ANIL DEL SINGH ( 1 ) THIS is a suit praying for a decree for specific performance against the defendant. The facts giving rise to this suit are as follows :- ( 2 ) THE plaintiff at the relevant time was a member of the Municipal Corporation of Delhi. He applied for allotment of a plot of land on August 2, 1978. The defendant, Delhi Development Authority (for short DDA) decided to allot a plot measuring 200 sq. yds. In favour of plaintiff in Safdarjung Residential Scheme. This information was given to the plaintiff through a letter of the Deputy Director, DDA dated February, 1979 The letter also intimated that the exact number of the plot will be decided by draw of lots. On April 4. 1979 by a written communication the Deputy Director. DDA required the plaintiff to submit an affidavit to the effect that neither the plaintiff nor his spouse nor any of the dependent children own any house or plot in the Union Territory of Delhi and that they have not already been allotted a flat by the DDA nor any application for allotment of flat is pending with the DDA The plaintiff was also required to send details of the annual income for the assessment years 1975-76. 1976-77, and 1977-78. The plaintiff was also asked to sent a bank draft in the sum of Rs. 5000. 00 in favour ofthe defendant as earnest money on or before April 20; 1979. Pursuant to the abovesaid communication, the plaintiff on April 18, 1979 sent the requisit affidavit alongwith a draft for a sum of Rs. 5000. 00 to the defendant. On August 29, 1979 the plaintiff also submitted his income tax returns for the assessment years mentioned in the communication ofthe defendant dated April 4, 1979. By letter dated September 5, 1979 the defendant informed the plaintiff that it had been decided in held a draw of lots of residential plots on Safdarjung Scheme on September 10, 1979 The plaintiff was asked to attend the draw of lots on the said date. The draw of lots as scheduled was held on September 10, 1979 in which the plaintiff was alloted plot No. 216 in Block B-4, Safdarjung Development Area measuring 200 sq. yds. The draw of lots as scheduled was held on September 10, 1979 in which the plaintiff was alloted plot No. 216 in Block B-4, Safdarjung Development Area measuring 200 sq. yds. There after by letter dated April 27, 1982 of the Deputy Director, DDA the plaintiff was informed that it had been decided that he would be retaining plot no. B-4/216 in Safdarjung Development Area which was allotted to him through a draw of lots held on September 10, 1979. By this letter the plaintiff was also required to complete the other formalities including the payment of premium etc. for which an intimation was to be given to him. Inspite of the aforesaid communication, the defendant did not execute the necessary lease deed in favour ofthe plaintiff in respect of the said plot. The plaintiff in reply to a query ofthe defendant transmitted to it a certificate from the house tax department of Municipal Corporation of Delhi confirming that one ofthe properties of the petitioner, namely. No 6479, Katra Baryan, Fatehpuri, Delhi was a property which had been put in commercial from form the very beginning. On November 8, 1982 the defendant addressed a communication to the Executive Engineer (Building) of the Municipal Corporation of Delhi for confirmation that Katra Haryana was local commercial area and the building of the plaintiff was approved and recorded by the Corporation as one for commercial purposes The plaintiff not having revised any favourable response showing inclination ofthe defendant to execute the necessary lease dead in regard to the plant on question, instituted the present suit on September 30, 1985. ( 3 ) IN the written statement the defendant has taken the stand that the plaintiff in his affidavit dated April 12. 1970 had confirmed that he owned a residential ancestral house located at 2191, Gali Hanuman Prasad, Delhi and as such he is not entitled to allotment of any plot in Delhi. It has also been brought out in the written statement that as per the policy no person is entitled to allotment of plot from the defendant if he. his wife/husband or any of their dependent relations own any residential house or plot in Delhi or Delhi Cantonment, and since the plaintiff failed to fulfil this precondition, the lease deed had not been executed in favour of the plaintiff. his wife/husband or any of their dependent relations own any residential house or plot in Delhi or Delhi Cantonment, and since the plaintiff failed to fulfil this precondition, the lease deed had not been executed in favour of the plaintiff. A further stand of the defendant is that the alleged allotment in favour of the plaintiff does not confer any right on him and no suit for specific performance is therefore, maintainable. Having regard to the pleading of the parties the following issues were framed : "1. Whether the suit for specific performance is not maintainable as alleged in para 1 of the preliminary objections. 