Delhi District Court
Randhir Bhatnagar vs Delhi Development Authority on 25 February, 2013
Suit No. 242/2008
IN THE COURT OF MS. RICHA GUSAIN SOLANKI
CIVIL JUDGE(WEST):TIS HAZARI COURTS: DELHI
Suit No. 242/2008
Randhir Bhatnagar
S/o Late Sh. Radhey Shyam Bhatnagar
R/o 68, Village Munirka,
New Delhi110067.
..............Plaintiff
Versus
Delhi Development Authority,
Through its Vice Chairman,
Vikas Sadan, I.N.A.,
New Delhi110023.
...........Defendant
Date of institution : 07.07.2008
Arguments heard on : 29.01.2013
Date of decision : 25.02.2013
JUDGMENT: This is a suit for mandatory and permanent injunction. The brief facts as averred in the plaint are as follows:
1. It is the case of the plaintiff that he is the son of Sh. Radhey Shyam Bhatnagar who was a resident of 10/102, Geeta Colony, Gandhi Nagar, Delhi110031. He had registered for allotment of a flat under the New Pattern Housing Registration Scheme, 1979 of the DDA vide application no. 120564 dated 26.09.1979 and had deposited the initial amount of Rs Randhir Bhatnagar Vs. DDA 1/13 Suit No. 242/2008 4,500/. After a long wait of more than 20 years, Sh. Radhey Shyam Bhatnagar was allotted a MIG flat bearing no. 78, Ground Floor, Sector21, Pocket7 in Rohini Residential Scheme, Delhi. DDA issued the demand cum allotment letter dated 25.06.1999 which was received by Sh. Radhey Shyam Bhatnagar on 13.09.1999. The confirmation amount of Rs 20,000/ was paid by Sh. Radhey Shyam Bhatnagar and he was allotted flat bearing no. 78, Ground Floor, Sector21, Pocket7 in Rohini Residential Scheme, Delhi (hereinafter referred to as 'suit property') on hire purchase basis. The premium amount for the flat was to be paid in 120 equal monthly installments of Rs 6645.18 each. Unfortunately Sh. Radhey Shyam Bhatnagar died on 10.02.2000 and thereafter Smt. Prem Kumari Bhatnagar, his widow applied for substitution of her name in the records of the DDA and for issuance of demand cum allotment letter in her own name. DDA informed Smt. Prem Kumari Bhatnagar vide letter dated 26.08.2005 regarding the transfer of registration no. 28096 and allotment of the flat bearing no. 78, Ground Floor, Sector21, Pocket7 in Rohini Residential Scheme, Delhi. On 23.12.2005, Smt. Prem Kumari Bhatnagar deposited the various other documents as desired by the DDA. After depositing necessary documents Smt. Prem Kumari Bhatnagar waited for directions from the DDA for deposit of the remaining premium amount. However Randhir Bhatnagar Vs. DDA 2/13 Suit No. 242/2008 before such letter could be issued by DDA, Smt. Prem Kumari Bhatnagar expired on 31.12.2005. After her death, the plaintiff visited the office of DDA on 06.02.2006 to know the process of transfer of mutation in his name. As per the directions of the DDA plaintiff submitted the necessary documents for mutation of his name in the registration/allotment of the suit property. DDA on 31.07.2007 informed the plaintiff regarding transfer of registration/allotment of the suit property in his name. Thereafter plaintiff visited the office of DDA on various occasions and requested to issue a letter for the deposit of the premium amount in respect of the suit property. The plaintiff on 30.11.2006 also attended the office of the Commissioner (Housing), DDA with a request to issue the necessary letter and he was assured by the office of the Commissioner (Housing) that the plaintiff shall receive the payment plan for the deposit of the premium amount. However, despite the said assurance and various visits by the plaintiff to the office of DDA, the plaintiff did not receive any letter/payment plan, date for execution of the lease and date for receiving the possession of the aforesaid flat. It is stated that defendant has failed to issue the demand cum allotment letter in the name of the plaintiff while plaintiff is ready and willing to deposit the premium amount in respect of the suit property and had made request on several occasions to the DDA. It is stated that the plaintiff is Randhir Bhatnagar Vs. DDA 3/13 Suit No. 242/2008 entitled for the possession of the flat bearing no. 78, ground floor, Sector21, Pocket7 in Rohini Residential Scheme, Delhi and for execution of the lease deed in his favour which the defendant has filed to deliver to the plaintiff.
