NANIK R PAHILAJANI v. DELHI DEVELOPMENT AUTHORITY — 1993 DIGILAW 480 (DEL)

V. B. Bansal ( 1 ) [ed. facts : Petitioner is a citizen of India. In 1982, DDA announced registration for Vth Self Financing Scheme (SFS) and petitioner applied for it on 11. 8. 82. One of the condition was that applicant must not own a residential house in Delhi and if he is joint owner his share should not exceed 75 sq. yds. He was not entitled to this latter limit if house/flat is built by DDA or land owning Department. On 15. 1. 84, petitioner was informed that he had been allotted a flat at Sarita Vihar and he should pay the estimated cost by 4 instalments which petitioner did. He thus paid full sum of about Rs. 2 lakh by 21. 12. 89. Possession was not being given to him in spite of numerous written requests and he was forced to make personal enquiries when officials of DDA told him that they were contemplating cancellation of allotment as he owned a quarter. Petitioner then filed the W. P. contending that the quarter owned by him was sold away on 15. 3. 831. After detailing above facts, Judgment proceeds : ( 2 ) THE W. P. has been contested by the respondent and a counter affidavit has been filed by Shri C. P. Tripathi, Director (Housing) of the respondent. The factum of the respondent being amenable to the writ jurisdiction of this court is not denied. It has also been admitted that the petitioner got himself registered for a Category-11 House under the Vth SFH Registration Scheme, 1982 and about the allotment of Flat No. C-583 as also the payment of the total amount of instalment, as claimed by the respondent. It has, however, been pleaded by the respondent, that only such persons were eligible for the registration, who did not own residential house or plot in full or in part on lease-hold or free-hold basis in New Delhi, Delhi and Delhi Cantonment, either in his/her own name or in the name of his/her wife/husband or in the name of his/her minor or dependent children. There was a stipulation that if the individual share of the applicant in the jointly owned plot under the residential house was less than 62. 7 sq. mtrs. (75 sq. There was a stipulation that if the individual share of the applicant in the jointly owned plot under the residential house was less than 62. 7 sq. mtrs. (75 sq. yds.) an application for the registration of a flat could be given and that as per the second clause, a person who had already been allotted a housel flat constructed by the DDA or any other land owning department and which is even less than 62. 7 sq. mtrs. (75 sq. yds) shall not be eligible for registration of another flat and since the petitioner had owned a free-hold house measuring 25 sq. mtrs , he was not eligible for registration/allotment under the said scheme. Reliance was placed upon Clause 16 of the aforseaid SFS which reads ( 3 ) IT has been pleaded that the petitioner got himself registered under this Scheme and made the payments at his own risk and responsibility, since it was not possible for the respondent to check the eligibility of the applicants at the time of registration, and that it is only on account of a lapse on the part of the petitioner that he has made the payments and so he can not be permitted to take advantage of his own lapse and thus, the respondent has rightly declined to hand over the possession of the flat in question to the petitioner. It is also pleaded that a show cause notice (SCN) has also been issued to the petitioner to show cause why the allotment be not cancelled. It is also claimed that no discrimination has been done against the petitioner and it has been denied that any similar situated persons as the petitioner, have been given any benefit, but the petitioner has been denied. It is also claimed that the mere acceptance of the payment by the respondent does not give any right or entitlement to the petitioner. ( 4 ) I have heard learned Counsels, and have also gone through the record. ( 5 ) IT is the admitted case of the parties that taking advantage of the Vth SFH Registration Scheme, the petitioner had applied for the registration of a Category-11 House and after the petitioner having deposited the total amount, required by the respondent to be paid, a flat bearing No. C-583 was allotted to the petitioner. ( 5 ) IT is the admitted case of the parties that taking advantage of the Vth SFH Registration Scheme, the petitioner had applied for the registration of a Category-11 House and after the petitioner having deposited the total amount, required by the respondent to be paid, a flat bearing No. C-583 was allotted to the petitioner. The possession of the same, however, has not been given to the petitioner on the ground that he was not eligible being owner of a flat at Lajpat Nagar. ( 6 ) LEARNED counsel for the petitioner has submitted that all the relevant information was supplied by him to the respondent in the form, which he had submitted along with a sum of Rs. !0,000. 00 for registration of his name. It is not disputed that the petitioner had mentioned that he was the owner of the said flat at Lajpat Nagar. The short question for consideration is as to whether the petitioner has committed a lapse in making an application, knowing fully well the eligibility clause and whether the respondent has, at any time bothered, to examine the application of the petitioner to find out if he was not eligible ? Submission of the learned counsel for the respondent has been that the respondent had made it quite clear in clause 16 of the scheme that it was not possible to check the eligibility of the applicants at the time of registration and that those who are not eligible would register at their own risk and would not be entitled to allotment of flats, even if they are registered. What is the duty cast on the respondent, is short question for consideration. A bare reading of Clause 16 of the Scheme makes it abundantly clear that the DDA had expressed its inability to check the eligibility of the applicants at the time of registration. This is understandable since there was limited time available to the public for getting their names registered for the allotment of a house under this scheme and keeping in view the number of the applications, the DDA found it perhaps impossible to do the work of checking at that stage. This is understandable since there was limited time available to the public for getting their names registered for the allotment of a house under this scheme and keeping in view the number of the applications, the DDA found it perhaps impossible to do the work of checking at that stage. Would it mean that the applications were not to be scrutinized by the DDA at any time before the applicants were considered for the allotment of a flat and even before getting the full payments towards the cost of the flat ? In the instant case, the allotment letter was issued on 15. 