Bhushan Kumar vs Delhi Development Authority
2009 Latest Caselaw 3577 Del

*                  IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         Writ Petition No.2055/2007

%                         Date of Decision: 04.09.2009

Bhushan Kumar                                            .... Petitioner
                         Through Mr.Vinay Kumar Garg, Advocate.

                                  Versus

Delhi Development Authority                        .... Respondent
                    Through Ms.Rajdipa Behura, 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.

*

1. The petitioner seeks a writ of mandamus or a direction to the

respondent/DDA to permit him to pay the balance sum towards the

cost of the flat allotted to him at par with the direction dated 12th

August, 2004 passed in W.P.C. No.3296 of 1999.

2. The petitioner had applied for allotment of a MIG flat in New

Pattern Registration Scheme 1979 and he had initially deposited an

amount of Rs.4,500/- on 25th September, 1979.

3. The priority of the petitioner matured in 1999 and in a draw of

lots, Flat No.327, Third Floor, Sector 14, Pocket B, Dwarka, Phase II,

New Delhi, was allotted to the petitioner and a demand-cum-allotment

letter dated 20th/24th February, 1999 was issued. The petitioner was

liable to pay a cost of Rs.7,61,043.33 out of which Rs.20,000/- was

payable within 30 days as acceptance of the offer and the remaining

amount was payable by 10th May, 1999. The flat was allotted on cash

down basis and entire consideration with interest was payable till 25th

May, 1999. The petitioner was liable to pay a total sum of

Rs.7,32,483.33.

4. The petitioner deposited the confirmation amount of Rs.20,000/-

and thereafter petitioner sought extension of time to pay the balance

amount. Extension of 90 days time was granted to the petitioner to pay

the balance sale consideration and other charges indicated in the

demand cum allotment letter. Another extension for payment of balance

consideration was sought by the petitioner and the time for payment

was extended till 24th October, 1999. The petitioner, however, did not

pay the balance consideration till the 24th October, 1999, extended time

granted to him.

5. The petitioner has contended that he did not make balance

payment as the basic civil amenities like water and electricity had not

been provided in Pocket B, Sector 14, where the flat had been allotted to

him. To substantiate his plea of lack of basic amenities, the petitioner

had placed reliance on the fact that large numbers of allottees of flats in

Pocket B, Sector 14 had not made deposit of balance payment and one

of such allottees, Shri Omkar Chaddha had filed a Writ Petition (Civil)

No.3296 of 1999 which was allowed by order dated 12th August, 2004.

While allowing the writ petition, it was observed by the court that the

basic facilities had not been provided in the said Pocket B, Sector 14,

however, in May 2001, the basic amenities were provided for and on the

basis of a letter dated 24th May, 2001 which was in the record in that

case, Shri Omkar Chaddha was held liable to pay the balance

consideration for the flat along with interest at 18% per annum which

was computed to Rs.50,000/- and on the payment of the balance

consideration with interest, the respondent was directed for execution

of the conveyance deed.

6. The petitioner has contended that he was not informed till the

date of filing of the petition that basic amenities had been made

available and petitioner came to know about the judgment dated 12th

August, 2004 in W.P.C. No.3296 of 1999, Omkar Chaddha v. DDA,

sometime in the end of 2006 and, therefore, he approached the

respondent and also offered to deposit the balance consideration along

with Rs.50,000/-, however, the amount was not accepted and thereafter

the present writ petition has been filed.

7. The petitioner also filed an additional affidavit contending that till

the respondent/DDA had made basic amenities, i.e., water and

electricity available in the area, the respondent could not raise any

demand and the respondent would not be entitled to any interest on the

demanded amount till May 2001. It was also asserted that most of the

allottees had made payments in terms of the judgment dated 12th

August, 2004. The petitioner also contended that he left India on 23rd

October, 2002 and stayed in the United Kingdom and came back briefly

for short period and therefore could not immediately come to know

about the directions given in the order dated 12th August, 2004 given in

the case of Omkar Chadha (supra). It is pleaded that the delay in

approaching the court is not deliberate nor on account of any

negligence but largely due to the petitioner being unavailable.

8. The counsel for the petitioner also relied on (2006) 5 SCC 558,

Anil Rishi v. Gurbax Singh and others and (1998) 1 SCC 626, National

Insurance Company Limited v. Jugal Kishore and Others to contend

that when a person is bound to prove the existence of any fact, the

burden of proof lies on that person and that it is the duty of the party

which is in possession of document which would be helpful in doing

justice in the cause, to produce the said document and in that case

such party cannot be permitted to take shelter behind the abstract

doctrine of burden of proof.

