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2000 DIGILAW 195 (DEL)

SUDHA VARSHNEY v. DELHI DEVELOPMENT AUTHORITY

2000-02-18

M.K.SHARMA

body2000
M. K. SHARMA,j ( 1 ) THE present writ petition has been preferred by the petitioner seeking forissuance of a writ of mandamus against the respondent quashing the demand raisedby the respondent under letter dated 26/06/1998 regarding allotment of category11 flat bearing No. 438, Ground Floor, Sector 12, Pocket-I, Dwarka, New Delhi with afurther direction to the said respondent to allot fiat-on payment of the charges ascharged from the other allottees under the 9th Self Financing Scheme and as perbrochure of the 9th Self Financing Scheme. ( 2 ) THE petitioner registered himself under the 1979 HUDCO Scheme seeking forallotment of a fiat. Subsequently, however, on 28/09/1993, the petitionersubmitted an application for conversion of registration from MIG to Self Financingscheme Vl-B Category -II. Respondent under letter dated 7/08/1996 intimatedto the petitioner that the petitioner was registered with DDA for allotment of Category-II SFS flat under Vl-B, Self Financing Scheme. By another letter dated 20/08/1996 the petitioner was again intimated about the liability for allotment of a flat undersfs Scheme-9. The petitioner submitted his application under 9th Self Financingscheme, 1996 as offered by the DDA. By letter dated 11/04/1997 the respondent intimated the petitioner that hehas been allotted with a category-ll SPS flat at Second Floor in Sector No. 19,pocket-2, Dwarka and he was asked to deposit an amount of Rs. 8,08,588. 00. Subsequent thereto, the petitioner submitted an application on 25/07/1997seeking for change of floor on compassionate ground that his wife would be unable toclimb the stairs to the second floor and, therefore, he should be provided with a flat onthe ground floor. The aforesaid application was made to the Lt. Governor, who on thebody of application wrote that the petitioner should be given a flat at the ground floor,pursuant thereto, the case of the petitioner was considered for allotment of a flat onthe ground floor and his name was included in a draw of lots. The petitioner wassucceeded in the said draw, pursuant to which he was allotted with a flat at the groundfloor bearing flat No. 438, Ground Floor. Sector-12, Pocket-1, Dwarka, New Delhi ( 3 ) BY letter dated 11/03/1998, the petitioner was informed that the earlierallotment dated 11. 4. 1997 has been changed to flat No. 438, Pocket No. 1, Sector12, Ground Floor in Dwarka (Category-11 ). Sector-12, Pocket-1, Dwarka, New Delhi ( 3 ) BY letter dated 11/03/1998, the petitioner was informed that the earlierallotment dated 11. 4. 1997 has been changed to flat No. 438, Pocket No. 1, Sector12, Ground Floor in Dwarka (Category-11 ). However, on 26/06/1998 a demandletter was issued by the respondent claiming higher price for the said flat anddemanding payment thereof. At the request of the petitioner time was allowed tomake the payment upto 22/11/1998. Being aggrieved of which the. petitioner preferred this petitioner seeking for the aforesaid relief. ( 4 ) THE respondent has contested the writ petition by filing a detailed counteraffidavit wherein it is stated that the demand as is raised by the respondent underletter dated 26/06/1998 regarding allotment of categy-ll, being flat No. 438,ground Floor, Sector-12, Pocket-I, Dwarka was issued in terms and conditions andthe policy of the respondent. It was also stated that the prices stated in the brochureare the tentative prices and the same, therefore, could be revised taking considerationof the costing policy of the Delhi Development Authority. It was also stated thatpursuant to his registration and the draw held, the petitioner was allotted a ready builtflat No. 676, Second Floor, Sector 19, Pocket-II, Dwarka, Delhi and the demand-cum-allotment letter was issued to the petitioner, but in view of his subsequentrequest for an allotment of a flat on the ground floor, he was considered afresh and asthe draw of lots held on 17/02/1998, the petitioner was allotted flat No. 438,ground Floor in Sector 12, Pocket-I, Dwarka, Delhi. ( 5 ) THE issue that arises for my consideration, therefore, is as to whether therespondent could demand a higher price for the ground floor flat allotted to thepetitioner in lieu of the second floor flat. According to the petitioner, change of thefloor was requested by him which was accepted by the Lt. Governor and, therefore,the respondent should have allotted the ground floor flat to the petitioner at the sameprice on which was allotted a second floor flat. It was contended by him that flats werealready built up and, therefore, there was no justification for enhancing the price forallotment of a flat on the ground floor in lieu of second floor flat. Counsel appearing forthe. It was contended by him that flats werealready built up and, therefore, there was no justification for enhancing the price forallotment of a flat on the ground floor in lieu of second floor flat. Counsel appearing forthe. petitioner also submitted that a case of discrimination is made out in view of thefact that he has stated in paragraph 12 that