Shri M.L. Aggarwal vs Delhi Development Authority
2003 Latest Caselaw 1190 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The respondent came out with the Rohini Residential Scheme in 1981 and the petitioner made an application for allotment of a plot of land in MIG category on 24.4.1981.

2. The terms and conditions of the scheme had been annexed to the writ petition and the relevant portion of the same is as under:

"1. ELIGIBILITY:

(ii) The individual or his wife/her husband or any of his 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.mtrs., 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. An undertaking was also required to be furnished at the stage of allotment in the following terms:

"That I or my wife/husband undertake that we or any one of our minor children, till they attain the age of majority, would not acquire any other lease-hold residential plot/flats from the Delhi Development Authority/President of India/Municipal Corporation of Delhi."

4. The petitioner was issued an allotment letter dated 29.11.1983 allotting a 90 sq.mtr. plot in MIG category bearing No.124 Pocket II, Block A, Sector 5, Rohini. The petitioner deposited an amount in pursuance thereto and filed the requisite affidavit. The possession letter was issued on 18.3.1985. The petitioner, however, requested vide a letter dated 12.4.1985 for change of allotment of the plot to Sector 8 and the said request was acceded to vide letter dated 28.1.1986 subject to payment of additional charges of Rs.2,111/- which were duly deposited by the petitioner on 4.6.1986.

5. Though draws of lots were subsequently held in 1986 and March 1987, no plot could be allotted to the petitioner as a 90 sq.mtr. plot was not available in Sector 7 or 8 in Rohini Residential Scheme and the petitioner was accordingly informed about the same.

6. The controversy in question has arisen on account of the fact that the petitioner got married to Mrs. Sudesh Aggarwal on 8.11.1981 after he had registered under the scheme. Smt. Sudesh Aggarwal had, prior to her marriage, on 6.4.1981 made an application for allotment of a plot of land in LIG category and was allotted a plot measuring 31.69 sq.mtrs. All the communications in this behalf were made from the address of her father in Janak Puri and it is stated that the amount for the same was also paid by the father-in-law of the petitioner. The petitioner claimed that he came to know of this fact towards the end of December, 1987 though by that time possession had not been taken over by her. The petitioner thus wrot a letter dated 11.1.1988 informing the aforesaid fact of allotment of a plot of 32 sq.mtr. for which the date of possession was 19.1.1988. The petitioner stated that he was not very clear whether the restrictive clause of the spouse would apply in the case of the petitioner in view of the terms of the same and the registration being prior to the marriage.

7. The petitioner was issued a show cause notice dated 8.11.1988 stating that in view of the fact that the wife of the petitioner had been allotted a plot measuring 31.69 sq.mtrs. under LIG category and the petitioner having submitted an affidavit dated 23.1.1984 declaring that his wife did not own a plot, the allotment in favor of the petitioner was liable to be cancelled on account of concealment of material facts. The petitioner replied to the said notice vide letter dated 5.12.1988. The petitioner stated that his affidavit was not wrong specially since the affidavit of his wife was of January 1985 which was post the affidavit of the petitioner. The petitioner also emphasised that it was not on the own enquiry of the DDA or a complaint but the petitioner had himself volunteered the information and that the father-in-law of the petitioner had taken power of attorneys from his wife.

8. The flat of the petitioner was, however, cancelled vide the impugned order dated 6.11.1990 on the ground that the petitioner had concealed the material fact of the registration of his wife in LIG category and the allotment of the two plots of MIG and LIG category in 1983 and 1982 respectively. The petitioner initially filed a complaint before the Consumer Disputes Redressal Forum but the same was dismissed by an order dated 28.9.1992. The petitioner preferred an appeal before the State Commission which was partly accepted in view of the fact that the order for cancellation of the plots by the DDA was not subject matter of dispute between the parties before the District Forum but the issue was the right of the petitioner to get an allotment in Sector 7 or 8.

9. The petitioner filed the present writ petition seeking quashing of the impugned order dated 6.11.1990 whereby the allotment of the plot No. 124 Pocket II, Block A, Sector 5, Rohini earlier allotted to the petitioner was cancelled. A relief was sought for allotment in Sector 7 or 8 or in the alternative to confirm the allotment made to the petitioner earlier in Sector 5.

10. At the stage of admission of the writ petition, interim protection was granted to the petitioner reserving the plot already allotted to the petitioner.

11. In the counter affidavit, reliance has been placed on clause (ii) of the terms and conditions of allotment. It has been stated that the marriage took place on 8.11.1981 and the draw of lots was held for the scheme in 1982 in which the wife was allotted an LIG category plot. The petitioner was allotted an MIG category plot in the second draw in 1983. The petitioner is stated to have filed the false affidavit on 23.1.1984. In so far as clause (ii) is concerned, it is sought to be explained that even if the share of the individual is less than 65 sq.mtrs., the same would not give a benefit in the present case since such cases are not excluded if the allotment of a smaller plot is by the DDA.

12. During the course of hearing, the matter was reconsidered by the DDA especially on the ground of the applicability of Nazul Rules of 1981 which entitled a person to allotment in case the plot or house is less than 67 sq.mtrs. However, on reconsideration it was found that the Nazul Rules came into operation in September, 1981 but the Rohini scheme was launched in February, 1981 which is prior to the Nazul Rules coming into operation. The original records have been produced.

