Delhi High Court
Azad K. Kapoor And Ors. vs Government Of National Capital ... on 29 November, 2001
Equivalent citations: 95(2002)DLT672
Author: Manmohan Sarin
Bench: Manmohan Sarin
JUDGMENT Manmohan Sarin, J.
1. Rule.
With the consent of the parties, writ petition is taken up for disposal.
2. Petitioners by this writ petition seek a direction to respondent No. 3 for quashing of Annexure-F dated 8.10.96 and Annexure-J dated 2.12.96. Annexure A is the letter, by which the DDA informed petitioner No. 2 that the request for change of flat from Vivek Vihar Phase-II, Jhilmil to another place has been examined by the competent authority and cannot be acceded to. Annexure-J is the show cause notice by which DDA called upon the petitioner to show cause as to why the allotment of the flat be not cancelled in view of the breach of the terms and conditions.
3. The facts giving rise to the present writ petition may be noticed. Petitioners had applied for allotment of a MIG flat under the New Pattern Housing Scheme in the year 1979. Petitioner No. 1 has been allotted flat No. 22-C and petitioner No. 2 has been allotted flat No. 23-B at Jhilmil vide allotment letters produced as Annexures B & C. On a point of background, it may be noticed that petitioner No. 1, had previously been allotted a flat on 20.1.1984 at Narela, which was an expandable one. Petitioners filed a writ petition bearing CW. 2087/94 in the High Court, culminating before the Supreme Court. The respondent/DDA was directed to allot a flat to petitioner No. 1 at an alternative place. Similarly petitioner No. 2 had been previously allotted a flat at Bindapur on 30.12.1993. Petitioner No. 2 also requested for allotment of a MIG Flat. As noticed earlier both the petitioners have been allotted flats in Jhilmil Vivek Vihar, Phase-II.
4. Grievance of the petitioners in the present writ petition is that said flats are facing a cremation ground and are located at a distance of about 50/60 sq. yards. Petitioners find the location and sites of the flats abhorring as the scene of the bodies being cremated and the smell and smoke arising there from is repulsive. Petitioners question the action of the DDA in constructing and locating these flats at such close proximity to the cremation ground. Besides, it is urged that there is an empty space in between, which is being used for littering and has become almost a garbage dump. Petitioners have produced along with the petition photographs showing pigs and other animals eating the garbage. The photographs depict the proximity of these flats. Petitioners, in these circumstances, claimed that they are not obliged to comply with the terms and conditions of the allotment as the said flats are not habitable. It is further urged by the learned counsel for the petitioners that their individual flats are facing the cremation ground. Learned counsel also submitted that Section 391 of the Delhi Municipal Corporation Act, empowers the Commissioner to shift the cremation ground, if the same is found to be offensive or dangerous to the health of the persons residing in the neighborhood.
5. Respondents have filed counter affidavit wherein it is stated that both the petitioners have been accommodated at their own request for a change in the location of the flats earlier allotted to them. As regards the present location being proximate to the cremation ground, the same is not denied. It is admitted that a very old cremation ground exists at a distance of 50/60 sq. yards from the flats. It is stated that to mitigate the difficulties faced, a park has been developed by the MCD. Further work is in progress to improve the environment of the surrounding areas. Action is also claimed to have been taken by provision of dustbin etc. to maintain cleanliness. A seven ft. boundary wall has been provided round the housing block to mitigate the effect of the breeze or wind blowing from the cremation ground. Learned counsel for the respondent Mr. Sanjay Yadav today submitted that in the entire complex 120 flats have been constructed while 40 flats are adjacent to the cremation ground.
6. During the course of hearing, learned counsel for the petitioners submitted that petitioners are not desirous of seeking the refund of money paid for the allotment of the flats. On the other hand they wish to be allotted a flat at an alternate site as the presently allotted flats are not habitable. Counsel for the respondent was directed to obtain instruction whether it is feasible to allot alternate flats at current rates. A direction was also issued for the Commissioner, Housing to be present in court. Mr. D.B. Gupta Commissioner (Housing) was present and was heard. He submitted that DDA is willing to take such further measures as may be found necessary for mitigating this difficulty. He explained that out of the 40 flats which are proximate to the cremation ground, 24 occupants have already moved in, while 13 had sought refund and one allottee has expressed his inclination to accept the flat. This leaves only the petitioners, who have neither taken the refund nor accepted to take the allotted flats.
7. The dis-inclination of the petitioners in accepting a place of residence in proximity to the cremation ground is understandable. However, considering that 24 allottees have occupied flats, it cannot be said that the flats are totally unhabitable. It was put to Mr. D.B. Gupta, Commissioner (Housing) that in such cases DDA should endeavor to accommodate these allottees, if feasible in other schemes. Commissioner (Housing) explained that they have a waiting list of applicants, who have unfortunately not so far been accommodated in any scheme. Petitioners' cases would also be put in the wait list and these wait listed applicants would have preference for allotment, whenever fresh allotments are made. Learned counsel for the petitioner prayed that these petitioners be given seniority as per their date of application. However that would not be feasible as a decision to seek alternative flats is being taken only now. Let the petitioners be put in the wait list for applicants, who have not yet been allotted flats at the end of the list. The petitioners need not be refunded the amount they have paid and the same would be adjusted against the new allotment together with interest as they are entitled in terms of the DDA policy.
8. Writ petition stands disposed of with the above directions.