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2020 DIGILAW 492 (JK)

Fida Ahmad Dar v. Srinagar Development Authority

2020-09-21

ALI MOHAMMAD MAGREY

body2020
JUDGMENT In this petition, filed under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs; i. A writ of certiorari for quashing the notice issued vide No:- SDA/DLM/161 dated 17-4-2015 wherein the letter of intent was cancelled; and ii. Mandamus commanding the respondents to hand over possession of flat to the petitioner after giving reasonable time to the petitioner for making the payment as directed by the Honble Court vide order dated 30-01-2015 in OWP No. 146/2015 and further respondents be directed to hand over the possession of the flat to the petitioner as per the draw of lots on spot as early as possible. 2. Briefly stated the case of the petitioner is that, the respondents invited applications for allotment of flats at Gulposh apartments Bemina and the petitioner after paying Rs. 1000/- was given a form on 30th of August, 2013 and thereafter submitted his form along with earnest amount of Rs. 3.00 lacs on 27th of July, 2013 and the same was received by the respondents with a proper receipt. The petitioner received a notice bearing No. SDA/DLM/2724 dated 20th of November, 2014, posted on 27-11-2014 and delivered to petitioner on 5th of December, 2014 wherein 10 days’ time was given to the petitioner to deposit the first installment which time had already elapsed and it came to the knowledge of the petitioner that the flat has been allotted to him vide letter of intent issued vide No. SDA/DLM/3085-88 dated 2nd of December, 2013, whereafter, the petitioner immediately approached the respondents who provided him the copy of letter of intent along with copy of payment schedule and was told that same is posted to him in December, 2013. It is further submitted that the petitioner having already deposited an amount of Rs. 3.00 lacs and having not been conveyed the letter of intent besides the notice dated 20th of November, 2014, giving further 10 days’ time having been dispatched to the petitioner on 27th of November, 2014 and delivered to him on 5th of December, 2014. It is further submitted that thereafter, the petitioner filed an application/representation before the respondents, where in petitioner prayed for extension of at least three months for making the payment of 1st installment of Rs. It is further submitted that thereafter, the petitioner filed an application/representation before the respondents, where in petitioner prayed for extension of at least three months for making the payment of 1st installment of Rs. 8,75000/- in the backdrop of the fact that due to the floods in the valley in the year 2014, the petitioner had suffered the huge loss, as such, was not in a position to deposit the installment of Rs. 8,75000/-. It is further submitted that the petitioner after waiting for the response to his representation and also extension of time keeping in view the previous experience of issuance of notices and late dispatch of the same, approached the respondents but was not given any extension and was told to wait and to his luck/surprise, the petitioner came across notice bearing No. SDA/DLM/3460 dated 24th of January, 2015 and came to know that the said notice has been issued to the petitioner, asking him to deposit the installment by ending January, 2015 or in default the petitioner’s letter of intent shall be treated as withdrawn and earnest money of Rs 3.00 lacs will be forfeited and flat re-advertised. The petitioner being aggrieved of the above said notice, challenged the same by virtue of writ petition bearing OWP No. 146/2015 and this Court in terms of order dated 20th of January, 2015, disposed of the said writ petition with direction to the respondents to afford reasonable time to adhere to the terms of notice in regard to deposit of installment and in the event such notice not having been served upon him, the same be served after affording reasonable time to the petitioner. It is further averred that thereafter, the petitioner served the said order on the respondents and filed a detailed representation before the respondents, who choose not to file any appeal against said order and despite the service on the respondents well within time, no action was taken by the respondents. Being constrained of inaction on part of the respondents, the petitioner filed a contempt petition bearing No. 844/2015, wherein, the respondents after a long time filed statement of facts and in terms of notice issued vide No. SDA/DLM/161 dated 17th of April, 2015 (Annexure-M to the statement of facts), the letter of intent issued to the petitioner was cancelled. Being constrained of inaction on part of the respondents, the petitioner filed a contempt petition bearing No. 844/2015, wherein, the respondents after a long time filed statement of facts and in terms of notice issued vide No. SDA/DLM/161 dated 17th of April, 2015 (Annexure-M to the statement of facts), the letter of intent issued to the petitioner was cancelled. Being aggrieved of the said notice, the petitioner challenged the same by medium of the instant writ petition on the grounds detailed out in the petition. 