a site plan on which it had been specified that "possession of land'' taken over subject to removal of encroachment by DDA" as only a token amount of rupee one was to be paid to the DDA for the said land.

In a letter dated 16th April, 1999 to the DDA, the Director (Higher Education) of the respondent no. 2 informed that at the time of taking over possession of the site (on 30.01.2007), it was partially encroached by jhuggi dwellers, temple and horticulture department of the MCD, and that no steps had been taken by the DDA to remove the encroachments for over two years. It was clearly stated that "a considerable portion of the land was under encroachment".

This was followed by a series of reminders sent by the Government of NCT of Delhi to DDA on 14th July, 1999, 26th of March, 2000, 15th of May, 2000, 25th of May, 2000 which were of no avail.

As DDA did not take concrete steps for removal of the encroachments the Executive Engineer (PWD) by a letter dated 29th November, 1999 had directed average of work and that no planning in respect of construction of the Keshav Mahavidyalaya on the plot was to be carried out till encroachments were removed. In view of the fact that the DDA took no effort to remove the encroachments the Public Works Department of the Government of NCT of Delhi had by letters dated 27th December, 1999 and 7th January, 2000 advised the Directorate of Higher Education to take any other alternative plot for Keshav Mahavidyalaya.

In these circumstances, by a letter dated 13th September, 2000, the DDA had reallotted an alternative plot measuring 3.90 hectares at H-45, Pitampura, Delhi to the Keshav Mahavidyalaya for construction of its college. Directions for preparation of buildings for this purpose were issued on 23rd November, 2000.

All these facts were detailed by the petitioner in its letter dated 22nd February, 2005 to the Lieutenant Governor and a grievance was made that without removal of encroachment and despite these facts, the DDA effected allotment of an encroached plot to the petitioner.

The respondent no. 3, through its Chief Secretary has addressed a detailed communication dated 18th July, 2006 to the petitioner wherein the above grievance of the petitioner stands duly admitted. This communication deserves to be considered in extenso and the material portion thereof reads thus:-

The matter has been examined in consultation with the Directorate of Higher Education and the position is clarified as follows:-

(i) A piece of land measuring 4 hectares was allotted in AU Block, Pitampura by the DDA for construction of a women''s college vide letter No. F.15(1)93/IL/44B dated 8.1.96 of the Joint Director Capital Works Branch of the Directorate of Education and intimation sent to the DDA vide letter no. F.16/College Site/CW/96/7266 dated 31.1.1997 clearly pointing out that the diary and MCD ''Land Sanitary Fill''/Horticulture wing. As 40% of the site was under unauthorised occupation, correspondence was made repeatedly with the DDA and other authorities to remove the encroachment. A boundary wall was also constructed to protect the site through the PWD and the site earmarked for Keshav Mahavidyalaya, an entirely Govt. funded college affiliated to the Delhi University.

(ii) Another site was allotted by the DDA in Zone H-4-5 at Road No. 42-43, Pitampura, Govt. of Delhi vide letter no. F.15(10)96/IL/2843 dated 4.2.97. Since this was a clearly the encroached site of AU Block, Pitampura, after Government approval for construction of their college building.

(iii) It has come to our notice through the letter under reference that a portion of the site at AU Block, Pitampura, measuring 5 acres had been allotted to Strength India Educational Society by the DDA for construction of Vivekananda Institute of Professional Studies vide their letter No. 12(15)2001/IL/559 dated 7.2.2002. Perusal of our record shows that the DDA has made correspondence with the Directorate of Higher Education in the year 2001 for handing over the possession of the vacant piece of land to the DDA as it has not been possible to remove the encroachment. It was suggested by the DDA that another site will be located for a college building. But no handing over of the possession by a competent officer of Delhi Government to the DDA took place and no record is available to that effect. In view of this. Delhi Government have gone ahead with re-building the boundary wall at their own expense through the PWD so as to avoid further encroachment.

The 4 hectare college site at AU Block. Pitampura. is in the possession of the Directorate of higher Education and is Government property. Though no site demarcation has been carried out it appears that a part of the same site has been allotted to another institution or society by the DDA.

(Emphasis supplied)

From the above, it is apparent that the Directorate of Higher Education was put in possession of four hectares of land to the petitioner as back as on 8th January, 1996 which even on date is in possession of the Directorate of Higher Education and has been treated as government property by the respondent no. 3. According to these communications from the Chief Secretary, no site demarcation had been carried out and yet, part of the same site had been allotted to the petitioner by the DDA.

The petitioner relies on a recommendation by the Minister of State by the Ministry of Urban Development of the Government of India also recommending the case of the petitioner and pointing out that the same deserved a reconsideration by the DDA.

The present writ petition has been filed seeking a mandamus to the respondent no. 2 to withdraw the letter of cancellation dated 6th May, 2003 and a direction to the DDA to hand over possession of the plot in question to the petitioner.

