Ramesh Chand vs Delhi Development Authority And ...
1998 Latest Caselaw 861 Del

JUDGMENT

Manmohan Sarin, J.

1. Petitioner by this writ petition is seeking quashing of the letter of cancellation bearing No.F.12(598)S3 LSB.Rohini dated 13.1.1995, cancelling the allotment of plot No.55, Pocket OO Block 'B', Sector 01, ad-measuring 60 meters, in the Rohini Residential Scheme. Petitioner has also sought a direction for delivery of possession of the said plot and in the alternative for such orders and directions as may be deemed fit and proper in the circumstances of the case.

2. Petitioner had applied for allotment of a plot vide Application No.61001 in the Rohini M1G Scheme and was duly registered on payment of Rs.5,000/-, acknowledged vide receipt No.20976 dated 30.3.1981. Respondent Delhi Development Authority issued the allotment letter on 28.11.1983 and provisionally allotted the plot in question on perpetual leasehold basis, subject to the balance amount of Rs.6,143/- being paid. The petitioner duly deposited the sum of Rs.6,1.43/- vide challan bearing No.104226 dated 27.12.1983.

3. It is the petitioner's case that though he had completed all the formalities, the respondent DDA had chosen to belatedly and illegally cancel the allotment of the pilot. The petitioner has produced on record the correspondence with the DDA,

wherein initially DBA proceeded on the basis that payment had not been made and issued a letter dated 29.9.1985, which was duly replied by the petitioner by his letter of 29.10.1984, giving full particulars of payment. Thereafter, a show cause notice was issued claiming that petitioner's income was found below the prescribed limit and the petitioner was not eligible for allotment of plot under the Scheme. This too was satisfactorily explained by the petitioner, who furnished particulars of the revised return of income in respect of the year in question. Certain documents were also called for by the respondent DDA vide its letter of 21.9.1987, which were, duly furnished by the petitioner. Petitioner vide letter of 21.10.1987, furnished the assessment order based on the revised return and requested the respondent to deliver possession of the plot. Petitioner again vide his letter dated 1.9.1988, gave the respondent details of the documents already furnished. It is seen that this correspondence continued, with the petitioner asserting and giving the details of the letters by which the documents sought were furnished. The respondents, however, in a mechanical manner, kept on either ignoring the documents furnished or raised a fresh requirement.

4. Respondent DDA, nevertheless, vide its letter dated 13.1.1995, in response to petitioner's letter of 15.4.1994 and 7.9.1994, intimated that allotment of the plot stood cancelled on account of non-submission of documents in time, as per the terms of allotment-cum-demand letter. Petitioner reiterated his position vide his letter dated 13.2.1995, followed by another letter dated 10.4.1995. As there was no response to his earlier letters, petitioner was constrained to file the writ petition.

5. Respondent in its letter of 13.1.1995, took the plea that the allotment of the plot stood cancelled on account of non-submission of documents. However, on notice being issued in the writ petition, it took a new ground claiming that allotment of the petitioner was cancelled since he had deliberately concealed material facts. It was claimed that petitioner, at the time of registration, was a minor and, hence, as per the terms of the scheme, was ineligible to apply. Further, at the time of registration on 30.3.1981, petitioner had given his date of birth as 5.4.1964, while in a subsequent affidavit filed while furnishing the documents, the date of birth was mentioned as 13.10.1964. It was claimed that this was a case of misrepresentation. Additionally, it was claimed that the documents submitted by the petitioner were incomplete. Petitioner had furnished documents attested by a notary, instead of a gazetted officer, as required. The respondent, lastly, claimed that the Competent Authority had considered petitioner's case and cancelled the allotment on 15.3.1984. The plot in question had already been allotted to a third party in the draw of lots held on 17.6.1994. The petition, it was claimed, was infructuous.

6. Three questions arise for our consideration in the matter, viz. (i) whether the petitioner, who was admittedly a minor at the time of registration, was eligible and entitled to the allotment of a plot? (ii) whether the petitioner had made any misrepresentation while declaring his age? and (iii) whether the petitioner had substantially complied with the requirement of furnishing the documents in terms of the allotment letter?

7. It is an admitted position that petitioner was a minor at the time when he applied for allotment of a plot. The date of birth given was 5.4.1964 and the petitioner, at the time of registration on 30.3.1981, was around 17 years of age. Respondent's case is

that at the time of registration, the applications are not scrutinised and, hence, the factum of minority of the petitioner could not be noticed. Coming to the question of eligibility of a minor, the respondent, as per its own policy and practice and departmental instructions, have taken a decision that the allotment to persons who are minors at the time of registration is not to be cancelled subject to the condition that the applicant has become a major by the time the allotment is made and has not made any misrepresentation regarding his age in the application. The allotment in this case was made on 28.11.1983, on which date petitioner was, admittedly, a 'major'. The extract from the relevant memorandum bearing No.F-3(2)91/P&C(H) dated 12.8.1991 may be usefully reproduced:

"Sub: Allotment of Flats to the Registrants who were minors at the time of registration Under the New Pattern Scheme, 1979.

