Narain Das Arora vs Dda & Ors.
2011 Latest Caselaw 268 Del

1.
*IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment delivered on: 18th January, 2011
+      LPA 169/2010

       NARAIN DAS ARORA                        ..... Appellant
                    Through Mr. R.K. Bhardwaj & Mr. Dheeraj
                    Bhardwaj, Advocates.

                     versus

       DDA & ORS.                                     ..... Respondents

Through Ms. Sangeeta Chandra, Advocate for DDA.

CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the Reporter or not ? Yes.

3. Whether the judgment should be reported in the Digest ? Yes.

DIPAK MISRA, CJ

The present intra-Court appeal is directed against the order dated

9th December, 2009 passed by the learned single Judge in Writ Petition

(Civil) No. 7822/2009.

2. The facts which are requisite to be stated for adjudication of this

appeal are that the original writ petitioner-Narain Das Arora (since

deceased) pursuant to an advertisement issued by the respondent-DDA

dated 6th June, 2004 published in „Hindustan Times‟, Delhi applied for

allotment of a two bed room flat under the Housing Scheme-2004 vide

application form No. 096652 on 30th June, 2004. On 3rd July, 2004, he

deposited the application form No. 096652 along with the bank draft

of Rs.50,000/- with the UTI Bank.

3. As set forth, the results of the computerized draw held by the

DDA was published in „Hindustan Times‟, Delhi on 13 th August, 2004

in which the application form number of the original writ petitioner

was reflected and the petitioner was declared successful. When he

contacted the competent authorities of the DDA, he found that against

his application a wrong name had been shown. It was contended

before the writ Court that despite being successful, the name against

the application form was incorrectly mentioned and, therefore, he was

entitled to get benefit of allotment. That apart it was also urged that

the initially deposited amount had not been refunded. In this backdrop

prayers were made for issue of command to allot a flat and also to

grant compensation for the inaction of the respondents.

4. The stand put forth by the late Narain Das Arora was combated

by the DDA on the ground that at the stage of scrutiny of the

application forms it was noticed that the two forms were received by

the bank, one form bearing No. 096652 that was received from the said

late Narain Das Arora and another application form from one Mr.

Amar Deep Singh. It was put forth that while accepting the forms, the

bank allotted identical number to both the forms. The application form

number of the petitioner was 096652 and the application form number

of Mr. Amar Deep Singh was 96652. The system department of the

DDA reported the error which crept in on the mistake committed by

the bank. It was contended by the respondent-DDA that such a

situation had arisen in the past as well and in order to solve the

problem, prior to processing, as per the practice adopted by the DDA, a

digit 7 is added to one of the application form number and thereafter a

check list was generated. It was submitted that pre-fix „7‟ was added

by the computer itself against the application of the writ petitioner as

per the software and the form numbers could not be manually changed.

To put it differentially, various justifications were given to highlight

that the writ petitioner could not have gained any kind of advantage

because of inadvertent acknowledgement of an identical number.

5. The learned single judge upon hearing the learned counsel for

the parties and taking note of the factual matrix in toto came to hold as

follows:-

6. ......The DDA in turn did not make any correction in the list, which was received from the Bank in view of the difficulty expressed on account of the software. However to resolve the issue before the draw of lots and to give a separate identity to both the application forms, a digit „7‟ was added to the form of the petitioner. No doubt the name of the petitioner appears in the list of successful applicants in the Hindustan Times, daily, however, in reality the digit „7‟ was added before the form of the petitioner prior to the number being added in the draw of lots. I am

satisfied that the name of the petitioner appeared in the list of the successful applicants by mistake. Except for the inconvenience which may have been caused to the petitioner, I find there is no infirmity in the steps taken by DDA, the name of both the applicants were added in the draw of lots and the petitioner was not found successful. .."

6. Questioning the correctness of the order, learned counsel for the

appellant- Mr. R.K. Bhardwaj submitted that DDA had created a

piquant situation as a result of which the appellants, who are the legal

heirs of the original writ petitioner, have suffered and hence, they are

entitled to the flat in question. It is further urged by him that the

amount which was deposited towards the registration fee has not yet

been refunded. It is his worthy submission that though the learned

single Judge has noted the fact that some inconvenience might have

been caused to the writ petitioner but the allotment in favour of the

Amar Deep Singh is not incorrect and in any case the allotment would

not have been in favour of the original writ petitioner but did not

proceed to deal with the issue of grant of compensation. The learned

counsel proponed that the amount has so far not been refunded and the

withholding of the amount by the respondent is absolutely inexplicable

and exposes the apathy of the respondent to deal with justified

grievance of the appellants.

