*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 25th April, 2012
+ LPA No.318/2012
DELHI DEVELOPMENT AUTHORITY ..... Appellant
Through: Mr. S.D. Salwan & Mr. Neeraj
Chaudhary, Advs.
Versus
AMARJEET SINGH ..... Respondent
Through: None.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW, J
1. This intra-court appeal impugns the order dated 07.03.2011 of the learned Single Judge allowing W.P.(C) No.7510/2009 preferred by the respondent by directing the appellant DDA to hold a mini draw and to allot an LIG flat to the respondent.
2. The respondent was a registrant with the appellant DDA in the Rohini Residential Plotted Scheme (RRPS), 1981. However till the year 2002, i.e. for over twenty years, no allotment in pursuance to the said registration fructified. On 13.06.2002, the appellant DDA announced the Narela Housing Scheme (NHS), 2002. The waiting registrants inter alia LPA No.318/2012 Page 1 of 11 of RRPS, 1981 were also eligible to apply thereunder. Clause I of the said Scheme is as under:
"I. SCHEME This Scheme is called „Narela Housing Scheme, 2002 of the Delhi Development Authority‟. Under this scheme applications are invited from the General Public for allotment of HIG, MIG, LIG/EHS and Janta flats for any category. The waiting registrants holding a registration with DDA under New Pattern Housing Scheme-1979, Ambedkar Avas Yojna-1989, Janta Housing Scheme-1996 and Rohini Residential Plotted Scheme-1981 can also apply under this Scheme.
The interested persons are free to have the option to apply for any category of flat as per their requirement and affordability irrespective of their registration under any category. The successful waiting registrants of old schemes applying for allotment of flat under this scheme will forfeit their right for further allotment of flat or plot under the relevant scheme, they are already registered with the DDA."
3. The respondent applied under the NHS, 2002 also and was successful and an LIG flat thereunder was allotted to him. However, the respondent did not accept the said allotment and rejected the same citing odd location and lack of basic amenities. The said rejection was accepted by the appellant DDA and the registration amount for NHS, 2002 refunded to the respondent.
LPA No.318/2012 Page 2 of 11
4. The respondent soon thereafter informed the appellant DDA that since he had not accepted the allotment under the NHS, 2002, he was desirous of keeping his registration under the RRPS, 1981 alive.
5. The registration of the respondent in the RRPS, 1981 matured sometime in the year 2004 and an LIG plot admeasuring 32 sq. mtrs. was allotted to him. The respondent deposited the amount demanded but before the allotment could be formalized and possession handed over to the respondent, the appellant DDA cancelled the said allotment on the ground of the respondent being disentitled thereto for the reason of having rejected the allotment under the NHS, 2002. Impugning the same, the writ petition from which this appeal arises was filed.
6. The learned Single Judge has allowed the writ petition holding that the purpose of the Clause I aforesaid of NHS, 2002 was to ensure that an applicant does not end up getting more than one flat or plot in different schemes; that since the respondent had surrendered the allotment under the NHS, 2002 and also not sought refund of the registration amount under the RRPS, 1981, he could not be deprived of benefit thereof also, particularly when he had already paid the full price thereof. LPA No.318/2012 Page 3 of 11
7. This appeal has been preferred along with an application for condonation of delay of 399 days in filing thereof, perhaps when the appellant DDA is faced with contempt proceeding. The counsel for the appellant DDA has sought to explain the reasons for the delay. On merits, strong reliance is placed on order dated 28.04.2009 in W.P.(C) No.84/2007 titled Ved Prakash Changia Vs. DDA holding to the contrary. It is argued that though the said order was cited before the learned Single Judge but has not been taken note of.
