Rajiv Gupta vs Delhi Development Authority
2013 Latest Caselaw 3720 Del

                                                                             #39
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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 1415/2013 & CM APPL. 2673/2013

       RAJIV GUPTA                       ..... Petitioner
                           Through       Ms. Leena with Mr. Fazal Ahmad,
                                         Advocates
                           Versus

       DELHI DEVELOPMENT AUTHORITY      ..... Respondent
                    Through  Ms. Shobhana Takiar, Advocate


%                                 Date of Decision: 23rd August, 2013

CORAM:
HON'BLE MR. JUSTICE MANMOHAN

                                JUDGMENT

MANMOHAN, J: (Oral)

1. Present writ petition has been filed under Articles 226 and 227 of the Constitution of India seeking a direction to respondent-DDA to allot Flat No. 108, Second Floor, Pocket 2, Sector 23, Rohini, Delhi to the petitioner as well as to quash and set aside letter dated 8th November, 2012 issued by respondent- DDA.

2. The facts of the present case are that on 3rd October, 1979 petitioner applied for MIG flat under New Pattern Scheme, 1979.

3. On 29th November, 2002 petitioner was declared successful in a computerized draw and allotted Flat No. 74, Ground Floor, Pocket 2, Sector 8, Rohini, Delhi (hereinafter referred to as 'Flat No.74').

4. On 30th April, 2003, a demand-cum-allotment letter was issued to petitioner allotting a different flat bearing No. 108, Second Floor, Pocket 2, Sector 23, Rohini, Delhi (hereinafter referred to as 'Flat No.108'). In the said demand-cum-allotment letter, it was stated that petitioner had been initially allotted a wrong flat and in the event the amount asked for is not deposited by the stipulated date, the registration shall stand automatically cancelled.

5. On 2nd June, 2003, the petitioner sent a letter to the respondent-DDA requesting it to allot the initial Flat No. 74. Since the respondent-DDA did not reply to the petitioner's request and never gave any reason for change of the flat, the petitioner in December 2004 filed a complaint with the District Consumer Disputes Redressal Forum-II, Qutub, Delhi (hereinafter referred to as 'Forum').

6. Before the Forum, petitioner prayed for allotment of the initial Flat No.74 or a flat at the same location and floor in Sector 8, Rohini, Delhi as well as for payment of Rs.25,000/- on account of harassment caused to the petitioner.

7. On 27th April, 2006 in the reply filed by the Director (Housing), DDA it was for the first time pointed out that the Flat No.74 initially allotted to the petitioner did not exist at site and had been inadvertently included in the draw. It was also stated that within three months, the inadvertent error had been rectified by DDA and petitioner was allotted another Flat No. 108. It was further stated in the reply-affidavit by respondent-DDA that as the petitioner had not paid the amount within the stipulated period, there was an automatic cancellation of the demand-cum-allotment letter of Flat No.108.

8. After hearing the parties at length, the Forum disposed of the petitioner's complaint vide order dated 6th April, 2009. The relevant para of the order is reproduced hereinbelow:-

"After going through the record and hearing the argument as put forward by the Complainant and O.P. we hold the O.P. for the deficiency of service upto the extent and in a manner that the O.P. had been negligent in performance of the service so far the allotment of Flat in question to the complainant. The act of O.P. in displaying the name of Complainant for the Flat which does not exist at site amount to deficiency of services However, vide letter dated 30.04.2003 to O.P. by taking corrective steps has already allotted another Flat to the Complainant. Therefore the demand of the Complainant for the Flat which is not in existence i.e. Flat No.74, Ground Floor in Sector-18, Pocket-2B in Rohini, Delhi seems not justified hence rejected. As the O.P. owed the duty of care to the complainant as allottee of a Flat in the draw held on 29.11.2002 which later on found to be not in existence and has suffered injury and damage. Hence, we direct O.P. to pay to the Complainant an amount of Rs.15,000/- (Rupees Fifteen Thousand only) towards compensation and cost within 30 days of the receipt of this order."

9. Immediately thereafter the petitioner wrote various letters to respondent- DDA agreeing to accept the subsequent allotment of Flat No. 108. Petitioner by its letters also asked the respondent-DDA to intimate the amount that was due and payable by him.

10. In response to various representations made by petitioner, respondent- DDA vide its letter dated 8th November, 2012 intimated to the Ministry of Urban Development as well as to the petitioner that he was not entitled to allotment of any flat as the Forum had only directed payment of costs and not granted any other relief to the petitioner.

11. Ms. Leena, learned counsel for the petitioner submits that respondent- DDA has acted arbitrarily in issuing the cancellation order and that too without complying with the principles of natural justice. She further submits that respondent-DDA has misinterpreted the order dated 6th April, 2009 passed by the Forum and has overlooked its own fault.

12. On the other hand, Ms. Shobhna Takiar, learned counsel for respondent- DDA submits that respondent has acted fairly and reasonably in the present case inasmuch as the inadvertent error in allotting the Flat No. 74 was rectified suo moto by DDA within a period of four months. She contends that as the amount was not paid within the stipulated period in accordance with the demand-cum-allotment letter dated 30th April, 2003, the allotment of alternative Flat No.108 stood cancelled.

13. Having heard learned counsel for parties and having perused respondent- DDA's letter dated 8th November, 2012, this Court is of the opinion that respondent-DDA has refused to allot alternative Flat No. 108 to the petitioner on the ground that Forum had only awarded costs and not any other relief to the petitioner.

14. However, upon a reading of the District Forum's order, this Court finds that the District Forum concluded that DDA's action in initially allotting Flat No.74 amounted to deficiency of service. But, as the District Forum found that Flat No.74 had been wrongly included in the draw and DDA had vide its letter dated 30th April, 2003 taken the corrective step of allotting another Flat No.108, the petitioner's prayer for initial Flat No.74 was not granted. The Forum never held that subsequent allotment of Flat No.108 in petitioner's favour stood cancelled. In fact, the District Forum awarded compensation to the petitioner as it was of the opinion that respondent-DDA had been negligent in discharging its service.

15. In the opinion of this Court, respondent-DDA's interpretation of the Forum's order in the impugned letter dated 08th November, 2012 is contrary to facts and untenable in law. Acceptance of DDA's interpretation of Forum's order dated 06th April, 2009 would amount to placing premium on DDA's negligence. Accordingly, the impugned letter dated 08 th November, 2012 is

quashed.

16. This Court is further of the opinion that as the respondent-DDA never gave any reason to the petitioner for changing allotment of Flat prior to its reply affidavit before the Consumer Forum on 27th April, 2006, the petitioner was justified in initially not accepting the alternative allotment of Flat No.108. Consequently, the automatic cancellation clause in the facts and circumstances of the present case did not come into operation. It is pertinent to mention that even the District forum did not hold that the petitioner had lost its right to allotment of an alternative Flat No.108. Moreover, as the petitioner immediately after the pronouncement of the judgment by the District Forum had requested DDA to allot the alternative allotment, this Court is of the view that in the facts and circumstances of the present case, petitioner is entitled to allotment of Flat No.108. In the event, the said Flat No.108 is not available, respondent-DDA is directed to allot an alternative Flat to the petitioner in the same locality itself within a period of eight weeks.

17. To balance the equities, the petitioner is directed to make the entire payment of the Flat within eight weeks of intimation of cost by DDA along with simple interest @ 7% from 27th April, 2006, the date when the DDA filed its affidavit before the District Forum.

18. With the aforesaid observations and directions, present petition and application stand allowed, but with no order as to costs.

MANMOHAN, J AUGUST 23, 2013 rn/js