Delhi High Court
Inder Mohan Singh vs Dda on 7 December, 2018
Equivalent citations: AIRONLINE 2018 DEL 2550
Author: C. Hari Shankar
Bench: C. Hari Shankar
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on 27th November, 2018
Pronounced on: 7thDecember, 2018
+ W.P.(C) 1418/2012
INDER MOHAN SINGH ..... Petitioner
Through: Mr. R. K. Saini, Mr. Harpawan
Kumar Arora and Mr. Rishi
Khanna, Advs.
versus
DDA ..... Respondent
Through: Mr. Arun Birbal, Adv.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
% JUDGMENT
1. In 1979, the Delhi Development Authority (hereinafter referred
to as "the DDA") announced a scheme [which came to be known as
the "Rohini Residential Scheme" and is referred to, hereinafter, for the
sake of convenience, as "the Scheme"], for allotment of flats to
applicants, under the Janta, Low Income Group (LIG) and Middle
Income Group (MIG) categories. The petitioner applied for allotment
of an MIG flat, under the said scheme, and was registered vide the
Registration No. 23995. At the time of registration under the said
scheme, the petitioner provided his residential address as Flat No.13,
Block No. 64, CPWD, Quarters, M.B.Road, Malviya Nagar
Extension-110017, where he happened to be residing at that time.
2. It appears that, in 1982, the petitioner shifted to Sector-12, Flat
W.P.(C) 1418/2012 Page 1 of 14
No 884, R.K.Puram, New Delhi-110022 (hereinafter referred to as
"the RK Puram address"). An intimation, to this effect, is averred to
have been submitted at the Receipt & Dispatch counter of the DDA,
vide letter dated 17th May, 1982, which requested that the necessary
changes be recorded, in respect of the registration of the petitioner
under the Registration Scheme and that all his future correspondence
in that regard, be sent to his new address.
3. The petitioner shifted residence, yet again, in 1995, to Flat No.
10-H, CPWD Flats, Vasant Vihar, New Delhi-110057 (hereinafter
referred to as "the Vasant Vihar address"), and duly intimated the
DDA, of the said shift of residence, vide letter dated 24th January,
1995, which was, for all intents and purposes, similar to the letter
dated 17th May, 1982 (supra).
4. Draw of lots, for allotment of flats, under the aforementioned
residential scheme, took place in July, 1997. The petitioner was
allotted Flat No.32, Pocket-B/2, Sector-18, Rohini, Delhi. The
allotment-cum-demand letter in respect thereof, was sent by the DDA,
however, to the address of the petitioner at the R. K. Puram address.
5. As a result, the writ petition avers, the petitioner never received
the said letter, and never came to know of the issuance thereof.
6. In September, 2007, the petitioner, consequent to his voluntary
retirement from service, proceeded to Canada to stay with his children,
who were permanently settled there.
W.P.(C) 1418/2012 Page 2 of 14
7. On 18th March, 2011, the Government of India issued, to the
petitioner, an Overseas Citizen of Indian (OCI) Card w.e.f. 18th
March, 2011, entitling the petitioner, thereby, to own and hold
property in India.
8. The petitioner visited India, thereafter, in February, 2012,
whereupon he claims to have come to know that flats have been
allotted to the applicants under the Scheme. On accessing the website
of the DDA, the petitioner avers that he learnt, to his chagrin, that the
status of allotment of the flat, to him, was reflected as "cancelled".
