* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 10th October, 2011.
+ W.P.(C) 7418/2008
% RAJENDER KUMAR KHATRI & ANR ...Petitioners
Through: Ms. Richa Kapoor, Adv.
Versus
DDA. ..... Respondent
Through: Ms. Sangeeta Chandra, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may Not necessary
be allowed to see the judgment?
2. To be referred to the reporter or not? Not necessary
3. Whether the judgment should be reported Not necessary
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The two petitioners seek mandamus for issuance of a demand cum allotment letter in their favour in respect of MIG flat bearing no.9TA, Sector-23, Pocket-3, Rohini, Delhi or of any alternative MIG flat. The case of the petitioners is, that their brother Sh. Vipin Kumar Khatri was a registrant for a Janta Flat in the New Pattern Registration Scheme (NPRS) of W.P.(C) No.7418/2008 Page 1 of 12 the year 1979 of the respondent DDA; that he, in the year 1986 got the registration converted from that for a Janta Flat to an MIG flat; that accordingly a new priority number was allotted to him and put in the tail end category; that their said brother Sh. Vipin Kumar Khatri died on 20 th August, 1992 leaving the petitioners as his two brothers and only legal heirs; that no allotment was made in pursuance to the registration aforesaid; that the petitioners in January, 2006 on making enquiries learnt that allotment of MIG flats under the NPRS had been completed; on making further enquiries they learnt that Flat No.9TA, Sector-23, Pocket-3, Rohini, Delhi was allotted by the respondent DDA against the said registration, in the tail end draws held in the year 2004 in the name of their brother. The petitioners contending that no demand letter was ever received by the registrant as he had already expired, represented to the respondent DDA in April, 2006 for mutation of the registration in their names and for issuance of demand cum allotment letter with respect to the flat allotted in the year 2004 in their favour. The petitioners claim that though notings of some of the officials on the file of DDA favour them but ultimately the deciding authorities of the W.P.(C) No.7418/2008 Page 2 of 12 respondent DDA though affected the mutation of the registration from the name of their brother Sh. Vipin Kumar Khatri to the joint names of the petitioners but only for the purposes of refund of the registration amount and not for allotment. Aggrieved therefrom this petition was preferred.
2. Notice of the petition was issued. On 3rd November, 2008 the counsel for the respondent DDA informed this Court that the flat earlier allotted to Sh. Vipin Kumar Khatri is no longer available and had been allotted to some other person. Pleadings have been completed. Counsels have been heard.
3. It is the case of the respondent DDA in its counter affidavit, that the demand cum allotment letter of the flat aforesaid was sent to the registrant Sh. Vipin Kumar Khatri on 27th February, 2004 at his last available address but the same was returned undelivered by the postal authorities with the remarks "no such person in H-70, LIG, DDA Flats, Ashok Vihar, Phase-I, Delhi"; thereafter intimation of allotment along with demand letter was sent again on 16th March, 2004 at the other addresses of the registrant Sh. Vipin Kumar Khatri available on record namely at 237, Kishan Ganj Market, Old W.P.(C) No.7418/2008 Page 3 of 12 Rohtak Road, Delhi and at 71/4, Railway Colony, Kishan Ganj, Delhi but the same were also returned undelivered with the postal remarks "no such person"; since no payment was received in terms of the demand letter, the allotment automatically stood cancelled on 26 th July, 2004 in terms of the demand letter and formal orders of cancellation made. It is further the case of the respondent DDA that the petitioners for the first time vide their letter dated 7th April, 2006 informed of the demise (on 20th August, 1992) of Sh. Vipin Kumar Khatri with a further request of mutation of registration in their favour; that however the petitioners were not found entitled to the flat under the policies of the respondent DDA and as such the flat was refused to them.
4. The petitioners in their rejoinder have not controverted:
(i) that no intimation of demise of Sh. Vipin Kumar Khatri (on 20th August, 1992) was given to the respondent DDA at any time prior to 7th April, 2006;
(ii) that the demand cum allotment letter was sent as aforesaid by the respondent DDA in the year 2004 in the name W.P.(C) No.7418/2008 Page 4 of 12 of Sh. Vipin Kumar Khatri and was returned undelivered to the respondent DDA;
5. Though the counsel for the petitioners attempted to base her case on the basis of the favourable notings on the file of the some of the processing officials of the respondent DDA inter alia to the effect that the case of the petitioners is covered by the Death Case Policy of the respondent DDA but the final decision making authorities of the respondent DDA having disapproved of the said views of the processing officials and having held the petitioners to be not entitled to be covered under or to the benefit of the said Policy, no reliance thereon is permitted. The Apex Court recently in Sethi Auto Service Station Vs. DDA (2009) 1 SCC 180 and in Jasbir Singh Chhabra Vs. State of Punjab (2010) 4 SCC 192 has reiterated that favourable notings during the decision making process cannot form the basis of a claim when the ultimate decision making authority has decided against the claimants.
6. The fact that the petitioners in the present case waited for 14 years W.P.(C) No.7418/2008 Page 5 of 12 before intimating respondent DDA of the demise of their brother under whom they claim, in my view alone disentitles the petitioners from any relief. No fault can be found with the action of the respondent DDA, in the face of the demand cum allotment letter being returned undelivered inspite of best efforts of cancelling the allotment.
