V.G. Duggal vs Delhi Development Authority
1995 Latest Caselaw 996 Del

JUDGMENT

R.C. Lahoti, J.

(1) The petitioner got himself registered for allotment of a flat of Mig category under Registration Scheme of New Pattern, 1979. This was on 1.8.79. In 1991, the petitioner was allotted a flat Several writ petitions were filed challenging the costing pattern adopted by the DDA. There were two rounds of writ petitions. Ultimately, all these petitions were; dismissed consequent loan order passed by a Full Bench in Sheelawanti's case . The allottees of the flats were allowed time for payment of the price. Instead of making the payment now the present petition has been filed submitting that basic amenities/facilities such as water, electricity and sewerage are not yet available in the area and as the respondent Dda would not be in a position to deliver possession over the flats, the Dda be restrained from demanding the, amount from the petitioner and at the same time the allotment made to the petitioner be not cancelled.

(2) We are clearly of the opinion that the petitioner and others like him are unwilling buyers of the flats. We have asked the learned counsel for the petitioner to show us policy/decision of the Dda or terms of the allotment, or any other provision in the Act or the Rules which would permit the petitioner withholding the payment till the time of delivery of possession over the flats by the respondent DDA. None has been shown. On the contrary, the terms and conditions accompanying the letter of allotment has clause 7 which runs as under :- "7. Issue of Possession Letter.

(A)The possession Letter will be issued by Dda only after full payment. [including arrears, interest and penalty if any] has been realised.

BEFORE an allottee may file his/her claim for the issue of the Possession Letter, he/she will be required to furnish the following documents."

(3) After full payment by the allottee and furnishing of the documents, letter of possession would be delivered to the allottee: As per term No. 7(c), the Dda is obliged to deliver possession within 15 days of the date of presenting the possession letter by the allottee. It is at that stage the allottee is expected to look into the condition of the property and record deficiency, if any.

(4) Learned counsel for the petitioner has invited our attention to a few documents consisting of note-sheets of files of the Dda which go to show that in case of some colonies the Dda itself had postponed issuance of letters of possession and in some cases recovery of Installment was proposed to be postponed when it was found as a matter of fact that it was not in a position to deliver possession and provide basic amenities to the allottees. It is not clear as to how and in what circumstances such noting on the files were made. How the Dda had formed the opinion that it would not be in a position to deliver possession? How much was the amount paid by the allottees in those cases ? In any case, on the material available it is not possible to hold that the scheme to which the petitioner belongs is to be treated similarly, as the schemes to which the nothing on the files brought on record by the petitioner relate.

(5) We may usefully refer to the provisions contained in Sections 51, 52 and 54 of the Contract Act which contain rules for performance of reciprocal promises. The payment of price by the petitioner and the delivery by Dda are not such reciprocal promises as are required to be performed simultaneausly: The order in which these reciprocal promises are to be performed is expressly laid down in the terms of allotment between the parties. Full payment has to precede before the Dda may incur an obligation to driver possession over the flat. If the petitioner fails to make the payment, the Dda is not obliged to issue possession letter and deliver possession. It is submitted by the learned counsel for the petitioner that if basic amenities are not available in the colony developed by the Dda, it would serve no use to pay the price of the flat and then keep on waiting endlessly for possession letter and delivery of possession. It is clear that the Dda is obliged to issue possession letter within a reasonable time on full payment of price by the allottees of the flats. The letter of allotment or the scheme does not specify a particular time limit within which the possession letter has to be issued. It is an obligation of the Dda to provide the flats in habitable condition with ready infrastructure of basic civil amenities. It is expected that the Dda would be proceeding with its plans in such a phased manner that by the time several allottees have made payments and delivered documents for execution, the Dda is ready for delivery of possession. If the Dda violates discharging its obligation, consequences would follow and the Dda and/or its erring officials would be 'held responsible for all the consequences flowing from default or delay in fulfilllment of obligation to deliver possession with provision for basic civil amenities. But the allottees of the fiats cannot be permitted to withhold payment. We have to bear in mind that it is the money made available by the allottees of the flats which is utilised by the Dda for fulfillment of its projects and if they are financed from elsewhere then the Dda has to reimburse itself and discharge its liabilities to its creditors. Particularly, in this case, the petitioner has already delayed much the payment in accordance with the allotment cum demand letter by indulging into litigation and there must be an end to this process.

(6) For the foregoing reasons we are of the opinion that the petitioner does not have a case for our interference and indulgence being shown to him in exercise of our writ jurisdiction.

(7) THE petition is dismissed in liming.