Laxmi Devi vs The Chairman Delhi Development ...
2019 Latest Caselaw 2355 Del

$~26
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                       Date of Decision: 6th May, 2019

+      W.P.(C) 1124/2014

       LAXMI DEVI                                  ...... Petitioner
                                 Through : Mr. Anil Kumar Saxena,
                                 Adv.
                                 versus

       THE CHAIRMAN DELHI DEVELOPMENT AUTHORITY &
       ORS.                            ...... Respondents

Through : Ms. Urvi Kuthiala, Adv.

CORAM:

       HON'BLE MR. JUSTICE C. HARI SHANKAR

                           JUDGMNET (ORAL)
%                             06.05.2019

1. Mani Ram Silswal, the husband of the petitioner, applied, to the Delhi Development Authority (DDA), on 5th July, 1980, for allotment of a flat under the reserved quota maintained by the DDA for ex- service men. In the certificate of registration, issued to the petitioner's husband by the DDA, his address was noted as E-46, Braham Puri, Delhi-110053. Additionally, in the deposit receipt, acknowledging receipt of payment of ₹ 1,500/- by the petitioner's husband, towards the said application for allotment, his office address, i.e. Lodhi Road, H.P.O., New Delhi-110003, was also noted. The DDA was, therefore, in the know of both these addresses of Mr. Silswal.

2. It is averred in the writ petition, that till his demise on 26th December 2008, the petitioner's husband continued to maintain the aforesaid office address at H.P.O., Lodhi Road.

3. Having applied for allotment of a flat, as stated above, the petitioner's husband addressed representations to the DDA on 5th September, 1983, 19th March, 1984, 22nd July, 1985, 16th April, 1990 and 29th September, 2004, seeking to know the status of his application, but received no response. During this period, vide a letter dated 22nd July, 1985, the petitioner's husband intimated the DDA that he had shifted his residence from E-46, Braham Puri to D-48, Braham Puri.

4. The writ petition further avers that it was only on 29 th September, 2004, that the petitioner's husband was informed that, vide communication dated 27th September, 2002, the DDA had informed him of the allotment, in his favour, of an LIG Flat, which was subsequently cancelled. The petitioner's husband also came to know, from the DDA that the letter of 24th September, 2002, had, in fact, been sent to his residential address at E-46, Braham Puri, Delhi- 110053, whereas he had already intimated the DDA regarding the change of his residential address to D-48, Braham Puri, Delhi-110053. Apparently, no communication was sent by the DDA either to D-48, Braham Puri, or to the official address of the husband of the petitioner i.e. H.P.O., Lodhi Road, New Delhi, despite both these addresses being within the knowledge of the DDA.

5. Chagrined by the above acts of the DDA, the petitioner's husband represented to the Hon'ble Lieutenant Governor. This, apparently, persuaded the DDA to address, to the husband of the petitioner, the following communication, on 8th November, 2004 :

"DELHI DEVELOPMENT AUTHORITY LIG (HOUSING) BRANCH, D-BLOCK 2nd FLOOR, VIKAS SADAN, INA NEW DELHI-110023.

NO. L 312 (5120)/02/DW/NP/9035 DATED 8-11-04

To

Shri Mani Ram Silswal,, C/o Shri Shyam Lal P.A., Lodi Road HPO, New Delhi-110003.

Sub; Regarding allotment of LIG flat against Registration No. 60729 under NPRS-79.

Please refer to your letter dated 29.09.2004 on the subject noted above. In this connection, I am directed inform you to attend this office on any working Monday/Thursday between 2.30 P.M. to 5 P.M. alongwith all original documents related to your aforesaid registration and record of change of address to examine the case further.

Assistant Director LIG (H)/DDA."

6. In response to the aforesaid communication of 8 th November, 2004, the petitioner's husband appeared before the DDA on 2nd December, 2004 and, under cover of a letter of the said date, submitted the documents requisitioned by the DDA.

7. There is nothing on record to suggest that the DDA ever communicated with the petitioner's husband thereafter. Rather, the stand taken by the DDA, in the counter-affidavit to the writ petition, is that the records relating to the petitioner's husband had been lost.

8. Needless to say, this would inevitably invite, against the DDA, an adverse inference.

9. The writ petition further avers that, even after 2004, the husband of the petitioner pursued the matter with the DDA, but to no avail.

10. Ultimately, on 26th December, 2008, the petitioner's husband, expired, leaving behind his wife, i.e. the present petitioner, and four sons. as his legal heirs.

