Shri Dev Dutt vs D.D.A.
2011 Latest Caselaw 4606 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of decision: 19th September, 2011
+                           W.P.(C) 19016/2006

%        SHRI DEV DUTT                                       ..... Petitioner
                      Through:            Ms. Richa Kapoor & Ms. Anupama
                                          Singh, Advs.

                                     Versus
         D.D.A.                                             ..... Respondent
                            Through:      Mr. Yeeshu Jain, Adv.

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 impugns the letter dated 06.06.2006 of the respondent

DDA to the petitioner and seeks a mandamus to the respondent DDA to

issue Demand-cum-Allotment Letter in respect of flat No.419, Sector-17,

Pocket-A, Phase-II, Dwarka, Delhi to the petitioner at the cost prevalent in

March, 2004 or in the alternative, a mandamus to the respondent DDA to

allot any other MIG Flat in the same zone at the cost prevalent in March,

2004.

2. Notice of the petition was issued, though no interim relief sought

restraining the respondent DDA from allotting the flat to anybody else

granted.

3. Pleadings have been completed. The counsels have been heard.

4. The petitioner was a registrant with the respondent DDA in the New

Pattern Registration Scheme (NPRS) of the year 1979 for an MIG flat. He

claims that the priority number allotted to him matured in the year 1986

when he was allotted an MIG flat in Nand Nagri but being not interested in

availing the said allotment, he requested the respondent DDA to cancel the

allotment and opted for his name to be put at the tail end of the Scheme. It

is further the case of the petitioner that the respondent DDA so put his

name at the tail end and in a draw held in the year 2004, he was allotted the

flat aforesaid at Dwarka. The grievance of the petitioner in the petition is

that notwithstanding the same, he was not issued the demand-cum-

allotment letter with respect to the aforesaid flat.

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

demand-cum-allotment letter dated 25.08.1986 with respect to the Nand

Nagri flat was dispatched to the petitioner at the address given by the

petitioner but the same was returned undelivered with the remarks "left

without address". It is further pleaded that the petitioner neither requested

the respondent DDA to cancel the allotment nor to put his name at the tail

end priority, though the respondent DDA claims to have issued a letter

dated 29.07.1988 to the petitioner as under:

"Sub: Cancellation of Allotment of Flat No.58A, Pkt. A in Nand Nagri Resdl./Scheme under MIG/NP.

Dear Sir/Madam, With reference to your application dated Nil on the subject cited above, I am directed to inform that allotment of the above mentioned flat has since been cancelled on your request.

You are, therefore, requested to arrange to deposit a sum of `4,610/- @ 20% on account of cancellation charges. In case the said charges are not paid within 15 days from the date of issue of this letter, your registration will be deemed as cancelled and cancellation charges will be adjusted against your registration deposit and interest accrued thereon. However, in case you pay cancellation charges in time your registration will be kept intact but your seniority will be at the tail end."

6. It is further the case of the respondent DDA that the petitioner did

not deposit the said cancellation charges also; however since the petitioner

had remained to be allotted any flat, the name of the petitioner was

included in the draw held in the year 2004 and the petitioner vide letter

dated 13.08.2004 of the DDA, was asked to produce the request if any

made for cancellation, the letter issued for deposit of cancellation charges

and the proof of payment of cancellation charges. It is contended that since

none was shown, the petitioner was not eligible for issuance of demand-

cum-allotment letter and which fact was intimated to the petitioner vide

letter dated 06.06.2006 impugned in this petition.

7. The counsel for the petitioner has contended that the respondent

DDA till 31.12.2003 had a Policy of putting all the cancellations at the tail

end and without payment of any cancellation charges. It is contended that

the flat was denied to the petitioner inspite of inclusion of the petitioner in

the draw in 2004 only for the reason of the petitioner having not paid the

cancellation charges. It is yet further contended that the said issue is no

longer res integra having been settled by the Division Bench of this Court

in judgment dated 04.06.2008 in LPA No.179/2008 titled DDA Vs. Abhay

Prakash Sinha, SLP whereagainst being SLP (Civil) No.25731/2008 by

the respondent DDA has been dismissed. It is argued that it has been held

in the said judgment that non payment of cancellation charges does not

come in the way of allotment at the tail end and the respondent DDA is

only entitled to charge interest at the rate of 15% on the cancellation

charges from the date when it ought to have been paid and till the date of

payment.

