Delhi High Court
Shyam Sundar Sethi vs Delhi Development Authority & Anr. on 8 January, 2025
Author: Dharmesh Sharma
Bench: Dharmesh Sharma
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order reserved on : 05 November 2024
Order pronounced on: 08 January 2025
+ W.P.(C) 10299/2023
SHYAM SUNDER SETHI .....Petitioner
Through: Mr. Jatan Singh, Mr. Siddharth
Singh, Mr. Tushar Lamba and
Ms. Sonia A. Menon, Advs.
versus
DELHI DEVELOPMENT AUTHORITY & ANR.
.....Respondents
Through: Mr. Anish Dhingra and Mr.
Nakul Ahuja, Advs. for R-1/
DDA
CORAM:
HON'BLE MR. JUSTICE DHARMESH SHARMA
ORDER
REVIEW PET. 408/2024 (For review of order dated 09.09.2024)
1. This order shall decide the application moved by the
applicant/petitioner Shyam Sunder Sethi (hereinafter referred as ‘the
applicant’) under Order XLVII Rule 1 read with Section 114 of the
Code of Civil Procedure, 1908 [“CPC“], thereby seeking review and
recall of the Judgment dated 09.09.2024 passed by this Court in
W.P.(C) 10299/2023 titled as „Shyam Sunder Sethi v. Delhi
Development Authority & Anr‟.
FACTUAL BACKGROUND:
2. Briefly stated, the applicant invoked the writ jurisdiction of this
Court under Article 226 of the Constitution of India, 1950 seeking to
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set-aside/quash the impugned order dated 19.05.2023 passed by the
respondent/DDA1 (hereinafter referred as ‘the DDA’) on his
representation dated 27.05.2022 whereby his application for allotment
of Plot bearing No. 1095, Block C-4, Sector-34, Rohini, Delhi
(hereinafter referred as ‘the subject plot’) was rejected.
3. Shorn of unnecessary details, the applicant applied for allotment
of flat under the MIG2 category in the Housing New Registration
Scheme, 1976 and deposited a sum of Rs. 7,500/-. Subsequently, his
registration was transferred on 20.04.1981 for allotment of flat in MIG
category under Rohini Residential Scheme, 1981 [“RRS, 1981”].
4. It is the case of the applicant that irked over the fact that he had
been waiting for a decade for allotment of any MIG flat, he submitted
a request to cancel the registration in his favour vide letter dated
24.06.1991, simultaneously also requesting for refund of the amount
of Rs. 7500/- deposited. It is the case of the applicant that he did not
receive any response from the DDA, and therefore, on 04.01.2004 he
submitted a request for withdrawal of his earlier application for
cancellation of registration. There came about an interesting twist to
the story when the applicant discovered that his name figured in the
draw of lots conducted by the DDA on 12.06.2012, whereby the
subject plot of land was allotted to him, and his grievance was that he
was not issued any demand-cum-allotment letter.
5. As no response was received by the DDA despite serving legal
notice dated 26.03.2022, the petitioner approached this Court in W.P.
1 Delhi Development Authority
2 Middle Income Group
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(C) 8489/2022, which was disposed of vide order dated 27.05.2022,
thereby directing the DDA to consider the writ petition as a
representation and decide the same. Eventually, the representation was
dismissed vide impugned order dated 19.05.2023 and the writ petition
preferred by the applicant came to be dismissed by this Court vide
impugned judgment dated 09.09.2024, which is sought to be
recalled/revoked.
6. It would be relevant to extract the operative portion of the
judgment, which goes as under:
“13. At the outset, this Court unhesitatingly finds that the
petitioner cannot claim any vested legal right to seek the allotment
of the plot in question based on the draw of lots carried out on
12.06.2012. Once the petitioner had voluntarily sought the
cancellation of his registration through application dated
24.06.1991 and had returned the original FDR No. 24931 dated
20.04.1981, the registration did not remain alive, as it had been
accepted by the competent authority in terms of letter dated
17.09.1991. The petitioner does not deny receiving the letter dated
17.09.1991. It manifestly appears that he sat over his legal rights
for a very long time and did not address any further communication
for refund of the amount deposited. It appears that after more than
13 years, he claimed to have sent a letter dated 14.01.2004,
requesting to withdraw his earlier cancellation request made via
letter dated 24.06.1991. Interestingly, the receipt of the request
letter dated 04.01.2004 for withdrawal of his cancellation
application has not been acknowledged by the respondent No.1.
