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2007 DIGILAW 1795 (DEL)

B. K. MEHTA v. DDA

2007-09-19

GITA MITTAL

body2007
JUDGMENT Gita Mittal, J. (Oral)-This writ petition has been filed by the petitioner who has submitted that he was registered for allotment of an MIG flat under the New Pattern Registration Scheme, 1979 of DDA. 2. It is submitted that by a letter dated 10th December, 1990 vide DDA Diary No. 6905, the petitioner notified the change of its address to the respondent. There is no dispute that the petitioner was successful in drawing the flat bearing No. 58, Ground Floor, Jahangirpuri, Delhi in a draw of flats which was conducted by the DDA/respondent. It is also an undisputed fact that the DDA sent a demand-cum-allotment letter dated 20th, 27th March, 1997 in respect of this flat to the old address of the petitioner. The petitioner having changed residence, obviously did not receive this letter. 3. In its counter affidavit, the DDA has also stated that this demand cum-allotment letter was returned to it as undelivered. No further action was admittedly taken by the DDA to ensure that the same was served upon the petitioner at his correct address. 4. I find that in the counter affidavit, the DDA has submitted that the petitioner made a representation dated 16th March, 1999 seeking status of his case in a public hearing. Only then the case of the petitioner was examined by the competent authority and it was decided to allot another flat to the petitioner at the current cost considering these facts. The petitioner was thereafter considered in a computerised draw held on 31st August, 2000 for allotment of a flat and was successful in drawing an MIG Flat No. 185, Sector 14, Pocket B, Phase-2, Dwarka, New Delhi. 5. So far as the demand-cum-allotment letter for this flat is concerned, the same was sent to the petitioner on block dated 20th-27th March, 2001 at his new address. This demand-cum-allotment letter was also returned as undelivered with the postal remarks that the premises were closed. Therefore, the admitted position is that no demand-cum-allotment letter was ever served upon the petitioner who thus had no information either of the allotment or of the fact that he was required to make any payment to the DDA. This demand-cum-allotment letter was also returned as undelivered with the postal remarks that the premises were closed. Therefore, the admitted position is that no demand-cum-allotment letter was ever served upon the petitioner who thus had no information either of the allotment or of the fact that he was required to make any payment to the DDA. The respondent could assert such allotment as a defence against the petition only if it could establish that the petitioner had been served with the demand-cum-allotment letter or that he was notified of the stipulation that he was required to make such payment. The demand-cum-allotment letter not having been served, the petitioner cannot be labelled or treated as a defaulter by the DDA. 6. I find that without any application of mind or making any reasonable effort to serve the petitioner with the demand-cum-allotment letter, the DDA has caused a notice to show cause to be issued to the petitioner on 30th July, 2002. This show-cause notice has also been returned un-served to the respondent with the postal remarks that the house was locked. Interestingly the counter affidavit filed by the DDA does not disclose this fact. It is only on a query made by the Court, learned Counsel for the respondent submits from the record that this notice to show cause was also not served upon the petitioner. 7. Ms. Amita Singh, learned Counsel for the respondent has contended that the DDA cannot be expected to go on sending notices to the allottees and that some responsibility ought to be apportioned to the petitioner for getting the aforesaid allotment. This submission is to be recorded only for the sake of rejection. 8. The petitioner was registered with the Scheme of 1979 for allotment of a at. Admittedly, no action for allotment was taken and for the first time, the petitioner was successful in drawing the flat only in the year 1997 which is after almost eighteen years of registration. Certainly, no applicant or registrant could be expected to sit at home for these long years waiting for the DDA to send a letter informing him about the allotment of the flat. The DDA as a stautory authority is enjoined upon to act fairly and reasonably. Certainly, no applicant or registrant could be expected to sit at home for these long years waiting for the DDA to send a letter informing him about the allotment of the flat. The DDA as a stautory authority is enjoined upon to act fairly and reasonably. Reasonableness mandates that the respondent take adequate steps to ensure that the registrant was adequately informed about his having been successful in drawing a flat and also the stipulation that he was required to make payment in time-bound manner. Sending a demand-cum-allotment only once and the same having been returned unserved to the DDA with the postal remarks that the premises of the addressee were closed, in my view, is wholly insufficient. Even the rules framed by the authorities under the Delhi Development Authority Act, 1957 for effectuating service of notice do not appear to have been complied with in the instant case. 9. Despite these facts, the respondents have proceeded in the instant case on the basis that the petitioner has failed to respond to a show-cause notice dated 30th July, 2002 which was never served upon him. Apparently, an order cancelling the second allotment made in favour of the petitioner was passed on this basis on 12th November, 2002 and the petitioner was required to apply for refund of the deposited amount. 