Krishan Chander vs Dda
2011 Latest Caselaw 4161 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Date of decision: 26th August, 2011

+                              W.P.(C) No.13302/2005

       KRISHAN CHANDER                             .....Petitioner
                   Through: Mr. Sumit Bansal, Ms. Sumi Anand &
                   Mr. Abhinav Tandon, Adv.


                                          Versus
       DDA                                                      ..... Respondent
                              Through:     Ms. Shobhana Takiar, Adv.

                                          AND

                                    W.P.(C) 9051/2006

       HANS RAJ DUA                                               ..... Petitioner
                              Through:     Mr. Sumit Bansal, Ms. Sumi Anand &
                                           Mr. Abhinav Tandon, Adv.
                                         Versus
       DDA                                                        ..... Respondent
                              Through:     Mr. Arjun Pant, Adv.

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?



W.P.(C) No.13302/2005 & 9051/2066                                  Page 1 of 12
 RAJIV SAHAI ENDLAW, J.

1. The petitioner in W.P.(C) 13302/2005 impugns the decision dated 13 th

May, 2005 of the respondent DDA communicated to the petitioner vide letter

dated 26th July, 2005, of cancellation of allotment earlier made to the

petitioner of Plot No.48 ad-measuring 60 sq. mtr. in Pocket B-4, Sector-17

of Rohini Phase-II under Rohini Residential Scheme, 1981 and seeks

mandamus for being put into possession of the said plot of land. Notice of

the said petition was issued and vide order dated 19th September, 2005

respondent DDA directed to withdraw the said plot of land from the draw

proposed to be held on 21st September, 2005 and vide order dated 20th

February, 2006 which was made absolute on 9th April, 2009, the respondent

DDA restrained from allotting the said plot to any third party.

2. W.P.(C) 9051/2006 has been preferred by an allottee of the year 2003

of Plot No.42 ad-measuring 60 sq. mtr. in Pocket-B-5, Sector-17 of Rohini

Phase-II who was put into possession of the said plot on 1st February, 2005,

complaining of the respondent DDA having allotted and delivered

possession of the plot without development and without providing any

facilities/amenities therein and seeking a direction for provision thereof.

Notice of the said petition was also issued.

3. Both petitions thereafter are being taken up together. From time to

time orders were made with respect to the state of affairs prevailing in the

locality in the years 2003/2005 and the respondent DDA directed to file

affidavits as to the state of development and provision of various

facilities/amenities in the locality.

4. The counsels have been heard. The counsel for the petitioners has

stated that the area has since been developed and all facilities/amenities

provided and he has instructions not to press W.P.(C) 9051/2006 which has

become infructuous. Arguments have thus been addressed on the other writ

petition.

5. The Demand-cum-Allotment letter in W.P.(C)13302/2005 is dated 1 st -

5th September, 2003 and of the total premium of `7,18,872/-. The petitioner

therein was required to pay `2,38,822 latest by 4th November, 2003,

`3,59,436/- latest by 3rd January, 2004 and the balance `1,07,831/- by 2nd

February, 2004. The petitioner though paid the first installment within time

on 4th November, 2003, paid the second and the third installments on 11th

April, 2005 i.e. after delay of more than one year. The respondent DDA

issued a notice dated 20 th September, 2004 to show cause and effected the

cancellation on 16th February, 2005. The petitioner at no time till then, made

any communication with the respondent DDA, neither claiming any

extension of time for making payment nor giving any explanation for the

delay; not even in response to the show cause notice. The first representation

in this regard was made only on 1 st August, 2005 by the attorney of the

petitioner who is claimed to be the brother of the petitioner.

