Amar Nath Hira vs D.D.A.
2009 Latest Caselaw 5251 Del

29.

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 453/2008

%                         Judgment Delivered on: 16.12.2009

AMAR NATH HIRA                                     ..... Petitioner
                   Through :    Mr. R.K. Saini, Adv.

                   versus


D.D.A.                                          ..... Respondent
                   Through :    Mr. Pawan Mathur, Adv.

       CORAM:
       HON'BLE MR. JUSTICE G.S.SISTANI

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

G.S.SISTANI, J. (ORAL)

1. Rule.

2. With the consent of the parties, writ petition is set down for final

hearing and disposal.

3. Brief facts of the case, which are necessary for disposal of the writ

petition, are that the petitioner was registered under the New

Pattern Registration Scheme, 1979, for allotment of an LIG flat in

the year 1979 vide Registration No.25047. The petitioner vide

application dated 25.08.1989 sought conversion of the category of

the flat from LIG to MIG and also paid Rs.8260/- including

(Rs.500/- towards conversion charges). Vide order dated

28.09.1989, the petitioner was intimated that conversion of his

registration from LIG to MIG category has been acceded to and he

would be allotted a fresh priority number at the tail end.

4. It is the case of the petitioner that after a long wait of over 24

years he was finally allotted an MIG flat bearing No.95, Sector 19,

Pocket - 1, Third Floor, Dwarka, Delhi, vide draw held on

26.12.2003. Consequent thereto, he was issued a demand-cum-

allotment letter dated 27.02.2004 on hire purchase basis at the

total cost of Rs.9,44,360/-. As per the demand-cum-allotment

letter, petitioner was required to make the payment of

Rs.5,17,360/- towards initial deposit by 26.07.2004 and the

balance amount was to be deposited in 120 equal monthly

installments. Much prior to the last date of making the payment

i.e. 26.07.2004, the petitioner vide letter dated 01.06.2004 sought

conversion of payment from hire purchase to cash down basis and

also requested for issuance of a fresh demand-cum-allotment

letter. The respondent - DDA issued a fresh demand letter on

cash down basis in respect of the said flat to the petitioner having

block date of 06.07.2004, however, inadvertently the date for

making the payment remained unchanged as per earlier demand

letter dated 27.02.2004. As per this demand letter, the petitioner

was required to pay Rs.5,62,542/- towards the initial deposit to be

paid upto 26.06.2004 and the balance amount of Rs.4,21,009.04

was to be paid upto 10.07.2004.

5. It is contended by learned counsel for the petitioner that the letter

dated 06.07.2004 was issued by mistake as payment sought to be

made was on a date prior to the issuance of demand letter. It is

further contended that on 30.11.2004 the petitioner deposited a

sum of Rs.1.00 lakh, receipt of which has not been denied by the

DDA.

6. Learned counsel for the petitioner submits that petitioner is a

senior citizen of over 75 years of age, who had met with an

accident, he fell from the staircase and, thus, on account of

finances being utilized for medical needs , he could not make the

balance payment to the DDA, due to which the flat was cancelled

by the DDA. The petitioner was informed by the DDA about the

cancellation of flat vide letter dated 18.03.2005. Counsel further

submits that petitioner made various visits to the offices of the

DDA thereby requesting them for restoration of his allotment on

the ground that he is an aged senior citizen and was not able to

make the payment on time because of poor health conditions and

sudden financial crunch due to the accident. Counsel also submits

that the petitioner even explained the reasons that after making

the payment of Rs.1.00 lakhs he had fallen from the staircase and

had become permanently handicapped and remained bed ridden

for a long period of time and thus could not deposit the balance

payment. Counsel next submits that the petitioner has also made

numerous representations to the high officials including the

officers of the DDA. On 01.05.2007 the petitioner was informed

that his request for restoration of the flat had been turned down

and at best he would be entitled for refund. Aggrieved by the

response received by the DDA, the petitioner has knocked the

doors of this Court to seek justice.

7. Learned counsel for the petitioner submits that petitioner could

not make the payment within the time allowed due to bona fide

reasons and on account of his having fallen from the staircase,

which rendered him permanently handicapped. Counsel further

submits that the money could not be deposited by the petitioner,

firstly on the ground that he wanted the flat to be converted from

hire purchase scheme to cash down basis, and, in case, he

continued under the Hire Purchase Scheme he would be burdened

with a heavy interest, which the petitioner was not able to bear.

Petitioner was confident that in case the allotment of the flat is

converted to cash down basis, it would be easier for the petitioner

to arrange the money. The other reason as stated by learned

counsel for the petitioner for not making the payment is acute

financial hardship suffered by the petitioner on account of money

having been spent by the petitioner on his health due to his

accident. Counsel also submits that in such a case where, despite

allotment letters having been issued if there is default in making

the payments, the DDA has formulated various policies to

accommodate such persons. Counsel for the petitioner relies

upon the policy dated 31.03.1999 in order to canvas her argument

that in case the amount is not paid within the time allowed, there

is a discretion vested in favour of the respondent to grant

extension of time upon charging interest, restoration charges, etc.

It is also contended that the DDA also released an office Order

dated 01.06.2000, wherein the guidelines have been laid down

which are to be considered by the Department while condoning

the delay.

8. It is contended that the grounds given in this office order are only

illustrative and are not exhaustive.

