Chander Bhan Jaggi vs D.D.A.
2005 Latest Caselaw 567 Del

JUDGMENT

S. Ravindra Bhat, J.

1. By this petition under Article 226 of the Constitution, appropriate directions are sought for allotment of flat to the petitioner, a registrant in the New Pattern Registration Scheme (NPRS) of the Delhi Development Authority (DDA), at prices prevalent in 1997.

2. The petitioner registered himself under the NPRS Scheme formulated by the DDA in 1979. The DDA drew up priority list in 1984, for registrants under the scheme. Each registrant was allotted a priority number; the petitioner was allotted number 18510.

3. Sometime in 1988, the DDA offered existing registrants of the NPRS to migrate (or convert their registration) into another scheme, namely, the Self Finance Scheme (SFS). Those registrants who desired such migrations were also to deposit the differential amount payable as registration fee, as between the two schemes. The petitioner avers that he applied for conversion of his registration to SFS (Category-II) on 26.11.1988 and documents such as registration card and fixed deposit receipt as well as chalan evidencing earlier payments were forwarded with the DDA. The petitioner did not deposit the amount of difference. The DDA informed the petitioner on 24.1.1989 that his request for conversion had been acceded to. The petitioner avers that the DDA issued a letter on 28.2.1991 seeking deposit of an amount of Rs. 12,165/- towards the differential charges. Subsequently, he represented to the DDA on 13.6.1994, requesting for the retention of his position under the NPRS Scheme, and withdrawal from SFS.

The reason for petitioner's opting out of the SFS pattern was the high cost of flat in the scheme.

4. On 25.5.1995, the DDA formulated a policy applicable to cases where allotment had not been made due to non-inclusion of names of the registrants in the draw of lots. The petitioner submits that priority number 18600 were included in the draw held in the year 1997. However, his name was not included in spite of his priority number being 18510. The petitioner approached the DDA in February 2004 requesting for a response about the correct position of a flat to him under the NPRS. He again wrote on 4.(sic).2004 seeking information about whether a flat had been allotted against his registration in the NPRS. In the public hearing held on 12.8.2004, the petitioner was informed that no allotment could be made and was advised to apply for refund, he did on 19.8.2004, which is followed up another letter dated 31.8.2004 These letters also record the petitioner's protest. Subsequently, on 1.11.2004, the petitioner wrote stating that his request for refund dated 4.12.2003 and 31.8.2004 should be treated as cancelled, and he ought to be allotted a flat under NPRS.

5. The petitioner has relied upon certain orders of this Court passed in other cases where the registrants were directed to be allotted flats. The petitioner alleges that the denial of allotment to him amounts is arbitrary and amounts to violation of Articles 14 and 21 of the Constitution of India.

6. In its response, the DDA has denied any liability. The petitioner's registration was converted into SFS category. The DDA denies having issued the letter dated 28.2.1991 seeking deposit of any amount. It further states that the petitioner's priority number in the NPRS was not included because of the option exercised by him and conversion of his registration into the SFS Category. The DDA has averred that the petitioner consciously sought refund of registration money, and thereafter again changed is mind. It is submitted that in view of this position whereby the petitioner kept changing his views, initially registering with the NPRS, later converting it into SFS Category and later seeking refund and lastly withdrawing the earlier option and demanding allotment, the DDA could not be found fault with. It is, therefore, alleged that no relief can be granted in these proceedings.

7. Mr. R.K. Saini, learned counsel for the petitioner submits that the action of the DDA is arbitrary. It is submitted that the petitioner opted out of the SFS as far back as in 1994; and the letter dated 13.6.1994 is relied on for the purpose. It was received by the office of the DDA on 15.6.1994. The letter specifically requested for cancellation of conversion into SFS Category; it further requested the retention of his name in the previous scheme. Consequently, the DDA was under a duty to include his name so that at the appropriate time a flat was made available pursuant to the draw of lots in that regard. By not doing so, the DDA has acted arbitrarily. The two letters written by the petitioner asking for refund were under protest. Learned counsel has relied upon two orders of this Court where directions were issued to the DDA to include the names of the petitioners therein in the draw of lots. Their names had been wrongly excluded on account of faults of the DDA.

