Delhi High Court
Smt.Neeta Rani vs Dda on 4 May, 2010
Author: G. S. Sistani
IN THE HIGH COURT OF DELHI AT NEW DELHI
WP(C).5849/2007
% Judgment delivered on 4th May, 2010
# Smt.Neeta Rani .... Petitioner
Through: Ms.Richa Kapoor, Advocate
Versus
$ DDA .... Respondent
^ Through: Ms.Rajdipa Behura, Advocate
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
1. Whether reporters of local papers may be allowed to
see the Judgment ?
2 To be referred to the Reporter or not?
3. Whether the judgment should be reported in the
Digest?
G.S.SISTANI, J: (ORAL)
1. Rule. With the consent of counsel for the parties, writ
petition is set down for final hearing and disposal.
2. The facts of the case as set out in this petition are that
mother-in-law of the petitioner late Smt. Saroj Aggarwal
(hereinafter referred to as the Original Allottee) was
allotted a plot bearing No. 042, Pocket- 12, Sector-24,
measuring 60 sq.mtrs. under the Rohini Residential
Scheme on 21.11.1991. Smt. Saroj Aggarwal also applied
to the DDA for allotment of a flat under the Seventh Self
Financing Scheme, category II and deposited an initial
amount of Rs.50,000/- along with the relevant documents
on 27.10.1994. At the time of filling up the application
form for the allotment of a flat under the Seventh Self
Financing Scheme, category II, in column 8(a), the original
allottee had disclosed the particulars of the land which
had been allotted to her in the year 1991. The said
column and the details given therein read as under:
"8(a) Have you or your wife/husband or any of your
minor children or dependent parents or dependent
minor sisters and brothers ordinarily residing with you
own in part on lease hold basis or free hold any
residential plot or land or a house or have been
allotted on hire purchase basis a residential flat in
Delhi, New Delhi or Delhi Cantt.(Say Yes or No)
Ans: Land of 60 sq.mrts. Allotted.
(b)If yes, please give details
Plot No. 042, Pkt 12,Sector 24 Measurement 60 sq.
mtrs.(sixty sq.mtrs.) in Rohini Residential Scheme."
3. During the period 1994-98 as per the Self Financing
Scheme, flats were constructed out of the funds paid in
installments by the allottee. On 24.8.1998, a draw of lots
was held in which Smt. Saroj Aggarwal was held successful
for allotment of a flat bearing No. 44, Category II, Sector-3,
Pocket-16, Dwarka under the Dwarka Residential Self
Financing Scheme. As per the petitioner, Smt. Saroj
Aggarwal deposited the payments towards the cost of the
flat on time, as and when the demand was raised by the
respondent.
4. It is contented by counsel for the petitioner that in fact,
Smt. Saroj Aggarwal had paid an amount of Rs.15,599/- in
excess which finds reflected in the fifth and final demand
letter dated 19.11.1998 issued to the petitioner by the
DDA at the time of the allotment of the flat. It is
submitted that there is no amount due and payable by
Smt. Saroj Aggarwal to the DDA. Smt. Saroj Aggarwal,
during her life time had executed a Will dated 19.6.1996
by which she bequeathed all her movable and immovable
properties in favour of her daughter-in-law, the petitioner
herein. Smt. Saroj Aggarwal, during her lifetime had sold
plot No. 42, Pocket-12, Sector-24, Rohini measuring 60 sq.
mtrs. on 13.11.1997 even before the demand letter
against the fifth and final installment in respect of the Self
Financing Scheme Flat at Dwarka, was issued to her. On
the demise of Smt. Saroj Aggarwal on 17.6.1998, by virtue
of a Will dated 19.6.1996, the petitioner became the
absolute owner of the flat bearing No. 44, Category II,
Sector-3, Pocket-16, Dwarka. At the request of the
petitioner, the respondent DDA mutated and transferred
the flat in favour of the petitioner on 17.4.2003. During
the period 2003-07, the petitioner stated to have visited
the office of the DDA and met senior officials. However,
the possession of the flat was not handed over to the
petitioner.
