Delhi High Court
M/S Kalsi Finance Pvt. Ltd. vs D.D.A. on 8 January, 2025
Author: Dharmesh Sharma
Bench: Dharmesh Sharma
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 22 October 20241
Judgment pronounced on:08 January 2025
+ W.P. (C) 1444/2004
M/S KALSI FINANCE PVT. LTD. ..... Petitioner
Through: Mr. Rajiv Kumar Ghawana, Mr.
Ashish Choudhary & Mr.
Sachin Choudhary, Advs.
versus
D. D. A. ..... Respondent
Through: Ms. Chand Chopra & Ms.
Yogya Sharma, Advs.
CORAM:
HON'BLE MR. JUSTICE DHARMESH SHARMA
JUDGMENT
1. The petitioner firm is invoking the extra ordinary jurisdiction of
this Court under Articles 226 and 227 of the Constitution of India,
1950, seeking the issuance of an appropriate writ or direction for
quashing of the impugned order dated 07/13.10.2003, passed by the
His Excellency Lieutenant Governor/Director (Lands), and further
seeking quashing of the demand of the composition fee amounting to
Rs. 39,75,657/- in respect of Plot No. B-96/3, Naraina Industrial Area,
Phase-1, New Delhi (hereinafter referred as ‘the plot in question’).
The petitioner firm also seeks a direction requiring the respondent to
refund the amount of Rs. 3,54,302.65/-, which was wrongly charged
to the petitioner as an unearned increase.
1 Clarifications sought on 22.10.2024 and Judgment reserved.
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BRIEF FACTS
2. It is the case of the petitioner firm that it was originally
conducting its business at premises located at No. 119, Idgah, Motia
Khan, Delhi. However, the said premises was declared non-
confirming for industrial use as per MPD-19622. In light of this, the
DDA3, under the statutory scheme of Large-Scale Acquisition and
Disposal, offered the petitioner the plot in question in a confirming
area. At the time of the allotment, the petitioner firm was a part of M/s
Matchless Appliances (India), a partnership firm comprising of the
petitioner firm along with Sh. Harbans Singh, and Sh. Jaswant Rai
Saggi.
3. A demand letter dated 30.04.1969 was issued by the DDA,
informing the petitioner of the allotment and requiring payment of half
of the total premium for the plot in question. However, the allotment
was subsequently cancelled by the DDA through a letter dated
29.09.1970, citing the petitioner firm‟s failure to make the required
payment of the premium. The petitioner firm transitioned into a sole
proprietorship on 03.03.1971, and the petitioner firm sought
substitution of its status as a sole proprietor with the DDA well in
advance of taking possession of the plot in question. The petitioner
made the payment on 31.03.1971.
4. On 08.09.1971, the DDA informed the petitioner firm that the
request to transfer the allotment to M/s. Kalsi Finance Pvt. Ltd. would
be granted upon submission of an Indemnity Bond on a Rs. 10/- non-
2
Master Plan of Delhi, 1962
3
Delhi Development Authority
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judicial stamp paper. The petitioner firm promptly submitted the bond,
but the DDA unjustifiably delayed the transfer without an explanation.
5. The cancellation of the plot remained effective until 1977, as
evidenced by the respondent’s letters dated 01.10.1976 and
20.12.1976, wherein it was explicitly stated that the allotment had
been restored, subject to the payment of the restoration charges
amounting to Rs. 600/-. The petitioner firm duly paid the said
restoration charges on 28.02.1977 and the cancellation of the plot
remained in force until 28.02.1977, when the restoration charges were
paid. It is pertinent to note that the petitioner firm became aware of the
cancellation for the first time in 1976, despite having consistently
pursued the substitution of the allotment in favour of M/s. Kalsi
Finance Pvt. Ltd., as per the agreement dated 03.03.1971.
6. Disputes arose between the partners of the firm, which led to
the filing of Suit No. 31-A/1968 before this Court, and by order dated
19.10.1979, the disputes were settled, and the agreement dated
03.03.1971 was duly acknowledged.
7. During the allotment of the plot in question, the Urban Land
(Ceiling and Regulation) Act4 was in force, requiring the petitioner
firm to obtain an NOC5 from the competent authority under the ULCR
Act, prior to commencing any construction. Following the restoration
of the plot in question, the petitioner approached the authorities on
11.08.1980, seeking the necessary exemption under the law to proceed
with construction. The Under Secretary (ULCR), Delhi
4
ULCR Act
5
No Objection Certificate
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Administration, by letter dated 10.09.1980, directed the petitioner to
submit an attested copy of the title document i.e. the lease deed, as the
authorities were unable to grant the exemption without it, in
accordance with the requirements of the Act.
