USHA RANI GUPTA vs D.D.A. & ANR

2024-12-19 Information

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 22.07.2024
Judgment pronounced on: 19 .12.2024
+ W.P.(C) 8598/2007
USHA RANI GUPTA …..Petitioner
Through: Mr. Sanat Kumar, Sr. Adv. with Mr. Ashish Rana, Mr. Anurag K. Singh, Advs.
versus

DELHI DEVELOPMENT AUTHORITY ….Respondent No. 1
INDIAN OIL CORPORATION LTD. ….Respondent No. 2

Through: Mr. Tushar Sannu, Mr. Sahaj Karan Singh, Advs. for R-1

CORAM:
HON’BLE MR. JUSTICE JASMEET SINGH

J U D G M E N T

: JASMEET SINGH, J

1. This is a writ petition filed under Article 226 of the Constitution of India by the petitioner, inter alia, seeking the following substantial reliefs:-
(ii). Issue a writ, order or direction in the nature of certiorari and quash letter dated 8.11.2007 issued by Respondent No. 1; and
(iii). Issue a writ, order or direction in the nature of mandamus and hold that the cancellation letter dated 27.8.1997 issued by Respondent No. 1 has become non-est and thus cannot be relied upon by Respondent No. 1 in any manner whatsoever; and
(iv). Issue a writ, order or direction in the nature of mandamus directing the Respondent No. 1 to immediately allot an alternate site to in lieu of the existing site in the same market/ trading area for resitement of Petitioner’s petrol pump; and
FACTUAL BACKGROUND
2. The brief facts are as under:-
3. M/s IBP Co. Ltd. (now merged with respondent No. 2) appointed the petitioner as a dealer for running a retail outlet/petrol pump under the name and style of M/s Shri Oil Company vide appointment letter dated 27.03.1978. The said retail outlet was situated at Pandav Nagar Chowk, Patparganj, Delhi. Vide allotment letter dated 11.03.1993, respondent No. 1 (DDA) allotted a land measuring 1169.50 sq. mtrs. in North of National Highway (N.H.) -24, near Pandav Nagar, Noida T-Point, Patparganj, Delhi to M/s IBP Co. Ltd. for running the retail outlet of the petitioner. On 14.7.1993, the said retail outlet was re-sited at the current location at Noida T-point, Pandav Nagar and since then the petitioner is running the said retail outlet from the site. Since 1993, when the new site was allotted and till later M/s IBP Co. Ltd. was paying the lease rent to DDA and DDA has been accepting the same.
4. On account of increase of traffic, DDA planned to connect the road coming from Noida with ITO Chungi/Laxmi Nagar i.e. existing T-point as a four-legged junction so as to make the traffic signal at Noida T-point signal free. DDA also planned to construct flyover with clover leafs at Noida Crossing.
5. The petitioner requested M/s IBP Co. Ltd., to seek the re-sitement of the existing site as the same was too close to the T-junction. In pursuance to the said requests, M/s IBP Co. Ltd. vide its various letters dated 15.12.1998, 07.04.1999 and 29.04.1999 requested DDA to allot an alternative site in lieu of the present location. However, DDA took no action on the said requests. DDA constructed a flyover and a cloverleaf at the said junction for smooth flow of traffic going toward Noida.
6. In the meanwhile, Smt. Hem Nalini Mehra filed a W.P. (C) No. 5239/2002 in the nature of Public Interest Litigation seeking appropriate direction for completion of roads at Indraprastha Extension (Patparganj) Delhi. During the pendency of the said petition, in 2005 an application being C.M. No. 3453/2005 was moved by an NGO wherein certain issues were raised by the said NGO in respect of the flyover constructed at Noida-T-point at N.H. 24.
7. Thereafter various directions were passed by this Honble Court in the said petition from time to time ultimately culminating in an order dated 24.02.2006 whereby the retail outlet at its existing location was directed to be closed down. The petitioner as well as M/s IBP Co. Ltd. challenged the said order dated 24.02.2006 by filing SLP (C) Nos. 5192/2006 and 4350/2006. The said SLPs were disposed of vide Order dated 13.08.2007 wherein it was observed as under:-
.Public interest is the para mount consideration and in any case, if the petrol pump needs to be demolished or to be shifted to some other place the D.D.A. is free to do so. No interference is required in the matter. The Delhi Development Authority is directed to proceed with the matter expeditiously. However, in case if it is possible to make some adjustment then the D.D.A. is free to do so. Mr. Mehrotra, Project Manager will take the decision on the spot and construct the road for the better convenience of the public at large
8. It is further stated by the petitioner that DDA neither carried any spot inspection nor the petitioner/respondent No. 2 were intimated of any such inspection. However, on 01.10.2007, DDA vide its letter informed the respondent No. 2 that the said retail outlet in question needs to be closed down from its current location and accordingly directed the respondent No. 2 to close down the petrol pump on 04.10.2007. The said letter was also forwarded to the petitioner. Immediately, the respondent No. 2 vide its letter dated 01.10.2007 requested DDA to allot an alternate site in the same trading area before closure of retail outlet. It was also requested that till an alternate site is allotted, the said retail outlet from the existing site be continued.
