Delhi Development Authority v. Om Prakash Kapoor & Ors.

1. The Appellant/DDA seeks to challenge the Order dated 28.09.2022 passed by the learned Single Judge in W.P.(C) 5794/2015. The learned Single Judge vide the said Order allowed the writ petition and directed the Appellant/DDA to execute the lease deed in respect of Plot No. 273, Fruit and Vegetable Market, Okhla Industrial Area, New Delhi, in favour of the original Writ Petitioner for general commercial purpose in accordance with the directions already issued by this Court vide order dated 25.04.2013 passed in W.P.(C) 10616/2009 and as approved in the resolution passed in the 208th meeting of the Screening Committee held on 30.11.1999, as clarified in the communication dated 25.01.2001. As rightly pointed by the learned Single Judge that the original Writ Petitioner has had to repeatedly approach to this Court and despite being obtaining Orders in his favour, he has not been successful in using his property as a commercial office.

2. Shorn of unnecessary details, facts leading to the filing of the instant LPA are as under: a) The original Writ Petitioner, late Om Prakash Kapoor, was allotted a Plot bearing No.273, Fruit and Vegetable Market, Okhla Industrial Area, New Delhi (hereinafter referred to as „subject property‟) by the Appellant/DDA. As per the terms and conditions of the auction of the subject property, the property was meant for cold storage and the original Writ Petitioner late Om Prakash Kapoor started raising construction on the subject property. The original Writ Petitioner, thereafter, applied for requisite licence for running a cold storage. However, the Appellant/DDA refused to grant the licence for running a cold storage on the subject property. b) Since, the requisite licence for running the cold storage was not granted, the original Writ Petitioner approached this Court by filing a writ petition bearing W.P.(C) 2935/1987 praying for an appropriate direction for changing the use of the subject property from cold storage to commercial/office. During the course of hearing, the learned Counsel for the DDA submitted that the entire change of user from cold storage to commercial/office cannot be allowed as it violates the Zonal Development Plan. This Court vide Order dated 05.02.1990 disposed of the said writ petition by directing the DDA to allow the Writ Petitioner to change the user of the subject property from cold storage to commercial/office to the extent that 70% and the remaining 30% including basement for storage. This Court further directed that if the writ petitioner is able to get a licence for cold storage in future, he will be allowed to use 30% including the basement for cold storage. By the said Order, the Appellant/DDA was also directed to impose a liability upon the Writ Petitioner to fulfil necessary formalities and to pay additional premium as may be determined by the DDA to the extent of change of user of the subject property. c) As per the directions given by this Court, a meeting of 208th Screening Committee of the Appellant/DDA was held on 30.11.1999 and while considering the case of the Writ Petitioner, the Screening Committee took the decision i.e., (i) the plot may be allowed a general commercial as directed by the Court; and (ii) the other two plots No.277 and 279 should also be sold for general commercial. The said decision taken in the Screening Committee was communicated to the Writ Petitioner late Om Prakash Kapoor stating that the competent authority has accepted the request for conversion of land user from cold storage to general commercial and permitted use are guest house, storage, godown, warehousing and commercial office, cinema, motor garage workshop, flatted group industries etc. d) The Writ Petitioner, thereafter, received a demand letter dated 07.10.2008 from the Appellant/DDA wherein the Writ Petitioner was directed to pay a sum of Rs.1,53,74,644/- as conversion charges. Aggrieved by the same, the Writ Petitioner, thereafter, filed another writ petition bearing W.P.(C) 10616/2009 challenging the demand letter dated 07.10.2008 and claiming a sum of Rs.1,53,74,644/- as conversion charges. The said writ petition was disposed of by this Court vide Judgment dated 25.04.2013 quashing the demand of Rs.1,53,74,644/- as conversion charges. This Court vide the said Judgment dated 25.04.2013 observed as under:

3. Heard learned Counsel appearing for the Parties and perused the material on record.

4. The Appellant/DDA has assailed the Impugned Order passed by the learned Single Judge by contending that the term “general commercial” has not been defined in the Master Plan and, therefore, conversion could not have been allowed for general commercial purpose in the Impugned Order. It is further stated on behalf of the Appellant/DDA that the subject property is a part of Okhla Fruit and Vegetable Market which is designated as “commercial land use” under the sub-category of warehousing and depots as per the Zonal Development Plan and permission to utilise it as a general commercial for the purpose of office could not have been permitted.