2. Therefore, plaintiff filed the present suit praying that a decree of mandatory injunction be passed in favour of the plaintiff and against the DDA directing the defendant/DDA to issue the demand cum allotment letter in the name of the plaintiff with respect of the suit property and a decree of mandatory injunction be passed in favour of the plaintiff and against the DDA directing the DDA to execute the lease deed in the name of the plaintiff and to handover possession of the suit property and in case the suit property has been reallotted to any other person then in that event, an alternate flat of equal area and dimensions be allotted to the plaintiff and delivery of possession and necessary documentation be done. Further, it is prayed that a decree of permanent injunction be passed in favour of the plaintiff and against the defendant restraining the defendant/DDA, its officials, employees, agents, representatives etc from making any transfer or transaction in respect of the suit property or part with its possession to any person and in any manner whatsoever.
3. In the written statement filed by defendant/DDA, it is stated that no mandatory legal notice under Section 53 B DD Act has been served Randhir Bhatnagar Vs. DDA 4/13 Suit No. 242/2008 upon the defendant before filing of the present suit. It is further stated that the plaintiff has not come with clean hands before the Court and has misrepresented the mutation of registration as mutation of allotment and therefore, he is not entitled to any relief. It is admitted that Sh. Radhey Shyam Bhatnagar got himself registered for allotment of MIG flat under New pattern Registration Scheme, 1979. He was assigned the priority no. 25262 against his registration no. 28096. Sh. Radhey Shyam Bhatnagar was allotted a MIF flat that is, the suit property through draw of lots dated 18.05.1999 on hire purchase basis. The demand cum allotment letter dated 25.06.1999 - 30.06.1999 was issued intimating the schedule and the amount for payment and the requisite documents to the filed. The last date of making payment of confirmation amount and initial deposit were 30.07.1999 and 28.09.1999, respectively. The balance amount of the cost of flat was payable in 120 monthly instalments @ Rs. 6645.18 commencing from 10.08.1999. However the demand cum allotment letter received back undelivered on 12.07.1999. The said allotment letter was thereafter personally received by the allottee on 13.09.1999 and informed the change of address i.e 247, Munirka Village. Sh. R. S. Bhatnagar deposited only the confirmation amount of Rs 20,000/ on 12.10.1999 but failed to deposit the balance amount. A show cause notice dated 28.03.2000 was issued requesting Randhir Bhatnagar Vs. DDA 5/13 Suit No. 242/2008 the allottee to furnish the third copy of the bank challan towards the payment of suit property flat failing which allotment would stand cancelled automatically. The said notice was also returned undelivered by the postal authorities. The demand cum allotment letter specifically mentions the clause of automatic cancellation on account of failure in making payment and/or completing formalities in terms thereof within the stipulated period. Sh. R.S. Bhatnagar expired on 10.02.2000 however, without completing formalities in terms of the said demand cum allotment letter. Smt. Prem Kumari Bhatnagar vide letter dated 11.08.2000 requested for mutation and furnished some documents including relinquishment deed and death certificate of Sh. Radhey Shaym Bhatnagar. In response, DDA vide letter dated 18.08.2000 requested her to furnish the original FDR, registration certificate, copy of school leaving certificate, etc. but the said letter also returned undelivered and was again sent on 28.08.2000, 14.09.2000 and 10.01.2001 on the last known address. A final reminder in this regard was sent on 22.02.2001 by the DDA which remained unresponded. During the period of February, 2001 to February, 2005 there was not communication or response from the legal heir of the registrant. It was only on 10.02.2005 when Smt. Prem Kumari Bhatnagar appeared in the public hearing before Director (Housing)II and therefore DDA vide letter dated Randhir Bhatnagar Vs. DDA 6/13 Suit No. 242/2008 14.03.2005 again requested her to furnish the required documents. The documents were furnished by her vide letter dated 29.04.2005 and mutation of the registration was allowed in favour of Smt. Prem Kumari Bhatnagar vide letter dated 26.08.2005. After the death of Smt. Prem Kumari Bhatnagar on 31.12.2005, plaintiff applied for mutation vide letter dated 07.04.2006 and furnished the required documents. The mutation of registration was allowed on the basis of documents received in the office of DDA in favour of plaintiff vide letter dated 31.07.2006. It is stated that since the balance cost of the suit property remained unpaid, therefore the plaintiff is not entitled for allotment. The legal heir of Sh. R.S. Bhatnagar is entitled only for refund of the registration amount in his name. The allotment has already been canceled.
