JUDGMENT
Pradeep Nandrajog, J.
1. Common question of law arise for consideration in all captioned petitions and hence all were heard together and are being decided by a common judgment. WP(C) No. 14851/04 and WP(C) No. 19244/04 have some additional facts.
2. On different dates, in the years 1982, 1983 and 1984, petitioners were registered by the Registrar Cooperative Societies as Cooperative Group Housing Societies. As per Rule 4 and 6 of the D.D.A. (Disposal of Developed Nazul Land) Rules 1981 each became entitled to land from D.D.A. at predetermined rates. It is not in dispute that priority of allotment was on principle of ‘first come first served basis’ i.e. dependent upon availability of land with DDA, allotment had to be on basis of seniority position of the societies as per their respective dates of registration.
3. On various dates, as and when Registrar of Co-operative Societies enrolled the petitioner societies and froze their membership, a communication was sent by the Registrar to DDA certifying the factum of registration of the society and its membership strength. DDA empanelled the petitioners for allotment of land and required them to deposit Rs. 5 lacs. Needless to state this deposit was a sine qua non for allotment of land.
4. This sum of Rs. 5 lacs was deposited by the petitioners. However in October Delhi Telephone Co-operative Group Housing Society requested for a refund. The said sum of Rs. 5 lacs were refunded by DDA on 16.11.1993 and 4.1.1994 when 2 cheques in sum of Rs. 1 lac and Rs. 4 lacs respectively were tendered to the society by DDA. Notwithstanding the said request, this society was issued an allotment letter on 31.3.1995.
5. On the dates under-noted, DDA issued letters of allotment to the societies:
Sl. No. Name of Society Date
i. Delhi Layalpur Cooperative 10.1.1995
Group Housing Society
ii. Kashriya Co-opeative Group 3.11.1992
Housing Society
iii. Frontier Cooperative 10.1.1995
Group Housing Society
iv. Tenant Cooperative 18.11.1993
Group Housing Society
v. Sahib Ajit Singh Cooperative
(Exact date Group Housing Society
not stated but in the year 1995)
vi. Rabindra Vihar Cooperative 25.1.1991
Group Housing Society
vii. Himlok Cooperative 31.3.1995
Group Housing Society
viii. Delhi Telephone Cooperative 31.3.1995
Group Housing Society
6. As per letters of allotment, the premium demanded had to be paid in 3 installments, first installment being 35% of the premium had to be paid within 45 days of issue of allotment letters.
7. It is not in dispute that the letters of allotment were sent by Registered Post at the address furnished by the societies.
8. It is also not in dispute that letters of allotment issued to all the societies except Sahib Ajit Singh Co-operative Group Housing Society were returned back to DDA with postal endorsements that the societies were not functioning at the notified address. Sahib Ajit Singh Cooperative Group Housing Society which received the allotment letter sought extension of time for making the deposit vide it’s letter dated 6.2.1995. DDA granted extension on 21.3.1995 but did not communicate the letter of extension dated 21.3.1995. However the society did not write to DDA nor sent any reminder as to what decision was taken by DDA on it’s letter of request dated 6.2.1995.
9. Having received back the undelivered letters of allotment sent to the petitioners (except letter sent to Sahib Ajit Singh Co-operative Group Housing Society), DDA sent it’s process server to personally deliver the letters. The process server reported that his personal visit revealed that the societies were not functioning at the notified address.
10. Section 43 of the Delhi Development Act 1957 reads as under:-
43. Service of notices, etc. (1) All notices, orders and other documents required by this Act or any rule or regulation made there under to be served upon any person shall, save as otherwise provided in this Act or such rule or regulation, be deemed to be duly served-
(a) where the person to be served is a company if the document is addressed to the secretary of the company at its registered office or at its principal office or place of business and is either-
(i) sent by registered post, or
(ii) delivered at the registered office or at the principal office or place of business of the company;
(b) where the person to be served is a partnership, if the document is addressed to the partnership at its principal place of business, identifying it by the name or style under which its business is carried on, and is either-
(i) sent by registered post, or
(ii) delivered at the said place of business;
(c) where the person to be served is a public body or a corporation or society or other body, if the document is addressed to the secretary, treasurer or other head officer of that body, corporation or society at its principal office, and is either-
(i) sent by registered post, or
(ii) delivered at that office;
(d) in any other case, if the document is addressed to the person to be served and-
(i) is given or tendered by him, or
(ii) if such person cannot be found, is affixed on some conspicuous part of his last known place of residence or business, if within the National Capital Territory of Delhi or is given or tendered to some adult member of his family or is affixed on some conspicuous part of the land or building to which it relates, or
(iii) is sent by registered post to that person.