11. It is further averred, in the writ petition, that, the petitioner's husband had left the papers, relating to his aforesaid application for allotment of a flat with a friend, from whom the said papers became available to the petitioner only in 2012. Thereafter, the petitioner, alongwith her son, visited the office of the DDA, seeking to know the fate of the aforesaid application for allotment of a flat, but did not receive any response. An application was also filed, by the petitioner, on 26th April, 2013, for being permitted inspection of the relevant file, but this, too, reach a dead end, as the DDA maintained that the record of the file was not available with it.

12. After making a final representation on 7th October, 2013, the petitioner has moved this Court, invoking the jurisdiction vested in it by Article 226 of the Constitution of India.

13. Ms. Urvi Kuthiala, learned counsel appearing for the DDA candidly acknowledges that, as the record of the file is not traceable with the DDA, she is handicapped in making any effective submissions by way of a response, on facts, to the averments in the writ petition. However, she emphatically presses the ground of delay and laches, pressing that the petitioner's husband as well as, later, the petitioner, are guilty of indolence, preferring to maintain complete silence from 2004 till 2014 when they woke up and approached this Court. She submits that, save and except the averments in the writ petition, there is nothing to indicate that the petitioner's husband had, in fact, been pursuing the matter with the DDA after 2004, till his demise in 2008 and that, even after 2008, the papers were lying with a friend of the petitioner's husband, thereby disabling the petitioner from moving this Court only in 2014.

14. She has relied, in support of her plea of delay and laches, on the following judgments:

(i) Sushila Pareek v. DDA, 2015 SCC OnLine Del 9739,

(ii) Decision dated 23rd August, 2011 in LPA 264/2011 Laxmi Devi v. D.D.A.

(iii) Brinda Ghosh v. D.D.A, 2012 SCC OnLine Del 892,

(iv) Sudhir Kumar Sharma v. D.D.A, 2005 SCC OnLine Del 149,

(v) Subhash Chander v. Vice Chairman, DDA, MANU/DE/1352/2015,

(vi) Ram Lakhan Singh v. D.D.A., (2013) 136 DRJ 84,

(vii) Naresh Kumar Kataria v. D.D.A., 2012 SCC OnLine Del 2889,

(viii) Leelu v. U.O.I., 2013 SCC OnLine Del 2723,

(ix) State of Madhya Pradesh v. Bhailal Bhai, AIR 1964 SC 1006,

(x) Municipal Council Ahmednagar & Ors. v. Shah Hyder Beig, AIR 2000 SC 671.

15. Ms. Kuthiala also submits that the scheme, whereunder the husband of the petitioner applied for allotment of a flat was closed, and this fact was made known to the public by advertisement in newspapers on 22nd November, 2012, and also displayed on the website of the DDA. As such, she submits, no relief could be granted to the petitioner at this stage.

16. On merits, the case of the petitioner has not been refuted by the DDA. The contention of the petitioner's husband is that the change of his address from E-46 to D-48 Braham Puri, was made known to the DDA vide communication dated 22nd July, 1985. Besides, the DDA was also aware of the petitioner's husband's official address i.e. IHPO, Lodhi Road, New Delhi, which he continued to maintain till his demise in 2008. The communication, of the letter dated 27th

September, 2002, allotting the husband of the petitioner an LIG flat was, apparently, made to the husband of the petitioner's earlier residential address at E-46, Brahm Puri, New Delhi. In such circumstances, this Court has, in a number of decisions, held that the DDA cannot resile from its liability to allot, to the petitioner's husband, a flat, as per the scheme under which the husband of the petitioner had applied.

17. I have also had occasion to look into a similar issue in my judgment dated 7th December, 2018 in Inder Mohan Singh v. DDA, 2018 SCC OnLine Del 12803. In the said case, too, the petitioner, after applying, to the DDA, for allotment of an MIG flat, shifted his residence and informed the DDA accordingly. The petitioner was allotted a flat, but the allotment letter was sent to his earlier address. In the interregnum, the petitioner, in that case, shifted residence to Canada and was issued an Overseas Citizen of India (OCI) card. It was only when he visited India in February, 2012, that the petitioner, in that case, came to know of the allotment of the flat to him which was, subsequently, cancelled owing to lack of a response from the petitioner. In the said case, too, apart from the merits, the DDA addressed the ground of delay and laches.

18. The petitioner in the said case had placed reliance on the judgment of this Court in Anurag Sahai v. DDA, 2012 SCC OnLine Del 5839, on which Mr. Anil Kumar Saxena, learned counsel for the petitioner, in the present case, too, relies. The observations, in that context, as contained in paras 20 to 29 of my judgement in Inder

Mohan Singh (supra), which also consider the issue of delay, may be reproduced thus :

"20. Reliance has been placed, by Mr. Saini, on the judgment dated 22nd November, 2012, of a coordinate Bench of this Court in Anurag Sahai v. DDA, 2012 SCC OnLine Del 5839.

