Amarjit Sharma vs Dda
2014 Latest Caselaw 2520 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C) 7436/2012, 7779/2012 and 7843/2012


                                                 Decided on : 19.05.2014
IN THE MATTERS OF
AMARJIT SHARMA                       ..... Petitioner in W.P.(C) 7436/2012
SUMAN CHOUDHRY GAINDHAR             ..... Petitioner in W.P.(C) 7779/2012
KUSUM JAIN                           ..... Petitioner in W.P.(C) 7843/2012
                  Through:          Mr. R.K. Saini, Advocate


                          versus

DDA                                                    ..... Respondent
                          Through: Ms.Shobhana Takiar, Advocate

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (ORAL)

1. The present writ petitions have been filed by the petitioners

challenging the action of the respondent/DDA in cancelling the

allotment of a MIG/LIG flat made in their favour under the New Pattern

Registration Scheme, 1979 (hereinafter referred to as „NPRS-1979')

without making any effort to serve them at their occupational

addresses that were furnished by them at the time of registration and

further, for issuance of directions to the respondent/DDA to allot them

an alternative MIG/LIG flat, as per entitlement in the same area/sector

as had been allotted earlier, at the old cost with interest as per policy.

2. As the issue raised in all the three petitions, is common, with the

consent of the parties and for the sake of convenience, the facts as

narrated in W.P.(C) 7436/2012 are being referred to and taken into

consideration for deciding the petitions.

3. As per the averments made in WP(C) No.7436/2012, Shri Om

Prakash Sharma, father of the petitioner was registered under the

NPRS-1979 for allotment of a MIG flat. At the time of registration, the

petitioner‟s father had given two addresses, one being the residential

address, i.e., House No.D-14, Sham Nagar, P.O. Tilak Nagar, New

Delhi, where he was residing at the relevant point in time and the

other being his occupational address, i.e., C/o Air India, GSD, Delhi,

where he was employed as a Junior Operator and had continued to

serve there till his retirement in the year 2000. After registering

himself under the NPRS-1979, Shri Om Prakash Sharma had shifted

his residence from the address furnished to the respondent/DDA in

the registration form but admittedly, he did not intimate the new

address to the respondent/DDA. It is an undisputed position that on

the turn of his priority number, the petitioner‟s father was allotted a

MIG flat bearing No.157, 3rd Floor, Pocket-1, Sector-23, New Delhi, on

cash down basis, in a draw of lots that was held on 26.03.1997.

Pursuant thereto, a demand-cum-allotment letter with block dates

10.07.1998-14.07.1998 was dispatched by the respondent/DDA to the

allottee at the residential address mentioned in his application form.

However, the said letter was received back undelivered with the postal

remarks, "shifted".

4. Shri Om Prakash Sharma had retired from service in the year

2000 and expired after ten years, on 07.09.2010. On his demise, he

was succeeded by the petitioner as one of his legal heirs. After about

two years from the date of his demise, the petitioner attended a public

hearing in the office of the respondent/DDA on 30.10.2012, when he

came to know that the allotment of a flat in Rohini had been made in

favour of his father in the year 1998 but later on, it had been cancelled

due to non-payment. On the very same date, the petitioner had

submitted a representation to the respondent/DDA stating inter alia

that his father was employed with the Air India till his retirement in the

year 2000 and he had expired in the year 2010. He had further stated

in the letter that even though Shri Om Prakash Sharma had furnished

his occupational address in the registration form, the respondent/DDA

did not take any step to dispatch the demand-cum-allotment letter to

him at the said address.

5. On 07.11.2012, the petitioner submitted some documents to the

respondent/DDA for mutation of the registration in his favour

alongwith NOCs issued by the other legal heirs of late Shri Om Prakash

Sharma. In the end of November, 2012, when the petitioner visited

the office of the respondent/DDA and met the concerned officers, he

was informed that his application for mutation would not be processed

and his request would be entertained only for the limited purpose of

refund of the registration amount. The respondent/DDA took a stand

that the terms and conditions contained in the demand-cum-allotment

letter had stipulated that if the payment is not made by the allottee

within the stipulated time and the allottee does not respond to the

demand-cum-allotment letter, then his allotment/registration would

stand cancelled automatically. Aggrieved by the aforesaid decision of

the respondent/DDA of declining to allot an alternative MIG flat to the

petitioner, the present petition came to be filed by the petitioner.