2. Whether the allotment of plot in favour of the plaintiff was against Rules, regulations and instructions in this behalf? 3. Whether the plaintiff has properly valued the suit for purpose of court- fee and jurisdiction? If not what is the correct valuation thereof? 4. Whether the plaintiff is not owner and in possession of a residential house in Delhi/new Delhi? 5. Whether the plaintiff has been ready and willing to perform his part of the contract throughout? 6. Whether the plaintiff is not entitled to specific performance of the contract which has come into existence between the parties? 7. To what relief is the plaintiff entitled ? 8. Relief. ( 4 ) THE plaintiff in support of his stand examined only himself as a witness. The defendant has produced no witness in support to its claim. The plaintiff in his statement has brought out the fact that he was a Municipal Councillor in the year 1977 and in the same year the Government announced a scheme for allotment of residential plots to the members of the Municipal Corporation of Delhi as well as to the members of Metropolitan Council He referred to the fact that he made an application on August 2, 1978 requesting the defendant to allot a plot of 200 sq yds in Safdarjung Development Area in his favour and an intimation dated February 9, 1979 (Ex. PI) of allotment was received from the DDA The plaintiff further stated that he complied with the requsit conditions by depositing a draft for a sum of Rs. 5000. 00 and by filing income-tax returns and the requisiteaffidavit. He also alluded to the fact that the draw of lots was held and plot No. H-4/216 admeasuring 200 sq. yds. was alloted to him. 5000. 00 and by filing income-tax returns and the requisiteaffidavit. He also alluded to the fact that the draw of lots was held and plot No. H-4/216 admeasuring 200 sq. yds. was alloted to him. The plaintiff also explained that he has a house in Dharampura measuring about 40 sq. yds. According to him the said house is a HUF property of which be is the Karta. He further admitted that he has another HUF property, namely, 2191, Gali Hanuman Prasad, Dharampura, Delhi, which is situate in slum area but is a free hold property. The plaintiff also referred to another property bearing No. 6479 in Katra Baryan, Fatehpuri, Delhi owned by the HUF. The plaintiff asserted that the property is a commercial property having three floors, the first floor being used for coal business started by his grandfather, second floor being in the tenancy of a Doctor, who runs a Nursing Home and second floor being in the tenancy of Post and Telegraph Office. The plaintiff testified to the fact that the Municipal Corporation was assessing the property at commercial rate. He claimed that the area has been declared as local commercial by the Municipal Corporation of Delhi by was of Resolution No. 5 5 5 dated November 13, 1963. The plaintiff also stated that be fulfils all the conditions imposed by the DDA for allotment of the plot and he is ready and willing to per form his part of the agreement. In cross-examination the plaintiff stated that premises at Katra Baryan is unfit for residential purposes. He was however, not able to say definitely whether or not the plans for the said property were got sectioned from Municipal Corporation for commercial purposes. However, he stated that as per his memory sanction was obtained for commercial purpose and the property was constructed in the year 1966. The plaintiff admitted that he did not try to because a copy of the plan from the Municipal Corporation. He denied the suggestion that even if the house at Gail Hanuman Prasad is accepted to be belonging to the HUF, he would still not be entitled to secure the allotment under the scheme. ( 5 ) I have to examine the issues in the light of the aforesaid statement of the plaintiff and the documents on record. He denied the suggestion that even if the house at Gail Hanuman Prasad is accepted to be belonging to the HUF, he would still not be entitled to secure the allotment under the scheme. ( 5 ) I have to examine the issues in the light of the aforesaid statement of the plaintiff and the documents on record. I now proceed to take up the various issued in the following order: i) Issue No. 1, ii) Issue No. 3, iii) Issue No 5, vi) Issue No. 2, v) Issue No. 4, vi) Issues No. 6 to 8. ( 6 ) ISSUE NO I The onus of the issue was on the defendant. The defendant has not led any evidence in support of its plea that the suit for specific performance was not maintainable. The undisputed fact is that the plaintiff sent a bank draft for Rs. 5000. 