8. The DDA, despite being aware of the Agreement dated
03.03.1971 and this Court‟s order dated 19.10.1979, issued a letter on
26.05.1980 to the Under Secretary, Delhi, recognizing M/s. Kalsi
Finance Pvt. Ltd., Shri Harbans Singh and Shri Jaswant Rai Saggi as
partners in the firm, in proportion to their previous interests, which
was contrary to the Compromise Agreement of 03.03.1971 approved
by this Court’s order dated 19.10.1979, whereby the petitioner firm
had already become the sole proprietor of the firm effective from
03.03.1971.
9. The petitioner firm had been consistently pursuing the
execution of the Lease Deed with the DDA, recognizing necessary
changes, yet no Lease Deed has been executed till date. Despite the
repealing of the ULCR Act in 1999, due to the negligence of the DDA
the petitioner firm was forced to seek the lease deed and exemption
under the ULCR Act until its repealing. The period from 1980 to 1999
was entirely wasted due to the DDA’s inaction, leaving the petitioner
firm unable to construct on the plot without the required exemption
from the ULCR authorities.
10. The DDA raised a demand of Rs. 3,54,203.65/- for unearned
increase and interest based on a change in the firm’s constitution. The
petitioner firm paid the said amount to the DDA on 15.01.1999. Any
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formal recognition of M/s. Kalsi Finance Pvt. Ltd. as sole proprietor
should have been effective from 03.03.1971, without charging the
unearned increase, as the change occurred before the payment of any
premium and prior to the possession of the plot, duly communicated to
the DDA in March 1971. Despite this, the DDA only recognized the
firm‟s ownership on 14.03.2001 and subsequently, issued an arbitrary
demand of Rs. 39,75,657/- on 31.05.2001 as a composition fee for the
delay in constructing on the plot.
11. The petitioner firm requested DDA to execute the Lease Deed
in its favour and to grant an extension of time in carrying the
construction on the plot in question. On 14.03.2001, the DDA allowed
the substitution and recorded the plot in favour of the petitioner firm.
12. Aggrieved by DDA‟s actions, the petitioner firm filed a writ
petition before this Court and vide order dated 28.01.2003 the DDA
was directed to pass a reasoned order on the petitioner‟s representation
dated 01.04.2002, after considering all points raised in the personal
hearing and communicate it to the petitioner. In compliance, the
petitioner appeared before the Director (Lands), DDA, and explained
that the delay in construction was due to the DDA’s inaction in
executing the lease deed, and the ULCR authorities‟ failure to issue
the NOC. The absence of the lease deed, a prerequisite for the NOC,
prevented the petitioner firm from applying for sanctioning of the
plan, as the NOC from the ULCR authorities was mandatory. The
representation of the petitioner firm was rejected by the DDA vide the
order dated 07.10.2003. Hence, this writ.
SUBMISSIONS ADVANCED AT THE BAR: –
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13. It is contended by the learned counsel for the petitioner firm
that it is not liable to pay the composition charges, as the plot
allotment was cancelled on 29.09.1970 due to non-payment of the
premium and was restored on 27.02.1977 after payment of the
restoration fee. The petitioner firm notified the DDA of the firm’s
change in constitution via a letter dated 19.03.1971, but the DDA only
acted in 1999, demanding Rs. 3,54,203.65/-, which the petitioner firm
paid on 15.01.1999. It is further submitted that due to the DDA’s
failure to execute the lease deed, the petitioner could not obtain the
required NOC under the ULCR Act. Although the ULCR Act was
repealed in 1999, the change in the firm’s constitution was recognized
only on 14.03.2001. It is urged that the period from 1970 to 1977 is
also to be excluded, as the plot allotment was cancelled during that
time, preventing any construction. It is further urged that the delay
from 1980 to 1999 cannot be attributed to the petitioner firm, and this
period should also be excluded.
14. Reliance has been placed on a decision by this Court in
Hamdard (Wakf) Laboratories (India) v. DDA6, wherein it was
explicitly held that the period of granted exemptions must be
considered for determining the applicable slab year. Additionally, it
was held that the entire period consumed due to the proceedings under
the ULCR Act should be excluded when calculating any delay.
Furthermore, as the petition challenging the demand was pending, the
petitioner firm was entitled to an extension of time for completing the
building without the imposition of any compensation.
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15. It is also submitted that during the pendency of the present
matter, the DDA increased the demand for composition charges to Rs.
21,29,82,698/- in 2010, which exceeds the current market value of the
plot in question and is in stark contradiction to the decision of this
Court in Hamdard (Wakf) Laboratories (India) (Supra), where it was
held that time consumed in litigation cannot be counted for levying
composition charges. Furthermore, under the new policy, the demand
for composition charges cannot exceed 50% of the market value of the
plot.
16. Per contra, it is submitted by the learned Counsel for the DDA
that it was on 24.07.1980, the petitioner firm for the first time
informed the DDA that by way of the order dated 19.10.1979, that the
disputes between the partners of the firm was settled. It is further
stated at the Bar that on 19.03.2001, a request was made by the
petitioner firm for the extension of time for construction till
30.06.2001, wherein the petitioner firm prayed that the date of
possession, only for the purpose of belated construction be considered
as 26.04.1999.