9. Another letter dated 28.09.2007 was received by M/s. IBP Co. Ltd. on 03.10.2007 informing that the petrol pump site was cancelled way back in December, 1997. Therefore, DDA asked to hand over vacant possession of the petrol pump site to DDA. Relevant portion of the letter dated 28.09.2007 reads as under:-
Sub: Directions of the Honble Supreme Court dated 13.8.07
Sir,
You may recall that the petrol pump was lying cancelled way back in December, 1997 which was also communicated to the company, however, the same was not handed over.
Also kindly find enclosed the orders of the Honble Supreme Court dated 13.08.07 which is enclosed to this letter. Honble Supreme Court has given directions to the DDA Project Manager to assess on the spot and construct the road for better convenience of the public at large. Accordingly, it has been decided that entry/exit point of the Petrol Pump should be closed and it was also directed that the vacant possession of the site be handed over.
Now, in pursuance to the directions of the Honble Supreme Court, DDA is closing the entry and exit point and you are requested to immediately hand over the vacant possession of the site to DDA.
10. The above letter dated 28.09.2007 was replied to by the respondent No. 2 vide its letter dated 04.10.2007 and 09.10.2007. Vide the said letters, the respondent No. 2 informed DDA that they were not aware of alleged cancellation of petrol pump site in 1997 and if the site was cancelled way back in December, 1997 then as to how DDA allowed the petrol pump to run from the said site for last ten years. Further, DDA has been receiving the lease money without raising any objections, which clearly shows that the site was never cancelled.
11. The petitioner filed a petition being W.P.(C) No. 7338/2007 seeking a direction against DDA to allot an alternate site for running the retail outlet. This Court vide Order dated 08.10.2007, with consent of parties, directed DDA to decide the application of the petitioner/respondent No. 2 within 6 weeks.
12. The petitioner vide letter dated 15.10.2007 requested DDA to allot suitable alternate site in the same trading area for re-sitement of petrol pump. Respondent No. 2 had already made similar requests in their letters dated 04.10.2007 and 09.10.2007.
13. As regards the letter of 27.08.1997 is concerned, as per the petitioner, the petitioner received the letter dated 27.08.1997 during the course of hearing in W.P.(C) No. 7338/2007. After receiving a copy of the said letter, the petitioner got the records searched and it was found that the said letter dated 27.08.1997 was duly replied to by M/s IBP Co. Ltd. on the same day vide its letter dated 27.08.1997 whereby DDA was informed that the respondent No. 2 had stopped supplies of all petroleum products to the old site w.e.f. 27.08.1997.
14. On 28.08.1997 another letter was sent by respondent No. 2 recording therein that a meeting between the officers of the respondent No.2 and DDA was held on 20.08.1997 wherein the issues between the parties were discussed and DDA was requested for affording an opportunity for explaining/implementing corrective measures since no notice had been received by respondent No. 2. As regards licence fees, it was informed that the same had already been deposited by the respondent No. 2 to DDA. DDA was accordingly requested to reconsider the matter and not to take any coercive action and allow running the petrol pump at the new site.
15. DDA, however, vide its letter dated 08.11.2007 declined the request for resitement of the petrol pump on the ground that the same is not covered under existing policy. Hence, the present petition is filed seeking the reliefs as noted above.
16. Vide Order dated 21.11.2007, notice was issued to the respondents. Pursuant to the said notices, DDA and respondent No. 2 filed their respective counter affidavits.
17. Respondent No. 2 in its counter affidavit supported the case of the petitioner and prayed for quashing of the letter dated 08.11.2007 issued by the DDA refusing to resite the retail outlet.
18. DDA in its counter affidavit states that the petitioner and respondent No. 2 both are acting in collusion and have made false averments in the petition and counter affidavit respectively. DDA refused the contention of both the petitioner and respondent No. 2 that they have not received the letter dated 27.08.1997. It is stated that DDA had received a reply/response from the petitioner dated 02.09.1997 and from the respondent No. 2 dated 09.09.1997 of the letter dated 27.08.1997.
19. During the pendency of the present petition, the petitioner moved an application bearing No. 10676/2014 seeking to place on record additional facts and documents, the said application was allowed vide order dated 14.09.2015.
20. The additional facts are that the letter dated 27.08.1997 refers to a show cause notice dated 26.12.1996. In this regard, the petitioner submits that the said show cause notice was never received by the petitioner wherein the respondent no. 2 vide its letter dated 28.08.1997 had categorically informed the DDA that no show cause notice was received by them. In these circumstances, the respondent No. 2 had requested the DDA for affording an opportunity to take corrective measures.