00 in favour of the DDA as earnest money for the plot and the same was accepted by the DDA. It is asserted by the plaintiff that a draw of lots was held by the DDA on September 10, 1979 and the DDA vide letter dated April 27, 1982 (Ex. PI) to the plaintiff communicated its decision regarding allotment of the plot No. 216 in Block No. B-4, Safdarjung Residential Scheme in his favour. This fact has also not been denied in the written statement. Thus it is clear that the parties entered into the realm of contract and either of them could file a suit for specific performance. For the foregoing reasons, issue No. 1 is decided against the defendant. ( 7 ) ISSUE N0. 3 The parties have not raised any arguments on this issue. The plaintiff valued the suit for the purposes of court fee and jurisdiction at Rs. 1,05,000. 00 and has failed to point out as to how the suit has not been correctly valued. Accordingly, it is held that the suit is properly valued for the purposes of court fee and jurisdiction. The issue is therefore, decided in favour of the plaintiff. 1,05,000. 00 and has failed to point out as to how the suit has not been correctly valued. Accordingly, it is held that the suit is properly valued for the purposes of court fee and jurisdiction. The issue is therefore, decided in favour of the plaintiff. ( 8 ) ISSUE No. 5 In para 17 of the Plaint, the plaintiff has stated that he was always ready and willing to pay the balance of the premium, if any, and to do all other things incidental to the execution of the lease deed in respect of plot No. R-4/216 Safdarjang Development Area, New Delhi, measuring 200sq. yds. (approx) by the defendant and the plaintiff is "still ready and willing for the same. In the written statement the defendant controverted this assertion of the plaintiff. It may be seen that the onus to prove the issue rested on the plaintiff. The plaintiff in his statement stated that he is ready and willing to perform his part of the agreement. He further stated that he is ready and willing to carry out any conditions and obligation with the DDA. It will be convenient to extract the relevant portion of the statement in this regard:- "i am ready and willing to perform my part of the agreement. I am ready and willing to carry out any other conditions and obligations with the DDA if it asks me to perform for transfer of this plot in my name There were certain conditions imposed by the DDA for allotment of plots to members of Municipal Corporation of Delhi. . . . . . . " ( 9 ) IT may he seen that the plaintiff has not stated that he has always been ready and willing to perform the essential terms of the contract which are to be performed by him He merely stated that he is ready and willing to perform his part of the agreement and has fulfilled the conditions of allotment. The plaintiff in a suit for specific performance must aver and prove that he has performed and has always been ready and willing to perform the essential term of the contract. This requirement is mandatory. If the plaintiff fails to aver and prove that he has always been ready and willing to perform the contract, specific performance of the same cannot be enforced. This requirement is mandatory. If the plaintiff fails to aver and prove that he has always been ready and willing to perform the contract, specific performance of the same cannot be enforced. The provisions of Section 16 (c) of the Specific Performance Act in which the abovesaid requirement is laid down is very stringent. I am supported in this view by a Division Bench Judgment of this Court in Mrs. Gopal Devi vs. Mrs. Kanta Bhatia AIR 1994 Delhi 349. Besides there are large number of authorities laying down that the condition precedent to the enforcement of a contract by way of a suit for specific performance is that the plaintiff must aver and prove that he has performed or has always been ready and willing to perform the essential term of the contract. It is however, not necessary to refer to them. The plaintiff in the instant case is required to pay premium in accordance with the policy decision of the Government of India dated 2nd May, 1961 regarding acquisition, development and disposal of land in Delhi. The plaintiff has not proved that he was ready and willing to perform his part of the obligations at all points of time. That is to say that he has failed to state that he has always been ready and willing to perform the contract. Accordingly, the issue is decided against the plaintiff. ( 10 ) ISSUE N0. 2 One of the questions for determination inter-alia is whether the plaintiff fulfils the criteria laid down in para 3 of the policy decision of the Government of India dated February 5, 1970 under which 5% of plots for low and middle income groups were kept reserved for allotment to MPs, Members of Metropolitan Council and Municipal Corporation. At the out set it may be pointed out that the policy decision of the Government dated February 5, 1970 was not on record and with the consent of both the parties, the same was directed to be filed and taken on record. ( 11 ) THE defendant vide Resolution No 104 dated June 16, 1971 resolved that the abovesaid five percent reservation should be effected in the scheme of the DDA. ( 11 ) THE defendant vide Resolution No 104 dated June 16, 1971 resolved that the abovesaid five percent reservation should be effected in the scheme of the DDA. It was pursuant to the aforesaid Resolution that DDa allotted plot No B-4/216, Safdarjung Development Area in favour of the plaintiff after holding a draw of lots for which a communication was sent to him. Acting upon the letter of allotment the plaintiff deposited a bank draft of Rs. 5000. 