Delhi High Court

Bhim Ram vs Dda on 8 September, 2011

Author: Rajiv Sahai Endlaw

            *IN THE HIGH COURT OF DELHI AT NEW DELHI
                                       Date of decision: 8th September, 2011
+        W.P.(C) 18837/2006 & CM No.7156/2011 (for restoration of the
         writ petition dismissed in default on 9th May, 2011)
         BHIM RAM                                           ..... Petitioner
                            Through: Ms. Richa Kapoor with Ms.
                                       Anupma Singh, Adv.
                                   versus
         DDA                                            ..... Respondent
                            Through: Mr. Vivek Goyal, 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.

1. The petition seeks a mandamus to the respondent DDA to, "make an

alternative allotment of a Janta flat to the petitioner in Rohini at the cost

prevalent in the year 1990 i.e. `67,500/- and further direct the respondent

to forthwith hand over possession thereof and reschedule the installments

commencing 30 days from the date of handing over possession of the flat

to be allotted to him".

2. Notice of the petition was issued and counter affidavit filed by the

respondent DDA. The petitioner opted not to file rejoinder. Vide order

dated 16th April, 2009 respondent DDA was directed to file further

affidavit and which also has been filed. The writ petition was dismissed in

default on 9th May, 2011. CM No.7156/2011 for restoration thereof was

filed and notice thereof issued. The counsel for the respondent DDA has

fairly, not opposed restoration of the writ petition. CM No.7156/2011 is

accordingly allowed and the writ petition restored to its original position.

The counsels have been heard on the writ petition.

3. The petitioner, claiming to be belonging to the Reserved Category of

Scheduled Caste, was a registrant with the respondent DDA for a Janta flat

in the New Pattern Registration Scheme (NPRS) of the year 1979; he was

in the draw of lots held on 15th March, 1990 allotted a Janta flat bearing

no.32 (1st Floor), Sector 15, Block-C, Pocket-6, Rohini and a Demand-

cum-Allotment letter dated 24th April, 1990 - 3rd May, 1990 issued to him.

The said Demand-cum-Allotment letter indicated the payment terms as

"hire purchase" and called upon the petitioner to pay `14,412.31p by 2nd

June, 1990 and latest with interest by 1st August, 1990 and to pay 240

monthly installments at the rate of `671.67p commencing from 10th July,

1990. It was further communicated that during hire purchase tenancy

period, the status of the petitioner shall be that of a tenant. The petitioner

was in addition to the said monthly installments, also called upon to w.e.f.

1st July, 1992 pay ground rent. The total cost of the flat was of `67,500/-.

4. The petitioner paid the sum of `14,412.31p together with due

interest on 26th July, 1990 i.e. before the stipulated last date. It is the case

of the petitioner and confirmed by the respondent DDA in its counter

affidavit that he was also required to furnish to the respondent DDA the

proof of the said deposit by 1st August, 1990 but deposited the said

documents on 29th October, 1990 i.e. after a delay of 88 days. The

petitioner claims that notwithstanding the initial amount of `14,412.31p

having been deposited within the stipulated date, he was not delivered

possession of the flat. On enquiry as to whether he paid the installments, it

is stated that the installments @ `671.67p per month were to commence 30

days after being put into possession of the flat and since the petitioner was

not put into possession of the flat, the occasion for the petitioner to pay the

installments did not arise.

5. The petitioner further claims, to have pursued the matter by visiting

the office of the respondent DDA, but to no avail; that he sent Under Postal

Certificate letters dated 15th July, 1992, 26th October, 1995, 11th August,

1997, 13th April, 2000 & 20th April, 2002 but again to no avail; that in the

year 1995 the respondent DDA framed a Policy dated 25th May, 1995 for

condonation of delay but the benefit thereof was also not given to the

petitioner; that the petitioner made a representation dated 26 th June, 2005

to the Vice Chairman of the respondent DDA but again to no avail; that on

his personal visits to the office of the respondent DDA he was informed

that his file had been lost; that ultimately on 21st March, 2006 he sought

information under the Right to Information Act, 2005 and in reply dated

10th April, 2006 thereto it was stated that since the documents deposited

were late by 90 days, the allotment had been cancelled and that the main

file of the petitioner was not readily on record.

