Rajeev Saxena vs Dda
2012 Latest Caselaw 3306 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of decision: 17th May, 2012

+                                 LPA No.1130/2006

         RAJEEV SAXENA                                          ..... Appellant
                     Through:            Mr. R.K. Saini, Adv.

                                      Versus
         DDA                                               ..... Respondent

                           Through:      Mr. Ajay Verma, Adv.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW,J

1. This Intra-Court appeal impugns the order dated 25th May, 2006 of the learned Single Judge dismissing W.P.(C) No.8626/2006 preferred by the appellant. Notice of the appeal was issued. The order dated 16 th October, 2006 in this appeal records the offer of the appellant to deposit the entire cost of the flat earlier demanded by the respondent DDA from the appellant in this Court. During the pendency of this appeal the appellant was allowed to make representation to the respondent DDA with a direction to the respondent DDA to consider the same sympathetically. However the same did not find favour with the respondent DDA. Subsequently another representation was made by the appellant and the same was directed to be examined at the level of the Commissioner (Housing). The counsel for the respondent DDA informs that the same also remained unsuccessful. On 2 nd May, 2008 interim order to the effect that if the flat in question had not been

allotted by the respondent DDA to anybody else, the same be not allotted till the pendency of this appeal, was also made. The counsels have been heard.

2. The appellant is a registrant with the respondent DDA for a category- III flat under the 5th Self Financing Scheme, 1982.

3. The respondent DDA vide letter dated 31 st December, 1991 informed the appellant of allocation of first floor flat in Block No.8, Jasola at an estimated cost of Rs.6,27,200/-, 90% whereof was payable in four installments (with balance 10% being payable on allotment of a specific flat number) but was paid as under:-

Installment Due Date Amount Due Amount Paid Date of Payment 1st 31.1.1992 Rs.1,56,800/- Rs.1,34,670/- 1.5.1992 2nd 31.7.1992 Rs.1,25,440/- Rs.1,30,000/- 23.7.1998 3rd 31.1.1993 Rs.1,56,800/- Rs.1,00,000/- 25.5.1998 4th 31.7.1993 Rs.1,25,440/- Rs.1,49,500/- 22.1.1999

4. On account of the failure of the appellant to make payments within time, the allotment was cancelled. The appellant filed W.P.(C)1015/2002 (first writ petition) impugning the aforesaid cancellation. It was the plea of the appellant that he was entitled to restoration on payment of charges therefor and interest. During the pendency of the said writ petition, the respondent DDA vide letter dated 18th February, 2003 offered to allot a flat out of the available flats on 2 nd and 3rd floor in Jasola at current cost and against adjustment of the amounts already deposited by the appellant without any interest. The said offer was accepted by the appellant and the

writ petition disposed of with a direction to the respondent DDA to issue a fresh demand-cum-allotment letter to the appellant.

5. The respondent DDA thereafter issued a demand-cum-allotment letter dated 18th July, 2003 to the appellant with respect to Flat No.25, 2 nd Floor, Block-8, Jasola, New Delhi at a cost of Rs.18,34,600/-; after adjusting the sum of Rs.5,42,578/- already paid by the appellant, the balance amount of Rs.13,65,451/- was demanded from the appellant by 16th October, 2003 and with interest by 16th January, 2004.

6. The appellant filed W.P.(C) No.281/2004 (second writ petition) impugning the aforesaid demand. It appears that several other allottees of flats in Jasola had also in or about the year 2002 (when the appellant had filed the first writ petition aforesaid and which was settled) filed writ petitions qua price of flats and which writ petitions were allowed by a Single Judge of this Court vide judgment in Renu Bali v. DDA 108 (2003) DLT

392. In the second writ petition filed by the appellant, the contention of the appellant was that the demand contained in the letter dated 18 th July, 2003 ought to have been in accordance with the judgment in Renu Bali (supra) and on which basis it would have been much less. Notice of this second writ petition was issued and the respondent DDA restrained from allotting Flat No.25 (supra) to anybody else. The said writ petition was dismissed by the learned Single Judge on 13th July, 2004 holding that the appellant was not entitled to the benefit of Renu Bali's judgment, having not pursued his first writ petition and having settled with the respondent DDA and that the demand dated 18th July, 2003 on him was in terms of the said settlement.

7. LPA No.2041/2005 was preferred by the appellant against the order dated 13th July, 2004 (supra) of dismissal of W.P.(C) No.281/2004. However by the time the said appeal came up for hearing, the judgment of the Single Judge in Renu Bali (supra) was reversed by a Full Bench of this Court in Renu Bali (Smt.) v. Delhi Development Authority 2006 (I) AD (Del) 127. As per the judgment of the Full Bench, DDA was entitled to charge from the allottees current cost for SFS Flats in case of delay/default in payment of installments. The appellant accordingly withdrew the said appeal.

8. The appellant thereafter first filed an application in W.P.(C) No.281/2004, offering to pay the amount demanded in letter dated 18 th July, 2003 (supra) with up-to-date interest but withdrew the same and filed W.P.(C) No.8626/2006 (from which the present appeal arises) seeking the same relief.

9. The learned Single Judge dismissed the said writ petition holding that the appellant having not made the payment in terms of the demand-cum- allotment letter dated 18th July, 2003, could not in 2006 seek to comply therewith when the said allotment also stood cancelled.

10. The argument of the appellant before the learned Single Judge as also before us is, that the appellant after the demand-cum-allotment letter dated 18th July, 2003 was only seeking his legal remedies in terms of Renu Bali's judgment of the learned Single Judge which was however set aside by the Full Bench and ought not to be made to suffer therefor.

