S.N. Sapra, J.

1. By the present writ petition, filed under Article 226 of the Constitution of India, Shri Puran Mal Gupta, seeks to challenge the order dated September 6, 1989, passed by respondent No. 2, whereby, the allotment of a flat, in favour of petitioner, was cancelled.

2. In August, 1985, the Delhi Development Authority, advertised a special Housing Registration Scheme-1985, for retired and retiring public servants. Under this scheme, multistorey flats were to be constructed, for Middle Income Group, Lower Income Group and Janta category. Every Government employee or public sector employee, who had retired, as on July, 11, 1985, and who was due to retire within 3 years, from the date, was eligible to apply for one of the categories of flats, based on his annual income.

3. Since petitioner was due to retire on October, 31, 1987, and, as such, was eligible. He, on August, 31, 1985, applied for the allotment of Middle Income Group flat. In his application, the petitioner stated that the employee was owning only the property measuring 481/4sq. yds. and initial amount of Rs. 12,000 was deposited by petitioner, for registration, along with the application and other documents.

4. In the draw, conducted by respondents on March, 23, 1989, petitioner was one of the allottees in the lot. On March 31, 1989, petitioner was informed that he had been allotted flat No 38-z2, Pocket C, Dilshad Garden, Delhi. It may be noticed that petitioner was in the category of hire purchase allottee. It is alleged that a sum of Rs. 54,321 was remitted by petitioner, vide challan No 4513, in the State Bank of India, in favour of the Delhi Development Authority, on May, 1, 1989. Thereafter, in accordance with the demand, petitioner paid the monthly instalments.

5. Whatever documents in proof of demand, were required by respondents, same were submitted by petitioner. In spite of that, possession of the flat was not handed over to him.

6. Vide letter dated June. 5, 1989, respondent No. 2, requested petitioner to visit his office and give the English translation copy of the sale deed of the property, in which petitioners wife had one half share. The translated copy of the document was delivered in the office of respondent No. 2 on July, 17, 1989.

7. Vide impugned letter dated September 6, 1989, respondent No. 2 informed petitioner that his allotment had been cancelled, as he had not paid the money due. As, the contents of the letter dated September 6, 1989, were factually correct, so, by his letter dated September, 29, 1989, petitioner gave details of the payments, made by him to the DDA.

8. According to the petitioners, he found that there was a noting to the effect in the file that as, petitioner had already a house in Delhi, so he was not eligible to get allotment.

9. Mrs. Kitty Kumaramanglam, learned counsel for petitioner, urged before me that under clause 4(c) of the scheme, if the share of the individual, in the jointly owned plot or land under the residential house is less than 66.9 sq. meters (80 sq. yds.) then, that individual could apply for registration under the scheme.

10. In the present case, the contention of Mrs. Kitty Kumaramanlgam was that petitioners wife was having only half of the share, measuring 48J sq. yards, jointly in plot No. 95, in whole measuring 96 sq. yds., situated in Onkar Nagar, A, New Tri Nagar, Delhi. Under clause 4(c), petitioner was found eligible and was rightly allotted the aforesaid flat.

11. The next contention, urged before me, by Mrs. Kitty Kumaramanglam was that there was a violation of Article 14 of the Constitution of India, as

one Shri Dharam Pal, who was petitioners contemporary and retired on 31st August, 1987, and who applied along with petitioner, had a house of 65 sq. yards and his allotment of flat No. D-75, Pocket III, Phase 1, Mayur Vihar, was not cancelled.

12. On behalf of respondents, Mr. V.K. Sharma argued that as, in his application, petitioner had submitted that he was having a house, built on 48 sq. yds., in the name of his wife, so, he was found disqualified for allotment of a flat by the Delhi Development Authority.

13. After considering the rival contentions of learned counsel for parties, I am of the view that there is a force, in the arguments of Mrs. Kumaramanglam. Clause 4(c) and (d) of the scheme read as under:

4(c) The- applicant must not own any residential house or plot in full or in part on lease-hold or free-hold basis in New Delhi/Delhi/Delhi Cantonment or in any Metropolitan City of India, either in his/her own name or in the name of his/her wife/ husband or in the name of his/her minor or dependent children. If, however, the individual share of the applicant in the jointly owned plot or land under the residential house is less than 66.9 sq. meters (80 sq. yds.) he/she can apply for registration under the Scheme.

(d) A person who has already been allotted a house/flat constructed by the DDA or any other land owning department even if it is less than 66.9 sq. meters, (80 sq. yds.) shall not be eligible for registration of another flat under the scheme.

14. In an identical matter in D.M. Samanatra v. D.D.A. in Civil Writ No. 1424/88, a similar contention, urged, by Delhi Development Authority, was rejected by the Division Bench of this Court, vide its judgment dated December 16, 1988, wherein it was Held:

On a careful examination, we find no merit in this contention. A persual of the copy of the sale deed dated 24th day of January, 1973, relating to the property owned by the petitioner shows that what was sold to the petitioner was a portion of one House G.F. No. 3226, area 62.1 sq. yds. in Ward XII, Aryapura Subzimandi, Delhi, Along with the sale deed, the petitioner has filed a plan showing that portion. No doubt, the petitioner is the independent owner of that portion, but the land or the plot on which the said building was constructed cannot be said to be independently owned by him. He was the joint owner so far as the land or plot under the said residential house. The petitioner, in our view, squarely falls in the eligibility cause (c) referred to above.

15. The present case is fully covered by the judgment of the Division Bench in D.M. Samantra (supra).

16. It may be pointed out that the plot No. 95. measures 96 sq. yds. Half of the plot is owned by the wife of petitioner and the other half by one Shri Dina Nath. A perusal of the copy of the sale deed shows that the plot is joint.

17. Respondents have not disputed the charge of the petitioner, with regard to the violation of Article 14 of the Constitution of India, to the effect that one Shri Dharam Pal, a contemporary of the petitioner, was similarly situated, as he was having a house built on a plot, measuring 65 sq. yds.

18. It is also surprising that the allotment was cancelled on the ground of non-payment when, admittedly, all the payments were made.

19. However, in the rejoinder, this was not disputed that the cancellation was not on the basis of non-payment, but on the ground that the petitioner was not eligible. Petitioner has made the following payments:

Initial depositRs. 12,000 Interest on deposit Rs. 3,272

Rs. 54,321

Rs. 1,293

Rs. 1,293

Rs. 1,293

TotalRs. 73,472





20. Under the facts and circumstances of the case, the writ petition is allowed and the rule is made absolute.

21. The order dated September 6, 1989, and the cancellation of the allotment of the aforesaid plot is hereby quashed. Respondents are further directed to hand over the possession of the alloted flat to petitioner, within four weeks. However, if any monthly instalment is still payable by petitioner, same be paid by petitioner, in accordance with the terms of allotment, and registration, but without any past interest.