Shiv Narain vs Dda
2002 Latest Caselaw 1649 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. Rule.

2. With the counsel of learned counsel for the parties the matter is taken up for final disposal.

3. The petitioner registered under the NPR Scheme, 1979 for allotment of Janta flat and in the draw held on 15.12.1989 was allotted flat bearing No. 98, Pocket B-7, Sector-17, Rohini at a disposal cost of Rs. 63,500/- on hire purchase basis. The allotment letter dated 28.3.1990 was issued in favor of the petitioner requiring the petitioner to make the deposit on or before 25.6.1990 which was so deposited. The petitioner also deposited the necessary documents required for taking possession of the flat vide covering letter dated 12.11.1990 but the possession letter was not issued.

4. It is stated in the petition that the petitioner came to know that the possession letter was not being issued to the petitioner in view of the fact that the flat had been cancelled on account of late submission of documents. It is stated in the petition that neither was any show cause notice issued to the petitioner nor was the petitioner heard before the cancellation of the said allotment.

5. The petitioner sent a representation dated 3.9.2001 to the L.G. and finally received a letter dated 8.10.2002 whereby it was communicated that request of the petitioner for allotment of an alternative flat in the same zone and the same floor had been acceded to at current cost. The petitioner received allotment-cum-demand letter dated 4.1.2002 allotting flat No. 18, Pocket-8, Block-C, Sector-15, Rohini on hire purchase basis but at the disposal cost of Rs. 2,00.400/- being at current cost. The petitioner represented against same vide letter dated 12.1.2002 and subsequently filed the writ petition.

6. In the counter affidavit it is admitted that the flat allotted in 1990 was cancelled on account of Clause 3 in the allotment-cum-demand letter to the effect that allottee was required to submit all the relevant documents complete in all respects within 90 days from the date of issue of the letter but the said documents were submitted belatedly though the payment of Installment was made within time. It is further stated that once the documents were submitted, it was decided by the Competent Authority to restore the flat but subject to payment of restoration charges. However, no details of any such communication having been sent to the respondent by the petitioner have been stated in the counter affidavit.

7. It is stated in the counter affidavit that the allotment was subsequently made in 2001 at current cost.

8. I have heard learned counsel for the parties.

9. Learned counsel for the petitioner has filed along with writ petition a copy of the judgment of the learned Single Judge of this Court in CWP No. 827/97 Ashok Kumar Khandelwal v. DDA decided on 12.12.2001 where a direction was issued to allot the flat to the petitioner therein at the old cost since flat had been cancelled on account on non-submission of document. The said judgment relied upon the DB judgment of this Court in Ms. Asha N. Madnani v. DDA 1997 1AD (Delhi) 385 where a distinction between default in making payment and the non-submission or delayed submission of document was considered. The Division Bench was of the view that in case of a mere default in filing of the documents (having no material bearing or eligibility or qualification for allotment) when the payment has been made, the allotment cannot be cancelled. This was so noticed in view of the fact that execution of lease and delivery of possession to allottee would be delayed in spite of having parted with money and the flat lying ready for delivery of possession. It was thus held that while terms as to payment as per schedule must be held to be mandatory while the terms as to submission of all the relevant documents along with proof of payment should be held to be directory.

10. Reference has been made in Ms. Asha N. Madnani' case (supra) to a decision of this court in Dhani Ram Kapoor v. DDA 1997 1 AD (Delhi) 578.

11. Learned counsel for the petitioner thus contends that in view of the aforesaid the non-submission of document was only a directory condition.

12. In the present case two aspects has to be considered. Firstly there is no dispute about the fact that the only reason for the cancellation of the flat was delayed submission of the documents and thus the matter should be squarely covered by the judgment of this court in Ms. Asha N. Madnani (supra) and Ashok Kumar Khandelwal's case (supra). However, present allotment is one on hire purchase basis and thus only the initial amount was paid and not the full amount. However, learned counsel for the petitioner submits that this aspect would not make difference to the matter since question of payment of balance Installments would only arise after the possession was handed over. To that extent there is force in submission of the learned counsel for the petitioner since the respondent had wrongly cancelled the flat in view of the aforesaid judgment.

13. The second aspect to be considered is the delay in approaching the Court by the petitioner since the original allotment was made in the year 1990 and the representation has been made by the petitioner only on 3.9.2001 and the writ petition has been filed in the year 2002. In my considered view this would have material bearing on the issue since the petitioner had not paid full price of the flat but had only paid the initial amount and the balance amount had to be paid as per the hire purchase Installments. This would have no bearing if the petitioner had approached the court expeditiously. The petitioner having failed to do so, equities must be balanced in this behalf.

14. I am thus of the considered view that the petitioner would be entitled to the flat at the disposal cost of Rs. 63,500/- which was the original cost in terms of the allotment letter dated 21.3.90 and thus that should be the cost for the flat now sought to be allotted to the petitioner vide letter dated 4.1.2002. However, in view of the fact that the petitioner had approached the court belatedly and there is no explanation for the period 1990 to 2001, the petitioner should be liable to pay interest at the rate of 12% p a from 1.1.1991 to 30.9.2001 on the balance amount payable after deducting the initial amount paid and the Installments should be accordingly worked out by the respondent. The period has been so stated as the documents were deposited on 12.11.1990 requiring some time to give possession and the representation of petitioner available on record is 3.9.2001.

15. A fresh demand letter should be issued to the petitioner in respect to the flat allotted now to the petitioner vide the demand letter dated 4.1.2002 on the aforesaid basis and the possession be handed over to the petitioner of the flat in question on the petitioner completing necessary formalities. The needful be done by the respondent within a period of four weeks from today.

16. Writ petition stands disposed of in the aforesaid terms leaving the parties to bear their own costs.

CM 775/2002

17. No further orders are called for on this application in view of disposal of the writ petition. Application stands disposed of.