SUBMISSIONS ON BEHALF OF THE PETITIONER
21. Mr Sanat Kumar, learned Senior Counsel appearing for the petitioner has advanced three-fold arguments firstly, the cancellation of the petrol pump site was done without following the principles of natural justice and thus letter dated 27.08.1997 is non-est; secondly, letter dated 08.11.2007 rejecting the request for resitement of petrol pump is liable to be quashed as the petitioners case was covered under the Resitement Policy of DDA; and thirdly, issue of cancellation was raised for the first time in 2007.
(I) The cancellation of the petrol pump site was done without following the principles of natural justice and thus letter dated 27.08.1997 is non-est in law;
22. It is submitted by the learned senior counsel that the letter dated 27.08.1997 cancelling the petrol pump is non-est as it was violation in principles of natural justice. The two reasons for cancellation are: (a) no response to show cause notice; and (b) non vacation of the old site and non-payment of Rs. 4,94,549/- as license fee.
(a) No show cause notice issued
23. The letter dated 27.08.1997 refers to a show cause notice dated 26.12.1996 issued to the respondent No. 2. The said show cause notice was never issued which was duly intimated to the DDA on 28.08.1997. The respondent No. 2 also requested for an opportunity to take corrective measures. Further, the file noting of DDA received under RTI shows that the notice dated 26.12.1996 was sent by ordinary post and hence, it could not be confirmed that the said notice was actually served upon the respondent No. 2 or not.
24. Hence, there was a proposal on the note of 23.07.1997 that a fresh notice be issued to the respondent No. 2 and the draft notice was also prepared but the said notice was never served. In addition, the show cause notice of 26.12.1996 was supposedly signed by the DDA officer on 25.12.1996 which was a gazetted holiday.
25. As a result, no show cause notice was issued/received by the respondent No. 2 and the petrol pump site was cancelled without adhering and following the principles of natural justice.
(b) non vacation of the old site and non-payment of Rs. 4,94,549/- aslicense fee
26. Immediately on receiving the cancellation letter, on 28.08.1997, the respondent No.2 responded by stating that in a meeting held on 20.08.1997 with the Vice Chairman of DDA, it was told that no show cause notice was received. It was also clarified that supplies have been stopped to the old site on 27.08.1997 and the necessary license fees has been deposited. Thereafter, DDA continued to accept the licence fees from the petitioner, the petrol pump was allowed to be operated for the next 10 years up till 2007. Hence, DDA is estopped from claiming to the contrary and all rights stood waived by its actions.
27. Hence, in view of violations of principles of natural justice and the principles of estoppel and waiver, the cancellation of petrol pump is a nullity.
(II) letter dated 08.11.2007 rejecting the request for resitement of petrol pump is liable to be quashed as being contrary to the resitement policy.
28. Learned senior counsel further submits that as per the resitement policy dated 14.08.2003, the resitement is to be done when the existing petrol pump/gas godown site is utilised for a planned project/scheme which directly necessitates closing down the petrol pump site. Admittedly, the petrol pump was closed down due to the planned public project of roads at site. Reference was made to the order dated 13.08.2007 passed by Honble Supreme Court and to the order dated 08.10.2007 passed in WP(C) No. 7338/2007 wherein the same has been stated.
29. He further argues that the resitement policy of Ministry of Petroleum and Natural Gas formulated in 2005 is in consonance with the resitement policy of DDA. The present case of the petitioner falls within the contours of the resitement policy, hence, the writ petition needs to be allowed.
(III) Issue of cancellation raised first time in 2007.
30. It is contended by the DDA that the petitioner is not entitled to the resitement as the said site stood cancelled way back in year 1997.
31. Learned senior counsel submits that this issue was never raised by the DDA for almost 10 years. When in the years 1998-99, DDA proposed to construct flyovers in the vicinity of the site, the respondent No. 2 had written various letters dated 15.12.1998, 07.04.1999 and 29.04.1999 seeking resitement of the site and the DDA at that stage never raised the issue of cancellation.
32. He further submits that the public interest litigation relating to the flyovers constructed near the site was pending since 2002 and continued till August, 2007. Several affidavits were filed by DDA in the said proceedings but the DDA never raised the issue that the site in question stood cancelled. It is for the first time that the said plea was taken by DDA vide letter dated 28.09.2007 i.e. after more than 10 years. Hence, DDA cannot be allowed to raise this plea at such belated stage.
