* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2971/1992
Decided on : 12.01.2012
IN THE MATTER OF
RAMESH CHANDER SHARMA ..... Petitioner
Through: Mr. R.V. Sinha, Advocate with
Mr. A.S. Singh, Advocate
versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Ms.Sangeeta Chandra, Advocate
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J. (ORAL)
1. The petitioner has assailed a demand-cum-allotment letter dated 13.01.1992 issued by the respondent/DDA towards the disposal cost of flat No.212-C, Pocket F, MIG Second Floor, Nand Nagri fixed as `2,65,600/-, and for directions to the respondent/DDA to revise the cost of the allotted flat by fixing it at the same rate as prevalent on 30.10.1987, when he was declared as a successful allottee and allotment of a flat was made in his favour as per his eligibility.
2. The undisputed facts of the case are that in the year 1979, the respondent/DDA floated the New Pattern Registration Scheme ('NPRS- 1979), calling for applications from the public for registration under W.P.(C) 2971/1992 Page 1 of 9 various categories including MIG, LIG, HIG etc. On 19.09.1979, the petitioner applied under the aforesaid scheme and deposited the registration amount of `4,500/- with the respondent/DDA, whereafter he was given priority No.4669. On 30.10.1987, the respondent/DDA held a draw of lots and declared the petitioner successful for allotment of a flat as per his eligibility at Nand Nagri, being Flat No.14-C, Pocket F, Second Floor, Nand Nagri. Thereafter, a demand-cum-allotment letter bearing block dates 16.11.1987-20.11.1987 was issued to the petitioner by the respondent/DDA, wherein the disposal cost of the flat was shown as `1,33,300/- on the basis of cash down payment. However, the petitioner was allotted the flat as per hire purchase scheme, whereunder he was required to deposit a sum of `19,115.43 paise towards the initial deposit and thereafter he was required to deposit 120 monthly installments @ `1,675.58 paise per installment. The first installment was due on 10.01.1988.
3. It is the petitioner's case that he deposited eight installments, totalling to `13,404.80 paise and besides making the aforesaid deposits, he also completed all the necessary formalities and submitted the requisite documents to the respondent/DDA. However, to the utter shock and surprise of the petitioner, he discovered that the flat that had been allotted to him at Nand Nagri had already been allotted to someone else, and it was a case of double allotment. Vide letter dated 26.07.1989, the respondent/DDA informed the petitioner that he had been allotted an W.P.(C) 2971/1992 Page 2 of 9 alternate flat No.16-B, A&B Group IV, First Floor, Dilshad Garden, in lieu of the earlier flat allotted to him in Nand Nagri. After allotting the aforesaid flat to him, the petitioner was called upon by the respondent/DDA to deposit `23,172.43 paise as an initial deposit towards the aforesaid flat and to pay monthly installments @ `1,652.20 paise, the first installment falling due on 01.12.1989. A revised demand-cum- allotment letter dated 19.10.1989 was issued to the petitioner, wherein the cost of the flat was fixed at `1,35,900/-. Again, the petitioner completed all the requisite formalities and requested the respondent/DDA to adjust the amount deposited by him against the flat allotted to him earlier.
4. Thereafter, the petitioner discovered that the flat allotted to him for the second time by the respondent/DDA at Dilshad Garden, had also been already allotted to some third person. The said information was conveyed to him in writing by the respondent/DDA on 05.05.1990. It is stated by learned counsel for the petitioner that after May 1990, the respondent/DDA did not correspond with the petitioner for a period of two years and finally issued him a demand-cum-allotment letter dated 13.01.1992, whereunder the petitioner was informed that he had been allotted flat No.212-C, Pocket F, Second Floor, MIG, Nand Nagri at the disposal cost of `2,65,600/- and the monthly installments payable by the petitioner were fixed @ `3,251.40 paise. Being aggrieved by the overcharge, which was almost double in comparison to that which was W.P.(C) 2971/1992 Page 3 of 9 demanded in respect of the flat allotted to him initially, the petitioner submitted a protest letter dated 12.03.1992 addressed to the Commissioner (Housing), DDA stating inter alia that the disposal cost of the flat allotted to him for the third time was not in consonance with the disposal cost of the initial allotment made in his favour in the year 1987 and since it was not on account of his fault, he could not be penalized for the non-allotment of a flat for a period of almost five long years from the date of making the first allotment. Ultimately, on 10.06.1992, the possession of the flat in question was handed over to the petitioner. Prior to taking possession of the said flat, the petitioner deposited a sum of `10,752/- with the respondent/DDA and in August 1992, he filed the present petition challenging the impugned demand raised on him.
5. Counsel for the petitioner submits that the aforesaid action of the respondent/DDA in handing possession of the flat in question to him after the expiry of about four and a half years from the date of the first allotment made in his favour and that too at almost double the original disposable cost, is liable to be struck down as being illegal, arbitrary and unjust. He further states that, had the first allotment of the flat made in favour of the petitioner, which matured in the year 1987, materialized and possession thereof was handed over to him, he would have had to pay only a sum of `1,33,300/- on hire purchase basis, as opted for by him. However, now the petitioner is faced with a situation where he has been called upon by the respondent/DDA to pay a sum of `2,65,600/- W.P.(C) 2971/1992 Page 4 of 9 towards the disposal cost of the flat that has finally been allotted to him in the year 1992, which is the third allotment made in his favour after the first two allotments turned out to be cases of double allotments. It is contended that due to the aforesaid action of the respondent/DDA, the petitioner has been made to suffer double jeopardy inasmuch as on one hand, he has been deprived of his vested right to enjoy the flat which had been allotted to him in the year 1987 and on the other hand, the respondent/DDA has rubbed salt on his wounds, by deciding to enhance the disposal cost of the flat finally allotted to him in January 1992 and that too by almost doubling the cost.
