Delhi Development Authority vs Amarjeet Singh
2012 Latest Caselaw 2708 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of decision: 25th April, 2012

+                                LPA No.318/2012

       DELHI DEVELOPMENT AUTHORITY           ..... Appellant
                   Through: Mr. S.D. Salwan & Mr. Neeraj
                            Chaudhary, Advs.

                                  Versus
    AMARJEET SINGH                     ..... Respondent

Through: None.

CORAM :-

HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This intra-court appeal impugns the order dated 07.03.2011 of the

learned Single Judge allowing W.P.(C) No.7510/2009 preferred by the

respondent by directing the appellant DDA to hold a mini draw and to

allot an LIG flat to the respondent.

2. The respondent was a registrant with the appellant DDA in the

Rohini Residential Plotted Scheme (RRPS), 1981. However till the year

2002, i.e. for over twenty years, no allotment in pursuance to the said

registration fructified. On 13.06.2002, the appellant DDA announced the

Narela Housing Scheme (NHS), 2002. The waiting registrants inter alia

of RRPS, 1981 were also eligible to apply thereunder. Clause I of the

said Scheme is as under:

"I. SCHEME This Scheme is called „Narela Housing Scheme, 2002 of the Delhi Development Authority‟. Under this scheme applications are invited from the General Public for allotment of HIG, MIG, LIG/EHS and Janta flats for any category. The waiting registrants holding a registration with DDA under New Pattern Housing Scheme-1979, Ambedkar Avas Yojna-1989, Janta Housing Scheme-1996 and Rohini Residential Plotted Scheme-1981 can also apply under this Scheme.

The interested persons are free to have the option to apply for any category of flat as per their requirement and affordability irrespective of their registration under any category. The successful waiting registrants of old schemes applying for allotment of flat under this scheme will forfeit their right for further allotment of flat or plot under the relevant scheme, they are already registered with the DDA."

3. The respondent applied under the NHS, 2002 also and was

successful and an LIG flat thereunder was allotted to him. However, the

respondent did not accept the said allotment and rejected the same citing

odd location and lack of basic amenities. The said rejection was accepted

by the appellant DDA and the registration amount for NHS, 2002

refunded to the respondent.

4. The respondent soon thereafter informed the appellant DDA that

since he had not accepted the allotment under the NHS, 2002, he was

desirous of keeping his registration under the RRPS, 1981 alive.

5. The registration of the respondent in the RRPS, 1981 matured

sometime in the year 2004 and an LIG plot admeasuring 32 sq. mtrs. was

allotted to him. The respondent deposited the amount demanded but

before the allotment could be formalized and possession handed over to

the respondent, the appellant DDA cancelled the said allotment on the

ground of the respondent being disentitled thereto for the reason of

having rejected the allotment under the NHS, 2002. Impugning the same,

the writ petition from which this appeal arises was filed.

6. The learned Single Judge has allowed the writ petition holding that

the purpose of the Clause I aforesaid of NHS, 2002 was to ensure that an

applicant does not end up getting more than one flat or plot in different

schemes; that since the respondent had surrendered the allotment under

the NHS, 2002 and also not sought refund of the registration amount

under the RRPS, 1981, he could not be deprived of benefit thereof also,

particularly when he had already paid the full price thereof.

7. This appeal has been preferred along with an application for

condonation of delay of 399 days in filing thereof, perhaps when the

appellant DDA is faced with contempt proceeding. The counsel for the

appellant DDA has sought to explain the reasons for the delay. On

merits, strong reliance is placed on order dated 28.04.2009 in W.P.(C)

No.84/2007 titled Ved Prakash Changia Vs. DDA holding to the

contrary. It is argued that though the said order was cited before the

learned Single Judge but has not been taken note of.

8. We have, considering the nature of the controversy, heard the

counsel for the appellant on merits and accordingly condone the delay in

filing the appeal. Though undoubtedly another Single Judge in Ved

Prakash Changia (supra) has on an interpretation of the same Clause I

(supra) of NHS, 2002 held that the registration under the RRPS, 1981

stood forfeited upon being successful under the NHS, 2002 and allotted a

flat thereunder and notwithstanding rejection of the said flat and the

mistake of the DDA in still making allotment under the RRPS, 1981

could not enure any benefit to such a registrant but after having perused

and studied the two conflicting opinions of Single Judges of this Court,

we tend to agree with the opinion expressed in the judgment under appeal

and are inclined to put our imprimatur thereon.

9. We may in this regard notice that, i) NHS, 2002 was open to

general public and was not confined to the registrants under the earlier

Schemes of the appellant DDA; ii) under the NHS, 2002, a preference in

the matter of eligibility / allotment was given to the registrants under the

earlier Schemes and in which the registrants of the RRPS, 1981 were

given the second preference i.e. behind the registrants of the New Pattern

Housing Scheme-1979, Ambedkar Awas Yojna-1989 and Janta Housing

Scheme-1996; iii) the NHS, 2002 while providing in Clause 13 thereof

for Surrender / Cancellation, provided only the monetary penalty /

charges therefor, as under:

13. Surrender/Cancellation:

"For allotment surrendered/cancelled due to non-payment, the

cancellation charges shall be as under:

1. Surrender/cancellation within 30 days Rs.1000/-

2. Surrender/cancellation after 30 days Rs.2000/- but before 60 days

3. Surrender/cancellation after 60 days

Rs.3000/- but before 90 days

4. Surrender/cancellation beyond 90 days Rs.5000/-

Any amount deposited towards the cost of the flat will be refunded without interest after deduction of cancellation charges.

Following documents are to be submitted for refund in case surrendered/cancelled.

