Delhi High Court

Basant Kumar Rastogi vs Delhi Development Authority & Anr on 28 October, 2010

Author: Rekha Sharma

                                                              UNREPORTABLE


*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                               W.P. (C) No.2004/2006


                                            Date of Decision: October 28, 2010


       BASANT KUMAR RASTOGI                  ..... Petitioner
                     through Mr. Anand Yadav, Advocate with
                     Ms. Anita Tomar, Advocate

                      versus


       DELHI DEVELOPMENT AUTHORITY & ANR         ..... Respondents
                     through Mr. Pawan Mathur, Advocate


       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? No
2.     To be referred to the reporter or not? No
3.     Whether the judgment should be reported in the „Digest‟? No

REKHA SHARMA, J. (ORAL)

It is not disputed that the petitioner was allotted plot No.198,

Pocket No.II, Block-A, Sector-30, measuring 32 square meters in Rohini,

Phase-IV, Residential Scheme vide „Allotment-cum-Demand Letter‟

dated October 05, 2005. In terms of the said letter, the petitioner was

required to deposit a total sum of ` 1,63,296/-, out of which ` 51,825/-

were to be deposited latest by December 05, 2005, 50% of the

premium amounting to ` 81,648/- by February 03, 2006 and the

balance 15% amounting to ` 24,494/- on receipt of further

communication from the respondent-DDA.

Admittedly, the petitioner did not deposit the amount as claimed

in the „Allotment-cum-Demand Letter‟. He says that he did not do so

for the reason that apart from the printed conditions on the

„Allotment-cum-Demand Letter‟, the respondent added another

condition by hand and it was to the effect that the allotment was

"subject to non-allotment of Janta Flats". The petitioner wrote to the

respondents seeking deletion of the said condition but when he did not

hear from them he filed the present writ-petition praying for a direction

to the respondents to accept the payment from him and further to

handover possession of the flat to him, dehors the said condition.

The relevant rule which governs the entitlement or otherwise of

the petitioner to the plot in question is Rule-17 of the Delhi

Development Authority (Disposal of Developed Nazul Land)

Rules, 1981. It runs as under:-

"General restriction to allotment for residential purposes - Notwithstanding anything contained in these rules, no plot of Nazul land shall be allotted for residential purposes, to an individual other than an individual referred to in Clause (i) of Rule 6, who or whose wife or husband or any of his or her dependent children whether minor or not, or any of his or her dependent parents or dependent minor brothers or sisters, ordinarily residing with such individual, own in full or in part, on lease-hold or free-hold basis, any residential land or house or who has been allotted on hire purchase basis any residential land or house in the Union Territory of Delhi -

Provided that where, on the date of allotment of Nazul land,

(a) the other land owned by or allotted to such individual is less than 67 square meters, or

(b) the house owned by such individual is on a plot of land which measures less than 67 square meters, or

(c) the share of such individual in any such other land or house measures less than 67 square meters, he may be allotted a plot of Nazul land in accordance with the other provisions of these rules."

The petitioner admits that he owned a Janta flat but submits that

the area of that flat was less than 67 square meters. Hence, as per

him, his case falls under the proviso to the aforementioned rule. The

respondents also admit that the plot which the petitioner owned in his

name was less than 67 square meters and yet contend that he is not

entitled to the plot.

The question whether Rule 17 of the Delhi Development

Authority (Disposal of Developed Nazul Land) Rules, 1981 disentitles

the petitioner to the plot in question even if he was having a Janta flat

measuring less than 67 square meters is no more an issue. It has been

held by this Court in the case of Krishan Bhagwan Versus Delhi

Development Authority, reported in 1999(50) DRJ 99 that a person who

owns property which is less than 67 square meters does not become

disentitle for allotment of a plot in Delhi. The same view was taken by

a Division Bench of this Court in the case of DDA Versus M.L.Aggarwal,

reported in 127(2006) Delhi Law Times 572 (DB). The said judgment of

the Division Bench was taken in appeal to the Supreme Court and the

Supreme Court vide its order dated November 26, 2009 has finally put

the issue at rest by upholding the judgment of the Division Bench.

In view of the aforementioned judgments, particularly, the

judgment of the Supreme Court, the respondent-DDA cannot any more

contend that because the petitioner was in possession of a Janta flat

which was admittedly less than 67 square meters, he was not entitled

to the plot as aforementioned.

Having failed on this score, the learned counsel for the

respondents has made a feeble attempt to contend that as the

petitioner did not deposit the sum of ` 1,63,296/- in terms of the

„Allotment-cum-Demand Letter‟ dated October 05, 2005, his right to

the plot stood forfeited. Reference in this regard has been made to

Clause-8 of the „Allotment-cum-Demand Letter‟ which stipulates that in

case an allottee fails to deposit the amount and the required

documents within the specified period, the allotment would be treated

as cancelled and the amount already deposited by him would be

refunded on his request after deducting a sum of 10% of the earnest

money in addition to the interest payable.

The aforementioned submission is liable to be rejected for the

reason that since the petitioner was questioning the condition that

made his allotment "subject to non-allotment of Janta flat", he could

not be expected to deposit the amount as claimed by the respondents,

for had he done so, he would have blocked his money without being

assured of the fact that the condition as imposed would be deleted.

Let me also refer to an order of this Court passed on

February 17, 2006 which reads as under:-

"x x x x x

1. Notice. Mr. Anil Sapra, Advocate accepts notice for DDA. Counter affidavit be filed within six weeks. Rejoinder be filed within four weeks thereafter.

2. Post on 07.7.2006.

3. Learned counsel for the petitioner states that petitioner is prepared to make the necessary

deposits without prejudice to the rights of the parties and states that the petitioner will not claim any equity in his favour if deposit is directed to be made.

4. It is open to DDA to avail benefit of offer made by the petitioner. It is made clear that if DDA does not accept the offer made by the petitioner, it would not be permissible for DDA to take a stand that due to non-payment, allotment stood cancelled. In that eventuality, on petitioner succeeding DDA would also have no right to claim interest.

x x x x x"

It is submitted by learned counsel for the petitioner that in view

of the above order, the petitioner wrote to the Deputy Director (LSB),

Delhi Development Authority, Rohini stating that he was ready to

deposit the amount and that if the Delhi Development Authority was

ready to accept the same in terms of the order of the High Court dated

February 17, 2006, he be informed accordingly. It is further submitted

that the respondent-DDA chose to keep quiet with the result that the

petitioner though offered to deposit the amount in terms of the order

of this Court dated February 17, 2006, the same remained unpaid.

Having regard to the aforesaid facts and the decision of this

Court as well as of the Supreme Court with regard to Rule 17 of the