Verma & Ors. Vs. Delhi Development Authority  Insc 1281 (13 December 2007)
Sinha & Harjit Singh Bedi
out of SLP (Civil) No. 1322 of 2007] S.B. SINHA, J:
Respondent is an authority created under the Delhi Development Act, 1957 (for
short the Act). The Act was enacted to provide for the development of
Delhi according to plan and for matters
connected therewith or ancillary thereto.
floated a scheme known as Fifth Self Financing Housing Registration Scheme,
1982 (for short the Scheme). Appellants herein pursuant to an
advertisement issued in this behalf registered themselves; their registration
numbers being 13463, 16602 and 13464. For the purpose of allotment of flats,
lots were drawn on various occasions, viz., in June, 1987, November, 1987,
March, 1989, July, 1990, January, 1991, January, 1993. Appellants were not
successful therein and, thus, were unable to get flats in locality of their
choice. The Scheme was closed. However, with a view to give a chance to those
who were not successful in the lots on the earlier occasions, a public notice
was issued in some newspapers on 8.12.1993 for release of about 3000 flats
which included some built and ready-built ones situated in Kondli-Gharoli.
Registrants under the Scheme were entitled to apply therefor. In the public
notice, it was categorically stated that the registrants of the said scheme who
had not applied for an allotment in that release would not be eligible to apply
again for allotment.
further stated that in the case registrants of 5th SFS did not avail of this
opportunity or if they surrendered allotment/ allocation after being
successful, they shall be deemed to have opted out of the scheme and action
shall be taken to refund their registration money.
Appellants did not respond to the said notice. Despite the same allegedly they
had been allotted Category- III flats. They were called upon to pay the price
specified therefor and to take delivery thereof. They declined to do so. They
asked their names to be included in the VI and VI-A Self Financing Schemes
which were issued later on. Respondent did not agree thereto.
complaint was filed by the appellants before the Consumer Disputes Redressal
District Forum II on or about 16.01.1995 inter alia for a direction upon the
respondent herein that their registration should not be cancelled and they
should be considered in future draw of lots till they could be allotted flats
in the locality of their choice. By a judgment and order dated 24.07.1995, the
said application was allowed holding that the action of the respondent in not
considering the cases of the appellants for allotment through the process of
draw of lots amounted to unfair trade practice, apart from being unilateral and
unjustified. Aggrieved by and dissatisfied therewith, the respondent preferred
an appeal before the State Consumer Disputes Redressal Commission, New Delhi and by an order dated 30.11.1998
allowed the said appeal and set aside the order of the District Forum.
Appellants herein thereafter filed a revision application before the National
Consumer Disputes Redressal Commission. During pendency of the said
application, they approached the Finance Member and Chairman of the respondent
to place their case before the out of court settlement committee. By
an order dated 25.11.1999, the National Commission dismissed the revision
petition filed by the appellants herein relying inter alia on Clause 16 of the
Brochure wherein it had categorically been stated that DDA reserves the
right to withdraw the Scheme at any time. A Special Leave Petition
preferred thereagainst was dismissed.
Although the appellants were not successful in their attempt to obtain any
remedy on the judicial side, they purported to approach the Ministry of Urban
Affairs in 1997. They made certain representations. Allegedly, the Joint
Secretary (D&L) by reason of a letter dated 24.08.2000 addressed to the
Vice-Chairman of Delhi Development Authority directed as under:
am directed to refer to D.O. letter No. F.1 (Misc.) 5th SFS &
onwards/2000/SFS, dated the 15th May, 2000 from Shri Arvind Kumar, the then
Commissioner (Housing), on the subject noted above, and to state that the
matter pertaining to giving one more opportunity to the left out registrants of
5th and subsequent Self Financing Schemes was discussed in the Chamber of UDM
with VC, DDA some time back. After discussion, it was agreed that instead of a
general scheme, VC, DDA would cover the pending petitioners, especially, the
hard cases under the OTA quota. It was also mentioned by the VC, DDA that there
are only three such cases. It is, therefore, requested that further action to
allot the flats to these three petitioners may please be taken and action taken
in the matter may be intimated to this Ministry in due course.