(2) Any document which is required or authorized to be served on the owner or occupier of any land or building may be addressed ‘the owner’ or ‘the occupier’, as the case may be, of that land or building (naming that land or building) without further name or description, and shall be deemed to be duly served.-
(a) if document so addressed is sent or delivered in accordance with clause (d) of sub-section (1); or
(b) if the document so addressed or a copy thereof so addressed, is delivered to some person on the land or building or, where there is no person on the land or building to whom it can be delivered, is affixed to some conspicuous part of the land or building.
(3) Where a document is served on a partnership in accordance with this section, the document shall be deemed to be served on each partner.
(4) For the purpose of enabling any document to be served on the owner of any property the secretary to the Authority may by notice in writing require the occupier (if any) of the property to state the name and address of the owner thereof.
(5) Where the person on whom a document is to be served is a minor, the service upon his guardian or any adult member of his family shall be deemed to be service upon the minor.
(6) A servant is not a member of the family within the meaning of this section.
11. Undisputed position therefore is that since DDA sent letters of allotment through Registered Post at the notified registered/head office of the petitioner societies and additionally sent the same by hand at said address, the petitioners are deemed to be duly served. Indeed, learned Counsel for the petitioners did not dispute this legal position and therefore rightly did not urge any contentions or submissions on entitlement predicated on letters of allotment.
12. Issue got resurrected somewhere in the year 2003. Apart from the petitioners there were other similarly placed societies to whom allotments made in the year 1992 to 1995 did not materialize as they too were not functioning at the addresses notified to DDA. One such society ‘Subh Laxmi Cooperative Group Housing Society’ approached the Lt. Governor, who on the administrative side passed orders on the file that DDA should offer another plot to the society at current rates. Before DDA acted pursuant to the said order passed by the Lt. Governor and before fresh allotment letter was issued to the said society, 3 other societies, namely, Mahan Cooperative Group Housing Society, Ravindra Vihar Cooperative Group Housing Society and Sabhan Ul Hind Maulana Ahmed Saeed Cooperative Group Housing Society surfaced. They also sought parity with Subh Laxmi Cooperative Group Housing Society.
13. Principal Commissioner put up a note on the file somewhere in the month of February 2004 The note reads as under:-
The matter is regarding few cooperative group-housing societies which were sent demand letters but those letters came back undelivered. There are 16 such cases and out of that three societies have represented for seeking fresh allotment on the plea of non receipt of offer-cum-demand letter. One cannot disagree with the suggestion of CLD that rather than taking decisions on individual files, the department should have a clear policy in this regard. However, the crucial issue is what should be the policy for which nothing has been recommended. In my opinion, once there is a clear proof that the offer-cum-allotment letter, which has sent to the society was never delivered to it, it is as good as the offer not being made to the society. Legally, Delhi DDA cannot hold the concerned society responsible for that unless all other precautions like sending them again through registered letters, notification in the leading newspapers etc. is done. Besides in one such case Subh Laxmi CGHS Limited on the representation of the socity, LG has already given order for allotment of land to the society on current PDR.
Therefore, in my opinion, all the three societies namely Mahan CGHS Limited, Ravindra Vihar CGHS Ltd. and Sahban Ul Hind Maulana Ahmed Saeed CGHS Ltd. may be given offer on the current PDR. It is likely that few more societies out of the remaining 18 may also approach DDA in future. In their representations come then at that time their cases may also be dealt with at par with these societies as a general principle. Once this approach is approved, DDA can issue an office order which will work as a general policy in such cases.