There is no postal receipt on record to prove that the letter dated
14.01.2004 was dispatched or served upon the respondent. Be that
as it may, the petitioner evidently sought to revive his claim after
13 years and then, once again remained inactive until he discovered
his name in the draw of lots conducted by the respondent No.1 on
12.06.2012. The mere fact that there was mistake on the part of the
respondent No.1, in that they had not updated their records and
therefore included the petitioner‟s name in the draw of lots, does
not confer a legal right upon the petitioner to seek the allotment of
a plot. The bottom line is that the petitioner was not entitled to be
considered for the draw of lots in the first place. The delay and
laches on the part of the petitioner speaks for itself. Indeed, theSignature Not Verified
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conduct of the respondent No.1 is also not without blemish, as the
refund was not sent but then there is no denial by the petitioner that
he had received the letter dated 17.09.1991, calling upon him to
submit the documents for the refund.
14. At the cost of repetition, the petitioner sat over his legal
rights for a very long time and in such a scenario, it was not
incumbent upon the respondent No.1 to entertain any stale claims.
The petitioner has opted to come to the Court on his own leisure or
pleasure and if such a claim is entertained, it would cause palpable
injury to the other rightful claimants who stood by the time and
complied with the relevant formalities for allotment of plot with
some alacrity. In the end, the draw of lots carried out on
12.06.2012 was subject to the fulfilment of all the primary terms
and conditions that the registration was alive, which was not and it
is but clear that the petitioner has become wiser with the times and
his mere attempt is to indulge in profiteering on account of genuine
mistake made by the respondent No.1 for want of updation of their
records. The draw of lots was not conducted with due diligence and
based on inaccurate data/record. It is manifested that the petitioner
has not acted in good faith. It is well settled that estopple is a legal
principle that prevents someone from denying or asserting
something contrary to what they have previously stated or agreed
upon. However, if there is found a fundamental mistake on account
error of fact or misconception going to the root of the matter,
making it invalid, inequitable or unenforceable, the principle of
estoppel does not apply.
15. At this juncture, it would be relevant to refer to a recent
decision of the Supreme Court in the case of Yamuna Expressway
Industrial Development Authority vs Shakuntala Education &
Welfare Society [2022 SCC OnLine SC 655], wherein the High
Court of Allahabad had ruled in favour of respondent educational
society, which had challenged the policy decision of the State
government that called upon it to pay the additional amount of
premium for allotment of the subject land on account of increased
compensation that became payable to the farmers whose land had
been acquired by the Authority, which amount demanded was not
earlier envisaged as per the terms & conditions of the contract of
allotment except “for the clerical error or miscalculation”. In the
said backdrop, rejecting the plea of promissory estoppel against the
Authority, and setting aside the decision by the High Court, inter
alia it was observed:
“It has been held by this Court that the doctrine of
promissory estoppel cannot be invoked in the abstract and
the courts are bound to consider all aspects including the
results sought to be achieved and the public good at large.
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It has been held that while considering the applicability of
the doctrine, the courts have to do equity and the
fundamental principles of equity must for ever be present
to the mind of the court, while considering the
applicability of the doctrine. It has been held that the
doctrine being an equitable doctrine, it must yield when
the equity so requires, if it can be shown by the
Government or Public Authority that having regard to the
facts and circumstances as they have transpired, it would
be inequitable to hold the Government or the Public
Authority to the promise, assurance or representation
made by it.”
16. In the case of Central Airmen Selection Board vs
Surender Kumar Dass [(2003) 1 SCC 152], it was held that
promissory estoppel is not applicable where the candidate was
though selected was not given employment on account of
misrepresentation of facts. However, interestingly, it was also
additionally argued on the behalf of the petitioner that even if a
candidate had been declared selected or appointed contrary to the
Rules of Recruitment, the petitioner could have suo moto corrected
the mistake and annul the appointment. It was held by way of
obiter dicta that the principle of promissory estoppel cannot be
invoked in a such case.
17. Insofar as the decision in the case of Hari Mohan Gupta
(supra) heavily relied upon by the learned counsel for the
petitioner, I am afraid, it does not help the petitioner in any
manner. Although, the petitioner had applied for cancellation of
his registration in 2001, which was acceded to by the respondent
No.1 on 20.12.2001, a month later the petitioner applied for
restoration of his registration upon becoming aware that DDA was
planning to make allotment to those who had waited for a long
period, which request was acceded and the registration was
restored on 06.03.2003. It was in the said circumstances that when
his name was not included in the draw of lots to be held on
11.07.2003 that the petitioner challenged the decision of DDA in
writ petition and his name was ordered to be included in the draw
of lots. Eventually, as the name of the petitioner appeared in the
draw of lots, but an issue cropped as to the rate or the price that
would be payable by the petitioner for allotment of flat, which was
held to be payable as on the date when the scheme was floated i.e.
