Delhi Development Authority vs Ms. Prem Bhatnagar
2012 Latest Caselaw 1004 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Date of decision: 14th February, 2012

+                              LPA 1098/2011

%     DELHI DEVELOPMENT AUTHORITY           .... Appellant
                  Through: Ms. Shobhana Takiar, Adv.

                                 Versus

      MS. PREM BHATNAGAR                               ..... Respondent
                   Through:          Mr. R.K. Saini & Mr. Vikram Saini,
                                     Advs.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                               JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. The appellant DDA in this Intra-Court appeal impugns the judgment

dated 19.05.2011 of the learned Single Judge allowing W.P.(C)

No.592/2011 preferred by the respondent and directing the appellant DDA

to allot an LIG flat in favour of the respondent subject to the respondent

paying cost of the flat as demanded in the demand-cum-allotment letter

dated 01.08.2003/ 07.08.2003 together with simple interest at the rate of

12% per annum.

2. Notice of this appeal was issued to the respondent limited to the

aspect as to whether the respondent is to pay the current cost for allotment

of the flat.

3. The respondent was a registrant with the appellant DDA in the New

Pattern Registration Scheme (NPRS), 1979 for an LIG flat. No allotment

was however made in favour of the respondent till the year 2003. Demand-

cum-allotment letter dated 01.08.2003 / 07.08.2003 was ultimately issued

at the address furnished by the respondent in the application form but which

was returned undelivered with the remarks that the respondent had "Left

Without Address". The respondent finally in or about the year 2004, issued

advertisements in the newspapers calling upon registrants of undelivered

demand-cum-allotment letters to approach the appellant DDA for allotment.

Upon the respondent not responding thereto also, the registration in her

favour was cancelled.

4. The respondent claims to have in or about the year 2010 learnt of

allotments having been made to all the registrants of the NPRS, 1979. She

then approached the DDA and upon her representation remaining

unsuccessful, filed the writ petition from which this appeal arises.

5. It was / is the plea of the respondent that even though she had not

intimated of the change of her address to DDA but in the documents filed by

her in the year 1979, her official address was available and where she

continued to work till the year 2004; that upon the demand-cum-allotment

letter being returned undelivered from her residential address, attempt for

intimation at her occupational address ought to have been made.

6. The case of the appellant / DDA was / is that the respondent had

failed to furnish her occupational address against the column provided

therefor in the application form and thus the appellant DDA could not be

blamed for non intimation of the allotment to the respondent. It was / is

further pleaded that the NPRS, 1979 in which the respondent had registered

had since closed and the respondent is now entitled only to refund of the

registration amount.

7. The learned Single Judge has in the judgment impugned in this

petition, in the facts and circumstances of the case, accepted the plea of the

respondent that since the occupational address even though not filled in by

the respondent in the application form was available in the documents and

since the allotment was being made long after the application, attempt

should have been made to intimate the respondent at the occupational

address available in the documents filed along with the application. Finding

that as per the policy dated 25.02.2004 of the appellant DDA, upon the

registrant approaching the appellant DDA within four years is entitled to

allotment at the rates of the initial demand together with interest at the rate

of 12% per annum, direction for allotment of flat as aforesaid was made.

8. The counsel for the appellant DDA before us has contended that the

appellant DDA could not be expected to search in the documents filed along

with the application for the alternate addresses, when the registrant had

failed to provide the same; that in the present case, the respondent was

clearly at fault in not intimating the change of address; that the policy dated

25.02.2004 applied by the learned Single Judge was not applicable in the

facts of the case.

9. Finding the respondent to be at fault to the extent of not intimating

the change of her residential address and to have not enquired about the

status of her registration and to have waited for inordinately long time till

2010 to enquire and further finding the respondent to be not covered by the

policy aforesaid, we had enquired from the counsel for the respondent

whether the respondent was willing to pay the cost of the flat of the date

when the writ petition was allowed by the learned Single Judge. The

counsel for the respondent after obtaining instructions has stated that the

respondent for the sake of finality is willing to pay the costs of the flat as on

the date of the impugned judgment i.e. 19.05.2011.

10. We find that the learned Single Judge has allowed the writ petition

exercising the equitable jurisdiction under Article 226 of the Constitution of

India and in the peculiar facts and circumstances of the case. It cannot be

lost sight of that the priority of the respondent had matured nearly 24 years

after the registration. The respondent, who had waited for the flat for so

long, ought not to be deprived thereof for her default in intimating the

change of address. The exercise of discretion by the learned Single Judge is

not interfereable in appeal unless found to be perverse. No perversity is

found in the present case. On the contrary with the respondent expressing

willingness to pay the cost of the flat of the year 2011, the interest of the

appellant DDA stands sufficiently protected.

11. Accordingly, the appeal is partly allowed. While maintaining the

direction issued by the learned Single Judge to the appellant DDA to issue a

demand-cum-allotment letter in favour of the respondent, we modify the

same to the extent that the appellant DDA shall be entitled to demand the

cost of the flat as on 19.05.2011. The order be now complied with within

ten weeks of today. The appeal is disposed of. This order having been

made in the circumstances aforesaid, be not treated as precedent.

No order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE

FEBRUARY 14, 2012 „gsr‟..