6. The only question raised in all the three petitions for the

consideration of this Court is that upon receiving back the demand-

cum-allotment letters as undelivered with the postal remarks,

"shifted", should the respondent/DDA have made an attempt to serve

the allottees at their occupational addresses/other addresses furnished

by them at the time of submitting their registration forms.

7. Mr. R.K. Saini, learned counsel for the petitioner states that the

issue raised in the present petitions is no longer res integra for the

reason that the very same question had come up for consideration

before a co-ordinate Bench in the case of Hirdayapal Singh vs. DDA

reported as 2007 (II) AD (Delhi) 705, wherein, on almost similar

facts, it was held that once the demand-cum-allotment letter had been

dispatched at the residential address of an allottee and it was returned

undelivered and a permanent address of the said allottee was available

in the file, then it was incumbent on the part of the DDA to have made

every effort to reach the allotment letter to the petitioner at his

permanent residential address. Further, it was observed that while it

was the obligation of the applicant to inform the DDA of the change of

his address, there was a corresponding obligation placed on the DDA

to have made an attempt to dispatch the allotment letter to every

available address of the applicant, as had been intimated to it and was

available on the record.

8. It is submitted that the aforesaid decision in the case of

Hirdayapal Singh (supra) was followed in the cases of Sudesh Kapoor

vs. DDA in W.P.(C) 8174/2006 decided on 25.05.2007, Prem

Bhatnagar vs. DDA in W.P.(C) 592/2011 decided on 19.05.2011 and

Mohinder Singh vs. DDA in W.P.(C) 1096/2011 decided on

19.05.2011. Reliance has also been placed by learned counsel on the

following decisions:-

(i) Ravi Dass vs. DDA in W.P.(C) 5554/2011 decided on 16.02.2012

(ii) Anurag Sahai vs. DDA in W.P.(C) 7247/2011 decided on 22.11.2012

(iii) Dev Raj vs. DDA in LPA 625/2013 decided on 19.02.2014

9. Referring to all the aforesaid decisions, learned counsel for the

petitioners states that the petitioners herein claim parity with the

applicants/allottees, subject matter of the aforesaid writ petitions and

they are entitled to similar relief of allotment of alternate flats in their

favour in the category applied for in the same area/sector as was

allotted earlier, as per policy.

10. Per contra, Ms. Shobhana Takiar, learned counsel for the

respondent/DDA vehemently opposes the present petitions on the

ground of delay and latches and states that as per the facts set out in

W.P.(C) 7436/2012, while the allotment had matured in favour of

Mr.Om Prakash Sharma in the year 1998, the petitioner has chosen to

approach the Court after about fourteen years, without explaining the

enormous delay in seeking his legal remedies. To bring home the

aforesaid objection, learned counsel relies on a decision of the Division

Bench in the case of DDA vs. Sunil Kumar Jain in LPA 277/2013

decided on 11.03.2014, wherein it was observed that the applicant

could not sleep at his leisure and approach the Court after an

inordinately long period and if an allottee was not receiving any

satisfactory response from the officers of the DDA, he ought to have

approached the Court at the earliest.

11. Counsel for the respondent/DDA further states that the NPRS-

1979, whereunder the parties had registered themselves, had closed

down long ago, and as recently as on 22.11.2012, the

respondent/DDA had issued a public notice in this regard in all leading

newspapers informing the registrants that those of them, who had not

taken the refund of the registration money, may approach the DDA to

do so and further, that any request for refund after the expiry of 30

days from the date of publication of the notice, would not be

entertained. It is submitted by the learned counsel that the petitioners

had not responded to the aforesaid public notice and considering the

fact that NPRS-1979 has been closed, at best, they would be entitled

to refund of the original registration amount on completion of requisite

formalities.