(1) Fourth copy of Bank Challan in original vide which amount deposited in UTI Bank. (2) Acknowledgement slip duly discharged by an endorsement received "Payment" on its back duly signed on revenue stamp of Rs.1/-

(3) Original allotment-cum-Demand letter issued by DDA in respect of allotted flat in Narela.";

(iv) Similarly, Clause 21(c) was as under:

"c). Old Registrants:

If the successful applicant wants to surrender the allotment, the registration amount alongwith interest upto the last date of the closing of the scheme after deducting the prescribed cancellation charge shall be refunded to him / her:

These successful waiting registrants shall be required to furnish the following documents while seeking the refund:

a) FDR or Acknowledgment slip duly discharged by an endorsement "Received Payment" on its back duly signed on a revenue stamp of `1/- duly discharged.

b) Fourth copy of the Bank Challan vide which registration money was deposited.

No interest on registration money beyond the last date of the closing of the Scheme shall be payable under any circumstances."

v) it would thus be seen that NHS, 2002 envisaged Surrender /

Cancellation of allotment thereunder and the consequences provided

therefore were only monetary and nowhere provided that the

Surrender/Cancellation of allotment would also entail forfeiture of

registration under the earlier Scheme.

10. The State, through the agency of the appellant DDA has

undertaken the activity aforesaid to provide housing which is a basic

need. Supreme Court recently in Society for Un-Aided Private Schools

of Rajasthan V. Union of India MANU/SC/0311/2012 reiterated that a

right to shelter or housing though does not find any place in Part III or

Part IV of our Constitution but has been recognized by the courts by

giving a wider meaning to Article 21 of the Constitution. The

constitutional duty of the State to provide adequate facilities and

opportunities by distributing its wealth and resources for settlement of life

and erection of shelter over the head to make the right to life meaningful

was also emphasized.

Mention may also be made of B.P. Jain & Associates V. State of

Haryana 1992 Supp(1)SCC 541 reiterating the need for promoting a

housing policy to overcome the acute shortage of housing and accepting

housing/shelter as one of the three basic needs of man in a civilized

society, besides food and clothing.

11. The Schemes floated by the appellant DDA from time to time

cannot be read as a negotiated contract between the parties. The theme

running in all the Schemes of the appellant DDA is that none is entitled to

benefit thereof more than once. In fact restrictions are placed even on the

family members. The Clause I aforesaid of the NHS,2002 and

particularly the phrase "the successful waiting registrants of old scheme"

therein has to be read in the said context. We are unable to agree with the

interpretation thereof in Ved Prakash Changia (supra). A registrant

under the NHS, 2002 even if had succeeded in obtaining allotment but if

had surrendered / cancelled such allotment, cannot be called successful

under the NHS, 2002. The success in a housing scheme is dependent

upon the allotment fructifying i.e. on being put into possession and being

conferred title and not if allotment though made is cancelled /

surrendered. Such cancellation / surrender, as aforesaid was permitted

under NHS, 2002 and the consequences thereof were also laid down.

Once the cancellation / surrender is effected, the registrant can no longer

be said to be „successful‟ thereunder. Success under the Scheme cannot

be transitory.

12. We however, while correcting the order have found that LPA

609/2010 preferred by the DDA against the order in Ved Prakash

Changia (supra) was dismissed by Division Bench of this Court on

26.08.2010 observing that schemes floated by the Statutory Authorities as

DDA have their own sanctity and a registrant of RRPS 1981 after being

registered under NHS, 2002 would have no right under the registration

under the RRPS 1981. The same was not brought to our notice at the time

of hearing or when we had dismissed this appeal. We have wondered

whether to relist the matter for reference to a larger Bench since we do

not agree with the opinion of the Co-ordinate Bench in Ved Prakash

Changia (supra). We have however, in the facts and circumstances

hereinabove and discussed hereafter, consciously decided against such a

course of action which would further indefinitely delay the respondent

being put into possession of the small plot of land on which his house is

to come up and for which he has already waited for the last more than

three decades, thereby multiplying his agony. We also find that though

Ved Prakash Changia (supra) was concerned with an identical

controversy but the emphasis therein was on the DDA being not entitled

to cancel the allotment under RRPS 1981 even if having been made

mistakenly and which contention was negatived. Neither the learned

Single Judge, nor the Division Bench in Ved Prakash Changia (supra)

noticed Clauses 13 and 21(c) supra of NHS, 2002 which while providing

consequences for Surrender/Cancellation of allotment under NHS, 2002

do not provide for the forfeiture of registration under RRPS, 1981 also.

13. We are of the view that for the consequence of earlier registration

under RRPS 1981 also to be forfeited upon surrender/cancellation of

allotment under NHS, 2002, the same ought to have been expressly

stated. On the contrary, DDA by expressly limiting the consequences of

Surrender/Cancellation of allotment under NHS, 2002 to monetary only is

deemed to have represented that there will be no other

consequence/penalty on the registrant surrendering/cancelling the

allotment. Thus, NHS, 2002 as per its own sanctity also is not found to be

providing for such forfeiture as has been effected.

14 Even if it were to be held that there is a case of ambiguity /

vagueness in the Scheme, the benefit thereof certainly has to go to the

registrant who has waited patiently for nearly three decades.

15. It is also not as if the appellant DDA has suffered on account of

cancellation / surrender of the allotment under the NHS, 2002. We have

enquired from the counsel for the appellant DDA. He confirms that the

number of registrants was far more than the houses allotted and a waitlist

was maintained and the surrendered / cancelled flats under the NHS, 2002

devolved on those in the waiting list. That being the position, there is no

reason for depriving the respondent from the benefit of the registration

under the RRPS, 1981 also particularly when he has not availed of any

success / benefit under the subsequent registration in the NHS, 2002.

16. We therefore do not find any merit in this appeal and dismiss the

same. No order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE

APRIL 25, 2012/„gsr‟