K. SHIVASHANKAR BHAI, J.
(1). The petitioner is aggrieved by the cancellation of the allotment of a site made in his favour by the respondent. According to the petitioner he is carrying on business of running an industrial unit of hosiery at Nicholson Road, Kashmere Gate, Delhi. He further states that the respondent decided to shift the said industry from the walled city to different industrial areas, and in these circumstances the petitioner applied to the respondents for an alternative industrial plot. The application was made in October. 1966. The petitioner also deposited a sum of Rs. 1,250. 00 towards premium for the industrial plot. It is further stated that in January, 1969 the Land Sales Officer of the first respondent informed the petitioner that there has been a decision to allot a plot in favour of the petitioner in Block D of the Okhla Industrial area and that the exact plot to be allotted will be decided by draw of lots. The petitioner was further informed that the draw of lots will be held on 30. 12. 1969. The petitioner further asserts that plot No. 97was allotted in the draw of lots held as aforesaid. On 21. 1. 1970 petitioner was informed of this allotment. Petitioner was also informed that demand notice would be sent to him in due course. In August 1971 petitioner was asked to submit a copy of the challan regarding the amount of earnest money deposited which was complied with by the petitioner. However, petitioner received a letter enclosing a cheque for Rs. l. 250. 00 (Annexure-lll). The petitioner was surprised and protested. In the letter written by the petitioner on 28. 12. 1971 he stated that the first respondent has rejected the application on one side and at the same time allotted a plot on the other side. Petitioner pointed out that there seem to be two files relating to the petitioner's case and there was some mistake committed by the respondents. The petitioner has not produced any document for the subsequent period after this letter dated 28. 12. 1971 till 13. 12. 1976. However, in the writ petition he states that he was pursuing the matter and on 13. 12. 1976 the petitioner was asked to submit copy of the challan etc. with copies of other correspondence. Thereafter the petitioner was asked to attend the office on any working day. Petitioner also submitted several documents in March 1978. But on 9. 7. 1980 (Annexure VIII) petitioner was informed by the respondents that the location of the unit is household industry and such an industry is not required to be p73 shifted. Therefore, the petitioner was not entitled to any alternative allotment. Similar is another letter dated 5. 9. 1980 in which however, petitioner was asked to substantiate his statement that there were a number of units of similar nature who have been given alternative allotment. Petitioner responded on 24. 9. 1980. In this letter he stated that there are similar traders of hosiery units who are running in Pahari Dhiraj and Sadar Bazar etc. who have been allotted industrial plots in Wazirpur Industrial Area as well as in Okhl Industrial Area. According to the petitioner, his case is similar to those cases. Petitioner also gave 21 names who are allegedly the adjoining units of hosiery goods holding household licenses, who have been allotted industrial plots by the first respondent in Okhla and Wazirpur Industrial areas.