12. On merits, it is submitted by the counsel for the respondent/DDA

that there is no practice of dispatching the undelivered demand letters

at the occupational addresses of the allottees for the reason that their

occupational address is required only for the limited purpose of

verification of the salary certificate of a registrant , from the point of

view of eligibility and not for any other purpose. She further states

that in the case of WP(C)No.7436/2012, the applicant had been

allotted the subject flat on a cash down basis in a draw of lots that was

held on 26.03.1997 and as per the demand-cum-allotment letter with

block dates 10.07.1998-14.07.1998, sent to the applicant at his

residential address as mentioned in his application form, he was called

upon to deposit the demanded amount in terms of the schedule

provided therein. She submits that the said demand-cum-allotment

letter had been received back undelivered with the remarks "shifted"

and as per the terms and conditions stipulated in the said letter, the

allotment would stand cancelled automatically if the payment was not

deposited within the stipulated time. She contends that the

petitioner‟s father having failed to respond to the allotment letter, the

said allotment stood automatically cancelled.

13. Though it has not been specifically stated so in the counter

affidavit, learned counsel for the respondent/DDA seeks to re fer to

Section 43(d)(i) of the Delhi Development Act, 1957 and states that as

per the said provision, if a document is addressed to a person to be

served and sent by registered post to that person, then he would be

deemed to be duly served. She states that in the present case, it is an

admitted position that the demand-cum-allotment letter despatched by

the DDA was received back undelivered from the postal authorities

with the remark, "shifted" and in such circumstances, Section 44 of the

Act which prescribes the manner in which public notices are to be

issued and stipulates that advertisements be issued in local

newspapers, came into play and the said provision having been duly

complied with, the DDA cannot be faulted in any manner. In support

of her submission that service on the petitioners at the residential

address furnished in their application forms was sufficient to discharge

the onus cast upon DDA under Section 43 of the Act, learned counsel

relies on a decision in the case of Dev Raj vs. DDA in W.P.(C)

7842/2012, decided on 11.07.2013.

14. It is further submitted on behalf of the respondent/DDA that

ever since the year 2003, DDA had been issuing public notices in the

leading newspapers in Hindi and in English, wherein the successful

allottees of various draws, whose demand-cum-allotment letters had

been received back undelivered, were requested to collect the same

from the Department within fifteen days from the date of the

publication. Learned counsel submits that as no response was received

from the petitioners herein, their allotments/registrations were

cancelled. Subsequently, when the NPRS-1979 was closed on

22.11.2012, the DDA had once again issued public notices in all

leading newspapers as has been mentioned earlier, and therefore no

blame can lie at the door of the DDA when the petitioners have

remained in default and failed to act after issuance of the public

notices.

15. In opposition to the aforesaid argument that the Scheme itself

has been closed down and therefore, the petitioners are not entitled to

any relief, in his rejoinder arguments, learned counsel for the

petitioners relies on a decision in the case of Sanmukh Singh vs. DDA

in W.P.(C) 400/2011, decided on 12.01.2012, wherein similar

arguments had been addressed on behalf of the respondent/DDA that

the NPRS-1979 had been closed down after issuance of public notices

in all leading newspapers and the petitioner therein was only entitled

to refund of the registration money admissible under the DDA policy,

but not to an alternative allotment of a flat, the writ petition had been

allowed and the Court had directed the respondent/DDA to hold a mini

draw of lots by including the name of the petitioner therein for

allotment of a flat. It is submitted by learned counsel for the

petitioners that the aforesaid decision was challenged by the DDA in an

appeal but the Appellate Court had dismissed the said appeal and the

matter rested there as the DDA had chosen not to prefer any appeal

before the Supreme Court against the said decision. It is submitted

that finally, the petitioner therein was allotted a flat by the

respondent/DDA in terms of the decision of the Single Judge. As a

result, learned counsel urges that the decision in case of Sanmukh

Singh (supra) having attained finality, in the present case too, the

respondent/DDA cannot be permitted to non-suit the petitioners on the

ground that the NPRS-1979 had been closed after issuance of public

notices and consequently, they are disentitled from being allotted any

flats.

16. The Court has heard the counsels for the parties and carefully

considered the arguments advanced by them in the light of the

precedents cited.