4. The plaintiff filed replication to the written statement of defendants wherein the plaintiff reiterated and reaffirmed the contents of the plaint and denied the averments made by the defendant in their written statement.
5. Vide order dated 14.05.2009 following issues had been framed by my Ld. Predecessor :
1. Whether the plaintiff is entitled to decree of mandatory injunction as prayed for? OPP
2. Relief.
Randhir Bhatnagar Vs. DDA 7/13 Suit No. 242/2008
6. Plaintiffs examined himself as the only witness in his support. PW1 entered the witness box on 13.02.2009 and tendered his affidavit Ex PW1/A in evidence which states the same facts as are stated in the plaint. He relied on Ex PW1/1 which is the copy of application for registration for allotment. Copy of demandcumallotment letter in the name of plaintiff's father is Ex PW1/2. Copy of receipt of payment of Rs 20,000/ is Ex PW1/3. Ex PW1/4 is the copy of letter dated 20.08.2005 whereby DDA mutated the name of plaintiff's mother in the place of plaintiff's father. The copy of acknowledgment dated 07.04.2006 whereby plaintiff submitted affidavit, indemnity bond, undertaking, etc is Ex PW1/5. Ex PW1/6 is the copy of letter dated 31.04.2006 whereby DDA mutated the name of plaintiff in the place of his mother. The copy of acknowledgment dated 30.11.2006 whereby plaintiff submitted his request is Ex PW1/7.
In his cross examination, he admitted that his father was residing at 247, Village Munirka, Delhi. He admitted receiving letter dated 18.08.2000
7. Defendant also examined only one witness in its support. DW1, Sh. M.C. Joshi, Assistant Director, DDA, entered the witness box on 19.04.2012 and tendered his affidavit Ex DW1/X in evidence which Randhir Bhatnagar Vs. DDA 8/13 Suit No. 242/2008 states the same facts as are stated in the written statement. He relied on Ex DW1/1 which is the copy of demandcumallotment letter. Ex DW1/2 is the copy of letter dated 18.08.2000/14.09.2000 whereby plaintiff's mother was asked by DDA to furnish documents. Copy of receipt for payment of Rs 20,000/ is Ex DW1/3. Ex DW1/4 is the copy of cancellation letter dated 28.03.2000 addressed to plaintiff's father. Ex DW1/5 is the copy of remarks by postal authorities. Ex DW1/6 is the copy of information provided under RTI. Ex DW1/7 is the copy of letter whereby plaintiff's mother was asked by DDA to furnish documents. He also relied on Ex PW1/4 and Ex PW1/6.
In his cross examination, he admitted that there was no proof of dispatch of letters Ex DW1/4 and Ex DW1/7. He also admitted that proof of dispatch of letters dated 18.08.2000, 28.08.2000, 14.09.2000, 10.01.2001 and 22.02.2001 was on the file.
