Delhi High Court
Smt. Lalita Malhotra vs Delhi Development Authority Etc. on 24 May, 2002
Equivalent citations: 99 (2002) DLT 744
Author: C Mahajan
Bench: C Mahajan
JUDGMENT
C.K. Mahajan, J.
1. By way of the present petition the petitioner seeks quashing of the show Cause Notice dated 19th May, 1995 issued by the respondents/DDA whereby they threatened to cancel the allotment of Flat No. 9534, Category-III, Duplex Flat (GF&FF) Block C, Pocket No. 9, Vasant Kunj, New Delhi.
2. Briefly stated the facts are that the petitioner pursuant to a Scheme known as Fourth Self Financing Housing Registration Scheme (Circulated by the respondents between 7th January to 29th February, 1981) applied for allotment of one of the flats which
3. were to be constructed by the respondent, vide her application No. 13768 dated 18th February, 1981 along with the Bank Draft of Rs. 15,000/- as registration deposit in accordance with the term of the scheme which was formulated to obtain financial assistance and participation (during period of construction) by the persons intending to own a flat. The petitioner gave full details in respect of her share in the HUF being a member of the HUF in response to Clause 8(a) of the scheme.
4. The respondents duly accepted the application of the petitioner and issued an FDR bearing No. 001558 dated 21st February, 1981. After about nine years of the acceptance of the application of the petitioner the respondents invited applications from the registrants for allotment of flats proposed to the constructed and made available in various localities. Vide application 16th July, 1990 the petitioner exercised her option for allotment of a flat. The said application was duly acknowledged by the respondent vide acknowledgement No. 3065. A draw held on 13th November, 1990 and the petitioner was declared successful and was allotted category III, Duplex Flat (GF&FF) in Block C, Pocket-9, Vasant Kunj, New Delhi for an estimated price of Rs. 5,01,700/-. This amount was to be paid in the following manner:-
(i) 4.10.1990 Rs. 1,25,425/-
(ii) 4.04.1991 Rs. 1,00,340/-
(iii) 4.10.1991 Rs. 1,25,425/-
(iv) 4.04.1992 Rs. 1,00,340/-
5. The petitioner sent her acknowledgement letter dated 27th December, 1990 along with all the required documents and informations required by the respondents, enclosing therewith FDR, SBI Challan for payment of first Installment along with affidavit etc. The petitioner paid the Installments in time as per schedule except the last Installment of remaining 10% of the total price, which was to be paid on specific demand raised by the respondent. Thereafter the petitioner waited for delivery of possession of flat by the respondents and in this regard she had sent her representative to the office of the respondents. She was given an assurance that she would receive the communication about the date, time and place of delivery of possession of the flat allotted to her. On 2nd March, 1994 the respondent sent a letter to the petitioner raising an additional demand for Rs. 3,58,027.90 on the ground of escalation in price. The petitioner was further directed to pay Rs. 3580.98 by way of penalty on delayed payment. The petitioner made the said payment under duress by raising a loan from Housing Development Finance Corporation Ltd. Instead of receiving the possession of the flat, the petitioner received a letter dated 15th February, 1995 asking her to furnish proof of identification, three specimen signatures and copy of lease deed of her joint family house along with an affidavit. The said letter is received after one year of her making all the payments demanded by the respondents. The petitioner furnished the documents.
6. By notice dated 19th May, 1995, the petitioner was called upon to show cause why the allotment be not cancelled for breach of terms and conditions of allotment. The petitioner responded to the show cause notice vide letter dated 1st June, 1995. A representation dated 31st August, 1995 was addressed to the respondents calling upon them to hand over the possession of the allotted flat to her. The petitioner did not receive any reply. A legal notice dated 1st December, 1995 was served upon the respondents asking them to hand over the possession of the flat allotted to her. The respondents did not accede to her request. Hence this petitioner.
7. According to the respondents, Clause 7(c) of the Eligibility Conditions under the 4th SFS Scheme disentitles an applicant to the allotment of a flat, who in his/her name or in the name of his/her spouse/minor and dependent children/dependent relation own any residential house or plot in full or in part on leasehold or freehold basis in New Delhi, Delhi or Delhi Cantonment. The only exception to this bar is in the latter half of Clause 7(c) of the Eligibility Conditions providing if the individual share of the applicant in the jointly owned plot or land under the residential house is less than 75 sq. yds., he/she can make an application for registration of a plot. The petitioner thus made a false declaration/misrepresentation at the time of making of the application and was thus ineligible to register under the scheme. Registration by itself would not entitle the petitioner to allotment of a plot. The registration was done at the risk of the applicant subject to verification by the respondents. If the petitioner was not found eligible for allotment, the application would be turned down.
8. In the present case, even though allocation was made to the petitioner, there was no specific allotment made. In response to the show cause notice, the petitioner did not give any satisfactory reply. The conveyance deed produced before the authority mentioned the name of the petitioner's husband and it was nowhere stated that the property was jointly owned by the petitioner and her husband. The respondents further contended that the petition suffers from delay and laches and is liable to be dismissed on that ground.
