Pragati Educational And Welfare vs D.D.A.
2007 Latest Caselaw 990 Del

ORDER

S. Muralidhar, J.

1. The facts of the present case have been set out in the order dated 30.3.2007 which reads as under:

1. In this matter it appears that the petitioner society was issued a letter dated 28.9.2001 by the DDA allotting it a land in Pocket 5, Jasola measuring 800 sq.m. and requiring it to make a payment of Rs. 38,27,032/- as land premium and Rs. 95,676/- as ground rent within 60 days from the date of that letter. Thereafter 18% interest was to be charged up to six months from the date of issue of that demand-cum-allotment letter.

2. The society made an initial deposit of Rs. 2 lakhs and enquired if the site was free from all encumberance. More letters were written by the society to the DDA stating, inter alia, that it was having difficulty in arranging funds but still insisting on knowing whether the property was from encumberances. On 13.6.2003 the petitioner society deposited a further sum of Rs. 37,22,753/-. Unfortunately, none of these letters by the society appear to have been replied by the DDA. That led to the filing of this writ petition on 26.10.2005.

3. Even before the DDA filed its reply to the writ petition, at a hearing on 9.1.2006 it appears that an Order was passed directing the DDA to remove encroachments from an alternative site which was offered to the petitioner on that date. This was followed by another Order dated 23.2.2006 whereby the Vice Chairman DDA, was asked to file an affidavit on the issue of encroachments on the alternative site.

4. On 13.3.2006, a counter affidavit was filed by the Director(Lands) DDA, and not not by the Vice Chairman, inter alia pointing out that the site originally offered to the petitioner and for which the payment was demanded "already stood allotted to another society". The affidavit also pointed out that since the payment was belated, the society was not entitled for allottment of an alternative site.

5. A further affidavit dated 13.3.2006 disclosed that the alternative site over which encroachment existed "had never been transferred to the DDA by the LAC, the DDA therefore had no jurisdiction of the said land." At the end of the affidavit a prayer was made to exempt the Vice-Chairman, DDA from filing an affidavit.

6. After hearing submissions of the learned Counsel for the parties, this Court considers it necessary to require the Vice Chairman of DDA to file a supplementary affidavit disclosing precisely when the allotment of the site in question was made to the other society and under what circumstances the same site came to be allotted to the petitioner here by the letter dated 28.9.2001. Prima facie it appears to be a case of double allotment for which DDA would have to be answerable in law.

7. To insist that allottee of such a plot would nevertheless have to make the complete payment without disclosing to the allottee that the said plot already stood allotted to someone else would be compounding the error. The matter assumes serious propositions given the fact that not only was the petitioner kept in the dark about the fact of double allotment, but even this Court was led by the DDA to believe on 9.1.2006 that an alternative land existed when no such land was in fact available with the DDA. Also there seems to be no justification why the Vice Chairman DDA did not think it fit to comply with the Order dated 23.2.2006 by filing an affidavit himself. Given the facts of the case, as noticed hereinabove, the prayer for exempting the Vice-Chairman, DDA from filing the affidavit cannot be acceded to. The DDA will, by the next date of hearing, pay costs of Rs. 5,000/- to the Delhi Legal Services Authority for not complying with the said order dated 23.2.2006 in the manner indicated.

8. The affidavit of the Vice Chairman, DDA should be filed on or before 30.4.2007. The records of the case be kept ready for perusal of the Court on the next date of hearing. List on 4.5.2007. A copy of this order be given dusty under the signature of Court Master.

2. Pursuant to the above order, an application was filed for extension of time for filing affidavit of the Vice Chairman on the ground that relevant records could be collected only a few days prior to the filing of the said application. This Court then permitted the affidavit to be filed on or before 11.5.2007. On 11.5.2007, an affidavit was filed by the Vice Chairman, DDA in which it was pointed out that the extension of time for making payment in terms of allotment letter dated 28.9.2001 was not granted and that the said period of six months by which payment had to be made, expired on 31.3.2002. It was further pointed out that contrary to what was earlier informed to this Court, this was not a case of double allotment since the allotment in favor of the petitioner stood automatically cancelled when the payment was not made within the time stipulated i.e., 31.3.2002. It is stated in the affidavit that

5. The layout plan of said plot in Pocket-5, Jasola was finalized on 9.7.2002. As per layout plan an area of 1400 sq. mtrs. was earmarked for Society for Autism, 660 sq. mtrs. for community room and 963 sq. mtrs. for dispensary. No plot was earmarked in the said layout plan for petitioner society.

[d] The Competent Authority approved allotment of 1400 sq. mtrs. to Society for Autism on 29.4.2002 and allotment letter to the said society was issued on 2.8.2002. The decision to allot the plot to Society for Autism was taken much after the deemed date of cancellation of allotment of the petitioner society. Further, it may be submitted that an area measuring 660 sq. mtr. for community room and 963 sq. mtr for dispensary are still available. The above sequence of events show that it is not a case of double allotment.