The petitioner has arrayed not only the Union of India and the DDA as respondent no. 1 and 2 respectively but also the Government of NCT of Delhi as the respondent no. 3 on the ground that there was a prior allotment of the land in question in favour of the respondent no. 3 which has not been cancelled till date.

The Government of NCT of Delhi respondent no. 3 herein has filed a counter affidavit pointing out that four hectares of land was allotted to it by the DDA and possession was also taken. However as back as on 31st January, 1997 the capital works branch of the directorate of education sent an intimation to the DDA pointing out that the site allotted to it stood encroached by jhuggi clusters, dairy, temple, MCD''s sanitary land fill site and the horticulture wing and correspondence to this effect was repeatedly effected with the DDA. The respondent no. 3 has referred and placed copies of the letters dated 16th April, 1999, 14th July, 1999 and 26th March, 2000, 15th May, 2000 and 25th May, 2000 on record. It has been stated that it had even constructed a wall with the gate on the site.

An interesting fact which has been concealed by the DDA is brought to light by the respondent no. 3 which in its affidavit has stated that when allotment of the piece of land to the petitioner measuring five acres of the site at the AU Block was effected, this land stood already allotted to the Department of Higher Education and was in its possession. By a letter dated 14th of September, 2006, the respondent no. 3 had informed the DDA that this amounted to making a double allotment of the vacant land allotted to the Directorate and that the DDA should cancel the subsequent allotment made in favour of the petitioner. Again a request was made as late as on 14th September, 2006 by this respondent to the DDA to get the encroachment removed from the site at the earliest. This letter was addressed by the Directorate to the Vice Chairman of the DDA.

From the correspondence placed before this court by the respondent no. 3, it would appear that the Delhi Development Authority has admitted the position that the Directorate of Higher Education was in possession of the subject land. In this behalf, the Director (Lands) of the DDA had addressed letters dated 21st September, 2001 to the respondent no. 3 that it has not been possible to remove the encroachment from the site and consequently the directorate had not been able to utilise the land for construction of a college. For this reason it was requested that the Directorate may explore the possibility of ''handing over back the possession of vacant land to DDA''.

The position stated by the Chief Secretary in the letter dated 18th of July, 2006 is reiterated in the counter affidavit filed before this court as also the request of the respondent no. 3 to the DDA to cancel the allotment of the land made to the petitioner.

From the above it is amply clear that despite allotment of the alternative land to the Keshav Mahavidyalaya in Zone H-4-5 at road no. 42-43 Pitampura, the DDA has not cancelled the allotment of the four hectares of land made to the respondent no. 3 in the AU Block Pitampura Delhi. It is also a fact that the respondent no. 3 is in possession of the subject site and has even made a boundary wall on the land in question.

Before this court it has been vehemently objected by Mr. Rajiv Bansal learned standing counsel for the DDA that the site was clearly identified and that the petitioner was always aware of the same. The petitioner failed to make payments despite ample opportunity having been granted to it. So far as the encroachments were concerned, it has been stated that the stand of the petitioner in this behalf was vague and unsupported by any material. Reference has been made to some of the communications of the petitioner wherein it has been stated that AFCONS was primarily occupying the subject land.

Mr. Rajiv Bansal learned standing counsel for the DDA supports the action of cancellation of allotment placing reliance on Section 52 of the Contract Act. It has been submitted that the sequence of events towards discharge of obligations was clearly stipulated on the allotment letter itself which postulated an automatic cancellation and for this reason no show cause notice was required. It has been vehemently urged that 60 days period for making the payment was expiring on or around the 8th April, 2002 and that the petitioner made no grievance with regard to any encroachment prior thereto. It has also been urged that even at the time of execution of the undertaking on 5th April, 2002 the petitioner made no objection that the property was encroached. On the other hand it was undertaken that payment would be made with 18% interest. According to the DDA, the Lieutenant Governor gave extension of time of two months to the petitioner on 6th October, 2002 to make payment.

The DDA also places reliance on the representations of the petitioner wherein it has referred to restoration of three acres of land or alternative site for two acres.

It has been urged by the DDA that it does not have the original records of the case available today and that the file is missing.

The DDA has stated that records of the case are not available. However, it has based its counter affidavit on a note which has been annexed with the counter affidavit filed by it which is by Deputy Director (Institutional Lands). The entire basis of the counter affidavit is the letter dated 6th August, 2002 whereby the petitioner has sought extension of time by three months for making the payment which was extended by two months on the condition of the charging of interest. According to the DDA, the petitioner required to make payment on or before the 6th August, 2002. The stand of the DDA in the counter affidavit is that the land allotted to the petitioner was a huge parcel of land measuring more than 5 acres and that the percentage of encroachment as on 27th December, 1997, as per the layout plan was just 9 per cent. There is a reference to jhuggi dwellers, the MCD office as well as the user of the land by AFCONS. However, it is nowhere stated clearly as to where such encroachments were located. If they were spread over the entire plot, then merely because they formed only nine per cent, the DDA is unable to pin point even the location of the plot which was allotted to the petitioner. At one place in the counter affidavit it has been stated that if the payment has been received from the petitioner, the DDA would have handed over ''95% of the land'' to the petitioner. There is however no explanation by the DDA of the allotment of the land to the respondent no. 3 that is the Directorate of Education under the Government of NCT of Delhi which was in its possession of the same and had even built the boundary wall around the same. This allotment was valid and binding and even till the time hearing closed in the present matter, no cancellation was pointed out.

