Delhi High Court
V.P. Sunita vs Dda on 17 December, 2013
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: 17th December, 2013
+ W.P.(C) 7602/2010
V.P. SUNITA ..... Petitioner
Through: Ms. Richa Kapoor, Adv. with
Ms. Karuna Chhatwal, Adv.
versus
DDA ..... Respondent
Through: Ms. Manika Tripathy Pandey, Adv.
CORAM:
HON'BLE MR. JUSTICE G.P. MITTAL
JUDGMENT
G.P. MITTAL, J.
1. By virtue of this writ petition under Article 226 of the Constitution of
India, the Petitioner seeks restoration of allotment and handing over the
possession of the MIG Flat No.239, (Ground Floor), Sector 14, Pocket B,
Phase-2, Dwarka, New Delhi as the entire payment of the flat has already
been made to the DDA.
2. On 29.12.1989, the Petitioner applied for allotment of an MIG flat under
the Ambedkar Awas Yojna being a member of Scheduled Caste category.
She paid a sum of `12,200/- as registration and processing fee and was
allotted Registration No.9335 and Priority No.5881. On 31.12.2002, the
Petitioner was declared successful in the draw of lots and was allotted the
flat mentioned earlier. As per the demand-cum-allotment letter (DAL)
dated 24-31.03.2003 mailed at the Petitioner's local address, she was
required to make payment of `5,50,279/- upto 30.05.2003. The Petitioner
was further given the option to pay the amount with interest, i.e.
`5,70,632/- by 28.08.2003. Since the Petitioner had applied for allotment
under the hire purchase scheme, the balance cost of the flat was payable
by the Petitioner in 120 monthly instalments of `6810/- per month
commencing from 10.07.2003.
3. According to the Petitioner, she was away to America on account of
illness of her father for a few months. On her return from America, she
got the letter after a delay of three months. On 04.12.2003, the Petitioner
made a payment of `3 lacs. The Petitioner further made a payment of `2
lacs on 05.02.2004 after a delay of eight months. It is claimed that a
letter dated 26.07.2004 was written by the DDA asking for verification of
the Petitioner's case. By letters dated 18.05.2004 and 26.07.2004, the
Petitioner was requested to appear in person along with relevant record
for verification of the documents. Although the DDA claims that the
Petitioner failed to appear, Petitioner avers to the contrary. The Petitioner
thereafter made further payment of `70,000/- with a delay of 418 days.
4. The Petitioner then applied for conversion of the flat from hire purchase
scheme to cash down basis. A sum of `6,50,000/- as demanded by the
DDA was duly paid. By a letter dated 15.09.2005, the DDA asked the
Petitioner to make the balance payment of `1373/- which was also made
by the Petitioner on 19.10.2005. Although the Petitioner's case was being
processed for restoration of the allotment, however, by a letter dated
11.07.2006 (Annexure R-2), the request for restoration of the allotment
was cancelled in spite of the fact that the Petitioner had paid the
restoration charges as demanded by the DDA. The Petitioner then made
a representation to the Vice Chairman and to the Lt. Governor of Delhi in
the capacity of the Chairman, DDA. However, the same were also
rejected, hence the writ petition.
5. The defence raised by the DDA is plain and simple. It is stated that since
the Petitioned failed to make the payment in terms of the demand-cum-
allotment letter, the allotment stood cancelled automatically on failure to
make the payment. It is stated that as per the policy of the DDA dated
31.01.1999, 01.06.2000 and 30.06.2005, restoration of allotment is
permissible if the delay in payment is less than three years. It is stated
that since the Petitioner's case is not covered under the policy, the delay
was not condoned.
6. It is the admitted case of the parties that as per the terms of the allotment
letter, payment of `5,70,632/- (inclusive of interest for delayed payment)
was required to be made by the Petitioner by 28.08.2003. It is also borne
out that the payment of `5,70,000/- was made by 19.10.2004 in three parts
starting with payment of `3 lacs on 04.12.2003. It is also borne out from
the record that the Petitioner's case for conversion from hire purchase to
cash down payment was processed (though not formally allowed) and the
Petitioner was informed to make the balance payment of ` 6,50,000/-
which was duly made. The Petitioner was further informed to make the
payment of `1373/- which was also made as demanded.
7. The defence of the DDA is that an allottee cannot be permitted to make
the payment as per his/her whims and fancies. Reliance is also placed on
a judgment passed by a learned Single Judge of this Court in Pitamber
Dutt v. DDA & Anr., W.P.(C) No.3184/2012, decided on 14.08.2012.