5. In July, 2007, the petitioner was informed vide letter dated
12.6.2007 that the allotment of the flat at Dwarka had
been cancelled on the ground that Smt. Saroj Aggarwal
had been allotted a plot of 60 sq. mtrs. and thus she was
not eligible for allotment of the flat. It is stated in the
letter that as per the eligibility criteria laid down, a person
who has already been allotted a house/flat constructed by
DDA or any other land owning agency even if it is less
than 66.9 sq. mtr.(80 Sq.yds.) shall not be eligible to apply
another flat under the Scheme.
6. Ms.Richa Kapoor, learned counsel for the petitioner,
submits that the order of cancellation is bad in law, in view
of the fact that the original allottee did not suppress or
withhold her earlier allotment of 60 sq. mtrs. plot from the
DDA and she had truthfully filled up Column 8(a) of the
application form while applying for the flat under the
Seventh Self Financing Scheme. She further submits that
this application form was filled up on 27.10.1994 and
thereafter finding the petitioner to be eligible, DDA
included her name in the draw of lots which was held on
24.8.1998 and consequent thereto a specific flat was
allotted in her name. She further submits that as per the
Self Financing Scheme each allottee makes the payment
in installments for the construction of the flats. In fact, the
flat allotted to the petitioner was constructed out of the
funds made available by the mother-in-law of the
petitioner to the DDA. She submits that the DDA
demanded the installments from the petitioner which were
deposited on time and the construction of the flat stands
completed. It is submitted that, at this stage, the DDA is
estopped from raising any objection which in any case is
unfounded. She further submits that on her depositing the
instalment, a right is created in favour of the petitioner
which cannot be taken away by the DDA as the application
form of the petitioner was processed by them and the
petitioner was found eligible for allotment. She submits
that even otherwise the plot at Rohini stands sold by the
petitioner‟s mother-in-law during her life time and this is
the only property available with the petitioner.
7. It is next contended that the petitioner, in any case, fulfills
the eligibility criteria as laid down in the brochure of the
Self Financing Scheme -VII, 1994. The eligibility criteria
reads as under:-
"4. ELIGIBILITY
......
(a) .....
(b) The applicant must not own any
residential house or plot in full or in part on
lease-hold or free hold basis inNew Delhi,
Delhi and Delhi Cantonment, either in his/her
own name or in the name of his/her minor
dependent children. If however, individual
share of the applicant in the jointly owned plot
or land under the residential house is less than
66.9 sq.mtr.(80 sq. yds.) he/she can apply
under the Scheme.
(c) A person who has already been allotted a
house/flat constructed by the DDA or any
other land owning department, even if it is
less than 66.9 sq. mtrs.(80 sq. yds.) shall not
be eligible for another flat under this Scheme."
8. Counsel for the petitioner submits that the petitioner
would be covered both by clause 4(b) as also Clause 4(c).
Ms. Richa Kapoor, submits that applying clause 4(b) of the
eligibility criteria to the facts of this case would show that
the original applicant at the relevant time owned a plot
which was less than 66.9 sq. mtrs. and thus on this ground
the cancellation letter is liable to be set aside. She
submits that although her case would not be covered by
clause 4(c) but in any case clause 4(c) only mentions a
house/flat constructed by the DDA and does not mention a
plot. Learned counsel for the petitioner has also placed
reliance on a judgment of this Court in the case of M.
L. Aggarwal v. DDA, 2003 VII AD (Delhi) 505.
9. The present petition is opposed by the learned counsel for
the DDA on the ground that the mother-in-law of the
petitioner at the relevant time owned a residential plot at
Rohini and thus she was ineligible to apply for a flat under
the Seventh Self Financing Scheme, Category-II. She has
also relied upon the eligibility rule clause 4(b) & 4(c) in
support of her submission that plot was allotted to the
petitioner by the DDA and that even if it was less than
66.9 sq. mtrs., the petitioner has become ineligible.
Learned counsel for the DDA relies upon a decision of the
Apex Court in the case of DDA v. Jitender Pal
Bhardwaj, Special Leave Petition (C) No. 27181 of 2009
decided on 9.10.2009 in support of her contention that the
intention of the DDA is to exempt only those who owned a
residential house less than 65 sq. mtrs. provided the
house is not allotted by the DDA. She submits that in this
case, the plot has been allotted to the petitioner by the
DDA under the Rohini Residential Scheme.
