Delhi High Court
Sheela Bisht And Ors. vs Delhi Development Authority on 2 September, 1994
Equivalent citations: 1994IVAD(DELHI)1, 55(1994)DLT645
Author: D.K. Jain
Bench: D.K. Jain
JUDGMENT D.K. Jain, J.
(1) Rule D.B.Since these writ petitions filed under Article 226 of the Constitution involve very short question and we have heard learned Counsel for the parties at length,with their consent, we propose to dispose of all the petitions at this stage itself by this common judgment.
(2) The Delhi Development Authority(for short the DDA) in furtherance of its objective to provide houses for a large number of people for settlement in Delhi,conceived various schemes, one of which was the Self Financing Scheme, which, as the title of the scheme itself suggests, postulated construction of houses by the DDA with the finances to be provided by the intending purchasers. Applications for registration under the scheme were invited from time to time. On proposal forconstruction of flats in a particular area(s) being finalised and announced, the registrants under the scheme had to apply for allocation of flat in a particular area,on the basis whereof draw of lots was held and the successful applicants issued letters of allocation, specifying the locality, category/flat type, floor, estimated cost and scheduled dates of payment of four Installments etc. One such draw was held in the year 1987 and the successful applicants including the writ petitioners were issued such letters of allocations.
(3) The four petitioners herein claiming allotment of specific flats in Pocket C-4, Vasant Kunj, New Delhi were allocated flats as per details below: S. No.Name of the Applicant Category/Flat type Floor1.Smt. Ishwar Devi Chawla (CWP No.1896/93) IIIF.F.2.Shri Amar Nath Chikar (CWP No-844/93) IIIG.F.3.Sh. Pradeep Kumar Nahata (CWP No-2467/93) IIIF.F.4. Smt. Shiela Bisht. (CWP No-3821/92) Iii F.F. (4) The allocation letters issued to each of the petitioners contained the terms and conditions of allocation, the time frame for the payment of the four Installments, specifying the due date of payment of each. Clause 4 of the terms and conditions stipulates the time for payment, extension of time, cancellation of allocation on non-payment by the due dates and restoration thereof on termsprovided. Since the short point raised in these petitions relates to the interpretation of Clause 4 aforesaid, for the sake of convenience, it is set down below: "THE amount demanded should be paid on or before the due date mentioned in para 2 and 3 above. Extension of time for making payment of the amount demanded in column 7 of para 3 above up to a maximum period of 90 days from the due date is admissible. An allottee, need not apply for extension but he will have to pay interest @ 12% p.a. for the first month and @ 18% p.a. for the subsequent period in case payment of the amount asked for in the demand letter is not made within 90 days of the due date, the allotment shall stand cancelled automatically. However, cancellation due to non-payment of first4 Installments during; the stipulated period can be got restored on payment of dues with interest along with cancellation and restoration charges for each cancellation due to non-payment, subject to availability of the allocatedflat. The cancellation due to non-payment of final Installment within 120 daysof the date of issue (latter of the block date) of the demand letter for 5th finalInstallment shall not be restored under any circumstances."
(underlined by us)As is evident from Clause 4, if the payment is not made within 90 days of thedue date, the allotment stands automatically cancelled. However, cancellation dueto non-payment of any of the four Installments within the stipulated period of 90days can be got restored on payment of dues with interest Along with cancellationand restoration charges for such cancellation. This restoration, however, is subjectto availability of the allocated flat.
(5) The scheduled dates for payment mentioned in the letters of allocation were extended by a public notice. It is common ground that the petitioners defaulted in payment of some or the other of the four Installments by the due dates, extended as above, resulting in automatic cancellation of their allocations. The petitioners,thereafter, deposited the Installments, defaulted by each of them, and made applications for restoration of the allocation. The respondent Dda restored the allocation of three of them, namely, Smt. Ishwar Devi Chawla, Shri. Pradeep Kumar Nahata and Smt. Shiela Bisht in the originally allocated pocket, C-4, but the application of the fourth petitioner viz., Shri Amar Nath Chikar is pending withthem. The grievance of the first three petitioners in Cwp Nos. 1896/93, 2467/93and 3821/92 is that despite the restoration of the initial allocations, their names have not been included in the subsequent draw of lots for allotment of specific flats to them. The grievance of the petitioner in Cwp No. 844/93 is that though the cancellation of some other registrants placed under similar circumstances has beenrestored, his allocation is not being restored by the Dda although he has complied with all the requirements of clause 4. Thus, the prayer of all the petitioners in these petitions is that a writ, order or direction in the nature of mandamus or any other appropriate writ, directing the Dda to allot specific flats to them in Category Iii, C-4, Vasant Kunj, New Delhi be issued.
