Sarla Mahindra vs Dda
2011 Latest Caselaw 4079 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 23rd August, 2011.

+                           W.P.(C) 19785/2005

%      SARLA MAHINDRA                                              ...Petitioner
                   Through:               Mr. Munish Tyagi, Adv.

                                       Versus

       DDA                                                   ..... Respondent
                            Through:      Mr. M.K. Singh, Adv.

                                      AND

+                           W.P.(C) 19783/2005

%      PRAN NATH THUKRAL                                           ...Petitioner
                   Through:               Mr. Munish Tyagi, Adv.

                                       Versus

       DDA                                                   ..... Respondent
                            Through:      Mr. M.K. Singh, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may          Not necessary
       be allowed to see the judgment?

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

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

W.P.(C) No.19785/2005 & W.P.(C) No.19783/2005                 Page 1 of 12
 RAJIV SAHAI ENDLAW, J.

1. Both petitions entail similar controversy and are being listed together

for hearing. However since the counsel for the petitioners has argued with

reference to the facts of W.P.(C) No.19785/2005, the same is given

precedence in the matter of discussion. The husband of the petitioner in the

said petition was a registrant for an MIG flat in the Rohini Residential

Scheme of the year 1981 of the respondent DDA; he died on 8 th February,

1985 and the registration was transferred in the name of the petitioner; in the

draw of lots held on 11th June, 2003, the petitioner was found entitled to Plot

No.325 admeasuring 60 sq. mtrs., Pocket C-V, Sector 28, Rohini Phase-IV

and a demand cum allotment letter dated 5th-12th September, 2003 issued to

her, demanding from her the premium of `3,71,520/-, of which `1,17,250/-

was payable latest by 11th November, 2003, `1,85,760/- latest by 10th

January, 2004 and balance `55,728/- on further demand; the demand cum

allotment letter further provided that in case the petitioner failed to deposit

the amounts as aforesaid, the allotment will be treated as cancelled and no

further request for restoration will be entertained in this respect.

2. The petitioner did not respond to the aforesaid demand cum allotment

letter and did not make any payment as demanded therein.

3. The petitioner however claims to have received a show cause notice

from the respondent DDA and to have deposited an amount of `3,58,000/- in

the bank account of the respondent DDA on 24th November, 2004.

4. This petition was filed, pleading that though the petitioner had been

visiting the office of the respondent DDA for delivery of possession of the

plot but the same had not been delivered and the petitioner had received

information that the respondent DDA was intending to allot the plot allotted

to the petitioner and to deliver possession thereof to someone else and

seeking mandamus to the respondent DDA to deliver the possession of the

plot and to execute the conveyance deed with respect thereto in favour of the

petitioner and to quash and set aside the order of cancellation of the

allotment in favour of the petitioner.

5. This Court vide order dated 5th October, 2005 while issuing notice of

the petition observed that the Vice-Chairman of the DDA should re-look into

the matter. Though the petitioner had claimed interim relief of restraining

DDA from allotting the plot to anybody else but no interim relief was

granted. The application for interim relief was disposed of as not pressed on

3rd February, 2009.

6. The petitioner in W.P.(C) No.19783/2005 was also a registrant under

the same Scheme and was also issued a demand cum allotment letter dated

1st-5th September, 2003/20th November, 2003 qua Plot No.221 admeasuring

60 sq. mtrs., Pocket C-2, Sector 28, Rohini Phase-IV Residential Scheme.

As per the demand cum allotment letter, out of the total premium of

`4,08,672/-, `1,30,290/- was payable latest by 19th January, 2004,

`2,04,336/- by 19th March, 2004 and the balance `61,301/- on further

demand. He deposited a sum of `1,30,290/- in the bank account of the

respondent DDA on 19th January, 2004 and an amount of `2,65,637/- by

three separate bank drafts of `61,301/- and `2,04,336/- on 5th July, 2005. He

filed the writ petition claiming similar reliefs as in the other writ petition.

