Delhi High Court
D.D.A. vs Abhay Prakash Sinha on 4 June, 2008
Author: J.R. Midha
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+LPAs 179/2008 & CM No.5449/2008, 1324/2007, 373/2006,
1032/2006, 459/2006, 468/2006, 469/2006, 470/2006,
679/2006, 682/2006, 776/2006, and 2325/2006
Reserved on: 8th May, 2008
%Date of Decision: 4.6.2008
LPA No.179/2008 & CM No.5449/2008
D.D.A. ...Appellant
Through: Mr. C. Mohan Rao, Advocate.
Versus
ABHAY PRAKASH SINHA ...Respondent
Through: Mr. N. Kinra, Advocate.
LPA No.1324/2007
D.D.A. ...Appellant
Through: Mr. C. Mohan Rao, Advocate.
Versus
...Respondent
Through: Mr. N. Kinra, Advocate.
LPA No. 373/2006
D.D.A. ...Appellant
Through: Mr. C. Mohan Rao, Advocate
Versus
Raj Kumar Malhotra ...Respondent
Through: Mr. R.K. Saini, Advocate
LPA No. 1032/2006
D.D.A. ...Appellant
Through: Mr. C. Mohan Rao, Advocate
Versus
...Respondent
Through: Mr. R.K. Saini, Advocate
LPA No. 459/2006
D.D.A. ...Appellant
Through: Mr. C. Mohan Rao, Advocate
Versus
Nathi Lal ...Respondent
Through: Mr. R.K. Saini, Advocate
LPA No. 468/2006
D.D.A. ...Appellant
Through: Mr. C. Mohan Rao, Advocate
Versus
Sheo Nath Ram ...Respondent
Through: Mr. R.K. Saini, Advocate
LPAs 179/2008, 1324/2007, 373/2006, 1032/2006, Page 1 of 14
459/2006, 468/2006, 469/2006, 470/2006, 679/2006,
682/2006, 776/2006, and 2325/2006
LPA No. 469/2006
D.D.A. ...Appellant
Through: Mr. C. Mohan Rao, Advocate
Versus
Pushpa Narula ...Respondent
Through: Mr. R.K. Saini, Advocate
LPA No. 470/2006
D.D.A. ...Appellant
Through: Mr. C. Mohan Rao, Advocate
Versus
Khilanda Ram Batra ...Respondent
Through: Mr. R.K. Saini, Advocate
LPA No. 679/2006
D.D.A. ...Appellant
Through: Mr. C. Mohan Rao, Advocate
Versus
Basanti Negi ...Respondent
Through: Mr. R.K. Saini, Advocate
LPA No. 682/2006
D.D.A. ...Appellant
Through: Mr. C. Mohan Rao, Advocate
Versus
Rambharosey ...Respondent
Through: Mr. R.K. Saini, Advocate
LPA No. 776/2006
D.D.A. ...Appellant
Through: Mr. C. Mohan Rao, Advocate
Versus
Chanman Lal ...Respondent
Through: Mr. R.K. Saini, Advocate
LPA No. 2325/2006
D.D.A. ...Appellant
Through: Mr. C. Mohan Rao, Advocate
Versus
Narsh Gupta ...Respondent
Through: Mr. R.K. Saini, Advocate
CORAM :-
LPAs 179/2008, 1324/2007, 373/2006, 1032/2006, Page 2 of 14
459/2006, 468/2006, 469/2006, 470/2006, 679/2006,
682/2006, 776/2006, and 2325/2006
THE HON'BLE MR.JUSTICE A.K.SIKRI
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may be allowed to see the
Judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
J.R. Midha, J.
CM No.5449/2008 in LPA 179/2008
Since we have heard the arguments on merit, we condone the
delay in filing the appeal. The CM is disposed of.
LPA 179/2008
This letters patent appeal arises out of the judgment dated 7th
November 2007 passed by the learned Single Judge whereby the learned
Single Judge has allowed the Writ Petition.