Furthermore, the DDA has not stated the location of the petitioner''s plot vis-a-vis the plot which has been allotted to the respondent no. 3. On the other hand, the respondent no. 3 has clearly taken a stand that the DDA had effected double, allotment of the land which was allotted to it and written to the DDA to cancel the allotment made to the petitioner. The note relied upon by the DDA also reflects that the DDA has no record of even the permission given to occupy the land to AFCONS and no record of the date of vacation of the same by them.

Despite the remarks of the Vice-Chairman of the DDA which are referred to in the noting, no effort has been made to ascertain the correct position.

It is also noteworthy that even with regard to the issue of possession of the subject land, there is material contradiction in the stand of the DDA vis-a-vis the categorical stand taken by the respondent no. 3 in its counter affidavit and as communicated by the Chief Secretary in the letter dated 14th September, 2006. The noting of the DDA relied upon in support of its stand before this court refers to possession having been taken back from the respondent no. 3 and then allotted to the petitioner.

This is clearly incorrect in view of the unequivocal claim of the respondent no. 3 that the land in question has been allotted to and is in its possession which has even raised a boundary wall to protect the same. The same is also corroborated by the letter dated 21st September, 2001 written by the Director (Lands) of the DDA to the respondent no. 3 requesting it to examine the issue and for arranging for handing back the possession of the land to the DDA at the earliest.

The stand of the DDA cannot be given credence for its conduct and dealings with not only the petitioner, but also with the respondent no. 3. DDA maintained a stoic silence in response to the repeated pleas from the Government department to remove the huge amount of encroachments. At no point of time was there ever any dispute by the DDA to the nature or extent of the encroachments or to the fact that no construction was possible as a result.

This noting clearly reveals that the DDA had made no effort to ascertain the actual possession at the site and had no clue as to the extent of the encroachment either by the jhuggi or by temple or by the MCD.

The DDA also has no idea as to whether the land has been validly allotted to either MCD or to AFCONS or what was the nature of its occupation. No layout plan or plans of the land which have been allotted to either the Government of NCT of Delhi or the petitioner are available. No clearly designated site which has been earmarked for any specific purpose has been allotted either to the respondent no. 3 or the petitioner herein.

It is certainly amply clear from the submissions of the respondent no. 3 that the DDA had effected double allotment of land to the petitioner which already stood allotted and possession handed over to the Government of NCT of Delhi. In fact, the respondent no. 3 was calling upon the DDA to cancel the allotment made to the petitioner and had clearly indicated that the same was a double allotment. The DDA''s stand that encroachment stood removed is falsified by the letter dated 21st September, 2001 wherein the Director (Lands) of the DDA has written to the Government of NCT of Delhi that it has not been possible to remove the encroachment.

The noting of the DDA official relied upon by the respondent no. 2 also reflects that there was encroachment on five acres of land. The photographs also show that the land is not free from encumbrance. The Government of NCT of Delhi has also sent a reminder dated 14th July, 1999 requesting the DDA to expedite the matter relating to removal of encroachment from the college side at the AU Block, Pitampura, Delhi. Copy of this letter was endorsed to the MCD stating that the encroachment pertaining to the MCD on the college side be removed immediately. This encroachment is confirmed by the letter dated 18th July, 2006 from the Chief Secretary of the Government of NCT of Delhi.

It is noteworthy that even in the noting of the Deputy Director (Institutional Lands) placed on record by the DDA, in para 10 which has been noted that "at the time of allotting, it was recorded at 7/N that ''five acres of land'' is lying vacant which is also being used by jhuggi dwellers for gobar (cowdung) bitora purpose".

In the instant case, the DDA had accepted the position that it was not in a position to hand over possession to the Government of NCT of Delhi and effected alternative allotment for the Keshavananda Mahavidyalaya even as back as in the year 1997 for construction of its college.

In fact, the adjudication in the present matter and the rights of the parties have to be examined in the context thereof.

Mr. Neeraj Kishan Kaul, learned senior counsel for the petitioner has strongly contended that the petitioner has protested right from the inception with regard to the encroachment. In this behalf, reference is made to the letter dated 16th May, 2002 sent by the petitioner to the DDA wherein it was pointed out that despite a request, the site plan of the allotted land had not been provided to it and was still awaited. It was also pointed out that the petitioner visited the site and it was identified with the help of local DDA officials when encroachments were found on the land allotted to the petitioner. The request was made for removal of encroachment and for a site plan so that the project report could be prepared for arranging the finance.

