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2009 DIGILAW 1183 (DEL)

SATISH KUMAR KALRA v. D. D. A.

2009-10-27

G.S.SISTANI

body2009
JUDGMENT G.S. Sistani, J. (Oral)-Rule. With the consent of Counsel for the parties, present petition is set down for final hearing and disposal. 2. Present petition has been filed under Article 226 of the Constitution of India seeking a writ of mandamus directing the respondent to allot an MIG flat to the petitioner, on the basis of the demand letter which was sent by DDA at Delhi in place of Meerut and then corrected after five months and sent again but without changing the date of payment. 3. Brief facts of the case are that the petitioner booked an MIG flat vide registration No. 24518, and the address for correspondence was mentioned as 239/1, Thapar Nagar, Meerut. The petitioner was allotted a flat bearing No. 81. Pkt-7. 1st Floor, Sector-21, Rohini, Delhi vide File No. M353(407)2002/NPRS/RO. However, instead of sending the demand letter at the Thapar Nagar, Meerut address, the DDA sent the demand letter at C-2/137, Phase-II, Ashok Vihar, Delhi-l10052. Realizing its mistake that the demand letter had been sent at a wrong address, the DDA made a correction and sent the letter at the correct address of the petitioner i.e. 239 II, Thapar Nagar, Meerut on 17.2.2003. Admittedly, this letter was received by the petitioner, however, the correction was made only in the address and the date for making the payment was not corrected. Thus according to the letter, last date of making the payment to the DDA was 3.10.2002 while admittedly the letter was received by the petitioner on 17.2.2003. 4. It is the case of the petitioner that he immediately sent a letter to the DDA on 5.3.2003 bringing to their notice that the demand letter was received by him on 17.2.2003 while the last date for making the payment was mentioned as 3.10.2002. Having received no response from the respondent-DDA, petitioner addressed another communication dated 22.3.2003 to the respondent-DDA wherein it was reiterated that the demand letter was received by him on 17.2.2003, while the last date for making the payment was 3.10.2002. The petitioner requested the respondent-DDA to permit him to make the payment within three months of issuance of the demand letter, but received no response thereto. He also requested for hearing, which was not granted to him. The petitioner requested the respondent-DDA to permit him to make the payment within three months of issuance of the demand letter, but received no response thereto. He also requested for hearing, which was not granted to him. He also brought to the notice of the respondent-DDA that he has to leave for Australia to sort out some personal problems of his son, which were likely to take some time and, thus, requested for a revised demand letter so as to enable him to make the payment before his departure. According to the petitioner, no reply was received to this communication as well. The petitioner then approached the office of the DDA on 21.8.2006 as well as attended public hearing on 12.10.2006. Counsel for petitioner has also drawn attention of the Court to page 21 of the paper book, which is the performa filled in by the petitioner on his 3rd personal visit to the office of the DDA. In this performa he noted "the letter of allotment was sent to me long after the date of acceptance had passed. This fact was brought to [notice of] your office. In response to my this letter, your office asked me to state the category and registration number. I replied, but did not receive any response. Date of hearing 26.4.2007." The petitioner thereafter yet again wrote to the respondent-DDA vide letter dated 24.6.2008. Counsel for petitioner submits that, thereafter, his client received a communication dated 8.7.2008 from the Assistant Director, AVAAS, calling upon the petitioner to produce the following documents and attend the office of Assistant Director on any Monday Thursday between 2:30 p.m. to 5:30 p.m.: "(i) Three specimen signature with photograph duly attested by 1st Class Magistrate or Gazetted Officer. (ii) Photocopy of Election card/Passport, duly attested by 1st Class Magistrate or Gazetted Officer. (iii) An Undertaking on a non-judicial stamp paper of Rs. 10/- duly attested by Notary Public to the effect that you are the original registrant of MIG/NPRS-79/AAY-89 as well as allottee of flat referred above." 5. By virtue of the present petition, petitioner has sought allotment of the MIG flat, as per the demand letter which was sent to him. 6. The present petition is opposed by the respondent-DDA. Counsel for respondent - DDA submits that it is not disputed that a demand letter was issued to the petitioner at the wrong address. By virtue of the present petition, petitioner has sought allotment of the MIG flat, as per the demand letter which was sent to him. 6. The present petition is opposed by the respondent-DDA. Counsel for respondent - DDA submits that it is not disputed that a demand letter was issued to the petitioner at the wrong address. It is also not disputed that a correction was made in the letter pertaining to the address of the petitioner, but the last date of making the payment was not corrected. Counsel for respondent-DDA submits that, however, the petitioner was called upon to attend the office of the DDA in response to his communication dated 22.3.2003, by letter of DDA dated 9.9.2003 on any Monday or Thursday between 3.00 and 5.00 p.m. along with documentary proof of residential address. Learned Counsel also contended that petitioner did not respond to this communication which resulted in cancellation of the flat and the same was communicated to the petitioner vide letter dated 23.4.2004. Counsel for respondent submits that even otherwise, the present petition is barred by delay and laches, besides that there is no reasonable explanation as to why the- petitioner did not attend the office of the DDA in response to communication dated 9.9.2003. 