17. It is submitted that the petitioner firm has suppressed material
facts. The petitioner firm intentionally concealed that the DDA had
sent multiple communications requesting the submission of essential
documents, such as the Clearance Certificate, MCD7 License, and
registered Release Deeds, to process the application and execute the
Lease Deed. Despite these requests, the petitioner firm failed to
6
W.P. (C) 7372/2002
7
Municipal Corporation of Delhi
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respond. Letters were sent on 13.06.1973, 04.02.1974, 09.09.1974,
05.12.1974, 18.07.1975, and 20.09.1975, with the petitioner firm only
providing the required documents in 1977. These communications are
relevant for proper adjudication of this petition, yet the petitioner firm
has intentionally withheld them in both the petition and oral
submissions before the Court. Additionally, the petitioner firm has
failed to submit the Terms and Conditions under which the Industrial
Plot was allotted.
18. Learned counsel for the DDA also pointed out that via a letter
dated 21.06.1981, it requested the petitioner firm to deposit the full
premium amount along with the interest accrued due to the delayed
payment. However, the petitioner firm responded by expressing
willingness to pay the demanded premium with interest, but only
based on the 1971-72 rates. It is submitted that determining the
applicable premium rates is a policy matter, and the petitioner firm
cannot unilaterally decide the rates as per its own preferences.
19. It is argued that the DDA is well within its right to charge
Unearned Increase Charges8 from the petitioner firm. It is submitted
that the demand for UEI charges amounting to Rs. 3,54,203.65/- is
valid and in accordance with the terms agreed upon by the petitioner
firm. These terms clearly state that, in the event of a transfer, 50% of
the unearned increase in the plot’s value at the time of transfer is
payable to the DDA. The UEI charges were imposed due to a change
in the constitution of the petitioner firm, in line with the UEI Policy. It
is further submitted that the law governing the DDA’s authority to
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levy UEI charges in cases of transfer, sale, or any other parting with
possession is well established. Reliance is placed on the decision in
DDA v. Nalwa Sons9. It is submitted that in this case, the initial
allotment was made to the partnership firm, M/s Matchless Appliances
(I), which had three partners. Several years after the allotment, a
change in the firm’s constitution occurred, and a transfer was
requested in favour of the petitioner firm. Therefore, the DDA was
fully entitled to impose UEI charges. Consequently, the DDA is not
obligated to refund the UEI charges that were levied and paid by the
petitioner.
20. Lastly, it is submitted by the learned counsel for the DDA that
the petitioner firm not only failed to pay the required amounts for
Composition Charges and UEI but also did not provide the necessary
documents to execute the Lease Deed. Despite repeated demands from
1973 to 1977, the petitioner firm failed to submit the requisite
documents, only doing so in 1977. In a letter dated 21.06.1981, the
DDA requested the petitioner firm to expedite the transfer application
by providing a copy of the Partnership Deed dated 23.08.1963 and the
Supplementary Agreement dated 14.10.1967, both of which had a
reference in the Agreement dated 03.03.1971. However, the petitioner
firm took three years to submit these documents, finally doing so
between 1984 and 1987. Based on the documents provided, the plot
was mutated in the name of M/s Matchless Appliances (I), with M/s
Kalsi Finance Pvt. Ltd. recorded as the sole proprietor, as confirmed
8
UEI Charges
9
(2020) 17 SCC 782
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in a letter dated 14.03.2001. Until the petitioner clears its dues and
submits all required documents, the Lease Deed cannot be executed in
its favour.
ANALYSIS & DECISION:
21. I have bestowed my thoughtful consideration to the submissions
advanced by learned counsels for the rival parties at the Bar
meticulously perused the record.
22. At the outset, while there is no denying the fact that the
respondent/DDA, is not free from blame, it is the petitioner firm that
is caught on the wrong foot, as there have been numerous blemishes
in pursuing its legal remedies. This is exemplified by the fact that the
plot in question was admittedly allotted on 30.04.1969 in the name of
M/s. Matchless Appliances (I), a partnership firm in which the
petitioner firm, i.e., M/s. Kalsi Finance Pvt. Ltd., was a partner along
with Shri Harbans Singh and Shri Jaswant Rai Saggi. It is also an
admitted fact that, since the allottee form failed to make payment of
the premium within the stipulated time as per the allotment letter, the
allotment was cancelled on 17.08.1970.
23. Although the petitioner firm denies ever receiving any notice of
cancellation of the allotment, it is manifest that there were internal
wranglings within the allottee firm. The petitioner firm intimated the
DDA on 19.04.1971 that a dispute had arisen between its partners,
preventing the operation of the allottee firm‟s account.
Simultaneously, it was informed that petitioner firm had become the
sole proprietor of the allottee firm pursuant to an agreement dated
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03.03.1971, based on which the transfer of the allotment was sought
in the name of the petitioner firm.