10. It appears that the petitioner has made representations to the DDA thereupon on the 22nd of April, 2004 and 13th May, 2004. The petitioner has contended that the DDA accepted the correctness of the claims of the petitioner and issued a letter dated 4th June, 2004 calling upon the petitioner to place any documentation to prove his genuineness along with identification. It has further been submitted that the flat bearing No. 185, Sector-14, Pocket B, Phase-2, Dwarka, New Delhi which was allotted to the petitioner is lying vacant and the same has not been allotted to any third person. 11. This writ petition has been necessitated and filed on account of failure of the DDA to hand over possession to the petitioner who has been compelled to move from pillar to post. The petitioner has contended that upon failure of the DDA to act in accordance with law, the petitioner has also made an application dated 27th September, 2006 under the Right to Information Act, 2005. The petitioner has contended that upon failure of the DDA to act in accordance with law, the petitioner has also made an application dated 27th September, 2006 under the Right to Information Act, 2005. It was pursuant to the information which has been furnished to the petitioner that the present writ petition has been filed on the contention that the DDA has failed to act as per the policy dated 25th May, 1995 regarding the change of address which was binding on the respondent. . 12. The petitioner also places reliance on the pronouncement of this Court dated 16th December, 2004 in Writ Petition (C) No. 19095/2004 and in 15 other writ petitions, wherein the Court has decided the issues relating to issuance of demand letters at wrong addresses and missing priority cases in a draw of flats. Based on the adjudication of this Court, it appears that the DDA had d issued office order dated 25th February, 2005 wherein the DDA had mandated certain procedure which was required to be followed by it in such cases and states as follows: "........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 aproaches DDA within a period of four years from the date of allotment, he/she shall be allotted 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. The allotment will be made at old cost subject to following: (a) He should approach DDA within a period of four years from the date of issue of demand letter at the wrong address. (b) He should have proof of having submitted a request for change of address to DDA duly signed by the allottee himself/herself i.e. proof of receipt at DDA counter. (c) He should have documentary proof of change of address viz. Ration Card/Election Card/Identity Card/Passport, etc. (duly attested by the Gazetted Officer)." 13. The petitioner has thus contended that in view of the admitted factual position and the decisions dated 25th May, 1995 and 25th February, 2005 as noticed hereinabove, the petitioner is entitled to allotment of the flat which he has successfully drawn in the year 2000. 14. Ration Card/Election Card/Identity Card/Passport, etc. (duly attested by the Gazetted Officer)." 13. The petitioner has thus contended that in view of the admitted factual position and the decisions dated 25th May, 1995 and 25th February, 2005 as noticed hereinabove, the petitioner is entitled to allotment of the flat which he has successfully drawn in the year 2000. 14. On a consideration of the above, I find no dispute that the petitioner had duly registered the change of its address with the DDA which was admittedly received by it. The DDA had failed to inform the petitioner of the allotment of the flat which he had drawn in 1997 for the reason that the demand-cum-allotment letter was sent to the wrong address. No efforts were made to rectify this mistake and to hand over possession of this flat to the petitioner. The registrant has therefore been deprived of the use and benefit of a flat even though he was successful in drawing the same in 1997 and has waited for several decades since 1979. 