14. The file was marked to the Lt. Governor, Delhi as the issue related to a policy matter. On 6.6.2004, Lt. Governor, Delhi passed the following order:-
I agree with the proposal put in by the Principal Commissioner. In addition to sending separate communications to these societies an advertisement may be taken out in the leading newspapers informing all the 16 societies that they may approach Delhi Development Authority within a specified time for revival of the allotment at the current PDR.
15. Before DDA took a final decision and before any society to which allotment was made in the years 1992 to 1995 but allotment lapsed, were formally communicated any decision, WP(C) No.8806/04 was filed by Delhi Layalpur Cooperative Group Housing Society. It prayed that DDA be directed to allot a plot to the society so that it could construct flats for its 360 members.
16. Thereafter, 7 more petitions were filed. Order sheets reveal that WP(C) 8806/04 was treated as the lead matter. On 7.2.2004, following order was passed in WP(C) No.8806/04 :- ‘Petitioners are predicating their case on order dated 6.2.2004 passed by the Lt.Governor. As per the petitioners Lt.Governor has passed an order that allotment letters be issued to the societies who did not receive the letters of allotment letters due to change of address.
DDA has only to respond to this limited issue. Commissioner (Land Disposal) DDA would personally look into the grievance of the petitioners. Counter affidavit be filed within 2 weeks. If counter affidavit is not filed, Commissioner (Land Disposal) would be personally present in court. Be listed on 18.1.2004′
17. DDA filed a counter affidavit on 10.11.2004 Inter alia, DDA pleaded as under :
7. That thereafter it was brought to the notice of the Department that in some cases representations have been received for the restoration of the offer letter on the ground that the same had not been delivered at the address provided. It was decided that since the number of cases wherein demand letter has been received undelivered were limited, they could be considered for restoration. However, this decision didn’t reach finality either in the form of a letter to the party or a policy circular/notification because the implication of the same including the legal ramifications were to be examined further.
8. That after the answering respondent-Delhi Development Authority came to realize the magnitude of the problem in that there are about 450 cancelled cases in respect of many of which there would be the incentive for unscrupulous elements to revive the society to come forward with fabricated claims about non- service of allotment letters merely because the letters may have been undelivered due to non-existence or dysfunctional status of such societies. The issues relating to genuineness of members/management of such societies along with the inter linkages also becomes relevant under the circumstances. If these societies had fallen into the hands of builders who were capturing societies for their own personal gains, the result of this exercise would be a huge scam right under the nose of Delhi Development Authority. It was also realized that such a step might hamper the legitimate claim of genuine societies who are waiting for allotment since long. It was decided that the Department may restrict and deal with individual cases of societies on merits as and when they come forward with concrete evidence of not having been served the offer cum allotment letter. The decision of the Hon’ble Lieutenant Governor is therefore in the process of being reviewed under the given facts and circumstances due to the serious implications involved.
9. That on 7.10.2004 the matter was listed before the Hon’ble Court and the petitioner society claimed allotment of land in parity with allotment of land made to other societies after the decision of the Lieutenant Governor dated 6.2.2004 At this stage it is important to mention that the internal nothings on the file of the Delhi Development Authority which in any case should not have been accessible to the petitioner do not give any right to the petitioner until and unless a firm policy decision is in place. The petitioner with a view to mislead the Hon’ble Court placed incomplete facts before the Hon’ble Court as the decision of the Lieutenant Governor dated 6.2.2004 is under reconsideration by the answering respondent and the final decision has not as yet been taken.
10. That in any case the petitioner will have also to explain as to how the petitioner could access and provide photocopies of such nothings which were in the internal files of the answering respondent-Delhi Development Authority. It would not be out of place to mention that the petitioner was sleeping for more than 10 years after issuance of allotment letter and claim that they did not have any knowledge of the status of their file in DDA. It is also interesting to note that such a person who claims to have no knowledge about the status of their plot for last 10 years now secures access to internal nothings of internal files in DDA pertaining to some other society. Moreover, at this juncture it is pertinent to mention that no fresh offer letter has been sent to any society whatsoever in pursuance to the order of Lieutenant Governor dated 6.2.2004 and in fact there is no precedent for the petitioner to claim parity with. As of yet no policy decision as such has been taken till date by the Delhi Development Authority. No revival of any allotment pursuant to order dated 6.2.2004 has taken place. The various dimensions involved in the issue is being deliberated upon including the legal implications and the matter is in the process of being reviewed after considering the full consequences of the said decision.