24. It also appears that, despite the cancellation of the allotment
vide letter dated 17.08.1970, the possession of the plot in question was
admittedly handed over to M/s. Matchless Appliances (I), and a
possession letter was issued in favour of the allottee firm on
12.05.1971. Furthermore, even according to the DDA‟s own
admissions, payment of Rs. 7,000/- was made towards the premium of
the plot in question on 08.09.1971.Upon such payment, an Indemnity
Bond, as demanded by the DDA, was submitted on a non-judicial
stamp paper for the substitution of the allotment in the name of the
petitioner as proprietor of M/s. Matchless Appliances (I).
25. But that is not the end of the matter, rather, it marks the
beginning of the unsavoury narrative of the instant matter. It appears
that multiple reminders were sent by the DDA to the allottee firm,
requesting the submission of a clearance certificate on 13.06.1973
and, later, an MCD License existing as of 20.12.1965, vide letter dated
05.12.1974. If the case of DDA is to be believed, the non-submission
of these documents resulted in a delay in the substitution/change of
the name of the allottee firm in favour of the petitioner firm. Be that
as it may, it is evident, and admitted by the DDA, that restoration
charges of Rs. 600/- were paid by the petitioner firm to the DDA on
28.02.1977 towards the allotment of the subject plot.
26. While the petitioner firm blames the DDA entirely for the
delay in execution of the lease deed, it conveniently avoids
mentioning that the petitioner firm and the erstwhile partners were
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engaged in a legal battle.It is borne out from the record that the
outgoing partners sent a letter dated 05.03.1977 to the DDA, apprising
it that the agreement dated 03.03.1971, submitted by the petitioner
firm as the sole proprietor of the allottee firm, was fabricated and
requesting that no action be taken on the transfer application. This
was followed by another letter dated 07.04.1978, in which the
outgoing partners requested that the plot in question not be mutated in
favour of the petitioner firm‟s name and informed the DDA about the
order dated 28.02.1978 passed by the High Court, which set aside the
Award passed by the Arbitrator in favour of the petitioner firm. The
request was reiterated vide another letter dated 26.12.1978.
27. In light of the order dated 28.02.1978 passed by this Court, the
DDA recognized all three partners as parties in the same proportion
as their interests in the allottee firm qua the plot in question. It is also
then borne out from the record that the petitioner firm informed the
DDA about a settlement arrived at between the disputing parties, vide
order dated 19.10.1978 in Execution Petition No. 56/68 on an
application under Order XXIII Rule 3 of the Code of Civil Procedure,
1908 [“CPC“], whereby inter alia the earlier agreement dated
03.03.1971 executed between the varying parties/partners was
recognized. It is also an admitted fact that the registered release deeds
by the outgoing partners of the allottee firm were ultimately submitted
by the petitioner firm to the DDA only on 31.08.1982 on demand by
the DDA.
28. In view of the aforesaid factual narrative, a legal inference can
be drawn to the effect that on submission of registered release deeds
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on 31.08.1982, a legal right accrued in favour of the petitioner firm,
not only to have the allotment letter transferred/modified to
acknowledge it as the rightful allottee but also to seek execution of the
lease deed by the DDA. It is pleaded by the petitioner firm that the
requisite „NOC‟ under the ULCR Act was required for the plot size
exceeding 500 sq. mts., which could not be obtained due to the lack
of an executed registered lease deed, as referenced in the letter from
the Under Secretary (ULCR) dated 10.09.1980. However, of the case
of the petitioner firm is to be believed, all other relevant documents
were submitted between 1984 and 1987 (although the same are not
placed on the record), and the DDA did not execute the lease deed in
its favour and eventually, the ULCR Act was repealed in the year
1999.
29. What turns the table against the petitioner firm is the stark
silence regarding the steps it had taken from 31.08.1982, i.e., the date
on which the registered release deeds by the outgoing partners were
submitted to the DDA, until the repeal of the ULCR Act. The bottom
line is that if the „no objection‟ did not materialize due to the non-
execution of the lease deed by the DDA in favour of the petitioner
firm, why did the petitioner firm remains passive over its legal rights
and not resort to any legal action? A bald assertion is made that the
petitioner firm kept writing to the DDA to execute the lease deed in
its favour without placing any iota of documentary evidence in that
regard.
30. There is no gain saying that the period from the date of
allotment of the plot in question, 30.04.1969, util a decision was made
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by the High Court in the pending dispute between the parties vide
order dated 19.10.1979, was wasted and inconsequential due to the
fault of the petitioner and the erstwhile partners, for which no blame
or delay could be attributed to the DDA.
31. At the cost of repetition, no worthwhile steps appear to have
been taken to seek an „NOC‟ under the ULCR Act, except for making
bald assertions. Be that as it may, there is a twist in the story, as it
appears that the DDA too emerged from its slumber and decided to
accede to the request for the transfer and mutation of the plot in
question in favour of M/s. Matchless Appliances (I) and the petitioner
as the sole proprietor of M/s. Matchless Appliances (I), in terms of
letter dated 14..03.2001.
