Anurag Sahai vs D.D.A.
2012 Latest Caselaw 6686 Del

33.
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*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+        W.P.(C) 7247/2011

%                                                       Judgment dated 22.11.2012

         ANURAG SAHAI                                   ..... Petitioner
                                Through :   Mr.R.K. Saini and Mr.Vikram Saini,
                                            Advs.

                       versus

         D.D.A.                                               ..... Respondent

Through : Mr.Sushil Dutt Salwan and Latika Dutta, Advs.

CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J (ORAL)

1. Present petition has been filed by petitioner under Article 226 of the Constitution of India seeking the following prayers:

a) A writ of Certiorari calling for the records of the case for perusal;

b) A writ of Certiorari quashing the action of the respondent/DDA in cancelling the allotment of the LIG flat made in favour of the allottee under NPRS 1979 after receiving back the allotment letter sent at the residential address given by him at the time of registration without trying to serve the same at the occupation address, despite the fact that the occupational address was also given at the time of registration and was available on record and then declining to make alternative allotment to his Legal Representative after mutation, being illegal, arbitrary, discriminatory, unjust and in violation of the Rules, Regulations and policy and the principles of equity, natural justice and good conscience;

c) A writ of Mandamus directing the Respondents to allot an alternative LIG flat in Dwarka in the same area/Sector and issue a demand letter to the petitioner in respect thereof, charging him for the same at the old cost, as per policy.

d) A Writ of mandamus commanding the respondent to pay the cost of the petition to the petitioner.

2. Rule. With the consent of counsel for the parties, present writ petition is set down for final hearing and disposal.

3. The necessary facts, to be noticed for disposal of the present writ petition, are that the petitioner registered himself with the respondent DDA under the New Pattern Registration Scheme, 1979, for allotment of a LIG flat on making payment of the registration deposit. At the time of registration, the petitioner had informed DDA his residential address as House No.B-60, Kidwai Nagar, New Delhi, where he was living at that time. As against the column „occupational address‟ the petitioner had written the word „service‟, he had annexed an income certificate from his employer i.e. M/s Fasteners India on its letter head where both the factory and office address of the said business establishment were given (where he was gainfully employed). Thereafter the petitioner shifted his residence from Kidwai Nagar, however, he did not inform the DDA with regard to change of his residential address though the petitioner continued to work with the same business establishment. In the year 2000 priority number of the petitioner matured. The name of the petitioner was included in a draw held during this year in which he was allotted a LIG flat bearing no.175, Pocket-I, Sector-14, Dwarka, Phase-II, Delhi. A demand-cum-allotment letter was sent by DDA at the petitioner‟s residential address, available in the record of the DDA, however, the same was returned undelivered. The DDA did

not send the demand-cum-allotment letter to the petitioner at his occupational address and, thus, on account of non-payment of the amount, the allotment made in favour of the petitioner was cancelled by the DDA.

4. As per the writ petition petitioner approached DDA in the month of June, 2011, to enquire about the status of his priority number. The petitioner also attended a public hearing, where he learnt that an allotment had been made in his name, however, the same was cancelled on account of non- payment of the amount. Thereafter representations were made by the petitioner to the DDA on 28.6.2011 and 6.7.2011, copies of which have been filed on record, which were duly received by the DDA. Personal meetings with the officials of the DDA also did not yield any favourable result, which led to the filing of the present writ petition.

5. Learned counsel for the petitioner submits that grievance of the petitioner is that despite the occupational address available with the DDA, the DDA did not send the demand-cum-allotment letter to the petitioner and, thus, the case of the petitioner is fully covered under the policy of the DDA as per which in case the demand-cum-allotment letter is received back undelivered the same is to be sent at all the addresses available with the DDA. Counsel further submits that the petitioner belongs to a middle class strata and he has been waiting for a number of years in the hope of owning a property in Delhi. It is further contended that a consistent view has been taken by this Court in number of cases that where alternate addresses are available with the DDA, the DDA is duty bound to issue the demand-cum-allotment letter to the applicant at all the addresses available in their record.

6. Present writ petition has been opposed by learned counsel for the DDA primarily on the ground of delay and laches. Counsel for the respondent has relied upon Banda Development Authority, Banda, v. Moti Lal

Agarwal and Others, reported at (2011) 5 SCC 394, more particularly para 17, which reads 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."

7. Mr.S.D. Salwan, learned counsel for the respondent, submits that petitioner has been sleeping over his rights. Counsel further submits that petitioner has not given any explanation as to why since the year 2000 the petitioner did not enquire from the DDA or approach this Court earlier. Counsel next submits that New Pattern Registration Scheme, 1979, already stands closed by the DDA and due publication, in this regard, was also made by DDA in leading newspapers from time to time. Mr.Salwan further submits that the petitioner had not actually provided his occupational address and just written the word „service‟ against the column „occupation‟, and, thus, he cannot derive any benefit of the judgments, sought to be relied upon, by the counsel for the petitioner.

