Delhi High Court
Hari Kishan Madan vs Dda on 21 April, 2010
Author: G. S. Sistani
4
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8627/2006
% Judgment Delivered on: 21.04.2010
HARI KISHAN MADAN ..... Petitioner
Through: Mr.R.K. Saini, Advocate
versus
D.D.A. ..... Respondent
Through: Mr.Rajiv Bansal, Advocae
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. With the consent of counsel for the parties, present petition
is set down for final hearing and disposal. The facts of the case as
set out in the petition are that the petitioner applied to the DDA
under the New Pattern Registration Scheme, 1979 for allotment of
an MIG flat, in the year 1979. As per his priority, name of the
petitioner was included in the draw of lots held on 30.05.2003 and
demand / allotment letter dated 21.07.2003 was issued to the
petitioner, whereby petitioner was informed that an MIG flat
bearing NO.227 (third floor), Pocket-B, Sector14, Phase-2, Dwarka,
New Delhi has been allotted to him on cash down basis at a total
disposal cost of Rs.9,39,861.20. Petitioner was called upon to pay
this amount on or before 19.10.2003. Petitioner was also
informed that this amount could be paid with interest up to
17.01.2004.
2. Admittedly, petitioner was unable to pay this amount either by
19.10.2003 or with interest up to 17.01.2004. Petitioner
deposited a sum of Rs.4.0 lacs with the DDA on 09.03.2005 along
with a covering letter informing the DDA that the amount could
not be deposited within the time allowed due to unavoidable
circumstances. Petitioner thereafter deposited the balance sum of
Rs.5,62,219/- on 03.05.2005 along with a covering letter, whereby
the petitioner informed the DDA that the amount could not be
deposited within the time allowed, as he was facing a financial
crunch, on account of marriage of his daughter which was fixed on
05.02.2004 as also marriage of his son fixed on 07.03.2004. The
petitioner is stated to have deposited the interest as well on
03.05.2005. The DDA had issued a show cause notice to the
petitioner on 17.02.2004. By this show cause notice, petitioner
was informed that in case explanation was not rendered for not
making the payment within 15 days, the allotment would
automatically stand cancelled. The petitioner admittedly, did not
file any reply to the show cause notice.
3. Counsel for petitioner submits that the petitioner has made the
payment in two instalments together with interest - first
instalment of Rs.4.0 lacs was made on 09.03.2005 and balance
amount was made on 03.05.2005. He submits that DDA being
conscious of the problems faced by the allottee based on various
requests received by the DDA for extension of time to deposit the
money and condonation of delay, on account of inability to make
the payment, has in its wisdom formulated a policy dated
01.06.2000. He also submits that as per this policy the delay can
be condoned upto 30 days by the Joint/ Deputy Directors; beyond
30 days but upto 90 days by the Director (Housing); beyond 90
days but upto one year by the Commissioner (Housing); beyond
one year but upto one and a half year by the Principal
Commissioner; and beyond one and a half year by the Vice-
Chairman, DDA. He submits that DDA has allowed extension of
time to various allottees and the case of the petitioner is no
different to the similarly situated persons, who have been granted
extension of time in making the payment by the DDA on the same
ground. Three instances have been quoted by the petitioner in
para 11 of the writ petition, details of which are as under:
Name Due Date Paid Delay
Raghbir 03.11.2003 Feb, 2005 17 months
Nirmala 31.03.2002 Jan, 2004 22 months
Badan Singh 17.01.2004 Apr., 2005 15 months
4. Besides the three instances stated hereinabove, counsel for
petitioner has also quoted the instance of one Smt.Usha Singhal in
whose case delay of 640 days was condoned by the DDA in almost
identical circumstances i.e. on account of marriage of her
daughter, which is far beyond the delay in the present case. He
further submits that the policy is merely illustrative and not
exhaustive and the DDA is to consider the facts of each case,
while rejecting or condoning delay. He also submits that the flat
allotted to the petitioner was at Dwarka and the policy expressly
recognizes the fact that delay in such cases may be condoned on
account of the fact that basic amenities like water and electricity
have not been provided to the allottees, at the time of the
allotment.
5. Counsel for petitioner further submits that although admittedly
such a ground was not taken by him while making the
representation, but allotment having been made to him at
Dwarka, the ground would automatically be applicable to the case
of the petitioner.
