3. IN THE HIGH COHRT OF DELHI AT NEW DELHI WiCl No. 878/2004 # S.CJQiosH Petitioner ! through: Mr.R.K.Sainl Mr.Siimit Baiisa.1 and Mr.A.K.vSinha, /vdvocates, WRSUS $ Delhi Development Auuoority Respondent through: Mr./rnll Sapra and Ms.Neellrnn Trlpa.tM, advocates. RESERXTSD ON: 05-10-2004 % DATE OF DECISION: -02-2005 CORMI: ^ Hon'ble Mi*.Justice Pradeep Nandrajog 1. Vvdiether reporters of local papers ma}?" be allowed to see the ludsment? 2. To be refeired to tlie Reiaorter or not? PTieiher judgment should be reported in Digest? PRADEBF J. For orders, see\VP[C) No.5755/2004. February , 2005 n "W. PRADEEP NANDRAJOG, J. Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified ////////// 16 ^. J t i $ Delhi Development Authority Respondent A through: Mr.Anil Sapra and Ms.Neelima Tripathd, advocaLes. RRSRRVED ON: 05-10-2004 4. WPfCl No. 4575/2004 # S.RYadav - Petitioner i through: IvIr.R.KSaini, Mr.Sumit Bansal and Mr.A.K Slnha, Advocates. VERSUS $ Delhi Development Authorilj^ Respondent A through: Mr.Anil Sapra and Ms.Neelima Tripathi, advocates, RESERVED ON: 05-10-2004 5, WPfCl No, 4574/2004 # Chhabtl Dass Shamia Petitioner I through: Mr.R.K.Saini, Mr.Sumit Bansal and Mr.A.KSinha, Advocates. . VERSUS $ Delhi Development Authority Respondent A through: Mr.Anil Sapra and Ms.Neelima Tripathi, advocates. REvSERVED ON: 05-10-2004 WPfO Nos.5755.2142. 4575. 4574. 3336. 10. 333.5. 878. 887.4602/04 & 9462/03 page. 2 of 35 /// 16 /// -A i i # 6. WPfCl No. 3336/2004 RameshArora Petmoner through; IvIr.K.K.Sami, Ivlr.ijumit iriansal and Mr.A.KSinha, Advocates. VERSUS $ Delhi Development AuthorHy Respondent through: Mr.Anil Sapra and Ms.Neelima Tripathl, advocates. reserved ON: 05-10-2004 # 7. WPfCl No. 10/2004 MrRakeshBabu Petitioner through: Mr.R.KSaini, Mr.Sumit Bansal ■andMr.A.KSinha, Advocates. A VERSUS Delhi Development Authority Respondent through: IvIr.Anil Sapra and Ms.Neehma ■ Tripathi, advocates. reserved ON: 05-10-2004 # 8. WP(C1 No .2.835/2004 Satlsh Chander ^ Petitioner through: Mr.R.K.Salm, Mr.Surmt Bansal and Mr-A-KSinha, Advocates. VERSUS -71^? 4-i7.'i.4574 10.3355 «7S. ««7.4602Wt & 9462/03 page 3 of 35 //// 17 //// 0 \ $ Delhi Development Authori-ty Respondent A throng; Mr.Anil Sapra and Ms.Neelima Trip athi, advo cates, RESERVED ON: 05-10-2004 9, WPfCl No. 878/2004 I # S.C,Khosla Petitioner ! through: Mr.R.K.Saini, Mr.Sumit Bansal and Mr.AKSinha, Advocates. VERSUS A $ Delhi Development Authority Respondent A through: Mr.Anil Sapra and Ms.Neelima Trip athi, advocates, RESERVED ON: 05-10-2004 10, WPfCl No. 887/2004 # Rahesh Kuman Jain Petitioner ! through: Mr.R.K.Salni, Mr.Sumit Bansal an d Mr .A. K Sinh a, Advocates. ^ VERSUS $ Delhi Development Authoritj'' Respondent A through: IVIr.Anil Sapra and Ms.Neelima Trip athi, advocates. RESER\^D ON: 05-10-2004 WPfO Nos.5755. 2142. 4575. 4.^. 3336. 10. 33S5. 878. 887.4602704 & 9462/03' page 4 of 35 //// 18 /// 1 11, WPfCl No. 4602/2004 # Shri Siu-aj Bhan Kaushik Petitioner ! thrmigVi! Mr.Naresh Kaushil^:,Advocate. VERSUS $ Delhi Development Authority & Ors. Respondent A (hrou^: jVfr.Anil Sapra, advocate. RESERVED ON: 16-11-2004 o/o DATE OF DECIsSION: ^:r-02-2005 CORAM: * Hon'ble Mi'. Justice Pradeep Nandrajog Wl].ether reporters of local papers may be allowed to see the judgment? 2, To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J. 1. Petitioners claim that their legittoLate expectations cannot be defeated by DDA, midstream, changing its policy to allot plots of 60 sq. mts, instead of 90 sq, m_ts, to them. PromJ-Sory estopple is invoked against DDA, Response of DDA is that it held out no promise to allot 90 sq. mts, plot WPfC) Nos.57S5.2142.4575.4574. 3336.10. 3355. 878. 