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Vipin Suri vs D.D.A. on 27 January, 2014

Delhi High Court Vipin Suri vs D.D.A. on 27 January, 2014Author: Hima Kohli

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) 6109/2012

Decided on 27.01.2014

IN THE MATTER OF :

VIPIN SURI ….. Petitioner Through: Ms. Richa Kapoor, Advocate

versus

D.D.A. ….. Respondent Through: Mr. Amitabh Marwah, Advocate

CORAM

HON’BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

1. The petitioner has filed the present writ petition seeking directions to the respondent/DDA to issue a revised/fresh demand-cum-allotment letter in respect of Flat No. 925, Second Floor, Pocket-C, Block-B, Loknaiak Puram, New Delhi at the cost in terms of its policy dated 06.06.2006 that was prevalent at the time of holding the remedial draw i.e. on 27.09.2007. The petitioner also seeks quashing of the demand-cum-allotment letter having block dates 30.03.2012-31.03.2012 in respect of the subject flat.

2. The relevant facts of the case are that in the year 1979, the petitioner had got himself registered with the respondent/DDA for the allotment of a LIG flat under the New Pattern Registration Scheme 1979 (NPRS 1979). In W.P.(C) 6109/2012 Page 1 of 9 the year 1989 the respondent/DDA had launched another Scheme known as “Avas Sarkar Yojna” (ASY 1989). The petitioner had applied to the DDA for transfer of his registration from NPRS 1979 to ASY 1989.

3. On 07.10.1992, the respondent resolved to close the ASY Scheme and further decided that those applicants whose registrations were transferred from NPRS 1979 to ASY 1989, would be kept pending but their registrations would remain intact along with their priority number. As a result, the petitioner’s registration continued under the NPRS, 1979 with priority no. 35176. Finally, the priority of the petitioner had matured in the year 2000 under the NPRS 1979 but due to oversight on the part of the respondent/DDA, his name was not included in the draw till as late as in the year 2007. On 27.09.2007, the subject flat was finally allotted to the petitioner in a remedial draw. Thereafter, for almost five years, the respondent/DDA did not issue a demand-cum-allotment letter to the petitioner and it was only in the year 2012 that a demand-cum-allotment letter having the block dates 30.03.2012-31.03.2012 was issued to the petitioner in respect of the subject flat that had been allotted to him on 27.09.2007.

4. The limited grievance raised by the petitioner in this petition is that while issuing the impugned demand-cum-allotment letter, the W.P.(C) 6109/2012 Page 2 of 9 respondent/DDA has applied the demand charges as per its policy dated 13.10.2011, which was not even in existence on the date when the remedial draw had been held.

5. Ms. Richa Kapoor, learned counsel for the petitioner states that the impugned demand-cum-allotment letter issued by the respondent/DDA is liable to be quashed for the reason that the petitioner cannot be blamed for the inordinate delay on the part of the respondent/DDA in raising the demand on him. She submits that in any case, the policy dated 13.10.2011, cannot be made applicable retrospectively to the case of the petitioner as the subject flat had been allotted to him on 27.09.2007, whereas the policy came to be formulated in the year 2011.

6. Learned counsel contends that the cost of the flat ought to be calculated on the basis of the policy that was prevalent on the date when the draw of lots was held, i.e., on 27.09.2007 and at that time the policy that was applicable was the one dated 06.06.2006. She points out that the aforesaid issue is no longer res integra as an identical issue had come up for consideration before a Co-ordinate Bench in W.P.(C) No. 2530/2012 entitled Krishan Kumar Gupta Vs. Delhi Development Authority, decided on 29.05.2013. She states that in the aforesaid case, the writ petition filed by the petitioner therein had been allowed with directions issued to the W.P.(C) 6109/2012 Page 3 of 9 respondent/DDA to issue a fresh demand-cum-allotment letter in respect of the subject flat at the cost prevalent on 23.03.2006, the date on which DDA ought to have included the name of the petitioner therein in the draw of lot, which they had failed to do. In support of the said submission, Ms. Kapoor, hands over a copy of the order dated 29.05.2013, passed in Krishan Kumar Gupta’s case (supra) and states that the aforesaid decision has attained finality as it was challenged by the respondent/DDA in LPA 590/2013, that came to be dismissed by the Division Bench on 19.08.2013, while upholding the order of the learned Single Judge. Learned counsel contends that as the facts of the present case are covered by the above decision, the present petition may be allowed on parity.

