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Judgment
MINI PUSHKARNA, J (ORAL)
The present Review Petition under Section 114 of the Code of Civil Procedure, 1908, (“CPC”), has been filed on behalf of the petitioner in W.P. (C) 4986/2020, seeking review of Judgement dated 07th June, 2024, by way of which, the said writ petition was found to be without any merits by this Court, and disposed of, accordingly.
The present Review Petition is filed on the ground that that the review petitioner, i.e., petitioner in writ petition, has discovered crucial documents and information, upon inspection of the original file maintained by the Delhi Development Authority (“DDA”), in relation to the present matter.
Learned counsel appearing for the review petitioner submits that the documents and information, as discovered in the original file of the DDA, evidences towards the creation of legally enforceable vested rights in favour of the petitioner society, and discrimination carried out by the DDA against the petitioner society, in allotment of land.
It is submitted that six societies were allotted pieces of land in Vishwas Nagar on the basis of their seniority. The DDA, despite being fully aware that the land was under unauthorized and illegal occupation of squatters, upon which an unauthorized colony had been established, allotted the land in question to the petitioner society, upon the petitioner exercising the option for allotment at Vishwas Nagar vide letter dated 27th June, 2002.
It is submitted that letter dated 04th December, 2002, and its reply dated 4th August, 2004, found in DDA’s record, show that the petitioner never requested for the change of land from Vishwas Nagar. Rather, it was the DDA which insisted the change of land. Further, the said documents could not be procured earlier by the petitioner society, as the same were communications with the previous management of the petitioner society, which did not handover the same to the current management.
He submits that upon inspection of DDA record, the petitioner also discovered letter dated 25th August, 2004, wherein, the DDA has made reference to the allotment of land to the petitioner society.
Learned counsel appearing for the review petitioner, submits that it was further discovered that the DDA meted out discrimination towards the petitioner society, as the other five societies, two of whom were junior to the petitioner in the list, were allotted lands in Dwarka.
He further submits that the question of delay would have arisen, only if there was no existing right in favour of the petitioner. However, by virtue of the discovery of new documents and information, it becomes clear that the petitioner has a vested right in their favour with respect to allotment of land in Dwarka.
Per contra, learned Senior Counsel appearing for the respondent – DDA, submits that the petitioner is relying upon the internal documents of the DDA. He submits that unless the documents are communicated to the petitioner, no rights will accrue in favour of the petitioner.
He further submits that in order to exercise the power of review, there has to be an error apparent on the face of the record, in the judgment of this Court. However, the petitioner has not been able to point out any error apparent in the said judgment. Further, the petitioner was bound to exercise due diligence, therefore, the delay on part of the petitioner cannot be condoned for the purposes of the present Review Petition.
I have heard learned counsel for the parties and perused the record.
The present review petition has been filed on the basis of discovery of certain documents viz. letter dated 04th December, 2002 written by DDA to the petitioner society, letter dated 4th August, 2004 written by the erstwhile management of the petitioner society to the DDA and letter dated 25th August, 2004 written by the DDA to its various departments.
The letter dated 04th December, 2002, as filed with the present review petition, reads as under:
“DELHI DEVELOPMENIT AUTHORITY GROUP FIOUSINTG SOCITIES
No. F.7(04) 2001/GH /DDA/4294 Dated:04/12/02
To
The Secy./President, New Avantika CGHS LTD. C-202 Vasundhara Apptt. Plot no.16, Sect. 6, Dwarka, New Delhi-45
Sub:- Allotment Letter of land at Vishwas Nagar,
Sir,
In continuation to this office letter dated 27/5/02 on the subject cited above. In this context, I am directed to inform you that as per final layout plan received from Planning Wing, only 5 Societies have been adjusted in Vishwas Nagar as sufficient land for all the societies opted land at Vishwas Nagar, is not readily available. You are therefore informed that your society will be adjusted in Vishwas Nagar in future only subject to availability of land and vacation of Stay order. It is further stated if you want to take land in Dwarka or Dheerpur you may send your consent for the same within a month's time.
Dy., Director (GH) DDA” (Emphasis Supplied)
Reading of the aforesaid letter shows that the DDA by way of the aforesaid letter dated 04th December, 2002, had clearly communicated to the petitioner that sufficient land for all the societies at Vishwas Nagar was not readily available, and that the petitioner society will be adjusted therein, in future, subject to availability of land.