9. I have heard learned counsel for the parties.
10. The case of the respondents/DDA in brief is that the petitioner violated the terms and conditions of registration under the Self Financing Scheme. The respondents contend that it was clearly stated under Clause 7(c) of the eligibility conditions that "the applicant must not own any residential house or plot in full or part on leasehold or freehold basis in New Delhi, Delhi and Delhi Cantonment, either in his/her own name or in the name of his/her wife/husband or in the name of his/her minor or dependent children or dependent relations.
11. The said Clause 7(c) reads as under:-
"7. Eligibility
a) ...
b) ...
c) The applicant must not own any residential house or plot in full or in part on leasehold or freehold basis in New Delhi, Delhi and Delhi Cantonment, either in his/her own name or in the name of his/her wife/husband or in the name of his/her minor or dependent children or dependent relations. If, however, individual share of the applicant in the jointly owned plot of land under the residential house is less than 75 sq. yds., an application for the registration of a flat can be given."
d) ..."
12. The above clause is in two parts. The first part of the clause completely debars an applicant from applying for registration of a flat if he/she, his/her wife/husband, minor or dependent children or dependent relations own any residential house or plot in New Delhi, Delhi and Delhi Cantonment. In these circumstances the bar in applying for registration of a flat in complete and absolute whether a residential house or a plot is owned by any one of them in full or part or whether it is on leasehold or freehold basis.
13. The second part of the said Clause 7(c) is an exception to the bar and the bar is lifted only for the following reasons:-
(a) If the applicant "jointly owns" a plot or land under the residential house; and
(b) If the individual share of the applicant in the "jointly owned" plot or land under the residential house is less than 75 sq. yds.
14. Accordingly, the exception to the bar entitles the applicant to apply for registration of a flat on fulfillment of two conditions. Firstly, the applicant should "jointly owned" a plot or land under the residential house; and secondly, the applicant's individual share in the "jointly owned" plot or land should be less than 75 sq. yds. If any of the two conditions is not fulfillled by the applicant the applicant cannot apply for registration of the flat. In Column 8 of the application form for registration of the flat the petitioner stated as under:-
8 a) Please indicate whether Yes - under Hindu
you own or have already Undivided Family
been declared successful consisting of five
for any residential house members, a part of
or plot in full or in part the house at B2/201
on lease-hold or free hold Safdarjung Enclave,
basis in New Delhi, Delhi New Delhi. Total
and Delhi Cantonment, either area 300 sq. yards
in your own name or in the and my share 60 sq.
name of your wife/husband yards. My share is
or in the name of any of less than the minimum
your minor or dependent 75 sq. yards indicated
children or dependent under Clause 7(c) - relations.
"Eligibility" of the
Fourth Self Financing
Housing Registration
Scheme.
b) If so, please give details B2/201, Safdar jung
Enclave, New Delhi-
110016."
15. In order to see whether the applicant "jointly owned" the plot with her husband, I have examined the perpetual lease deed of the plot in question. It shows that the plot is in the individual name of the husband of the petitioner. It is not in the joint name of the petitioner and her husband. Undisputedly according to this document the plot is not "jointly owned" plot of the petitioner. When the petitioner's husband puts the plot in the hotch-potch of the HUF the petitioner simply acquires a share in the plot along with other members of the HUF and that does not become a jointly owned plot of the petitioner. By simply becoming a part of the assets of the HUF the plot does not undergo any change in its character and does not become a "jointly owned" property of the petitioner. In view of these facts the first condition of the exception to the bar is not fulfillled by the petitioner as she does not own the plot jointly with her husband. When the first condition of the exception to the bar is not fulfillled the question of examination of the second condition that the petitioner's present share should be less than 75 sq. yds. does arise.
16. It appears that the purpose behind the bar contained in the first part of Clause 7(c) reproduced above is that the composite unit of one family comprising of husband, wife, their minor and dependent children and their dependent relations should not own more than one residential unit either in the form of a plot or a residential house in New Delhi, Delhi and Delhi Cantonment.
17. If a plot or residential house originally owned by a person in his own name is put by him in the hotch-potch of the HUF and, thereafter if such a plot or a residential house is held to be "jointly owned" by all the members of the HUF it will negate the bar contained in the first part of Clause 7(c). If such a case the individual share of each members of the HUF being less than 75 sq. yds. in such a plot or a residential house shall entitle each member of the HUF to apply for registration of the flat and such practice will circumvent the bar and the purpose behind the bar shall stand defeated.
18. For the reasons aforesaid the petitioner is not entitled to allotment of flat and the petitioner is, therefore, dismissed. No order as to costs.
19. The respondent shall refund the entire amount to the petitioner with 9% simple interest as the respondent acted negligently in the manner that immediately on receipt of the petitioner's application in 1981 the respondent ought to have examined the application and rejected it as the petitioner did not fulfill the condition of eligibility. The issue of eligibility was raised after more than 14 years when the show cause notice was issued to the petitioner in 1995. Negligence of the respondent in writ large. To may mind interest @ 9% is reasonable. In the facts and circumstances of the case the amount shall be refunded within a period of two months from today.