33. Lastly, to buttress his arguments on the above grounds, Mr Kumar, learned senior counsel has relied upon the following judgments which are as follows:-
1. Life Insurance Corporation of India v. O.P. Bhallah, 1989 SCC OnLine Pat 37.
2. Wills John v. DDA, (2023) 6 HCC (Del) 403.
3. DDA Vs. Jagdish Chopra, LPA No. 82/2008, Decided on 08.08.2008.
4. Aditya Oil Co. v. Indian Oil Corpn. Ltd., 2006 SCC OnLine Del 1464.
5. Cantonment Board v. Taramani Devi, 1992 Supp (2) SCC 501.
6. Madan Lal Mokhawal v. DDA, 2005 SCC OnLine Del 207.
SUBMISSIONS ON BEHALF OF THE DDA
34. Mr Tushar Sannu, learned Counsel appearing for DDA has advanced arguments in the following manner:-
(I) The present petitioner lacks locus standi
35. He submits that the petitioner herein has no locus standi to file the present petition as the DDA has allotted the site to the respondent No. 2. There is no privity of contract between the petitioner and DDA. Hence, the cause of action, if any, was in favour of the respondent No. 2 and not in favour of the petitioner.
36. In the present case, the DDA had allotted the site in question to the respondent No. 2 on temporary basis and there was no lease, hence, there was no vested right even in favour of the respondent No. 2 much less in favour of the petitioner (assuming the petitioner was acting as an agent of the respondent No. 2).
37. The respondent No. 2 being a Government of India enterprise is aware of the same and of the applicable law in respect of resolution of inter departmental or disputes between different government/statutory undertakings/authorities have to be settled out of Court. The cancellation of allotment or licence is that of the respondent No. 2, and the respondent No. 2 is not the petitioner before this Honble Court.
(II) Concealment of facts by the petitioner and respondent No. 2
38. Mr Sannu, learned counsel further submits that the petitioner has concealed the material facts, and the petitioner and respondent No. 2 are acting in collusion. Both the petitioner and the respondent No. 2 in the present petition and the counter affidavit respectively have denied receipt of the letter dated 27.08.1997 issued by the DDA which is false and it clearly establishes the deliberate concealment by both the petitioner and the respondent No. 2.
39. The petitioners response dated 02.09.1997 to DDAs letter dated 27.08.1997 was received by the DDA vide diary no. 020738 on 04.09.1997 and the response of respondent No. 2 vide letter dated 09.09.1997 to DDAs letter dated 27.08.1997 are annexed with the counter affidavit.
40. Further, the respondent No. 2 was not only aware of the cancellation in terms of its response dated 09.09.1997, rather in terms of the petitioner’s response dated 02.09.1997, it was the respondent No. 2 who had informed the petitioner of the cancellation of allotment of the petrol pump site. Hence, the stand of the petitioner as well as of the respondent No. 2 that they were unware of the cancellation of the site in question and became aware in 2007 is belied from record as well as the letters written by the petitioner and the respondent No. 2.
(III) Issue of show cause notice already given up by the petitioner
41. Learned counsel further submits that the petitioner filed a writ petition bearing No. WP(C) 7338/2007 before this Court seeking quashing of the letter dated 01.10.2007 directing closure and also praying for allotment of an alternate site. The petitioner in these proceedings gave up its challenge qua the cancellation of the allotment and consequent closure of the petrol pump and restricted its prayers to the alternate allotment in lieu of such closure.
42. In these circumstances, the Honble Court disposed of the petition with the consent of the parties by directing DDA to consider the resitement of the petrol pump as per policy within 6 weeks. DDA examined the issue and it was held that since the site in question was cancelled 10 years ago and the respondent No. 2 failed to remove the violations despite repeated requests from DDA, the case of the petitioner did not fall in the resitement policy and hence, could not be considered under the said policy.
43. Learned counsel submits that the resitement policy provides for alternative allotment to an existing petrol pump but as the present petrol pump was operating unauthorisedly, i.e. after the orders of cancellation of the licence in 1997, the same was not covered under the policy of resitement.
(IV) The present petition suffers from delay and laches.
44. Mr Sannu, learned counsel further states that the present petition suffers from delay and laches as the allotment (which was in terms of a temporary license) stood cancelled in 1997 itself, this fact was duly acknowledged by the petitioner.
45. The said cancellation was never withdrawn by the DDA and there is no order/communication of withdrawing the order of cancellation of allotment of petrol pump. Further, the petitioner had in the letter dated 02.09.1997 sought restoration of the allotment of the petrol pump site in favour of the respondent no. 2. There is no order or communication whatsoever restoring the petrol pump site in favour of respondent No. 2. Therefore, since 27.08.1997 till October, 2007, the respondent No. 2 through its agent/dealer i.e. the petitioner has been in wrongful occupation and unauthorised possession of land belonging to the DDA.
46. Learned counsel submits that the petitioner and respondent No. 2 have concealed the fact that there has never been any withdrawal of the cancellation or restoration of allotment in their favour. Reliance is placed on Ramjas Foundation v. Union of India, 1993 Supp (2) SCC 20.
