JUDGMENT
S. Ravindra Bhat, J.
1. This appeal under letters patent is directed against the judgment and order of a learned Single Judge dated 24th November, 2003 in CWP No. 1954/1998.
2. The question requiring consideration is whether the appellant (hereafter called ”DDA”) was justified in reviewing/withdrawing its decision to allot a flat to the respondent, who had applied under its scheme formulated in 1979.
3. The DDA framed a scheme known as the New Pattern Registration Scheme, 1979 (”NPRS-1979”) for allotment of Middle Income Group (MIG) flats, with a plinth area of approximately 60-65 square meters. In its brochure the DDA assured that the plinth are a would comprise of certain minimum built up portions. Rs.4,500/- was collected as registration amount and a tentative price was indicated. The registrants were given a priority number which was to be basis of draw of lots to be held on periodic basis.
The registrants,under this scheme, upon their being successful in this draw of lots, were offered flats through allotment letters.
4. In January 1994 the appellant was allotted a flat in Narela. Upon inspection of the flat, she discovered to her surprise, that contrary to the assurances held out in the brochure, the built up area comprised only a small room, a small kitchen and a tiny bath room and W.C. This according to her was far less than what had been assured. Besides the flat offered was neither fully built up nor was habitable.
5. In apparent disgust at this shabby treatment meted out by the DDA, the respondent sought and was granted a refund of the registration amount.
6. In the meanwhile, a number of registrants (identically situated with the respondent, having registered under the same scheme, waited for about 15 years and later having been offered barely habitable flats) approached this Court under Article 226 of the Constitution complaining of DDA’s arbitrariness. In those proceedings, the DDA for the first time revealed that such partially built up flats were in fact ”incremental” i.e. where allottees, upon acceptance, were permitted to raise constructions. This fact had not been notified by DDA to the allottees of such flats. This Court, by its order dated 24.3.1995 recorded the stand of DDA that these flats were of ”incremental category” . It was further recorded that the petitioners in those proceedings were given the choice to opt for such flats in the light of this clarification within a time frame.
7. Thereafter, the response to the incremental flats was lukewarm and the DDA took a decision to allot regular flats to those who had been allotted such incremental flats. The names of such allottees and the other registrants who had sought refund, (upon being offered the incremental flats without being informed about permissibility of further construction) were included in the draw of lots. The Respondent’s name was also included in the draw of lots for such regular flats. However, she was not allotted any flat. She, therefore, represented to DDA, which took a decision in her favor in July 1996. The decision of DDA is a part of the record and was before the learned Single Judge. Relevant portion of the views of the then Director, DDA (at page 29, Annexure ‘D’ to the C.W.P. No. 1954/1998) which was accepted is reproduced below:
”It is clear that in view of the decision of the Court and that of the DDA to allot regular flats to all these allottees of incremental allottees, a right has accrued. The registrants/allottees are entitled to regular flats. We have already allotted a number of regular flats to the incremental allottees. In the present case Mrs. Madhurima Malhotra is interested for a regular flat and in fact she is entitled to such flat”.
8. This view contained in the noting of the Director, DDA was eventually approved by the Vice-Chairman who decided on 24.7.1996 that ”the above decision will need to be made applicable in all similar cases”.
9. Pursuant to the above decision, DDA included the name of the respondent in the draw of lots for a regular flat.
10. A surrealistic turn of events then ensued and the respondent was intimated in 1998 that the decision to allot a regular flat to her stood reversed. She thereupon approached this Court under Article 226 of the Constitution seeking an appropriate writ, among others to direct DDA to give possession of the flat which had been allotted to her.
11. The DDA resisted the petition by stating that the respondent had voluntarily sought refund and could not therefore complain. It did not dispute its decision taken in July 1996 where the names of allottees of incremental flats were required to be put in draw of lots for regular flats. However, the DDA maintained that the policy was re-considered and reviewed on 20.1.1998. It did not spell out the rationale for such re-consideration. Significantly, the DDA did not dispute that the names of all allottees of incremental flats had been included in the draw of lots, subsequently, for regular flats.
12. The learned Single Judge after considering the pleadings and nothings in the relevant files of the DDA returned a finding that the respondent could not be faulted in the first instance because she sought refund without being informed about the possibility of further construction in the incremental flats allotted to her. The judgment under appeal also records that the DDA did not issue any separate brochure for incremental flats and that allottees of such flats were not told that they were being offered such incremental category of flats. This critical absence of information made all the difference. The DDA itself decided to include the names of such registrants in the subsequent draw of lots for regular flats; therefore, it was held that it was not open to DDA to resale from its decision and withdraw the name of the respondent from the allotment list.
13. Mr. C. Mohan Rao, learned counsel appearing for the DDA assailed the findings of the learned Single Judge. He contended that in the first instance those who approached the Court initially in 1995 and were offered flats in the incremental category alone were entitled to the allotment. According to him, those who did not approach the Court formed a separate class. He further urged that those registrants who were allotted the incremental flats and sought refund are prevented from claiming the benefit of allotment in the regular draw due to some kind of estoppel/waiver on their part. He also contended that the inclusion of names of all registrants who were offered incremental flats, including those who had secured refund of the registration amounts was through inadvertence which was rectified by the later review or re-consideration of the DDA’s policy. He, therefore, contended that such persons could not claim any entitlement or vested right as they had already opted out of the scheme by making applcations for refund.