13. It is thus submitted that in view of Rule 1(ii) of Nazul Rules which expressly makes it applicable prospectively, the petitioner cannot get the benefit of the same and the eligibility of the petitioner will have to be determined in terms of the scheme alone. The second issue examined by the respondent authority arises on account of the fact that the petitioner and his wife are now living separately and divorce proceedings are going on though there is no final adjudication on the issue of divorce. In this behalf, reference was made to Rule 17 which puts a restriction on allotment of land in case the spouse or the minor child holds any other land. The expression used in this clause is "ordinarily residing". Learned counsel for the petitioner had contended that the wife who is living separately is not ordinarily residing with him. The proviso to the said rule stipulates that the disqualification would not apply if the land owned by or allotted to such individual is less than 67 sq.mtrs.

14. Thus, it is submitted that the allotment in the name of the wife of the petitioner of 31.69 sq.mtr. could not have been disqualified the petitioner.

15. The respondent authority has refused to reconsider this issue also on the ground that the expression "ordinarily residing" does not appear in the terms and conditions of the clause and the reliance placed on the judgment of Avdesh Mittal v. DDA in CW 3430/2002 decided on 22.7.2003 could not come to the rescue of the petitioner since the same was on its own facts and circumstances. It has also been noticed that at the relevant stage of time, both the parties were staying together.

16. In order to appreciate the issue at hand, it has to be considered as to what would be the relevant dates - is it the date of registration under the scheme relevant or the date of allotment? The Supreme Court in DDA v. Pushpendra Kumar Jain, has held that the rights of a party come into existence only on the issuance of the allotment letter. There can be no dispute that the registration can take place by both the persons but there would not be entitlement to two allotments. The Nazul Rules came into force prior to the allotment being made.

17. In my considered view, the prospective application of the Nazul Rules cannot imply that the same would not be applicable to the present case in view of the fact that the rules did not exist when the scheme was propounded since they came into force about six months later. The Nazul Rules are statutory and the relevant date is the date of allotment. Thus, the Nazul Rules would be applicable even in the present case.

18. Rule 17 itself prescribes as to the circumstances under which the disqualification has to take place. The proviso uses the expression "both owned" or "allotted". Thus, in case the land owned or allotted is less than 67 sq.mtrs., the disqualification is not to apply. The allotment made in favor of the wife of the petitioner is admittedly much less than this, being about 32 sq.mtrs. The said rule is as under:

17. General restriction to allotment for residential purposes.-- Notwithstanding anything contained in these rules, no plot of Nazul land shall be allotted for residential purposes, to an individual other than an individual referred to in clause (i) of rule 6, who or whose wife or husband or any of his or her dependent children whether minor or not, or any of his or her dependent parents or dependent minor brothers or sisters, ordinarily residing with such individual, own in full or in part, on lease hold or free-hold basis, any residential land or house or who has been allotted on hire purchase basis any residential land or house in the Union Territory of Delhi:

Provided that where, on the date of allotment of Nazul land,

(a) the other land owned by or allotted to such individual is less than 67 square metres, or

(b) the house owned by such individual is on a plot of land which measures less than 67 square metres, or

(c) the share of such individual in any such other land or house measures less than 67 square metres, he may be allotted a plot of Nazul land in accordance with the other provision of these rules."

19. There is no doubt that other than the averment of petitioner and his wife stay apart, nothing has been placed on record to show the matrimonial discord which requires further consideration in that behalf. It, however, needs to be emphasised that this is not a case where the husband and wife are merely trying to make out a case of separation to get an allotment. The DDA also made enquiries about the issue of separation of the husband and wife and found force in the same as per nothings in the original file. The wife has filed documents with DDA asking for cancellation of plot of petitioner and that she is separated and has initiated legal proceedings against the petitioner out of matrimonial discord.

20. The material aspect in the present writ petition is the conduct of the petitioner himself. It is the petitioner who volunteered the information about the allotment of his wife and it was not a discovery by the respondent or a complaint received. The petitioner himself sought the clarification and has suffered as a consequence thereof. Interestingly, the respondent has now been implementing the scheme for conversion of leasehold into freehold of the various properties for a number of years which dilutes the original conditions and stipulations. There was no reason for the petitioner to have concealed this fact at an earlier stage when the petitioner himself volunteered the fact at the subsequent stage.

21. In my considered view, the most material aspect is the issue of applicability of the Nazul Rules. The case of the petitioner on reconsideration has been rejected by the DDA on the ground that the Nazul Rules would not be applicable. In my considered view, this does not reflect the correct position in law as the rules would be applicable to cases where allotment has been made after the rules have come into force. In such a situation, it cannot be said that the petitioner filed a false affidavit or gave a wrong declaration since the allotment in favor of the wife of the petitioner of a plot of less than 67 sq.mtr. was not a disqualification for the petitioner to get the allotment of the plot in question on the date of allotment by which time Nazul Rules had come into force.

22. The issue of allotment in another sector is a non-issue in view of the non-availability of the plots as also passage of time. Further, the plot earlier allotted to the petitioner has already been kept reserved in pursuance to the interim orders dated 4.4.1995.

23. A writ of mandamus is thus issued directing the respondent to hand over possession of plot No. 124, Pocket II, Block A, Sector 5, Rohini to the petitioner within a period of one month from today. The respondent shall also execute the lease deed/conveyance deed in favor of the petitioner within a period of three months from today on the petitioner executing necessary documents. The petitioner shall also be entitled to costs of Rs.5000/-.