Ashok Kumar vs D.D.A.
2011 Latest Caselaw 4621 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Date of decision: 20th September, 2011.

+                                W.P.(C) 7352/2008

%      ASHOK KUMAR                                           ..... Petitioner
                  Through:              Ms. Richa Kapoor with Ms. Anupma
                                        Singh, Advocates.

                                 Versus

       D.D.A.                                              ..... Respondent
                          Through:      Mr. M.K. Singh, 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 father of the petitioner was a registrant under the New Pattern

Registration Scheme (NPRS) of the year 1979 of the respondent DDA for an

MIG flat. He was in the year 1989 allotted a flat in Rohini on Hire Purchase

basis and though the initial deposit was made but the said allotment was

cancelled for the failure of the father of the petitioner having not submitted

the documents showing proof of payment within the stipulated time. Be that

as it may, the father of the petitioner deposited the cancellation charges and

deposit whereof entitled him to be considered for fresh allotment.

2. Another flat in Mansarover Park was allotted to the father of the

petitioner in the year 1991. Yet again cancellation was opted for by paying

the cancellation charges. As per the Policy of the DDA, the case of the

father of the petitioner thereafter was to be considered for allotment at tail

end and it was so stated by the respondent DDA also in its letter dated 17th

January, 1992.

3. No allotment thereafter was made till the demise of the father of the

petitioner in the year 1998.

4. The petitioner claims to have in the year 2006 learnt that all the

pending registrants had been allotted flats way back in the year 2004-05 and

on enquiry claims to have further learnt that the priority of his father was

mistakenly missed by the DDA for inclusion in the draws held and therefore

no allotment had been made in favour of the father of the petitioner. The

petitioner then also applied for mutation of the registration to his name and

for allotment and upon the representations of the petitioner not meeting with

any success, the present writ petition was filed.

5. Notice of the petition was issued. Counter affidavit has been filed by

the respondent DDA. The counsels have been heard.

6. The respondent DDA in its counter affidavit has not controverted the

aforesaid facts. It is however stated that the draw of allotments of flats

under the tail end priority were held in 2004 and the petitioner approached

much later in the year 2006. It is further stated that public notices in this

regard of all allotments under the said Scheme having been completed were

also published in February, 2006.

7. The petitioner rejoins by contending that the petitioner within twenty

days of the public notice had approached the respondent DDA.

8. The aforesaid would show that it is not in dispute that the father of the

petitioner was to be considered for allotment in tail end category but was not

so considered. The issuance of a public notice by the DDA cannot defeat the

rights of the registrants specially with the allotments being made after 30

years. This Court has in judgment dated 28th January, 2008 in W.P.(C)

No.266/2007 titled Usha Saikia Vs. DDA held that public notices are not

substitute for individual notices. Thus the entitlement of the petitioner to an

MIG flat pursuant to the registration stands established.

9. The next question is as to the price payable by the petitioner. The

counsel for the petitioner states that the price of the flat to be so allotted may

be in accordance with the Policy in this regard of the respondent DDA.

However it is not deemed expedient to leave the said dispute open and to

invite another writ petition. The counsels have been asked to address on the

said aspect.

10. Attention is invited to the office order dated 25th February, 2005 of the

respondent DDA issued in pursuance to the directions contained in the order

dated 16th December, 2004 in W.P.(C) No.19095/2004 and other connected

writ petitions. The said directions are with respect to cases of issuance of

demand letter at the wrong address and missing priority cases of DDA flat.

The same provides for allotments at the old cost prevalent at the time of

original allotment if approach within four years from the date of issuance of

the demand letter and if approach after four years, together with 12% simple

interest. It is further provided that the same principle would be applicable in

the case of missing priority cases. The counsel for the petitioner contends

that in the cases of missing priority, the date of allotment would be the date

of allotment in tail end category and which in the present case was 2004. It

is thus contended that the petitioner having approached in the year 2006

itself i.e. within four years from the draw held for tail end category and in

which the petitioner/his father should have been considered and was not

considered, is entitled for allotment at the costs as prevalent in the year 2004

and without payment of any interest whatsoever. Per contra, the counsel for

the respondent DDA has contended that the question of allotment to the

petitioner in the present case did not arise without the petitioner having the

registration mutated from the name of his father to his own name and which

admittedly happened in 2008. He thus contends that in the present case the

price payable by the petitioner should be the prevalent price or the price of

last allotment together with interest at 12% per annum.

11. The petitioner in the present case, notwithstanding the death of his

father in the year 1998 did not seek mutation of the registration in his name

and approached DDA for the first time only in the year 2006. Even

otherwise, it is not found equitable that the petitioner should be entitled to

the price of 2004 without paying any interest whatsoever when the money

remained in the pocket of the petitioner and he has continued to enjoy the

benefits thereof.

12. It is therefore deemed expedient to direct that the price payable by the

petitioner will be the price as prevalent on the date when the last demand

cum allotment letter of the tail end category was issued together with simple

interest at the rate of 12% per annum from that date and till the date of

payment.

13. The demand cum allotment letter be issued to the petitioner within

eight weeks of today.

The petition is disposed of. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) SEPTEMBER 20, 2011/bs