Sunder Singh Gahlawat And Anr. vs D.D.A. And Anr.
2004 Latest Caselaw 1232 Del

JUDGMENT

Pradeep Nandrajog, J.

1. One Mani Ram S/O.Ramji Lal resident of Village Kishan Garh, Mehrauli was the owner of agricultural land in village Mehrauli. Part of his land was acquired. As per policy of Large Scale Acquisition, Development and Disposal of Land in Delhi,1961 he was entitled to be allotted a residential plot.

2. Claim and entitlement had to be decided by the Land and Building Department of Delhi Administration. On 26.4.1983, Land and Building Department of Delhi Administration recommended to D.D.A. that a 250 sq. yards residential plot be allotted to Shri Mani Ram. Copy of said letter was sent to Mani Ram. The letter reads as under:-

''No.F.32[45]/7/81/LandB/Alt./13071 Dated : 8.10.85

To

The Deputy Director (Residential),

Delhi Development Authority,

Vikas Sadan, New Delhi.

Subject : Allotment of alternative plot under the Scheme of ''Large Scale Acquisition Development and Disposal of land in Delhi, 1961.''

Sir,

I am directed to request you to allot a plot measuring 250 sq. Yards (two hundred and fifty sq. yards only) Mehraulit, New Delhi in lieu of his acquired land measuring 17 Biswas bearing Khasra No.1234, 1235, 2526/1227/1 and 1218/6 of Village Mehrauli, Award No.80-E/70-71 dated 9-1-81 as he has been found entitled for the same.

You are kindly request to acknowledge the receipt of this letter and have the recommendation confirms from the Secretary or Joint Secretary (LandB) Delhi Admn. Delhi before making allotment as recommended.

Yours faithfully,

[C.B.Yadav]

Deputy Director (Allot)

No.F.32[45]/7/81/LandB/Alt.

Dated :

Copy forwarded to Shri Mani Ram, Son of Shri Ramji Lal, R/o. Village Kishan Garh, Mehrauli, New Delhi. Further correspondence in the matter may please be made with the above mentioned officer. The allotment of alternative plot is subject to the availability of plot with the Delhi Development Authority. However it may clearly be noted that t his letter does not carry with the legal commitment for the allotment of alternative plot and is subject to that in case he comes to hold land above the ceiling limit, he shall apply to the competent authority as provisions of the section 15 of the Urban Land Ceiling Regulation Act.

Sd/-

[C.B.Yadav]

Deputy Director(Allot)''

3. Since policy of allotment of alternative residential plot linked entitlement qua size of the plot to the area of agricultural land acquired, Mani Ram made a representation to the Land and Building Department of Delhi Administration that since 93 bigha and 2 biswa of agricultural land belonging to him was acquired, he be given a plot measuring 400 sq.yards as per his entitlement.

4. When Mani Ram made the request aforesaid, he had shifted residence to Canal Colony, Faridabad, Haryana, evidenced by the fact that considering the representation made by Mani Ram and accepting the same, Land and Building Department, Delhi Administration, while recommending to DDA vide letter dated 8.10.1985 to allot a plot measuring 400 sq. yards to Mani Ram, sent copy thereof to Mani Ram at Canal Colony, Faridabad. Letter dated 8.10.1985 reads as under

''No.F.32[45]/7/81/LandB/Alt.

Dated : 8.10.85

To

THE DEPUTY DIRECtor (RES),

DELHI DEVELOPMENT AUTHORITY,

3RD FLOOR, ''A'' BLOCK, INA,

VIKAS SADAN, NEW DELHI.

SUB : ALLOTMENT OF ALTERNATIVE PLOT UNDER THE SCHEME OF ''LARGE SCALE ACQUISITION, DEVELOPMENT AND DISPOSAL OF LAND IN DELHI, 1961.''

SIR,

I am directed to refer this Administration letter No.F.32[45]/7/81/ LandB/Alt./13071 dated 26.4.1983 of even No.26013 dated 29.7.1983 on the subject cited above and to say that plot measuring 400 Sq.Yards in South Zone is recommended to Shri Mani Ram Son of Shri Ramji Lal of Village Mehrauli, instead of 250 Sq. Yards as recommended earlier.

