Mr. Sudershan Kumar vs Dda
2011 Latest Caselaw 4087 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 23rd August, 2011

+                                WP(C) 7584/2008

MR. SUDERSHAN KUMAR                                          ..... Petitioner
                Through:                Mr. Lalit Gupta, Mr. Deepak
                                        Aggarwal, Mr. Amit Pandey and
                                        Mr. M.H. Khan, Advocates.

                                     Versus
DDA                                                       ..... Respondent
                          Through:      Ms. Sangeeta Chandra Advocate.

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?


RAJIV SAHAI ENDLAW, J.

CM.No.168/2011 (of the petitioner for restoration of the writ petition dismissed in default on 24th November, 2010) in WP(C) 7584/2008

1. The proof of payment of costs has been filed. Reply of the

respondent DDA to the application has been perused.

2. It is the contention of the counsel for the respondent DDA that the

petitioner had strategically got the writ petition dismissed before the

Bench which had heard similar writ petition being W.P.(C) 7581/2008

titled Harvinder Singh v. DDA which was being taken up along with this

writ petition and was dismissed on 14 th March, 2011.

3. Though there is merit in the said contention but it is deemed

appropriate to hear this writ petition also and to dispose of the same on

merits. Accordingly the application is allowed and the writ petition is

restored to its original position.

W.P.(C) No. 7584/2008.

4. The arguing counsel for the petitioner is not available and

adjournment is sought. The same is opposed by the counsel for the

respondent DDA. In any event, considering what is recorded hereinabove,

it is not deemed appropriate to adjourn the writ petition. The counsel for

the respondent DDA has been heard.

5. The petitioner claims, to be a registrant for an LIG flat in the

Housing Scheme of the year 1979 of the respondent DDA; the

registration was subsequently got converted to for an MIG flat; an MIG

flat was allotted and a demand letter dated 7th-15th January, 2004 issued to

the petitioner; the petitioner in accordance with the said demand was to

make payment of `11,56,060/- latest by 13th July, 2004 and upon failure

to make such payment the allotment was to automatically stand cancelled;

the petitioner however deposited the said amount on 10 th October, 2005.

This petition has been filed seeking mandamus for delivery of possession

of the flat allotted and execution of conveyance deed with respect thereto.

Interim relief of restraining the respondent DDA from allotting or

handing over possession of the said flat to anyone else sought.

6. Notice of the petition was issued but no interim relief granted. The

petitioner as well as Shri Harvinder Singh aforesaid preferred LPA

No.760 & 761/2008 to the Division Bench against the order of refusal of

interim relief and which appeals were dismissed vide common judgment

dated 12th December, 2008.

7. The respondent DDA in its counter affidavit has stated that the

petitioner having failed to deposit the demanded amount even within the

maximum time permitted therefor, the allotment stood cancelled and the

payment by the petitioner thereafter is of no avail. It is stated that the

delay in the present case is of 454 days while in Harvinder Singh the

delay was of 722 days.

8. This Court in Harvinder Singh has held that the Policy of DDA

concerning condonation of delay in making the payment requires the

allottee to show that the case is a "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. It

was further held that payment after a delay does not give any right to

obtain possession of the flat.

9. On inquiry it is told that no appeal in the case of Harvinder Singh has

been preferred.

10. The counsel for the respondent DDA has thus contended that this

petition is also liable to be dismissed in accordance with the judgment in

Harvinder Singh.

11. The counsel for the petitioner who appears now has however urged

that the facts in the present case are different from that in Harvinder Singh.

Attention is also invited to a notice dated 23rd September, 2005 issued by the

respondent DDA in this regard calling upon the petitioner to show cause

within 15 days as to why the allotment be not cancelled. It is thus contended

that the allotment did not stand cancelled automatically on non deposit of the

demanded amount by 13th July, 2004. It is further contended that the

petitioner within 15 days of the receipt of the show cause notice i.e., on 10 th

October, 2005 deposited the entire amount with the DDA. Attention is also

invited to a letter dated 1st February, 2006 of the DDA to the petitioner

calling upon the petitioner to give the reason for delay in depositing the

payment, so that the case could be processed further and to the letter dated

3rd October, 2006 of cancellation of allotment. It is thus urged that the

petitioner prior to the cancellation had already deposited the payment.