9. Reference may be made, here, to the Office Order, dated 25th
February, 2005, issued by the Housing Department of the DDA,
relating to the case in which letter was issued at the wrong address of
the allottee of the Flat. The said circular merits reproduction, in
extenso, as under:
" The Delhi High Court vide its order dated 16.12.2004,
in W.P.(C) No. 19095/2004 and in other 15 Writ Petitions,
has decided issues relating to issuance of demand letter at
wrong address and missing priority cases of DDA flats. In
view of the directions/orders of the High Court, Office Order
No. F.2(10)/2002/Coord.(H)/148, dated 21.11.2002 is hereby
amended as under:-
1. In cases, wherein change of address was
intimated by the registrant but erroneously not
recorded by DDA and thereby demand letters were
sent at wrong/old address and the allottee approaches
DDA within a period of four years from the date of
allotment, he/she shall be allotted flat at the old cost,
prevalent at the time when the priority of allottee
W.P.(C) 1418/2012 Page 3 of 14
matured and the allotment letter issued, and no interest
will be charged. The allotment will be made at the cost
subject to following:-
(a) He should approach DDA within a period four
years from the date of issue of demand letter at
the wrong address.
(b) He should have proof of having submitted a
request for change of address to DDA duly
singed by the allottee himself/herself i.e. proof
of receipt at DDA Counter.
(c) He should have documentary proof of change of
address viz. Ration Card/Election Card/Identity
Card/Passport etc. (duly attested by the Gazetted
Officer).
2. In cases, where such an intimation has been
made but the allottee has not approached the DDA
within a period of four years from the date of
allotment, the allottee shall be considered for allotment
of flat at the old cost prevalent at the time of original
allotment + 12% simple interest w.e.f. the date of
original allotment till the date of issue of fresh
Demand-cum-Allotment Letter.
The same principle will be applicable in the
cases of missing priority cases.
Commissioner (Housing) shall be the
Competent Authority in all such cases.
This issues with the approval of Vice Chairman,
DDA.
Sd/-
(Aasma Manzar)
Commissioner (Housing)"
10. The petitioner, therefore, approached the DDA, seeking
allotment of an alternative plot in Rohini, at the same cost, at which
W.P.(C) 1418/2012 Page 4 of 14
allotment had earlier been made to him, relying, for the said purpose,
on the afore-extracted office order dated 25th February, 2005, of the
DDA.
11. Having failed to convince the DDA of the merits of his case, the
petitioner has moved this Court, by means of the present writ petition,
praying for issuance of
"(a) Writ of Certiorari calling for the records of the case
for perusal.
(b) a Writ of Certiorari quashing the action on part of
the respondent in first sending the allotment cum
demand letter at the old address and then canceling the
allotment of MIG Flat in Rohini allotted to the petitioner
and then refusing to make alternative allotment of a
similar flat in the same area and at the old cost + interest
as per the policy of DDA, being illegal, arbitrary,
discriminatory, unjust and in violation of the Rules,
Regulations and policy and the principles of equity,
justice and good conscience;
(c) a Writ of Mandamus commanding the respondent
to forthwith allot through a mini draw a suitable/similar
MIG Fiat in Rohini (in sector 18 or nearby) to the
Petitioner at the old cost + interest, as per the policy of
DDA without any interest;
W.P.(C) 1418/2012 Page 5 of 14
(d) any other writ, order or direction which may be
deemed fit and proper in the facts and circumstances of
the case and in the interest of justice.
(e) a Writ of Mandamus commanding the Respondent
to pay the costs of this petition to the Petitioner."
12. The counter affidavit filed by the DDA, in response to the writ
petition, asserts that the petitioner never intimated, to the DDA, the
fact of him having shifted to Canada and having acquired Canadian
citizenship. It is further asseverated, in the counter affidavit, that the
allotment-cum-demand lettter, allotting Flat No. 32, Third Floor,
Pocket-B/2, Rohini, to him, in the computerized draw of lots held on
8th July, 1997, was sent, to the petitioner, at his Vasant Vihar address,
by registered post, as that was his last known address. The said
communication was, however, returned, undelivered, with the postal
remark "Bar bar ittala dene par prapt-karta nahi milta, lihaja wapis
jaaye" ("despite repeated intimation, the recipient is not found, hence
be returned"). As such, the counter affidavit denies the assumption, of
the petitioner, in his writ petition, that the letter of allotment had been
sent to the R.K.Puram address of the petitioner.