6. Counsel for DDA has opposed this petition primarily on the ground
that firstly petitioner did not make the payment within the time
allowed and secondly despite a show cause notice having been
issued to the petitioner, he did not make the payment and in fact
no reply was filed, which resulted in automatic cancellation of the
flat. He further submits that DDA considered the case of the
petitioner based on his representation and rejected the same
keeping in view the policy of the DDA. The stand taken by the
DDA in paragraph 4 of the counter affidavit is reproduced below:
"4. A representation dated 09.03.05 was received
from the petitioner for restoring the allotment. The
case was examined by the competent authority i.e.
Vice Chairman at length. Since the case was not
covered under the relevant policy dated 1.06.2000,
therefore, the request of the allottee for restoration of
allotment, could not be acceded to. The decision of
the competent authority was conveyed to the
petitioner vide letter dated 8.05.2006 with request to
apply for refund of deposited amount by furnishing the
original documents. It is pertinent to state that the
petitioner made the deposit the cost of flat after the
stipulated period and cancellation of allotment and
thereafter requested for restoration of allotment."
7. Counsel for respondent-DDA next submits that even during the
pendency of the writ petition, Vice Chairman DDA considered the
case of the petitioner and rejected the same for the reason that
firstly in the first representation made, no grounds were given as
to why the amount could not be paid and secondly that the flat of
the petitioner was cancelled. Counsel for respondent -DDA
submits that while considering the representation for condonation
of delay the DDA must record its subjective satisfaction and
merely because an application for condonation of delay has been
made, does not mean that the same is to be mechanically
allowed. Mr.Bansal, submits that reading of the policy itself would
show that death of the bread winner of the family is one of the
grounds to condone the delay, in the same vein accident could be
another reason, but certainly marriage in the family cannot be the
reason for condoning delay in making the payment.
8. I have heard counsel for the parties and also perused the
pleadings as well as the annexures filed along with the pleadings.
The basic facts are not in dispute that petitioner was allotted an
MIG flat in a draw of lot held in the year 2003. The petitioner
could not make the payment within time allowed, nor could make
the payment upto 17.01.2004 with interest. The case of the
petitioner is that the payment could not be made on account of
marriage of his daughter as well as marriage of his son on
05.02.2004 and 07.03.2004 respectively as all his resources were
used for the marriage of his children. It is also not in dispute that
the entire amount with interest was deposited on 03.05.2005.
The case the petitioner is also that the policy itself recognizes the
hardship which is faced by the allottees and that recognizing this
hardship the DDA has formulated the policy. Four instances have
been given by the petitioner, wherein DDA has condoned the
delay as admitted by the DDA in an affidavit filed on 06.01.2009.
It would be useful to reproduce paras 3 and 4 of this affidavit:
"The details of four cases cited by the petitioner are set out
herein below:
Name Due Date of Period of
Date for payment Delay in
payment making
payment
Raghbir 3.11.03 17th Jan, 2005 441 days
Nirmala Rastogi 31.3.02 3rd December, 308 days
Badan Singh 17.1.04 11th Apr., 2005 449 days
Smt.Usha Singhal 22.10.03 4th July, 2005 654 days
Due to
marriage of
her daughter
4. It is submitted that the delay in making payment for the
aforesaid cases has been condoned by the Competent
Authority, since the competent authority was exercising its
discretion to condone the delay in favour of the allottee it
was not beyond to give reasons therefor. It is pertinent to
state that in the case of Smt.Usha Singhal, the entire
amount has been refunded to her.
9. Reading of this affidavit would show that in the case of Smt.Usha
Singhal, DDA had condoned the delay of 654 days due to marriage
of her daughter. In the case of Raghbir delay of 441 days was
condoned; in the case of Nirmala Rastogi delay of 308 days was
condoned; and in the case of Badan Singh delay of 449 days was
condoned. In the case of the petitioner the delay is approximately
480 days, which is far below the case of Smt.Usha Singhal, where
delay was condoned for 654 days. I find force in the submission of
counsel for the petitioner that the grounds given in the policy are
illustrative and not exhaustive. DDA itself has condoned the delay
of Smt.Usha Singhal, recognizing the marriage of her daughter as
one of the grounds.
10. It would be useful to reproduce the office order/ policy dated
1.6.2000:
"OFFICE ORDER
While issuing allotment letters to the registrants of
various schemes of DDA, a demand is raised to the
concerned allottees specifying the amount to be paid with
due dates of payment. However, we had seen in practice
that on account of problems faced by the concerned
allottees, we get various requests for extension of time to
deposit the amount and to condone the delay. In DDA we
examine the cases on merit and in certain cases delay is
regularized. However, there are no clear cut guidelines
while accepting/ rejecting the requests for condonation of
delay. At present, as per the circular No.HAU-
IX/Delay/98/DDA/40-N dated March 31, 1999 (placed below)
the competent authority to regularize the delay is as per the
given table:-
Period of Delay Designation
i) Upto 30 days Jt./Dy. Directors
ii) Beyond 30 days but upto 90 days Director (housing)
iii) Beyond 90 days but upto 1 year
Commissioner(Housing)
iv) Beyond 1 year but upto 1 year 6 months. Principal
Commissioner
v) More than 1 year 6 months Vice Chairman
[In case where allottees default for a proportion upto 10% of the toral
demand amount, regularization of delay/ restoration of allotment is done
at the level of Commissioner (Housing), irrespective of the period of
delay].
