Full Judgment Text
Neutral Citation Number: 2023/DHC/000952
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgement reserved on: 13.07.2022
% Judgement pronounced on : 10.02.2023
+ LPA 67/2020
NARENDER KUMAR WADHWA ..... Appellant
Through: Mr Siddharth Dutta with Ms Gunjan
Malhotra, Advocates.
versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Ms Kritika Gupta, Advocate.
CORAM:
HON'BLE MR JUSTICE RAJIV SHAKDHER
HON'BLE MS JUSTICE TARA VITASTA GANJU
JUDGMENT
TARA VITASTA GANJU, J.:
1. This Appeal is directed against the Judgment dated 16.12.2019 passed
by the learned Single Judge in W.P.(C) 384/2013 (hereinafter “the
Impugned Judgment”) whereby the learned Single Judge upheld the
cancellation of allotment of Plot No.48, Pocket-1, Block-C, Sector 27,
Rohini, New Delhi (hereinafter “the Rohini Plot”) allotted to the
Appellant by Delhi Development Authority (hereinafter “DDA”), by
its communication dated 04.03.2005.
2. The brief undisputed facts are as follows:-
2.1 The Rohini Residential Scheme, 1981 (hereinafter “the Rohini
Scheme”) was floated, by DDA, for allotment of plots to persons in
need thereof.
2.2 Perpetual leasehold rights in the allotted plots were created by the
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Rohini Scheme.
2.3 The Appellant registered under the Rohini Scheme on 23.04.1981 and
booked a 90 sq. mts. MIG Plot. The Rohini Scheme assured a
handover of plots to allottees within a period of 5 years.
2.4 The Appellant was provisionally allotted the Rohini Plot consequent
to a draw of lots conducted on 05.01.2004, after a lapse of almost 23
years.
2.5 The demand-cum-allotment / provisional allotment letter as issued by
DDA on 19/27.01.2004 (hereinafter “Allotment Letter”) required the
Appellant to make a payment in the sum of Rs. 4,08,672/-. Since an
amount of Rs. 12,944/- had been paid previously by the Appellant,
payments were made to DDA in terms of the Allotment Letter on the
following dates:
(i) On 26.03.2004 - Rs. 1,30,091/-
(ii) On 21.05.2004 - Rs. 2,04,336/-
(iii) On 12.08.2004 - Rs. 61,401/-
2.6 The Appellant also gave an Affidavit as well as an Undertaking, in the
format as prescribed by DDA, towards the allotment. It is not disputed
that the Affidavit and an Undertaking, although affirmed on
25.03.2004, were filed with DDA on 14.10.2004.
2.7 Shortly thereafter, a show-cause notice dated 14.12.2004 was issued
to the Appellant by DDA (hereinafter “the SCN”) inter-alia setting
out that the Appellant also owned another property being Plot No.
217, Deepali Enclave, U.P. Samaj Co-Operative House Building
Society, Pitam Pura, New Delhi, admeasuring 180 sq. mts.,
(hereinafter the “Deepali Enclave Plot”). It was stated in the SCN that
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such ownership was in violation of the Rohini Scheme. The SCN
required the Appellant to show cause as to why the allotment of the
Rohini Plot be not cancelled, as the Appellant had filed a false
affidavit with DDA.
2.8 The Appellant submitted a response to the SCN. A copy of the said
response as available on the record of the learned Single Judge, inter-
alia, set forth that the Deepali Enclave Plot had already been sold by
the Appellant, prior to submitting the requisite documents with DDA.
A copy of the Sale Deed dated 06.09.2004 evidencing the sale of the
Deepali Enclave Plot (hereinafter “Sale Deed”), was enclosed with
this reply. The Appellant further averred that he had waited for almost
23 years for the allotment of this plot from DDA and due to this delay
the Appellant was forced to purchase a flat from the open market to
reside in. The Appellant requested that the SCN, issued to him, be
withdrawn as on the date of submission of documents to DDA
(14.10.2004) the Affidavit filed was not false.
2.9 However, DDA, by communication dated 04.03.2005, addressed to
the Appellant (hereinafter “Cancellation Letter”) cancelled the
allotment of the Rohini Plot. The Cancellation Letter further stated
that, since the Appellant had resorted to concealment of facts, he
would neither be entitled to allotment of another plot from DDA, nor
refund of the amounts deposited.
