Delhi Development Authority v. Ombir and Ors.

1. The present LPA has been filed by the Delhi Development Authority (hereinafter referred to as „DDA/Appellant‟) assailing the Judgment dated 10.10.2019 passed by the Ld. Single Judge in WP(C) No. 8135/2013 (hereinafter referred to as the „Impugned Judgment‟). The Ld. Single Judge vide the Impugned Judgment has inter alia set aside the Circular dated 13.10.2015 and Resolution No. 52/2004 issued by the DDA.

2. The instant facts delineating the previous rounds of litigation, leading to the instant appeal are as follows:a. In 1961, the DDA notified the Large-Scale Acquisition, Development and Disposal of Land in Delhi Scheme (hereinafter referred to as the “1961 Scheme”). This Scheme paid down certain criteria for compensatory land to be provided to individuals whose land had been acquired by the State. Pertinently, the Scheme stated that each person would be offered three chances for allotment of an alternative plot, if the acquisition had taken place prior to 3rd April 1986. b. A plot of land admeasuring 32 Bighas 17 biswas was owned by one, Surjan i.e the father of the Respondents herein. This land was acquired by the State under the said Scheme in 1981. As the land was acquired prior to 1986, the 1961 was applicable thereby entitling Surjan to three chances for allotment of an alternate plot. c. In 1991, the Land and Building Department, Delhi issued a letter recommending the allotment of a plot to Surjan, in accordance with the 1961 Scheme. d. Thereafter, a draw of lots was held on 27.03.2002 to consider the case of Surjan. Upon such consideration, Surjan was offered a plot at Rohini, Delhi. However, as Rohini was distant from Kondli, where Surjan‟s family resided, at the request of Surjan, theaforesaid offer of allotment at Rohini was cancelled. e. On 24.08.2004, the DDA issued a Resolution No. 52/2004, which reads as under:- "Resolution The proposals were discussed in detail. It was felt that the existing procedure of offering three chances to the allottees of alternate plots was leading to holding up the disposal of plots for several years, in addition to resulting in long wait for the applicants. Shri Kasana suggested that the formalities and procedures required to be completed for making the payment and taking possession etc. needed further simplification. After detailed discussions, it was decided that rather than three chances only two chances should be given to the allottees of alternate plots and the DDA officials should personally get in touch with the allottees to explain them various documentation, procedures etc., before effecting cancellation of their plots; the allottees being persons with rural background, unaware of documentation details and the formalities. Subject to these amendments, the proposal contained in the agenda item were approved by the Authority. The Authority also approved the amendments proposed in Rohini Residential Scheme as contained in para II of the agenda item." (emphasis supplied) f. On the very next day, another draw of lots was held on 25.08.2004. At this instance as well, Surjan was provided a plot at Rohini. Citing the same reason as above, Surjan declined to take this plot as well. g. Surjan‟s decision to decline the above-mentioned plot was recorded in letter dated 27.09.2004 issued by the Appellant. Pertinently, this letter categorically stated that Surjan had another chance to avail of an alternate plot, from one year of the date of the previous cancellation. h. A month later, the said Resolution was revised and clarified by the DDA, vide Circular dated 13.10.2005, which reads thus: "DELHI DEVELOPMENT AUTHORITY LEASE ADMN.

BRANCH (RESDL.) No.F.DD(LA)2/2004/July-9/10310 Dated: 13/10/05 CIRCULAR Consequent upon decision of restricting the number of chances to two for allotment of alternative plot to the recommendees of L&B Deptt., the matter has been reviewed and the following clarifications to the Resolution NO. 52/2004 has been given. "Those who have already availed two chances upto 24.8.2004 will get one more chance.However, those who have availed one chance will get only one additional chance. Those recommendees who have not availed any chance, will get two chances for allotment of an alternative plot." i. Hence, a perusal of the Clarificatory Circular indicates that if an individual had only availed one chance before the DDA had issued the Resolution, such individual would only get one additional chance. Surjan availed of his first chance on 27.03.2002. He had availed his second chance on 25.08.2006 which is only one day after 24.08.2006. Hence, as he had availed of the chance before 24.08.2006 he was not entitled for any further chances. Surjan was unaware of it when he took this second and then final chance just one day after the Resolution was passed. j. In November 2006, Surjan received a letter from the Appellant herein stating that in light of Impugned Resolution and Circular, he had extinguished his chances. Even at this point, Surjan and his family was not provided a copy of the Resolution NO. 52/2004. It appears that he was completely in the dark about the Resolution and its implications at this point as well. k. Surjan addressed various letters to the Appellant herein from 01.11.2006 to 01.01.2009. Surjan also addressed a legal notice to the Appellant on 05.02.2009, however to no avail. l. In 2011, Surjan expired, and was survived by his wife, and two sons i.e the Respondnets herein. Surjan‟s wife continued to communicate with the Appellant, however, she too expired in