47. With these arguments, learned counsel for the DDA prayed for dismissal of the present petition.
ANALYSIS AND FINDINGS
48. I have heard learned counsel for the parties and perused the material and pleadings available on record.
49. Before going into the merits of the matter, it is necessary to decide the maintainability of this petition.
50. DDA has raised an objection with regard to the locus standi of the petitioner, it is submitted that there is no privity of contract between the petitioner and DDA. The site in question was allotted to the respondent No. 2 who is not the petitioner in the present case, hence the petitioner has no locus to file the present petition.
51. Learned senior counsel for the petitioner has argued that the petitioner being the dealer of the respondent No. 2 is the affected party. It is the petitioner who was running the petrol pump on the site in question and the order dated 08.10.2007 clearly records that the representation of the petitioner is to be decided by the DDA and in case the petitioner is aggrieved, then the petitioner is at liberty to take suitable action in accordance with law. Hence, the objection of the DDA regarding the locus of the petitioner cannot be raised at this stage.
52. It is appropriate to refer to the order dated 08.10.2007 passed by this Court in W.P.(C) No. 7338/2007 filed by the petitioner. The said order reads as under:-
With consent of the parties, the writ petition is taken up for hearing. After some hearing in the matter, it is agreed by learned counsel for the parties as under:
1. 24 hours time will be granted by the DDA to the petitioner to remove their entire stock from the petrol pump; subject matter of the present writ petition.
2. To enable the petitioner to remove the stock, the Project Manager will inform the respondent No.2 of the time and date when the petrol pump will be desealed for the said purpose.
3. The application of the petitioner/respondent No.2 for resiting of the petrol pump will be dealt with by the DDA as per their policy as expeditiously as possible, however, not later than 6 weeks from today.
4. In case the petitioner/respondent No.2 is aggrieved by the by the any order which may be passed by the DDA in respect of resiting of the petrol pump, they will be at liberty to take suitable action in accordance with law.
In view of the above directions, parties agree that the writ petition may be disposed of in the above terms. Ordered accordingly.
(emphasis added)
53. On perusal, what transpires is that the Court, with consent of the parties, passed certain directions including DDA to decide the application of the petitioner/respondent No. 2 within 6 weeks and if aggrieved, liberty was given to take suitable action in accordance with law. The issue whether the petitioner has any privity of contract with DDA has not been dealt into or adjudicated by the above order.
54. The said order will not operate as res judicata as there are no findings either on facts or in law vis-a-vis any of the parties to the lis. The principles of res judicata apply when the Court has already adjudicated upon the same issue raised herein between the same parties. It restrains the parties from reagitating the same issues. The said order dated 08.10.2007 is only a procedural order wherein this Court while disposing of the petition directed inter alia, the DDA to decide the application. Hence, the said issue i.e. whether there is any privity of contract between the petitioner and DDA has to be answered by this Court.
55. The privity of contract means that the parties to a contract can either enforce or be held liable for obligations under the contract. Third party are a strangers to a contract. I find some force with the argument advanced by the learned counsel for the DDA, it is correct and not in dispute that there is no privity of contract between the petitioner and DDA, as the said site was given to M/s IBP Co. Ltd. purely on temporary lease basis as mentioned in the allotment letter dated 11.03.1993. Relevant portion of the said letter is extracted below:-
To,
M/s. Sr. Divisional Manager, (IBP Co. Ltd.)
Flat No.13 A&B, 13thFloor,
Hansalya Building,
15, Bara Khamba Road,
New Delhi-110001

Sub: Allotment of alternative site for filling/filling-cum-service station measuring 1169.50 sq. mtrs. at North of NH-24, Near Pandav Nagar in lieu of existing Petrol Pump at Pandav Nagar Chowk Patpar Ganj known as Shri Oil Company.

D/Sir,
I am directed to inform you that it has been decided to allot you on purely temporary lease basis a site for filing /filling-cum-service station measuring 1169.50 sq. mtrs. at North of NH-24, near Pandav Nagar on the following terms conditions:-
. . .
(Emphasis added)
56. Further, the petitioner was appointed as a dealer by the respondent No. 2 for running the retail outlet in the name and style of M/s Shri Oil Company vide letter dated 27.03.1978. The petitioner is a stranger to DDA. It is the DDA who has given the said site to the respondent No. 2, hence the petitioner has no locus regarding the allotment or cancellation of site allotted by the DDA to respondent No. 2.
57. In somewhat similar circumstances, the Honble Supreme Court in SLP (C) No. 27002 of 2023 titled as Delight Grih Nirman Pvt. Ltd. vs. Bharat Petroleum Corporation Ltd. & Ors. rejected the argument of the dealer i.e. respondent No. 5 therein. Relevant portion is extracted below:-
Mr. Utpal Mazumdar, learned counsel for the newly added respondent No.5 who appeared online, sought to raise the issue that he has independent right to protect his possession of the premises in dispute. Hence, he cannot be evicted in the manner being agreed upon by the BPCL/lessee and lessor. We do not find any merit in the argument as there is no privity of contract between the respondent No.5 and the petitioner herein, and the privity of contract is between the petitioner and BPCL. Once lessee forgoes his tenancy in agreed terms on the premises in question and ready to vacate, the respondent No. 5 who has licence to operate the petrol pump on the said premises cannot acquire any independent right without having any privity of contract with petitioner.