21. Arguing in response, Mr. Birbal submits that, having applied for allotment of the flat on 27 th March, 1997, on priority basis, as he was going to superannuate, the petitioner ought to have been aware of the fact that the allotment was forthcoming. It is contended that allotment was made, to the petitioner, within four months, in July 1997, as contrasted to the position obtained in the decision on which Mr. Saini relies, which dealt with allotments made after several years' delay. Mr. Birbal further seeks to submit that immediately after his superannuation, the petitioner proceeded to Canada and that, having returned and found that prices of real estate had appreciated, the petitioner sought to make a quick buck by claiming the flat, the right to which he had effectively abandoned.

22. Mr. Saini submits, by way of rejoinder, that his client did not stand to gain anything by asking for the flat, as the flat would be available at the rate existing on the date of filing of the writ petition. Mr. Saini also refutes the plea of laches by stating that his client got to know about the cancellation of the allotment of flat only when he returned from Canada.

23. Mr. Saini further places reliance on the judgment dated 16th February, 2012 of a coordinate Bench of this Court in Ravi Dass v. DDA, 2012 SCC Online Del 987 and of the judgment of the Supreme Court in V. N. Bharat v. DDA, (2008) 17 SCC 321.

24. Having thus recorded submissions of learned counsel, as well as submissions advanced in the pleadings, I am of the view that the case of the petitioner

is bound to succeed, in view of the judgments of this Court in Anurag Sahai (supra) and of the Supreme Court in V. N. Bharat (supra), on which Mr. Saini rightly relies.

25. The controversy in Anurag Sahai (supra) is substantially similar to that which arises in the present case. The petitioner, in that case (who would hereinafter be referred to as "Anurag") had registered himself, with the DDA, under a Registration Scheme, 1979, for allotment of an LIG flat. At the time of registration, the petitioner intimated his residential address, to the DDA, as House No. B-60, Kidwai Nagar, where he was residing at that time. He had also intimated, to DDA, his "occupational address", which was contained on an income certificate, issued by his employer, which was annexed to the application. Anurag, thereafter, shifted residence from Kidwai Nagar, but did not inform the DDA regarding the said change. He continued, however, to work in the same business establishment. His priority number, for allotment of flat, matured in the year 2000, whereupon flat was allotted. The demand-cum-allotment letter was issued, to Anurag, at the aforementioned Kidwai Nagar address, but remained undelivered. No attempt was made to serve him at his "occupational address". As in the present case, on account of non- payment, DDA cancelled the allotment made to Anurag. Again, as in the present case, Anurag made enquiries, regarding the status of his application, several years later, in June, 2011, whereupon he came to know that the allotment had been cancelled. On failing to obtain any relief from the DDA by making representations to it, Anurag moved this Court, under Article 226 of the Constitution of India.

26. As in the present case, the DDA raised, before this Court, the issue of delay and laches, stating that Anurag had been sleeping over his rights, and that he had provided no explanation for making no enquiry, whatsoever, from the DDA, since 2000, or having sought judicial redressal earlier. It was sought to be pointed out

that the process of allotments, under the Scheme, stood closed

27. This Court, speaking through a learned Single Judge, held thus, in paras 10 to 13 of the judgment:

"10. I have heard learned counsel for the parties and considered their rival contentions. The basic facts of this case are not in dispute that the petitioner applied for allotment of a flat under New Pattern Registration Scheme, 1979, for allotment of an LIG flat. At the time of registration, the petitioner had mentioned his residential address as House No. B-60, Kidwai Nagar, New Delhi, and he had also informed DDA with regard to his occupational address. It is also not in dispute that thereafter the petitioner changed his residence, however, the petitioner did not inform the DDA with regard to change of his residential address. It is also not in dispute that demand-cum-allotment letter sent to the petitioner at his old residential address i.e. Kidwai Nagar was returned to the DDA undelivered and thereafter the demand-cum- allotment letter was not sent at the occupational address of the petitioner.

11. In this case, at the time of registration under the New Pattern Registration Scheme, 1979, the petitioner had not informed DDA with regard to his occupational address, however, an income certificate from his employer was placed on record, on the letter head of the employer where the address was mentioned. The petitioner continued to work with the same business establishment and in case the demand-cum-allotment letter was issued to the petitioner at his occupational address there is every likelihood that he would have received the same. Accordingly, the present case is fully covered by the decision rendered by the Court in the case of Mohinder Singh v. DDA (supra) which has been upheld by the Division Bench.

