Mr. Sudhir Kumar Sharma vs Delhi Development Authority
2005 Latest Caselaw 204 Del

JUDGMENT

B.C. Patel, C.J.

1. The appellant registered himself under the HUDCO Scheme in the year 1979 and deposited the initial amount of Rs.4,500/-. The appellant was given priority no.8759 for MIG flat but claims that no communication was received by him allotting any specific flat. It is alleged that in the month of May, 1990, the appellant read a newspaper report in `Hindustan Times' dated 06.05.1990 stating that allotment of flats have been cleared up to priority No.8838, which was higher than the priority number of the petitioner. The appellant thus approached the respondent to collect his allotment-demand letter. In terms of the said letter, the appellant was allotted MIG flat No.9432, First Floor, Pocket B, Dilshad Garden on hire-purchase basis at the disposable cost of Rs.1,89,300/-. Since allotment was on hire-purchase basis, the appellant deposited the initial amount of Rs.33,865.96 on 05.12.1990.

2. At the stage when the appellant was to take possession of the flat, it came to notice that the flat was already occupied by another allottee. This problem arose on account of double allotment. The respondent allotted in place of original flat another flat on 22.01.1991 bearing No.137-B, First Floor, Mansarovar Garden, Delhi. The disposable cost of this flat was Rs.2,74,000/- and the appellant was required to deposit a sum of Rs.51,158.48 less the amount already deposited. The appellant, however, protested against the same.

3. The appellant ultimately filed a writ petition bearing No.1347/1997 which was dismissed on 24.04.1997 on account of delay and laches on the part of the appellant in approaching the Court.

4. In so far as the cause of action arising in favor of the petitioner is concerned, it is not disputed that the last written representation was made by the appellant on 19.06.1992. The appellant has, however, averred that he approached the competent authorities orally for necessary action. The appellant has to thus explain a period of about 5 years delay in approaching the Court from the last written representation.

5. Learned counsel for the appellant submits that the appellant has a good case on merits since undisputedly in terms of the resolutions of the DDA including the one dated 16.11.1993, in case of double allotment the allottee cannot be made to suffer. Since the fault is of the DDA, to this extent there is no doubt that the appellant was entitled to get the flat at the original cost since it was a case of double allotment. The defense of the respondent, however, is that this resolution came into existence subsequent to the allotment made to the appellant and thus on the date when the allotment was made to the appellant, it was as per the then existing policy.

6. The learned Single Judge has dismissed the writ petition only on the ground of delay and laches. In our considered view, the question thus to be considered in the present appeal is as to whether the appellant is liable to be non-suited on account of delay and laches.

7. Learned counsel for the appellant seeks to contend that the appellant should be given the allotment at the original price and at best for delay on the part of appellant in approaching the Court, the appellant may be burdened with the interest. It is further contended that no cancellation letter was received by the appellant and nor was the refund of the amount deposited by the appellant ever made. However, the claim of the appellant is not for the refund of the amount.

8. Learned counsel for the appellant referred to two judgments of the learned Single Judge of this Court rendered by one of us (Sanjay Kishan Kaul, J.). The first one is in WP (C) 7061/2002 Sudha Gupta v. DDA decided on 26.08.2003. It may, however, be noted that in the said case the name of the petitioner therein was included in the mini draw of lot in pursuance to the interim directions of the Court. The petitioner therein volunteered to pay interest in view of the delay in approaching the Court which was accepted by the Court.

9. The other judgment referred to in WP (C) 1530/2002 Mange Ram v. DDA decided on 06.03.2003 again rendered by one of us (Sanjay Kishan Kaul, J.). In the said case the allotment had already been made and the only question to be considered was the cost of the flat. The petitioner therein belonged to SC/ST category. Even there it was held that even in cases where the DDA is at fault, it cannot be said that the allottee is absolved of all responsibility to make any enquiry for all times to come. The interest was thus imposed for the period of delay.

10. Learned counsel for the appellant submitted that in view of the decision of the Apex Court in the case of Collector, Land Acquisition, Anantnag and Another v. Mst. Katiji and Others the delay in approaching the Court should be condoned. It is required to be noted that in the said case there was delay of four days only whereas there was upward revision of the order of 800% (from Rs.1000 per kanal to Rs.8000 per kanal) which raised important questions regarding valuation. The delay was caused by the Collector on account of an impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing on the buck ethos. The Court pointed out that the delay on the part of the State is less difficult to understand though more difficult to prove. The State was representing collective cause of the community. It is in this situation the Court condoned the delay of four days in preferring an appeal. In the instant case, at the initial stage, there was delay of a period of five years in approaching the Court by the appellant which was not explained at all and, therefore, this decision would not help the appellant.