10. I have heard the learned counsel for the parties. In this
case, the basic facts are not in dispute.
11. Initially, the mother-in-law of the petitioner had applied for
a plot under the Rohini Residential Scheme and in the year
1991 she was allotted a plot measuring 60 sq. mtrs. in the
year 1994. The original allottee applied for a flat under
the Seventh Self Financing Scheme in the year 1994. In
Column 8(a), she had truthfully disclosed that she has
been allotted a plot of 60 sq. mtrs. under the Rohini
Residential Scheme. Despite this disclosure having been
made, the name of the petitioner was included in the draw
of lots which was held in the year 1998 and she was
declared successful and a specific flat was allotted to her.
As per the Self Financing Scheme, the petitioner made the
payments as per the stages of construction. As demanded
by the DDA, all payments stand paid by the petitioner to
the DDA as far back as in 1998. The possession of the flat
was not handed over to the petitioner. During this period
the mother-in-law of the petitioner died. She died on
17.6.1998 and on the basis of her Will the mutation of the
flat was carried out by the DDA in her favour on
17.4.2003.
12. A short question which arises for consideration before this
Court is whether the flat allotted in favour of the original
allottee is liable to be cancelled according on the ground
of eligibility bar as per clause 4(b) and 4(c) of the
eligibility conditions? Clause 4(b) and 4(c) read as under:
"4. ELIGIBILITY
......
(a) .....
(b) The applicant must not own any
residential house or plot in full or in part on
lease-hold or free hold basis in New Delhi,
Delhi and Delhi Cantonment, either in his/her
own name or in the name of his/her minor
dependent children. If however, individual
share of the applicant in the jointly owned plot
or land under the residential house is less than
66.9 sq.mtr.(80 sq. yds.) he/she can apply
under the Scheme.
(c) A person who has already been allotted a
house/flat constructed by the DDA or any
other land owning department, even if it is
less than 66.9 sq. mtrs.(80 sq. yds.) shall not
be eligible for another flat under this Scheme."
13. A careful reading of clause 4(b) would show that a person
who applies for allotment of a flat must not own a
residential house or plot in full or in part either on lease-
hold or free-hold basis in New Delhi, Delhi and Delhi
Contonment in her own name or in the name of her minor
dependent/children. If, however, individual share of the
applicant in the jointly owned plot or land under the
residential scheme is less than 66.9 sq. mtr. (80 sq. yds.)
he/she can apply under the Scheme.
14. In this case, no doubt, the mother-in-law of the petitioner
owns a plot which was less than 66.9 sq. mtrs.
15. As per Clause 4(c) such a person would be ineligible in
case an allotment has been made of a house/flat by the
DDA itself or any other land owing department, even if it is
less than 66.9 sq. mtrs. (80 sq. yds.). Reading of clause
4(c) of the eligibility conditions shows that no embargo
has been laid down with regard to a plot. A person would
become ineligible in case he possesses a house/flat
constructed by DDA. In this case mother in law of the
petitioner was allotted a plot measuring 60 sq.mtrs. which
is neither a flat nor any construction was carried out on it
by the DDA, and thus it cannot be said that the mother-in-
law of the petitioner was ineligible for making an
application for allotment of a flat under the Self Financing
Scheme. It may also be noticed that while clause 4(b) has
clearly mentioned a residential house or plot the word
„plot‟ is missing in Clause 4(c).
16. Taking into consideration that the mother-in-law of the
petitioner made an application to the DDA in the year
1994 clearly giving details of the plot having been allotted
to her by the DDA, the DDA included the name of the
mother-in-law of the petitioner in the draw of lots which
was held on 24.8.1998 and thereafter accepted the
installments for construction of the flat which were
deposited by the petitioner within the time allowed and
further, in the absence of any bar of owning a plot in
terms of Clause 4(c) of the eligibility conditions, the
impugned communication dated 12.6.2007 stands
quashed. DDA is directed to hand over the possession of
the flat to the petitioner within a period of six weeks from
the receipt of this order. The excess amount, if any, shall
also be refunded to the petitioner within the same period.
17. The petition stands disposed of.
G.S. SISTANI, J.
May 04, 2010.
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