6. Counsel for the respondent/DDA submits that no doubt, the present case is one of those cases of erroneous double allotment made in favour of the petitioner on two occasions, the first allotment having matured in the year 1987 and the second one in the year 1990, but on the third occasion when the petitioner was finally allotted a flat at Nang Nagri in January 1992 of which he took possession of on 10.6.1992, he was duly informed that the disposal cost of the flat was `2,65,600/-. She states that while raising the fresh demand-cum-allotment letter on the petitioner, the respondent/DDA had not varied the costs of the land prevailing in the year 1987. However, the cost of construction has been levied at the rate applicable on the basis of the year of construction of the flat in question, which was the year 1991. She further states that the account of the petitioner as maintained by the respondent/DDA reflects a W.P.(C) 2971/1992 Page 5 of 9 credit of `51,330/- in his favour, after giving him credit for the interest accrued on the FDR of `4,500/- deposited by him in the year 1979 and upon calculating the interest accrued on the eight installments deposited by him towards the initial installment of `19,115.43 paise, as also by taking into consideration, the eight installments totalling to `13,404.80 paise as deposited by him with the respondent/DDA. She states that at the time of making the third allotment in his favour, the petitioner was called upon to pay a sum of `51,073.43 paise, which, if adjusted against the amount already received from him, i.e., ` 51,330/- would result in a credit of `256/- in the account of the petitioner. She states that the remaining outstanding amounts were required to be deposited by the petitioner in terms of the schedule reflected in the demand-cum-allotment letter dated 13.01.1992, which is 122 monthly installments payable @ `3,251.40 paise per installment, commencing from 01.02.1994.
7. A pointed query posed to the learned counsel for the petitioner as to whether the petitioner had been depositing any amounts with the respondent/DDA after allotment of the subject flat in his favour, it is submitted by learned counsel that he is unaware of the current position. However, counsel for the respondent/DDA states on instructions from the Department that after the year 1992, the respondent/DDA has not received payment of any installment from the petitioner.
8. Having regard to the facts of the present case, the Court is of the opinion that while it is undisputedly the fault of the respondent/DDA W.P.(C) 2971/1992 Page 6 of 9 in having erroneously made two double allotments in favour of the petitioner and thus, deprived him of his rightful allotment, which had matured in the year 1987, the fault also lies at the door of the petitioner, who ought to have paid atleast the entire sum of `1,33,300/-, which was the disposal cost of the flat initially allotted to him. Pertinently, since the first allotment made in favour of the petitioner was on hire purchase basis, it would inherently mean that he was required to pay an interest component along with each installment. As per the terms and conditions of allotment, the petitioner was required to deposit 120 installments, payable on a sum of `1,33,300/- and the amount payable by him in this manner would have translated to a sum of `2,01,696/-.
9. At the same time, there is no justification for the respondent/DDA to have raised a demand on the petitioner by charging him the cost of construction of the subject flat by calculating the amount payable at the rate prevalent in the year 1991, when the entire fault lies at its door in making two erroneous double allotments in favour of the petitioner, the first one in the year 1987 and the second one in the year 1990. Since the respondent/DDA is admittedly at fault, then it is liable to bear the loss caused to the petitioner on the said account. In such circumstances, the respondent/DDA ought to have raised a demand on the petitioner by calculating both, the cost of land as also the cost of the construction of the flat as prevalent at the rate that had existed in the year 1987. Further, having regard to the fact that the petitioner has W.P.(C) 2971/1992 Page 7 of 9 failed to pay any amount whatsoever towards the installments due and payable by him, even on the basis of the schedule given to him on the basis of the first allotment made in his favour in the year 1987, he cannot claim that any further equities have arisen in his favour due to non- payment of the said installments.
10. Thus, taking into consideration the facts and circumstances of the case, the scale has to be balanced. This Court is therefore of the opinion that the present petition is liable to be allowed by quashing and setting aside the impugned demand-cum-allotment letter dated 13.01.1992 (Annexure P-10) issued by the respondent/DDA. Further, the respondent/DDA is directed to raise a fresh demand on the petitioner by calculating the cost of land and the cost of construction of the flat finally allotted to him in the year 1992, at the rate that was prevalent in the year 1987. While doing so, the respondent/DDA shall calculate the interest payable by the petitioner for the defaults made by him in depositing the installments as were payable by him from the date of handing over possession of the subject flat on hire purchase basis in accordance with the terms and conditions of the brochure applicable for the aforesaid NPRS 1979 Scheme and the rules applicable in that regard. While raising a fresh demand-cum-allotment letter on the petitioner within four weeks, the respondent/DDA shall furnish the entire break-up of the amount claimed by it and the manner in which it has given credit of the amounts deposited by the petitioner from time to time alongwith W.P.(C) 2971/1992 Page 8 of 9 interest accrued thereon. If the petitioner has any grievance with regard to the basis of the calculations made by the respondent/DDA, he shall immediately seek necessary clarifications from the respondent/DDA, which shall be duly conveyed to him. If dissatisfied with the said calculations, the petitioner shall be entitled to seek his remedies against the respondent/DDA, as may be available to him in law. Otherwise, the amount payable by him shall be deposited with the respondent/DDA within a period of four weeks from the date of receipt of the fresh demand-cum-allotment letter.
11. The writ petition is allowed on the aforesaid terms, while quantifying the counsel's fee at `10,000/-. The costs to be paid shall be adjusted by the respondent/DDA in the demand-cum-allotment to be issued to the petitioner.
(HIMA KOHLI)
JANUARY 12, 2012 JUDGE
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W.P.(C) 2971/1992 Page 9 of 9