7. Resisting the aforesaid submissions, Ms. Sangeeta Chandra,

learned counsel for the respondent-DDA has submitted that the order

passed by the learned single Judge is absolutely infallible inasmuch as

when excessive applications seeking allotment are received, a mistake

can occur at the hands of the bank and hence, no right can be said to

have been created in favour of the original applicant. It is also

contended by her that the order passed by the learned single Judge is in

accordance with the order dated 23rd August, 2008 passed by the

another learned single Judge in a similar circumstance in Writ Petition

(Civil) No. 16025/2004 and, therefore, it has to be regarded as

flawless. The learned counsel also canvassed that there was no

manipulation and there could not have been any inasmuch as the whole

thing is systematically computerized and, therefore, there is no remote

possibility for any kind of individual machination. As far as the

amount of refund is concerned, learned counsel submitted that the

DDA has entered into correspondence with the bank for refund of the

amount and it might have been refunded in the meantime.

8. As far as the first aspect is concerned, we are inclined to agree

with the view taken by the learned single Judge inasmuch as in the case

of Pramod Kumar versus DDA (Writ Petition (Civil) No. 16025/2004

decided on 23rd August, 2005), the learned single Judge in paragraphs

8 to 11 in the similar draw has dealt with the controversy elaborately

and in the ultimate eventuate has held as follows:-

"8. Record of the respondent, however, showed that this has ultimately resulted in no prejudice. As per the practice and procedure stated to be adopted for conducting a draw of lots, it is contended that the draw of lots and allotments thereof are never made through the application numbers. The procedure which is stated to be followed for the said draw of lots is that each of the applicant who submit the application in a scheme, is allotted a "Random Number" which is not in seriatum to the application numbers but is totally different from the same. It is stated that an application number say, 1500 (which is higher in seriatum) may be allotted random number 45000 while the application number 750 may be allotted random number 47000. This Random Number is stated to be allotted by the computer in which application numbers are fed. After the allotment of said Random Numbers to each of the applicants, the records maintained by respondent/DDA is stated to reflect all the details of a particular applicant including the application number, random number, name, father‟s name, preferences etc.

9. The Random Numbers so assigned to each applicant are then stated to be arranged in seriatim, in ascending order, starting from serial number 1 till the last total number of applicants, which in the present case was 93775. Thus, each Random Number is assigned a "Random Serial Number" in accordance with its configuration assigned while juggling the application numbers for the assignment of a "Random Number". This process is stated to be adopted to avoid any mischief and foul play and to eradicate chances of collusion or fraud during the holding of draw of lots, whereby the application numbers are known to several

persons and officials.

10. The process does not end here. After the Random Serial Numbers are assigned, the next step is stated to be picking up of "Lucky Random Serial Number". This Lucky Random Serial Number is stated to be picked, one from each of the five boxes (in the present case) containing certain tokens/coins bearing numbers from 0 to 9, depending upon the total number of applicants placed in the draw. One number is stated to be picked from one of the said boxes by independent Judges, who are stated to be Senior Government Officers. The numbers picked from each of the boxes is joined together to form, what is known as a "Lucky Random Serial Number". This Lucky Random Serial Number is stated to form the basis of the allotment to be made to the applicants. The first allottee is stated to be the one having the said "Lucky Random Serial Number" and thereafter each "Random Serial Number" placed after the said Lucky Serial Number is picked up and depending upon the preferences given by the said applicant, allotment continue to be made in ascending order from the said Random Serial Numbers.

11. In the present case, the Random Number assigned to the petitioner against his erroneously assigned application No. 736565 was 40271, whereas the Random Number assigned to Sh. Mohan against his erroneously assigned application No. 036565 was 110010. While arranging the said Random Numbers in seriatum, the Random Serial Number allotted to the petitioner was 28755 while the Random Serial Number allotted to Sh. Mohan was 78546. The Lucky Random Serial Number which was picked up in the draw of lots was

76840. Thus, the petitioner whose random serial number was prior to the lucky random serial number picked in the draw was automatically excluded, since the successful applicants were considered in ascending order after the lucky random serial number. Consequently, Sh. Mohan was picked up in the ascending order according to the availability of flats and on account of his random serial number assigned to him."

9. We are in agreement with the aforesaid view. Thus, we are not

in a position to accept the submission of Mr. R.K. Bhardwaj, learned

counsel for the appellant that the original writ petitioner, the

predecessor-in-interest of the present appellants was entitled to a flat

on the basis of the draw.

10. The controversy does not rest here. As is evident, the learned

single Judge has appositely observed that inconvenience was caused to

late Narain Das Arora. Apart from the inconvenience, as we find the

lis in hand projects a scenario which cannot be ignored or its impact on

a common man cannot be marginalized. The original writ petitioner

had deposited a sum of Rs.50,000/- in the bank on 3rd July, 2004.

There is no dispute that the DDA had a tie up with the UTI Bank as

DDA had chosen the said bank. Whether fault lies with the bank or

with the DDA is totally inconsequential. What is required to be

determined is whether there has been refund of the amount and further

by virtue of inconvenience caused, the original writ petitioner suffered

and thereafter his widow and other legal heirs have also suffered loss,

agony, languish and the inconvenience and whether they would be

entitled to any compensation. As is evident from the material brought

on record, late Narain Das Arora had approached the DDA on 16 th

August, 2004 by entering into a correspondence. The said letter reads

as follows:-

" I am shocked to know that wrong name has been shown against the successful draw in r/o Application form No. 96652 for DDA‟s Two Bed Rooms Housing Scheme-

2004 with preference at Mayur Vihar, Delhi.

