Smt. Santosh Dhawan vs Delhi Development Authority
2006 Latest Caselaw 1754 Del

JUDGMENT

S. Ravindra Bhat, J.

Page 3308

1. The facts of this case present a surrealistic picture, where even in the absence of any valid rationale for its decision, a public authority obdurately persists in its repetition, oblivious to individual facts, causing misery, and displaying apathy to reason and fairness.

2. The writ petitioner claims directions to the respondent (hereafter "DDA") for restoration of allotment to Plot No BP 154, Shalimar Bagh, and a consequential direction to carry out mutation of the property in her favor.

Page 3309

3. In 1970, shopkeepers in the old Subzi Mandi were offered and allotted plots in the New Subzi Mandi. The petitioner's father in law, Niranjan Dass, was allotted a shop plot, being Plot No. D-1301; he took possession.

4. A rehabilitation scheme was announced by the DDA in 1975 for allotment of plots of LIG, MIG & HIG categories in Shalimar Bagh exclusively to those allotted shops/plots in New Subzi Mandi Azadpur. Shri Radhey Shyam Dhawan, the son of Shri Niranjan Dass, and husband of the petitioner, applied for allotment of a residential plot by application No. 424, as a partner of M/s Niranjan Dass. A plot No. BP-154 measuring 100 sq. yds. in Shalimar Bagh was allotted to him. Admittedly he paid the amount demanded, i.e. a total sum of Rs. 6,000/- in January 1976, for the 100 square yard plot. Possession of the plot too, was handed over. Shri Dhawan filed a copy of Deed of Partnership in relation to business being run in shop No. D- 1301, New Subzi Mandi Azadpur in the name of M/s Niranjan Dass & Co. at the time of applying under the scheme; he had also filed an affidavit. The partnership comprised of three partners namely 1) Shri Niranjan Dass; 2) Radhey Shayam and; 3) Bhupinder Kumar.

5. Sometime in 1979, the DDA appears to have taken the position that that the partnership deed was executed in the year 1973 i.e. after the allotment of shop plot in the name of Shri Niranjan Dass. Therefore, Shri Radhey Shayam Dhawan, who applied for allotment of residential plot, was not found eligible for allotment of residential plot. The allotment was hence cancelled on 26.10.1979. It was also decided that as the allotment of shop was in favor of Shri Niranjan Dass, the residential plot could be considered in his name, subject to fulfillling the required formalities. Shri Radhey Shyam was informed accordingly.

6. Shri Radhey Shyam Dhawan informed DDA by his letter dated 19.12.1979 that his father Shri Niranjan Dass expired on 26.7.1979 and requested for allotment of the residential plot to him, as he was his partner, and a legal heir. He was asked to first get the shop plot No. D-1301, New Subzi Mandi Azadpur transferred in his name. The DDA, by its letter dated 25-1-1980, informed that the request for restoration of the residential plot would be considered after mutation of the shop plot D-1301, New Subzi Mandi. In the meanwhile, a complaint from Shri Bhupinder Kumar Dhawan (3rd partner in the firm) was received alleging that his grand father (late Shri Niranjan Dass) had executed a "Will" in his favor and in favor of his uncle Shri Radhey Shyam Dhawan. He also alleged that his uncle was trying to get the property transferred in his name and requested that the plot may not be transferred in his uncle's name. Later, however, this allegation was found to be of no consequence.

7. Smt. Santosh Dhawan, the petitioner informed DDA that her husband Shri Radhey Shyam Dhawan expired on 6.4.1984 and requested that plot No. BP-154, Shalimar Bagh (hereafter "the suit property") may be transferred in her name as she is the only legal heir. On 10--2-1987, the DDA accepted her application for mutation of the shop plot, i.e. D-1301- it was directed to be transferred in her favor. She was however, informed by DDA's letter dated 24.7.1987 that the allotment of the suit property Page 3310 already stood cancelled, and her request for transfer of residential plot in her name could not be acceded to. This was apparently on account of a resolution of the DDA No. 93 dated 4.10.1985, where it was decided that the old cases of 1975-76 in which cancellation of plots where payment of premium was either not made or delayed, should not be re-opened. The relevant portion of the said resolution reads as follows:

