Daya Chand Jain vs Dda
2012 Latest Caselaw 296 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) 7463/2009

                                                    Decided on: 16.01.2012

IN THE MATTER OF
DAYA CHAND JAIN                                     ..... Petitioner
                         Through:    Mr. Sandeep Kumar, Advocate


                    versus


DDA                                                  ..... Respondent
                         Through:    Ms. Manisha Tyagi, Advocate



CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (Oral)

1. The present petition is filed by the petitioner praying inter alia

for quashing/setting aside the order dated 07.01.2009 passed by the

respondent/DDA, cancelling the allotment of plot No.1270, Block No.A,

Pocket 1 , Sector 30, measuring 32 square meters in Rohini Residential

Scheme, and for restoration of the allotment of the aforesaid plot in his

favour.

2. Briefly stated, the facts of the case are that in the year 1981,

the petitioner applied to the respondent/DDA for allotment of a LIG plot

under the Rohini Residential Scheme, 1981. It is a case of the petitioner

that between the years 1996 to October 2003, he was residing in a

government accommodation at Dev Nagar, Delhi. In April 2003, the

petitioner purchased a plot measuring 30.03 square meters from the open

market and constructed upon the same. Subsequently, the aforesaid plot

was converted from leasehold to freehold. On 14.04.2004, the petitioner

sold the aforesaid plot. On 26.07.2004, the respondent/DDA held a draw

of lots, wherein the petitioner was allotted the subject plot and the

respondent/DDA issued a demand-cum-allotment letter having block

dates 02.08.2004-06.08.2004, calling upon the petitioner to deposit the

first installment of 35% of the premium of the plot, i.e., `42,948/-. On

29.09.2004, the petitioner duly complied with the aforesaid demand-cum-

allotment letter by depositing 35% of the premium amount, whereafter

he deposited the balance amounts from time to time, the final installment

having been paid by him on 04.03.2005.

3. On 25.07.2007, the respondent/DDA issued a notice to show

cause to the petitioner, informing him that he alongwith his spouse, Smt.

Kiran Jain was owner of a freehold property bearing No.AG-235, Shalimar

Bagh, Delhi and, he and his spouse, having concealed material facts and

having filed false affidavits, had violated the terms and conditions of the

allotment and, therefore, the plot allotted to them was liable to be

cancelled. The petitioner submitted a reply dated 07.08.2007 to the

aforesaid show cause notice, wherein he informed the respondent/DDA

that at the time when the plot in question was allotted in his favour,

neither he nor his wife owned any plot/flat/house in Delhi. It was further

stated that though the petitioner had purchased a plot measuring 30.03

square meters from the open market in April 2003, he had sold the same

on 14.04.2004 and, therefore, on the date when the draw of lots was held

by DDA, i.e., on 26.07.2004 and further on the date when the demand-

cum-allotment letter having block dates 02.08.2004-06.08.2004 was

issued, the petitioner did not own any plot/flat/house in Delhi.

4. After waiting for a period of 4-5 months, the respondent/DDA

issued a final show cause notice dated 07.01.2008, reiterating the

observation made in its earlier notice to show cause and rejected the

submission made by the petitioner in his reply to the said notice to show

cause and further, called upon him to once again explain as to why the

offer of allotment should not be cancelled. The petitioner once again

submitted a reply dated 18.01.2008 to the respondent/DDA taking the

same stand as he had taken earlier. On 18.03.2008, yet another show

cause notice was issued by the respondent/DDA to the petitioner and it

was duly replied to by the petitioner, vide letter dated 02.04.2008.

Finally, the impugned order dated 07.01.2009 came to be passed by the

respondent/DDA, conveying the decision of the competent authority to

cancel the allotment of the subject plot made in favour of the petitioner.

5. Counsel for the petitioner submits that the aforesaid action of

cancellation of the subject plot on the part of the respondent/DDA is

illegal, arbitrary and without any basis for the reason that he qualified

under the terms and conditions as set out by the respondent/DDA in the

brochure relating to the Rohini Residential Scheme, 1981, which laid

down the eligibility criteria as below:-

"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/Janta : not exceeding `600 P.M.

            (b) in the case of LIG         :    in excess of `600
                                                but should not
                                                exceed `1000 P.M.
            (c) in the case of MIG         :    in excess of `1000
            but
                                                should not exceed
                                                `2000 P.M.

(iii) 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 Delhi Development Authority on an area of even less than 65 sq. mts. shall not, however, be eligible for allotment."

6. It is submitted by the counsel for the petitioner that under the

aforesaid Scheme, it was stipulated that if an individual share of the

applicant in a jointly owned plot/land under the residential house

measures less than 65 square meters, the application for allotment of a

plot can be entertained by the respondent/DDA and the applicant would

be considered eligible for allotment. Counsel for the petitioner also relies

on the decision of the Supreme Court in the case of DDA vs. Jitender Pal

Bhardwaj reported as 163 (2009) DLT 618 (SC) to state that the issue

raised in the present petition has already been settled by the Supreme

Court and in view of the aforesaid decision, the impugned order dated

07.01.2009 is not sustainable and liable to be struck down.