7. It is the case of the petitioner in both petitions that the 1981 Scheme

envisaged the allotment to be made within five years i.e. upto 1986 and at

the rate of `200/- per sq. mtr.; that the allotments to them were however

made after twenty two years, at a much higher rate; that owing to long delay

and increase in rates, they could not make the payment within the prescribed

time. It is further their case that the Sector in which the plots aforesaid were

allotted to them were not even developed; respondent DDA in other cases

has been condoning the delays in payment of premium of as long as seven

and a half years and that they had been discriminated against. Emphasis in

W.P.(C) No.19785/2005 is placed on the widowhood of the petitioner.

8. Vide order dated 6th December, 2007 in W.P.(C) No.19783/2005, the

respondent DDA was directed to make available all the policies towards

condonation of delay in respect of Rohini Residential Scheme, 1981. In

compliance thereof an additional affidavit has been filed in W.P.(C)

No.19783/2005.

9. The version of the respondent DDA in the counter affidavits filed in

both the petitions is that the number of applicants in the Scheme was much

more than the land which had been made available for the Scheme and

further land had to be acquired and which led to the delays and the increase

in cost; that the draws were held from time to time but the petitioners were

not successful therein; that the allotment of the plots was made at pre-

determined rates fixed by the Government for the year of allotment and

depending upon the costs of acquisition and development of the land; that

accordingly the demand on the petitioner in each case was made at the rates

of the year 2003; it is also controverted that at the time of allotment the

Sector/area was not developed. It is pleaded that most of the allottees took

possession of their plots. It is further pleaded that as per the policy

guidelines, maximum delay of 360 days can be condoned by Vice-

Chairman, DDA on payment of restoration charges and interest charges for

the delayed period. It is yet further pleaded that had the petitioners faced

any difficulty in paying the premium demanded, they ought to have

approached the respondent DDA and applied for extension immediately after

receipt of the demand cum allotment letters but did not take any such steps

and accordingly the allotment in favour of the petitioners was cancelled.

10. It is further the version of the respondent DDA in W.P.(C)

No.19785/2005 that upon finding deposit by the petitioner of `3,58,000/-

without stating any reason for delay and being suspicious that the amount

had been deposited by some person other than the petitioners, the petitioner

was called in the office of the Director (RL) of the respondent DDA; that the

explanation given by the petitioner in the said meeting for the delay on her

part in depositing the amount was insufficient and not satisfactory; the

petitioner cited the reason of the death of her husband but which was long

back in the year 1985 and the petitioner could not explain the source from

which the lump-sum deposit of `3,58,000/- had been made. It is thus stated

that the automatic cancellation in accordance with the terms of the allotment

letters remained.

11. The respondent DDA in its counter affidavit in W.P.(C)

No.19783/2005 has stated that the first deposit of `1,30,290/- was by three

separate bank drafts from three different persons residing in three different

areas; similarly the subsequent deposit on 5th July, 2005 also was from two

different bank drafts, one of the petitioner and other of some other persons;

that the same created a doubt that the payment was not by the petitioner but

by others to whom the petitioner had transferred his rights; accordingly, no

case for condonation of delay and for restoration of the cancellation

automatically effected on expiry of time was made in the said case also.

12. The respondent DDA has further, while admitting condonation of

delay of as long as seven years, stated that it was in cases where sufficient

reasons for condoning the delay were made out and which were missing in

the case of the petitioners. Reliance is also placed on the order dated 19 th

October, 2005 in W.P.(C) No.18854/2005 and order dated 16th February,

2006 in W.P.(C) No.18603/2005 holding that where the petitioner is not

found to be a genuine person and the proceedings are found to be pursued by

property brokers, no error can be found in the decision of the DDA to not

condone the delay and to not restore the allotment.