A policy decision in this regard, therefore, needs to be taken because apart from these 15 cases it is apprehended that in thousands of cases where cancellation of allotment was done on the grounds of non-payment of premium/earnest money, many of the applicants would come forward with the request to restore allotment of plots in their case also. Since 1975, onwards the Land prices have risen phenomenally and the applicants would obviously want restoration of allotments at the old rates which was then Rs. 50/- to Rs. 80/- per sq. yards. but now vary from Rs. 316/- to Rs. 474/- per sq. metr. depending upon the location of the scheme.

5. There is yet another category of cases where allotment was cancelled for non-payment of premium/earnest money. These are such cases where lands of the applicants were acquired for the Planned Development of Delhi and they had to be allotted alternative plots of the size as recommended by the Delhi Admn. in view of their land acquired under the scheme of Large scale acquisition, development & disposal of land in Delhi. In such two cases one relating to South Zone of Sh. Shiv Das Mal Kalra and the other of Sh. Brij Mohan Nath of West Zone requests were made for restoration of allotment and though these requests being highly belated, were accepted subject to payment of premium at the current pre-determined rates in these type of cases also we have started receiving requests for restoration of allotment and a policy decision as to how these cases should be treated is also required.

6. The matter is, therefore, submitted to the Authority for consideration and decision.

RESOLVED that the closed cases would not be re-opened.

8. The petitioner kept representing for transfer of the residential plot in her name as the allotment of plot was connected with the allotment of shop plot. Her request was examined by DDA, which considered that initially allotment of plot No. BP-154, Shalimar Bagh was obtained by filing wrong affidavit and mis-representation and also a dispute in the family, and decided not to accede the request. The amount deposited was sought to be refunded to her, in 1994. In the meanwhile, the DDA noticed that as a large number of requests for restoration of allotment of plots were being received by it, a general decision was taken with the approval of Lt. Governor on 4.4.1990 for closure of the old cases of 1975-76. The petitioner continued, but unavailingly to represent for transfer of plot in her name.

9. Learned Counsel for the petitioner urged that the decision to not restore allotment and mutate the suit property in her name was whimsical, and arrived at without application of mind. It was submitted that the cancellation letter issued in 1979 itself mentioned that restoration was possible in favor Page 3311 of Niranjan Dass. Later, on 25-1-1980, DDA informed Radhey Shyam Dhawan, the petitioner's husband, and Niranjan Dass' son that the issue of restoration of allotment of the suit property would be taken up after the shop plot was mutated in his favor. As events transpired, he died in 1984; the shop plot was transferred in favor of the petitioner on 10-2-1987. It was submitted that the resolution of 4-10-1985 could never, in terms be applicable to the petitioner, as there was no question of delay, in payment of earnest money, or the premium. As far as the question of furnishing wrong information was concerned, it was submitted that the DDA had all the necessary information; the copy of partnership deed of 1973 was deposited with it in 1975, when the allotment of the suit property was made. These facts were implicitly acknowledged, even in the cancellation letter, which stated that restoration of allotment of the suit property was possible in favor of Niranjan Dass. As regards decision of the Vice Chairman dated 4-4-1990, counsel contended that the decision was a general one, taken without considering the facts of the petitioner's case.

10. Counsel further contended that the DDA itself had, at one stage, taken the view that mutation and restoration of allotment in the petitioner's favor was possible, if she showed that she was an heir, and produced documentary evidence that other heirs had no objection. As a result, copies of the registered release deed dated 19th July, 1985, duly executed by all the other heirs of Niranjan Dass, along with affidavits and indemnities, had been furnished in 2001. After considering all these, the Law Department of the DDA had opined that the petitioner deserved relief. He submitted that the refusal by DDA to restore allotment, and mutate the name of the petitioner, was therefore, utterly arbitrary.