7. A perusal of the judgment in the aforesaid case of Jitender Pal

Bhardwaj (supra) shows that the facts of the aforesaid case are almost

identical to the present case. In the aforesaid case also, the respondent

therein had submitted an application for being registered under the same

scheme, i.e., Rohini Residential Scheme, 1981 and he had given a

declaration to the effect that neither he nor his family members owned a

land or plot in Delhi. After a quarter of century, the draw of lots was

held, where the said respondent was allotted a plot measuring 65 square

meters. As required by the DDA, the respondent therein submitted

necessary documents and an affidavit disclosing therein that he had

acquired a plot admeasuring 62.22 square meters in Mayur Vihar, Phase-

I. However, DDA cancelled the allotment of the said respondent on the

ground that he was already the owner of a plot. Aggrieved by the

aforesaid decision, the respondent therein filed a writ petition in this

Court, registered as W.P.(C) 5417/2007, which was decided on

07.08.2008 reported as 2008 (106) DRJ 361, whereby a Coordinate

Bench of this Court, allowed the writ petition by concluding that the

cancellation of allotment made in favour of the petitioner could not be

sustained. As a result, the cancellation order issued by DDA was quashed

and DDA was directed to handover the possession of the plot in question

to the petitioner therein/respondent in the Supreme Court. Aggrieved by

the aforesaid order, DDA filed an intra-court appeal, which was also

dismissed by the Division Bench and subsequent thereto, the aforesaid

SLP came to be filed by DDA, which was also dismissed by the Supreme

Court with the following observations:-

"9. It is true that the purpose of development of a residential scheme by a City Development Authority is to make available plots to those who do not own a house in that city. It is also true that allotting plots to those who already own houses, may amount to denial of plots to other deserving applicants who do not own or hold any property at all. But the policies and purposes of development authorities are not uniform. Some schemes contemplate allotment of plots to those who are poor and whose income is less than the specified limit. Some schemes provide for allotment of smaller plots to economically weaker sections at a lesser price and allotment of larger plots to high income groups at a higher price. Some schemes make anyone owning a property, whether commercial or residential ineligible. Some schemes make only those owning plots already allotted by the authority ineligible. Some schemes make only those owning properties which are larger than a prescribed limit ineligible. Though the intention of Development Authorities in general is to allot plots to the houseless, the policy and scheme has to be given effect with reference to the specific wording of the eligibility provision. If DDA wanted to bar everyone owning a plot/house/flat from securing an allotment, it

could have made its intention clear by simply providing that "anyone owning or holding a long term lease, any plot/house/flat in Delhi/New Delhi/Delhi Cantonment area, will be ineligible for allotment under this scheme". But DDA chose to make the eligibility clause subject to an exemption. If it chose to exempt certain categories, such exemption has to be given effect. When the term of exemption is specific and unambiguous, it is not possible to restrict its applicability or read into it, a meaning other than the plain and normal meaning, on the assumption that the general object of the Scheme was different from what is spelt out in the term. Be that as it may." (emphasis added)

8. The facts of the case in hand are similar to the facts of the

aforesaid case. It is not in dispute that the terms and conditions of

allotment as stipulated for the Rohini Residential Scheme, 1981 permitted

an applicant, who had an individual share in a jointly owned plot or land

under the residential house admeasuring less than 65 square meters, to

apply for allotment under the said Scheme. In the present case,

admittedly neither the petitioner nor his spouse or minor children owned

in full or part any residential plot of land or house or flat in Delhi at the

time of submitting his application. Though the petitioner had acquired a

plot admeasuring 30.03 square meters from the open market in April,

2003, he disposed of the same on 14.04.2004. As a result, when the draw

of lots was held by the respondent/DDA on 26.07.2004, neither the

petitioner nor his spouse or his family members were owning a plot of

land in Delhi. Same was the position when the respondent/DDA issued

the demand-cum-allotment letter in favour of the petitioner bearing block

dates 02.08.2004-06.08.2004. In such circumstances, the

respondent/DDA could not have cancelled the allotment of the petitioner

merely because he owned a land meant for residential use admeasuring

less than 65 square meters in Delhi. The case of the petitioner is on a

better footing than that of the respondent in the case of Jitender Pal

Bhardwaj (supra) for the reason that in the present case, the petitioner

did not own any plot of land on the date when he submitted a declaration

to the respondent/DDA.

9. The submission made by the counsel for the respondent/DDA

that the cancellation of allotment was justified for the reason that the

petitioner had not been able to produce any document to show that a

valid sale deed had been executed by him for sale of the aforesaid

property to a third party, may not be of any assistance to the

respondent/DDA for the reason that even if it is assumed that the

petitioner remained the owner of the aforesaid plot, he is still covered

under the judgment of the Supreme Court in the case of Jitender Pal

Bhardwaj (supra), for the reason that the eligibility criteria laid down by

the respondent/DDA in its Brochure stipulated that an applicant owning a

plot of land under the residential house measuring less than 65 sq. mtrs.,

could have submitted an application for allotment under the Rohini

Scheme of 1981 and the petitioner herein had purchased a plot of land

which measured 30.03 sq.mtrs.

10. In view of the aforesaid facts and circumstances, the

impugned order dated 07.01.2009 is not sustainable and set aside and

quashed with directions to the respondent/DDA to hand over possession

of the allotted plot to the petitioner, as prayed for and execute the

relevant documents in that regard upon his fulfilling all necessary

formalities, which have remained unfulfilled. Necessary intimation in this

regard shall be communicated by the respondent/DDA to the petitioner

within six weeks and the possession of the plot shall be handed over to

the petitioner within a period of four weeks from the date of completion of

all requisite formalities by him.

11. The petition is disposed of while leaving the parties to bear

their own costs.

                                                           (HIMA KOHLI)
JANUARY 16, 2012                                              JUDGE
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