12. The counsel for the DDA has contended that a similar show cause

notice had been issued in Harvinder Singh as also noticed in the said

judgment and notwithstanding the same the Writ Petition was dismissed. It

is further urged that by mere issuance of letter dated 1 st February, 2006 and

cancellation letter dated 3 rd October, 2006 would not affect automatic

cancellation in terms of the demand cum allotment letter dated 7th-15th

January, 2004. It is yet further contended that the petitioner in the present

case maintained an absolute quietus after admitted receipt of demand cum

allotment letter and did not approach the DDA for extension of time for

payment. It is yet further contended that even thereafter no reason

whatsoever for the delay was indicated, not even after surreptitious deposit

of the amount in the account of the DDA. It is yet further contended that

even in the Writ Petition, no reason whatsoever for delay has been stated and

only in the rejoinder to the counter affidavit of the DDA it is vaguely stated

that the petitioner was suffering from hypertension and depression and other

problems in the family.

13. The counsel for the petitioner rejoins by contending that the petitioner

was not in receipt of the show cause notice dated 23rd September, 2005 and

the letters dated 1st February, 2006 and 3rd October, 2006 (supra) all of

which have been filed with the counter affidavit of DDA and was not aware

that the petitioner was required to give any reasons for delay. He has further

contended that the issuance of the letter dated 1 st February, 2006 shows that

had the petitioner received the same and had furnished reasons for delay to

the respondent DDA and had the respondent DDA been satisfied therewith,

the time for payment would have been extended and cancellation would not

have come into force. He urges that since the respondent DDA admittedly

has a policy of condoning the delay in payment and has in other cases been

so condoning delay even of more than 454 days, the petitioner is entitled to

consideration of his case by the authority of the DDA competent to so

condone the delay. He states that the petitioner is willing to withdraw this

writ petition subject to the direction being given to the respondent DDA to

consider the representation of the petitioner for condonation of delay.

14. The counsel for the respondent DDA has vehemently opposed the

claim for granting liberty to the petitioner to represent to the DDA and of a

direction to the DDA to consider the said representation. It is urged that the

petitioner having preferred the Writ Petition and the matter having reached

the final stage, the occasion for grant of any liberty to the petitioner does not

arise.

15. Though the proposal of the counsel for the petitioner of dismissing the

Writ Petition as withdrawn with liberty to the petitioner to represent to the

concerned authority of the DDA for condonation of delay and directing the

DDA to consider the said representation appears attractive particularly when

DDA has a policy of in appropriate cases condoning the delay and when the

case of the petitioner has admittedly not been considered by the said

authority of DDA but the Apex Court recently in State of Uttaranchal Vs.

Sunil Kumar Vaish MANU/SC/0941/2011 has held that the Courts ought

not to remand the matters for further / afresh consideration when the dispute

is otherwise ripe for adjudication by courts and that duty is cast on the

judges to give finality to the litigation so that the parties would know where

they stand. Undoubtedly such an order as now sought by the petitioner

would result in, not only the respondent DDA again considering the matter

after the question has remained pending in this Court for the last three years

but upon DDA taking a decision unfavourable to the petitioner, would lead

to a further round of litigation and which practice has been deplored by the

Apex Court in the judgment aforesaid. It has as such been deemed

appropriate to consider the matter on merits.

16. It is not in dispute that the petitioner in accordance with the demand

cum allotment letter was to pay the demanded amount latest by 13 th July,

2004 and non-payment was to result in cancellation / forfeiture of allotment.

The quietus maintained by the petitioner during the said time of six months

was definitely indicative of the petitioner's unwillingness to accept the

allotment.