The respondent applied for a MIG flat under New Pattern
Registration Scheme, 1979 of DDA. The respondent was allotted a MIG
flat in the draw of lots held on 15th October 1990 and demand-cum-
allotment-letter was issued to the respondent in January 1991. The
respondent applied for extension of time to DDA. However, DDA issued a
show cause notice dated 19/15th October 1991 to the respondent
demanding the payment in response to which the respondent made the
payment of Rs. 84,133/- within the time granted. Despite the payment,
the allotment was cancelled under automatic cancellation scheme. The
respondent applied for restoration. Vide letter dated 2nd December 1992,
the respondent was called upon to deposit the cancellation charges to
keep the restoration intact and for being considered for tail end seniority.
The respondent requested DDA to adjust the cancellation charges of
Rs.7,010/- out of Rs.84,133/- already deposited by him, in pursuance to
459/2006, 468/2006, 469/2006, 470/2006, 679/2006,
682/2006, 776/2006, and 2325/2006
which DDA adjusted the cancellation charges and refunded balance
amount of Rs.77,123/- to the respondent. Despite the restoration, the
respondent's name was not considered in the draw of lots for tail end
priority in 2004 whereupon the respondent filed the Writ Petition which
was contested on the ground that public notices were issued in 2005-06
calling upon all the registrants including those at tail end priority to
approach DDA and since the respondent did not approach DDA, he lost
his entitlement.
The appellant has challenged the impugned judgment on the
ground that the respondent lost the right to allotment due to the failure
to approach the appellant in response to the public notices published in
the newspaper. The grounds raised by the appellant are wholly
misconceived and contradictory to the stand taken in LPA 373/2006 and
eight other connected LPAs where the appellant conducted the draw of
lot for tail end priority on 31st March, 2004 in respect of registrants who
had not even deposited the cancellation charges. The registrants in
those cases had neither deposited the cancellation charges nor
approached DDA for fresh allotment. In the present case, the
cancellation charges had been deposited by the respondent in time. As a
matter of fact, no further act was required to be done by the respondent
and it was the obligation of the appellant to carry out the draw of lot in
respect of respondent on 31st March 2004 and to issue the demand-cum-
allotment letter to the respondent. We agree with the findings of the
learned Single Judge that the appellant cannot be permitted to avoid the
responsibility and liability to be considered for allotment of flat and the
459/2006, 468/2006, 469/2006, 470/2006, 679/2006,
682/2006, 776/2006, and 2325/2006
plea raised by the appellant is both unfair and unreasonable. DDA is a
public body and is required to act fairly in discharging the public duty.
For the reasons aforesaid, we dismiss the present appeal with cost
of Rs. 10,000/-. The appellant is directed to issue the demand-cum-
allotment letter, if not already issued, to the respondent and to hand over
the possession of the subject flat to the respondent within six weeks.
LPA 1324/2007
This letters patent appeal arises out of the judgments dated 19th
July, 2007 and 10th August, 2007 passed by the learned Single Judge
whereby the learned Single Judge has allowed the Writ Petition.
The respondent applied for a MIG flat under New Pattern
Registration Scheme, 1979 of DDA. The respondent was allotted a MIG
flat in Rohini and a demand-cum-allotment letter with block dates 3rd
January, 1991 to 10th January, 1991 was issued to the respondent. The
respondent could not deposit the amount and requested for cancellation.
The respondent also deposited the cancellation charges of Rs.900/- on
25th March, 1991 and her registration was kept alive as per the policy of
DDA. The draw for the tail end priority was conducted on 31st March,
2004 but the respondent's name was not included as the records of DDA
were misplaced and were untraceable. The file appears to have been
reconstructed only after RTI application was filed by the respondent.
The appellant has challenged the impugned judgment on the
ground that the Scheme was closed after wide publicity vide Press Note
dated 5th February, 2006 and the respondent did not approach the DDA
for allotment. The grounds raised by the appellant are wholly
459/2006, 468/2006, 469/2006, 470/2006, 679/2006,
682/2006, 776/2006, and 2325/2006
misconceived and contradictory to the stand taken in LPA 373/2006,
and eight other connected LPAs where the appellant conducted the draw
of lot for tail end priority on 31st March, 2004 in respect of registrants
who had not even deposited the cancellation charges. The registrants in
those cases had neither deposited the cancellation charges nor
approached DDA for fresh allotment. In the present case, the
cancellation charges had been deposited by the respondent in time. As a
matter of fact, no further act was required to be done by the respondent
and it was the obligation of the appellant to carry out the draw of lot in
respect of respondent on 31st March 2004 and to issue the demand-cum-
allotment letter to the respondent. We agree with the findings of the
learned Single Judge that it was the policy of DDA to permit all those
who could not offer to pay the cost in the first instance, to avail a second
chance after cancellation of the first allotment. The respondent had paid
the cancellation charges and his registration was kept alive. Learned
Single Judge has rightly held that it would be harsh if such persons are
made to suffer for the reason of their files being misplaced by DDA. The
pleas raised by the appellants in these appeals are both unfair and
unreasonable.