7. Rebutting the contention of the DDA, Counsel for petitioner relies upon an office order/policy dated 25.2.2005 adopted by the DDA which was formulated pursuant to the orders passed by the Delhi High Court in Writ Petition No.19095/ 2004, pertaining to cases where the change of address was intimated by the registrant to the DDA, but erroneously not recorded by the DDA and thus demand letters were sent at the wrong address. Counsel for petitioner submits that the case of the petitioner would squarely be covered by this office order dated 25.2.200 as admittedly DDA had sent the demand letter at the wrong address. The policy also pertains to cases w here the registrant does not receive the demand letter on account of the mistake of the DDA. It is contended that petitioner is similarly placed as the demand letter was not received by him at the correct address. The policy also pertains to cases w here the registrant does not receive the demand letter on account of the mistake of the DDA. It is contended that petitioner is similarly placed as the demand letter was not received by him at the correct address. Learned Counsel for the petitioner submits that, as per the policy, in case a demand letter is not received by the registrant, however, he approaches the DDA within four years from the date of allotment, he would be entitled to the allotment of flat at the old cost prevalent at the time when the priority of the allottee matured and the allotment letter issued, and no interest would be charged. He also submits that as per para 2 of this office order dated 25.2.2005, in cases where intimation has been made but the allottee has not approached the DDA within a period of four years from the date of allotment, the allottee shall be considered for allotment of a flat at the old cost prevalent at the time of original allotment plus 12% simple interest w.e.f. original allotment till the date of issuance of fresh demand/ allotment letter. The office order further shows that the same principle would be applicable in case of missing priority cases. 8. While Counsel for DDA has disputed the applicability of this office order dated 25.2.2005 to the facts of this case, Counsel for petitioner submits that no fault can be attributed to the petitioner, as the entire controversy resulted on account of the first mistake committed by the DDA in sending the demand letter at the wrong address. Even upon correction of the address, the DDA did not correct the date for making the payment and in the absence of any demand letter, the petitioner could not have fulfilled the demand. 9. Learned Counsel for the petitioner submits that various letters written to the DDA fell on deaf ears and Counsel denied receipt of any letter dated 9.9.2003. Counsel for the petitioner submits that even after 2003, petitioner has been writing letters and personally appearing before the DDA and at no point of time did the DDA confront him with the letter dated 9.9.2003. Counsel for the petitioner submits that even after 2003, petitioner has been writing letters and personally appearing before the DDA and at no point of time did the DDA confront him with the letter dated 9.9.2003. He further submits that the DDA was in fact convinced about the bona fides and it is only because of this reason that the DDA issued communication dated 8.7.2008 relevant portion of which has been reproduced above. Counsel for the petitioner contends that in case letter dated 9.9.2003 issued and was received by the petitioner, DDA would not have issued communication dated 8.7.2008, and made the petitioner to run from pillar to post and make him visit the office of the DDA at least on three occasions. 10. I have heard Counsel for parties, who have also taken me through the various letters filed on record. While it is not disputed that the demand letter was sent to the petitioner initially at the wrong address, the petitioner received the demand letter dated 17.2.2003 at the address (239/1, Thapar Nagar, Meerut) mentioned by the petitioner in his initial registration form. It is also not disputed that this demand letter did not have the correct date of making the payment, resulting in the petitioner issuing various communications to the DDA from the address given by him in the registration application. While the petitioner has disputed receipt of letter dated 9.9.2003, there was no reason for the DDA to call the petitioner to attend its office along with proof of residential address as in the correction letter dated 17.2.2003, it is the DDA itself, which had written to the petitioner at the address given by him in the registration form. I also find that DDA has had at no point of time issued a fresh demand letter whish the DDA was duty bound to issue as the petitioner had been declared a successful allottee in the draw of lots. 11. It is the case of the respondent that since the petitioner failed to furnish any documentary proof, they cancelled his allotment vide letter dated 23.4.2004. In my considered opinion, the cancellation letter issued by the DDA is even more blatant on the face of it, as they failed to issue a show cause notice before cancelling the allotment nor granted any opportunity of hearing. 12. In my considered opinion, the cancellation letter issued by the DDA is even more blatant on the face of it, as they failed to issue a show cause notice before cancelling the allotment nor granted any opportunity of hearing. 12. Further, I find that as per the record, the petitioner has made a number of representations and where after the DDA issued a letter dated 8.7.2008 (supra) to the petitioner. In case the DDA had already cancelled the allotment of the flat, there was no occasion for the DDA to issue the aforesaid letter and ask for further particulars from the petitioner. Thus, I find that the DDA is taking contradictory stands. Although strictly speaking, the office order dated 25.2.2005 would not be applicable to the facts of this case, but the aim and object of this office order is to accommodate such persons to whom a demand letter was sent at a wrong address• for no fault of the applicant. I find that to this extent the policy would be applicable to the petitioner as a demand letter was sent initially at the wrong address and when it was sent at the correct address, the demand letter did not give the correct date of making the demand. Thereafter, the DDA did not make the necessary corrections. In my considered opinion, the petitioner cannot be made to suffer for mistake of the DDA. To balance the equities, since after the cancellation of allotment in the year 2004, the petitioner has approached this Court only in the year 2008, therefore taking guidance from the office order dated 25.2.2005, the petitioner would be entitled to allotment of flat at the old cost prevalent at the initial allotment, however, the petitioner would pay 12% simple interest from the date of cancellation i.e.23.4.2004. 13. It is directed that the name of the petitioner will be included in the next draw of lots. Petition stands disposed of, leaving the parties to bear their own costs. Ordered accordingly.