Full Text
HIGH COURT OF DELHI
Date of Decision: 20.05.2013
RAJESH KHANNA..... Petitioner
Through: Mr. Dilip Singh, Adv.
Through: Mr. Kamal Nijhawan with Mr. Sumit Gaur, Advs. for DDA
JUDGMENT
Smt. Aruna Khanna, mother of the petitioner got herself registered under
Rohini Residential Scheme of DDA for allotment of an LIG plot. She expired on
28.6.1999. In a draw of lot held on 11.6.2003, an LIG plot measuring 32 square meters bearing number 608, Pocket-C-I, Sector-28, Rohini came to be allotted in her name and a demand-cum-allotment letter bearing block date
5.9.2003/12.9.2003 was issued requiring deposit of cost of the plot in three instalments as per the schedule mentioned in the demand letter. The petitioner, who is the son of Smt. Aruna Khanna, informed DDA on 28.10.2003 about the death of his mother. Pursuant to the documents submitted by him, he was recognized as the registrant/ allottee in place of Smt. Aruna Khanna vide DDA’s letter dated
5.5.2005. The petitioner, however, was asked by DDA to furnish ownership proof
2013:DHC:2589 in respect of quarter number111, Vashdev Nagar which had been given by him as his residential address. In compliance of the said requirement, the petitioner submitted a conveyance deed of the aforesaid quarter executed in favour of his father late Shri Kewal Krishan Khanna. A show cause notice dated 30.4.2007 was then issued to the petitioner, and the allotment came to be cancelled vide cancellation letter dated 1.1.2008.
2. The petitioner filed a petition being W.P(C) No.454/2009 seeking quashing of the cancellation order. The said writ petition was disposed of vide order dated 10.3.2010 with direction to DDA to consider the representation of the petitioner dated 19.1.2009, give personal hearing to him and thereafter pass a reasoned order within ten weeks of the disposal of the writ petition. The said order came to be passed after noting the contention of the petitioner that the area of the plot allotted to his father was only 15.02 square meter. Since the DDA did not comply with the order dated 10.3.2010, a contempt petition came to be filed by the petitioner against it. Another direction was issued by this Court on 10.3.2010 requiring DDA to consider the representation of the petitioner afresh after taking into account all the facts of the case. Thereafter an order dated 1.2.2013 was passed by DDA rejecting the representation of the petitioner for restoration of the plot on the ground that the terms and conditions of the plot under Rohini Residential Scheme did not permit allotment of a plot as the husband of the allottee already owned a residential plot in his name. Being aggrieved from the said order, the petitioner is again before the Court.
3. The issue which comes up for consideration is as to whether ownership of a flat having area of 15.02 square meter disentitles a person from allotment of a plot under Rohini Residential Scheme of DDA or not.
4. The issue involved in this case came to be considered by a Division Bench of this Court in Delhi Development Authority versus B.B. Jain [LPA No.670/2012 decided on 5.3.2013] and the following view was taken:
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:-
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:-
“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 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 be seen from a perusal of the counter affidavit filed by DDA that this is not the case of DDA that the area of the plot owned by the father of the petitioner was 67 sq metre or more. DDA has not disputed the contention of the petitioner that in fact the area of the aforesaid plot was only 15.[2] square meter. Therefore Rule 17 of DDA (Disposal of Nazul Land) Rules does not debar an allottee nor does it debar the petitioner from allotment of a plot by DDA under its Rohini Residential Scheme. So long as the area of the land of the plot or of the land underneath a flat/house is less than 67 square meter, he/she is entitled to allotment of a plot under Rohini Residential Scheme of DDA.
6. For the reasons stated hereinabove, the order passed by DDA cancelling the allotment made in this case cannot be sustained and the same is hereby quashed. DDA is directed to allot another plot of the same size to the petitioner by holding a mini draw in this regard within two months from today. The learned counsel for the petitioner states that the entire price of the plot was deposited within the time stipulated in the demand-cum-allotment letter. If that is so, DDA shall not be entitled to raise any further demand for the plot to be allotted in terms of this order. The writ petition stands disposed of. A copy of this order be given dasti under the signatures of Court Master to the learned counsel for the respondent-DDA. V.K. JAIN, J