32. It is also borne out from the record that the petitioner firm in
terms of a letter dated 19.03.2001, requested permission to continue
construction at the site until 30.06.2001 and, inter alia, prayed that the
date of possession for the purpose of belated construction be
considered as 24.06.1993. It would be relevant to reproduce the
request letter for grant of extension by the petitioner, which goes as
under:
“Dt. 19.3.2001
The Director (Lands),
D.D.A. Vikas Sadan,
New Delhi.
SUB: REQUEST FOR GRANT OF EXTENSION OF TIME
TILL 30.6.2001YOUR REFERENCE:- F6A(369) 67-LSB(I)
Dear Sir,
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In continuation with our letter dt. 14.3.2001, you are requested to
kindly account for the following facts before arriving at the penalty
for the belated construction.
1. The out going partners namely Harbans Singh & Jaswant Rai
revoked their agreement dated 3.3.1971 & the same had to be
ratified by the High Court in their judgment of October 1979. The
DDA accepted the above partners vide their letter dt. 26.5.1980
issued by Mr. B. Chakravarty DD (C). The release deed by these
out going partners could eventually materialise on 6.4.1981.
2. Our application under U LCA or ULCR could not bear any
fruits for want of Lease Deed for execution of which we prayed on
24.7.80 & the same has been duly recorded in DDA receipt No.
23001 dated 25,7.1980.
3. Mr. Diwan Chand Kalsi the Managing Director of Kalsi Finance
(P) Ltd., the sole Prop. pf Matchless Appliances (I), died on
24.12.1982.
4. After the filing of release deed on 26.4.1981, DDA took twelve
years to arrive at the Demand Note 1853 dt. 20.4.1993 for
Rs.3,54,204,00.
5. As If the above tragedies were not enough; we lost our dear
youngest brother Mr. Ashok Kalsi S/o Mr. Diwan Chand Kalsi a
share holder with 50 shares of Kalsi Finance (P) Ltd., on 6.1.2000
after a prolonged terminal bone cancer detected in 1998 also
reconfirmed by Tata Memorial Cancer Hospital,. Bombay in 1998
itself. Ours is a joint family now in its third generation and we
continue to live together till date in H-30, Green Park Extension,
New Delhi. You can imagine our grief in the above circumstances.
It is, therefore, prayed that the date of possession only for
the purpose of belated construction may be considered as
26.4.1993. This kind of practise has also been adopted in the past
for several deserving cases like ours. This benevolent act of yours
would not only serve as a fitting tribute to the endless harassments
experiences by us but will also meet justice in the end.
Thanking you, we remain,
Yours faithfully,
for Matchless Appliances (I),
Prop. Kalsi Finance (PP) Ltd.,
Sd/-
(BADRI NATH KALSI)
Director
CC:- Deputy Director (Land)
DDA, Vikas Sadan, New Delhi.
CC:- The Receiving Officer,
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DDA, Vikas Sadan.”
33. A bare perusal of the aforesaid letter would show that the
petitioner acknowledged a delay on its part, as it was unable to submit
release deeds by the outgoing partners, which could only be
materialized on 06.04.1981. It indicates that a request was made for
execution of the lease deed on 24.07.1980, and a weak excuse is given
that the DDA took 12 years to issue a demand note dated 20.04.1993,
whereby a sum of Rs. 3,54,204/- was demanded and was subsequently
paid by the petitioner firm.
34. What is clearly unpalatable and not explained is what the
petitioner had been doing since 1980 or, for that matter, after the
submission of registered release deeds on 31.08.1982, if it truly
intended to commence construction on the plot in question and
commence its business. It is manifest that there was complete inaction
on its part. Even assuming, for the sake of convenience, that the
ULCR Act was an impediment to raising construction on the plot in
question, there is still no demonstrated sincerity in proceeding with
construction after the repeal of the ULCR Act until the submission of
letter dated 19.03.2001.
35. The aforesaid discussion fortifies the initial observation of this
Court that although the DDA is not free of blemishes, inasmuch as it
finally woke up and acceded to the request for the transfer and
mutation of the plot in question in favour of the petitioner firm vide
letter dated 14.03.2001. Anyhow, the plea of the petitioner that the
long delay is solely attributable to the DDA, right from the date of the
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allotment of the plot in question on 30.04.1969, cannot be sustained.
Therefore, the unexplained delay and laches on the part of the
petitioner firm in espousing its legal right, if any, qua the plot in
question, itself nonsuits the petitioner firm in the present writ petition.
36. In arriving at such view, this Court is fortified by the decision
of the Supreme Court in the case of M/s Godrej Sara Lee Ltd. v.
