Delhi High Court
Kawal K. Kapoor vs D.D.A. on 16 November, 2006
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat
JUDGMENT S. Ravindra Bhat, J.
1. The petitioner had applied under the 5th Self-Financing Scheme, formulated by the respondent (hereafter referred to as the DDA) and was allotted a flat pursuant to a draw of lots held on 31.12.87. The direction sought for in these proceedings is for quashing of the decision of the DDA refusing to restore his allotment which had been cancelled by it.
2. In terms of the Self-Financing Scheme as well as the allotment letter, the cost of the flat had to be paid in four separate Installments; each such installment was indicated in the letter issued on 15.01.88. The total estimated cost of the flat was Rs. 3,42,280/-.
3. It is not disputed that the petitioner paid the first and second Installments but after some delay. The petitioner, however, did not deposit the interest amounts stipulated in the allotment letter. He also defaulted in the payment of third and fourth Installments which had to be made on 15.01.89 and 01.07.89.
4. It is alleged and contended on his behalf by Mr. Rajender Aggarwal that there was a delay in the construction and completion of the project by the DDA and the petitioner kept visiting the offices of the respondent time and again but he was informed that the schedule of the construction was slow. It is claimed on account of this bona fide belief that since the project was delayed, it was not necessary for the allottee to deposit the amount indicated in the allotment letter within the time stipulated since possession would have been handed over at a later stage; no deposits were made.
5. Learned Counsel has relied on two other cases where allottees made belated payments but were given possession of the flat.
6. The position taken by the DDA in its pleadings as well as the contentions advanced on its behalf by Ms. J.J. Sarkar are that the scheme postulated timely payment; the stage of construction had direct linkage with the payments by the participants of the project, namely, allottees. However, if there was delay and significant numbers of allottees defaulted in timely payment, it invariably resulted in delaying of the project. The DDA has denied that there was any delay or that the petitioner was ever assured that if he defaulted in the payment, no fault would be attributed to him.
7. The factual matrix as is evident is narrow; the allotment letter dated 15.01.88 is clear. It had assigned a specific dates when amounts were to be paid, namely, 15.01.88, 15.07.88, 15.01.89 and 01.07.89. It is also an undisputed fact that the petitioner deposited second instament belatedly. Apparently, he did not make the payment towards interest. In these circumstances, the question is whether the respondent could be faulted for not restoring the allotment which stood automatically cancelled in terms on account of non-payment within time.
8. The terms of the SFS are that the construction and execution of the project is directly linked with the schedule of payments to be made by the allottees. If there is default in deposit of amounts, invariably it would result in affecting the construction. As far as the delay of construction by the DDA is concerned, there is also an in-built provision in the scheme; the DDA has to pay a stipulated interest if the construction is not completed within the specified time. In a sense, the scheme is contractual; upon the issuance of the allotment letter, both the parties are bound by its terms in regard to the terms of the allotment of the flat as well as the amounts to be paid. It is not open to one party to contend that it is free to work outside the terms of the allotment letter.
9. In these circumstances, I am of the opinion that the DDA, while declining the request of the petitioner to restore the allotment did not act in an arbitrary manner. As far as the instances quoted are concerned, it has been averred and contended on behalf of the DDA that the two other allottees made payments but with interest. I am, therefore, of the opinion that those instances cannot be cited as identical to the case of the petitioner.
10. One more factor for consideration by the Court is that in this case, the last date of the payment of the installment was to be July, 1989; the petitioner defaulted and kept quiet for a long time in approaching the Court. In these circumstances, I am of the view that no relief can be granted to direct the respondents to restore allotment in case of the flat in question. It is, however, open to the petitioner to represent to the DDA through an appropriate application for allotment of a flat in some other area on such terms and conditions as may be appropriate. If such representation is made, the DDA shall decide it on its merits and communicate the decision to the petitioner, in accordance with its policy within six weeks.
11. The writ petition is dismissed subject to above observations and directions.