Delhi High Court
Shri Mohinder Malik, Charanjit ... vs Dda on 29 August, 2002
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Sanjay Kishan Kaul, J.
1. Rule.
2. With the consent of learned counsel for the parties the matter is taken up for final disposal.
3. A common question of law arises in three writ petitions where all the petitioners were registrants with respondent DDA under the NPRS Scheme, 1979. The petitions were not allotted any flat and subsequently the registration of the petitioners was converted into a new scheme of Awas Sakar Yojna. In October, 1992 DDA decided to close the said scheme other than for certain societies already registered. This decision was challenged in the High Court where it was represented by the DDA that such of the registrants of original NPRS Scheme, 1979 who had opted for Awas Sakar Yojna but who had not been identified as members of the society would continue to remain the members of NPRS Scheme, 1979 along with their priority number and would be entitled to the allotment in accordance with the Scheme. The petitioners fell in this category.
4. In 1998 draw of lots was held in respect of the priority numbers of similarly situated persons but the name of the petitioners were not included in the draw of lots. It is not disputed that there was a mistake on the part of the DDA in not including these persons in the draw of lots.
5. The petitioners filed the present writ petitions aggrieved by their non inclusion in the draw of lots. Subsequently, a mini draw has been held and the flats have been allotted. It is not also disputed that the flats have been allotted at 1998 costs and thus tot hat extent the grievance of the petitioners does not survive.
6. The only grievance which still remains for adjudication is arising as a consequence of the action of the respondent DDA in imposing interest @ 12% per annum on the old cost.
7. The contention of the learned counsel for the petitioners in this behalf is that the allotment did not take place in favor of the petitioners due to the fault of DDA and thus it is not open to the DDA to impose interest. It is further contended that the petitioners have been deprived of the enjoyment of the flat over this period of time. On the other hand, learned counsel for the respondent submits that since mistake was of DDA it is the cost of 1998 which has been taken into account which is the period when similarly situated persons were allotted flats. The charging of interest is sought to be defended on the ground that the capital of the DDA was blocked for this period of time and had the petitioners paid the amount in 1998, they would have been out of the pocket of this amount. Since the petitioners have enjoyed this amount, they are liable to pay interest.
8. Learned counsel for the petitioners has referred to various judgments of this court in support of his contention. Learned counsel submits that in a similar case dealing with the same Scheme where the allottee's name was not include in the draw of lots by mistake, directions have been passed in CW 7006/1997 A S Sabharwal v. DDA decided on 14.12.1999 directing that the allotment should be made on the prevailing rates at that time when he was entitled to be included in the draw of lots held on 17.2.1998. Learned counsel also referred to the decision in CWP 7148/99 M.L. Dhamija v. DDA decided on 18.10.2000 which followed the decision of A.S. Sabharwals's case(supra).
9. Learned counsel for the petitioner has referred to the Division Bench Judgment of this Court in T.R.S. Varadan v. DDA 65(1997) DLT 333 to contend that no interest is chargeable. In the said judgment the Division Bench considered a case under NPRS Scheme, 1979 where the allotment of the flat was delayed and possession was not handed over. The allottee was sought to be charged interest which was quashed by the Division Bench and it was held that it is the allottee who is entitled to interest on the deposit up to the date of actual allotment.
10. In CW 4720/2000 Prabha Arora v. DDA decided on 29.11.2001 learned Single Judge of this court considered the case of a registrant under the NPRS Scheme, 1979 where the full amount as demanded at the initial stage in terms of the hire-purchase allotment was deposited. The allotment was however, cancelled and possession was never handed over. It was held that the allottee could not be burdened with interest as hire purchase Installments up to the date of cancellation of allotment had been paid. Subsequently, the basis of cancellation was found not to be correct and unjustified. It may be noted at this stage that the said judgment considered the decision of the Division Bench of this court in CW 4796/95 Apar Kaur v. DDA decided on 28.10.1997.
