Ms.Bhawari Devi vs Delhi Development Authority
2012 Latest Caselaw 3009 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Decision: 07.05.2013

+      W.P.(C) No.6861/2012

       MS.BHAWARI DEVI                                    ..... Petitioner
                          Through:     Mr.Sitab Ali Chaudhary, Advocate

                          versus

       DELHI DEVELOPMENT AUTHORITY                        ..... Respondent

                          Through:     Ms.Manika Tripathy Pandey with

                                       Mr.Ashutosh Kaushik, Advocates.

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                          JUDGMENT

V.K.JAIN, J. (ORAL)

1. The petitioner got herself registered with DDA for allotment of a residential

plot under its Rohini Residential Scheme,1981. On the turn of the petitioner

maturing, a plot of land bearing number 256 in Pocket-4, Sector-3, Rohini

measuring 25.9 sq. mtrs was allotted to the petitioner in a draw of lot held on

5.10.1989. The demand-cum-allotment letter dated 5.2.1990 was then issued to the

petitioner, requiring her to deposit an amount of Rs.5274.75. It was stated in the

said allotment letter that in case the payment was not made within six months from

the due date, the allotment shall automatically stand cancelled and no request for

restoration of the allotment shall be entertained on any ground whatsoever.

Admittedly, the aforesaid letter of allotment was received by the petitioner but she

did not make payment of Rs.5274.75 within the time stipulated in the said letter.

2. Vide show cause notice dated 15.6.1993, DDA informed the petitioner that

she had failed to deposit the aforesaid amount of Rs.5274.75 and the requisite

documents, in terms of allotment letter dated 5.2.1993. She was required to show

cause within 15 days as to why the allotment be not cancelled. On receipt of the

aforesaid show cause notice, the petitioner deposited the amount of Rs.5874.75

with DDA on 29.6.1993 and she claims to have intimated to DDA in this regard

vide her letter dated 7.7.1993.

3. Vide her letter dated 21.4.1994, the petitioner, of her own submitted

documents such as Affidavit, Undertaking, specimen signatures and photograph,

third copy of challan and original FDR/Registration Card to DDA and sought

possession letter in respect of the plot which was allotted to her way back, vide

Allotment Letter dated 5.2.1990. Vide communication dated 2.11.2005, DDA,

with reference to the public hearing attended by the petitioner and seeking

possession of the above-referred plot informed her as under:-

"I am to inform you that as per terms & conditions of Demand- cum-Allotment letter dated 5.2.90, you were required to deposit the balance premium of the plot within 30 days from the date of issue of Demand-cum-Allotment letter. Since no payment/documents

were made/submitted by you within the given time or within the extended period of six months or even within the further extended period upto 31st December, 1992, the show cause notice was issued and allotment was cancelled by the Competent Authority and necessary intimation was given to you vide this office letter of even number dated 5.4.94. Hence you are not entitled for allotment as per Policy of the 5th draw held on 5.10.89. You are, therefore, requested to furnish the following documents:

1. Original demand letter

2. Bank Account No. with name of Branch

3. Identification Proof

4. An affidavit to the effect that he is the original registrant.

5. Fourth Copy of Challan.

The request will be processed as per rule on receipt of the above documents from you."

4. Vide subsequent letter dated 14.2.2007 issued in continuation of earlier

communication dated 2.11.2005, DDA informed the petitioner that the allotment

of the above-referred plot as well as the registration had been cancelled by the

competent authority. She was accordingly asked to furnish documents prescribed

in the letter for refund purposes. The petitioner, vide her letter dated 16.12.2009

and 15.3.2010 again requested DDA to issue Possession Letter of the aforesaid plot

to her. The request of the petitioner was, however, declined by DDA. Being

aggrieved from the refusal of DDA to give possession of the above-referred plot to

her, the petitioner is before this Court by way of this writ petition.

5. It is not in dispute that the Demand-cum-Allotment Letter dated 5.2.1990

was duly received by the petitioner. She was required to deposit the amount of

Rs.5274.75 within six months from the due date, failing which the allotment was to

stand automatically cancelled. Admittedly, the petitioner did not deposit the

aforesaid amount within six months from the due date. Accordingly, the

cancellation clause contained in the Allotment Letter became operative and the

allotment made to the petition stood automatically cancelled.

