Full Judgment Text
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CASE NO.:
Appeal (civil) 5874 of 2007
PETITIONER:
Poonam Verma & Ors.
RESPONDENT:
Delhi Development Authority
DATE OF JUDGMENT: 13/12/2007
BENCH:
S.B. Sinha & Harjit Singh Bedi
JUDGMENT:
J U D G M E N T
[Arising out of SLP (Civil) No. 1322 of 2007]
S.B. SINHA, J :
1. Leave granted.
2. Respondent is an authority created under the Delhi Development Act,
1957 (for short \023the Act\024). The Act was enacted to provide for the
development of Delhi according to plan and for matters connected therewith
or ancillary thereto.
Respondent floated a scheme known as Fifth Self Financing Housing
Registration Scheme, 1982 (for short \023the Scheme\024). Appellants herein
pursuant to an advertisement issued in this behalf registered themselves;
their registration numbers being 13463, 16602 and 13464. For the purpose
of allotment of flats, lots were drawn on various occasions, viz., in June,
1987, November, 1987, March, 1989, July, 1990, January, 1991, January,
1993. Appellants were not successful therein and, thus, were unable to get
flats in locality of their choice. The Scheme was closed. However, with a
view to give a chance to those who were not successful in the lots on the
earlier occasions, a public notice was issued in some newspapers on
8.12.1993 for release of about 3000 flats which included some built and
ready-built ones situated in Kondli-Gharoli. Registrants under the Scheme
were entitled to apply therefor. In the public notice, it was categorically
stated that the registrants of the said scheme who had not applied for an
allotment in that release would not be eligible to apply again for allotment.
It was further stated that in the case registrants of 5th SFS did not avail of
this opportunity or if they surrendered allotment/ allocation after being
successful, they shall be deemed to have opted out of the scheme and action
shall be taken to refund their registration money.
3. Appellants did not respond to the said notice. Despite the same
allegedly they had been allotted Category- III flats. They were called upon
to pay the price specified therefor and to take delivery thereof. They
declined to do so. They asked their names to be included in the VI and VI-A
Self Financing Schemes which were issued later on. Respondent did not
agree thereto.
4. A complaint was filed by the appellants before the Consumer Disputes
Redressal District Forum \026 II on or about 16.01.1995 inter alia for a
direction upon the respondent herein that their registration should not be
cancelled and they should be considered in future draw of lots till they could
be allotted flats in the locality of their choice. By a judgment and order
dated 24.07.1995, the said application was allowed holding that the action of
the respondent in not considering the cases of the appellants for allotment
through the process of draw of lots amounted to unfair trade practice, apart
from being unilateral and unjustified. Aggrieved by and dissatisfied
therewith, the respondent preferred an appeal before the State Consumer
Disputes Redressal Commission, New Delhi and by an order dated
30.11.1998 allowed the said appeal and set aside the order of the District
Forum. Appellants herein thereafter filed a revision application before the
National Consumer Disputes Redressal Commission. During pendency of
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the said application, they approached the Finance Member and Chairman of
the respondent to place their case before the \021out of court settlement
committee\022. By an order dated 25.11.1999, the National Commission
dismissed the revision petition filed by the appellants herein relying inter
alia on Clause 16 of the Brochure wherein it had categorically been stated
that \023DDA reserves the right to withdraw the Scheme at any time\024. A
Special Leave Petition preferred thereagainst was dismissed.
