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S.C KOHLI Vs. DELHI DEVELOPMENT AUTHORITY
May, 20th 2013
*             IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment reserved on   : 17.05.2013
                                 Judgment pronounced on : 20.05.2013

+      W.P(C) No. 1008/2012 & CM 2218/2012
       S.C KOHLI                                         ..... Petitioner
                          Through       Mr. Rajat Aneja and Mr. Ishaan
                                        Chhaya, Advocates

                          versus

        DELHI DEVELOPMENT AUTHORITY           ..... Respondent
                    Through Mr. Arun Birbal, Adv. for DDA

       CORAM:
       HON'BLE MR. JUSTICE V.K. JAIN


V.K. JAIN, J.

1.     The petitioner got registered for allotment of a flat under the New
Pattern Housing Registration Scheme-1979 (NPRS-1979) of the DDA.
On the turn of the petitioner maturing, the flat bearing number 383, Block
M-3, Pocket-I, Sector A-9, Narela came to be allotted to the petitioner in
a draw of lot held on 31.12.2003 and a demand-cum-allotment letter
dated 24.3.2003/31.3.2003 was issued to him at the address A-127,
Shankar Garden, Vikas Puri, New Delhi, which was the address disclosed
by the petitioner in the registration application. The case of the petitioner
is that the said letter was not received by him, whereas the case of the
respondent-DDA is that the letter was sent through speed post, was duly
received by the petitioner and the acknowledgment signed by the
petitioner was also received by them from the post office.




W.P(C)No.1008/2012                                           Page 1 of 10
2.     W.P(C) No.2376/2006 was filed by the petitioner alleging therein
that the said demand-cum-allotment letter had not been received by him.
He sought direction to DDA to allot a house to him against his
registration. The said petition came to be decided vide order dated
28.2.2006 and to the extent it is relevant, the said order reads as under:

               "7. Record of DDA shows that the letter which was sent
              to the petitioner by registered post was not received back
              by DDA i.e. it did not come back unserved.
              8. It is obvious that the petitioner has lost entitlement as
              he did not pay.
              9. Learned counsel for the petitioner states that the
              petitioner did not receive the demand-cum-allotment
              letter.
              10. However, what is relevant is that DDA posted the
              letter at the correct address and the said letter has not
              been received back unserved. There is a presumption of
              service.
              11. But one fact weighs with me. Petitioner has waited
              for a flat since 1979. DDA is allotting flats at the tail end
              priority. There may be a possibility that after all the
              claims are satisfied, a flat may be available for allotment
              to the petitioner. If a flat is available, Vice Chairman,
              DDA may consider allotting the same to the petitioner
              provided petitioner pays the current cost when flat is
              allotted to him.
              12. Writ petition stands disposed of directing that if the
              petitioner were to make a representation to the Vice
              Chairman, DDA within 4 weeks from today expressing
              his willingness to pay at the current cost for a flat if one
              is allotted to him, current cost being as on date of
              allotment, Vice Chairman, DDA would consider the
              representation and if after satisfying the claim of all
              the registrants, a flat remains unallotted to anyone, would







W.P(C)No.1008/2012                                           Page 2 of 10
              consider allotting the said unallotted flat        to the
              petitioner."


3.     In view of the order dated 28.2.2006, the petitioner submitted a
representation to DDA on 10.3.2006 whereby he sought allotment of an
MIG flat at the current cost at the tail-end priority. During consideration
of the case of the petitioner in terms of the order dated 28.2.2006, the
acknowledgment card signed by the petitioner came to be located by
DDA, whereby it was confirmed that the demand letter had been duly
received by the petitioner. The request of the petitioner was rejected by
the Vice-Chairman, DDA vide order dated 16.7.2009 and he was asked to
submit documents required for refund of the registration money. The said
order was conveyed to the petitioner vide communication dated
28.7.2009.Being aggrieved from the rejection of the allotment, the
petitioner filed W.P.(C) No.6121/2010 which came to be disposed of by
this Court vide order dated 9.9.2010.

       The order dated 9.9.2010 passed in W.P(C) No.6121/2010, to the
extent it is relevant, reads as under:

        "This court vide its order dated 28.02.2006 in W.P.(C.) No.
       2376/2006 had directed the respondent/DDA to consider
       allotment of an MIG flat to the petitioner, if one such flat is
       available after satisfying the claims of all other persons in the
       tail end priority. The respondent/DDA vide its impugned order
       dated 28.07.2009 has declined allotment of an MIG Flat to the
       petitioner on the ground that the request of the petitioner for
       restoration of allotment of MIG Flat No. 383, First Floor, Block
       M-3, Pocket-I, Sector A-9, Narela, Delhi, cannot be acceded to.
       The impugned order passed by the respondent/DDA was