(6) In response to the show cause notice answers have been filed on behalf of the Dda in all the petitions. In each of these four petitions, the claim of the petitioners for allotment of flat in a particular pocket etc. is denied. It is stated that the petitioners having defaulted in payment of the Installments by the due dates,their allocations got automatically cancelled and they forfeited their right to allocation or allotment of any flat. It is further stated that like petitioners there were other such claimants and as against the eight applicants seeking allotment of flats in Pocket C-4, Vasant Kunj, New Delhi, there being only three flats available, the allocation of the applicants could not be restored. However, taking a sympatheticview, it was decided to restore the allocation and take a comprehensive view to decide as to which three of the eight applicants should be allotted flats in PocketC-4, but meanwhile, these writ petitions were filed, stalling further action at theirend.
(7) We have heard learned Counsel for the parties. It is contended on behalf of the petitioners that after restoration of their allocations, each of them was entitled to be considered for allotment of the flat in Pocket C-4, which was initially allocated to each one of them. They base their claim for it on Clause 4 aforesaid.
(8) On behalf of the Dda it is urged that restoration of original allocation is dependent on the availability of the allocated flat at the time of consideration of the application for restoration of allocation but confers no right or title to allotment of the same flat initially allocated to a registrant. As indicated by them, there being three flats available in Pocket C-4, as against eight claims, they could not pick and choose and had to take a rational and practical view on the situation arising there from, but, as stated above, the matter could not be finalised on account of tendency of these writ petitions. It is maintained that subject to availability of flats in Pocket C and adjusting three of the claimants there, others would be considered for allotment in other pockets.
(9) Admittedly all the petitioners did default in making payments of some orthe other of the first four Installments specified in the letters of allocation, on which their allocations stood cancelled. Such cancellation did not tantamount to forfeiture as alleged, and was liable to restoration in terms of clause 4 aforesaid.The question of restoration of a specific flat in terms of Clause 4 depended on the availability of the allocated flat at the time of compliance of requirements of Clause4 for restoration of the allocations. Obviously the restoration of initially allocated flats is not a matter of right and is conditioned to depend on their availability.Irrespective of their non-availability, the petitioners, therefore, cannot insist for allotment of the originally allocated flat and, in our view, the Dda is not obligated to accede to such a request. The piquant situation hurling accusations of motivation and arbitrariness against the Dda has arisen due to their not refraining from making further allotments/allocations of flats in Pocket C-4, till the applications for restoration of allocations by the original allocates were received and decided.True, the Dda could not wait indefinitely but the situation could well have beenavoided by prescribing in Clause 4 time limit for making applications for restoration and deciding them expeditiously. The absence of this stipulation in the lettersof allocation has exposed the Dda to a charge of malafides in making the allocated flats not available. It cannot be said with any amount of certainty that the present situation has arisen necessarily on account of any mala fide act on the part of DDA.However, in all fairness, to negate any such charge, the Dda will be well advised to take remedial action to fill up the lacuna indicated above.
(10) Coming to the dispute in hand, there being three flats against four claims in these petitions or claims of like nature, the question for consideration would beas to which of them should be preferred as against other claimants for restoring their original allocation in Pocket C-4 and others accommodated elsewhere. We have given our anxious consideration and feel that in such an unfortunatesituation, those complying with the requirements of Clause 4 and applying for restoration prior in point of time should be preferred to the allocatee doing so later.This seems to be the only fair solution of the muddle.
(11) We would leave the matter at that and would direct the Dda to take further action in respect of all the petitioners in accordance with the aboveobservations.
(12) The writ petitions stand disposed of in the aforesaid terms. The Rule is made absolute. There will, however, be no order as to costs.