Smt Kamlesh vs Delhi Development Authority
2010 Latest Caselaw 3395 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C.) No. 5228/2006

%                  Date of Decision: 20th JULY,2010


#     SMT. KAMLESH                                          .....PETITIONER

!                  Through:   Mr. C. Mohan Rao, Advocate.


                                    VERSUS


$     DELHI DEVELOPMENT AUTHORITY                     ...........RESPONDENT

^                  Through:   Mr. Ajay Verma, Advocate.


CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper may be allowed to see the judgment? YES

2. To be referred to the reporter or not? YES

3. Whether the judgment should be reported in the Digest? YES

S.N.AGGARWAL, J (ORAL)

The petitioner is the widow of the person named Sat Pal who was

allotted Kiosk No. 4, Kalkaji Extension by DDA on leasehold basis vide its

letter dated 30.07.1986 (Annexure P-1 at page 9 of the paper book). The

allottee of the said Kiosk died on 30.07.1993 before possession of the

Kiosk could be handed-over to him by the DDA. The widow of the

deceased allottee had been fighting with the DDA all along for getting

possession of the Kiosk in question and it was after 20 years of the initial

allotment, the DDA issued demand letter dated 25.01.2006 to the

petitioner, being the widow of the deceased allottee, demanding an

amount of Rs.6,31,300/- being the cost of the Kiosk including interest

thereon. The breakup of the said demand contained in the demand letter

dated 25.01.2006 was as under:

            Cost                                Rs.4,95,400/-
           Interest @ 7% per annum w.e.f.      Rs.1,35,900/-
           Feb 2002 to 28.02.2006
                        Total                Rs.6,31,300/-

2. The petitioner represented against the said demand vide her

representation dated 13.03.2006 (Annexure P-5 at page 17 of the paper

book) and requested that the DDA should correct its demand and charge

the cost of the Kiosk that was prevalent in 1986 at the time of its initial

allotment. On this representation of the petitioner, the DDA conceded to

the demand of the petitioner for charging the cost of the Kiosk at the rate

prevalent in 1986 and issued a revised demand letter dated 29.08.2006

(Annexure A-1 at page 33 of the paper book) and demanded an amount

of Rs.3,85,100/- instead of Rs.6,31,300/- as per the following details:

           Cost of Kiosk as on 1986            Rs.1,62,416/-
           Interest w.e.f. July 1986 to        Rs.2,22,684/-
           January 2006 @ 7% being its
           fault
                        Total                Rs.3,85,100/-

3. The demand in respect of the Kiosk in question was revised by the

DDA during the pendency of the present writ petition.

4. The learned counsel appearing on behalf of the petitioner has

raised two issues with regard to the right of the petitioner in respect of

Kiosk No. 4, Kalkaji Extension allotted by the DDA in 1986 in the name of

her deceased husband and these two issues raised by him are as follows:

(i) The DDA having admitted its own fault in handing over of

possession of the Kiosk in question could not have charged interest

@ 7% per annum on the cost of the Kiosk;

(ii) The Kiosk No. 4 that was allotted by the DDA in the name of her

deceased husband is surrounded by Jhuggis on three sides and a

toilet block on the left side cannot be put to use and the petitioner

is entitled for allotment and possession of an alternative Kiosk in

place of Kiosk No. 4.

5. Mr. C. Mohan Rao, learned counsel appearing on behalf of the

petitioner, has submitted that there are 200 vacant Kiosks available with

the DDA in South Zone and since the Kiosk allotted by the DDA to her

cannot be put to use, the DDA should be directed to allot an alternative

Kiosk in South Zone to her.

6. Mr. Ajay Verma, learned counsel appearing on behalf of the

respondent/DDA, has countered the above argument urged on behalf of

the petitioner contending that the interest on the cost of Kiosk was

demanded by the DDA from the petitioner in terms of its policy.

