Sushma Patil vs Dda
2012 Latest Caselaw 293 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) 9243/2007

                                          Decided on: 16th January, 2012

IN THE MATTER OF
SUSHMA PATIL                                           ..... Petitioner
                         Through:     Mr. Sumit Bansal, Advocate with
                                      Ms. Sumi Anand, Advocate

                    versus


DDA                                                     ..... Respondent
                         Through:     Mr. Arun Birbal, Advocate

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

1. The petitioner is aggrieved by a demand letter dated 24.10.2007

and communication dated 23.11.2007 addressed by the

respondent/DDA to her and prays for setting aside the same. Vide

demand letter dated 24.10.2007, the petitioner was allotted a car

garage No.20, Sector 22, Pocket-1, Dwarka in the SFS Residential

Scheme and was called upon to pay a sum of `4,62,283/- towards the

cost of the car garage. It was stated in the said demand letter that if

the petitioner failed to deposit the amount demanded in terms of the

aforesaid letter, the allotment would automatically stand cancelled

after 21.02.2008. Vide letter dated 23.11.2007, the request of the

petitioner for charging the rate of construction of the car garage at the

rate prevalent time of allotment of the garage, was declined by the

respondent/DDA and she was called upon to deposit the demanded

amount within the period as stipulated in the demand letter.

2. Counsel for the petitioner states that without prejudice to

her rights, the petitioner had deposited a sum of `4,62,283/- with the

respondent/DDA in terms of the demand letter dated 24.10.2007 as

recorded in the order dated 12.12.2007, whereafter the car garage

was duly handed over to her.

3. Counsel for the petitioner points out that this is the second

round of litigation that the petitioner has had to initiate against the

respondent/DDA for the same car garage. He draws the attention of

this Court to the order dated 10.07.2007 passed in an earlier writ

petition filed by the petitioner and registered as W.P.(C) 10137/2006,

assailing the order dated 27.02.2006 passed by the respondent/DDA,

whereby her application for allotment of a car garage pursuant to a

public notice dated 26.07.2001 was rejected on the ground that the

said application had not been submitted by her before the cut-off date.

Vide order dated 10.07.2007, passed in the aforesaid proceedings, the

aforesaid rejection order dated 27.02.2006 passed by the

respondent/DDA was quashed by the Court and it was observed that

the public notice issued by the respondent/DDA did not specify any last

date for submitting the application and, therefore, there was no basis

for rejecting the petitioner‟s application. As a result, the aforesaid writ

petition was allowed and a direction was issued to the respondent/DDA

to consider the petitioner‟s application as being within time and

thereafter it was directed to process the same in accordance with law.

It was further directed that if there was no other eligible applicant in

respect of the said car garage in question, it would be allotted to the

petitioner within a period of four weeks from the date of passing of the

order and in any event not later than 10.08.2007.

4. Counsel for the petitioner submits that after passing of the

aforesaid order, the respondent/DDA issued the impugned demand-

cum-allotment letter dated 24.10.2007 to the petitioner, calling upon

her to make payment of the car garage at the rate prevalent in the

year 2007. It is the submission of the counsel for the petitioner that it

is impermissible for the respondent/DDA to have demanded the

aforesaid amount towards the cost of land and the cost of construction

of the car garage by applying the rate prevalent in the year 2007, for

the reason that the petitioner had applied to the respondent/DDA for

allotment of the car garage as early as in July 2001 and she was not to

be blamed in any way for the rejection of her application by the

respondent/DDA in the year 2006.

5. Counsel for the respondent/DDA opposes the present

petition and submits that the public notice issued by the

respondent/DDA in the year 2001 for allotment of car garage in Sector

22, Pocket-1, Dwarka (SFS) had stipulated that applications were

invited from the original allottees in the said pocket, in which the car

garage was located and only such allottees were eligible to apply. He

further states that it was clarified that preference was to be given to

the upper floor allottees over the ground floor allottees and in the

present case, as the petitioner is a ground floor allottee, she could not

claim any preference. He submits that the manner laid down for the

allotment of the car garage was that in case there was more than one

applicant for one garage, the allotment would be made by way of a

computerized draw. In compliance with the order dated 10.07.2007,

passed in the earlier writ petition filed by the petitioner, the

respondent/DDA considered her case afresh and since there was no

specific direction in the aforesaid order to allot the car garage to the

petitioner at the cost prevailing in the year 2001, it levied the current

cost as per its prevalent policy and raised the impugned demand on

her.

6. In view of the submission made by the counsel for the

respondent/DDA that the offer of the car garage was to be allotted in

the first instance to the owners of the upper floors and the petitioner‟s

turn for allotment would have matured only after the offer made to

owners of the upper floors was declined or they were unable to pay the

price of the car garage and further that the procedure of offering the

car garage first to the owners of the upper floors continued for a

considerable time, due to which, the petitioner could not have become

entitled to the allotment before the year 2004, when fresh applications

were invited by the respondent/DDA, vide order dated 20.12.2010, it

was directed to produce the original records.

