Delhi High Court
Delhi Development Authority vs Subhash Chand Dhigan on 7 February, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 7th February, 2019
+ LPA 273/2018 & CM. Nos. 20306/2018 and 20307/2018
DELHI DEVELOPMENT AUTHORITY
..... Appellant
versus
SUBHASH CHAND DHIGAN ..... Respondent
AND
+ LPA 274/2018 & CM. Nos. 20312/2018, 30313/2018 and 20315/2018
DELHI DEVELOPMENT AUTHORITY ..... Appellant
versus
SUSHMA LAKRA @ SUSHMA SYLDIAC
BARA
..... Respondent
AND
+ LPA 275/2018 & CM. Nos. 20316/2018 and 20317/2018
DELHI DEVELOPMENT AUTHORITY ..... Appellant
versus
NIRMALA ..... Respondent
AND
+ LPA 276/2018 & CM. Nos. 20319/2018 and 20320/2018
DELHI DEVELOPMENT AUTHORITY ..... Appellant
versus
SURESH KUMAR ..... Respondent
LPA No. 273/2018 and connected matters. Page 1 of 9
AND
+ LPA 277/2018 & CM. Nos. 20322/2018 and 20323/2018
DELHI DEVELOPMENT AUTHORITY ..... Appellant
versus
SHASHI BALA PATHAK ..... Respondent
AND
+ LPA 278/2018 & CM. Nos. 20328/2018 and 20329/2018
DELHI DEVELOPMENT AUTHORITY ..... Appellant
versus
GANDETI KRISHNA RAO ..... Respondent
AND
+ LPA 279/2018 & CM. Nos. 20332/2018 and 20333/2018
DELHI DEVELOPMENT AUTHORITY ..... Appellant
versus
RAJENDRA PRASAD ..... Respondent
Present: Mr. Rajiv Bansal, Sr. Adv. with
Mr. Dhanesh Relan, Ms. Parul Panthi,
Ms. Vaishali Rawat and Ms. Gauri
Chaturvedi, Advs. for appellant/DDA.
Mr. C. Mohan Rao and Mr. Lokesh Kumar
Sharma, Advs. for appellants in item nos. 8
& 10 to 13.
Mr. Yashish Chandra and Mr. Shantanu,
Advs. for appellants in item Nos. 9 and 14.
LPA No. 273/2018 and connected matters. Page 2 of 9
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE V. KAMESWAR RAO
V. KAMESWAR RAO, J. (ORAL)
1. The challenge in this batch of Intra Court Appeal is to the order dated
8th December, 2016 passed by the learned Single Judge in a batch of Writ
Petitions (WPs) filed by the respondents herein challenging the action of the
DDA (appellant herein) in not issuing fresh demand-cum-allotment letters.
2. The facts as noted from the record are, in the year 1996 respondents
herein had applied for allotment of flats in a Scheme. On 31st March, 1997,
draw of lots were held and the respondents were allotted flats. In the year
1998, demand-cum-allotment letters were issued to the respondents, however,
some of the respondents challenged the demand raised in the said letters.
The learned Single Judge of this Court, in the case of Raj Kumar v. DDA,
W.P.(C) 2142/1999, decided on 27th November, 2003, repelled the challenge
to the upward revision in the disposal cost, but directed the respondents to
choose an option between payment of consideration for the allotted flat at the
current cost (then prevailing) within 45 days from the date of judgment or to
make payment of the original cost with interest @ 12% per annum on the
50% of the amount from the date of allotment and balance 50% of the
amount from the date when the amenities became available. It was noted by
the learned Single Judge that from the appellant's file noting dated 24 th
March, 2005, it is clear that a decision was taken not only to waive off the
limitation of 45 days for exercise of option for payment at current cost but
also decided to consider the cases of even those allottees who had exercised
the option for the payment of the current cost beyond 45 days. As the current
cost was working out to be less than the old cost plus interest, a decision was
required to be taken as to whether all allotees irrespective of the factum of
having exercised option for payment at current cost would be charged current
rates. However, no decision was taken by the DDA on the ground that
similar matter was pending consideration before the higher authorities.
3. The case of the respondents before the learned Single Jude was that
they have come to know that allotment letters had been issued to similarly
placed allottees as late as 2014 and 2015 and they filed representations
calling upon the appellant / DDA to issue demand letters. A plea of delay
and laches was taken by the appellant / DDA as according to DDA, cause of
action for filing the writ petitions had arisen in the year 2003. The
respondents had approached DDA only in 2015 for allotment of flats. That
apart, they sought parity qua the cases of K.K. Swajana Mitran and Smt.
Leela. The said plea of parity was contested by the appellant DDA by stating
that the said two persons were not fence-sitters, unlike the respondents herein
inasmuch as they had been taking active steps through various
communications to pursue their allotment and as such the benefits were given
to the said two persons and no parity can be sought by the respondents herein.