6. The learned counsel for the petitioner submits that since the aforesaid

amount was deposited by the petitioner within 15 days of the show cause notice

dated 15.6.1993, the allotment could not have been cancelled by DDA. I, however,

find no merit in the contention. A perusal of the show cause notice would show

that no time was granted to the petitioner, vide that notice, to deposit the amount

which DDA had demanded, vide Demand-cum-Allotment Letter dated 5.2.1990. It

was clearly stated in the show cause notice that the petitioner had failed to deposit

the aforesaid amount in terms of the Demand-cum-Allotment Letter dated

5.2.1990. The purpose of giving show cause notice to the allottee in such a case is

to enable him to satisfy DDA, in case that was the factual position, that the amount

demanded in the Demand-cum-Allotment Letter was actually deposited by him

within the time stipulated in the said letter and, therefore, there was no ground for

cancelling the allotment. The show cause notice does not give yet another

opportunity to the allottee to deposit the amount demanded vide Demand-cum-

Allotment Letter, in a case where the allotment stood cancelled on account of

failure of the allottee to deposit the amount demanded from him, within the time

stipulated by DDA in this regard.

7. Once the allottee fails to deposit the balance land premium within the time

stipulated in the Demand-cum-Allotment Letter, the offer made to him by DDA

stands automatically withdrawn and the allotment made to him stands

automatically cancelled. Thereafter, the allottee cannot make payment at a date

beyond the last date stipulated in the Demand Letter and then seek continuance of

the allotment on the basis of such a payment. The issue involved in this petition

came to be considered by a Division Bench of this Court in Asha N. Madnani v.

D.D.A. 1997 I AD (DELHI) 385. In the aforesaid case, the petitioner got herself

registered under NPRS 1979, for allotment of residential flat from DDA and

deposited a sum of Rs.4500/- as the registration amount. She was allotted a flat in

Rohini at the cost of Rs.209100/- . She sought extension of time for payment of

the instalments which she was required to deposit with DDA from time-to-time.

Such extension having been granted by DDA, the aforesaid instalments were paid

by her in time. The allotment made to her, however, was cancelled by DDA on

account of non-payment of dues. When the cancellation of allotment was

challenged by the petitioner, it was stated on behalf of DDA that since the

instalments had been paid by the petitioner in time, the cancellation was founded

and could be supported only on the ground of non-submission of certain

documents, which the petitioner was required to submit within a period of 90 days.

Allowing the writ petition, the Division Bench, inter alia, held as under:-

"(10) A distinction has to be drawn between the consequence flowing from the default in payment by the allottee in accordance with the terms and conditions of allotment and a default merely in furnishing proof of payments and filing of the documents within the prescribed period. The letter of allotment provides for automatic cancellation of the allotment in both the cases. In the case of default in payment of installments automatic cancellation of allotment has to be sustained because of the consequences flowing there from.

10.1.Each allotment is part of a composite scheme. By default in payment the working of the scheme is disturbed and the DDA has to rearrange its financial affairs. An allottee defaulting in payment must give way to an aspirant waiting for an allotment and willing to make payment.

.........

10.3.Therefore, the term as to payment as per schedule must be held to be mandatory while the term as to submission of all the relevant documents Along with proof of payment within the prescribed period should be held to be-directory."

8. The learned counsel for the petitioner relies upon the decision of this Court

in LPA No.188/2008 Raj Kumar Sharma vs. DDA decided on 11.8.2008. In the

aforesaid case, the appellant was registered under NPRS, 1979 and was allotted

priority No.37585. He was allotted flat bearing No.109, Pocket 2, Sector-11,

Dwarka, New Delhi on cash down basis in a draw of lot held on 30 th July, 2003

with block dates 25th September, 2003 to 30th September, 2003. The appellant did

not make payment within the block dates or within the extended period along with

interest i.e. upto 28th March, 2004. However, the said amount was deposited by the

appellant, vide challans dated 28.3.2005 and 30.4.2005. Despite several requests

made by him, the allotment was not restored by DDA. Being aggrieved from

denial of restoration of the allotment, the appellant approached this Court by way

of the writ petition which came to be dismissed by the learned Single Judge.

