Delhi High Court
Satish Kumar Nayar vs D.D.A. on 19 February, 2003
Equivalent citations: 109(2004)DLT946, 2004(74)DRJ643
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Sanjay Kishan Kaul, J.
1. The petitioner registered under the NPRS, 1979 scheme for an MIG flat giving her address as A-2/4 Model Town, Delhi. The petitioner addressed a letter dated 21st July, 1986 requesting for a change of address to B-163, Gujranwala Town, Delhi. The said letter was sent by Regd. AD post and the Regd. AD receipt as well as acknowledgement card have been filed on record and originals have been produced before the Court. A further change of address was requested in the letter dated 23rd April, 1990 from the said address to B-125, Derawala Nagar, Delhi. This letter is stated to have been given in a public hearing but there is no acknowledgement of the said letter on the office copy.
2. The petitioner claims that he came to know only in the year 2001 that a flat had been allotted in 1994 to the petitioner bearing flat No. 184, III Floor, Pocket 2, Sector 23, Rohini but the allotment letter was sent at the Model Town addressed and the said allotment letter was returned. This allotment was cancelled due to nonpayment of the amount as per the allotment letter.
3. The petitioner has filed the present writ petition seeking allotment of an alternative flat on the same price and as per the same terms as granted to the petitioner in 1994. Learned Counsel further submits that since a direction was passed on 12th February, 2002 for keeping one of the flats out of the flats bearing Nos. 351 and 378 Pocket C, Sector 18 Rohini reserved for the petitioner, one of the said flats may be allotted to the petitioner.
4. Learned Counsel for the respondent, on the other hand, contends that the letter of 21st July, 1986 was never received by the respondent. However, in pursuance to the directions passed on 9th September, 2002 no affidavit has been filed verifying this position from the Receipt Register since the Receipt Register is stated to be not available. It is further submitted that in the present case, the letter of 1986 will not be of much relevance since the petitioner had sought another change of address from 1990 of which there is not proof with the petitioner.
5. I have considered the submissions advanced by the learned Counsel for the petitioner. There is no doubt about the proposition that in case the allotment letter had been addressed at the wrong address, or that the change of address had not been noted then the allottee was entitled to allotment at the earlier cost. There are number of judgments in this behalf including T.R.S. Vardhan v. DDA, 65 (1997) DLT 333. The only question is whether the letter dated 21st July, 1986 was received by the respondent. This fact was noticed in the order dated 9th September, 2002 and a direction was issued to produce the original AD card and the receipt which have been so produced. The respondent has not been able to produce the Register to show the position in respect of this letter. In view of the letter having been dispatched by Regd. AD post and the acknowledgement due card being available a presumption has to be drawn against the respondent of the receipt of the said letter. There is no proof of the subsequent letter dated 23rd April, 1990. However, the same would not be material since it is not the case of the respondent that the letter was sent at the changed address. The fact that the petitioner has further changed address would not be a defense available to the respondent once the respondent has not sent the allotment letter on the given changed address.
6. In view thereof, the petitioner is entitled to a flat in the same area and on the same floor as earlier allotted to the petitioner in 1994 and at the same prevalent price as in 1994. However, in case of some difference in area of that flat, it is open to the respondent to charge the extra amount for the differential area but at the same rate as prevalent in 1994.
7. A writ of mandamus is thus issued directing the respondent to allot a similar flat as allotted in the year 1994 to the petitioner in the aforesaid terms at the same costs as per the original allotment in 1994. It is open to the respondent to allot one of the two reserved flats or any other similar flat. The allotment letter be issued by the respondent within a period of four weeks from today and on the petitioner making the payment in pursuance thereof and completing necessary formalities, the possession of the flat be handed over within a period of two weeks thereafter.
8. The writ petition is allowed in the aforesaid terms leaving the parties to bear their own costs.