00 with the DDA The stand of the defendant is that the plaintiff owns House No. 2191, Gali Hanuman Prasad. Delhi and House No. 6479, Katra Baryan, Fatehpuri, Delhi and therefore, the plaintiff was not entitled for allotment of the plot in terms of the policy of the Government dated February 5, 1970. In this regard, learned counsel for the defendant invited my attention to para 4,5 and 6 of the Scheme. At this stage it will be convenient to extract the relevant portion of the policy dated February 5, 1970:- 4. Allotment of land to owners and tenants of properties in areas which have been declared as "clearance areas" under the Slum Areas (Improvement and Clearance) Act, 1956 Persons who own or are tenants of properties in areas which have beendeclared as clearance areas under the above Act may be allotted plots of land in the following manner, as and when those areas are taken up for clearance/redevelopment. (i) Persons whose properties are notified for acquisition and clearance but who reside elsewhere in rented houses, may be permitted to bid in open auctions. (ii) Persons owning properties in "clearance Areas" and residing in them, who belong to Low and Middle Income Groups may, if they agree, be given land not exceeding 1200 sq ft. subject to a minimum size of plot of 80 sq. yards on a priority basis, without any other compensation. If the size of the owner s land in the Slum area is less than 80 sq. yards, the extra land will be charged for at the rates applicable to persons in the Low and Middle Income Groups (as the case may be ). Should, however, this offer not be acceptable to such owners of properties in the "clearance areas", they may be given the option of being paid assessed compensation and permitted to bid for plots in open auction. Should, however, this offer not be acceptable to such owners of properties in the "clearance areas", they may be given the option of being paid assessed compensation and permitted to bid for plots in open auction. (iii) Tenants of properties in clearance Areas may also be given plots of land of 80sq. yards on priority basis at predetermined rates, unless they choose to shift to houses provided under the Slum Clearance Scheme. (iv) The conccessions enumerated in subparts (i) - (iii) above will be subject to the following conditions: (a) The restrictions in force on the sale of plots applicable to persons in the low and Middle Income Groups will also apply in all such cases. (b) The person concerned does not own a house or a residential plot in the Union Tirritory of Delhi in his/her name or in the name of his/ her wife/husband or any of his/her dependent relations including unmarried children. (c) Clear possession the property has been given to the authority concerned. (d) Persons who are given land in lieu of compensation will not be eligible for any other benefits or facilities for rehabilitation under the Slum Clarence Scheme. 5. Allotment of plots to persons owning houses/plots in congested localities. Persons owning houses/plots in the congested localities in the old city measuring less than 80 sq. yards and not owning any other house/plot in Delhi/new Delhi may also be given plots not exceeding 80 sq. yards, at predetermined rates, on priority basis, on their surrendering the land, if the existing houses have been declared to be in a dangerous condition by the competent off authority and where the owners are not allowed to rebuild in pursuance of the requirements of the Master Plan or Building bye-laws, the existing sites being taken over by the Authority concerned. Alternatively, persons of this category may be permitted to apply for allotment of a plot under the low and middle income group schemes according to the Group they belong to or allowed to bid at auctions. 6. Allotment of land to co-sharers of joint ancestral properties in the congested localities/slum areas. Co-sharers of joint ancestral properties in the congested localities (Slum areas) whose share is less than 80 sq. yards of land who do not own any Other plot/house in the Union Territory of Delhi may also he permitted to bid at auctions. 