11. The DDA's position, reflected in its counter affidavit, and reiterated by its counsel, Ms. Sangeeta Chandra, was that although late Niranjan Dass was found eligible for the shop plot at New Subzi Mandi, and given one such plot, only individuals or firms, who had been granted such plots were eligible for residential plots, as per the scheme of 1975. The application made in respect of the suit property was not by Niranjan Dass, but his son; the firm was not in existence in 1970, but was formed in 1973. Therefore, the allotment was rightly cancelled in 1979. The mutation of the shop plot in favor of the petitioner could not be confused as a decision in her favor in respect of the suit property. It was submitted that the DDA's resolution not to re-open cancelled cases, was a policy decision, admitting no exception, and the grant of relief in stray cases did not confer any right to demand restoration of allotment, in favor of the petitioner.

12. Counsel submitted that a general decision was again taken by the Lt. Governor, as Chairman, DDA on 4-4-1990. The petitioner's case did not present any distinctive or exceptional features. Although the legal department did recommend her case, the entire matter was reviewed at the highest levels, including by the Lt. Governor, who on 19-9-2005, expressed approval of the view that the DDA should abide by the recommendations of the Resolution No. 93 of 1985, and the orders of the Lt. Governor, dated 4-4-1990, not to re-open old closed cases of cancellation. Being part of a Page 3312 general policy decision, it was submitted that the DDA could not be faulted, as it was taken in the general interests of the Authority's efficient functioning.

13. The above narrative shows that the narrow question requiring decision is whether the refusal by the DDA to restore allotment of the suit property in the petitioner's favor is justified. As regards the basic facts, i.e. the allotment of shop plot in favor of Niranjan Dass, in 1970, allotment of the suit property to Radhey Shyam, in 1976, his relationship with Niranjan Dass, and the circumstance that the entire consideration was paid in time, leading to handing over of possession on 8-6-1976, there is no dispute. The DDA has also not disputed that Radhey Shyam Dhawan had submitted all relevant documents enabling it to decide his eligibility, including copy of the partnership deed of 1973, at the time of the application in 1975. In these circumstances, it cancelled the plot; however, it decided to allot the plot to the allottee of the shop plot, i.e. Niranjan Dass, as is evident from the letter dated 26-10-1979. Later, it informed Shri Dhawan that the mutation would be effected in his favor, after he informed about death of Niranjan Dass, soon after mutation of the shop plot. Radhey Shyam Dhawan died in 1984. On 10-2-1987, the shop plot was mutated in the petitioner's name, thus effectively setting at rest any lingering doubt as to Radhey Shyam Dhawan's rights. No other heir of late Niranjan Dass was shown as allottee of the said shop plot. Yet, the DDA decided not to restore allotment, of the suit property on the basis of Resolution 93/1985, and later, the general decision of the Lt. Governor. This rationale has prevailed throughout, despite some thinking in the petitioner's favor as is evident from the DDA's request that she ought to disclose her exclusive right, and also furnish an appropriate indemnity and affidavit, which she did.

14. The terms of the DDA's resolution 93/1985 show that it was primarily concerned with the question of impact of its decision making process and the general approach to be adopted where leases and allotments were cancelled on grounds such as late/belated payment of earnest money, or Installments for allotted properties, including alternative plots. The resolution does not contain any mention of cases where allotments were made after full payments, deposited in time, pursuant to applications received, and processed, where all the particulars had been given, and more crucially, where even possession had been handed over. The most fundamental flaw in the approach of the DDA in this case is that it appears to have shut its eyes to the duty to consider the facts, and see how the resolution was relevant. It obdurately insisted- and even today insists- that restoration is not possible because of the resolution. The terms of this resolution indicate that this stand is completely unfounded. Similarly, the order of the Lt. Governor was a general one, issued without consideration of individual facts. The DDA has quite unreasonably cocooned itself from consideration of the relevant facts, by mechanical reiterations of the 1985 resolution, and the decision of 04.04.1990.