3. On consideration of the matter, this Court in terms of order dated 4th of August, 2017, while issuing notice, directed the respondents to keep one flat at Gulposh Apartments, Bemina, reserved and the interim direction issued on 04.08.2017, stands confirmed vide Court order dated 27.12.2017. 4. The respondents have filed their reply, wherein, it is stated that the petitioner was informed by the Srinagar Development Authority to deposit the premium of flat as per scheduled advertised terms and conditions vide letter No. SDA/DLM/3085-88 dated 2nd of December, 2013 followed by another notice issued to the petitioner vide letter No. SDA/DLM/2724 dated 20th of November, 2014 for depositing the first installment of the flat in Gulposh Apartments. Thereafter another notice was issued to the petitioner vide letter No. SDA/DLM/3460 dated 24th of January, 2015. It is further submitted that the matter was placed before the Auction Committee of SDA held on 4th of April, 2015 wherein it was decided that despite providing various opportunities, the petitioner has failed to deposit the installment as such the decision of cancellation of letter of intent issued vide letter No. SDA/DLM/3085-88 dated 2nd of December, 2013 be cancelled and withdrawn and earnest money forfeited and the flat be re-advertised. It is further submitted that the petitioner cannot claim the allotment of the said flat as no legal right of the petitioner has been infringed. It is further averred in the reply that that the decision of cancellation of letter of intent and the forfeiture of earnest money had already been taken before passing of the Court order dated 30th of January, 2015 in OWP No. 146/2015 which was received on 12th of August, 2015 by the SDA after providing the petitioner ample opportunities, the petitioner was informed about the cancellation and forfeiture of earnest money deposited by him vide letter No. SDA/DLM/161 dated 17th of April, 2015. 05. 05. In terms of order passed on 19.09.2019, the following information was sought. The order being relevant is taken note of:- “Respondent No. 1 shall supply the following information on his personal affidavit:- (I) How many Flats have been constructed in Gulposh Apartment Phase-II, Bemina with dimension. (II) Amount spent for construction of the Flats. (III) Details of process initiated for allotment of the Flats. (IV) Particulars of each allottee with details of the amount paid. (V) Details of vacant Flats as on date. (VI) Details of the authority, which has allotted the Flats with details of the mechanism evolved. The affidavit shall be filed within one week. List this matter for continuation of arguments on 26th of September, 2019. Till decision in the writ petition, the vacant Flats in the apartment shall not be allotted to anyone.” 06. The vice Chairman, Srinagar Development Authority has submitted the synopsis wherein it is stated as under:- Applications were invited for advance registration for allotment of residential Flats. Advertisement was published in local dailies on 17th July, 2013, 14th August, 2013 and 22nd August, 2013. 557 Broachers were issued on payment of Rs. 1000/-. 84 Application Forms along with earnest money of Rs. 3.00 lacs were received. Application were more than the number of Flats advertised (60), as such, as per terms and conditions of advertisement the allotment process was done on the basis of draw of lots. Draw of lots was held in presence of the Hon’ble Minister for Urban Dev. And urban Local Bodies and the applicants. Letter of intent was issued in favour of successful applicants for depositing the premium amount as per terms and conditions of the broacher. Two successful applicants defaulted in deposition of payment of first installment including the petitioner (Mr. Fida Ahmad Dar). Despite sufficient opportunities provided to the defaulters (including petitioner) to deposit the installments and the petitioner was communicated vide letter No. SDA/DLM/3460 dated 24.01.2015, for deposition of due installments by ending January, 2015, but have failed to deposit the due installment. Letter of intent issued in favour of Fida Ahmad Dar, was withdrawn/cancelled vide No. SDA/DLM/161 dated 17.04.2015, the same was published in local newspaper Kashmir Times on 19.04.2015 and Srinagar Times on 19.04.2015. Letter of intent issued in favour of Fida Ahmad Dar, was withdrawn/cancelled vide No. SDA/DLM/161 dated 17.04.2015, the same was published in local newspaper Kashmir Times on 19.04.2015 and Srinagar Times on 19.04.2015. Thereafter advertisement for allotment two cancelled Flat was published in Greater Kashmir for its allotment to general public on 30.04.2015 and was allotted subsequently through Draw of lots on 18.05.2015.” 