6. The counsel for the petitioner has argued that the petitioner is a

resident of Canada and though had by the stipulated dates remitted the

monies for deposit with the respondent DDA but the same could not be

deposited for the reason of there being an illness in the petitioner's family

in India and the money being used up in the same. It is further argued that

the respondent DDA has a Policy for condonation of delay and has been

condoning delays of much longer time than in the instant case. Reliance in

this regard is placed on:-

i. Judgment dated 6th July, 2006 of this Court in W.P.(C)

11148/2005 titled Ashok Kumar Bisarya v. DDA;

ii. Judgment dated 19th September, 2005 of this Court in W.P.(C)

12517/2005 titled S.R. Yadav v. DDA;

iii. Judgment dated 11th January, 2008 in LPA 2594/2005 titled

DDA vs. Ms. Swaran and;

iv. DDA v. R.S. Yadav 2002 (V) AD (Delhi) 592 (FB).

7. The counsel for the petitioner has handed over in the Court the Policy

of the respondent DDA for condonation of delay particularly with respect to

the Rohini Residential Scheme. The petitioner has in the petition also given

particulars of other cases where the respondent DDA has condoned delays.

He has contended that the case of the petitioner has not been considered in

accordance with the said Policy and/or by the Lt. Governor, Delhi who as

per the said Policy is the Competent Authority to condone the delay as in the

present case.

8. On enquiry, as to why the petitioner, if a resident of Canada, needs the

plot aforesaid, it is stated that the respondent DDA has a Policy of making

allotments in favour of Non-Resident Indians as the petitioner is and the

Policy of the Reserve Bank of India also permits acquisition of the plot by

the petitioner and there was no restriction in this regard in the Rohini

Residential Scheme of the year 1981 under which the petitioner had

registered and in pursuance to which registration, allotment aforesaid was

made to the petitioner. It is also contended that the allotment in favour of the

petitioner has not been cancelled for the reason of the petitioner being an

NRI and hence the said query is irrelevant.

9. The counsel for the petitioner relying on the orders made from time to

time with respect to the state of development and provision of amenities and

facilities in the locality, has also contended that the respondent DDA was not

entitled to claim the full price from the petitioner and for the reason of non-

payment whereof allotment has been cancelled. Reliance in this regard is

placed on K. Bhattacharjee v. DDA 1996 (38) DRJ 343 (DB).

10. The counsel for the petitioner has thus contended that either this Court

itself should set aside the cancellation and direct the petitioner to be put into

possession of the plot or if not inclined to do so, direct the case of the

petitioner to be considered by the Lt. Governor, Delhi for condonation of

delay.

11. Before discussing the merits of the aforesaid contentions, the defence

of the respondent DDA may be considered. The counsel for the respondent

DDA has argued that the petitioner in his application dated 16 th March, 1981

for registration under the scheme aforesaid though had given his address as

that of Punjab and though had disclosed that he was not a resident of Delhi,

had declared that he was a resident of India. Attention is invited to the

Application Form submitted by the petitioner and which expressly required

the applicants to study carefully the terms & conditions and warned them

that if the application was incorrectly filled up, it would be liable for

rejection. Attention is further invited to the declaration of the petitioner of

the information given in the Application Form being correct.

Attention is next invited to the Passport of the petitioner to show that the

petitioner is a Canadian citizen. It is contended that the criteria adopted to

ascertain the eligibility for allotment of plots under the Rohini Residential

Scheme did not permit the citizen of a foreign country on the date of the

draw for allotment, to be considered for allotment under the Scheme. It is

thus contended that the petitioner, on the date of draw of lots in pursuance to

which allotment was made in his favour, being a Canadian citizen, is in any

case ineligible for allotment and the writ petition is liable to be dismissed on

this ground alone.

12. It is further the case of the respondent DDA that the present petition is

also being pursued not by the petitioner but is being pursued by his attorney

only. It is thus contended that the petitioner has no interest in the plot.

Attention is invited to the General Power of Attorney executed by the

petitioner in Canada on 12 th November, 2004 whereunder the attorney has

been empowered to sell/transfer the plot. It is further urged that the said

power of attorney does not even authorize the attorney to institute the

present petition and thus the very institution of this writ petition is without

authority and bad.

13. The counsel for the respondent DDA has also contended that of the

156 plots allotted contemporaneously, allottees of 137 took possession

without any objection whatsoever and the ground taken by the petitioner

now of the non-development in the locality is an afterthought.

