Delhi Development Authority vs B.B. Jain
2013 Latest Caselaw 1084 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Judgment reserved on   :     01.03.2013
                                  Judgment pronounced on :     05.03.2013

+      LPA 670/2012
       DELHI DEVELOPMENT AUTHORITY                             ..... Appellant
                                  Through: Mr Ajay Verma, Adv.
                       versus
       B.B. JAIN                                               ..... Respondent
                                  Through: Mr R.K. Saini, Adv with Mr Sitab
                                  Ali Chaudhary, Adv.
                                  AND
+      LPA 709/2012
       D.D.A. & ANR.                                           ..... Appellants
                                  Through: Mr Ajay Verma, Adv.
                                  versus
       BASANT KUMAR RASTOGI                                    ..... Respondent
                                  Through: Mr Anand Yadav, Adv.
       CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE V.K. JAIN


V.K. JAIN, J.

1. The respondent in LPA No.670/2012 got himself registered with

the appellant - DDA in the year 1976 for allotment of a residential flat.

The appellant allotted an LIG flat to him at Motia Khan, vide allotment

letter dated 16th August, 1998. The said flat was built on area measuring

less than 65 sq.m. In the meanwhile, the appellant had come out with a

Scheme known as Rohini Residential Scheme, 1981, for allotment of

plots of land. The respondent also applied for allotment of a plot under

the aforesaid Scheme and a plot measuring 60 sq.m. was allotted to him

vide demand-cum-allotment letter dated 6th August, 2004. However,

possession of the aforesaid plot was refused to him on the ground that he

had already been allotted a residential flat in Motia Khan and, therefore,

was not entitled to any further allotment from DDA. Since the appellant

cancelled the allotment of plot to the respondent, he filed a writ petition

questioning the aforesaid cancellation. The learned Single Judge, vide

impugned order dated 26th May, 2011, directed the appellant to hand over

possession of the aforesaid plot to the respondent if full payment in terms

of the Scheme has been received by it. Being aggrieved from the

aforesaid order, the appellant is before us by way of this appeal.

2. In LPA No.709/2012, the respondent before us was allotted a plot

of land under the Rohini Residential Scheme of the appellant and a

demand-cum-allotment letter dated October 5, 2005 was issued to him.

The respondent, however, did not deposit land premium with the

appellant in terms of the allotment letter on the ground that one condition

added in the allotment letter was to the effect that the allotment was

subject to non-allotment of Janta flats. The respondent sought deletion of

the aforesaid condition from the allotment letter issued to him and finding

no positive response from DDA filed a writ petition seeking an order

restraining the appellant from cancelling the aforesaid allotment and

directing it to handover possession of the aforesaid plot to him. It would

be pertinent to note here that the respondent in this case has been allotted

a Janta flat constructed on an area measuring less than 67 sq. metres.

The learned Single Judge, vide impugned order dated 28.10.2010 held

that irrespective of allotment of a Janta flat to him by DDA, the

respondent was entitled to allotment of a plot under the Rohini

Residential Scheme, 1981.

3. One of the terms and conditions stipulated in the Rohini

Residential Scheme, 1981 of the appellant reads as under:-

"(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."

4. Section 22 of Delhi Development Act, to the extent it is relevant,

provides that the Central Government may, by notification in the Official

Gazette, place, at the disposal of DDA, all or any developed or

undeveloped land in Delhi vested in the Union known as Nazul Lands for

the purpose of development in accordance with the provisions of the said

Act. It further provides that after any such Nazul land has been developed

by, or under the control of DDA, it shall be dealt with by the said

Authority in accordance with the Rules made and directions given by the

Central Government in this behalf. Section 56(j) of the said Act

empowers the Government to make Rules prescribing the manner in

which Nazul land should be dealt with after development. In exercise of

the powers conferred upon it by Section 56(j) of the said Act, Central

Government framed rules known as the DDA (Disposal of Developed

Nazul Land) Rules, 1981. Rule 2(i) of the aforesaid Rules defines "Nazul

land" to mean the land placed at the disposal of the Authority and

developed by or under the control and supervision of the Authority under

Section 22 of the Act.