YOURS FAITHFULLY,

[S.SEETHARAMAN]

JT.SECRETARY[LandB]

No.F.32[45]/7/81/LandB/Alt./30460 Dated: 8.10.85

Copy forwarded to Shri Mani Ram, Son of Shri Ramji Lal C/o. Shri A.S.Gahlawat, Executive Engineer, WJC Feeder/GC Mechanical Division, Canal Colony, Faridabad, Haryana for information.

Sd/-

[S.SEETHARAM]

JT.SECRETARY[LandB]''

5. Mani Ram died on 14.7.1989. On 24.4.1974 he had bequeathed his entire property to the petitioners who are the sons of his daughter, Smt.Ved Vati @ Ram Wati.

6. Since Mani Ram had some unacquired land in the village, petitioners applied for mutation of their names in the revenue record. It was allowed on 26.8.1991.

7. Petitioners never brought this fact to the notice of D.D.A.

8. When plots became available, D.D.A. sent an allotment letter dated 11.1.1993 to Mani Ram intimating him that a 334.10 sq.meter plot No.34-A, Sector 23A, Papankalan was being offered to him. He was called upon to deposit 25% of the premium and another 10% of the premium as earnest money within 30 days. Total amount payable (25% plus 10%) was Rs.1,93,019/-. It was stated that if payment was not received within 30 days, it would be presumed that he was not interested in the offer.

9. Letter aforesaid was admittedly sent by DDA through a process server at Village Kishan Garh, Mehrauli. It was returned back unserved with a report that Shri Mani Ram had died and was not residing at the address given. DDA cancelled the allotment on 12.4.1994.

10. As per policy, DDA gives 3 chances to avail an alternative plot. In the year 1997 DDA issue a demand cum allotment letter offering plot No.105, Block-C, Pocket-8, Sector 18 to Mani Ram. This letter was also sent to Village Kishan Garh, Mehrauli. Needless to state even this letter came back unserved. On 9.7.1997 DDA cancelled the allotment offered for second time vide demand cum allotment letter dated 28.1.1997.

11. Petitioners applied for mutation in their name with the DDA only on 11.9.2002. DDA allowed the said mutation. On 16.7.2003, DDA intimated to the petitioners that it had effected mutation. Simultaneously, on 16.7.2003 DDA issued a demand cum allotment letter to the petitioners informing that plot No.30, Pocket-3, Block-B, Sector 17, measuring 226.99 sq.mtrs in Dwarka Residential Scheme was allotted to them at the provisional pre-determined rate of Rs.4437/-. 25% of the premium along with earnest money equivalent to 10% of the premium, total amounting to Rs.3,52,504.25 was demanded within 60 days of the date of issue of the demand cum allotment letter. 50% of the premium was directed to be deposited within another 60 days from the last date fixed for payment of 35% premium and balance 15% was stated to be payable when possession would be offered. It was indicated in the letter that sum of Rs.1,11,478 was also payable on account of cancellation charges. Thus amount initially payable was Rs.4,63,04.25.

12. The sum of Rs.1,11,478/- stated to be payable towards cancellation charges was on account of the fact that as per policy since this was third chance, for non-payment when earlier allotments were offered, 10% of the premium charged was liable to be paid as cancellation charges.

13. On 4.9.2003 petitioners deposited the sum of Rs.4,63,982.25 as demanded. Further, 50% of the premium in the sum of Rs.5,03,577.50 was paid on 4.11.2003.

14. Thereafter, on 9.12.2003 petitioners wrote a letter as under:-

''From:

SUNDER SINGH GAHLAWAT AND KRISHAN

PRAKASH GAHALAWAT,

C-154, VIKAS PURI, NEW DELHI-18.

DATED: 9.12.2003

THE DY.DIRECtor(LA)/RES

DELHI DEVELOPMENT AUTHORITY,

LEASE ADMINISTRATION BRANCH,

C-BLOCK, VIKAS SADAN,

NEW DELHI-110023.

REG: ALLOTMENT OF ALTERNATIVE PLOT UNDER SCHEME OF LARGE SCALE ACQUISITION, DEVELOPMENT AND DISPOSAL OF LAND IN DELHI. PLOT NO.30 POCKET NO.3 BLOCK C SECtor 17 MEASURING 226.990 SQ.MTRS. IN DWARKA RESIDENTIAL SCHEME.

