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2000 DIGILAW 242 (DEL)

RAJ KUMAR v. DELHI DEVELOPMENT AUTHORITY

2000-02-29

M.K.SHARMA

body2000
M. K. SHARMA,j ( 1 ) THE present writ petition is directed against the order dated 1. 4. 1997 wherebythe respondent informed the petitioner that the allotment of Flat No. 79, Section 23,pocket i, Group I at Dwarka allotted in the name of the petitioner had been canceledin terms of the policy of the respondent as the petitioner is an owner of more than 80square yards in property No. 15/a, Tilak Nagar, New Delhi. To the same effect is theletter dated 13. 6. 1997 which is Annexure 13 to the writ petition whereunder thepetitioner was asked to furnish certain documents for refund of the earnest money,the legality of which is also questioned in the present writ petition. ( 2 ) PURSUANT to an advertisement of a Scheme called Registration Scheme on Newpattern-1979, the petitioner applied for allotment of a flat and deposited earnestmoney of Rs. 4,500. 00 on 24. 9. 1979. A draw of lots also took place for allotment ofsuch flats under the aforesaid scheme and the petitioner was successful in such adraw of lots and by letter dated 14. 5. 1994, the petitioher was informed that he wasdeclared successful for allotment of Flat No. 37 which is a ground floor flat in Sector21, Pocket 4, the cost of which was quoted at Rs. 3,36,450. 00. The petitioner wasasked to deposit the amount of Rs. 3,07,515. 84. The petitioner, however, on 3. 6. 1994filed an application to the respondent praying to withdraw the exorbitant demandnotice and for extension of the date of payment. At that stage, it came to the notice tothe respondent that the petitioner is the owner of a property of more than 75 squareyards being 15/46a, Tilak Nagar, New Delhi, and accordingly the allotment of the flatin favour of the petitioner was cancelled and the petitioner was informed. Beingaggrieved and dissatisfied with the aforesaid order, the present petition has beenpreferred. ( 3 ) COUNSEL for the petitioner submitted that the petitioner himself by letter dated11. 12. 1996 brought it to the notice of the respondent that his mother had expired on28. 6. 1992 leaving behind a registered Will. In the said letter he had also sought forextension of time for making confirmation deposit of Rs. 20,000. 00. ( 3 ) COUNSEL for the petitioner submitted that the petitioner himself by letter dated11. 12. 1996 brought it to the notice of the respondent that his mother had expired on28. 6. 1992 leaving behind a registered Will. In the said letter he had also sought forextension of time for making confirmation deposit of Rs. 20,000. 00. It was submittedthat the aforesaid property, a part of which the petitioner has inherited was an HUFproperty and not self-acquired property of the mother of the petitioner and, therefore,the debarring clause which is sought to be invoked by the respondent is notapplicable to the case of the petitioner. The aforesaid contention was refuted by thecounsel appearing for the respondent by the counsel appearing for the respondentcontending, inter alia, that in terms of the eligibility conditions for allotment of a plot,any individual having a share of more than 75 square yards in a jointly owned plot orland under a residential house could not be entitled for allotment of a flat. It wassubmitted that the petitioner admittedly inherited more than 75 square yards in theaforesaid property upon the death of his mother on 28. 6. 1992 and, therefore, he wasnot entitled to such allotment of a flat in the year 1994 and the said allotment being inviolation of the terms and conditions of the Scheme was rightly canceled by therespondent. ( 4 ) THE Scheme under which the petitioner got himself registered for allotment of aflat is called Registration Scheme on New Pattern-1979. Clause 3 of th said Schemelays down the eligibility conditions for being considered for allotment of a flat whichprovides that the applicant must not own any residential house or plot in full or in parton lease hold or free hold basis in the Union Territory of Delhi, either in his/her ownname or in the name of his/her, wife/husband or any of his/her minor and or dependentchildren or dependent parents or dependent minor sisters and brothers. A conditionwas, however, attached to the aforesaid provision that if the said individual share ofthe applicant is less than 75 square yards in the jointly owned plot or land, anapplication for flat could be entertained. ( 5 ) UPON the death of the mother of the petitioner, admittedly the petitioner hasbecome owner of more than 75 square yards in the aforesaid property situated at 15/46a, Tilak Nagar, New Delhi. ( 5 ) UPON the death of the mother of the petitioner, admittedly the petitioner hasbecome owner of more than 75 square yards in the aforesaid property situated at 15/46a, Tilak Nagar, New Delhi. The question that, therefore, arises for my considerationis whether in view of the aforesaid inheritance of the property by the petitioner, theclause as stated in Clause 3 would be applicable in the present case or not. ( 6 ) THE petitioner admittedly owns a plot in part in his own name which is more than75 square yards. The contention of the petitioner is that his case is excluded fromapplication of Clause 3 because he had inherited an HUF property and not a self-acquired property of his mother. I have given my anxious consideration to theaforesaid submission of the learned counsel for the petitioner. On consideration ofthe records, I find that no such pleadings as also evidence has been placed on recordby the petitioner to show and prove that the property which the petitioner has inheritedwas an HUF property and not self- acquired property of his mother. Besides theaforesaid question is a disputed question of fact which could not be examined anddecided in the exercise of the writ Jurisdiction under Article 226 of the Constitution ofindia. It is also to be mentioned that no such distinction is made in respect of thenature of the property while laying down the eligibility criteria and conditions in theaforesaid Scheme by the respondent. If the petitioner owns any residential house orplot in full or in part, he becomes dis-entitted to be allotted with a flat provided thearea of the residential house or plot falling in his share is more than 75 square yards. The petitioner, in my considered opinion, comes within the aforesaid debarringclause and is not entitled to be allotted with a flat under the Registration Scheme onnew Pattern- 1979.- ( 7 ) THE submission of the learned counsel for the petitioner is, therefore, misplacedand cannot be accepted since the petitioner owns a residential house/plot in parthaving a share in the said jointly owned property which is more than 75 square yards. In that view of the matter, there is no merit in this writ petition and the petition isdismissed, but, without any costs. In that view of the matter, there is no merit in this writ petition and the petition isdismissed, but, without any costs. It is, however, made clear that whatever amounthas been deposited by the petitioner in respect of allotment of the aforesaid flatincluding the registration amount shall be returned to the petitioner once he completesall formalities, in accordance with law, along with interest at the applicable rate by therespondent within four weeks from the date of completion of all the formalities.