Full Judgment Text
R-1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4293/2002
st
Date of decision: 21 April, 2009
NISHI GUPTA ..... Petitioner
Through Mr. V.P. Singh, Sr. Advocate with Mr.
Sanjeet Singh, Advocate.
versus
INDIAN OIL CORPORATION AND ORS. ..... Respondents
Through Mr. M.M. Kalra & Mr. Kunal Kalra,
Advocates.
Mr. Ajay Verma & Mr. Amit Mehra, Advocates for
respondent-DDA.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported
in the Digest ?
O R D E R
%
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1. The petitioner- Nishi Gupta was issued letter of intent dated 4
June, 1991 by Indian Oil Corporation Limited for a retail outlet dealership
at New Delhi. The letter of intent stipulated as under:-
“ a) LAND
Procure a suitable plot of land within a
period of 4 months from the date of this letter,
W.P. (C) 4293/2002 Page 1
duly cleared by our Delhi Divisional Office in
writing. The plot of land admeasuring
36.50x30.48 mtrs. should be either purchased by
you or leased to you initially for a period of 15
years, with suitable sublease clause as detailed in
(b) hereunder and also with a renewal option
thereafter for a minimum period of 5 years”
2 . Immediately after issue of letter of intent, the petitioner entered into
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a lease agreement dated 24 June, 1991 in respect of land located in
Khasra No. 31, Bahloopur, Khadar, Ring Road, New Delhi with one Mr.
Gyan Gupta for taking on lease and running a petrol pump. Pursuant
thereto, it is admitted by the counsel for the petitioner that a petrol pump
was established and has been operating from the site in question.
3. The lease agreement stipulated that the lessor is absolute owner of
land, building, filling pump and underground oil storage pump installed at
the said site.
4. The aforesaid land is under acquisition and the petitioner claims that
she is entitlement to resitement for which DDA should provide alternative
land. In this connection, learned counsel for the petitioner relies upon
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letters dated 24 October, 2000 and 28 March, 2002 written by DDA.
Learned counsel has further stated that Mr. Gyan Gupta had earlier filed
Writ Petition No. 2383/1990 challenging the land acquisition proceedings in
respect of the said land but the said writ petition has been dismissed. It is
stated that the petitioner is ready and willing to hand over possession of
the land and, therefore, the petitioner is covered by the 2003 policy and is
W.P. (C) 4293/2002 Page 2
entitled to resitement.
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5. The 20 June, 2003 policy of DDA in respect of allotment of land for
petrol pump/gas godown relating to resitement stipulates as under:-
“A. Resitement:
1) Resitement will be made only when the existing
petrol pump/gas godown site is utilized for a
planned project/scheme which directly
necessitates the closing down of the petrol
pump/gas godown site. No resitement will be
made on any other grounds. As the petrol pumps
will be disposed on annual Licence fee basis
rather than on upfront payment, if an allottee
does not find the business lucrative due to certain
other reasons, he can always chose to surrender
the site.
2) In all cases of resitement, the existing rates for
the new site will be charged and the possession
of the old site will be handedover to DDA.
3) The alternative site will be allotted through
computerized draw from the available sites for
holding the draw at least 3 sites must be
available on the date of holding the draw.”
6. Under the aforesaid policy, existing petrol pump/gas godown sites
are entitled to resitement if the existing site where the petrol pump/gas
godown is existing is to be utilized for planned project/scheme, which
directly necessitates closing down of the petrol pump/gas godown site.
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Plot on resitement cannot be given on any other ground. As per 20 June,
2003 policy, normally land reserved for petrol pump/gas godown has to be
auctioned and sold to the highest bidder. The short question, which arises
W.P. (C) 4293/2002 Page 3
for consideration is whether the petitioner is covered by Clause A relating
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to resitement of the aforesaid policy dated 20 June, 2003.
