V.Gopinathan vs The Govt. Of Nct Of Delhi & Ors
2010 Latest Caselaw 4679 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                W.P. (C ) No. 4339/2004
                         Judgment delivered on: 05.10.2010

V.Gopinathan                            ..... Petitioner
                     Through: Dr.L.S.Chaudhary with Mr.Ajay
                                Chaudhary, Advocates.

                      Versus

The Govt. of N.C.T. of Delhi & Ors.  ..... Respondents
                     Through: Mr.Nawal Kishore Jha,
                                 Advocate for Govt. of NCT of
                                 Delhi.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                          No

2. To be referred to Reporter or not?                       No

3. Whether the judgment should be reported                  No
   in the Digest?

KAILASH GAMBHIR, J. Oral:
*

1. By this petition filed under Article 226 of the

Constitution of India, the petitioner seeks to direct the

respondent No.1 and 2 to issue a clearance certificate to the

petitioner in respect of Flat No.150, Type C, D.A Flats,

Karkardooma, Delhi.

2. Brief facts of the case relevant for deciding the

present petition are that the petitioner was allotted a

Government accommodation being Flat No. 1618, Type A,

Kalyan Vas, Delhi, but the same was declared dangerous for

human habitation by the Chief Engineer of respondent no.1 &

2. Consequently, as an alternative accommodation, vide order

dated 16.8.1988 bearing Flat No. 100 Type B, Kalyan Vas, Delhi

was allotted to the petitioner. Thereafter another

accommodation was allotted to the petitioner vide order dated

2.7.1999 bearing Flat No. 150 Type C, D.A Flats , Karkardooma,

Delhi whose possession was taken by the petitioner on

13.7.1999. The petitioner however thereafter shifted in his own

house and vacated the Flat No. 150 but was not given the

Clearance Certificate despite making several representations.

The petitioner is aggrieved as the respondents are continuously

withholding the House Rent Allowance (HRA) and deducting the

Licence Fee from the salary of the petitioner as he has not

been able to surrender his flat due to non-issuance of the

clearance certificate. Therefore, the present petition.

3. Counsel for the petitioner submits that the

petitioner had handed over the possession of the flat bearing

No.100, Type B, Kalyan Vas, Delhi (hereafter referred to as Flat

No.100) on 13.07.1999. Counsel further submits that the

petitioner had approached the office of the respondent No.2 on

12.07.1999 requesting them to issue clearance certificate in

respect of Flat No.100 and also take possession of the newly

allotted Flat bearing No.150, Type-C, Delhi Administration Flats,

Karkardooma, Delhi (hereafter referred to as Flat No.150).

Counsel further submits that the petitioner could not surrender

the earlier Flat No.100 for want of clearance certificate even

after he had taken possession of Flat No.150. The contention of

the counsel for the petitioner is that the petitioner had already

written to the respondents to deliver possession of Flat No.100,

but it was only on account of non-issuance of clearance

certificate that the petitioner could not hand over the

possession of the said Flat to the respondents. Counsel further

submits that the respondents No.1 and 2 had issued clearance

certificate to the petitioner in respect of Flat No.100 only on

13.11.1999 and immediately thereafter the petitioner

surrendered possession of the said flat and handed over the

possession of the same to the concerned J.E. of the

respondents on the same day. Counsel further submits that the

petitioner had also submitted representation dated 29.01.2004

to the respondent No.2 with a request to issue a clearance

certificate in respect of Flat No.150 as he had already vacated

the said flat a day prior thereto and shifted to his own house,

but again the petitioner could not surrender the possession of

the said flat to the concerned J.E. of the respondents for want

of issuance of necessary clearance certificate. Counsel further

submits that the petitioner made various representations to

respondent No.2 to issue clearance certificate, but to no avail.