6. Allotment of land to co-sharers of joint ancestral properties in the congested localities/slum areas. Co-sharers of joint ancestral properties in the congested localities (Slum areas) whose share is less than 80 sq. yards of land who do not own any Other plot/house in the Union Territory of Delhi may also he permitted to bid at auctions. ( 12 ) STRESSING on para 4 (iv) (b) learned counsel for the defendant submitted that person owning a house or a residential plot in the Union Territory of Delhi in his name or in the name of his spouse or dependent relations is not entitled to allotment. I have considered the submission of learned counsel for the defendant. It appears that this restriction contained in para 4 (iv) is not applicable to a case covered under para 3 of the Scheme which pertains to reservation of plots in favour of MPs, Members of Metropolitan Conncil and Municipal Corporation etc. The abovesaid restriction has been included in para 4 of the Scheme. Para 4 of the Scheme pertains to allotment of land to owners and tenants of properties in area which have been declared as "clearance areas" under the Slum Areas (Improvement and Clearance) Act, 1966. Para 4 is an independent and separate para not concerned with the subject matter of para 3. Para 4 applies to those persons who own or are tenants of properties in areas which have been declared as clearance areas. Such persons are eligible to allotment of land as and when those areas are taken up for clearance and redevelopment subject to further conditions enumerated in sub paras (i) and (ii) of para. ( 13 ) IT is in sub-para (iv) of para 4 that the restrictive condition is laid down. As is apparent from reading of clause 4 (iv) the restrictuion is applicable to concessions enumerated in sub- paras (i) and (iii) of para 4 alone and there is nothing to suggest that such a restriction also applies to concessions laid down in para 3 of the Scheme which deals with the allotment of land to MPs, Members of Metropolitan Council and Municipal Corporation. Therefore, I do not agree with the submission of learned counsel for the defendant that the plaintiff is not covered under the Scheme as he was possessed of immovable property as an owner in the Union Territory of Delhi. Therefore, I do not agree with the submission of learned counsel for the defendant that the plaintiff is not covered under the Scheme as he was possessed of immovable property as an owner in the Union Territory of Delhi. Learned counsel for the defendant then submitted that even if the case of the plaintiff was not covered under sub-para (iv) of para 4 of the Scheme, he would still be disentitled from obtaining the concession under para 5 of the Scheme. Learned counsel elaborating his arguments submitted that since the plaintiff has a house property in Gali Hanuman Prasad, he cannot be allotted plot in the Safdarjung Residential Scheme in the quote of Members of the Municipal Corporation. This contention of the learned counsel is not well founded as the House No. 2191, Gail Hanuman Prasad, as per Ex. Dl, measures only 40 sq. yds. Therefore, since the property measures less than 80 sq. yds. , the contention of learned counsel for the defendant is therefore, rejected. The defendant s counsel also canvassed that the house property belonging to the plaintiff at Katra Baryan undoubtedly is more than 80sq. yds. This position is not controverted by the learned counsel for the plaintiff. But he however, submits that this property cannot be taken into reckoning for the purposes of application of para 5 of the Scheme as the said property is not a residential property. He pointed out from the statement of theplaintiff that the property was being used for commercial purposes since the year 1961 by the grandfather of the plaintiff. He invited my attention to property tax assessments for the years 1954-55, 1962-63 ,1963-64, 1964- 65,1965-66,1966-67,1967-68,1969-70. ( 14 ) I have examined the submission of learned counsel on both sides but it is not necessary to go into the question as to whether the property at Katra Baryan is a commercial property or a residential one Para 5 of the Scheme is independent of para 3 thereof which means that concessions given in para 3 in favour of MPs, Members of Metropolitan Council and Municipal Corporation are not subject to para 5. Therefore, if one is to go by the policy contained in para 3 of the letter dated February 5. 1970. there will be no impediment in the grant of allotment in favour of the plaintiff. Therefore, if one is to go by the policy contained in para 3 of the letter dated February 5. 1970. there will be no impediment in the grant of allotment in favour of the plaintiff. However, the concession granted in favour of MPs, Members of Metropolitan Council and Municipal Corporation was revoked by the Government of India by its letter dated February 2, 1979 (Ex. Dl ). At this stage, it will be convenient to extract the contents of the letter: - "2 (A) In regard to recommendation made in para 3, 14 of the Baveja Committee Report (Item 44 of the report of the Empowered Committee), the Government have decided that all reservations in the matter of allotment of plots and flats except the following should be abolished:- (i) Widows of Defence Personnel killed in action 1 per cent (ii) Ex-servicemen 1 per cent. (iii) Physical by handicapped persons 1 percent. (iv) Scheduled Castes and Present Level Scheduled Tribes. 