2.10 Aggrieved by this cancellation, the Appellant had approached this
Court, by way of a Writ Petition, praying that the Cancellation Letter
issued by DDA be quashed and DDA be directed to grant him
possession of the Rohini Plot. In the alternative, the Appellant had
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prayed that DDA be directed to return the amounts deposited by the
Appellant for the Rohini Plot.
2.11 The learned Single Judge was however, not inclined to interfere under
Article 226, and dismissed the Petition of the Appellant by the
Impugned Judgment inter-alia holding that there was no irregularity
in the cancellation of the allotment at the instance of the Appellant,
who is guilty of having sworn a false Affidavit containing mis-
statement of facts.
2.12 Aggrieved by the Impugned Judgment, the Appellant has filed the
present Appeal.
3. The matter was heard by this Court on 13.07.2022, when judgement
was reserved and parties were directed to file written submissions and
citations relied upon. Both parties have since filed their written
submissions.
3.1 The learned Counsel for the Appellant has inter-alia made the
following submissions on behalf of the Appellant :
(i) The “ eligibility criteria ” under Clause 1(ii) of the Rohini
Scheme, cannot be termed as a “ disqualification ” from
allotment and was intended to exclude only such persons who
already had purchased or acquired an alternate plot from DDA
under its concessional allotment Scheme. The Appellant
contended that the Deepali Enclave Plot was purchased from
the open market and not under any beneficial Scheme of DDA
and if such an interpretation, as is sought to be argued by DDA
is given to this clause, a person would be barred for life-time
from purchasing a plot or flat once he is an Applicant under any
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Scheme of DDA. It was contended by the Appellant that the
condition set out under the head “ eligibility ” in the Rohini
Scheme by DDA has been interpreted by the Supreme Court
and this Court to mean “eligibility” at the time of application
under the Rohini Scheme.
(ii) It was further contended that the Appellant was required to
purchase an alternate flat to meet the needs of his family and
provide them a home. Since, DDA itself failed to comply with
the terms of the Rohini Scheme which were to provide
allotment of a flat within a period of 5 years from the date of
application, which instead of 1986 was done after almost 23
years in 2004. After failing to comply with the terms of
allotment, DDA cannot fault the Appellant for purchasing a plot
from the open market.
(iii) It is settled law that private builders are liable to compensate
home buyers if they fail to comply with contractual deeds and
possession with damages/refund with penal interest. DDA
should not be immune to such judicial interpretations.
(iv) The Affidavit as submitted by the Appellant, under the Rohini
Scheme cannot be declared false as, at the time of submission
of the said Affidavit on 14.10.2004, the Deepali Enclave Plot
was already sold by the Appellant by a registered sale deed
dated 06.09.2004. DDA while acknowledging this sale cannot
be permitted to cancel the allotment.
3.2 In support of his contentions, the Appellant has relied upon several
judgments of the Supreme Court and this Court including Chandigarh
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1
Housing Board v. Major General Devinder Singh (Retd.) & Ors. ;
2 3
DDA v. Jitender Pal Bhardwaj , Jai Kanwar Jain v. DDA , DDA v
4 5
Jai Kanwar Jain , DDA v. Dhanesh Kumar Jain upheld by the
6
Supreme Court in DDA v. Dhanesh Kumar Jain & Anr. and DDA v.
7
BB Jain .
4. The learned Counsel for DDA on the other hand submitted that:
(i) The Writ Petition filed suffers from severe delay and latches as
the allotment was cancelled on 04.03.2005, however the Writ
Petition came to be filed only in January, 2013.
(ii) It was submitted that as on the date of allotment i.e.
05.01.2004, the Appellant was the owner of another property in
Delhi which admeasured more than 65 sq. mts. and a false
affidavit was filed by him to secure the allotment from DDA. It
was further contended that at the time, the affidavit was
affirmed by the Appellant, there was suppression of facts
regarding the Deepali Enclave Plot. This suppression is akin to
playing a fraud upon DDA and hence the Appellant‟s allotment
was liable to be cancelled on this ground as well.
(iii) It was contended that clause 1(ii) of the Rohini Scheme
containing the “eligibility” clause has already been interpreted
1
(2007) 9 SCC 67
2
(2010) 1 SCC 146
3
2008 SCC Online Del 1358
4
2009 SCC OnLine Del 613
5
2013 SCC Online Del 4279
6
SLP(Civil) CC 5159/2014
7
2013 SCC Online Del 891
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by the Supreme Court in the Jitender Pal Bhardwaj case
(supra) to hold that the wordings of the Rohini Scheme have a
specific reference to “an eligibility” criterion and when such
term of exemption is “specific” and “ unambiguous” , it is not
possible to restrict its applicability or read any other meaning
into such clause.
