Autar Krishan Sharma vs Delhi Development Authority
1991 Latest Caselaw 410 Del

JUDGMENT

M.C. Jain, C.J.

(1) As common questions are involved, both these petitions are being disposed of by this common order.

(2) The petitioners are registrants in Self-Financing Registration Scheme No. 2. There are three petitioners in the first writ petition (C.W.P. No. 2337/82) and one petitioner in the second writ petition (C.W.P. No. 3711/82). The petitioners have deposited Rs. 10,000.00 each on various dates. The draw of allocation of flats was held on 6th July, 1982. The petitioners were interested in flats situated in East of Kailash. The lucky No. drawn was 135. There were 54 flats to be allocated. Out of these flats, 17 flats were allotted to those registered under Self-Financing Registration Scheme No. 1. 37 flats remained to be allocated in Self-Financing Registration Scheme No. 2 after meeting the requirements of the reserved categories. According to the petitioner, their random Nos. were 167, 169, 162 and 164. As per the Brochure, 25% of the flats were reserved for SC/ST registrants. Only one registrant was available from this reserved category. There were registrants in the Fourth Scheme belonging to the said reserved category. So, 12 flats were decided to be allotted to the registrants belonging to SC/ST in the Fourth Scheme. During -the pendency of the writ petition, four registrants of the Fourth Scheme belonging to this reserved category showed their disinterestedness and there remained only 8 registrants under the Fourth Scheme in respect of whom respondent's case is that as per the scheme of the brochure, they were entitled to allotment.

(3) The petitioner's case is that all the four schemes are independent and if applications for reserved categories are not received, as per the percentage, then the flats are required to be offered to the persons registered under the non-reserved categories.

(4) The respondent's case on the other hand is that registrants of Fourth Scheme in reserved category can only be taken into consideration if registrants of the reserved category are not available in the First. Second and Third Schemes. The respondent's case therefore, is that if there are no applicants of reserved category in Scheme No. 2. and flits are available then registrants of even Third and Fourth schemes of the reserved category can be taken into consideration for allotment in the Second Scheme. This is borne out from the mode of allocation and this has been the practice followed in pursuance of the policy decision taken by the Vice-Chairman. We may refer here to the specific case pleaded by the respondents in their counter-affidavit. In the first counter-affidavit of Shri Nathu Ram, Secretary, Delhi Development Authority, what is averred is that the interpretation of the petitioner regarding the release of flats from reserved category to the general category as mentioned in the writ petition is highly erroneous and untenable. The reservation made by the respondent is, amongst other categories, for the Scheduled Caste and Scheduled Tribe persons who belong to the downtrodden strata of society and therefore the, respondent will release the remaining flats within the same category of persons though belonging to the subsequent schemes. It was further averred that admittedly, the flats in question are being disposed of under the Delhi Development Authority (Management and Disposal of Housing Estates) Regulations, 1^68 and according to Regulation (3) of the said Regulations, the Vice-Chairman of the respondent has been authorised to administer the same. The Vice-Chairman of the respondent has, after taking into consideration various factors such as reservation for special categories, the help and the assistance needed by the persons belonging to the SC/ST, physically handicapped and others for whom quotas have been reserved, as a matter of policy decided that the flats remaining undisposed in a particular category in any earlier scheme be carried forward for the benefit of the same category in a subsequent scheme.. It was illustrated in the counter-affidavit in the manner that if all the flats obtained as a result of reservation to the extent of 25% for SC/ST are not exhausted by the persons belonging to the said category, the remaining flats would be made available to the persons in the same category registered in the Second Self Financing Scheme. If after satisfying the needs of the eligible applicants in the second Self Financing Scheme, still the quota is not exhausted the remaining flats would be carried forward for allotment to the persons in the same category registered in the third Self-Financing Scheme and so on and so forth. This system of carrying forward of flats for a particular category has been followed ever since the inception of the scheme of Self-Financing and the Vice-Chairman who is competent to take such a policy decision had decided that the policy of carrying forward the undisposed flats reserved for a particular category be disposed of within the same category in subsequent schemes.

(5) The only question that emerges for consideration is as to whether the plea raised in defense is borne out from the Self-Financing Scheme Brochure issued by the DDA. the relevant clauses are clauses (a) relating to Mode of allocation, and A and B relating to Reservation. For facility of reference we reproduce the relevant clauses:-

"MODE of allocation: For (a) 1st, 2nd, 3rd and 4th Self- Financing Registration Schemes: (a) The persons registered under First, Second, Third and Fourth Self-Financing Schemes should give their choices for the localities mentioned in Annexure 'A'. Applications of the persons registered under the Second Self- Financing Registration Scheme will be considered only after meeting the requirement of the persons registered under the First Self.Finaning Registration Scheme. Similarly, the applications of the persons registered under the Third Self-Financing Registration Scheme will be considered only after meeting the requirement of the persons registered is the First & Second Self-Financing Registration Schemes. Likewise, the applications of the persons registered under the 4th Self-Financing Registration Scheme will be considered after meeting the requirement of the persons registered under the 1st, 2nd, and 3rd Self-Financing Registration Schemes."

