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Friday, January 23, 2015

Thus, we direct the appellant-Corporation to re-allot the plot originally allotted to the respondent, i.e. Plot No.57, Pocket-I, Sector-2, Bawana Industrial Area, Delhi, and if the same is not available, an alternative plot, in the same Bawana Industrial Area or any other proximate area be allotted to him within a period of four weeks from the date of receipt of the copy of this order. The discretionary power exercised by the learned single Judge of the High Court which is confirmed by the Division Bench of the High Court need not be interfered with by this Court as no case is made out. The appeal is dismissed. CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1087 OF 2015 (ARISING OUT OF SLP (C) NO. 22784 OF 2014) DELHI STATE INDUS. DEV. CORPN. LTD. .........APPELLANT Vs. ASHOK KUMAR MADAN ......RESPONDENT

                               NON REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO. 1087 OF 2015
                 (ARISING OUT OF SLP (C) NO. 22784 OF 2014)


DELHI STATE INDUS. DEV. CORPN. LTD.  .........APPELLANT

                                     Vs.

ASHOK KUMAR MADAN                    ......RESPONDENT


                                  O R D E R




V.GOPALA GOWDA, J.

     Leave granted.

This appeal has been filed against the impugned  judgment  and  final  order
dated 24.07.2013 passed by the High Court of Delhi at New  Delhi  in  L.P.A.
No.3


of 2013, whereby the High Court has disallowed the action of the  appellant-
Corporation in cancellation of  the  plot  allotted  under  the  "Relocation
Scheme" on account of non-payment of the  initial  50%  amount  towards  the
cost of the plot in terms of order dated 24.1.2001 passed by this  Court  in
M.C.Mehta Vs. Union of India[1] and subsequently  dismissed  the  L.P.A.  of
the appellant-Corporation.





      The brief facts of the case are stated hereunder:-





The appellant-Corporation is the agency implementing the direction  of  this
Court in the case of M.C.Mehta (supra), for  the  relocation  of  industries
that are carrying on business  in  non  conforming  areas  or  are  misusing
residential   properties.   The    respondent,    who    was    running    a
commercial/industrial establishment  in  a  residential  premises,  made  an
application  dated  23.12.1996  for  the  allotment  of  a  plot  under  the
"Relocation Scheme" and also furnished a sum of Rs.60,000/- along  with  the
application. The respondent was required to make a further  deposit  of  30%
of the tentative cost of the plot, which amounts to Rs.75,000/-, apart  from
the earnest money paid along with the application, which was duly  deposited
by him on 09.05.2000. The application of the respondent was accepted and  he
was allotted a plot  measuring  150  sq.  meters  bearing  no.57,  Pocket-I,
Sector-2, Bawana Industrial Area, Delhi, in accordance  with  the  allotment
letter issued on 23.10.2000. The  appellant-Corporation  also  informed  the
respondent that the cost of the plot stood revised from  Rs.3000/-  per  sq.
meter to Rs.4,200/- per square meter and the respondent  was  also  required
to  deposit  50%  of  the  revised  estimated  cost,   which   amounted   to
Rs.3,15,000/- within a period of 3 months from 23.10.2000.  Pursuant  to  an
order dated 24.01.2001 passed by this Court  in  M.C.Mehta's  case  (supra),
the date for depositing the requisite amount was  subsequently  extended  to
31.03.2001. The respondent failed to deposit the  said  amount  despite  the
extension of the period given by this Court.  The  respondent  deposited  an
amount of Rs.1,80,000/- to complete the payment of 50% of the  cost  of  the
plot on 27.11.2001, instead of the stipulated date i.e. 31.03.2001,  without
any demand  and  permission  from  the  appellant-Corporation.  The  payment
challan states that any late payment or payment  without  demand  would  not
create any right upon the property.  on  27.07.2004,  an  aggregate  sum  of
Rs.4,27,117/-, was deposited by the  respondent  on  a  demand  made  by  an
officer of the appellant-Corporation, to complete  the  balance  payment  of
50% of the cost of the plot as well as the  interest  for  delay  in  making
payment. Further, on 14.11.2006, the  respondent  received  a  communication
from the appellant-Corporation, demanding certain  documents  to  facilitate
the handing over the possession of the plot to the respondent. However,  the
allotment in favour of the respondent was cancelled on  30.01.2008  and  the
amount  was  refunded  with  interest  on  07.05.2010.  Aggrieved   by   the
cancellation order, the respondent  filed  Writ  Petition  No.8478  of  2010
before the learned single Judge of the High Court, who disposed of the  same
in favour of the respondent vide order dated 03.07.2012,  stating  that  the
appellant-Corporation  had  not  corrected  the  mistake  committed  by  its
officer and had remained silent for four years  after  the  receipt  of  the
value of the plot. It has further held that  the  aforesaid  action  of  the
appellant-Corporation shows that it had accepted the action of the  officer.
Further, the respondent had paid interest on the delayed payment, which  was
also accepted by the appellant-Corporation, and therefore  the  doctrine  of
equity is in his favour. Further, no action was taken against the  concerned
officer of the appellant-Corporation by it. Thus,  in  the  absence  of  any
reasonable explanation as to why the appellant-Corporation  chose  to  enjoy
the money of the respondent for a period of 4 years without any recourse  to
him and without taking any action for the cancellation of the  allotment  of
the plot, can safely lead to the conclusion that  the  appellant-Corporation
chose to accept the action of its Section Officer, Mr.R.K.Bhatia. Thus,  the
learned  single  Judge  disposed  of  the  writ  petition  and  quashed  the
cancellation letter dated 30.01.2008, wherein the appellant-Corporation  has
cancelled the plot allotted to the respondent  and  further  the  appellant-
Corporation was  directed  to  make  available  an  alternate  plot  to  the
respondent in case the original plot allotted  to  the  respondent  was  not
available, within a period of four weeks from the date of the order.