13. The counter affidavit, states that, in these circumstances, the
allotment of the above mentioned flat, to the petitioner, was cancelled
on 24th February, 1998, owing to non-receipt/non-payment, on the part
of the petitioner, and that a cancellation letter was issued to the
petitioner, on the same date i.e. 24th February, 1998, requesting the
W.P.(C) 1418/2012 Page 6 of 14
petitioner to apply for refund of the registration money deposited by
him.
14. The counter affidavit also throws up the issue of delay and
laches, pointing out that the petitioner never sought to ascertain the
status of his allotment for fifteen years, and has filed the present writ
petition in or around March, 2012, impugning the communication
dated 24th February, 1998.
15. The petitioner, in his rejoinder, asserts, in response to the
submission of the respondent, that the allotment letter had been
dispatched to the Vasant Vihar address of the petitioner, that he had
continued to reside at the said address even after his retirement on 1st
May, 1997 and that he had surrendered possession of the said flat only
in February, 1998. The rejoinder also expresses discomfiture at the
fact that the allotment of the flat, to the petitioner, was cancelled, on
the ground of non-payment, pointing out that there could be no
question of payment, by the petitioner, against a demand letter which
was never received by him.
16. Detailed submissions were advanced, before me, by Mr.
R.K.Saini, learned counsel for the petitioner, and Mr. Arun Birbal,
learned counsel for the respondent.
17. Mr. Saini's submission is that the respondent was also aware of
the petitioner's office address and that, in view of the postal
endorsement evidencing that service of the allotment letter had not
W.P.(C) 1418/2012 Page 7 of 14
been effected, on the petitioner at his Vasant Vihar address, the
respondent ought to have effected service, on the petitioner, at his
office address. It is contended that, even after his retirement, the
petitioner used to be paid repeated visits to his Delhi office for
settlement of his pensionary benefits and other miscellaneous
expenses till January, 1998.
18. Mr. Saini also draws my attention to the order dated 16th
January, 2013, passed by this Court, in the present proceedings, which
reads thus:
"1. In the course of hearing, learned counsel for the
petitioner seeks to rely upon an office noting from the
records of DDA dated 18th August, 1993 as well as a
document entitled "MODIFICATION OF OFFICE
INSTRUCTIONS REGARDING THE PROCEDURES
FOLLOWED FOR CARRYING OUT DIFFERENT
ACTIVITIES RELATING TO ALLOTMENT OF
FLATS BY HOUSING DEPARTMENT, DDA" dated
25.05.1995. Learned counsel for the DDA, however,
objects to the same. Accordingly, the said documents be
placed on record with an affidavit. The petitioner shall
also state in his affidavit the date on which he shifted to
Canada in the first instance.
2. The aforesaid affidavit be filed by the petitioner
within two weeks with advance copy to counsel for the
respondent, who may file response thereto within two
weeks thereafter.
3. List on 20th February, 2013."
19. It is contended that, in compliance with the directions contained
in the above extracted order, dated 16thJanuary, 2013, an additional
W.P.(C) 1418/2012 Page 8 of 14
affidavit was, in fact, filed by the petitioner, on 21 st August, 2013, in
this Court, wherein it was deposed that, after his retirement on 1st
May, 1997, the petitioner had continued to reside at the Vasant Vihar
address till the last week of January, 1998 and had surrendered the
said government accommodation, allotted to him, on 2 nd December,
1998, whereafter he had shifted to Canada.
20. Reliance has been placed, by Mr. Saini, on the judgment dated
22nd November, 2012, of a coordinate Bench of this Court in Anurag
Sahai v. DDA, 2012 SCC OnLine Del 5839.
