Full Text
HIGH COURT OF DELHI
Date of Decision: 09.05.2022
CHANCHAL KOCHAR ..... Appellant
Through: Mr.R.K.Saini and Mr.Ram Kumar Gupta, Advs.
Through: Ms.Shobhna Takiar, Standing counsel.
HON'BLE MR. JUSTICE NAVIN CHAWLA NAVIN CHAWLA, J. (Oral)
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
JUDGMENT
1. This appeal has been filed by the appellant challenging the judgment and order dated 06.04.2022 passed by the learned Single Judge in W.P.(C) 5696 of 2022, dismissing the writ petition filed by the appellant herein. 2022:DHC:1846-DB
2. The appellant had filed the above writ petition inter-alia challenging the letter dated 22.02.2022 of the respondent, rejecting her representation for the condonation of delay in the payment of the instalment amounts against the allotment of MIG Flat No.32, Pocket- 8, Sector 13, Dwarka Phase-11, New Delhi (hereinafter referred to as the ‘Flat’). The appellant had further prayed for allotment of the same Flat, if still available, or the allotment of another flat in the same locality, that is, Dwarka, New Delhi, subject to the payment of further interest and restoration charges by the appellant.
3. The appellant had contended in the writ petition that her husband had gotten himself registered with the respondent for the allotment of an MIG flat under the respondent’s New Pattern Registration Scheme 1979 (NPRS-1979). In a draw of lots held by the respondent on 22.12.2001, he was allotted the Flat in question at a disposal cost of Rs.7,43,600/- (Rupees Seven Lakh Forty-Three Thousand Six Hundred only) on hire purchase basis. A demand-cumallotment letter bearing a block date 26.12.2001-31.12.2001 was issued to him in this regard, according to which an initial amount of Rs.3,93,045/- (Rupees Three Lakh Ninety-Three Thousand Forty-Five only) (besides the deposit of confirmation amount of Rs. 20,000/-) was to be paid on or before 30.01.2002. The said amount could also be paid with interest upto 31.03.2002. The balance consideration/amount was to be paid in 120 monthly installments of Rs.6,214/- (Rupees Six Thousand Two Hundred Fourteen only) each.
4. The appellant contended that her husband made the payment of the confirmation amount of Rs.20,000/- (Rupees Twenty Thousand only) on 24.01.2002, that is, within time. He thereafter made further payments, however, could not deposit the entire balance amount of Rs.3,93,045/- within the time stipulated, on account of having fallen seriously ill. He remained under treatment from April, 2003 till January, 2007, on account of which he had to sustain heavy expenses on hospitalization, medical treatment and medicines. He, however, made a payment of Rs.3,96,000/- (Rupees Three Lakh Ninety-Six Thousand only) on 25.01.2007, thereby making a total payment of Rs.4,53,284/- (Rupees Four Lakh Fifty-Three Thousand Two Hundred Eighty-Four only) during his lifetime. He died on 06.02.2008.
5. The appellant thereafter applied for mutation/transfer of the registration and the allotment of the flat in her favour. The respondent, however, vide letter dated 01.07.2008, informed the appellant that though registration of her late husband had been transferred in her name, the same was only for refund purposes.
6. The appellant thereafter made representation dated 18.07.2008 to the Commissioner-Housing seeking regularization of the allotment in her favour. As no response was received, the appellant applied under the Right to Information Act, 2005 (hereinafter referred to as the ‘RTI Act’) seeking information and documents regarding the allotment and payment made by her late husband. The appellant also made a further payment of Rs.4,57,000/- (Rupees Four Lakh Fifty- Seven Thousand only) to the respondent on 30.04.2009, thereby making a total payment of Rs.9,10,284/- (Rupees Nine Lakh Ten Thousand Two Hundred Eighty-Four only) to the respondent, which was more than the balance consideration payable for the said Flat.
7. The appellant, having received no response, thereafter made a further application under the RTI Act on 13.10.2014. In response thereto, the respondent informed vide its letter dated 28.01.2015, that the main file was not readily available on record and as soon as it was available, a photocopy of the documents shall be provided.
8. The appellant alleges that she again met the Director Housing-I on 12.07.2017 and pleaded her case. Whereafter, vide letter dated 29.10.2018, she was informed that the allotment file was not readily available and, therefore, she should visit the office of the respondent with the original documents relating to the registration, allotment and all correspondences made to her and her late husband, to enable the office to examine her case.
9. The appellant claims that complied with the above, however, as she did not receive any response, the appellant filed a writ petition, being W.P.(C) 12450 of 2021, praying for a direction to the respondent to allot the said Flat in her favour. A prayer was also made to set aside the letter dated 01.07.2008.
10. By an order dated 12.11.2021, the learned Single Judge of this Court was pleased to dispose of the said writ petition with a direction to the respondent to treat the writ petition as the appellant’s representation, grant an opportunity of hearing to the appellant, and pass an order thereon within two weeks.
11. The respondent, vide order dated 22.12.2021, however, rejected the representation of the appellant in a perfunctory manner, without considering the relevant details, including the judgment of this Court.