Mr.Verma, appearing on behalf of the DDA, submits that Kiosk No. 4

allotted to the petitioner is situated on the right berm of the road and can

be put to use though it is surrounded by Jhuggis on three sides and a

toilet block on the left side. Mr. Verma has taken me through the

photographs of the Kiosk in question in support of his argument in regard

to utility of the Kiosk in question.

7. The petitioner has also placed photographs of the Kiosk in question

on record along with the internal notings of the DDA with regard to the

placement of the Kiosk and the Jhuggis around it. The same are available

at pages 14 to 16 & 34 of the paper book. I have perused the entire

notings of the DDA with regard to the placement of the Kiosk in question

and have also seen the photographs shown to me by the counsel for both

the parties.

8. The internal notings of the DDA with regard to placement of Kiosk

in question as well as the photographs on record would show that the

Kiosk cannot be properly utilised by the allottee and the said allotment,

by no means, can be taken to be a proper allotment by DDA to its user.

The counsel appearing on behalf of the DDA has neither placed on

record nor shown at the time of hearing any policy of the DDA to charge

interest from the allottee for its own fault. It shall be significant to

mention that the DDA has admitted its own fault in delaying the handing

over of possession of the Kiosk in question to the allottee in the revised

demand letter dated 29.08.2006 which is at page 33 of the paper book.

This court is of the considered opinion that the demand of interest on the

cost of Kiosk by the DDA for its own fault is most arbitrary, unreasonable

and unjustified and cannot stand the test of judicial scrutiny. There

cannot be any policy of the State instrumentality to charge interest from

the consumer for its own fault.

9. It is quite shocking and painful to note that the DDA has taken

more than 20 years in issuing demand letter in respect of a Kiosk that

was allotted to the deceased husband of the petitioner way back in 1986.

The DDA is a State functionary and it must come out of the cobwebs and

should stop functioning in a despotic manner as it has been done by it in

the present case. The petitioner, being the widow of the deceased

allottee, has to run from pillar to post for getting possession of the Kiosk

that was allotted by the DDA to her deceased husband about 25 years

ago but till date she has not been able to get its possession from the

DDA.

10. It is an admitted fact on record that the Kiosk that was allotted by

the DDA to the deceased husband of the petitioner is surrounded by

Jhuggis on three sides and a toilet block on its left side. The DDA has

filed an affidavit of its Director Mr. Yashpal Garg which is at pages 43-44

of the paper book to say that the Jhuggis that exist around the Kiosk in

question cannot be removed as they enjoy the protection granted to

them by the NCT of Delhi Laws (Special Provisions) Ordinance, 2007

dated 04.07.2007. The Director of the DDA has stated in his said

affidavit that the protection to the Jhuggi Jhompris around the Kiosk is

continuing even presently under the NCT of Delhi Laws (Special

Provisions) Act, 2009 and accordingly, no action can be taken for removal

of Jhuggis around the Kiosk in question. In view of this admitted stand of

the DDA, it was expected that the DDA itself should have allotted an

alternative Kiosk to the petitioner, being the widow of the deceased

allottee, instead of her rushing to the court for getting her lawful dues.

This case demonstrates the high-handedness and callous attitude of the

concerned officials of the DDA in dealing with the matter. This is not

expected of them that every poor litigant particularly a widow has to rush

to the court particularly when DDA itself admits its fault.

11. In view of the above and having regard to the facts &

circumstances of the case, this writ petition is allowed. The original

impugned demand dated 25.01.2006 is hereby quashed. The revised

demand contained in DDA's letter dated 29.08.2006 at page 33 of the

paper book is quashed to the extent of Rs.2,22,684/-, being the amount

of interest. The respondent/DDA is directed to allot an alternative Kiosk

in South Zone to the petitioner at price prevalent in 1986 within a period

of six weeks from today. The petitioner is held entitled to Costs of the

present proceedings quantified at Rs.25,000/-.

JULY 20, 2010                                    S.N.AGGARWAL, J
'BSR '