8. I have heard the parties and have perused the record carefully.
9. Issue wise findings are as under:
Issue no. 1: Whether the plaintiff is entitled to decree of mandatory injunction as prayed for? OPP The onus of proving this issue was on the plaintiff. It is the admitted case of the parties that plaintiff's father was issues demand Randhir Bhatnagar Vs. DDA 9/13 Suit No. 242/2008 cumallotment letter for the suit property, copy of which is Ex PW1/2 and also Ex DW1/1. It is also admitted that a payment of Rs 20,000/ was made by the plaintiff's father towards the suit property. It is also admitted that vide letter dated 20.08.2005 Ex PW1/4 DDA mutated the name of plaintiff's mother in the place of plaintiff's father and again vide letter dated 31.04.2006 Ex PW1/6, DDA mutated the name of plaintiff in the place of his mother. The matter in issue is here is whether this mutation was in respect of registration or allotment.
Ld Counsel for the plaintiff has laid stress on the words "allotment of flat" occurring in Ex PW1/4 and Ex PW1/6. He has also pointed out that in his cross examination, DW1 stated that the allotment was transferred. On the other hand, ld SLO has relied on the words "transfer of registration no..." occurring in these letters.
However the statement of DW1 cannot be read in isolation. A complete reading of both these letters makes it clear that it is the registration in respect of the allotment of the suit property that was transferred first in the name of plaintiff's mother and then in his own name.
It is also argued by the plaintiff that letter Ex DW1/7 states that mutation was transferred and the words "refund of registration" have been struck off. This contention too does not hold much water. This letter Randhir Bhatnagar Vs. DDA 10/13 Suit No. 242/2008 was written by the defendant to plaintiff's mother asking her to submit the documents for mutation of her name. Accordingly, the standard letter format reading the subject as "Allotment/Refund of registration" was struck out and the word "Mutation" was inserted. Thus the purpose of this letter was clearly requiring documents for mutation. It does not mention that the mutation was of registration and it also does not specify that the mutation was of allotment. This lacuna is filled by the letter Ex PW1/4 wherein it is clearly mentioned that it was the mutation of registration that was transferred.
The case of the plaintiff is that he has been pursuing the matter with DDA time and again for issuance of letter for deposit of the remaining payments but nothing has been heard of from DDA. On the other hand DDA claims that the allotment had already been cancelled on ground of nonpayment of remaining cost of the flat. DDA has relied on the Ex DW1/1 which states that one of the terms and conditions of allotment was that in the event of payment not being made within 90 days, the allotment shall stand cancelled automatically.
DDA claims that cancellation letter was sent to the plaintiff but the same has not been duly proved by it in evidence. In any case it is admitted that the same was not received by the plaintiff. Nevertheless the allotment letter Ex DW1/1 itself states that in the event of payment Randhir Bhatnagar Vs. DDA 11/13 Suit No. 242/2008 not being made within 90 days, the allotment shall stand cancelled automatically. This period of 90 days was mentioned to be expiring on 28.09.1999 in allotment letter itself. Admittedly this period lapsed before the death of plaintiff's father and till date apart from the confirmation deposit, no further payments have been made. As per Ex PW1/4 and Ex PW1/6, the mutation in the name of plaintiff's mother and then in the name of plaintiff was on same terms and conditions mentioned in the original allotment letter. Once plaintiff knew that the conditions were same and his name had been recorded he should have made the payments for the allotment but the same has not been done. Thus plaintiff cannot benefit from failure of DDA to prove the receipt of cancellation letter.
DDA was free to consider the question of restoration of allotment in the name of plaintiff and admittedly DDA has chosen not to allow the same. DDA has held plaintiff only to be entitled to refund of his initial deposit. Such decisions are policy matters of DDA and this Court cannot interfere in the same unless it is shown that the same are being taken without following principle of natural justice. This however is not the case of the plaintiff. Accordingly, defendant cannot be directed to issue fresh allotment letter or execute any lease deed in favour of the plaintiff.
Randhir Bhatnagar Vs. DDA 12/13 Suit No. 242/2008 This issue is decided against the plaintiff and in favour of the defendant.
10. Issue no.2: Relief.
In view of the aforesaid discussion, suit of the plaintiff is dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open Court on 25.02.2013.
(Richa Gusain Solanki) Civil Judge (West) THC, Delhi/25.02.2013.
Randhir Bhatnagar Vs. DDA 13/13