8. I am not inclined to agree with the submissions made by the DDA.
Pitamber Dutt is not attracted to the facts of the instant case. In the
instant case, even if all the three payments made by the Petitioner are
considered to be delayed and the last date is considered as 19.10.2004,
there was a delay of only one year and two months in making the
payment. The payment of instalments was not made as the Petitioner had
made a request for conversion of the allotment from hire purchase to cash
down payment, which admittedly was being processed by the DDA and
the amount as demanded including interest was deposited by the
Petitioner. The Petitioner has drawn attention of the Court to a number of
cases where delay of even upto three years has been condoned by the
DDA. The DDA in the counter affidavit has not given any defence as to
why the case of the Petitioner could not be similarly considered. I would
extract para 11 and ground G of the writ petition hereunder:-
"11. During all these while, when the Petitioner's
representatives were visiting the office of the Respondent's
office, they were being informed that the case of the Petitioner
was being processed for regularization of the delay and that the
Accounts Wing of the Respondent has confirmed the receipts of
the above payments, in all totalling `12,21,375/-. The details of
payments are given herein below:-
S.No. Challan No. Date Amount
1. 62212 4.12.03 3,00,000
2. 193498 5.2.04 2,00,000
3. 46256 19.10.04 70,000
4. 32180 12.5.05 1,87,500
5. 32181 12.5.05 1,93,500
6. 32178 12.5.05 81,000
7. 32179 12.5.05 1,88,000
8. 96650 19.10.05 1,375
Total 12,21,375
G. Because in fact, as a matter of routine, senior officials of the
Respondent, condone the delay in genuine cases and the
Petitioner's case is one such, where the delay in payment ought
to be condoned by the Respondent. There have been a large
number of cases, where the delay of more than even four years
has been condoned by the Respondent. To cite few examples,
the Petitioner is giving below details of cases, where the delay
of few years in making payment has been condoned and
restoration has been allowed on old cost + interest/restoration
charges.
Sl. Date of Name of the Flat Delay in Date of
No. Draw/ allottee Particulars payment Execution of
allotment - Conveyance
Number Deed
of
years/
months
1. 31.5.02 Bimla Devi 251, Sector 17, 3 yrs. 31.5.05
w/o Late Sh. Pocket E,
M.R. Gover Phase 2,
Dwarka
2. 22.12.01 Asha 187, Sector 13, 2 yrs. 8 14.6.04
Bhushan / Pocket B, months
Asha Gautam Dwarka,
Phase 2
3. 22.12.01 Suresh 209, Sector 13, 2 yrs. 2 --
Humdraj Pocket B, months
Prithyani Phase 2,
Dwarka
4. 30.5.03 Surinder 271, Sector 17, 2 yrs. 28.3.05
Bhatia Pocket E, 10
Phase 2, months
Dwarka
9. It cannot be said that the Petitioner was making the payment on her own
whims and fancy. When the Petitioner made a request to convert her
allotment from hire purchase to cash down, the DDA asked her to make
the lump sum payment of `6,50,000/-. The DDA itself admits that it is
permissible to condone the delay upto three years. In the instant case,
even if the last payment of `70,000/- is considered to have been made on
19.10.2004, there was a delay of just one year and two months in making
the payment of `5,70,000/- from the last date 28.08.2003 as mentioned in
DAL. In the instant case, the ground for delay given by the Petitioner is
that she was out of country to attend to her ailing father.
10. The policy laid down by letter dated 03.06.2005 placed on record by the
Petitioner reveals that the Vice Chairman of the DDA was competent to
condone the delay in making the payment upto three years in deserving
cases. The relevant portion of the Resolution dated 03.06.2005 is
extracted hereunder:-
"DELHI DEVELOPMENT AUTHORITY
HOUSING DEPTT.
Item No.29/2005
Sub: Policy for Restoration of cancelled DDA flats.
Ref. File No.F2(10)2001/N&C/
The Authority vide its resolution No.46/2001 (Appendix-A) has
65 to 66) resolved as under:
(i) These decisions shall apply only to the future cases of
restoration where DDA is at fault.
(ii) Commissioner (H) shall be competent to approve
restoration for delay in payment upto one year.
(iii) No restoration shall be normally allowed where delays
are beyond one year. However, the Vice-Chairman,
DDA shall be competent to approve restorations for
delays upto 3 years, in deserving cases.
(iv) Restoration beyond three years can be permitted only in
extremely deserving cases by the Vice-Chairman with the
prior approval of Chairman."
11. Thus, it would be seen that the Vice Chairman was competent to condone
the delay even beyond three years with the approval of the Chairman in
deserving cases. It is not the case of the DDA that the Petitioner's case
was not found to be deserving. Thus, the act of the DDA in declining to
condone the delay in making the payment is arbitrary and cannot be
sustained.
12. A learned Single Judge of this Court in Mohd. Sultan v. DDA, W.P.(C)
No.13290/2009, decided on 11.01.2011 considered the condonation of
delay as per the policy in existence in the year 2003 and observed that the
Petitioner was denied condonation of delay in making the payment
without any genuine reason and held that the discretion should have been
exercised in his favour. Paras 10 to 12 of this order are extracted
hereunder:-
"10. In terms of the policy of the DDA, in case of a delay
beyond 180 days and upto 270 days (inclusive of the 180 days),
the Principal Commissioner would have the powers to condone
the delay. Where the delay was up to 360 days (inclusive of the
270 days) the case can be regularized by the Vice Chairman.
