Delhi High Court
Delhi Development Authority vs Veena Andley on 17 January, 2012
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 17th January, 2012.
+ LPA 480/2010
% DELHI DEVELOPMENT AUTHORITY ...Petitioner
Through: Mr. Rakesh Mittal, Adv.
Versus
VEENA ANDLEY .... Respondent
Through: Mr. Sumit Bansal, Mr. Arun K.
Sharma & Ms. Sumi Anand, Adv.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
RAJIV SAHAI ENDLAW, J.
1. The challenge by the appellant DDA in this Intra Court Appeal is to
the order dated 6th January, 2010 of the Learned Single Judge allowing
W.P.(C) No. 6131/2007 preferred by the respondent and directing the
appellant DDA to include the name of the respondent in mini draw of lots to
be held within two months from the date of the order. Though this appeal
was preferred after the delay of 45 days but the said delay was condoned
and the notice of the appeal issued on 20 th July, 2010 and the
implementation of the order stayed. The counsels have been heard.
2. The undisputed facts are that the respondent is the widow of a former
Acting Chief Justice of this Court who died in harness; it was decided that
in lieu of ex gratia payment to which the respondent had so become entitled
to, she be allotted a flat; a recommendation was forwarded by the Registrar
of this Court to the appellant DDA and since allotment was to be made from
a special quota, the matter was placed before the Lt. Governor of Delhi; the
Lt. Governor directed allotment of a flat under SFS Category-III to the
respondent; pursuant thereto a flat in Dwarka was allotted to the respondent
and a demand-cum-allotment letter dated 8th February, 2002 issued - in
terms thereof the price demanded was to be paid within 120 days thereof.
The said price was not paid, as according to the respondent she was then
facing financial constraints on account of the marriage ceremonies of her
daughter. It is admitted by the counsel for the appellant DDA before us also
that the marriage of the daughter of the respondent was indeed scheduled for
and held in December, 2002. The respondent on 8th March, 2006
represented to the appellant DDA for restoration of the allotment earlier
made; upon receiving no response from the appellant DDA inspite of
reminders, the writ petition aforesaid was filed.
3. The appellant DDA contested the writ petition pleading, delay on the
part of the respondent in approaching the appellant DDA for restoration of
the allotment; that the allotment earlier made stood automatically cancelled
on non-payment of the demanded amount; the flat earlier allotted to the
respondent having been allotted to some other registrant and the respondent
being not entitled to restoration thereof or for allotment of any other flats.
4. The respondent rejoined by contending that the allotment having been
made to her under the orders of the Lt. Governor could not have been
cancelled without orders from the same authority which had not been
obtained.
5. The appellant DDA also filed an additional affidavit before the
Learned Single Judge contending that the then Policy of the respondent
DDA ruled out any out of turn allotment. The respondent responded thereto
by contending that she was merely seeking restoration.
6. The learned Single Judge has in the order impugned before us
observed / held, that the appellant DDA had not denied the factum of the
allotment in favour of the respondent being in lieu of ex gratia payment to
which she was entitled to; that the respondent had not availed of the benefit
of ex gratia payment in the hope that she would be allotted a flat by the
appellant DDA; that the decision of the Lt. Governor for such allotment in
favour of the respondent could not be and had not been withdrawn; that thus
the right of the respondent to allotment would continue; however since the
respondent had not availed of the allotment made in the year 2002 she could
not be allotted a flat at the disposable costs of the year 2002. The Learned
Single Judge accordingly taking into consideration the peculiar facts of the
case, especially the financial hardship of the respondent, allowed the writ
petition as aforesaid.
7. The counsel for the appellant DDA before us has again contended that
the present Policy of the appellant DDA does not permit any such allotment.
The appellant DDA in this regard referred to a letter dated 19th June, 2000.
However a perusal thereof shows that though the same purports to abolish
the special quota but nevertheless makes exception in favour of widows of
government servants who die in harness. In our opinion, the respondent on
parity would be covered in the said category also. Moreover, the question is
not of entitlement of the respondent to a fresh allotment now but of
restoration of the earlier allotment under the policy then in vogue.
8. We have in several other cases come across the Policy of the
appellant DDA of allowing such restoration upon being approached within
four years of cancellation. The respondent herein also having approached
the appellant DDA within four years of cancellation, we have enquired from
the counsel for the appellant DDA as to why the respondent is not entitled to
restoration under the said Policy also. The counsel however contends that
the said Policy is not applicable to the respondent, the allotment in favour of
the respondent being under a special quota. We are however unable to
accept the said contention; merely because the allotment is made under a
special quota would not deprive the respondent of the benefits made
available by the appellant DDA to its other customers.
9. The counsel for the appellant has next contended that the respondent
has available to her a house at Rajpur Road and is thus not entitled to any
allotment. We do not find any merit in the said contention also. It is borne
out from the documents of the time of allotment in favour of the respondent
that the husband of the respondent was only one of several shareholders in
the said house and which was incapable of being built upon and was
unutilisable and the respondent had no accommodation available to her in
the same residence. The appellant DDA having earlier made allotment in
favour of the respondent notwithstanding the said house, cannot agitate the
same in opposition to the claim of the respondent for restoration of the said
allotment.
10. Though the counsel for the appellant DDA has also sought to dispute
that the allotment in favour of the respondent was not against any ex gratia
payment and the respondent had no financial constraints but the counsel for
the respondent has demonstrated from the pleadings before the Learned
Single Judge that the said facts stood admitted by the appellant DDA and
have not been challenged in the memo of appeal also.
11. We are even otherwise of the opinion that the Learned Single Judge
has in the peculiar facts and circumstances of the case exercised discretion
vested under Article 226 of the Constitution of India and has while
exercising the said discretion safeguarded the interest of the appellant DDA
by directing restoration of allotment at the rates of the year 2010. We have
already in orders dated 18th October, 2011 in LPA 494/2011 titled DDA v.
Amar Nath Hira and order dated 22nd November, 2011 in LPA 732/2011
titled DDA v. Darshan Kaur held that where the order is otherwise found to
be equitable, the discretion exercised by the Learned Single Judge in the
facts and circumstances of the case ought not to be interfered in a appeal.
We find the order impugned before us to be an equitable one.
12. We do not find any merit in the appeal; the same is dismissed. No
order as to costs.
RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
JANUARY 17, 2012
'PP'