8. Per contra, the counsel for the respondent DDA contends that the

present is not a case of non payment of cancellation charges and thus not

covered by the judgment aforesaid. It is argued that upon the petitioner

neither intimating the change of address nor availing of the allotment made

in the year 1986, the same got cancelled / lapsed and the only right of the

petitioner was for refund of the registration amount by the petitioner; it is

further contended that this petition filed after twenty years of the allotment

of 1986 is highly belated. With respect to the inclusion of the name of the

petitioner in the draw-of-lots held in 2004 and the issuance of the letters

asking the petitioner to produce the documents, it is contended that the

same were issued on the premise that the petitioner had sought cancellation

and paid the cancellation charges and infact the petitioner was called upon

to produce proof of the same and upon failure of the petitioner to produce

the same, the respondent DDA is fully justified in holding the petitioner not

entitled to any allotment.

9. Neither counsel has produced before this Court the Policy of the

respondent DDA of putting the cancelled cases at the tail end of the

Scheme.

10. It has been enquired from the counsel for the respondent DDA that if

the petitioner had not applied for cancellation (as is evident from the

respondent DDA in the letter dated 29.07.1988 referring to the application

dated Nil of the petitioner) and was under the Policy not entitled to be

placed at the tail end, why was the letter dated 29.07.1988 (supra) issued to

the petitioner. The counsel states that the same was mistakenly issued to

the petitioner. It has next been enquired whether it has been so pleaded by

the respondent DDA in its affidavit that the letter dated 29.07.1988 (supra)

was issued mistakenly. The answer is in the negative.

11. In the absence of the Policy to show that the petitioner without

applying for cancellation was not entitled to have his name placed at the

tail end and in the absence of any pleading that the said letter dated

29.07.1988 was issued mistakenly, there is no option for this Court but to

believe that as per the Policy then prevalent, the petitioner even if

remaining quiet in pursuance of the allotment letter and not complying with

the same, was entitled to have his name placed at the tail end and which has

evidently been done, as is apparent from the inclusion of the name of the

petitioner in the draw held in the year 2004. There is a presumption that

the officers of the respondent DDA at the contemporaneous time acted in

accordance with the Policy, rules and regulations and without it being

pleaded that they did not, this Court, cannot believe the oral argument

addressed today.

12. Once it is found that the petitioner was entitled to and had his name

included in the tail end, the letter dated 06.06.2006 of the respondent DDA

holding that the petitioner is not entitled to a demand-cum-allotment letter

is misconceived. Once the name of the petitioner had been put in the tail

end, the refusal thereafter to issue the demand-cum-allotment letter can

only be perceived as for the reason of the non payment of the cancellation

charges and which issue is no longer res integra as aforesaid.

13. The question which next arises is as to the price on which the

petitioner is to be so allotted the flat. The counsel for the petitioner states

that the price has to be as of 2004. It has however been enquired from the

counsel for the petitioner as to how the petitioner can have the flat at the

rate of 2004 when the price which would have been paid therefor in 2004

has remained in the pocket of the petitioner. The counsel for the petitioner

contends that since even the demand-cum-allotment letter has not been

issued and which has been held to be erroneous, the default is of the

respondent DDA and the petitioner is entitled to pay the price as of 2004.

14. However, what is peculiar about this case is that the petitioner has

not succeeded on the case made out by the petitioner but owing to the

respondent DDA having produced the letter dated 29 th July, 1988 supra

along with its counter affidavit. The petitioner came to this Court with a

false case of knowledge of the allotment in 1986 when the allotment letter

of 1986 had been returned undelivered to the respondent DDA. The

counsel for the petitioner of course contends that the petitioner had gone to

the office of the respondent DDA and had orally requested for cancellation

and the demand-cum-allotment letter was not issued owing to the said oral

request. However, I find it difficult to believe that on such verbal request

of the petitioner for cancellation, the respondent DDA would have

cancelled the allotment and put the name of petitioner in the tail end

category. Even otherwise, once the petitioner has not parted with the

money and has continued to enjoy the same, the petitioner cannot have the

price of 2004 without paying interest thereon.

15. In the circumstances, the petition is allowed with the direction to the

respondent DDA to allot to the petitioner either the flat No.419, Sector-17,

Pocket-A, Phase-II, Dwarka, Delhi if still available or any other equivalent

flat at the rates of 2004 but with interest therefrom at the rate of 12% per

annum till the date of payment. The interest as directed to be paid be

computed in the demand-cum-allotment letter to be issued to the petitioner.

The cost earlier imposed on the respondent DDA is waived.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) SEPTEMBER 19, 2011 gsr