Delhi High Court
Prakash G. Tahilramani (Since ... vs Dda on 18 May, 2015
Author: Suresh Kait
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 18th May, 2015
+ W.P.(C) No. 15188/2006
PRAKASH G. TAHILRAMANI (SINCE DECEASED)
THROUGH SHARDA BHAGAT ..... Petitioner
Represented by: Mr. R.K.Saini and Ms. Aastha
Chopra, Advocates.
Versus
DDA ..... Respondent
Represented by: Mr. M.K.Singh, Advocate.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Vide the present petition, petitioner seeks directions thereby
directing the respondent / DDA to calculate the cost of MIG Flat
No. 544, 3rd Floor, Pocket-A, Block-Phase 2, Sector-17, Dwarka, New
Delhi, allotted to the petitioner as per the rates applicable on the date of
first draw, i.e., 30.07.2003 and allow the petitioner to pay the cost of
flat on cash down basis instead of hire purchase without reducing the
amount of share money and service charges capitalised at item no. 2
and 3 in the demand letter dated 25.01.2006.
2. Facts in brief are that petitioner had booked an MIG Flat, under
New Pattern Scheme, 1979 (HUDCO) vide receipt no. 172768, Book
No. 1728 dated 03.10.1979. In furtherance of this receipt, the
petitioner got a registration number 28432 as per the certificate dated
03.06.1980, bearing residence of the petitioner as II-B/74, Lajpat
Nagar, Delhi - 24.
3. The petitioner was a tenant and as per requirement he had to
change his residence frequently within a span of 2-3 years.
Accordingly, in order to avoid giving intimation regarding the changed
address every time, the petitioner had changed his address as under:
Local Address : Mr. Prakash Tahilramani,
1044, Lodhi Complex,
New Delhi - 110003
Permanent Address: Mr. Prakash Tahilramani,
C/o, Mrs. Sheela Sujan,
237, MIG DDA Flats,
Prasad Nagar,
New Delhi - 110005.
Accordingly, a communication dated 16.09.1985 regarding
change of address was sent to the respondent/DDA.
4. Thereafter, the petitioner sent an application dated 14.03.2005 to
the Director (Housing) of the respondent/DDA to know the status of
his aforesaid registration and priority number of MIG Flat booked by
him along with copy of change of address application dated
16.09.1985. Since no response was received by the petitioner, one
reminder letter dated 31.03.2005 addressed to the Vice Chairman of the
respondent/DDA was sent by the petitioner to find out the fate of the
aforesaid letter.
5. Seeing as no response was being given by the respondent qua the
aforementioned letters, petitioner filed applications dated 09.05.2005
and 07.06.2005 with the Lt. Governor of Delhi with respect to Flat
booked vide registration No.28432, priority No.37003 in the New
Pattern Scheme-1979 under MIG Category with respondent/DDA.
6. Pursuant thereto, the petitioner received a communication dated
15.07.2005 at the permanent address mentioned above, from the
respondent/DDA as under:
"To: Shri Parkash Tahilramani,
C/o, Mrs. Sheela Sujan, 237, MIG,
Prasad Nagar, New Delhi.
Sub: Regarding Registration No. 28432, Priority No.
37003 in the New Pattern Scheme-1979 under MIG
Category.
Sir,
Please refer to your letter dated 09.05.2005
addressed to Hon'ble LG, Delhi on the subject cited above.
In this connection, it is to inform you that against your
above mentioned registration you were allotted a MIG
Flat No. 126, Third Floor, Sector - 11, Pkt. 1, Dwarka in
the computerized draw held on 30.07.2003. The demand-
cum-allotment letter dated 25.09.2003-30.09.2003 was sent
at your address "1044, Lodi Road Complex, New Delhi.
Since the same was returned as undelivered, then it was
again sent twice at your latest address, i.e., 1044, Lodhi
Road Complex, New Delhi which was mentioned by you in
your letter dated 16.09.1985 but the demand letter again
returned as undelivered. Therefore, the allotment was
cancelled on account of non-payment and the above said
flat was included in the next scheme of Festival Scheme-
2004 and re-allotted to eligible person."
