Full Text
HIGH COURT OF DELHI
Date of Decision: 29.05.2013
KAMLESH SHARMA ..... Petitioner
Through: Mr Dillip Singh, Mr Govind Lal Sharma and
Ms Taranum, Advs
Through: Mr Rajiv Bansal, Mr Devvrat Singh Raghav and Mr Parambir Singh, Advs.
JUDGMENT
1. The petitioner before this Court got herself registered with allotment of an LIG plot under Rohini Residential Scheme of DDA. In a draw held on 21.09.2005, a plot bearing No. 772, Pocket-II, Block-A, Sector 30 of Rohini was allotted to her and a demand-cum-allotment letter dated 3/7.10.2005 was issued to her, requiring her to deposit the amount mentioned therein. The petitioner deposited the amount demanded by DDA in respect of the aforesaid allotment. However, possession of the said plot was not handed over to her. Vide letter dated 02.02.2012, the respondent-DDA informed the petitioner that since she owned another property 2013:DHC:2869 bearing No. 273 in Pocket-26, Block-G, Sector 3 of Rohini, measuring 25.90 square metre, she was not eligible for allotment of another plot under the said scheme. She was further informed that the allotment made to her had been cancelled.
2. The grievance of the petitioner is that in view of Rule 17 of DDA (Disposal of Development Nazul Land) Rules, 1981, since the area of plot No. G-26/273, Sector 3 of Rohini, which she admittedly purchased from open market on 10.09.1982, is only 25.09 square metre, she was eligible for allotment of a plot under the Rohini Residential Scheme of DDA.
3. The only issue, which is involved in this writ petition, is as to whether acquisition of a plot measuring 25.09 square metre from the market, rendered the petitioner ineligible for allotment of a plot under Rohini Residential Scheme of DDA. This issue recently came up for consideration before a Division Bench of this Court in DDA vs. B.B. Jain, LPA No. 670/2012, decided on 05.03.2013 and the following view was taken: “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:-
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:-
10. It would thus be seen that in view of the abovereferred 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.”
5. It would thus be seen that a consistent view has been taken by this Court that DDA (Disposal of Development Nazul Land) Rules, 1981 do apply to the registrants of Rohini Residential Scheme whose turn for allotment of a plot under the said scheme matured on or after and coming into force of the above-referred Rules of DDA.
6. It would be seen from the communication sent by DDA to the petitioner that the area of plot in question was much less than 67 square metre, the same being only 25.09 square metres. Therefore, Rule 17 of DDA (Disposal of Development Nazul Land) Rules, 1981 does permit her to obtain allotment of a plot under Rohini Residential Scheme of DDA. The writ petition, therefore, needs to be allowed. Accordingly, the communication sent by DDA cancelling allotment made to the petitioner under Rohini Residential Scheme is hereby quashed. DDA is directed to hand over possession of plot No. 772, Pocket-II, Block-A, Sector 30 of Rohini to the petitioner within eight weeks from today, subject to the completion of all the formalities found necessary in this regard in case the aforesaid plot is still available with DDA. In case the aforesaid plot already stands allotted to some other person, DDA shall allot another plot of the same size in any sector, to the petitioner by holding a mini draw in this regard within two months from today. Since the entire price of the plot is stated to have already been deposited with DDA, within the time stipulated in the demand-cum-allotment letter, DDA shall not be entitled to raise any further demand for the plot to be handed over to the petitioner in terms of this order.
7. It is unfortunate that despite consistent view taken by this Court with respect to eligibility for allotment of a plot under Rohini Residential Scheme to those whose turn for allotment matured after coming into force of Nazul Land Rules, wherever the area of plot of the flat owned by them, whether individually or jointly with others, does not exceed 67 square metre, DDA continues to cancel allotments on the ground that the registrant under the Rohini Residential Scheme owned another plot/flat in DDA even if the area of such plot/flat is less than 67 square metres. As a result, the registrants have no option, but to approach this Court by way of writ petitions, which results in the registrant/allottee saddled with cost of litigation without any benefit to DDA. In fact, whenever such petitions are filed, DDA also suffers in monetary terms since it has to incur cost in defending such writ petitions. It is high time DDA takes an administrative decision, based upon various judicial pronouncements of this Court, not to cancel allotment in such cases, so that the people are not driven to litigation which brings no benefit to DDA, but at the same time causes financial loss to the registrants/allottees, besides harassment and mental agony which they have to suffer on account of cancellation of such allotments. It is, therefore, directed that one copy of this order be sent to the Chief Legal Advisor for being placed before the Vice-Chairman of DDA, within two weeks from today. The writ petition stands disposed of accordingly. No order as to costs. V.K. JAIN, J MAY 29, 2013 BG