Mr. H.L. Advani vs Delhi Development Authority
2008 Latest Caselaw 212 Del

JUDGMENT

Gita Mittal, J.

1. This writ petition has been filed by the petitioner assailing a demand letter dated 23rd No. vember, 2000 issued by the respondents inter alia on the plea that the demand raised by the DDA is contrary to the orders passed by the court in earlier writ petitions; that the DDA has failed to credit amounts deposited by the petitioner and that the petitioner is entitled to interest on the amounts deposited by it. There is no dispute that the petitioner had registered himself for allotment of a MIG flat under the 1976 scheme with the DDA. As no flat was allotted to several of the applicants W.P.(C) No. 1578/1982 entitled Manmohan Singh and Ors. v. DDA was filed in this Court. This writ petition was allowed by the Division Bench by an order dated 11th March, 1992 directing the DDA to effect allotment of flats were directed to be reserved for allotment pending decision of the petition for the applicants.

2. Five applicants including the present petitioner had given a preference of allotment of a flat in South Delhi only. These applicants claimed entitlement to one out of ten flats which stood reserved under orders in the earlier writ petition but assailed the cost of the flats. Demand letters were issued to these petitioners in September, 1993 which were assailed by way of W.P.(C) No. 5435/1993 entitled N. Sahai and Ors. v. DDA. This writ petition was disposed of by an order passed on 7th March, 1995 holding that the entitlement and eligibility of the petitioners for allotment of flats in the South Delhi area having been upheld, the petitioners would be eligible to pay rates which were paid by similarly situated allottees in the year 1982 with interest in terms of the orders passed. The court accordingly disposed of the writ directing that the petitioners would communicate the option of the mode of payment to the DDA within two weeks in terms of the scheme of 1976. The DDA was required to issue fresh demand letters within a period of six weeks for the reason that the petitioners have enjoyed the amount they would be liable to make payment of interest at the rate of 9% per annum.

3. The present petitioner had filed W.P.(C) No. 2080/1995 against the demand letter which had been issued raising a demand of Rs. 5,14,549/- In terms of the orders passed by the court, the DDA issued demand letters dated 11th January, 1996 whereupon the petitioner claims that he deposited a sum of Rs. 1,29,072/- under protest. It is an undisputed fact that in June, 1996 the petitioner also received possession of his flat.

4. So far as the W.P.(C) No. 2080/1995 is concerned, a statement was made by counsel for the DDA that it had been decided to revise a demand and give the benefit of the decision dated 7th March, 1995 in W.P.(C) No. 5475/1993 N. Sahai and Ors. v. DDA to others. This writ petition was disposed of by an order passed on 23rd July, 1996 whereby the demand letter issued to the petitioner was quashed and DDA was directed to raise a fresh demand within six weeks and deliver the same to the petitioner.

5. The petitioner has submitted that no demand letter in terms of the order of the court was raised despite repeated requests to the DDA till 23rd No. vember, 2000 when the DDA issued a demand for a sum of Rs. 2,32,358/- on monthly Installment basis. The petitioner failed to make payment of the demanded amount and challenged the same.

6. The DDA had thereafter issued a letter dated 7th April, 2006 raising a demand of Rs. 3,07,455/- towards monthly Installment, penalty, ground rent and service charges etc. This demand has been assailed by the petitioner before this Court asserting that one Mr. Krishan Lal Kapoor was issued a demand letter for a MIG flat in the year 1994 for only Rs. 1,02,500/-and another person Shri Raj Dadwani received a demand letter in the year 1980 for only Rs. 70,000/-. The submission is that so far as the petitioner is concerned, the respondents were required to demand rates as were applicable in 1982 and yet have raised such an exorbitant demand. It is also contended that the petitioner has made payment of several amounts between 27th January, 1996 to 25th June, 2003 including a sum of Rs. 11,534/- which have not been given credit for by the DDA.

7. I have heard learned Counsel for the parties. I find that so far as deposits made by the petitioner are concerned, the respondents have given credit for all amounts except for an amount of Rs. 11534/- which was deposited by the petitioner on 12th December, 1999. I find that the petitioner had deposited this amount towards the conversion of the property from leasehold to freehold. DDA has explained that this amount shall be credited towards charges which may be payable in respect of the flat towards conversion charges in case the petitioner seeks such conversion. There is no dispute that the petitioner has not made the payment of the full amount which he was required to do so even under orders of the Division Bench and consequently there can be no question of conversion in the instant case.

8. It is also apparent that the demand raised by the respondents upon the petitioner dated 23rd No. vember, 2000 shows that the respondents have charged cost of the flat at the rates prevailing in March, 2002. In terms of the orders dated 7th March, 1995 of the Division Bench, the respondents have demanded interest at the rate of 9% for the period between 1st April, 1982 to 31st January, 1996 only. As per this order the DDA was required to raise the demand within a period of six months. The petitioner has not been called upon to pay interest for the period when the matter was delayed on account of non-issuance of the demand letter.

This communication reflects all the amounts paid by the petitioner.

9. It is also admitted by Ms. Sunita Harish, learned Counsel for the petitioner, that other than the amount of Rs. 11534/-deposited by the petitioner towards conversion charges, all other amounts have been reflected by the DDA. The amounts which were deposited towards retention money and interest have to be so adjusted only against these heads and cannot be adjusted against deposit towards the cost of the flat.

The petitioner has also admittedly been put in possession of the flat and not been prejudiced in any manner.

10. So far as the allotment made to Shri Kishori Lal Kapoor is concerned, I find that this allotment related to a flat in the Kalkaji residential scheme which was effected on 23rd May, 1984. The other allotment in favor of Ms. Raj Dadwani which was effected in August, 1988 and she was allotted a flat in the Prasad Nagar in the draw of lots on 12th June, 1979 on cash down basis.