(2) ON 23. 2. 1981, petitioner was informed that his case has been examined and allotment has been approved 'at commercial rate +20% '. Petitioner was asked to send his consent at the abovesaid rates. On 9. 3. 1981 petitioner wrote back staling that he was agreeable to pay the 20% commercial price of the plot noted as per the letter dated 23. 2. 1981. Petitioner requested that demand-cum-allotment letter may be issued, to enable the petitioner to deposit the amount. What happened thereafter is not forthcoming but on 8. 2. 1983 the first respondent wrote to the petitioner to deposit a sum of Rs. 3,60,944. 98 within 15 days to Like further action in respect of the subject plot No. D-97, Okhia Industrial Area, Phase-1. On 10. 2. 1983 the petitioner wrote to the Finance Member of the First respondent protesting against the rate of rs. 713. 33persq. Mtr. The petitioner wrote that in respect of similar cases Delhi Development Authority has charged the premium @ Rs. 37. 00 per Sq. Yd. in the similar industrial area. Petitioner further asserted that his factory was already running in the non-conforming area and therefore, the question of charging the rate at the commercial price for the year 1980 did not arise and that the plot was allotted to the petitioner in the year 1969-70. Petitioner requested that old rate of Rs. 37. 00 per Sq. Yd. may be charged. Petitioner was informed by the second respondent on 30. 6. 1983 that it was not possible to reduce the rate and that petitioner was requested to deposit a sum of Rs-3,60,944. 98. The petitioner wrote back on 25. 7. 1983 requesting that the premium should be at the old rates for the year 1969-70. Once again the petitioner was asked by the second respondent on 9. 8. 1983 to make the deposit as demanded earlier. Petitioner did not comply with the request but wrote back on 19. 8. 1983 asserting that similar units were allotted plots at the old rates. Petitioner mentioned 11 instances. The matter was under consideration thereafter. The petitioner pursued the matter with the higher authorities also including the Lt. Governor. On 26. 10. 1988 the petitioner was informed that hosiery industry was not a hazardous or obnoxious industry and therefore its shifting was not considered essential. In the circumstances the petitioner was told that his request cannot be granted. Petitioner on 10. 11. 1988 addressed a letter to the second respondent wherein he staled that he never applied for the allotment of an alternative industrial plot but requested for allotment of an industrial plot from non-conforming to conforming premises and that in view of the Master Plan programme question of canceling the allotment made in favour of the petitioner did not arise. The petitioner reiterated that he was willing to pay the cost of the plot at the rate applicable to the year 1968-69. Subsequently the petitioner has approached this court for appropriate reliefs.
(3) PETITIONER contended that he is entitled to a plot at the rate prevailing in the year 1969, when in fact, he was allotted a plot. According to the petitioner, several others carrying on similar industry as that of the petitioner in the same area, were allotted sites in industrial areas without charging commercial rates and therefore, petitioner also should be treated similarly: denial of such a benefit to the petitioner will be discriminatory. It was also contended that the respondents were estopped from pleading that petitioner is ineligible for allotment of the site at the concessional rate, having already accepted his eligibility as early as the year 1969. According to the petitioner, the present place where he is carrying on the industrial activities is not a proper place and the said activities affect the residents of the locality and in the circumstances, petitioner is expected to shift this industry to a place set apart for industrial activities.
(4) THE respondents dispute the petitioner's claim. According to them petitioner is not eligible for a site at a concessional rate and there was some mistake in the allotment made to the petitioner, in the year 1969. On the discovery of the mistake, earnest money deposited by the petitioner was refunded. Subsequently, the 1st respondent decided to allot a site to the petitioner at the commercial rate plus 20%. which was initially accepted by the petitioner. However, subsequently, the petitioner took a different stand and insisted that he should be allotted the site at the old concessional rate, for which he was not at all eligible. The petitioner has not given proper detail to show that persons similar to the petitioner were allotted sites at concessional rates: since the relevant basic fact as to the similarity of the situation has not been shown to exist, question of discrimination does not arise. If the petitioner is not eligible for a site at the concessional rate as per the statutory Rules, he cannot seek any equitable relief on the basis of the doctrine of estoppel, It was also urged that the cancellation of the mistaken allotment made in the year 1969 by the return of the earnest money deposit is not under challenge and therefore, on the ground of the said allotment, petitioner cannot seek any relief now. The writ petition was filed only in December 1988 and having regard to the steep increase in the commercial rate of the sites now, it will be inequitable and contrary to public interest, to grant any site even on the basis of the allotment made in the year 1981.