12. The appellant thereafter filed the above writ petition, which has, been dismissed by the learned Single Judge by way of the Impugned Order.
13. The learned counsel for the appellant submits that the learned Single Judge has failed to take into account the policy of the respondent on condonation of delay in making deposit of the installment/balance consideration for the flats by the allottees, as announced vide Office Order No.PS/C(I)/DDA/200 dated June 1,
2000. He further placed reliance on the judgment dated 11.08.2008 of this Court passed in LPA No.188 of 2008, titled Raj Kumar Sharma v. Delhi Development Authority, to submit that this Court, taking note of the policy of the respondent of condoning the delay in cases where the respondent itself was not in a position to even provide the basic amenities like water and electricity in the area of Dwarka, where the flat of the appellant was also situated, had directed the respondent to restore the allotment and hand over the flats to the allottees on payment of interest or penalty for the delayed payment by such allottees.
14. The learned counsel for the appellant further submits that the learned Single Judge has failed to appreciate that there was no delay on part of the appellant in approaching the Court. He submits that in its replies dated 28.01.2015 and 29.10.2018 to applications of the appellant under the RTI Act, the respondent had acknowledged that the file was not readily available or traceable. The appellant, therefore, waited for an appropriate response from the respondent, and only on not receiving the same, finally approached this Court by way of the earlier writ petition being W.P.(C) 12450 of 2021. Though, the learned Single Judge vide order dated 12.11.2021, directed the respondent to treat the writ petition as the appellant’s representation and to decide the same, the respondent decided the same by way of the order dated 22.02.2022 in a perfunctory manner, without adverting to its own policy of condonation of delay and/or to the orders passed by this Court on such policy of condonation. He submits that therefore, the petition could not be said to be barred by delay or laches.
15. We have considered the submissions made by the learned counsel for the appellant, however, find no merit in the same. The appellant admits that her late husband had not made the payment in terms of the demand raised by the DDA, and the respondent vide its letter dated 01.07.2008, had mutated the registration of the application for allotment in favour of the appellant on the demise of her husband, only for the purpose of refund. The said letter has been annexed by the appellant with the appeal, and reads as under: “Sub: Mutation in respect of registration No.6387-NP-79. Madam, With reference to your letter dt. 16.5.08 on the subject mentioned above. I am directed to inform you that on the basis of documents submitted by you and other legal heirs of the deceased allottee sh. Narender Kochar the registration No.6387-NP-79 standing in the name of late sh.Narender Kochar has been transferred in the name of smt. Chanchal Kochar w/o late sh.Narender Kocher being wife of deceased allottee., for the refund purpose only. The other terms and conditions of registration/ allotment will remain unchanged. Please note that in case it is noticed at any later stage that the facts have been concealed or any misrepresentation/ misstatement has been made for seeking the above mutation, the mutation allowed through this letter would be automatically treated as cancelled.” (Emphasis supplied)
16. Clearly, the cause of action to challenge the said decision of the respondent arose to the appellant on receipt of the above letter. The appellant, however, represented against the same vide letter dated 18.07.2018. The appellant had also filed applications under the RTI Act, in response whereto, certain documents were supplied to her by the respondent under the cover of letter dated 19.02.2009. The appellant, however, even at that stage, did not choose to challenge the letter of the respondent dated 01.07.2008. The appellant unilaterally went on to deposit a further amount of Rs. 4,57,000/- with the respondent. It is not the case of the appellant that the said amount was deposited against any demand raised by the respondent.
17. From the appeal, it appears that after a period of more than five years, on 13.10.2014, the appellant made further application under the RTI Act. In response thereto, vide letter dated 28.01.2015, the respondent informed the appellant that main file was not readily available on record. The appeal thereafter jumps to 2018, when the appellant made another application under the RTI Act. In response to the same, again, the respondent stated that the file was not readily traceable. These applications were made under the RTI Act and therefore, cannot be treated as a representation against the decision of the respondent to make the allotment in favour of the appellant only for the purpose of refund of the amount paid by her late husband and by herself. In any case, mere presentation of representations, cannot extend the period of limitation, nor can they help appellant escape from the effect of delay and latches.
18. It is only after a period of another three years, that finally, the appellant filed her first writ petition, being W.P.(C) 12450 of 2021. The same was disposed of by the learned Single Judge vide order dated 12.11.2021, which is reproduced herein below:
2. At the outset, the learned Standing Counsel for DDA submits that the petition is barred by laches. The flat was allotted to the petitioner’s husband way back in 2001. The petitioner sought mutation on behalf of her husband who had passed away. However, monies were not paid within time to the DDA. Therefore, the DDA cancelled the allotment of flat and allotted it to somebody else.
3. Let DDA treat this petition as the petitioner’s representation. The petitioner shall be heard in four weeks, through counsel as well. The DDA’s order shall be communicated to her within two weeks thereafter.
