Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4986/2020 & CM APPL. 14382/2024
NEW AVANTIKA CGHS SOCIETY ..... Petitioner
Through: Mr. Ram Kumar, Advocate
versus
DDA ..... Respondent
Through: Ms. Shobhana Takiar, SC for DDA
with Mr. Kuljeet Singh, Advocate.
Mob: 9810962950
Email: shobhana_takiar@yahoo.co.in
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
J U D G M E N T
07.06.2024
MINI PUSHKARNA, J:
1. The present petition has been filed seeking direction to the
respondent-Delhi Development Authority (“DDA”), for allotment of land to
the petitioner-society in Dwarka Residential Scheme at Sector 6, Dwarka, as
per its seniority and availability of land. There is further prayer for reserving
one plot measuring 6500 sq. mts., as per the seniority of the petitioner-
society, in Dwarka Residential Scheme at Sector 6, Dwarka.
2. Facts as canvassed in the petition, are as follows:-
nd
2.1 The petitioner-society was registered on 22 September, 1983 at
Serial No. 657(G/H), for the purpose of obtaining land from the respondent-
DDA, for construction of flats for its members.
2.2 After completion of the required formalities, the name of the
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petitioner-society was forwarded by the Registrar, Cooperative Societies
(“RCS”) to the DDA for allotment of land under Group Housing Scheme, in
Dwarka, Karkardooma and Dhirpur Residential Scheme.
2.3 Accordingly, the respondent-DDA considered the case of the
petitioner-society for allotment of residential land for construction of Group
nd
Housing Flats for its members. Thus, the DDA vide its letter dated 02
November, 2001, asked the petitioner-society to deposit a sum of
₹1,09,47,300/- (Rupees One Crore Nine Lakhs Forty Seven Thousand Three
Hundred Only), towards 25% of the provisional premium payable by the
petitioner society, in respect of the plot to be allotted.
nd
2.4 In compliance of the aforesaid letter dated 02 November, 2001, the
petitioner-society deposited an amount of ₹ 1,10,00,000/- (Rupees One
nd
Crore Ten Lakhs Only), vide Challan No. 116770, dated 02 April, 2002.
th
2.5 Thereafter, vide letter dated 27 June, 2002, issued by the respondent-
DDA, the petitioner-society was informed that it had been allotted land at
Vishwas Nagar measuring 6500 sq. mts., though specific number of plot had
not been allocated and demand-cum-allotment letter was to follow,
subsequently. However, the petitioner-society requested the respondent-
DDA to change the location of the plot to be allotted to the petitioner-
society, from Vishwas Nagar to Dwarka Residential Scheme, in view of the
fact that the land proposed to be allotted to the petitioner-society at Vishwas
Nagar, was un-acquired and under litigation by the Resident Welfare
Association with the respondent-DDA.
2.6 Request of the petitioner-society was considered by the respondent-
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DDA, and vide letter dated 13 January, 2005, the petitioner-society was
informed that its request for change of locality from Vishwas Nagar to
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Dwarka Residential Scheme, had been acceded to. However, the petitioner-
society was informed that there were no plots of required size and category
available at the said time, and that allotment through computerised draw
shall be made, as and when plot of required size and category, was available.
th
2.7 Afterwards, by its letter dated 09 February, 2005, the petitioner-
society requested the respondent-DDA for allotment of plot in Dwarka. The
petitioner-society stated in the said letter that two other similarly placed
societies, namely, Bhagwati CGHS Ltd. and The Durga Puja CGHS Ltd.,
had been given allotment in Dwarka. The petitioner-society has also relied
th
upon the order dated 20 May, 2015 passed by the Division Bench of this
Court in W.P.(C) No. 6381/2014 , Sarv Priya Mahajan Co-operative Group
Housing Society Limited Versus The Registrar Co-operative Societies and
Another , to submit that the said society, which was similarly placed, and
junior to the petitioner-society, had already been allotted a plot in Dwarka.
Therefore, allotment should also be given to the petitioner-society, at an
early date.
2.8 The aforesaid request for allotment of plot at Dwarka, was reiterated
th
by the petitioner-society vide letter dated 26 April, 2009. The petitioner,
th
subsequently, made a request again vide letter dated 06 May, 2014,
wherein, it specifically stated that other similarly situated societies had
already got the allotment in their favour and had already completed
construction of their flats, and members therein, were residing.
th th th
2.9 Reminder Letters dated 07 October, 2014, 20 April, 2015, 08
th
October, 2015 and 10 July, 2019 were sent by the petitioner-society to the
Vice-Chairman, DDA requesting the respondent-DDA for allotment of land
for construction of flats for its members in Dwarka Residential Scheme.
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However, the petitioner-society got no response.
2.10 The petitioner sought information under the Right to Information Act,
th
2005 (“RTI Act”) to which a reply dated 27 July, 2020, was issued by the
respondent-DDA, wherein, it stated that land was available with the DDA in
CGHS Plot Nos. 18 and 19, Sector-6, Dwarka, measuring 11656 sq. mts.,
out of which area measuring 2844 sq. mts. was still un-acquired.
2.11 Thus, the present petition was filed, on the ground that land was
available with the DDA, and the petitioner-society can be considered for
allotment of land measuring 6500 sq. mts., for construction of flats for its
members.
