Delhi High Court
Badri Kishan Seth vs Dda on 19 May, 2010
Author: G. S. Sistani
2
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Delivered on: 19.05.2010
+ W.P.(C) 452/2008
BADRI KISHAN SETH ..... Petitioner
Through: Ms.Richa Kapoor, Advocate
versus
D.D.A. ..... Respondent
Through: Ms.Manika Tripathi Pandey, Adv.
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 of the parties, present petition
is set down for final hearing and disposal.
2. The facts of the case, as set out in the petition, are that petitioner
had registered himself with DDA, under the New Pattern
Registration Scheme, 1979, for allotment of an MIG flat by
depositing a sum of Rs.4,500/-. Petitioner was assigned a priority
number in the year 1986 being 15817 for allotment of an MIG flat.
Since there were large number of registrants under the NPRS,
1979 and flats available for allotment were far less in numbers,
the respondent introduced a scheme known as Awas Sarkar Yojna,
1989 with the aim to reduce the backlog and expedite the process
of allotment of the flats. Under the Awas Sarkar Yojna, 1989,
registrants of NPRS, 1979 whose priority number was beyond
10000 were called upon to give their willingness to become
members of the cooperative group housing societies to be formed
under the supervision of the DDA. The petitioner, whose priority
number was 15817 and who had not been allotted any flat till
W.P.(C) 452/2008 Page 1 of 8
1989, with a view to have an early allotment, gave his consent for
being considered under the said Awas Sarkar Yojna, 1989 of the
DDA. In all approximately 6000 applications were received under
the Awas Sarkar Yojna, 1989, however, only 11 cooperative group
housing societies could be identified by the DDA, having a total
strength of 834 members and out of 11, only 9 cooperative
societies were granted registration by the Registrar, Cooperative
Societies. Consequent to this on 07.10.1992 respondent vide its
resolution, resolved to close the said Awas Sarkar Yojna, 1989 and
not to entertain more cases under that Scheme other than the 9
cooperative societies already registered. This led to filing of a writ
petition by two left out cooperative societies already registered.
In that writ petition it was represented by DDA that such
registrants of NPRS, 1979, who had opted for Awas Sarkar Yojna,
1989, but have not been identified as members of the societies
registered by the Registrar of Cooperative Societies, should
continue to remain as members of the NPRS, 1979, leaving their
priority number intact and would be made entitled to allotment
according to the NRRS, 1979 Scheme. The respondent agreed to
relegate such persons, who could not be accommodated in Awas
Sarkar Yojna, 1989 back to NPRS, 1979 Scheme, leaving their
priority number intact. In the year 1994 priority of the petitioner
matured under the NPRS, 1979 and he was allotted a flat bearing
No.53, Sector-22, Pocket-26, Rohini. The petitioner, however, was
not issued any demand/ allotment letter pertaining to the
aforesaid Scheme.
3. Counsel for the petitioner submits that in the meanwhile DDA had
formulated a policy dated 28.05.2003. As per this policy, it was
decided that all registrants of the original NRPS, 1979, who had
opted for Awas Sarkar Yojna, 1989, but had not been identified as
members of the society would continue to remain the members of
the NPRS, 1979 along with the priority numbers and they would be
entitled to the allotment on the prevalent rates at that time.
4. Counsel for petitioner while relying on the policy dated
W.P.(C) 452/2008 Page 2 of 8
28.05.2003, which was reiterated by a subsequent policy dated
14.03.2005, prays for allotment of a flat. Counsel further relies
upon the case of Vinod Nagpal Vs. DDA [WP(C)No.15791/
2006], in support her plea that the policy in force at the time
when allotment was made would be applicable to the present case
at hand and DDA cannot rely upon the subsequent policy, taking
into consideration that the subsequent policy cannot be applied
retrospectively.
5. Ms. Kapoor, further submits that the file noting of the DDA
obtained by the petitioner by making an application under the RTI
Act also shows that the allotment was made to the petitioner at
the cost prevalent in the year 1994. Extract of the file noting
dated 24.05.2008 are reproduced below:
"In view of above orders and opinion of Law Department (H),
we may request the competent authority to issue the
demand-cum-allotment letter in respect of MIG flat No.9-C,
Pkt.B, Jhilmil, East Delhi allotted in 2004 at the cost
prevailing in the year 1994."