(iv) The total area of the Deepali Enclave plot was 180 sq. mts and
not within the exception to the Eligibility Clause i.e. “less than
65 sq. mts” , hence, the Appellant was not entitled to any
allotment by DDA.
(v) The learned Counsel for DDA also contended that the reliance
placed by the Appellant on the foregoing judgments is
misconceived as these are inapplicable in the present case and
sought to distinguish them.
(vi) Lastly, it was submitted that the learned Single Judge has
rightly dismissed the Petition of the Appellant upholding the
cancellation by DDA.
5. We have considered the contentions of both the parties and the
judgements relied upon by them. It is necessary to advert to the
specific terms and conditions governing the Rohini Scheme which
form part of the Application Form. Sub-clause (ii) of Clause 1 of the
terms and conditions of the Rohini Scheme, which set out the
conditions for “eligibility” (hereinafter “Eligibility Clause”) thereof,
reads thus:
“1. Eligibility
.........
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(ii) The individual or his wife/her husband or any of his/her minor
children do not own in full or in part on lease-hold or free-hold basis
any residential plot of land, or a house or have not been allotted on
hire-purchase, basis a residential flat in Delhi/New Delhi or Delhi
Cantonment. If, however, individual share of the applicant in the
jointly owned plot or land under the residential house is less than 65
sq. mts., 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. mts. shall not, however,
be eligible for allotment .”
[Emphasis is ours]
5.1 Clause 8 of the terms and conditions of the Rohini Scheme contain the
“lease conditions” and sub-clause (vii), thereof, stipulates that if the
lease of the plot was obtained by any misrepresentation, misstatement
or fraud, or if there was any breach of the conditions of the lease, the
lease would be terminated, the Flat would be re-possessed by DDA
and the lessee would not be entitled to any compensation. Clause
8(vii) reads as follows:
“8 (vii) If the lease of the plot is obtained by any mis-
representation, mis-statement or fraud or if there is any breach of
the conditions of the lease, the lease will be determined and the
possession of the plot and the building thereon will be taken over
by the lessor and the lessee will not be entitled to any
compensation.”
5.2 An affidavit and an undertaking were required to be submitted by
every applicant under the Rohini Scheme. A sample proforma was
provided with the Rohini Scheme. Paragraph 1 of the Affidavit reads
as follows:
“That neither I nor my wife/husband or any of my minor children
own in full or in part on lease-hold or free-hold basis or on hire-
purchase basis any residential plot of land or a house or have
been allotted a residential flat in Delhi, New Delhi, Delhi
Cantonment .”
[Emphasis is ours]
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5.3 The operative part of the undertaking reads as follows:
“That I or my wife undertake that we or any one of our minor
children till they obtain the age of majority, would not acquire any
other lease hold/free hold residential Plot/Flat from the Delhi
Development Authority/President of India/Municipal Corporation
of Delhi.”
6. As discussed hereinabove, by the Impugned Judgment, the learned
Single Judge dismissed the petition of the Appellant inter-alia giving
a finding that there was no irregularity in the cancellation of allotment
by DDA.
6.1 The learned Single Judge after distinguishing the judgments relied
upon by the Appellant sought to rely upon the judgment of a
coordinate Bench of this Court in the matter of B.B. Jain case (supra)
to hold that the affidavit as submitted by an allottee would have to be
reckoned as on the date of provisional allotment and since the
provisional allotment was in January 2004, the Affidavit filed on
14.10.2004 was false. The relevant extract of the Impugned Judgment
is below:
“ 36. The main dispute in B.B. Jain was entirely different, viz.
whether allotment of plot would be bound by the terms of the
Rohini Residential Scheme, or by the terms of the Delhi
Development Authority (Disposal of Developed Nazul Land), Rules
1981. The DDA had refused allotment on the basis of terms of the
Scheme. The learned Single Judge of this Court held that the Nazul
Land Rules would apply and that, in terms thereof, the respondents
before it, were entitled to allotment of plot. Letters Patent Appeals,
preferred there against, by the DDA, were dismissed. While doing
so, the Division Bench clearly held, in para 7 of the report, [sic:
case] that “the crucial date on which the eligibility of the applicant
is to be examined is the date on which the allotment of a plot is
made by DDA”. Further, the Division Bench entered the following
cautionary, but important, caveat, at the concluding paragraph of
its judgment:
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“… We are, however, in agreement with the
learned counsel for the appellant that irrespective
of whether the respondent was eligible for
allotment of a plot under the Rohini Residential
Scheme or not, he ought not to have submitted a
false affidavit at the time of obtaining allotment of
plot from DDA. We, therefore, make it clear that
dismissal of these appeals will not come in the way
of DDA taking such action as is open to it in law,
on account of the respondent having filed a false
affidavit, at the time of obtaining allotment from
DDA, stating therein that neither he nor his wife
or any of his children owned in full or in part any
residential plot or flat in Delhi.”