17. The forfeiture came into effect automatically upon non-payment by

13th July, 2004. The petitioner even thereafter remained quiet. Though the

petitioner now claims to have deposited the amount within 15 days of the

show cause notice dated 23rd September, 2005 but such was not the case of

the petitioner in the Writ Petition. The petitioner in the Writ Petition neither

disclosed receipt of any such show cause notice nor the deposit in terms of

the demand therein. It is thus clear that the petitioner, upon the said show

cause notice being disclosed by the respondent DDA is wanting to take

advantage thereof. It was not the case of the petitioner in the petition that

automatic cancellation on 13th July, 2004 stood waived by issuance of the

said show cause notice. The case of the petitioner has to stand on its own

legs and the petitioner cannot take a shifting stand. The petition was filed

contending that the payment on 10 th October, 2005 was in terms of the

demand cum allotment letter and was accepted by the respondent DDA. The

said case has now been abandoned.

18. Not only so, there is not a single letter from the petitioner to the DDA

even thereafter for a period of three years till the legal notice dated 29 th

September, 2008 claimed to have been got sent by the petitioner to the DDA.

It again shows that the petitioner was in no hurry for the flat.

19. The flats are allotted by the DDA as a welfare measure to address

acute housing problem in the city and not for trading. The conduct of the

petitioner in the present case of maintaining quietus after receipt of demand

cum allotment letter and remaining quiet for three years even after payment

is indicative of the petitioner having assigned his rights to some other

persons for consideration and the present Writ Petition being pursued by

some other person and which cases are not unknown, the market price of the

flats being much higher than the price charged by DDA. The Division

Bench of this Court in Anil Kumar Vs. DDA MANU/DE/0388/2008 also

noticed such illegal trading in flats. During the hearing, the source from

which the payment was made by the petitioner was enquired into. The

counsel for the petitioner states that he has no instructions in this regard.

20. The petitioner, having not based his case on the show cause notice

dated 23rd September, 2005 and on the letter dated 1st February, 2006, cannot

now get any benefit thereof. In any event the show cause notice or the letter

of cancellation does not indicate that the automatic cancellation in

accordance with the terms of the demand cum allotment letter of the year

2004 had not come into effect. Such show cause notice appears to have been

issued only to confirm that the payment within the stipulated date i.e. by 13 th

July, 2004 had not been made by the petitioner. The payments demanded by

the respondent DDA are required to be deposited in a bank account and there

may be errors in correlating a particular payment with the concerned flat.

The notice to show cause was by way of abundant caution and called upon

the petitioner to, if he had made the payment within the stipulated time, to

furnish the proof thereof. It thus cannot be said that by issuance of the show

cause notice dated 23rd September, 2005 the allotment which stood cancelled

on 13th July, 2004, was revived.

21. Once it is held that the cancellation had come into effect restoration

was not a matter of right. Undoubtedly the respondent DDA has a

restoration policy and under which policy various authorities/officers have

been entrusted with powers to condone the delay in payment upto certain

period but only in "deserving cases" and not where the allottee is at fault.

Ordinarily an allottee desirous of availing of / accepting the allotment and if

unable to make payment within time for the reasons beyond control, would

immediately approach the DDA for extension of time. As aforesaid, nothing

of this sort was done in the present case. Rather, notice of the petition was

got issued by misrepresenting the facts to this Court and the petitioner, after

the respondent DDA has filed its counter affidavit, sought to fit his case

therein. Such conduct amounts to abuse of the process of this Court.

22. Moreover, the present case does not fit into the category of "deserving

case" within the meaning of the policy of restoration of the respondent

DDA. The petitioner is admittedly at fault. If the reasons as given in the

rejoinder of hypertension and depression and family problems, without even

filing any document were to constitute reasons for restoration, it would

tantamount to granting unlimited period for payment in pursuance to the

allotment cum demand letter; the same would affect the functioning of the

DDA of making houses available to deserving citizens at the earliest.

23. This Court in Balbir Prashad Jain Vs. DDA 101 (2002) DLT 1,

relying on the judgment of the Division Bench in Smt. Sheela Bisht Vs.

DDA 55 (1994) DLT 645 interpreted the similar demand-cum-allotment

letter and show cause notice issued by DDA to mean that though allotment

stands automatically cancelled but can be restored on payment with interest

and other charges and subject to availability of allocated flat.

24. There is thus no merit in the petition. The same is dismissed. No

order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) AUGUST 23, 2011 Bs

(corrected and released on 01.09.2011)