3. It is further stated by the Vice Chairman, DDA that the noting on the file, as seen by this Court when it made the order dated 9.1.2006, to the effect that the case of the petitioner was being processed for alternative allotment, was a mistake and that the DDA was justified in avoiding contract since the petitioner had failed to fulfilll the obligation of making payment within the time stipulated. Reliance is placed on judgment dated 23.3.2006 made by learned Single Judge of this Court in WP (C) 5358-59/2004 Rahul Dhaka Vikas Society v. DDA.

4. An additional affidavit has been filed on 14.5.2007 by the Deputy Director (Institutional Lands) setting out detailed sequence of events and stating that offer of allotment to the petitioner stood automatically withdrawn when no payment is made of the balance amount by 30.3.2002. Annexed to this affidavit is a letter dated 28.12.2001 written by the DDA to the petitioner in which it is stated as under:

Refer to your letter dated 15.11.2001 regarding the subject cited above. In this connection, I am to inform you that claimant comes in its right if the full payment is made by the society.

Therefore, you are requested to make the payment of Rs. 39,22,753/- along with the interest thereof as the stipulated period of the payment has already expired on 26.11.2001 and 18% interest is chargeable.

5. It is stated that an error occurred in the earlier counter affidavit that the land offered to the petitioner "already stood allotted to another society." The error explained is as under:

This error has apparently occurred since as stated above, the date wise chronology of events was not considered by the department. However, as is evident from the above chronology of events, the land originally allotted to the petitioner society, was allotted in favor of society for Autism on 2.8.02 i.e. after about 11 months of allotment of land to the petitioner society whose date of allotment was 28.9.2001 and about four months after automatic withdrawal of the offer of the allotment. Thus it could not be construed as double allotment. The affidavit of the Vice Chairman, DDA has already been filed on this aspect.

6. It is pointed out that the failure to make payment was explained by the petitioner as owing to financial difficulties it was facing and not on the ground of the site not being developed or encumbered. It is stated that in any event, after the letter 28.12.2001, the petitioner could not have been in any doubt that there would be no extension of time for making payment. It is stated, however, that the petitioner society could have been accommodated in the same site had the payment been made in time.

7. As regards the restoration of allotment in the event of belated payment, the policy of the DDA is explained thus:

That it is reiterated that, it has been the consistent stand of the DDA that no restoration of allotment of belated payment cases are being accepted. Now the mode of allotment to schools is by way of auction. As stated in para 10 of the counter affidavit the petitioner society has made the payment of the bulk balance amount in 2003 - after the policy for allotments was being reviewed and allotments are no longer being made at concessional rates. The value of the plot as on today is much higher than the rate at which, an offer was made to the petitioner society which was not availed by the society. The petitioner society has very cleverly after judging this situation, tendered balance bulk payment on its own in 2003 without any change in circumstances after a period of 19 months seeking allotment of the plot in question.

8. Ms. Richa Kapur, learned Counsel for the petitioner made the following submissions:

i) The DDA had failed to satisfactorily answer the question raised by the petitioner even as early as 15.11.2001 whether the site would be allotted to the petitioner "free from all encumbrances." On account of its previous experience, the petitioner was not willing to deposit the amount unless it was sure that it was getting a plot without encumbrances.

ii) As the previous orders of this Court would show, the file of the petitioner was in fact being processed for alternative allotment. In the facts of the present case, it was not reasonable for the DDA to treat the present case as an automatically cancelled allotment.

iii) The DDA having accepted the deposit of Rs. 37,22,753/- on 17.6.2003, it should be presumed that they had kept the allotment alive and in any case were obliged to find alternative plot for the petitioner.

iv) Since the plot was in any way not ready to be handed over to the petitioner, the allotment could not have been cancelled for failure of the petitioner to make payment in time. Reliance is placed on the decision in the matter of Rai Bahadur Raghubir Singh Education Society to which a reference has been made in the decision in the case of Rahul Dhaka Vikas Society.

v) The present case had to be treated as a case of double allotments since the subsequent allotment to the Society for Autism could not have been made while the allotment in favor of the petitioner subsisted. Reliance was placed on the decision dated 16.5.2005 of this Court in WP (C) 13253/2004 (Paramjit Singh v. DDA).

9. In reply, Ms. Sangeeta Chandra, learned Counsel appearing for the DDA submitted as under:

i) As explained in the affidavit of both the Vice Chairman, DDA as well as the Deputy Director (Institutional Lands), this was not a case of double allotment and the impression given earlier in this behalf in the affidavit filed by the DDA in this Court was a bona fide mistake.

ii) In a matter where the petitioner had failed to fulfill its part of obligation in making the payment within time, the DDA was not obliged to continue the allotment.

iii) The DDA had left the petitioner in no doubt when it informed the petitioner by its letter dated 28.12.2001 that payment had to be made within the time stipulated in the allotment letter. If the petitioner made payment on their own subsequently, the DDA was not bound to make the allotment which in any event stood cancelled.

iv) The stand taken by the petitioner that it did not make payment since the plot was not ready for being handed over, was not correct. As the subsequent lay out plan showed if the payment had been made, the petitioner's plot would have been earmarked and handed over.

