S.N. Malik vs Delhi Development Authority
2013 Latest Caselaw 2741 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+                       W.P.(C) 8436/2011


S.N. MALIK                                             ..... Petitioner
                        Through:   Mr. Dilip Singh, Advocate.

               versus

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

%                            Date of Decision : July 03, 2013

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

                             JUDGMENT

: REVA KHETRAPAL, J.

1. The present petition filed by the Petitioner seeks to assail the

action of the Respondent/DDA in cancelling the allotment of Flat No.

24-A, Pkt. - A, Nand Nagri, Delhi made in favour of the Petitioner in

the draw held on 18th February, 1991. The Petitioner also seeks a writ

of mandamus directing the Respondent/DDA to restore/re-allot the

aforesaid flat to the Petitioner or in the alternative any other flat in the

same locality at the old rates, that is, at the same cost as mentioned in

the original allotment letter.

2. The facts as culled out from the writ petition are that the

Petitioner applied for allotment of flat in the year 1979 under the New

Pattern Scheme in the MIG Category vide Registration No. 17793.

He was assigned priority No. 9513 and was allotted a flat bearing No.

24-A, Pkt. - A, Ground Floor, Nand Nagri, Delhi in the draw held on

18th February, 1991 for which a demand-cum-allotment letter was

issued with block dates 20.09.1991 - 24.09.1991 with the last date of

making the payment with interest as 23.12.1991 and automatic

cancellation thereafter. The Petitioner vide letter dated 22.10.1991

(erroneously mentioned as 22.08.92 in the writ petition) intimated

that he had tried to locate Flat No. 24-A, Pkt. - A, Nand Nagri, Delhi

but could not locate it in the absence of any Block number and also

requested the Respondent/DDA "to withdraw this wrong/doubtful

allotment" and include his name in the next draw. The Petitioner

waited for a reply to the aforesaid letter but none was sent by DDA.

Since the Petitioner had a transferable job, he shifted out of Delhi.

However, his family continued to reside at the same address. A letter

dated 02.06.1992 was received by a family member of the Petitioner

in the month of December, 1992 with the subject "Cancellation of

Allotment in respect of Flat No. 28-A, Pkt. - A, Nand Nagri, Delhi".

The Petitioner responded to the said letter vide letter dated June 27,

1992, the relevant portion of which is as under:-

"1. As per your demand letter you allotted me Flat No.24A, Nand Nagri which is incomplete address and hence you cannot expect me to pay for a flat which is not in existence as contended in my letter received by you on 22.10.1991(sic.). Therefore the question of any cancellation and imposition of penalty does not arise.

2. As per your letter dated 2.6.92 you have cancelled Flat No.28A, Pocket A, Nand Nagri allotment of which has never been intimated to me. I am surprised to receive the cancellation of the same.

3. In view of the position explained above, my suspicion that there is something wrong in your office pertaining to my allotment as mentioned by me in my previous letter is strengthened rather proved beyond anybody‟s doubt."

3. It is the case of the Petitioner that thereafter whenever the

Petitioner came to Delhi, he visited the office of DDA and was told

that cases of this nature would be taken at the end under the „Tail-End

Policy‟, so the Petitioner was advised to wait. However, when the

Petitioner came to know that the Scheme under which the Petitioner

was a registrant had come to an end in the year 2006, the Petitioner

started pursuing the matter vigorously by filing a case before the Lok

Adalat. At one stage, when the matter was pending before the Lok

Adalat, the case of the Petitioner was accepted by the

Respondent/DDA and the Petitioner was asked to deposit the

requisite affidavit and identity proof vide letter of the

Respondent/DDA dated 15.05.2009 and those documents were

accordingly submitted by the Petitioner. This is also evidenced by the

order of the Lok Adalat dated 22.09.09 placed on record by the

Petitioner to the effect that the Director (H) had agreed to reconsider

the matter in the light of the recent judgment of the High Court.

4. A copy of the file noting dated 16.11.2009 showing that the

matter was reconsidered by the Commissioner (Housing) has also

been placed on record by the Petitioner which reads as under:-

"The present case was earlier examined and rejected by the competent authority on the ground that the allottee was aware regarding the allotment but did not make any payment or approach DDA from 1992 to 2008. Thus the request for restoration of flat under reference or allotment of alternative flat cannot be considered favourably.