1989 with directions to pay the interest. Likewise, another
decision cited by learned counsel for the petitioner was DDA v.
Madhurima Malhotra [WA No. 294/2004 dated 06.09.2004],
decided by this Court, wherein the allotment of a flat was made to
the petitioner at Narela in Delhi but there were discrepancies in the
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built-up area and on the representations made by the petitioner as
also others, the DDA informed that flats were of „incremental
category‟ and on its own it decided to allot regular flats to those
who have been allotted such incremental flats. However, after
taking such a decision, the policy was reviewed, which was
challenged in the writ, and in the said circumstances the DDA was
restrained from rescinding from its policy decision and a direction
was issued to allot the regular flat to the petitioner. Such relief
granted by the learned Single Judge when challenged in LPA by
the DDA, which came to be dismissed vide the aforesaid order.
18. In view of the foregoing discussion, the present writ
petition is devoid of any merits and the same is accordingly
dismissed. However, the petitioner is entitled to recover the amount
initially paid by him for the booking/allotment of the plot be
refunded to him with interest @ 9% interest from the date he
applied for cancellation of his booking i.e., 24.06.1991, till
realization forthwith not later than two months from today.”
LEGAL SUBMISSIONS:
7. Learned counsel for the applicant has urged that observation
made by this Court that the petitioner never denied receiving the
cancellation letter dated 17.09.1991 was flawed, for which reference
was invited to averments in the rejoinder of the petitioner, whereby
such factum of receiving any cancellation letter was denied. Further, it
was pointed out that the alleged cancellation letter dated 17.09.1991
by the DDA was addressed/sent to “Manager, Central Bank,
Connaught Circus, New Delhi” instead of the correct address of the
applicant viz. “Central Bank of India, Hanuman Road, X/505, Gali
Baharwali, Daryaganj, Delhi”. It was vehemently urged by the
learned counsel for the applicant that the DDA placed on the record no
proof of service of such communication, for which an adverse
inference must be drawn.
ANALYSIS & DECISION:
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8. Having heard the learned counsel for the applicant and on
perusal of the record, at the outset, this Court finds that the present
review is bereft of any merits. First things first, the proposition of
law on review in terms of section 114 and Order XLVII CPC is
available on a limited ground. The correctness or legality of an order
cannot be made the subject of an appeal under the garb of a review. To
put it plainly, Order XLVII Rule 1 of the CPC provides three grounds
for review:
“(1) discovery of new and important matter or evidence which,
after the exercise of due diligence was not within the applicant’s
knowledge or could not be produced by the applicant at the time
when the decree was passed, or order made; or
(2) mistake or error apparent on the face of the record; or
(3) for any other sufficient reason, which must be analogous to
either of the aforesaid grounds.”
9. Avoiding a long academic discussion on the law on review, we
may refer to the decisions by the Supreme Court in the cases of Delhi
Administration v. Gurdip Singh Uban3 and Inderchand Jain v.
Motilal4, on combined reading of which it has been held that:
i) No application for review will be entertained in a civil proceeding
except on the grounds mentioned in Order XLVII Rule 1 of the
Code of Civil Procedure, 1908;
ii) There is a real distinction between a mere erroneous decision and a
decision which could be characterized as vitiated by error apparent;
iii) A review by no means is an appeal in disguise;
iv) Sometimes, applications are filed for ‘clarification’, ‘modification’
or ‘recall’ not because any such clarification, modification is indeed
necessary but because the applicant in reality wants a review and
also wants a re-hearing – such applications if they are in substance
review applications deserve to be rejected straightaway;
v) The limitations on exercise of power of review are well settled;
vi) A re-hearing of the matter is impermissible in law;
3
2000 (7) SCC 296
4
(2009) 14 SCC 663
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vii) The power of review can be exercised for correction of a mistake
and not to substitute a view and such power can be exercised
within the limits of statute dealing with the exercise of power.
10. In view of the aforesaid proposition of law, reverting to the
instant matter, there is an error apparent as regards to the finding
recorded by this Court, that there was no denial on the part of the
petitioner that he ever received the notice of cancellation of his
registration in terms of letter dated 17.09.1991. As it was rightly
pointed out that this Court overlooked the averments in the rejoinder,
and unhesitatingly this Court finds that the applicant is very cleverly
suppressing more facts than what he is actually revealing in the
petition.
11. Indeed, no proof of service of notice dated 17.09.1991 has been
placed on the record by the DDA. However, there is no averment on
an affidavit that the address of the applicant as reflected in the receipt
dated 20.04.1981 was the same on the date of the alleged notice of
cancellation by the DDA vide letter dated 17.09.1991. The applicant is
suppressing as to where he was posted, if at all, at Delhi when such
notice was purported to be served. From where else the DDA could
have found such address unless and until the applicant himself
submitted such letter and the applicant very cleverly has not placed on
record the letter dated 24.06.1991 that was sent by him to the DDA
seeking cancellation of his registration.