The Division Bench of the High  Court  also  dismissed  the  appeal  of  the
appellant-Corporation on the similar reasons assigned by the learned  single
Judge.  Hence, this appeal is filed by the appellant-Corporation seeking  to
set aside the impugned judgment and order of the High Court.




It is the contention of Mrs. S. Janani, the learned  counsel  on  behalf  of
the appellant-Corporation that the High Court has erred in  not  considering
the fact that the respondent has failed to make the payment in terms of  the
allotment letter and also in accordance with the directions issued  by  this
Court, whereby the period stipulated for making payment with regard  to  the
allotment of land was extended. The High Court has failed to  see  that  the
appellant-Corporation has followed the policy of cancellation  of  allotment
in cases where the initial 50% of payment has not been deposited in time  by
the allottees uniformly and any favourable decision as directed by the  High
Court in favour of the respondent would open the flood gates  of  litigation
and in such circumstances the appellant-Corporation would be  put  to  great
hardship.

Further, the  paragraphs  3,  11  and  12  of  the  allotment  letter  dated
23.10.2000, clearly state that in case the payment towards the cost  of  the
plot is not made within the stipulated time, by the  allottees,  in  respect
of the plot already allotted in favour of the respondent  is  likely  to  be
cancelled without any further notice in this regard.  The  Delhi  Government
has reserved its right to withdraw/reject the offer  of  allotment  made  in
favour of the respondent in case of  any  discrepancy  noticed  subsequently
after following due process of law.





     Further, it has been contended by the learned counsel that  it  is  the
sole discretion of the  Delhi  Government  to  allot  and  cancel  the  plot
allotted in favour of any allottee, if  the  conditions  stipulated  therein
are not complied with  by  the  allottee,  without  informing  him  in  this
regard.





