* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9243/2007
Decided on: 16th January, 2012
IN THE MATTER OF
SUSHMA PATIL ..... Petitioner
Through: Mr. Sumit Bansal, Advocate with
Ms. Sumi Anand, Advocate
versus
DDA ..... Respondent
Through: Mr. Arun Birbal, Advocate
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J. (Oral)
1. The petitioner is aggrieved by a demand letter dated 24.10.2007 and communication dated 23.11.2007 addressed by the respondent/DDA to her and prays for setting aside the same. Vide demand letter dated 24.10.2007, the petitioner was allotted a car garage No.20, Sector 22, Pocket-1, Dwarka in the SFS Residential Scheme and was called upon to pay a sum of `4,62,283/- towards the cost of the car garage. It was stated in the said demand letter that if the petitioner failed to deposit the amount demanded in terms of the aforesaid letter, the allotment would automatically stand cancelled after 21.02.2008. Vide letter dated 23.11.2007, the request of the petitioner for charging the rate of construction of the car garage at the rate prevalent time of allotment of the garage, was declined by the W.P.(C) 9243/2007 Page 1 of 8 respondent/DDA and she was called upon to deposit the demanded amount within the period as stipulated in the demand letter.
2. Counsel for the petitioner states that without prejudice to her rights, the petitioner had deposited a sum of `4,62,283/- with the respondent/DDA in terms of the demand letter dated 24.10.2007 as recorded in the order dated 12.12.2007, whereafter the car garage was duly handed over to her.
3. Counsel for the petitioner points out that this is the second round of litigation that the petitioner has had to initiate against the respondent/DDA for the same car garage. He draws the attention of this Court to the order dated 10.07.2007 passed in an earlier writ petition filed by the petitioner and registered as W.P.(C) 10137/2006, assailing the order dated 27.02.2006 passed by the respondent/DDA, whereby her application for allotment of a car garage pursuant to a public notice dated 26.07.2001 was rejected on the ground that the said application had not been submitted by her before the cut-off date. Vide order dated 10.07.2007, passed in the aforesaid proceedings, the aforesaid rejection order dated 27.02.2006 passed by the respondent/DDA was quashed by the Court and it was observed that the public notice issued by the respondent/DDA did not specify any last date for submitting the application and, therefore, there was no basis for rejecting the petitioner‟s application. As a result, the aforesaid writ petition was allowed and a direction was issued to the respondent/DDA W.P.(C) 9243/2007 Page 2 of 8 to consider the petitioner‟s application as being within time and thereafter it was directed to process the same in accordance with law. It was further directed that if there was no other eligible applicant in respect of the said car garage in question, it would be allotted to the petitioner within a period of four weeks from the date of passing of the order and in any event not later than 10.08.2007.
4. Counsel for the petitioner submits that after passing of the aforesaid order, the respondent/DDA issued the impugned demand- cum-allotment letter dated 24.10.2007 to the petitioner, calling upon her to make payment of the car garage at the rate prevalent in the year 2007. It is the submission of the counsel for the petitioner that it is impermissible for the respondent/DDA to have demanded the aforesaid amount towards the cost of land and the cost of construction of the car garage by applying the rate prevalent in the year 2007, for the reason that the petitioner had applied to the respondent/DDA for allotment of the car garage as early as in July 2001 and she was not to be blamed in any way for the rejection of her application by the respondent/DDA in the year 2006.
5. Counsel for the respondent/DDA opposes the present petition and submits that the public notice issued by the respondent/DDA in the year 2001 for allotment of car garage in Sector 22, Pocket-1, Dwarka (SFS) had stipulated that applications were invited from the original allottees in the said pocket, in which the car W.P.(C) 9243/2007 Page 3 of 8 garage was located and only such allottees were eligible to apply. He further states that it was clarified that preference was to be given to the upper floor allottees over the ground floor allottees and in the present case, as the petitioner is a ground floor allottee, she could not claim any preference. He submits that the manner laid down for the allotment of the car garage was that in case there was more than one applicant for one garage, the allotment would be made by way of a computerized draw. In compliance with the order dated 10.07.2007, passed in the earlier writ petition filed by the petitioner, the respondent/DDA considered her case afresh and since there was no specific direction in the aforesaid order to allot the car garage to the petitioner at the cost prevailing in the year 2001, it levied the current cost as per its prevalent policy and raised the impugned demand on her.
6. In view of the submission made by the counsel for the respondent/DDA that the offer of the car garage was to be allotted in the first instance to the owners of the upper floors and the petitioner‟s turn for allotment would have matured only after the offer made to owners of the upper floors was declined or they were unable to pay the price of the car garage and further that the procedure of offering the car garage first to the owners of the upper floors continued for a considerable time, due to which, the petitioner could not have become entitled to the allotment before the year 2004, when fresh applications W.P.(C) 9243/2007 Page 4 of 8 were invited by the respondent/DDA, vide order dated 20.12.2010, it was directed to produce the original records.
