Jagdish Prasad vs Delhi Development Authority
2015 Latest Caselaw 4047 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      W.P.(C) No.5912/2013

                                            Decided on: 20 May, 2015


     JAGDISH PRASAD                                       .....Petitioner
                           Through:      Mr.Prag Chawla, Advocate.

                           Versus

    DELHI DEVELOPMENT AUTHORITY                          .....Respondents
                  Through: Ms.Manika                     Tripathy Pandey,
                           Advocate.

    CORAM:
    HON'BLE MR. JUSTICE V.K. SHALI

     V.K. SHALI, J.

1. This is a writ petition filed by the petitioner seeking a direction that

the respondent should allot flat No.672, Pocket-D, II Floor, Lok

Nayak Puram, Delhi or any other LIG flat of the same category

under the Ambedkar Awaas Yojna (AAY) on the same terms and

conditions on which the earlier flat was allotted to him.

2. Briefly stated the facts of the case are that the petitioner had got

himself registered under AAY-1989 for allotment of LIG flat vide

Registration No.19771/AAY-89. He was assigned priority

No.19771.

3. It is the case of the petitioner that there was no communication

from the respondent/DDA, thereafter, regarding the 'Demand cum

Allotment Letter' (DAL). It is stated that the petitioner became

aware of the draw and the subsequent allotment of the Flat No.672,

Pocket-D, II Floor, Lok Nayak Puram Residential Scheme in his

name on 23.03.2006 from the display board of the DDA.

4. It is alleged by the petitioner that he approached the DDA on

several occasions through his son Jeet Kumar Sohra to inquire

about the demand cum allotment letter (DAL), however in response

the petitioner was told to wait for the same. Aggrieved, the

petitioner vide communication dated 20.02.2007 to the respondent,

again requesting for issuance of DAL. It is alleged that the

respondent while responding belatedly vide an undated letter

bearing no. 483 (968) 06/ LIG/ AV/LN-10400/26/6 communicated

that the allotment of the petitioner stood cancelled on account of

failure to comply with the terms and conditions of the allotment.

5. It is stated that the petitioner vide letter dated 01.04.2008 requested

the respondent to restore the allotment but the same was declined

by the respondent vide letter dated 25.04.2008 and the petitioner

was further informed to apply for the refund of the registration

amount.

6. The petitioner submitted an application dated 21.02.2012 to the

Vice Chairman DDA under the RTI Act, stating therein that he had

not received the DAL and further inquiring that on what address, if

at all the DAL was sent by the respondent.

7. Having received no reply to the aforesaid RTI application from the

respondent/DDA, on 05.03.2012 the petitioner filed an appeal with

the First Appellate Authority, DDA. In response to the aforesaid,

the respondent is said to have stated that the concerned CPIO/Dy.

Director (LIG) H/DDA has been advised to provide information to

the petitioner without any loss of time. It is stated by the petitioner

that no formal reply was filed by the respondent and consequently

he preferred an appeal before CIC on 02.04.2012. However,

allegedly no hearing of the appeal was afforded to the petitioner till

26.03.2013.

8. Subsequently, the petitioner received a letter dated 18.04.2012

from SK Grover, Dy. Director, PIO/LIG (H) stating therein that the

demand letter was sent at the petitioners available address i.e.

House no. 9767, Gali no. 8, Multani Dhanda, Paharganj, New

Delhi and the same was returned undelivered by the postal

authorities. It was further stated that the DAL was again sent at the

same address for the second time through speed post which was not

returned back. Later a show cause notice was also issued and

having received no response the allotment in the name of the

petitioner was cancelled. The aforesaid stand is denied by the

petitioner stating that the DAL or the show cause notice was never

sent to him.

9. Vide letter dated 26.04.2012, the petitioner filed an application

under RTI requesting the respondent/ DDA to furnish the

information and provide the copies of the undelivered report by the

postal authority. The petitioner again wrote to the respondent on

08.06.2012 and therein enclosed the letter dated 08.05.2012,

whereby the Senior Research Officer, RTI, DDA, requested Sh.O.P

Gupta, Director (Nazarat) to furnish the information as sought by

the petitioner vide letter dated 26.04.2012.

