Promilla Sharma vs Delhi Development Authority
1996 Latest Caselaw 942 Del

JUDGMENT

R.C. Lahoti, J.

(1) This petition has been filed on 10th March, 1993 by the petitioner seeking a writ of mandamus commanding the respondents to issue a letter of allotment and give possession to the petitioner of a category-III flat in Block-C Pocket-4, Vasant Kunj, New Delhi. The petitioner also seeks an order restraining the respondents from cancelling the flat allotted to the petitioner under the 5th Self Financing Scheme vide their demand-cum-allotment letter dated 15.1.88.

(2) The petitioner got herself registered with the respondent-DDA under its 5th Self Financing Scheme for allotment of a flat by depositing an amount of Rs.15,000.00 on 21.5.82. The petitioner was declared successful for allocation of a flat vide demand-cum- allotment letter dated 15.1.88 (Annexure-1). The flat allocated to the petitioner is situated in Vasant Kunj Block-C, Pocket-4, First Floor and is of category-III. The letter mentions an amount of Rs.10,000.00 only as available with the Dda by way of registration deposit of the petitioner and 90% of the estimated cost of the flat is required to be paid in four instalments as per the Schedule given below :-

____________________________________________________________________________ Instalments Amount Due date ____________________________________________________________________________ First Rs.83025.00 15/01/88 Second Rs.66420.00 15/07/88 Third Rs.83025.00 15/01/89 Fourth Rs.66420.00 15/07/89 ____________________________________________________________________________

(3) However, the instalments were rescheduled twice. The amount of the four instalments has been paid by the petitioner - of two in time and of two belatedly. Vide para 7 of the counter the amount is admitted to have been paid as under :-

____________________________________________________________________________ Instalment No. Amount of instalment Due date deferred date Actual date of payment ____________________________________________________________________________ 1 68,453.95 15.1.88 15.3.88 25.02.88 2 66,420.00 15.7.88 15.2.89 15.11.88 3 83,025.00 15.1.89 15.2.90 11.10.90 4 66,420.00 15.7.89 15.8.90 25.02.92 ____________________________________________________________________________

(4) The respondent-DDA is holding the petitioner disentitled to allotment of flat consequent to belated payment of two instalments leading to automatic cancellation of the allotment.

(5) According to the petitioner she cannot be blamed for the delay in payment of the 3rd and 4th instalments. She has submitted the facts and reasons stated hereinafter explaining why the fault cannot be found with her. Prior to the filing of the petition, the petitioner made several representations to the respondent and also sought for an interview with the Chairman and the Vice Chairman of the DDA.

5.1Vide para 7 of the petition, it is alleged that before and around the time meant for payment of the third instalment there was delay in progress of the construction of the flats on account of some problem which was given publicity in the newspapers. This led to rescheduling of the instalments not once but twice. Vide para four of the counter it is admitted - `there was some delay in construction of flats as the same depends on a number of factors, the reasons being beyond the control of the Dda and that is why the payment of instalments was rescheduled twice'. However, an intimation thereof was not given personally to the petitioner and the petitioner did not even otherwise gather knowledge of the instalments having been rescheduled.

5.2The scheme of the Dda itself contemplates the delay in payment of instalments condoned subject to payment of interest and even the cancellation being set aside and restored subject to payment of restoration charges. Vide para 10 of the counter, the respondent- Dda has itself admitted that in the event of delay being marginal, the allocations are restored even if cancelled, though the delay in payment in the present case is alleged to be on account of neglect of the petitioner and is also alleged to be substantial. According to the petitioner, the delay cannot be said to be intentional or substantial unless and until the petitioner has had the knowledge of the rescheduled dates of instalments which the petitioner never had.

5.3The petitioner had deposited an amount of Rs.15,000.00 by way of registration deposit with the respondent which carried interest @ 7% per annum available for adjustment simultaneously with the allocation of the flat. The respondent erroneously treated the amount of deposit as Rs.10,000.00 which according to the petitioner has vitiated the entire demand of the DDA. The petitioner had promptly invited the attention of the respondent-DDA to this mistake on their part by making a representation but they did not correct and revise their demand which if done, would have scaled down the amount of the installments. So long as the amount of the instalments was not correctly stated, the petitioner cannot be held a defaulter as the non-payment is of incorrect demand.

(6) There is substance in the submissions made on behalf of the petitioner. It is not disputed that the registration deposit made by the petitioner was Rs.15,000.00 carrying interest @ 7% per annum. By the letters dated 26.2.88 and 11.10.90 (Annexure-V) the attention of the respondent-DDA has been specifically invited to this fact. If only the respondent-DDA would have taken action on the petitioner's letters, the demand raised on the petitioner would have been revised and the amount of the instalments would have been scaled down. In any case in view of that error on the part of the Dda, the demand raised by way of instalments in the demand letter (Annexure-1) cannot be said to be correct.

(7) In the background of the above said facts, it was expected that even at the time of rescheduling of the instalments, the demand should have been revised and appropriately reduced by giving credit for Rs.15,000.00 the correct amount of the registration deposited by the petitioner and the interest accured thereon.

(8) In the above said facts and circumstances, the petitioner cannot be held a defaulter. However, during the course of hearing the learned counsel for the petitioner has expressed willingness of the petitioner to pay interest on the amount of 3rd and 4th instalments for the period of delay, as per the scheme of the Dda, subject to the petitioner being allowed credit for the amount of registration deposited by her and the interest accrued thereon upto the date of issuance of the letter of allotment.

(9) The petition is allowed. The respondents are directed to reinstate the allotment of flat to the petitioner as on 15.1.88 subject to the following directions :-

(I)WITHINa period of six weeks from today the respondent-DDA shall issue a revised letter of demand (in lieu of the allotment-cum-demand letter Annexure-1) retaining the same terms and conditions except that the due date for payment of instalments shall be stated as already rescheduled and credit shall be allowed to the petitioner for Rs.15,000.00 (the admitted amount of registration deposited by the petitioner) and the interest accrued thereon upto the date of allocation;

(II)THErespondent-DDA shall calculate and demand payment of interest on the amount of 3rd and 4th instalments for the period of delayed payments vide para 3 above calculating interest @ 12% per annum for the first month of delay and @ 18% thereafter upto the date of payment (the rates of interest being as per the scheme of the DDA);

(III)THEoutstanding demand so worked out shall be satisfied by the petitioner within a period of six weeks from the date of receipt of the demand letter.

(IV)within four weeks of the date of payment and compliance with other usual formalities if any, the petitioner shall be considered for allotment of a flat in Vasant Kunj Block-C Pocket-4, category Iii, First Floor, if such a flat be available. If a flat be not available on first floor, then the petitioner may be considered for a flat on any other floor. If no flat be available in the above said locality then the case of the petitioner shall be considered for allotment of a flat in a locality nearest to Vasant Kunj where similar flats may be available.