11. Learned counsel for the appellant drew our attention to the decision of a Division Bench of this Court dated 9.2.2004 in case of Mange Ram v. D.D.A (Writ Appeal No. 248/2003). However, the Court had no occasion to examine the question of delay in approaching the Court and no arguments were advanced before the Division Bench on delay and, therefore, this judgment does not help the appellant.

12. Learned counsel for the appellant cited a decision rendered by one of us (Sanjay Kishan Kaul, J) in C.W. No.1530/2002 decided on 6.3.2003 and C.W. No. 7061/2002 decided on 26.8.2003 wherein also no question has been raised about delay and laches.

13. Learned counsel for the appellant drew our attention to the decision delivered by the learned single Judge in WP(C) No. 19095/2004 and other matters in the case of Surender Kumar Mehta v. Delhi Development Authority decided on 16.12.2004. In this group of petitions the Court examined the unpleaded facts. In those cases the question was about the negligence of authority in not informing the concerned petitioner at his correct address despite the information about the change of address given to the respondent-DDA. As DDA failed to change the address despite the communication of the same, the Court pointed out that the petitioner should not suffer and authority must verify and ensure about the correct address before sending the communication. It may be noted that it was also pointed out subsequently by filing an affidavit that the allotment being widely circulated even the allottees were made aware about it and they were equally responsible and guilty / negligent in not approaching. It was pointed out that there is loss of huge amount and the burden will be on the general public. In such a situation if the mistake, which was known to the registrant / allottee and if he is not informed, then how the matter is to be dealt with is indicated. However, in that case there was nothing on record that the mistake was known to the allottee. Learned single Judge has referred to the Division Bench judgment of this Court in the case of Attar Kaur v. DDA , LPA No. 184/2000. Thus, these are the cases which have no bearing on the facts of the present case and, therefore, no reliance could be placed on these decisions.

14. Learned counsel for the appellant placed reliance on the decision of the learned single Judge in the case of Ashwani Kumar Bhatia v. Delhi Development Authority , CWP No. 1663 of 1998 decided on 30.8.1998. There is nothing to show that the Court was called upon the consider the principle of delay and laches and, therefore, no reliance can be placed on this decision.

15. Lastly, learned counsel for the appellant placed reliance on the decision of the learned single Judge in the case of Subhash Chander Chadha v. Delhi Development Authority (72 (1998) DLT 413) wherein the demand letter was never sent to the petitioner. In the instant case, despite the double allotment the appellant was informed. He made some payment and thereafter he never bothered to make payment for the flat specifically allotted subsequently. On account of the condition mentioned in the letter itself the allotment stood cancelled. In the aforesaid cases no question is raised about delay and laches and, therefore, no reliance can be placed.

16. The relevant fact, however, to be considered is that in the given facts of the case, the learned Judge exercised the discretion in the matter while passing orders under Article 226 of the Constitution of India. In the present case, however, considering the extent of delay, the learned Single Judge has refused to exercise the discretion in favor of the appellant herein. Thus, in the present Letters Patent Appeal, unless the Court is satisfied that there was failure on the part of the learned Single Judge to exercise his discretion properly, no interference would be called for.

17. It has to be appreciated that the question of the effect of delay and laches has not been gone into in detail and the aforesaid judgments referred to by the learned counsel for the appellant were in given fact of the case for the reason that allotments were made and the issue was one of costing and in the given facts of the case it was held that the payment of interest would adequately compensate the respondent. It may be noted that in the present case though there were initially interim orders passed restraining the flat allotted to the appellant to be dealt with, it was found that the flat already stood allotted to third party and thus one flat was directed to be kept reserved. The result is that the original flat is not available.

18. The claim of the appellant of non-receipt of any cancellation letter cannot be also be sustained for the reason that there was a provision for automatic cancellation in case of failure to deposit the amount in terms of the allotment.