8. We have, considering the nature of the controversy, heard the counsel for the appellant on merits and accordingly condone the delay in filing the appeal. Though undoubtedly another Single Judge in Ved Prakash Changia (supra) has on an interpretation of the same Clause I (supra) of NHS, 2002 held that the registration under the RRPS, 1981 stood forfeited upon being successful under the NHS, 2002 and allotted a flat thereunder and notwithstanding rejection of the said flat and the mistake of the DDA in still making allotment under the RRPS, 1981 could not enure any benefit to such a registrant but after having perused and studied the two conflicting opinions of Single Judges of this Court, LPA No.318/2012 Page 4 of 11 we tend to agree with the opinion expressed in the judgment under appeal and are inclined to put our imprimatur thereon.
9. We may in this regard notice that, i) NHS, 2002 was open to general public and was not confined to the registrants under the earlier Schemes of the appellant DDA; ii) under the NHS, 2002, a preference in the matter of eligibility / allotment was given to the registrants under the earlier Schemes and in which the registrants of the RRPS, 1981 were given the second preference i.e. behind the registrants of the New Pattern Housing Scheme-1979, Ambedkar Awas Yojna-1989 and Janta Housing Scheme-1996; iii) the NHS, 2002 while providing in Clause 13 thereof for Surrender / Cancellation, provided only the monetary penalty / charges therefor, as under:
13. Surrender/Cancellation:
"For allotment surrendered/cancelled due to non-payment, the cancellation charges shall be as under:
1. Surrender/cancellation within 30 days Rs.1000/-
2. Surrender/cancellation after 30 days Rs.2000/- but before 60 days
3. Surrender/cancellation after 60 days LPA No.318/2012 Page 5 of 11 Rs.3000/- but before 90 days
4. Surrender/cancellation beyond 90 days Rs.5000/-
Any amount deposited towards the cost of the flat will be refunded without interest after deduction of cancellation charges.
Following documents are to be submitted for refund in case surrendered/cancelled.
(1) Fourth copy of Bank Challan in original vide which amount deposited in UTI Bank. (2) Acknowledgement slip duly discharged by an endorsement received "Payment" on its back duly signed on revenue stamp of Rs.1/-
(3) Original allotment-cum-Demand letter issued by DDA in respect of allotted flat in Narela.";
(iv) Similarly, Clause 21(c) was as under:
"c). Old Registrants:
If the successful applicant wants to surrender the allotment, the registration amount alongwith interest upto the last date of the closing of the scheme after deducting the prescribed cancellation charge shall be refunded to him / her:
These successful waiting registrants shall be required to furnish the following documents while seeking the refund:
a) FDR or Acknowledgment slip duly discharged by an endorsement "Received Payment" on its back duly signed on a revenue stamp of `1/- duly discharged.
b) Fourth copy of the Bank Challan vide which registration money was deposited.LPA No.318/2012 Page 6 of 11
No interest on registration money beyond the last date of the closing of the Scheme shall be payable under any circumstances."
v) it would thus be seen that NHS, 2002 envisaged Surrender / Cancellation of allotment thereunder and the consequences provided therefore were only monetary and nowhere provided that the Surrender/Cancellation of allotment would also entail forfeiture of registration under the earlier Scheme.
10. The State, through the agency of the appellant DDA has undertaken the activity aforesaid to provide housing which is a basic need. Supreme Court recently in Society for Un-Aided Private Schools of Rajasthan V. Union of India MANU/SC/0311/2012 reiterated that a right to shelter or housing though does not find any place in Part III or Part IV of our Constitution but has been recognized by the courts by giving a wider meaning to Article 21 of the Constitution. The constitutional duty of the State to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter over the head to make the right to life meaningful was also emphasized.
LPA No.318/2012 Page 7 of 11
Mention may also be made of B.P. Jain & Associates V. State of Haryana 1992 Supp(1)SCC 541 reiterating the need for promoting a housing policy to overcome the acute shortage of housing and accepting housing/shelter as one of the three basic needs of man in a civilized society, besides food and clothing.
