SHAIL SHUKLA vs DDA

$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 02.08.2023
Judgment pronounced on: 16.10.2023

+ W.P.(C) 8519/2011

SHAIL SHUKLA ….Petitioner
Through: Mr. Dilip Singh and Mr. Raj Lakshmi, Advocates.
versus

DDA ….. Respondent
Through: Ms. Manika Tripathi, Standing counsel with Mr. Chirantan Saha and Mr. Shashi Pratap Singh, Advocates.

CORAM:
HON’BLE MR. JUSTICE JASMEET SINGH
J U D G M E N T

: JASMEET SINGH, J
1. This is a petition seeking the following reliefs:-
“A. A Writ of Certiorari calling for the records of the case and peruse the same.
B. A Writ of Certiorari quashing the action of the respondent in cancelling the allotment of plot under Rohini Residential Scheme 1981 in favour of the petitioner after receiving full payment, only on the ground of non-submission/ late submission of documents and then refusing to allot an alternative plot being illegal arbitrary, discriminatory, unjust and in violation of the rules, regulations and policy and the principles of equity natural justice and good conscience.
C. A Writ of Mandamus commanding the respondent to forthwith allot a similar MIG plot in a developed sector in Phase I/II/III Rohini to the petitioner, by way of a mini draw and put her in possession and execute the Lease Deed in her favour in respect thereof immediately.
D. A Writ of Mandamus commanding the respondent to pay the cost of this petition to the petitioner.”
2. The case of the petitioner in a nutshell is as under:-
1. In 1981, the respondent-DDA announced a scheme for the allotment of plots in Delhi, namely the Rohini Residential Scheme, 1981, (hereinafter referred to as ‘the Rohini Scheme’).
2. The petitioner herein applied under the Rohini Scheme by making a deposit dated 02.04.1984 for an amount of Rs. 5000/- as earnest money. [a]
3. The petitioner’s name was included in the draw held on 27.03.1991 and she was allotted Plot No. 169, Pocket 12, Sector-24, Rohini, Delhi admeasuring 60 square mtrs vide allotment-cum-demand letter dated 08.11.1991. [b]The allotment letter required the petitioner to make payment as under:
“…
1. Rs. 6,490.75 being 25% of the premium not later than 30 days from date of issue of demand letter.
2. Rs. 29,880.00 being 50% of the premium not later than 31.01.92.
3. Rs. 14,940.00 being 25% not later than 28.02.93.”
4. The petitioner made the requisite payments of the demanded payments on: [c]
S.No.
Amount
Challan No.
Date
1. Rs. 6490. 75
0403404
05.12.1991
2.
Rs. 29880.00
0403409
31.01.1992
3.
Rs. 14940.00
0403410
26.02.1993