887.4602/04 & 9462703 page 5 of 35 /// 19 //// d r to the petitioners. It's scheme under which, petitioners apphed, clearly provided that DDA had a ri^t to allot smaHer plots. It is pleaded that action of DDA is gnided by pub he interest, in that, available land being less and registrants stih waiting for being allotted a plot, to accoDhnodate all within the available land, DDA had but no option Other than to reduce the plot size, DDA pleads that petitioners had no right, much less indefeasible right to be aUotiied a plot measining 90 sq, mts, 2 In the year 1981, DDA floated its Rohini Residential Scheme 1981 wherennder it sought registration from iadividnals for beiQg allotted a plot of land for residential prnq^oses. In the MIG categoiy, two preferences (not options) were given to the registrants: (i) to prefer for a 90 sq. mts, plot, and (ii) to prefer for a 60 sq. mts plot. 3, As per the schemie, plots had yet to be developed, Sahent features of the scheme, on which parties rehed in s-i^ipport of their respective stands may be noted at the outset. Object of the scheme was hsted under the caption 'HOUSING STRATEGy, Inter aha, under the said caption it wPfC) 575.5.2142.4575. 4574. 3336., 10. 878 SR7.4602A)4 & 9462/03 page 6 of 35 //// 20 /// V was stated 'As a measure of social justice the layout of the residential areas has been planned to give as much as 97% plots to the economically weaher sections and low amd middle income groups.' 4. Under 1±Le caption 'TEKMvS & CONDITIONS, inter alia, following was provided: (i) Individuals in the EWS/Janta category are entHied for a plot of 26 sq. mts. ihose in LIG for plots of 32 & 48 sq. mts. and MIG for plots of 60 & 90 sq. mts, (ii) The aJlotmnnt of plots wOl be made in phases spread over five years by draw of lots among the eligible applicants and different draws will be held for different, categories. The DDA reserves the right to create categories and lay dowm priorities. DDA sha.H refund the deposits with interest in case plot applied for cannot be made available. (m) The DDA reserves the right to allot a different size of plot in the same category. (ivi After the allotment has been confirmed by the competent authority, the successful applicant will be informed in writing of the plot affotted to him which he will be bound to accept and he will be requhed, within such time as may be specified, to pay the balance premium. 5. It is apparent that under the schem_e, DDA did not WP(Q Nos.5755. 2142. 4575. 4574. 3336.10. 3355. 878. 887.4602/04 & 9462/03 page 7 of 35 //// 21 /// guarantee a firm allotment of a plot evidenced by the term PDA shall rehmd the deposits with interest m case plot nnnlied for cannot he made avaUahle, Further DDA had a right to allot a plot of different size in the same categoiy, evidenced by the terms the DDA resewes thP- riaht to allot a different size of plot in the sGJTie ccttecjonj. Fmrther, right to be allotted a plot would mature on the applicant being allotted a speciac plot at a draw held and conhrmed by the competent authority and the registrant accepting the same, evidenced by a conjoint reading of the terms the allotment of plots will be made in phases spread omr fine uears bu draw of lots ow.onQ the elioible cipplico.nts, and the term ofter the aUotment has been confirrned bu the cow.petent authoritij, the successfnlhi applicant will he informed in writing of the plot allotted to him which he will he bound to acceyt 6, Another impori:ant facet may be noted. The form of the apphcation to be submitted by the registrant was provided by the DDA and all applicants were required to apply as per said form. Column 6(v) [b) of the form reads as under: \^TrO Nos.5755. 2142. 4575. 4574. 3336. 10. 3355. 878. 887,4602A)4 & 9462/03 O ox //// 22 /// )A v) 'Give the size of the plot required i.e.. 6/32/48/60/90 sq. mts. in order of preference according to your category. 7, Thus, plot size indicated by the applicant was a mere order of preference, 8, As stated at the bar, InitiaUy, all registrants had their names included at a draw of lots as and when plots became available on a particular pocket being developed by DDA. The luclsy ones got a plot. Others had to wait. Soniewhere around 1989-, DDA ^9. . 