10. It is alleged that in response to the aforesaid the respondent vide

letter dated 13.07.2012 provided the petitioner with the copies of

the office notings dated 25.08.2006 to 25.04.2008 along with the

copy of the show cause notice. However, allegedly the respondent

still failed to provide the record of the undelivered endorsement by

the postal authority and the speed post of the DAL and the show

cause notice.

11.Subsequently, Central Information Commission (CIC) passed the

orders dated 26.03.2013 directing the respondent to enable the

inspection of the relevant file along with photocopies of the

relevant documents within 30 days of the passing of the said order.

12. It is the case of the petitioner that the respondent never sent the

DAL and the show cause notice to the address of the petitioner. It

is alleged that the DDA dishonestly cancelled the allotment of the

petitioner. It is further stated that the respondent has deliberately

and with malafide intentions avoided giving the petitioner

inspection of the relevant documents including the proof of

delivery of the DAL and the show cause notice. It is alleged that

the respondent has taken dishonest stand even before the CIC

stating therein that the records are old and to expect the proof of

delivery at this stage would be difficult matter and this clearly

establishes the malafides of the respondent, leading to the present

writ petition.

13. The learned counsel for the respondent/DDA denying the

aforesaid has stated that the DAL was sent to the petitioner on his

residential / postal address as mentioned in the application form i.e.

House no. 9767, Gali no. 8, Multani Dhanda, Paharganj, New

Delhi with request to deposit the demanded amount as per schedule

mentioned therein but postal authority returned the DAL

undelivered with remarks "consignee shifted". It is further stated

that the copy of the undelivered envelope with remarks from postal

authority have already been placed on records along with counter

affidavits.

14. It is alleged by the DDA that the DAL was again sent by speed

post but no response was received from the allottee. Reliance has

been placed on the judgment titled Madan & Co. Vs. Wazir Jaivir

Chand 1988 SCR Suppl (3) 983, wherein it was held that posting a

registered letter containing the correct address is treated to be

served upon the addressee.

15. The learned counsel for the DDA has further relied on the

judgement of this court in Dev Raj vs. DDA WPC 7842/2012

wherein it was observed that a heavier onus cannot be cast upon

DDA to serve the DAL, than of sending it at the correct address.

16. It has been averred that the letter dated 01.04.2008 of the

petitioner does not mention the non-receipt of the DAL or SCN.

Further, it does not make reference to the cancellation letter, which

is allegedly admitted to have been received by the petitioner. It has

been contended that the aforesaid letter comes after a considerable

delay of about 2 years from the date of allotment and therefore the

case of the petitioner is barred by delay and laches.

17. It has been stated by the learned counsel for the respondent that

the AAY Scheme, 1989 has already been closed after wide

publicity through advertisement of the same in the leading

newspapers and it has been observed in catena of judgments that

the publication of notice in news paper is sufficient notice to the

party to come forward and get the formalities completed so that the

allotment could be got done. Therefore, the petitioner is entitled

only for the refund of the registration amount subject to the

submission of the original documents.

18. I have heard the learned counsel for the parties and gone through

the record. I have also requisitioned the original record of DDA

and perused the same.

19.The controversy in the matter is a very narrow one. It is the case of

the petitioner that he came to know about the allotment on

23.03.2006 from the DDA display board and thereafter made

several inquiries with regard to the dispatch of the DAL to his

postal address. Having received no response, the petitioner vide the

alleged letter dated 20.02.2007 requested again, for the DAL. The

receipt of the aforesaid letter has been disputed by the DDA. As a

matter of fact there is no such letter on the record of the DDA. It is

pertinent to note that thereafter the petitioner did not make further

enquiries. It is only on 01.04.2008 that the petitioner sent a written

communication requesting for re-allotment of the flat. The

petitioner in the aforesaid letter makes no mention of the

non-receipt of the DAL or the SCN rather the re-allotment is

sought on sympathetic medical grounds. In this letter, he states that

he could not pursue the matter of allotment because of his eye

ailment and therefore wanted a compassionate view to be taken.

This itself casts a doubt on the stand taken by the petitioner in the

present writ petition, since the ground on which the re-allotment is

sought in the present case is contrary to the representation made to

the respondent/DDA.

