16.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3144/2008
Date of decision: 8th May, 2009
HEMANT KUMAR ..... Petitioner
Through Mr. Atul Bandhu, Advocate.
Versus
LT. GOVERNOR & ANR. ..... Respondents
Through Ms. Sangeeta Chandra, Advocate for
DDA.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported
in the Digest ?
ORDER
%
1. This is the second round of litigation. The petitioner-Mr. Hemant Kumar had earlier filed W.P. (C) No. 12607/2006.
2. The petitioner was registered under Ambedkar Avas Yojna of DDA on 4th December, 1989 on deposit of Rs.12,000/-. After waiting for about 15 years, the petitioner was allotted a MIG flat in Dwarka vide demand- cum-allotment letter with block dates 25th September, 2003- 30th September, 2003. The allotment was on hire-purchase basis with substantially high rate of interest. The petitioner made a representation W.P. (C) No. 3144/2008 Page 1 for allotment on cash down basis to save the incidence of interest. The said request was accepted by DDA vide their letter dated 19th January, 2004 and the petitioner was called upon to deposit cost of the flat of Rs.10,25,876/-. The letter also stipulated last date of payment with interest. This letter was received back undelivered. Subsequently, this letter was delivered by hand on 23rd September, 2004. The petitioner made payments of Rs.14,788/- on 21st January, 2004 and Rs.7,394/- on 24th March, 2004. Thereafter, the petitioner made payments of Rs.1,48,000/- on 7th February, 2005 and Rs.8,56,000/- on 13th April, 2005. Thus, the petitioner has made total payment of Rs.10,38,182/- including initial deposit of Rs.12,000/-..
3. DDA, on the other hand, by their letter dated 24th February, 2005 informed the petitioner that the allotment of the said flat stands cancelled. This Court noticed the aforesaid facts and by order dated 1st August, 2007 in W.P. (C) No. 12607/2006 called upon the respondent-DDA to re- examine and reconsider. The observations made by the Court in the order dated 1st August, 2007 are as under:-
"10. This Court has in a number of orders issued recently (for instance, the order dated 8.1.2007 in WP(C) No. 8627 of 2006 Hari Krishna Madan v. DDA) required the DDA to examine the cases of late payment in terms of DDA‟s policy dated 1.6.2000 as modified on 31.8.2001 and 7.6.2005.
The records of the DDA will have to indicate its conscious decision after examining the case of each such belated payment in light of the policy as modified. Particularly, the DDA will have to W.P. (C) No. 3144/2008 Page 2 apply certain objective criteria to come to the conclusion whether the delay in a given case can be condoned. While in cases of delay up to 3 years, the criteria is of a „deserving‟ case, there is no such criteria where the delay is less than one year. In the instant case, delay is up to a period of one year and power to restore the allotment is with the Commissioner (Housing)."
4. Unfortunately, but not surprisingly DDA has refused to accept the request of the petitioner vide file noting placed on record with the counter affidavit. It is recorded by the Commissioner (Housing) that the petitioner allottee had failed to make payment within the time limit stipulated in the demand letter, i.e., by 19th January, 2004 and accordingly the cancellation of allotment on 24th February, 2005 was justified on the ground that sufficient time had been granted to the petitioner allottee to deposit the demanded amount.
5. The aforesaid file noting in substance ignores the observations made in the order dated 1st August, 2007 in W.P. (C) No. 12607/2006. The delay in making payment is there. The question is whether the petitioner should be penalized after he has waited for 15 years and deposited of the full amount albeit late within 7 months of the last date. The Court had noted that in deserving cases delay of upto three years can be condoned. The Court had also noticed that the petitioner had made voluntary payments though this by itself per se does not entitle the petitioner to automatic restoration. Just, fair and a reasonable approach is required from DDA. It W.P. (C) No. 3144/2008 Page 3 is difficult to ignore the fact that the petitioner has been waiting for allotment since 1989. Difficulties and problems in arranging for funds specially for persons belonging to lower income groups can be well appreciated. The petitioner along with his additional affidavit has filed on record letters written during 2004 till April, 2005 by him to DDA informing that he was arranging for funds and for this purpose he wanted to mortgage the flat. Request was made to DDA to permit mortgage. The petitioner has also filed on record certificates relating to his treatment of thyroid. These are relevant aspects, which should have been taken into consideration by the Commissioner (Housing). At this stage, learned counsel for the petitioner states that to buy peace of mind and to bring the litigation to an end, the petitioner is ready and willing to pay the current cost of the flat as on the date of the passing of the order. He states that the matter may not be remanded back for fresh consideration as there will be further delay and the petitioner may be burdened with additional and increase in the cost of flat. He states that the petitioner was registered in the year 1989 and nearly 20 years have lapsed since then.
6. In view of the above, the writ petition is allowed and DDA is directed to allot a flat to the petitioner at Dwarka or in the vicinity in the next mini draw of lots, which will be held within three months. The petitioner will be charged cost as on the date of this judgment. The petitioner will be, however, entitled to interest on the amounts paid by him @ 10% per W.P. (C) No. 3144/2008 Page 4 annum from the date of payment till allotment is made.
The writ petition is disposed of. No costs.
SANJIV KHANNA, J.
MAY 08, 2009
VKR
W.P. (C) No. 3144/2008 Page 5