LPA NOS. 2594/2005 & 1110/2007 Page No. 1 REPORTABLE * IN THE HIGH COURT OF DELHI AT NEW DELHI + LPA NO. 2594 OF 2005 % Date of Decision : 11 th January, 2008. DELHI DEVELOPMENT AUTHORITY .... Appellant. Through Ms. Sangeeta Chandra, Advocate. VERSUS MS. SWARAN .... Respondent. Through Mr. Sumit Bansal, Advocate. A N D LPA NO. 1110 OF 2007 MR. VISHWA RAJ SAXENA .... Appellant. Through Mr. Sumit Bansal, Advocate. VERSUS DELHI DEVELOPMENT AUTHORITY .... Respondent. Through Ms. Sangeeta Chandra, Advocate. CORAM: HON'BLE DR. JUSTICE MUKUNDAKAM SHARMA, CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? LPA NOS. 2594/2005 & 1110/2007 Page No. 2 3. Whether the judgment should be reported in the Digest ? SANJIV KHANNA, J: 1. Delhi Development Authority (hereinafter referred to as DDA, for short) is the common party to the present Appeals. As similar issues are involved, both the Appeals are being disposed of by this common judgement. FACTS OF LPA NO. 2594/2005 2. Ms. Swaran was enrolled under the Rohini Residential Scheme, 1981 for allotment of plot under the LIG category. She had deposited Rs.2081/- with the DDA on 23 rd March, 1981. After waiting for almost 15 years in the draw of lots held on 27 th March, 1996, she was allotted a plot measuring 32 sq. yards. 3. A demand-cum-allotment letter dated 11 th /18 th September, 1996 was issued calling upon her to make payment of Rs. 86,739.58/- , after adjustment of the of the deposit made in 1981and interest accrued thereon, in the following manner : Rs. 31,799.44 within 30 days of the issue of the demand-cum-allotment letter; Rs. 45,399.20 within 90 days of the issue of the demand-cum-allotment letter and Rs. 9560.04 was to be paid within two months from the date of receipt of the communication offering possession or before taking possession, whichever was earlier. LPA NOS. 2594/2005 & 1110/2007 Page No. 3 4. Ms. Swaran did not make payment within the time schedule stipulated in the allotment letter. She made payment of Rs. 31,779.44 on 15 th October, 1996, Rs. 45,399.20 and Rs.9560/- on 9 th September, 1997. 5. Two letters dated 26 th August, 1997 and 10 th September, 2000 were received by her from DDA asking her to appear and furnish some particulars. She appeared and wrote letters of request that the delay in making payments should be condoned and the plot be allotted to her. 6. By letter dated 21 st March, 2003 she was informed that allotment of plot measuring 32 sq. yds. in Rohini stands cancelled due to non-payment of demanded amount as per the terms and conditions of the allotment letter. She was asked to intimate her bank account details to process her case for refund. 7. She again made representations, but without success. Ultimately, she filed Writ Petition (Civil) No. 804/2004, which stands allowed by the impugned judgement dated 6 th May, 2005. Learned Single Judge noticed that the object behind the Rohini Residential LPA NOS. 2594/2005 & 1110/2007 Page No. 4 Scheme, 1981 was to provide alternative plots to displaced persons on account of acquisition of their land by DDA. It was noticed that there was substantial delay of 15 years in making allotment of plot to Ms. Swaran. Learned Single Judge felt that though payment of the second instalment had been made belatedly, allotment in favour of the appellant should not be cancelled in the light of the policy decision and resolution passed by DDA which authorised the Principal Commissioner to regularise delays in making payment beyond a period of 180 days upto 270 days on payment of restoration charges and penal interest @ 15%. In the present case, the learned Single Judge held that the delay in making payment was about 235 days and DDA after having received the full consideration took six long years to communicate the decision to cancel the allotment. The stand of DDA was held to be unreasonable. LPA NO. 1110/2007 8. Mr. Vishwa Raj Saxena, had deposited Rs.2000/- on 30 th March, 1981 for allotment of a plot under the Rohini Residential Scheme, 1981. In the draw of lots held in 1996, he was declared successful and was allotted a plot measuring 32 sq. yards. The total consideration payable for the said plot was Rs. 75,085/-. After reducing Rs.2000/- already paid and interest accrued thereon, he LPA NOS. 2594/2005 & 1110/2007 Page No. 5 was asked to deposit the balance amount of Rs.70,983.85 in the following manner : Rs. 26,264/- to be paid within 30 days of the issue of demand-cum-allotment letter; Rs. 37,520/- to be deposited within 90 days of the issue of demand-cum-allotment letter and Rs. 7199.85 to be deposited within two months from the date of the communication for possession or before taking possession, whichever was earlier. 