As noticed hereinabove, despite repeated reminders, no effort was made to identify the portion allotted to the petitioner or to make available the site plan. In the counter affidavit which has been filed, the DDA has submitted that the encroachment was removed on the 4th December, 2004 and only 9 per cent encroachment still remained.

There is thus substance in the petitioner''s contentions that there was substantial encroachment on the land in question which continues to exist even when the DDA cancelled the allotment on the 16th February, 2004.

It has been urged by Mr. Rajiv Bansal, learned counsel, that DDA''s responsibility to identify the plot and hand over possession would arise only if the payment had been made by the petitioner. This submission is unfair and unreasonable and in the given facts cannot be countenanced at all. Certainly, the DDA cannot make double allotments of land allotted to other persons and which stands encroached to its knowledge, yet expect payments for such allotments. The payment which is demanded is also not any small amount but runs into crores of rupees.

It also does not stand to reason as to the procedure which is adopted for making allotments without even drawing up any layout plan of the area. This is more so when allotments of smaller plots out of a large chunk of land are to be effected. It is also really fortunate that allotments are effected without effecting a physical verification of the position subsisting on the site by officers concerned with the management and control of such valuable land. While the local officials of the DDA, whose duty is to protect the land in question and to ensure that the same is free of encroachment, make no effort to do so, at the same time, allotments are effected without at all verifying the position which is existing.

In the instant case, the DDA has allotted the land in question to the Government of NCT of Delhi which allotment stands even on date. Possession of the land also stands transferred to the respondent no. 3. Without taking back the possession and without cancelling the allotment in favour of the respondent no. 3, the DDA has effected allotment of part of that land to the petitioner.

The respondent no. 3 has vehemently objected to this allotment to the petitioner and has demanded cancellation of the allotment to the petitioner by the DDA. It is noteworthy that DDA has not bothered to reveal to the petitioner this factum of the prior allotment and possession of the plot being with the respondent no. 3. These facts have become known only in the counter affidavits filed by the respondent no. 3.

In the instant case, the Government of NCT of Delhi was admittedly allotted the land and it was put in possession thereof. Without removal of encroachment or cancellation of the allotment or recovery of possession from the respondent no. 3, allotment of the same land appears to have been made to the petitioner. So far as the issue of payment is concerned, the DDA can expect a person to make payment against allotment only if it is in a position to discharge its commitment and ability.'' It certainly cannot effect allotments or auction or invite tenders towards allotments of encroached land and expect the citizens to part with large amounts of money in respect of the property which the DDA is either not in a position to hand over nor can it guarantee as to whether it would ever be in a position to hand over possession thereof.

While this case was pending before this court, several other instances of similar allotments/financing of encroached plots came to light in different writ petitions before this court.

In the Writ Petition (C) No. 14427/2006 filed by one Shri Jai Singh against the Delhi Jal Board and Ors. The petitioner had complained against the auction of the commercial plot to him on which a pump house of the Delhi Jal Board was located. This writ petition was allowed by the order passed on 18th December, 2007.

The DDA had disputed the petitioner''s contention with regard to the occupation by the Delhi Jal Board. However, the Delhi Jal Board has stated that the observations on the plot have been created by the DDA which had handed over the same to the erstwhile Delhi Water Supply and Sewage Disposal Undertaking of the MCD which ultimately statutorily vested in the Delhi Jal Board. No layout plan was produced before the court despite repeated orders.

As a via media, the Delhi Jal Board agreed to accept an alternative plot. While allowing this writ petition, inter alia the following direction was made:-

(iii) Matters however cannot end with the above directions. The present case is not the only case which has been placed before this court wherein DDA has auctioned plots which are either encumbered or already stand transferred. In the instant case the DDA has not been in a position to even produce the lay out plan of the area in question. It is inexplicable as to how such auctions are being conducted without even a site inspection by the authorities concerned, whether they be from the land management/land disposal department of the DDA or from its departments conducting the auction. This matter deserves imperative attention of the Vice Chairman who has to take concrete steps to ensure that this does not recur and valuable rights of the parties are not jeopardised. Commercial plots today are being auctioned against consideration of crores of rupees. The parties are required to deposit substantial amounts immediately on the foll of the hammer. Accordingly, the Vice Chairman shall also appropriately examine this issue and make appropriate directions so that the land records in the DDA are properly maintained and its properties are secured. In any case, so far as auctions are concerned, the matter needs to be examined appropriately so that steps are taken to inspect the properties being auctioned by the officials of the DDA immediately before the auction. Appropriate directions required to be passed by the DDA in this behalf which may be notified to all the concerned departments and steps taken.

As noticed in the above order, this was not the only case where the DDA had displayed an inability to place the particulars with regard to the boundaries and encroachments on the land which it was transferring. Several other instances relating to auctions of large commercial plots are pending before this court.