It has been further contended by the  learned  counsel  that  the  delay  in
refunding the amount to the respondent amounts to a  conscious  decision  on
the part of the appellant-Corporation to accept the belated payment  of  the
first instalment made by the respondent towards the allotment of  the  land.
However, the delay  in  refunding  the  amount  to  the  respondent  by  the
appellant-Corporation cannot be inferred as an acceptance of the same by  it
towards the  allotment  of  the  plot  in  favour  of  the  respondent.  The
respondent had not deposited the shortfall amount of 50% of  the  cost  with
its authorization within the stipulated time and  therefore,  it  cannot  be
contended that the respondent was misled by the conduct  of  the  appellant-
Corporation to think that the cut-off date fixed  by  this  Court  has  been
relaxed by it.





On the other hand, it is the contention of Mr.  Akhilesh  Kumar  Gupta,  the
learned counsel on behalf of the respondent that  the  appellant-Corporation
has accepted the full payment amount with interest towards the cost  of  the
plot, which was deposited by the  respondent  after  sanction  and  approval
from  one  Mr.R.K.Bhatia,  Section  Officer  of  the  appellant-Corporation.
However, the appellant-Corporation has refused to withdraw the  cancellation
order inspite of several representations made by the respondent.





It has been further contended by him that no communication was  received  by
the respondent from the appellant-Corporation that there was any default  in
the payment towards the allotment of  the  plot,  when  the  respondent  had
deposited the additional amount  of  Rs.1,80,000/-  on  27.11.2001,  thereby
completing the deposit of the requisite amount of 50% payment of  the  total
cost of the plot that was made  available  to  the  respondent  through  the
allotment scheme by the Delhi Government.





  It  has  been  further  contended  that  the  respondent   had   deposited
Rs.7,42,117/- on 27.07.2004, which is the total cost of  the  plot  together
with the up to date interest in  response  to  the  newspaper  advertisement
published  by  the  appellant-Corporation,  asking  the  allotees   of   the
Relocation Scheme, who had not made full payment for the plots  allotted  to
them, to make full  payment  along  with  interest  in  the  office  of  the
appellant-Corporation   within   the   time   stipulated   in   the    above
advertisement. Further, the respondent received the communication  from  the
appellant-Corporation, demanding certain documents to facilitate it to  hand
over the plot to the respondent, which were duly furnished by him.  However,
the handing over of the possession of the allotted plot was not made to  him
but on the other hand, the allotment  of  the  plot  to  him  was  cancelled
giving the reason that there was default in the payment of  the  instalments
on the part of the respondent, which is factually incorrect.





 Further, it has been contended that the  contract  between  the  appellant-
Corporation  and  the  respondent  is  still  subsisting  and  there  is  no
substantial question of law in this appeal to interfere with  the  judgments
and orders of both the learned single Judge and the Division  Bench  of  the
High Court as they are legal  and  valid.  It  is  further  urged  that  the
appellant-Corporation has committed fraud on the  respondent  and  therefore
the appeal of the appellant-Corporation  is  not  maintainable  before  this
Court. The allotment of the plot in favour of the respondent  was  cancelled
by the  appellant-Corporation  in  utter  violation  of  the  principles  of
natural justice.





On the basis of the facts pleaded, the evidence  on  record  and  the  rival
legal contentions urged on  behalf  of  the  parties,  we  have  to  examine
whether the appellant-Corporation is entitled to the relief  as  prayed  for
in this appeal. The answer for the same is given in the negative.





 It is contended by the learned counsel for the  appellant-Corporation  that
the respondent had made a default in the payment of the initial 50%  of  the
cost of the plot amounting to Rs.3,15,000/- despite the  extension  of  time
given by this Court in the M.C.Mehta case (supra), i.e. upto 31.03.2001  and
instead, he made the payment directly to the bank without the  authorization
of the appellant-Corporation and therefore, the said  deposit  made  towards
the cost of the allotment of the plot is not  valid  and  therefore  it  has
cancelled the allotment of the plot in favour of the respondent. The  action
of cancellation of the plot by the  appellant-Corporation  for  the  reasons
ascribed above cannot be accepted by us in view of the  peculiar  facts  and
circumstances of the present case, wherein, on  27.07.2004,  an  endorsement
was made by the officer of the appellant-Corporation, Mr.R.K.Bhatia,  asking
the Bank of Baroda to accept the balance payment payable by the  respondent,
thus leading the respondent to a bona fide belief that the  belated  payment
along with the interest that was deposited by the respondent has  been  duly
accepted by the appellant-Corporation.