3. During the pendency of the present petition, application being CM
APPL. 14382/2024 , was filed on behalf of the petitioner, praying for stay of
e-auction of the plot measuring 7795 sq. mts. in Sector 17, Dwarka, which
th
was fixed for auction, on 11 March, 2024.
4. On behalf of the petitioner, it is submitted as follows:-
4.1 The petitioner-society has been waiting for allotment of land since
1983. Other junior societies had already been given allotment in Dwarka
Residential Scheme, whereas, the petitioner-society has been ignored.
4.2 Land for allotment is available, at Sector 6, Dwarka and therefore, one
plot measuring 6500 sq. mts., out of the land available, may be allotted to
the petitioner-society, for construction of flats for its members.
4.3 The entitlement of the petitioner-society is 6500 sq. mts., whereas, the
area of the plot which is put to auction by the DDA, is 7795 sq. mts.
Therefore, the said plot of land ought to be allotted to the petitioner as 15%
variation of area on both sides, i.e., lower side and higher side, is
permissible on pre-determined rates. The petitioner-society is ready to make
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the payment to the tune of excess area which is beyond the permissible limit,
at the rate of 15% of the market value. Further, the respondent-DDA will not
incur any loss, if the aforesaid plot is reserved, for allotment to the
petitioner-society.
4.4 The amendment to the Delhi Development Authority (Disposal of
Developed Nazul Land) Rules, 1981 (“DDA Nazul Land Rules”), vide
th
notification dated 11 March, 2021, by which, the various residential plots
are to be sold by auction, will have only prospective effect and has no
retrospective effect.
4.5 The petitioner-society had already deposited 25% of the provisional
premium, long back in the year 2002. The petitioner-society cannot suffer
because of the fault of the respondent-DDA in proposing to allot a land at
Vishwas Nagar, which was under dispute, especially, when societies junior
to the petitioner-society, had already been allotted residential plots in
Dwarka.
4.6 The judgments, as relied upon by the respondent-DDA, pertain to
educational societies and not residential societies. Thus, it is prayed that
directions be issued to the respondent-DDA to allot a plot to the petitioner-
society, in Dwarka for construction of flats for its members.
5. On behalf of respondent/DDA, it is submitted as follows:-
5.1 There was no allotment in favour of the petitioner-society and by way
nd
of letter dated 02 November, 2001, only an offer had been given to the
petitioner-society. The said letter categorically stipulated that possession of
land shall be offered, only after receiving entire premium from the
petitioner-society. Thus, there was no specific plot allotted to the petitioner.
5.2 No plots of the required size and category were available to be
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allotted to the petitioner-society, and the same was informed by the
th
respondent-DDA, vide its letter dated 13 January, 2005.
nd
5.3 The provisional letter dated 02 November, 2001 was issued in terms
of the DDA Nazul Land Rules. The said Rules have been amended vide
th
notification dated 11 March, 2021, which provides that the land shall be
disposed of either by auction or by tender. The said amendment would be
applicable to the present case, and the petitioner cannot be allotted land, on
pre-determined rates. However, the petitioner-society is at liberty to
participate in the auction as per Rules.
5.4 No allotment of plots has been done on the basis of pre-determined
rates, after the amendment to the DDA Nazul Land Rules in the year 2021.
6. I have heard learned counsel for the parties and have perused the
record.
7. At the outset, this Court notes that the DDA earlier had a policy for
allotment of residential land, for construction of Group Housing Flats, on
pre-determined rates. Thus, upon the name of the petitioner-society being
forwarded by the RCS, the respondent-DDA proposed to offer allotment of
land to the petitioner-society under Group Housing Scheme in Dwarka,
Karkardooma and Dhirpur Residential Scheme, subject to availability of
land. It was further proposed to allot a land measuring 6500 sq. mts. to the
petitioner-society, on the basis of membership of the petitioner-society, as
nd
communicated by the RCS. Thus, letter dated 02 November, 2001 was
issued by the DDA, wherein, the petitioner-society was requested to opt for
the land at the aforesaid localities, and to deposit 25% proposed land
nd
premium. Relevant portions of the letter dated 02 November, 2001, issued
by the respondent-DDA, is extracted as under:
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“xxx xxx xxx
It is proposed to allot you a plot of land measuring 6500 Sq mtrs., in
Dwarka. Karkardooma and Dhirpur residential scheme for 114
members (The exact Size of the plot may, however, vary from the
approximate size). The size of the plot proposed to be allotted to you
has been determined on the basis of the membership of your society
as communicated by the Registrar of Co-operative Societies, New
Delhi.
2. The land for allotment is available with the DDA in the schemes
referred to above and, therefore, you may exercise your option for
the above areas in the order of preference. The allotment on the
basis of preference shall be made strictly in accordance with the
seniority. The society, which gives option for allotment of land only
in one or two localities and is not covered in that locality as per
seniority, it will lose its seniority and will be placed at tail-end of the
list of the society so received from the R.C.S . The societies exercising
their option for all the areas shall be required to pay the initial
amount as per first preference. The premium of land for allotment
shall be payable Rs. 4,812/- per sq.mtr. (provisional) for Dwarka and
Rs 10500/- per Sq.mtr.(provisional) for Karkardooma and Dhirpur.