Rule 17 of the aforesaid Rule reads as under:-

"17. 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 metres, or

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

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

5. It is not in dispute that since the flat allotted by DDA to the

respondent in these appeals have been constructed on land measuring less

than 67 square metres, they would be entitled to allotment of a plot of

Nazul land from DDA, if the matter is to be governed by the aforesaid

Rules. Since the terms and conditions stipulated in the Rohini Residential

Scheme, 1981 debar any allottee from DDA from allotment of a plot

under the said scheme, even if the area of the house/plot allotted to them

by DDA is an area less than 65 square metres, the question which comes

up for consideration in this case is as to whether the allotments made by

DDA under the Rohini Residential Scheme, 1981, after coming into force

of Nazul Land Rules, would be governed by the terms of the Scheme or

by the provisions of the Rules.

6. The contention of the learned counsel for the appellant was that the

respondents having applied for allotment of plot, as per the terms and

conditions stipulated in its Rohini Residential Scheme, 1981, they are

stopped from questioning the terms of the said Scheme and are not

entitled to allotment in violation of the provisions of the aforesaid

Scheme. The learned counsel for the respondents, on the other hand,

contended that the Nazul Land Rules, being statutory in nature would

govern, even the allotments made under Rohini Residential Scheme, 1981

and would supersede the terms and conditions of the Scheme, to the

extent they are repugnant to the said Rules.

7. The first question to be examined by us in this regard is as to what

would be the relevant date to determine the eligibility of the applicant

under the Scheme, whether it would be the date on which the application

is submitted or it would be the date on which the allotment is made.

Indisputably, mere submission of application to DDA for allotment of a

plot under its Rohini Residential Scheme, 1981 does not constitute a

binding contract between the parties for allotment of a plot to the

applicant under the aforesaid Scheme. A binding contact would come

into force only when a specific plot is offered and such an offer is

accepted by the applicant under the Scheme. If no binding contract

between the parties came into force merely on submission of an

application under the aforesaid Scheme, it would be difficult for us to say

that the date of submitting an application would be the crucial date to

determine the eligibility of the applicant for allotment of a plot. In our

opinion, the crucial date on which the eligibility of the applicant is to be

examined is the date on which the allotment of a plot is made by DDA.

Since Nazul Land Rules came into force before allotment of plots under

the aforesaid Scheme came to be made to the respondents, it would be

difficult for us to say that the eligibility of the applicants for allotment of

a plot under the aforesaid Scheme was to be examined de hors the

provisions of the statutory Rules. Section 22(3) of Delhi Development

Act contains a statutory mandate to the appellant to make allotment of

Nazul Land developed by it or under its control and supervision only in

accordance with the aforesaid Rules, which could be supplemented only

by the directions, if any, given by the Central Government with respect to

disposal of such Nazul Land. In our opinion, on coming into force of the

Nazul Land Rules, the eligibility of the applicants for allotment of the

plots is to be considered in terms of Rule 17 of the aforesaid Rules and

the terms and conditions contained in the Scheme, to the extent they are

repugnant to the provisions contained in the aforesaid rules, cannot be

resorted to.

8. In Delhi Development Authority Etc. v. Ambitious Enterprises &

Anr. 67(1997) DLT 774, the argument taken by the respondent before

Supreme Court was that the Nazul Land Rules having been came into

force only on 26th September, 1981 and the public advertisements for

allotment of plots having been issued much earlier, the said Rules would

not be applicable. The argument did not find favour with the Supreme

Court. Noticing that no plots had been allotted prior to coming into force

Nazul Land Rules, the Apex Court held that once these Rules, which are

statutory, came into force, no allotment could have been made outside or

in contravention of those Rules. In view of the authoritative

pronouncement of Supreme Court in the above-referred case, there seems

to be no scope for a contention that the allotments of plots under the

Rohini Residential Scheme of DDA will not be governed by Rule 17 of

Nazul Land Rules.

9. The issue involved in these appeals came to be considered by a

learned Single Judge of this Court in M.L. Aggarwal v DDA 2004

Rajdhani Law Reporter 21. In the aforesaid case, the petitioner before

this Court applied for allotment of a plot in MIG category on 24.04.1981

and allotment was made to him on 29.11.1983. The allotment having

been cancelled by DDA, on the ground that wife was holding a plot about

30 square metres, the said writ petition was filed by him questioning the

cancellation of allotment. In reply to the writ petition, DDA relied upon

the terms and conditions of allotment and contended that Nazul Land

Rules having come into operation in September, 1981 and the Rohini

Residential Scheme having been launched in February, 1981, the

aforesaid Rules did not apply. Rejecting the contention, the learned

Single Judge, inter alia¸ held as under:-

"16. In order to appreciate the issue at hand, it has to be considered as to what would be the relevant dates - is it the date of registration under the scheme relevant or the date of allotment? The Supreme Court in DDA vs. Pushpendra Kumar Jain, JT. 1994 (6) SC 292 has held that the rights of a party come into existence only on the issuance of the allotment letter. There can be no dispute that the registration can take place by both the persons but there would not be entitlement to two allotments. The Nazul Rules came into force prior to the allotment being made.

