Delhi High Court
Gulshan vs D.D.A. on 18 August, 2006
Author: S R Bhat
Bench: S R Bhat
JUDGMENT
S. Ravindra Bhat, J.
1.Issue rule. With consent of counsel for the parties, the matter was heard for final disposal.
2. The petitioner is a registrant of the 9th Self Financing Scheme (hereafter referred to as 'SFS') of the respondent (hereafter 'DDA'). He has approached this Court for a direction that the decision or action taken in canceling the allotment on 28.8.2003 is arbitrary and illegal.
3. The petitioner has been registrant of the Scheme since 1996; he was initially allotted a flat in 1999. He approached this Court claiming that the DDA had not extended civil amenities such as water supply and had also not developed infrastructure. That writ petition was disposed off on 23.4.2002. The Court directed that the DDA ought to issue a fresh demand letter in accordance with its policy within eight weeks and that in such eventuality if the original flat had remain un-allotted or not occupied by any one else, it was to be restored to the petitioner and in the eventuality of its being allotted to some one else, he would be entitled to another flat in the same locality.
4. The petitioner claims that in spite of orders of this Court he did not receive any communication or intimation, by way of a fresh demand letter. Ultimately, on 28.8.2003 he received the impugned cancellation letter which alleged that he had not complied with the demand issued earlier in conformity of this Court's directions.
5. The petitioner avers, and his counsel contends that he is suffering from a severe disability with 70% permanent disability being a patient of cerebral palsy. It is claimed that the disability of such a magnitude that has resulted in retardation. It is claimed by petitioner's counsel that the original demand letter said to have been issued by the DDA, was in fact never received. In these circumstances, the cancellation through the impugned order is arbitrary.
6. Mr. Rajesh Mahajan, learned Counsel for the DDA submitted that even though the DDA did not dispute the petitioner's ailment, and in fact granted him adequate time as is evident from the circumstance that after issuance of the demand-cum- allotment letter dated 25.6.2006, it waited for more than a year, for the petitioner to comply with the terms, nevertheless it could not be expected to wait indefinitely. It, therefore, took the impugned action which was fully justified. Counsel further submitted that even after receipt of the letter dated 28.8.2003 the petitioner did not take any steps; he was in fact called for a personal hearing on 3.11.2003 and handed over a copy of the demand letter. Even at that stage the petitioner defaulted. In these circumstances, it is stated that the DDA's action cannot be termed as arbitrary. Counsel submitted that the special out of turn allotment to schemes are not in existence, and the Petitioner can no longer claim any preference. He, therefore, seeks dismissal of this writ petition.
7. The factual matrix in my opinion is narrow and largely undisputed. The only area of controversy is as to whether the petitioner in fact received the letter of allotment on 26.5.2002. He asserts that he did not; the DDA on the other hand equally categorically assures that he did.
8. In a Self Financing Scheme, there is no gainsaying that a registrant is bound by the terms and has to comply by demands for timely payment as it is linked with the installments paid. If there is any default for whatsoever reason it is likely to delay execution of the project. Viewed from this broad context, the DDA's stand cannot be faulted. However, there are certain special and peculiar features of this case which the DDA has rightly not disputed namely, that the petitioner is a victim of a physical and mental disorder which has left him severely impaired. The DDA rightly chose not to take any action in canceling for more than a year.
9. Cerebral palsy is a generic medical term, encompassing a group of neurological physical disabilities in development of human movement and posture. Such disorders are frequently accompanied by disturbances of sensation, communication, perception, and behavior and/or seizure disorder. Section 2(e) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereafter 'the Act') defines the condition as follows:
2(e) 'cerebral palsy' means a group of non-progressive conditions of a person characterised by abnormal motor control posture resulting from brain insult or injuries occurring in the pre-natal, peri-natal or infant period of development
10. The Act was conceived as a measure to ensure a barrier free society, guaranteeing certain affirmative rights to persons with various disabilities and impairments. Section 43 casts are obligation upon appropriate governments to formulate schemes for preferential allotment of lands and houses, to benefit persons with disabilities. Further parliamentary recognition of the special nature of cerebral palsy and the need to adopt distinctive measures, took place in 1999, when the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 was enacted. The Parliament established a Trust, under the Act, with a corpus of Rs. 100 crore to inter alia, enable and empower persons with disability to live as independantly and as fully as possible within and as close to the community to which they belong.
11. This Court, in at least three judgments (Rakesh Raman Jha v. DDA CWP. 4302/96 decided on 9.2.2000; S.K. Rungta v. DDA CWP No. 7791/2000 decided on 10.2.2004 and Ms. Rajni Thakur v. DDA CWP No. 4808/2001 decided on 5.11.2003) referred to the DDA's obligation to extend the benefits under Section 43, and recorded existence of a scheme. In one judgment, DDA had been asked to consider collecting concessional price. Earlier, before the enactment of the Disabilities Act, in 1990, the Supreme Court, in its judgment reported as Godawari Bai v. DDA 1990 Supp. SCC 124, directed DDA to issue an out of turn allotment to a person with disability.
12. Even if it were to be assumed that the petitioner had received the allotment letter as alleged by DDA and for the reason of his illness he could not comply with it, the DDA at least in the present case ought not to raise the issue of laches or delay in his approaching the Court.
13. It is an undisputed fact that the petitioner is a registrant of 1996 who was allotted a flat. Having regard to Section 43, and the statements of the DDA in the judgments noted above, in the peculiar facts of this case, and keeping in mind the previous sympathetic approach I am of the opinion that ends of justice require that the DDA should be directed to restore the allotment to the petitioner.
14. In view of the above discussion, the following directions are issued:
(a) the allotment of the petitioner shall be restored by the DDA. For this purpose it shall issue a fresh demand-cum- allotment letter, including the restoration and other charges as per its policy within four weeks from today;
(b) the demand-cum-allotment letter issued pursuant to the direction (a) above shall be on the basis of the current costs namely, as on August, 2006;
(c) If the flat originally allotted cannot be restored due to its subsequent allotment to another person, the DDA shall ensure, (having regard to the Petitioner's medical condition, and restricted mobility) that another ground floor flat, in the same locality is allotted;
The writ petition and pending application are allowed in terms of the above directions. No costs.