11. The statutory requirement as laid down by the Delhi Development Authority Act have been complied with the answering respondent-DDA in the present case. Any decision to revive such society without going into the totality of implications and the policy/rule position may result in a catastrophe as most of the societies have been allegedly taken over by builders and who are now trying to get undue advantage over other societies. In the garb of any decision of the general nature other societies which due to passage of time had become defunct are now becoming active and are trying to take advantage of the present circumstances. No general precedents can be created or laid down in these circumstances.
18. Matters were taken up on 18.11.2004 Counter affidavit filed by DDA was considered. Following order was passed :
1. Arguments have been heard. Petitioner is not averse to reverification of its members. Petitioner is not averse to somebody subjecting it to scrutiny to determine whether it continues to be a bonafide society.
2. Counter affidavit of DDA is suggestive of the fact that in principle, DDA is not averse to allot land to cooperative societies to whom letters of allotment were issued earlier but these societies claim that they did not receive the letters of allotment and had made a representation for allotment of land. Counter suggests that DDA is not averse to allot land to these societies at current rates when land is allotted. However, a detailed policy as to what should be the criteria of verification and various parameters which have to be considered in determining the bonafides and genuineness of a society has yet to b4e formulated.
3. Mr.Sanjay Poddar, learned counsel for the petitioner does not join issue on the petitioner societies being subjected to verification/scrutiny for purposes of determination of their genuineness and bonafide existence. Matter cannot be allowed to linger on endlessly as usual with DDA.
4. Direction is issued to DDA to formulate a policy within 2 weeks from today and place the same before this court by the next date.
5. List on 10.12.2004
19. In the meanwhile, Registrar Cooperative Societies filed a response in WP(C) No.8806/04. Inter alia, he stated the following facts :-
3. It is respectfully submitted that the petitioner society was registered on 31.12.1983 vide Registration No. 1124(GH). It is further respectfully submitted that at the time of registration the total number of members was 68.
4. It is relevant to mention that the contention of the petitioner that the records of the society were completely burnt and damaged in riot of 1982, not only wrong but is also false to the knowledge of the petitioner, since the society was registered only on 31.12.1983, with 68 members. It is also submitted that the riot took place in 1984 and not in 1982. So the contention of the society is baseless.
5. It may also be added that the petitioner submitted the list of 300 members on 21.10.1985 i.e. after the frozen date 31.07.1985 which was rejected by department of answering respondent vide letter No.F.47/Veri./Coop./NGH/86/897-98 dated 28.10.1986 and the same was communicated to the petitioner. Accordingly, the members enrolled after 68 were not approved by this department.
6. It is respectfully submitted that the society intimated that the election was held on 02.05.2004 but failed to produce the election records on 07.08.2004 to the office of the answering respondent despite the letter dated 20.05.2004 and a reminder dated 29.07.2004 issued to the society for producing the relevant election records. Since the society has not produced the relevant election records as yet this department has not taken the conduct of election on record as yet. Therefore, the intimation regarding holding of election has not been taken on record.
7. It is further respectfully submitted that the society was issued requisition under Section 30 for conducting election on 12.11.1991, 09.06.1992 and 20.05.1997 respectively but the society has not responded to these aforesaid letters. This only means that the society has been violating the requisition issued under Section 30 of DCS Act and Rules by this department and it only implies that it has not been functioning as per the provision of DCS Act. Rules and Bye-laws of the society.
20. On 8.11.2005, DDA filed an additional affidavit stating that to no society fresh allotment letter has been issued.
21. Shri Sanjay Poddar, learned counsel for the petitioners urged that DDA was bound to implement the orders passed by the Lt.Governor. Merely because the societies became dormant in the year 1992 to1995 did not mean that for all times to come, no land can be allotted to them. Petitioners were ready to have their membership reverified. Petitioners were ready to pay at current predetermined rates and, therefore, no loss would be suffered by DDA.