7. Mr. Amitabh Marwah, learned counsel for the respondent/DDA confirms the fact that the judgment dated 29.5.2013 in W.P.(C) No. 2530/2012 was taken in appeal by the DDA and the said appeal came to be dismissed by the Division Bench vide judgment dated 19.08.2013. He also does not deny the fact that the stand taken by the respondent/DDA in the present case is the same as was taken in the aforesaid case which is that it was for the petitioner to have submitted the requisite documents to the DDA within the stipulated time as had been requested by the respondent/DDA and having failed to do so, the respondent cannot be held W.P.(C) 6109/2012 Page 4 of 9 responsible for the delay, if any, in the issuance of the impugned demand- cum-allotment letter. He points out that the petitioner herein had failed to comply with two communications issued to him by the DDA, one on 13.09.2010 and the other on 17.01.2011 for completion of some documentation. It has therefore been averred by the respondent/DDA in the counter affidavit that the petitioner is liable to pay the cost of the flat as per the circular dated 13.10.2011, as he had completed the formalities for allotment of the flat in his favour only after the issuance of the said circular.

8. The Court has carefully considered the submissions of the learned counsel for the parties and perused the decision in the case of Krishan Kumar Gupta (supra).

9. A perusal of the aforesaid decision reveals that the facts of the said case and those of the case in hand are almost similar. In the case of the petitioner herein, the basis of the respondent DDA seeking to charge the cost of the flat as prevalent in the year 2012, is also identical as in the aforesaid case, which is the alleged failure on the part of the petitioner to have submitted the requisite documents to the DDA in a time bound manner.

W.P.(C) 6109/2012 Page 5 of 9

10. The aforesaid objection raised by the respondent DDA in the case of Krishan Kumar Gupta (supra) was taken into consideration and rejected by the learned Single Judge for the following reasons :- “5. It is DDA’s own case that the Flat No. 214, Third Floor, Pocket-D, Loknaiak Puram, New Delhi came to be allotted to the petitioner in the draw of lot held on 27.9.2007. Despite that, while issuing allotment letter bearing the date 3.1.2012-9.1.2012, it required to deposit the cost of the flat as prevailing at the time of issue of the said letter. The only reason given by DDA for seeking to charge the cost of the flat as prevalent in the year 2012 is that the petitioner failed to submit requisite documents to DDA and such documents came to be submitted only on 23.8.2010. In my view, the documents could have been obtained and in fact ought to have been obtained after deposit of the cost of the flat and issuance of demand-cum-allotment letter should not have been held up awaiting such document. Had DDA issued the demand-cum-allotment letter to the petitioner soon after the draw was held on 27.9.2007, he would have come to know of the allotment and would have deposited the price of the flat demanded by DDA. Thereafter, any delay on the part of the petitioner in depositing the requisite documents would have been only to his detriment since the possession of the flat would not have been given to him without his depositing of the necessary documents. In my view, there could be no justification in demanding increased cost of the flat without giving an opportunity to the petitioner to pay the price of the flat in terms of the draw held on 27.9.2007.