State Consumer Disputes Redressal Commission was again approached. The
application of the appellants was dismissed. Another application was filed by
them before the Permanent Lok Adalat for non- compliance of orders of Ministry
of Urban Development despite availability of flats. By an order dated
6.09.2005, the Lok Adalat observed:
12.4.2005, Lok Adalat had recommended that the case of the petitioner is a hard
case and instead of General Scheme the case of the petitioner should be
considered under the Out of Turn Allotment quota particularly when there are
only three cases left. In this connection a letter of Minister of Urban
Development & Poverty Alleviation dated 24.8.2005 refers to. This letter clearly
provides that according to the Vice- Chairman, DDA there are only three such
cases left and in such a situation the case of the petitioner should be covered
under OTA Quota being a hard case. This recommendation has not been accepted by
the DDA presumably for the reason that the scheme of SFS under which the
petitioner had applied had become defunct. The scheme of OTA under the quota is
also no longer in existence and as such the case of the petitioner cannot be
considered under this category. The petitioner cannot be considered under this
category. The petitioner cannot be allotted a flat as the flats which are lying
vacant for which the petitioner has applied for the DDA has merged the flats
with the Higher Income Group. In other words, the DDA in the aforesaid
circumstances has opposed such allotment to the petitioner. There is no meeting
ground between the parties, the matter is closed as unsettled. The petitioner
is at liberty to approach appropriate Forum/ Court of Law for redressal of his
grievances if she is so advised.
Thereafter, a writ petition was filed before the Delhi High Court which was
marked as Civil Writ No. 19633-35 of 2005. By an order dated 20.03.2006, the
said petition was dismissed. Letters Patent Appeal preferred thereagainst by the
appellants being LPA No. 652-654 of 2006 has also been dismissed by reason of
the impugned judgment dated 25.04.2006. A review application filed thereagainst
also stand dismissed.
Ram Prakash, representing the appellants, in support of this appeal inter alia
in the Brochure, a policy of reservation was provided, the High Court committed
a serious illegality in opining that no legal right accrued in their favour in
terms of the said letter dated 24.08.2000.
The Central Government, having regard to Section 41 read with Section 56(2)(r)
of the Act, could direct allotment of flats from out of turn quota
keeping in view the cases of the appellants who were three in number, as
falling in the category of hard cases.
Central Government in a situation of this nature was entitled to formulate a
Scheme for the left out registrants. The authorities of the respondent having
participated in the meeting with the Minister of Urban Development, pursuant
whereto the said letter dated 24.08.2000 was issued, the respondent was bound
to implement the same in view of the principles of Legitimate Expectation and
As a large number of flats had been vacant, as would appear from the statement
made by the Vice-Chairman of the respondent on 8.11.2002 by reason of allotment
of the flats, nobody else would be prejudiced.
Ashwani Kumar, learned counsel appearing on behalf of the respondent, on the
other hand, submitted:
Appellant do not have any legal right in obtaining allotment of flats.
They having failed to deposit the amount as far back in 1994 cannot now be
permitted to claim an equitable right despite their unsuccessful attempt before
the Forums created under the Consumer Protection Act, 1985.
Indisputably, the Scheme was an independent one. It was a Self Financing
Housing Registration Scheme. Other similar schemes following the same were also
wholly independent of each other. The Brochure issued for enforcing the said
Scheme is a self-contained document. It provides for the mode and manner in
which flats are to be allotted, the categories of the allotment of flats
thereof, mode of payment as also cancellation thereof.
despite the fact that the appellants were not successful in obtaining the flats
by reason of draw of lots and despite the fact that they did not respond to the
notice issued by the respondent, those cases had not been considered in the
year 1994. On what ground, we do not know, flats were allotted in their favour.
They were asked to make deposits. They did not do so. They, on the other hand,
made a totally untenable claim of continuing their registration again in VI and
have noticed hereinbefore that their claim based on deficiency of service and/
or unfair trade practice was rejected by the Higher Forum on the part of the
respondent. They lost their battle upto this Court in the first round of
Having failed to establish any legal right in themselves as also purported deficiency
in services on the part of the respondent before competent legal forums, they
took recourse to remedies on administrative side which stricto sensu were not
available. It has not been shown as to on what premise the Central Government
can interfere with the day to day affairs of the respondent. Section 41 of the
Act, only envisages that the respondent would carry out such directions that
may be issued by the Central Government from time to time for the efficient
administration of the Act.
same does not take within its fold an order which can be passed by the Central
Government in the matter of allotment of flats by the Authority.
41 speaks about policy decision. Any direction issued must have a nexus with
the efficient administration of the Act. It has nothing to do with carrying out
of the plans of the authority in respect of a particular scheme.
The Central Government does not have any quota under the Act. It did not have
any quota under the Scheme. The reservations envisaged in terms of the Scheme
were as under:
25% of the flats for the persons belonging to SC/ST.
of the flats for MPs.
of the flats for persons who have won national recognition in the field of
sports, art and music.
of the flats for physically handicapped.
Evidently, the Central Government had no say in the matter either on its own or
under the Act. In terms of the Brochure, Section 41 of the Act does not clothe
any jurisdiction upon the Central Government to issue such a direction.