(Emphasis supplied)
37. In the afore-extracted paragraph, the DDA has clearly held
that the affidavit would have to be reckoned as on the date of
provisional allotment of the plot . In the present case, provisional
allotment of the plot, in favour of the petitioner, admittedly took
place on 5th January, 2004. ”
[Emphasis is ours]
7. The Rohini Scheme, as applicable in the present case, has been the
subject matter of decisions of the Supreme Court as well as the High
Court. In the Jitender Pal Bhardwaj case (supra), the Supreme Court,
while discussing the wordings of the eligibility provision (Clause 1(ii)
of the Rohini Scheme), had dismissed the Appeal filed by DDA and
nd
upheld the allotment as the 2 flat owned by the allottee was less than
65 sq. mts. The Supreme Court also held that if DDA wanted to
prevent everyone who owned a plot, house or flat from securing an
allotment, the Eligibility Clause should have stated as such. It was
held that:
“9. Though the intention of Development Authorities in general is
to allot plots to the houseless, the policy and scheme has to be
given effect with reference to the specific wording of the eligibility
provision. If DDA wanted to bar everyone owning a
plot/house/flat from securing an allotment, it could have made its
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intention clear by simply providing that “anyone owning or
holding a long-term lease, any plot/house/flat in Delhi/New
Delhi/Delhi Cantonment area, will be ineligible for allotment
under this Scheme ”. But DDA chose to make the eligibility clause
subject to an exemption. If it chose to exempt certain categories,
such exemption has to be given effect to....”
[Emphasis is ours]
7.1 A Coordinate Bench of this Court in the Dhanesh Kumar Jain case
(supra) has, with reference to the wordings of the Eligibility Clause
held that the wordings of the clause point to “an applicant being
eligible at the stage of his making the application and lodging it with
DDA”. The applicant in the Dhanesh Kumar Jain case (supra) had
made an application under the Rohini Scheme in the year 1981.
Pursuant to the allotment of a flat by DDA in 2004, the allottee had
nd
requested DDA to transfer a 2 plot previously allotted, in the name
of his son, so as not to be hit by the Eligibility Clause. Instead, DDA
issued the applicant a show-cause notice stating ineligibility for the
allotment and thereafter cancelled the allotment on the ground of
concealment of facts. The applicant, in that case, had also acquired a
property from the open market albeit in the name of his son, after
applying for a flat under the Rohini Scheme. DDA had cancelled the
allotment contending that the fact that the allottee had another
property offended the essential Eligibility Clause of the Rohini
Scheme.
7.2 After discussing the decisions in the Jitender Pal Bhardwaj case
(supra) and Jai Kanwar Jain case (supra), the Court in Dhanesh
Kumar Jain case (supra), upheld a decision and directed DDA to
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handover the allotted plot as follows:
“7. This Court is unable to agree with DDA’s interpretation.
Clause 1(II) of the brochure is one of the eligibility conditions
and has been held to be so in the previous Division Bench
rulings. The argument of DDA now seems to be that it is not mere
eligibility condition but also a disqualification . Such
interpretation, in the opinion of the Court, is fraught with serious if
not dangerous consequences, as it would amount to arming the
Authority with the power to cancel the allotment if the allottee
acquires, subsequent to the allotment or possession, a property in
excess of 65 sq. metres. The wording of Clause 1(II) of the
brochure clearly points to the applicant being eligible on the
condition that at the stage of his making the application and
lodging it with DDA (which in this case was in 1981), he did not
own a plot or flat etc. the area of which exceeds 65 sq. metres .
The same condition applies in the case of joint property; the
portion falling to the share of the applicant should not exceed 65
sq. metres. This Court is alive to the circumstance that the
applicants are made to wait for inordinately long time and even
decades during which they will either be constrained or fortunate
enough to acquire property. That circumstance alone should not,
in the absence of clearly spelt-out disqualification conditions
render their application ineligible as is sought to be suggested .