9. Mr.Vishwa Raj Saxena deposited Rs.26,264/- on 31 st March, 1997 i.e. after a delay about 182 days and Rs.37,520/- was deposited on 3 rd April, 1997 and the balance amount of Rs.7199.85 was deposited on 15 th June, 1998. 10. Mr. Vishwa Raj Saxena received two letters dated 11 th March, 1997 and 2 nd June, 1998 from DDA requiring him to appear and furnish some details. It is stated that he complied with both the letters. Mr. Vishwa Raj Saxena wrote letters for condonation of delay in making payments and allotment of the plot. By letter dated 20 th March, 2003 Mr. Vishwa Raj Saxena was informed that due to non- LPA NOS. 2594/2005 & 1110/2007 Page No. 6 payment of the demanded amount within time as stipulated in the demand-cum-allotment letter, the allotment stands cancelled and he was called upon to furnish his bank details for processing refund. The respondent wrote some letters to DDA but as he did not receive any positive response, Writ Petition (Civil) No. 4969 of 2005 was filed in this Court. 11. The said Writ Petition was dismissed vide Order dated 6 th March, 2006, holding that there was delay in payment of instalments and the policy decision taken by DDA on 24 th August, 2004 was not applicable as in the present case by letter dated 20 th March, 2003, the allotment in favour of the respondent had already been cancelled. It was also held that Mr. Vishwa Raj Saxena cannot claim any right in his favour as the matter was entirely governed by the contract between the parties. Review application filed by the respondent herein was also dismissed. Along with the review application, Mr. Vishwa Raj Saxena had filed two letters dated 31 st March, 1997 and 3 rd April, 1997 addressed to DDA asking for LPA NOS. 2594/2005 & 1110/2007 Page No. 7 extension of time to make payments. Learned Single Judge held that no ground for review was made out and there was no explanation as to why these two letters could not have been filed earlier. 12. It is apparent from the above that the two judgements passed in W.P.(C) Nos. 804/2004 and 4969/2005, impugned in the present Appeals, are contradictory though the facts are almost identical. Contentions and Findings 13. Learned counsel for the DDA relied upon the following clauses in the demand-cum-allotment letter in support of her submissions :- Clause 2 : “No extension of time for making payment of balance premium of plot will be allowed on any ground whatsoever.” Clause 3 : “If any installment of the amounts mentioned above is not paid within prescribed period of the due date, allotment shall stand cancelled automatically and no request for restoration of allotment of plot shall be entertained on any ground whatsoever.” LPA NOS. 2594/2005 & 1110/2007 Page No. 8 14. It was stated that the terms and conditions of the allotment letters were accepted unconditionally by the two allottees and therefore a binding contract had come into existence. There was violation of the contractual terms mentioned in the allotment letter due to belated payments. Accordingly, the allotments were cancelled for violation of the terms of the allotment letters. By letters dated 20- 21 st March, 2003 DDA had merely rejected the request for extension of time. It was stated that the aforesaid two letters were not in fact orders for cancellation of allotment but letters by which the request for extension of time to make payments were rejected. In the written submissions it is pointed out that there were other allottees who had made delayed payments of the instalments and therefore no benefit should be given to the two parties in the present appeals. Lastly, it was submitted that the policy decision dated 24 th August, 2004 does not have retrospective effect and at the time when the allotments were made and the letters dated 20/21 st March, 2003, refusing to extend the time were issued, only Vice Chancellor, DDA had the LPA NOS. 2594/2005 & 1110/2007 Page No. 9 power to grant extension of time upto 180 days and therefore there was no justification and reason to condone the delay. 15. In view of the contentions raised by the DDA, we have examined the original files of DDA in the two cases. The files reveal that after belated payments were made, the matter was kept in abeyance for awaiting a policy decision that was to be taken in such cases. The order-sheet noting dated 21 st April, 1997 in the case of Mr.Vishwa Raj Saxena and noting dated 22 nd September, 1997 in the case of Ms.Swaran are clear and unequivocal- “wait for policy decision”. 