6. The learned counsel for the respondent-DDA has placed reliance upon the Circular dated 13.1.2011 issued by DDA whereby it has been decided that the cost of the flats in all cases like wrong address, missing priority, tail-end priority etc would be the standard cost of the flat based on the basis of the plinth area and land rates as prevalent on the date of issue of demand-cum-allotment letter i.e. the date when demand letter under the above policy is issued. In my view, DDA will not be justified in charging the price of the flat prevalent on the date of issue of demand cum-allotment letter W.P.(C) 6109/2012 Page 6 of 9 in a case where the name of the registrant was not included in the draw of lot for no fault on his part, or in cases where despite holding a draw and the registrant being successful in the said draw, the dispatch of the demand-cum-allotment letter is delayed by DDA awaiting documents from the registrant. Since the details of the registrants are available with DDA and are in fact fed in the computer while holding draw, no documents are required for the purpose of issuing demand- cum-allotment letter to him. The documents required before giving possession to the allottee can be obtained in due course but, the dispatch of demand-cum-allotment letter cannot be withheld awaiting submission of such document. In any case, the aforesaid circular, having been issued on 13.01.2011, cannot be applied to the petitioner, who was allotted a flat in the draw held on 27.09.2007. In fact, Circular No.F2(13)96- COORGN.P. Part-I dated 25.5.1995 issued by DDA clearly stipulates that in cases where the allotment has not been made due to non- inclusion of the name of the registrants in the draw for allotment, the allotment shall be made in the next draw at the rates prevalent at the time when the registrant would have got allotment according to his/her priority position. Vide Circular No.F-2(10)2003/N&C(H) dated 28.5.2003, DDA decided that all the registrants of original “NPRS- 1979”, who had opted for “Awas Sakar Yozna-1989”, but had not been identified as member of the society, would be entitled to allotment at the prevalent rates at that time when they were entitled for allotment according to their priority numbers. Vide office order number F2(10)2002/Coord.(H)/49 dated 25.2.2005, DDA decided that where change of address was intimated by the registrant but was not recorded by DDA and thereupon demand letters were sent at the wrong address and the allottee approached the DDA within a period of four years from the date of allotment, he shall be allotted flat at the cost prevalent at the time when his priority had matured and no interest will be charged. Vide office order number F2(10)02/N&CO/14 dated 6.6.2006, the aforesaid office order was made applicable also to the cases of missing priority in case of registrants of “NPRS-1979” who had opted for “Awas Sakar Yozna-1989” but had not been enrolled as members of the society. It was decided that these registrants would be entitled for allotment at the prevalent rates at the time when they were entitled for allotment according to their priority number if they had approached DDA within a period of four years. It was also decided W.P.(C) 6109/2012 Page 7 of 9 to charge interest @ 12% per annum in cases the registrants approached the DDA after the aforesaid period of four years, or the current cost prevailing at the time of fresh demand-cum-allotment letter, whichever be lowered. The aforesaid Circular dated 6.6.2006 was in force when draw was held on 27.9.2007.

8. For the reasons stated hereinabove, the writ petition is disposed of with the direction to DDA to issue a fresh demand-cum-allotment letter to the petitioner in respect of the flat number 214, Third Floor, Pocket-D, Loknaiak Puram, New Delhi at the cost prevalent on 23.3.2006. If for some reason the aforesaid flat is not available, DDA shall allot another flat of the same category by holding a mini draw for this purpose within a period of eight weeks from today and shall issue a demand-cum-allotment letter in respect of the flat so allotted to him, charging the cost as prevalent on 23.3.2006 in respect of the said flat.”

(emphasis added)

11. As noted above, the reasoning given by the learned Single Judge was duly examined by the Division Bench in the intra court appeal preferred by the respondent/DDA, and the said decision was upheld with the observation that there was no infirmity therein.

12. Concurring with the decision of the co-ordinate bench in the case of Krishan Kumar Gupta (supra), the present petition is allowed. The impugned demand-cum- allotment letter having block dates 30.03.2012- 31.03.2012 is quashed and the respondent/DDA is directed to issue a fresh demand-cum-allotment letter to the petitioner in respect of the subject flat within four weeks from today, at the cost stipulated in the policy dated 25.02.2005 and 06.06.2006. It is however clarified that as the petitioner W.P.(C) 6109/2012 Page 8 of 9 had admittedly approached the respondent/DDA for allotment of the flat after a period of four years from the date when his case had actually matured for allotment, the respondent/DDA shall be entitled to charge interest in terms of the aforesaid circulars, till 27.9.2007, the date when the remedial draw was held.

13. The petition is disposed of while leaving the parties to bear their own costs.

(HIMA KOHLI)

JANUARY 27, 2014 JUDGE mg/rkb

W.P.(C) 6109/2012 Page 9 of 9

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