(5) IT is necessary to note that according to the respondents original file relating to the allotment of the site in the year 1969 is missing; at the same time, it is also necessary to note p73 that the petitioner has not produced any document or copy of the letters written by him between the years 1971 to 1976. Another aspect of the case requiring to be considered is that on 23. 2. 1981 as per Annexure XI, 1st respondent agreed to allot a site at commercial rate plus 20%: obviously petitioner accepted this offer as per his letter dated 9. 3. 1981 (Annexure XII): in this letter petitioner, after referring to Annexure XI (letter of the 1st respondent dated 23. 2. 1981), stated, ". . . . we hereby agree to pay the 20% commercial price of the plot. . . . as per your instructions. You are therefore, requested to kindly send me the demand-cum-allotment letter of the above said plot at the earliest as possible, so that we may be able to deposit the same. . . . ". Whenon8. 2. 1993 (nearly2years thereafter). Petitioner was asked to deposit Rs. 3,60,944. 98 (Vide Annexure XIII), he backed out as could be seen from his letter dated 10. 2. 1983 (Annexure XIV). Petitioner reiterated the plea that in similar cases like that of the petitioner, 1st respondent charged the premium at the rate of rs. 37. 00 per Sq. Yd. and insisted that the said old rate for the year 1969-70 only should be charged. This request was not acceptable to the 1st respondent (Vide Annexure XV). Petitioner persisted. Ultimately petitioner's request was rejected again on 26. 10. 1988 (Annexure XXIV) on the ground that "the hosiery industry is not a hazardous or obnoxious industry and therefore, its shifting is not considered essential".
(6) IN the reply to the writ petition filed on behalf of the 1st respondent, it is stated, at para 12:-
"on examination of the case, it was found that the petitioner had started functioning from premises No. 3707 Jamadar Street, Pahari Dheeraj, Delhi besides at 1667/b/1. Shastri Nagar, Delhi. It transpired from the license issued by the MCD to the petitioner that it was for Household Industry'. There was no need to shift the unit from the said premises. The petitioner was informed vide letter dated 9. 7. 1980 that it was not entitled to any alternative allotment. "
(7) AS to the alleged discrimination, the reply says:-
"the petitioner's case, as explained, did not fall within the ambit of the policy for shifting Industrial concerns from non-conforming areas. In fact, he had ceased to function from the Kashmere Gate, which was the non-conforming area. The other areas Pahari Dheeraj and Shastri Nagarin view of the circumstances and relevant determining factors like the type of license issued by the MCD to the petitioner (for running household industry) as also the nature, extent and volume of his business, were considered to be not non-conforming areas for the business like that of the petitioner. The case of other hosiery concerns, if any, to whom allotment were made are distinguishable considering the license held by the industry to be run and the nature, extent and volume of their business. Merely because any such concern was found eligible for allotment is no ground for the petitioner to stake a claim for allotment, since the petitioner's case was not found to be covered by the eligibility qualifications/ standard for shifting of industrial concerns. Since the petitioner on his own wanted to shift his business from his present premises at Pahari "dheeraj and Shastri Nagar and was pressing hard for allotment, he was offered allotment at commercial rates plus 20% just to accommodate him. "
(8) HAVING regard to the respective contentions of the parties, following questions require to be considered:--
(I) Whether petitioner is entitled to the allotment of an industrial site at the commercial rate of the year 1969? (II) Whether respondents are estopped from questioning the eligibility of !he petitioner for allotment on concessional basis? (III) Whether denial of a site at concessional rate of the year 1969 would be discriminatory und would offend Article 14 of the Constitution of India? (IV) Whether petitioner is entitled to the site in terms of the allotment letter dated 23. 2. 1981 (Annexure XI)atlhis distance of time? (V) What relief, if any could be granted to the petitioner?