The petitioner has assailed the order dated 6th of May, 2003 and of the respondent no. 2 cancelling the allotment made to the petitioner. Apart from other grounds on facts, it has been urged that the cancellation was effected without service of any notice to show cause.

This order was also not served upon the petitioner. The petitioner has also pointed out that this order refers to a notice to show cause dated 21st January, 2003. The petitioner contends that even this notice to show cause was not received by it. The DDA has admittedly received the communication of the petitioner notifying its change of address to the respondent. The communication dated 6th May, 2003 shows that the same has been sent to an address which was no longer the address of the petitioner.

From the above, it is evident that the DDA has accepted the requirement of cancelling the allotment only after the issuance of a notice to show cause to the allottee. The petitioner has been deprived of the opportunity to show cause and represented against the proposed action of the cancellation of the allotment to the respondents.

No explanation is forthcoming as to the reason for sending these communications to the petitioner at the old address despite the receipt of the communication from the petitioner intimating its change of address. It is noteworthy that this change of address was informed to the DDA as back as on 23rd July, 2002 as evidenced by the receipt issued by the DDA of the same. No effort has been made even to explain this fact. Certainly, the rights of the petitioner cannot be impacted without giving the petitioner an opportunity to show cause in terms of the notice dated 21st January, 2003 referred to in the order dated 6th May, 2003 of the DDA.

Therefore, the action against the petitioner cannot also be sustained on ground of violation of principles of natural justice and would deserve to be set aside and quashed for this reason alone.

There is yet another contradiction in the stand of the DDA before this court. It has incorrectly stated that it effected the allotment on 7th February, 2002 to the petitioner with the consent of the Government of NCT of Delhi. As per the stand of the respondent no. 3 before this court it has clearly protested against the allotment to the petitioner in the letter dated 14th September, 2006 noticed hereinabove.

Before this court, the DDA has placed strong reliance on a judgment of this court which is dated 23rd March, 2006 in W.P. (C) No. 5358/2004 entitled Rahul Dhaka Vikas Society (Regd.) & Anr. v. DDA to urge that the petitioner is bound by the financial discipline indicated in the letter of allotment. However, this judgment has been rendered on facts which are totally opposite to the facts laid before this court.

The Rahul Dhaka Society had failed to make payment to the DDA in terms of the letter of allotment. There was no issue with regard to the encroachment on the plot or the DDA not being in a position to hand over possession of the plot in question. It was in this background that the court held that the DDA had offered to allot the plot on the terms and conditions stipulated in the letter of allotment which was unconditionally accepted by the petitioner. Upon breach of contract, the DDA was held to be entitled to avoid the contract.

It is not so in the instant case.

The judgment dated 23rd March, 2006 has considered the contention of the petitioner that in the case of three societies, the DDA had restored allotment after cancellation. One of the instances cited by the petitioner was that of Rai Bahadur Raghubir Singh Educational Society. It was noted that the DDA was not in a position to hand over possession of the land which was allotted to this society. This factor was taken into account by the Lt. Governor as a peculiar feature entitling the society for restoration of the plot, which post allotment, was cancelled.

It is noteworthy that before this court it has been urged that the DDA would have handed over part possession of the plot if payment was made by the petitioner. Such a plea was taken by the Rahul Dhaka Vikas Society which had urged that it has made payment of the amount payable and consequently, it was entitled to the 50% of the land which was opposed by the DDA and rejected by the court. The court had held on the submission of the DDA, that the contract between the parties was for sale of the entire land and that the petitioner cannot take benefit of the half payment made. This judgment therefore does not further the case of the DDA. On the other hand the petitioner, would be justified in claiming that it is to be treated on the same basis as the Rai Bahadur Raghubir Singh Educational Society and therefore would be entitled to restoration of its allotment.

The DDA has also placed reliance on a judgment dated 17th May, 2007 passed in Writ Petition (C) No. 20890/2005 Pragati Educational and Welfare Society v. DDA to contend that the DDA was not required to keep available a plot which was available for possession till such time the petitioner had made payment. Perusal of this judgment would show that the Pragati Educational Society had failed to make payment of the demanded amount towards the plot which was allotted to it on account of financial difficulties. The court had noted that the reason for non-payment was not on the ground of the plot site not being developed or encumbered. The petitioner had also set up a case of double allotment and on facts, it was found that this contention was incorrect. It was in this factual matrix it was held that there was nothing on record to persuade the court to conclude that the plot was not ready to be handed over to the petitioner and that the petitioner could not claim any right to have the time for payment be extended beyond the time stipulated in the letter of allotment.

However, so far as the case of double allotment was concerned, the court has observed that the DDA would be answerable in law for such an allotment and that to insist that the allottee of such a plot would be required to make complete payment without disclosing to the allottee that such plot stood already allotted to some one else would be compounding the error. The matter relating to encroachment on a plot which is brought to the notice of the DDA, in law would require to be treated in a similar manner.