07. Rejoinder stands filed on behalf of petitioner, wherein, it is stated that the respondents have exercised the power of cancellation of letter of intent in an illegal and improper manner without following the directions contained in the judgment dated 30.01.2015, rendered by this Court in writ petition bearing OWP No.146/2015. It is further stated that the respondents have not even bothered to adhere to their own decision dated 4th of April, taken by the Auction Committee of Srinagar Development Authority (SDA), comprising of Vice-Chairman, SDA, Director/Deputy Director, Land Management, SDA, Secretary, SDA, Financial Advisor/Chief Accounts Officer, SDA and Executive Engineer, SDA, it is further contended by the petitioner that respondents have chosen not to file any appeal against the Judgment passed in OWP No. 146/2015 dated 30.01.2015, wherein the respondents were directed to afford reasonable time to adhere to the terms of notice with regard to the deposition of amount besides respondents were further directed not to pass any adverse order regarding forfeiture of earnest money and cancellation of letter of intent without affording opportunity of hearing to the petitioner. It is further submitted that the petitioner approached the officials of the Srinagar Development Authority time and again and also filed several representations whereby sought extension of time for making payments as demanded by Srinagar Development Authority in the backdrop of the fact that due to devastating floods in the valley in the year 2014, the petitioner suffered huge financial loss and was not in a position to deposit the instalments in time. 8. Heard the learned counsel for the parties, considered the matter and perused the record available on file. 9. The impugned notice in terms whereof letter of intent vide No. SDA/DLM/3085-88 dated 02.12.2013, stands cancelled and withdrawn and the earnest money of Rs. 8. Heard the learned counsel for the parties, considered the matter and perused the record available on file. 9. The impugned notice in terms whereof letter of intent vide No. SDA/DLM/3085-88 dated 02.12.2013, stands cancelled and withdrawn and the earnest money of Rs. 3.00 lacs deposited by the petitioner stands forfeited and the Flat in question re-advertised is against the order passed by this Court on 30.01.2015 in OWP No. 146/2015, in terms whereof this Court while disposing of the writ petition, had directed the respondents to consider the hardship encountered by the petitioner in not making the deposit of installment on account of the cause projected taking a pragmatic view and bearing in mind that a mere technicality in adherence to notice should not result in defeating his legitimate interests in regard to the acquisition of flat. No adverse order regarding forfeiture of earnest money and cancellation of letter of intent shall be passed by respondents without affording opportunity of hearing to petitioner. 10. Admittedly, the order dated 30.01.2015 is in force, as the same is not challenged by the respondents or reversed by the Appellate Court, therefore, the impugned notice is in violation of the order passed by this Court, which is not only bad, but amounts to contempt of the Court. Since the Flat in question stands already allotted, despite the orders passed by this Court, therefore, in the opinion of the Court, it shall be unnecessary to put the petitioner to more suffer and inconvenience by allowing the writ petition, quashing the impugned notice. However, in the peculiar circumstances of the case, and without proceeding against the officers, who have violated the order it shall be appropriate to pass following direction: Writ petition is allowed and communication bearing No. SDA/DLM/161 dated 17.04.2015, shall stand quashed to the extent of forfeiture of earnest money of Rs. 3.00 lacs and by writ of mandamus, respondents are directed to pay the amount of Rs. 3.00 lacs, deposited by the petitioner along with interest of 9% from the date of deposition of the amount till its realization, within a period of one month. Disposed of along with connected CM(s).