12. There is no explanation forthcoming as to why DDA did not issue demand-cum-allotment letter at the occupational address, which was available in their record. This has resulted in delay for the petitioner to own a flat for which initial payment was made as far back as in the year 1979.

13. The DDA, which is a statutory body, has failed to perform its duty. The Court cannot lose track of the fact that a condition of eligibility for allotment of a flat under New Pattern Registration Scheme, 1979, is that an applicant should not own any other permanent residence in Delhi, resultantly the petitioner would not have taken any step to acquire another property in Delhi. Another factor, which cannot be lost track of, is that allotment under this scheme were made over a span of more than two decades and thus the petitioner could well have been misled that his allotment would mature in time to come. DDA was well aware of the various judgments passed by this Court from time to time that DDA is duty bound to inform an allottee with regard to the allotment at all the addresses available in their record."

28. This decision effectively demolishes the submission, of the DDA, that the present writ petition ought to be dismissed on the ground of delay and laches, on the part of the petitioner, in prosecuting the application submitted by him, during the period he was in Canada. If this Court did not feel, in Anurag Sahai (supra), that the delay of eleven years, in the petition, in that case, taking up the issue of non-allotment of the flat, to him, inhibited his claim, there is no reason for this Court, in the present case, to hold otherwise.

29. On facts, too, the judgment in Anurag Sahai (supra) applies to the present case on all fours. As in that case, in the present case, too, the office address of the petitioner was known to DDA; yet, no efforts were made

to serve the petitioner at the said address. Even otherwise, once the DDA realised that efforts, to serve the petitioner, at his Vasant Vihar address, had failed, it was, in my view, not reasonable, on the part of the DDA, to cancel the petitioner's allotment without making any other efforts to serve the petitioner. In V. N. Bharat (supra), the Supreme Court held that, where the petitioner denied the fact of service of notice, the onus shifted to the DDA to establish the fact of such service. In the present case, there is no denial of the fact that service of the demand-cum-allotment letter had not been made on the petitioner, as the letter had been returned undelivered by the postal authorities. It was incumbent, therefore, on the DDA, to make efforts to serve the petitioner, before cancelling his allotment."

19. In these circumstances, I had directed the DDA to allot, to the petitioner, a flat similar to the flat which had been allotted to him, and which was subsequently cancelled, preferably in the same area subject, however, to the petitioner making payment for the said flat at the rate prevalent on the date of filing of the writ petition.

20. On facts, the present case is covered entirely by the judgment of this Court in Anurag Sahai (supra) as well as my decision in Inder Mohan Singh (supra).

21. On the issue of delay, unlike the situation which obtained in the various judgments on which Ms. Kuthiala seeks to place reliance, in the present case, the DDA itself wrote to the petitioner's husband on 8th November, 2004, inviting the petitioner's husband to produce, before it, all the relevant documents, with the assurance that the case of the petitioner's husband would be examined further. Encouraged

thereby, the husband of the petitioner approached the DDA with all the relevant documents. These facts are not denied in the writ petition which, instead, merely seeks to submit that the record of the case is not traceable. Apparently, since then, there has been no communication, by the DDA, with the husband of the petitioner. In the interregnum, the husband of the petitioner expired in 2008. The petitioner, who was a widow living with a physically challenged son, approached this Court within six years of the demise of her husband.

22. While exercising its jurisdiction under Article 226 of the Constitution of India, this Court is required to be guided by the consideration of ensuring that the cause of justice is not frustrated on technical grounds. In a case such as the present, the DDA, after ensuring the husband of the petitioner, in writing, in 2004, that it would examine his case further, was bound to communicate with the petitioner's husband. No evidence to show that any such communication having ever been made by the DDA to the petitioner's husband, the DDA can hardly be heard to advance the plea of delay and laches, as a ground to defeat the case of the petitioner which, on merits, is squarely covered by the judgments of this Court to which reference has already been made hereinabove.

23. The fact that the Scheme, under which the petitioner's husband had applied for allotment of a flat, has come to an end in 2012 cannot, either, in my view, operate as a fetter to grant of relief in a case such as the present.

24. In view thereof, for the reasons stated hereinabove, the writ petition is allowed. The DDA is directed to allot, to the petitioner, a flat similar to the flat which had been allotted to petitioner's husband in 2002, preferably in the same area. The allotment would be subject to the petitioner making payment of the said flat at the rate prevalent on the date of filing of the writ petition.

25. Needless to say, the petitioner would be required to fulfil all requisite formalities in order to secure possession of the flat.

26. There shall be no order as to costs.

C. HARI SHANKAR, J MAY 06, 2019/kr