Surender Singh Deswal vs Dda
2019 Latest Caselaw 402 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Judgment delivered on: January 22, 2019

+    W.P.(C) 2117/2011

     SURENDER SINGH DESWAL
                                                                 ..... Petitioner

                            Through:     Mr. R.K. Saini and Ms.Vivya Nagpal,
                                         Advs.
                   versus

     DDA
                                                              ..... Respondent

                            Through:     Ms. Shobhna Takiar, Adv.
AND
+   W.P.(C) 2396/2011
    CHHAVI AGGRAWAL AND ANR.
                                                                ..... Petitioners
                            Through:     Mr. R.K. Saini and Ms.Vivya Nagpal,
                                         Advs.
                   versus

     DDA
                                                              ..... Respondent
                            Through:     Ms. Shobhna Takiar, Adv.


    CORAM:
    HON'BLE MR JUSTICE V. KAMESWAR RAO

                              JUDGMENT

V. KAMESWAR RAO, J

1. The writ petitions are filed by the petitioners with the

following prayers:-

"PRAYERS IN W.P.(C) 2117/2011 In the premises aforesaid, it is most humbly and respectfully prayed that this Hon'ble Court may be pleased to issue:-

a) A Writ of Certiorari calling for the records of the case for perusal;

b) A Writ of Certiorari quashing the action of the respondent / DDA in allotting garages to the petitioners in not holding the draw for wait list candidates (after some flats had become available on account of surrender / cancellation), as promised in the brochure / scheme and rather offering them to the registrants of a new scheme introduced later, being illegal, arbitrary, malafide, discriminatory and unjust and in violation of the rules, regulations and the scheme and the Principles of Equity, Justice, Good Conscience, promissory estoppels and Fair Play;

c) A Writ of Mandamus directing the DDA to hold a draw for the willing wait list candidates of DDA Housing Scheme, 2008, like the petitioner, and allot them flats out of 172 flats which became available after surrender / cancellation of the allottees of the said scheme, before offering them for allotment to new registrants in a subsequent new scheme.

d) A writ of mandamus commanding the Respondents to pay the cost of this petition to the Petitioners.

e) Any other writ, order or direction, which may be deemed fit and proper in the facts and circumstances of the case and in the interest of justice."

"PRAYERS IN W.P.(C) 2396/2011 In the premises aforesaid, it is most humbly and respectfully prayed that this Hon'ble Court may be pleased to issue:-

a) A Writ of Certiorari calling for the records of the case

for perusal;

b) A Writ of Certiorari quashing the action of the respondent / DDA in not holding the draw for wait list candidates (after 172 flats had become available on account of surrender / cancellation), as promised in the brochure / scheme and rather offering them to the registrants of a new scheme introduced later (after the 9 months period of wait list was over), in violation of the rules, regulations and the scheme and the Principles of Equity, Justice, Good Conscience, promissory estoppels and Fair Play, being illegal, arbitrary, malafide, discriminatory and unjust and in violation of the rules, regulations and the scheme and the Principles of Equity, Justice, Good Conscience, promissory estoppels and Fair Play;

c) A Writ of Mandamus directing the DDA to hold a draw for the willing wait list candidates of DDA Housing Scheme, 2008, like the petitioner, and allot them flats out of 172 flats which became available after surrender / cancellation of the allottees of the said scheme, before offering them for allotment to new registrants in a subsequent new scheme.

d) A writ of mandamus commanding the Respondents to pay the cost of this petition to the Petitioners.

e) Any other writ, order or direction, which may be deemed fit and proper in the facts and circumstances of the case and in the interest of justice."

2. As the issue in these petitions is identical with similar

facts, the same are being disposed of by this common order.

3. It is necessary to state here that W.P.(C) No. 2117/2011

was initially dismissed on April 04, 2011. Pursuant to an LPA

No. 360/2011 filed by the DDA, a Review Petition No. 497/2011

was filed, which was allowed and the writ petition was revived

and restored to its original number.

4. Some of the relevant facts are, the DDA introduced a

Scheme for allotment of residential flats in Delhi titled as DDA

Housing Scheme, 2008. The Scheme was in operation between

August 06, 2008 to September 16, 2008. Some of the relevant

features of the Scheme were; (i) a separate waiting list of 200

applicants will also be declared in order of priority; (ii) successful

applicants shall have the option to surrender the flats before the

issuance of the possession letter. There is no dispute that the

petitioners had applied for allotment of flat under the Scheme.