RE: QUESTION NO. (III):
(9) LET me consider the third question first, since it is mainly based on facts. A petitioner resting his case on Article 14 of the Constitution shall have to plead the relevant facts precisely and exhaustively. A mere assertion of a right under Article 14 is not sufficient. Burden of pleading and then proving the relevant facts is essentially on the petitioner. The initial burden could be discharged by pointing out the facts in detail with reference to the available documents. When the petitioner asserts that persons similarly situated like the petitioner, were allotted sites at a concessional rate, he should give the details of the similarity. Writ petition in this regard is vague except referring to Annexure X and XVIII wherein, petitioner had given the names of a few Hosiery Units who were allotted sites in industrial area in question. In Annexure x petitioner had given 21 names. while in Annexure XVIII the list stood reduced to 11 (These II names are found in Annexure X also). Petitioner averred in para 19 of the writ petition that he furnished the details in respect of "industries" for which old rates have been charged. In Annexure X petitioner stated that he was giving the names of "other adjoining units of hosiery goods and holding house-hold licenses, who have been allotted the industrial plots" at Okhla and Wazirpur industrial areas. Nowhere he stated that they were allotted the site at concessional rates, on receipt of Annexure X. the 1st respondent agreed to allot a site to the petitioner at commercial rate plus 20%. In fact. petitioner's letter Annexure XVIII is quite revealing. It reads:-
"we are in receipt of your letter mentioned above and beg to submit herewith that most of the similar units like us, who are also holding the house-hold industries license issued by the MCD (Licensing Authority) and they have charged the premium by the Delhi Development Authority at the rate of 20% Additional Commercial price. This can be verified from your office records. Now we fail to understand that how this step-motherly treatment has been done with us. Their names are given below:"
(10) THEREAFTER 11 names are given. But the last sentence in the concluding para stales that his case may be considered sympathetically and "charge the premium of the said plot at the same old concessional rates, as charged to the above units. . . . ".
(11) THERE seems to be some contradiction between the two parts of this letter; while the opening part proceeds. is if "20% Additional commercial price" was charged while allotting sites to the 11 named units the last pan assumes that it was a concessional rate.
(12) RESPONDENTS have denied any similarity between the petitioner and those others who were allotted with the sites. Petitioner. atleast, could have asserted that those others also were not asked to shift their units to industrial areas. Petitioner also should have explained as to whether the size and volume of his industrial activities were the same as those of others. In his rejoinder filed on 3. 7. 1989, petitioner asserted that alternative sites to five units (named in para 12 of the rejoinder) were allotted sites at concessional rates. He reiterated that there was "no distinguishing feature between the above said factories and the petitioner".
(13) ON these pleadings, it is not possible for me to hold definitely that petitioner has been discriminated. Further, in case. a few individuals or individual units were wrongly favoured by the 1st respondent, this court cannot compel the 1st respondent to repeal the same wrong doing in favour of the petitioner by recourse to Article 14 of the Constitution of India. There cannot be a constitutional right to be illegally favoured only because, a few others were so favoured. Petitioner shall have to establish that under the relevant statutory provisions or under (he law governing the allotment of industrial sites by the 1st, he is eligible for allotment at a concessional rate. The relevant principle is stated in, Narain Dass and others Vs. Improvement Trust. Amritsar and another; AIR 1972 SC 865 at page 871:-
"equal laws have to be applied to all persons in the same situation and there must be no discrimination between one person and another if as regards the subject matter of the legislation their position is substantially the same. Section 56 does not suffer from any vice offending Article 14 and indeed it was not so contended by Shri Gupte. What was contended by him was that while administering Section 56 there has been hostile discrimination against the appellants because lands under orchards belonging to persons similarly placed have been exempted whereas the appellants have been refused exemption. No doubt, equal protection can be denied as much by the administration of a law as by legislation. . . . . . . . . In any event if the appellants have failed to bring their case within Section 56 of the Act then merely because some other party has erroneously succeeded ingetting his lands exempted ostensibly under that Section that by itself would not clothe the present appellants with aright to secure exemption for their lands. The rule of equality before the law or of the equal protection of the laws under Article 14 cannot be invoked in such a case. "
(14) THIS aspect of the question, to a large extent overlaps with the first question formulated by me. If the petitioner has no legal right for the allotment, and he does not satisfy the requirements of eligibility, he cannot seek the allotment of the site, only because, the 1st respondent acted illegally or ultravires in a few cases, 1st respondent is an instrumentality of the State: sites owned by it are public properties which cannot be parted by it to ineligible persons. When allotment of sites are governed by statutory provisions, allotment could be made only as per those provisions. Any allotment to be directed by this court can only be on the basis of those statutory provisions. By recourse to Article 14, this court cannot alter the statutory scheme of allotment, only because the statutory body has not adhered to the said scheme in a few cases.