6. Present petition is opposed by counsel for the DDA, primarily on
the ground that by the time the case of the petitioner was
finalized the policy dated 28.05.2003 as well as policy dated
14.03.2005 were substituted by policy dated 06.06.2006,
according to which DDA was entitled to claim interest @ 12% per
annum on the cost prevailing in the year 1994 on account of the
fact that petitioner had approached the DDA beyond the period of
four years.
7. In response to the submission made by counsel for the DDA,
counsel for petitioner submits that there was no occasion for the
petitioner to approach the DDA as the allotment was to be made
by the DDA itself which it did in the year 2004, but for reasons
best known to the DDA, the demand / allotment letter was not
issued to the petitioner. Counsel for petitioner further submits
that it is the petitioner who has suffered on account of inaction on
the part of the DDA and has been deprived of a flat and a roof
above his head from the year 2004 onwards and thus, at this
W.P.(C) 452/2008 Page 3 of 8
stage, to burden the petitioner with additional financial burden of
interest @12% for no fault of the petitioner would be unfair and
unjust.
8. I have heard counsel for the parties and given my thoughtful
consideration to the matter. The basic facts are not in dispute
that petitioner had applied to DDA for an MIG flat under the NPRS,
1979 Scheme. The priority number of the petitioner was 15817,
and keeping in view the non-availability of flats, she opted for
Awas Sarkar Yojna, 1989. Petitioner was not successful in this
venture as well and thus was forced to fall back on the earlier
Scheme, as per the stand of the DDA itself, leaving his priority
number intact. It is not in dispute that in the year 2004 in the
draw held on 31.03.2004 a flat bearing No.53, Sector-22, Pocket-
26, Rohini, Delhi was allotted to the petitioner. There is no
explanation on record as to why after allotment having been
made in favour of the petitioner, a demand /allotment letter was
not issued to the petitioner nor petitioner was called upon to make
the payment. The petitioner has placed on record letters to show
that he had approached the DDA time and again despite the
tragedy of losing his son in the year 2003. The letter sent to the
DDA were not replied to which ultimately led the petitioner into
filing the present writ petition. Admittedly, when the allotment
was made in favour of the petitioner, policy dated 28.05.2003 was
in force, which reads as under:
"CIRCULAR
It has been decided that all the registrants of original
NPRS Scheme, 1979 (LIG & MIG), who had opted for
Awas Sarka Yojna, but who had not been identified as
members of the society would continue to remain the
members of NPRS - 1979 alongwith their priority
numbers & would be entitled to the allotment on the
prevailing rates at that time. When they were entitled
for allotment according to their priority numbers.
This circular is being issued in compliance of the
orders of the Hon'ble High Court in CWP
No.4859/2000, 4899/2000 and 4329/2001 wherein for
W.P.(C) 452/2008 Page 4 of 8
the reasons stated in the judgment, Hon'ble High
Court held that the petitioner are entitled to the flats
at the original cost without payment of any interest.
This issues with the approval of V.C. on file No.F-8
(Misc.) 99/ LIG/ NP OR 67/2003/ Legal."
9. The DDA in its own wisdom reiterated this very policy by an office
order dated 14.03.2005 on similar lines. The same reads as
under:
"NO.F2 (10)2004/N&C (H)/65 Dated: 14.3.05
ORDER
In supersession of office circular No.F2(10)2003/N&C (H)/113 dated
3.4.2004, it has been decided that all the registrants of original NPR
Scheme-79 (LIG/MIG), who had adopted for Awas Sakar Yojana but had
not been identified as members of the society would continue to remain
members of NPRS-79 alongwith their priority numbers would be entitled
to the allotment on the prevailing rates at the time when they were
entitled for allotment according to their priority umbers.
This issues with the approval of Vice Chairman, DDA in File NO.F.2
(10)2001/ Coord (H) P.t."
10. A careful reading of the office order/ policy dated 28.05.2003
would show that not only the original registrants of the NPRS,
1979, who had opted for Awas Sarkar Yojna, 1989 but could not
be identified as members of the society, would continue to be the
members of the NPRS, 1979 along with their priority number,
which would remain intact and would be entitled to the allotment
at the prevalent rate at that time. In the absence of any
communication to the petitioner that he has been declared
successful in the draw held on 31.03.2004 and in the absence of
any demand / allotment letter having been issued, the petitioner
cannot be blamed for not making payment. It may also be noted
that the demand / allotment letter was however issued to the
petitioner in the year 2008. The case of the petitioner is also
covered by the case of Vinod Nagpal (Supra).