8. Mr. Anil Sapra, learned counsel for the DDA submits that petitioner has to blame himself for the predictment he is in. He changed his position no less than four times. The DDA, as an organisation had to be consistent when the petitioner applied for conversion from the NPRS to SFS, the request was promptly acceded to. This meant the registration/priority number in the NPRS stood cancelled. Hence, there was no question of including the petitioner's name in the year 1997 in the draw of lots for NPRS registrants. Thereafter, if the petitioner had any grievance, he would have in the normal course, approached the DDA or this Court within reasonable time. He approached the DDA only in the year 2004 on the assumption that his NPRS registration was subsisting. That was not the case. Once having secured information that the NPRS registration did not survive, he opted for refund. Under these circumstances, this is not a fit case for grant of relief, since proceedings under Article 226 are equitable in nature. Learned counsel also submits that the DDA never made any demand as alleged in 1991 for payment of any differential amount. The letter relied upon by the petitioner was in fact not sent to him.

9. The facts of this case show that the petitioner had applied for conversion of his registration into SFS in 1988; it was acceded to in 1989. The DDA disputes having written in letter to the petitioner seeking payment of differential amounts. The original records produced in the Court bear out this submission; the original letter itself has not been dispatched in that regard. However, the fact remains that the petitioner's name was included in the SFS category which meant that his registration/priority number in the NPRS stood withdrawn. Had the factual position remained thus; the action of the DDA would have been justified. However, in 1994, the petitioner wrote to the DDA stating that the high costs of flats under the SFS Category was not affordable and that he wanted to revert to his registration in the previous MIG (i.e. NPRS) Scheme. A specific request to revive his registration/priority was made. The DDA in its counter affidavit has not disputed about existence or receipt of this letter. This omission is significant and in my opinion amounts to a admission. Such being the position if the DDA had reservations about the petitioner's request to revert back to the NPRS Scheme it at least ought to have voiced it or intimated the petitioner that much a course of action was not possible. That is not so; no intimation or letter was issued to the petitioner declining his request or stating that reversion to the NPRS scheme was not permissible under its policy. Under these circumstances, the petitioner, in my opinion, has a justifiable grievance about his non-inclusion in the draw of lots in the NPRS in the normal course in 1997.

10. As far as the subsequent action of the petitioner in his approaching the DDA in 2004 and later seeking refund under protest and yet subsequently withdrawing the request for refund and demanding allotment under the NPRS, these events in my opinion would have a bearing on the shape of the relief to be granted. The submissions to the DDA in this regard to certain extent cannot be faulted. The petitioner appears to have kept quiet for almost a decade (i.e. between 1994 and 2004). At least, he ought to have indicated in these proceedings as to the steps that were taken by him from 1997 onwards when according to him his name ought to have been included. These factors coupled with his shifting position, do not in my considered view entitle him to the entirety of the relief claimed.

11. This Court in a number of judgments including Division Bench judgments has been maulding the relief wherever the DDA has been found fault with, as far as denial of allotment to registrants under its scheme are concerned. All these judgments were considered in Surender Kumar Mehta v. DDA being W.P.(C) No. 19095/2004 where the court held that the contributory negligence of registrants also is a factor to be taken into consideration. One of the parameters indicated was that whether the registrant did not approach the DDA or the Court within reasonable time from the date when according to him his name ought to have been included in the draw of lots (reasonable period being defined as 2 to 4 years). The Court, it was held, even while directing inclusion of name and allotment ought to saddle that person with interest at 12%.

12. I am of the opinion that in the present case, petitioner's shifting stands is one important factor to be considered along with the aspect of delay even while holding that the DDA was at fault in not including his name in the draw of lots for NPRS. I is no doubt true that the DDA in its counter affidavit had admitted that petitioner if continued in the NPRS and his priority would have matured in 1997. As discussed earlier, three years before that the petitioner had indeed opted to continue in the NRS. Therefore, the DDA was under a duty to intimate him about why his name could not be included. There is a clear failure on its part which led to the petitioner assuming that his request for revival of NPRS registration had been conceded. Weighing both factors, namely, the negligence of the petitioner as well as the fault of the DDA, I am of the view that ends of justice would be met with in the peculiar facts of the case if the DDA is directed to offer a flat to the petitioner by including his name in the next draw of lots, for the NPRS subject to payment at the cost (of the flat)prevailing in January 2000 with the additional condition of payment of 12% interest on such costs till November 2004 A direction to that effect is accordingly issued and the DDA shall comply with the same within eight weeks from today.

13. The writ petition is allowed to the extent indicated above with no orders as to costs.

14. In light of the above order, all miscellaneous applications stand disposed off.