8. For the above reasons, the Court sees no merit in the appeal...”
[Emphasis is ours]
7.3 The decision of the Coordinate Bench in the Dhanesh Kumar Jain
case (supra) was carried to the Supreme Court by DDA and was
6
upheld by the Supreme Court .
8. In order to better appreciate the present case and for the purpose of
reckoning the impact of the Affidavit, it is necessary to set out the
dates as applicable in the present case:
(i) Date of filing Rohini Scheme Application : 23.04.1981
(ii) Date of assurance of flat allotment : By April, 1986
(iii) Date of purchase of Deepali Enclave Plot : 16.06.1988
(iv) Date draw of lots was held by DDA : 05.01.2004
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(v) Date of provisional allotment by DDA : 19/27.01.2004
(vi) Dates money was deposited by the : 26.03.2004
Appellant for provisional allotment to 11.08.2004
(vii) Affidavit /Undertaking executed by : 25.03.2004
the Appellant for provisional allotment
(viii) Deepali Enclave Flat sold on : 06.09.2004
(ix) Affidavit/Undertaking/other documents : 14.10.2004
filed with DDA for provisional allotment
(x) Date of provisional allotment cancellation : 04.03.2005
8.1 As can be seen from paragraph 8 above, there are different dates at
play in the Rohini Scheme. There‟s an application date, a date when
the draw of lots was held for the Rohini Plot, a date when the
Allotment Letter was issued (provisional allotment date), payment
date(s) and allotment documents submission date. All these are steps
leading to provisional allotment only.
8.2 Additionally, the „ provisional ‟ Allotment Letter, although sets forth
the allotment of a specific plot, the same was not final and subject to
the fulfilment of conditions of eligibility as well as payment of
premium by an allottee. The penultimate paragraph of the Allotment
Letter also shows that “services/building activities” in the Flats
would be available later. This can be seen from the extract of the
Allotment Letter dated 19/27.01.2004 as below:
“ ALOTMENT-CUM-DEMAND LETTER
PROVISIONAL ALLOTMENT
FILE NO. F40(85)2004/RHN/85 DATED 19/1/2004
TO 27/1/2004
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TO,
NARENDER KUMAR WADHWAS [sic: WADHWA]
RP WADHWA.
217, DEEPALI F.F. PITAM PURA
APPLICATION NO. 111552
Priority no. 6280
Plot category MIG
Quota General
Sub: Allotment of plot no. 48, pocket nb, 1 block no. C Sector No.
27, measuring 60.00 sq mtr. In Rohini phase IV residential
scheme.
Dear sir/madam,
Directed to Inform you that in the computerized draw held on
5/1/2004 you have been allotted the above mentioned plot on
perpetual lease hold basis subject to fulfillment of the terms and.
conditions of eligibility as contained in the brochure of
registration. The allotment has been made at provisional rate for
the year 2003- 2004. You are required to pay the premium as per
the following schedule:-
(a) premium of the plot @ Rs.6192 (provisional)
for 60 sq mtr. Rs.371,520.00
(b) Corner Charges 10% of (a) above Rs.37,152.00
(c) Location Charges if plot is located
on a road of 24 meter wide or more
10% of (a) above Rs. 00.00
Grand Total Rs. 408.672.00
f. 35% of the premium of the plot Rs.143,035
Deduction
1. Registration Amount Rs.5,000.00
2. Interest on Registration Amount Rs.7,944.39
Rs.12,944.39
Net amount to be deposited within 60 days
from the date of issue of this letter i.e. latest
by 27/3/3004[sic : 27/3/2004] Rs.130,091
(ii) 50% of the premium to be deposited
by 26/5/204[sic : 26/05/2004] Rs.204,336
(iii) 15% of premium to be deposited on
receipt of further communication Rs.61,301
(issue the building activities in phase IV other than sector 28
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Block A and Sector 29 Block A-III, will be released by 1st July,
2004 and the services will be available by 31.12.2004, the building
activates in sector 28 block A and Sector 29 Block A-III will be
released by 1.1.2005 and the services will be a available by
31.3.2005.”
[Emphasis is ours]
8.3 The term “ provisional ” means temporary – existing only until
permanently replaced. This word appears to have been carefully
chosen as the “ actual ” or final allotment of a flat can only happen
upon the execution of a formal Lease Deed with DDA.