7. A part of the original records has been produced today for the perusal of this Court. Counsel for the respondent/DDA particularly draws the attention of the Court to page 19/N, wherein, a note dated 26.12.2005 has been written by the Dealing Assistant to the following effect:-
"Case No.14/2005 in Hon‟ble Lok Adalat now fixed for 27.12.2005.
This is regarding allotment of car garage No.20 to Smt. Sushma Patil who is GPA holder of flat No.77, Sector-22, Pkt. I, Dwarka.
DDA had invited application for allotment of car garage in Sector-22, Pkt. I, Dwarka from 16.7.2001 to 23.7.2001. A press notice was given in the leading newspaper on 15.7.2001. A photo copy of press clipping of „Hindustan Times‟ dated 15.7.2001 is attached herewith as Anexure-A.
Smt. Sushma Patil applied for car garage on 26.7.2001. A photo copy of application form submitted by her is attached herewith as Annexure- B. Since her application was after expiry of the due date, her request was not considered and above garage was allotted to the other applicant Smt.Poonam Jain. Only two applications one of Smt. Poonam Jain allottee of flat No.78 and other of Sh. Rajesh Balachandran allottee of flat No.85 were received against this garage and when Smt. Poonam Jain failed to deposit the cost in time, this garage was cancelled from her name and further allotted to next applicant Sh. Rajesh Balachandran vide letter dt. 17.6.03.
Sh. Rajesh Balachandran has also not deposited the cost of the garage so far and action W.P.(C) 9243/2007 Page 5 of 8 for the cancellation of the garage is being taken separately. Since the said garage was not vacant at the time and hence the said garage was not released for allotment for the next draw, applications of which were invited from 22.9.04 to 30.9.04.
This garage will be released for allotment in the next draw after its cancellation and the plaintiff Smt. Sushma Patil may apply at that time and her name will be considered for the draw of lots if more than one application for this is received as, one garage is for the block of 4 flats.
Submitted please.
D.A./SFS(H)"
8. Reliance is placed by the counsel for respondent/DDA on the aforesaid note to submit that DDA was justified in levying the current cost in respect of the car garage as the same was released and made available for allotment only after its cancellation.
9. It is pertinent to note that the aforesaid record produced by the respondent/DDA is absolutely silent with regard to the date on which the allotment made in favour of the first applicant namely, Smt. Poonam Jain was cancelled for non-deposit of the cost in time and it also does not indicate the date on which the next applicant, Shri Rajesh Balachandran, who was allotted the car garage on 17.06.2003, defaulted in making the payment and the allotment of the car garage was again cancelled. In other words, the exact date when the car garage became available for allotment has not been specified in the W.P.(C) 9243/2007 Page 6 of 8 aforesaid note, or any other record produced by the respondent/DDA.
10. Having regard to the aforesaid facts and circumstances of the case, this Court is of the opinion that the respondent/DDA cannot be permitted to demand from the petitioner the prevailing cost of the car garage, i.e., the costs as applicable in the year 2007, for the reason that the petitioner could not be held responsible for the rejection of the earlier application of allotment as submitted by her to the respondent/DDA in the year 2001. Further, in view of the conditions laid down for allotment by the DDA in its public notice, whereunder a decision was taken to offer the car garage to the owners of the upper floor in preference to those residing on the ground floor and the manner in which it was actually worked out by the respondent/DDA from the date of issuance of public notice on 15.7.2001 to 24.10.2007 when the allotment was actually made in favour of the petitioner, it is deemed appropriate to quash and set aside the impugned demand letter dated 24.10.2007 issued by the respondent/DDA and direct it to reckon the date for fixing the cost of the car garage allotted to the petitioner, as the cut off date by which Shri Rajesh Balachandran, the second allottee of the car garage was required to have deposited the amount payable by him towards the said allotment.
11. After calculating the cost of the car garage by fixing the date in the aforesaid manner, the same shall be communicated to the W.P.(C) 9243/2007 Page 7 of 8 petitioner within six weeks. In the fresh demand-cum-allotment letter to be raised by the respondent/DDA, it shall take into consideration the amount already deposited by the petitioner and make necessary deductions for arriving at the balance amount, if any, payable by the petitioner. If a refund is found to be due to the petitioner, the respondent/DDA shall pay to her interest from the date of receipt of the said amount till payment, at the same rate as claimed by it from defaulter allottees of such car garages during the aforesaid period. In such an eventuality, the refund due and payable to the petitioner shall be paid by the respondent/DDA alongwith interest calculated by it at the aforesaid rate, within a period of two weeks from the date of raising the fresh demand-cum-allotment letter.
12. The writ petition is allowed on the aforesaid terms with costs of `5,000/-, which shall be paid by the respondent/DDA to the petitioner by adjusting the same in the demand-cum-allotment letter to be raised by it on the petitioner.
(HIMA KOHLI)
JANUARY 16, 2012 JUDGE
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W.P.(C) 9243/2007 Page 8 of 8