11. The learned Single Judge has negatived the aforesaid plea by holding that the appellant could not seek the benefit of the judgment of the learned Single Judge in Renu Bali since the appellant had settled with the respondent DDA and agreed to pay the current cost and which was demanded vide letter dated 18th July, 2003 and which also the appellant failed to pay.

12. The counsel for the appellant has invited our attention to Clause IV of the allotment letters issued qua SFS Flats, as set out and considered in Sheela Bisht v. DDA 55 (1994) DLT 645 (DB), to contend that cancellation due to non-payment of first four installments during the stipulated period can be got restored on payment of dues with interest along with cancellation and restoration charges subject to availability of allocated flat. It is contended that under the interim orders in the petitions filed by the appellant, the Flat No.25 (supra) is still available and direction for delivery of possession thereof in terms of letter dated 18th July, 2003, together with up-to-date interest be issued. However a perusal of the letter dated 18 th July, 2003 on the paper book shows that the appellant was to pay the balance amount (supra) of Rs.13,65,451/- by 16th October, 2003 and with interest, a total of Rs.14,16,655/- latest by 16th January, 2004 with automatic cancellation thereafter. We are unable to find any such clause as set out in Sheela Bisht (supra) in the said letter. A perusal of the judgment in Sheela Bisht shows that the allotment letter therein was of the year 1987. It appears that the respondent DDA over the years changed the terms and conditions of allotment letter and which, it cannot be disputed, it is entitled to. Moreover there is no basis in the writ petition for the said argument. The writ petition,

as aforesaid was predicated on the appellant, notwithstanding having not complied with the demand-cum-allotment letter dated 18 th July, 2003, being still entitled to benefit thereof for the reason of having vented his legal rights on the basis of the judgment in Renu Bali of the learned Single Judge which was subsequently set aside.

13. Be that as it may, the dicta of the Full Bench of this Court in Renu Bali being that the allottees of the SFS Flats even if in default are entitled to allotment on payment of current costs and finding the flat in the present case to be still available, we have enquired from the counsel for the respondent DDA as to whether the respondent DDA is willing to give the said flat to the appellant on current costs. The counsel for the respondent DDA states that though the appellant had made a representation even in the year 2011 offering to pay the current costs but the same is not acceptable to the respondent DDA. We however do not have before us the record of DDA to find the reasons which prevailed with the DDA to refuse the offer of the appellant to pay the current costs. It is well nigh possible that the respondent DDA is feeling jilted by the appellant having refused to abide by the earlier settlement arrived at with the respondent DDA in the first writ petition aforesaid.

14. Though we do not find any error in the law applied by the learned Single Judge but are of the view that the effect of the following facts and circumstances has not been considered and due weightage thereto has not been given by the learned Single Judge:-

(i) that the appellant inspite of his registration with the respondent DDA since the year 1982 is still without flat;

(ii) it can safely be assumed that the appellant in view of the said registration has not acquired any other residential accommodation in Delhi;

(iii) the appellant in the first writ petition, instead of continuing to litigate, as was done by others similarly situated as him, offered to pay the current cost to the respondent DDA and which offer was accepted by the respondent DDA;

(iv) the conduct of the appellant of subsequently challenging the current cost demanded from him was owing to the success before the learned Single Judge of the said others in Renu Bali (supra) and was misguided but explainable and bonafide and not unpardonable;

(v) the amount of Rs.5,42,578/- deposited by the appellant with the respondent DDA in the years 1992-1999 has remained with the respondent DDA for the last twenty years;

(vi) the appellant has already suffered enough, the cost of the flat having already escalated from Rs.6,27,200/- to Rs.18,34,600/-;

(vii) the appellant has throughout acted bonafide and even while settling with the DDA in the first writ petition and at no time thereafter has demanded any interest on the amounts paid by him and being enjoyed by the DDA;

(viii) the bonafides of the appellant are further evident from the appellant, immediately after the Full Bench judgment in Renu

Bali, giving up challenge to the demand dated 18th July, 2003 and offering to pay the same;

(ix) the area of Jasola where the flat is situated, was in the year 1991 when allotment was first made to the appellant, virtually un- inhabited;

(x) the appellant having already in the years 1992-99 paid about one third of the cost of the flat in the year 2003, cannot be equated with a registrant who has not paid any amount whatsoever;

(xi) DDA being 'State' owes a duty to act fairly;

(xii) DDA has not suffered any loss; it is not as if DDA has constructed the flat in subsequent years at a higher/increased cost.

15. Considering all the aforesaid peculiar facts, we in exercise of our powers under Article 226 of the Constitution and without purporting to lay down any precedent, are of the view that interest of justice will be subserved by directing DDA to complete allotment of flat no.25 aforesaid in favour of appellant upon the appellant paying to the DDA the cost of the flat as on the date of filing of W.P.(C) No.8626/2006, less the amount already paid by the appellant. For the delay in payment since then, considering that no interest is being awarded on the amounts of the appellant which DDA continues to enjoy, we do not deem it appropriate to award any interest.

16. We therefore dispose of this appeal by directing the respondent DDA to, within ten weeks hereof raise a fresh demand-cum-allotment letter with respect to Flat No.25, 2 nd Floor, Block-8, Jasola, New Delhi on the appellant in terms of above, giving time of three months to the appellant to make payment thereof. Upon the appellant so making the payment, possession of the flat be delivered to appellant and title documents in respect thereof be executed in favour of the appellant.

No order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE

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