Chandra Kumar Satija vs D.D.A.
2005 Latest Caselaw 327 Del

JUDGMENT

S. Ravindra Bhat, J.

1. Rule. With the consent of parties, the petition was taken up for final hearing.

2.The petitioner's grievance in these proceedings under Article 226 of the Constitution is against the non-allotment of a plot under MIG category by the Delhi Development Authority (DDA), to him. An appropriate direction quashing the decision taken by the DDA in that regard and further direction to allot the plot at the rates prevailing in the year 2003 have been sought for.

3. The petitioner was the owner of a small house measuring 62.5 square meters in W.E.A. Extension, Karol Bagh. He applied to DDA for an allotment of a 90 square meters plot under the Rohini Residential Scheme, 1981 in view of the growing needs of his family. The plot which was under his occupation had been allotted by the Custodian/Managing Officer of the Evacuee Properties Cell against a claim held by him under the Displaced Persons (Compensation and Rehabilitation) Act, 1954.

4. In the application made to DDA for the allotment of a plot under MIG category, a disclosure about the ownership and possession of the existing plot had been made.

5. The petitioner, apparently a public servant, retired in 1983. Pursuant to an advertisement by DDA, calling for applications from retired/retiring persons, the petitioner applied for allotment under that quota on 26.12.1991. After considerable time, a draw was held in the year 2003 and the petitioner was declared successful; he was allotted the plot bearing No.C-5/268 in Sector-28, Rohini (hereafter called ''the Plot'').

6. The petitioner avers that when he became aware of this, he visited the DDA Office. The DDA declined to give the plot on the ground that he is owner of the 62.5 square meters property which rendered him ineligible for allotment.

7. Mr. Sumit Bansal, learned counsel appearing on behalf of the petitioner submits that the stand taken by the DDA is unreasonable and not justified; the DDA had knowledge about the ownership and the possession by the petitioner of the plot allotted by the Custodian. Having waited for 22 years, the denial at this stage cannot be countenanced.

8. Learned counsel for the petitioner has also relied upon a decision of this Court rendered by learned Single Judge, namely, in Madan Lal Garg v. Delhi Development Authority, . In this decision, the Court had occasion to examine a similar controversy. Learned counsel placed reliance on paras 2,3,10 and 11 of that judgment and stated that the denial of allotment of plot in this case is illegal and under identical circumstances, the Court interpreted a similar clause, namely, clause (i) relied upon by the DDA.

9. Reliance has also been placed upon the judgment in M.L. Aggarwal v. Delhi Development Authority, . In that case, the clause being pressed into service by the DDA was considered. Additionally, it was held that the conditions spelt out under Nazul Rules would apply at the stage of allotment.

10. Mr. Manu Mridul, learned counsel appearing on behalf of the DDA has relied upon clause (ii) of the terms and conditions spelt out in the brochure issued by the DDA at the time when the applications were called for. That clause prohibits allotments to individuals who own properties, under circumstances which have spelt out. Mr. Mridul also relied upon an affidavit filed by the petitioner with DDA in the year 1994 when he sought for transfer of the registration in respect of the plot in favor of his son, which was rejected. In that, a statement was made that he did not own a house. He also submits that this affidavit was not disclosed to this Court and this only shows the petitioner's conduct in an adverse light; it consequently dis-entitles him to any relief.

11. The concerned clause in this case is clause (ii) which reads as follows:

'' (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.''

12. In the decision in Madan Lal Garg's case(supra), this Court had occasion to interpret the same clause (which was extracted in para 2 of the judgment). The DDA had taken a similar stands, to wit that being owner of a plot or property that fell within the category mentioned in the clause, the petitioner there was des-entitled to the allotment. The learned Judge after considering the rival contentions and analysing the stipulation in question held as follows:

''para 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.mrs., 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 read to a peculiar situation that if the plot of the same size is held joi9ntly 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.''

13. In view of this, the issue with regard to interpretation of clause (ii) stands concluded in the petitioner's favor; the DDA cannot again raise it in this case and seek a different interpretation.

14. Coming to the other aspect, namely, the filing of affidavit by the petitioner in the year 1994 and the conduct which, it is submitted dis-entitles the petitioner to relief, it has to be noted that both aspects, namely, petitioner's conduct in applying for the allotment and disclosure fully about his ownership of the plot as well as subsequent conduct in the year 1994 have to be balanced together. If one was proceed in isolation, and not consider one aspect the correct picture would not emerge. That apart somewhat similar allegations were against the writ petitioner in M.L. Aggarwal v. Delhi Development Authority, where the aggrieved party had deposed that he or his spouse did not own a plot which was within the stipulated mesurement. It was also held that the Nazul Lands Rules would not apply, as is being contended in this case. Dealing with those contentions, it was held as follows:

''para 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 condition, it cannot be said that the petitioner filed a false affidavit or grave a wrong declaration since the allotment in favor of the wife of the petitioner of a plot of less than 67 sq.mtrs. 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.''

15. I am of the view that the furnishing of an affidavit by the petitioner with the DDA in the year 1994 though to some extent relevant cannot be overwhelmingly against him for rejecting a claim for allotment or relief in this case. It was for transfer of registration; the application was rejected, after due consideration. That rejection took place sometime in 1994-95. Therefore, the registration continued in the name of the petitioner. It is not that if the registration itself has been cancelled on the account of non-disclosure which admittedly the DDA is not putting forward. What is being put forward by the DDA in these proceedings is that the relevant clause (ii) would come into play and that the petitioner being owner of a plot which is prohibited as per that clause is therefore not entitled, for allotment.

16. In view of the above discussion and having regard to the decisions of the Court, I am of the view that the petition is entitled to succeed. I accordingly quash the impugned letters dated 20th July, 2004 and 13th April, 2004 by which the DDA has rejected the petitioner's request for allotment. The DDA is further directed to process the case of the petitioner and proceed to allot the plot at the rate prevailing in the year 2003 within a period of eight weeks from today.

17. The writ petition and the application for interim relief are disposed off accordingly with no orders as to the costs.