The rate of premium to be charged shall be the pre determined rate for
the year 2001-2002 as may be determined by the Central Government.
The rates as stated in this letter are provisional subject to revision
and in case, the pre-determined rate for the year 2001-2002 to be
determined by the Central Govt. for the land price is higher, then the
amount shall become due because of such difference of rate, shall be
payable by the society. The society shall not make any objection to the
payment of the amount at such higher rate on any account what so-
ever. In case the pre-determined rate, as decided by the Central Govt.
for the year 2001-2002, is less, the excess amount paid by the society
shall be adjusted against the balance outstanding premium.
3. The inclusion of the name of society in the draw will be
provisional subject to
i) Verification and confirmation of the genuineness and seniority of
your society as per directions contained in judgement dated 10.5.91 in
CWP No. 2885/90 and by the RCS.
ii) That the offer has never been made in any previous draw.
iii) The orders of Hon'ble Court in CWP No 2849/2001 or in any other
suit or writ pending on the subject.
4. As per provision of DDA (Disposal of Developed Nazul Land)
Rules, 1981 and decision taken by DDA in respect of the earnest
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money, the premium for the land shall be payable in the following
manner .
a) 25% of the total premium alongwith earnest money @ 10% of the
total premium shall be deposited at the time of submitting the
application in the enclosed format for allotment of land.
b) 50% of the premium shall be deposited within 60 days of the issue
of the demand-cum-allotment letter.
c) Balance premium after adjusting the earnest money shall be
deposited before taking over possession of the land or within two
months of receipt of communication from the authority offering
possession whichever is earlier.
5. (i) 25% of the premium (Provisional) payable by you in respect of
plot proposed to be allotted to you in Dwarka comes to Rs. 78,19,500/-
(Rs. Seventy Eight Lacs Ninteen Thousand and Five Hundred Only)
and the amount of earnest money also payable in respect of the same
plot comes to Rs. 31,27,800/- (Rs. Thirty One Lacs Twenty Seven
Thousand and Eight Hundred Only). Thus the total amount payable at
the time of submission of form comes Rs. 1,09,47,300/-(Rs. One Crore
Nine Lacs Forty Seven Thousand and Three Hundred Only).
(ii) In case you apply for land in Karkardooma or Dhirpur then 25%
of the premium (Provisional) payable in respect of plot proposed to be
allotted to you in Karkardooma or Dhirpur comes to Rs. 17062500 (Rs
One Crore Seventy Lacs Sixty Two Thousand and Five Hundred Only)
and the amount of earnest money payable in respect of the plot comes
to Rs. 6825000/- (Rs. Sixty Eight Lacs and Twenty Five Thousand
Only) thus the total amount payable at the time of submission of form
comes to Rs. 23887500/- (Rs. Two Crore Thirty Eight Lacs Eighty
Seven Thousand and Five Hundred Only). You have to give your
order of preference for the localities in the application form .
xxx xxx xxx”
(Emphasis Supplied)
8. Reading of the aforesaid letter, issued by the DDA, clearly shows that
the aforesaid letter was in the nature of only a proposal by the DDA,
wherein, it proposed to allot land to the petitioner-society, in a locality, as
per the option made by the petitioner-society in terms of the proposal letter,
as aforesaid.
9. Subsequently, in terms of the option exercised by the petitioner-
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th
society, letter dated 27 June, 2002 was issued by the DDA, thereby,
proposing to allot land at Vishwas Nagar to the petitioner-society. Letter
th
dated 27 June, 2002, issued by the DDA, reads as under:
“xxx xxx xxx
From :-
Dy. Director (GH) Date: 27.06.2002
DDA
To,
The Hony. Secretary/President,
New Avantika CGHS Ltd.,
C-202, Vasundhara Apptt.
Plot No. 16, Sect-6, Dwarka, N. Delhi-45
Sub: Allotment of land at Vishwas Nagar.
Sir,
With reference to your letter dated 01-5-02 wherein you have
conveyed your option for allotment of land at Vishwas Nagar, in this
context, I am directed to inform you that the competent authority has been
pleased to allot your society land at Vishwas Nagar measuring 6500 sqr.
Mtrs. Specific number of plot and demand-cum-allotment letter shall
follow .
Yours faithfully
Dy. Director (GH)
xxx xxx xxx”
(Emphasis Supplied)
10. Perusal of the aforesaid letter clearly shows that no specific plot was
allotted to the petitioner-society, and demand-cum-allotment letter, was to
follow later on.
11. Subsequently, the petitioner-society requested for change of locality
from Vishwas Nagar to Dwarka, which request was accepted by the
th
respondent-DDA, vide letter dated 13 January, 2005, in the following
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terms:
“xxx xxx xxx
Date: 13/01/05
No. F.7 (04) 2001/GH/DDA/6018
From: Dy. Director-GH,
Delhi Development Authority
To
The Hony. Secretary/President,
The New Avantika CGHS Ltd;
C-202, Vasudhara Apptts.,
Plot No. 16, Sector-6,
Dwarka, New Delhi-110075.