8. Mr.Saini, learned counsel for the petitioner, submits that in the case of Mohinder Singh v Delhi Development Authority, W.P.(C) 1096/2011 similar situation had arisen and the Court had taken a view that DDA is duty bound to go through the entire file to ascertain if any other address is available and the demand-cum-allotment letter sent at the occupational address, which was available in the file of the DDA. Para 13 of this judgment reads as under:

"13. In the case of Hirdayapal Singh (supra), applicant (petitioner in the case) had mentioned only one address in the application

form, but subsequently he informed the DDA about his permanent address and the court was of the view that once demand letter was returned undelivered the DDA should have sent the demand letter at all the addresses available in the file of the DDA. To my mind the case of the petitioner is on a better footing as at the time of registering herself for allotment of a LIG flat the petitioner along with the application form had enclosing his salary certificate issued by the school where the petitioner was working, filing of a copy of the salary certificate was a mandatory requirement and thus has to be considered to be a part of the form. No doubt the petitioner has been careless in filling up the application form and not providing his occupational address in the column provided, but the file of the DDA would comprise not more than seven pages, which include four annexures and two pages of the application form. The DDA should have acted in the interest of the allottee, a common citizen, who has been waiting for more than two and a half decades for a flat in his name. In such a situation when the allotment letter was received back, DDA was duty bound to go through the entire file to ascertain if any other address was available and the demand-cum- allotment letter should have been sent at the occupational address which was available in file of the DDA. The common man must derive the benefit of the policy dated 25.2.2005 and in my view in the facts of the present case, once demand-cum-allotment letter was received back to the DDA undelivered, the DDA should have carefully perused the file and ensured that demand-cum-allotment letter is sent at all the addresses available in the file."

9. Learned counsel for the petitioner submits that this judgment was taken up in the appeal and the decision was upheld by the Division Bench of this Court by the order dated 14.2.2012 in LPA No.1098/2011.

10. I have heard learned counsel for the parties and considered their rival contentions. The basic facts of this case are not in dispute that the petitioner applied for allotment of a flat under New Pattern Registration Scheme, 1979, for allotment of an LIG flat. At the time of registration, the petitioner had mentioned his residential address as House No.B-60, Kidwai Nagar, New Delhi, and he had also informed DDA with regard to

his occupational address. It is also not in dispute that thereafter the petitioner changed his residence, however, the petitioner did not inform the DDA with regard to change of his residential address. It is also not in dispute that demand-cum-allotment letter sent to the petitioner at his old residential address i.e. Kidwai Nagar was returned to the DDA undelivered and thereafter the demand-cum-allotment letter was not sent at the occupational address of the petitioner.

11. In this case, at the time of registration under the New Pattern Registration Scheme, 1979, the petitioner had not informed DDA with regard to his occupational address, however, an income certificate from his employer was placed on record, on the letter head of the employer where the address was mentioned. The petitioner continued to work with the same business establishment and in case the demand-cum-allotment letter was issued to the petitioner at his occupational address there is every likelihood that he would have received the same. Accordingly, the present case is fully covered by the decision rendered by the Court in the case of Mohinder Singh v. DDA (supra) which has been upheld by the Division Bench.

12. There is no explanation forthcoming as to why DDA did not issue demand-cum-allotment letter at the occupational address, which was available in their record. This has resulted in delay for the petitioner to own a flat for which initial payment was made as far back as in the year 1979.

13. The DDA, which is a statutory body, has failed to perform its duty. The Court cannot lose track of the fact that a condition of eligibility for allotment of a flat under New Pattern Registration Scheme, 1979, is that an applicant should not own any other permanent residence in Delhi, resultantly the petitioner would not have taken any step to acquire another

property in Delhi. Another factor, which cannot be lost track of, is that allotment under this scheme were made over a span of more than two decades and thus the petitioner could well have been misled that his allotment would mature in time to come. DDA was well aware of the various judgments passed by this Court from time to time that DDA is duty bound to inform an allottee with regard to the allotment at all the addresses available in their record.

14. While there is no quarrel to the proposition laid down by the Apex Court in the case of Banda Development Authority, Banda (supra), learned counsel for DDA is unable to satisfy this Court as to how this judgment would be applicable to the facts of this case, when DDA has been responsible for delay in making the allotments of the flats for reasons, which may or may not be justifiable. There is also no explanation as to how the rights, in this case, of the parties stand settled or crystallized since there is no third party involved in the present case.

15. As far as the submission made by learned counsel for the DDA with regard to publication in the newspapers with regard to maturity of numbers and closure of scheme is concerned, this submission stands rejected by a judgment dated 28.1.2008 passed by this Court in the case of Usha Saikia v. DDA, W.P.(C) 266/2007. As far as another submission of learned counsel for the respondent is concerned that income certificate is not available in record of the DDA, such a submission cannot be accepted as along with the application form, the following annexures are mandatory:

                 (i)     Income certificate;
                 (ii)    Challan form;
                 (iii)   Option form;
                 (iv)    SC/ST Certificate.

16. In case the income certificate was not attached, the application form of the petitioner would have been rejected and his name would not have been included in the draw.

17. To balance the equities and for the delay in approaching this Court, the petitioner was asked if he is willing to accept the flat as per the prevailing rate of 2011, when the petitioner approached this Court. Learned counsel for the petitioner submits that the petitioner is willing to accept the flat at the cost which prevailing in the year 2011, when he had approached this Court.

18. Accordingly, present petition is allowed. Rule is made absolute. The petitioner will be allotted a flat preferably in the same area, if available, at the cost which prevailing in 2011, subject to petitioner completing all the formalities within two months from today.

19. Writ petition stands disposed of.

20. DASTI.

G.S.SISTANI, J NOVEMBER 22, 2012 msr