W.P(C)No.1008/2012                                         Page 3 of 10
       prior to the order of this court dated 28.02.2006 in W.P.(C.)
       No. 2376/2006. Hence, the impugned order dated 28.07.2009
       (Annexure P-10 at page 37 of the paper book) is hereby
       quashed.
       Ms. Sangeeta Chandra, learned counsel appearing on behalf of
       the respondent/DDA, submits that the representation of the
       petitioner for allotment of an MIG Flat shall be decided by the
       respondent/DDA in terms of court order dated 28.02.2006 in
       W.P.(C.) No. 2376/2006 within such reasonable time as may
       be given by the court
       In view of the foregoing and having regard to the facts and
       circumstances of the case, this writ petition is finally disposed
       of with directions to the respondent/DDA to decide the
       representation of the DDA dated 10.03.2006 (Annexure P-4 at
       page 28 of the paper book) in terms of court order
       dated 28.02.2006 in W.P.(C.) No. 2376/2006 after giving a
       personal hearing to the petitioner in the matter as expeditiously
       as possible but not later than four months from today.
       Ms. Sangeeta Chandra, learned counsel appearing on behalf of
       the respondent/DDA, submits that the court may fix the date
       and time for appearance of the petitioner before the Director
       (Housing), DDA, for the purpose of giving hearing to him in
       the matter.
       The learned counsel appearing on behalf of the petitioner says
       that the petitioner shall appear before the Director (Housing),
       DDA, on any date that may be fixed by the court. Accordingly,
       the petitioner is hereby directed to appear before the Director
       (Housing), DDA, for personal hearing at 03:00 P.M.
       on 28.09.2010."


4.     The petitioner made yet another representation to DDA referring to
the order dated 9.9.2010 and seeking allotment under NPRS-1979. Since
no allotment was made to him, a contempt petition being Cont. Cas ©




W.P(C)No.1008/2012                                         Page 4 of 10
No.273/2011 was filed by him. During pendency of the contempt
petition, an order dated 6.5.2011 was passed by Director (Housing)-I of
DDA referring to the order passed by this Court on 28.2.2006 in W.P©
No.2363/2006 and the order dated 9.9.2010 passed in W.P(C)
No.6121/2010. The representation made by the petitioner was rejected
with the following order:

              "....The VC, DDA after taking note of all the
              factual aspects found that after the passing of the
              order dated 28.2.2006 the deptt has found the POD
              (Proof of Delivery) which reveals that the demand
              letter had, in fact, been received by Shri Kohli and
              the contention of Shri Kohli regarding receipt of
              demand letter is, therefore, incorrect. The demand
              letter was sent at the correct address by DDA and
              was duly received by Shri Kohli, Shri Kohli did
              not make payment in terms of DAL and, therefore,
              the VC, DDA opined that no case was made out
              for allotment and, therefore, rejected the
              representation. A copy of the decision of the VC,
              DDA taken on 16.7.2009 is annexed hereto as
              ANNEXURE ,,A and a copy of the POD is
              annexed hereto as ANNEXURE ,,B.
                     However, when the said decision was
              communicated by the DD (MIG)-H, it was not
              communicated properly and it reflected from the
              letter dated 28.7.2009 as if, the DDA has rejected
              the representation for restoration of the earlier flat.
              This resulted in the quashing of the said letter in
              W.P(C) No.6121/2010.
                     Shri Kohli in his representation has
              requested for allotment of a flat in pursuance of the
              directions/ observations of the Honble High Court
              in W.P No.6121/2010 and CM 12016/2010. "The
              case of Shri Kohli even under the "Tail end




W.P(C)No.1008/2012                                            Page 5 of 10
               Category" cannot be considered as the benefit of
               availing the Tail End policy is available only to the
               applicants who have applied for cancellation of flat
               prior to 31.12.1993. On that relevant point of time
               an option was given due to the circumstances of
               that period that in case the allottee does not want to
               take the allotment then by depositing the
               cancellation charges, his case was considered
               under the Tail-end Policy.
               No such benefit has been given to any person after
               December 1993. The allotment of a flat to the
               person who opt to surrender/cancel their flat after
               Dec., 1993 will have the serious consequences as
               hundreds of applicants will come and request for
               allotment/ re-allotment.
               Having gone through the entire facts of the case
               especially with regard to the fact that POD (Proof
               of Delivery) was received back in the department
               and no payment was made by the allottee Shri
               Kohli, the case of Shri Kohli for allotment of flat
               cannot be considered under any of the policy of the
               Deptt."


5.     In view of the order passed by the then Director (Housing)-I on
6.5.2011, this Court, observing that the said order had been passed by
Director (Housing) in compliance of the order of this Court dated
9.9.2010 dismissed the contempt petition as withdrawn with liberty to the
petitioner to challenge the said order dated 6.5.2011 in independent
proceedings.




W.P(C)No.1008/2012                                            Page 6 of 10
6.      The present writ petition has been filed for direction to DDA to
allot an MIG to the petitioner under its NPRS-1979 at the costs prevalent
on 28.2.2006.

