W.P.(C)/9036/2008 of KARUNAMAY DHARAMARTH SOCIETY REGD. Vs UOI & ORS.

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+W.P.(C) 9036/2008+W.P.(C) 4324/2010

Date of Decision: November 28, 2018Pronounced on: February 08, 2019

KARUNAMAY DHARAMARTH SOCIETY REGD......PetitionerThrough:Mr. Sanjeev Sindhwani, SeniorAdvocate with Mr. Daleep Dhyani,Advocate

Versus

UNION OF INDIA & ORS.LT. GOVERNOR, GOVT. OF NCT OF DELHI & ORS.

.....RespondentsThrough:Mr. Naushad Ahmed Khan, ASC(Civil) for respondent-GNCTDMs. Saroj Bidawat, Advocate forrespondent-UOIMr. Rajiv Bansal, Senior Advocatewith Ms. Kamna Singh and Ms.Parul Panthi, Advocates forrespondent-DDA

CORAM:HON'BLE MR. JUSTICE SUNIL GAUR

JUDGMENT

1.In the above-captioned first petition, mandamus is sought to firstthree respondents to execute and register lease-deed in terms of letter ofallotment of 24[th]June, 1985 in favour of petitioner in respect of 4 acres ofland, out of land comprised in Khasras No.109 and 185 situated inVillage Nasirpur, Delhi (hereinafter referred to as the ‘subject land’) and

to hand over the possession of the said land to petitioner-Society.

2.In the Reply Affidavit filed by respondents No.2 & 3, the standtaken is that petitioner-Society had failed to complete all the requiredformalities and to deposit the lease money for formal allotment of the‘subject land’. It is also stated in the aforesaid Reply Affidavit that on24[th]June, 1985, the Lieutenant Governor of Delhi had decided in-principle to make allotment of the ‘subject land’ on certain terms andconditions and since those terms and conditions were not fulfilled,therefore, there was no execution of the lease-deed. It is also asserted inthe Reply Affidavit of respondents No.2 & 3 that possession of 40 Bighasof Gaon Sabha land, which was found vacant out of 91 Bighas and 10Biswas, was handed over to respondent-DDA and it is so reflected in theReport of 13[th]October, 2003 (Annexure R-1). It is further asserted in thisReply Affidavit that as per Notification of 24[th]October, 1994, RevenueEstate of Village Nasirpur was declared urbanized under Section 507 ofthe Delhi Municipal Corporation Act, 1957 and the all the properties ofthis Revenue Estate vested in the Central Government/DDA and thatW.P. (C) 3817/1991 filed by private persons/individuals on similar factsstood dismissed for non-prosecution.

3.In the rejoinder filed by petitioner-Society to the Reply Affidavit ofrespondents No.2 & 3, it is reasserted that petitioner-Society vide letter of8[th]July, 1985 addressed to Director (Panchayat), Delhi had conveyed itsacceptance to all terms of the letter of allotment of 24[th]June, 1985 and itwas also communicated to respondents that petitioner-Society hasarranged the funds to deposit lease amount, etc., and is ready to pay it atany time. Petitioner-Society asserted that vide letter of 17[th]August, 1985,

audited statement of account of petitioner-Society was also submitted toDirector (Panchayat), Delhi and vide another Communication of 10[th]January, 1986, request was made to Director (Panchayat), Delhi to actupon the letter of allotment of 24[th]June, 1985. However, it is stated thatduring the said period, Notification for requisition of land in VillageNasirpur under the Land Acquisition Act was issued, but the saidNotification was quashed by Supreme Court vide order of 10[th]December,1987 in W.Ps.(C) 991/1986 and 12641/1986. According to petitioner-Society, from the year 1986 till 1990, the President of petitioner-Societyhad made several visits to the office of respondents No.2 & 3 with arequest to execute the lease-deed, but to no avail.

4.It is also asserted in the rejoinder that vide letter of 3[rd]April, 1990,readiness and willingness of petitioner-Society to comply with all theterms and conditions of allotment of letter of 24[th]June, 1985 wasconveyed to Director (Panchayat), Delhi and several representations andvisits were made to the office of respondents No.2 & 3 to execute thelease-deed in respect of 4 acres of land allotted to petitioner-Society, i.e.,the subject land. Copies of letters of 8[th]July, 1985; 17[th]August, 1985 and10[th]January, 1986 making such requests have been annexed with the writpetition as Annexures P-3 to P-5. In this rejoinder, counter-affidavit ofMarch, 1992 (Annexure P-11) filed by respondents in the W.P. (C)3817/1991 preferred by Raj Karan & Others vs. Lt. Governor & Ors. isrelied upon to assert that the Lieutenant Governor had decided to honourthe commitment to allot the subject land to petitioner-Society.

