Delhi High Court

Jai Kanwar Jain vs Delhi Development Authority on 18 December, 2008

Author: Vipin Sanghi

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 Date of Decision : 18.12.2008

%                  W.P.(C) 1337/2008

      JAI KANWAR JAIN                    ..... Petitioners

                       Through:    Mr. Pankaj Vivek, Advocate
                  versus

      DELHI DEVELOPMENT AUTHORITY      ..... Respondent
                    Through: Ms. Sangeeta Chandra, Advocate



      CORAM:

      HON'BLE MR. JUSTICE VIPIN SANGHI



      1. Whether the Reporters of local papers may
         be allowed to see the judgment?

      2. To be referred to Reporter or not?           Yes

      3. Whether the judgment should be reported      Yes
         in the Digest?


VIPIN SANGHI, J. (Oral)

1. The petitioner while working as an Upper Division Clerk with the

Municipal Corporation of Delhi applied under the Rohini Residential

Scheme floated by the DDA in the year 1981 for allotment of a 48 sq.

meters plot. The petitioner was made an allotment vide demand-cum-

allotment letter with block dates 11.06.2004 to 15.06.2004 of a plot

admeasuring 32 sq. meters. The petitioner made payment of the

amount demanded by the DDA. Eventually, the allotment made to the

petitioner was cancelled by the DDA on 28.11.2007, after issuance of

the show cause notice dated 17.09.2007 on the ground that the

petitioner, his wife and his son are already in possession of another

property bearing No.112, Pocket F-22, Sector-3, Rohini Residential

Scheme, Delhi-85 admeasuring about 90.00 sq. mts. It is this

cancellation which has been challenged by the petitioner in this writ

petition.

2. The Rohini Residential Scheme contained the eligibility conditions

in the brochure issued by the DDA. The eligibility condition as

contained in the brochure reads as follows:

"1. ELIGIBILITY:

Any individual who is not a minor may apply for allotment of only one plot if he/she fulfils the following conditions:

(i) The total annual income of the individual from all sources including the income of his wife/her husband, and minor children should

(a) In the case of EWS/Janata not exceeding Rs.

600 P.M.

            (b) in the case of LIG          in excess of Rs. 600
                                            but    should    not
                                            exceed Rs. 1000

                                           P.M.
          (C) in the case of MIG          in excess of Rs.
                                          1000 but should not
                                          exceed Rs. 2000
                                          P.M.

(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 admitted position is that the petitioner, his wife and his son

have in the meantime acquired the aforesaid plot bearing No.112,

Pocket F-22, Sector-3, Rohini, which admeasures 91.96 sq. meters.

The submission of learned counsel for the petitioner is that the

individual share of the petitioner in the aforesaid plot is about 30 sq.

meters, and even if the share of his wife is clubbed to his share, it

comes to less than 65 sq. meters. He submits that since the share of

the petitioner is less than 65 sq. meters, he continues to be eligible for

allotment of the plot in question in terms of the eligibility condition

aforesaid. He further submits that the said plot has been acquired by

him not through an allotment by the DDA, but privately from the

allottee of the DDA. He argues that the last part of the aforesaid

clause, which provides that "Persons who own a house or a plot

allotted by the Delhi Development Authority on an area of even less

than 65 sq. meters", would not be eligible for allotment, would,

therefore, not apply to the petitioner‟s case. The petitioner in support

of his submission relies upon (2007) 9 SCC 67 "Chandigarh Housing

Board v. Major General Devinder Singh (Retd.) & Anr." and the

decision of this Court in "Jitender Pal Bhardwaj v. Delhi

Development Authority" in W.P.(C) No.5417/2007, decided on

07.08.2008. Learned counsel for the petitioner submits that the

purpose of providing that the persons who own a house or plot allotted

by the DDA, irrespective of the area of the house or the plot, would be

ineligible under the scheme, is to exclude persons who have already

availed the benefit of allotment made on predetermined rates, which

are concessional rates when compared to the market rates. Learned

counsel submits that the purpose of this embargo is that no person

should be permitted to avail of such concession twice over.

4. The petition is opposed by the respondent DDA. It is contended

by Ms. Chandra, learned counsel for the DDA, that it does not matter

whether the petitioner has acquired the other property directly from

the DDA by way of allotment, or through power of attorney/sale by the

original allottee of the DDA. So long as the source from which the

property has originated is the DDA, it is sufficient to debar the

petitioner in terms of the last para of the aforesaid eligibility

conditions. She submits that the argument that the petitioner is

eligible on account of the fact that the petitioner is not the beneficiary

of allotment at predetermined rates qua the plot acquired by the

petitioner, his wife and son, cannot be accepted. In support of this

argument, she relies upon a Division Bench Judgment of this Court in

"Dal Chandra Sharma & Anr. v. Delhi Development Authority"

L.P.A. No.240/2007 decided on 30.09.2008. In this case the petitioner

had privately acquired a property originally allotted by the DDA and

was held ineligible for allotment of another property for which he

emerged as the successful bidder in a public auction i.e. at Market

price and not at predetermined rates which are concessional rates.