4. It will be open to the petitioner to pursue her remedies as may be available in law.
5. The petition, along with the pending applications, stands disposed-off in terms of the above.”
19. In compliance with the above direction, the respondent considered the case of the appellant, and passed the detailed order dated 22.02.2022, rejecting her representation. The same is reproduced herein below: “Whereas, a Writ Petition No.12450/2021 was filed by Smt. Chanchal Kochar wherein petitioner prayed the Hon’ble Court to issue a writ of mandamus or any other suitable writ, order or direction in like nature thereby issuing the allotment/ possession of Flat NO. 32, Sector-13, Pocket-8, Phase-11, of Dwarka (MIG) or any other similar flat in the same sector of the vicinity as the payment of premium had already been made by the petitioner and further requested to set aside partly and declare impugned letter dated 01.07.2008 null and void. Whereas, the above stated writ was disposed of on 12.11.2021 by the Hon'ble High Court of Delhi by passing order that DDA will treat this petition as the petitioner's representation. The petitioner shall be heard by the DDA in four weeks, through counsel as well and to decide the said representation within 02 weeks thereafter. The factual matrix of the case is as follows:a) An MIG Flat bearing No. 032, 3rd floor, Sector-13, Pocket-B, Dwarka was allotted to Sh.Narender Kochar in the draw held on 22/12/2001. The Demand-cum-Allotment letter with the block date 26/12/2001- 31/12/2001 was issued to allottee on Hire Purchase basis. Amount of Rs. 20,000/- was to be paid upto 30/01/2002 as confirmation amount and an amount of Rs.402,871.97 was to be deposited upto 31/03/2002 failing which the flat was to be cancelled automatically. b) The allottee has deposited Rs.38642/- upto 20.08.2002 i.e. after due date. Sr. A.O. vide letter bearing No. M/312(2964)01/NP/DW/20 dated 13/02/2003 asked the petitioner to deposit an amount of Rs.907069.49 upto 03/03. This Office vide letter bearing no. M/312(2964)2001/DW/NP/1947 dated 05/10/2006 requested the allottee to submit the 3rd copy of bank challan vide which he has deposited the demanded amount, otherwise the said allotment will be cancelled without any intimation. However, the petitioner failed to deposit demanded amount within the prescribed dated. c) The allottee deposited an amount of Rs. 396000 between 25.01.2007 to 31.03.2007 without any demand raised by the DDA. Sh. Narender Kochar expired on 06/02/2008. And this Office vide its letter bearing NO. 1828 dated 01/07/2008 allowed the mutation in r/o registration NO. 6387-NP-79 in favour of Smt. Chanchal Kochar, being wife of the deceased allottee, for refund purpose only. Whereas, the allottee didn't deposit the demanded amount within stipulated time the allotment of the flat stood automatically cancelled as per clause 1&2 of demand cum allotment letter. Thereafter, the flat was re allotted under subsequent Housing Scheme in 2008 through a computerized draw to an eligible applicant. As mutation was allowed for refund purpose only, even then an amount of Rs. 457000/- was deposited against the said flat on 30.04.2009. In view of the above, it is stated that the allotment of the flat under reference already stands cancelled as per terms and conditions of Demand cum Allotment letter and the mutation was allowed in favour of the petitioner for refund purpose only. Thereafter, depositing any payment against the said flat doesn’t confer any right, title, interest against an automatically cancelled flat. Accordingly, the petitioner / representation is devoid of merits and disposed of. Sd/ (Harish Kumar) Director (H)-I”
20. A reading of the above would show that not only was the allotment of the flat in favour of the late husband of the appellant cancelled, the same was later mutated in favour of the appellant, vide letter dated 01.07.2008, only for the purpose of refund. The flat in question also stood allotted in the subsequent Housing Scheme in 2008 to a third person. Barring making applications under the RTI Act, which could even not be considered as representations against the letter dated 01.07.2008 of the respondent, and making unilaterally payment of Rs.4,57,000/- on 30.04.2009, there is no explanation given by the appellant for not approaching the Court prior to her filing of earlier writ petition, being W.P.(C) 12450 of 2021.
21. Though the learned Single Judge vide its order dated 12.11.2021 had directed the respondent to consider the case of the appellant as a representation, we are of the opinion that the same cannot extend the period of limitation and the order passed in compliance with the said direction cannot grant fresh cause of action to the appellant and/or revive the stale claim of the appellant to the Flat or to an alternate flat.
22. As far as the policy of the respondent regarding the condonation of delay in making the payment by the allottees of flats is concerned, we again are of the opinion that the same can be exercised within only a reasonable period and cannot vest any right on the allottee to claim benefit of the same after a prolonged period of delay. In the present case, as contended by the respondent and not denied by the appellant, the Flat in question stood allotted to a third person in the year 2008, therefore, there was no occasion for the respondent to even consider the prayer for condonation of delay after a prolonged period of delay of more than 13 years.
23. Accordingly, we find no merit in the present appeal. The same is dismissed, with no order as to cost.
NAVIN CHAWLA, J VIPIN SANGHI, ACJ MAY 9, 2022/Arya/AB