DEAR SIR,

We have been allotted one Plot No.30 in Pocket No.3 Block B Sector 17 of 226.990 Mtrs. in DWARKA RESIDENTIAL SCHEME vide File No.F.27(5O) letter No.F.32[45]/7/81 /LandB/Alt./12071 dated 1983/LandA/[R]/6953 dated 16.7.2003 as per Land and Development Building Department in South Zone for 400 Sq.Mtrs. In this connection, we are to inform you that we have already deposited Rs.4,63,982.25 vide D.D. No. 139269 of Bank of Maharashtra dated 4.9.2003 on 4.9.2003 in State Bank of India, INA, New Delhi and Rs.5,03,577 50 vide DD No.827273 dated 4.11.2003 of Bank of Maharashtra in State Bank of India, INA, New Delhi on 4.11.2003 and the copy of the Challans had already been sent as 35% plus Rs.111478/- as 10% Cancellation Charges [without prejudice] and 50% as required in your above letter. Thus we have deposited 85% plus Rs.111478/- without prejudice to our right for adjustment in balance 15% payments.

Since we have not received any previous letters of allotment of Plot as mentioned in your above letter and our address was already in record as per Jt.Secretary [LandB]'s letter No.F.32[45]/7/81/LandB/Alt./30460 dated 8.10.1985 in which he had clearly mentioned that plot measuring 400 Sq.Yds. be allotted instead of 250 Sq.Yds. as such we were entitled for the allotment of 400 Sq.Yds. and not for 250/260 Sq.Yds. Further we may be informed as and when we were allotted the plot and the rates should be charged or that year and not the current of 2003-2004 when penalty is being charged from us. A person can be penalized by one side either the penalty be charged or current rates of 2003-2004 But in our case we were penalized on both sides such as Current Rate of 2003-2004 and penalty as 10%.

You are requested to kindly look into the matter and issue another plot either of the balance Yds. Or 400 Yds. one Plot and waive off the cancellation charges as we have not received any allotment letter earlier and to avoid any further litigation, we have deposited the entire amount as demanded before time.

We may be informed of the cancellation charges waivell and allot of 400 Sq.Yds. as per entitlement, and recommendations.

Your earlier action in the matter is requested by Land B.

THANKING YOU,

YOURS FAITHFULLY,

SUNDER SINGH

[SUNDER SINGH GAHLAWAT AND KRISHAN PARKASH GAHLAWAT]''

15. DDA did not accept the contention of the petitioners save and except reduce the cancellation charges to Rs.99,388/- from Rs.1,11,478/-. Petitioners continued to correspond on the issue. DDA did not relent.

16. On 9.3.2004, DDA informed the petitioners that as per policy 3 chances were allowed. In the instant case twice allotments had been offered, offer not being accepted, allotments were cancelled. Thus, cancellation charges @ 10% of the premium of the plot on each allotment would be charged. On entitlement to the size of the plot, DDA informed that as per policy now being followed, all recommendies of 400 sq. yard plots were being allotted plots of 250 sq. yards.

17. Present petition was filed praying that DDA be directed to allot plot measuring 400 sq. yards to the petitioners in South Delhi. Cancellation charges demanded in the sum of Rs.99,388/- are also sought to be impugned.

18. Learned counsel for the petitioner Mr.Ravinder Sethi, drawing attention of this court to the letter dated 8.10.1985 addressed by the Land and Building Department, Delhi Administration to DDA (para 4) stated that said letter clearly indicated to DDA that Mani Ram was residing at Canal Colony, Faridabad, Haryana and, therefore, DDA was in default when it addressed the demand cum allotment letter dated 11.1.1993 to late Shri Mani Ram at Kishan Garh, Mehrauli. Counsel urged that DDA cannot take benefit of its own wrong. On the issue of entitlement, counsel contended that Mani Ram was held to be a 400 sq.yards plot in South Zone. Admittedly, he was offered a plot measuring 334.10 sq.mtrs. by and under the demand cum allotment letter dated 11.1.1993. Thus, counsel urged that entitlement of Mani Ram could not be reduced to 226.99 sq.mtrs.