5. The petitioner submits that despite the same, no letter/offer was issued by DDA for handing over possession of the allotted land. Due to the inaction and no reply by DDA, the petitioner requested for a refund of the amount paid vide letter dated 20.11.2005.[d]
6. In response, DDA sent a letter dated 28.09.2006 stating that the original file of the petitioner has not been received at the time of handing over the charge in the year 1995. Further, the DDA by letter dated 13.12.2006 required the petitioner to submit documents to facilitate the refund of deposit. [e][f]
7. The petitioner submitted the documents vide letter dated 18.07.2008, however the DDA continued to be unresponsive. On 29.05.2009, DDA once again asked the petitioner to submit certain documents including the original demand-cum-allotment letter. [g]The same was duly submitted by the petitioner, however, the petitioner informed the respondent that the original demand-cum-allotment letter is already in its possession since 06.12.1991[h].
8. On 06.07.2010, the status of the demised plot was sought, and it was informed that due to a court order, the plot is to be allotted to one Mr. JS Khatri.
9. DDA is stated to have noted on 22.10.2010 that neither the application for registration in the name of Mr. Shail Shukla nor the copy of FDR, Affidavit of Undertaking, Income Certificate submitted at the time of the registration is available in the file. It was further noted that the confirmation of letter dated 05.12.1991 submitted by the petitioner has not been received by the concerned branch. In view of this, DDA was not inclined to refund the earnest money as asked for by the petitioner. [i]
10. The petitioner withdrew her request for refund and made a representation dated 29.08.2011 before the Commissioner and Director DDA for handing over possession of the demised plot or an alternate plot in the same sector since the demised plot has been re-alloted to some other person. [j]
3. Hence, this writ petition was filed.
4. The respondent filed a counter affidavit wherein the respondent has primarily relied upon concealment and non-deposit of requisite documents. The respondent has stated as under:-
1. The petitioner had applied under the DDA housing scheme and to prevent double allotment, the petitioner was asked to submit proof of cancellation of HUDCO registration.[k] However, the petitioner vide letter dated 08.12.2005 informed DDA that she had lost her documents, and wishes for a refund of her deposit.
2. For the said reason, the petitioner was required to deposit certain original documents, however the same was not done by the petitioner as is the procedure.
3. DDA states that in the meantime the cancellation request was processed and the plot was re-alloted. The petitioner after six years cannot at this juncture withdraw her application for refund and cancellation of the plot and thereafter demand the handing over of another plot in the same sector.
5. By order dated 08.06.2012, this court directed the respondent to reserve a plot for the petitioner. The said interim order was confirmed on 27.08.2012. Thereafter, this Hon’ble Court vide judgment dated 25.04.2022 was pleased to allow the writ petition and direct as under:-
“13. Three decades have passed since the petitioner was allotted the flat and made all the payments. She is now in the eighth decade of her life and would rather see the fruition of her endeavours in this temporal world. She has established her case for handing over of the plot reserved for her by DDA i.e. Plot No.23, Sector-1, Pocket-B, measuring 60 sq.mtrs.
14. In view of the above, the said plot of land, which stands secured by this court’s previous orders, be handed-over to the petitioner, within four weeks from the receipt of copy of this order, subject to completion of codal formalities. In this regard, the petitioner shall appear before the Director, Land Sales Branch, DDA on 19.05.2022 at 11:00 am or on such other dates as may be coordinated with the latter.”
6. The matter was taken up in appeal in LPA No. 418/2022 and the operative portion of the judgment of the Hon’ble Division Bench dated 29.07.2022 reads as under:-
“8. The lackadaisical and abhorrently unprofessional approach of the DDA is beyond reproach and is unpardonable. The facts of the instant case only demonstrate the harassment of a poor lady at the hands of DDA for the reasons best known to the officers concerned. The learned Single Judge was justified in directing the DDA to hand-over Plot No.23, Sector-1, Pocket-B, measuring 60 sq. Mtrs. to the Respondent herein within four weeks of receiving the copy of the Order dated 25.04.2022.
9. In view of the harassment caused to the Respondent by the DDA for over 30 years and for wasting precious judicial time by filing the instant frivolous appeal, this Court is inclined to impose costs of Rs.50,000/- on the DDA.
10. The appeal is, accordingly, dismissed, along with the pending application(s), if any.”