5.It is specifically asserted in this rejoinder that the status quo orderof 6[th]December, 1991 passed in W.P. (C) 3817/1991 relating to subject

land also continued till 7[th]April, 2008. It is maintained in this rejoinderthat the resultant effect was that transfer of 40 Bighas of Gaon Sabha landto DDA on 13[th]October, 2003 and the subject land was put on hold. It isclarified that in the rejoinder filed by petitioner that the subject land wasnot included in the 40 Bighas of Gaon Sabha land of Village Nasirpur,which was to be handed over to respondent-DDA.

6.The stand taken by respondent-DDA is that the possession of 40Bighas out of Khasra No.109 in Village Nasirpur was taken in October,2003 and it was transferred to the Engineering Department of respondent-DDA for development Scheme and road passes through 40 Bighas ofland of Khasra No. 109 of Village Nasirpur. It is also asserted in thiscounter-affidavit by respondent-DDA that 40 Bighas of land in KhasraNo. 109 of Village Nasirpur is lying vacant and is free fromencroachment and DDA is constructing road on the subject land.However, petitioner-Society’s claim for allotment of land ad-measuring 4acres in Village Nasirpur, is refuted by respondent-DDA in its counter-affidavit filed while asserting that no right accrued to petitioner.

7.In the rejoinder to the counter-affidavit filed by respondent-DDA,it is reiterated that the physical possession of 40 Bighas of land in KhasraNo. 109 in Village Nasirpur was never handed over to respondent-DDAand no physical demarcation was carried out. The right to allotment ofsubject land is reasserted by petitioner-Society. It is pointed out that asper Annexure P-11 (colly.) to W.P. (C) 4324/2010 in the earlier W.P. (C)3817/1991 titled Raj Karan & Others (supra), the prayer made was toquash the allotment of 4 acre of land i.e. 2 acres each in Khasra No.109and 185 of Village Nasirpur, Delhi in favour of respondents No.4 & 5,

who are petitioners herein, and not to handover the possession of subjectland to petitioner-herein.

8.With the consent of learned counsel for the parties, abovecaptioned petitions were heard together and are being decided by thiscommon judgment.

9.It is matter of record that during pendency of above captioned firstwrit petition, order of 14[th]June, 2010 was passed by the Director(Panchayat), GNCTD with the approval of the Lieutenant Governor ofDelhi to cancel the ‘in-principle’ allotment of subject land made topetitioner-Society way back in June, 1985. In the above-captioned secondpetition, order of 15[th]June, 2010 (Annexure P-26) cancelling theallotment of subject land made to petitioner-Society is assailed primarilyon the ground that the allotment of subject land to petitioner-Society wasprior to the Notification of 24[th]October, 1994 and so, the subject landwould not form part of the urban area and since stay was operating inW.P. (C) 3817/1991, therefore, lease-deed could not be executed. TheDoctrine of Promissory Estoppel is invoked by petitioner-Society in theabove-captioned second petition. The stand taken in the counter-affidavitfiled in the above-captioned second petition is that petitioner-Society hadmiserably failed to fulfil and comply with the conditions precedent forallotment of subject land. It is asserted that entire Gaon Sabha land ofVillage Nasirpur including the subject land has been declared to be urbanarea and so, cancellation of ‘in-principle’ allotment of subject land topetitioner-Society way back in 1985, is sought to be justified. In theabove-captioned second petition, the stand taken by petitioner-Society inthe writ petition has been reiterated in the rejoinder filed.

10.Impugned order of 14[th]June, 2010 is assailed by learned seniorcounsel for petitioner on the ground that an ‘offer of allotment’ of ‘subjectland’ creates pre-existing right, which attracts the doctrine of legitimateexpectancy. It is pointed out that impugned order proceeds on the basisthat petitioner has not completed the requisite formalities, as stipulated inthe allotment letter of 24[th]June, 1985. It is further pointed out thatrespondents have not shown which formality has not been completed bypetitioner. It is submitted that petitioner’s readiness and willingness todeposit the lease amount, ground rent, etc., is evident from variouscommunications made by petitioner to respondents. During the course ofhearing, attention of this Court was drawn by learned senior counsel forpetitioner to Communications (Annexure P-3 to P-5) in support of theabove submission. To now make payment of lease money, etc., at pre-existing rates, reliance is placed by learned senior counsel for petitionerupon Supreme Court’s decision in ITC Limited v. State of Uttar Pradeshand Others, (2011) 7 SCC 493.