The PLA has now again advised that case should be re-examined in the light of the recent judgment of Hon‟ble High Court passed in the case of Raj Kumar Malhotra Vs. DDA.

In this connection, it is submitted that we have complied with the orders of Hon‟ble High Court passed in the above referred case as the appeal filed by DDA in Hon‟ble Supreme Court had been rejected and we were left with no other alternative except to comply with the orders of Hon‟ble High Court. However, recently a policy decision has been taken by the competent authority to deal with such similarly placed cases. As per decision, only those cases will be included in the draw of lots for allotment of flat under „Tail End Priority‟ where registrants have deposited cancellation charges upto 31.12.93 because the „Tail End Priority‟ policy had been withdrawn w.e.f. 1.1.94.

In this case, the allottee had not deposited cancellation charges. The present case is not covered even under the recent policy also. The allotment was cancelled due to non-payment of demanded amount and it was clearly written in the cancellation letter dated 2.6.92 that allotment has been cancelled due to non submission of demanded amount and requisite documents within due date. Though in this case, DDA never intimated cancellation charges to the allottee but as per the condition of the brochure as well as demand letter, 10% of the registration amount was to be deposited as cancellation charges. Had he deposited cancellation charges prior to 31.12.93, he would have been eligible for allotment.

In view of above, the request of ex-allottee for reconsideration of case under „Tail End Priority‟ policy cannot be considered favourably."

5. The Petitioner asserts that as a result of the aforesaid order of

the Commissioner (Housing), the Lok Adalat was left with no option

except to close the case of the Petitioner. The Petitioner then made a

representation to the DDA on 24.08.2011, copy whereof is placed on

record, but no reply was received by the Petitioner to the aforesaid

representation. The Petitioner was thus constrained to file the present

writ petition.

6. In the Counter Affidavit filed by the Respondent/DDA, the

aforesaid facts have not been denied. The Respondent/DDA,

however, submits that in response to letter dated 22.10.1991, it had

intimated the Petitioner vide letter dated 15.11.1991 that Flat No. 24-

A may be read as Pkt. - A, Nand Nagri, Delhi and the Petitioner was

requested to make payment as per demand-cum-allotment letter dated

20.09.1991 - 24.09.1991. Since the Petitioner failed to deposit

payment in compliance with demand-cum-allotment letter, the

Respondent issued a show cause notice dated 11.03.1992 but no

response was received from the Petitioner. Resultantly vide letter

dated 2nd June, 1992, the Respondent informed the Petitioner about

cancellation of the flat on 15th May, 1992. The Petitioner

acknowledged the cancellation vide letter dated 27 th June, 1992.

Thereafter, the Petitioner allowed the grass to grow under his feet and

approached DDA after 16 years, that is, in the year 2008 with the

representation for considering allotment of another flat to him. The

case of the Petitioner was by then hopelessly time barred. The

present petition was, therefore, not maintainable and liable to be

dismissed on the ground of delay and laches [See Municipal Corpn.

of Greater Bombay v. Industrial Development Investment Co. (P)

Ltd., (1996) 11 SCC 501, at page 517; State of Rajasthan v. D.R.

Laxmi (1996) 6 SCC 445, at page 453; State of M.P. v. Bhailal

Bhai, (1964) 6 SCR 261].

7. The Petitioner filed Rejoinder to the Counter Affidavit

categorically denying receipt of the letter dated 15.11.1991 and show

cause notice dated 11.03.1992. The Petitioner submitted that there

was no delay or laches on the part of the Petitioner. The Petitioner

relied upon the orders of the Permanent Lok Adalat to urge that

before the Presiding Officer of the Permanent Lok Adalat, the

Respondent/DDA had admitted its fault and come up with one lame

excuse after the other. Finally on 19.05.2009, the claim of the

Petitioner was admitted by the DDA in principle. The noting dated

19.05.2009 of the DDA recorded that Deputy Director (Housing)

