Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION [C] No.27181 of 2009     (CC 14775/2009)

Delhi Development Authority … Petitioner Vs. Jitender Pal Bhardwaj … Respondent

O R D E R

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.”

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.  

3. 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.

4. 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  

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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.

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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.”  

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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  

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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.  

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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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