Nishant Rai Andrew vs Dda
2011 Latest Caselaw 4042 Del

Citation : 2011 Latest Caselaw 4042 Del
Judgement Date : 19 August, 2011

Delhi High Court

Nishant Rai Andrew vs Dda on 19 August, 2011

Author: Rajiv Sahai Endlaw

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 19th August, 2011
+                   W.P.(C) 419/2009 & CM No.5354/2010 (for direction).

+        NISHANT RAI ANDREW                                    ..... Petitioner
                      Through:            Mr. R.P. Agrawal, Mr. Arvind
                                          Singh & Ms. Priyadarshini Verma,
                                          Adv.
                                      versus
          DDA                                               ..... Respondent
                            Through:      Mr. Ajay Verma, Adv. for DDA.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                     Not necessary.

2.       To be referred to the reporter or not?              Not necessary.

3.       Whether the judgment should be reported             Not necessary.
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner, in a draw of lots held on 27 th February, 1998 was

made an out of turn allotment under the Physically Handicapped Quota, of

Shop No.3, CSC, Jagriti Enclave, Zone 10&11 and a Demand-cum-

Allotment Letter dated 21 st October, 1998 issued to him. The petitioner

though deposited a sum of `3,68,265/- with the respondent DDA towards

the price of the said shop but requested for change of location for the

reason of the same being at a distance from his residence. The request of

the petitioner was examined and acceded to by the respondent DDA and

another Shop No.25, in Dhallupura Chilla, Delhi was allotted to the

petitioner vide revised demand letter dated 5 th January, 2001. The counsel

for the petitioner states that the price of the said shop was less than the

amount of `3,68,265/- which had already been deposited by the petitioner

and the petitioner was rather entitled to a refund of approximately

`12,000/-.

2. However the possession of Shop No.25 Dhallupura Chilla, Delhi

also could not be delivered to the petitioner since according to the

respondent DDA the same already stood allotted to another.

3. The petitioner in the circumstances approached the Lok Adalat, and

before the Lok Adalat also some alternative shops were offered to the

petitioner. According to the counsel for the respondent DDA, upon the

petitioner not accepting any of the same, the respondent DDA vide letter

dated 18th May, 2007 requested the petitioner to take refund of the monies

deposited with interest @ 7% per annum.

4. Finally this petition was preferred, notice whereof was issued. It is

the stand of the respondent DDA in its counter affidavit that the petitioner

having failed to accept the alternative shops offered to him and having

preferred a complaint before the Consumer Forum and withdrawn the same

is not entitled to any relief.

5. On suggestion of this Court to the respondent DDA to identify five

shops in the vicinity of the residence of the petitioner for allotment to the

petitioner, list of five such shops was given to the petitioner. The petitioner

identified one of the said shops for acceptance in lieu of the shop no.25

Dhallupura Chilla, Delhi to which he claims entitlement. However it is the

contention of the counsel for the respondent DDA that the respondent

DDA is incompetent to so allot the identified shop and has to necessarily

hold draw of lots. The petitioner was as such asked to identify three of the

said five shops and of which one would be allotted in the draw of lots to

the petitioner. The petitioner has filed an affidavit dated 22 nd November,

2010 listing the said three shops.

6. The counsel for the respondent DDA has however stated that the

petitioner has in the said affidavit imposed another condition for

acceptance i.e. of the shops being given to him at the rate on which the

shop at 25, Dhallupura Chilla, Delhi was allotted to him. He contends that

the petitioner is liable to pay the price as prevalent now of the said shops.

7. The counsels have been heard on the aforesaid aspect. I am of the

opinion that the petitioner is entitled to either of the said three shops at the

rate applicable thereto but as of the date when the allotment which could

not fructify, was made to the petitioner i.e. of 5 th January, 2001. The

petitioner cannot be made liable for increase in price thereafter in as much

as the fault for non-delivery of the possession of the shop which was

admittedly offered to the petitioner lies squarely on the respondent DDA.

The counsel for the respondent DDA has contended that the respondent

DDA had in 2007 before the Lok Adalat offered alternative shops to the

petitioner and which were not accepted by the petitioner and the

respondent DDA should thus not be bound with the rates of 2001.

However the fact of the matter remains that no settlement could be arrived

at before the Lok Adalat and as such it cannot be said that the wrong

committed by the respondent DDA in 2001 was corrected in any manner in

the year 2007.

8. The counsel for the respondent DDA has next contended that the

three shops to be now put to draw of lots and of which any can be allotted

to the petitioner or any of them may not have been in existence as on 5 th

January, 2001 so as to have a rate of that date.

9. If that be the position then the rate applicable when the shops first

came into existence shall be the rate at which the petitioner would be

required to make the payment.

10. Though the counsel for the petitioner has sought time to obtain

instructions from the petitioner in this regard but the said course of action

having been found to be reasonable by this Court, need is not felt to

adjourn the matter.

11. The writ petition is therefore allowed on the following terms:-

a. The respondent DDA to put the three shops in terms of

the affidavit dated 22 nd November, 2010 of the

petitioner to a draw of lots within six weeks of today. A

Demand-cum-Allotment Letter of the shop to which the

petitioner is so found entitled in the draw of lots be

issued to the petitioner immediately thereafter;

b. the intimation of the date of draw of lots be given to the

petitioner to enable the petitioner to be present therefor

if so desirous.

c. the demand for the price of the shop so allotted to the

petitioner be made at the rates as applicable on 5 th

January, 2001 and if the shop was not in existence on

that date, of the rate applicable/fixed when the shop

first came into existence.

d. if the price claimed from the petitioner is of 5th January,

2001, the petitioner shall be entitled to interest @10%

per annum on the amount of `3,68,265/- aforesaid

deposited by him from the date of deposit till 5 th

January, 2001; however if the price is of any date after

5th January, 2001, the petitioner shall be entitled to

interest @10% per annum on the amount of `3,68,265/-

deposited by him from the date of deposit till the date

of fixation of price claimed from the petitioner;

e. the amount already deposited by the petitioner with the

respondent DDA and which continues to be with the

respondent DDA, be adjusted in the price so due of the

shop to the petitioner;