9. Reliance has also been placed on (2004) 2 SCC 447, Mangilal v.

State of M.P. and (2001) 1 SCC 610, State Government Houseless

Harijan Employees Association v. State of Karnataka and others to

contend that even if a statute is silent and there are no positive words

in the Acts or the Rules made therein, there could be nothing wrong in

spelling out the need to hear the party whose rights and interest are

likely to be affected by the orders that may be passed and the principle

of natural justice must be read into unoccupied interstices of the

statute, unless there is clear mandate to the contrary.

10. The petition is contested by the respondent contending inter alia

and admitting that the petitioner was a registrant under the scheme of

1979 for allotment of MIG flat and that he was assigned the priority

No.23419 and when his priority matured, in a draw of flats, he was

allotted a MIG flat No.327, Third Floor, Sector 45, Pocket B, Phase II,

Dwarka, in a computerized draw held on 15th September, 1998 on cash

down basis. It is contended that the demand cum allotment letter

dated 20th/24th February, 1999 was sent to Shri Bhushan Kumar,

petitioner, at his residential address and the last date for making the

payment with interest was 25th May, 1999.

11. The respondent asserted that the petitioner deposited only

Rs.20,000/- and for balance payment by letter dated 24th May, 1999

sought extension of time on the ground that he has to get the loan from

his employer, Government of India. The petitioner was granted three

months time up to 24th August, 1999 to pay the balance amount of

consideration. The petitioner again sought extension of time and he was

granted time up to 24th October, 1999. According to the respondent, the

petitioner failed to deposit the balance payment and therefore the

allotment of the petitioner was cancelled by letter dated 20th November,

2002 and the petitioner was advised to apply for refund of deposited

amount by furnishing the original document as mentioned in the said

letter and the flat which was allotted to the petitioner, thereafter, had

been allotted to another wait-listed registrant vide File

No.F.312(2544)/03/DW/NP and possession of the flat has already been

handed over to another registrant on 27th April, 2004. The respondent

also relied on AIR 1997 SC 2847, New Delhi Municipal Committee Vs

State of Punjab to contend with that the Writ Courts should decide the

petitions on the points raised in them and in rare cases keeping in view

of the facts and circumstances of the case, if any additional points are

to be raised, then the concerned and affected parties should be put to

notice on the additional points to satisfy the principles of natural justice

and the parties should not be taken by surprise.

12. The petitioner did not file rejoinder to the reply filed by the

respondent and, therefore, petitioner is deemed to have admitted

various factual pleas raised by the respondent, including that the show

cause notice dated 5th June, 2002 was sent to him and after receiving

no reply to show cause notice the flat of the petitioner was cancelled

and cancellation letter dated 20th November, 2002 was also sent to him.

The allegation of the respondent about re-allotting the flat allotted to

the petitioner to some other person after cancelling his allotment and

handing over the possession to another allottee on 27th April, 2004 has

also not been denied.

13. Learned counsel for the petitioner has very vehemently relied on

the observation made in order dated 12th August, 2004 in Omkar

Chadha (supra) that civil amenities like water and electricity had not

been provided in Pocket B, Sector 14, made in W.P.C. No.3296 of 1999.

Learned counsel for the petitioner has contended that the judgment in

Omkar Chadha (supra) is in rem and is applicable even in the case of

the petitioner.

14. Though the petitioner has taken the plea in the present petition

that the civic amenities like water and electricity were not provided in

the Pocket and therefore he was not liable to pay the balance sale

consideration by 25th May, 1999, however in his communication

addressed to DDA seeking extension of time, it was never disclosed that

the petitioner is seeking extension of time in order to await providing of

amenities like electricity and water in the flat which has been allotted to

him. The plea of the petitioner, rather, was that he was seeking

extension of time to pay the balance sale consideration, by availing a

loan from the Government of India which will take some time. After the

extension of time was granted up till 24th October, 1999, there had

never been any communication by the petitioner to the

respondent/DDA that the petitioner is not liable to pay the balance sale

consideration till the basic amenities like electricity and water are

provided in the flat. The plea of the learned counsel for the petitioner

that the judgment in Omkar Chaddha (supra) is in rem cannot be

accepted in the facts and circumstances.

15. In any case, the petitioner had been given a show cause notice

dated 5th June, 2002. There is a specific averment by the respondent in

its counter affidavit that the show cause notice was issued to the

petitioner on 5th June, 2002 and thereafter a cancellation letter dated

20th November, 2002 was also sent to the petitioner. These facts have

not been rebutted by the petitioner. From the additional affidavit filed

by the petitioner, it is apparent that the petitioner was in India till 23rd

October, 2002 and therefore the show cause notice dated 5th June,

2002 must have been served on the petitioner. Learned counsel for the

petitioner has also very emphatically contended that the respondent

should have produced the copy of the show cause notice and the copy

of the order dated 20th November, 2002 cancelling the allotment of the

petitioner.