The second letter relied upon by the petitioner is letter dated 04th August, 2004 written by the petitioner to the DDA, which reads as under:
NEW AVANTIKA CO-OPERATIVE GROUP HOUSING SOCIETY LTD No.657/83 (GH) C-202, Vashundhra Apartments, Plot No. 16, Sector-6, Dwarka, New Delhi-110045 Ref. No... Date: 4.8.2004
Vice Chairman, Delhi Development Authority, I.N.A, Vikas Sadan, New Delhi
Sub: Allotment of land for Construction of DH's for 114 Members of New Avnatika CGHS Ltd. Ref No.: F-7(04
Sir,
Our society of 114 nos. members was registered by the Registrar of societies vide registration no. 657. (Copy of registered certificate is enclosed).
Vide letter dated 2.11.2001 by the Dy. Director (GH), societies were directed to deposit 35% cost of land. A sum of Rupees One Core Ten Lacs towards 35% of the cost of 6500 Sqm. Plot was deposited by us on 2.4.2002. (Copy of challan is enclosed)
The Dy. Director (GH) vide its letter dated 27.6.2012 allotted land measuring 6500 Sqm., further stating that specific number of plot and demand-cum-allotment letter shall follow. (Copy of letter dated 27.06.2007 is enclosed). A map showing the allotment of land was displayed at the office of DDA and we noticed from the sail atap that on society was allotted plot no. A-4 by DDA.
Thereafter, we visited the site and came to know that there was stay by Hon'ble High Court on a plot of about 700 Sqm, which was obtained by a Kabari who was in possession of the said land. Besides the said stay order, nose than 50% of the land was illegally encroached by other Jhuggi Dwellers. Moreover the plot of land which has been allotted to us is fully surrounded by other jhuggi dwellers and there is no proper approach to the said plot. (Copy of the photographs are enclosed for your ready reference). We have stated the above facts which are true and prevailing at the site. We also request you to deput some Sr. Officer from the department to also verify the aforesaid facts as stated by us.
SD 17/8
The society vide letter dated 27.03.2003 had requested the Dy. Director (GH) for allotment of land in Dwarka (copy of letter is enclosed).
Vide our letter dated 10.03.2004, we had again requested the vice chairman, lt. governor, commissioner (LM-I) and commissioner (LD) DDA Wherein all the facts were stated and it was request to allot land in Dwarka at the earliest.
From the aforesaid facts, it is clear that we had deposited a sum of Rs, 1,10,00,000/- (Rupees one crore ten lacs only) towards cost of 6500 Sqm. Of land on 02.04.2002 and the plot which was allotted to us by DDA at Vishwas Nagar being totally encroached by Jhuggi Dwellers and without any proper approach, we had request DDA to allot us plot in Dwarka as also allotted to other societies, vide our letter dated. 27.03.2003 and again vide letter dated 10.03.2004. but it appears that no action is being taken by the Authority in spite of our repeated requests, reminders and personal visits. The delay in allotment of land by DDA is causing heavy losses as the prices are going up day by day which will have direct effect on the construction of flats for the members of the society.
We, therefore request you to kindly personally look unto the matter and direct the concerned officials to allot land to the society in Dwarka, without further delay.
Encls: As Above:
For New Avantika Co-Operative Group Housing Society Ltd. President/Secretary/ Treasurar
Copy to:
1.Lt. Governor NCT of Delhi.
2.The Commissioner (LM-1)DDA, INA Vikas Sadan, New Delhi.
3.The Commissioner (LD-1)DDA, INA Vikas Sadan, New Delhi.
Perusal of the aforesaid letter shows that the DDA had informed the petitioner society vide letter dated 27th June, 2012, that specific number of plot and demand-cum-allotment letter shall follow. However, a map showing the allotment of land was displayed at the office of DDA and the petitioner society itself assumed that plot no. A-4 had been allotted to it by the DDA, without any formal communication by the DDA, in this regard. The petitioner society visited the alleged site on its own, without any handing over/taking over by the DDA and wrote to the DDA that the alleged plot of land allotted to it, was surrounded by jhuggi dwellers and there was no proper approach to the said land.
Further, the letter dated 25th August, 2004 written by the DDA, as relied by the review petitioner, is reproduced as under:
Reading of the aforesaid letter dated 25th August, 2004, clearly shows that the same is an internal document, and was never communicated to the petitioner society.