(15) THE crucial question is whether the petitioner is eligible for the site sought for. According to the petitioner he is entitled to the site with reference to the year 1969-70. In fact the allotment made with reference to the said year was withdrawn by return of the earnest money and the petitioner did not challenge the same within a reasonable time. Only because the petitioner went on corresponding and in the year 1981 a site was allotted to the petitioner it cannot be said that his case was accepted with reference to the earlier year. In February, 1981 the first respondent decided to allot the plot, as already noted, but, at the commercial rate and the petitioner though initially accepted the allotment, subsequently backed out of the transaction. The learned counsel for the respondents pointed out that the allotment of land is governed by the provisions of Delhi Development Act, 1957 (Act for short) and Delhi Development Authority (Disposal of Developed Nazul Land) Rules 1981 (for short the Rules). Theruleswerepublishedon26. 9. 1981. The petitioner has not referred to any particular provision of law which creates eligibility in the petitioner. It is only the contesting respondent which referred to these provisions and pointed out that the allotments are regulated by the statutory provisions.
(16) SECTION 22 of the Act governs Nazul Lands. The said provision also states that when Nazul land has been developed it shall be dealt with by the Authority in accordance with the Rules and the directions given by the Central Government. The Rules obviously were made in pursuance of Section 22. Chapter 2 of the Rules provides for the disposal of the Nazul lands. The land may be allotted for various purposes including industrial and commercial uses. Rule 6 provides for allotment of Nazul lands at pre-determined rates. Clause (i) provides for the allotment of land to individuals whose land has been acquired. Clause (ii) provides for the allotment of land to individuals in the low income group or the middle income group other than specified in clause (i) subject to other clarifications stated therein. Again clause (iii) also refers to individuals; the allotment is by draw of lots to be conducted under the supervision of the Land Allotment Advisory Committee. Clause (iv) refers to Scheduled Castes and Scheduled Tribes or widows of defence personnel. Clause (v) refers. to industrialists or owners and occupiers of warehouses who are required to shift their industries and warehouses from non-conforming areas to conforming area under the Master Plan or whose land is acquired or is proposed to be acquired under the Act. Clause (vi) pertains to Cooperative Societies.
(17) ADMITTEDLY clauses (i) to (iv) are not attracted to the petitioner's case. Petitioner throughout contended that he is required to shift his industry to conforming area and therefore he is entitled to the allotment of a site. Learned counsel for respondents 1 and 2 pointed out that the petitioner's claim was rejected because there was no requirement that the petitioner should shift his industry to any other place. Repeatedly the petitioner was told about this. One such letter is dated 9. 7. 1980 wherein it was pointed out that the location of the petitioner's unit is household industry which is not required to be shifted and therefore the petitioner was not entitled to any alternative allotment. In 1981 the 1st respondent decided to allot a site to the petitioner at commercial rate plus 20%. This also cannot fall under Rule 6 because Rule 6 contemplates the allotment of site at predetermined rate which is far from the commercial rate. Pre-determined rate is defined in Rule 2 (1). which admittedly is far lower than the commercial rate. Therefore, the basis of the allotment made on 23. 2. 1981 also is not Rule 6 or any similar rule. I may note here that as on 23. 2. 1981 the Rules were not in force because they were brought into operation subsequently. However, it is clear that even during the earlier period there were certain criteria governing the allotment of sites and a distinction was made between commercial rate and pre-determined rate. The petitioner could not persist further that he should be charged only (he old rate prevailing in the year 1969 or thereabout. . The same was rejected on the ground that the petitioner was not required to shift his industry.