Submission of Mr. Ram Prakash that the Central Government could issue the said
direction in exercise of its rule making power under Section 56 of the Act is
wholly misplaced. In issuing the said letter, the Central Government did not
exercise its legislative power nor could it do so. The Central Government in
terms of the Act apart from Section 41 did not have any power and, thus, could
not have issue any direction in terms thereof.
Section 41 of the Act or for that matter Section 56(2)(r) thereof were not
applicable, the question of issuing any direction purported to be in terms of
Section 21 of the General Clauses Act, as has been submitted by Mr. Ram Prakash,
did not arise.
M.P. Gangadharan and Others v. State of Kerala and Others [(2006) 6 SCC 162], whereupon reliance has been placed by
Mr. Ram Prakash, has no application in the instant case.
The Scheme in question was closed as far back as in the year 1994.
Central Government in terms of the provisions of the Act or otherwise had no
jurisdiction to revive the same.
All the authorities under the Act including the Central Government being the
creature of statute were bound to act within the four corners thereof. A
specific grievance was raised by the appellants herein that the action on the
part of the authority amounted to unfair trade practice.
of service was also pleaded. The same had been negatived. The courts having
appropriate jurisdiction having found neither unfair trade practice nor there
being deficiency in service and in that view of the matter, the Central
Government ordinarily ought not to have interfered in the matter.
The purported letter dated 24.08.2000 does not specify as to how the Central
Government assumed any jurisdiction in the matter.
Some officers of the respondent by themselves could not have evolved a Scheme
which was beyond the purview and scope of the Act. Respondent being a State
within the meaning of Article 12 of the Constitution of India is bound to
fulfill the constitutional scheme contained in Article 14 thereof. It could
not, going behind the professed scheme as contained in the Brochure, create a
quota. Such a purported decision being wholly without jurisdiction, is a
nullity. The Central Government itself directed the authority to confine the
out of turn allotment quota by reason of a direction issued in June,
2000 only for widows of:
Government servants who dies in harness.
Those who were killed by terrorists.
would be preposterous to suggest that the Central Government could act beyond
its professed policy decision.
The Central Government, thus, acted illegally and without jurisdiction in
purporting to take a decision that the hard cases may be brought within the
purview of the Out of Turn Allotment Quota, as therefor there was no
Frankfurter in Vitarelli v. Seaton [359 US
executive agency must be rigorously held to the standards by which it professes
its action to be judged Accordingly, if dismissal from employment is based on a
defined procedure, even though generous beyond the requirements that bind such
agency, that procedure must be scrupulously observed.
judicially evolved rule of administrative law is now firmly established and, if
I may add, rightly so. He that takes the procedural sword shall perish with the
sword. [See also Ramana Dayaram Shetty v. The International Airport Authority of India and Others AIR 1979 SC 1628 : (1979) 3 SCC 489, Harjit Singh & Anr.
v. The State of Punjab & Anr. 2007 (3) SCALE 553])
Having professed to abide by the Brochure which contained the policy of
reservation, as noticed hereinbefore, the Central Government could not in
absence of any statutory provision directed creation of any quota and that too
after closure of the Scheme. The Scheme after its closure could not even have
Guidelines per se do not partake to the character of statute. Such guidelines
in absence of the statutory backdrop are advisory in nature. Mr. Ram Prakash
himself has relied upon a decision of this Court in Narendra Kumar Maheshwari
v. Union of India and Others [AIR 1989 SC 2138] wherein it has been laid down:
This is because guidelines, by their very nature, do not fall into the category
of legislation, direct, subordinate or ancillary. They have only an advisory
role to play and non-adherence to or deviation from them is necessarily and
implicitly permissible if the circumstances of any particular fact or law
situation warrants the same. Judicial control takes over only where the
deviation either involves arbitrariness or discrimination or is so fundamental
as to undermine a basic public purpose which the guidelines and the statute
under which they are issued are intended to achieve. [See also Narendra
Kumar Maheshwari v. Union of India and others 1990 (Supp) SCC 440 at 508; Maharao
Sahib Shir Bhim Singhji v. Union of India and others (1981) 1 SCC 166 at 232;
J.R. Raghupathy and others v. State of A.P. and others (1988) 4 SCC 464
(paragraph 31); Uttam Parkash Bansal and others v. L.I.C. of India (2002) 100 DLT 487] Guidelines
being advisory in character per se do not confer any legal right.
Reliance has also been placed upon P.M. Ashwathanarayana Setty and others v.
State of Karnataka and others [AIR 1989 SC 100] for
the proposition that the State cannot rely on an evasive reason. We fail to
understand how a case relating to Court Fees and Suit Evaluation Act, would
assist us in invoking the principles in regard to the discriminatory impact of
the matter in a case of this nature.