5. Although the appellants were not successful in their attempt to obtain
any remedy on the judicial side, they purported to approach the Ministry of
Urban Affairs in 1997. They made certain representations. Allegedly, the
Joint Secretary (D&L) by reason of a letter dated 24.08.2000 addressed to
the Vice-Chairman of Delhi Development Authority directed as under:
\023I am directed to refer to D.O. letter No. F.1
(Misc.) 5th SFS & onwards/2000/SFS, dated the
15th May, 2000 from Shri Arvind Kumar, the
then Commissioner (Housing), on the subject
noted above, and to state that the matter
pertaining to giving one more opportunity to the
left out registrants of 5th and subsequent Self
Financing Schemes was discussed in the
Chamber of UDM with VC, DDA some time
back. After discussion, it was agreed that instead
of a general scheme, VC, DDA would cover the
pending petitioners, especially, the hard cases
under the OTA quota. It was also mentioned by
the VC, DDA that there are only three such
cases. It is, therefore, requested that further
action to allot the flats to these three petitioners
may please be taken and action taken in the
matter may be intimated to this Ministry in due
course.\024
6. The State Consumer Disputes Redressal Commission was again
approached. The application of the appellants was dismissed. Another
application was filed by them before the Permanent Lok Adalat for non-
compliance of orders of Ministry of Urban Development despite availability
of flats. By an order dated 6.09.2005, the Lok Adalat observed:
\023On 12.4.2005, Lok Adalat had recommended that
the case of the petitioner is a hard case and instead
of General Scheme the case of the petitioner
should be considered under the Out of Turn
Allotment quota particularly when there are only
three cases left. In this connection a letter of
Minister of Urban Development & Poverty
Alleviation dated 24.8.2005 refers to. This letter
clearly provides that according to the Vice-
Chairman, DDA there are only three such cases
left and in such a situation the case of the
petitioner should be covered under OTA Quota
being a hard case. This recommendation has not
been accepted by the DDA presumably for the
reason that the scheme of SFS under which the
petitioner had applied had become defunct. The
scheme of OTA under the quota is also no longer
in existence and as such the case of the petitioner
cannot be considered under this category. The
petitioner cannot be considered under this
category. The petitioner cannot be allotted a flat as
the flats which are lying vacant for which the
petitioner has applied for the DDA has merged the
flats with the Higher Income Group. In other
words, the DDA in the aforesaid circumstances has
opposed such allotment to the petitioner. There is
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no meeting ground between the parties, the matter
is closed as unsettled. The petitioner is at liberty
to approach appropriate Forum/ Court of Law for
redressal of his grievances if she is so advised.\024
7. Thereafter, a writ petition was filed before the Delhi High Court
which was marked as Civil Writ No. 19633-35 of 2005. By an order dated
20.03.2006, the said petition was dismissed. Letters Patent Appeal preferred
thereagainst by the appellants being LPA No. 652-654 of 2006 has also been
dismissed by reason of the impugned judgment dated 25.04.2006. A review
application filed thereagainst also stand dismissed.
8. Mr. Ram Prakash, representing the appellants, in support of this
appeal inter alia would submit:
(i) As in the Brochure, a policy of reservation was provided, the High
Court committed a serious illegality in opining that no legal right
accrued in their favour in terms of the said letter dated 24.08.2000.
(ii) The Central Government, having regard to Section 41 read with
Section 56(2)(r) of the Act, could direct allotment of flats from
\021out of turn quota\022 keeping in view the cases of the appellants who
were three in number, as falling in the category of hard cases.
(iii) The Central Government in a situation of this nature was entitled
to formulate a Scheme for the left out registrants. The authorities
of the respondent having participated in the meeting with the
Minister of Urban Development, pursuant whereto the said letter
dated 24.08.2000 was issued, the respondent was bound to
implement the same in view of the principles of Legitimate
Expectation and Promissory Estoppel.
(iv) As a large number of flats had been vacant, as would appear from
the statement made by the Vice-Chairman of the respondent on
8.11.2002 by reason of allotment of the flats, nobody else would be
prejudiced.
9. Mr. Ashwani Kumar, learned counsel appearing on behalf of the
respondent, on the other hand, submitted:
(i) Appellant do not have any legal right in obtaining allotment of
flats.
(ii) They having failed to deposit the amount as far back in 1994
cannot now be permitted to claim an equitable right despite their
unsuccessful attempt before the Forums created under the
Consumer Protection Act, 1985.