MIG had examined the matter and asked the Petitioner to produce

certain documents. Thereafter, the Petitioner received a letter dated

15.05.2009 from Respondent/DDA, wherein DDA asked the

Petitioner to deposit certain documents like Identity Proof and

Photographs to show that he was a registrant under the NPRS

Scheme. But after some time, DDA again arbitrarily rejected the

claim on the ground that cancellation charges had not been deposited

by the Petitioner, though the issue of cancellation charges already

stood settled in several judgments of this Court. The Petitioner also

contended that the Respondent/DDA had filed three letters allegedly

sent by the DDA to the Petitioner, but two of the three letters i.e.

letter dated 15.11.1991 and show cause notice dated 11.03.1992 were

tampered with, wherein the flat number was changed from Flat

No.28-A to Flat No.24-A. This apart, the Respondent/DDA could not

even produce any document showing service of these letters upon the

Petitioner.

8. I have heard learned counsel for the parties and scrutinized the

documentary evidence on record.

9. It is not in dispute that the Petitioner vide application No.

030181 dated 25.09.79 had got himself registered for the allotment of

MIG flat under NPRS Scheme, 1979. He was assigned Priority No.

9513. It is also not in dispute that on the turn of priority number, the

Petitioner was allotted Flat No. 24-A, Ground Floor at Nand Nagri,

Delhi under the draw held on 18.02.1991 on cash down basis. The

demand-cum-allotment letter with block dates 20.09.1991 -

24.09.1991 was issued and sent to the Petitioner with last date of

making the payment with interest as 23.12.1991 and automatic

cancellation thereafter.

10. The Petitioner asserts and it is not disputed by the

Respondent/DDA that the Petitioner vide letter dated 22.10.1991

intimated to the Respondent/DDA that he had tried to locate the said

flat, but could not locate it in the absence of any block number and

also requested to withdraw this wrong/doubtful allotment and include

his name in the next draw. It is the case of the Respondent/DDA that

in response to the letter dated 22.10.1991, it intimated the Petitioner

vide letter dated 15.11.1991 that Flat No. 24-A may be read as Pkt. -

A, Nand Nagri, Delhi and requested the Petitioner to make payment

as per demand-cum-allotment letter dated 20.09.1991 - 24.09.1991.

The Petitioner has categorically denied the receipt of his letter and the

DDA has placed nothing on record to substantiate the dispatch of this

letter. In the course of hearing, the counsel for DDA was asked to

produce the records including the dispatch register but the dispatch

register unfortunately was not produced. The inevitable inference is

that the DDA has failed to establish dispatch of letter dated

15.11.1991 to the Petitioner, the receipt of which has been squarely

denied by the Petitioner. According to the DDA, since the Petitioner

failed to deposit payment in compliance with demand-cum-allotment

letter, the Respondent/DDA issued a show cause notice dated

11.03.1992. The receipt of this show cause notice dated 11.03.1992,

as stated hereinabove, is also denied by the Petitioner and nothing has

been placed on the record to suggest the dispatch of the said notice to

the Petitioner. The Respondent/DDA has in fact failed to prove that

any show cause notice for cancellation of the flat in question was

given to the Petitioner.

11. There is also on record ample material to suggest that the

Petitioner was vigorously pursuing his case before the Lok Adalat,

which had even prevailed upon the Respondent/DDA to re-

examine the case of the Petitioner in the light of the judgments of this

Court rendered in a batch of connected LPAs including LPA No.

373/2006 titled as DDA Vs. Raj Kumar Malhotra, to which I shall

presently advert. There is also material on record to suggest that the

Respondent/DDA had acceded to the request of the Presiding Officer

of the Permanent Lok Adalat for reconsideration of the case of the

Petitioner and had even asked the Petitioner to get his documents

verified. The case of the Petitioner was, however, again rejected by

the Commissioner (Housing) on 16.11.2009 with the remark that:-

"......Though in this case, DDA never intimated cancellation charges to the allottee but as per the condition of the brochure as well as the demand letter, 10% of the registration amount was to be deposited as cancellation charges. Had he deposited cancellation charges prior to 31.12.93, he would have been eligible for allotment."