17. Coming first to the case law cited by learned counsel for the

petitioners, in the case of Ravi Dass vs. DDA (supra) on similar

grounds as have been taken by the petitioners herein, it was observed

that the respondent/DDA was unjustified in cancelling the all otment

made in favour of the petitioner therein by arguing that he was under

an obligation to keep a track of the status of his registration and in the

same breath claiming that DDA was not under any obligation to make

an attempt to dispatch the demand-cum-allotment letter at the

permanent address of the allottee, as available in its records. In the

aforesaid context, it was held that every possible effort ought to have

been made by the respondent/DDA to dispatch the demand-cum-

allotment letter to the petitioner therein at all the addresses available

in its records. It has been submitted by learned counsel for the

petitioners that the aforesaid decision has attained finality as the same

was not taken in appeal by the respondent/DDA.

18. Learned counsel for the petitioners further points out that the

decision in the case of Prem Bhatnagar (supra) had been assailed by

the respondent/DDA by filing an intra-court appeal, registered as LPA

1098/2011, which was partly allowed by the Division Bench vide

judgment dated 14.02.2012, by upholding the findings returned by the

learned Single Judge but interfering only on the aspect of the costing

of the allotted flat on the ground that as the applicant was at fault for

having failed to intimate the change of his residential address to the

DDA and further, having failed to enquire about the status of his

registration for a long time, he ought to pay the cost of the flat as on

the date, when the writ petition had been allowed by the Single Judge.

19. The aforesaid decision of the Division Bench was followed by a

Single Judge in the case of Anurag Sahai vs. DDA in W.P.(C)

7247/2011 decided on 22.11.2012, wherein it was noticed that at

the time of registration under the NPRS-1979, the petitioner therein

had not informed the DDA of his occupational address but he had

enclosed an income certificate issued by his employer along with his

application, that had mentioned the address of his employer. It was

observed that the petitioner therein had continued working in the very

same business establishment, and had the demand-cum-allotment

letter been dispatched by the DDA to the petitioner at the given

occupational address, there was every likelihood of his having received

the same. In the above case, the Court had also considered the

objection taken by the respondent/DDA with regard to delay and

latches on the part of the petitioner therein in filing the writ petition

and the stand of the counsel for the respondent/DDA that DDA had

taken steps to issue publications in the newspapers with regard to

maturity of numbers and closure of the Scheme, which ought to have

been treated as service of notice on the petitioner, but the said

argument was turned down by relying on a decision dated 28.01.2008

in the case of Usha Saikia vs. DDA in W.P.(C) 266/2007. Following

the decision in the case of DDA vs. Mohinder Singh in W.P.(C)

1096/2011 decided on 19.05.2011, it was held in the case of Anurag

Sahai (supra) that the cost of the flat would be reckoned as that which

was prevalent in the year 2011, when the writ petition had been filed.

20. Pertinently, the decision in the case of Anurag Sahai (supra)

alongwith other connected matters was challenged in appeals

preferred by the respondent/DDA and the same were ultimately

dismissed by the Division Bench vide judgment dated 28.11.2013

holding inter alia that once the occupational addresses of the

petitioners were available on the files of the DDA, it was under an

obligation to attempt to inform them at all the available addresses

about the maturity of the allotments rather than substituting the said

obligation for a press notice. Thus, the respondent/DDA was faulted for

having failed to take any steps to dispatch the undelivered demand-

cum-allotment letters to the occupational addresses of the writ

petitioners as was available in their records.

21. A recent decision on the aforesaid issue is that of the Division

Bench in the case of Dev Raj vs. DDA in LPA 625/2013, decided on

19.02.2014, wherein the appellant/applicant had assailed the

judgment dated 11.07.2013 passed by the Single Judge, dismissing his

writ petition, challenging the action of the respondent/DDA in

cancelling the allotment of a flat made in his favour and declining to

restore the same or make an alternative allotment on the ground that

the letter of allotment sent to him had been returned undelivered and

the said letter was not sent to his permanent address. Before the

learned Single Judge, the DDA had taken a plea that the writ petition

was liable to be dismissed not only on the ground of delay and latches,

but also on the ground that after the demand-cum-allotment letter had

been issued to the petitioner and despatched to his residential

address, it had been returned with the postal remarks "no such person

resides at the said address". As for the permanent address furnished

by the petitioner therein with his application form, it was stated by the

DDA that the said address was incomplete. The learned Single Judge

considered the objection raised by the DDA about delay and latches

and rejected the same by observing that the writ petitioner had not

received the demand letter and therefore, he could not have

approached the Court earlier. But the second objection taken by the

DDA was upheld and the writ petition was dismissed with the

observation that the petitioner had made a false averment to the

effect that he had mentioned his complete permanent address in his

registration form, whereas the records had revealed to the contrary.