For the same reason, the reliance placed by the respondent on the pronouncement reported at Housing Urban Development Authority and another Vs. Kewal Krishan Goel and others, and Harlochan Singh Vs. Delhi Development Authority, is misconceived. None of these cases were involving any issue of allotment of plot which already stood allotted to another person.

These cases were simply cases of default in making the payments as per the schedule. The issues which have been raised before this court were not raised in these matters. I would respectfully hold that these judicial pronouncements consequently would not be strictly applicable to the instant case.

So far as the contentions of the petitioner assailing the action or the order of cancellation of the allotment on grounds of violation of principles of natural justice is concerned, learned counsel has contended that the petitioner was admittedly a defaulter in respect of the payment and consequently, mere technical violation of principles of natural justice would not be sufficient to invite this court to set aside the order of cancellation of the allotment.

It has further been contended that in these facts, the requirement of going through the procedure of issuing a notice to show cause prior to passing the impugned order would be in the nature of a mere ritual which did not need to be gone through. In this behalf, reliance has been placed on the pronouncement of the Apex Court reported at Ashok Kumar Sonkar Vs. Union of India (UOI) and Others, . and pronouncement of the Division Bench of this court reported at Laxman Singh Solanki Vs. Lt. Governor of NCT of Delhi and Another

In Ashok Kumar Sonkar v. UOI & Ors. (supra), the court was concerned with the challenge made by the petitioner to the annulment of the petitioner''s appointment on the ground that he was not eligible for the post in question, without compliance of principles of natural justice. The court was of the view that having regard to the petitioner not being eligible for appointment, it was not a case where the appointment was regular. If the appointment was regular, the same could be regularized. However, the case was one whether appointment was illegal and hence non est in the eyes of law and a nullity. In this case, it was held by the court thus:-

This brings us to the question as to whether the principles of natural justice were required to be complied with. There cannot be any doubt whatsoever that the audi alteram partem is one of the basic pillars of natural justice which means no one should be condemned unheard. However whenever possible the principle of natural justice should be followed. Ordinarily in a case of this nature the same should be complied with. Visitor may in a given situation issue notice to the employee who would be effected by the ultimate order that may be passed. He may not be given an oral hearing, but may be allowed to make a representation in writing.

It is also, however, well settled that it cannot put any straitjacket formula. It may not be applied in a given case unless a prejudice is shown. It is not necessary where it would be a futile exercise.

A court of law does not insist on compliance with useless formality. It will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. Furthermore in this case, the selection of the appellant was illegal. He was not qualified on the cut-off date. Being ineligible to be considered for appointment, it would have been a futile exercise to give him an opportunity of being heard.

There can be no dispute to the principles laid down in this case. However, the same have to be applied in the context of factual matrix before this court. In the instant case, there is no dispute with regard to the eligibility of the petitioner and the allotment having been validly made. The court is concerned with the action of the DDA in cancelling such allotment without compliance of principles of natural justice. Having regard to the nature of the allegations by the petitioner, it cannot be held that the issuance of notice to show cause was a mere empty formality or that failure to do so did not result in prejudice to the petitioner.

In Laxman Singh Solanki v. Lt. Governor of Delhi & Anr. (supra), the court was concerned with a challenge to the penalty which was imposed after a protracted enquiry and disciplinary proceedings. The petitioner was assailing the order inter alia on the ground that no notice was issued prior to imposition of the penalty. Placing reliance on the pronouncement of the Apex Court reported at Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., . and State Bank of Patiala and others Vs. S.K. Sharma, , the court held that rules are not mandatory and no interference is called for when no prejudice is caused to the concerned officer. No inflexible rules can be laid down in respect of non-compliance of principles of natural justice. Mere technical violation is not sufficient to invite the objection of violation of principles of natural justice.

In this background, it was held that no prejudice has resulted to the petitioner and the challenge was rejected. This judgment would have no application to the instant case.

Mr. Rajiv Bansal, learned standing counsel for the DDA has tried to point out that the petitioner was not even aware that it was at fault and consequently, at some place has requested for allotment of three acres and reduced it to even two acres. This is explained by Mr. Arun Jaitley, learned senior counsel appearing for the petitioner, who has pointed out that these requests were made in desperation inasmuch as the petitioner was in dire need of the land and it did not mean that the petitioner had abandoned its claim or right so far as its entitlement to the allotted land is concerned.

My attention has been drawn to the pronouncement of this court rendered in facts which are similar to the instant case. This pronouncement is reported at Jakson Engineers Pvt. Ltd. Vs. Delhi Development Authority and Others, In this case, the petitioner had successfully bid an auction for plots for leasehold rights in respect of an industrial plot. The petitioner deposited the 25% at the fall of the hammer. Before the balance amount was paid upon its payment, the petitioner visited the site and found that the plot was encroached upon and occupied. The petitioner thereafter repeatedly requested the DDA to get the plot vacated so as to enable the petitioner to deposit the balance amount but the DDA failed to do so. This petitioner had also to get a loan sanctioned from the bank. Despite repeated reminders, the DDA failed to get the encroachments removed. The DDA in the meantime sent a letter cancelling the allotment of the petitioner. The encroachments were removed thereafter. The petitioner''s request for restoration of the allotment was not considered favourably resulting in filing of the writ petition. The petitioner placed reliance on other instances wherein similar facts have been dealt with.