15. In Indian Aluminium Co. v. Kerala SEB , the Supreme Court held that a statutory body cannot fetter its discretion to take appropriate decisions, warranted by individual facts. A similar view was Page 3313 expressed by a Constitution Bench, earlier, in the decision reported as Shri Rama Sugar Industries Ltd. v. State of A.P. where it was held that:

11. It is, therefore, clear that it is open to the Government to adopt a policy not to make a grant at all or to make a grant only to a certain class and not to a certain other class, though such a decision must be based on considerations relevant to the subject-matter on hand. Such a consideration is found in this case. Halsbury (Vol. 1, 4th Edn. para 33 at p. 35) puts the matter succinctly thus:

A public body endowed with a statutory discretion may legitimately adopt general rules or principles of policy to guide itself as to the manner of exercising its own discretion in individual cases, provided that such rules or principles are legally relevant to the exercise of its powers, consistent with the purpose of the enabling legislation and not arbitrary or capricious. Nevertheless, it must not disable itself from exercising a genuine discretion in a particular case directly involving individual interests, hence it must be prepared to consider making an exception to the general rule if the circumstances of the case warrant special treatment. These propositions, evolved mainly in the context of licensing and other regulatory powers, have been applied to other situations, for example, the award of discretionary investment grants and the allocation of pupils to different classes of schools. The amplitude of a discretionary power may, however, be so wide that the competent authority may be impliedly entitled to adopt a fixed rule never to exercise its discretion in favor of a particular class of persons; and such a power may be expressly conferred by statute.

12. We are satisfied that in this case the State of Andhra Pradesh has properly exercised the discretion conferred on it by the statute.

16. The DDA, in this case appears to have become a prisoner of its view that the resolution of 1985, prevented re-opening of the case. In thus concluding, it refused to take into consideration relevant facts such as the circumstance that the cancellation letter itself had stated that restoration was possible to Niranjan Dass; that view was reinforced in its letter dated 25-1-1980 when consideration was deferred till the shop plot was mutated in favor of Radhey Shyam Dhawan, the petitioner's husband. That mutation took place on 10-3-1987; unfortunately for the petitioner, the DDA refused to look beyond the resolution injuncting that all cases of cancelled allotments should not be re-opened. The position only became more inflexible, after 4-4-1990, i.e. after decision of the Lt. Governor, when the DDA started treating the resolution as immutable; its terms as edicts carved in stone. No provision of law, or guideline was brought to the notice of the court preventing DDA's review of its decision, if the facts of any individual case so warranted. The facts of this case clearly demonstrate how policies relating to established entitlements affecting rights of citizens can cause untold hardship, Page 3314 if public authorities do not consider individual facts, and seek shelter behind the cloak of general norms or orders. As a statutory body guided by principles of fairness and non-arbitrariness, the DDA necessarily was bound to consider all relevant facts. Here the facts indisputably pointed to the petitioner being a legitimate heir of Radhey Shyam Dhawan, who was the son of late Niranjan Dass, who, as per DDA's letter dated 26-10-1979, was entitled to restoration of allotment. She also furnished indemnities, and copies of relinquishment/release deed by other heirs, establishing her right to the suit property. The decision not to restore the allotment was therefore clearly arbitrary, and taken in a mechanical manner, without application of mind to the relevant facts.

17. In view of the above reasoning, the petition is entitled to succeed. A direction or writ in the nature of mandamus is hereby issued to the DDA commanding it to mutate and regularize the plot bearing No. BP-154, measuring 100 sq. yards, Shalimar Bagh, Delhi in favor of the petitioner. The regularization/restoration charges shall be as per rates applicable on the date of the cancellation, i.e. 26-10-1979. The DDA is further directed to complete the process, after duly intimating the petitioner of the necessary formalities in that regard, within three months. The petitioner shall be paid costs of these proceedings, assessed at Rs. 15,000/- within the said period of three months.

18. The writ petition is allowed in the above terms.