0 - - j;- ' -\J the left over registrants. This priority was fixed as per draw held. Thereafter, as and when plots became available for allotment, as per priori^, only such number of registrants were included at a draw of lots, ecpial to number of plots , available. Speciflc plot was allotted at said draw. In other words, post 1989, allotment of a plot was as per pnonty of the registrant, 9, As per counter affidavit filed by DDA in WP(C) No. 3336/04, at a draw held on 27.3.1996 which was the last draw held, prior to 11.6.2003, priorlly number 1651 was covered In the size of 90 sq. mts. plot and prlorfty number u.. .75., n42.4575.4JIA3336U(Um878J«7 & 9462/03 fl "IC //// 23 //// •w \\o 5101 was covered in the size of 60 sc^. mts. plot. 10, As per counter affidavit filed by DDA in WP(C) No, 3336/04 Rohini Residential Scheme 1981 had planned development of an area admeasuring 2497 hectares. Estimated 1,17,000 residential imits [not plots) were to come np. Land use dlstribntion envisaged was:- Sl.No, Land Use Area in a. c. d, e. f, 11, Residential, including plots & group housing 1,17,000 units. Commercial Industrial PiAbhc & Sem_l public facilities. Recreational Circulation hectares 1413 %age 56,58 108 482 126 211 155 4,35 19,32 5,06 8.47 6,22 Counter affidavit of DDA states that Rohini Residential Schem_e attracted 82,384 registrants, out of which 1701 persons cancelled/surrendered registrations. Qv the year 1999 it was ncff ed that 38,295 persons were still wait-listed, WPrn Nos.SV^'^. 7.142. 457.'=i. 4574. 3336. 10. 878. 887.4602/04 & 9462/03 in ic iv oj. //// 24 /// 12. DDA had another scheme called New Pattern Registration Scheme 1979, Under this scheme DDA was to conslxnct flats for the regisixants. By the year 1999, 24030 registrants were wait-listed under this scheme. Keeping in view land requirement to allot a plot/fiat to all registrants under the two schemes, and avallabilHy of land, on 9,7.1999, Central Government took a policy decision that henceforth, in the LIG category, plot size of only 32 sq, mts, would be allotted and in the MIG category plot size of only 60 mts, would be allotted. This decision was notified by a public notice published on 1,11.1999 in leading newspapers having circulation in Delhi, both in Hindi and Engfish. 13. I may note that the Union of India has not been impleaded as a respondent in any of the writ petitions. 14. On 8.7.2004, an order was passed as under: "08-07-2004 Present: Mr. Ravinder Sethi with Mr. Sumxt Bansal, for the petitioner. Mr. Anil Sapra for the DDA. WPrCl No.5755/2004 The present writ petition and the batch of connected writ petitions raise an issue whether the DDA is entitled to auction WPfQ Nos.5755. 2142, 4575. 4574. 3336. 10. 878. 887.4602A)4 & 9462/03 page 11 of 35 //// 25 /// V plots in excess of 3% of the plots allocated to plots in the Rohini Residential Scheme. Case of the petitioner, inter alia, is that at the time when the Rohioi Residential Schem-_e was floated it was indicate that 97% of the land allocated to the plots would be transferred at the pre-determined rates. In other words, 97% of the area nnder the plots was not available to be auctioned by the DDA. Counsel for DDA contends that 97% plots and not 97% plot area was to be ti-ansferred at pre-determined rates. Adjudication of the writ petition would require some primary data to be made available to this Court, The said primaiy data would be:- (a) what was the area of the land in the Rohini Residential Scheme which came to be allocated to plots; (bl the number of plots and their total area which came to be carved out; (c) the number of plots with particulars of plot which have been auctioned indicating the total area of those plots; (d) the number of plots alongwith the total area which have been aUoted mi date on pre-deterrnined rates. It is agreed between the parties that W.PlC) 5755/2004 be treated as the lead matter. Mr. Anil Sapra appearing for the DDA states that 3 weeks time be granted for furrilshing the information. List on 11,8.2004. sd/- July 08, 2004 PRADEEP NAKDRAJOG, J, WPrO Nos.57.