14. The respondent in this appeal was represented by Mr. Deepak Ralan, Advocate. He contended that the findings of the learned Single Judge require no interference. Learned counsel for the respondent argued that at no point of time prior to the refund, were allottees of incremental flats intimated about its true nature. It was urged that the litigation based classification pressed into service by the DDA cannot be countenanced. Lastly, it has been submitted that inclusion of names of all registrants no had been allotted incremental flats, (regardless of whether they had sought refund), was a correct decision and that its reversal was arbitrary and not based on any justifiable principle.
15. The facts narrated above disclose that registrants of the NPRS-79 formed a homogeneous class. All of them applied under the same brochure to get flats with similar area having common features. However, in 1994 many of such registrants including the respondent were offered/allotted semi-constructed flats with vastly reduced plinth area. Expectedly, this led to a sense of deprivation. In some cases, the allottees approached the Court and in others, they sought refund. In the Court, for the first time, the DDA informed such allottees that the flats were ”incremental” and could be constructed upon. This vital change in stand was not reflected through a public notice nor ever notified to existing registrants or those who had opted out. When this position was revealed some of the registrants like the respondent went back to DDA. On a representation made, the DDA, (in our opinion correctly), decided to consciously include the names of such allottees of incremental flats in the regular draw of lots
This decision, was taken at the highest level of the DDA and consciously sought to be made applicable to all similarly situated persons. It was akin to an administrative review, a corrective measure, which conformed to the mandate of Article 14. The before, the names of such allottees of incremental flats were included in the subsequent draw of lots. In-explicably, however, letters of allotment were withheld to such allottees and eventually the decision was reversed. The rationale for this reversal of decision (which took place in 1998) is not forthcoming. Mr. Rao sought to support this review/reconsideration of 1998 by citing that giving effect to the earlier decision would have meant allotting flats to about 2000 persons.
16. The first submission of counsel for the DDA, namely, that there is a litigation based classification, has to be merely noticed to be rejected. This stand was neither pleaded nor urged at any stage in the proceedings before the learned Single Judge. Further more in the absence of any evidence to the effect that the DDA itself confined the benefit of inclusion of name to those incremental allottees who had approached the Court, by any public notice/intimation, such a plea is devoid of substance. All registrants in the NPRS-1979 formed one homogeneous class. If there was to be some differential treatment, the brochure or the initial documents relating to the scheme had to disclose it. However, that is not the position here. The mere fact of certain persons approaching the Court in the event of their not being offered flats as per the original notified scheme cannot therefore support such a claim to classification.
17. The second submission of the DDA is about the allottees of incremental flats who sought refund, not being now entitled to claim regular allotment. It has been discussed earlier that the nature of the incremental scheme was never made public. The plea of waiver or estoppel, as it were, has to be, therefore, examined in the light of this absence of information on the part of DDA. Waiver pre-supposes a conscious decision based upon knowledge of existence of choice. In Provash Chandra Dalui vs. Biswanath Banerjee, the Supreme Court held that:
”Thus voluntary choice is the essence of waiver for which there must have existed an opportunity for a choice between the relinquishment and the conferment of the right in question”.
18. In a more recent decision, the Supreme Court in Sikkim Subba Associates vs. State of Sikkim2 formulated the proposition as follows:-
”Waiver involves a conscious, voluntary and intentional relinquishment or abandonment of a known, existing legal right, advantage, benefit, claim or privilege which except of such a waiver the party would have enjoyed”.
19. The facts of the present case show that the respondent had no knowledge of the true nature of the incremental flat. She was also not made aware that if she continued with her registration, she would be included in the draw of lots for regular flats.
In this situation, she applied and secured refund of registration amount. Therefore, she could not be said to have waived her right to the benefit of allotment of regular flat. The decision to allot regular flats to allottees of incremental flats uniformly was in fact taken consciously by DDA as a move to undo what was perceived as a wrong. Likewise, there is no question of estoppel because the respondent did not seek refund after being notified about the possibility of construction of the incrementat flat. Hence, there is no force in the second submission on behalf of the DDA that the respondent having secured refund, she could not claim the benefit of regular allotment, on account of waiver or estoppel.
20. The last submission of Mr.Rao, is also lacking in force. The contention that name of the respondent and the others were included on account of inadvertence is unacceptable in view of the conscious decision recorded by DDA in July 1996. The nothings show that the Vice-Chairman unequivocally endorsed the view that all persons had to be included in the draw of lots at that point of time. No distinction was made between those who secured refund and those who had not sought it. A distinction could not and was rightly not made. Therefore, the latter, impugned review is not founded on any justifiable principle. Having included the names of all incremental allottes flat irrespective of whether they had approached the Court or had sought refund it was not open to DDA to make later rationalisations and review that decision. Absolutely, no reasons are forthcoming as to why the allotment letters were not issued. Similarly, there are no reasons on which the review is based or indeed what prompted the review.
21. In these circumstances, we have no hesitation in agreeing with the findings and conclusions of the learned Single Judge which we fully endorse.
22. In parting we cannot but notice that the facts of the present case reveal a completely apathetic attitude on the part of the DDA. At every stage of the proceedings it sought to defend its opaque functioning by making a virtue of its delay and trying to take shelter through imaginary lapses of the respondent.
23. The appeal is accordingly dismissed with costs assessed at Rs.2,000/- which shall be paid within four weeks to the respondent.
24. In view of the judgment in the appeal, the pending application does not survive and is accordingly disposed of. .