22. The appeal preferred by the aforesaid petitioner was allowed by

the Division Bench vide judgment dated 19.02.2014, wherein it was

observed that in the said case, the Scheme of the DDA was of the year

1989, whereas the allotment had been made in the year 2003, after

14 years from the date of the launch of the Scheme, which is a long

span in the lifetime of an individual and the explanation offered by the

writ petitioner that he had shifted his residence but did not remember

to inform the DDA, was accepted as a plausible one. It was further

observed that the DDA was under an obligation to send the demand-

cum-allotment letter at the permanent address furnished

by the writ petitioner in his application form and when the same had

been returned unserved from the residential address, at least some

attempts ought to have been made by it to dispatch the allotment

letter to his permanent address. For arriving at the aforesaid

conclusion, reliance was also placed by the Division Bench on a

decision dated 03.03.2013 in LPA 137/2013 entitled DDA vs Banwari

Lal Arya, wherein it was held that cancellation of allotment without

making an attempt to send the allotment letter at the permanent

address of the allottee as was disclosed in the application form, was

unsustainable.

23. The facts of the case in WP(C)No.7436/2012, that has been

treated as the lead matter, are undisputed. At the time of registration,

the petitioner‟s father had furnished two addresses alongwith his

application, the first one being his residential address at Tilak Nagar

and the second one was his occupational address. Pertinently, till the

year 2000, the petitioner‟s father had continued to remain employed

with the same employer, namely, Air India. When the allotment of a

flat in his favour had matured in the year 1998-1999, he was still

employed with Air India. However, the said letter of allotment was

returned undelivered by the postal authorities with the remark that the

addressee had shifted from the given address.

24. It is not disputed that when the petitioner‟s father had shifted his

residence, he had not approached the respondent/DDA for recording

the change of address. A perusal of the records produced by learned

counsel for the respondent/DDA reveals that only one attempt was

made by DDA to serve the Demand-cum-allotment letter on the

petitioner‟s father and that too at his residential address. However,

the registration form submitted by Shri Om Prakash Sharma had

clearly mentioned his occupational address as well and the said

address had remained unchanged till he retired in t he year 2000, but

no attempt whatsoever was made by the respondent/DDA to resend

the undelivered letter to the occupational address of the allottee.

25. Even in the other two petitions, the registrants had furnished

two addresses, one being the residential address and the other being

the occupational address. In fact, the petitioner in W.P.(C) No.

7779/2012 had furnished three addresses. The facts stated by the

petitioner in W.P.(C) No. 7843/2012 reveal that after her husband had

changed the residential address, he had intimated the current address

to the respondent/DDA on 22.12.1995, but despite the same, the

cancellation letter dated 27.2.1996 issued by the DDA was not

despatched at the said address.

26. When the Scheme itself stipulates that for being eligible to apply

for allotment of a flat under the NPRS-1979, an applicant should not

own a permanent residence in Delhi, it is not understood as to how can

it be expected that an applicant would continue to remain stationed for

years on end at the very same residential address as was furnished by

him at the time of submitting the application for registration,

particularly when the timeline of maturity of the allotment itself runs

into several years. This would be all the more difficult to envisage

when a registrant happens to be a government servant, whose

exigencies of service include the possibility of frequent transfers within

or even outside the city. Even the registrants, who are employed in

the private sector and would have taken a residential premises on rent

are not expected to remain in occupation of the very same premises

for a prolonged duration and it is not unusual to find that they have to

shift their residence from time to time for various practical reasons. In

such circumstances, the second address made available by a

registrant, be it occupational or permanent, gains greater significance.

The Court cannot overlook the fact that in most cases, including the

present ones, the applications for allotment submitted in the year

1979-80, had remained pending for long and had actually matured

after waiting for over a decade and a half or even a couple of decades.