11. These allotments related to different areas and are in respect of flats of different sizes and consequently there would be variation between the flat allotted to the petitioner and these persons. In view of these differentials, the petitioner certainly cannot seek any parity so far as the demand against these flats is concerned.

12. A grievance has been made that the petitioner never wanted to deposit money in Installments but was wanting to deposit the amount on cash down basis. The petitioner has attempted to explain his failure to deposit the demanded amount urging that the balance amount which has been calculated by the DDA is on account of the interest component which is payable on the Installments. It is noteworthy that the petitioner was put in possession of a flat in June, 1996 in respect of which he had admittedly failed to make payment of the full and demanded amount. In view of the orders of the Division Bench passed on 11th March, 1992 in W.P.(C) No. 1578/1982 orders dated 7th March, 1995 in W.P.(C) No. 5475/1993 N. Sahani and Ors. v. DDA and the order dated 23rd July, 1996 in W.P.(C) No. 2080/1995 filed by him, the petitioner has had the benefit making payment towards the flat at rates which were notified in 1982; the benefit of possession of the flats since June, 1996 and has retained the balance cost of the flat in his own hands. Certainly there was no prohibition upon the petitioner depositing the balance amount on his own calculations with the DDA as was amount admittedly due.

13. Ms. Sangeeta Chandra learned standing counsel for the DDA has explained that as per the order in the earlier writ petitions, the petitioner was required to communicate his option with regard to the mode of payment and as the petitioner did not communicate such option, therefore the letter informing the petitioner about the Installments payable by him was sent in terms of the earlier letter.

This is disputed by the petitioner.

14. I find that in any case, the demand cum allotment letter dated 23rd No. vember, 2000 informs the petitioner about the balance amount towards the cost of the flat which was informed to be a sum of Rs. 1,03,286/- which was payable as on 23rd No. vember, 2000. It is the hire-purchase Installment includes the element of interest which would be payable on the balance amount. Therefore there was no reason for the petitioner not to have deposited the balance amount which is in terms of the letter dated 23rd No. vember, 2000 even if he wanted to make cash down payment. So far as the delay in issuance of this letter after the judgment dated 7th March, 1995 is concerned, no prejudice has resulted to the petitioner inasmuch as no interest has been demanded by the DDA in terms of the orders of the Division Bench after January, 1996 and possession stands received by the petitioner.

15. I also find that the petitioner places reliance on a letter of No. vember, 1996 to contend that he had informed the respondents that he did not wish to make payment in Installments. However the payments which have been made by the petitioner reflect that the petitioner deposited a hire purchase Installment on 18th April, 1996. After receipt of possession in June, 1996 the petitioner did not bother to make payment of the balance amount nor the hire purchase Installment. I also find that the petitioner has made payment of an amount of Rs. 60000/- towards the interest on 25th June, 2003 which clearly supports the respondent's submission that the petitioner was fully aware of the fact that he had failed to make payments towards the cost and interest which is manifested from the challan supporting the deposit.

16. I find that the respondents have issued an identical letter of demand even to Shri N. Sahani on 5th No. vember, 2003 in terms of the orders passed by the court.

17. My attention has been drawn to a judgment dated 24th April, 2006 passed in W.P.(C) No. 4806/1993 entitled Bal Krishan v. Vice Chairman, DDA wherein the court has held that DDA is entitled to interest on delayed payment which would be apart from the interest component of the hire purchase Installment.

18. In yet another judgment passed on 12th No. vember, 2002 in W.P.(C) No. 4545/1998 Sheel Kumar Sethi v. Delhi Development Authority, the court has held thus:

There is no doubt about the proposition that if the petitioner had paid the amounts within time and submitted the documents in time, respondent was not entitled to cancel the allotment of flat. However if an allottee delays in submission of documents but simultaneously does not pay the amount due ostensibly because of the reason that the said instalmetns are liable to be paid only after possession is to be handed over, such an allottee cannot avail the benefit of delaying his payment of Installment by reason of non submission of documents. In the present case the petitioner has been allotted this flat at the old cost. The Installments are also liable to be paid in terms of the original allotment. However, interest is sought to be charged on the Installment which the petitioner is liable to pay and which havee been delayed. The late submission of the documents is the fault of the petitioner and that cannot be the reason to delay payment of Installments claiming that the said Installments would be paid only after the posssession is handed over. In view thereof, I see no infirmity in the stand of the respondent DDA in charging interest for the delayed Installments.

In view of the aforesaid position I am of the considered view that in case the petitioner is interested in the flat in question, it will be open to the petitioner to pay up to date Installments along with over due interest within a period of four weeks from today and on such payment being made the possession of the flat will be handed over the petitioner. The petitioner will continue to pay the balance Installment due as per the original demand letter. However in case petitioner fails to make the said payemnt, it is open to the respondent to proceed for cancellation of the flat in question.

19. The DDA had raised the demand in terms of the order passed by the Division Bench and raised a demand upon the petitioner which he fails to pay. It has been contended by the DDA that in view of the non-payment of the amounts the petitioner is not only liable to pay interest but also a penalty which is calculated at the rate of 12% for each first month of the default and 18% for the subsequent period of default. This rate has been charged in terms of the policy dated 16th /22nd April, 2002. The petitioner thus has not been able to assail the action of the DDA on any legally tenable grounds.

20. The petitioner cannot succeed in this writ petition for yet another reason. The demand letter was issued to the petitioner as back as on 23rd No. vember, 2000. The present writ petition has been filed only on 8th July, 2006. There is therefore be substance in the objection of the DDA that this writ petition is grossly belated.

In view of the above discussion I find no merit in this writ petition which is hereby dismissed.

The petitioner shall be liable for costs which are quantified at Rs. 10000/-