Gopi Ram vs Delhi Development Authority
2009 Latest Caselaw 3745 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P(C) No.51/2009

%                       Date of Decision: 14.09.2009

Gopi Ram                                                    .... Petitioners
                       Through Mr.N.Kinra, Advocate

                                  Versus

Delhi Development Authority                         .... Respondent
                    Through Mr.M.K.Singh, 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 direction to the respondent to allot a flat

under the tail end policy as allotted to other similarly placed in draws

held in 2007 and 2008.

2. The petitioner was a registrant of a LIG flat under the NPRS,

1979. An LIG flat was drawn on 27th January, 1992 for the petitioner

bearing flat NO.35F, Sector A-3, GRP-III, Type I, Kondli, Gharoli and a

demand-cum-allotment letter with a block date of 24th/27th February,

1992 was sent to him and was received by him.

3. According to the prevalent policy at that time, petitioner opted for

cancellation of flat allotted to him in the draw and for retention of his

priority as a tail end priority and deposited Rs.300/- by challan

No.0137370 drawn on Central Bank of India, Vikas Sadan, New Delhi

as the cancellation charges.

4. The petitioner, thereafter, demanded from the respondent to get

his name included in the tail end draw according to his priority.

According to the petitioner he visited DDA on 24th January, 2005 when

he was directed to file an affidavit, indemnity bond, undertaking and

photocopy of the challans for consideration of his case for the tail end

draw and allotment.

5. The petitioner's plea is that a tail end draw was held on 27th

September, 2007, however, his name was not included though the

name of other registrants who were lower to the petitioner were

included in the tail end draw held on 27th September, 2007. The

petitioner contends that despite representations made by the petitioner,

the name of the petitioner was not included in another tail end draws

which were held on 8th March, 2008 and 17th November, 2008.

6. After the petitioner's name was not included in the tail end draw

according to the policy of the respondent and in terms of the orders

passed by this Court in case of similarly situated other persons, the

petitioner has filed the present petition on 6th January, 2009.

7. The learned counsel for the petitioner relies on order dated 25th

August, 2008 passed in W.P(C) No.5793/2005, Raj Kumar Malhotra v.

DDA and Ors wherein it was held that those registrants who are waiting

since 1979 for allotment of the flat and who have been denied allotment

of flat on the ground that the cancellation charges have not been paid

by them and there is a default in payment of the same, allotment of flat

cannot be denied to them provided they pay cancellation charges and

simple interest on the cancellation charges at 15% per annum.

8. The petition is contested by the respondent DDA contending

inter-alia that since the cancellation charges were not paid within one

month of the issue of demand-cum-allotment letter, the petitioner

forfeited his right. It is asserted that under clause 6 of the demand-

cum-allotment letter, the allottee was liable to pay surrender charges at

20% of the registration deposit plus interest on the amount as the

amount remained block during the said period. According to the

respondent the calculation of cancellation charges was referred to the

accounts wing of the respondent and it was calculated at Rs.1618.35

and, therefore, the petitioner was asked to pay Rs.1318.35 as Rs.300/-

had already been paid which amount the petitioner failed to deposit and

since the scheme is already closed, therefore the petitioner is not

entitled for allotment of another flat nor the name of the petitioner is to

be included in the tail end draw. It was further contended that the

precedents relied on by the petitioner Veena Kumari v. DDA, W.P(C)

No.8910/2008 and Om Prakash v. DDA, W.P(C) No.8912/2008 are not

relevant and in the circumstances it is contended that the writ petition

be dismissed.

9. The arguments have been heard on behalf of the parties and the

petition, counter affidavit, rejoinder and the documents filed by the

parties have also been perused. The learned counsel for the respondent

has very emphatically contended that the decision in Raj Kumar

Malhotra (supra) and other writ petitions is not applicable to such other

applicants who had not paid the cancellation charges and who had not

filed the writ petitions. The learned counsel for the petitioner is,

however, unable to contend and show that in the tail end draws which

were held on 27th September, 2007, 8th March, 2008 and 17th

November, 2008, whether any of the applicants who had not filed the

writ petitions along with Raj Kumar Malhotra (Supra) were included or

not.

10. This cannot be disputed that it was held in Raj Kumar Malhotra

that the respondent being a state monopoly could not have profit motive

as the goal. It was held that the equity leans in favour of such persons

who applied for allotment of the flats to get a roof over their heads

almost three decade ago and who were the victims of circumstance and

to some extent to the inefficiencies of the respondent. Even after almost

three decades if the tail end priorities are not considered, it will cause

extreme injustice to such applicants and, therefore, subject to

depositing the cancellation charges, the DDA was directed to include

the names of such applicants were ordered to be included in the tail

end draw subject to such applicant also paying simple interest at 15%

per annum on the unpaid cancellation charges.

11. After order dated 18th October, 2005 was passed, it was appealed

and it has not been set aside before the Division Bench and the Special

Leave petition filed in the Supreme Court has also been dismissed.

Following the ratio of Raj Kumar Malhotra (supra) in various writ

petitions filed by applicants who had not paid cancellation charges, the

respondent/DDA has been directed to include the name of such

applicants in the tail end draws subject to such applicants paying

cancellation charges with simple interest @15% per annum.

Consequently on the basis of plea that the petitioner had not paid the

cancellation charges, the name of the petitioner who has also been

denied the allotment on the basis of the tail end draw cannot be

permitted. The respondent has failed to show as to how the ratio of the

case of Prem Kumar Malhotra (supra) is not applicable to the case of the

petitioner.

12. The plea of the learned counsel for the respondent that only those

applicants who had filed the writ petitions have to be considered is also

reflective of injudicious attitude of the respondent. Since this Court has

already held that an applicant who has not paid the cancellation

charges, cannot be denied allotment of flats in the tail end draw subject

to payment of cancellation charges with simple interest @ 15% per

annum,

13. In the circumstances the contention of the respondent that since

the petitioner did not pay the cancellation charges his name is not be

included in the tail end draw, cannot be accepted. The plea raised by

the respondent is unjustifiable and cannot be sustained. Allotment of

flat pursuant to tail end draw can also be not denied to the petitioner

on the alleged ground that the scheme has been closed. Such a plea is

not acceptable. The respondent cannot be permitted to capitalize on its

own mistakes. The last tail end draw took place in November, 2008 and

the respondent should have included the name of the petitioner which

was not done and the petitioner has filed the present petition without

much delay in January, 2009. The respondent has failed to aver and

disclose that the names of only those applicants who had filed the writ

petitions in whose favor the orders had been passed by the Court were

included in the tail end draw. The plea of the respondent is not

sustainable and on this ground the petitioner cannot be denied his

rights.

14. In the facts and circumstances and on the basis of the precedents

of this Court, the tail end priority cannot be denied on the ground that

the petitioner had not paid the cancellation charges and therefore, the

right of the petitioner for inclusion in the tail end draw had lapsed,

cannot be sustained.

15. For the foregoing reasons, the writ petition is allowed. The

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

draw which should be held within three months. The demand-cum-

allotment letter be issued after the mini draw to the petitioner at the

current cost or at the rates which were applicable in the draw held on

27th September, 2007 with simple interest at the rate of 12% per

annum, whichever is lower. On payment of the amount demanded

under the demand-cum-allotment letter, the respondent shall get the

formalities completed for handing over the possession of the flat within

four weeks and handover the possession to the petitioner within the

said period. Considering the facts and circumstances, respondent is

also liable to pay a cost of Rs.20,000/-. to the petitioner.

September 14th , 2009                              ANIL KUMAR, J.
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