16. The stand of the DDA that the allotments were cancelled in 1996 itself and not in March,2003 is not correct and contrary to the records. DDA was aware that payments as demanded by the allotment letters were made but not as per the time schedule stipulated therein. The consideration paid was retained by DDA as a policy decision in all such cases was to be taken. Payments were consciously and deliberately retained, to await the policy decision. LPA NOS. 2594/2005 & 1110/2007 Page No. 10 This aspect has to be kept in mind while deciding the contention raised by the DDA that time was essence of contract in view of the terms mentioned in the allotment letter. 17. In 1998, cases of late payments were referred to the Vice Chairman, DDA to take a policy decision in file no. F.30(164)96-LSB (Rohini). Photocopy of the said file noting are available in the file of Mr. Vishwa Raj Saxena at pages 155-56. The relevant portion of the said noting read as under:- - 155 - From over-leaf: 4. x x x x x 5. x x x x x 6. x x x x x “7. The approved policy in which cases for 7 th and 8 th draw wherein the payment were received after 180 days. The plots were regularised by the Competent Authority at the current pre- determined rates. A photocopy of the policy of 7 th and 8 th draw are kept at page 27 to 38/C. [This case being that of 9 th draw, if agreed, the same policy can be applied in this case as well i.e. we may issue the possession LPA NOS. 2594/2005 & 1110/2007 Page No. 11 subject to regularised to the delay payment under current pre-determined rates and restoration charges of Rs.200/- per sq. mtr. The Competent Authority for the regularisation is Hon'ble Vice-Chairman, DDA.] - 'A' Submitted please. Sd/- D/Asstt. LSB(R) Sd/- Supdt .LSB (R) Sd/- Asstt. Dir.LSB(R) x x x x x x 'A' may kindly be approved keeping in mind the precedents of 7 th and 8 th draws. Sd/- 29.10.98” 18. One would have expected that same parameters and the policy decision taken in file no. F.30(164)96-LSB (Rohini) should have been made applicable to all other cases of similar nature including cases of Ms. Swaran and Mr. Vishwa Raj Saxena. The above-quoted noting also show that till the 9 th draw of lots, DDA had been regularising late/belated payments as per the policy decision taken with regard to 7th and 8th draw of lots. It was decided that LPA NOS. 2594/2005 & 1110/2007 Page No. 12 belated payments by the allottees successful in the 9 th draw of lots should be regularised as in the cases of belated payments by allottees of 7 th and 8 th draw of lots, subject to payment of pre- determined rates and restoration charges of Rs. 200 per Sq Mtrs. This policy decision should have been applied in the present cases also, as in other cases. However, the file noting show that nothing was done in the two cases of Ms. Swaran and Vishwa Raj Saxena. There is no indication on the file why Ms. Swaran and Mr.Vishwa Raj Saxena were discriminated and not treated at par with other allottees who had made belated payments contrary to the terms of the allotment letter and who had been allotted plots in the same draw of lots i.e. the 9 th draw of lots. 19. Inspite of the policy decision taken in 1998, nothing was done and no steps were taken by DDA, till March, 2000, when the dealing assistant again made a note to further process the two cases. From March, 2000, it took another three years and in March, 2003 a final decision was taken to cancel the allotment and not to LPA NOS. 2594/2005 & 1110/2007 Page No. 13 regularise late payments. Relevant file noting in the month of March, 2003, at page number 159 in the case of Mr. Vishwa Raj Saxena, reads as under:- “Placed below are the files, found out on review, pending for want of regularization of delay in making the payment by the allottees of Rohini Residential Scheme beyond 180 days, either one or two installments towards, the premium and plots are intact. The details of cases are given below: S. No File No./Name of hallottee Date of Draw Date of issue of demand letter Due Date Date of Deposit Delay 1. F.30(271) 96 Kamlesh Kumar 27.3.96 9th draw 13.8.96 to 21.8.96 1st -19.9.96 IInd- 19.11.96 IIIrd- 21.9.96 24.7.97 24.7.97 2 days 247 days In time 2. F.30(118) 96 Vishve Raj Saxena 27.3.96 9th draw 22.8.96 to 29.8.96 Ist-27.9.96 IInd- 26.11.96 IIIrd- 31.3.97 3.4.97 15.6.98 185 days 128 days In time 3. F27 (22)94 H.M.K. Saxena 17.6.94 7th draw 19.2.96 to 26.2.96 1st 25.2.96 IInd- 24.5.96 IIIrd- 11.11.97 20.3.96 24.5.96 17.7.98 In time In time 259 days LPA NOS. 2594/2005 & 1110/2007 Page No. 14 4. F.30(341) 96 Shyam Sunder Alawadi 27.3.96 9th draw 23.8.96 