13. The respondent DDA in its additional affidavit in W.P.(C)

No.19783/2005 has stated that under the Scheme, upon failure to make

payment by the stipulated date, the allotment was liable to be cancelled and

earnest money to be refunded subject to deduction of 10%; however upon

receipt of representations of some ex-allottees for restoration stating

unforeseen reasons for non-payment by the stipulated date, a Scheme dated

29th August, 1996 substituted by the Policy of 2004 in force at the relevant

time was formulated. It is further stated that as per the said Policy, delay

beyond 180 days is condonable by the Principal Commissioner on payment

of restoration charges and penal rate of interest at the rate of 15% per

annum; however beyond one year, no regularization is to be entertained

except on extremely deserving grounds.

14. The counsel for the respondent DDA has during the course of hearing

also produced the records pertaining to the allotment in favour of the

petitioner in W.P.(C) No.19785/2005 and a perusal whereof shows that the

case of the petitioner was considered by the Lieutenant Governor as the

Chairman of the respondent DDA and who found that the petitioner had not

given any cogent reasons for the delay in making the payment and thus did

not fall in the category of deserving cases and was not entitled to

condonation of delay or for restoration of the allotment.

15. This Court in judgment dated 14.03.2011 in W.P.(C) No.7581/2008

titled Harvinder Singh Vs. DDA held that the Policy of the DDA

concerning condonation of delay in making the payment requires the allottee

to show cause that the case is deserving one; this envisages some reasons to

be given by the allottee to explain why the payment was not made within

time; that without any reasons being disclosed, merely stating that the delay

was not deliberate or intentional is not sufficient and that payment after a

delay does not give any right to obtain possession of the plot.

16. I have in judgment dictated today in W.P.(C) No.7584/2008 titled

Sudershan Kumar Vs. DDA have also held that forfeiture of allotment

comes into effect automatically upon non payment by the stipulated time and

the issuance of a notice to show cause does not negate against such

automatic cancellation and is only to give an opportunity to the allottee to, if

had made the payment within the stipulated time and which had erroneously

remained to be co-related in the records of the DDA, to satisfy the DDA in

that regard. It was further held that ordinarily an allottee desirous of

availing of / accepting the allotment and if unable to make the payment

within time for reasons beyond control, would immediately approach the

DDA for extension of time. Reliance has been placed on Balbir Prashad

Jain Vs. DDA 101 (2002) DLT 1 and Smt. Sheela Bisht Vs. DDA 55 (1994)

DLT 645.

17. I am in the present cases unable to find any error in the refusal of the

respondent DDA to condone the delay or not finding the cases of the

petitioners to be deserving of condonation of delay and restoration of

allotment. On the contrary, the respondent DDA has raised doubts as to the

bona fides of the petitioners and has expressed suspicion that the monies

belatedly deposited were deposited not by the petitioners but by others to

whom the petitioners have traded their rights under the letter of allotment.

The said reasons cannot in the circumstances aforesaid be said to be

misplaced. The Division Bench of this Court in Anil Kumar Vs. DDA

MANU/DE/0388/2008 also noticed the said illegal trade in flats. The

counsel for the petitioners herein also has not been able to explain the source

of the money ultimately deposited and has vaguely contended that jewellery

was sold for the said purpose. It is also contended that no hearing has been

given to the petitioners before rejecting their pleas for condonation.

18. I do not find any merit in any of the aforesaid reasons, if it had been

the case of the petitioners that owing to the locality being not developed or

for any other reasons they were not able to make the payment within the

stipulated time, they ought to have approached the respondent DDA for

extension of time and having not done so and having been unable to satisfy

this Court that the monies ultimately deposited are from their own source,

there is no merit in the petitions; the same are dismissed. I refrain from

imposing any cost. The monies deposited by the petitioners be refunded in

accordance with the Policy.

RAJIV SAHAI ENDLAW (JUDGE) AUGUST 23, 2011 bs/gsr (corrected and released on 20th September, 2011)