Excise and Taxation Officer-cum-Assessing Authority10, wherein
delving into the issue of exercise of writ jurisdiction conferred under
Article 226 of the Constitution of India, 1950, it was held as under:-
“4. Before answering the questions, we feel the urge to say a few
words on the exercise of writ powers conferred by Article 226 of
the Constitution having come across certain orders passed by the
high courts holding writ petitions as “not maintainable” merely
because the alternative remedy provided by the relevant statutes
has not been pursued by the parties desirous of invocation of the
writ jurisdiction. The power to issue prerogative writs under
Article 226 is plenary in nature. Any limitation on the exercise of
such power must be traceable in the Constitution itself. Profitable
reference in this regard may be made to Article 329 and
ordainments of other similarly worded articles in the Constitution.
Article 226 does not, in terms, impose any limitation or restraint on
the exercise of power to issue writs. While it is true that exercise of
writ powers despite availability of a remedy under the very statute
which has been invoked and has given rise to the action impugned
in the writ petition ought not to be made in a routine manner, yet,
the mere fact that the petitioner before the high court, in a given
case, has not pursued the alternative remedy available to him/it
cannot mechanically be construed as a ground for its dismissal. It is
axiomatic that the high courts (bearing in mind the facts of each
particular case) have a discretion whether to entertain a writ
petition or not. One of the self-imposed restrictions on the exercise
of power under Article 226 that has evolved through judicial
precedents is that the High Courts should normally not entertain a
writ petition, where an effective and efficacious alternative remedy
is available. At the same time, it must be remembered that mere
availability of an alternative remedy of appeal or revision, which10 2023 SCC OnLine SC 95
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the party invoking the jurisdiction of the high court under Article
226 has not pursued, would not oust the jurisdiction of the high
court and render a writ petition “not maintainable”. In a long line
of decisions, this Court has made it clear that availability of an
alternative remedy does not operate as an absolute bar to the
“maintainability” of a writ petition and that the rule, which requires
a party to pursue the alternative remedy provided by a statute, is a
rule of policy, convenience and discretion rather than a rule of law.
Though elementary, it needs to be restated that “entertainability”
and “maintainability” of a writ petition are distinct concepts. The
fine but real distinction between the two ought not to be lost sight
of. The objection as to “maintainability” goes to the root of the
matter and if such objection were found to be of substance, the
courts would be rendered incapable of even receiving the lis for
adjudication. On the other hand, the question of “entertainability”
is entirely within the realm of discretion of the high courts, writ
remedy being discretionary. A writ petition despite being
maintainable may not be entertained by a high court for very many
reasons or relief could even be refused to the petitioner, despite
setting up a sound legal point, if grant of the claimed relief would
not further public interest. Hence, dismissal of a writ petition by a
high court on the ground that the petitioner has not availed the
alternative remedy without, however, examining whether an
exceptional case has been made out for such entertainment would
not be proper.
37. In another case decided by the Supreme Court titled Mrinmoy
Maity v. Chhanda Koley11 on the same subject, it was held as under:-
“11. For filing of a writ petition, there is no doubt that no fixed
period of limitation is prescribed. However, when the extraordinary
jurisdiction of the writ court is invoked, it has to be seen as to
whether within a reasonable time same has been invoked and even
submitting of memorials would not revive the dead cause of action
or resurrect the cause of action which has had a natural death. In
such circumstances on the ground of delay and latches alone, the
appeal ought to be dismissed or the applicant ought to be non-
suited. If it is found that the writ petitioner is guilty of delay and
latches, the High Court ought to dismiss the petition on that sole
ground itself, in as much as the writ courts are not to indulge in
permitting such indolent litigant to take advantage of his own
wrong. It is true that there cannot be any waiver of fundamental11 2024 SCC OnLine SC 551
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right but while exercising discretionary jurisdiction under Article
226, the High Court will have to necessarily take into consideration
the delay and latches on the part of the applicant in approaching a
writ court. This Court in the case of Tridip Kumar Dingal v. State
of W.B., (2009) 1 SCC 768 has held to the following effect:
“56. We are unable to uphold the contention. It is no doubt true
that there can be no waiver of fundamental right. But while
exercising discretionary jurisdiction under Articles 32, 226, 227 or
136 of the Constitution, this Court takes into account certain
factors and one of such considerations is delay and laches on the
part of the applicant in approaching a writ court. It is well settled
that power to issue a writ is discretionary. One of the grounds for
refusing reliefs under Article 32 or 226 of the Constitution is that
the petitioner is guilty of delay and laches.
57. If the petitioner wants to invoke jurisdiction of a writ court,
he should come to the Court at the earliest reasonably possible
opportunity. Inordinate delay in making the motion for a writ will
indeed be a good ground for refusing to exercise such discretionary
jurisdiction. The underlying object of this principle is not to
encourage agitation of stale claims and exhume matters which have
already been disposed of or settled or where the rights of third
parties have accrued in the meantime (vide State of M.P. v. Bhailal
Bhai, [AIR 1964 SC 1006 : (1964) 6 SCR 261], Moon Mills Ltd. v.
