Delhi Devt.Auth vs Jitender Pal Bhardwaj

Delhi Development Authority ... Petitioner

Vs.

Jitender Pal Bhardwaj ... Respondent

O R D E R

Delay condoned.

2. More than 28 years ago, on 23.3.1981, the respondent

made an application to the Delhi Development Authority

(`DDA' for short) for allotment of a plot under the Rohini

Scheme. The eligibility requirement prescribed in clause

1(ii) of the Terms and Conditions of the Scheme is

extracted below:

"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 freehold 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.m, 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.m, shall not, however, be eligible for allotment."

2 When he made the application in 1981, neither the

respondent nor any of his family members owned any land or

plot or flat in Delhi and gave declaration to that effect.

3. Nearly, a quarter century later, in a computerized

draw, respondent was allotted plot No.158, Block/PKT-C2,

Sector-28, Rohini, measuring 60 sq.m, vide letter of

allotment dated 3/7.10.2005. As required by DDA in its

communication dated 11.3.2006, the respondent submitted

necessary documents and affidavits under cover of his

letter dated 31.3.2006 wherein he disclosed, in pursuance

of the above eligibility condition, that he had acquired a

flat measuring less than 65 sq.m in United India Apartments

(Flat NO. 151/A), Mayur Vihar Phase-I, Delhi. He also

deposited the entire premium in regard to the allotted plot.

4. After issuing a show cause notice dated 28.2.2007, DDA

by communication dated 28.5.2007, cancelled the allotment

on the ground that the respondent was already the owner of

a flat. Feeling aggrieved, the respondent approached the

High Court. He submitted that when he made the application

for allotment, he did not have any land, plot or flat. He

further submitted that in the year 1994, he had acquired a

flat measuring 62.22 sq.m which was less than 65 sq.m and 3

therefore his eligibility for allotment of a plot by DDA,

was not affected. He also produced a certificate from the

concerned society and other documents to show that the flat

measured less than 65 sq.m. A learned Single Judge allowed

the writ petition and quashed the cancellation of

allotment, holding that there was no violation or breach on

the part of respondent. The appeal filed by DDA was also

dismissed by a Division Bench. Leave to Appeal is sought in

respect of the said order.

6. The entire issue depends upon the interpretation of

Clause 1(ii) of the Terms and Conditions of the Rohini

Scheme. The said Clause makes an applicant ineligible for

allotment, if the applicant or his/her spouse and minor

children own or hold in Delhi/New Delhi/Delhi Cantonment :

(i) any residential plot of land or a house either in full

or in part either on leasehold or freehold basis, or (ii)

any residential flat on hire-purchase basis. There is

however an exemption. Any individual share held by the

applicant in a jointly owned plot or land under the

residential house which is less than 65 sq.m, will not be

considered to be a disqualification or ineligibility for

allotment.

4 7. The first ground urged by the petitioner is that the

flat acquired by the respondent in 1994 measures 65.79 sq.m

which was in excess of 65 sq.m. This contention raised

before the Division Bench was rejected on the ground that

the learned Single Judge was satisfied on the material

produced that the acquired flat measured only 62.22 sq.m,

which was less than 65 sq.m and DDA did not contest or deny

the same before the learned Single Judge.

8. The DDA next contended that the only exception to the

eligibility condition that the allottee should not own or

hold a property in Delhi/New Delhi/Delhi Cantonment, was in

respect of "individual share of the applicant in a jointly

owned plot or land under the residential house being less

than 65 sq.m." It was contended that the said exemption was

intended to apply only in regard to holdings by joint

family members or co-owners and not in regard to ownership

of an apartment. The High Court has rejected this

contention on the following reasoning :

"The interpretation put by the learned counsel on condition no.(ii) would be clearly violative of the equality clause under Article 14 of the Constitution. It is clear to us that the intention is to exempt all those who have acquired residential house which is less than 65 sq.m. provided the house is not allotted by DDA."

5 When a person acquires a flat in a multi-storeyed building,

what he gets is co-ownership of the land on which the

building is constructed and exclusive ownership/long-term

lease of the residential flat. As per Clause 1(ii), where

the individual share in the land on which the building

stands, held by the allottee is less than 65 sq.m., he is

not barred from securing allotment from DDA. The other

interpretation is that if the measurement of the flat is

less than 65 sq.m and the allottee owns only an undivided

share in the land, corresponding to such flat, the benefit

of exemption would be available to the applicant.

9. It is true that the purpose of development of a

residential scheme by a City Development Authority is to

make available plots to those who do not own a house in

that city. It is also true that allotting plots to those

who already own houses, may amount to denial of plots to

other deserving applicants who do not own or hold any

property at all. But the policies and purposes of

development authorities are not uniform. Some schemes

contemplate allotment of plots to those who are poor and

whose income is less than the specified limit. Some schemes

provide for allotment of smaller plots to economically

weaker sections at a lesser price and allotment of larger 6

plots to high income groups at a higher price. Some schemes

make anyone owning a property, whether commercial or

residential ineligible. Some schemes make only those owning

plots already allotted by the authority ineligible. Some

schemes make only those owning properties which are larger

than a prescribed limit ineligible. 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 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. When the term of exemption is specific and

unambiguous, it is not possible to restrict its

applicability or read into it, a meaning other than the

plain and normal meaning, on the assumption that the

general object of the Scheme was different from what is

spelt out in the term. Be that as it may.

7

10. In view of the above, the special leave petition is

dismissed as having no merit. We have assigned reasons,

even while dismissing the special leave petition without

ordering notice, as the petitioner has made detailed

submissions and as a similar issue may arise in other

applications.

_________________J.

[R. V. Raveendran]

__________________J [G. S. Singhvi] New Delhi;

October 9, 2009.