5. Learned ASG contended that if permission is granted for general commercial use which is an undefined term in the Zonal Development Plan where the land can be used for any of the purpose like guest house, storage, godown, warehousing and commercial office, cinema, motor garage workshop, flatted group industries etc. would affect the Zonal Development Plan for the area which is primarily meant for the purpose of warehousing. He, therefore, contends that this Order should not be treated as a precedent otherwise it will open flood gates where people who have been allotted shops for the purpose of cold storage, guest house etc. will all move for permission to convert their property into general commercial, thereby resulting in the change of Master Plan itself.

6. A perusal of the Impugned Order shows that the only contention raised before the learned Single Judge by the Appellant/DDA was that the Appellant/DDA is entitled to charge additional premium over and above the conversion charges already paid by the Writ Petitioner as a pre-condition for execution of the lease deed and no other contentions were raised.

7. Be that as it may, the contentions raised by the learned ASG shows that the DDA is attempting to back out from the three round of litigations, the present one being the fourth. This Court vide Order dated 05.02.1990 had directed the Appellant/DDA to allow the writ petitioner to change the use of the subject property from cold storage to commercial/office to the extent of 70% and the remaining 30% including basement for storage. In fact the said Order dated 05.02.1990 was challenged by the DDA before the Hon’ble Supreme Court by filing an SLP bearing No.8532/1990 which was dismissed by the Hon’ble Supreme Court vide Order dated 07.09.1995. Thereafter, a meeting of 208th Screening Committee of the Appellant/DDA was held on 30.11.1999 and the Minutes of the said Screening Committee with regard to the Subject property reads as under: “8. Item No.77:99:208:SC: Modified Scheme for proposed commercial plots on vacant land adjacent to fruit vegetable market Okhla and finalization of plot No.273. No. SA(SZ)96DDA. The proposal was explained by Sr. Architect (SZ)/ After detailed discussion following decision were taken:i) The plot may be allowed as general commercial as per the court direction. ii) Other two plots No. 277 & 279 should also be sold as General commercial.”

8. A perusal of the above Minutes of Meeting shows that the Appellant/DDA had accepted that the plot may be allowed as “general commercial” as per the direction of the Court. It is now too late for the Appellant/DDA to contend that the term “general commercial” has not been defined in the Master Plan. The Appellant/DDA issued a demand letter which was quashed by this Court. The Appellant/DDA, thereafter, issued a fresh demand letter accepting the change of user as “general commercial”. The Writ Petitioner paid a sum of Rs.1,58,13,986/- as conversion charges to the Appellant/DDA on 03.09.2013. Therefore, the attempt by the Appellant/DDA now to turn around and contend that the said area cannot be used for the purpose of “general commercial” and it will result in change of the Master Plan itself is only an attempt by the Appellant/DDA to get over the Judgments and Orders of this Court which have attained finality and has been agreed to be implemented as is reflected in the meeting of 208th Screening Committee held on 30.11.1999. As stated by the learned Single Judge that this is the third round of litigation and the Writ Petitioner after being successful in getting Orders in his favour from the past 24 years is not in a position to use the subject property as “general commercial”. The Writ Petitioner has already got a declaration for using the subject property for office purpose to the extent of 70%. The Writ Petitioner has also paid the premium in the year 2009 and yet the Appellant/DDA is not executing the lease deed.

9. In the considered opinion of this Court, the present LPA is nothing but an abuse of the process of law.

10. In view of the above, the LPA is dismissed, along with pending application(s), if any.

11. However, it is made clear that this Order will no act as a precedent for change of use of any other property which has been allotted to be used as cold storage in fruits and vegetable markets. Any such application will be dealt with on its own merits without treating the instant case as a precedent.

SATISH CHANDRA SHARMA, CJ SUBRAMONIUM PRASAD, J JULY 03, 2023