10. Indisputably, the Scheme was an independent one. It was a Self
Financing Housing Registration Scheme. Other similar schemes following
the same were also wholly independent of each other. The Brochure issued
for enforcing the said Scheme is a self-contained document. It provides for
the mode and manner in which flats are to be allotted, the categories of the
allotment of flats thereof, mode of payment as also cancellation thereof.
Indisputably, despite the fact that the appellants were not successful in
obtaining the flats by reason of draw of lots and despite the fact that they did
not respond to the notice issued by the respondent, those cases had not been
considered in the year 1994. On what ground, we do not know, flats were
allotted in their favour. They were asked to make deposits. They did not do
so. They, on the other hand, made a totally untenable claim of continuing
their registration again in VI and VI-A Schemes.
11. We have noticed hereinbefore that their claim based on deficiency of
service and/ or unfair trade practice was rejected by the Higher Forum on the
part of the respondent. They lost their battle upto this Court in the first
round of litigation.
12. Having failed to establish any legal right in themselves as also
purported deficiency in services on the part of the respondent before
competent legal forums, they took recourse to remedies on administrative
side which stricto sensu were not available. It has not been shown as to on
what premise the Central Government can interfere with the day to day
affairs of the respondent. Section 41 of the Act, only envisages that the
respondent would carry out such directions that may be issued by the Central
Government from time to time for the efficient administration of the Act.
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The same does not take within its fold an order which can be passed by the
Central Government in the matter of allotment of flats by the Authority.
Section 41 speaks about policy decision. Any direction issued must have a
nexus with the efficient administration of the Act. It has nothing to do with
carrying out of the plans of the authority in respect of a particular scheme.
13. The Central Government does not have any quota under the Act. It
did not have any quota under the Scheme. The reservations envisaged in
terms of the Scheme were as under:
\023a) 25% of the flats for the persons belonging to
SC/ST.
b) 3% of the flats for MPs.
c) 2% of the flats for persons who have won
national recognition in the field of sports, art and
music.
d) 1% of the flats for physically handicapped.\024
14. Evidently, the Central Government had no say in the matter either on
its own or under the Act. In terms of the Brochure, Section 41 of the Act
does not clothe any jurisdiction upon the Central Government to issue such a
direction.
15. Submission of Mr. Ram Prakash that the Central Government could
issue the said direction in exercise of its rule making power under Section 56
of the Act is wholly misplaced. In issuing the said letter, the Central
Government did not exercise its legislative power nor could it do so. The
Central Government in terms of the Act apart from Section 41 did not have
any power and, thus, could not have issue any direction in terms thereof.
16. If Section 41 of the Act or for that matter Section 56(2)(r) thereof
were not applicable, the question of issuing any direction purported to be in
terms of Section 21 of the General Clauses Act, as has been submitted by
Mr. Ram Prakash, did not arise.
17. M.P. Gangadharan and Others v. State of Kerala and Others [(2006) 6
SCC 162], whereupon reliance has been placed by Mr. Ram Prakash, has no
application in the instant case.
18. The Scheme in question was closed as far back as in the year 1994.
The Central Government in terms of the provisions of the Act or otherwise
had no jurisdiction to revive the same.
19. All the authorities under the Act including the Central Government
being the creature of statute were bound to act within the four corners
thereof. A specific grievance was raised by the appellants herein that the
action on the part of the authority amounted to unfair trade practice.
Deficiency of service was also pleaded. The same had been negatived. The
courts having appropriate jurisdiction having found neither unfair trade
practice nor there being deficiency in service and in that view of the matter,
the Central Government ordinarily ought not to have interfered in the matter.
20. The purported letter dated 24.08.2000 does not specify as to how the
Central Government assumed any jurisdiction in the matter.
21. Some officers of the respondent by themselves could not have evolved
a Scheme which was beyond the purview and scope of the Act. Respondent
being a State within the meaning of Article 12 of the Constitution of India is
bound to fulfill the constitutional scheme contained in Article 14 thereof. It
could not, going behind the professed scheme as contained in the Brochure,
create a quota. Such a purported decision being wholly without jurisdiction,
is a nullity. The Central Government itself directed the authority to confine
the \021out of turn allotment\022 quota by reason of a direction issued in June,
2000 only for widows of:
(a) Government servants who dies in harness.