Sub.: Regarding change of locality from Vishwas Nagar to Dwarka
For Re-allotment of land to the New Avantika CGGS Ltd. having
Regn. No.: 657/83 (GH).
Sir,
With reference to your letter dated 04.08.2004 on the subject cited
above, I am directed to inform you that your request for change of plot
from Vishwas Nagar to Dwarka has since been acceded to. However,
presently there are no plots of the required size and category.
As and when the same become available, allotment through
computerised draw shall be made and the same shall be intimated to
you .
This is for information please.
Yours faithfully,
Dy. Director GH
Delhi Development Authority
xxx xxx xxx”
(Emphasis Supplied)
th
12. The aforesaid letter dated 13 January, 2005 issued by the DDA,
categorically states that, though the request of the petitioner-society for
change of plot from Vishwas Nagar to Dwarka, had been acceded to,
however, there were no plots of the required size and category available at
the said time. It was further stated clearly that as and when the plots become
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available, allotment through computerized draw, shall be made.
13. Thus, it is apparent that there was no allotment of any specific plot in
favour of the petitioner. No vested right was conferred upon the petitioner-
society, as no allotment of any specific plot had taken place in favour of the
petitioner-society. There was only a proposal for allotment of plot to the
petitioner-society, which cannot form the basis for claiming any right by the
petitioner-society. A mere proposal or offer will not confer any legal right
upon the petitioner-society, in the absence of any formal allotment in its
favour.
14. Subsequently, the DDA Nazul Land Rules were amended vide
th
notification dated 11 March, 2021, as per which, allotment of nazul land,
shall be made on payment of such premium, as may be determined, either by
auction or by tender. The submission of the DDA in this regard, as reflected
in its counter affidavit, is as under:
“xxx xxx xxx
8. That in exercise of the powers conferred by clause (j) of sub- section
(2) of Section 56, read with sub-section (3) of Section 22 of the Delhi
Development Act, 1957, the Central Government after consultation
with the Authority, has made Delhi Development Authority (Disposal
of Developed Nazul Land) Rules, 1981. These rules were further
amended vide. notification dated 11th March 2021 and vide amended
rule 8 the allotment of Nazul land for any other purpose (save as
otherwise provided in sub-rule (2) of rule 4, rule 5 and 6) shall be
made on payment of such premium as may be determined either by
auction or by tender in accordance with the provisions of Chapter III or
Chapter IV as the case may be, of these rules.....
xxx xxx xxx”
(Emphasis Supplied)
15. Thus, it is clear that the earlier policy of the DDA, with respect to
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allotment of land to Group Housing Societies for construction of flats at pre-
determined rates, was amended and such allotment, after amendment, could
be made only on payment of such premium, as may be determined either by
auction or by tender. Therefore, in the absence of any specific allotment in
its favour, the petitioner-society cannot claim allotment at pre-determined
rates, when the policy in this regard, has already changed. The petitioner-
society cannot set up any claim contrary to the amended policy.
16. It is undisputed, that the proposal for allotment of land, in the present
case, was made under the DDA Nazul Land Rules. Thus, when an
amendment has taken place in the said Rules in the interregnum, any
subsequent allotment would essentially, have to be made in terms of the
amended Rules.
17. There was no formal allotment in favour of the petitioner and, hence,
no claim can be asserted by the petitioner for allotment on the basis of the
rule position, which existed prior to the amendment, and change in the
policy. No direction can be given to an authority, to act against its Rules and
Regulations.
18. Holding that no direction can be issued to the DDA to make an
allotment, contrary to the amended DDA Nazul Land Rules, this Court in
the case of Ram Chander Educational Society and Another Versus Delhi
1
Development Authority and Another , has held as follows:
“xxx xxx xxx
18. The main issue in the present petition is whether the Petitioners'
pending application for allotment of an institutional plot ought to be
considered by the DDA and Respondent No. 2 in terms of the Nazul
Land Rules as they stood prior to the amendment brought about by
1
(2011) SCC OnLine Del 611
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the notifications dated 9th December 2004 and 19th April 2006 ? The
Petitioners submit that the said question should be answered in the
affirmative.
19. In the present case it is not in dispute that there was no formal
allotment of an institutional plot made in favour of Petitioner No. 1
prior to the notification dated 9th December 2004 amending the
Nazul Land Rules . The application of Petitioner No. 1 for a changed
sponsorship letter was pending as on that date. Before the allotment
could materialize the Nazul Land Rules were amended. The
Petitioners have not challenged the amendments. They contend that
the decision already taken by the DDA to allot a plot in Zone 17
Dwarka in favour of Petitioner No. 1 should be given effect to. It is
contended that the delay in Respondent No. 2 issuing a sponsorship
letter cannot deprive Petitioner No. 1 of a vested right to allotment of
the plot that already stood earmarked in its favour by the IAC in terms
of the unamended Nazul Land Rules.
20. The decision of the Supreme Court in Sethi Auto Service Station v.
2
Delhi Development Authority is a complete answer to the issue that
arises in the present petition. The question that was considered in the
said case was whether the applications for resitement of the two
petrol pumps of the Petitioners in that case were required to be
considered in terms of the policy that was in force prior to 1993 or in
terms of the policy that stood changed thereafter in June 2003 .