16. In National Insurance Company Limited, New Delhi (supra), the

Supreme Court had held while dealing with the case of a claimant

under the Motor Vehicles Act, 1939 from the Insurance that the

claimants seeking compensation under the Act are invariably not

possessed of either the policy or a copy thereof and it is the duty of the

party which is in possession of a document which would be helpful in

doing justice in the case, to produce the said document and such party

could not be permitted to take shelter behind the abstract doctrine of

burden of proof and this duty is greater in case of instrumentalities of

the State cannot be applied to the present facts and circumstances.

The precedent is apparently distinguishable because the averments

made by the respondent that a show cause notice was given to the

petitioner has not been denied. Had the petitioner denied the show

cause notice given to him and denied its receipt, in that case it would

have become incumbent upon the respondent to produce the copy of

the show cause letter to show that the addressee of the show cause

letter was that of the petitioner and the address was correct and in that

case the respondent was also liable to produce the proof of sending the

letter. However, the petitioner chose not to refute or rebut the averment

by the respondent and therefore non production of the copy of the letter

dated 5th June, 2002 will not be of any help to the petitioner. If the plea

raised by the respondent that the show cause notice was sent has not

been denied, then it is deemed to be admitted. In the petition it was not

denied that no show cause notice was received by the petitioner.

Rejoinder to the counter affidavit filed by the respondent was not filed.

A plea which has not been taken about non receipt of show cause

notice, therefore, cannot be allowed to be taken by the petitioner. The

Supreme Court in New Delhi Municipal Committee (supra) had held

that for additional points not taken in the writ petition, the opposite

party should have been put to the notice to comply with the principles

of natural justice. The petitioner in the facts and circumstances cannot

succeed that the show cause notice was not given to him.

17. Similarly, on account of not denying the receipt of cancellation

letter dated 20th November, 2002, non-production of the copy of the

same will not entail any benefit to the petitioner. The precedent relied

on by the petitioner Anil Rishi (supra) is also distinguishable as that

matter pertained to section 101 to 110 of the Evidence Act and the

court was concerned with burden of proof and onus of proof. The

Supreme Court had held that a distinction exists between a burden of

proof and onus of proof. It was held that the right to begin follows onus

probandi and it assumes importance in early stage of a legal proceeding.

The question of onus of proof has greater force, where the question is,

as to which party has to begin. It was further held that the burden of

proof is used in three ways: (i) to indicate the duty of bringing forward

evidence in support of a proposition at the beginning or later; (ii) to

make that of establishing a proposition as against all counter-evidence;

and (iii) an indiscriminate use in which it may mean either or both of

the others. Apparently in the present case since the petitioner has not

denied about the show cause notice and cancellation letter, it cannot be

held that the burden was on the respondent and the respondent has

failed to discharge its burden.

18. Learned counsel for the petitioner has also contended that the

rejoinder refuting the allegations made by the respondent could not be

filed on account of lack of communication with the petitioner. This

cannot be a ground to hold that the respondent has failed to make

necessary averments in its reply or has not discharged its burden. Had

the petitioner refuted or denied the averments, the onus would have

been on the respondent to prove the averments made by producing the

relevant documents. However, in absence of refutation of the

averments of the respondent, non production of the copies of the show

cause notice and the copy of the cancellation letter will not be

construed against the respondent who has categorical assertion about

serving of show cause notice and cancellation letters on petitioner. The

petitioner had been granted a number of opportunities to file the

rejoinder and despite the last and final opportunity granted to the

petitioner, the rejoinder was not filed. In the circumstance, the

petitioner cannot raise the grievances as has been alleged on his behalf.

19. A decision is only an authority for what it actually decides. What

is of the essence in a decision is its ratio and not every observation

found therein nor what logically follows from the various observations

made in it. The ratio of any decision must be understood in the

background of the facts of that case. It has been said long time ago that

a case is only an authority for what it actually decides, and not what

logically follows from it. It is well settled that a little difference in facts

or additional facts may make a lot of difference in the precedential value

of a decision. A decision is only an authority for what it actually

decides. What is of the essence in a decision is its ratio and not every

observation found therein nor what logically follows from the various

observations made in it. The ratio of any decision must be understood

in the background of the facts of that case. It is well settled that a little

difference in facts or additional facts may make a lot of difference in the

precedential value of a decision. In P.S.Rao Vs State, JT 2002 (3) SC 1,

the Supreme Court had held as under:

". There is always a peril in treating the words of judgment as though they are words in a legislative enactment and it

is to be remembered that judicial utterances are made in setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.

