Ramesh Chander Sharma vs Delhi Development Authority
2012 Latest Caselaw 220 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P.(C) 2971/1992

                                                     Decided on : 12.01.2012

IN THE MATTER OF
RAMESH CHANDER SHARMA                             ..... Petitioner
                  Through: Mr. R.V. Sinha, Advocate with
                  Mr. A.S. Singh, Advocate

                    versus


DELHI DEVELOPMENT AUTHORITY                       ..... Respondent
                   Through: Ms.Sangeeta Chandra, Advocate


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (ORAL)

1. The petitioner has assailed a demand-cum-allotment letter

dated 13.01.1992 issued by the respondent/DDA towards the disposal

cost of flat No.212-C, Pocket F, MIG Second Floor, Nand Nagri fixed as

`2,65,600/-, and for directions to the respondent/DDA to revise the cost

of the allotted flat by fixing it at the same rate as prevalent on

30.10.1987, when he was declared as a successful allottee and allotment

of a flat was made in his favour as per his eligibility.

2. The undisputed facts of the case are that in the year 1979,

the respondent/DDA floated the New Pattern Registration Scheme ('NPRS-

1979), calling for applications from the public for registration under

various categories including MIG, LIG, HIG etc. On 19.09.1979, the

petitioner applied under the aforesaid scheme and deposited the

registration amount of `4,500/- with the respondent/DDA, whereafter he

was given priority No.4669. On 30.10.1987, the respondent/DDA held a

draw of lots and declared the petitioner successful for allotment of a flat

as per his eligibility at Nand Nagri, being Flat No.14-C, Pocket F, Second

Floor, Nand Nagri. Thereafter, a demand-cum-allotment letter bearing

block dates 16.11.1987-20.11.1987 was issued to the petitioner by the

respondent/DDA, wherein the disposal cost of the flat was shown as

`1,33,300/- on the basis of cash down payment. However, the petitioner

was allotted the flat as per hire purchase scheme, whereunder he was

required to deposit a sum of `19,115.43 paise towards the initial deposit

and thereafter he was required to deposit 120 monthly installments @

`1,675.58 paise per installment. The first installment was due on

10.01.1988.

3. It is the petitioner's case that he deposited eight installments,

totalling to `13,404.80 paise and besides making the aforesaid deposits,

he also completed all the necessary formalities and submitted the

requisite documents to the respondent/DDA. However, to the utter shock

and surprise of the petitioner, he discovered that the flat that had been

allotted to him at Nand Nagri had already been allotted to someone else,

and it was a case of double allotment. Vide letter dated 26.07.1989, the

respondent/DDA informed the petitioner that he had been allotted an

alternate flat No.16-B, A&B Group IV, First Floor, Dilshad Garden, in lieu

of the earlier flat allotted to him in Nand Nagri. After allotting the

aforesaid flat to him, the petitioner was called upon by the

respondent/DDA to deposit `23,172.43 paise as an initial deposit towards

the aforesaid flat and to pay monthly installments @ `1,652.20 paise, the

first installment falling due on 01.12.1989. A revised demand-cum-

allotment letter dated 19.10.1989 was issued to the petitioner, wherein

the cost of the flat was fixed at `1,35,900/-. Again, the petitioner

completed all the requisite formalities and requested the respondent/DDA

to adjust the amount deposited by him against the flat allotted to him

earlier.