The DDA opposed the writ petition on the same contentions as have been raised before this court that the petitioner was a defaulter and had not deposited the amount which was liable to be paid in terms of the allotment by the DDA'' that it was required to deposit this amount even if the plot was encroached. The observations made in the pronouncement deserve to be considered in extenso and read thus:-

The first aspect to be considered arises from the rights and obligations of the parties. There is no doubt that the petitioner was obliged to deposit the balance 75% of the amount within the time stipulated. There was, -however, also a corresponding obligation on DDA to hand over possession of the plot thereafter. This is apparent from clause 5 of the terms and conditions of auction. It is also not disputed that the plot in question was encroached upon and DDA had taken no steps to remove the encroachments prior to the auction or even till the stage where the letter for balance amount was sent to the petitioner. The petitioner subsequently informed DDA on 10.10.1985 about the same. In fact, in the affidavit dated 27.11.2001, it has been stated that the auction purchaser was informed by DDA about encroachments on the said date. This would show that DDA was not in a position to perform its corresponding obligation to hand over possession of the plot in question.

The aforesaid affidavit as well as the counter affidavit filed by DDA also show that not only was the DDA not in a position to hand over possession of the plot, but also took the surprising stand that there was not even an obligation to clear the encroachments. Thus, DDA had no intention to hand over a vacant physical possession of the plot in question. The plea, in fact, raised is that the same was on ''as is where is basis'' and that the petitioner should have verified the position at site.

It is not disputed that none of the terms and conditions of auction specified that the plot in question was encroached upon or mat the auction purchaser was to purchase the plot along with the encroachments. That such a plea should be raised by a public authority to say the least is shocking. The DDA is seeking to wash its hands of the obligation to hand over a clear plot to the petitioner. The DDA was, in fact, duty bound to protect the public land before auction and it failed in its duties to do so. The land is after all developed with public funds and the DDA cannot be absolved of its responsibility to have protected the plot. The DDA, in fact, permitted the plot to be encroached upon and then, when its has been unable to remove the encroachments, has taken a plea in the counter affidavit that the plot was sold on as is where is basis''. In this behalf, condition 2(vi) of the terms and conditions of auction be referred to, which provided that size of the plot could vary uptil 15% either way and the prospective purchaser would have to pay the differential. Thus, where variation was likely to occur from the specifications or conditions of the plot, it was subsequently provided for in the terms and conditions.

The willingness of the petitioner to pay the balance amount is apparent from the letter of the petitioner dated 10 10.1985 itself wherein it was stated that the petitioner would deposit the amount, the moment encroachments were removed. It is a fallacious plea raised by the respondent DDA that the petitioner should have deposited the amount first and on failure of DDA to hand over possession of the said plot, the amount could be refunded back and the petitioner would have the option to even recover damages. This amounts to saying that DDA not being in a position to hand over vacant physical possession of the plot and, thus, going to commit breach of the contract, wanted the petitioner first to comply with its obligations and block its money knowing fully well that DDA was going to commit breach of its side of the obligations and then be left to remedy of the civil proceedings to recover its amounts and damages. The petitioner even with the letter dated 16.10.1986 had enclosed a copy of the pay order (not a cheque) saying that the funds were ready, but that the plot should be cleared. Not only this, even subsequently vide letter dated 09.06.1987 and in the public hearing on 10.06.1987, the cheque was handed over, but the same was returned to the petitioner on the ground that it would take time to remove the encroachments. Thus, the willingness of the petitioner to comply with the obligation to pay the balance amount is not in doubt, but the petitioner was naturally insisting on DDA being in a position to hand over vacant physical possession of the plot to the petitioner.

The first illustration to Section 51 of the said Act itself would show that where delivery on payment was not possible, there would be no obligation to pay for the same. This is the position in the present case.

(Emphasis supplied)

Finally while moulding the relief, the court was of the view that inasmuch as the amount remained with the petitioner, though it was as a consequence of the failure of the DDA to hand over the plot, it was held that the petitioner ought to be required to make payments of some amount as interest and the court consequently directed the petitioner to pay interest at the rate of 6% per cent per annum.

Mr. Rajiv Bansal, learned standing counsel for the DDA has vehemently submitted that the petitioner did not have the funds to make the payments. The petitioner had clearly informed the DDA that it was arranging for funds from the financial institutions and in February, 2002 had requested for the copy of the site plan. Repeated reminders in this behalf also failed to evoke any favourable response and the petitioner has been made to run from pillar to post even to get a site plan of the plot which was allotted to him. Queries put to learned counsel is the site plan for this court also failed to evoke any response whatsoever. On the contrary it was categorically admitted that there was no layout plan and no demarcation had been effected on the land.