1. 1984 and the last payment was asked for on 2. 11. 1989 which was paid by the petitioneron21. 12. 1989. The respondent was required to examine the applications with reference to the terms and conditions of the Vth S. F. H. Scheme to decide whether an applicant was entitled to the allotment of house. The respondent, it appears, has failed to discharge this duty and asked the petitioner to deposit the total amount towards the cost of the flat till Nov. 1989. It is for another period of two years that the possession of the flat was not delivered to the petitioner, who was not required to do anything else so as to enable him to seek the possession of the flat. It is also pertinent to note that the respondent has filed a copy of the S. C. N. dated 25. 11. 1991, alleged to have been issued to the petitioner. A perusal of this notice shows that the grievance was that it was obligatory on his part to disclose the fact about his owning flat V-F/25, Old Double Storey, Lajpat Nagar in terms and conditions of the allocation, therefore, he was required to show cause within 15 days as to why the abovesaid allocation/ allotment be not cancelled for conditions of allocation/allotment and the amount of penalty recovered from him. As already mentioned, the petitioner had not concealed anything and admittedly had mentioned about he being owner of the aforesaid flat. It is, thus, clear that even the S. C. N. was not in accordance with the facts available with the respondent. As already mentioned, the petitioner had not concealed anything and admittedly had mentioned about he being owner of the aforesaid flat. It is, thus, clear that even the S. C. N. was not in accordance with the facts available with the respondent. ( 7 ) LEARNED counsel for the petitioner has submitted that the respondent has given possession of the flats to persons similarly placed, but the same relief is being denied to the petitioner without any cogent reasons. Petitioner has given the names of the persons, to whom the possession has been delivered of the flats placed in similar circumstances and even the copies of the notings along with orders have been placed on record. They relate to different persons like D. L. Johar, Rajinder Pal Singh and Ms. Roop Lata. The respondent had, in the counter, denied the averment with regard to the giving benefits to persons similarly placed, however, when confronted with documents, placed on record by petitioner, Counsel for the respondent had nothing to say againt the aforesaid facts. Learned counsel, however, submitted that it was a simple case of interpretation of the condition of eligibility and the Chief Legal Adviser of the respondent had given a clear cut opinion that the persons, who had allotment of a flat from the Rehabilitation Department, were not eligible for allotment under the Scheme and thus, the petitioner being not eligible, the respondent has all the justifications to refuse handing over the possession of the flat, wrongly allotted to the petitioner. I am afraid, I can not agree to this submission. It may also be noted that the opinion of the Chief Legal Adviser, D. D. A. was available when the case of Shri D. L. Johar was considered. Taking a sympathetic view of the facts that he had not concealed the ownership of another flat earlier, he was given the possession of flat A lenient view was taken in the case of Miss Roop Lata, registered under the S. F. S. and inspite of her having concealed the fact, she was allowed to retain one of the flats. Taking a sympathetic view of the facts that he had not concealed the ownership of another flat earlier, he was given the possession of flat A lenient view was taken in the case of Miss Roop Lata, registered under the S. F. S. and inspite of her having concealed the fact, she was allowed to retain one of the flats. One Shri R. P. Singh, who was even ineligible for allotment of a flat under the Retired/ Retiring Public Servants Scheme, the allotment of a flat to him was made, keeping in view the fact that the D. D A. failed to scrutinize his application and had kept the deposit for a long time. The respondent is an instrumentality of State and cannot discriminate between different persons. As already discussed, it was incumbent upon the respondent to examine the application of the petitioner, filed on 11. 8. 1982 to find out if he was eligible for allotment before he was actually allotted a flat on 15. 1. 84. Not only that, it was not done at that stage, the respondent gave impression to the petitioner that he was eligible for allotment of a flat and in spite of his having given all information with regard to his having a flat at Lajpat Nagar. The petitioner has deposited the total amount and awaited for over two years after making the full payment for delivery of the possession to him Can in these circumstances, the respondent be permitted to take the plea that the petitioner is not entitled to have the possession of the flat, especially when other persons placed in similar position, have already been given the possession of the flats by the respondent ? My answer is in the negative and the respondent can not be permitted to discriminate against the petitioner who is entitled to be delivered the possession of the flat in question.