7. Subsequently, the respondent filed a Review Petition No. 201/2022, wherein the Hon’ble Division Bench was of the view that the Single Judge as well as the Division Bench in the appeal had not considered the fact that the petitioner was already allotted a flat, i.e Flat No.50, A-1, Sector-7, Rohini in MIG category on 16.07.1985. Hence, while allowing the review by order dated 17.11.2022, the Division Bench was pleased to recall the judgement dated 29.07.2022 passed by the Division Bench and set aside the judgement dated 25.04.2022 by the learned Single Judge. The Division Bench directed the matter to be heard afresh keeping in view the fact that the petitioner already had been allotted a flat under the NPRS/HUDCO Scheme, 1979.[l]
8. The issue before this Court is whether the petitioner is entitled to a plot under the Rohini Scheme, having already been allotted [m]a flat earlier. [n]
9. The learned counsel for the respondent states that the petitioner had sought allotment under the Rohini Scheme, wherein persons who own a house or plot allotted by DDA on an area even less than 65 sq. mtrs were said to be ineligible. The eligibility condition under para 1(ii) of the Scheme reads as under:-[o]
“ii) The individual or his wife/her husband or any of his/her minor children do not own in full or in part on lease-hold or free-hold basis any residential plot of land or a house or have not been allotted on hire-purchase basis a residential flat in Delhi/New Delhi or Delhi Cantonment. If, however, individual share of the applicant in the jointly owned plot or land under the residential house is less than 65 sq. mts., an application for allotment of plot can be entertained. Persons who own a house or a plot allotted by the Delhi Development Authority on an area of even less than 65 sq. mts. shall not, however, be eligible for allotment.”
10. The learned counsel for the respondent submits that the petitioner has willfully concealed the fact that the petitioner has been allotted a flat. Under the Rohini Scheme, a plot cannot be allotted to an individual who has already been allotted a house under DDA Housing scheme or any other scheme. This concealment according to the respondent disentitles the petitioner for allotment of plot under the Rohini Scheme. Reliance is placed upon the dicta of the Hon’ble Supreme Court in NOIDA vs. Ravindra Kumar Singhvi (Dead) Thr. LRs, (2022) 5 SCC 591:-
“23. The fact is that the second plot allotted to the plaintiff had been allotted against the express terms of allotment. Therefore, there is neither equity nor any law in favour of the plaintiff. A person who misleads the Authority in obtaining allotment of a plot is not entitled to get any relief.”
11. The learned counsel for the petitioner submits that allotment of plot/flat by respondent-DDA is governed by the statutory provisions of the DDA (Disposal of Developed Nazul Land) Rules, 1981 (‘Nazul Land Rules’). The issue raised by the respondent is no longer res integra by virtue of the law laid down by the Division Bench of this Court in DDA v B.B. Jain, LPA 670/2012 dated 05.03.2013. It reads as under:-
“10. It would thus be seen that in view of the above-referred decision of this Court, the issue involved in these appeals is no more res integra. The learned counsel for the appellant, however, contended that in none of these cases, the existing allotment was made by DDA, whereas in the case before this Court the existing allotments were made by DDA and if the terms and conditions contained in Rohini Residential Scheme, 1981 are not applied, it would result in a person getting allotment of more than one plot/flat from DDA. In our view, the contention is misconceived in law. The issue involved in this case is as to whether the allotments made under Rohini Residential Scheme, after coming into force of Nazul Land Rules would be governed by the provisions of the Scheme or by the provisions of the statutory Rules and the view taken in the above-referred case was that it is Nazul Land Rules which would govern such allotments. Once it is accepted that the eligibility of the registrants under the Rohini Residential Scheme, would be governed by the provisions of Nazul Land Rules and not the provisions of the Scheme to the extent the provisions of the Scheme are contrary to the statutory provisions contained in the Rules, it would be immaterial whether the existing allotment was made to DDA or by some other agency or it was free hold property purchased by the allottee from the open market. Rule 17 of the Nazul Land Rules admittedly does not debar the allottee from DDA from allotment of land by DDA, in a case where the area of the land/plot already owned by or allotted to him does not exceed 67 square metres.”
emphasis supplied
12. Rule 17 of the Nazul Land Rules is reproduced as under:-
“17. General restriction to allotment for residential purposes
Notwithstanding anything contained in these rules, no plot of Nazul land shall be allotted for residential purposes, to an individual other than an individual referred to in clause (i) of rule 6, who or whose wife or husband or any of his or her dependent children, whether minor or not, or any of his or her dependent parents or dependent minor brothers or sisters, ordinarily residing with such individual, own in full or in part, on lease-hold or free-hold basis, any residential land or, house or who has been allotted on hire-purchase basis any residential land or house in the Union territory of Delhi:
PROVIDED that where, on the date of allotment of Nazul land,-
(a) the other land owned by or allotted to such individual is less than 67 square metres, or
(b) the house owned by such individual is on a plot of land which measures less than 67 square metres, or
(c) the share of such individual in any such other land or house measures less than 67 square metres, he may be allotted a plot of Nazul land in accordance with the provisions of these rules.”
13. It is submitted by the learned counsel for the petitioner that under the Nazul Land Rules if the area of another house is less than 67 square metres, the applicant under the Rohini Scheme, whose turn for allotment matures after coming into force of Nazul Land Rules, is eligible for allotment of a plot. He relies on the judgment of this court in Manohar Lal Madan v DDA, W.P. (C) 2622/2013. The operative portion reads as under-:
“6. After noticing the terms and conditions stipulated in Rohini Residential Scheme, 1981, relied upon by the learned counsel for the respondent and Rule 17 of DDA (Disposal of Developed Nazul Land) Rules, 1981, the Division Bench, inter alia, held as under:-
“5. It is not in dispute that since the flat allotted by DDA to the respondent in these appeals have been constructed on land measuring less than 67 square metres, they would be entitled to allotment of a plot of Nazul land from DDA, if the matter is to be governed by the aforesaid Rules. Since the terms and conditions stipulated in the Rohini Residential Scheme, 1981 debar any allottee from DDA from allotment of a plot under the said scheme, even if the area of the house/plot allotted to them by DDA is an area less than 65 square metres, the question which comes up for consideration in this case is as to whether the allotments made by DDA under the Rohini Residential Scheme, 1981, after coming into force of Nazul Land Rules, would be governed by the terms of the Scheme or by the provisions of the Rules.
X X X X
7. The first question to be examined by us in this regard is as to what would be the relevant date to determine the eligibility of the applicant under the Scheme, whether it would be the date on which the application is submitted or it would be the date on which the allotment is made. Indisputably, mere submission of application to DDA for allotment of a plot under its Rohini Residential Scheme, 1981 does not constitute a binding contract between the parties for allotment of a plot to the applicant under the aforesaid Scheme. A binding contact would come into force only when a specific plot is offered and such an offer is accepted by the applicant under the Scheme. If no binding contract between the parties came into force merely on submission of an application under the aforesaid Scheme, it would be difficult for us to say that the date of submitting an application would be the crucial date to determine the eligibility of the applicant for allotment of a plot. In our opinion, the crucial date on which the eligibility of the applicant is to be examined is the date on which the allotment of a plot is made by DDA. Since Nazul Land Rules came into force before allotment of plots under the aforesaid Scheme came to be made to the respondents, it would be difficult for us to say that the eligibility of the applicants for allotment of a plot under the aforesaid Scheme was to be examined de hors the provisions of the statutory Rules. Section 22(3) of Delhi Development Act contains a statutory mandate to the appellant to make allotment of Nazul Land developed by it or under its control and supervision only in accordance with the aforesaid Rules, which could be supplemented only by the directions, if any, given by the Central Government with respect to disposal of such Nazul Land. In our opinion, on coming into force of the Nazul Land Rules, the eligibility of the applicants for allotment of the plots is to be considered in terms of Rule 17 of the aforesaid Rules and the terms and conditions contained in the Scheme, to the extent they are repugnant to the provisions contained in the aforesaid rules, cannot be resorted to.….””
14. The learned counsel for the petitioner submits that the proportionate share of land in favour of the petitioner is 17 sq. mtrs. It is an admitted case that as long as the area/land under the exclusive ownership of the applicant is less than 67 sq. mtrs, the applicant is eligible for allotment under the Rohini Scheme from DDA. Reliance is further placed upon the judgment of this court in DDA v Jitender Pal Bhardwaj, (2010) 1 SCC 146:-
“7. 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.”
15. From the above judgments relied upon by the learned counsel for the petitioner, it is clear that the eligibility rule of the Rohini Scheme cannot run contrary to the Nazul Land Rules. The Nazul Land Rules permit an individual to apply for allotment and own a plot under the Rohini Scheme even if the individual has another house/plot of land, provided the same is under 67 sq. m.
16. The only grievance of the respondent that remains is that the petitioner in her application for allotment concealed/omitted the fact that she had been allotted an earlier flat. Hence, it is argued by the respondent that the concealment itself disentitles the petitioner from the allotment of a flat under the Rohini Scheme.