7. The land on which the petrol pump of the petitioner is located
became subject matter of acquisition proceedings with issue of notification
nd
dated 22 June, 1990 under Section 17(1) of the Land Acquisition Act,
nd
1894 and also notification dated 22 May, 1990 under Section 6 of the
aforesaid Act. Both the notifications were challenged by Mr. Gyan Chand
Gupta, HUF in the writ petition CW No. 2383/1990. The petitioners in the
present case entered into a lease agreement with Mr. Gyan Chand Gupta
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on 24 June, 1991 after the acquisition proceedings had commenced and
after the writ petition was filed in 1990. In these circumstances, I do not
think the petitioner is entitled to allotment of a new petrol pump site under
the resitement clause. The petitioner decided to take the land on lease
fully conscious of the fact that the land in question was already subject
matter of acquisition proceedings and is to be acquired. Resitement clause
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of the 20 June, 2003 policy will apply to cases where petrol pump/gas
godown were already existing prior to the initiation of acquisition
proceedings for planned project/scheme, which directly necessitates
closing down of the petrol pump/gas godown site. It will not apply to
cases where a person sets up a petrol pump/gas godown after acquisition
proceedings have commenced. Any other interpretation will lead to odd
results with a party setting up a petrol pump or a gas godown after
W.P. (C) 4293/2002 Page 4
acquisition proceedings have commenced and thereupon stakes his claim
for preferential allotment to alternative site on the basis of resitement
clause. The word „existing‟ used in resitement clause indicates that it will
apply to cases where there is existing petrol pump/gas godown before the
acquisition proceedings have commenced.
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8. The aforesaid 20 June, 2003 policy had come up for consideration
and was examined by the Supreme Court in M/s. Sethi Auto Service
Station and Another versus Delhi Development Authority &
Others , reported in JT 2008 (11) SC 520 , wherein the Supreme Court has
observed as under:-
“ 30. According to the said guidelines, a request
for resitement on the ground of reduction in sales
level below the prescribed limit could be
entertained by the DDA provided the proposal
was referred by the oil company or the Ministry.
The parties are ad-idem that the cases of both
the appellants for relocation were recommended
by the two Oil Companies, viz., IOC and HPCL, on
account of expected fall in sales because of the
construction of the flyover and grid separator.
However, before a final decision on the
representation of the appellants could be taken,
the policy of the DDA underwent revision in the
year 2003. The criterion for allotment of land by
the DDA for resitement of existing petrol pumps
was changed. Under the revised policy, dated
th
20 June, 2003, a case for resitement could be
considered by the DDA only under the following
circumstances:
“A. Resitement:
1) Resitement will be made only when the
existing petrol pump/gas godown site is utilized
for a planned project/scheme which directly
necessitates the closing down of the petrol
W.P. (C) 4293/2002 Page 5
pump/gas godown site. No resitement will be
made on any other grounds. As the petrol pumps
will be disposed on annual Licence fee basis
rather than on upfront payment, if an allottee
does not find the business lucrative due to certain
other reasons, he can always chose to surrender
the site.
2) In all cases of resitement, the existing rates
for the new site will be charged and the
possession of the old site will be handed over to
DDA.
3) The alternative site will be allotted through
computerized draw from the available sites. For
holding the draw at least 3 sites must be
available on the date of holding the draw.”
31. It is plain that under the new policy
resitement of a petrol pump etc. is possible only
when the existing petrol pump is utilized for a
planned project/scheme, which directly
necessitates the closing down of the petrol pump.
Under the new policy, resitement on account of
fall in sales etc. is not contemplated. In fact,
resitement or any other ground is specifically
ruled out. It is also evident from the new policy
that in the event of DDA permitting resitement,
the possession of the old site has to be delivered
to the DDA, which presupposes that the old site
was also allotted by the DDA. As noted above,
the existing sites on which the two petrol pumps
in question are operating were allotted by the
Airport Authority of India and not by the DDA.
