V.K. Wahi vs Delhi Development Authority and Another

Kailash Gambhir, J.—The present writ petition is preferred by the petitioner seeking quashing of the cancellation letters dated 18/7/2006 and 22/1/2007 in respect of the plot no. 1369, Pkt. A-1, Sector-30, measuring 32 sq. mtrs., which was allotted to the petitioner for residential purposes on 22/08/2004 vide file no. F45 (3052) 2004/RHN, under the Rohini Residential Scheme. Sh. R.N. Jha counsel for the petitioner stated that the petitioner overlooked a plot with the respondent at Rohini Scheme LIG in the year 1981 and deposited Rs. 2,000/- which was to be deposited at the time of submission of he form for registration of the plot and to this effect the respondent issued registration receipt no. 824/81 dated 23/3/1981. The counsel further pointed out that the said plot was allotted to the petitioner after a long delay of 22 years for the reasons best known to the respondent. The counsel submitted that meanwhile, a scheme for retired persons came into operation by the respondent and therefore, the aforesaid plot was allotted under the Retirement Scheme. It was averred by the counsel that on 2/8/2004 petitioner received a demand letter from the respondent and according to the requirement the petitioner deposited the demanded amount with the respondent and to this effect the respondent issued a letter dated 21/9/2005, acknowledging the receipt of the said amount. The counsel submitted that after a long time of the deposit of the aforesaid amount, the petitioner received a letter dated 18/7/2006 issued by the respondent no. 2, whereby intimation was given for cancellation of Allotment of LIG Plot bearing no. 1369, Pkt. A-1, Sector-30, under the Rohini Residential Scheme, giving the reason that since the wife of the petitioner is already an owner of a plot in Rohini, therefore, his allotment is cancelled. The counsel urged that the petitioner also wrote a letter to the Urban Development Minister for restoration of allotment of the plot but all in vain. Thereafter, the petitioner made a representation dated 12/12/2006 to the Vice Chairman of DDA for consideration of his case but it also did not serve the purpose of the petitioner. The counsel submitted that the respondent no. 2, thereafter issued a letter dated 22/1/2007, declining the request of the petitioner for restoration of the plot.

The counsel for the petitioner while assailing the said cancellation letters dated 18/7/2006 and 22/1/2007 urged that firstly, the cancellation of the aforesaid plot is in clear violation of the fundamental rights of the petitioner and further, there is a delay of 22 years in allotment of the plot, which should have been allotted in a reasonable time, but instead, was cancelled arbitrarily later on. The counsel urged that the petitioner retired in the year 1992 and due to delay in allotment of the said plot in Rohini, his wife purchased a 32 sq mtrs plot in Rohini from the market on 29/12/2000 on Power of Attorney, not directly allotted by DDA to the wife of the petitioner. The allotment was in the name of Sh. Ram Khiladi, s/o Sh. Ram Charan. The counsel urged that the said purchase of plot by the wife of the petitioner does not violate the terms and conditions mentioned in the brochure in the column of ''eligibility''. The relevant portion of the brochure is reproduced below:

(1) (ii) The individual or his wife/her husband or any of his/her minor children do not own in full or in part on leasehold or freehold basis any residential plot of the land or a house or have not been allotted on hire purchase basis a residential flat in Delhi/New Delhi or Delhi Cantonement. If, however, individual share of the applicant in the jointly owned plot or land under the residential house is less than 65 sq. mtrs. 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. mtrs. shall not, however be eligible for allotment.

The counsel further urged that since the plot in question is allotted under the Retirement Scheme, therefore, cancellation is illegal. The counsel pleaded that 8 members, which includes petitioner, his wife, his son, son-in-law and grandsons, are residing in the premises measuring 32 sq. mtrs. The counsel also stated that the petitioner was assured by the respondent that he will be allotted a plot under the said scheme.

Per contra, Ms. Sangeeta Chandra counsel for the respondent contended that the petitioner had applied for the plot under LIG category in 1981 and was considered for allotment in various draws held from time to time upto 1989, but the petitioner remained unsuccessful. In 1989, a priority list was drawn on the basis of the computerized draw held in the presence of Panel Judge and the petitioner was assigned priority no. 24179. In the counter affidavit filed by the respondent DDA, it has been stated that there was a reservation of 12% for retired/retiring persons and therefore, priority was given to the petitioner under RPS and as a result, petitioner was allotted LIG Plot bearing no. 1369, Pkt. A-1, Sector-30, under the Rohini Residential Scheme and a demand letter was issued in favour of the petitioner vide demand letter dated 2/8/2004-6/8/2004. The petitioner was also required to submit requisite documents. It is further stated in the counter affidavit that after submission of the documents, as per the policy, the matter was further examined and it was found that Smt. Usha Wahi wife of the petitioner was already in possession of the property bearing no. 133, Pocket B-5, Sector-7, Rohini and this property is held by her on free hold basis as per conveyance deed executed on 29/ 12/2000. The allotment was in the name of Sh. Ram Khiladi, s/o Sh. Ram Charan and then it was purchased from him by Ms. Usha Wahi. On knowledge of the same, a show cause notice was issued to the petitioner on 8/5/2006. It is also stated that since the petitioner concealed the fact of ownership of property by the wife of the petitioner in Rohini itself, the allotment in favour of the petitioner was cancelled by the Competent Authority and the same was intimated to the petitioner vide office letter no. F-45 (3052) 04/LSB (Rohini) 31815 dated 18/7/2006. It is further averred that since the petitioner did not approach the respondent DDA with the clean hands, therefore, no ground is made out for issue of any writ, directions, order etc. for quashing the cancellation order. It is also stated in the counter affidavit that as per the brochure, the scheme was launched in 1981 as Rohini Residential Scheme under which, an area of 2497 hectares of land was to be developed and allotted to the registrants. Since, there were large numbers of registrants so they could not be accommodated in the area launched at the time of the original scheme and the respondent instead of backing out of the scheme, made efforts to acquire more land to adjust the left out registrants.