11. The Schemes floated by the appellant DDA from time to time cannot be read as a negotiated contract between the parties. The theme running in all the Schemes of the appellant DDA is that none is entitled to benefit thereof more than once. In fact restrictions are placed even on the family members. The Clause I aforesaid of the NHS,2002 and particularly the phrase "the successful waiting registrants of old scheme" therein has to be read in the said context. We are unable to agree with the interpretation thereof in Ved Prakash Changia (supra). A registrant under the NHS, 2002 even if had succeeded in obtaining allotment but if had surrendered / cancelled such allotment, cannot be called successful under the NHS, 2002. The success in a housing scheme is dependent upon the allotment fructifying i.e. on being put into possession and being conferred title and not if allotment though made is cancelled / surrendered. Such cancellation / surrender, as aforesaid was permitted LPA No.318/2012 Page 8 of 11 under NHS, 2002 and the consequences thereof were also laid down. Once the cancellation / surrender is effected, the registrant can no longer be said to be „successful‟ thereunder. Success under the Scheme cannot be transitory.
12. We however, while correcting the order have found that LPA 609/2010 preferred by the DDA against the order in Ved Prakash Changia (supra) was dismissed by Division Bench of this Court on 26.08.2010 observing that schemes floated by the Statutory Authorities as DDA have their own sanctity and a registrant of RRPS 1981 after being registered under NHS, 2002 would have no right under the registration under the RRPS 1981. The same was not brought to our notice at the time of hearing or when we had dismissed this appeal. We have wondered whether to relist the matter for reference to a larger Bench since we do not agree with the opinion of the Co-ordinate Bench in Ved Prakash Changia (supra). We have however, in the facts and circumstances hereinabove and discussed hereafter, consciously decided against such a course of action which would further indefinitely delay the respondent being put into possession of the small plot of land on which his house is to come up and for which he has already waited for the last more than LPA No.318/2012 Page 9 of 11 three decades, thereby multiplying his agony. We also find that though Ved Prakash Changia (supra) was concerned with an identical controversy but the emphasis therein was on the DDA being not entitled to cancel the allotment under RRPS 1981 even if having been made mistakenly and which contention was negatived. Neither the learned Single Judge, nor the Division Bench in Ved Prakash Changia (supra) noticed Clauses 13 and 21(c) supra of NHS, 2002 which while providing consequences for Surrender/Cancellation of allotment under NHS, 2002 do not provide for the forfeiture of registration under RRPS, 1981 also.
13. We are of the view that for the consequence of earlier registration under RRPS 1981 also to be forfeited upon surrender/cancellation of allotment under NHS, 2002, the same ought to have been expressly stated. On the contrary, DDA by expressly limiting the consequences of Surrender/Cancellation of allotment under NHS, 2002 to monetary only is deemed to have represented that there will be no other consequence/penalty on the registrant surrendering/cancelling the allotment. Thus, NHS, 2002 as per its own sanctity also is not found to be providing for such forfeiture as has been effected. LPA No.318/2012 Page 10 of 11 14 Even if it were to be held that there is a case of ambiguity / vagueness in the Scheme, the benefit thereof certainly has to go to the registrant who has waited patiently for nearly three decades.
15. It is also not as if the appellant DDA has suffered on account of cancellation / surrender of the allotment under the NHS, 2002. We have enquired from the counsel for the appellant DDA. He confirms that the number of registrants was far more than the houses allotted and a waitlist was maintained and the surrendered / cancelled flats under the NHS, 2002 devolved on those in the waiting list. That being the position, there is no reason for depriving the respondent from the benefit of the registration under the RRPS, 1981 also particularly when he has not availed of any success / benefit under the subsequent registration in the NHS, 2002.
16. We therefore do not find any merit in this appeal and dismiss the same. No order as to costs.
RAJIV SAHAI ENDLAW, J ACTING CHIEF JUSTICE APRIL 25, 2012/„gsr‟ LPA No.318/2012 Page 11 of 11