Shobha Saraf vs Delhi Development Authority
2009 Latest Caselaw 3502 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        Writ Petition (Civil) No.6523/2008

%                          Date of Decision: 02.09.2009

Shobha Saraf                                                  .... Petitioner
                          Through Mr.N.Kinra, Advocate

                                    Versus

Delhi Development Authority                       .... Respondent
                    Through Mr.Sushant Thakur, Advocate

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.     Whether reporters of Local papers may be                YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                   NO
3.     Whether the judgment should be reported in               NO
       the Digest?


ANIL KUMAR, J.

*

Despite last opportunity granted to the respondent DDA to file the

counter affidavit subject to payment of cost of Rs.1000/- by order dated

20th April, 2009, neither the counter affidavit has been filed nor has the

cost been paid. The learned counsel for the respondent states that he

has not received the file from the respondent nor he has received any

instructions. In the circumstances, right of the respondent to file the

counter affidavit is closed.

The petitioner booked a MIG Flat by registration No.34263. The

petitioner had deposited an amount of Rs.4500/- on 10th June, 1980

under New Pattern Scheme, 1979. A certificate of registration was

issued in the name of petitioner on being registered under the said

scheme.

A demand-cum-allotment letter for the block dates 9th/10th

January, 1991 was issued to the petitioner for flat No.30, Sector 15,

Block E-2, Pocket 3, Rohini. The cost of the flat was Rs.2,92,600/-.

According to the policy prevalent at that time the petitioner was entitled

to get the flat allotted to him cancelled on payment of 20% amount of

the initial deposit.

The petitioner, therefore, on account of financial problems opted

to get the MIG flat which was allotted to him in 1991 to be cancelled

and sent communication dated 9th April,1991 seeking cancellation of

the allotment, however, requesting the respondent to retain his booking

and to give him an opportunity as and when flats would be available in

future. The petitioner also deposited a sum of Rs.900/- by challan

No.80848 dated 9th April, 1991 and sent the original challan with the

communication dated 9th April, 1991 which was duly received by the

respondent.

The petitioner thereafter received a communication reference

No.24(197)91/RO/MIG/NP dated 21st October, 1991 demanding a sum

of Rs.7078.15/- on account of cancellation charges. Petitioner sent a

reply dated 16th November, 1991 contending that he is not liable to pay

the exorbitant cancellation charges of Rs.7078.15/- as he had deposited

the cancellation charges within one week on receipt of allotment letter.

The petitioner asserted that the registered letter was posted by DDA on

27th March, 1991 and was received by him on 2nd April, 1991 and,

therefore, the prescribed period of 30 days should not be calculated

from the date of allotment letter that is 9th January, 1991 and,

therefore, he should not be penalized for the same. The petitioner also

produced the copy of the registered envelope showing the date of

dispatch as 27th March, 1991.

The petitioner, therefore, did not pay the amount of Rs.7078.15/-

an thereafter sent a communication dated 21st August, 1999

demanding the status of his priority after getting the earlier allotment

cancelled in 1991. According to the petitioner a tail end draw was held

on 31st March, 2004, however, the name of the petitioner was not put in

the tail end draw, therefore, the petitioner made a representation on 5th

February, 2006 pursuant to a notice published in the newspaper by the

DDA that the registrants not allotted flats must represent to DDA

within 30 days. Another representation was made by the petitioner on

3rd March, 2006 and yet another representation on 30th October, 2006.

Another representation was sent on 28th July, 2008, however, the

representations made by the petitioner have not been replied by the

respondent.

According to the petitioner the Vice Chairman of DDA had issued

instructions on 2nd April, 2004 that all the names of tail end priority

who could not be included on the tail end draw which was held on 31st

March, 2004 on account of the records being not kept properly, shall be

considered again according to their seniority. The petitioner has also

relied on the order of this Court in the case of Rajkumar Malhotra v.