7.      The grievance of the petitioner while filing W.P© No.2376/2006
was that no allotment letter had been received by him from DDA. The
stand taken by DDA in the said writ petition was that the allotment letter
was sent to the petitioner by registered post and the registered cover had
not been received back unserved. This Court while disposing of the said
writ petition held that since DDA had dispatched the letter at correct
address and the said letter had not been received back unserved, there was
a presumption of service. Thus, the contention of the petitioner that the
demand-cum-allotment letter had been received by him was not accepted
by the Court. The AD Card duly signed by the petitioner since has been
traced by DDA after disposal of W.P(C) No.2376/2006 and this
document clearly shows that the petitioner made a false statement when
he stated in W.P© No.2376/2006 that no demand letter had been received
by him from DDA. The demand letters issued by DDA under NPRS-1979
carry automatic cancellation clause and if the payment in terms of the
said letter is not made by the last date stipulated in the letter, the
allotment stands automatically cancelled. Therefore, since the petitioner
did not make payment despite receiving the demand-cum-allotment letter
dated    24.3.2003/31.3.2003,    the   allotment    made    to    him       stood
automatically cancelled on account of non-payment of the price of the
flat. Thereafter the petitioner has no legal right to seek allotment of a flat
from DDA under NPRS-1979.







W.P(C)No.1008/2012                                           Page 7 of 10
8.     As regards the order passed by this Court on 28.2.2006 permitting
the petitioner to make a representation to the Vice Chairman of DDA,
directing the Vice-Chairman DDA to consider the said representation and
consider allotting a flat to the petitioner in case a flat remained un-allotted
after satisfying the claims of all the registrants, this order, in my view, the
said order does not mandate DDA to allot a flat to the petitioner. At best,
it mandates DDA to consider the request of the petitioner for allotment of
a flat after all the registrants under NPRS-1979 have been allotted flats by
DDA. It can hardly be disputed that there are many registrants, who for
one reason or the other, have not been allotted flats by DDA under
NPRS-1979. The writ petitions filed by the registrants who were denied
allotment of flats by DDA have been rejected by this Court and a number
of writ petition seeking allotment of flats under NPRS-1979 are still
pending disposal in this Court. So long as, there is even one registrant
under NPRS-1979 waiting for allotment of a flat from DDA, the
petitioner could not have been considered and cannot be considered for
allotment of a flat under the said scheme, in terms of the order dated
28.2.2006.

       I am in agreement with the learned counsel for the respondent-
DDA that allotment of a person to a person who did not avail the offer
made to him by way of an earlier allotment letter which was duly
received by him would be wholly unjust and unfair to those who have in
the past been denied allotment by DDA on account of non-payment of
price of the flat and who either did not approach this Court or whose
petitions were dismissed or are still pending adjudication.




W.P(C)No.1008/2012                                            Page 8 of 10
9.     It was contended by the learned counsel for the petitioner that the
order dated 28.2.2006 required DDA to consider allotment of a flat to the
petitioner after satisfying the claims of other registrants provided one or
more flats remained un-allotted even after satisfying the claims of all the
registrants, but DDA rejected the representation on grounds which were
extraneous to the order dated 28.2.2006. A perusal of the order dated
6.5.2001 would show that the Director (Housing)-I specifically noted that
if the benefit of allotment was given to the petitioner, this would result in
hundreds of registrants coming to DDA with request for allotment/re-
allotment. This observation made by the Director (Housing) clearly
shows that there are many registrants who could not get allotment from
DDA, implying thereby that the claims of all the registrants do not stand
satisfied. In any case, as observed earlier, a large number of petition by
the registrants of NPRS-1979 are still pending adjudication in this Court
and, therefore, the occasion of considering the allotment of a flat to the
petitioner in terms of the order passed by this Court on 28.2.2006, has not
even arrived as yet.

10.    Vide order dated 28.2.2006, this Court formed a prima facie
opinion that the order dated 6.5.2011had been passed in ignorance of the
order dated 28.2.2006 and accordingly a notice was issued to Mr. S.K.
Jain, Director (Housing) to show cause as to why action for contempt be
not initiated against him. It would be pertinent to note here that a
contempt petition filed by the petitioner was dismissed by this Court on
taking a view that the said order had been passed in compliance of the




W.P(C)No.1008/2012                                          Page 9 of 10
order dated 9.9.2010, which in turn, had been passed pursuant to the order
dated 28.02.2006. Having heard the learned counsel for the parties, I am
of the view that there was no deliberate disobedience of the order passed
by this Court on 28.2.2006. If true import of the order was not correctly
appreciated by the Director (Housing) of DDA, that by itself does not
constitute a contumacious act amounting to willful disobedience of the
order passed by the Court. Notice to Mr. S.K. Jain, Director (Housing) is,
therefore, discharged.

       For the reasons stated hereinabove, I find no merit in this petition
and the same is hereby dismissed. There shall be no orders as to costs.



                                                             V.K.JAIN, J
MAY 20, 2013/rd




W.P(C)No.1008/2012                                        Page 10 of 10
 
 
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