^.S- 2142.4575, 4574. 3336.10- 878. 887,4602A)4 & 9462/03 KJX. //// 26 /// y 15. Additional affidavit was filed by DDA on 9,8.2001, In the said additional affidavit it has been stated that Rohini Residential Scheme 1981, as origmaDy contemplated, envisaged development of Phase-I and 11 only, a fact stated in the brochure. Gross residenfial area of Phase I and. II was 1413 hectares. Subsequently Phase-Ill, having area of 394,5 hectares was included. It was expanded to include Phase-IV as well, . 16, Additional affidavit further records that 52932 plots have been allotted in the Rohini Residential Scheme 1981, It is stated that only 1091 plots in phase-1 and II were auctioned. 20 plots were auctioned in phase-Ill, None in Phase-IV. 17 ]t is further explained In the additional affidavit that area Imown as Prashant Vfiiar was inltiaJly named as PIaider[3nr Residential Scheme which was approved in October, 1978, It is explained tiiat these plots were .siibsemientlv shown as part, of RohJnJ Residential Scheme since the area abnts the area of Rohini. It is thus explained that more than 97% residential nmts, incliiding dwelling wprn Nns..'i7.S5.214?- 4575. 4574, :^336. IQ. 878, RR7,4602704 & 9462/03. page 13 of 35 ///// 27 /// ^1% '(V units in cooperative group housing societies have been allotted in the Rohini Residential Scheme 1981. 18, Immediate cause for filing of the writ petition was a. pnbfic notice issued by the DDA offering 90 sq. mts. plots to be purchased in an open auction. 19, Learned counsel for the petitioners Mr.Sumlt Bansal and Mr.R.K.Sarm urged that Rohini Residential Scheme envisaged plots upto 90 sq. mts, to be a.llotted to the registrants and, therefore, plots being put to a.uctlon being contrary to the scheme, DDA could not auction the said plots. This submission was elaborated on the premise that the pockets in which these plots stood carved out were meant for the registrants to be allotted a rilot. Rule 27 of the DDA Nazul Land Rules, 1981 was brought into aid by the counsel. Counsel for the petitioners urged that the public nofice issued by DDA in the year 1999 was not in conformiiy wi1h Section 44 of the Delhi Development Act 1957 and, therefore DDA could not deny allotm_ent of 90 sq, mts. plot to the registrants. The most forceful plea urged by the petitioners was that iheir legitimate expectation of being WPfO No.s.5755.2142. 4515. 4574. 3336. 10. 33?5. 878. 887.4602A)4 & 9462/03 i .4 /vf ac x"T uj. ///// 28 /// a.Uotted a plot of 90 sq. mts. coiild not be violated by the respondent. Counsel urged that some of the petitioners would have got a 60 sq, mts plot much earlier, but they chose to take a 90 sq. mts plot on a representation made by DDA that those who opted for a 90 sq.mts. plot would be allotted one. It was urged that mldslTeam change of pokey by DDA was not only unfair and unjust but even arbitrary and irrational, 20, Per contra, Mr.Anil Sapra and Ms.Neelima Tripathi argi.iing for DDA urged that under the scheme, 97% of the -nlnts and not 97% area was eaimarked for EWS, LIG & MIG jr - -- rep^istrants. The schem_e gave a right to the respondent to o " ~ alter the plot size in the same category and also a right to create categories and lay down priorities. It was urged that the petitioners have not challenged the rights given to the respondent under the scheme. The scheme was not challenged, Pelltioners were bound by the schem_e. It was urfed ihat the nokcv decision of 1999 was in consonance and in conformhy with the schem_e under wMch petitioners had appked. WPCO Nos.575.'i. 2142.4575.4574. 3336. 1.0, 3335. 