to 30.8.96 Ist-29.9.96 IInd- 28.11.96 III-No letter issued so far. 9.7.97 9.7.97 283 days 223 days 5. F30(172) 96 Smt. Swaran 27.3.96 9th draw 11.9.96 to 18.9.96 Ist- 17.10.96 IInd- 16.12.96 IIIrd- 15.10.96 9.9.97 9.9.97 In time 266 days In time 6. F24(2587)9 4-95 Sh.Sat Narain 4.8.95 8th draw 25.3.96 to 4.4.96 (Re- issued on 27.5.96) 26.6.96 3.7.96 1.6.97 26.6.96 28.6.96 16.9.98 In time In time 471 days As per the terms and conditions of demand cum allotment letters issued in the above cases, if any installment of the amount mentioned above is not paid within prescribed period of the due date, allotment shall stand cancelled automatically and no request for restoration of allotment of plot shall be entertained on any ground whatsoever. No policy is available in the Branch to regularize the delay in premium made by the allottee beyond 180 days. In all the above cases premium stands paid except in one case where no demand for third installment has been raised so far and, therefore, cancelling the allotment at this stage after keeping the premium for about more than 6 years do not seem to be justified. However, it is worthwhile to point out here that the cases of 7 th draw, 8 th draw and 9 th draw at Rohini where payment of premium had been LPA NOS. 2594/2005 & 1110/2007 Page No. 15 delayed more than 180 days were regularized by the Hon'ble VC after charging current PDR plus restoration charges vide his order dt. 3.11.98, the extract of which orders taken from file No.F.30(164)96/LSB(Rohini) is placed opposite for perusal. It is, therefore, proposed that the cases mentioned at Sl.No.3 pertaining to 7 th draw; Sl. No.6 pertaining to 8 th draw and Sl. No.1,2,4 and 5 pertaining to 9 th draw may kindly be restored subject to regularization of delay by charging current PDR plus restoration charges keeping in mind the precedents. Submitted for orders Sd/- Dy. Director (Rohini) 7/01/03” x x x x x “C(LD) may please refer note of DDR. During the scrutiny of pending files of the branch six cases have been noticed where part payment of premium has been deposited after a period of 180 days. In fact as per the terms and conditions of allotment letter, allotment should have been cancelled and in these cases plots should have been re-allotted. However, no action was taken either for cancellation or for re-allotment of plots. In these cases we have received entire premium but possession letters have not yet been issued due to delay. LPA NOS. 2594/2005 & 1110/2007 Page No. 16 Now after a gap of 5 years, it would not be justified to cancel the allotment. We may take lenient view and regularize the delay subject to payment of requisite charges. We do not have any clear policy to deal with regularization of delay in allotment cases. However, in few cases the delay beyond 180 days has already been regularized by the competent authority subject to payment of requisite charges. The photocopies of decision are placed at correspondence. The case if submitted for regularization of delay subject to payment of current PDR plus restoration charges. Submitted for orders. (ASMA MANZAR) DIRECTOR (RL) 8/01/03” 20. However, the aforesaid file noting were not accepted by the Commissioner (Lands). He relied upon the allotment letter and the Clause therein which stipulated that the allotment shall be cancelled automatically. It was also observed that the fact that five years have lapsed since the allottees had made payments was not a good ground and it would not be prudent to regularise the said allotments. LPA NOS. 2594/2005 & 1110/2007 Page No. 17 The Vice-Chairman, DDA approved the said noting made by Commissioner (Lands) and accordingly letters for cancellation were issued. The relevant noting reads:- “The terms and conditions of demand- cum-allotment letters issued in these cases very clearly state that if any instalment of the amount mentioned above is not paid within the prescribed period of due date, allotment shall stand cancelled automatically and no request for restoration of allotment of plot shall be entertained on any ground whatsoever. Keeping in view this stringent condition, it is a case of deemed cancellation and the plots should have been reallotted. Explanation may be called from the concerned officials who did not take necessary action of formally cancelling these plots and then reallotting. Even though a gap of 5 years have lapsed, delay cannot be regularised because payment was deposited by the applicants late on their own which has not yet been regularised. Hence, it would not be prudent to regularise these cases. The refund may be made as per the