Shri Naresh Kumar Mahajan vs Delhi Development Authority And ...
2006 Latest Caselaw 792 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Claim of the petitioner is towards belated construction interest. Basis of claim is Clause 4 of the terms and conditions notified by DDA for its Self-Financing Scheme. The clause reads as under :

4) The estimated cost of the flat as given in this letter is provisional and is subject to revision on the completion of the flat. Any price difference between the estimated cost and the cost as it works out on completion as per costing formula in vogue would have to be paid along with the fifth and final installment. No definite time by which the construction of the flats will be completed can be indicated at this stage. Normally it takes 2-1/2 years period for completion of the project. Sometimes, due to unforeseenable reasons completion of project may get delayed. For delay beyond 30th month up to 36th month till the issue of demand letter for fifth and final installment the allottee shall be paid interest 7% per annum and beyond 36th month interest will be paid 10% on his/her deposit.

2. As per the Self Financing Scheme notified by DDA, registrants had to opt as and when DDA notified flats to be constructed in an area. Those who opted had their registration particulars entered at a draw of lots. To the lucky ones, an allocation was made. It may be clarified that allotment of a specific flat had to follow.

3. Allocation meant that the successful registrant was informed that he would get a flat in a particular area. He was also informed whether the flat was a ground floor, first floor or second floor flat. The successful registrant had to be indicated the estimated cost of the flat. Four, six monthly installments had to be paid. The fifth and final Installment had to be demanded and paid when specific flat was allotted. Possession was to follow thereafter.

4. DDA had already commenced construction of flats in Pocket-2, Block-3, Dwarka, New Delhi. Allocations had been made in the year 1992. Four installments had been demanded on 31.1.1992, 31.7.1992, 31.1.1993 and 31.7.1993.

5. Petitioner was allocated a flat on the ground floor in Category-II in the on-going project. This allocation was in the month of August,1994. Since the four installments had fallen due on the dates afore-noted, petitioner was indicated that he had to pay the amounts covered by the four installments i.e. Rs. 6,03,000/- by 18.11.1994. After giving adjustment of the registration deposit and interest accrued thereon, petitioner was required to pay Rs. 56,75,380.40 by 18.11.1994.

6. Petitioner deposited the said amount on 14.11.1994. He intimated proof of payment on 19.11.1994.

7. Since petitioner was a late entrant and the four installments due had to be paid on 31.1.1992, 31.7.1992, 31.1.1993 and 31.7.1993, it was informed to the petitioner when allocation letter was issued to him that he would have to additionally pay actual period interest 10% per annum.

8. Construction was completed somewhere in the month of September,1996. At a draw of lots to allot specific flat, flat No.153 fell to the lot of the petitioner. On 28.10.1996 informing the petitioner of the specific flat allotted, final demand was raised upon the petitioner. Petitioner was required to pay a sum of Rs. 61,884/-. Petitioner paid the said amount. Possession of the flat was offered on 1.6.1998. Possession was taken over in October 1998.

9. Petitioner woke up on 18.5.2001 and wrote a letter demanding belated construction interest and predicated his claim on Clause 4 of the Self Financing Scheme. Receiving no response, petitioner approached the Permanent Lok Adalat, DDA on 5.7.2001 which opined vide order dated 4.7.2003 that DDA must pay belated construction interest to the petitioner. However, DDA did not give its consent. The Permanent Lok Adalat closed the proceedings as unsettled on 5.3.2004 Present petition was thereafter filed on 9.2.2005.

10. Explaining delay in handing over possession, learned Counsel for DDA, in view of a vague reply filed to the writ petition, placing reliance upon the original record which was produced in Court, pointed out that final demand was raised on 28.10.1996. Not only had the amount to be paid but within 120 days requisite documents had to be submitted so that possession could be handed over. Counsel pointed out from the record that original fixed deposit receipt which had to be surrendered to DDA before possession could be handed over was surrendered on 6.10.1997. Thereafter, challan evidencing deposit of conversion charges was submitted on 20.2.1998. Proof of deposit of maintenance charges was furnished on 7.4.1998.