8.4 This appears to be the understanding of DDA as well. Possession of
the Rohini Plot and execution of a Lease Deed is stated in Clause 9
and 10(i) of the terms and conditions of the Rohini Scheme, which
discusses that delivery and possession of the Rohini Plot and
execution of the Lease Deed, shall be made only after all other
formalities are complied with. The relevant extract is below:
“9. DELIVERY OF POSSESSION OF PLOTS:
(i) The possession of the plot will be handed over after receipt of
the balance premium of land (i.e. the balance after adjusting the
earnest money and interest therein already received). After receipt
of the full payment and completion of all the formalities the
possession of the plot will be handed over. The allottee will have to
take over the possession on the date fixed for the purpose and
Rs.50/- will be charged as penalty every month upto six months
after which allotment will be liable to be cancelled if the
possession is not taken.
(ii) The lease-deed will be executed and duly registered after
receipt of the full premium and other amounts payable in respects
of the plot allotted to the successful applicant, and after handing
over possession of the plot.
10. EXECUTION OF LEASE DEED:
(i) The covenants and conditions under which the plot will be
held are contained in the form of the perpetual lease deed which
will have to be executed by the purchaser.
......”
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8.5 As can be seen from the paragraphs above, the various steps taken
before execution of a Lease Deed do not constitute a legal transfer of
title of a flat to an allottee. The conclusion of contract between the
parties takes place and it is only after receipt of full payment and
completion of all formalities, that the possession of a Flat is handed
over and a formal Lease Deed executed by the DDA.
9. It is not disputed that on 23.04.1981, the Appellant did not own any
other plot and hence was “ eligible” for the Rohini Scheme. The
Appellant purchased the Deepali Enclave Plot on 16.06.1988 and sold
it on 06.09.2004. DDA issued the „ provisional ‟ Allotment Letter for
the Plot on 19/27.01.2004. The Affidavit, Undertaking and other
documents filed by the Appellant with DDA were filed on
14.10.2004. Admittedly, as on 14.10.2004, the Appellant did not own
an alternate plot.
9.1 The learned Single Judge, relying on the B.B. Jain case (supra) held
that the date of reckoning of the affidavit is 05.01.2004 and hence the
affidavit filed on 14.10.2004 would have to be reckoned from
05.01.2004. Based on this date, the Impugned Judgment returned a
finding that on 05.01.2004, since the Appellant was owner of the
Deepali Enclave Plot, the Affidavit filed on 14.10.2004 was false and
that DDA had rightfully cancelled the allotment.
9.2 We are unable to persuade ourselves to agree with the reasoning of
the learned Single Judge in appreciation of the ratio of the Division
Bench judgment in B.B. Jain case (supra). The issue involved in the
B.B. Jain case (supra) was the relevant date to determine eligibility of
an applicant in the context of allotments made under the Rohini
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Scheme after coming into effect of DDA (Disposal of Developed
Nazul Land) Rules, 1981 (hereinafter “Nazul Land Rules”), and
consequently, whether such allotment would be governed by the
provisions of Nazul Land Rules or by the Rohini Scheme. While
holding that the Nazul Land Rules will apply, the Division Bench in
paragraph 7 of the B.B. Jain Case (supra) held that a binding contract
would come into force between the allottee and DDA when the offer
is accepted by an allottee. The Court in that context held that the date
of submission of an application to DDA could not be the date a
binding contract came into existence. The relevant extract of the B.B.
Jain case (supra) is below:
“7. The first question to be examined by us in this regard is as to
what would be the relevant date to determine the eligibility of
the applicant under the Scheme, whether it would be the date
on which the application is submitted or it would be the date
on which the allotment is made. Indisputably, mere submission
of application to DDA for allotment of a plot under its Rohini
Residential Scheme, 1981 does not constitute a binding contract
between the parties for allotment of a plot to the applicant under
the aforesaid Scheme. A binding contact would come into force
only when a specific plot is offered and such an offer is
accepted by the applicant under the Scheme. If no binding
contract between the parties came into force merely on
submission of an application under the aforesaid Scheme, it
would be difficult for us to say that the date of submitting an
application would be the crucial date to determine the eligibility
of the applicant for allotment of a plot.”
[Emphasis is ours]
9.3 There is nothing on record to show that rights of the parties in the
present case, stood settled or crystallized in 1981 or even in January
2004, since there was no actual transfer of a flat at that time, but only
an offer of a temporary/provisional allotment, which culminated into
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an acceptance of the provisional allotment on 14.10.2004 by the
Appellant.