11.Learned senior counsel for petitioner had emphatically submittedthat respondents in W.P. (C) 3817/1991 preferred by Raj Karan & Others(supra) had taken the stand that the Lieutenant Governor had decided tohonour the commitment made for allotment of ‘subject land’ topetitioner. It is submitted that in view of status quo order operatingduring the period in question, petitioner’s right to get the lease deedexecuted in respect of ‘subject land’ subsists. Reliance is also placed bylearned senior counsel for petitioner upon Supreme Court’s decision inRam Niranjan Kajaria v. Sheo Prakash Kajaria and Others, (2015) 10SCC 203 to submit that respondents cannot be allowed to wriggle out of

their commitment to allot the ‘subject land’ to petitioner. To invoke thedoctrine of legitimate expectancy, reliance is placed by learned seniorcounsel for petitionerupon Supreme Court’s decision in SouthernPetrochemical Industries Co. Ltd. v. Electricity Inspector & Etio andOthers, (2007) 5 SCC 447. It is further submitted that in principleallotment of subject land to petitioner cannot be taken away on thepremise that the ‘subject land’ stood urbanized in the year 2002. It is alsosubmitted that handing over of 40 bighas out of 91 bighas 10 biswas ofthe land in question to DDA in the year 2003 has no bearing on the factsof the instant case as conscious decision to allot the ‘subject land’ topetitioner was taken by respondents way back in the year 1985 and it wasreiterated by respondents in W.P. (C) 3817/1991. Thus, principle ofpromissory estoppel is sought to be invoked by learned senior counsel forpetitioner to seek quashing of impugned order and mandamus torespondents to execute the lease deed in respect of ‘subject land’.

12.On the contrary, learned senior counsel for respondent-DDA andlearned Additional Standing Counsel for respondent-GNTCD negate theaforesaid stand on behalf of petitioner and support the impugned orderand submits that petitioner has not paid the lease money, etc., and so,cancellation of ‘in-principle’ allotment of ‘subject land’ to petitioner isjustified. It is submitted that in view of urbanization of the ‘subject land’and the policy decision of Government of NCT of Delhi to allot GaonSabha lands to individuals or individual institutions, amply justifies theimpugned cancellation. Reliance is placed upon Division Benchdecision of this Court in W.P. (C) 2459-60/2005 titled Bhagwan MahavirEducation Society (Regd.) & Anr. v. UOI & Ors., rendered on 25[th]March,

2011 to submit that since no actual allotment of ‘subject land’ was made,therefore, principle of promissory estoppel or the doctrine of legitimateexpectancy cannot be invoked. Thus, it is submitted that writ petitionsfiled by petitioner deserve to be outrightly dismissed.

13.After having considered the submissions advanced on behalf ofboth the sides and on perusal of impugned order, material on record andthe decisions cited, I find that way back in June, 1985, LieutenantGovernor of Delhi had approved the allotment of 4 acres of land topetitioner-Society for purpose of setting up of school for handicap,orphan, mentally retarded and physically weak children. Petitioner is aregistered charitable society, which has been established with theobjective of promoting education, child health and overall developmentof children. Although it is stand of respondent that petitioner-Societyhas failed to complete the requisite formalities by depositing the leasemoney, etc., to enable respondents to execute the formal lease-deed, butthe material on record reveals that petitioner vide letter of 8[th]July, 1985had conveyed its acceptance to respondent’s letter of 24[th]June, 1985. It isrelevant to note that it was not mere promise to allot the ‘subject land’to petitioner, but actually for all practical purposes, the ‘subject land’stood allotted to petitioner. Infact, it was more than an 'in-principle'allotment. All that was left to be done was to simply deposit the leasemoney, etc.. Petitioner vide Communications (Annexure P-3 to P-5) hadcalled upon respondents to disclose as to what is the amount of leasemoney to be deposited and where. Somehow, from the year 1985 till theyear 1990, lease money in respect of 'subject land' could not be depositedon account of silence on part of respondents and for this, petitioner

cannot be blamed.

14.During the course of hearing, respondents' counsel had not drawnattention of this Court to any document to show that any Communicationwas addressed to petitioner specifying as to what amount of lease moneyis to be deposited and where. The matter lingered on for no fault ofpetitioner. Certainly, this cannot be ground to cancel the 'in-principle'allotment of ‘subject land’ to petitioner. Relevantly, some third party i.e.Raj Karan & Others (supra), had challenged the ‘in-principle’ allotmentto petitioner by way of W.P.(C) 3817/1991 and vide order (Annexure P-9), it was directed way back in December, 1991 that status quo shalloperate. It is matter of record that the said writ petition was ultimatelydismissed in default in the year 2008. Therefore, petitioner had filed theinstant petition being W.P. (C) 9036/2008, in which respondents weredirected to maintain status quo. Thus, the factual position relates back tothe year 1985 as till then, there was no change in respect of ‘subject land’except that it was urbanized in the year 1994 and that in the year 2000, aCircular was issued by respondents that Gaon Sabha land cannot beallotted to any individual or institution.