Mr. Ram Prakash has also placed reliance upon State of Himachal Pradesh and
Another v. Kailash Chand Mahajan and Others [1992 Supp (2) SCC 351] wherein
this Court was considering the statutory conditions of services framed under a
regulation made in terms of Electricity (Supply) Act. In that context, this
Court considered the question as to whether the term of appointment can be
confined to a single person. Reliance placed on the said decision is wholly
misplaced. A reasonable classification is permissible although a class
legislation is not, but the same will have no application in a case where an
executive order was passed wholly without jurisdiction and contrary to the
constitutional scheme relating to fixation of quota for certain categories of
endeavour has been made to invoke the principles of Legitimate Expectation and
Promissory Estoppel. The doctrine of Legitimate Expectation would apply only
when a practice is found to be prevailing. It has a positive concept. But, in a
case of this nature where purported expectation is based on an illegal and
unconstitutional order, the same is wholly inapplicable, as the same cannot be
founded on an order which is per se illegal and without foundation.
reliance has also been placed on a decision of this Court in Ram Pravesh Singh
and Others v. State of Bihar and Others [(2006) 8 SCC 381]
wherein a Bench of this Court opined:
What is legitimate expectation? Obviously, it is not a legal right. It is an
expectation of a benefit, relief or remedy, that may ordinarily flow from a
promise or established practice. The term established practice refers
to a regular, consistent, predictable and certain conduct, process or activity
of the decision-making authority. The expectation should be legitimate, that
is, reasonable, logical and valid. Any expectation which is based on sporadic
or casual or random acts, or which is unreasonable, illogical or invalid cannot
be a legitimate expectation. Not being a right, it is not enforceable as such.
It is a concept fashioned by the courts, for judicial review of administrative
action. It is procedural in character based on the requirement of a higher
degree of fairness in administrative action, as a consequence of the promise made,
or practice established. In short, a person can be said to have a
legitimate expectation of a particular treatment, if any
representation or promise is made by an authority, either expressly or
impliedly, or if the regular and consistent past practice of the authority
gives room for such expectation in the normal course. As a ground for relief,
the efficacy of the doctrine is rather weak as its slot is just above
fairness in action but far below promissory estoppel. It
may only entitle an expectant: ( a ) to an opportunity to show cause before the
expectation is dashed; or ( b ) to an explanation as to the cause for denial.
In appropriate cases, the courts may grant a direction requiring the authority
to follow the promised procedure or established practice. A legitimate
expectation, even when made out, does not always entitle the expectant to a
relief. Public interest, change in policy, conduct of the expectant or any
other valid or bona fide reason given by the decision-maker, may be sufficient to
negative the legitimate expectation. The doctrine of legitimate
expectation based on established practice (as contrasted from legitimate
expectation based on a promise), can be invoked only by someone who has
dealings or transactions or negotiations with an authority, on which such
established practice has a bearing, or by someone who has a recognised legal
relationship with the authority The said decision, thus, instead of
assisting the appellants runs counter to their contention.
Mr. Ram Prakash has also placed strong reliance on J.P. Bansal v. State of
Rajasthan [(2003) 5 SCC 134 : 2003 (3) SCALE 154]. Therein itself, it is laid
Constitution requires that action must be taken by the authority concerned in
the name of the Governor. It is not till this formality is observed that the
action can be regarded as that of the State. Constitutionally speaking, the
Council of Ministers are advisers and as the Head of the State, the Governor is
to act with the aid or advice of the Council of Ministers. Therefore, till the
advice is accepted by the Governor, views of the Council of Ministers do not
get crystallised into action of the State
This decision is, therefore, an authority for the proposition that the
government order, so as to confer a legal right, must conform to the provisions
contained in Article 166 of the Constitution of India.
Questioning the correctness of the observation of the Division bench that the
communication contained in the letter dated 24.08.2000 did not confer any legal
right, Mr. Ram Prakash, would submit that an administrative order may also
confer a legal right. No doubt, it was so stated in Union of India v. K.P.
Joseph and others [(1973) 1 SCC 194 : AIR 1973 SC 303] but then it was a case
where an executive order was passed which was within the jurisdiction of the
State in terms of the proviso appended to Article 309 of the Constitution of
India. The Bench, it is interesting to note, hastened to add:
We should not be understood as laying down any general proposition on this
question. But we think that the Order in question conferred upon the first
respondent the right to have his pay fixed in the manner specified in the Order
and that was part of the conditions of his service. We see no reason why the
Court should not enforce that right.
We, therefore, find no merit in this appeal which is dismissed accordingly. In
the facts and circumstances of this case, however, there shall be no order as