This regularization would be done on payment of restoration
charges and penal interest @ 15% per annum. If the delay is
beyond one year, the power to condone the delay lies with the
Lieutenant Governor subject to the case being an "extremely
deserving" one.
11. In the present case, the DDA was bound to consider
whether the grounds adduced by the Petitioner for not being
able to make the payment of instalments in time were genuine
and whether the discretion could be exercised in his favour.
Apart from stating that the Petitioner should be put to strict
proof of the averments regarding his financial difficulties on
account of the prolonged illness of his family members, the
DDA is not in a position to assert that such claim by the
Petitioner is false. The only factor that appears to have weighed
with the DDA is that despite granting an extension of 180 days
for making payment, the Petitioner did not pay the second
instalment within the extended time. Therefore, the allotment
was cancelled. This Court finds that the DDA really did not
consider whether the delay in the present case should be
condoned in terms of its policy. It is not as if the DDA has never
condoned a delay of over 500 days in making payment of
instalments. Some of the instances are reflected in the notings
on files, copies of which have been placed as Annexure P-18 of
the paper book. Certain other instances have been noticed by
the Division Bench of this Court in its order dated 11 th August
2008 in Raj Kumar Sharma v. Delhi Development Authority. In
para 9 of the said order, it was observed as under:
"9. We have given our anxious consideration to the arguments
made at the Bar and we have also gone through the records
including various policies of the DDA regarding restoration
and condonation of the delay. In the present case, the Appellant
had waited for the allotment for over 24 years and when he was
allotted the demised flat in the year 2003, he was not in a
financial position to make payment due to illness of his mother.
The Appellant has cited in paragraph 17 of the writ petition
cases of allottees Bimla Devi, Asha Bhushan, Suresh Humdraj
Prithyani and Surinder Bhatia etc. in which cases DDA has
condoned delay of over four years whereas in the case of the
Appellant the delay in payment was only for a year. The
Appellant has also furnished three specific examples where in
the case of Satya Pal and Rita Pura delay of five years and six
years respectively was regularized after approval of Lt.
Governor. In the third case of one Manju Jain, the DDA had
restored allotment after about 17 long years. Our attention was
also drawn to the judgment of this Court in Pran Nath Thukral
v. Delhi Development Authority [Writ Petition (Civil) No.
19783 of 2005] decided on 5th October 2005, wherein it is
observed as under:
"Would it be just and fair to do so considering the fact
that DDA has monopoly status over land in Delhi. These
registrants have stood as honest citizens and have
awaited a plot in an authorized colony. Many of their
counterparts have chosen the softer route.
Those who have abided by law must be entitled to a
compassionate consideration.
It is expected that the Vice Chairman and the Chairman,
DDA would have a relook on the Rohini Residential
Scheme and in particular in relation to the time-frame
within which allottees have to make the necessary
payments. While reconsidering the matter, it should be
kept in mind that the executive has the power to condone
the delay on charging reasonable interest."
12. This Court is of the considered view that the Petitioner's
case also ought to have been considered by the DDA in light of
its policy. Two members of his family expired during the period
in question after prolonged illness for which considerable
expenditure had been incurred. It cannot be said that this was
not a genuine reason. Discretion should be exercised in his
favour. In view of the hardship explained by the Petitioner, and
the delay in making the payments ought to have been
condoned."
13. The Petitioner has given four specific instances in ground 'G' of the writ
petition which have been extracted earlier in Para 8 of this judgment
where the delay of more than two years and in one case of three years
was condoned. The DDA is completely silent about the same in the
counter affidavit which would show that the delay in those cases was
condoned. Since this Court has already observed above that there was a
delay of just one year and two months in making the part payment of the
initial amount of `5,70,632/- (inclusive of interest), the Petitioner was
entitled to favourable consideration in view of the policy formulated by
the DDA. Otherwise also, the action of the DDA was discriminatory and
arbitrary in view of the instances referred to earlier.
14. The writ petition therefore, has to succeed. Since the full payment in
respect of Flat No. 239, (Ground Floor), Sector 14, Pocket B, Phase-2,
Dwarka, New Delhi has been made by the Petitioner, she is entitled to the
allotment and the possession thereof immediately. Consequently, this
Court issues a writ of mandamus directing the Respondent DDA to
forthwith restore the allotment and handover the possession of Flat No.
239, (Ground Floor), Sector 14, Pocket B, Phase-2, Dwarka, New Delhi
to the Petitioner within a period of eight weeks from today. In case this
flat has already been allotted to some other person, the DDA is directed to
allot and deliver possession of another flat with similar area on the
ground floor in Sector 14, Dwarka, New Delhi within a period of 12
weeks from today.
15. The writ petition stands disposed of in above terms.
16. Pending applications, if any, also stand disposed of.
(G.P. MITTAL)
JUDGE
DECEMBER 17, 2013
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