The letter dated 25th August, 2004, has been heavily relied upon by the review petitioner to submit that rights vested in the petitioner with regard to the allotment, had been recognised by the DDA. However, it is evident that the said letter is in the nature of an inter-departmental communication by the DDA, and the same cannot confer any vested right in favour of the petitioner society. The petitioner cannot in any manner rely upon documents which form part of internal communication of a department and claim rights in their favour on the said basis. Law in this regard is very clear that inter-departmental communications cannot be relied upon as basis for any right. Thus, the Supreme Court in the case of Mahadeo and Others Versus Sovan Devi and Others, (2023) 10 SCC 807, has held as follows:
“xxx xxx xxx
15.It is well settled that inter-departmental communications are in the process of consideration for appropriate decision and cannot be relied upon as a basis to claim any right. This Court examined the said question in a judgment reported as Omkar Sinha v. Sahadat Khan [Omkar Sinha v. Sahadat Khan, (2022) 12 SCC 228: (2023) 2 SCC (L&S) 391]. Reliance was placed on Bachhittar Singh v. State of Punjab [Bachhittar Singh v. State of Punjab, 1962 SCC OnLine SC 11: AIR 1963 SC 395] to hold that merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government, two things are necessary. First, the order has to be expressed in the name of the Governor as required by clause (1) of Article 166 and second, it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up, the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. The said judgment was followed in K.S.B. Ali v. State of A.P. [K.S.B. Ali v. State of A.P., (2018) 11 SCC 277], and Dyna Technologies (P) Ltd. v. Crompton Greaves Ltd. [Dyna Technologies (P) Ltd. v. Crompton Greaves Ltd., (2019) 20 SCC 1] xxx xxx xxx” (Emphasis Supplied)
Even otherwise, the aforesaid letters as relied upon by the petitioner, would not in any way confer any benefit on the petitioner. This Court notes that the earlier allotment of land to the petitioner was under the DDA (Disposal of Developed Nazul Land) Rules, 1981 (DDA Nazul Land Rules), wherein, land was allotted on pre-determined rates. Subsequently, the said DDA Nazul Land Rules were amended vide notification dated 11th March, 2021, by which the various residential plots, are to be sold only by auction.
By way of the judgment dated 07th June, 2024, this Court has held very categorically that the earlier policy of the DDA, with respect to allotment of land to Group Housing Societies for construction of flats at pre-determined rates, was amended. After amendment, allotment of land to a Group Housing Society can be made only on payment of such premium, as may be determined, either by auction or by tender. Therefore, the petitioner society cannot claim allotment at pre-determined rates, when the policy in this regard has already changed.
Further, in the judgment dated 07th June, 2024, this Court has taken note of the letter dated 13th January, 2005, which is reproduced as under:
Thus, by reference to the aforesaid letter dated 13th January, 2005, it has clearly been recorded in the judgment dated 07th June, 2024, that the request of petitioner society for allotment of the land had been changed from Vishwas Nagar to Dwarka. Further, there were no plots of the required size and category available in Dwarka, for allotment to the petitioner society. Therefore, when the whole policy of the DDA had undergone change in the meanwhile, the Court cannot direct the DDA to make any allotment, contrary to the amended policy. Thus, in the judgment under review, this Court has held as follows:
“xxx xxx xxx
21.It is well settled in law that right of a state or a statutory authority to change its policy from time to time under the changing circumstances cannot be questioned. Thus, when amendment has been brought in the DDA Nazul Land Rules, clearly providing that disposal of nazul land can be done only through auction or tender, the DDA cannot deviate from the new amended policy to allot land to the petitioner-society at pre-determined rates. The petitioner-society is at liberty to take part in the auction process as per the amended policy, however, it cannot insist on allotment of land on pre-determined rates, as per the old policy. Besides, it is also to be noted that the petitioner-society has not challenged the new amended policy and would be bound by the prevalent policy. xxx xxx xxx” (Emphasis Supplied)
Besides, this Court has also noted that after the aforesaid letter of the year 2005, there was no communication between the DDA and the petitioner society, till 2014 and 2015, and thereafter in the year 2019 and 2020. The petitioner approached this Court belatedly, when the present writ petition came to be filed in the year 2020. The observations of the Court in this regard, in the judgment dated 07th June, 2024, are as follows:
“xxx xxx xxx
19.It is also noted herein, that the initial proposal to allot land in favour of the petitioner-society, was made by the DDA by way of its letter dated 02nd November, 2001. Subsequently, vide letter dated 13th January, 2005, the request of the petitioner-society for change of locality to Dwarka, was acceded to. The petitioner-society had been communicated in the year 2005 itself that allotment of land shall be made, as and when plot of the required size and category, was available in the locality of Dwarka. Thereafter, as per the documents on record, the petitioner made a request for allotment of land in its favour, in the year 2005 by way of letter dated 09th February, 2005 and 26th April, 2005. Thereafter, the petitioner-society did not take up the matter with the DDA for a long time and it is only in the year 2014 and 2015 that the petitioner-society made various representations to the DDA. Subsequently, the petitioner-society sent reminders to the DDA in the year 2019 and 2020, whereupon, the present petition came to be filed in the year 2020. Thus, it is apparent that the petitioner-society has approached this Court at a very belated stage, when the initial proposal letter was issued in its favour in the year 2001, followed by proposal in its favour in the year 2005, when it was proposed to allot land in its favour in Dwarka, as and when the plot of the required size and category, was available. xxx xxx xxx” (Emphasis Supplied)
In the judgment under review, this Court has clearly noted the stand of the DDA, that no society has been allotted residential plots at pre-determined rates, after the amendment to the DDA Nazul Land Rules, in the year 2021.
