Delhi High Court - Orders
Shri Gajraj Singh vs Delhi Development Authority on 17 September, 2021
Author: Najmi Waziri
Bench: Najmi Waziri
$~34(1)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10381/2021, CM APPL. 31957/2021 & CM APPL.
31958/2021
SHRI GAJRAJ SINGH ..... Petitioner
Through: Mr. Udaibir Singh Kochar, Advocate.
versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Mr. Dhanesh Relan, SC for DDA
along with Mr. Paritosh Dhawan and
Ms. Sagrika Wadhwa, Advocates.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
ORDER
% 17.09.2021 The hearing has been conducted through hybrid mode (virtual and physical hearing).
1. The petitioner was granted an alternative plot of land. He has made payments albeit, after delay of some days. His application for condonation of delay in terms of the extant policy of the DDA, has not been responded to by Delhi Development Authority ('DDA'). Others similarly situated have been granted the benefit of the said policy of condonation of delay.
2. In the circumstances, this petition shall be treated as the petitioner's representation by the DDA.
3. The petitioner relies upon the dicta of this court in LPA 2594/2005 decided on 11.01.2008 which held inter-alia as under:
"...
17. In 1998, cases of late payments were referred to the Vice Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:22.09.2021 12:16:56 Chairman, DDA to take a policy decision in file no. F.30(164)96- LSB (Rohini). Photocopy of the said file noting are available in the file of Mr. Vishwa Raj Saxena at pages 155-56. The relevant portion of the said noting read as under:-
- 155 -
From over-leaf:
4. x x x x x
5. x x x x x
6. x x x x x "7. The approved policy in which cases for 7th and 8th draw wherein the payment were received after 180 days. The plots were regularised by the Competent Authority at the current pre-determined rates. A photocopy of the policy of 7th and 8th draw are kept at page 27 to 38/C. [This case being that of 9th draw, if agreed, the same policy can be applied in this case as well i.e. we may issue the possession subject to regularised to the delay payment under current pre-determined rates and restoration charges of Rs.200/- per sq. mtr. The Competent Authority for the regularisation is Hon'ble Vice-Chairman, DDA.] - 'A' Submitted please.
Sd/-
D/Asstt. LSB(R) Sd/- Supdt .LSB (R) Sd/- Asstt. Dir.LSB(R) xxxxxx 'A' may kindly be approved keeping in mind the precedents of 7th and 8th draws.
Sd/- 29.10.98"
18. One would have expected that same parameters and the policy decision taken in file no. F.30(164)96-LSB (Rohini) should have been made applicable to all other cases of similar nature including cases of Ms. Swaran and Mr. Vishwa Raj Saxena. The above- quoted noting also show that till the 9 th draw of lots, DDA had been regularising late/belated payments as per the policy decision taken with regard to 7th and 8th draw of lots. It was decided that belated payments by the allottees successful in the 9th draw of lots should be regularised as in the cases of belated payments by allottees of 7th and 8th draw of lots, subject to payment of predetermined rates and restoration charges of Rs. 200 per Sq Mtrs. This policy decision should have been applied in the present cases also, as in other cases. However, the file noting show that nothing was done in the two cases of Ms. Swaran and Vishwa Raj Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:22.09.2021 12:16:56 Saxena. There is no indication on the file why Ms. Swaran and Mr.Vishwa Raj Saxena were discriminated and not treated at par with other allottees who had made belated payments contrary to the terms of the allotment letter and who had been allotted plots in the same draw of lots i.e. the 9th draw of lots.
28. There is another reason why we feel that the allotteesappellants are entitled to succeed. Payments though belatedly made were admittedly made in 1997. DDA was aware of the said payments and enjoyed the amount paid to it. It is only in March, 2003, after a gap of five years that DDA turned around and stated that the delay in making payments cannot be recognised and in fact the allotments stand cancelled automatically (Refer R.K. Saxena Versus DDA reported in JT 2001(4) SC 340 on acceptance by conduct in case of belated payments). The file noting reveal that DDA itself was uncertain during the period 1996 to 1998, as what is to be done in cases where payments beyond 180 days had been made. In 1998 it was decided to condone delay beyond 180 days. The file noting from the year 2000 onwards show that the officers of DDA were aware of the policy decision taken in October/November, 1998 but matter had remained pending till March, 2003. Retaining payments over a long period of time does raise equity in favour of the two allottees. This fact cannot be ignored and not inconsequential and has not been given due weight age. Ignoring it, will amount to illegality and procedural irregularity. The decision taken by DDA to cancel allotments after a gap of five years and after having retained payments for five years cannot be regarded as fair and falls foul of the Wednesbury's Principle of Reasonableness.
29. Under the Transfer of Property Act, 1882 time is not normally regarded as an essence of contract in transactions relating to immovable properties, unless intention of the parties is to the contrary. Conduct of DDA whereby it condoned delays and belated payments shows that DDA itself did not regard time as essence of contract. Even as per stand taken by DDA delays upto 180 days have been condoned inspite of the two clauses in the allotment letter. Belated payments in the 7th and 8th draw of lots beyond 180 were condoned. File noting reveal that no decision was taken whether or not to condone delay beyond 180 days till 1998. In 1998 also in some cases default beyond 180 days was condoned. In 2004 again it was decided to condone delay in payments. Thus the contention of DDA that time was essence of contract, cannot be accepted. Past conduct of DDA and file noting are contrary to the stand and position taken by DDA. In Panchanan Dhara versus Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:22.09.2021 12:16:56 Monmatha Nath Maity, reported in (2006) 5 SCC 340 , it was observed;
"We have noticed hereinbefore that the courts below arrived at a finding of fact that the period of performance of the agreement has been extended. Extension of ( sic time for performance of a) contract is not necessarily to be inferred from written document. It could be implied also. The conduct of the parties in this behalf is relevant."
..."
4. In the circumstances, the DDA would treat this petition as the petitioner's representation. The petitioner shall be heard in two weeks' time through video-conference, and through counsel as well. The recent order shall be passed in two weeks thereafter and be promptly communicated to the petitioner. Should the petitioner still have any grievance, it will be open to him to pursue his remedies as may be available in law.
5. The petition, along with pending applications, is disposed-off in terms of the above.
NAJMI WAZIRI, J SEPTEMBER 17, 2021 SS Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:22.09.2021 12:16:56