Delhi High Court

Ravinder Kaur vs Delhi Development Authority on 5 April, 2013

Author: Reva Khetrapal

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C) 3570/2010

RAVINDER KAUR                                ..... Petitioner
            Through:              Mr. Nanda Kinra, Advocate.

               versus

DELHI DEVELOPMENT AUTHORITY ..... Respondent
             Through: Ms. Madhumita Bhattacharjee,
                      Advocate.


%                            Date of Decision : April 05, 2013

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

                             JUDGMENT

: REVA KHETRAPAL, J.

1. Rule. With the consent of the parties, the matter is set down

for final hearing and disposal.

2. The prayer in this writ petition is for issuance of a writ of

mandamus directing the Delhi Development Authority to allot to the

Petitioner a MIG flat under the policy of missing priority framed by

the DDA dated 25.02.2005, and the policy instructions issued by the

Vice-Chairman, DDA on 02.04.2004, and also in accordance with the

DDA Circular dated 07.10.2008.

3. The essential facts of the case are not in dispute. In 1979, the

registrant Amar Singh booked a MIG flat vide registration No.36

under the New Pattern Registration Scheme, 1979 and died on

04.09.1985. On 09.02.1989, Smt. Jai Kaur, wife of late Shri Amar

Singh submitted an application for mutation and transfer of

registration and submitted the requisite documents, pursuant to which

on 13.07.1989, the DDA transferred the mutation to her vide their

communication of the same date (Annexure P-4 to the petition). On

21.02.1990, Smt. Jai Kaur was allotted a flat at Rohini, being flat

No.42, Sector 18, Block-A, Pocket-II, GRD Floor, Rohini vide

allotment letter with block dates 14.02.1990 - 21.02.1990. Smt. Jai

Kaur, however, opted for allotment of flat as per the tail end policy of

the Delhi Development Authority prevalent in 1990 by paying the

cancellation/tail end charges of ` 4,535/- vide challan No.0860921

dated 28.05.1990 (Annexure P-5 to the petition). Smt. Jai Kaur died

on 06.12.2003 and the Petitioner being the wife of the pre-deceased

son of Smt. Jai Kaur applied for mutation and transfer of registration

on 11.02.2004, submitting the requisite documents, acknowledgment

receipt whereof has been placed on record as Annexure P-6.

4. On 31.03.2004, the tail end draw was held but the name of the

Petitioner was missing in the draw. On 02.04.2004, the Petitioner

visited the office of the DDA and was informed about the instructions

issued by the Vice-Chairman dated 02.04.2004 enclosed as Annexure

P-7 to the writ petition and published in the newspapers, that the

record of the DDA was not updated and all those who had paid the

tail end charges will be allotted flats. Paragraph 2 of the said

instructions provided for eligibility for allotment as under:-

"2. The registrants to whom tail end priority has not been assigned but they have deposited the cancellation charges making them eligible for allotment of tail end priority and also allotment of the flat."

5. It would also be apposite to mention at this juncture that the

aforesaid instructions of the Vice-Chairman, DDA dated 02.04.2004

took note of the fact that "since there was no record of tail end

priority of registration scheme of 1979 and now 22 years have

passed, thus if any registrant to whom tail end priority is to be

assigned is left then nobody should be held responsible and

subsequently their case can be considered in the next coming draw."

6. No flat having been allotted to the Petitioner in the draw held

on 31.03.2004, the Petitioner on 31.10.2007 submitted a

representation to the DDA followed by another representation dated

04.08.2008 (Annexures P-8 and P-9 to the petition).

7. On 07.10.2008, pursuant to the Petitioner's representations, the

DDA gave her a copy of the Circular dated 07.10.2008 issued by the

Commissioner (Housing), being Circular No.F2(10)2001/Coord/H/

Pt.I/236 dated 07.10.2008. The said Circular being apposite, for the

sake of ready reference, is reproduced hereunder:-

"DELHI DEVELOPMENT AUTHORITY HOUSING DEPARTMENT (COORD.)

NO.F2(10)2001/Coord/H/Pt.I/236 dated the 7/10/08

CIRCULAR

The issue regarding allotment under the tail-end priority has recently been considered by the Hon'ble Single Judge and the Division Bench of the Delhi High Court in a number of cases.

The Department has considered the said judgment and it has been decided to adopt a uniform policy to avoid any confusion in such cases as per the decision henceforth, DDA shall charge the cost prevalent as on 31.07.2004, (four months after 31.3.2004, i.e., the date of draw along with 12% interest from 31.07.2004, till payment in terms of demand letter. The policy will cover the following type of cases:-

i) Registrants who have paid the cancellation charges within stipulated period from the date of the cancellation and have been included in the draw but demand letters have not been issued or who are eligible for the allotment under the tail

end priority but have not been included in the draw of lots held on 31.3.2004.

ii) Those MIG registrants who have paid the cancellation charges within time and approached the DDA for allotment of the flat under the tail- end priority within 30 days from the date of notification dated 5.2.2006, vide which DDA had requested all the allottees/registrants to contact DDA for allotment of the flat under MIG category of the New Pattern Scheme who had not been allotted the flat.