15.To say the least, pendency of W.P.(C) 1724/1990 and status quoorder in the said petition till the year 2008, cannot operate to thedetriment of petitioner as for no fault of petitioner, the execution of thelease-deed in respect of subject land could not take place. Mereurbanization of large chunk of land including the ‘subject land’ in theyear 1994 has to operate prospectively and cannot be made to operateretrospectively, to undo the in-principle allotment of ‘subject land’ topetitioner. So, notification of the year 1994, urbanizing the ‘subject land’

cannot be the basis to cancel the in-principle allotment in question. TheCircular/Order of 30[th]November, 2000 declaring that henceforth GaonSabha land cannot be allotted to any individual or institution does not andwill not stand in the way of respondents to execute the lease-deed inrespect of ‘subject land’ as, by then, the ‘subject land’ was no longer aGaon Sabha land. Otherwise also, the Circular/Order of 30[th]November,2000 cannot be made to operate retrospectively and thus, cannot be thebasis to cancel the in-principle allotment of ‘subject land’ to petitioner.Thus, this Court is of the considered opinion that impugned order of 14[th]June, 2010 cancelling the in-principle allotment of ‘subject land’ topetitioner cannot be legally justified. Moreover, it runs counter to the‘doctrineoflegitimateexpectancy’and‘principleofpromissoryestoppel’.

16.Since the status quo order in respect of ‘subject land’ is operatingtill date, therefore, the ‘doctrine of legitimate expectancy’ has beenrightly pressed into service. Such view is taken as in W.P.(C)3817/1991 titled Raj Karan & Others (supra), it was reiterated byrespondents that in-principle allotment shall be honoured. There is nojustification whatsoever to dishonour the aforesaid undertaking furnishedto the Court in W.P.(C) 3817/19991. It is fit case to invoke the‘principle of promissory estoppel’. Division Bench decision in BhagwanMahavir (supra) is distinguishable on facts as in the said case, there wasno allotment, whereas in the instant case, in-principle allotment has beenduly communicated by respondents to petitioner, which makes out caseforinvokingthe‘principleofpromissoryestoppel’againsttherespondents. Particularly when respondent in W.P.(C) 3817/1991 had

undertaken to abide by ‘in principle’ allotment of subject land topetitioner.

17.During the course of hearing, respondents’ counsel had relied uponSupreme Court’s decision in Vimlesh Kumari Kulshrestha vs. SambhajiRao and Another (2008) 5 SCC 58 to assert that specific performancecannot be decreed as no proper description of the property was given inthe Agreement. To say the least, in the instant case, Khasra numbers havebeen given in the in-principle allotment of four acres of land byrespondents in favour of petitioner. The ratio of Supreme Court’sdecision in Vimlesh Kumari Kulshrestha (supra) has no application to thefacts of the instant case, as it is prerogative of respondents to allot fouracres out of these Khasras and also because in the instant case, actualdemarcation of the said four acres of land could not be possibly given inthe in-principle allotment letter. It is ministerial act, whichis to beperformed by respondents and on this specious ground, respondentscannot wriggle out of their obligation to spell out as to what is thequantum of lease money, etc. to be deposited and to execute the lease-deed in question in respect of four acres of land in question.

18.This Court is conscious of the fact that in-principle allotment of‘subject land’ was made to petitioner way back in the year 1985 and atthat time, the premium for lease was ₹30,000/- per acre and annual ground rent was at the rate of 2.5% of the premium. Supreme Court inITC Limited (supra) had evolved an equitable solution which aptlyapplies to the instant case. The solution evolved was to apply the pre-determined rates of the relevant year. The guiding factor in the instantcase would be to apply the last revised pre-existing rates and the

corresponding annual ground rent. It is deemed appropriate to adopt sucha course as change in policy decision to allot the lands by auction cannotbe retrospectively applied to the instant case. Thus, it will be equitable todirect the respondents to forthwith execute the lease-deed in respect ofthe ‘subject land’ in favour of petitioner, upon petitioner depositing thelast revised pre-existing rates (to be intimated by respondents topetitioner) with interest at the rate of 11% p.a. Thereafter, the respondentsshall promptly execute the lease-deed in favour of petitioner promptly.Consequentially, impugned order is hereby set aside and mandamus isissued to the respondents to forthwith execute formal lease-deed inrespect of ‘subject land’ in favour of petitioner, provided petitionerpromptly deposits the lease money, etc., at the afore-referred pre-determined rates upon being informed about it.19.With aforesaid directions, both these petitions are disposed ofwhile leaving the parties to bear their own costs.

FEBRUARY 08, 2019s/r

(SUNIL GAUR)JUDGE