(No.PA/Dir(ii)ll/90/219)

Authority approved the following proposals:

1. Not to cancel the allotment of those whose allotment had been made despite the registrant having been a minor on the date of registration, subject to the condition that he has become a major by the time of allotment and had not made any mis-representation as regards his age at the time of application/allotment.

ii. not to cancel the registration of those who were minors at the time of registration, but had not been made any allotment so far, and had since become major provided that there was no mis-representation regarding their age at the time of registration.

iii. to all other cases involving minors where the registration was effected on the basis of misrepresentation, fraud, action will continue to be taken to cancel the registration and/on allotment as at present."

8. Coming to the plea of misrepresentation, petitioner's case is that due to a clerical error the age in the application form had been mentioned as 4.1964, while his correct date of birth was 13.10.1964. It is significant to notice that petitioner remained a minor irrespective of whether his date of birth was 5.4.1964 or 13.10.1964 on the date of application. There is merit in the contention of the petitioner that it was a bonafide error and the petitioner had nothing to gain by declaring his age as 5.4,1964 because even on this basis he remained a minor at the time of application and registration. It is, therefore, not a case of misrepresentation. A Division Bench of this Court had occasion to consider a somewhat similar question in Civil Writ Petition No.1724 of 1993, wherein applicant was aged only 17 years and 8 months but had declared himself as a 'major' in the application seeking registration. However, the date of birth was mentioned correctly in the application. The Court accepted that it was a case of miscalculation of the age since he had given the correct date of birth in the application. Another factor noticed in the judgement was that there was no prohibition in law on a minor acquiring property. Further, considering that the respondent DDA had not raised any objection at the time of registration and accepted the payments, it was held that allotment in favour of the allottee could not be cancelled on this ground. The Court also took into account the memorandum/departmental instructions issued by

the DDA in terms of which allotments were not to be cancelled if the applicant had become a major at the time of allotment.

9. A perusal of the correspondence placed on record reveals that not once but repeatedly the petitioner had notified the respondent of his having complied with and furnished the information and documents sought. The respondents, in a mechanical manner, inspite of having received intimation of particulars of payment, issued notices, calling upon payment. The petitioner has produced on record letters which show that he had got the documents attested by an Executive Magistrate and submitted them while the respondents raised objections to the documents submitted being attested by a Notary, ignoring the documents attested by the Executive Magistrate. We find that petitioner has duly complied with the requirement of submitting documents, and the objections raised by the DDA in this regard are without merit.

10. Another aspect which needs to be noticed is that respondents claim to. have cancelled the allotment on 15.3.1994. Petitioner's case is that the alleged cancellation was notified to him only vide letter dated 13.1.1995, against which he had represented on 13.2.1995 and, finally, filed the writ petition when there was no response to his representation and the intervention of the Legal Aid Board also proved futile. Respondent now claims to have re-allotted the plot to a third party on 17.6.1994. Respondent cannot claim cancellation of allotment as of 5.3.1994 and re- allotment to a third party on 17.6.1994, when intimation of cancellation to the petitioner was given only on 13.1.1995. It is also noteworthy that the letter of cancellation was based on non- submission of documents in time and not on the ground of ineligibility as a minor, as has been subsequently made out in the counter affidavit. It is not the respondents' case that any show cause notice or any opportunity was given to the petitioner to explain his case on the ground of this alleged ineligibility. In any case, the said question also need not detain us, since on consideration of this aspect also, we have reached the conclusion that there was no misrepresentation on the part of petitioner and the factum of his minority at the time of application, does not render him ineligible to allotment of plot as per respondents' policy since he attained majority at the time of allotment.

11. In view of the foregoing discussion, the letter of cancellation bearing No.F.12(598)83/ LSB(Rohini) dated 13.1.1995, cancelling the allotment in favour of the petitioner, is quashed. As the plot in question has already been allotted to a third party, direction is issued to the respondents to allot another plot, ad-measuring 60 sq.meters in MIG category in Rohini Residential Scheme in Pocket 'B', Sector 01, to the petitioner and if such a plot is not available, then in a comparable location, within one month from today, on the same terms and conditions as per the original allotment. The writ petition is allowed with costs of Rs.5,000/-.