This issues with the approval of Vice-Chairman, DDA.

(Asma Manzar) Commissioner (Housing)"

8. In 2009, the Petitioner in the course of personal hearing

afforded to her by the DDA again requested for tail end allotment in

accordance with the aforesaid Circular issued by the DDA, but no

MIG flat was allotted to her. Hence, the present writ petition

impugning the action of the DDA, which is stated to be contrary to its

own missing priority policy dated 25.02.2005, the instructions issued

by its Vice-Chairman dated 02.04.2004 and the Circular dated

07.10.2008.

9. In the Counter-Affidavit filed by it, the DDA has not denied

that after the death of Shri Amar Singh, who was the original

registrant, his wife Smt. Jai Kaur applied for mutation of the

registration which was allowed vide letter dated 13.07.1989, that Smt.

Jai Kaur was allotted MIG flat in the draw of lots held on 14.02.1989;

that Demand-Cum-Allotment Letter was issued to her with block

dates 14.02.1990 - 21.02.1990 and that Smt. Jai Kaur requested to

cancel this allotment and deposited ` 4,535/- towards cancellation

charges. Thus, the case of the Petitioner in toto has been admitted by

the Respondent/DDA.

10. In the course of hearing, however, learned counsel for the DDA

argued that the case of the Petitioner was not included in the tail end

priority cases, that there was inordinate delay on the part of the

Petitioner in approaching this Court, that the NPR Scheme had been

closed and that allotment therefore cannot be made to the Petitioner.

It was submitted that if at all the Petitioner is held entitled to the

allotment of a MIG flat, the same has to be in terms of paragraph 2 of

the policy of the DDA dated 25.02.2005, i.e., at the old cost prevalent

at the time of original allotment plus 12% simple interest with effect

from the date of the original allotment till the date of issue of fresh

Demand-Cum-Allotment Letter.

11. To counter the aforesaid submissions of DDA's counsel,

Mr. Kinra, the learned counsel for the Petitioner has drawn the

attention of this Court to the fact that cancellation charges were

accepted and duly acknowledged by the DDA for tail end priority

vide challan dated 28.05.1990. Mr. Kinra pointed out that the

Petitioner vide her communication dated 31.10.2007 had made a

grievance that her name had not been included in the tail end priority

draw held on 31.03.2004 and categorically stated that it was DDA's

fault because she had earlier applied for mutation on 11.02.2004.

This communication is not denied by the DDA, as indeed it cannot

be, in view of the acknowledgment of the DDA of the same date, i.e.,

31.10.2007. This being so, clearly the DDA was not justified in not

including the name of the Petitioner in the draw of lots held on

31.03.2004.

12. My attention has been drawn by learned counsel for the

Petitioner to the case of "Raj Kumar Malhotra vs. DDA" being

W.P.(C) No.5793/2005, which came to be decided by a learned

Single Judge of this Court by judgment dated 18 th October, 2005.

The learned Single Judge held that mere failure to pay cancellation

charges would not deprive an allottee of the right to be included in the

tail end priority cases and to be allotted flat on that basis. This

judgment of the learned Single Judge was affirmed by a Division

Bench of this Court on 4th June, 2008 in LPA No.179/2008 entitled

"Delhi Development Authority vs. Abhay Prakash Sinha" and the

decision of the Division Bench was further affirmed by the Supreme

Court by dismissal of SLP filed thereagainst.

13. Learned counsel for the Petitioner has sought to press into

service a number of decisions of this Court including judgments

rendered by this Court in W.P.(C) No.20250/2005 titled "Jai Prakash

vs. DDA", W.P.(C) No.11654/2006 titled "Subhash Chander Sethi

vs. DDA", W.P.(C) No.266/2007 titled "Usha Saikia vs. DDA" and

W.P.(C) No.8553/2008 titled "Harvinder Kaur vs. DDA" to urge

that the present case is squarely covered by the aforesaid precedents.