During the hearing of the appeal, the Court noted that the flat in question was

located at Dwarka and the Office Order dated 1.6.2000 enumerated various points,

including that in certain DDA colonies, DDA was not in a position to provide

amenities like water and electricity to the inhabitants resulting into complaints by

the allottees and one such locality was Dwarka. This was also the case of the

appellant that even by the time the appeal came up for hearing, DDA was unable to

make water supply functional in most of the areas falling in Dwarka. This was not

disputed by DDA. It was, in these circumstances, that the Division Bench directed

DDA to restore the allotment and hand over possession of the flat in question to the

appellant, subject to payment of further interest and penalty, if any, payable by

him. However, the facts of the case before this Court are altogether different. This

is not a case of allotment of residential flat in a colony such as Dwarka where DDA

was unable to provide even basic amenities such as water supply. This was a case

of an allotment of a residential plot in Rohini and this is not the case of the

petitioner that she did not deposit the amount demanded by DDA on account of

inability of DDA to provide essential amenities, such as, water in the locality in

which the plot was allotted to her. The amount demanded by DDA came to be

deposited more than three years after the demand. Therefore, this case cannot be

treated at par with the case of Raj Kumar Sharma(supra).

9. There is yet another reason which disentitles the petitioner from grant of any

relief to her. The Demand-cum-Allotment Letter came to be issued to the

petitioner on 5.2.1990. The Allotment Letter carried clause for automatic

cancellation in case payment was not made within six months from the issue date.

The show cause notice was issued to the petitioner on 15.6.1993. On receipt of the

show cause notice, the petitioner came to know that DDA was seeking to cancel the

allotment made to her. Despite that she kept silent and did not bother to approach

either DDA or this Court for as much as 10 years. She submitted certain

documents to DDA only with her letter dated 21.4.2004 which was more than 10

years after receipt of the show cause notice. DDA, vide letter dated 2.11.2005

informed the petitioner that the allotment made to her was cancelled by the

competent authority and necessary intimation in this regard was given to her, vide

letter dated 5.4.1994. This is not the case of the petitioner that the letter dated

5.4.1994 cancelling the allotment was not received by her. The petitioner claims to

have intimated change of address to DDA only vide letter dated 19.4.2004 i.e.

about four weeks after the issue of cancellation letter. There is no plausible

explanation from the petitioner for not approaching either DDA or this Court for

more than 10 years from the date the allotment came to be cancelled.

10. Even after receipt of communication dated 2.11.2005, the petitioner did not

come to this Court for ventilation of her grievance. This writ petition came to be

filed by her only on 29.10.2012 i.e. about seven years after the aforesaid letter

dated 2.11.2005 was issued by DDA. Again there is no explanation from the

petitioner for not coming to this Court even on receipt of the communication dated

2.11.2005. The learned counsel for the petitioner submits that since the statute has

not fixed any period of limitation for filing a writ petition, the relief sought by the

petitioner cannot be denied to her on account of delay in approaching the Court. I,

however, find no merit in the contention. It is true that the Constitution has not

fixed any period of limitation for approaching the Court by way of a writ petition

under Article 226, but, it is a settled proposition of law that in appropriate cases

where the Court finds that the petitioner has been sleeping over his rights, has not

bothered to come to the Court within the period of limitation prescribed for filing a

suit once he got a cause of action to come to the Court and gives no plausible

explanation for the delay in approaching the Court, he/she would be deemed to

guilty of laches and the Court would refuse to extend its helping hand to such a

negligent person.

In State of M.P. v. Bhailal Bhai AIR 1964 SC 1006, the Constitution Bench

of Supreme Court considered the effect of delay in filing writ petition under Article

226 of the Constitution and held:

"17....It has been made clear more than once that the power to give relief under Article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. .... It is not easy nor is it desirable to lay down any rule for universal application. It may however be stated as a general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus."