Under the old policy, if the Petitioners were able to show that there
was a drop in the sales of petrol in their pumps on account of a
planned scheme or project, resitement would be permitted. Under the
changed policy, resitement would not be permitted for such a reason.
The Petitioners in the said case, as in the instant case, did not
challenge the change in the policy. However, they contended that the
decision already taken by the DDA to allot alternative sites to the
Petitioners in terms of the old policy should be given effect to. Just as
in the present case, it was contended by the Petitioners in that case
that “the mere fact that DDA chose to sit over the recommendations
and did not issue formal orders of allotment could not rob the
appellants of their valuable right to such allotment.” As in the
present case, the stand of the DDA in the said case before the High
Court was that such allotments could no longer be made after the
guidelines for resitement of petrol outlets were revised in June 2003.
In terms of the June 2003 guidelines DDA had to dispose of land for
petrol outlets only through the competitive mode of tender or
auction.
2
(2009) 1 SCC 180
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21. The Supreme Court in Sethi Auto Service Station upheld the
dismissal of the writ petitions and subsequent appeals of the
Petitioners in that case by the High Court. The Supreme Court first
held that (SCC, p. 185) “notings in a department file did not have the
sanction of law in order to put an effective order”. Therefore, the mere
recommendation of the Technical Committee of the DDA did not
confer any legal right on the Petitioners. The decision of the Technical
Committee of the DDA did not fructify (SCC, p. 186) “into an order
conferring legal right upon the appellants.” It further held (SCC, p.
187) that “mere favourable recommendations at some level of the
decision-making process, in our view, are of no consequence and shall
not bind DDA”. It was held on facts that the doctrine of legitimate
expectation was not attracted since the older policy merely laid down
a criterion for resitement and did not oblige the DDA to provide land.
Therefore, at best, appellants had an expectation of being considered
for resitement. Finally, in para 39 of the judgment, it was observed as
under (SCC @ p. 193):
“39. We are convinced that apart from the fact that there is
no challenge to the new policy, which seems to have been
conceived in public interest in the light of the changed
economic scenario and liberalised regime of permitting
private companies to set up petrol outlets, the decision of
DDA in declining to allot land for resitement of petrol
pumps, a matter of largesse, cannot be held to be arbitrary
or unreasonable warranting interference. Moreover, with
the change in policy, any direction in favour of the
appellants in this regard would militate against the new
policy of 2003 . In our opinion, therefore, the principle of
legitimate expectation has no application to the facts at
hand.”
22. In the considered view of this Court, the above decision in Sethi
Auto Service Station v. Delhi Development Authority answers the issue
in the present case against the Petitioners. In terms of the said
decision, which was rendered in similar facts and circumstances, the
pending application of Petitioner No. 1 for allotment of an
institutional plot had necessarily to be considered only in terms of
the amended Nazul Land Rules which did not permit allotment by
way of recommendation but only by way of public auction. It is
significant that there is no „savings‟ clause in the amended Nazul
Land Rules permitting applications pending on the date of the
amendment to be considered in terms of the pre-amended Rules. The
intention therefore was that once the Nazul Land Rules were
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amended they would apply to all pending applications for allotment
of institutional plots as well. The amendments were in fact
prospective since they were not meant to reopen cases where formal
allotments had already been made. However in the instant case, prior
to the amendments no formal allotment of a plot in Zone 17 was
made in favour of Petitioner No. 1.
23. The decisions in Mahabir Vegetable Oils (P) Ltd. v. State of
Haryana and Glory Public School are distinguishable on facts. A
explained in Sethi Auto Service Station, the Petitioners could not
possibly have a legitimate expectation that notwithstanding the change
in the Nazul Land Rules a plot would be allotted in favour of
Petitioner No. 1. The statement on behalf of Respondent No. 2 before
the Civil Judge was made at a time when a change had already been
made to the Nazul Land Rules and no allotment by way of
recommendation was possible as on that date. No such statement
could bind the DDA which was not a party to the suit. In any event,
there is no estoppel against law. The Petitioners have not challenged
the changed policy of the GNCTD, as reflected in the amendments to
the Nazul Land Rules. No direction can possibly issue to the DDA to
make an allotment in favour of Petitioner No. 1 contrary to the
amended Nazul Land Rules .
xxx xxx xxx”
(Emphasis Supplied)
19. It is also noted herein, that the initial proposal to allot land in favour
of the petitioner-society, was made by the DDA by way of its letter dated
nd th
02 November, 2001. Subsequently, vide letter dated 13 January, 2005, the
request of the petitioner-society for change of locality to Dwarka, was
acceded to. The petitioner-society had been communicated in the year 2005
itself that allotment of land shall be made, as and when plot of the required
size and category, was available in the locality of Dwarka. Thereafter, as per
the documents on record, the petitioner made a request for allotment of land
th
in its favour, in the year 2005 by way of letter dated 09 February, 2005 and
th
26 April, 2005. Thereafter, the petitioner-society did not take up the matter
with the DDA for a long time and it is only in the year 2014 and 2015 that
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the petitioner-society made various representations to the DDA.