22. Qua Sahib Ajit Singh Cooperative Group Housing Society Ltd. counsel urged that DDA was at fault as it did not communicate letter dated 21.3.1995 granting extension of time to make the deposit. For this society, counsel urged that an additional reason justified relief.
23. Shri Sachin Chopra, learned counsel for DDA replied that right of a cooperative society to get a plot from DDA was not unlimited in point of time. Under Nazul Land Rules, 1981 (Rules 4 and 6) DDA was under a legal obligation to make an offer as per priority position of a society when land was available. Offer had to be communicated as per Section 43 of Delhi Development Act,1957. This was done. Petitioners were deemed to be served. Petitioners had to accept the offer and make payment. Having failed to do so, petitioners lost their right to a plot of land. Counsel urged that internal nothings on the files of DDA would not give any right to the petitioners as pursuant to the nothings, no communication was sent to the petitioners. Counsel urged that pursuant to the order passed on the file by the Lt.Governor pertaining to Subh Laxmi Cooperative Group Housing Society before any policy was framed, 3 societies surfaced. On 6.2.2004, Lt. Governor passed an order that public notice be issued asking all societies which did not receive allotment letters to come forward within a specified time to receive fresh allotments at current predetermined rates. But it was thereafter realised that the number of such societies was 450. Counsel urged that evident from the reply filed by Registrar Cooperative Societies in WP(C) No.8806/04, defunct societies were being attempted to be resurrected. New members were being enrolled. Not only that, membership was being exceeded. Counsel urged that reply filed by Registrar Cooperative Societies was indicative of a land mafia in operation. Counsel urged that internal nothings on the file do not create any vested right till formal communication is sent to a party.
24. Qua Delhi Telephone Cooperative Group Housing Society, counsel urged that additional reason for declining relief was that it had withdrawn even its security deposit of Rs.5 lacs in 1994 and had voluntarily opted out.
25. Qua Sahib Ajit Singh Cooperative Group Housing Society, counsel submitted that merely because DDA did not send letter dated 21.3.1995 granting extension of time, did not mean that the society got a right unlimited in point of time to get a plot. Counsel urged that the society ought to have at least written to DDA within reasonable time to find out the fate of request dated 6.2.1995.
26. Rule 4 and 6 of DDA (Disposal of Developed Nazul Land) Rules 1981 reads as under:-
4. Persons to whom Nazul land may be allotted.-(1) The Authority may, in conformity with the plans, and subject to the other provisions of these rules, allot Nazul land to individuals, body of persons, public and private institutions, co-operative house building societies, other co-operative societies of individuals, co-operative societies of industrialists and to the departments of the Central Government, State Governments and the Union Territories.
(2) The Authority may, in conformity with the plans, and subject to the other provisions of these rules, allot nazul land to a company, firm or trust for the purpose of the establishment of hospitals, dispensaries or higher/technical education institutes.
6. Allotment of Nazul land at predetermined rates- Subject to the other provisions of these rules the Authority shall allot Nazul land at the predetermined rates in the following cases:-
(i) …
(ii) …
(iii) …
(iv) …
(v) …
(vi) To cooperative group housing societies, cooperative housing societies, consumer cooperative societies and cooperative societies of industrialists on first come first served basis.’
27. It is apparent that cooperative societies are entitled for allotment of nazul land at pre-determined rates.
28. As per Rule 6 (vi) allotment has to be made on first come first served basis.
29. This entitlement of the petitioners was respected by DDA when allotment letters were posted to the petitioners on various dates in the years 1991 to the year 1995. The allotment letters were posted in compliance with Section 43 of the Delhi Development Act, 1957. They were posted at the registered office/head office of the petitioners. In terms of Section 43, petitioners are deemed to be duly served.
30. Petitioners cannot claim that they have a right of allotment, unlimited in point of time. Once petitioners lost the right to receive a plot, this right does not stand resurrected under the Nazul Land Rules. However, nothing prevents DDA from formulating a reasonable policy to restore entitlement, but this policy has to be applicable to all societies constituting a homogeneous group. In other words, this policy has to govern all cooperative societies which did not receive letters of allotment, though posted at the correct address, on account of the reason that the society was not functioning from the notified address.