In Ragiq Vs State, 1980 SCC (Crl) 946 it was observed as under:

"The ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances obtaining in two cases."

20. Learned counsel for the petitioner has also contended that in the

case of petitioner the principle of natural justice have been violated. In

Mangilal (supra), in each case it was directed to pay a compensation of

Rs.30,000/- to the victims of the offence. The decision of the High Court

directing the accused to pay the compensation was challenged on the

ground that the object underlying grant of compensation under Section

357 of the Code of Criminal Procedure was not kept in view. Rejecting

the said plea it was held that the power of the court to award

compensation to victims under Section 357 of Code of Criminal

Procedure is not ancillary to other sentences but it is in advantage

thereto. It was further held that if an appellate court award

compensation, then before awarding compensation it must give an

opportunity of hearing so that relevant aspects like the need to award

compensation, capacity of the accused to pay and several other relevant

factors can be taken note of. Apparently, the case relied on by the

petitioner is distinguishable and on the basis of the same it cannot be

inferred that in case of the petitioner there is a denial of the principle of

natural justice. In State Government Houseless Harijan Employees'

Association (supra), it was held that the requirement of natural justice

will be read into the statutory provision unless excluded expressly or by

necessary implication. However, in the case of the petitioner, there is

no denial of principle of natural justice because even after expiry of the

period of extension granted to him on the ground that he has to avail a

loan from the Government, petitioner did not pay the balance

consideration and despite that a show cause notice was given to him

and after not receiving a reply thereof, allotment was cancelled. Since

the petitioner has not denied the receipt of show cause notice or the

cancellation letter, it cannot be held that there is denial of principle of

natural justice as the respondent had not produced the copy of the

show cause notice and the copy of the cancellation letter along with

their counter affidavit.

21. Therefore, on the basis of order passed in Omkar Chadha (supra)

it cannot be held that the flat of the petitioner has been cancelled

without complying with the principles of natural justice and the

petitioner has a right to pay the balance sale consideration and for

allotment of another MIG flat, as the flat which was allotted to the

petitioner has been cancelled and allotted to someone else. This is also

apparent that the petitioner was not vigilant about his flat allotted to

him in 1999 as after seeking extension of time to pay the balance

consideration, the petitioner did not pay the balance consideration and

left India in 2002. The petitioner has alleged that he came back in 2006,

when he came to know about Omkar Chadha (supra) case and

thereafter, he demanded the respondent to take the balance

consideration in instalments along with Rs. 50,000/-towards interest

which amount was not accepted by the respondent. From these facts, it

is apparent that petitioner was not concerned about his allotment.

22. Therefore, in the facts and circumstances, the petitioner is not

entitled for a direction to respondent to permit the petitioner to pay

balance sum towards cost of flat in terms of the direction dated 12th

August, 2004 passed in W.P.C. No.3296 of 1999 titled Omkar Chaddha

v. DDA. The order of the respondent canceling the flat of the petitioner

cannot be quashed on any of the grounds raised by the petitioner. The

petitioner in the facts and circumstances is not entitled for the relief

claimed.

23. The case of the respondent is also that by show cause notice

dated 5th June, 2002 and thereafter on cancelling the allotment of the

petitioner, by cancellation letter dated 20th November, 2002, the

petitioner was advised to apply for refund of deposited amount of

Rs.20,000/- by furnishing the original documents as the flat was

cancelled and thereafter it was allotted to another wait-listed registrant

and the possession was given to new allottee on 27th April, 2004.

Because of this plea of the respondent, it is apparent that the amount of

Rs.20,000/- deposited by the petitioner was not forfeited while

canceling the allotment of the petitioner. Therefore the petitioner is

entitled for the refund of the same on furnishing the original

documents. Consequently the petitioner shall be entitled for the refund

of Rs.20,000/- subject to petitioner fulfilling the necessary formalities

and furnishing the original documents.

24. Therefore, for the foregoing reasons, prayer of the petitioner to

direct the respondent to accept the balance sale consideration and allot

a MIG flat to the petitioner in terms of the demand-cum-allotment letter

dated 20th/24th February, 1999 is declined and the writ petition is,

therefore, dismissed. However, in the facts and circumstances and for

the foregoing reasons, the petitioner shall be entitled to claim refund of

deposited amount on furnishing the original documents as has been

indicated by the respondent. The writ petition is, therefore, disposed of

in terms hereof and the parties are left to bear their own costs.

September 4, 2009. ANIL KUMAR, J.

'Dev'