I submit that I had submitted my application form no. 96652 in the UTI Ltd.

Bank, Main Branch, Barakhamba Road, Statesman House, New Delhi with preference of Mayur Vihar, Delhi.

I look forward for immediate action in the matter please."

11. As is luminescent, no reply to the same was given and as it

appears it had fallen on deaf ears. Thereafter, as is demonstrable on

28th February, 2006 late Narain Das Arora visited the office of the

DDA and handed the following communication:-

" Kindly refer to my repeated requests in person as well as in written on the above mentioned subject but to no response towards my allotment till this date from your goodself/DDA.

I bring to your notice that I had

submitted my application form No. 96652 in the UTI Bank Ltd., Main Branch, Barakhamba Road, Statesman House, New Delhi with my preference at Mayur Vihar Phase-I. The amount of application money still stands deposited with the Bank.

I once again request for an immediate action in the matter within one month before I refer my case to the Hon‟ble Chief Justice/Hon‟ble High Court of Delhi as I smell a foul play in the allotment of flats by the DDA officials to their favourites who please them.

I fail to understand as to why the allotment has not yet been made to me when I have since been declared successful in the draw of lot against my application form No. 96652 as on record.

Looking forward for the needful for the allotment of flat please."

12. Though the said letter was received in the office, the DDA chose

to maintain a sphinx like silence possibly thinking golden silence

should be the "Rule of the Day". As nothing happened, the writ

petition was filed on 2nd March, 2009. A stand was taken in the writ

petition that the amount has not been refunded. The DDA in its

counter affidavit in paragraph 9 has stated so:-

"9. That the contents of para 9 of the writ petition pertains to the Respondent No. 3/UTI Bank. However, it is submitted that DDA has written a letter dated 21.7.2009 to the Manager, Axix Bank (Formerly UTI Bank), Statesman House, Bara Khamba

Road, New Delhi to furnish the status report of confirmation of refund of registration money in respect of Application Form No. 96652 to Shri Narain Dass Arora under Two Bedroom Housing Scheme-2004 and the reply of the Bank is still awaited. Copy of the letter dated 21.7.2009 is annexed hereto and marked as Annexure R2."

13. In the rejoinder affidavit in reply to said paragraph, it has been

mentioned that the letter dated 21st July, 2009 written by the DDA to

Manager, UTI Bank now known as Axis Bank is an afterthought and

further the bank has not refunded the registration amount against

application form No. 96652.

14. Be it noted, the lot was drawn on 12th August, 2004. The

mistake as is the admitted position, was found immediately. As has

been indicated hereinbefore, late Narain Das Arora entered into

correspondence at the earliest but no action was shown. Inaction by a

statutory authority specifically in a case of this nature is inconceivable.

The mistake with regard to allotment may be a genuine one but

definitely non-refund of the amount cannot be regarded as a sanguine

act. There is total indifference. The letters were not replied. It is

absolute impassivity and reflection of attitude of non-concern by the

authorities who are required to act in quite promptitude being argus-

eyed. The alertness or vigil is entirely absent. It would come within

the realm of total inaction whereas statutory authorities are required to

act with sensitivity and not deal with the citizens who are aspirant to

get some accommodation may be with the process of lottery and retain

their registration amount for such a long period.

15. The learned counsel for the DDA would submit that the mistakes

of this nature do crop up. The learned single Judge has held that some

inconvenience might have been caused. True it is, there is no material

to hold that the amount has not yet been refunded but there can be no

scintilla of doubt that the amount was not refunded, till the DDA

communicated with the bank in the later part of July, 2009. The bank

also has not stated anything that the money has been refunded. Regard

being had to the inconvenience caused and taking note of the fact that

Rs.50,000/- has been withheld by the DDA for a period of more than

five years, we are inclined to grant compensation of Rs.1lac apart from

the amount that has been deposited. Thus, the entire sum would come

to Rs.1,50,000/-. Be it noted, while fixing the said sum, we have taken

note of the inconvenience caused to the original petitioner and the

present appellants, the apathy of the respondents which compelled the

appellants to be dragged into a litigation of this nature, the expenses

occurred in litigation, the retention of the amount and above all the

inaction on the part of the authorities of the respondent. The amount

shall be paid by way of bank draft drawn on a nationalized bank within

a period of four weeks. The draft shall be sent in the name of the wife,

viz., Smt. Raj Kumari Arora and the same shall satisfy the claim of the

legal representatives.

16. Consequently, the appeal is allowed in part without any order as

to costs of this appeal.

CHIEF JUSTICE

SANJIV KHANNA, J.

JANUARY 18, 2011 VKR