12. It may be noted that the aforesaid observations made by the

Commissioner (Housing) are in the teeth of the judgments rendered

by a Division Bench of this Court in LPA Nos.179/2008, 1324/2007,

1032/2006, 459/2006, 468/2006, 469/2006, 470/2006, 679/2006,

682/2006, 776/2006 and 2325/2006 including LPA No. 373/2006

tiled as DDA Vs. Raj Kumar Malhotra wherein the following

apposite observations were made:-

"This Scheme was clearly for the common man having no residential house in Delhi. The main contention of the DDA is that the respondents are not entitled to the said flats on account of their failure to deposit the cancellation charges in time. The cancellation charges as per NPRS Scheme are 20% of the registration amount. The registration amount varies from Rs.250/- to Rs.4,500/- and accordingly, the cancellation charges of 20% would be in the range of Rs.50/- to Rs.900/-. The respondents cannot be deprived of the flats due to their failure to deposit the cancellation charges in time. DDA is a public body and is required to act fairly in discharging the public duty of providing the housing. It had been the policy of DDA to consider tail end priority allotment to all the registrants who could not avail the initial allotment. DDA cannot behave like a private builder by cancelling the allotment on account of minor violation and then selling the flats at present market price with a profit motive."

13. In the light of the aforesaid judgment against which the DDA

had filed a Special Leave to Appeal being SLP No.25731/2008, titled

"Delhi Development Authority Vs. Abhay Prakash Sinha" before

the Supreme Court, which came to be dismissed on 13.10.2008, the

Petitioner cannot be deprived of the flat allotted to him merely on

account of his failure to deposit the cancellation charges in time. The

case of the Petitioner in fact stands on a better footing than the case of

Raj Kumar Malhotra (supra), in that, in the present case, it is not in

dispute that no intimation was ever sent to the Petitioner with regard

to the cancellation charges payable by him. Further, as noted in the

said decision, it has been the consistent policy of the DDA to consider

tail-end priority allotment to all the registrants, who could not avail

the initial allotment. It is not in dispute that in the present case, the

Petitioner could not avail of the initial allotment for no fault of his.

The lapse, if any, was of the Respondent/DDA as is evident from the

letter dated 22.10.1991, which was admittedly sent by the Petitioner

to the DDA and received by Respondent/DDA. In the said letter, the

Petitioner clearly stated that he had tried to locate Flat No. 24-A,

Nand Nagri (the number mentioned in the demand-cum-allotment

letter) but could not locate it in the absence of any block number. The

Respondent/DDA states that it informed the Petitioner about the

block number vide letter dated 15.11.1991 and subsequently issued

show cause notice dated 11.03.1992 for cancellation of the flat in

question, but it has failed to substantiate whether these letters dated

15.11.1991 and 11.03.1992 were actually sent to the Petitioner by

registered post/speed post/courier and were received by the Petitioner.

On the direction of this Court, the DDA was required to produce the

dispatch register, which also was not produced by the DDA leading to

the inference that the letters dated 15.11.1991 and 11.03.1992 were in

fact never received by the Petitioner. It is trite that the presumption

under Section 114 of the Evidence Act sought to be relied upon by the

Respondent/DDA is a rebuttable presumption in the light of the

categorical denial of the Petitioner to the receipt of these letters from

the DDA. The Petitioner discharged his onus and the onus shifted

back to the Respondent/DDA to prove service of these letters, which

onus it has miserably failed to discharge.

14. It may be noted at this juncture that the Respondent/DDA was

asked in the course of hearing as to the current status of Flat No.24-A,

Pkt.-A, Nand Nagri, Delhi and this Court was informed that the flat is

still lying vacant in the name of the Petitioner and further that till

date, no other person has staked a claim to the flat in question. There

is thus, in my view, no impediment to the grant of relief prayed for by

the Petitioner. The petition is accordingly allowed by issuing a writ

of mandamus to the Respondent/DDA to allot Flat No. 24-A, Pkt. -

A, Nand Nagri, Delhi to the Petitioner at the old cost together with

interest at the rate of 7% per annum as per the policy of the DDA.

The fresh demand-cum-allotment letter of this flat shall be issued by

the Respondent/DDA within a period of 60 days from the date of this

order and the possession of the same shall be delivered in favour of

the Petitioner within a period of 30 days after payment of the entire

amount by the Petitioner against the said fresh demand letter.

15. Writ Petition stands allowed on the above terms.

REVA KHETRAPAL (JUDGE) July 03, 2013 sk