32. Having bestowed our anxious consideration
to the facts in hand, in our judgment, the
doctrine of legitimate expectation, as explained
above, is not attracted in the instant case. It is
manifest that even under the 1999 policy, on
which the entire edifice of appellants substantive
expectation of getting alternative land for
resitement is built does not cast any obligation
upon the DDA to relocate the petrol pumps. The
W.P. (C) 4293/2002 Page 6
said policy merely laid down a criterion for
relocation and not a mandate that under the
given circumstances the DDA was obliged to
provide land for the said purpose. Therefore, at
best the appellants had an expectation of being
considered for resitement. Their cases were duly
considered, favourable recommendations were
also made but by the time the final decision-
making authority considered the matter, the
policy underwent a change and the cases of the
appellants did not meet the new criteria for
allotment laid down in the new policy. We are
convinced that apart from the fact that there is
no challenge to the new policy, which seems to
have been conceived in public interest in the light
of the changed economic scenario and liberalized
regime of permitting private companies to set up
petrol outlets, the decision of the DDA in
declining to allot land for resitement of petrol
pumps, a matter of largesse, cannot be held to
be arbitrary or unreasonable warranting
interference. Moreover, with the change in
policy, any direction in favour of the appellants in
this regard would militate against the new policy
of 2003. In our opinion, therefore, the principle
of legitimate expectation has no application to the
facts at hand.”
9. The ratio of the aforesaid decision supports the stand of DDA. The
Supreme Court has held that the 2003 policy is conceived in public interest
and is just, fair and reasonable in light of economic scenario and
liberalized regime. The argument based upon rights under the earlier
1999 policy and principle of legitimate expectation has been rejected. In
paragraph 31 of the judgment, the Supreme Court has also observed that
under the new policy, the possession of the old site has to be delivered to
DDA and this pre-supposes that the old site is also allotted by DDA and not
by a third person.
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10. The reliance placed by the petitioner on letter of DDA dated 24
th
October, 2000 is misplaced. Letter dated 24 October, 2000
W.P. (C) 4293/2002 Page 7
reads as under:-
“ This has the reference of your representation
addressed to Hon‟ble L.G., Delhi regarding
allotment of land for running a retail outlet in lieu
of the existing petrol pump in the name of M/s
Ashish Service Station at Behlol Pur (Ring Road).
In this connection, I am to informed that your
request has been considered and principaly(sic)
agreed by the competent authority subject to the
certain conditions which are being looked into;”
11. The aforesaid letter merely records that the competent authority has
considered the request made by the petitioner and principally agreed with
the request made by the petitioner but certain conditions were being
looked into. Thus, it is not a case in which the request of the petitioner
was accepted. DDA had principally agreed with the request in view of the
1999 policy but was examining conditions which had to be imposed.
These were being looked into. There was no absolute and unqualified
acceptance. In the integrum, DDA in 2003 changed their policy and have
introduced the new policy including the clause relating to resitement
quoted above. The amendment and change in the policy cannot be
questioned and challenged in view of the decision of the Supreme Court in
the case of M/s. Sethi Auto Service Station (supra). Indeed, the
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petitioner has not challenged and specifically questioned the 20 June,
2003 policy in the writ petition.
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12. The operative portion of letter dated 28 March, 2002 reads as
under:-
W.P. (C) 4293/2002 Page 8
“Kindly refer to your letter No.DD/R/Aashish
dated 29.10.01 on the subject cited above, in this
connection it is stated that your case for resitement of
land was considered at length & it is decided that the
Petrol Pumpt can be resited only when DDA gets the
possession of the land on the Petrol Pump under
reference.”
13. Admittedly, the petitioner did not handover possession of the land to
the DDA. In the meanwhile, the Policy for allotment of alternative land on
resitement was changed in view of the changed factual matrix with
economic liberalization and private companies setting up petrol outlets.
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Now, Policy dated 28 June, 2003 holds the field and is applicable. Thus
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for the same reasons as mentioned in para 11 the letter dated 28 March,
2002 quoted above, does not confer any right to the petitioner to claim
alternative land on resitement.
14. In view of the above, I do not find any merit in the present writ
petition and the same is dismissed. No costs.
SANJIV KHANNA, J.
APRIL 21, 2009
VKR/P
W.P. (C) 4293/2002 Page 9