DDA, W.P(C) 5793/2005 decided on 18th October, 2005, holding that

those registrants whose names were not included in the tail end draw

would be entitled for allotment of flat after draw of lots and they would

be liable to pay the cost of the flat at the rate which was charged by the

respondent for allotment of flats made pursuant to draw of lots held on

31st March, 2004. It was further held that while allotting the flats to

such tail enders, they shall, however, be liable to pay cancellation

charges and interest on cancellation charges at the rate of 15% per

annum, however, no interest would be charged by the respondent on

the price of the flats.

The averment made by the petitioner have not refuted as no

counter affidavit has been filed. This cannot be disputed that the

petitioner is a registrant for the MIG flat and the flat which was allotted

to him in 1991, allotment letter dated 9th January, 1991 was issued on

27th March, 1991 which was received by him on 2nd April, 1991. The

petitioner has also paid 20% of the cancelation charges on 9th April,

1991. The petitioner, therefore, became entitled for cancellation of the

flat allotted to him earlier by allotment letter of block date 9th/10th

January, 1991 and he was to be considered in the tail end draw in

future. This also cannot be disputed that the draw of tail end priority

took place on 31st March, 2004, however the name of the petitioner was

not included in the same. The respondents are unable to show any

cogent reason for not including the name of the petitioner in the tail end

draw and therefore, petitioner has become entitled for inclusion of his

name in the draw of lots for the MIG flats and for allotment of a flat at

the rates which were charged by the respondent on 31st March, 2004.

The learned counsel for the petitioner has contended that he was

not liable to pay the sum of Rs.7078.15/- the cancellation charges

demanded from the petitioner by letter dated 21st October, 1991. The

learned counsel for the petitioner contends that there was no policy for

demanding the said amount and he is liable to pay only 20% of the

cancellation charges. This cannot be disputed that the petitioner had

paid 20% of the amount initially deposited on 9th April, 1991 within

thirty days of receipt of allotment letter which was posted on 27th

March, 1991 and which was received by the petitioner on 9th April,

1991. No counter affidavit has been filed by the respondent to show or

demonstrate as on what account the respondent had demanded the

cancellation charges of Rs.7078.15. The petitioner has categorically

contended that the applicable policy of DDA in 1991 only contemplated

20% of the amount initially deposited as cancellation charges and that

amount had been deposited by the petitioner. The respondent has not

filed any other policy or circular or anything to justify the liability of the

petitioner for the said amount of Rs.7078.15 on account of cancellation

charges. Therefore, it will have to be held that the petitioner is not liable

to pay the said amount of Rs.7078.15 as demanded by the respondent

and the petitioner has already paid an amount of Rs.900.00 towards

the cancellation charges which is the amount payable under the policy

applicable at that time. The learned counsel for the petitioner has also

relied on Rajkumar Malhotra (Supra) to contend that only 20% of the

amount of the initial deposit was payable as the cancellation charges.

Therefore, the petitioner shall not be liable to pay an amount of

Rs.7078.15/- as cancellation charges.

In the circumstances, the petitioner shall be entitled for

allotment of a MIG flat on the draw of lots and for this the respondent is

liable to hold a mini draw which will be held by the respondent

expeditiously. The petitioner shall be entitled to flat at the rates which

were charged from the allottees of MIG flats allotted pursuant to draw

made on 31st March, 2004. The petitioner shall not be liable to pay

interest on the amount of flat which is to be allotted to the petitioner.

For the reasons stated above, the writ petition is allowed. The

respondent is directed to include the name of the petitioner in the mini

draw of lots which should be held within three months. On allotment of

the flat to the petitioner, the demand-cum-allotment letter to be issued

within four weeks demanding the costs of the flat at the rate at which,

the flats were allotted in the draw of lots held on 31st March, 2004. The

respondent shall not be entitled for any interest on the amount of flat

from the petitioner. On payment of the cost of the flat within four week

from the date of receipt of demand cum allotment letter, the respondent

shall get the formalities fulfilled within two weeks thereafter. On

payment of demanded amount and fulfilling the formalities for handing

over the possession, the possession shall be handed over within four

weeks to the petitioner from the date of payment of cost of the flat by

the petitioner to the respondent. The writ petition is allowed in terms

hereof. Parties are, however, left to bear their own costs.

Dasti.

September 02, 2009                                 ANIL KUMAR, J.
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