(b) Those who were killed by terrorists.
It would be preposterous to suggest that the Central Government
could act beyond its professed policy decision.
22. The Central Government, thus, acted illegally and without jurisdiction
in purporting to take a decision that the hard cases may be brought within
the purview of the \021Out of Turn Allotment\022 Quota, as therefor there was no
legal sanction.
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Justice Frankfurter in Vitarelli v. Seaton [359 US 535] stated:
\023An executive agency must be rigorously held to the standards
by which it professes its action to be judged\005\005 Accordingly,
if dismissal from employment is based on a defined procedure,
even though generous beyond the requirements that bind such
agency, that procedure must be scrupulously observed.
\005..This judicially evolved rule of administrative law is now
firmly established and, if I may add, rightly so. He that takes
the procedural sword shall perish with the sword.\024
[See also Ramana Dayaram Shetty v. The International Airport
Authority of India and Others AIR 1979 SC 1628 : (1979) 3 SCC 489, Harjit
Singh & Anr. v. The State of Punjab & Anr. 2007 (3) SCALE 553] )
23. Having professed to abide by the Brochure which contained the policy
of reservation, as noticed hereinbefore, the Central Government could not in
absence of any statutory provision directed creation of any quota and that
too after closure of the Scheme. The Scheme after its closure could not even
have been revived.
24. Guidelines per se do not partake to the character of statute. Such
guidelines in absence of the statutory backdrop are advisory in nature. Mr.
Ram Prakash himself has relied upon a decision of this Court in Narendra
Kumar Maheshwari v. Union of India and Others [AIR 1989 SC 2138]
wherein it has been laid down:
\023100\005 This is because guidelines, by their very
nature, do not fall into the category of legislation,
direct, subordinate or ancillary. They have only an
advisory role to play and non-adherence to or
deviation from them is necessarily and implicitly
permissible if the circumstances of any particular
fact or law situation warrants the same. Judicial
control takes over only where the deviation either
involves arbitrariness or discrimination or is so
fundamental as to undermine a basic public
purpose which the guidelines and the statute under
which they are issued are intended to achieve.\024
[See also Narendra Kumar Maheshwari v. Union of India and others 1990
(Supp) SCC 440 at 508; Maharao Sahib Shir Bhim Singhji v. Union of
India and others (1981) 1 SCC 166 at 232; J.R. Raghupathy and others v.
State of A.P. and others (1988) 4 SCC 464 (paragraph 31); Uttam Parkash
Bansal and others v. L.I.C. of India (2002) 100 DLT 487]
Guidelines being advisory in character per se do not confer any legal
right.
25. Reliance has also been placed upon P.M. Ashwathanarayana Setty
and others v. State of Karnataka and others [AIR 1989 SC 100] for the
proposition that the State cannot rely on an evasive reason. We fail to
understand how a case relating to Court Fees and Suit Evaluation Act, would
assist us in invoking the principles in regard to the discriminatory impact of
the matter in a case of this nature.
26. Mr. Ram Prakash has also placed reliance upon State of Himachal
Pradesh and Another v. Kailash Chand Mahajan and Others [1992 Supp (2)
SCC 351] wherein this Court was considering the statutory conditions of
services framed under a regulation made in terms of Electricity (Supply)
Act. In that context, this Court considered the question as to whether the
term of appointment can be confined to a single person. Reliance placed on
the said decision is wholly misplaced. A reasonable classification is
permissible although a class legislation is not, but the same will have no
application in a case where an executive order was passed wholly without
jurisdiction and contrary to the constitutional scheme relating to fixation of
quota for certain categories of persons.
27. An endeavour has been made to invoke the principles of Legitimate
Expectation and Promissory Estoppel. The doctrine of Legitimate
Expectation would apply only when a practice is found to be prevailing. It
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has a positive concept. But, in a case of this nature where purported
expectation is based on an illegal and unconstitutional order, the same is
wholly inapplicable, as the same cannot be founded on an order which is per
se illegal and without foundation.
