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2009 DIGILAW 1290 (DEL)

ANIL MOOLCHANDANI v. DDA

2009-11-17

G.S.SISTANI

body2009
ORDER (Oral) 1. By way of present petition, filed under Articles 226/227 of the Constitution of India, petitioner seeks quashing of the cancellation of allotment order passed by the respondents with respect to allotment of flat No. 148, Sector-21, Pocket-7, Rohini, Delhi, and also seeks a direction to the respondents to allot a similar flat to the petitioner. 2. Brief facts of the case, as set out in the present petition, are that late Smt. Bhagwati Moolchandani, mother of the petitioner registered herself vide application No.155478 dated 27.9.1976 for allotment of an MIG Flat on 31.5.1980 in the Fourth Registration Scheme, New Pattern. The mother of the petitioner was issued a priority No. 34480. The mother of the petitioner was declared successful for the allotment of MIG Flat No. 148, 3rd Floor, Sector 21, Pocket 7, Rohini, as per the computerized draw held on 27.9.2002. As per the petition, the mother of the petitioner received no correspondence from the office of the DDA till her death i.e. 15.11.2002. Subsequent to her death, the petitioner came to know about the booking of a flat in the name of his mother. The petitioner thereafter made inquiries from the office of the DDA and came to know that in the draw of lots carried out by the respondent/DDA in the month of September, 2006, that is prior to the death of his mother, she was declared successful and was allotted an MIG Flat bearing No. 148, Sector-21, Pocket-7, Rohini, New Delhi. The petitioner is then stated to have informed the DDA about the death of his mother and also made an application seeking transfer of the said allotment in his name being the legal heir of the deceased. The petitioner came to know that the allotment made in favour of his mother was cancelled on the ground that the mother of the petitioner had not made the payment as per the demand raised by the DDA. 3. Learned Counsel for the petitioner submits that since the deceased (mother of the petitioner) had not received any allotment/demand notice during her life time, she could not have made the payment. Counsel further submits that on an application under the Right to Information Act on 19.10.2007 the petitioner learnt that the allotment letter was wrongly posted to one ‘Sh. S.B.M. Chandani’ instead of ‘Smt. Bhagwati Moolchandani’. Counsel further submits that on an application under the Right to Information Act on 19.10.2007 the petitioner learnt that the allotment letter was wrongly posted to one ‘Sh. S.B.M. Chandani’ instead of ‘Smt. Bhagwati Moolchandani’. Counsel also submits that on account of negligence of DDA in sending the demand-cum-allotment letter in the name of a wrong person, the petitioner should not be made to suffer. Counsel next submits that the petitioner has made various representations to the DDA including vide letters dated 7.11.2005, 2.3.2006 and 27.3.2004, however, no satisfactory reply was received although he has been ready and willing to pay the entire amount as per the allotment letter. The petitioner thereafter served a legal notice to respondent No.1 on 5.10.2007. In reply to this legal notice, the petitioner was informed vide letter dated 22.11.2007 that the allotment letter was sent to a non-existent addressee ‘Sh. S.D.M. Chandani and not to Smt. Bhagwati Moolchandani (applicant)’. Counsel submits that respondent No.2 was trying to take advantage of its own wrong as the demand letter was sent to non-existent addressee and the flat was allotted to some other person. 4. Per contra, learned Counsel for the respondent-DDA submits that the DDA cannot be held responsible for the lapse on the part of the applicant or her legal heir inasmuch that the petitioner failed to approach the DDA after the demise of his mother in November, 2002. Counsel further submits that the petitioner did not inform the DDA about the death of the original applicant nor the mutation for the transfer of the allotment was applied by the petitioner. Counsel for the DDA however, does not dispute that communication was sent in the name of a wrong person but the address was correct. 5. In the counter affidavit filed, it is stated by the respondent-DDA that the demand-cum-allotment letter was issued to the mother of the petitioner at the given address on the registration form i.e. 11, Daryaganj, Rahu Nath Bhawan, New Delhi, however, the same was returned undelivered with the remarks Left without address. The demand letter was then sent again by the DDA to the occupational address of the applicant i.e. at 46, Sarojini Market, New Delhi. The demand letter was then sent again by the DDA to the occupational address of the applicant i.e. at 46, Sarojini Market, New Delhi. Since, no response was received by the DDA, a show-cause notice dated 17.2.2004 was issued by the respondent to the applicant/mother of the petitioner at the occupational/business address, which was not received back and thus it was presumed that the same was duly served on applicant. As there was no response received, the allotment of the flat automatically stood cancelled on account of non-payment. Further, the demand letter was issued in the block dated 9.12.2002 and 16.12.2002, and the legal heirs of the allottee approached only in November, 2005, that is after a lapse of nearly three years and thus the case of the petitioner is not covered under the policy of death cases for allotment. 6. Without admitting that the petitioner would be entitled to any flat much less of the year 2002 rates, learned Counsel for the respondent-DDA further submits that, in case, this Court is of the view that the allotment is to be made to the petitioner, then allotment can be made at the rates prevailing in the year 2005, as it is in the year 2005 that the petitioner had informed the DDA about the death of the original applicant. 7. I have heard learned Counsel for the parties. In WP(C) No.14028, titled as Ganga Ram v. DDA, this Court has held that even if the DDA has failed to mention the correct pin code of the addressee, it cannot be presumed that the addressee received the letter as it unnecessarily creates a doubt and presumption under Section 27 of the General Clauses Act and Section 114 of the Evidence Act cannot be drawn as the letter which was sent to the petitioner did not mention the correct pin code. It is not disputed that against the aforesaid judgment, the LPA filed by the DDA stands dismissed by the Division Bench. 8. In this case, not only a small typographical error has crept in but the communication has been addressed to a completely different person being Sh. S.B.M. Chandani whereas the original allottee was a lady by the name of Smt. Bhagwati Moolchandani. 8. In this case, not only a small typographical error has crept in but the communication has been addressed to a completely different person being Sh. S.B.M. Chandani whereas the original allottee was a lady by the name of Smt. Bhagwati Moolchandani. Along with the counter affidavit, the DDA has also filed the envelope, reverse side of which would show that the communication addressed to the mother of the petitioner could not have been received by her, as per the endorsement by the postal authorities. Since the allottee did not receive the allotment letter for the lapse of DDA, no fault can be found as the letter was not addressed to the allottee. I find no force in the submission of learned Counsel for the DDA as even the legal heirs of the applicant could have been equally mislead when the letter was addressed to a completely wrong addressee. I also find no force in the submission of learned Counsel for the respondent that in case the petition is to be allowed, petitioner should be directed to pay the rates of 2005 as it is at that stage that the petitioner approached the DDA. For the reason that the entire exercise of making payments to DDA was to start by issuance of an allotment letter in favour of the allottee, the allotment letter was itself issued in a wrong name and had the legal heirs been aware that their mother had applied for a plot or at least an allotment have been made in her favour they would have immediately on receipt of the allotment letter approached the DDA. Consequently, present petition is allowed. As per the policy of DDA, learned Counsel for the petitioner submits that petitioner is willing to pay 12% interest on the allotment amount as per the demand-cum-allotment letter dated December, 2002, together with interest @ 12%. In case, the DDA does not issue a demand-cum-allotment letter within a period of eight weeks from today, the petitioner would not be entitled to pay further interest in the matter. 9. Petition stands disposed of. Petition disposed of.