21. Arguing in response, Mr. Birbal submits that, having applied for
allotment of the flat on 27th March, 1997, on priority basis, as he was
going to superannuate, the petitioner ought to have been aware of the
fact that the allotment was forthcoming. It is contended that allotment
was made, to the petitioner, within four months, in July 1997, as
contrasted to the position obtained in the decision on which Mr. Saini
relies, which dealt with allotments made after several years' delay.
Mr. Birbal further seeks to submit that immediately after his
superannuation, the petitioner proceeded to Canada and that, having
returned and found that prices of real estate had appreciated, the
petitioner sought to make a quick buck by claiming the flat, the right
to which he had effectively abandoned.
22. Mr. Saini submits, by way of rejoinder, that his client did not
stand to gain anything by asking for the flat, as the flat would be
available at the rate existing on the date of filing of the writ petition.
W.P.(C) 1418/2012 Page 9 of 14
Mr. Saini also refutes the plea of laches by stating that his client got to
know about the cancellation of the allotment of flat only when he
returned from Canada.
23. Mr. Saini further places reliance on the judgment dated 16th
February, 2012 of a coordinate Bench of this Court in Ravi Dass v.
DDA, 2012 SCC Online Del 987 and of the judgment of the Supreme
Court in V. N. Bharat v. DDA, (2008) 17 SCC 321.
24. Having thus recorded submissions of learned counsel, as well as
submissions advanced in the pleadings, I am of the view that the case
of the petitioner is bound to succeed, in view of the judgments of this
Court in Anurag Sahai (supra) and of the Supreme Court in V. N.
Bharat (supra), on which Mr. Saini rightly relies.
25. The controversy in Anurag Sahai (supra) is substantially
similar to that which arises in the present case. The petitioner, in that
case (who would hereinafter be referred to as "Anurag") had
registered himself, with the DDA, under a Registration Scheme, 1979,
for allotment of an LIG flat. At the time of registration, the petitioner
intimated his residential address, to the DDA, as House No. B-60,
Kidwai Nagar, where he was residing at that time. He had also
intimated, to DDA, his "occupational address", which was contained
on an income certificate, issued by his employer, which was annexed
to the application. Anurag, thereafter, shifted residence from Kidwai
Nagar, but did not inform the DDA regarding the said change. He
continued, however, to work in the same business establishment. His
W.P.(C) 1418/2012 Page 10 of 14
priority number, for allotment of flat, matured in the year 2000,
whereupon flat was allotted. The demand-cum-allotment letter was
issued, to Anurag, at the aforementioned Kidwai Nagar address, but
remained undelivered. No attempt was made to serve him at his
"occupational address". As in the present case, on account of non-
payment, DDA cancelled the allotment made to Anurag. Again, as in
the present case, Anurag made enquiries, regarding the status of his
application, several years later, in June, 2011, whereupon he came to
know that the allotment had been cancelled. On failing to obtain any
relief from the DDA by making representations to it, Anurag moved
this Court, under Article 226 of the Constitution of India.
26. As in the present case, the DDA raised, before this Court, the
issue of delay and laches, stating that Anurag had been sleeping over
his rights, and that he had provided no explanation for making no
enquiry, whatsoever, from the DDA, since 2000, or having sought
judicial redressal earlier. It was sought to be pointed out that the
process of allotments, under the Scheme, stood closed
27. This Court, speaking through a learned Single Judge, held thus,
in paras 10 to 13 of the judgment:
"10. I have heard learned counsel for the parties and
considered their rival contentions. The basic facts of this case
are not in dispute that the petitioner applied for allotment of a
flat under New Pattern Registration Scheme, 1979, for
allotment of an LIG flat. At the time of registration, the
petitioner had mentioned his residential address as House No.
