Rajpal Singh vs Delhi Development Authority
2011 Latest Caselaw 243 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI


                                 W.P.(C) 8204/2008

       RAJPAL SINGH                                       ..... Petitioners
                                 Through: Mr. R.K. Saini, Advocate.

                        versus

       DELHI DEVELOPMENT AUTHORITY           ..... Respondent
                    Through: Ms. Sangeeta Chandra, Advocate.


       CORAM: JUSTICE S. MURALIDHAR

       1. Whether Reporters of local papers may be
           allowed to see the order?                                 No
       2. To be referred to the Reporter or not?                     Yes
       3. Whether the order should be reported in Digest?            Yes

                                 ORDER

17.01.2011

1. The Petitioner prays for quashing the decision of the Respondent

Delhi Development Authority („DDA‟) communicated by a letter dated

13th October 2006 rejecting his request for allotment of an LIG flat

under the Ambedkar Awas Yojna, 1989 („AAY‟). The Petitioner prays

for a mandamus to the DDA to allot him an alternative flat in the same

area/zone at the old cost.

2. The Petitioner, who belongs to scheduled caste, was at the time of

applying for an LIG flat under the AAY, staying in an unauthorised

colony. At that point in time no house number had been allotted by the

Municipal Corporation of Delhi („MCD‟) and the Petitioner gave his

residential address as Rajeev Gali, Nehru Vihar, Dayalpur, Delhi-

110094. The Petitioner‟s priority matured in 2003. In the draw of lots

held on 31st October 2003, he was allotted Flat No. 300, Pocket 9,

Nasirpur (Dwarka), Delhi. The demand-cum-allotment letter („DAL‟),

issued on 14th January 2004 with a last date of payment as 12th June

2004, was sent to the Petitioner by the DDA on two occasions at the

same incomplete address and was returned unserved with the remark

„incomplete address.‟ According to the Petitioner, the file noting dated

19th April 2004 showed that the DDA decided to keep the case pending.

This is, however, disputed by the DDA which states that upon non-

payment of the amount by the time stipulated in the DAL, the allotment

stood automatically cancelled.

3. The Petitioner states that on 4th April 2005, he personally visited the

office of the DDA to ascertain the status of his allotment. He came to

know that in the year 2004, a DAL had been issued to him which had

been received back undelivered. The Petitioner then made a

representation on 12th April 2005 requesting that he should be re-issued

the DAL at the complete address given by him since the house number,

block number and gali number had since been provided by the MCD.

The Petitioner states that the DDA, however, sent a letter dated 24th

May 2005 informing him that since the date by which the amount

demanded under the DAL had to be paid had expired and no payment

had been made by the Petitioner, the allotment already stood cancelled

and that he could apply for refund of the registration money. The

Petitioner thereafter appeared at a public hearing but his request was

again rejected.

4. According to the Petitioner, the original file of the DDA relevant to

his case contained the following file noting dated 27th May 2005:

"there has been no response from the allottee regarding payment/documents even after issuance of SCN dated 24.5.05 and further recorded as under: (which was never received by the Petitioner). Accordingly, if agreed, we may submit the case to Director (H) II for orders to cancel the Registration/allotment and also to feed this flat in Computer for its allotment to next wait-listed Registrant to the Scheme."

5. The Petitioner states that the letter dated 24th May 2005 was not a

show cause notice. It was in fact a letter communicating for the first

time the fact of cancellation of allotment. It is pointed out that the

decision of the DDA to include the flat in question in the subsequent

draw of lots was taken only after 24th May 2005. By that date the

Petitioner had approached the DDA for restoration of the allotment.

Consequently, his case ought to have been considered under the policy

of the DDA dated 1st June 2000 as modified on 31st August 2001 and 3rd

June 2005 concerning late payment and restoration.

6. The further representations of the Petitioner through a social

organisation on 10th August 2006, 1st March 2007 and 19th September

2007 seeking restoration were unsuccessful. He applied for documents

under the Right to Information Act, 2005 and thereafter filed the present

petition on 31st October 2008.

7. In its reply to the petition, it is stated by the DDA that the case was

examined in terms of the policy dated 1st June 2000 by the

Commissioner (Housing). Since the period of delay was over one year,

the case was placed before the Vice-Chairman („VC‟) of the DDA. The

VC agreed with the decision already taken by the DDA to cancel the

allotment. It is stated that the DDA could not be held liable for sending

the DAL at the wrong address. It is asserted that the Petitioner‟s case is

not covered under the Office Order dated 1st June 2006 inasmuch as the

Petitioner had not deposited any amount. The reply affidavit of the

DDA stated as under:

"The restoration policy envisaged deposit of atleast the confirmation amount as well as 25% of the total demanded amount if the request for extension of time is upto one year and deposit of atleast 15% of the demanded amount in case, the request is made after one year. This was a measure to indicate the bona-fides of the applicant. It is also noted that normally no restoration shall be allowed where the delay is beyond one year."

8. Mr. R.K. Saini, learned counsel appearing for the Petitioner submits

that no valid reason has been given by the DDA for refusing the

Petitioner‟s request for restoration of allotment. He denies that there

was any automatic cancellation of the allotment. Referring to the noting

dated 27th May 2005 in the original file, he submits that the Petitioner

had already approached the DDA prior to decision to cancel the

allotment and include the flat in question in the subsequent draw of lots.

The allotment to another registrant in the waiting list was made only

thereafter. Relying on the judgment of this Court dated 17 th August

2007 in Writ Petition (Civil) No. 20246 of 2005, which was upheld by

the Division Bench by the judgment dated 8th August 2008 in LPA No.