The Canara Bank had informed the petitioner of the Bank having favourably considered its application and was awaiting the requisite clarification with regard to the land being free from encroachments and its demarcation before disbursement of the amount. Certainly, a financial institution or a bank cannot be expected to advance amount without clear title of the property in respect of which the loan was being sought. In the factual matrix noticed hereinabove, certainly, it cannot be held that the request of the petitioner to remove the encroachment before the petitioner was required to make payment of the amount was unfair or unreasonable. Certainly could not amount to cancelling the allotment.

The DDA has made allotment of land to the Directorate of Higher Education as well as the petitioner without handing over any site plan earmarking the respective plots. The DDA has not been able to produce a lay out plan showing the boundaries of the different plots of land.

From the above it is apparent that the Directorate of Higher Education was put in possession of four hectares of land to the petitioner as back as on 8th January, 1996 which even on date is in possession of the directorate of higher education and has been treated as government property by the respondent no. 3. According to these communications from the Chief Secretary, no site demarcation had been carried out and yet, part of the same site had been allotted to the petitioner by the DDA.

The existence of the encroachment is manifested from the fact that the same has been admitted by the DDA in the letter dated 21st September, 2001 from its Director (Lands) to the respondent no. 3 as well as from the fact that it has effected allotment of an alternative land to the respondent no. 3.

Even on date there are encroachments on the subject land. AFCONS is stated to be in partial occupation of the land and is utilising the same for recasting slabs. The manner and nature of the allotment and possession of the land by AFCONS is not disclosed till date.

In the instant case, on account of the same encroachment, the DDA has allotted an alternative plot for the construction of the Keshavnanda Mahavidyalaya. Yet, fully knowing that the plot could not be utilised, this very plot has been admittedly allotted to the petitioner without removal of encroachment and without taking the possession back from the GNCT of Delhi on the 7th February, 2002.

The petitioner had clearly intimated the DDA of its intention to arrange the finances from the Canara Bank. The Bank had clearly processed the application. Only, the site plan of the plot remained to be received from the DDA so that the same could be inspected by it before the formal release of the funds.

So far as the site plan is concerned, the petitioner relies on a letter addressed to the DDA as back as on 25th February, 2002 which is after the allotment of 7th February, 2002. The petitioner has placed several letters from the Bank requesting for a site plan so that the inspection could be conducted. The inspection of the area conducted in October, 2002 reflected the encroachments. The Bank had called upon the petitioner even by the letter of 14th November, 2002 as to the status of the encroachments. In this communication, it was clearly stated that the loan proposal of the petitioner has been sanctioned and the release of funds would take place once the petitioner clarified the stand with regard to the encroachments.

Learned counsel for the respondent had indicated that the petitioner had requested for extension of time for effecting payments and by a communication of the 6th October, 2002, the DDA had given extension of two months to effect the payments. Therefore, the submission that the petitioner was not in a position to effect payment also is without substance in as much as the only reason for non-release of the funds by the Bank on behalf of the petitioner was the existence of encroachments.

Even on the date of hearing the arguments, the respondent no. 3 was urging rights and possession over the subject land. The DDA has not been able to suggest demarcation of the site or plot even till close of arguments. In view of this discussion, it has to be held that the action of the DDA in cancelling the plot in question on the 6th May, 2003 was arbitrary, illegal and based on no material. Despite all facts being brought to the notice of the DDA, no action even to protest its own land has been taken. The same has been found to be in violation of principles of natural justice as well and cannot be legally sustained.

Having regard to the facts and circumstances brought on record, the relief would require to be moulded in view of the subsisting status on the plot with regard to the claim of the respondent no. 3 and its possession over the same. Accordingly, this writ petition is allowed.

The order dated 6th May, 2003 passed by the respondent no. 2 is hereby set aside and quashed.

As a consequence, the DDA is directed to forthwith effect demarcation on the subject land and to ascertain availability of such land admeasuring 5 acres which has not been allotted to any other person and is not occupied by any other person for handing over to the petitioner.

The respondents shall convey the position of the land on site plan to the petitioner within six weeks who shall be required to make payment thereafter on the same terms as were contained in the tatter dated 7th February, 2002.

Subject to the petitioner completing all formalities and as were notified in the letter dated 7th February, 2002, further steps for handing over possession of the plot shall be taken immediately thereupon.

In the alternative, the respondent no. 2 shall consider the allotment of an appropriate plot to the petitioner based on recommendations and consideration earlier effected as in the case of the Keshav Mahavidyalaya college. Such consideration shall be completed within a period of six weeks from today and communicated to the petitioner.

In view of the above, such allotment shall be in terms as were communicated on 7th February, 2002.

The petitioner shall be entitled to the costs which are assessed at Rs. 25,000/- to be paid within six weeks from today.