20. From the perusal of the letter dated 01.04.2008 of the petitioner it

appears that the story of non-receipt of the DAL or the SCN is an

after-thought. It is totally unbelievable that the petitioner would

base his case on sympathetic ground when as per his own case he

has allegedly not received the DAL or SCN on account of alleged

default on the part of DDA and not mention the same in the

representation seeking re-allotment. Further it is not in dispute that

the address of the petitioner has not changed. One of the

representations made by the petitioner acknowledges that he has

received a cancellation letter. If he has received a cancellation

letter, there is no reason to believe that he would not have received

DAL or show cause notice when the same is recorded as sent in the

office notings of the DDA.

21.This conscious or inadvertent act of the petitioner in a way

strengthens the stand of the DDA, whereby the DDA has stated

that the DAL was second time sent by speed post and was not

received back. Further the official notings of the DDA filed on

record along with the envelopes of the first dispatch that came

undelivered and the counter affidavits of the DDA officers further

lend credence to the story making it a possible and plausible one.

22. It is pertinent to note that no copy of any application written to the

respondent requesting for a copy of DAL has been placed on

record by the petitioner especially when filing formal application is

a common practice in the government department to obtain a copy

of any document. Further the disputed letter dated 20.02.2007

which the petitioner claims to have written to the respondent

requesting for the issuance of the DAL has curiously not been

placed on record by the petitioner. It has already been observed that

the letter dated 01.04.2008 does not make any mention of the non-

receipt of the DAL. It appears that the aforesaid issue of DAL not

having been received was raised for the first time only in 2012

when an RTI query was made by the petitioner with respect to the

same. As it crystallises from the aforesaid the case set up by the

petitioner seems to be a far-fetched story and is full of holes and

seeps.

23. Even if the aforesaid is ignored and the for a moment, the story of

the petitioner, is assumed to be correct, still the conduct of the

petitioner is grossly negligent and lacks bonafides as there is

inordinate delay and laches on the part of the petitioner in

approaching the court. There is no plausible reason as to why after

having been put to notice with respect to the allotment of the flat

the petitioner did not act upon the same with urgency as is reflected

from the aforesaid reasoning. After having notice of the

cancellation of the allotment vide letter dated 18.06.2007 the

petitioner chose to wait till 01.04.2008 before making a request for

re-allotment. It is inconceivable as to why the petitioner, on the

decline of the request for re-allotment, waited till 2013 i.e. after a

long gap of 5 years to approach the court. Even the request for RTI

has been filed belatedly after almost 5 years when calculated from

the date of the cancellation letter. Further, the petitioner also failed

to act upon the public notice published in the newspaper by which

the closure of the scheme was announced. There was no

justification or reasonable explanation given by him as to why he

did not comply with the terms and conditions of the demand-cum-

allotment letter by depositing the money. It is totally unacceptable

and unreasonable for the petitioner to have waited till 2013 to

approach the court and raise the grievance that the DAL was not

sent to him. He ought to have rushed to the Court at the earliest

possible opportunity. As is reflected from the aforesaid it appears

that he has tried to take undue advantage by taking dishonest stand.

24.In any event, the factum of demand-cum-allotment letter appears to

be known to him and he ought to have complied with the same. He

defaulted in acting upon the DAL and as a consequence of which it

has resulted in an automatic cancellation of the flat. Even after the

said cancellation the petitioner could have been given the benefit of

the allotment if he had rushed to the Court at the earliest possible

opportunity. But in the facts and circumstances of the case, when a

public notice is issued and the scheme itself is closed and the

conduct of the petitioner is such that he consciously chose to not

respond to the same and rather waited for 5 years to approach the

Court after the cancellation of the allotment even after being seized

of the situation in 2008, when the request for re-allotment was

denied shows that he lacks bonafides and is not sincere in

protecting his right. Applying the maxim of 'vigilantibus non

dormientibus jura subverniunt' that is equity aids the vigilant

litigant and not those who slumber upon their rights, there are no

two views that there has been gross negligence on the part of the

petitioner which has resulted in the forfeiture of his claim to get

any relief from the Court.

25. For the above mentioned reasons, I feel that the writ petition of the

petitioner is totally misconceived as the same is prima facie devoid

of any merit and is further barred by inordinate delay and latches

and the petitioner is not entitled to any relief. Hence, the petition is

accordingly dismissed.

V.K. SHALI, J.

May 20, 2015/ad