6. The petitioner claims to have continued to represent to the

respondent DDA with no success and ultimately filed this petition in the

year 2006. The petitioner contends that delay in submission of documents

cannot be a ground for cancellation of the allotment; that it was the

respondent DDA which had inspite of the said payment failed to deliver

possession of the flat to the petitioner and since the said flat had since been

allotted to somebody else, the respondent DDA is obliged to allot

alternative flat to the petitioner at the costs prevalent in the year 1990. The

petitioner in para 16 of the petition has set out other cases where delay is

claimed to have been condoned.

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

scheme in which the petitioner was registered was closed in the year 1996

after issuing Public Notice to the registrants to file their objections if any;

that the petitioner did not do so and thus cannot be considered for further

allotment; that in terms of the Allotment-cum-Demand letter there was to

be an automatic cancellation; that the case of the petitioner is not similar to

those cited in the petition.

8. The respondent DDA was on 16th April, 2009 as aforesaid, directed

to give the details of the total number of registrations made in various

categories under the NPRS Scheme 1979 and also the allotments made

under various categories and has in the additional affidavit stated that the

total number of registrations made in Janta category were 56249 and 54288

allotments had been made and there was no backlog of the said flats. The

breakup of the other categories has also been stated.

9. The counsels have been heard.

10. What has struck me in the first instance in respect of the present

petition is that though the allotment in favour of the petitioner was of the

year 1990 but the present petition was filed after 16 years in the year 2006.

It has as such, at the outset been enquired from the counsel for the

petitioner as to why the petition is not liable to be dismissed for the reasons

of delay, laches and acquiescence alone.

11. The counsel for the petitioner has contended that the petitioner was

continuously chasing up the matter in the office of the respondent DDA.

However no proof or other particulars of personal visits if any made to the

office of the respondent DDA has been furnished. The letters aforesaid are

stated to have been dispatched under postal certificate. There is no proof of

delivery thereof. Even otherwise the letters are after long gaps. The first

letter as aforesaid is of after two years of the date of deposit of the initial

amount. It is not the case of the petitioner that he was not entitled to

possession of the flat immediately after paying the initial amount aforesaid.

There is no explanation as to why the petitioner if was not being delivered

the possession, did not take appropriate remedies then. The representation

dated 26th June, 2005 claimed to have been made by the petitioner to the

Vice Chairman of the DDA (Annexure P-7 to the petition) also does not

refer to any visits of the petitioner to the office of the respondent DDA or

to any letters having earlier been sent as is being claimed now. Rather the

petitioner in the said letter stated that neither had the registration amount

and other deposits been refunded nor had he heard from the respondent

DDA about further allotment despite lapse of 15 years. Rather the

petitioner claimed to have been activated by the judgment dated 27th

September, 2004 of this Court in W.P.(C) 931/2002 titled Bhim Sen

Dhawan v. DDA. It has been held by the Apex Court in Karnataka Power

Corporation Ltd. v. K. Thangappan (2006) 4 SCC 322 that mere making

of representations to the authority concerned cannot justify a belated

approach.

12. There is thus a long delay of 16 years in preferring the petition.

13. What has also struck me as odd in the present case is the non-deposit

by the petitioner of the monthly installments besides the initial installment

and which as per the Demand-cum-Allotment letter were to commence

from 10th July, 1990. Admittedly none of them have been paid. On enquiry

as to how the petitioner is not in default of the payment of the same also

and not only of default in deposit by 1st August, 1990 of the proof of

payment of the initial amount, the counsel for the petitioner contends that

the occasion for the petitioner to pay the said amounts did not arise since

the petitioner had not been put into possession of the flat. It is argued that

since the said installments were towards hire purchase and the petitioner

during the payment thereof was to be a tenant of the respondent DDA, the

same were payable only after the petitioner had been put into possession

and not before that and the delay in putting the petitioner in possession is

on the part of the respondent DDA.