To reduce the subjectivity and to leave some policy guidelines in
this regard, the matter was discussed by the undersigned with V.C. on
29.05.2000. Accordingly, here are some points which may render a
case fit for consideration/ condonation of delay: -
(i) In cases where the bread winner of the family dies putting the
family members in a vulnerable condition in depositing the entire
demanded amount.
(ii) If the allottee has deposited the confirmation amount as well as
25% of the total demanded amount and if the request for extension
of time is upto one year.
(iii) In case where the extension has been requested for the second or
more lines, where the condonation is for a period of more than a
year i.e. where competent authority is the Vice-Chairman, the
allottee should deposit at least 50% of the demanded amount to get
the relief.
(iv) If the flat is in those areas which are not very popular and DDA is
finding difficult to sell the houses for occupation, e.g. in places like
Narela.
(v) DDA colonies where we are not in a position to provide even the
basic amenities like water and electricity to the inhabitants
resulting to complaints by the allottees e.g. in Dwarka.
(vi) Where defaulted amount is very small say 10% or below.
(vii) If the allottee comes out with the plea that he/ she appled for loan
from financial institution to deposit the demanded amount with the
DDA, he/ she should furnish the proof given by the concerned
financial institution clearly indicating that the loan would be
disbursed to the applicant within a period of one year.
(viii) If it is established that in processing the case delay has been by
DDA and very little time was left for the allottee to deposit the
amount.
All usual charges will continue to be levied in the cases where
condonation will be granted.
This issues with the approval of V.C.
[ Devendra Bhushan Gupta ]
Commissioner (Housing)"
11. On receipt of an application for condonation of delay the DDA
must not accept or reject the same in a mechanical manner. The
facts of each case must be examined carefully and if necessary
documents in support of the reasons for extension may be called
for. The approach of the DDA should be humane and genuine
case should be given the benefit of the policy. Careful reading of
the office order would show that DDA had come across large
number of cases where extension was sought on account of
problems faced by the concerned allottees. It is said that only the
wearer knows where the shoe pinches. DDA cannot lose track of
the fact that one of its primary action is to provide shelter to the
citizens of Delhi especially those who cannot afford to pay the
market price. The word „problem‟ is defined as "a situation or
matter that is difficult to deal with".
12. Counsel for petitioner has relied upon a judgment LPA
No.188/2008 Raj Kumar Sharma Vs. DDA, and more
particularly paragraphs 7 and 9 wherein the Division Bench was of
the opinion that the delay deserves to be condoned on the fact
that petitioner was suffering from financial hardship on account of
illness of his mother. Admittedly, policy does not include any
ground of illness of the mother, yet this itself was identified to be
a ground for condonation of delay. The Division Bench has also
considered the fact that the flat of the petitioner in the case of Raj
Kumar Sharma was also situated at Dwarka. The Division Bench
considered illness of mother of the allottee as a problem being
faced by him. Marriage of a child or children as in the case may
not be a problem but on account of two marriages payment to
DDA is definitely a problem faced by a middle class person who
applied for an MIG flat in the 1979 scheme. His allotment matured
only in the year 2003. In the case of Smt.Usha Singhal, DDA has
condoned the delay on account of marriage of her daughter, I find
the case of the petitioner is no different from that of Smt.Usha
Singhal, where the delay of 654 days was condoned, whereas the
delay in the case of the petitioner is far less. Consequently the
petition is allowed, delay in making the payment is condoned. As
the petitioner had made an application in the year 1979 and 23
years later a flat was allotted to him in the year 2003; that the
matter has also been pending since the year 2006 and all
payments stand made by the petitioner, DDA is directed on
completion of all formalities, hand over the flat to the petitioner as
expeditiously as possible. DDA would be entitled to restoration
charges and any further interest up to the date of payment.
13. Petition stands disposed of in above terms.
CM.No.6259/2006 (STAY)
14. In view of orders passed in the writ petition, application stands
disposed of.
G.S. SISTANI, J.
April 21, 2010
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