Strong reliance has also been placed on a decision of this Court in
Ram Pravesh Singh and Others v. State of Bihar and Others [(2006) 8 SCC
381] wherein a Bench of this Court opined:
\02315. What is legitimate expectation? Obviously, it
is not a legal right. It is an expectation of a benefit,
relief or remedy, that may ordinarily flow from a
promise or established practice. The term
\023established practice\024 refers to a regular,
consistent, predictable and certain conduct, process
or activity of the decision-making authority. The
expectation should be legitimate, that is,
reasonable, logical and valid. Any expectation
which is based on sporadic or casual or random
acts, or which is unreasonable, illogical or invalid
cannot be a legitimate expectation. Not being a
right, it is not enforceable as such. It is a concept
fashioned by the courts, for judicial review of
administrative action. It is procedural in character
based on the requirement of a higher degree of
fairness in administrative action, as a consequence
of the promise made, or practice established. In
short, a person can be said to have a \023legitimate
expectation\024 of a particular treatment, if any
representation or promise is made by an authority,
either expressly or impliedly, or if the regular and
consistent past practice of the authority gives room
for such expectation in the normal course. As a
ground for relief, the efficacy of the doctrine is
rather weak as its slot is just above \023fairness in
action\024 but far below \023promissory estoppel\024. It
may only entitle an expectant: ( a ) to an
opportunity to show cause before the expectation
is dashed; or ( b ) to an explanation as to the cause
for denial. In appropriate cases, the courts may
grant a direction requiring the authority to follow
the promised procedure or established practice. A
legitimate expectation, even when made out, does
not always entitle the expectant to a relief. Public
interest, change in policy, conduct of the expectant
or any other valid or bona fide reason given by the
decision-maker, may be sufficient to negative the
\023legitimate expectation\024. The doctrine of
legitimate expectation based on established
practice (as contrasted from legitimate expectation
based on a promise), can be invoked only by
someone who has dealings or transactions or
negotiations with an authority, on which such
established practice has a bearing, or by someone
who has a recognised legal relationship with the
authority\005\024
The said decision, thus, instead of assisting the appellants runs counter
to their contention.
28. Mr. Ram Prakash has also placed strong reliance on J.P. Bansal v.
State of Rajasthan [(2003) 5 SCC 134 : 2003 (3) SCALE 154]. Therein
itself, it is laid down:
\023\005The Constitution requires that action must be
taken by the authority concerned in the name of
the Governor. It is not till this formality is
observed that the action can be regarded as that of
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the State. Constitutionally speaking, the Council of
Ministers are advisers and as the Head of the State,
the Governor is to act with the aid or advice of the
Council of Ministers. Therefore, till the advice is
accepted by the Governor, views of the Council of
Ministers do not get crystallised into action of the
State\005\024
29. This decision is, therefore, an authority for the proposition that the
government order, so as to confer a legal right, must conform to the
provisions contained in Article 166 of the Constitution of India.
30. Questioning the correctness of the observation of the Division bench
that the communication contained in the letter dated 24.08.2000 did not
confer any legal right, Mr. Ram Prakash, would submit that an
administrative order may also confer a legal right. No doubt, it was so stated
in Union of India v. K.P. Joseph and others [(1973) 1 SCC 194 : AIR 1973
SC 303] but then it was a case where an executive order was passed which
was within the jurisdiction of the State in terms of the proviso appended to
Article 309 of the Constitution of India. The Bench, it is interesting to note,
hastened to add:
\02311. We should not be understood as laying down
any general proposition on this question. But we
think that the Order in question conferred upon the
first respondent the right to have his pay fixed in
the manner specified in the Order and that was part
of the conditions of his service. We see no reason
why the Court should not enforce that right.\024
31. We, therefore, find no merit in this appeal which is dismissed
accordingly. In the facts and circumstances of this case, however, there shall
be no order as to costs.