The application was accepted by the DDA but the petitioners

were unsuccessful for allotment of a flat. However, they were

included in the wait list of 200 candidates. It is a matter of record

that 172 flats became available on account of surrender and

cancellation by the applicants who had been issued the demand

letters. The DDA did not hold a draw for allotment of the flats to

the wait listed candidates. On the contrary, DDA included the

said flats in the new Housing Scheme introduced in December,

2010. It appears, a representation was made by the petitioner in

W.P.(C) No. 2117/2011 on December 30, 2010, which was

rejected by the DDA on March 01, 2011 stating that the list was

valid only for nine months and issue of demand letters was

delayed due to investigation of the DDA Housing Scheme, 2008

by Economic Offence Wing. The DDA Housing Scheme, 2010

was announced in November, 2010 and surrendered flats under

the Scheme of 2008 have already been included in Scheme of

2010. Therefore, it does not create any right for allotment of flat

to the wait listed applicants. The husband of the petitioner No.1

also made an RTI application regarding the allotment, procedure

and steps with respect to waiting list of the DDA Housing

Scheme, 2008 to which the DDA has informed him on October

18, 2010 that the draw in respect of waitlisted allottees under the

Housing Scheme, 2008 is under process.

5. It was contended by Mr. R.K. Saini, learned counsel for

the petitioners that the DDA had introduced a similar Scheme in

the year 2003 titled as "Rohini HIG Housing Scheme, 2003".

Despite there being no such provision, the DDA prepared a

waiting list along with main draw of the Scheme, which was held

in September, 2003 and thereafter held a draw for the wait list

applicants on October 22, 2003 of the flats which had become

available after surrender / cancellation of the successful

applicants and allowed the same. In other words, it is his

submission that the impugned action of the DDA is arbitrary,

mala fide and discriminatory. He had submitted that a bare

perusal of the relevant clause of the Scheme clearly establishes

the material fact that the condition with regard to the right of the

wait listed candidates will only operate in case the wait listed

registrants fail to get a flat from the surrendered ones that is only

after the draw is held and not in a case where no draw has been

held and as in the present case no draw with respect to the

allotment of the cancelled 172 flats was held and no question of

denying any right to the waitlisted registrants arose as alleged by

the DDA.

6. He had also drawn the attention of the Court to the

judgment in Writ Petition (Civil) No. 4895/2011 titled as Pinky

Punia v. DDA, which has already been decided in favour of the

petitioner in that case. It was his submission that the said

judgment squarely applies to the petitioners. He has also drawn

the attention of the Court to an interim order passed by this Court

on April 08, 2011, which directed that one flat should be kept

vacant as per the preferences given in the applications by the

petitioners in W.P.(C) 2396/2011. Even the Division Bench in

LPA 360/2011 has granted interim order in favour of Surinder

Singh Deswal.

7. On the other hand, Ms. Shobhna Takiar, learned counsel

appearing for the DDA, apart from reiterating the facts would

submit that no draw was held as per brochure due to changed

circumstances pursuant to the demand cum allotment letters were

issued to successful allottees, late in December 2009. List of

waitlisted candidates was required to be valid till September 2010

(i.e. 9 months). But all the vacant 172 flats were added in the

Housing Scheme of 2010. As such due to changed circumstance

and late issuance of demand cum allotment letters to successful

allottees, no draw was held for waitlisted persons. Even after six

months the waitlisted persons also did not deposit registration

money for holding draw so have no vested right for even asking

for holding a draw. She would state that the waitlisted persons

had a right only to participate in draw and same relief has been

sought in the petition as such the petitioners have no vested right

for allotment of flat without holding a draw. After ten years

when no vacant flat of the said Housing Scheme is available with

the respondent DDA, the petitioners are not entitled for any draw

without availability of flat of such Housing Scheme. Because this

criteria of waitlisted was incorporated in brochure so that flats of

the said Scheme may not be kept vacant. But due to changed

circumstances as mentioned above that demand cum allotment

letters were issued to successful allottees after a year due to

investigation by EOW and subsequent to that within two months

on expiry of 9 months from December 2009 all vacant flats were

added in the Housing Scheme of 2010. She would submit that

the question which has been decided in the case of Pinky Punia

(supra), the Court in para 5 of the said judgment dated April 29,

2013 is as to 'whether the waitlisted applicants had a legal right to

be considered for allotment of the surrendered flats by way of

holding of draw of lots after six months from the date of issue of

demand letters. She has drawn the attention of the Court to para

7 of the judgment to contend that if draw in terms of the aforesaid

Scheme was held by DDA and a waitlisted registrant was not

successful in obtaining allotment in such a draw, that would not

create any legal right in his favour to seek allotment of another

flat from DDA merely on the strength of waiting list in which his

name was included. In para 11 the ld. Single Judge has

distinguished the case of Vaibhav Gupta by noticing that no

written assurance was given to the petitioner Vaibhav Gupta but

in Pinky Punia under RTI she was given written assurance that

waitlisted registrants of 2008 scheme was under consideration

and would be intimated shortly.