Accordingly, an MIG Flat No. 544, 3rd Floor, Pocket-A, Block-
Phase 2, Sector-17, Dwarka, New Delhi, was allotted to the petitioner
through the computerized draw held on 29.08.2005.
7. On 14.02.2006, the petitioner received an allotment-cum-
demand letter dated 25.01.2006 for the area measuring 74.18 square
meter, whereby the respondent/DDA had demanded Rs.11,68,040/-
from the petitioner.
8. Thereafter, petitioner made a representation dated 16.02.2006 to
Lt. Governor of Delhi stating therein that he had neither received the
demand-cum-allotment letter nor the reminder or the cancellation
letter. Further stated, if the concerned official would have sent the
letter to his permanent address, which is still with DDA, he would not
have suffered with the cancellation. However, the DDA made no
efforts to send a letter to the permanent address of the petitioner, which
was also mentioned in the letter dated 16.09.1985.
9. Mr. R.K. Saini, learned counsel appearing on behalf of the
petitioner submitted that vide earlier demand-cum-allotment letter
dated 25.09.2003-30.09.2003 regarding a flat measuring 83.46 Sq.
Mtr., DDA demanded an amount of Rs.9,65,540/-. However, in the
second allotment-cum-demand letter dated 25.01.2006 for the area
measuring 74.18 Sq Mtr. DDA has demanded Rs.11,68,040/-. Thus,
for the lesser area than the previous one, DDA demanded higher
amount.
10. Learned counsel submitted that since it was a fault of DDA for
not sending the letter at the correct address, therefore, the petitioner
cannot be penalised to pay the higher rates as applicable in the year
2006.
11. To strengthen his arguments, ld. Counsel for the petitioner has
relied upon a decision of this Court in W.P.(C) 15002/2006 titled as
Hirdayapal Singh Vs. DDA dated 06.02.2007, wherein this Court held
as under:
"2. In 1993 the petitioner changed his residence to 81,
Power Colony, Majitha Road, Amritsar and sent a letter
dated 4.11.1993 to the DDA informing it of the change of
address. The petitioner in the same letter dated 4.11.1993
also indicated his permanent address, which was that of his
parent's at 6- Sarhadi Complex, Dolly Apartment, Opposite
Canal Office, Railway Road, Amritsar-143001.
3. It is not in dispute that the petitioner's allotment matured
sometime in the year 1999-2000. It is the case of the Delhi
Development Authority that the allotment letter was sent to
his changed address at 81, Power Colony, Majitha Road,
Amritsar and that the said allotment letter was received
back undelivered. The DDA does not deny in its reply
affidavit dated 19.12.2006 that it did not send the allotment
letter to the petitioner's permanent address which was that
of his parents. The stand taken by the DDA in its counter
affidavit is that it was under no obligation to send the
allotment letter to the permanent address of the petitioner
and that the consequential cancellation of allotment cannot
be faulted with.
xxxxx xxxxxx xxxxxx
6. On the facts of the present case the DDA certainly did
not send the allotment letter to the addresses of the
applicant/ petitioner available with it on its records. Its
failure to send the allotment letter to the petitioner's
permanent address, in the facts and circumstances of the
case, cannot be justified. Accordingly the consequential
cancellation of the allotment also cannot be sustained in
law. It is accordingly held that the DDA's cancellation of
the petitioners allotment was, in the circumstances, not
justified in law and that the petitioner would be entitled to
all consequential relief's flowing from the wrongful
cancellation of this allotment."
12. Also relied upon a decision of this Court in W.P.(C) 4859/2000
titled Sh. Mohinder Malik Vs. DDA dated 29.08.2002 wherein this
Court held that the mistake of other party cannot deprive the right of
allotment to the allottee and the allottee cannot be saddled with higher
liability. Thus, it is clear that there would be no higher liability than
the original cost of the flat, which includes the element of interest also
sought to be imposed on the original cost of the flat.
13. Further relied upon a decision of this Court in W.P.(C)
7436/2012 titled Amarjit Sharma Vs. DDA dated 19.05.2014, wherein
this Court held as under:
"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."
