Prem Prakash vs Delhi Development Authority
2008 Latest Caselaw 1306 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P. (C) No.10629/2006

%                      Date of Decision: 11.08.2008

Prem Prakash                                ..... Petitioner
                           Through:   Ms. Richa Kapoor, Adv.

                      versus


Delhi Development Authority                ..... Respondent
                      Through:        Ms. Manika Tripathy, Adv.

CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether the Reporters of local papers
   may be allowed to see the judgment?

2. To be referred to Reporter or not?            Yes

3. Whether the judgment should be                Yes
   reported in the Digest?

VIPIN SANGHI, J. (Oral)

1. The petitioner got himself registered under the 1979

New Pattern Registration Scheme for allotment of one MIG flat. The

petitioner was allotted registration No.29139. The address given by

the petitioner at the time of registration was "C/o Roshan Lall

Gupta, WZ-406C, Hari Nagar, Clock Towar, New Delhi" The

said Shri Roshan Lall Gupta is stated to be the brother of the

petitioner's wife. Admittedly the petitioner was allotted flat bearing

No.209, Sector-17, Pocket-A, Dwarka in the year 2003. Demand-

cum-allotment letter was sent by the respondent DDA to the

petitioner on three different occasions by speed post. On each

occasion the address on which the communication was sent was

"Prem Prakash WZ-406C, Hari Nagar, Tilak Nagar, Delhi".

Admittedly on each of these occasions the demand-cum-allotment

letter was returned to the DDA with remark "no such name WZ-

406-C Janak Park, New Delhi-64". Thereafter the respondent

issued a letter of cancellation dated 30.12.2003 showing the

address as provided by the petitioner and the same was received by

the petitioner.

2. The petitioner submits that thereafter he attended

public hearings held by the respondent in the years 2005 and 2006

but to no avail. He has thereafter filed this petition seeking

quashing of the letter of cancellation dated 30.12.2003 and a

mandamus to direct the respondent to allot one MIG flat to the

petitioner. The petitioner relies on the policy of the DDA contained

in Office Order dated 25.2.2005 which states that in cases where

change of address was intimated by the registrants but erroneously

not recorded by the DDA and demand cum allotment letter was sent

at the wrong address, and the allottee approaches the DDA within a

period of four years from the date of allotment, he/she will be

allotted a flat at the old cost, prevalent at the time when the priority

of the allottee matured. However, in cases where such intimation,

viz, demand-cum-allotment letter had been issued but the allottee

had not approached the DDA within a period of four years from the

date of allotment the allottee would be considered for allotment of

flat with the old cost prevalent at the time of original allotment with

12% simple interest with effect from the date of original allotment

to the date of issuance of a fresh demand cum allotment letter.

3. Learned counsel for the respondent has vehemently

opposed the grant of any relief to the petitioner. It is pointed out

that the petitioner is making a mountain of a mole by over

emphasizing the relevance of "C/o........." as mentioned by the

petitioner in the application form while giving his address. Counsel

for the respondent submits that in three successive letters issued

by the petitioner in 2005 and 2006, which are placed at pages 22,

24 and 26 of the record, the petitioner had himself given his

address as "Prem Prakash WZ 406-C, Hari Nagar,Clock Tower,

New Delhi-64." The petitioner had not written "C/o Roshan Lall

Gupta" since the same is not of any relevance. It is further

submitted that the petitioner, despite being served with the

cancellation letter dated 30.12.2003 slept over his rights and did

not take any steps before filing this petition in the year 2006.

4. From the aforesaid narration of facts it is clear that the

demand cum allotment letter was sent thrice by speed post by the

respondent DDA. However on each occasion the address

mentioned on the envelop containing the said demand cum

allotment letter was different from that given by the petitioner,

inasmuch as, the words "C/o Roshan Lal Gupta" were not

mentioned. It is also seen that "Clock Tower" was not mentioned

and instead "Tilak Nagar" was mentioned. The respondent has

placed on record the copies of the three envelops received back

from the postal authorities. Each one of them as aforesaid carries

the endorsement "no such name WZ-406-C, Janak Park N.D.-

64". It is not clear as to how the postal authority could have taken

the said letter to "Janak Park" when that is not the address given by

the petitioner. Admittedly the demand-cum-allotment letter was

not left at the address given by the petitioner. If the Postal

Authorities failed to take the said letter at the correct address and

to deliver the same to the petitioner, it is the respondent and not

the petitioner who should take the consequences since the Postal

Authorities were acting as the agent of the respondent and not that

of the petitioner while carrying the said post. My attention has also

been drawn to a decision of Division Bench of this Court in LPA No.

378/2008 DDA vs. Ganga Ram. In that case the demand cum

allotment letter was sent by the DDA to the allottee at an address

which contained the wrong pin code. The learned single Judge

rejected the contention of the DDA that the mention of the wrong

pin code was a minor mistake and that presumption of deemed

service under Section 27 of the General Clauses Act could be drawn.

The DDA had contended before the Division Bench that subsequent

communication in the form of a show cause notice for cancellation

of allotment was also sent at the same address with incorrect pin

code which has been received by the respondent allottee.

Therefore, it was contended, that the presumption should be raised

that the demand cum allotment letter was also received by the

respondent. The Division Bench rejected the aforesaid submission

of the DDA by holding that the mere fact that the subsequent

communication sent to the respondent at the same address with an

incorrect pin code was received by the respondent cannot lead to a

presumption of deemed service as regards the allotment letter

which was clearly not sent at the correct address. The decision of

the learned single Judge was upheld. It is not a case where one can

presume that the petitioner was even otherwise aware of the fact

that the respondent had made an allotment in his favour and had

issued a demand cum allotment letter when it was so issued by the

respondent.

5. For the aforesaid reasons, in my view the petitioner is

entitled to allotment of one MIG flat at the rate prevalent at the

time when the initial allotment was made to him in the year 2003.

However, considering the fact that the petitioner despite being put

to notice of the allotment and its subsequent cancellation on or

after 30.10.2003, did not take steps for nearly two and a half years

(he filed this petition in July 2006) in my view, the petitioner is

bound to pay simple interest @12% per annum from the initial date

of allotment till the time the respondent raises the fresh demand

cum allotment letter. I, therefore, allow this petition and direct the

respondent to make allotment of one MIG flat to the petitioner in

Dwarka zone, if available, and if not available in any other zone,

within a period of four weeks. The fresh demand cum allotment

letter in respect of the aforesaid allotment in terms of this judgment

be issued within six weeks. Upon the petitioner making payment of

the demand as raised by the respondent, the respondent shall place

the petitioner in possession of the MIG flat.

6. With the aforesaid directions petition stands disposed

of.

7. Parties are left to bear their own costs.

(VIPIN SANGHI) JUDGE AUGUST 11, 2008 aj