10. The unfolding of the events as now explained in the affidavit of the Vice Chairman, DDA and Deputy Director, DDA reveal that the earlier affidavits did contain erroneous statements which led the Court to understand this to be a case of double allotment. Now it appears that the DDA did not extend time for making payment indicated in the allotment letter dated 28.9.2001. The clauses in the allotment letter which are relevant for this purpose read as under:

22. If the above terms and conditions are acceptable to you, the acceptance there of with attested undertaking be sent to the undersigned along with the bank challn in favor of DDA for Rs. 39,22,753/- Rs. 38,27,032/- (Land Preminum) + Rs. 95,676/-(G. Rent) and documentation charges Rs. 45/- within 60 days from the date of issue of the allotment cum demand letter. The said amount can also be deposited in the bank counter situated in DDA's office complex and copy of the same may be sent to this office for having deposited the demand along with acceptance letter undertaking with in 60 days from the date of issue of demand cum allotment letter. Within 60 days of issue of demand cum allotment letter the allottee shall be require to make the entire payment. Thereafter, 18% interest shall be chargeable up to 6 months from the date of issue of the demand cum allotment letter.

23. In case the payment and acceptance letter with re-required undertaking is not received within the stipulated period as stated above, it will be presumed that you are not interested in the allotment of the land and the offer of allotment will stand withdrawn.

11. The Court considers the letter dated 28.12.2001 written by the respondent DDA to the petitioner to be unambiguous. In fact, in its letter on the same date to the DDA, the petitioner itself confirms the fact that there was to be no extension of time for making payment. In the said letter the petitioner states that:

Today, we contacted your office and have been told that first we should deposit the full amount as asked for then our case will be considered and we will be informed.

12. Of course, the petitioner was insisting even in the above letter for a confirmation from the DDA that possession would be given of the site but this could not have been the ground for the petitioner to unilaterally decide that it will not make payment within the time stipulated in the letter and expect that the allotment will not be cancelled. The petitioner was not compelled to accept the allotment if it had a doubt that it might not get a plot free from all encumbrances. It could have easily asked for cancellation and possibly a refund.

13. The counsel for the respondent is right in her submission that there was no obligation on the DDA to extend time for making payment in terms of the allotments letter dated 28.9.2001. Also the question of the DDA not keeping the site ready for allotment cannot arise till such time the petitioner in fact has performed its part of obligation and made payment. The judgment of this Court in the Rahul Dhaka case appears to support contention of the DDA. Although Ms Kapur sought to distinguish this judgment on the ground that plot in that case was ready to be handed over whereas in this case, it was not, the materials on record here do not persuade the Court to conclude that the plot here was not ready to be handed over to the petitioner. The Court is also unable to agree with the counsel for the petitioner that there was an enforceable right to demand extension for making payment because the plot was not ready for being handed over.

14. The facts that have now emerged indicate that indeed this was not a case of double allotment. The allotment in favor of the petitioner stood automatically cancelled in terms of condition 23 of the allotment letter dated 28.9.2001. In that view of the matter, the judgment of this Court in Paramjit Singh, which in any event was given in the context of the allotment of a flat under the New Pattern Registration Scheme 1979, cannot come to the aid of the petitioner.

15. The only question that remains to be considered is the conduct of the DDA in accepting the payment made subsequently by the petitioner on 17.6.2003 and in not replying to the representations made thereafter and in not informing the petitioner that its allotment already stood cancelled. The affidavits filed by the DDA are ominously silent on this aspect. It is beyond comprehension that DDA would want to retain such a large sum of the money of the petitioner when it was clear to the DDA that it was not going to consider, the petitioner's case for allotment of an alternative plot. If indeed, as is claimed, the changed policy of the DDA did not permit it to consider the request for condoning belated payment and restoring the allotment, then there was absolutely no justification for the DDA to have retained the aforementioned sum with itself for such a long period of time.

16. In that view of the matter, the Court has no hesitation indirecting that the DDA should refund the amount retained by it together with interest @ 18% per annum.

17. Accordingly, while rejecting the prayers made in the writ petition, this Court directs that the DDA will within six weeks from today and in any event not later than 29.6.2007, refund to the petitioner the entire sum of Rs. 39,22,753/- (The aggregate of Rs. 2,00,000/- deposited on 13.11.2001 and Rs. 37,22,753/- deposited on 17.6.2003) on or before 29.6.2007 together with interest @ 18% per annum on those amounts from the respective dates of their deposit by the petitioner with the DDA till 29.6.2007 or any earlier date on which the refund is made. It is made clear that if there is any delay beyond this period for making refund, apart from being in contempt of the order of this Court, the DDA would also be liable to pay an enhanced interest @ 24% per annum on the said sum for the period of delay.

18. With the above directions, the writ petition is disposed of.

19. Order dusty to the parties.