In State of Rajasthan v. D.R.Laxmi 14 (1996) 6 SCC 445, the Supreme

Court referred to Administrative Law by H.W.R. Wade (7 th Edn.) at pp. 342-43 and

observed: (SCC p.453, para 10)

"10. The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has

to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances."

In Banda Development Authority, Band vs. Moti Lal Agarwal and others

[(2011) 5 SCC 394], the respondent before the Supreme Court did not make any

complaint against acquisition of land or taking of possession by the State

Government and delivery thereof to the respondent, his only prayer being to direct

the defendants to undertake fresh acquisition proceedings so that he could also get

his share of compensation. The writ petition questioning the acquisition

proceedings was filed by him after about 9 years of publication of declaration

under Section 6(1) of Land Acquisition Act and already six years of the

pronouncement of award. During this interregnum, the appellant had taken

possession of the land, prepared layout, developed the land and constructed as well

as allotted plots and flats to eligible persons. No objection alleging delay and

laches on the part of the respondent was taken in the affidavit filed on behalf of the

appellant to the State Government. The Supreme Court was of the view that despite

no objection from them, the High Court was duty bound to take cognizance of long

time gap of nine years between the date of issue of declaration and filing of the writ

petition and should have declined relief to him on the ground that he was guilty of

laches. Allowing the appeal filed by Banda Development Authority, the Apex

Court, inter alia, has held as under:

"17. It is true that no limitation has been prescribed for filing a petition under Article 226 of the Constitution but one of the several rules of self-imposed restraint evolved by the superior courts is that the High Court will not entertain petitions filed after long lapse of time because that may adversely affect the settled/ crystallized rights of the parties. If the writ petition is filed beyond the period of limitation prescribed for filing a civil suit for similar cause, the High Court will treat the delay unreasonable and decline to entertain the grievance of the petitioner on merits."

Though, the case before the Supreme Court related to acquisition of land

whereas the case before this Court involves the allotment of residential flat by

DDA and, therefore, the two cannot be said to be at par, the proposition of law laid

down by the Supreme Court to the effect that whenever a writ petition is filed after

the expiry of the period prescribed for filing a civil suit, the Court in absence of a

plausible explanation should treat such delay to be unreasonable and should not

entertain such belated writ petitions.

11. The learned counsel for the petitioner has referred to the decision of the

Supreme Court in Ashok Kumar v. State of Bihar and Others (2008) 8 Supreme

Court Cases 445. A perusal of the said judgment would show that in the aforesaid

case, the appellant had filed a review/representation and pendency of the said

review/representation was the ground given by him for condonation of delay. The

Apex Court was of the view that having submitting the review/representation, the

appellant could expect an order should be passed on the said representation/review

and, therefore, a delay in moving the writ petition had been sufficiently explained

by him. However, in the case before this Court, there is no plausible reason given

by the petitioner for not approaching this Court for as many as 19 years, after

receipt of the show cause notice from DDA and about 7 years from the receipt of

the cancellation letter dated 2.11.2005.

12. The learned counsel for the petitioner lastly submits that vide letter dated

2.11.2005, the petitioner was asked to submit documents, such as, Original

Demand Letter, Identification Proof and Fourth Copy of Challan which gave an

impression to the petitioner that DDA was going to hand over possession of flat in

question to her. I, however, find absolutely no merit in the contention. It was

made quite clear to the petitioner in the letter dated 2.11.2005 that since no

payment was made by her within the extended period of six months stipulated in

the Demand Letter dated 5.2.1990 or within the further extended period upto

1.12.1992, the allotment had been cancelled by the competent authority and she

had been intimated in this regard by way of letter dated 5.4.1994. Therefore, the

learned counsel for the respondent/DDA is right in submitting that the documents

mentioned in the letter were sought from the petitioner for the purpose of

processing the refund of the registration money to her and not for the purpose of

handing over possession of flat in question to her.

13. For the reasons stated hereinabove, I find no merit in the petition. The

petition is dismissed. There shall be no order as to costs.

V.K. JAIN, J

MAY 07, 2013 ks