5. Ms. Chandra further submits that in the application form

submitted by the petitioner he had undertaken that at the time of

allotment the petitioner would execute an affidavit and undertaking as

per the specimen attached in the brochure. The specimen of the

affidavit specifically requires the petitioner to, inter alia, make the

following declaration:

"1. That neither I nor my wife/husband or any of my minor children own in full or in part on lease-hold or

free-hold basis or on hire-purchase basis any residential plot of land or a house or have been allotted any residential flat in Delhi, New Delhi, Delhi Cantonment."

6. She submits that the petitioner cannot truthfully make the said

declaration, since he cannot say that neither he nor his wife nor any of

his minor children own in full or in part on lease or free hold basis or

on hire purchase basis any plot of land or a house and neither of them

have been allotted a residential flat in Delhi, New Delhi or Delhi

Cantonment. She submits that the decision of this Court in Jitender

Pal Bhardwaj (supra) was an entirely different case on merits,

inasmuch as, the petitioner in that case had acquired a flat in a group

housing cooperative society of area lesser than 65 sq.mts. The flat in

the case of Jitender Pal Bhardwaj (supra) did not originate from

DDA. So far as the decision of the Supreme Court in Chandigarh

Housing Board (supra) is concerned, she submits that even in that

case the property acquired by the petitioner was allotted by the Army

Welfare Housing Organization, a registered cooperative society and not

by the Government.

7. Clause (ii) of the eligibility condition, which is relevant for the

purpose of this case, is in three parts. The first part broadly states

that a person who himself or whose spouse or minor children own a

house/residential plot in Delhi would not be eligible to apply under the

scheme. The second part, however, narrows down the aforesaid

ineligibility by prescribing that if the individual share of the person is

below 65 sq. mts. he would not be ineligible. The third part in turn

seeks to limit the scope of the second part of the said clause aforesaid,

by providing that a person who owns a house or a plot "allotted by the

Delhi Development Authority" would not be eligible, irrespective of the

area thereof. It is not in dispute that the individual share of the

petitioner in the jointly owned plot that is held by him, his wife and his

son comes to less than 65 sq. mts. Therefore, he is not rendered

ineligible for allotment of a plot on the strength of the first part of

Clause (ii), as he is saved by the second part thereof. However, in

case, as contended by the respondent DDA, the petitioner can be said

to be a person who owns a plot "allotted by the DDA" in respect of plot

bearing no. 112, Pocket F-22, Sector 3 Rohini Residential Scheme,

Delhi, he would forfeit his right to allotment of the plot now allotted to

him. Having considered the submissions of the parties I am of the

view that the expression "a plot allotted by the Delhi Development

Authority", would not include a property acquired by the applicant

through a private sale transaction which may originally have been

acquired by the first owner through an allotment by the DDA. Such an

interpretation is opposed to the plain language used in the eligibility

condition which only talks of "a plot allotted by the Delhi Development

Authority". This expression is used while dealing with the eligibility of

the applicant. It would therefore mean that the allotment of the plot

or house by the DDA has to be to the applicant. The person, to

become ineligible under the Rohini Residential Scheme should himself

be allotted a house or a plot by the DDA. The interpretation advanced

by learned counsel for the respondent to the aforesaid clause is

extremely wide and far fetched. The respondent is seeking to read

into the said clause words and meaning which is not borne out

therefrom. Reliance placed by the respondent on a Division Bench

decision of this Court in Dalchand Sharma (supra) is of no avail.

That was a case where one of the conditions of auction read:

"Any individual who is not a minor and is citizen of India may purchase lease hold rights in any one plot by bid in the auction, if he/she, his wife/husband or any of his/her minor and or dependent children or dependent parents or dependent minor sisters and brothers, ordinarily residing with him/her do not own in full or in part on lease hold or free hold basis any residential plot or house or have been allotted on hire purchase basis a residential plot or house or flat to any one in the past, nor has transferred his/her membership in any co-operative house building society/CGHS in Delhi."

8. Therefore the emphasis was on the "ownership" of the

house/residential plot and not on the source from which ownership

was derived. Pertinently, apart from "ownership" the eligibility

condition specifically also rendered ineligible those who had been

allotted a residential plot/house.