7. The counsel for the petitioners during the hearing contended that allotment could not have been cancelled when the registrant was dead and the clause in the demand cum allotment letter of automatic cancellation upon non-receipt of the demanded amount by the stipulated date could not be invoked against a dead person. However the counsel has no reply when asked as to what else could respondent DDA have done without the petitioners informing the respondent DDA of the demise. Significantly, it is not in dispute that the postal endorsements on the returned envelops containing the demand cum allotment letter also did not mention of the demise of the addressee; they only intimated respondent DDA the addressee being not available at the address given.
W.P.(C) No.7418/2008 Page 6 of 12
8. It is also not the case of the petitioners that the demand cum allotment letters were dispatched at any wrong address. Though the petitioners neither in the petition nor in the rejoinder have not given any explanation as to who else was residing with the deceased at the address given and whether some other persons/family members continued to reside at said address, the counsel for the petitioners during the hearing suggested that the petitioners were also residing at the same address and the letters were returned for the reason of the addressee being dead. However the address of the petitioners given in the petition is not any of the three addresses at which respondent DDA sent the demand cum allotment letter and which were admittedly furnished by the registrant himself to the respondent DDA.
9. The counsel for the petitioners has not been able to show any Policy whereunder the legal heirs, notwithstanding having not intimated the respondent DDA of the demise and/or having not furnished the changed address are entitled to revival of the automatic cancellation for non-payment.
10. The counsel for the petitioners then sought to base her case on three W.P.(C) No.7418/2008 Page 7 of 12 Policies of respondent DDA. The first Policy in the form of an Office Order dated 1st January, 2001 lays down as under:
"As soon as information about the death of original registrant/allottee is given to this office by the legal heirs, a letter shall be sent to the legal heirs of the allottee by the concerned Joint Director/Deputy Director of Housing Department indicating all the documents which are required for transfer of the registration/allotment in favour of the legal heirs with the request that such documents should be deposited at the earliest. In case, the allotment letter stands issued in the name of original registrant before the request is received for mutation of registration/allotment there should not be any automatic cancellation of the flat allotted. A time of two years will be given for submission of documents by the legal heirs of deceased registrant/allottee."
The counsel contends that the petitioners had applied within two years of the demand cum allotment letter and are thus entitled to benefit of the said Policy.
11. The aforesaid argument is on misconstruction of the aforesaid Policy. Firstly, in the present case it is not in dispute that the demand cum allotment W.P.(C) No.7418/2008 Page 8 of 12 letter was issued on 27th February, 2004 and the petitioners first applied for mutation only on 7th April, 2006 i.e. after two years therefrom. However since the respondent DDA had said that the automatic cancellation came into effect on 26th July, 2004, even if the period of two years is to be counted therefrom, in my view the petitioners still would not fall under the Policy aforesaid. All that the said policy prescribes is grant of two years time for submission of documents by the legal heirs of the deceased registrant/allottee after they have given intimation of the demise and after they have been informed of the documents required to be furnished. The said Policy assumes the registration to be alive when intimation of demise is given. However in the present case no intimation of demise was given at any time till when the registration was alive and the registration/allotment stood cancelled as aforesaid on 26th July, 2004. The intimation of demise was long thereafter and cannot revive the cancellation which had come into effect for the failure of the petitioners claiming to be legal heirs, to have themselves mutated.
12. The second Policy relied upon is in the Office Order dated 18 th April, W.P.(C) No.7418/2008 Page 9 of 12 2002. The same only provides issuance of a show cause notice to the legal heirs after expiry of two years for not submitting the documents sought from them. For the reasons aforesaid, the same also is not applicable in the present case.
13. The third and the last Policy relied upon by the petitioners is the order dated 9th July, 2003 laying down that in cases of mutation on account of death, interest would be charged at the rate of 7% compounded annually from 7th month onward from the date of issue of letter by the DDA to the legal heir to produce documents for mutation, in order to work out the old cost plus interest. The same also, for reasons aforesaid is not applicable to the present case.
14. In the present case part arguments were heard on 20 th September, 2011. The counsel for the respondent DDA on 21st September, 2011 informed that she had sought certain instructions from the DDA. Today, it is informed that respondent DDA is willing to consider the case of the petitioners for allotment as the legal heirs of their deceased brother subject to the petitioners showing their willingness to pay the current costs of the W.P.(C) No.7418/2008 Page 10 of 12 flat.
15. The counsel for the petitioners however contends that the petitioners are entitled to the flat at the costs as prevalent in the year 2004 when the allotment was made. However upon this Court informing the counsel for the petitioners that for the reasons aforesaid, the petitioners cannot be entitled to a flat at the costs of 2004 when the petitioners themselves had taken the first step in the year 2006, the counsel states that the petitioners are willing to pay the costs as of the year 2006 together with interest at 18% per annum compounded annually.
16. This Court has also floated the suggestion of the petitioners being entitled to flat at the costs of the year 2008 when upon submission of the documents by the petitioners, the final decision was taken and together with simple interest at 12% per annum.
17. The counsel for the respondent DDA to on 20th October, 2011 produce before this Court the current costs, the amount which would be payable as per costs of 2006 with interest at 18% per annum compounded annually as W.P.(C) No.7418/2008 Page 11 of 12 offered by the petitioners and the costs of the year 2008 with simple interest at 12% per annum as suggested by the Court.
List accordingly on 20th October, 2011.
RAJIV SAHAI ENDLAW (JUDGE) OCTOBER 10, 2011 bs W.P.(C) No.7418/2008 Page 12 of 12