19. Mr.Rajiv Bansal, who appeared for DDA stated that DDA may be at some fault in issuing earlier 2 demand cum allotment letters to Mani Ram at Kishan Garh but even the petitioners are at fault. Mr.Rajiv Bansal submitted that admittedly Mani Ram died on 14.7.1989. For the first time, allotment letter was issued to him on 11.1.1993. It may be that it was sent at a wrong address, but, according to the counsel, it hardly mattered because petitioners, for the first time applied for mutation only on 11.9.2002. Counsel contended that in any case allotment made in 1993, being in the name of a dead person was inconsequential.

20. Demand of cancellation charges raised was justified as being as per policy. Counsel contended that petitioners had not challenged the policy.

21. On the issue of plot size and area in which it fell, counsel contended that the policy envisaged that if larger size plots were not available a smaller size plot could be offered. Counsel contended that when the plot in question was offered to the petitioners on 16.7.2003, they accepted the allotment by depositing 35% of the premium as also chancellation charges in the sum of Rs.1,11,478/-. Thereafter, another 50% of the premium in the sum of Rs.5,03,577.50 was paid. Having accepted the allotment, counsel urged, petitioners were estopped from questioning the same.

22. It is no doubt true that had the petitioner informed about death of Mani Ram in time and had applied for mutation, problem would not have arisen. Mani Ram died on 14.7.1989. First allotment to Mani Ram was made on 11.1.1993. Had the petitioners sought mutation within time, formalities could have been completed well before entitlement of Mani Ram crystalized when plot was offered in the year 1993. But, at the same time notwithstanding that the petitioners remained negligent, DDA too has contribute to the problem. If DDA had issued the allotment letter dated 11.1.1993 to the address at Canal Colony, Faridabad, Haryana, where he was residing with Attar Singh father of the petitioners, at least knowledge of allotment would have enured to the petitioners. Had it been so, they could have acted promptly. Second allotment letter was also issued at the address of Mani Ram in Kishan Garh.

23. I am surprised that DDA issued second allotment letter to Mani Ram at his Kishan Garh address in the year 1997 in spite of the fact that when the process served took the first allotment letter for service on Shri Mani Ram at the address in Kishan Garh, he reported that Mani Ram had died and was no long available at the given address. It is apparent that DDA acted mechanically to give three chances to Mani Ram as per policy, not Realizing that when first chance was given, it was reported that Mani Ra had died.

24. Under the circumstances, allotment in question needs to be treated as the first allotment disentitling DDA to cancellation charges.

25. Undisputably, when demand cum allotment letter dated 16.7.2003 was issued, petitioners were informed that the plot measuring 226.99 sq.mtrs. was in Dwarka Residential Scheme. Premium was also indicated. In the letter of allotment, inter alia, it was indicated as under:-

''In case you are interested in obtaining allotment of the plot on the terms and conditions stipulated above and also annexed, you are required to submit application for allotment along with acceptance of the terms and conditions and affidavit, undertaking, in the enclosed format, within 60 days of the issue of this letter. Application should be accompanied by a copy of computerized bank challan showing above said amount in Vikas Sadan, INA, New Delhi Branch of State Bank of India/Central Bank of India.''

26. Petitioner accepted the allotment on the premium demanded, evidence by the fact that on 4.9.2003, 35% of the premium was deposited and thereafter on 4.11.2003 another 50% of the premium was deposited. Though, in the writ petition, petitioners aver that this deposit was without prejudice to the right of the petitioners, but no material has been placed on record to show that while tendering the amounts, petitioners had indicated that it was without prejudice to their right.

27. Petitioners have clearly acquiesced in the allotment being made to them for the plot in question and at the price demanded. Petitioners cannot resile from the same.

28. Besides, when Land and Building Department of Delhi Administration recommended name of Mani Ram to DDA for being allotted a plot it was made clear that this was subject to availability of plot and that the letter did not carry the legal commitment for the allotmet of alternative plot.

29. Petition is allowed to the extent demand of cancellation charges in the sum of Rs.99,388/- is quashed. It is declared that petitioners would be entitled to adjustment of the said amount when final 15% premium would be required to be deposited.

30. No costs.