12. There is contradiction in the stand taken by the
respondent-DDA in their counter affidavit in the two
cases. Whereas in the case of Mr.Vinod Nagpal, costs
prevailing in the year 1991 has been taken as the
basis and interest @ 12% per annum has been
charged thereon for calculating the demand, in the
case of Mr.Ram Rattan Bhudhiraja cost of the flat as
on March, 2003 has been taken as the basis and the
petitioner has been asked to pay interest @ 7% per
annum in terms of Circular dated 12th April, 2005,
which stipulates that interest @ 7% per annum is
payable in cases where the allottee is not at fault.
13. During the course of arguments, learned counsel
for the DDA in the case of Mr.Vinod Nagpal relied upon
another Circular dated 6th June, 2006. Which
stipulates that the registrants under N.P.R. Scheme,
1979 who had opted for ASY Scheme but could not be
allotted any flat would be entitled to allotment of flat
at the old cost prevalent at the time when they
became entitled to allotment along with 12% simple
interest till the issue of a fresh demand-cum-allotment
letter, in case they had not approached DDA within
four years. It is an admitted case Circular dated 6th
June, 2006 has been made applicable/effective from
6th June, 2006. Reliance has not been placed on the
said Circular in the case of Mr. Ram Rattan Bhudhiraja
and was not applied in his case to calculate costs.
14. It is unfortunate that DDA has been issuing
demand letters to allottees under the N.P.R.Scheme,
1979 calculating the costs on different basis and
relying upon different Circulars/Office Orders. There is
no uniformity and consistency. Different parameters
and basis for calculation of demands have been
adopted which is unjust and unfair. This should not
happen in a public authority. Action of DDA is perse
arbitrary, discriminatory and falls foul of Article 14 of
the Constitution of India.
16. The petitioners are registrants under the
N.P.R.Scheme, 1979 and it was the duty of the DDA to
ensure that allotments are made when their priority
numbers matured in the years 1991 and 1993. It is
also an admitted fact that ASY Scheme was scrapped
in 1992. Unfortunately they ha 15791 ve been given
possession of the flats after more than 14 years and
have been deprived of a roof over their heads during
this period. It will be unfair and unjust for the DDA to
claim interest when they were at fault and had failed
to make allotment to the petitioners when their
priority number had matured. The petitioners should
not be penalised for the default of the respondent-
DDA. I may here refer to the judgment dated 29th
August, 2002 of the Single Judge of this Court passed
in Writ Petition (Civil) No. 4859/2000 titled Mohinder
Malik and others versus DDA wherein it was observed
as under:-
The conspectus of the aforesaid judgments
shows that there cannot be any doubt about the
proposition that the innocent party cannot be
made to suffer on account for the mistake and
inefficiencies of the respondent DDA. In J.S.
Rao's case (supra) it has been categorically held
that the mistake of the respondent cannot
deprive the right of allotment to the allottee and
the allottee cannot be "saddled with higher
liability". It is thus clear that there would be no
higher liability other than the original cost of the
flat. One nature of higher liability would be
charging current cost of flat. However, higher
liability would include the element of interest
also sought to be imposed on the original cost of
the flat. The principle, in my considered view,
would not change."
11. In view of the fact that name of the petitioner was included in the
draw held on 31.03.2004, the petitioner would be entitled to the
rates prevalent as per circular dated 28.05.2003 and also office
order 14.03.2005. Taking into consideration that demand/
allotment letter was issued during the pendency of the writ
petition in the year 2008, however, the petitioner has not made
the payment, petitioner is directed to make the payment with
12% interest from 14.07.2008 upto the date of making the
payment. Let the fresh demand/ allotment letter be issued to the
petitioner as per circular dated 28.05.2003 and also office order
dated 14.03.2005, within eight weeks from receipt of the order.
12. Petition stands disposed of, in above terms.
CM NO.5641/2009
13. Dismissed, in view of the orders passed in the writ petition.
G.S. SISTANI, J.
May 19, 2010
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