Delhi High Court
Nirmala Devi vs D.D.A. on 26 August, 2002
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Sanjay Kishan Kaul, J.
1. The accused and almost contemtuous stand of the respondent-DDA in not following the law laid down by this Court on numerous occasions has once again compelled a citizen to knock the doors of this Court for justice.
2. The factual matrix of the case is limited. Respondent announced a New Pattern Registration Scheme, 1979 and the petitioner registered herself under the scheme giving her residential address as House N. 719, Baba Kharag Singh Marg, New Delhi-110001. In 1987, the petitioner shifted to house No. 137, Panjteerthi, Jammu (Tawi) and sent letters on 5.8.1987 and 12.9.1987 to the respondent requesting for change of the address which was duly received by the respondent on 15.9.1987. However, the respondent failed to change the address in its records.
3. Since the petitioner did not receive any intimation regarding allotment to her, the petitioner made enquiries in March, 1999 and came to know that a flat bearing No. D-254, Sector-12, Phase-I, Dwarka had already been allotted to her but the allotment letter had been sent at the old address and had been returned back un-delivered. The petitioner on 30.3.1999 made representation requesting for the duplicate demand letter. This representation was followed up by representation made in September and November, 1999. The petitioner received a letter dated 28.2.2000 enclosing a copy of the earlier demand letter. The petitioner thereafter deposited the demanded amount and requested for possession. The petitioner was shocked to receive a letter dated 12.5.2000 asking the petitioner to pay a balance amount of Rs. 3,33,174/68 on account of balance cost of the flat apart from Rs. 7,46,124/- already deposited. The petitioner made a representation against the same and deposited documents for grant of possession.
4. On 18.5.2001 in response to the representation of the petitioner, petitioner received a letter dated 22.11.2000 asking her to deposit a sum of Rs. 1,91,956/- on account of interest. The petitioner protested against the same since there was no question of payment of interest as the petitioner had deposited the full amount within time. On 11.7.2001 the petitioner was again asked to deposit a reduced sum of Rs. 1,39,327/- on account of interest and restoration charges. The petitioner made a representation on 18.3.2002 to the respondent and in response received a letter dated 29.4.2002 stating that on request of the petitioner a sum of Rs. 36,081/- had been reduced and that she should now deposit Rs. 1,03,246/- with interest and restoration charges.
5. Petitioner has filed the present writ petition for quashing of this demand towards what is stated to be interest.
6. In the counter affidavit, the aforesaid factual position is not disputed though it is stated that the DDA did not change address of the petitioner since petitioner failed to furnish any documentary evidence. It is further stated in the counter affidavit and contended at bar that amount being demanded towards interest is on account of the blocked capital of the respondent.
7. The original records have also been produced in the court today.
8. It is relevant to note that it is not disputed that there was no requirement under the Scheme for sending any proof of change of address. All that was required was to sent a change of address which was admittedly done by the petitioner. Moreover, the submission made in the counter affidavit about the lack of submission of any document by the petitioner as proof of change of address is clearly an after thought on part of the respondent at this stage.
9. In CW No. 4219/1998 Raj Rani v. DDA, decided on 14.08.2002, this aspect was considered and it is noticed that the standard clauses in these brouchers only require that in case of change of address the same should be communicated by sending a letter to the concerned Department with a copy endorsed to the Accounts Officer. There is no requirement of a copy of Ration Card.
10. It will be relevant to re-produce the noting made on 26.3.2000 by the concerned Authority.
"In this case, the allottee informed DDA about change in address in 1987 but our records were not changed. She was allotted a flat in 1998 and D/L was issued in the block date of 11.9.98-14.9.98 at the wrong (old) address. It came back undelivered. Finally on 10.2.2000 it was sent at proper address. For this period, where there is no fault of allottee, interest has been charged @ 12% p.a. for first month and @ 18% p.a. for rest of the period. This is a penal rate, which cannot be justified. We may charge interest @ 12% p.a. for period between 11.9.98-10.2.00 as DDA's fault is established here. Reduction of interest will be Rs. 36,081 only.