25 per cent (b) As regards recommendation made in para 4, 84 of the Haveja Committee Report (Item 102 of the report of the Empowered Committee), the Government have decided that the statues quo may remain. 3. The DDA/delhi Administration/mcd are concerned with the implementation of the recommendations/observations as indicated in the statement which gives the item nos. of the report of the Empowered Committee. You are requested to send quarterly reports in regards to the implementation of the recommendations so to the concerned desks of Delhi Division of this Ministry as indicated in the statement. The first report may indicate the position as on 31. 3. 79". ( 15 ) AS is apparent form the above, the concession in favour of MPs, Members of Metropolitan Council and Municipal Corporation was scrapped. Since the DDA and MCD were carrying out the policy of the Government as contained in its letter dated February 5,1970, there is no reason whatsoever for not implementing any modification in such policy. It needs to be noted that the land with regard to which the DDA was empowered to make allotments is the land which came under the Scheme of larger scale acquisition, development and disposal. The land under the large scale acquisition scheme has been made available to the DDA by the Government of India and the land can be allotted only under that scheme. The land under the large scale acquisition scheme has been made available to the DDA by the Government of India and the land can be allotted only under that scheme. It needs to be further highlighted that the concessions to the MPs, Members of Metropolitan Council and Municipal Corporation were made available at the behest of the Government of India. Once the Government of India withdrew that concession, the Municipal Corporation or the D. D. A had no authority to deal with the land in a manner which would be violative of the directions of the Government of India even otherwise reservation of the land in favour of ML As and MPs would be violative of Article 14 of the Constitution as being discriminatory. Learned counsel for the plaintiff, however, relied upon the decision of this court in Joginder Nath Bhandari vs. It. Governor of Delhi, CWP No. 1006/81 decided on March 30, 1989, in which it was held that letter dated January 2, 1979 was not given effect to by the DDA. Therefore, the cancellation of allotment of land in favour of the petitioner in that case, who was a MLA, was set aside. With great respect I do not agree with the above view. I would have referred the matter on this question to a larger Bench for its determination but it will not be necessary as the suit in any event is liable to be dismissed in view of the findings on issue No. 5. ( 16 ) ISSUE N0. 4 The evidence with regard to the above issue has already been noticed while considering issue No. 2. However, the same may be referred to again for the purposes of determination of Issue No. 4 The plaintiff in regard to the house properties stated as follows:- "i have a house in Dharampura measuring about 40 sq. yds. I own the property as Karta H. LJ. F. At that time there were five members of the H. U. F. viz. myself, my wife, son and two unmarried daughters. H. U. F. property No. is 2191, Gali Hanuman Prasad, Dharampura, Delhi - 6. It is in the slum area and freehold. I have a commercial property also as Karta H. U. F. bearing No. 6479, Katra Baryan, Fatehpuri, Delhi This is also situated in the slum areas. It is about 250 sq. yds. H. U. F. property No. is 2191, Gali Hanuman Prasad, Dharampura, Delhi - 6. It is in the slum area and freehold. I have a commercial property also as Karta H. U. F. bearing No. 6479, Katra Baryan, Fatehpuri, Delhi This is also situated in the slum areas. It is about 250 sq. yds. The entire ground floor of this property is being used for coal business which was started by my grand-father. On the first floor a Nursing home is run by Dr. Ramesh who is own tenant On the second floor Post and Telegraph office is the tenant, using it for a commercial purpose Both the tenants are in occupation of the said property since 1967. . . . . . . ,. " ( 17 ) IT is clear from the above statement that the plaintiff is the owner and in possession of residential house in Delhi alongwith the other members of his family But as already seen, while dealing with Issue No. 2. nothing turns on the factum of ownership and possession of the plaintiff in so far as the abovesaid properties are concerned. I answer the issue accordingly. ( 18 ) ISSUES N0. 6 and 7 In view of the finding on issue No. 5, I hold that the plaintiff is not entitled to specific performance of the contract. The said issues are decided accordingly. ( 19 ) RELIEF: Accordingly the suit is dismissed but without any order as to costs.