policy. Hence, plots available may be included in the next draw.” 21. The above noting clearly reveal that the allottees, namely, Ms. Swaran and Mr.Vishwa Raj Saxena have been discriminated LPA NOS. 2594/2005 & 1110/2007 Page No. 18 against. They have not been treated like other defaulters who had also belatedly made payments but as per policy decision taken in 1998, their defaults were condoned. This aspect was most relevant but was ignored and not considered in the above noting. In fact, having retained full consideration, though belatedly paid, for a period of over five years, the two cases were on a better pedestal than other cases in which delay was condoned. It appears that this fact that the consideration paid was retained for over five years without action, went against the two allottees. 22. DDA being “State” and public authority cannot discriminate and is required by mandate of Art. 14 of the Constitution to treat each allottee in a similar manner and a like. DDA cannot pick and choose, condone delay of more than 180 days in some cases but refuse to examine other cases of condonation of delay beyond 180 days. Policy decision taken on 29 th Oct.,1998 should have been applied to all such cases, without any discrimination and favouritism. Policy decision taken on 29 th October 1998 was not illegal and LPA NOS. 2594/2005 & 1110/2007 Page No. 19 contrary to any statute. It may be noted that under the Nazul Land Rules there is no specific provision which bars extension of time for making payments in cases of allotments of this nature. 23. DDA has been given a virtual monopoly for development and allotment of land/flats in public interest and for public welfare. Providing accommodation to homeless and those belonging to lower economic strata of the society has a public purpose. Proper housing accommodation is a natural and a basic requirement. DDA should act reasonably and fairly, conscious of the civil and evil consequences that the citizens may be visited with by it's action. Fairness should be perceptible in its action. Rights and obligations of those affected have to be kept in mind. Salus populi est Suprema Lex, regard for public welfare is the highest law. Even contractual matters should satisfy test of Art.14 of the Constitution. Decision should not be arbitrary, capricious, discriminatory or illegal, irrational and bad for want of procedural impropriety. 24. DDA is a public authority which is established for the LPA NOS. 2594/2005 & 1110/2007 Page No. 20 welfare and well-being of the citizens and to ensure proper development of Delhi, the capital of India. One of its objectives is to provide housing to those who do not own any property in Delhi. The present Scheme was floated in the year 1981. Only persons belonging to Lower Income Group whose total annual income was below Rs.10,000/- were entitled to apply for allotment. Another requirement was that they should not own any property in Delhi. The plot size for which allotment could be requested were between 26 sq.mts. to 90 sq.mts. Persons were required to deposit Rs.2000/- in the year 1981 for registration. It is only after waiting for more than 15 years that for the first time, in present cases letters of allotment were sent. DDA at that stage wanted that substantial payment for the plots to be made within 90 days. However, it is apparent that DDA itself realised that keeping in view the income and the economic background of the allottees, there could be defaults. These defaults were condoned in several cases. 25. Defaults in cases upto 8 th draw of lots were admittedly LPA NOS. 2594/2005 & 1110/2007 Page No. 21 condoned. In 1998 also defaults in making belated payments by allottees in 9 th draw of lots were condoned. Again, on 24 th August 2004 a policy decision was taken to condone defaults upto one year in making payments. Such policy decisions to condone defaults in belated payments have been taken under other schemes also (see policy dated 5.11.1998 quoted in the decision of the Supreme Court in Delhi Development Authority Versus Joint Action Committee, Allottee of SFS Flats and Ors. decided on 13.12.2007 . As per the said policy belated payments upto one year and six months could be condoned by the Principal Commissioner and beyond the said period by the Vice Chairman). There is no reason why the two allottees in the present case should not be treated in the like manner. 26. Whenever such policy decisions are taken, keeping in mind the adverse impact it can have on citizens, wide publicity and warning should be given. There should be transparency and public must be