14. Learned counsel also relied upon amended Office Order dated
25.02.2005 issued in pursuance of order dated 16.12.2004 passed in
W.P.(C) No.19095/2004, whereby the issues relating to issuance of
demand letter at wrong address and missing priority cases of DDA
flats have been decided by this Court. Accordingly, the Office Order
No. F.2 (10)/2002/Coord.(H)/148 dated 21.11.2002 was amended as
under:
"1. In cases, wherein change of address was intimated
by the registrant but erroneously not recorded by DDA
and thereby demand letters were sent at wrong / old
address and the allottee approaches DDA within a
period of four years from the date of allotment, he / she
shall be allotted a flat at the old cost prevalent at the
time when the priority of allottee matured and the
allotment letter issued and no interest will be charged. "
15. On the other hand, Mr. M.K. Singh, learned counsel appearing
on behalf of the respondent/DDA, submitted that petitioner was
declared successful for the allotment of MIG Flat No. 126, 3rd Floor,
Sector-11, Pocket-1, Dwarka, New Delhi, through the computerized
draw of lots held on 30.07.2003 on hire purchase basis and the
demand-cum-allotment letter dated 25.09.2003 - 30.09.2003 was sent
to the petitioner at his last available address which was returned
undelivered. Same was again sent, but returned undelivered with the
postal remarks "No such person". Thereafter, the allotment of flat
stood cancelled on account of non-payment and the said flat was re-
allotted under the Scheme of „Festival Housing Scheme-2004".
16. Learned counsel further submitted that on examination of
representations of the petitioner noted above, respondent/DDA decided
to allot a flat to the petitioner and accordingly, MIG Flat No. 544, 3rd
Floor, Pocket-A, Block-Phase 2, Sector-17, Dwarka, New Delhi, was
allotted through the computerized draw held on 29.08.2005. Since the
present case is of restoration, accordingly, the respondent has charged
as per their policy of restoration, i.e., old cost plus interest subject to
current cost.
17. He further submitted that respondent had sent allotment-cum-
demand letter on 25.09.2003-30.09.2003 at his local address, i.e., 1044,
Lodhi Complex, New Delhi and letter dated 15.07.2005 at his
permanent address, i.e., 237, MIG Flats, Prasad Nagar, New Delhi,
whereby stated that allotment was cancelled on account of non-
payment and advised the petitioner to take refund of registration
money.
18. Learned counsel further submitted that since the present case is
of restoration, therefore, respondent has rightly raised the demand of
Rs.11,68,040/- as per their policy of restoration, subject to current
cost.
19. To strengthen his arguments, ld. Counsel has relied upon a case
of Amarjit Sharma (Supra), whereby this Court held as under:
"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 W.P.(C) 7436/2012 and
connected matters Page 5 of 24 the allottees at their
occupational addresses/other addresses furnished by them
at the time of submitting their registration forms.
xxxx xxxx xxxx xxxx
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.
xxxx xxxx xxxx xxxx
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 W.P.(C)
7436/2012 and connected matters Page 24 of 24 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.
20. Also relied upon a decision of this Court in LPA No.743/2013
titled DDA Vs. Mohinder Pal Sikri (deceased) through legal heir Ms.
Nikki Chawla dated 28.11.2013 with other batch petitions whereby
this Court held as under:
"16. Indeed, this principle applies squarely to these cases
as well, and thus, the decisions of the learned Single Judges
cannot be faulted on this ground. In fact, the decision in
Hirdayapal Singh (supra) is clear on this point, and applies
squarely to the facts and circumstances of the present
appeals:
"5. The short question here is whether the DDA
was justified in cancelling the allotment in the
facts and circumstances of the case. The records
of the case with the LPA 743/2013 and
connected matters Page 14 DDA have been
perused. It is clear that DDA made a note of the
change of address intimated to it by the
petitioner's letter dated 4.11.1993. The DDA,
therefore, took note not only of the present
changed address of the petitioner as indicated in
that letter but also the permanent address
indicated therein. Apart from stating that it was
under no obligation to send such allotment letter
to the permanent address, there is no other
explanation given by the DDA as to why it could
not have sent the allotment letter to the
permanent address as well. To the Court it
appears that the intimation of allotment ought to
have been set not only to the present address
available on file but, if the allotment letter was
returned undelivered, to the permanent address
as well. From the point of view of the DDA this
would have not only cost nothing to the DDA but
it would have ensured that the DDA has made
every possible effort to reach the allotment letter
to the petitioner. From the petitioner's
perspective, despite having intimated to the
DDA his permanent residence, its failure to send
the allotment letter there, meant that it resulted
in the cancellation of his allotment. The loss to
the petitioner of an allotment, for which he had
been waiting since 1979, would indeed be far
greater in such a situation. It must be realised
that as a condition of eligibility for allotment of
a flat under the NPRS 1979 an applicant should
not own any other permanent residence. It is not
difficult to imagine that persons who do not own
premises in this city are quite likely to rent a
residence and also periodically shift such
residence taken on rent. Therefore, while it is
certainly the obligation of such applicant to
inform the DDA of the change of address, there
is also a corresponding obligation of the DDA
to attempt to send the allotment letter to every
possible address of the applicant that has been
intimated to it and is available on its records.