 Further, on a careful examination  of  the  cancellation  letter  that  was
addressed to the respondent, cancelling the allotment of the  plot  allotted
to him, the appellant-Corporation had not  given  any  other  reason  except
admitting the bona fide mistake on the part of its officer in accepting  the
belated payment made by the respondent towards the  allotment  of  the  plot
and the delay on the part of the respondent in  making  the  payment  within
the stipulated time period. Thus, the explanation given  by  the  appellant-
Corporation has failed to satisfy the courts below as well as this Court  as
the  appellant-Corporation  had  continued  to  retain  the   total   amount
deposited by the respondent for  more  than  half  a  decade,  without  even
making an attempt to return  the  same  with  interest  to  the  respondent.
Further,  the  respondent  had   promptly   responded   to   the   newspaper
advertisement dated  27.04.2004,  published  by  the  appellant-Corporation,
asking the allottees of the plots  to  make  full  payment  along  with  the
interest in the office of the appellant-Corporation.





 Further, as has been rightly held by the Division Bench of the High  Court,
that the letter dated  14.11.2006  sent  by  the  appellant-Corporation  for
furnishing of  certain  documents  by  the  respondent,  to  facilitate  the
appellant-Corporation to hand over the possession of the plot to him,  would
also indicate  that  the  appellant-Corporation  had  condoned  the  delayed
payment of the cost of the plot on the part of the respondent  and  further,
there is no allegation  made  in  the  present  appeal  that  the  concerned
officer of the appellant-Corporation had colluded  with  the  respondent  or
acted in mala fide manner with a view to  favour  him  by  allowing  him  to
deposit the cost of the plot belatedly. In fact, the deposit of  the  amount
was made by the respondent pursuant to the opportunity given to him  by  the
extended time for depositing  the  amount  as  published  in  the  newspaper
advertisement.





 Thus, the fact that  the  respondent  had  paid  interest  on  the  delayed
payment to the account of the appellant-Corporation, which was  accepted  by
it and it did not take any action either against  its  officer  or  for  the
return of money to the respondent between the  period  2004-2008,  certainly
created equity in favour of the  respondent,  as  observed  by  the  learned
Single Judge and the  judgment  and  order  was  rightly  confirmed  by  the
Division Bench of the High Court.





The appellant-Corporation has failed to satisfy this Court with  cogent  and
reasonable explanation as to why the money paid by the  respondent  for  the
allotment of the plot was not returned to him by  the  appellant-Corporation
which has led him to believe that his delayed payment towards  the  cost  of
the allotted plot had been accepted by the appellant-Corporation.  Thus,  in
our considered view, there is no merit in the  above  contentions  urged  by
the  learned  counsel  on  behalf  of  the  appellant-Corporation  and   the
respondent has been wrongfully denied the benefit of allotment of the  plot.
Therefore, the quashing of the cancellation of  the  allotted  plot  by  the
High Court is legal and valid, the same does  not  warrant  interference  by
this Court.





Thus, we direct the appellant-Corporation to re-allot  the  plot  originally
allotted to the respondent, i.e.  Plot  No.57,  Pocket-I,  Sector-2,  Bawana
Industrial Area, Delhi, and if the same is  not  available,  an  alternative
plot, in the same Bawana Industrial Area or  any  other  proximate  area  be
allotted to him within a period of four weeks from the date  of  receipt  of
the copy of this order. The discretionary power  exercised  by  the  learned
single Judge of the High Court which is confirmed by the Division  Bench  of
the High Court need not be interfered with by this Court as no case is  made
out. The appeal is dismissed.



     .....................................................................J.
                                        [V. GOPALA GOWDA]



   .....................................................................J.
                              [N.V. RAMANA]


New Delhi,
January 21, 2015
-----------------------
[1]
       (2001) 1 SCALE 420


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