27. If a registrant has omitted to update the records of

respondent/DDA by furnishing his current address but had originally

furnished more than one address in his registration form, and the

allotment letter despatched at the residential address available in the

records is returned undelivered by the postal authorities, then the

respondent/DDA cannot take refuge of Sections 43 & 44 of the Act and

insist that after issuing public notices, its responsibility stands

discharged. As observed by the Division Bench in the case of

Sanmukh Singh (supra), issuance of a public notice does not absolve

the DDA from its duty of sending the Demand-cum-Allotment letter at

the correct address disclosed by a registrant and such a public notice

could have been in addition to and not in substitution of a personal

notice required to be sent to an allottee at the address disclosed by

him.

28. As long as there is any other address of the applicant available in

the records of the respondent/DDA, it remains its obligation to make

every effort to direct the said letter to the said address as well. Even

after making such attempts if the allotment letter is returned

undelivered, then the respondent/DDA would be justified in stating

that it cannot be blamed by a registrant for cancellation of the

allotment.

29. In the facts of the present cases, the court is not convinced by

the explanation offered by learned counsel for the respondent/DDA

that the petitioners ought to have remained vigilant and kept a track

on the status of their pending applications and having failed to do so,

are disentitled to any relief. It is not as if the respondent/DDA has

made allotments of flats to the registrants with promptitude or within a

reasonable span of time. The allotments under a Scheme that was

floated in the year 1979, had matured after almost a couple of

decades. In such circumstances, it would be unreasonable to expect a

registrant to remain alert and attentive all the time, while absolving

the respondent/DDA of its duty to ready the flats within a reasonable

time and upon the allotment maturing, make every effort to redirect

an undelivered allotment letter, at such other addresses of the allottee

as may be available in its records.

30. If a duty is cast on the registrant to inform the respondent/DDA

about a change in his residential address, then the respondent/DDA

being a statutory authority, is equally duty bound to make an

endeavour to ascertain from its records if any other address of the

allottee is available with it and forward the undelivered allotment letter

to the said address. The reciprocity of obligations between the parties

cannot be converted into a one way lane by the respondent/DDA by

taking a stand that the occupational address furnished by the

registrant is only asked for to verify his salary certificate and it is not

duty bound to redirect an undelivered allotment letter to such an

address. The much cherished dream that every registrant nurtures in

his heart of one day being able to display his nameplate at the

entrance of his very own abode in the city cannot be dashed to the

grounds, by taking such a technical plea. Nor can the allottees be

deprived of their rights in such a cavalier fashion

31. The Court finds substance in the submission made by the

counsel for the petitioners that public notices are not a substitute for

individual notices and the Scheme had never envisaged public notices

to be issued to the registrants and nor are the registrants under an

obligation to constantly scan the newspapers so as to verify whether

the DDA had inserted an advertisement for allotment of a flat. Any

argument advanced on behalf of the respondent/DDA that in cas e a

registrant does not respond to the public notice within the stipulated

period, the DDA would be well entitled to deny him allotment of a flat,

runs contrary to the terms of the Scheme, which could not have been

unilaterally modified by the Department, to the detriment of the

registrants. The aforesaid view is fortified by a similar view taken in

the case of Usha Saikia (supra).

32. As for the objection taken by the counsel for the

respondent/DDA about the writ petitions suffering from delay and

latches, it may be noted that when the petitioners/their predecessors-

in-title were not even aware of the fact that the allotment of a flat had

matured in their favour or for that matter a subsequent cancellation

had taken place, then it cannot be stated that the present petitions are

liable to be dismissed on the ground of delay and latches. There is no

plausible reason for the Court to disbelieve the petitioners when they

state that they have approached the Court for appropriate relief within

a reasonable time from the date of their gaining knowledge of the

cancellation of the flats.

33. In view of the aforesaid facts and circumstances, the present

petitions are allowed. It is directed that the respondent/DDA shall allot

flats to the petitioners as per their entitlement, preferably in the same

area, if available. As for the cost of the flats, keeping in mind the fact

that the present petitions have been filed in the year 2012, it is

directed that the flats shall be allotted at the cost that was prevalent

on the date of filing of the respective petitions. The petitioners shall

complete all requisite formalities as required within four weeks from

the date of intimation and the allotments shall be made within three

months from today.

34. The parties are left to bear their own costs.

(HIMA KOHLI) JUDGE MAY 19, 2014 rkb/sk