Delhi High Court
Virender Singh Sethi vs Vice Chairman, Dda on 23 August, 1996
Equivalent citations: 63(1996)DLT966, 1996(39)DRJ25, 1997RLR69
Author: R.C. Lahoti
Bench: R.C. Lahoti, S.N. Kapoor
JUDGMENT R.C. Lahoti, J.
(1) In the year 1982, the Delhi Development Authority, respondents No. 1, floated a scheme for construction and allotment of houses known as Fifth (1982) Self-Financing Housing Registration Scheme. The scheme was floated under the Delhi Development Authority ( Management and Disposal of Housing Estates) Regulations, 1968. The object of the scheme was to obtain financial participation during the period of construction by such persons who wish to own flat according to the different types/designs offered by D.D.A. The petitioner Varendar Singh Sethi was born on 13-2-1966. On 9-8-1982, when he was 16 years 6 months of age, he applied for registration under the scheme under the guardianship of his mother. The application was accompanied by a challan depositing an amount of Rs. 10,000.00 in favour of the D.D.A. The registration was allowed and the petitioner was issued a certificate of registration No.5658. After waiting for a period of about 5 years, a draw of lots was held .on 30-9-1987 and in the block dates of 20/27 -10-1987, the petitioner was allotted a flat in Paschim Puri, 23 Block: G17, Pocket: Gh 13 in Category Ii on the ground floor. The petitioner was informed by the D.D.A. vide allotment-cum-demand letter dated 20/27-10-87 (Annexure-C) asking him to deposit a sum of Rs. 2.04.974.55 p. on or before 27-11-1987. It was mentioned in the said letter that the demand should be paid within 90 days of the due date and in case of default, the restoration will be done upon payment of interest plus cancellation/restoration charges. By the time of allotment of flats, the petitioner had already become a major having attained the age of 21 years 8 months. The schedule of payments was shown as under by the D.D.A.:- Instalment Amount Due date. First RS.55349.75 5.8.1986 Second Rs.44279.80 31.08.1986 Third Rs.55349.75 30.11.1986 Fourth Rs.44279.80 28.02.1987 Total Rs.1,99 259.10.
A note inserted below the above schedule required the petitioner to make payment lump sum as the dates of instalment preceded the date of draw held by D.D.A: The petitioner made the payments as under: Date Challan No. Amount 27.1.1988 21942 Rs. 1,00,000 28.2.1988 411807 Rs. 50,000 25.10.1988 55851 Rs. 55,000 Total Rs. 2,05,000 (2) It is not disputed that after giving credit for the amount of registration deposit and interest accrued thereon, the net amount payable by the petitioner was Rs. 2,04,974.53p. and due date was 27-11-87. There was a grace time of 90 days for making the payment. Thus out of the demanded amount, a sum of Rs. 1,50,000/ had been paid in time. There was a delay in payment of Rs. 55,000/.
(3) On 9-3-1989, the D.D.A. issued a letter to the petitioner informing that on account of nonpayment in time the allocation had stood automatically cancelled on 26-2-1988. It was also mentioned that the cancellation charges and interest shall be worked out and indicated to the petitioner in due course. The petitioner in reply gave the details of the payment and sought for restoration of allotment. On 15-1-1990, the D.D.A. issued a letter Annexure -'G' informing him that the petitioner's allotment was cancelled on 12-11-1989 as the petitioner was minor at the time of registration. The petitioner made representations, sought for interview with the officials of the D.D.A. and filed this petition on 15-3-1993 as he was not allowed any relief by the respondent.
(4) The petitioner seeks a direction to the respondent to restore the allotment by striking down the letter dated 15-1-1990 and possession of the flat to be delivered to the petitioner. The petitioner has expressed his willingness to pay such further charges as may be due and payable by him for the purpose of restoration of allotment.
(5) According to the respondent D.D.A., it was one of the essential eligibility conditions that the applicant must have been major on the date of making application. As, on his own showing, the petitioner was ineligible to make the application for registration under the scheme, the respondent D.D.A. has rightly cancelled the registration and consequently the allotment.
(6) Before examining the question arising for decision in the petition, we may notice the relevant provisions. Para 2 (16) of the Regulations defines eligible person as under:- "Eligible person" means a person who is entitled to the purchase of a property in accordance with the provisions of the Scheme and these regulations:"
Regulation 7 prescribes eligibility Of allotment in the following terms: Eligibility of Allotment. "A dwelling unit of flat in the Housing Estates of the Authority shall be allotted only to such person who or his wife/husband or any of his/her dependant relations including unmarried children do not own in full or part on free hold or lease hold basis a residential plot or house in the urban area of Delhi, New Delhi and Delhi Cantonment."
(7) The learned counsel for the respondent D.D.A. has also invited attention on of the Court to a few clauses of the Scheme which are as under: 7.Eligibility: (a) The applicant must be a citizen of India. (b) He should have attained the age of majority. 16. General: (iv) It is not possible to check the eligibility of the applicant at the time of registration Those who are not eligible would register at their own risk and would not be entitled to allotment of flats, even if they are registered."
(8) It is submitted by the learned, counsel for the D.D.A. that the applicant being ineligible for making the application under the Scheme, he cannot take any advantage of his having been allowed registration and also having been included in the draw of lots. On the contrary, it is submitted by the learned counsel for the petitioner that the petitioner has not played any fraud nor made any material concealment while making the application for allotment. He had disclosed his minority. He had applied under the guardianship of his mother. The question of eligibility for allotment has to be judged by reference to the date of allotment on which the petitioner was certainly major. In the alternative it is submitted that the respondent D.D.A. is debarred by the principles of equitable estoppel from cancelling the allotment in favour of the petitioner. In any case the alleged disqualification on the date of making the application having come to an end or having worked up by the time of 1 allotment, it should not come in the way of the petitioner.