9.4 Further, in B.B. Jain case (supra), the Coordinate Bench ruled against
DDA and while dismissing its Appeal, it added what appears as a
prelude to the judgment, as below:-
“11. For the reasons stated hereinabove, we find no merits in
the appeal [sic: appeals] and the same are hereby dismissed.
We are, however, in agreement with the learned counsel for the
appellant that irrespective of whether the respondent was
eligible for allotment of a plot under the Rohini Residential
Scheme or not, he ought not to have submitted a false affidavit
at the time of obtaining allotment of plot from DDA . We,
therefore, make it clear that dismissal of these appeals will not
come in the way of DDA taking such action as is open to it in
law, on account of the respondent having filed a false affidavit,
at the time of obtaining allotment from DDA, stating therein that
neither he nor his wife or any of his children owned in full or in
part any residential plot or flat in Delhi.”
[Emphasis is ours]
9.5 The Impugned Judgment relied on the B.B. Jain c ase (supra) to hold
that the averments made in an affidavit submitted on 14.10.2004
should be construed as having been made on 05.01.2004, i.e., the date
when temporary/provisional allotment was made by DDA.
9.6. In our opinion, that was not the import of the B.B. Jain case (supra).
The issue of the Affidavit filed being false can only come into play if
the date of reckoning of the Affidavit is taken as 05.01.2004. As
discussed above, the B.B. Jain case (supra) only decided the relevant
date of eligibility in the context of a conflict between the Nazul Land
Rules and the Rohini Scheme.
9.7 In any event, no binding contract came into force between the
Appellant and DDA on 05.01.2004, as that was just the date on which
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the draw of lots was held by the DDA.
10. We are fortified in our view by the judgment in the Dhanesh Kumar
Jain case (supra). The Coordinate Bench decision in the Dhanesh
Kumar Jain case (supra) has held that firstly, the eligibility condition
cannot be construed as a condition for disqualification. Secondly, that
the relevant date for eligibility would be “at the stage of his making
the application and lodging it with the DDA” , which in the Dhanesh
Kumar Jain case (supra) was 1981. Admittedly, this date in the
present case was 23.04.1981.
10.1 As on 23.04.1981, the Appellant did not own any other plot. The
Deepali Enclave Plot was sold on 06.09.2004, prior to submission of
documents for the provisional allotment. There was no concluded
contract between the Appellant and DDA until submission of the
documents for provisional allotment which were finally submitted on
14.10.2004. There was no opportunity of a “ final ”
allotment/execution of Lease Deed in favour of the Appellant in the
present case, as the DDA cancelled the provisional allotment on
04.03.2005.
10.2 Therefore, the cancellation of allotment by DDA cannot be sustained.
11. The contention of DDA that because the affidavit‟s affirmation was
carried in March 2004, and therefore, the intent of the Appellant to
perpetrate a fraud was established is untenable in our opinion. Fraud,
ordinarily would mean and include an act committed by a person or
his agent or with his connivance with an intent to deceive or induce
another person to enter into a contract or a transaction. The
commission of the act is an important facet, which would have
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occurred in the instant case only on submission of the Affidavit on
14.10.2004, and on that date, no alternate Plot was owned by the
Appellant.
11.1 Sale of immovable does not happen overnight. It may well be possible
that before the affidavit was sworn in March 2004, negotiation for
sale of Deepali Enclave Plot may have commenced. If the learned
Single Judge‟s finding is sustained, it could also result in DDA being
impelled to trigger penal measures against the Appellant.
12. Insofar as concerns the challenge led by DDA on the issue of delay
and laches, admittedly there has been a delay on the part of the
Appellant in approaching the Court as the Appellant filed the Writ
Petition after about 8 years post cancellation of his Plot by DDA.
12.1 The explanation given by the Appellant in the Writ Petition and the
Appeal was that the Appellant repeatedly approached DDA on open
hearing days in the week, being Monday and Friday, but received no
assurance, clarification or response from DDA.
12.2 DDA, with its counter-affidavit, placed on record two representations
filed by the Appellant and has referred to them in paragraph 4 as well.
These have admittedly not been responded to by DDA.
13. One of the factors which are to be borne in mind when discretion
under Article 226 of the Constitution is to be exercised is the fact that
normally, the Court will not come to the rescue of a litigant who has
approached the Court after an inordinate delay. However, inter-alia to
prevent an illegality or where there is an infraction of rights, the Court
will not hesitate to grant relief.