Industrial Court, [AIR 1967 SC 1450] and Bhoop Singh v. Union
of India, [(1992) 3 SCC 136 : (1992) 21 ATC 675 : (1992) 2 SCR
969]). This principle applies even in case of an infringement of
fundamental right (vide Tilokchand Motichand v. H.B. Munshi,
[(1969) 1 SCC 110], Durga Prashad v. Chief Controller of Imports
& Exports, [(1969) 1 SCC 185] and Rabindranath Bose v. Union of
India, [(1970) 1 SCC 84]).
58. There is no upper limit and there is no lower limit as to
when a person can approach a court. The question is one of
discretion and has to be decided on the basis of facts before the
court depending on and varying from case to case. It will depend
upon what the breach of fundamental right and the remedy claimed
are and when and how the delay arose.”
12. It is apposite to take note of the dicta laid down by this Court in
Karnataka Power Corportion Ltd. v. K. Thangappan, (2006) 4
SCC 322 whereunder it has been held that the High Court may
refuse to exercise extraordinary jurisdiction if there is negligence
or omissions on the part of the applicant to assert his right. It has
been further held thereunder:
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powers under Article 226 of the Constitution. In an appropriate
case the High Court may refuse to invoke its extraordinary powers
if there is such negligence or omission on the part of the applicant
to assert his right as taken in conjunction with the lapse of time and
other circumstances, causes prejudice to the opposite party. Even
where fundamental right is involved the matter is still within the
discretion of the Court as pointed out in Durga Prashad v. Chief
Controller of Imports and Exports, [(1969) 1 SCC 185 : AIR 1970
SC 769]. Of course, the discretion has to be exercised judicially
and reasonably.
7. What was stated in this regard by Sir Barnes Peacock in
Lindsay Petroleum Co. v. Prosper Armstrong Hurd, [[L.R.] 5 P.C.
221 : 22 WR 492] (PC at p. 239) was approved by this Court in
Moon Mills Ltd. v. M.R. Meher, [AIR 1967 SC 1450] and
Maharashtra SRTC v. Shri Balwant Regular Motor Service,
[(1969) 1 SCR 808 : AIR 1969 SC 329]. Sir Barnes had stated:
“Now, the doctrine of laches in courts of equity is not an arbitrary
or a technical doctrine. Where it would be practically unjust to give
a remedy either because the party has, by his conduct done that
which might fairly be regarded as equivalent to a waiver of it, or
where by his conduct and neglect he has though perhaps not
waiving that remedy, yet put the other party in a situation in which
it would not be reasonable to place him if the remedy were
afterwards to be asserted, in either of these cases, lapse of time and
delay are most material. But in every case, if an argument against
relief, which otherwise would be just, is founded upon mere delay,
that delay of course not amounting to a bar by any statute of
limitation, the validity of that defence must be tried upon principles
substantially equitable. Two circumstances always important in
such cases are, the length of the delay and the nature of the acts
done during the interval which might affect either party and cause a
balance of justice or injustice in taking the one course or the other,
so far as it relates to the remedy.”
8. It would be appropriate to note certain decisions of this Court in
which this aspect has been dealt with in relation to Article 32 of the
Constitution. It is apparent that what has been stated as regards that
article would apply, a fortiori, to Article 226. It was observed in
Rabindranath Bose v. Union of India, [(1970) 1 SCC 84 : AIR
1970 SC 470] that no relief can be given to the petitioner who
without any reasonable explanation approaches this Court under
Article 32 after inordinate delay. It was stated that though Article
32 is itself a guaranteed right, it does not follow from this that it
was the intention of the Constitution-makers that this Court should
disregard all principles and grant relief in petitions filed after
inordinate delay.
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9. It was stated in State of M.P. v. Nandlal Jaiswal, [(1986) 4 SCC
566 : AIR 1987 SC 251] that the High Court in exercise of its
discretion does not ordinarily assist the tardy and the indolent or
the acquiescent and the lethargic. If there is inordinate delay on the
part of the petitioner and such delay is not satisfactorily explained,
the High Court may decline to intervene and grant relief in exercise
of its writ jurisdiction. It was stated that this rule is premised on a
number of factors. The High Court does not ordinarily permit a
belated resort to the extraordinary remedy because it is likely to
cause confusion and public inconvenience and bring, in its train
new injustices, and if writ jurisdiction is exercised after
unreasonable delay, it may have the effect of inflicting not only
hardship and inconvenience but also injustice on third parties. It
was pointed out that when writ jurisdiction is invoked, unexplained
delay coupled with the creation of third-party rights in the
meantime is an important factor which also weighs with the High
Court in deciding whether or not to exercise such jurisdiction.”
38. That brings us to the impugned order dated 07/13.10.2003
raising demand of composition fee of Rs. 39,75,657/-. It would be
expedient to reproduce the relevant operative portion of the order
passed by the Competent Authority, which goes as under:
“DELHI DEVELOPMENT AUTHORITY
OFFICE OF THE DIRECTOR (LANDS)
ORDER
CWP No. 212/2003 was disposed of by the Hon’ble High
Court vide its order dated 28.01.03 thereby directing that the case
of petitioner considered on the basis of the representation be dt.
