Devinder Singh Saini vs D.D.A.
2013 Latest Caselaw 4692 Del

$~15
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C) 3884/2012
      DEVINDER SINGH SAINI                                    ..... Petitioner
                   Through:            Ms. Richa kapoor, Advocate with
                                       Ms. Sahila lamba, Advocate

                         versus

      D.D.A.                                             ..... Respondent
                         Through:      Ms. Manika Tripathy Pandey, Advocate
                                       with Mr. Ashutosh kaushik, Advocate
      CORAM:
      HON'BLE MR. JUSTICE G.P. MITTAL

                                  ORDER

% 09.10.2013

1. The Petitioner who was allotted Flat No.1, Ground Floor, Yamuna Block-

7, Pocket D-6, Vasant Kunj, New Delhi has approached this court with a petition under Article 226 of the Constitution of India with the prayer which is extracted hereunder:-

"(a) Issue writ, order or direction directing the respondent/DDA to complete the construction and repairs of the flats and surrounding area at the Yamuna Complex Block-7, Pocket D-6 flats at Vasant Kunj and specially of flat allotted to the petitioner bearing flat no.1, ground floor, Yamua Block-7, Pocket D-6, Vasant Kunj; and

(b) Pass further order, writ or direction directing respondent to provide basic amenities in the said flat so as to make it habitable and complete construction and repairs in the said complex consisting of two Blocks i.e. Ganga and Yamuna having common boundary wall;

(c) Pass an order staying the operation of the impugned demand letter dated 30.3.2012 (annexure P-5) directing DDA to defer the payment of the demanded amount vide demand-cum-allotment

letter of DDA dated 30.3.2012 till basic amenities are provided and complete construction and repairs are carried out in the flat allotted to the petitioner and the surrounding Yamuna/Ganga Complex.

(d) Pass further order, writ or direction directing DDA to pay the interest on the registration amount deposited by the petitioner till basic amenities are provided and complete construction and repairs are carried out."

2. The Delhi Development Authority (the DDA) floated „DDA Housing Scheme, 2010‟. The scheme closed on 24.12.2010. The Petitioner applied for allotment of an LIG flat under the aforesaid scheme and deposited the registration amount of `1.50 lacs. His joy knew no bounds when he was declared successful in the draw of lots held by the DDA on 18.04.2011 and he was allotted a flat bearing No.1, Yamuna Block-7, Pocket D-6, Vasant Kunj, New Delhi. As per the terms of allotment contained in the brochure issued by the DDA, an allottee was liable to make the payment of the price of the flat within 90 days from the date of issue of the demand letter, without interest. Thereafter, the allottee was liable to deposit the amount within a further period of 90 days along with interest @ 15% p.a. compounded on 31st March. It was provided in the brochure that if the payment was not made within 180 days including the interest from the date of issuance of the demand letter, the allotment of the flat was liable to be cancelled automatically. The possession letter was to be issued within a period of 45 days of making the payment.

3. Clause 17 of the brochure further provided that the allottee was entitled to take delivery of the possession only after making full payment. There was a further obligation to take the possession of the flat within a period of three months from the date of issuance of possession letter. Clause

17(i) is extracted hereunder:-

"17. (i) The allottees shall be entitled to take delivery of possession only after he/she has completed all the formalities, paid all dues and furnished/executed all the documents as required in the demand cum allotment letter under the provisions of Delhi Development Authority (Management & Disposal of Housing Estate) Regulations, 1968."

4. If the physical possession of the flat was not taken within one year of the date of the issuance of the possession letter, the allotment of the flat was again liable to the cancelled. In exceptional cases, physical possession could be given to allottee beyond 12 months and upto 24 months on payment of the charges as stated in Clause 17 (ii), provided prior permission of the DDA was obtained. Clause 17 (ii) of the brochure reads as under:-

"17. (ii) If the allottee does not take possession of the flat within 3 months from the date of issue of possession letter, he/she shall be liable to pay watch and ward charges at the prescribed rates beyond a period of 3 months from the date of issue of possession letter upto a maximum period of one year from the date of issue of possession letter. At present watch & ward charges are Rs.1250/- per month for three bed room flats, `1000/- per month for two bed room flats & expandable houses, `750/- for one bed room flats and `500/- for Janta/ORT flats."

5. The joys of the Petitioner were short lived in as much as when he visited the area after allotment of the flat, he found that the construction was still going on and the flats were not ready for handing over the possession. The Petitioner alleges that although the payment in respect of 484 other Flats in Vasant Kunj, D-6 (Ganga Block) and 217 flats in Block G-2, E-1 & F-1 Dwarka Sector 18-B was deferred by the Respondent DDA, the payment in respect of flat allotted to the Petitioner in Yamuna Block,

Pocket D-6, Vasant Kunj was not deferred. Thus, he was discriminated.