The counsel for the respondent also pointed out that as per clause (1) (ii) of the brochure, for the allotment of the plot under the scheme, it was essential that the individual or his wife/her husband or any of his/her minor children do not own in full or in part on leasehold or freehold basis any residential plot of the land or a house or have not been allotted on hire purchase basis a residential flat in Delhi/New Delhi or Delhi Cantonement. Also, it is mentioned in the said brochure that a person who owns a house or a plot allotted by the DDA on an area even less than 65 sq. mtrs. then the applicant/registrant shall not be eligible for the allotment and in the instant case the wife of the petitioner is owner of a DDA plot measuring 32 sq. mtrs, thus, the petitioner is not entitled for allotment. It is also stated in the affidavit that no assurance was ever given to the petitioner by the respondent to allot plot after retirement, instead allotments were made on the basis of assigned priority only. It is also stated that since the petitioner signed the declaration at the time of the registration, then it is clear that he undertook to file the affidavit and undertaking as per specimen attached with the brochure and thus he accepted the terms and conditions supplied along with the application and hence is bound by the terms and conditions of the brochure. He also pointed out that with a view to obtain the allotment of plot, the petitioner and his wife filed wrong affidavits for which the cancellation orders were rightly passed by the Competent Authority. It has also been brought to the notice by the counsel that the allotment so cancelled has already been re-allotted in the next draw held on 3/7/2007 and as per the policy, the petitioner is not eligible for any further allotment.

In his rejoinder the petitioner has refuted all the averments of the counsel for the respondent and stated that in the brochure as per column no. 5 ''draw of lot'', which is as follows:

The allotment of plots will be made in phases spread over a period of five years by draw of lots among the eligible applicants and different draws will be held for different categories. The DDA reserves the right to create categories and lay down priorities. DDA shall refund the deposits with interest in case plot applied for cannot be made available.

The counsel for the petitioner thus contended that at the time of registration he was given assurance that he will be given priority in reservation category of old age retirement scheme and also it is clearly mentioned in the abovementioned portion of the brochure that allotment of plots shall be made in phases spread over a period of five years by draw of lots among the eligible applicants. Further, it has been urged that it is mentioned in the brochure that if individual share of the applicant in the jointly owned plot or land under the residential house is less than 65 sq. mtrs. an application for allotment of plot can be entertained, thus, the petitioner prays for quashing of the cancellation letters dated 18/7/2006 and 22/1/2007 for the plot no. 1369, Pkt. A-1, Sector-30, measuring 32 sq. mtrs., which was allotted to the petitioner for residential purposes on 22/08/2004 vide file no. F45 (3052) 2004/RHN, under the Rohini Residential Scheme.

I have heard learned counsel for the parties and have perused the record.

How and to what extent one suffers at the hands of DDA only the sufferer can know. On the one hand there is a delay of 25 to 30 years in the allotment of flats/plots to the registered applicants and on the other hand the DDA did not expect any dependent family member to own a plot/flat in his/her name measuring less than 65 meters. The allotment, which came to mature in favour of the petitioner for allotment of Plot bearing No. 1369, Pkt. A-1, Sector-30, under the Rohini Residential Scheme, i.e. after a lapse of 23 years yet received another jolt when the petitioner received a cancellation order dated 18.7.2006 on the ground that wife of the petitioner is already in possession of property bearing no. 133, Pocket B-5, Sector-7, Rohini built on a plot of land measuring 32 sq. mtrs. As per the policy of the respondent, if a person owns a house or plot allotted by the DDA on an area even less than 65 sq. meters is not eligible for allotment. The contention raised by the counsel for the respondent DDA is that under the policy of the respondent, DDA duly notified through brochure of the scheme, the petitioner became ineligible due to the purchase of the said flat by the wife of the petitioner through power of attorney dated 8.2.1995. Even wrong affidavit was filed by the petitioner as well as his wife declaring that no such flat or plot has been allotted in their favour at the time of allotment of the said plot bearing No. 1369, Pocket A1, Sector 30, Rohini. Stand has also been taken that the plot in question, which was allotted in favour of the petitioner has already been reallotted in the next draw of lot held on 7.3.2007 to the next waiting registrant. The Hon''ble Division Bench while deciding LPA No. 868/2003 dated 5.12.2003 has already taken a view that if such flat or plot of less than 65 square meters is not allotted by the DDA in favour of the dependent family member then one cannot be held to be ineligible for allotment of the plot, which was duly applied.