82 of 2008 (Delhi Development Authority v. Jagdish Chopra), Mr.

Saini submits that the DDA ought to have exercised its discretion in

terms of the Policy dated 1st June 2000 and condoned the delay in the

Petitioner seeking restoration of allotment. He submits that in terms of

the said policy, the DDA should restore the allotment at the cost of

2004 when the allotment matured together with the restoration charges

and interest in terms of DDA‟s policy.

9. On behalf of the DDA, Ms. Sangeeta Chandra, learned counsel

submits that the case of Jagdish Chopra is not comparable with the

present case since in the said case the delay was only to the extent of 25

days. It is submitted that the Petitioner did not furnish any valid reason

for not approaching the DDA earlier than 4th April 2005. Since no

payment whatsoever had been made by the Petitioner in terms of the

DAL, his case was not considered to be a deserving one for the purpose

of condonation of delay. It is further submitted that even if this Court

were to consider the Petitioner‟s case as deserving for condonation of

delay, the DDA should be permitted to charge the current cost as the

Petitioner delayed in approaching the Court for at least three years after

being told of the cancellation of the allotment.

10. The above submissions have been considered. In the present case,

the Petitioner does not dispute that the present address furnished by him

to the DDA was incomplete and that on two occasions the DAL sent to

the address furnished by him to the DDA was returned unserved with

remark „incomplete address.‟ Therefore, this is not the case of the DDA

sending the DAL to the wrong address. This Court further proceeds on

the basis that the allotment stood automatically cancelled on account of

non-payment of the amount within the time stipulated in the DAL.

Therefore, the relevant policy of the DDA which has to be considered is

the one contained in the Office Order dated 1st June 2006 as further

modified on 31st August 2001 and 3rd June 2005.

11. As regards the policy dated 1st June 2000, this Court finds that it

was meant to give the DDA a certain amount of discretion to condone

the delay in an applicant making payments towards the allotted flat.

For a delay of up to one year the discretion to condone the delay is with

the Commissioner (Housing). For a delay of up to one year and three

months the decision is to be taken by the Principal Commissioner. For a

delay beyond one year and six months, the decision is of the VC. The

instances mentioned in the Office Order dated 1st June 2000, as

justifying the condonation of delay are merely illustrative. In other

words, there may be cases where on account of non-receipt of the DAL,

an applicant is not able to make deposit of any amount whatsoever.

12. In the considered view of this Court, in the present case the DDA

could not have possibly refused to exercise its discretion in terms of the

Office Order dated 1st June 2000 in favour of the Petitioner only

because he had not deposited either the confirmation amount or 25% of

the demanded amount. Even according to the DDA, by the time the

Petitioner approached the DDA, the allotment stood cancelled and there

was no question of the Petitioner making any payment thereafter.

13. It was urged by learned counsel for the DDA that the Petitioner had

not furnished sufficient reasons for not making payment within time.

This Court finds this ground for rejection of the Petitioner‟s request for

restoration to be untenable. The Petitioner‟s case is that he never

received the DAL. This is consistent with the stand of the DDA that the

DAL was returned unserved with the remarks, „incomplete address.‟

Consequently, there is no question of the Petitioner being expected to

make any payment towards the flat in question in terms of the DAL. On

the contrary, the fact of non-receipt of the DAL constitutes a valid

reason for not making any payment.

14. The ratio of the decision of this Court in Jagdish Chopra which has

been affirmed by the Division Bench of this Court in appeal, does apply

to the facts of the present case. Although the quantum of the delay in

the said case is 25 days and in the instant case is over a year, it does not

make any difference to the legal position that in terms of the Office

Order dated 1st June 2000, the DDA is required to examine if the

Petitioner‟s case is deserving of condonation of delay.

15. This Court does not find any valid reason given by the DDA for

refusing to exercise its discretion in favour of the Petitioner and

condone the delay in his seeking restoration of the allotment. That the

Petitioner did not receive the DAL because of the incomplete address,

that no door number could be furnished since at the relevant time the

Petitioner was residing in an uanuthorised colony and that the Petitioner

approached the DDA within a year after the expiry of the due date

given in the DAL are all factors that ought to have been weighed by the

Respondent DDA, while considering the Petitioner‟s case in terms of

the Office Order dated 1st June 2000. Additionally it was required to be

borne in mind that the Petitioner belongs to a scheduled caste and is in

need of housing.

16. It is the considered opinion of this Court that the Petitioner‟s case

was deserving of condonation of delay in terms of the DDA‟s policy, as

set out in the Office Order dated 1st June 2000 further modified on 31st

August 2001 and 3rd June 2005.

17. As regards the cost that should be charged from the Petitioner for

restoration of his allotment, this Court is of the view that in the facts

and circumstances of the case the cost prevalent as on 31 st December

2005 should be charged.

18. Consequently, the decision of the DDA refusing restoration of the

allotment in favour of the Petitioner is hereby set aside. It is directed

that the DDA, within a period of eight weeks from today, will hold a

mini draw of lots to allot to the Petitioner an LIG flat under the AAY

preferably in the same area or zone. Thereafter, within four weeks, the

DDA shall issue a DAL with a cost worked out as prevalent on 31st

December 2005. The DAL will indicate the restoration charges and

interest payable, if any, in terms of DDA‟s policy. On payment of the

amount demanded, and completion of all formalities, the Petitioner will

be put in possession of the flat in question within a further period of

eight weeks thereafter.

19. The petition is disposed of in the above terms, but in the

circumstances, with no order as to costs.

S. MURALIDHAR, J.

JANUARY 17, 2011 ak