7. A part of the original records has been produced today for

the perusal of this Court. Counsel for the respondent/DDA particularly

draws the attention of the Court to page 19/N, wherein, a note dated

26.12.2005 has been written by the Dealing Assistant to the following

effect:-

"Case No.14/2005 in Hon‟ble Lok Adalat now fixed for 27.12.2005.

This is regarding allotment of car garage No.20 to Smt. Sushma Patil who is GPA holder of flat No.77, Sector-22, Pkt. I, Dwarka.

DDA had invited application for allotment of car garage in Sector-22, Pkt. I, Dwarka from 16.7.2001 to 23.7.2001. A press notice was given in the leading newspaper on 15.7.2001. A photo copy of press clipping of „Hindustan Times‟ dated 15.7.2001 is attached herewith as Anexure-A.

Smt. Sushma Patil applied for car garage on 26.7.2001. A photo copy of application form submitted by her is attached herewith as Annexure- B. Since her application was after expiry of the due date, her request was not considered and above garage was allotted to the other applicant Smt.Poonam Jain. Only two applications one of Smt. Poonam Jain allottee of flat No.78 and other of Sh. Rajesh Balachandran allottee of flat No.85 were received against this garage and when Smt. Poonam Jain failed to deposit the cost in time, this garage was cancelled from her name and further allotted to next applicant Sh. Rajesh Balachandran vide letter dt. 17.6.03.

Sh. Rajesh Balachandran has also not deposited the cost of the garage so far and action

for the cancellation of the garage is being taken separately. Since the said garage was not vacant at the time and hence the said garage was not released for allotment for the next draw, applications of which were invited from 22.9.04 to 30.9.04.

This garage will be released for allotment in the next draw after its cancellation and the plaintiff Smt. Sushma Patil may apply at that time and her name will be considered for the draw of lots if more than one application for this is received as, one garage is for the block of 4 flats.

Submitted please.

D.A./SFS(H)"

8. Reliance is placed by the counsel for respondent/DDA on

the aforesaid note to submit that DDA was justified in levying the

current cost in respect of the car garage as the same was released and

made available for allotment only after its cancellation.

9. It is pertinent to note that the aforesaid record produced by the

respondent/DDA is absolutely silent with regard to the date on which

the allotment made in favour of the first applicant namely, Smt.

Poonam Jain was cancelled for non-deposit of the cost in time and it

also does not indicate the date on which the next applicant, Shri

Rajesh Balachandran, who was allotted the car garage on 17.06.2003,

defaulted in making the payment and the allotment of the car garage

was again cancelled. In other words, the exact date when the car

garage became available for allotment has not been specified in the

aforesaid note, or any other record produced by the respondent/DDA.

10. Having regard to the aforesaid facts and circumstances of

the case, this Court is of the opinion that the respondent/DDA cannot

be permitted to demand from the petitioner the prevailing cost of the

car garage, i.e., the costs as applicable in the year 2007, for the

reason that the petitioner could not be held responsible for the

rejection of the earlier application of allotment as submitted by her to

the respondent/DDA in the year 2001. Further, in view of the

conditions laid down for allotment by the DDA in its public notice,

whereunder a decision was taken to offer the car garage to the owners

of the upper floor in preference to those residing on the ground floor

and the manner in which it was actually worked out by the

respondent/DDA from the date of issuance of public notice on

15.7.2001 to 24.10.2007 when the allotment was actually made in

favour of the petitioner, it is deemed appropriate to quash and set

aside the impugned demand letter dated 24.10.2007 issued by the

respondent/DDA and direct it to reckon the date for fixing the cost of

the car garage allotted to the petitioner, as the cut off date by which

Shri Rajesh Balachandran, the second allottee of the car garage was

required to have deposited the amount payable by him towards the

said allotment.

11. After calculating the cost of the car garage by fixing the

date in the aforesaid manner, the same shall be communicated to the

petitioner within six weeks. In the fresh demand-cum-allotment letter

to be raised by the respondent/DDA, it shall take into consideration the

amount already deposited by the petitioner and make necessary

deductions for arriving at the balance amount, if any, payable by the

petitioner. If a refund is found to be due to the petitioner, the

respondent/DDA shall pay to her interest from the date of receipt of

the said amount till payment, at the same rate as claimed by it from

defaulter allottees of such car garages during the aforesaid period. In

such an eventuality, the refund due and payable to the petitioner shall

be paid by the respondent/DDA alongwith interest calculated by it at

the aforesaid rate, within a period of two weeks from the date of

raising the fresh demand-cum-allotment letter.

12. The writ petition is allowed on the aforesaid terms with

costs of `5,000/-, which shall be paid by the respondent/DDA to the

petitioner by adjusting the same in the demand-cum-allotment letter

to be raised by it on the petitioner.

                                                 (HIMA KOHLI)
JANUARY 16, 2012                                    JUDGE
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