B-60, Kidwai Nagar, New Delhi, and he had also informed
DDA with regard to his occupational address. It is also not in
dispute that thereafter the petitioner changed his residence,
W.P.(C) 1418/2012 Page 11 of 14
however, the petitioner did not inform the DDA with regard to
change of his residential address. It is also not in dispute that
demand-cum-allotment letter sent to the petitioner at his old
residential address i.e. Kidwai Nagar was returned to the
DDA undelivered and thereafter the demand-cum-allotment
letter was not sent at the occupational address of the
petitioner.
11. In this case, at the time of registration under the New
Pattern Registration Scheme, 1979, the petitioner had not
informed DDA with regard to his occupational address,
however, an income certificate from his employer was placed
on record, on the letter head of the employer where the
address was mentioned. The petitioner continued to work with
the same business establishment and in case the demand-cum-
allotment letter was issued to the petitioner at his occupational
address there is every likelihood that he would have received
the same. Accordingly, the present case is fully covered by
the decision rendered by the Court in the case of Mohinder
Singh v. DDA (supra) which has been upheld by the Division
Bench.
12. There is no explanation forthcoming as to why DDA
did not issue demand-cum-allotment letter at the occupational
address, which was available in their record. This has resulted
in delay for the petitioner to own a flat for which initial
payment was made as far back as in the year 1979.
13. The DDA, which is a statutory body, has failed to
perform its duty. The Court cannot lose track of the fact that a
condition of eligibility for allotment of a flat under New
Pattern Registration Scheme, 1979, is that an applicant should
not own any other permanent residence in Delhi, resultantly
the petitioner would not have taken any step to acquire
another property in Delhi. Another factor, which cannot be
lost track of, is that allotment under this scheme were made
over a span of more than two decades and thus the petitioner
could well have been misled that his allotment would mature
in time to come. DDA was well aware of the various
judgments passed by this Court from time to time that DDA is
W.P.(C) 1418/2012 Page 12 of 14
duty bound to inform an allottee with regard to the allotment
at all the addresses available in their record."
28. This decision effectively demolishes the submission, of the
DDA, that the present writ petition ought to be dismissed on the
ground of delay and laches, on the part of the petitioner, in prosecuting
the application submitted by him, during the period he was in Canada.
If this Court did not feel, in Anurag Sahai (supra), that the delay of
eleven years, in the petition, in that case, taking up the issue of non-
allotment of the flat, to him, inhibited his claim, there is no reason for
this Court, in the present case, to hold otherwise.
29. On facts, too, the judgment in Anurag Sahai (supra) applies to
the present case on all fours. As in that case, in the present case, too,
the office address of the petitioner was known to DDA; yet, no efforts
were made to serve the petitioner at the said address. Even otherwise,
once the DDA realised that efforts, to serve the petitioner, at his
Vasant Vihar address, had failed, it was, in my view, not reasonable,
on the part of the DDA, to cancel the petitioner's allotment without
making any other efforts to serve the petitioner. In V. N. Bharat
(supra), the Supreme Court held that, where the petitioner denied the
fact of service of notice, the onus shifted to the DDA to establish the
fact of such service. In the present case, there is no denial of the fact
that service of the demand-cum-allotment letter had not been made on
the petitioner, as the letter had been returned undelivered by the postal
authorities. It was incumbent, therefore, on the DDA, to make efforts
to serve the petitioner, before cancelling his allotment.
W.P.(C) 1418/2012 Page 13 of 14
30. Mr. Saini has, on instructions, submitted that his client would be
willing to accept the alternate flat, at the rates prevalent at the time of
filing of the writ petition.
31. The DDA is directed to allot, to the petitioner, a flat similar to
the flat which had been allotted to him in 1997, preferably, in the same
area. The allotment would be subject to the petitioner making
payment, for the said flat, at the rates prevalent on the date of filing of
the writ petition.
32. Needless to say, the petitioner would be required to fulfill all
requisite formalities in order to secure possession of the flat.
33. Respectfully following the example set by Anurag Sahai
(supra), this writ petition is also allowed.
34. There shall be no order as to costs.
C. HARI SHANKAR, J.
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