4. Thereafter, the petitioner discovered that the flat allotted to

him for the second time by the respondent/DDA at Dilshad Garden, had

also been already allotted to some third person. The said information was

conveyed to him in writing by the respondent/DDA on 05.05.1990. It is

stated by learned counsel for the petitioner that after May 1990, the

respondent/DDA did not correspond with the petitioner for a period of two

years and finally issued him a demand-cum-allotment letter dated

13.01.1992, whereunder the petitioner was informed that he had been

allotted flat No.212-C, Pocket F, Second Floor, MIG, Nand Nagri at the

disposal cost of `2,65,600/- and the monthly installments payable by the

petitioner were fixed @ `3,251.40 paise. Being aggrieved by the

overcharge, which was almost double in comparison to that which was

demanded in respect of the flat allotted to him initially, the petitioner

submitted a protest letter dated 12.03.1992 addressed to the

Commissioner (Housing), DDA stating inter alia that the disposal cost of

the flat allotted to him for the third time was not in consonance with the

disposal cost of the initial allotment made in his favour in the year 1987

and since it was not on account of his fault, he could not be penalized for

the non-allotment of a flat for a period of almost five long years from the

date of making the first allotment. Ultimately, on 10.06.1992, the

possession of the flat in question was handed over to the petitioner. Prior

to taking possession of the said flat, the petitioner deposited a sum of

`10,752/- with the respondent/DDA and in August 1992, he filed the

present petition challenging the impugned demand raised on him.

5. Counsel for the petitioner submits that the aforesaid action of

the respondent/DDA in handing possession of the flat in question to him

after the expiry of about four and a half years from the date of the first

allotment made in his favour and that too at almost double the original

disposable cost, is liable to be struck down as being illegal, arbitrary and

unjust. He further states that, had the first allotment of the flat made in

favour of the petitioner, which matured in the year 1987, materialized

and possession thereof was handed over to him, he would have had to

pay only a sum of `1,33,300/- on hire purchase basis, as opted for by

him. However, now the petitioner is faced with a situation where he has

been called upon by the respondent/DDA to pay a sum of `2,65,600/-

towards the disposal cost of the flat that has finally been allotted to him in

the year 1992, which is the third allotment made in his favour after the

first two allotments turned out to be cases of double allotments. It is

contended that due to the aforesaid action of the respondent/DDA, the

petitioner has been made to suffer double jeopardy inasmuch as on one

hand, he has been deprived of his vested right to enjoy the flat which had

been allotted to him in the year 1987 and on the other hand, the

respondent/DDA has rubbed salt on his wounds, by deciding to enhance

the disposal cost of the flat finally allotted to him in January 1992 and

that too by almost doubling the cost.

6. Counsel for the respondent/DDA submits that no doubt, the

present case is one of those cases of erroneous double allotment made in

favour of the petitioner on two occasions, the first allotment having

matured in the year 1987 and the second one in the year 1990, but on

the third occasion when the petitioner was finally allotted a flat at Nang

Nagri in January 1992 of which he took possession of on 10.6.1992, he

was duly informed that the disposal cost of the flat was `2,65,600/-. She

states that while raising the fresh demand-cum-allotment letter on the

petitioner, the respondent/DDA had not varied the costs of the land

prevailing in the year 1987. However, the cost of construction has been

levied at the rate applicable on the basis of the year of construction of the

flat in question, which was the year 1991. She further states that the

account of the petitioner as maintained by the respondent/DDA reflects a

credit of `51,330/- in his favour, after giving him credit for the interest

accrued on the FDR of `4,500/- deposited by him in the year 1979 and

upon calculating the interest accrued on the eight installments deposited

by him towards the initial installment of `19,115.43 paise, as also by

taking into consideration, the eight installments totalling to `13,404.80

paise as deposited by him with the respondent/DDA. She states that at

the time of making the third allotment in his favour, the petitioner was

called upon to pay a sum of `51,073.43 paise, which, if adjusted against

the amount already received from him, i.e., ` 51,330/- would result in a

credit of `256/- in the account of the petitioner. She states that the

remaining outstanding amounts were required to be deposited by the

petitioner in terms of the schedule reflected in the demand-cum-allotment

letter dated 13.01.1992, which is 122 monthly installments payable @

`3,251.40 paise per installment, commencing from 01.02.1994.