Subsequently, the petitioner-society sent reminders to the DDA in the year
2019 and 2020, whereupon, the present petition came to be filed in the year
2020. Thus, it is apparent that the petitioner-society has approached this
Court at a very belated stage, when the initial proposal letter was issued in
its favour in the year 2001, followed by proposal in its favour in the year
2005, when it was proposed to allot land in its favour in Dwarka, as and
when the plot of the required size and category, was available.
20. In similar circumstances, where a society, claimed allotment of land
in its favour, on the basis of in-principle approval of the Lt. Governor, the
same was repelled by the Supreme Court, in the case of Delhi Development
3
Authority Versus Hello Home Education Society , in view of the
subsequent change in the policy, which entailed transfer of land by public
auction only, and not by way of any allotment. Further, the Supreme Court
also rejected the claim of the society, for allotment of land in the said case,
on the ground that there was inordinate delay on the part of the said society
to approach the Court. The Supreme Court held that the society ought to
have exercised due diligence and should have claimed its rights within a
reasonable time. Thus, Supreme Court, in the aforesaid case, has held, as
follows:
“xxx xxx xxx
19.1. Taking up the last point first as raised by the appellant that there was
inordinate delay in approaching the Court, we find much substance in the same.
It is well settled that the litigant who is not diligent cannot invoke the
extraordinary jurisdiction of the High Court under Article 226 of the
Constitution of India. The in-principle approval having been granted on 24-3-
2003, there was no justification for the Society to wait for 11 years to file a writ
3
(2024) 3 SCC 148
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petition in the year 2014 on the basis of the said in-principle approval of the
Lt. Governor. The Society ought to have exercised due diligence and should
have claimed its rights within a reasonable time from the date of said in-
principle approval if the same was not being implemented and the allotment
letter was not being issued. There is no justifiable or satisfactory explanation
for the said period of inordinate delay of 11 years. The writ petition ought to
have been dismissed on this ground alone. Reference can be made to a recent
judgment of this Court in State of Orissa v. Laxmi Narayan Das [State of Orissa
v. Laxmi Narayan Das, (2023) 15 SCC 273 paras 25, 30, 32, 33 & 34 : 2023
SCC OnLine SC 825 : 2023 INSC 619 paras 25-34] , SCC paras 25, 30, 32, 33
and 34 are extracted hereunder:
“25. In NDMC v. Pan Singh [NDMC v. Pan Singh, (2007) 9 SCC 278 : (2007) 2
SCC (L&S) 398] , this Court has opined that though there is no period of
limitation provided for filing a writ petition under Article 226 of the
Constitution of India, yet ordinarily a writ petition should be filed within a
reasonable time . In the said case the respondents had filed the writ petition after
seventeen years and the court, as stated earlier, took note of the delay and laches
as relevant factors and set aside the order passed by the High Court which had
exercised the discretionary jurisdiction.....
xxx xxx xxx
19.4. The policy decision taken on 15-12-2003 clearly mentioned that allotment
of land would be made through auction and also included those cases where
allotment was yet to be made. Subsequently, the 1981 Rules were amended in
April 2006, whereby also the provision for allotment was replaced by auction
or by tender. There was no challenge either to the policy decision of December
2003 or to the amendment of 2006 to the 1981 Rules. Merely seeking a writ of
mandamus on the strength of the in-principle approval given by the Lt.
Governor would not be maintainable in view of the change situation which
had arisen much earlier to the filing of the writ petition .
xxx xxx xxx
19.9. Whether the change in policy was retrospective or not is not an issue here.
The change in policy decision taken on 15-12-2003 clearly mentions that even
pending allotment matters were to be dealt with according to said change i.e. of
holding auctions. This decision of change in policy brought about on 15-12-
2003 was never challenged as is apparent from the relief claimed in the
petition. Therefore, the settled procedure to be followed on or after 15-12-2003
was only to provide land by way of auction of educational sites and not by way
of any allotment. Before that date there was no allotment of land in favour of
the respondent. Even otherwise it is the settled position of law that whenever
the State intends to transfer any land resort should be by public auction or
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inviting tenders.
xxx xxx xxx”
(Emphasis Supplied)
21. It is well settled in law that right of a state or a statutory authority to
change its policy from time to time under the changing circumstances,
cannot be questioned. Thus, when amendment has been brought in the DDA
Nazul Land Rules, clearly providing that disposal of nazul land can be done
only through auction or tender, the DDA cannot deviate from the new
amended policy to allot land to the petitioner-society at pre-determined
rates. The petitioner-society is at liberty to take part in the auction process as
per the amended policy, however, it cannot insist on allotment of land on
pre-determined rates, as per the old policy. Besides, it is also to be noted that
the petitioner-society has not challenged the new amended policy and would
be bound by the prevalent policy.