58. Learned senior counsel for the petitioner has relied upon a judgment of Aditya Oil Co. (supra) to submit that one of the cardinal rules of administrative functioning is to adopt a fair procedure and give opportunity to the party likely to be effected by an adverse decision. He states that by the action of DDA cancelling the allotment of site, the petitioner who was in possession of the site is affected, and hence the petitioner is the affected party.
59. I am unable to agree with the said submission as the land was allotted to the petitioner therein with the consent of DDA. It is further recorded that it was the petitioner who was paying the license fee in terms of the arrangement between Indian Oil Corporation and DDA. Hence, the petitioner was not a stranger to the allotment of land therein. In the present case, the site was allotted to respondent No. 2 on temporary lease basis in the year 1993. The site was not specifically allotted by DDA for use and occupation by the petitioner. In addition, as per ANNEXURE P-2 of the present petition, all the challans for payment of lease rent for the site was paid by the respondent No. 2 to the DDA. Hence, the petitioner is a stranger as far as DDA is concerned and reliance on the said judgment is of no avail to the petitioner.
60. I am of the view that the petitioner and DDA do not have any privity of contract as the fountain head of the relationship of lessor and lessee is between the DDA and respondent No. 2 as per letter dated11.03.1993. It is the respondent No. 2 who further gave the site in question to the petitioner (who was already a dealer of the respondent No. 2) to operate and run the petrol pump. Hence, the petitioner is a dealer and is in occupation of site for on behalf of the respondent No. 2and has no privity of contract with the DDA. Therefore, the petitioner has no locus standi to file the present petition against DDA and the petition is liable to be dismissed on this ground alone. However, I am also proceedings to decide the merits of the matters as well.
61. Learned counsel for the DDA has argued that the petitioner and respondent No. 2 are acting in collusion and have concealed the material facts by stating that they were not aware of the cancellation of the site way back in 1997 which can be clearly borne out from their response to the letter dated 27.08.1997.
62. The petitioner in para 14 of the present petition states that the petitioner was not aware of the cancellation of site. The respondent No. 2 in its counter affidavit has also stated on the same lines as the petitioner. Para 14 of the present petition reads as under:-
14. The above letter dated 28.9.2007 was immediately replied to by the Respondent No.2 vide its letter dated 4.10.2007 and 9.10.2007. Vide the said letters the Respondent No.2 informed the Respondent No.1 that they were not aware of alleged cancellation of petrol pump site in 1997. It was also informed that if the site was cancelled way back in December, 1997 then as to how the Respondent No.1 allowed the petrol pump to run from the said site for last ten years. It was also informed that the Respondent No.1 has been receiving the lease money from the Oil Company without raising any objections, which clearly show that the site was never cancelled. True copies of said letters dated 4.10.2007 and9.10.2007 are annexed hereto as ANNEXURE P-10 (COLLY)
(Emphasis added)
63. The petitioner in the subsequent para of the petition states that the letter dated 27.08.1997 was duly responded by the respondent No. 2 wherein DDA was informed that respondent No. 2 had stopped all supplies to the old site. Another letter was also sent to the DDA informing that no notice was received by them and the license fee had already been deposited. It is further stated that the since no action was taken by the DDA on letter dated 27.08.1997 and DDA continued to accept the lease rent for the site, the petitioner and respondent No. 2 considered the matter as closed.
64. DDA in its detailed counter affidavit has stated that the petitioner and the respondent No. 2 were always aware of the cancellation of the site vide letter dated 27.08.1997 as the same was duly replied by the petitioner on 02.09.1997 and by the respondent No. 2 on 09.09.1997 which was concealed by the petitioner in the present petition.
65. For the sake of perusal, the letter dated 02.09.1997 of the petitioner requesting the DDA to restore the allotment is extracted below:-

66. Further, the letter dated 09.09.1997 of the respondent No. 2 clearly notes about the cancellation of allotment letter dated 27.08.1997. The said letter is reproduced below:-

67. On perusing both the letters, it is clear that the petitioner and respondent No. 2 were fully aware of the letter dated 27.08.1997 regarding the cancellation of allotment of site in 1997 itself.