7. A pointed query posed to the learned counsel for the

petitioner as to whether the petitioner had been depositing any amounts

with the respondent/DDA after allotment of the subject flat in his favour,

it is submitted by learned counsel that he is unaware of the current

position. However, counsel for the respondent/DDA states on instructions

from the Department that after the year 1992, the respondent/DDA has

not received payment of any installment from the petitioner.

8. Having regard to the facts of the present case, the Court is of

the opinion that while it is undisputedly the fault of the respondent/DDA

in having erroneously made two double allotments in favour of the

petitioner and thus, deprived him of his rightful allotment, which had

matured in the year 1987, the fault also lies at the door of the petitioner,

who ought to have paid atleast the entire sum of `1,33,300/-, which was

the disposal cost of the flat initially allotted to him. Pertinently, since the

first allotment made in favour of the petitioner was on hire purchase

basis, it would inherently mean that he was required to pay an interest

component along with each installment. As per the terms and conditions

of allotment, the petitioner was required to deposit 120 installments,

payable on a sum of `1,33,300/- and the amount payable by him in this

manner would have translated to a sum of `2,01,696/-.

9. At the same time, there is no justification for the

respondent/DDA to have raised a demand on the petitioner by charging

him the cost of construction of the subject flat by calculating the amount

payable at the rate prevalent in the year 1991, when the entire fault lies

at its door in making two erroneous double allotments in favour of the

petitioner, the first one in the year 1987 and the second one in the year

1990. Since the respondent/DDA is admittedly at fault, then it is liable to

bear the loss caused to the petitioner on the said account. In such

circumstances, the respondent/DDA ought to have raised a demand on

the petitioner by calculating both, the cost of land as also the cost of the

construction of the flat as prevalent at the rate that had existed in the

year 1987. Further, having regard to the fact that the petitioner has

failed to pay any amount whatsoever towards the installments due and

payable by him, even on the basis of the schedule given to him on the

basis of the first allotment made in his favour in the year 1987, he cannot

claim that any further equities have arisen in his favour due to non-

payment of the said installments.

10. Thus, taking into consideration the facts and circumstances of

the case, the scale has to be balanced. This Court is therefore of the

opinion that the present petition is liable to be allowed by quashing and

setting aside the impugned demand-cum-allotment letter dated

13.01.1992 (Annexure P-10) issued by the respondent/DDA. Further, the

respondent/DDA is directed to raise a fresh demand on the petitioner by

calculating the cost of land and the cost of construction of the flat finally

allotted to him in the year 1992, at the rate that was prevalent in the

year 1987. While doing so, the respondent/DDA shall calculate the

interest payable by the petitioner for the defaults made by him in

depositing the installments as were payable by him from the date of

handing over possession of the subject flat on hire purchase basis in

accordance with the terms and conditions of the brochure applicable for

the aforesaid NPRS 1979 Scheme and the rules applicable in that regard.

While raising a fresh demand-cum-allotment letter on the petitioner

within four weeks, the respondent/DDA shall furnish the entire break-up

of the amount claimed by it and the manner in which it has given credit of

the amounts deposited by the petitioner from time to time alongwith

interest accrued thereon. If the petitioner has any grievance with regard

to the basis of the calculations made by the respondent/DDA, he shall

immediately seek necessary clarifications from the respondent/DDA,

which shall be duly conveyed to him. If dissatisfied with the said

calculations, the petitioner shall be entitled to seek his remedies against

the respondent/DDA, as may be available to him in law. Otherwise, the

amount payable by him shall be deposited with the respondent/DDA

within a period of four weeks from the date of receipt of the fresh

demand-cum-allotment letter.

11. The writ petition is allowed on the aforesaid terms, while

quantifying the counsel's fee at `10,000/-. The costs to be paid shall be

adjusted by the respondent/DDA in the demand-cum-allotment to be

issued to the petitioner.

                                                       (HIMA KOHLI)
JANUARY    12, 2012                                       JUDGE
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