Learned counsel for the Respondent, on the other hand, cited two

judgments of this Court, being W.P.(C) No.18837/2006 titled "Bhim

Ram vs. DDA" and W.P.(C) No.7077/2008 titled "Bhagirath

Choudri (Deceased) through LR vs. DDA" to contend that the cost

prevalent as on date ought to be paid by the Petitioner even assuming

a flat was allotted to the Petitioner. Both the said cases, in my

considered view, are not apposite to the present case. In Bhim Ram

(supra), the learned Single Judge was dealing with a case where the

Petitioner was a defaulter in payment of instalments. The Petitioner

in the said case did not seek and pay any cancellation charges and

thus the said judgment is not applicable. In the case of Bhagirath

Choudri (supra), a direction was issued to the Respondent/DDA to

consider the Petitioner's case for the allotment of a MIG flat at the

cost prevalent in or around September, 2008 because the Petitioner

had not taken note of the advertisements of the Respondent/DDA

regarding allotments to persons missing priority, which were

regularly appearing in the newspapers every second or third year

since the year 2004. In the present case, on the contrary, the

Petitioner herself approached the DDA on 2nd April, 2004 to complain

that her name had not been included in the tail end priority draw held

on 31.03.2004. Though this fact is denied by the DDA in the

Counter-Affidavit filed by it, there is on record the acknowledgment

of the DDA of the cancellation charges paid by the Petitioner vide

challan dated 28.05.1990. There is also on record the representation

of the Petitioner dated 31.10.2007 and the acknowledgment of the

DDA of the receipt of the said representation. Thus, the Petitioner

cannot be said to be at fault as it approached DDA in less than four

years with the request to allot to her a flat at the cost of the draw held

on 31.03.2004.

14. The only other contention raised by the counsel for the DDA

was that public notice had been issued. This aspect has been dealt

with by a learned Single Judge of this Court in "S.C. Sethi vs. DDA",

W.P.(C) No.11654/2006. Paragraph 9 of the said judgment reads as

follows:-

"9. The plea taken by the DDA cannot be accepted. The public notice issued by the DDA on 4.7.2003, was meant only to update the residential address in the records of the DDA. The said notice does not make it mandatory for all the applicants/registrants, whether or not there had been a change in their addresses given to the DDA, to update the address. In the circumstances, there was no obligation on the part of the Petitioner to update his address since there was no change in his address. Consequently, the DDA was not justified in not including the name of the Petitioner in the draw of lots held on 31.3.2004."

15. In Abhay Prakash Sinha vs. DDA, W.P.(C) No.119/2007, on

the aspect of public notices, the following observations made by a

learned Single Judge of this Court are apposite:-

"10. Before this court, the sole reliance of the DDA is on the public notices which have been issued. It is apparent from the public notices that the DDA was conscious of the fact that several persons who were legitimately entitled to consideration for allotment of the flats on tail end priority or other priorities, had been overlooked. Certainly, the petitioner cannot be faulted for the failure of the DDA to consider the petitioner for allotment of the flat on a mere premise that they have issued public notices.

11. So far as the impact of such public notices effecting the private rights of the persons is concerned, it is required to be borne in mind that the applicants have been made to wait for decades for allotment of the flats. In the instant case, the petitioner has been waiting since the year 1979. Certainly, the citizens cannot be expected to be following newspapers of every single day for over 25 years keeping track of public notices which may be issued by the DDA. Such a plea on behalf of the DDA is both unfair and unreasonable. The respondent cannot be permitted to so avoid the responsibility and liability to consider the petitioner for allotment of a flat in an appropriate draw of lots especially in the facts which have been noticed hereinabove.

12. My attention has been drawn to an order dated 20th March, 2007 passed in WP (C) No.11654/2006 entitled Subhash Chander Sethi Vs. Delhi Development Authority, wherein in similar circumstances, the court had rejected a plea taken by the DDA placing reliance on its public notices.

13. Another order dated 19th July, 2007 passed in WP (C) No.10570/2006 entitled Tajinder Kaur Vs. DDA has been placed before this court wherein the court has rejected the DDA's contention and reliance on the public notices which were issued by it to deprive the bona fide registrants who have been waiting for several decades, for allotment of the flats.

14. Mr. Kinra, learned counsel for the petitioner, also places reliance on an order dated 21st July, 2006 in Writ Petition (C) No.20250/2005 Jay Prakash Vs. DDA passed by this court."

16. This leaves me to consider the aspect of cost of the flat to be

paid by the Petitioner and the contention of the DDA's counsel that

the Petitioner is liable to pay interest at the rate of 12% per annum for

the intervening period. Suffice it to state that in a recent decision

rendered by a Division Bench of this Court in LPA No.279/2008

titled "Basu Dev Gupta vs. D.D.A.", the Division Bench after

referring to the decision of learned Single Judge in Raj Kumar

Malhotra (supra) and the Division Bench in Abhay Prakash Sinha

(supra), has repelled the contention of the counsel for the DDA to the

effect that the DDA be permitted to charge interest at the rate of 12%

per annum on the cost of the flat in view of the Circular dated 17 th

October, 2008 issued by the DDA. The Division Bench opined that it