9. The auction bidder/petitioner in that case was also required to

given, a declaration to the following effect :

"Neither I nor my wife-husband or any of my minor or dependent children old dependent parents or dependent minor sister and brothers ordinarily residing with me, own in full or in part on lease hold or free hold basis in any residential plot of land or house or have been, allotted on hire purchase basis a residential land or house in union territory of Delhi. I have transferred any residential plot/house or flat to any nor I have transferred my membership in any cooperative housing building society - CGHS in Delhi in Favour of anyone."

10. The petitioner Dalchand Sharma had sought to contend that he

had acquired another property (prior to emerging as the successful

bidder in the auction conducted by the DDA in respect of a plot in

Yamuna Vihar) in Yamuna Vihar on the basis of an agreement to

sell/power of attorney and not on the basis of a sale deed. It was

argued that since the petitioner Dalchand Sharma was not the

registered owner of the earlier acquired property in Yamuna Vihar, he

was not debarred from participating in the auction on account of the

aforesaid auction condition and declaration made by him.

11. This submission of the petitioner Dalchand Sharma was rejected

by the Learned Single Judge as also by the Division Bench by giving a

meaningful interpretation to the terms in the light of the fact that the

petitioner had applied for conversion of the earlier acquired property

into freehold in his name which was permissible. The decision in

Dalchand Sharma, therefore, is of hardly any assistance in deciding

the present case, as the eligibility condition considered in that case

was materially different from the one under consideration.

12. In Chandigarh Housing Board (supra), the eligibility condition

stipulated under the relevant housing scheme provided :

"The applicant should not have acquired a house/residential site anywhere in India through Government/semi-Government/Municipal Committee/Corporation/Improvement Trust at concessional rate i.e. at reserved/fixed price, in his/her own name or in the name of any dependent member of his/her family".

13. While interpreting the aforesaid eligibility condition, the Supreme

Court observed that the right to acquire property thought not a

fundamental right, is nevertheless a constitutional and human right.

Before a person can be deprived of his right to acquire property, the

law and/or contract must expressly or explicitly state so. The

respondent had been allotted a flat by Army Welfare Housing

Organization, registered society under the Societies Registration Act.

The said organization undisputedly is not a government or semi

government organization. The Supreme Court, keeping in view the

settled principles of interpretation of deed/statute, held that the

condition of eligibility must be construed literally. If a plain meaning

can be given effect to, there is no reason why it should not be applied.

The Court would not take recourse to any other principle of

interpretation when it is not necessary.

14. A similar argument as the one raised by learned counsel for the

respondent before me, that the plot bearing no. 112 had initially been

allotted by the DDA on concessional rates to the original allottee was

rejected by the Supreme Court. It was sought to be contended by the

petitioner Chandigarh Housing Board that the expression „through‟

must be given its due meaning in construction of the eligibility

conditions and in view of the fact that some allotments at concessional

rates had been made by the Ministry of Housing and Urban

Development to the Societies, the respondents being part of the

Society would come within the purview of the restrictions in the

eligibility condition. The Supreme Court held as follows:

"30. We are unable to accept the said submission. The word "through" in this context would imply "agency". Thus only when a person acquires some property through the "agency" specifically mentioned therein, the condition of eligibility which, it will be a repetition to state, imposes a restriction on a valuable right of a citizen must be held to be applicable and not otherwise.

31. Acquisition of any property through any other source or through any other agency is not prohibited. Right to acquire property is a human right. A deed must be construed reasonably and in its entirety. If acquisition of any property through any agency other than specified therein is not prohibited, evidently, the restriction clause in the condition of eligibility will have no application. The same, in our opinion, must be construed strictly. A clause impinging the right of a citizen must, in our opinion, receive strict construction and the principle of contextual interpretation will have no application in such a case."

15. The submission of learned counsel for the respondent founded

upon the declaration required to be made by the petitioner at the time

of allotment is also, in my view, of no avail. I have already held in

Jitender Pal Bhardwaj (supra) that the statement required to be

made in the affidavit has to be read in conjunction with the eligibility

condition contained in the Rohini Residential Scheme.

16. I, therefore, allow the writ petition and direct respondent to

allot and deliver to the petitioner the Plot No. 163, Pocket NO. 1, Block

C, Sector 27, admeasuring 32 sq. mts. in Rohini, Phase IV Residential

Scheme. In case the said plot already stands allotted to any other

person, the respondent shall allot another similar developed plot in the

same pocket/block/sector in Rohini Phase IV Residential Scheme to the