For the reasons aforesaid, we dismiss the appeal with costs of
Rs.10,000/-. The appellant is directed to issue the demand-cum-
allotment letter, if not already issued, to the respondent and to hand over
the possession of the subject flat to the respondent within six weeks.
LPA 373/2006, LPA 459/2006, LPA 468/2006, LPA 469/2006, LPA
470/2006, LPA 679/2006, LPA 682/2006, LPA 776/2006, LPA
2325/2006, LPA 2325/2006.
459/2006, 468/2006, 469/2006, 470/2006, 679/2006,
682/2006, 776/2006, and 2325/2006
These letters patent appeals arise out of common judgment dated
18th October 2005 passed by the learned Single Judge whereby the
learned Single Judge has directed Delhi Development Authority (DDA) to
issue demand-cum-allotment-letters to the respondents at the cost as on
31st March 2004. However, DDA has been held to be entitled to charge
cancellation charges and interest thereon @ 15% per annum.
The appellant-DDA floated the scheme for allotment of flats in 1979
known as "The Registration Scheme on New Pattern 1979" (hereinafter
referred to "the Scheme"). The Scheme offered flats in Janata, LIG and
MIG category, the tentative cost of which was Rs. 8,000/-, Rs. 18,000/-
and Rs. 42,000/- respectively. The respondents in these appeals
registered themselves with DDA under the said Scheme and paid the
registration amount in 1979. During 1986 to 1989, the respondents
were allotted the specific flats which they did not accept. The Scheme
provided for the respondents being considered for future allotment upon
payment of cancellation charges of 20% of the registration amount. DDA
carried out a fresh draw of lots on 31st March 2004 for tail end priority in
which a specific flat was allotted to each of the respondents. However,
formal letter of allotment was not issued to the respondents as they had
not deposited the cancellation charges of 20% of the registration amount.
The respondents filed the Writ Petition claiming the issuance of the
demand-cum-allotment-letters and for possession of the flats in
question. The learned Single Judge allowed the petitions by directing
DDA to issue demand-cum-allotment-letters to the respondents.
459/2006, 468/2006, 469/2006, 470/2006, 679/2006,
682/2006, 776/2006, and 2325/2006
The appellants have challenged the judgment of the learned Single
Judge on the ground that DDA was under no obligation to issue
demand-cum-allotment letters to the respondents as they had failed to
pay 20% of the registration amount as the cancellation charges. It has
been further contended that the respondents have failed to give the
undertaking directed by the learned Single Judge and therefore, no
equity lies in their favour. According to the appellants, the respondents
are fighting proxy for property dealers and the flats shall be sold after
allotment. It is next contended by the appellants that granting relief to
the respondents would open pandora Box as thousands of persons who
have not made the payment of cancellation charges would seek allotment
from the appellant.
We have carefully considered the respective contentions of the
parties. Admittedly, Delhi Development Authority has allotted specific
flats to the respondents in the draw of lots held on 31st March, 2004.