68. The Honble Supreme Court in catena of judgements including Dalip Singh v. State of U.P., (2010) 2 SCC 114 has observed that it is incumbent on the petitioner to approach the Court with cleans hands without concealing and suppressing the material facts and if not, the petition should be dismissed on this ground only without going into the merits of the matter. Relevant para of the said judgment is extracted below:-
10. In K.D. Sharma v. SAIL [(2008) 12 SCC 481] the Court held that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the writ court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. The same rule was reiterated in G. Jayashree v. Bhagwandas S. Patel [(2009) 3 SCC 141] .
69. In the present case, I am of the view that the petitioner and respondent No. 2 were throughout aware that the site has been cancelled by the DDA in 1997 which has not been disclosed in the petition. Further, neither the petitioner nor the respondent No. 2 placed on record the said letters i.e. 02.09.1997 and 09.09.1997 and were only filed by the DDA in its counter affidavit. In addition, the petitioner has relied on the letters dated 04.10.2007 and 09.10.2007 by respondent No. 2 to urge that the petitioner and respondent No. 2 were not aware of the cancellation of site in 1997. The same is deliberate concealment and has not been explained by the petitioner in rejoinder even after the letters dated 02.09.1997 and 09.09.1997 were placed on record by the DDA.
70. To my mind, the petitioner has concealed vital documents for malafide reasons, hence, the present petition is liable to be dismissed on this ground as well.
71. Learned senior counsel has argued that the action of the DDA is in violation of the principles of the natural justice. It is stated that the letter dated 27.08.1997 refers to a show cause notice dated 26.12.1996 which was never received by the respondent No. 2. Further, DDA was informed by the respondent No. 2 that supplies have been stopped and the license fee has been deposited. Thereafter, the license fees of every year was deposited which was accepted by the DDA unconditionally and unequivocally, respondent No. 2 continued to make supplies with the knowledge and concurrence of the DDA. Hence, it is clearly borne out that show cause notice was never served and the DDA had itself put the cancellation letter in abeyance. Reliance is placed on Life Insurance Corporation of India (supra) and Wills John (supra).
72. It is to be noted that the site in question was cancelled by the DDA on 27.08.1997 on the following grounds:-
5. And whereas it had been found that you have not vacated the old site which is contrary to the terms of allotment letter and the licensor has right to re-enter for breach of terms and conditions of allotment;.
6. And whereas an amount of Rs. 4,94,549/- of license fee is also outstanding against the oil company in respect of site at Mayur Vihar.
7. And whereas you did not show any sufficient response to show cause notice dt. 26/12/1996 not to close the petrol pump at old site. The petrol pumps are running on both the sites. So the allotment of Petrol Pump site has been cancelled.
You are therefore, requested to remove the fixtures standing on the plot and handover the vacant possession of the plot to Tehsildar (East) who shall be present at site at the date and time fixed.
73. DDA was of the view that the old site was not vacated, license fee was not paid and show cause notice was not responded, hence the allotment of site was cancelled. The said cancellation letter was categorically replied by the petitioner and respondent No. 2 vide their letters dated 02.09.1997 and 09.09.1997 (reproduced above) which shows that they were fully aware of the cancellation of site in 1997 itself wherein both the petitioner and respondent No. 2 requested for restoration. Despite both the petitioner and respondent No. 2 being fully aware, both the petitioner and respondent No. 2 did not take any steps till 2007 to challenge/set aside the cancellation letter dated 27.08.1997 on the grounds taken hereinabove.
74. Further, the petitioner by filing the W.P.(C) No. 7338/2007 prayed for allotment of alternate site and therefore, had given up the challenge qua restoration/closure of the site and restricted themselves for the resitment/alternate allotment of the site. More importantly, the order dated 08.10.2007 passed in the above mentioned writ petition was only to consider the resitement of the site. Hence the argument that the action of DDA is in violation of principles of natural justice (i.e. show cause notice not received and non vacation of old site and non payment of license fees) is rejected as the petitioner despite being aware of the cancellation letter in 1997 itself did not choose to initiate any proceedings for a long period of 10 years.
75. Reliance placed on Life Insurance Corporation of India (supra) is misplaced as it was a case wherein the petitioner accepted the 3rd, 4th and 5th premium without any demur despite the 2nd premium not paid. The Court therein rejected the said argument by holding that the petitioner therein is barred under the principles of estoppel and waiver. In the present case, as noted above, the petitioner herein had not approach the Court with clean hands and has concealed the material facts. In addition, the petitioner had approached the Court after a delay of long period of 10 years. Hence the said principle will not apply to the present case.
76. Reliance placed on Wills John (supra) is also misplaced as the Court held that the DDA cancelled the allotment of LIG flat without providing a notice to the allottee. In the present case, the petitioner and respondent No. 2 were fully aware of the cancellation of site in 1997 and despite knowing it, the petitioner did not chose to challenge the said letter at that time. In addition, the petitioner has concealed the material facts as noted above.
77. The other judgments i.e. Jagdish Chopra (supra), Cantonment Board (supra) and Madan Lal Mokhawal (supra) relied by the learned senior counsel for the petitioner are not applicable as the said judgments deal with the lack of notice and the present case is not the same.