(18) ADMITTEDLY the petitioner is carrying on his industry even now in the same area and not in any particular industrial area. It is also not in dispute that the petitioner has not been asked to shift his industry. If s. ' as on today there is no threat against the petitioner to shift his industry. In such a situation it is impossible to bring in Rule 6 (v) to create any eligibility in the petitioner for the allotment of a site. If any site is now allotted in favour of the petitioner at pre-determined rate in contradiction to the commercial rate, it will be a clear case of an ultravires allotment. Rule 7 provides for the allotment of land to certain licensed industrialists for the purpose of the license but in such a situation the premium to he charged shall be the premium fixed having regard to the prevalent market price of the land. No other Rules govern the allotment of a site for industrial purpose except Rule 19. Rule 19 (2) provides a procedure: it also provides for the number and size of the plots which shall be determined by the 1st respondent authority. Allotment shall have to be made at the advice of the Land Allotment Advisory Committee. Rule 45 states that these Rules are supplementary to the directions of the Central Government. Rule 45 (2) (b) empowers the Central Government to issue directions to dispense with or relaxing the requirement of any rule to such an extent and subject to such conditions as may be specified in the direction in any particular case where the Central Government for reasons to be recorded by it is satisfied that the operation of any rule causes undue hardship.
(19) I have already noted that the petitioner has not referred to any particular provision of the Act or the Rules under which he is eligible to be allotted a site at a concessional rate. His case throughout has been that he is required to shift. His unit is, therefore, entitled to an alternative site. He is also claiming a right on the basis that other similar persons have been allotted with the sites. But if there is no eligibility in the petitioner for allotment of a site, it will not be possible for this court to direct the respondent to allot a site in favour of the petitioner. I am of the firm view that the concept of equality under Article 14 does not envisage an equal treatment in illegality. Article 14 contemplates equal protection of the laws. It does not extend the bene
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fit of an illegality to anyone. RE: QUESTION NO. 3: (20) IF the petitioner is not legally entitled to a site and the petitioner's eligibility is in accordance with any statutory requirement, petitioner could not lake any shelter under the doctrine of estoppel. In fact the respondents had at the earliest point of time withdrawn the allotment made in favour of the petitioner on the ground that the petitioner is not eligible. Mistaken allotment made at one point of lime cannot be a foundation to plead estoppel against respondents 1 and 2. RE: QUESTION N0. 4: (21) ON 23. 2. 1981 the petitioner was allotted with a site subject to the condition that he should pay the premium at the commercial rate + 20%. Petitioner initially agreed but later persisted in his demand that only concessional rate should be applied. The offer made by the first respondent was not accepted by the petitioner. The allotment was accordingly cancelled. The respondents 1 and 2 had no option except to cancel the allotment in view of the stand taken by the petitioner. (22) THOUGH the learned counsel for the petitioner contended before me that the petitioner is now willing to pay the commercial rate prevalent in February 1981 for the site. I am of the view that it is too late for the petitioner to take such a stand after the lapse of nearly 13 years. This court cannot ignore (lie fact that the prices of land have gone up several times and the property cannot be directed to he allotted in favour of a person like the petitioner at a rate that was prevailing 13 years earlier. RE: QUESTION N0. 5: (23) HAVING regard to my findings on all these questions normally the writ petition should be dismissed. However, it is necessary to note that the petitioner is carrying on its business in an area which is not exclusively an industrial area. He has alleged that several persons have been allotted sites in industrial areas and his case is similar to the cases of those other persons referred by him in the writ petition and the annexures. I have rejected the claim of the petitioner on the ground that the petitioner has not shown that he is eligible under the Rules for allotment. But I find that under Rule 45 (2) the Central Government may relax the rule in case the denial of the allotment of the site in favour of the petitioner will really cause hardship to him and in fact it will be a case of discriminatory treatment. This aspect is in the realm of facts. Therefore. I permit the petitioner to approach the Central Government under Rule 45 (2) for the requisite relief and it is open to the Central Government to consider the case of the petitioner according to law and in the back ground of the proved facts. Since the Central Government is not a party to the writ petition it is not possible for me to direct the Central Government. Subject to the above observations the writ petition is dismissed.