9. Per contra, learned counsel for the respondent - DDA has

vehemently opposed this petition primarily on the ground of delay

and latches. It is contended by learned counsel for the

respondent - DDA that the petitioner deserves no sympathy as he

was allotted a flat way back in the year 2004. Thereafter he did

not make the payment but only delayed payment on account of

flimsy grounds. It is further submitted that the case of the

petitioner cannot be considered, as per the policy, as the

petitioner did not even make 10% of the payment, although he

deposited Rs.1.00 lakhs on 30.11.2004. It is next contended that

the case of the petitioner would nowhere be covered by the Office

Order dated 01.06.2000, which shows that only such people are to

be accommodated where the bread winner of the family dies, or

where the allottee has deposited the confirmation amount as well

as 25 % of the total amount demanded and also after a particular

period the concession can be granted by the Vice-Chairman or the

Lieutenant Governor.

10. Learned counsel for the respondent - DDA submits that petitioner

is a defaulter. It is submitted that the demand-cum-allotment

letter itself has made a provision for automatic cancellation of the

allotment in case the amount is not paid within the time allowed.

Counsel further submits that the petitioner has been shifting his

stand as to why he could not make the payment although in his

communications addressed to the DDA the petitioner has been

referring to some „windfall‟, however, despite this windfall the

petitioner did not make the payment, which shows that the

petitioner, in fact, had no intention to make the payment. Counsel

also submits that in any case the New Pattern Registration

Scheme already stands closed and therefore in any case the

petitioner succeeds he cannot be granted another flat.

11. In rebuttal, learned counsel for the petitioner has relied upon a

decision rendered by a Division Bench of this Court in LPA

No.188/2008 titled as Raj Kumar Sharma Vs. Delhi Development

Authority.

12. While noticing the facts wherein a Single Judge of this Court had

dismissed the writ petition on the ground that the appellant never

intimated the respondent about his financial difficulty on account

of illness of his mother, as also the petitioner did not meet the

parameters laid down in the Office Order dated 01.06.2000. The

Division Bench noticed the submission made by learned counsel

for the petitioner that at the relevant time he was suffering huge

financial constraints due to illness and treatment of his mother

and thereafter he had deposited some money. The relevant

portion of this Order passed in LPA No.188/2008 reads as under:

"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 regularized after approval of Lt. Governor. In the third case of one Manju Jain, the DDA had restored allotment after about 17 long years."

13. Learned counsel for the petitioner also relies upon a decision of

the Single Judge of this Court in WP(C)No.11148/2005 titled as

Ashok Kumar Bisarya Vs. Delhi Development Authority, wherein

the delay in making the payment was condoned. Learned counsel

for the petitioner submits that on appeal the Division Bench has

also upheld this judgment. Besides, learned counsel for the

petitioner contends that in large number of cases, the DDA has

condoned the delay and has charged interest and restoration

charges and two such instances have been given in the writ

petition itself.

14. I have heard learned counsel for the parties and also taken into

consideration their rival contentions. The basic facts, which are

not in dispute are that the petitioner had applied under the New

Pattern Registration Scheme for allotment of a flat. The flat was

converted from LIG to MIG and subsequently, a demand-cum-

allotment letter was issued to the petitioner on 27.02.2004. The

last date of making the payment was 21.07.2004, however, the

petitioner made a representation to the DDA for converting the

flat from hire purchase to cash down basis. This request of the

petitioner was acceded to and time was extended to make the

payment. It is not disputed that the payment has not been made

within the time allowed. Except that on 30.11.2004 the petitioner

deposited a sum of Rs.1.00 lakhs with the DDA, a specific

averment has been made in the writ petition that due to fall from

the staircase the petitioner suffered badly and has become

permanently handicapped. Bare reading of the policies and the

Office Orders which have been placed on record would show that

the aim, object and purpose of formulating these office orders and

policies, as stated in the Preamble, is that sometime on account of

problems faced by the concerned allottes, the payments received

by the DDA are later than the scheduled dates and thus the delay

is to be condoned in appropriate cases.

15. There is force in submission of learned counsel for the respondent

- DDA that the petitioner has not been able to satisfactorily

explain the grounds for delay in assailing the order of cancellation.

During the course of submission, it has not been denied that there

is a power, which is vested in the DDA and which is exercised in

appropriate cases for restoration of those flats, which stood

cancelled on account of non-payment of money within the time

allowed. There is also no dispute that the petitioner has only

deposited Rs.1.00 lakhs and that also on 30.11.2004. Therefore,

the prayer of the petitioner that the flat should be restored on his

paying same interest and restoration charges cannot be allowed.

However, taking into consideration that petitioner is over 75 years

of age, he is ailing and infirm, and the fact that he is now

permanently handicapped and in view of the fact that the polices

do not lay any bar that in cases where substantial amount is not

paid there would be a direct bar for condonation of delay, I am of

the view that to meet the ends of justice the flat of the petitioner

should be restored upon his making the payment as per the

current cost for which learned counsel for the petitioner submits

that his client has no objection. The respondents are, thus,

directed to issue fresh demand-cum-allotment letter to the

petitioner within a period of three months after adjusting the

amount of Rs.1.00 lakh. The petitioner will be entitled to make

the payment as per the schedule to be fixed in the allotment-cum-

demand letter. Upon receipt of payment, possession of the flat

will be handed over to the petitioner within a period of one month.

Learned counsel for the petitioner agrees that in case the amount

is not paid by the petitioner his client will not ask for condonation

of delay. Consequently, writ petition is disposed of in above

terms.

16. No order as to costs.

G.S. SISTANI, J.

December 16, 2009 'msr'