Accordingly, the petitioner has not been able to point out any error apparent on the face of the record in the judgment dated 07th June, 2024, passed in W.P.(C) 4986/2020. The documents, as filed along with the present review petition, also, do not benefit the petitioner in any manner, in view of the discussion hereinabove.
On the aspect of “due diligence” and “mistake or error apparent on the face of the record”, the Supreme Court in the case of State of Telangana and Others Versus Mohd. Abdul Qasim, (2024) 6 SCC 461, has held as follows:
“xxx xxx xxx
25.The words “due diligence”, though one of fact, places onus heavily on the one who seeks a review. It has to be seen from the point of view of a reasonable and prudent man. Though an element of flexibility is given to any evidence or matter on its discovery, it has to be one which was not available to the court earlier. It could not have been produced despite due diligence, meaning thereby that it should have been available and, therefore, in existence at least at the time of passing the decree.
26.Mistake or error apparent on the face of record would debar the court from acting as an appellate court in disguise, by indulging in a re-hearing. A decision, however erroneous, can never be a factor for review, but can only be corrected in appeal. Such a mistake or error should be self-evident on the face of record. The error should be grave enough to be identified on a mere cursory look, and an omission so glaring that it requires interference in the form of a review. Being a creature of the statute, there is absolutely no room for a fresh hearing. The court has got no role to involve itself in the process of adjudication for a second time. Instead, it has to merely examine the existence of an apparent mistake or error. Even when two views are possible, the court shall not indulge itself by going into the merits. xxx xxx xxx” (Emphasis Supplied)
Furthermore, once it is held that there is no vested right in favour of the petitioner for allotment of the land, the questions brought forth by the review petitioner in reference to the documents, are nothing but an attempt to argue and re-agitate the issues afresh, which have already been dealt with by this Court. This Court, while hearing a review petition, will not hear the matter as an appeal by an Appellate Court, as sought to be done in the present case.
While delving on the scope of review petition, the Supreme Court in the case of Kerela State Electricity Board Versus Hitech Electrothermics & Hydropower Ltd. & Others, (2005) 6 SCC 651, held that in a review petition, it is not open to this Court to re-appreciate the evidence and reach a different conclusion, even if that is possible. Thus, it has held as follows:
“xxx xxx xxx
10.This Court has referred to several documents on record and also considered the documentary evidence brought on record. This Court on a consideration of the evidence on record concluded that the respondent had been denied power supply by the Board in appropriate time which prevented the respondent from starting the commercial production by 31-12-1996. This is a finding of fact recorded by this Court on the basis of the appreciation of evidence produced before the Court. In a review petition it is not open to this Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise. xxx xxx xxx” (Emphasis Supplied)
It is settled law that discovery of new evidence or documents thereof, should be of such character that, upon presentation, it should have the effect of alteration of the judgement in review. Further, the same should be acquired with due diligence. Thus, the Supreme Court in the case of State of West Bengal and Others Versus Kamal Sengupta and Another, (2008) 8 SCC 612, has held as follows:
“xxx xxx xxx
21.At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court earlier. xxx xxx xxx” (Emphasis Supplied)
In view of the detailed discussion hereinabove, this Court is of the view that there is no merit in the present Review Petition. Accordingly, the present review petition, along with the pending applications, is dismissed.