The cost of the said flats as on 31st March, 2004 alongwith the
cancellation charges and interest thereon have also been deposited by
the respondents. The demand-cum-allotment letters have also been
issued by the DDA to the respondents. We have examined the NPRS
Scheme 1979. The object of the said scheme was to reduce the sale price
of MIG, LIG and Janta flats so is to be within the reach of the common
man. The estimated cost of the MIG, LIG and Janta flats was fixed at
Rs.42,000/-, Rs.18,000/- and Rs.8,000/- respectively. DDA has
monopoly over the development and disposal of land in Delhi and the
profit motive is not the goal of the DDA especially of the NPRS Scheme
which was floated by DDA providing low cost housing to the registrants
459/2006, 468/2006, 469/2006, 470/2006, 679/2006,
682/2006, 776/2006, and 2325/2006
of the said scheme. The registration amount was Rs.250/- for Janta
flats, Rs.1,500/- for LIG flats and Rs.4,500/- for MIG flats, which was
fixed according to the income slabs of the registrants. This scheme was
clearly for the common man having no residential house in Delhi. The
main contention of the DDA is that the respondents are not entitled to
the said flats on account of their failure to deposit the cancellation
charges in time. The cancellation charges as per NPRS Scheme are 20%
of the registration amount. The registration amount varies from
Rs.250/- to Rs.4,500/- and accordingly, the cancellation charges of 20%
would be in the range of Rs.50/- to Rs.900/-. The respondents cannot
be deprived of the flats due to their failure to deposit the cancellation
charges in time. DDA is a public body and is required to act fairly in
discharging the public duty of providing the housing. It had been the
policy of DDA to consider tail end priority allotment to all the registrants
who could not avail the initial allotment. DDA cannot behave like a
private builder by cancelling the allotment on account of minor violation
and then selling the flats at present market price with a profit motive.
DDA undertook the acquisition of land and development of the land for
providing housing to the residents of Delhi who registered themselves
with DDA. We inquired from DDA that if the allotment of the
respondents is cancelled, who would be entitled to the said flats. We
specifically inquired from DDA as to how many registrations were done
under NPRS Scheme 1979, how many flats were constructed and how
many allotments have been made. We also enquired as to how many
flats are now available and the number of pending registrants. The
purpose was to find out whether there is any person having better
459/2006, 468/2006, 469/2006, 470/2006, 679/2006,
682/2006, 776/2006, and 2325/2006
entitlement than the respondents. No specific details were provided in
reply except a list of 38 persons who have deposited the cancellation
charges. It is contended by the appellant that granting relief to the
respondents would result in opening of pendora box as thousands of
persons who have not made the payment of cancellation charges would
seek allotment as tail end priority. We do not appreciate this argument
of the DDA in the absence of specific reply to our queries. We, therefore,
draw adverse inference against DDA.
From the judgment of the learned Single Judge, it is clear that
though the learned Single Judge found that there was some breach on
the part of the respondents herein in not making the payment in time, at
the same time, the learned Single Judge was persuaded to allow the Writ
Petitions filed by the respondents herein by balancing the equities and
reminding the DDA that it was not to act as mere property developer, like
a private entrepreneur, and in view of the fact that DDA is a public
authority. These sentiments are expressed by the learned Single Judge
in the following words:-
"17. In 1961, Large Scale Acquisition Policy was
formulated by the Union of India. Under this policy,
lands were acquired for the purpose of planned
development of Delhi. The acquired land was placed at
the disposal of DDA for the purpose of development and
disposal. Private participation in land and housing
came to a virtual nil in Delhi. DDA got monopoly over
land in Delhi.
18. As noted above, since 1979, petitioners waited to be
allotted a flat. Unfortunately, by the time their priority
matured, the phenomenal price rise in the disposal cost
of the flat coupled with the fact that quite a few got
retired, put the cost beyond reach. To somewhat
mitigate the hardship, DDA permitted restoration of
allotment at the tail end priority, but subject to payment
459/2006, 468/2006, 469/2006, 470/2006, 679/2006,
682/2006, 776/2006, and 2325/2006
of cancellation charges. Unfortunately, as of today the
only default is that the petitioners did not pay the
cancellation charges.
19. A humane system of government must provide some
way of assuaging grievances, not only for the sake of
justice but also because accumulated discontent may
ultimately prove fatal to a democracy. A State Authority
must evolve some mechanism to receive feed back of the
public reaction qua it's functioning. This helps in the
assessment of its functioning and formulation of
corrective policy. The institution of ombudsman is a
direct consequence of such a mechanism being put into
motion.
20. Justified grievances may arise out of State actions
which may otherwise be legal, in any case not illegal."
We agree with this approach of the learned Single Judge. When
two views were possible and the learned Single Judge chose one
particular view in exercise of his discretion, it is not even proper for the
Appellate Court to interfere with this discretionary exercise. That apart,
we are of the opinion that the view taken by the learned Single Judge is
in tune with the obligation cast upon the statutory bodies like the DDA.