78. Another argument canvassed by the learned senior counsel for the petitioner is that DDA has wrongly rejected the resitement application.
79. It is necessary to extract the relevant portion of the Resitement Policy dated 14.08.2003 of the DDA, relied by the learned senior counsel for the petitioner, which reads 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 of 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 site. For holding the draw atleast 3 sites must be available on the date of holding the draw.
(Emphasis added)
80. The above policy clearly states that the resitment will only be done if the existing petrol pump/gas godown is utilized for a planned project. In the present case, by virtue of the cancellation letter dated 27.08.1997, the allotment of the site was already cancelled on the ground of non-vacation of the old site and non-payment of license fees and not on the ground of any planned project/scheme. In view of the cancellation letter, there was no authorized existing petrol pump at site when the application for resitement was decided. The site was being run by the petitioner and respondent No. 2 without any approval from the DDA. The cancellation letter dated 27.08.1997 continued to be in existence and was neither withdrawn nor varied nor modified. As a result, DDA has rightly rejected the application.
81. The fact that the petitioner was running the petrol pump, the respondent No. 2 was making supplies, DDA was accepting lease rent does not set aside, vary or modify the cancellation letter. The said cancellation letter, as of today, still stands.
82. Learned senior counsel for the petitioner has argued that the issue of cancellation was never raised before by the DDA and the same was raised for the first time in 2007. Further, the DDA has accepted the lease rent of the site despite the cancellation. Hence, by the conduct of the DDA, it is deemed that DDA had waived its rights and is now estopped from pleading that the site in question already stood cancelled.
83. The Honble Supreme Court in Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd., (2013) 5 SCC 470 has observed as under:-
I. Approbate and reprobate
15. A party cannot be permitted to blow hot-blow cold, fast and loose or approbate and reprobate. Where one knowingly accepts the benefits of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself. This rule is applied to ensure equity, however, it must not be applied in such a manner so as to violate the principles of what is right and of good conscience. [Vide Nagubai Ammal v. B. Shama Rao [AIR 1956 SC 593] , CIT v. V. MR. P. Firm Muar [AIR 1965 SC 1216] , Ramesh Chandra Sankla v. Vikram Cement [(2008) 14 SCC 58 : (2009) 1 SCC (L&S) 706 : AIR 2009 SC 713] , Pradeep Oil Corpn. v. MCD [(2011) 5 SCC 270 : (2011) 2 SCC (Civ) 712 : AIR 2011 SC 1869] , Cauvery Coffee Traders v. Hornor Resources (International) Co. Ltd. [(2011) 10 SCC 420 : (2012) 3 SCC (Civ) 685] and V. Chandrasekaran v. Administrative Officer [(2012) 12 SCC 133 : (2013) 2 SCC (Civ) 136 : JT (2012) 9 SC 260] .]
16. Thus, it is evident that the doctrine of election is based on the rule of estoppelthe principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppels in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had.
(Emphasis added)
84. The Honble Supreme Court in Pratima Chowdhury v. Kalpana Mukherjee, (2014) 4 SCC 196 has observed as under:-
35..
It needs to be understood that the rule of estoppel is a doctrine based on fairness. It postulates the exclusion of the truth of the matter. All for the sake of fairness. A perusal of the above provision reveals four salient preconditions before invoking the rule of estoppel.
(i) Firstly, one party should make a factual representation to the other party.
(ii) Secondly, the other party should accept and rely upon the aforesaid factual representation.
(iii) Thirdly, having relied on the aforesaid factual representation, the second party should alter his position.
(iv) Fourthly, the instant altering of position, should be such, that it would be iniquitous to require him to revert back to the original position.
Therefore, the doctrine of estoppel would apply only when, based on a representation by the first party, the second party alters his position, in such manner, that it would be unfair to restore the initial position.
85. In the present case, there is no act on behalf of the DDA whereby any factual representation was made. Even assuming there was a factual narration made by the DDA, there is no change/alteration on behalf of the petitioner in its position that too to its detriment. In fact, the petitioner has benefitted as the petitioner has continued to be in occupation of site illegally and without any valid permission from the DDA. In view of the above noted circumstances and findings, the petitioner and respondent No. 2 are not entitled to take the said plea of waiver and estoppel.
86. In addition, I have already held in the above preceding paras that the petitioner has concealed the material facts and has approached the Court with unclean hands. Further, the petitioner has no vested rights in its favour and both the petitioner and respondent No. 2 have waived their right to challenge the cancellation letter.
87. For the foregoing reasons, the present petition is dismissed.
88. Pending applications, if any, are disposed of.

JASMEET SINGH, J
DECEMBER 19,2024/(MSQ)

W.P.(C) 8598/2007 Page 1 of 32