14. However the Demand-cum-Allotment letter does not provide for the

date of commencement of payment of the monthly installments of

`671.67p from the date of being put into possession of the flat as is being

argued now but unequivocally provides the date of commencement as 10th

July, 1990. The counsel for the petitioner has not been able to show as to

how the payment of the said installments was to commence from the date

of being put into possession. In the face of the written document providing

the date of commencement of payment of installments as 10 th July, 1990, I

am not willing to accept the contention to the contrary of the counsel for

the petitioner. If at all the claim of the petitioner at the contemporaneous

time was that he was not liable to pay the installment as demanded for the

reason of having not been put into possession of the flat, he ought to have

raised it at the contemporaneous time and cannot be permitted to take it as

an afterthought.

15. The entire conduct of the petitioner is indicative of the petitioner,

after having made the initial payment, having decided not to pay any

further monthly amounts and the interest of the petitioner in the flat

appears to have been rekindled in the year 2006 upon finding the prices of

the flats to have appreciated.

16. I am therefore of the view that the present is not a case requiring

interference by this Court in exercise of powers under Article 226 of the

Constitution of India.

17. The counsel for the petitioner has relied upon several judgments but

which have not been found to be apposite by me. The same are disclosed

herein below:-

a. Order dated 8th April, 2008 in W.P.(C) 645/2007 titled

Shanti Devi v. DDA - the said case also related to a

registrant for an LIG flat in the NPRS, 1979; allotment

was made in the year 1989 and initial payment made

but the allotment cancelled owing to mistake of the

respondent DDA and the respondent DDA upon

realizing the mistake allotted another flat and made a

demand but without adjusting the amounts earlier

received; upon representations another allotment was

made in the year 2004 but possession not handed over.

It was in these facts that the petitioner was held entitled

to flat at the costs prevalent in the year 2005;

b. Order dated 12th December, 2008 in W.P.(C)

No.16636/2006 titled Bhiva Ram v. DDA -this case

also of a Janta flat under the NPRS, 1979. The

allotments made from time to time were got cancelled

by payment of cancellation charges and it was in these

facts that a direction for allotment at costs as applicable

to the tail end priority case was made. The petitioner in

the present case did not seek and pay any cancellation

charges and thus the said order is not applicable;

c. The order dated 28th January, 2008 in W.P.(C)

1637/2007 Digambar Mall v. DDA and order dated 4th

November, 2008 in LPA No.168/2008 arising

therefrom - in this case, the DDA itself had included

the name of the petitioner in the tail end priority cases

draw whereof was held on 31st March, 2004 and the

Division Bench found that DDA had never informed

the petitioner appellant of allotment and no Demand-

cum-Allotment letter was sent to him and it was in such

facts that allotment was made. In the present case as

aforesaid, the receipt of the allotment letter is not

controverted;

d. Order dated 27th September, 2004 in W.P.(C) 931/2002

titled Bhim Sen Dhawan v. DDA. This is an order on

admission and thus cannot be cited as precedent;

e. Asha N. Madnani v. DDA 1997 I AD (Delhi) 385 -

laying down that the time for payment of instalments is

mandatory but the time for deposit of documents is

directory. However this was not a case of hire purchase

and in any case full payment had been made. Such is

not the position here. As aforesaid, there is total failure

of the petitioner to pay the instalments.

18. Though the counsel for the petitioner has also handed over in the

Court the office order dated 19th April, 2002 of the respondent DDA but

has been unable to show as to how the petitioner is entitled to benefit

thereof.

19. This Court has recently in W.P.(C) 7581/2008 titled Harvinder

Singh v. DDA decided on 14th March, 2011 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 delay does not give any right to obtain

possession of the flat.

20. I am also of the view that in the aforesaid facts when the petitioner is

a defaulter in payment of installments in terms of letter of allotment, any

sympathy shown to the petitioner would be misplaced. The number of flats