6. During the hearing of the appeal, it is stated by the learned counsel for the Petitioner that the payment of the balance amount of `36,38,851/- was made by the Petitioner on 21.09.2012, that is, within the stipulated period, but he had to pay interest, as in terms of the allotment letter, the Petitioner was obliged to pay interest if the payment was not made by 28.06.2012. The learned counsel submits that in the additional affidavit dated 15.09.2012 filed by the DDA, there is a categorical admission that essential amenities were expected to be functional only by 30.09.2012. In view of this, it was illegal and unjust on the part of the DDA to have issued the demand letter on 30.03.2012 granting him only 90 days time to make the payment and on payment being made thereafter, asking him to pay interest on delayed payment.

7. Although the averments made in the writ petition have been controverted by the DDA in their counter affidavit, various photographs placed on record, however, speaks volume with regard to the construction and the basic amenities provided in the area. Suffice it to say that in the affidavit dated 15.09.2012 filed by A.B. Talloo, Superintending Engineer of the DDA, it was stated that some of the basic amenities to which I shall advert to a little later were likely to be completed only by 30.09.2012. If that were so, it was unjust on the part of the DDA to have required the Petitioner to deposit the price of the flat on issuance of the demand letter latest by 28.06.2012 and charging him interest if payment is made thereafter. To put the record straight, I will extract the relevant portions of the additional affidavit filed by the DDA hereunder:-

"I, A.B. Talloo, SE/CC-15, DDA aged 59 years, s/o Late Sh. B.G.

Talloo, office at Sarita Vihar, New Delhi do hereby solemnly affirm and state that I am fully conversant with the facts and circumstances of the case as derived from the official records maintained by the Department, and hence competent to depose by way of the present affidavit.

1.............

2.(a).....................

2.(b). That the infrastructure for the basic amenities like sewer, water supply, SW drains, electricity etc. has to be provided in the flat by the respondent. In this context the details are submitted as under:

i) Water supply: That the underground water reservoirs have already been constructed and water supply lines have also been laid. The infrastructure development charges have already been paid to Delhi Jal Board (DJB). The DJB has also laid their water supply pipe lines in the complex. That it is humbly submitted that water was released during the Common Wealth Games-2010. Now DJB has again released the water from their tank to the underground reservoir of the Complex and water is available in the underground tank in the Complex.

ii) Pump house: That the water from the underground water tank to the individual flat is required to be boosted for which the pump house has been constructed and completed. The pumps in the pump house are in the final stage of completion and it is expected that the same will be functional by 30th September, 2012.

iii) Sewerage:........ .......

iv) S.W. drain:................

v) Electricity: That the infrastructure development charges have already been paid to the BSES and they have already constructed 18 No. of Electric Sub Station (ESS) to cater the demands of the Narmada, Saraswati, Ganga and Yamuna Blocks. BSES is working on ground to reenergize this ESS. It is submitted that 10 sub-station have already been energised by BSES and remaining 8 No. sub-stations are likely to be energized by 30th September, 2012 by means of energizing the complete substations. However,

at present, half of the portion of Yamuna Block including common portion has already been energized.

2(c)..............

2(d)..............

2(e)..............

3...............

4...............

i) Electricity: That the infrastructure development charges have already been paid to the BSES and they have already constructed 18 No. of ESS to cater to the demands of the Narmada, Saraswati, Ganga and Yamuna Blocks. BSES is working on ground to reenergize this ESS. It is submitted that 10 sub-stations have already been energised by BSES and remaining 8 No. sub-stations are likely to be energized by 30th September, 2012 by means of energizing the complete substations. However, at present, half of the portion of Yamuna Block including common portion has already been energized.

ii)...............

iii)...............

iv)...............

v)...............

vi) That the Parking area as per approved layout plan has been completed in Narmada, Saraswati and Kaveri Blocks. The work is in progress in Yamuna Block and it is likely to be completed by 30.09.2012. It is pertinent to mention that the underground parking is only for the allottees of the G+8 Towers. The petitioner has been allotted of flat in G+3 Tower which has no provision of underground parking.

vii)...............

viii)...............

ix)...............

x)...............

xi)...............

xii)...............

5...............

6...............

7...............

8..............".

8. Thus, from the affidavit filed on behalf of the DDA, it is apparent that the amenities like water supply, energisation of the sub-station for providing electricity, parking facility in the area etc. were likely to be available only by 30.09.2012. In view of the clear cut admission made in the additional affidavit dated 15.09.2012, the averments made in the counter affidavit dated 28.08.2012 that all the basic amenities have been provided in the flat is untenable.

9. Since essential amenities, as stated above, were likely to be provided only by 30.09.2012 and possession could have been delivered to the Petitioner only thereafter, he could not have been asked to make the payment of the entire price of the flat by 28.06.2012 and charging him interest thereafter. Thus, interest paid by the Petitioner while depositing the amount on 21.09.2012 is liable to be refunded to him.

10. The writ petition is accordingly disposed of with the direction to the DDA to refund the interest amounting to `1,29,787/- paid by the Petitioner within a period of three months, failing which the Petitioner shall be entitled to interest @ 12% per annum from the date of order till the amount is refunded.

(G.P. MITTAL) JUDGE OCTOBER 09, 2013 vk