22. Thus, in the case of State of Punjab and Others Versus Ram
4
Lubhaya Bagga and Others , Supreme Court has held, as follows:
“xxx xxx xxx
23. The right of the State to change its policy from time to time,
under the changing circumstances is neither challenged nor could it
be . Let us now examine this new policy.
xxx xxx xxx
25. ...... So far as questioning the validity of governmental policy is
concerned in our view it is not normally within the domain of any
court, to weigh the pros and cons of the policy or to scrutinize it and
test the degree of its beneficial or equitable disposition for the
purpose of varying, modifying or annulling it, based on howsoever
sound and good reasoning, except where it is arbitrary or violative of
any constitutional, statutory or any other provision of law. When
Government forms its policy, it is based on a number of
4
(1998) 4 SCC 117
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circumstances on facts, law including constraints based on its
resources. It is also based on expert opinion. It would be dangerous
if court is asked to test the utility, beneficial effect of the policy or its
appraisal based on facts set out on affidavits. The court would
dissuade itself from entering into this realm which belongs to the
executive .....
xxx xxx xxx”
(Emphasis Supplied)
23. Law in this regard is very clear, that “when regulations or schemes, or
policies change, applicants for their benefits have no inherent right to be
considered under the old policy; rather the consideration has to be under the
new regime, unless the latter contains an express stipulation to the contrary.”
5
(See: Ritu Maheshwari Versus Promotional Club ). Thus, Supreme Court
in the case of Ritu Maheshwari (supra) , has held as follows:
“xxx xxx xxx
23. In Usman Gani J. Khatri v. Cantonment Board [Usman Gani J.
Khatri v. Cantonment Board, (1992) 3 SCC 455] this Court affirmed
the decision of the High Court, which held that old rules could not be
applied, and that new rules were applicable , for considering
applications for sanction of buildings. It was held that : (SCC p. 469,
para 24)
“24. … In any case, the High Court is right in taking the view
that the building plans can only be sanctioned according to the
building regulations prevailing at the time of sanctioning of
such building plans. At present the statutory bye-laws
published on 30-4-1988 are in force and the fresh building
plans to be submitted by the petitioners, if any, shall now be
governed by these bye-laws and not by any other bye-laws or
schemes which are no longer in force now. If we consider a
reverse case where building regulations are amended more
favourably to the builders before sanctioning of building plans
already submitted, the builders would certainly claim and get
the advantage of the regulations amended to their benefit.”
24. Likewise, in Howrah Municipal Corpn. v. Ganges Rope Co. Ltd.
[Howrah Municipal Corpn. v. Ganges Rope Co. Ltd., (2004) 1 SCC
5
(2022) 9 SCC 560
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663] a similar question arose for consideration. The municipal
corporation was required to decide an application for sanction, in a
time-bound manner, by the court. The applicable rules changed. The
corporation decided the application in the light of the amended
rules. This Court, negativing the applicant's contention that it had a
right to be considered under the old rules, held as follows : (SCC pp.
675-76, paras 21 & 28)
“21. The provisions of the Act, therefore, contemplate an
express sanction to be granted by the Corporation before any
person can be allowed to construct or erect a building. Thus,
in ordinary course, merely by submission of application for
sanction for construction, no vested right is created in
favour of any party by statutory operation of the provisions.
…
*
28. In our considered opinion, by the order of the Court dated
23-12-1993 observing that the petitioner is “not prevented
from applying” for further sanction of additional floors above
fourth floor and the “expectation” expressed in the
subsequent order of the Court dated 24-6-1994, from the
Corporation to decide the pending application for sanction
within four weeks, no vested right in favour of the respondent
Company can be said to have been created to obtain sanction
on the unamended rules, as they existed on the date of their
second application. ”
25. In the light of the above position in law, it is clear that the club
could not have claimed that its application had to be dealt with in
terms of the old scheme, which had ended in 2012 . The direction of
the High Court, could only have meant that the applications had to be
revived, and dealt with the scheme prevailing as on the date of its
consideration i.e. after 31-7-2019 [Promotional Club v. Noida, 2019
SCC OnLine All 5369] . The interpretation placed by the High Court,
that there were existing plots, which could have been dealt with under
the old scheme is entirely misplaced. In such events, given that the
legality of closure of the old scheme attained finality, there was no
question of any land or plot being attached or belonging as it were
to an old scheme. If any land or plot, or industrial unit were in fact
“left-over” it was always up to the development authority or agency
(here Noida) to determine how they are to be dealt with. The
directions issued in contempt proceedings, which are subject-matter
of another appeal, are accordingly held erroneous.
xxx xxx xxx”
(Emphasis Supplied)
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24. A similar question arose before a Division Bench of this Court, when
on account of an earlier amendment to the DDA Nazul Land Rules, the
claim of various education societies for allotment of land was not considered
by the DDA. Hence, dealing with claim of various parties for allotment of
land at pre-determined rates under the DDA Nazul Land Rules, the learned
Division Bench categorically held, that since no allotment had matured prior
to the amendment in the said Rules, it is the mode of auction, which is
available for disposal of the nazul land under the existing Rules, after its
amendment. Thus, in the case of Bhagwan Mahavir Education Society
6
(Regd.) Versus Delhi Development Authority , Division Bench of this
Court held as follows:
“xxx xxx xxx
The claim of the petitioners for entitlement to land at pre-determined
rates under the Delhi Development Authority (Disposal of Developed
Nazul Land) Rules, 1981 {„the said Rules‟ for short} for running of
higher and technical education institutes, schools and hospitals has
given rise to this batch of writ petitions .