Such representations were made by the petitioner on

11.02.2004 and 12.02.2004. Counsel also submits that in the

meanwhile, the respondent No.3 kept on withholding the H.R.A

and at the same time kept on deducting license fee from the

salary of the petitioner on account of the fact that the

petitioner was not able to surrender his flat. Counsel thus

submits that it was obligatory on the part of the respondents to

have issued the necessary clearance certificate to the

petitioner in respect of Flat No.150, Type C, Delhi

Administration Flats, Karkardooma, Delhi as on 01.02.2004.

4. I have learned counsel for the parties.

5. Counter affidavit in this case was filed by the

respondents on 02.12.2004. In the said counter affidavit, the

stand taken by the respondents is that the petitioner was

allotted Flat No.100, Type B, Kalyan Vas, Delhi as an

alternative accommodation on 10.08.1998 and at the request

of the petitioner an alternative accommodation i.e. Flat No.150,

Type C, Delhi Administration Flats, Karkardooma, Delhi was

allotted to him on 03.11.1999. The respondents have also

stated that the petitioner vacated the Flat No.100 on

03.11.1999 which flat in fact the petitioner should have

vacated on 28.07.1999. The respondents have taken a stand

that the petitioner kept on occupying two flats simultaneously

during the period from 21.07.1999 to 03.11.1999 and therefore

he was liable to pay damages amounting to Rs.7,304/- as per

the rules applicable. It has also been stated by the respondents

in the counter affidavit that the clearance certificate could not

be issued to the petitioner since the petitioner did not clear the

said payment of Rs.7,304/- towards damages outstanding

against him. The respondents have also stated that the

petitioner did not vacate the Flat bearing No.150 before

15.10.2004 and also did not pay the damages of Rs.7,304/- as

was outstanding against him.

6. The matter on behalf of the respondents was being

contested through Ms.Geeta Luthra, Advocate, but on

10.03.2010 since nobody appeared on behalf of the

respondents, therefore, Mr.Nazimi Waziri, Standing Counsel for

the Govt. of NCT of Delhi had appeared, who stated that this

matter will be assigned to some new Advocate as Ms.Geeta

Luthra, Advocate by that time had been designated as a Senior

Advocate. Nobody appeared on behalf of the respondents on

the adjourned date i.e. 22.07.2010 and again notice was

directed to be issued to the Standing Counsel. Despite service

of the said notice, Standing Counsel for the respondents did not

choose to appear today. The counsel for the petitioner was

directed to look for the Standing Counsel or some Govt.

Counsel. Mr.Naval Kishore Jha, Advocate then entered

appearance for the respondents.

7. It is quite evident that after filing of the counter

affidavit, the respondents have not been appearing in this

matter to contest the claim of the petitioner. The main

grievance of the petitioner is that he made all efforts to hand

over the possession of the Flat bearing No.150 immediately

after 23.01.2004 and which infact was vacated by him on

28.01.2004. The petitioner has placed on record letters dated

29.01.2004 and 11.02.2004, but the petitioner has not placed

on record any document to show that the said letters were

received by the respondents. In any event of the matter, the

respondents have not denied the receipt of these letters in

their counter affidavit and nor the respondents have produced

on record to show that the said letters were not received by the

respondents.

8. Taking into consideration the aforesaid facts, it is

assumed as being correct that the petitioner handed over the

possession of the Flat bearing No.150, Type C, Delhi

Administration Flats, Karkardooma, Delhi on 28.01.2004. The

respondents are accordingly directed to issue the necessary

clearance certificate to the petitioner in respect of Flat bearing

No.150, Type C, Delhi Administration Flats, Karkardooma,

Delhi. The respondents are also directed to refund back the

amount of damages deducted/adjusted by the respondents

from the salary/other dues of the petitioner in respect of flat

bearing No.150, Type C, Delhi Administration Flats,

Karkardooma, Delhi from 29.01.2004 onwards. A decision in

this regard shall be taken by the respondents within a period of

two months from the date of this order.

9. With the above directions, the present writ petition

stands disposed of.

KAILASH GAMBHIR, J October 05, 2010 dc