Raj Kumar Sharma vs Delhi Development Authority
2008 Latest Caselaw 1307 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                     LPA No.188/2008


Raj Kumar Sharma                       .....Appellant
                           Through: Ms.Richa Kapoor, Advocate

                           Versus


Delhi Development Authority        ...Respondents
                         Through: Mr.C. Mohan Rao, Advocate

CORAM:

HON'BLE THE CHIEF JUSTICE
HON'BLE DR. JUSTICE S.MURALIDHAR

1.Whether reporters of the local news papers
  be allowed to see the judgment?               N
2.To be referred to the Reporter or not ?       N
3. Whether the judgment should be reported in the Digest ? N

                             ORDER

%                            11.8.2008

1.     Admit.

2. By consent of the counsel appearing for the parties, the

appeal is taken up for hearing.

3. This appeal is preferred against the order passed by the

learned single Judge dismissing the writ petition of the appellant

on the ground that the appellant never intimated the respondent

about his financial difficulty on account of illness of his mother

LPA No.188/2008 page 1 of 7 and that the case of the appellant does not meet the parameters

laid down in the office order dated 1st June, 2000 of the

respondent regarding restoration .

4. Brief facts leading to this appeal are that the appellant was

registered under NPRS, 1979 and was allotted priority No.37585.

He was allotted flat bearing No.109, Pocket 2, Sector 11, Dwarka,

New Delhi on cash down basis in a draw of lot held on 30th July,

2003 with block dates 25th September, 2003 to 30th September,

2003. The appellant did not make payment within the block

dates or within the extended period along with interest i.e. upto

28th March, 2004.

5. According to the appellant, at the relevant time he was

facing huge financial constraint due to illness and treatment of

his mother and, therefore, the appellant was unable to make the

payment. He some how with great difficulty arranged for fund to

make payment and his mother expired in the meanwhile on 23rd

March, 2005 and the appellant deposited the entire amount vide

challans dated 28th March, 2005 for Rs.7 lacs and dated 30th April,

2005 for Rs.3.90 lacs. Thereafter the appellant made several

LPA No.188/2008 page 2 of 7 representations to restore his allotment but was given

stereotyped reply that his request cannot be acceded to.

6. Aggrieved by the denial of the DDA to restore his

allotment, the appellant filed writ petition under Article 226 of the

Constitution of India, which came to be dismissed by the learned

single Judge on the ground that the appellant did not make any

representation to the DDA regarding his financial difficulty or

illness of his mother nor any document was produced to prove

the ailment of his mother and treatment given to her and the

appellant's case was not covered by policy of restoration.

7. Learned counsel appearing for the appellant strenuously

submitted that the appellant was facing severe financial

constraints when he was alloted the demised flat on 30th July,

2003 and his considerable savings and regular income were

spent on treatment of his mother who was ailing from old age

related diseases and problems. Due to financial crunch, the

appellant was unable to deposit the amount demanded in the

demand letter dated 25th September, 2003 and 10th September,

2003 and, therefore, the appellant made efforts and arranged for

funds from various sources and made the entire payment in

LPA No.188/2008 page 3 of 7 March and April, 2005. Learned counsel contended that as per

the policy of the DDA, the delay upto three years can be

condoned by Vice Chairman and thereafter by approval of

Chairman i.e. Lt. Governor of Delhi. The delay in making

payment in the case of the appellant was only of over one year

and that too due to the bona fide difficulty of the appellant in

making payment on account of ill health of his mother who

succumbed to her old age problems and passed away on 25th

March, 2005.

8. On the other hand, learned counsel appearing for the DDA

submitted that the appellant had not written any letter to the

DDA claiming or stating that his mother was ill and on account of

expenditure being incurred on her treatment, he could not pay

the demanded amount. The plea taken by the appellant is an

after thought. He submitted that under the policy of the DDA the

delay of upto three years can be condoned by the Vice Chairman

and beyond three years by the Lt. Governor, but according to him

no case was made out for condonation of delay in terms of the

policy decision.

LPA No.188/2008 page 4 of 7

9. We have given our anxious consideration to the arguments

made at the Bar and we have also gone through the records

including various policies of the DDA regarding restoration and

condonation of delay. In the present case, the appellant had

waited for the allotment for over 24 years and when he was

allotted the demised flat in the year 2003, he was not in a

financial position to make payment due to illness of his mother.

The appellant has cited in paragraph 17 of the writ petition cases

of allottees Bimla Devi, Asha Bhushan, Suresh Humdraj Prithyani

and Surinder Bhatia etc. in which cases DDA has condoned delay

of over four years whereas in the case of the appellant the delay

in payment was only for a year. The appellant has also furnished

three specific examples where in the case of Satya Pal and Rita

Pura delay of five years and six years respectively was

regularised after approval of Lt. Governor. In the third case of

one Manju Jain, the DDA had restored allotment after about 17

long years. Our attention was also drawn to the judgment of this

Court in Pran Nath Thukral v. DDA (WP(C) No.19783/2005)

decided on 5th October, 2005, wherein it is observed as under:

"Would it be just and fair to do so considering the fact that DDA has monopoly status over land in

LPA No.188/2008 page 5 of 7 Delhi. These registrants have stood as honest citizens and have awaited a plot in an authorised colony. Many of their counterparts have chosen the softer route.

Those who have abided by law must be entitled to a compassionate consideration.

It is expected that the Vice-Chairman and the Chairman, DDA would have a relook on the Rohini Residential Scheme and in particular in relation to the time-frame within which allottees have to make the necessary payments. While reconsidering the matter, it should be kept in mind that the executive has the power to condone the delay on charging reasonable interest"

10. It is also required to be stated that in the present case

the demised flat is located at Dwarka. Office order dated 1 st June,

2000 enumerates various points which may render a case fit for

consideration / condonation of delay and Clause (v) of the said

office order reads as follows:

"(v) DDA colonies where we are not in a position to provide even the basic amenities like water and electricity to the inhabitants resulting into complaints by the allottees e.g. in Dwarka."

11. The case of the appellant is that even as of now, the DDA

is unable to make the water supply functional in most of the

areas falling in Dwarka sector. This is not disputed by the DDA.

LPA No.188/2008 page 6 of 7

12. In our opinion, in the facts and circumstances of the case,

the delay in making the payment deserves to be condoned. We

accordingly allow the appeal and direct the DDA to restore the

allotment and handover possession of the demised flat bearing

No.109, Pocket 2, Sector 11, Dwarka, New Delhi, subject to

payment of further interest / penalty, if any, payable by the

appellant towards allotment of the said flat. The DDA shall

intimate the appellant of such further interest / penalty within a

period of six weeks from the date of this order and the appellant

shall make payment thereof within eight weeks from the date of

receipt of the intimation and possession of the flat shall be

handed over to the appellant within a period of two weeks from

the date of such payment.

                                      CHIEF JUSTICE



                                      S.MURALIDHAR
AUGUST 11, 2008                          JUDGE
"nm"




LPA No.188/2008                                           page 7 of 7