2. The common grievance of the petitioners is that their cases for
allotment of Nazul land at pre-determined rates was at an advanced
stage after due clearances but on the eve of the proposed allotment, the
policy was changed, and all land is now being disposed of only by way
of public auction. The nature of activities set out above are stated to
entitle the petitioners to land at cheaper rates i.e. pre-determined rates
rather than through auction mode.
xxx xxx xxx
4. The Delhi Development Authority („DDA‟ for short) is a statutory body
established under the Delhi Development Act, 1957 („the DDA Act‟ for
short) for purposes of development of Delhi according to plan and for
matters ancillary thereto. The developed and undeveloped lands in
Delhi could be placed at the disposal of the DDA by the Central
Government in terms of Section 22 of the DDA Act , which reads under:
6
2011 SCC OnLine Del 1501
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“ 22. NAZUL LANDS
(1) The Central Government may, by notification in the Official
Gazette and upon such terms and conditions as may be agreed
upon between that government and the Authority, place at the
disposal of the Authority all or any developed and undeveloped
lands in Delhi vested in the Union (known and hereinafter
referred to as “nazul lands”) for the purpose of development in
accordance with the provisions of this Act.
(2) No development of any nazul land shall be undertaken or
carried out except by, or under the control and supervision of,
the Authority after such land has been placed at the disposal of
the Authority under sub-section (1).
(3) After any such nazul land has been developed by, or under
the control and supervision of, the Authority, it shall be dealt
with by the Authority in accordance with rules made and
directions given by the Central Government in this behalf.
(4) If any nazul land placed at the disposal of the Authority
under sub-section (1) is required at any time thereafter by the
Central Government, the Authority shall, by notification in the
Official Gazette, replace it at the disposal of that government
upon such terms and conditions as may be agreed upon
between the government and the Authority.”
xxx xxx xxx
26. To constitute an enforceable right, the decision of the statutory
authority has to be duly communicated. In the present case, there was
no such communication. In view of the aforesaid factual matrix,
regardless of any internal decision taken prior to the final picture that
has emerged under the Rules, since no allotment had actually been
made till then, it is the finally amended Rules which would govern the
rights and obligations of the parties. We have to thus see the Rules as
they stood in 2006 with the amendments carried out therein with effect
from 19.04.2006.
xxx xxx xxx
29. We are, thus, of the considered view that the interpretation of Rules
placed before us by the DDA is the correct view and the petitioners have
no case in this behalf in view of no allotment having matured in their
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favour prior to the amendments of the said Rules .
xxx xxx xxx
32. We are, thus, of the unequivocal view that under the existing Rules,
it is the mode of auction which is available for disposal of the Nazul
land for higher and technical education institutes, schools and
hospitals other than cases which fall within the domain of Rule 5 r/w
Rule 20 of the said Rules. The petitioners do not fall in this category .
xxx xxx xxx”
(Emphasis Supplied)
25. In the present case, the undisputed fact that emerges is that, there was
no formal allotment of any plot, in favour of the petitioner-society, prior to
th
the amendment of the DDA Nazul Land Rules, vide notification dated 11
March, 2021. The case of the petitioner-society, for allotment of a specific
plot on the basis of pre-determined rates, was still pending with the DDA,
when DDA Nazul Land Rules, were amended. Therefore, the petitioner-
society cannot proclaim any right for allotment of land on pre-determined
rates, on the basis of a mere proposal, when no final allotment of a specific
plot had matured in its favour under the earlier policy. There is no vested
right in favour of the petitioner, in the absence of any formal allotment in its
favour. A proposal to allot land to the petitioner-society, does not confer,
any right upon the petitioner-society, for allotment of land.
th
26. Reliance by the petitioner upon the order dated 20 May, 2015 passed
by the Division Bench of this Court in W.P.(C) No. 6381/2014 , Sarv Priya
Mahajan Co-operative Group Housing Society Limited Versus The
Registrar Co-operative Societies and Another , is also misplaced. The said
order cannot come to the aid of the petitioner, as the said order was passed
in the year 2015, i.e., much prior to the amendment to the DDA Nazul Land
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Rules in the year 2021. Therefore, the contention of the petitioner, that a
society, junior to it, has already been allotted plot by the DDA under the old
policy, holds no water.
27. Further, it is the clear stand of the DDA, that no society has been
allotted residential plots at pre-determined rates, after the amendment to the
DDA Nazul Land Rules, in the year 2021.
28. In view of the detailed discussion hereinabove, no merit is found in
the present petition.
29. This Court notes that the petitioner-society had deposited a sum of
₹1,10,00,000/- (Rupees One Crore Ten Lakh Only) with the DDA vide
nd nd
Challan No. 116770 dated 02 April, 2002, pursuant to the letter dated 02
November, 2001 issued by the DDA, proposing allotment of land to the
petitioner-society under Group Housing Scheme. Accordingly, DDA is
directed to refund the aforesaid amount to the petitioner-society forthwith. In
the facts and circumstances of the present case, it is directed that the
aforesaid amount shall be refunded by the DDA, along with interest at the
rate of 6% per annum, from the date of deposit till the date of refund.
30. Consequently, the present petition is disposed of, along with the
pending application, in the aforesaid terms.
(MINI PUSHKARNA)
JUDGE
JUNE 7, 2024
c/kr
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