878, 887.46Q2A)4 & 9462/03 29 /// ry 21, In the context of the submission of counsel for the petitioners that the pockets where the plots were being anctioned were intended for the benefit of the registrants, counsel urged that since the scheme permitted DDA to lay down priorities and alter the plot of size in ihe same category, DDA would be empowered to vary portion of land to be aUotted for various categories, as long it is in overall conformity with the master plan and the permitted land use. It was urged that a lay out plan is not a statutory plan and can be amended, at any iime, 22. It was urged by learned counsel for DDA that the public notice dated 1.11.999 was Issued by Respondent authority, formulated and published pursuant to the directions issued by the Ministiy of Urban Development, Government of India vide Its communication dated 9.7.1999 pursuant to which a policy decision to allot 60 scniare meters plot to all the MIG registrants under the Scheme and 32 square mnters plot to the LIG registrants was talren. Further to gauge sufficient funds for the development of and completion of allotment of plots for EWS, UG and MIG afv(i-vN„, srst 7.14? 4S7i.4574 10. Vff5. «78. 8S7.460204 &. 9462/03 page 16 of 35 ///// 30 /// V 7y y. categoiy a policy decisicin to auction some of the plots measuring 90 square m_eters was taken so as to consolidate fimds for ensuring that targets can be met and the remaining allolments can be completed within the prescribed time period. The funds are also required for settlement of acquisition claim_s in respect of land acquired for allotment imder the said Scheme. The decision of the authority is based on sound principles of law, equity and justice and is beiag applied uniformly to all the registrants under the Scheme. Th,e said decision of the respondent authority was in no matter demonstrably capricious or arbitraiy and not informed by any reason of infringing any stati.ite or the Constitution. Hence the same is not subject to judicial interferences. A policy decision is not subject to judicial review unless it is unreasonable or against public interest. Also any policy decision tal?:en by the Government is not liable to interference imless the Court is satisfied t hat the rule makin.g authorfiy has acted arbitrarily or in violation of fundtoentnl rights. Further the policy decision of a government cannot be ordered to be altered if it would WPrCi Nos.5755. 2142. 4.575. 4574. 3336. 10. 3335, 878. 887.4602/04 & 9462/03 »» <Y« 1 ^ ® ///// 31 /// ■1. adverse^ affect the itoanclal standtag of the authority more so when the poHcy decision has been taken keeping the larger pubUc Interest Into consideration and by talong mto consideration all the relevant facts and circumstances. The policy has been Implemented uniformly and consistently to all the cases and hence, the policy Is not open for judicial review. 23, It was further urged that it Is a settled prmciple of law that in order to judge the valiaty of any policy or the statutory discretion, the test to be applied Is to find out whether the policy was illegal, or suffered, from any procedural Impropriety. In the present case a notification dated 1.11.1999 had been Issued pursuant to the communication of the Ministry of Urban Development, Government of India. It was a change In the policy of the respondent authority thereby deciding to allot a plot of 32 Square meteis' to the HQ registrants and 60 square meters to the MIG registrants. A change in the government poUcy must be reasonable, fair and non-arbltraiy and the courts would not bind the government to Its previous pohcy unless iXfPfO Nos .'iVSS. 2142,4m_4.'=i74. 3336 ^78. 887.4607704 & 9462/03. page 18 Ox 35 ///// 32 /// the change in the policy is vitiated by mala fides or abuse of power. The respondent authority has the right to change its policy from tim.e to tfine under the chan^g circum_stances which should, not be interfered with if based on relevant facts and circumstances and where the same is being done within the four comers of the Scheme. 