8. On legal aspect, learned counsel for the DDA would state

that on return of registration money there was no vested right to

claim for holding draw of lots. Even draw of lots also does not

create any vested right for allotment of flat unless successful.

According to her, justification for not holding draw is that flats

were already added in the next Housing Scheme of 2010. She

would state, the present case is distinguished from the case of

Pinky Punia (supra) because in the present case the petitioners

were duly informed vide letter dated January 31, 2011 that the

surrendered flats included in the flats offered under the Scheme

of 2010 and no vacant flat is available for holding draw. It was

also clear to the petitioner in November 2010 when the Housing

Scheme 2010 was launched. Since demand letter was issued in

December 2009 and waiting list was valid till June 2010 or

September 2010 but the petitioners approached this Court in

April 2011 much after announcement of Housing Scheme of

2010 and merger of flats of 2008 Scheme in the Housing Scheme

of 2010. But in the connected case of W.P. (C) 2117/2011, the

petitioner did not submit any representation of seeking

information from DDA and DDA also never gave any assurance

to petitioner to consider waiting list on declaration of Housing

Scheme of 2010. According to her, these cases are

distinguishable from the case of Pinky Punia (supra). In the said

case she was informed by DDA by a letter dated November 15,

2010 that the matter of allotment of flat to the wait listed

registrants was under consideration. In the said case information

under RTI given to petitioner was considered as an assurance by

DDA by the Court. In the case of Pinky Punia (supra), the ld.

Judge has also drawn a distinction between the case of Vaibhav

Gupta vs. DDA and the case of Pinky Punia (supra) in para 11

and held that no written assurance was given to Vaibhav Gupta as

is given to Pinky Punia. She would state that in the present case

also no written assurance was ever given to the petitioners for

consideration of waiting list registrants as such the judgment of

Pinky Punia (supra)is not applicable in the facts and

circumstances of the present case.

9. It was further her submission that it is well settled that

mere draw of lots/allocation letter does confer any right to

allotment. Even draw of lots is mere identification or selection of

the allottee which does not clothe an allottee with a legal right to

seek allotment and above that allotment of a particular flat of

his/her choice in transgression to the rights of others. Even

otherwise mere direction of the court without considering the

legal position does not amount to precedent to be applicable in

each and every case. She submitted Courts should not place

reliance on decisions without discussing how the factual situation

fits in with the fact situation of the decision relied upon.

Observations of courts not to be read as thereon. She would rely

upon the judgment reported as (2002) 3 SCC 496 Haryana

Financial Corporation and Another v. Jagdamba Oil Mills and

Another.

10. Having heard the learned counsel for the parties, it is

noted, there is no dispute that the Coordinate Bench of this Court

in the case of Pinky Punia (supra), which also relates to the same

Scheme, an identical issue was decided in favour of the petitioner

in that case, inasmuch as in para 12 of the judgment in the case of

Pinky Punia (supra), the Court has held as under:-

"12. In view of the aforesaid discussion, I am of the view that, if a flat of the category in which the petitioner had applied in the scheme of 2008 is available with DDA or becomes available at a later date, such a flat would be offered to the petitioner, on the price prevailing on the

date on which the allotment is offered to him. If a flat of the appropriate category is currently available to DDA it shall be offered to her by DDA within a period of four months from today and if no such flat is available with DDA, it would offer a flat of an appropriate category to the petitioner within four weeks of such a flat becoming available with it."

11. In fact, I note that this Court on April 04, 2016 passed a

very detailed order. The same is reproduced as under:-

"1. The petitioner's applied for allotment of a flat under DDA Housing Scheme, 2008. The main draw was held on 16th December, 2008 in which the petitioners were unsuccessful. However, their names were kept in the waiting list of 200 candidates at serial Nos.4, 5 and 14. The allotment-cum demand letters were issued to the successful applicants in December, 2009 and they were directed to make the payment upto June 2010. 172 flats became available on account of surrender/cancellation in respect of which DDA was required to hold a draw of lots for allotment of 172 flats to the wait listed candidates. Instead DDA included the flats in the new Housing Scheme introduced in December, 2010. Aggrieved by the same, the petitioners have filed the present writ petition.