12. The applicant cannot take advantage of the non-filing of the
said letter by the DDA. It was for him to place on record the said
letter and demonstrate as to what address he had given on the said
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letter at the time of seeking cancellation of registration as well as
seeking a refund. Furthermore, there appears to be a clear attempt on
the part of the applicant to throw dust into the eyes of this Court by
claiming that he had sent a letter dated 14.01.2004 seeking withdrawal
of his application for cancellation of registration and demanding
allotment of residential flat under RRS, 1981.
13. For that matter, even the applicant has not annexed any service
report so as to suggest that he had sent any such letter. What is clearly
discernible is that even as per his own admission, he submitted an
application for cancellation of registration on 24.06.1991 and thereby
abandoned his legal right to have any legal interest for consideration
of his name for allotment of any MIG Flat under RRS, 1981. If his
case is believed, he had sought a refund and since the refund had not
been processed, by virtue of Article 113 of the Limitation Act he had
three years from the assumed date of service of such notice upon the
DDA, to seek recovery of the refund amount with interest.
14. It is evident that there was a prolonged period of inaction
on the part of the applicant, during which he failed to assert or
protect his legal rights. This period of “stark silence” lasted until
approximately 04.01.2004, assuming that any correspondence
related to this matter was indeed sent and received in the normal
course of events. The lack of action by the applicant during this
time raises questions about his commitment to pursuing his rights
in a timely manner. The applicant wants this Court to believe that he
then came to know about the allotment of a residential flat in his name
consequent to the draw of lots conducted on 12.06.2012, but he does
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not plead as to when he came to know about such allotment and if his
case is believed, it was by way of legal notice dated 26.03.2022 i.e.
after almost 10 years that he sought to assert his legal rights, if any, in
the present imbroglio.
15. In nutshell, the applicant is guilty of gross delay and laches as
he evidently kept quiet from 24.06.1991 till 14.01.2004. If we assume
that such letter was indeed sent by him, thereafter he remained silent
from 12.06.2012 to 22.05.2022, when he filed W.P.(C) 8489/2022. It
is notable that the applicant is an educated individual with a
background as a seasoned and experienced banker. However, it
appears that he has waived his legal rights and, after a significant
period of inactivity, is now attempting to capitalize on the increased
market value of the plot in question. This move suggests an
opportunistic approach, potentially driven by the escalation in market
value rather than a genuine concern for his original rights or interests.
16. It goes without saying that the Delhi Development Authority
(DDA) had a blemish in this case, as it failed to prove that it had
served the notice of cancellation dated 17.09.1991 to the applicant.
Nevertheless, the DDA’s failure to update its records and its
subsequent draw of lots on 12.06.2012 did not create any legal right in
favour of the applicant.
17. In light of the above, this Court is unable to find any error
apparent on the face of the record. It is unequivocal that the applicant
had no vested right to be allotted a residential flat independent of the
terms and conditions stipulated in the allotment policy. This Court in
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the case of Rashter Kumar v. DDA5 had an occasion to deal with the
plea of the petitioner therein for allotment of plot of his choice and it
was held as under:
“19. In fact, the proposition of law laid down in the aforesaid case
by the Full Bench of this Court was upheld by the Supreme Court
in the case of Amolak Raj v. Union of India [JT 2002(10) SC
86], wherein the appellant was allotted plot of land in Rohini
Residential Scheme bearing Plot No. 52, Pocket-16, Sector-20,
measuring 250 Sq. Yards but he was not satisfied and filed a writ
petition before the High Court seeking directions to the DDA for
allotment of plat of land measuring 800 Sq. Yards. It was held that
the petitioner, whose land had been acquired, had no absolute
vested claim for allotment of plot as a matter of right under the
Nazul Rules. It was further held that the appellant cannot claim
allotment of a particular plot in a particular area of his choice
and even if there are any recommendations made in his favour
by any other government authority/agency, it could only be
subject to availability of plot with the DDA and the said
recommendation has no binding legal commitment.”
{Bold portions emphasized}
18. In view of the foregoing discussion, this Court hereby
dismisses the present Review Petition. Although the applicant has
consumed considerable judicial time, considering his status as a senior
citizen, this Court exercises leniency and refrains from imposing costs
on him.
19. Resultantly, the present review petition is dismissed.
DHARMESH SHARMA, J.
JANUARY 08, 2025
Sadiq
5 2024:DHC:6796
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