24. On plea of legitimate expectation and promissoiy estopple, counsel for DDA argued that these concepts have io be determined keeping in view larger policy considerations and not according to the claimant's perception of his private interest. In the present case the change in the policy was brought, about based on broader policy considerations and hence cannot be held to be arbitrary and imreasonable. The Court, would not. bind the government to its previous policy by involdng the doctrine of legitimate expectation of the applicant unless the change in the policy is vitiated by malaiides or abuse of power. In the present case the change in the policy is equitable and in larger interest, and thus the authority is not bound by the promises or legitimate expectations of just a handful of WPCn Nos..'^75.5. 2142. 4.57.'i. 4574. 3^36.10. 333.1. 878. 887.4602/04 & 9462/03 page li) of 35 ////// 33 /// 0^ ^ 1. individuals. The doctrine of promissory esto23ple and legitimate expectation must yield if eqnily so requires, 25. Responding to the plea that public notice dated 1,11.1999 was not In conformity with vSection 44 of the Delhi Development. Act 1957, counsel urged that Section 44 of the Delhi Development Act, lays down i±ie essential ingredients to be complied with in case of the statutoiy public notice under the DDA Act, Such a notice would be required to be ^ven where a modiacatlon is required to be carried out under the DDA Act as for instance. where the a.uthoriiy seeks to bring a change in the Master plan. In the instant case, the notice dated 1,11,1999 was essentially a notice under the Scheme and not notice under the Act and 1h.us would not attract the ingredients of Section 44 of the DDA Act, The said Scheme had been formulated after following Hie due procedure wherein the terms of the Scheme fully authorized, the respond.ent authority to alter the size of the plot being allotted. It has been held that in cases where all the concerned individuals are well educated, a newspaper publication was definitely WPrCi Nos.5755. 2142. 4575. 4574. 3336,10, 878. 887,46Q2A)4 & 9462/03 KJX ///// 34 //// "-v.- ) sufficient. FnrtJner the Authority was fnffy authorized to change/reduce the size of the plot under the various categories under the Scheme itself. The public notice dated 1.11.1999 was published in the leading newspapers which had a wide circulation, including two English dailies and two Hindi dailies, 26. It was urged that admittedly the notification was published in die year 1999 which is now sought to be r.hallenfred in the vear 2004 which on the face of it m.alces it —L — ^ - J wholly belated. The said alteration in the Scheme was duly published in a leading newspaper vide notification dated 1.1.1999 however none of the petitioners raised any objection at that point of time and have belatedly sought the riuashincf of the nolicy after a long period of nearly 4 years, 'J. c J- Nowhere in the entire writ petition have the petitioners pleaded ignorance of the notification, 27. It was finally urged that the DDA is a public authority constituted for acquisition of land and its development into an_ urban township. To prom_ote urban township, DDA from tim_e to tfine has come up with various WPfQ Nos.57.iS. 2142. 4575. 4574. 3336. 10. 33?5. 878. 887,4602A)4 & 9462/03 page 21 of 35 ////// 35 /// 7^ housing schemes namely SFsS Scheme, MIG Scheme etc. These several modes of disposal of the property acquired by DDA is for pnbhc purpose. When a public authority discharges its public duty, it is to be done in consistence with the pubhc purpose and clear and unequivocal guidelines. In the instant case ilie change in the Scheme was necessitated due to paucity of land and the long waiting queue of