11. Lastly the learned counsel for the petitioner has referred to the judgment of Division Bench of this court in LPA 184/2000 Atar Kaur v. DDA decided on 8.2.2002
12. The Division Bench was seized with the issue under the similar circumstances of the NPRS scheme, 1979 and the Awas Sakar Yojna where the allottee had reverted back to the NPRS Scheme of 1979. The name of the allottee had been wrongly excluded from the draw of lots and the only defense raised was a mistake which was not detected within one year of the draw of lots. This issue was examined in accordance with the policy dated 25.5.1995 of the DDA which provides that in cases where allotment has not been made due to non inclusion of the name of the registrant in the draw of lots for allotment, allotment shall be made in the next draw of lots at the rates prevalent when the registrant had got the allotment. This benefit was, however, made available only where the error was detected within one year of the holding of the draw of lots in which the allottee should have been allotted the flat. The Division Bench was of the view that an allottee cannot be made to suffer for the failure of the DDA to detect the mistake within a period of one year since that would be a premium on the amnesia in failing to remedy the position. The only exception carved out by the Division Bench was that in case where it was established that the mistake made by the DDA was known to the registrant and he/she did not bring it to the notice within one year of the draw. Reliance was placed on the Division Bench judgment in the case of J. S. Rao(Prof) v. DDA and Ors. 2001(1) AD Delhi 235 where it was observed as under:
"10. In that view of the matter we are of the considered opinion that the mistake for not entering the name of the petitioner in the draw of lots held for allotment of a flat at Vasant Kunj was because the Delhi Development Authority inadvertently did not include his name in the draw of lots. Therefore, for the mistake of the respondent the petitioner cannot be deprived of his right of allotment of a flat and cannot be saddled with higher liability. As SFS flat of similar nature has been kept reserved for the petitioner pursuant to interim orders passed by this Court. It is brought on record that the project for which the applications were invited in 1989 and 1990 were completed in the year 1992. The petitioner filed his applications for allotment of flat in 1989 and 1990 and the said project as against which he filed his applications came to be completed in the year 1992 and therefore, the petitioner is liable to pay the price of the flat prevailing in the year 1992."
13. Learned counsel for the respondent, on the other hand, has referred to the judgment of the Division Bench of this Court in Apar Kaur's case(supra). this was a case where the registrant under the NPRS Scheme, 1979 was a victim of 1984 riots and the petitioner therein was not aware of the registration as all documents were lost. The registration was not transferred by the DDA initially but only belatedly thereafter. The cost demanded was challenged. It was held that the petitioner therein had deposited the amount demanded within a specified period of time but only minor ministerial formalities were not completed for the transfer of registration. In those circumstances it was held that the cost should be the original cost along with the interest @ 12% P.A. Learned counsel for the respondent has also referred to the judgment of learned Single Judge of this court in Bhushan Lal Chawla v. DDA 88(2000) DLT 498. This case was also one of the death of the original registrant and in the said circumstance it was directed that the allottee would be entitled to the original costs with 15% interest per annum from the date of filing of the petition till the date of judgment.
14. The conspectus of the aforesaid judgments shows that there cannot be any doubt about the proposition that the innocent party cannot be made to suffer on account of the mistake and inefficiencies of the respondent DDA. In J.S. Rao's case(supra) it has been categorically held that the mistake of the respondent cannot deprive the right of allotment to the allottee and the allottee cannot be "saddled with higher liability". It is thus clear that there would be no higher liability other than the original cost of the flat. One nature of higher liability would be charging current cost of flat. However, higher liability would include the element of interest also sought to be imposed on the original cost of flat. The principle, in my considered view, would not change.
15. The judgment in J.S. Rao's case(supra) has been relied upon in Atar Kaur's case(supra) where it has been categorically held that even where the detection of the mistake is beyond one year time it is the original cost which will prevail.
16. It has to be appreciated that the mistake or failure on the part of the respondent results in a serious consequence for the allottee. The allottee is deprived of the use and enjoyment of the flat. If there is an issue of blocked capital of the respondent which should carry interest then there is a corresponding liability on the part of the respondent to compensate the allottee for loss of enjoyment of the flat in question. It is these two competing interests which have been balanced and since the fault lies with the DDA it has been held that no allottee should be burdened with any further or additional costs. The ratio in Prabha Arora and TRS Varadan's cases(supra) are also to the same effect.
17. The judgments referred to by learned counsel for the respondent in Bhusan Lal Chawl's case (supra) and Apar Kaur's case(supra) are dealing with the cases where there is a death of the original allottee as a supervening fact and there has been delays in transfer of registration. This is also occasioned due to the delay in submitting of documents by the allottees therein apart from the delay of the DDA. It is in those facts and circumstances that interest had been directed to be paid for certain period of time. In my considered view the same would not apply to the facts of the present case.
18. The principle that defaulting party being the DDA cannot burden the allottee for its own mistakes and failure would squarely apply to the facts of the present case. There is no dispute that it is a mistake of the DDA in not including the petitioners in the draw of lots. That being the position I am of the considered view that the petitioners are entitled to the flats at the original cost of 1998 without payment of any interest thereon.
19. In view of the allotment letters now already having been issued at the old cost plus interest it is directed that the respondents will issue a fresh demand letter in terms aforesaid within a period of four weeks to the petitioners and on the petitioners making payments in terms of the said demand letter and completing other necessary formalities the possession of the flat will be handed over to the petitioners within a period of four weeks thereafter.
20. Writ petition stands disposed of in the aforesaid terms leaving the parties to bear their own costs.
21. It also deem it expedient to issue directions to the DDA that in view of this principle now having been settled all similarly situated persons should be dealt in the same manner as envisaged by this order so that such person are not unnecessary compelled to file proceedings in Court.
CMs 7502/2000 and 1241/200222. No further orders are called for in these applications in view of the directions issued in the writ petition. Applications stand disposed of.