17. I am unable to agree with this contention of the respondent.
18. The Cambridge Dictionary defines the word ‘Concealment’ as under:
“the act of hiding something”
or
“the fact or crime of not providing information that a court, customer, insurance company, etc. has a legal right to know.”
19. The Black Law’s Dictionary (11th ed. 2019) defines the words ‘active concealment’ and ‘fraudulent concealment’ as under:
“active concealment. (1865) The concealment by words or acts of something that one has a duty to reveal.”
“fraudulent concealment. (1801) The affirmative suppression or hiding, with the intent to deceive or defraud, of a material fact or circumstance that one is legally (or, sometimes, morally) bound to reveal. — Also termed hidden fraud.”
20. The word ‘Concealment’ assumes within its meaning hiding something for purposes of gaining unfair/undue advantage over similarly situated people. It is a settled principle in law that the non-disclosure of a fact not required by a statute to be disclosed may not amount to fraud, further even in the case of commercial transactions non-disclosure of every fact does not vitiate the agreement, Shrisht Dhawan (Smt) v. Shaw Bros., (1992) 1 SCC 534.
21. The alleged concealment/omission would assume importance if as a result of the concealment of the previous allotment, the petitioner would have become entitled to allotment of the flat under the Rohini Scheme, which she would have otherwise not been but for the concealment.
22. However, the non-mentioning of the earlier flat in the present case does not give any unfair/undue advantage to the petitioner as despite allotment of the earlier flat, the petitioner would have still been entitled to a plot under the Rohini Scheme. The non-mentioning of the flat may be an inadvertent error, an oversight or an omission but the same does not give the petitioner any undue advantage over similarly situated people.
23. The Delhi High Court in a similar case of Mohinder Kaur Bajaj and Ors. v. DDA and Anr., 2013 SCC OnLine Del 710 directed the DDA not to dispossess the petitioner on the ground of false affidavit when the petitioner’s undivided share in the earlier plot was less than 67 sq.m. It was held that there is no concealment or misrepresentation as alleged. The relevant portion of the judgement reads as under:-
“21. In the instant case, there is no denying the fact that the Petitioner No. 1 had no source of income. It is also stands established from the record that the property bearing No. C-125, Naraina Vihar, New Delhi was purchased by the joint family for a total sale consideration of Rs. 7,08,000/-, out of which the Petitioner No. 1 contributed only a sum of Rs. 72,000/- and the remaining amount was contributed by the other members of the joint family, namely, her three sons. All the aforesaid payments were made by the family members through cheques deposited in the Saving Bank Account of the Petitioner, and the Bank Account Statement of the Petitioner placed on record clearly reflects the encashment of the 7 cheques totalling Rs. 7,08,000/-, including the cheque of the Petitioner of Rs. 72,000/-. Thus, indubitably the undivided share of the Petitioner comes to ¼th in the said property, i.e., 26 sq. mtrs. only in the property at C-125, Naraina Vihar. Since the land owned by the Petitioner was less than 67 sq.mtrs., therefore, the bar against allotment of Nazul land enshrined in Rule 17 of the Nazul Rules would not apply.
…..
23. A bare glance at the aforesaid Rule is sufficient to show that the case of the Petitioners falls within the four comers of Proviso (a) to the said Rule. Thus, it cannot be said that the Petitioner filed a false affidavit, since the allotment in her favour was of less than 26 sq. mtrs., which was not a disqualification for the allotment of the plot in question on the date of the allotment. The necessary corollary is that the cancellation of the plot of land allotted to the Petitioner No. 1 by the DDA on the ground of concealment and misrepresentation is wholly unwarranted. To be noted, that it was the Petitioner herself who volunteered to disclose about the allotment to the DDA.”
emphasis supplied
24. In view of the above, I am unable to agree with the stand of the respondent that merely because the petitioner had failed to mention the earlier flat under the NPRS/ HUDCO Scheme and only because of this reason, the petitioner should not have been entitled to plot under Rohini Scheme.
25. The petition is allowed and a writ of mandamus is issued directing the respondent to hand over possession of the plot reserved for the petitioner under the Rohini Scheme, being Plot No.23, Sector-1, Pocket-B, measuring 60 sq.mtrs. and execute the lease deed in her favour.

JASMEET SINGH, J
October 16, 2023 /DJ
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W.P.(C) 8519/2011 Page of

[a]Annexure P-1
[b]Annexure P-2
[c]para 6, pdf 14
[d]para 10, pdf 15, @Annexure P-7
[e]Annexure P-8. Pdf 41, 42
[f]para 12
[g]para 14, pdf 16
[h]Annexure P-10 @ 49
[i]para 19
[j]para 20, pdf 18, P-12
[k]pdf 76, para 2
[l]pdf 302
[m]308, 293
[n]308, 293
[o]pdf 269