17. In my considered view, the prospective application of the Nazul Rules cannot imply that the same would not be applicable to the present case in view of the fact that the rules did not exist when the scheme was propounded since these came into force about six months later. The Nazul Rules are statutory and the relevant date is the date of allotment. Thus, the Nazul Rules would be applicable even in the present case."

Being aggrieved from the above-referred order passed by the

learned Single Judge, DDA filed an appeal being LPA No. 191/2004

which was dismissed by a Division Bench of this Court on 02.02.2006

with the following order:-

"4. The petitioner applied for allotment of a plot in Rohini Residential Scheme and he was issued an allotment letter dated 29.11.1983 against which he deposited the amount of the said plot.

5. The question in this case is that whether the petitioner was disentitled from getting the allotment in view of the fact that his wife had already been allotted a plot.

6. In this connection Rule 17 of the DDA (Disposal of Developed Nazul Land) Rules, 1981 states:

X X X X X Admittedly, the wife of the petitioner has a plot of area 31.28 sq. metres which is less than 67 sq. metres. In our opinion, the proviso to Rule 17 means that if the wife has a plot of more than 67 sq. metres then the husband cannot be allotted a plot. However, if the wife has been allotted a plot which is less than 67 sq. metres, the prohibition contained in the main part of Rule 17 does not apply. In our opinion, this is the simple and plain meaning of Rule 17 and we cannot twist its language."

The order passed by the Division Bench was further challenged by

DDA before Supreme Court by way of Civil Appeal No. 4362/2007.

Dismissing the appeal vide order dated 26.11.2009, the Apex Court, inter

alia¸ held as under:-

"We are of the opinion that the finding of the High Court that the allotment would be covered by Rule 17 of the Delhi Development Authority (Disposal Developed Nazul Land) Rules, 1981, appears to be

correct as on the date of draw of lots the aforesaid rules had become operative."

10. It would thus be seen that in view of the above-referred decision of

this Court, the issue involved in these appeals is no more res integra. The

learned counsel for the appellant, however, contended that in none of

these cases, the existing allotment was made by DDA, whereas in the

case before this Court the existing allotments were made by DDA and if

the terms and conditions contained in Rohini Residential Scheme, 1981

are not applied, it would result in a person getting allotment of more than

one plot/flat from DDA. In our view, the contention is misconceived in

law. The issue involved in this case is as to whether the allotments made

under Rohini Residential Scheme, after coming into force of Nazul Land

Rules would be governed by the provisions of the Scheme or by the

provisions of the statutory Rules and the view taken in the above-referred

case was that it is Nazul Land Rules which would govern such

allotments. Once it is accepted that the eligibility of the registrants under

the Rohini Residential Scheme, would be governed by the provisions of

Nazul Land Rules and not the provisions of the Scheme to the extent the

provisions of the Scheme are contrary to the statutory provisions

contained in the Rules, it would be immaterial whether the existing

allotment was made to DDA or by some other agency or it was free hold

property purchased by the allottee from the open market. Rule 17 of the

Nazul Land Rules admittedly does not debar the allottee from DDA from

allotment of land by DDA, in a case where the area of the land/plot

already owned by or allotted to him does not exceed 67 square metres.

11. For the reasons stated hereinabove, we find no merits in the appeal

and the same are hereby dismissed.

We are, however, in agreement with the learned counsel for the

appellant that irrespective of whether the respondent was eligible for

allotment of a plot under the Rohini Residential Scheme or not, he ought

not to have submitted a false affidavit at the time of obtaining allotment

of plot from DDA. We, therefore, make it clear that dismissal of these

appeals will not come in the way of DDA taking such action as is open to

it in law, on account of the respondent having filed a false affidavit, at the

time of obtaining allotment from DDA, stating therein that neither he nor

his wife or any of his children owned in full or in part any residential plot

or flat in Delhi.

V.K.JAIN, J

CHIEF JUSTICE

MARCH 05, 2013 'sn'/BG