19. It must be kept in mind that even in proceedings under Article 226 of the Constitution of India, though strictly speaking the law limitation is not applicable the same should be a guiding factor unless there are special reasons explained for the petitioner not approaching the Court at an earlier date. This issue was considered by the Hon'ble Supreme Court in Shri Vallabh Glass Works Ltd. and another v. Union of India and others, . It was observed in para `9' as under :

"Whether relief should be granted to a petitioner under Article 226 of the Constitution where the cause of action had arisen in the remote past is a matter of sound judicial discretion governed by the doctrine of laches. Where a petitioner who could have availed of the alternative remedy by way of suit approaches the High Court under Article 226 of the Constitution, it is appropriate ordinarily to construe that any unexplained delay in the filing of the writ petition after the expiry of the period of limitation prescribed for filing a suit as unreasonable. This rule, however, cannot be a rigid formula. There may be cases where even a delay of a shorter period may be considered to be sufficient to refuse relief in a petition under Article 226 of the Constitution. There may also be cases where there may be circumstances which may persuade the court to grant relief even though the petition may have been filed beyond the period of limitation prescribed for a suit. Each case has to be judged on its own facts and circumstances touching the conduct of the parties, the change in situation, the prejudice which is likely to be caused to the opposite party or to the general public etc."

20. In Municipal Council, Ahmednagar and another v. Shah Hyder Beig and Others, , it was observed in para `14' as under :

"The High Court has thus misplaced the factual details and misread the same. It is now a well-settled principle of law and we need not dilate on this score to the effect that while no period of limitation is fixed but in the normal course of events, the period the party is required for filing a civil proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in general but it is not out of place to mention that this extraordinary jurisdiction has been conferred on to the law courts under Article 226 of the Constitution on a very sound equitable principle. Hence, the equitable doctrine, namely, "delay defeats equity" has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-by to his rights. Equity favors a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise."

21. A reference may also be made to the Supreme Court judgment in State of Madhya Pradesh v. Bhailal Bhai & Ors, (1964) 6 SCR 260 at page 273, where it was observed as under :

"Mr. Andley has argued that the delay in these cases even is not such as would justify refusal of the order for refund. He argued that assuming that the remedy of recovery by action in a civil court stood barred on the date these applications were made that would be no reason to refuse relief under Article 226 of the Constitution. Learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is for more than this period, it will almost always be proper for the court to hold that it is unreasonable."

22. The aforesaid judgments were also considered by one of us (Sanjay Kishan Kaul, J.) in the case of Smt. Krishna Chaubey v. Govt. of NCT of Delhi, 2004 III AD (Delhi) 576, where it was held that where serious financial repercussions would arise in case the petitioner succeeds in the petition on merits, the valuable rights which have accrued in favor of the respondent by lapse of time by the petitioner not agitating the claim cannot be wished away.

23. A conspectus of the aforesaid judgments would show that ordinarily the period of limitation prescribed for filing a civil suit would be a guiding factor. This period was over long time ago in case the appellant would have preferred a civil suit. Even assuming that the petition ought to be entertained after that period of time, there has to be satisfactory explanation for the period of delay. Leave aside any satisfactory explanation, there is no explanation whatsoever other than saying that the appellant was approaching the Department from time to time and orally representing the matter. This is hardly a satisfactory explanation.

24. It has also to be appreciated that the appellant is not an uneducated person, unaware of his legal rights. On a query being posed, learned counsel for the appellant stated that the appellant is an Income Tax Officer and still continues to be in service. The appellant was thus well aware of his rights and cannot be permitted to sleep over them and claim the relief of getting allotment of the flat at the original cost when he has failed to approach the Court for redressal of his grievance within a reasonable period of time.

25. For all the aforesaid reasons, we are of the considered view that the appellant is not entitled to the flat as claimed and the learned Single Judge has rightly dismissed the claim on grounds of delay and laches.

26. There is, however, one other aspect which has to be taken note of, which is the failure of the respondent to refund the amount deposited by the appellant towards the initial hire-purchase Installment. The DDA ought to have refunded this amount which it has failed to do. The respondent has retained this amount unauthorisedly and in our considered view relief can be moulded to grant refund of this amount to the appellant which was deposited at the initial stage. The respondents themselves are relying upon the clause of automatic cancellation and thus after the failure of the appellant to deposit the amount the same ought to have been refunded back within a reasonable period of time. After June 1992, there is no further representation on the part of the appellant and thus the amount should have been refunded back at least within a period of three months of the said date and thus not later on 30th September, 1992. Since this amount has been improperly been retained, the respondent is liable to pay interest @ 7% per annum on this amount from 01.10.1992 till the date of payment and the amount be refunded back to the appellant without any deduction within a period of two months from today.

27. The appeal stands disposed of in the aforesaid terms leaving the parties to bear their own costs.