14. The counsel for the petitioner in rejoinder though has not been able to

controvert any of the aforesaid facts but has contended that the attorney is

none other than the brother of the petitioner. It is urged that the petitioner

being in Canada has appointed his brother as his attorney to pursue this

petition.

15. A perusal of the Power of Attorney does indeed show that though the

same empowers the attorney to file suits for recovery of rent and for eviction

of tenant but does not empower the attorney to institute any other legal

proceedings with respect to the land. The Power of Attorney is executed only

with respect to the plot aforesaid and not with respect to any other property

or affairs of the petitioner. This writ petition has remained pending for the

last six years. The counsel for the petitioner has been unable to show any act

of ratification by the petitioner of the institution of the writ petition. The

same is indicative of the petitioner having not even visited this country in the

last six years and is also indicative of the petitioner personally having no

interest in the plot.

16. The empowerment of the attorney to sell the plot is also strange. On

the date of execution of the power of attorney, the allotment already stood

cancelled. If at all any Power of Attorney was required, the same was

required to apply for setting aside of the cancellation. However rather than

vesting the attorney with such powers, the attorney was empowered to sell

the property.

17. It is not in dispute that the allotment aforesaid was for self use and not

transferable and there is thus merit in the argument of the counsel for the

respondent DDA of the entire purport of the present proceedings being to

avail of the plot of land allotted at low rates and to sell off/transfer the same

at a huge premium. This Court would certainly not come to the rescue of

such a petitioner and not exercise the discretion in his favour. The schemes

of the respondent DDA are intended to provide housing to citizens and are

not intended to enable interlopers or persons dealing in property for

commercial gain.

18. Though the counsel for the petitioner contended that the petitioner

enjoys dual citizenship but notwithstanding the respondent DDA having

filed an affidavit taking the aforesaid pleas, no rejoinder has been filed

showing that the petitioner on the date of draw of lots was an Indian citizen.

The petitioner being clearly ineligible for allotment, it is felt that even if

there were to be any merit in the claim of the petitioner of his case of delay

in payment having not been examined by the Competent Authority under the

Policy of DDA, no purpose would be served in adjudicating the same as

much as the petitioner would still remain ineligible for allotment.

19. The petition is therefore liable to be dismissed on this ground alone.

20. Even on the aspect of delay, I am unable to find any merit in favour of

the petitioner. The Demand-cum-Allotment letter clearly provided that upon

failure to make the payments by the stipulated date the allotment shall stand

automatically cancelled. Notwithstanding the said condition and

notwithstanding the default, neither any application at the relevant time was

made seeking extension of time or explaining the delay, nor at any time till

about six months after the formal intimation of cancellation. Such conduct

shows that there was no cause for delay. There is no explanation whatsoever

as to why, even if payment could not be made in time, representation was

not made then. The scheme of the respondent DDA of condonation of delay

in making payment is intended for bona fide delays and/or where the

allottees for reasons beyond their control are unable to make the payment

and is not intended to be used as an afterthought. A bona fide allottee unable

to make payment is required to immediately approach the DDA in this

regard. The petitioner in the present case maintained a stoic silence and

clearly indicated that he was not interested in plot. The representation was

made only when interest as aforesaid of the attorney was created in the plot

by execution of Power of Attorney. For this reason also, no case for

condonation is made out.

21. I am also of the view that the automatic cancellation which had come

into effect in terms of letter of allotment was not in any way affected by the

show cause notice issued on 20 th September, 2004. The same was only

intended to give a chance to the petitioner, if had made the payment in the

bank account of the respondent DDA and which may have escaped notice of

the respondent DDA in reconciling its accounts, to intimate of the same. The

petitioner did not respond to the said show cause notice also though now

claims that the same was not received.

22. There is thus no merit in W.P.(C) 13302/2005; the same is dismissed;

the interim order is vacated; the amounts deposited by the petitioner with

respondent DDA be refunded to the petitioner in accordance with the Policy

of DDA in this regard. I refrain from imposing any costs on the petitioner.

RAJIV SAHAI ENDLAW (JUDGE) AUGUST 26, 2011 pp (corrected and released on 8th September, 2011).