4. The learned Single Judge on both these pleas has held that pursuant to
the judgment of this court in the case of Raj Kumar (Supra), it was the
appellant DDA which was to issue the demand-cum-allotment letters, which
it failed to do. In fact, the plea taken was that the matter was pending
consideration before the competent authority and as such the respondents
were not issued the demand-cum-allotment letters. It was stated in the
counter-affidavit filed by the appellant / DDA that in few similar cases where
demand-cum-allotment letters were issued, the same were under challenge by
way of writ petitions and this court in Madan Lal Nayak v. DDA, W.P(C)
3257/2007 decided on 19th March, 2008 and Madan Lal Nayank v. DDA,
W.P(C) 8983/2008 decided on 21st May, 2010 directed the DDA to make
calculations and issue demand-cum-allotment letters to the petitioners therein
within 30 days. The DDA had also admitted that it had recently in the year
2014 and 2015 issued demand-cum-allotment letters as well as the
conveyance deeds and handed over possession of flats to similar allottees.
The learned Single Judge on the issue of delay and laches has inter alia held
that delay and laches is one of the facets to deny exercise of discretion while
dealing with a writ petition. He also held that it is not an absurd impediment.
He held that the doctrine of delay and laches is not a constitutional limitation
on exercise of writ jurisdiction. He relied upon the judgment of this court in
the case of Pooja Khemka v. DDA 2015 SCC Online Del. 12399, wherein it
was inter alia held that failing to exercise jurisdiction at a belated stage will
lead to iniquitous and absurd result as well as cast confusion, inconvenience
and bring injustice, inasmuch as owners of adjoining similar properties who
had purchased similar flats in the same auction would pay 'X' as unearned
increase, whereas petitioners (in that case) being neighbours of the said
properties would pay '4X' as unearned increase. The court also held that
respondent DDA in that case has not been prejudiced due to any alleged
delay in filing the said writ petition. It was observed that the DDA would be
within its right to claim interest on the fresh demands of unearned increase.
5. It would suffice to state that the learned Single Judge has held that
DDA, by raising the plea of delay, is trying to place premium on its own
wrong. He held that demand in terms of the judgment in Raj Kumar (Supra)
could have been raised by the DDA alone. He observed that at no point of
time, the allotments to the respondents were cancelled. In other words, the
allotments are subsisting even as of today. He was of the view that had the
respondents approached this court earlier by way of writ petition, DDA
would have stated, it was not in a position to issue demand letters as cases of
old allottees were still pending consideration. He held that the writ petitions
filed by the respondents herein is because of the inaction on part of the DDA
and also the issuance of demand-cum-allotment letters on 27th August, 2014
and 7th May, 2015 to K.K. Swajana Mitran and Smt. Leela. In this manner, he
answered the plea of delay and laches.
6. We may state here, the learned Single Judge had also relied upon the
judgment of a Coordinate Bench of this court in Naresh Kumar and Ors. v.
Union of India and Ors. W.P.(C) 7393/2011 decided on 10th October, 2011.
He held that the case of the respondents herein is similar to the case of K.K.
Swajana Mitran and Smt. Leela, and has directed DDA to raise fresh
demands on the respondents. He has granted liberty to the DDA to claim
interest from the date of original demand till payment by the respondents in
accordance with the judgments of this Court in Raj Kumar (Supra) and
Madan Lal Nayak (I) and (II) (Supra).
7. Mr. Rajiv Bansal, learned Sr. Counsel appearing for the appellant /
DDA would submit that the learned Single Judge could not have entertained
the writ petitions on a cause of action accrued in the year 2003, after eleven
years, while also granting parity with the cases of K.K. Swajana Mitran and
Smt. Leela inasmuch as those two persons had been pursuing their remedy
with DDA since the beginning, unlike the respondents herein who had
approached DDA after more than 11 years. In other words, K.K. Swajana
Mitran and Smt. Leela were not only vigilant allottees, but also allottees who
exercised their options and informed the DDA qua the same. He also
referred to the writ petition filed by the Smt. Leela inasmuch as the demand-
cum-allotment letter issued to Smt. Leela in 2007 which was challenged by
her in 2010 pursuant to which challenge, she agreed to pay the demand as per
the formula set in the case of Madan Lal Nayak (I) and (II) (Supra). So,
fresh allotment letter was issued to her on the basis of her agreement to a
fresh demand. However, the respondents herein were silent for 11 years and
made a representation only thereafter.
8. We are unable to appreciate the submission made by Mr. Bansal for the
reasons already stated by the learned Single Judge which we have noted
above. The learned Single Judge has exercised his discretion in favour of the
respondents i.e the writ petitioners for certain good and valid reasons, which
according to us cannot be faulted. That apart, we find that appeals, being
LPA Nos. 273/2018, 275/2018, 276/2018, 277/2018, 278/2018 and 279/2018,
are barred by delay of 464 days and LPA No. 274/2018 is barred by delay of
341 days in filing and 121 days in re-filing. The reasons given for seeking
condonation of delay are administrative in nature, showing the movement of
the file. The same does not inspire confidence nor can be sufficient reasons
for condoning the delay.
9. We accordingly dismiss the respective applications for condonation of
delay in all the Appeals and the Appeal itself as being without merit.
CM. No. 20306/2018 in LPA 273/2018
CM. No. 20312/2018 in LPA 274/2018
CM. No. 20316/2018 in LPA 275/2018
CM. No. 20319/2018 in LPA 276/2018
CM. No. 20322/2018 in LPA 277/2018
CM. No. 20328/2018 in LPA 278/2018
CM. No. 20332/2018 in LPA 279/2018
Dismissed as infructuous.
V. KAMESWAR RAO, J
CHIEF JUSTICE
FEBRUARY 07, 2019/jg
