NEW AVANTIKA CGHS SOCIETY vs DDA

2024-06-07 Information

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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:-
2.1 The petitioner-society was registered on 22nd 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 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 Housing Flats for its members. Thus, the DDA vide its letter dated 02nd 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.
2.4 In compliance of the aforesaid letter dated 02nd November, 2001, the petitioner-society deposited an amount of ? 1,10,00,000/- (Rupees One Crore Ten Lakhs Only), vide Challan No. 116770, dated 02nd April, 2002.
2.5 Thereafter, vide letter dated 27th 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-DDA, and vide letter dated 13th January, 2005, the petitioner-society was informed that its request for change of locality from Vishwas Nagar to 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.
2.7 Afterwards, by its letter dated 09th 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 upon the order dated 20th 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 by the petitioner-society vide letter dated 26th April, 2009. The petitioner, subsequently, made a request again vide letter dated 06th 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.
2.9 Reminder Letters dated 07th October, 2014, 20th April, 2015, 08th October, 2015 and 10th 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. However, the petitioner-society got no response.
2.10 The petitioner sought information under the Right to Information Act, 2005 (RTI Act) to which a reply dated 27th 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 was fixed for auction, on 11th 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 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 notification dated 11th 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 of letter dated 02nd 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 allotted to the petitioner-society, and the same was informed by the respondent-DDA, vide its letter dated 13th January, 2005.
5.3 The provisional letter dated 02nd November, 2001 was issued in terms of the DDA Nazul Land Rules. The said Rules have been amended vide notification dated 11th 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 communicated by the RCS. Thus, letter dated 02nd 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 premium. Relevant portions of the letter dated 02nd November, 2001, issued by the respondent-DDA, is extracted as under:
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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 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.

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(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-society, letter dated 27th June, 2002 was issued by the DDA, thereby, proposing to allot land at Vishwas Nagar to the petitioner-society. Letter dated 27th June, 2002, issued by the DDA, reads as under:
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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)
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(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 respondent-DDA, vide letter dated 13th January, 2005, in the following terms:
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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

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(Emphasis Supplied)

12. The aforesaid letter dated 13th 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 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 notification dated 11th 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:
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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…..

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(Emphasis Supplied)

15. Thus, it is clear that the earlier policy of the DDA, with respect to 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 Development Authority and Another1, has held as follows:
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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 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. Delhi Development Authority2 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.

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 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.

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(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 02nd November, 2001. Subsequently, vide letter dated 13th 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 in its favour, in the year 2005 by way of letter dated 09th February, 2005 and 26th 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 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 Authority Versus Hello Home Education Society3, 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:
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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 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…..

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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.

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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 inviting tenders.

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(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 Lubhaya Bagga and Others4, Supreme Court has held, as follows:
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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.

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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 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…..

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(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. (See: Ritu Maheshwari Versus Promotional Club5). Thus, Supreme Court in the case of Ritu Maheshwari (supra), has held as follows:
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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 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.

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(Emphasis Supplied)

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 (Regd.) Versus Delhi Development Authority6, Division Bench of this Court held as follows:
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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.

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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:

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.

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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.

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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 favour prior to the amendments of the said Rules.

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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.

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(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 the amendment of the DDA Nazul Land Rules, vide notification dated 11th 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.
26. Reliance by the petitioner upon the order dated 20th 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 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 Challan No. 116770 dated 02nd April, 2002, pursuant to the letter dated 02nd 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

1 (2011) SCC OnLine Del 611
2 (2009) 1 SCC 180
3 (2024) 3 SCC 148
4 (1998) 4 SCC 117
5 (2022) 9 SCC 560
6 2011 SCC OnLine Del 1501
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