Madan Lal Garg vs Delhi Development Authority
2003 Latest Caselaw 926 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioner registered himself under the Rohini Residential Scheme in 1980 and vide application dated 25.02.1981 applied for allotment of a plot under the MIG category. The petitioner was issued a letter dated 18.04.1988 intimating to the petitioner that he had been provisionally allotted a plot bearing No. 11, Pocket 3, Block C, Sector 11, Rohini Residential Scheme measuring 60 sq. mtrs. at a total premium of Rs.24,600/- and calling upon the petitioner to deposit the balance amount. The petitioner deposited the balance amount on 19.05.1988 and submitted the requisite documents. The petitioner submitted a copy of the sale deed dated 01.05.1973 in favor of the petitioner in respect of plot No. F-7/10, Model Town, Delhi. This plot measures 77.68 sq. yds. (64.4 sq. mtrs.). The sale deed shows the existing structure, which included tenanted shop on the ground floor. A copy of the sanctioned plan, which was submitted vide letter dated 24.10.1990, shows that the ground floor was to be constructed for shops.

2. The reason for filing the aforesaid sale deed was the eligibility condition No. 1(ii) of the terms and conditions of the scheme, which is as under :-

" (ii) The individual or his wife/her husband or any of his/her minor children do not own in full or in part on lease-hold or free-hold basis any residential plot of land or a house or have not been allotted on hire-purchase basis a residential flat in Delhi/New Delhi or Delhi Cantonment. If, however, individual share of the applicant in the jointly owned plot or land under the residential house is less than 65 sq. mts., an application for allotment of plot can be entertained. Persons who own a house or a plot allotted by the Delhi Development Authority on an area of even less than 65 sq. mts. shall not, however, be eligible for allotment."

3. The possession of the plot was, however, not issued to the petitioner as the petitioner made repeated requests for the same. The petitioner came to know in the middle of 1990 that the reason for non-handing over the plot of the petitioner was apparently the fact that the petitioner owned the other property of which sale deed had been submitted. The petitioner vide letter dated 13.09.1990 pointed out that the plot in question was less than 65 sq. mtrs., which was the disqualification and that the plot was meant for residential-cum-commercial use. The petitioner submitted the sanctioned plan and key plan vide letter dated 24.10.1990.

4. The petitioner continued his communication to the respondent and vide letter dated 16.08.1991, the respondent DDA enquired from the MCD whether the plea of the petitioner of the plot being of mix use was correct. However, the respondent vide letter dated 02.01.1992 rejected the request of the petitioner for issuance of the possession letter and stated that the plot of the petitioner had been cancelled and the amount deposited by him would be refunded in due course. The amount was, however, never refunded back.

5. The petitioner has filed the present writ petition seeking quashing of the said letter dated 02.01.1992 and for handing over possession of the plot in question.

6 .In the counter affidavit, the respondent DDA has relied upon the clause 1(ii) reproduced above to contend that in terms of the said clause, exemption to the allottees is available only in case an allottee has share in joint property, which is less than 65 sq. mtrs. and the same would not have application where the property is individually held. It is further stated that the respondent DDA made enquiries from MCD and was able to ascertain that the ground floor area was sanctioned for shops, though the first floor was for residential use. It is stated that since the first floor can be used for residential use, the petitioner is disqualified from being entitled to plot under the scheme.

7. I have considered the submissions advanced by learned counsel for the parties.

8. In view of the aforesaid factual matrix, two aspects need to be examined.

9. The first aspect relates to the consequence of clause 1(ii) and whether disqualification would apply to the petitioner by reason of the fact that the petitioner is not owning the plot in question jointly with another person. The second issue arises as a consequence of there being mix use of the plot.

10. A reading of the eligibility condition shows that the requirement is for the proposed allottee not to hold a plot in full or in part on leasehold or freehold basis. This disqualification is extended even to allotments on hire-purchase basis. However, an exception is carved out in cases where the individual share in the jointly owned plot or land under the residential house is less than 65 sq. mtrs. and in such a case, the application can be entertained. This is further qualified by the stipulation that in case a person, who owns a house or a plot allotted by the DDA of an area even less than 65 sq. mtrs., shall not be eligible for allotment.

11. In my considered view, the reading of the clause would show that it is only plots, which are allotted by the DDA and having an area of less than 65 sq. mtrs., which would dis-entitle an allottee from getting another allotment. The obvious rationale for the same is that the person has availed of the benefit of the allotment from the DDA and the lower limit of a plot should not be utilised to get another plot. Similarly even in cases of larger plots, if the share of a person is less than 65 sq. mtrs., the disqualification to acquire the allotment would not arise. The natural consequence is that if the plot itself is less than 65 sq. mtrs. and has not been allotted by the DDA, then also there can be no question of any such disqualification. The object is to see that where the right of an allottee is to a very small size of an area, the disqualification should not apply unless the allottee is the beneficiary of another allotment earlier by the DDA of a plot of smaller size. Any contrary view can lead to a peculiar situation that if the plot of the same size is held jointly as in case of joint holding of plot, there would be no disqualification. Thus, for example, if the petitioner had held the plot jointly, may be including with his wife, there would be no disqualification while the single holding would result in a disqualification.

12. In view of the aforesaid, I am of the considered view that disqualification in the case of the petitioner would not arise, as the petitioner owns a plot of less than 65 sq. mtrs.

13. Insofar as the second issue is concerned, it will be seen that the plot in question has a mix land use. This position cannot be disputed as even the averments made in the counter affidavit show that, on verification, the respondent found that there are shops on the ground floor of the property and residential space on the first floor. Thus, the use of the plot is mix both for residential and commercial use. The disqualification in terms of clause 1(ii) is for residential plot or flat already owned by a party and cannot be for a mix land use. Thus on this count also, there can be no disqualification of the petitioner.

14. In view of the aforesaid, the impugned letter dated 02.01.1992 is quashed and the writ petition is allowed. It is directed that possession of the plot be handed over to the petitioner within a period of 15 days from today. The petitioner shall also be entitled to costs of Rs.5,000/-.

15. dusty to learned counsel for the parties.