2. This case is squarely covered by the judgment dated 29th April, 2013 passed by this Court in W.P.(C) 4895/2011 in which this Court directed Delhi Development Authority to offer the flat on the price prevailing on the date on which the allotment would have been issued to him. Para 12 of the judgment dated 29th April, 2013 is reproduced hereunder:

"12. ...If a flat of the category in which the petitioner had applied in the Scheme of 2008 is available with DDA or becomes available at a later date, such a flat would be offered to the petitioner, on the price prevailing on the date on which the allotment is offered to him. If a flat of

the appropriate category is current available to DDA it shall be offered to her by DDA within a period of four months from today and if no such flat is available with DDA, it would offer a flat of an appropriate category to the petitioner within four weeks of such a flat becoming available with it."

3. Learned counsel for the petitioner submits that three flats have been kept available by DDA in terms of orders of this Court.

4. Learned counsel for the petitioner submits that he is entitled to the allotment on the price in terms of Clause 7.3 of the Housing Scheme 2008 whereas learned counsel for the respondent submits that DDA would charge the price on the date of issue of the allotment letter.

5. Delhi Development Authority is directed to examine this issue and bring the allotment letter in Court on the next date of hearing. If the DDA does not agree with the contentions raised by the petitioner, the reasons thereof shall be recorded in the allotment letter.

6. The contentions raised by the petitioner shall be considered on the next date of hearing.

7. List on 16th May, 2016."

12. Pursuant to the aforesaid order, a statement was made by

the learned counsel for the DDA, which is noted in the order

dated July 11, 2016 that the petitioners including the petitioners

in other writ petition being W.P.(C) No. 2396/2011 shall be

issued allotment letters within a period of two weeks. Thereafter,

when the matter was listed on November 04, 2016, a submission

was made by the learned counsel for the DDA that she has

instructions to file an application for recall / review of the order

dated April 04, 2016. Accordingly, the Review Petition was filed

in these writ petitions being Review Petition Nos. 524/2016 and

525/2016. The said Review Petitions came to be dismissed by

this Court on May 08, 2018. So, the fact remains, the order dated

April 04, 2016 has not been reviewed and the same has attained

finality. A perusal of the said order would reveal that the Court

had referred to the judgment in the case of Pinky Punia (supra)

being W.P.(C) No. 4895/2011 and has also concluded that these

cases are squarely covered by the judgment in that case. The

only aspect on which the matter was referred to the DDA was,

whether the petitioners are entitled to the allotment of the flat on

the price in terms of Clause 7.3 of the Housing Scheme, 2008

whereas according to the learned counsel for the respondent,

DDA would charge the price on the date of issue of the allotment

letter. Be that as it may, it is a conceded fact that the judgment of

the Coordinate Bench of this Court has attained finality till the

Supreme Court, as the SLP filed by the DDA has been dismissed.

13. Insofar as the judgment of the Supreme Court relied upon

by Ms. Takiar, learned counsel for the DDA is concerned, the

said judgment is on the proposition that the Court should not rely

on earlier judgments on which reliance has been placed as a

precedent without discussing how the factual situation fits in with

the fact situation of the decision relied upon. With utmost

respect, the judgment has no application in the facts of this case,

more so when the judgment in the case of Pinky Punia (supra)

relates to the same Scheme, which is subject matter of the present

petitions. Hence, the said judgment relied upon has no

applicability.

14. So, in view of the aforesaid position, since the case of

Pinky Punia (supra) also relates to the same Scheme, for parity

of reasons, the conclusion arrived at by the Coordinate Bench of

this Court in the case of Pinky Punia (supra) shall also govern

the present writ petitions as well. Accordingly, the writ petitions

are allowed. It is directed that, in terms of the interim order, the

flats of the category in which the petitioners had applied in the

Scheme of 2008 and has been kept vacant by the DDA, such flats

would be offered to the petitioners on the price prevailing on the

date on which the allotment is offered to them within a period of

four months from today. It is made clear, if the registration

amount has been refunded back to any of the petitioners, the

same shall be repaid by the petitioners to the DDA with interest

@ 6% p.a. within four weeks from today. The further follow-up

action shall be taken by the petitioners accordingly. The writ

petitions stand disposed of. No costs.

V. KAMESWAR RAO, J JANUARY 22, 2019/ak