6. On the facts of the present case the DDA
certainly did not send the allotment letter to the
addresses of the applicant/ petitioner available
with it on its records. Its failure to send the
allotment letter to the petitioner's LPA 743/2013
and connected matters Page 15 permanent
address, in the facts and circumstances of the
case, cannot be justified. Accordingly the
consequential cancellation of the allotment also
cannot be sustained in law. It is accordingly
held that the DDA's cancellation of the
petitioners allotment was, in the circumstances,
not justified in law and that the petitioner would
be entitled to all consequential reliefs flowing
from the wrongful cancellation of this allotment.
xxxx xxxx xxxx xxxx
18. Equally, the holdings in the various decisions on the
appeal present that that the payment for the plot will be
made as per the price LPA 743/2013 and connected matters
Page 16 on the date of filing the writ, and not as per the
Circular dated 13.10.2011, cannot be faulted, given the
established principle to the effect that the clock in terms of
the price to be paid stops at the time of approaching the
Court for the appropriate remedy, and the matter at that
point rests with the Court and not in the hands of the writ
petitioners.
21. In the rejoinder, Mr. R.K. Saini, learned counsel for the
petitioner argued that the present case is not of restoration. It is only
because of the fault of the DDA. In other cases, as cited by counsel for
respondent/DDA, representations of the petitioners therein were
rejected. They came before this Court and this Court granted relief
from the date of the petition. However, the present case is not similar
to those cases.
22. I have heard the learned counsel for the parties.
23. It is not in dispute that the petitioner got booked a Flat vide
registration No.28432, priority No.37003 in the New Pattern Scheme-
1979 under MIG Category with respondent/DDA. It is also not
disputed that petitioner succeeded in the draw held on 30.07.2003 and
was allotted an MIG Flat No.126, 3rd Floor, Sector-11, Pocket-I,
Dwarka, New Delhi. Pursuant thereto, the respondent/DDA sent
demand-cum-allotment letter dated 25.09.2003-30.09.2003 at 1044,
Lodhi Road Complex, New Delhi. Though, the said communication
was returned undelivered, the respondent/DDA again sent the reminder
twice at the same address.
24. But the fact remains, which is not disputed by the
respondent/DDA, that the petitioner had communicated following two
addresses vide communication dated 16.09.1985:-
Local Address : Mr. Prakash Tahilramani,
1044, Lodhi Complex,
New Delhi - 110003.
Permanent Address: Mr. Prakash Tahilramani,
C/o, Mrs. Sheela Sujan,
237, MIG DDA Flats,
Prasad Nagar,
New Delhi - 110005.
25. It is noted that in the year 2003, vide demand-cum-allotment
letter dated 25.09.2003-30.09.2003 qua MIG Flat measuring 83.46
square meter, the amount demanded by the respondent/DDA was
Rs.9,65,540/-, whereas the said demand-cum-allotment letter was
never sent to the petitioner at his permanent address, which was with
respondent/DDA since 16.09.1985. If the communications of
respondent/DDA sent at the local address of the petitioner, i.e., 1044,
Lodhi Complex, New Delhi, had been returned undelivered, the same
could have been sent at his permanent address at 237, MIG Flats,
Prasad Nagar, New Delhi, to which DDA failed. Moreover, there is no
explanation as to what prevented the DDA to do so.