2013. m. Thereafter, the Respondents herein filed WP(C) No. 8135/2013 praying that the DDA be directed to consider the case of the petitioners, for allotment of an alternative plot, in a third draw of lots. n. Considering the facts and circumstances, the Ld. Single Judge vide the Impugned Judgment allowed the Petition in the following terms:- “38.In view of the above discussion, this writ petition is allowed inthe following terms:

(i) The impugned Circular, dated 13th October,

2015, and Resolution No. 52/2004, which was "clarified" thereby, are quashed and set aside, to the extent they limit the number of chances for being considered for allotment of an alternative plot, consequent to the acquisition of their land under the 1961 Scheme, to two, instead of three.

(ii) The DDA is directed to allot, forthwith, to the petitioners,an alternative plot, admeasuring not less than 200 sq. mts, as itstands acknowledged, in para 5 of the counter-affidavit of theDDA that, under the 1961 Scheme, Smjan was entitled to analternative plot admeasuring 250 sq. yards in area which would,in fact, work out to more than 200 sq. mts. (iii)The DDA shall not plead non-availability of analternative plot, or expiry of the 1961 scheme, as a ground for non-compliance with the above direction.

(iv) The allotment would be made at the predetermined rates as approved for plots allotted in the next draw of lots which took place after 25th August, 2004, as the right of Surjan was for consideration, of his case the third time, in the said draw of lots.” o. Aggrieved by the Impugned Judgment, the instant Appeal has been preferred.

3. Mr. Ramesh Singh, learned Senior Counsel appearing for theAppellant/DDA, has argued that the Ld. Single Judge ought not to have interfered with the Impugned Resolution, as the Appellant does not have any vested right for allotment of an alternate land and the policy of the DDA to restrict the options under the scheme ought not to have been interfered with by the learned Single Judge. Further, it has been contended that the Impugned Judgment will open a pandoras box and will lead to re-agitation of claims of other individuals as well. The Ld. Senior Counsel for the Appellant was at great pains to emphasize that the Impugned Resolution was passed after careful consideration and only to ensure that the process of allocation of plots is not cumbersome. He submits that the right under the Land Acquisition Act is only to receive compensation which has been paid and the rehabilitation by providing some land to the person whose land has been annexed was only in light of the Beneficial Scheme which does not create any right.

4. Per contra, the Counsel for the Respondents has sought to back the propriety of the Impugned Judgment by reiterating that the Impugned Resolution takes away their vested right retrospectively and is hence, bad in law.

5. Heard the Counsels for the Appellant and Respondents and perused the material on record.

6. This Court is to adjudge the propriety of the Impugned Judgment. The questions that arise before us are as follows, a) whether the Ld. Single Judge has rightly set aside the Impugned Resolution on the ground that it could not retrospectively take away the vested right accrued in favor individuals such as Surjan, b) whether the Ld. Single judge has rightly directed the Appellant to allot a plot admeasuring 200 sq. mts. to the Respondents expeditiously.

7. The 1961 Scheme had acquired a statutory character under the provisions of the Delhi Development Act, 1957, which also must be read with the Delhi Development Authority (Disposal of Nazul Land) Rules, 1981 (hereinafter “Nazul Rules”). The Nazul Rules substantially expanded upon the text of the 1961 Scheme, and hence, had impliedly repealed the 1961 Scheme. Dealing with a case under the Nazul Rules, and also discussing the 1961 Scheme, a Full Bench of this Court in Ramanand v. Union of India & Ors., (1993) 26 DRJ 594 has observed as under:

different context. In that case, reference to the Full Bench was made on the question as to who is entitled to the benefit of allotment of a plot on the acquisition of land. This question had arisen in the light of three phases of acquisition proceedings envisaged under the Land Acquisition Act, namely, when the notification under Section 4 is issued, when the declaration under Section 6 is made, and when the land is actually acquired by making an award. Earlier, the view taken by various Benches was that individuals whose land has been acquired would be considered for allotment of an alternative plot for residential purpose in certain circumstances. Then, in Krishan Kumar Manik v. Union of India, it was held that the person who owned the land at the time when the notification under Section 4 was issued, and not the subsequent transferees, would be entitled to apply for an alternative plot. The Full Bench disagreed with the view taken in Krishan Kumar Manik's case and confirmed the view taken earlier that individuals whose land had been acquired would be “entitled to be considered” for allotment of a plot “in certain circumstances”. It was further held that any one whose land has been acquired “is entitled to apply” for allotment of an alternative plot. The observations made in this judgment really go against the proposition sought to be advanced on behalf of the petitioner