other persons similarly situated, who hadapplied for the said scheme had been allotted flats at the rates fixed in the brochureand that the petitioner was being denied equal treatment due to no fault of thepetitioner. ( 6 ) I have considered the submissions of the counsel appearing for the parties inthe light of the documents available on the records. In my considered opinion, theaverments made in paragraphs 12, 15 and 18 of the writ petition are vague anduncertain. No definite case has been set out so as to scrutinise whether there is anactual case of discrimination or not. In my considered opinion, a case of discriminationcannot be made out on the basis of a vague statement made by the petitioner. Inorder to scrutinise and examine the case of discrimination, it was necessary for thepetitioner to plead definite and concrete cases giving particulars thereof. In absenceof such concrete evidence on record, it is not possible to examine and scrutinise theplea of discrimination as sought to be made out by the petitioner. ( 7 ) THE other question that is to be examined is whether the respondent is entitled toclaim a higher amount for allotment of a ground floor flat in lieu of the Second Floorflat. 7. 1. In D. D. A Vs. Pushpendra Kumar Jain reported in 1994 Supp (3) SCC 494,the Supreme Court has held that flats were being constructed in a continuousprocess and lots were being drawn from time to time for a given number of flats readyfor allotment and, therefore, mere draw of lots does not vest an indefeasible right inthe allottee for allotment at the price obtaining on the date of draw of lots. It was furtherheld that since the right to flat arises only on the communication of the letter ofallotment, the price or rate prevailing on the date of such communication is applicableunless otherwise provided in the Scheme. It was furtherheld that since the right to flat arises only on the communication of the letter ofallotment, the price or rate prevailing on the date of such communication is applicableunless otherwise provided in the Scheme. The Supreme Court then went on to holdthat if in case the respondent is not willing to take or accept the allotment at such rate,it is always open to him to decline the allotment and that there was no unfairness inthe said procedure. In the light of the ratio of the aforesaid decision of the Supreme Court, let meexamine the facts of the present case. The flat which was allotted to the petitionerinitially was at the second floor which the petitioner did not accept and sought forchange of the floor requesting for allotment of a flat at the ground floor. The Lt. Governor ordered that the petitioner should be considered for aground floor flat. Thename of the petitioner was again put to adraw of lots, to the knowledge of thepetitioner, and in the same the petitioner could get a ground floor flat, which wasallotted to him and, therefore, the right for allotment to the ground floor flat has arisenonly on the communication of the letter of allotment and, therefore, the price or ratesprevailing on the date of such communication has been rightly made applicablewhich is also in terms of the decision of the Supreme Court in Pushpendra Kumarjain s case (Supra ). That again is in consonance of the condition of brochureaccording to which the estimated prices mentioned in the brochure are illustrativeand are subject to revision/modification depending upon the exigencies, layout, costof construction etc. ( 8 ) I do not find any error in demanding the higher price under the allotment-cum-demand letter from the petitioner. ( 9 ) ANOTHER glaring and relevant aspect needs mention at this stage. After issuanceof the letter dated 26/06/1998 demanding payment of the amount for ground floorflat, the petitioner filed an application before the respondent seeking for extension oftime for depositing the a. mount as per the demand letter on which time was extendedtill 20. 11. 1999 and in the meantime he filed the present petition. After issuanceof the letter dated 26/06/1998 demanding payment of the amount for ground floorflat, the petitioner filed an application before the respondent seeking for extension oftime for depositing the a. mount as per the demand letter on which time was extendedtill 20. 11. 1999 and in the meantime he filed the present petition. The petitioner is liable to make payment of the amount in terms of the aforesaiddemand-cum-allotment letter, which although was claimed but was not depositedand according to the respondent for non-payment of the said demand, there is anautomatic cancellation of the flat allotted to the petitioner. The petition standsdismissed but with a direction to the respondent that if in case the petitioner depositsthe amount in terms of the demand-cum-allotment letter issued by the respondentwithin four weeks from today, the flat allotted to him at the ground floor shall not becancelled and the same shall be allotted to the petitioner and possession of the saidflat shall be handed over to the petitioner on payment of the entire dues and orcompliance of all formaliq ties within four weeks from today. In terms of the aforesaidorder the Writ Petition stands disposed of.