26. Moreover, vide communication dated 15.07.2005, the
respondent/DDA sent information regarding cancellation of above flat
at the petitioner‟s permanent address mentioned above, whereby stated
that draw was held on 30.07.2003 and demand-cum-allotment letter
dated 25.09.2003-30.09.2003 was sent thrice at the local address of the
petitioner but on every time returned undelivered.
27. It is pertinent to note here that meanwhile, the petitioner
constantly pursued the matter with respondent/ DDA and with Lt.
Governor of Delhi as well. Subsequently, the respondent/DDA
accepted its fault and accordingly vide subsequent allotment-cum-
demand letter dated 25.01.2006 ,allotted an MIG Flat No. 544, 3rd
Floor, Pocket-A, Block-Phase 2, Sector-17, Dwarka, New Delhi,
measuring 74.18 square meters and raised an escalated demand of
Rs.11,68,040/- in favour of the petitioner.
28. Now, the issue before this Court for consideration is that
whether the petitioner is liable to pay the amount of Rs. 9,65,540/-
demanded vide earlier demand-cum-allotment letter dated 25.09.2003-
30.09.2003 regarding flat measuring 83.46 square meters or the higher
amount of Rs.11,68,040/- raised vide subsequent allotment-cum-
demand letter dated 25.01.2006 regarding flat measuring 74.18 square
meters?
29. In case of Hirdayapal Singh (supra), this Court held that if
DDA did not send the allotment letter to the addresses of the petitioner
available with it on its record, the petitioner would be entitled to all
consequential relief's flowing from the wrongful cancellation of the
allotment.
30. Moreover, the amended Office Order dated 25.02.2005 issued in
pursuance of order dated 16.12.2004 passed in W.P.(C)
No.19095/2004, modifying the Office Order dated 21.11.2002, reads
as under:-
"1. In cases, wherein change of address was intimated
by the registrant but erroneously not recorded by DDA
and thereby demand letters were sent at wrong / old
address and the allottee approaches DDA within a
period of four years from the date of allotment, he / she
shall be allotted a flat at the old cost prevalent at the
time when the priority of allottee matured and the
allotment letter issued and no interest will be charged. "
31. In view of the above discussion, it is established that the present
case is not of restoration. The flat in question was allotted to the
petitioner as a result of unending efforts made by him and for the fault
of the respondent/DDA.
32. It is significant to note that the petitioner made a representation
dated 16.02.2006 to the Lt. Governor of Delhi, whereby requested to
direct the respondent/DDA to consider the previous cost, i.e.,
Rs.9,65,540/- as applicable on the date of first draw, i.e., 30.07.2003
instead of asking him to pay the escalated demand of Rs.11,68,040/-
raised vide subsequent allotment-cum-demand letter dated 25.01.2006
qua MIG Flat No. 544, 3rd Floor, Pocket-A, Block-Phase 2, Sector-17,
Dwarka, New Delhi, which is lesser in area as well. But there is no
response from other side.
33. Keeping in view the facts and circumstances of the case and the
settled legal position as well, in my considered opinion, the petitioner
cannot be penalized to pay higher rates applicable in the year 2006 and
that too for a lesser area especially when he was declared successful in
the draw held on 30.07.2003.
34. The petitioner has prayed that he is entitled to pay the amount as
applicable in the year 2003 and that the respondent should calculate the
total amount on cash down basis instead of hire purchase.
35. In view of the above discussion, the respondent/DDA is directed
to calculate the cost of MIG Flat No. 544, 3rd Floor, Pocket-A, Block-
Phase 2, Sector-17, Dwarka, New Delhi, as per the rates applicable on
the date of first draw, i.e., 30.07.2003 and raise a fresh demand
accordingly. The respondent/DDA is further directed to calculate the
demand qua the flat in question on cash down basis instead of hire
purchase, as per the policy applicable on 30.07.2003.
36. Needless to state, the petitioner shall be liable to pay other
charges as applicable on the aforesaid date of draw, i.e., 30.07.2003.
37. With the above observations, the instant petition is allowed with
no order as to costs.
38. The Registry of this Court is directed to send a copy of this order
to the respondent department for compliance.
39. Consequently, the respondent/DDA is directed to comply with
the aforesaid directions within a period of six weeks from receipt of
this order.
SURESH KAIT
(JUDGE)
MAY 18, 2015
jg/sb/RS