11. Counsel submitted that petitioner completed the formalities only on 7.4.1998. Necessary no objection was issued by the Finance Department on 1.6.1998 and on 6.7.1998 possession letter was handed over. Thereafter, petitioner went to the site and took possession of the flat. Counsel submitted that the petitioner was responsible for the delay.

12. But counsel submitted that before merits of the controversy could be considered, issue of delay and laches be considered. Counsel urged that having received possession of flat on 3.10.1998, petitioner woke up for the first time in the month of May,2001 when he wrote on the issue of belated construction interest. Counsel submitted that even after the Permanent Lok Adalat closed the proceedings as unsettled on 5.3.2004, 10 months time was taken thereafter in filing the present petition.

13. Learned counsel for the petitioner, in rejoinder, urged that DDA had been paying belated construction interest to those to whom fifth and final demand was raised beyond 30 months. Counsel urged that since petitioner joined the scheme later and paid actual period interest to DDA, he could not be denied belated construction interest. On the issue of delay and laches, counsel urged that petitioner took recourse to remedy before the Permanent Lok Adalat and the said period had to be excluded.

14. On the issue of delay and laches, law is that notwithstanding there being no prescribed period of limitation to invoke the writ remedy, a person must come to the Court at the earliest opportunity. A rough guidance to the period within which a party must come to court invoking the writ jurisdiction would be the period of limitation prescribed if a civil action had to be maintained.

15. It is true, and as has been held by their Lordships of the Supreme Court in the decision reported as M/s. Dehri Rohtas Light Railway Company Limited v. District Board, Bhojpur and Ors. the rule which says that the court may not inquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion, each case must depend upon its own facts; it will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose, but where the delay is enormous, additional consideration from the point of view of limitation, if civil suit was to be filed, has to be taken note of as was observed by the Constitution Bench of the Hon'ble Supreme Court in the decision reported as State of M.P. v. Bhailal Bhai. (see para 21) It was observed as under :-

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. This 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 more than this period, it will almost always be proper for the court to hold that it is unreasonable.

16. Petitioner was served with the final demand in the month of October,1996. He cleared the demand on 30.12.1996. At that stage, petitioner did not require DDA to give him credit adjustment of actual period interest. Thereafter, as noted above, petitioner delayed completion of formalities required before which possession could be handed over to him. Petitioner consumed time till the month of April,1998. Petitioner is solely to be blamed for the delay post October,1996 till possession was handed over.

17. As the petitioner interprets Clause 4 of the Scheme, cause of action accrued to the petitioner the moment 5th demand was raised in the month of October,1996.

18. Having paid the demand in December,1996, it was too late in the day for the petitioner to raise the issue of belated construction interest in the month of May,2001.

19. In fact, according to the petitioner, belated construction interest is required to be paid to him reckoning 30 months from 31.1.1992 for the reason, petitioner was called upon to pay actual period interest on the four installments which had already fallen due when allocation letter was issued to the petitioner in the month of August,1994. Thus, case as pleaded by the petitioner means that cause of action had accrued to the petitioner in August,1994. Surely, petitioner could have told DDA that since he was required to pay the four installments which had fallen due on 31.1.1992 and six months thereafter for three successive months period together with actual period interest, he too may be given benefit of belated construction interest. Obviously for the reason, whereas DDA was out of pocket, petitioner went out of pocket when he paid pursuant to the allocation only in the month of November,1994, petitioner did not ask for the same.

20. Looked at from any angle, right, if any, accrued to the petitioner at least on 28.10.1996 when allotment letter was issued raising the final demand of Rs. 61,884/-. Petitioner could have sought credit adjustment at that stage. Petitioner paid the balance demand without demur on 30.12.1996. It was too late in the day for the petitioner to claim belated construction interest in May,2001.

21. I accordingly reject the claim holding that the petition suffers from culpable laches.

22. Petition is dismissed.

23. No costs.