Delhi Development Authority vs Smt Charanjit
2013 Latest Caselaw 5168 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                Date of Decision: 12.11.2013

+                       LPA NO.847 OF 2013


     DELHI DEVELOPMENT AUTHORITY               ..... Appellant
                  Through: Ms.Shobhna Takiar, Advocate

                        versus

     SMT CHARANJIT                                        ..... Respondent

Through: Nemo

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

% MR. JUSTICE S.RAVINDRA BHAT (Open Court)

1. This is an appeal filed by the Delhi Development Authority (DDA).

The present appellant is aggrieved by the impugned order and

judgment dated 9th April, 2013 delivered by the learned Single Judge

allowing the respondent's writ petition.

2. The impugned judgment directed the DDA to allot a fresh demand-

cum-allotment letter in respect to a flat bearing No.144 (Third Floor),

Category II, Madipur, in view of another plot which had been allotted

to her, which the Court found to be in uninhabitable condition.

3. The respondent herein had applied for allotment of a MIG flat with

the DDA Housing Scheme, 2008 by depositing the registration

deposit; she was issued with an allotment-cum-demand letter on

23.11.2009 in respect of Flat no.158, Third Floor, Peera Garhi at a

total cost of Rs.28,27,828/-. After adjusting the initial deposit, the

amount payable was Rs.26,77,828/-. The petitioner alleged that the

plinth area of the demised flat was less than what was represented by

the DDA and that when she visited the plot, she discovered that the

whole block was ruined and in dangerous condition and that in fact

steel pillars had been erected by the DDA to support the

columns/beams. The writ petitioner approached the High Court after

unsuccessfully representing to the DDA for allotment of another plot

in the west zone area, in Madipur or Peeragarhi flats, that were vacant

and available with the DDA for allotment. While entertaining the

petition, the Court granted an interim order subject to the writ

petitioner making payment within a specified time. The DDA

likewise, was directed to carry out necessary repairs.

4. The petition was ultimately allowed by the learned Single Judge who

took into consideration the various photographs filed and also noticed

that the DDA had not filed any status report as directed by it with

respect to inspection and carrying out the repairs. The DDA's

contention was that the flat was not in uninhabitable condition and

that the petitioner did not dictate any choice of allotment. The DDA

had relied upon some judgments titled K. Bhattacharjee vs. Delhi

Development Authority 1996 (38) DRJ 343 (DB). The petitioner on

the other hand, had relied upon ruling in case titled Sohan Lal Vs.

DDA (WP (C) no.5757/2002) which had discussed the earlier ruling

in K. Bhattacharjee's case, where the Court made a distinction

between the lack of proper amenities on the one hand and structural

safety on the other. The Court had observed that in the former case,

the allottee had two options, either to revoke the contract and seek

refund or to make payment and claim necessary relief of performance

or insist upon the repairs being carried out. In the latter case, i.e.

where the flat or the premises were structurally unsafe, the allottee

could insist upon alternative premises.

5. It is argued by the learned counsel for DDA that the learned Single

Judge fell into an error in proceeding on the basis that the photographs

showed that the allotted flat was in extremely dilapidated condition

and uninhabitable. The learned counsel also highlighted the fact that

the DDA had in fact inspected the premises and the report was made

available to the writ petitioner. It was further submitted that the

photographs placed on record by the petitioner in fact pertain to some

other locality i.e. Paschim Vihar apartments and not of Peera Garhi

where the allotted flat was located. It was further submitted that even

if the learned Single Judge's order is allowed to stand, other such like

demand for change of allotment could be made, causing undue

pressure on the DDA.

6. This Court has carefully considered the submissions. The pleadings

in the writ proceedings are part of the record in the present appeal. It

is evident that the photographs relied upon by the petitioner were part

of the record as Annexure P-8. Apart from a bald and bare denial of

the relevant averments, DDA's counter affidavit is absolutely silent as

to the state of structural safety of the flat allotted to the petitioner.

Significantly, the counter affidavit does not deny or even state that the

photographs enclosed with the petition do not pertain to the flat in

question. Likewise, there is no mention of any status report; the

impugned order disclosed that it was not even made available to the

Court. The appeal is significantly silent on this aspect.

7. In view of these omissions, the Court is of the opinion that the factual

findings rendered by the learned Single Judge, based on a

consideration of the material made available and the files of the DDA

which too were considered at the time of hearing, are unexceptionable

and cannot be interfered with.

8. So far as the issue in principle i.e. whether the petitioner in the writ

proceeding could be permitted to insist that the flat allotted to him or

her should be substituted on account of something wanting either

structurally or vis-a-vis amenities are considered, the approach

indicated in Sohan Lal's case, in the opinion of this Court, is sound.

9. So long as the petitioner is able to establish that the flat allotted or

offered is structurally unsafe or dangerous or uninhabitable, a writ

petition seeking a direction in that regard to the DDA for substitution

of the allotment can be maintained. We are satisfied that the facts of

this case fall within that category.

10. For the above reasons, this Court finds no reason to interfere with the

impugned judgment and order. The appeal is accordingly, dismissed

without any order as to costs.

S. RAVINDRA BHAT, J (JUDGE)

NAJMI WAZIRI, J (JUDGE) NOVEMBER 12, 2013 RN