The Constitution of India makes it obligatory for the State to provide the
right to adequate housing to all its citizens. There have been several
important judgments that have clearly established the relation between
the right to housing and right to life as guaranteed by Article 21. The
Supreme Court of India has held that the right to shelter or adequate
housing is a fundamental human right emanating from this provision
[see U.P. Avas Evam Vikas Parishad v. Friends Coop. Housing
Society Ltd. AIR 1996 SC 114, Francis Coralie v. Union Territory of
Delhi AIR 1981 SC 746 and Chameli Singh and others v. State of
UP (1996) 2 SCC 549].
459/2006, 468/2006, 469/2006, 470/2006, 679/2006,
682/2006, 776/2006, and 2325/2006
Delhi Development Authority is a statutory body created under the
Delhi Development Act 1957. The main purpose with which DDA is
created, as is clear from the provisions of Section 6 of the said act, is to
promote and secure the development of Delhi according to plan and for
that purpose it is given power to acquire, hold, manage and dispose of
land and other property as well as carrying out building, operations,
amongst others. One of the public duty thus cast upon the DDA is to
provide residential and other types of accommodations to the people of
Delhi at reasonable cost. The Supreme Court reminded DDA of this duty
more eloquently in the case of Delhi Development Authority v. Joint
Action Committee, Allottee of SFS Flats 2008 (2) SCC 672. When we
look into the aforesaid public duty of public authority like DDA, we find
no fault in the approach of the learned Single Judge.
The appellant had next contended that the respondents have not
given undertaking in terms of the order dated 19th September, 2005 of
the learned Single Judge. We have perused the order dated 19 th
September, 2005 and note that the respondents had agreed to file an
affidavit by way of undertaking not to transfer or sell the allotted flats for
a period of five years from the date of taking the possession. The
requirement of undertaking does now flow from the Scheme. However,
since the Respondents have been given equitable relief and they had
themselves agreed to give the undertaking recorded in the order dated
19th September, 2005, in our view, the respondents cannot wriggle out of
the undertaking in terms of the order dated 19th September, 2005 and
they would be entitled to the flat subject to the furnishing of the
undertaking in terms of the said order.
459/2006, 468/2006, 469/2006, 470/2006, 679/2006,
682/2006, 776/2006, and 2325/2006
In view of the aforesaid, we do not find any infirmity in the
impugned judgment passed by the Learned Single Judge. We, therefore,
dismiss these appeals but without costs. DDA is directed to hand over
the possession of the allotted flats to the respondents within six weeks
subject to the respondents furnishing undertaking to DDA that
respondents would not transfer or sell the allotted flats for a period of
five years from the date of taking possession in terms of the undertaking
given by them before the Learned Single Judge.
LPA 1032/2006
This letters patent appeal arises out of the judgment dated 3rd
September, 2005 passed by the learned Single Judge whereby the
learned Single Judge has allowed the Writ Petition.
The facts of this case are similar to the facts in LPAs 373/2006,
459/2006, 468/2006, 469/2006, 470/2006, 679/2006, 682/2006,
776/2006 and 2325/2006. DDA has allotted a specific flat to the
respondent in the tail end priority draw held on 31st March, 2004.
However, the demand-cum-allotment letter was not issued to the
respondent on the ground that the cancellation charges of Rs.900/- were
not deposited by the respondent. For the reasons recorded above in LPA
373/2006 and other connected cases, we dismiss this appeal but
without costs. DDA is directed to hand over the possession of the
allotted flat to the respondent within six weeks. The respondent in this
459/2006, 468/2006, 469/2006, 470/2006, 679/2006,
682/2006, 776/2006, and 2325/2006
case is also directed to furnish an undertaking to DDA that the
respondent would not transfer or sell the allotted flat for a period of five
years from the date of taking possession as this case is similar in facts to
the aforesaid cases.
(J.R. MIDHA)
JUDGE
(A.K. SIKRI)
June 4, 2008 JUDGE
aj/s.pal
459/2006, 468/2006, 469/2006, 470/2006, 679/2006,
682/2006, 776/2006, and 2325/2006