15. Thereafter, the petitioner was successful in drawing the flat in 2001. No efforts were made to ensure that the communication of the demand-cum-allotment letter was made to the petitioner. The letter sent to the petitioner was admittedly received back and no further efforts were made to send the same to the official address of the petitioner, also available with the respondent or to the residential address again so that the same could be actually served on the petitioner. Even notice to show cause which was issued by the respondent was not served on the petitioner. The petitioner has also drawn my attention to the policies of the DDA dated 25th May, 1995 and 25th February, 2005 which are binding on the DDA. 16. As noticed above, in the instant case, the demand letter having not been served, there was no occasion for issuance of the notice to show cause or canceling the flat of the petitioner. 17. In this background, I have no hesitation in holding that the action of the respondent is not only contrary to the statutory provisions and regulations but also to the binding policies dated 25th May, 1995 and 25th February, 2005. Consequently, the petitioner would be entitled to a flat based on the costing of the flat which was allotted to him in the year 1997. 18. At this stage Mr. Consequently, the petitioner would be entitled to a flat based on the costing of the flat which was allotted to him in the year 1997. 18. At this stage Mr. N. Kinra, learned Counsel for the petitioner very fairly has submitted that he would not be insisting upon the same and would be willing to accept the flat which was allotted to him as communicated in the demand-cum-allotment letter block dated 20th, 27th March, 2001 in respect of flat bearing No. 185, Sector 14, Pocket B, Phase 2, Dwarka, New Delhi. 19. I find that in the counter affidavit which has been fild by the DDA, it has not stated that after proceeding to cancel the allotment of the petitioner, the flat has been allotted to any other person. However, Ms. Amita Singh, learned Counsel for the DDA has submitted that this flat was allotted to a third person in the Festival Housing Scheme of 2004. The Court is further informed that this allotment was made some time around October, 2004. It is really unfortunate that the DDA has proceeded in such a manner. The petitioner had approached the DDA and has been representing to it since 22nd March, 2004 as well as on 13th May, 2004. 1~1is flat has therefore been allotted to a third partly only to jeopardise the valid and binding rights of the petitioner. 20. My attention has been drawn to an order dated 7th August, 2007 passed in LPA No. 26/2000 and CM No. 132/2000 entitled DDA v. Jaspal Singh, wherein the Division Bench of this Court, in similar circumstances, accepted the proposal given by the respondent and directed the DDA to allot and issue a demand-cum-allotment letter of a flat of same size and locality within four weeks at the cost prevailing in September, 2005 with 12% interest per annum from 1st October, 2005 till the date of filing of the writ petition. It was further directed the allotment letter shall be served either on the respondent directly or on the Counsel for the respondent which shall be deemed as service on the respondent. On receipt of the aforesaid allotment-cum-demand letter, the respondent was directed to make payment of the amount in terms of the said letter and thereafter possession of the flat shall be handed over to the respondent immediately d on completion of formalities. 21. On receipt of the aforesaid allotment-cum-demand letter, the respondent was directed to make payment of the amount in terms of the said letter and thereafter possession of the flat shall be handed over to the respondent immediately d on completion of formalities. 21. Undoubtedly, the petitioner would be entitled to a similar treatment in the light of the statement made by Mr. N. Kinra, learned Counsel for the petitioner in Court today. Accordingly, a direction is issued to the DDA to allot and issue a demand-cum-allotment letter of a flat of the same size and locality as the flat which was allotted to the petitioner in the year 2001. Such allotment shall be made and the demand-cum-allotment letter positively be issued at the cost prevailing in the demand-cum-allotment letter block dated 20th27th March, 2001 with interest@ 12% p.a. with effect from 20th March, 2001 till the date of filing of the present writ petition. The demand-cum-allotment letter shall be served on the petitioner at all addresses of the petitioner available with the DDA as well as through Counsel for the petitioner. On receipt of the demand-cum-allotment letter, the respondent shall make payment of the amounts in terms thereof within one month of the receipt of such letter. The possession of the flat shall be handed over to the petitioner immediately on completion of all formalities by the petitioner within four weeks thereafter. Having regard to the facts which have been noticed hereinabove, the present case is a fit case for imposition of costs upon the respondent. Accordingly, the petitioner shall be also entitled to the costs which are quartified at Rs. 25,000/-. Such costs shall be paid to the petitioner within four. weeks from today by the respondent. This writ petition is allowed in the above terms. In view of the order passed in the writ petition, nothing further survives for adjudication in the present application. Accordingly, this application is disposed of as such. Writ Petition allowed & Application disposed of.