(9) Having heard the learned counsel for the parties, we are satisfied that the petition deserves to be allowed and the cancellation of the petitioner's registration and allotment by the D.D.A. thriving on technicality in the facts and circumstances of the case, cannot be sustained.
(10) We may first examine if the petitioner has suffered any ineligibility under the Regulations. The Regulations do not provide for any qualification or disqualification by reference to the age of the applicant. Para 2 (16) of Interpretation Clause defines eligibility by referring to the provision of Scheme and the Regulation also. It is the Scheme which speaks of the eligibility being determined also by reference to the applicant having attained the age of majority. However, it is pertinent to note that the eligibility criteria laid down vide para 7 of the Scheme do not also clearly speak of the date by which the applicant should have attained majority. In our opinion, in the absence of any specific provision requiring the applicant to have attained the age of majority on the date of making the application itself, it would be reasonable to hold that the test of majority should be applied and seen to have been satisfied by reference to the date of allotment.
(11) Even otherwise we are of the opinion, that in the peculiar facts and circumstances of the case, the registration and allotment of the petitioner should not have been cancelled on account of the applicant having been a 2 minor on the date of making the application. 12.The applicant cannot be accused of having made a false statement or concealment. He disclosed his minority and that is why he acted through his mother, the natural guardian. It was open to the respondent D.D.A. to have refused registration at the time of making of the application itself. But the registration was allowed without any demur. It is true that para 16(4) of the 3. Scheme protects the D.D.A. yet it cannot be denied that the D.D.A. was obliged to scrutinize the eligibility of the applicants at least before including their names in the draw of lots. That was also not done. The applicant was included in the draw of lots and a flat was allotted to him. He also paid the in- statements which were accepted by the D.D.A. without any demur. There was some delay in payment of one instalment. There also the D.D.A. informed the applicant that it was calculating the cancellation charges and interest for the delayed payment meaning thereby that in the event of payment of cancellation charges and interest, the delay in payment of the amount of instalments would have been condoned by the D.D.A and the allotment maintained.
(12) Learned counsel for the petitioner has placed reliance on two decisions of the Supreme Court: Rajinder Prasad Mathur V. Karnataka University, 1986 (Supp) Supreme Court Cases 740 and Shri Krishan V. Kurukshetra University., .
(13) Rajinder Prasad Mathur's case was a case of the petitioners who though not eligible for admission and having no legitimate claim to admission to the engineering degree course were allowed such admission. The blame for such wrongful admission laid more upon the engineering colleges which granted admission than the appellant students, because the Principals of those engineering colleges must have known that appellants were not eligible for admission and yet for the sake of capitation fee in some of the cases, they granted admission to them. Their Lordships of the Supreme Court were much impressed by the consideration that the appellants being young students might have genuinely presumed that they were eligible for the admission and they must be allowed to continue their studies in the respective engineering colleges in which they were granted admission.
(14) In Shri Krishan's case their Lordship have held:- "Where a person on whom fraud is committed is in a position to discover the truth by due diligence fraud is not proved. It is neither a case of suggestion falsi, nor of suppression veri. Once the candidate is allowed to take the examination, rightly or wrongly, then the statute which empowers the University to withdraw the candidature of the applicant has worked itself out and the candidate cannot be refused admission subsequently for any infirmity which should have been looked into before giving the candidate permission to appear.
(15) The above two cases are cases of education institutions touching the educational career of the students and may not strictly apply to the facts of the case at hand but the principles laid down therein are of help. As already conceded there is no suggestion falsi or suppression veri, on the part of the petitioner. The ineligibility, if any, in the applicant, should have been better known by the D.D.A. The D.D.A. was never serious about it and continued dealing with the petitioner as an eligible and lawful applicant claiming allotment. An amount of Rs. 2,05,000/ over and above the initial payment was accepted from the petitioner. But for delay in payment of an instalment there would have been no occasion for the D.D.A. to cancel the allotment and when the petitioner approached the respondent D.D.A. for restoration of the allotment then only the respondent D.D.A. came out with the plea of ineligibility of the petitioner. By this time, the petitioner had already awaited for about 6 years for a roof over the head of himself and his family members. If only the petitioner would have been pointed out his ineligibility in the year 1982 then any other member of his family, even the mother who was acting as a guardian of the petitioner, could have sought for registration in her own name. Accommodation in Delhi is scarce. It would be not only harsh but inhuman to tell a person like the petitioner after lapse of so many years that he cannot have a house though he is fully eligible for it on the date of allotment merely because he was ineligible sometime long back in the past on the date on which he had applied for registration.
(16) Incidently, we may refer to Section Ii of the Contract Act which disqualifies a minor himself entering into a contract but does not prohibit a minor entering into a contract through a guardian or being a beneficiary under the contract.
(17) Admittedly, the petitioner does not suffer from any other ineligibility. For the foregoing reasons, the petition is allowed. The impugned letter dated 15-1-1990 and the decision dated 12-11-1989 on which the letter is based, cancelling the petitioners' registration hereby quashed and set aside . The respondent D.D.A. is directed to inform the cancellation charges and interest for delayed payment to the petitioner within six weeks from today. The petitioner shall make payment of cancellation charges and interest and also such other amount as may be due and payable by him and comply with usual formalities in the matter of documentation etc. within a period of four weeks thereafter. On that being done, the respondent D.D.A. shall deliver possession of the flat to the petitioner within four weeks. The petition stands disposed of. No order as to costs.