Delhi
Devt. Auth. Vs. Jitender Pal Bhardwaj [2009] INSC 1645 (9 October 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION [C]
No.27181 of 2009 (CC 14775/2009) Delhi Development Authority ... Petitioner
Jitender Pal Bhardwaj ... Respondent
O R D E R
1.
Delay condoned.
2.
More than 28 years ago, on 23.3.1981, the respondent made an
application to the Delhi Development Authority (`DDA' for short) for allotment
of a plot under the Rohini Scheme. The eligibility requirement prescribed in
clause 1(ii) of the Terms and Conditions of the Scheme is extracted below:
"The
individual or his wife/her husband or any of his/her minor children do not own
in full or in part on lease-hold or freehold basis any residential plot of land
or a house or have not been allotted on hire-purchase basis a residential flat
in Delhi/New Delhi or Delhi Cantonment. If, however, individual share of the
applicant in the jointly owned plot or land under the residential house is less
than 65 sq.m, an application for allotment of plot can be entertained. Persons
who own a house or a plot allotted by the Delhi Development Authority on an
area of even less than 65 sq.m, shall not, however, be eligible for
allotment."
1.
2.
3.
When he made the application in 1981, neither the respondent nor
any of his family members owned any land or plot or flat in Delhi and gave
declaration to that effect.
4.
Nearly, a quarter century later, in a computerized draw,
respondent was allotted plot No.158, Block/PKT-C2, Sector-28, Rohini, measuring
60 sq.m, vide letter of allotment dated 3/7.10.2005. As required by DDA in its
communication dated 11.3.2006, the respondent submitted necessary documents and
affidavits under cover of his letter dated 31.3.2006 wherein he disclosed, in
pursuance of the above eligibility condition, that he had acquired a flat
measuring less than 65 sq.m in United India Apartments (Flat NO. 151/A), Mayur
Vihar Phase-I, Delhi. He also deposited the entire premium in regard to the
allotted plot.
5.
After issuing a show cause notice dated 28.2.2007, DDA by
communication dated 28.5.2007, cancelled the allotment on the ground that the
respondent was already the owner of a flat. Feeling aggrieved, the respondent
approached the High Court. He submitted that when he made the application for
allotment, he did not have any land, plot or flat. He further submitted that in
the year 1994, he had acquired a flat measuring 62.22 sq.m which was less than
65 sq.m and 3 therefore his eligibility for allotment of a plot by DDA, was not
affected. He also produced a certificate from the concerned society and other
documents to show that the flat measured less than 65 sq.m. A learned Single
Judge allowed the writ petition and quashed the cancellation of allotment,
holding that there was no violation or breach on the part of respondent. The
appeal filed by DDA was also dismissed by a Division Bench. Leave to Appeal is
sought in respect of the said order.
6.
The entire issue depends upon the interpretation of Clause 1(ii)
of the Terms and Conditions of the Rohini Scheme. The said Clause makes an
applicant ineligible for allotment, if the applicant or his/her spouse and
minor children own or hold in Delhi/New Delhi/Delhi Cantonment :
(i) any
residential plot of land or a house either in full or in part either on
leasehold or freehold basis, or (ii) any residential flat on hire-purchase
basis. There is however an exemption. Any individual share held by the
applicant in a jointly owned plot or land under the residential house which is
less than 65 sq.m, will not be considered to be a disqualification or
ineligibility for allotment.
7.
The first ground urged by the petitioner is that the flat acquired
by the respondent in 1994 measures 65.79 sq.m which was in excess of 65 sq.m.
This contention raised before the Division Bench was rejected on the ground
that the learned Single Judge was satisfied on the material produced that the
acquired flat measured only 62.22 sq.m, which was less than 65 sq.m and DDA did
not contest or deny the same before the learned Single Judge.
8.
The DDA next contended that the only exception to the eligibility
condition that the allottee should not own or hold a property in Delhi/New
Delhi/Delhi Cantonment, was in respect of "individual share of the
applicant in a jointly owned plot or land under the residential house being
less than 65 sq.m." It was contended that the said exemption was intended
to apply only in regard to holdings by joint family members or co-owners and
not in regard to ownership of an apartment. The High Court has rejected this
contention on the following reasoning :
"The
interpretation put by the learned counsel on condition no.(ii) would be clearly
violative of the equality clause under Article 14 of the Constitution.
It is
clear to us that the intention is to exempt all those who have acquired
residential house which is less than 65 sq.m. provided the house is not
allotted by DDA."
5 When a
person acquires a flat in a multi-storeyed building, what he gets is
co-ownership of the land on which the building is constructed and exclusive
ownership/long-term lease of the residential flat. As per Clause 1(ii), where
the individual share in the land on which the building stands, held by the
allottee is less than 65 sq.m., he is not barred from securing allotment from
DDA. The other interpretation is that if the measurement of the flat is less
than 65 sq.m and the allottee owns only an undivided share in the land,
corresponding to such flat, the benefit of exemption would be available to the
applicant.
9.
It is true that the purpose of development of a residential scheme
by a City Development Authority is to make available plots to those who do not
own a house in that city. It is also true that allotting plots to those who
already own houses, may amount to denial of plots to other deserving applicants
who do not own or hold any property at all. But the policies and purposes of
development authorities are not uniform. Some schemes contemplate allotment of
plots to those who are poor and whose income is less than the specified limit.
Some schemes provide for allotment of smaller plots to economically weaker
sections at a lesser price and allotment of larger 6 plots to high income
groups at a higher price. Some schemes make anyone owning a property, whether
commercial or residential ineligible. Some schemes make only those owning plots
already allotted by the authority ineligible. Some schemes make only those
owning properties which are larger than a prescribed limit ineligible. Though
the intention of Development Authorities in general is to allot plots to the
houseless, the policy and scheme has to be given effect with reference to the
specific wording of the eligibility provision. If DDA wanted to bar everyone
owning a plot/house/flat from securing an allotment, it could have made its
intention clear by simply providing that "anyone owning or holding a long
term lease, any plot/house/flat in Delhi/New Delhi/Delhi Cantonment area, will
be ineligible for allotment under this scheme". But DDA chose to make the
eligibility clause subject to an exemption. If it chose to exempt certain categories,
such exemption has to be given effect. When the term of exemption is specific
and unambiguous, it is not possible to restrict its applicability or read into
it, a meaning other than the plain and normal meaning, on the assumption that
the general object of the Scheme was different from what is spelt out in the
term. Be that as it may.
10.
In view of the above, the special leave petition is dismissed as
having no merit. We have assigned reasons, even while dismissing the special
leave petition without ordering notice, as the petitioner has made detailed
submissions and as a similar issue may arise in other applications.
_________________J. [R. V. Raveendran]
__________________J [G. S. Singhvi]
New Delhi;
October 9, 2009.
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