Reservation:

(A)For persons registered under the 1st, 2nd& 3rd Self- Financing Registration Schemes: (a) 25/o of the flats are reserved for SC/ST applicants. (b) 1/o reservation is provided for Ex-Serviceman. -(e) 1/o reserved for physically handicapped persons. (d)1/o flats are reserved for widows of defense personnel killed in action. If the requisite number of applications are not received from the above categories the flats will be offered to the persons registered in non-reserved categories. (B) So far as the applicants under the 4th Self-Financing Registration Scheme, the reservations in their case will he made as follows : (a) 25% of the flats for the persons belonging to SC/ST. (b) 3% of the flats for MPs. (e) 2% of the flats for persons who have won national recognition in the field of sports, arts and music. (d) 1% of the flats for physically handicapped persons.

NOTE:- "The persons applying against 'c' above must attach documentary proof in support of their having won national recognition in the field specified above."

(6) The applicants in the First, Second, Third and Fourth Schemes are required to give their choices for the localities mentioned in Annexure 'A' of the Brochure. And in the clause relating to Mode of allocation, it is further provided that the registrants of the Second Self-Financing Registration Scheme will have a right of their application being considered only after the requirements of the registrants of the First Self-Financing Registration Scheme are met. Similarly, the applications of the persons registered under the Third Self-Financing Registration Scheme will be considered only after meeting the requirement of the persons registered under the First and Second. Self-Financing Registration Schemes and similar is the provision in respect of the registrants of the Fourth Self-Financing Registration Scheme. It would appear that the registrants of the First Self-Financing Registration Scheme will have priority and they should first be exhausted. Thereafter the applications of the Second Self-Financing Registration Scheme will be exhausted and thereafter, the applications of the Third Self-Financing Registration Scheme shall be exhausted. But the question is how the... . reservation of the specified categories would be decided with respect to the First, Second, Third and Fourth Self-Financing Registration Schemes. In the clause relating to reservation, a division has been made. The Fourth Self-Financing Registration Scheme has an independent reservation clause, whereas three Self Financing Registration Schemes have one registration clause. For reservation in the First, Second and Third Self-Financing Registration Schemes, the categories arc : (A)25% for SC/ST (b) 1/o for Ex-serviceman (c) 1/o for physically handicapped persons (d) a% for widows of defense personnel killed in action.

(7) What is further provided in the reservation clause relating to First Second and Third Self-Financing Registration Scheme is that if the requisite number of applications are not received from the aforesaid four categories then the flats will be offered to persons registered in non-reserved categories. ' From the perusal of the reservation clause, in relation to First, Second and Third Self-Financing Registration Schemes, it would appear that the three Schemes have to be taken into consideration simultaneously for the purpose of reservation. in our opinion, it is not borne out from this clause that all the three schemes are independent and if the reserved registrants in a particular scheme are not available, then in that scheme, the flats reserved for a particular category cannot be offered to the persons registered in non- reserved categories Had such been the intention, then the reservation clause would have been separate for all the schemes. But it is not so. We do not agree with the contention of the learned counsel for the petitioners that in each scheme, there would be conversion of reserved category flats to non-reserved category, if the reserved category registrants are not available in that scheme.

(8) However, so far as the present case is concerned, the question is as to whether the applicants under the Fourth Self-Financing Registration Scheme can be considered against the flats for reserved categories in the First, Second and Third Self-Financing Registration Schemes. Our answer to the question would be in the negative for the simple reason that reservation for the Fourth Self-Financing Registration Scheme is separately provided - for. If the Fourth Self-Financing Registration Scheme had been included Along with the First Second and Third Self-Financing Registration Schemes, then, it would have been possible and in that situation, if reserved category flats would have been available and applicants for such category would not have been available in the later schemes as well, if the registrants of reserved category were there they could be offered flats in the earlier scheme against that reservation. It is very significant that at the end of clause A of the reservation clause dealing with First, Second and Third Self-Financing Registration Scheme, a material condition is provided and that in our opinion, will operate only in case of First Second and Third Self-Financing Registration Scheme. Had such been not the intention that clause would have been provided for at the end of clause B and then, it could be said that for all the four Schemes, taken together if requisite number of applications are not received, from the reserved categories then, the flats could be offered to the persons registered in non-reserved category. Providing of the aforesaid clause at the end of clause A is clearly of this very import that the first three schemes have to be dealt with together whereas the Fourth scheme is to be dealt with separately and independently In the present matter, we are only concerned with the available four flats 8 flats have already been allotted to 8 applicants of the reserved category from the Fourth scheme. Their allotments are not in question before us. 'We are only concerned with the allotment of four flats to the registrants of the second scheme i e. the present petitioners in both the petitions. These flats are required to be offered to the persons registered in non reserved category. In view of the provisions contained in clause A, relating to reservation, in our opinion the petitioners are entitled to allocation of these four flats as they stood converted into non-reserved category, as no registrants of reserved category were available in the First, Second and Third Self-Financing Registration Schemes.

(9) In the above few of the matter, both the above writ petitions deserve to be allowed. Accordingly, both the writ petitions are allowed and we direct the respondents to issue letters of allocation to the .petitioners within 10 weeks. Parties to bear their own costs.