Sd-
C(H)
11. After due consideration the following noting was made by the Director (Housing) on 30.5.2002:-
"Commissioner (Housing) may please refer to endorsement of letter No. 3161/UD&PAM/VIP/2002 dated 10.5.2002 forwarding therewith representation of Smt. Nirmala Devi regarding waiver of interest. This case has been examined and decided as per policy, refer at page 24/N As per the decision, 12% interest is being charged for the period from 11.9.98-10.2.2000 in place of 12% interest for first month and 18% for the rest of period. No further relaxation can be given in accordance with the present policy. We may inform the Addl.PS to UD & PM.
12. Learned counsel for the respondent contends that a compassionate view has been taken of the matter and concession had been granted as per the policy of the respondent.
13. Learned counsel for the petitioner on the other hand has referred to various judgments passed by this Court dealing with the similar issue and holding that wherever the DDA has failed to change the address despite communication of the same by the allottee, the allottee is entitled to the flat at the original price and cannot be burdened for the fault of the DDA. Learned counsel for the petitioner referred to a judgment of this Court I.R.S. Varadan v. DDA, 1996 IV AD (Delhi) 292, judgment of the learned Single Judge in CWP 2182/1998, Jaspal Singh v. DDA decided on 28.9.1999 as also a judgment in appeal re-affirming the said judgment in LPA No. 26/2000, DDA v. Jaspal Singh decided on 10.8.2000. Judgment of the learned single Judge in CWP No. 581/2002, Shyam Sunder Rathi v. DDA decided on 8.2.2002 and in CWP No. 2071/2002, R.K. Mehta v. DDA decided on 9.4.2002 and CWP No. 4484/2000, R.K. Sharma v. DDA decided on 15.1.2002.
14. The aforesaid legal position is thus clearly settled by different judgments that in such a case an allottee cannot be burdened with any additional costs and is liable to pay only the costs as per the original allotment. In fact, such an allottee suffers on account of the respondent-Authority not taking action on the letters for change of address as he/she is unable to occupy the flat in question.
15. It is sad commentary on the conduct of the respondent-Authority that despite the legal position being settled on this aspect and orders passed from time to time, respondent persist in relying on some policy which would clearly be contrary to the judgments of this court. Such an attempt of the respondent-authority in fact border on contempt for persisting to follow a course of action which has been held to be impermissible by this Court in various judgments.
16. The judgments on this issue clearly amount to pronouncement of the legal position and are thus judgment in rem. The said judgment is not only binding between the parties to expound the legal position in such a case, it is bound to be followed uniformally by the respondent.
17. Judgment in rem is defined in the Law Lexicon by P. Ramananthan Aiyar (1997 Ed.) as under:
"Judgment in rem is one pronounced upon the status of some particular person or thing and which binds all persons."
Salmond on Jurisprudence (12 ed.) explains the distinction between right in rem and right in personam as under:
"A Right in rem, sometimes called a real right, corresponds to duty imposed upon person in general; a right in personam, sometimes called individuals. A right in rem is available against the world at large; a right in personam is available only against particular persons... Almost all rights in rem are negative and most rights in personam are positive... The essence of a right in rem is that it avails against an open or indefinite class of persons, whereas a right in personam avails against a specific person or persons."
18. Moreover the respondent is a public statutory authority and is bound to act in a fair and reasonable manner to ensure that there is no violation of Articles 14 and 21 of the Constitution of India. This would clearly require that such authorities must act in a uniform manner for all citizens. Once the principle has been clearly laid down that no person/allottee is to be charged any extra amount other than the allotment price in case of fault of the DDA, then the same must be uniformally implemented. This has not been followed by the respondent who have chosen to act on some policy of theirs contrary to the numerous decisions rendered by this Court mentioned aforesaid in this judgment.
19. A writ of mandamus is thus issued directing the respondent to hand over possession of flat No. 259 (Type-D) first floor, Sector-12, Phase-I, Dwarka, New Delhi to the petitioner without demanding any additional amount on account of interest on the basis of the cost already paid as per the original demand letter. The needful be done within a period of four weeks from today.
20. Taking into consideration the attitude of the respondent-Authority in persisting to act contrary to the settled law on the point as per various judgments of this Court, I impose cost of Rs. 25,000/- on the respondent to be paid to the Advocates' Welfare Fund-Trustee Committee within a period of four weeks and receipt to be filed in court.
21. The respondent-authority must verify and ensure that in all such cases of change of address not being made by the DDA and allotment letter being sent to the wrong address as a consequence thereof, the allottees are allotted flats at the same price as per the original demand letter so that the allottees are not unnecessarily harassed and compelled to approach the Court.