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8
13.1 The Supreme Court in the case of Tukaram Kana Joshi v. MIDC ,
re-affirmed by the Supreme Court in the case of Sukh Dutt Ratra v
9
State of H.P . , has held that the issue of condoning delay in a Writ
action would be a matter within the discretion of the Court and such
discretion, must be exercised fairly so as to promote the ends of
justice and upon substantially equitable principles.
“13. The question of condonation of delay is one of discretion
and has to be decided on the basis of the facts of the case at
hand, as the same vary from case to case. It will depend upon
what the breach of fundamental right and the remedy claimed
are and when and how the delay arose. It is not that there is
any period of limitation for the Courts to exercise their powers
under Article 226, nor is it that there can never be a case
where the Courts cannot interfere in a matter, after the
passage of a certain length of time. There may be a case where
the demand for justice is so compelling, that the High Court
would be inclined to interfere in spite of delay. Ultimately, it
would be a matter within the discretion of the Court and such
discretion, must be exercised fairly and justly so as to promote
justice and not to defeat it. The validity of the party's defence
must be tried upon principles substantially equitable.
(Vide P.S. Sadasivaswamy v. State of T.N. [(1975) 1 SCC 152 :
1975 SCC (L&S) 22 : AIR 1974 SC 2271] , State of
M.P. v. Nandlal Jaiswal [(1986) 4 SCC 566 : AIR 1987 SC 251]
and Tridip Kumar Dingal v. State of W.B. [(2009) 1 SCC 768 :
(2009) 2 SCC (L&S) 119] )
14. No hard-and-fast rule can be laid down as to when the
High Court should refuse to exercise its jurisdiction in favour
of a party who moves it after considerable delay and is
otherwise guilty of laches. Discretion must be exercised
judiciously and reasonably. In the event that the claim made
by the applicant is legally sustainable, delay should be
condoned . In other words, where circumstances justifying the
conduct exist, the illegality which is manifest, cannot be
sustained on the sole ground of laches. When substantial
8
(2013) 1 SCC 353
9
(2022) 7 SCC 508
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justice and technical considerations are pitted against each
other, the cause of substantial justice deserves to be preferred,
for the other side cannot claim to have a vested right in the
injustice being done, because of a non-deliberate delay. The
Court should not harm innocent parties if their rights have in
fact emerged by delay on the part of the petitioners. (Vide Durga
Prashad v. Chief Controller of Imports and Exports [(1969) 1
SCC 185 : AIR 1970 SC 769] , Collector (LA) v. Katiji [(1987) 2
SCC 107 : 1989 SCC (Tax) 172 : AIR 1987 SC 1353] , Dehri
Rohtas Light Railway Co. Ltd. v. District Board,
Bhojpur [(1992) 2 SCC 598 : AIR 1993 SC 802] , Dayal
Singh v. Union of India [(2003) 2 SCC 593 : AIR 2003 SC 1140]
and Shankara Coop. Housing Society Ltd. v. M.
Prabhakar [(2011) 5 SCC 607 : (2011) 3 SCC (Civ) 56 : AIR
2011 SC 2161] .”
[Emphasis is ours]
13.2 In the present case, DDA floated a scheme in the year 1981 wherein it
assured applicants that flats would be allotted within a period of 5
years, i.e., on or before 1986. However, this was not done. DDA
issued the Allotment Letter in January, 2004, after a delay of almost
23 years.
13.3 This Court cannot lose sight of the fact that DDA, which is a statutory
body, has failed to perform its duty within a reasonable timeframe. No
justifiable explanation has been submitted by DDA as to why DDA
delayed in making the allotments of the Plots under the Rohini
Scheme beyond 1986. Clearly, the huge delay caused by DDA would
have to be taken into account. The Court cannot repel the action of the
Appellant merely on the ground of failure on the part of the Appellant
in approaching the Court at an earlier date given the fact that it would
be palpably unfair and not equitable.
14. In view of the aforegoing discussion, we set aside the Cancellation
Letter dated 04.03.2005. Resultantly, DDA is directed to allot the
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Rohini Plot or an alternate flat to the Appellant. However, keeping in
mind the principles of equity, DDA is permitted to charge the
Appellant the rates applicable for similar plots as prevalent in the year
2013, the year the Appellant filed the present action, after giving the
Appellant credit for the payment already made.
14.1 Accordingly, the Appeal is allowed, the Impugned Judgment is set
aside. Given the circumstances, however, there shall be no order as to
costs.
(TARA VITASTA GANJU)
JUDGE
(RAJIV SHAKDHER)
JUDGE
FEBRUARY 10, 2023/SA
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