The judgment of the Division Bench relied upon by the counsel for the respondent reported in LPA No. 89/1997 entitled Smt. Rashmi Nagrath vs. Sarva Priya Cooperative House Building Society Ltd. is not applicable to the facts of the present case. There cannot be any dispute that the object of not allotting plot/flat to a person who already owns any plot/flat in Delhi is for the benefit and larger interest of the public so that the ultimate benefit of owning a house/plot goes to a person, who does not have any, in preference to a person who already owns a plot/flat in Delhi. While keeping the said objective of the Government in view it also cannot be lost sight of the fact that nobody had visualized nor even the framers of the said policy, the DDA would miserably fail in handing over possession of the plots/flats to the registrants even after a lapse of 25 to 30 years. You cannot expect a citizen to keep waiting for allotment of a plot/flat for an indefinite period and at the same time put a Damocles sword of such a stringent term over his head not to buy a property or a flat from the open market for such a long period. It is, therefore, keeping this reality in view the said policy of the DDA is to be interpreted. For better appreciation of this controversy the said term of the DDA in the brochure is reproduced as under:-

(1) (ii) The individual or his wife/her husband or any of his/her minor children do not own in full or in part on leasehold or freehold basis any residential plot of the land or a house or have not been allotted on hire purchase basis a residential flat in Delhi/New Delhi or Delhi Cantonement. If, however, individual share of the applicant in the jointly owned plot or land under the residential house is less than 65 sq. mtrs. 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. mtrs. shall not, however be eligible for allotment.

The said term of the brochure can be divided into three parts. In the first part there is a complete restriction on the individual or his wife or any of the minor children to own any, full or in part either on lease or free hold basis any residential property, land or house or have not been allotted on hire purchase basis such residential flat in Delhi/New Delhi/Delhi Cantonment. This portion of the said term of allotment puts a complete ban on an individual, his wife or dependent minor children to own any residential plot either on lease or free hold basis or even where the allotment is on hire purchase basis. After placing the said embargo two exceptions have been made in the said clause. One is where individual share of the applicant in the jointly owned plot or land under the residential house is less than 65 sq. mtrs and second is where a person owned a house or plot allotted by Delhi Development Authority on an area of even less than 65 sq. mtrs. Any person falling in these two categories shall also not be eligible for allotment. Taking a plain meaning of the said clause it is evident that the first exception deals to a jointly owned plot or a land where the share of the individual is less than 65 sq. mtrs. This exception nowhere says that such a jointly owned plot or land under the residential house necessarily has to be allotted by the DDA. This exception is further applicable only to a plot or land, which is jointly owned, but where the share of the individual, who is seeking allotment of a plot or flat is less than 65 sq. mtrs. while the second exception is applicable to all those persons, who own a house or a plot allotted by the DDA on an area less than 65 sq. mtrs. This exception neither speaks of jointly owned plot of land nor of house or plot allotted through DDA, therefore, for applying the second exception not only the area of such plot or house has to be less than 65 sq. mtrs, but such area of plot or house necessarily has to be through allotment by DDA. In the facts of the present case the wife of the petitioner became owner of property bearing No. 133, Pocket B-5, Sector-7, Rohini measuring 32 sq. yds. by virtue of sale deed and power of attorney executed in her favour by its original allottee i.e. one Shri Ram Khiladi, and therefore, this purchase by the wife of the petitioner is not hit by the said policy of the DDA as wife of the petitioner is neither an original allottee nor the said flat exceeds the upper limit of 65 sq. mtrs.

In the backdrop of above discussion, I do not find any merit in the submissions made by the counsel for the respondent that the petitioner is not entitled for allotment of plot on account of his wife already owning a flat.

With regard to the other contention raised by the counsel for the respondent that the petitioner had filed a false affidavit at the time of seeking allotment of the plot and thus has committed a fraud on the respondent DDA, indisputably, nobody can be permitted to swear a false affidavit or to give a false declaration just for the purpose of seeking allotment of plot/flat and it would have been better had the petitioner disclosed the said ownership of a flat by his wife at the time of filing affidavit for seeking allotment of the plot. In any event of the matter once it has been found that the case of the petitioner is not hit by the said policy of the DDA, therefore, the said undesirable conduct of the petitioner can be overlooked.

In the light of the above discussion the cancellation orders dated 18.7.2006 and 22.1.2007 are hereby quashed. The respondent DDA is now directed to allot an alternative plot with the same measurements or nearing the same in the same sector or in the same zone at the cost as was prevalent on the date of the allotment of the plot in favour of the petitioner as per their policy. With these directions the writ petition is disposed of.