01.04.02. The order of the Hon’ble High Court is reproduced
below:-
“The petitioner to appear before the Director (Lands) DDA
to explain its 01.04.02 representation at 3.00 P.M. and reasoned
order dt. shall thereafter be passed by the Competent Authority
taken all he points into consideration as set in the representation dt.
01.04.02 and by out elucidated the petitioner in its personal
hearing. reasoned petitioner order shall within be communicated
period of two to The the months thereafter. Needless to mention in
the case petitioner is aggrieved by the said decision, will be open to
the petitioner to impugn the the it same in accordance with law.
In pursuance of the above order the petitioner appeared
before the Director (Lands), Vikas Sadan, on 03.02.03 and sought
further time, which (Lands). was granted upto 25.02.03 by theSignature Not Verified
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Director Again the petitioner sought time on25.02.03 and the same
was granted upto 06.03.03. The petitioner appeared on 06.03.03
and submitted the representation.
After the undersigned joined as Director (Lands) the
petitioner again appeared in the public hearing of the undersigned
and submitted the copy of the representation dt. 06.03.02. On the
basis of the said representation the petitioner was called in the
office of the undersigned on 18.07.03 vide letter dt. 07.07.03. The
petitioner appeared before the undersigned 18.07.03 and explained
the case.
The representation of petitioner was thoroughly examined
keeping in view the above above order of the Court and the record
maintained by the Department and Submitted the file to the
Competent Authority for final consideration and the orders.
The Hon’ble L.G. Delhi has re-considered the matter and
rejected the claim of the petitioner view of the following
observations:-
“The petition dt. 01.04.02 makes the contention that
unearned increase is not in his case as DDA had been informed
about the change constitution of the firm before the premium of the
plot was paid.
The competent Authority has examined the facts of the case
and have come to the conclusion that mere intimation to DDA
about the change in constitution does not suffice as there was a
dispute since 1968 between M/s. Kalsi Finance Pvt. Ltd. and two
partners Sh. Harbans Singh and Sh. Jaswant Rai Saggi. The case
has been referred to an arbitrator, who gave his award in the year
1975. This award was disputed by Sh. Harbans Singh and Sh.
Jaswant Rai Saggi in the High Court. The matter was decided by
the High Court on 28.02.78. In view of this the original application
given in the year agreement attached with its became invalid. A
fresh application for change in constitution was made on 24.07.80.
The deed of Sh. Harbans Sing and Sh. Jaswant Rai Saggi, duly
registered was received in DDA, on 17.01.81, wherein they
released their shares in favour of M/s. Kalsi Finance Ltd. Pvt.
In sum and substance the dispute between the parties was
settled only in the year 1978 and the application for change in
constitution of the firm shall be deemed to be made only in the
year 1980 when the premium of the plot was paid and handed over
to the petitioner. In view of this the Competent Authority did not
any merit in the pleas of the petitioner for not charging the
unearned increased by DDA.
The contention of the petitioner before Director (Lands) for
not charging the composition charges for delayed construction of
the allottee plot has been examined. M/s. Kalsi Finance Pvt. Ltd.
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was a partner of M/s. Matchless Appliance India with tow
additional partners. Even after these partners left M/s. Matchless
Appliances India, the firm subsisted as and entity and could have
constructed on the allotted if it had to desired. The Competent
Authority did not see any case for exemption from payment of
composition fee. As for granting further extension of time, it can be
granted, but the firm will have to make payment of composition
fee for the entire period”
Thus the petitioner is liable to make the payment of
composition fee for the entire period.
Sd/-
(ASMA MANZAR)
DIRECTOR (LANDS)”
39. In view of the blemishes galore on the part of the petitioner
firm, the aforesaid position of the DDA cannot be assailed in any
manner. The erstwhile firm, during the allotment of the plot in
question was a partnership firm, and as per the decision in the case of
DDA v. Nalwa sons(supra), it is categorical that 50% unearned
increase will be charged in respect of proportionate shares of the plot
parted with by way of addition, deletion or substitution of
partner/partners in the case of a single ownership or partnership firm
and Director/Directors/Shareholders/Sub scribers in case of a private
limited company. This is applicable where the incoming persons do
not fall within the definition of family. Unearned increase would be
charged on the basis of market rate prevalent on the date of intimation
for each and every change in the constitution. This would be
applicable in all cases where the lease deed has been executed or not.
40. In view of the foregoing discussion, this Court finds that the
petitioner firm cannot be granted any relief in the present writ petition.
The petitioner firm is liable to pay composition charges in accordance
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with the relevant rules, failing which the respondent/DDA shall be at
liberty to proceed in accordance with the law.
41. Resultantly, the present writ petition is dismissed.
DHARMESH SHARMA, J.
JANUARY 08, 2025
Sadiq/Ch
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