31. Further, such a right would be resurrected when a formal policy is framed and notified to such cooperative societies. Mere internal nothings on the file do not constitute any communication to the cooperative societies and no right can be founded thereon.
32. Supreme Court, in its report published as , Bachhitar Singh v. State of Punjab held that opinion expressed by a Minister on the file is a mere step in the decision making process. Essence of law required a formal communication to flow to the party affected, before Government could be held bound to a decision taken by it. This principle was reiterated in the decision reported as , Bahadur Sinh Lakhubhai Gohil v. Jagdish Vhain Kamalia.
33. A Division Bench of this Court, in the report published as , U.O.I. v. Parshadi and Ors. held that decision taken by a Minister which had not been formalized into a policy decision could be reviewed and recalled by a successor Minister if good and sufficient material was placed before the successor Minister warranting a recall of the opinion expressed by the predecessor.
34. Division Bench held that in the absence of mala fide alleged and established, no fault could be found with the decision of a successor Minister who acted on relevant material to nullify the decision recorded by his predecessors.
35. The scope of judicial review in such kind of matters is now fairly well settled. There has to be fairness in administrative action and it has to be free from the vice of arbitrariness. Article 14 covers all actions of the State. In a judicial review action, focus of the inquiry has to be, in the facts of the present cases, whether refusal by DDA is fair and not arbitrary. I am not to function as an Appellate Authority. I am not to judge the correctness of the decision. I am only concerned with the legality, procedural regularity and propriety of the decision.
36. Facts pertaining to Delhi Layalpur Cooperative Group Housing Society bring out that the Registrar, Cooperative Societies formed a valid opinion that something was amiss. Counter affidavit filed by the Registrar, Cooperative Societies evidences that the possibility of a dead society being resurrected cannot be ruled out.
37. Beneficiaries of the land have to be the members of a cooperative society. If original members have dissipated, it would be a relevant consideration whether such a society should be allotted land merely because at some point of time it was registered as a cooperative society.
38. In the instant case, before any formal policy could be framed and notified by DDA to all such cooperative societies as petitioners are, it dawned that nearly 450 such societies existed. This to my mind is a relevant consideration for taking a decision whether the opinion expressed by the Lieutenant Governor should be implemented or not. Surely, it would have been an arbitrary action if DDA give benefit to only those societies qua whom Lieutenant Governor directed issuance of fresh allotment letters. When the matter was placed before the Lieutenant Governor, he rightly opined vide his note dated 6.2.2004 that a public notice be issued inviting all cooperative societies who had not received allotment letters to apply afresh for allotment of land at current pre-determined rates. But before this decision could be implemented, DDA found that there existed nearly 450 such societies.
39. DDA was therefore justified in not formalizing the policy to resurrect all such societies.
40. On the submissions made by Counsel for the petitioner pertaining to orders passed by this Court, I may only note that the petitioners rushed to the Court when DDA was still in the process of formalizing its decision. The orders passed from time to time merely record that DDA was not averse to allotting a plot but was contemplating as to how it should frame a formal policy. As noted above, this investigation revealed to DDA that 450 such cooperative societies existed. At that stage, DDA dropped the idea of proceeding ahead.
41. As noted above, it is not a case of denial of a right vested in the petitioners. Honouring their right, on various dates between 1991 and 1995 DDA issued allotment letters. Petitioners lost the said right due to their own default and probably for the reason members had dissipated and except for the shell, nothing of substance remained in the petitioner societies.
42. Petitioners have no case at all. The petitions have to be dismissed. Qua Delhi Telephone Cooperative Group Housing Society, I may note that there is an additional ground to dismiss its petition. This petitioner has voluntarily withdrawn even the security deposit.
43. Submission of Counsel qua Sahib Ajit Singh Cooperative Group Housing Society that DDA did not send letter extending time for making the deposit is neither here nor there for the reason it ought to have, within reasonable time made a query from DDA as to what happened to its letter dated 6.2.1995. It is too late in the day for this petitioner to predicate a claim on the alleged non communication by DDA which non communication took place in the month of March, 1995. On said cause, petition is highly belated. It suffers from culpable delay.
44. The writ petitions are dismissed.
45. No costs.