*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 13th July, 2011
+ W.P.(C) 4849/2011 & CM No.9835/2011 (for stay)
BHARAT BHUSHAN ..... Petitioner
Through: Mr. Arun Sukhija, Adv.
Versus
DDA ..... Respondent
Through: Ms. Razia Ali, Adv. for Mr. Rajiv
Bansal, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? No.
2. To be referred to the reporter or not? No.
3. Whether the judgment should be reported No.
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petitioner was allotted a residential flat bearing No.95, Sector-
22, Pocket-15, Rohini, Delhi in the draw held by the respondent DDA on
3rd January, 2007. The demand by the respondent DDA of cost of the flat
was on the premise of the plinth area thereof being 35 sq. mtrs. The
petitioner contended that the plinth area of the flat was 28 sq. mtrs. only
W.P.(C) No.4849/2011 Page 1 of 7
and hence the demand should be proportionately reduced. The said
contention of the petitioner was not accepted by the respondent DDA
which contended that the plinth area of 35 sq. mtrs. was inclusive of the
share in the common area of the terrace.
2. The petitioner vide letter dated 6th August, 2007 as under:
“Dy. Director (Housing), (EHS)
Delhi Development Authority,
I.N.A., New Delhi.
Sub.: Request for surrender of the flat No.95, Pocket-15,
Sector-22, Rohini, Delhi allotted under DDA Housing
Scheme, 2006.
Ref.: File No.A/353/(1095)/2007/DDA06/RO, Demand letter
No.66952/Registration No.285022.
Sir,
I have been allotted flat No.95, Pocket-15, Sector-22,
Rohini, Delhi under DDA Housing Scheme, 2006. It is informed
that I do not intend to own the above referred flat hence the same is
hereby surrendered, if price is not reduced.
You are requested to kindly refund the Registration Amount
of `1,50,000/- which I had deposited along with application under
DDA Housing Scheme, 2006. It is further informed that the
Registration Amount was deposited by UTI on my behalf which I
have later paid to the UTI. Since I have paid the amount of
`1,50,000/- to the UTI, the cheque may kindly be prepared in my
name and send the same at my residential address.
Yours sincerely,
W.P.(C) No.4849/2011 Page 2 of 7
Sd/-
(BHARAT BHUSHAN)
WZ-198, TILAK NAGAR,
NEW DELHI-110 018
Attached: i) Original demand letter.
ii) Original receipt amount `1,50,000/-.”
surrendered the allotment in his favour and sought refund of the amount
of `1,50,000/- earlier deposited by him. A sum of `50,000/- admittedly
was tendered by the respondent DDA to the petitioner vide cheque dated
6th September, 2007 and received by the petitioner.
3. The petitioner filed W.P.(C) No.1722/2008 for directions to the
respondent DDA to reduce the price of the flat. Though the petitioner has
not placed any document pertaining to the said writ petition but it is on
record that the said writ petition was dismissed vide order dated 10 th
February, 2010 with liberty to the petitioner to make a representation to
the respondent DDA.
4. It seems incongruous as to why the said writ petition was filed
since the allotment had already been surrendered and an amount of
`50,000/- received back by the petitioner.
W.P.(C) No.4849/2011 Page 3 of 7
5. The petitioner filed yet another W.P.(C) No.3567/2010 making a
grievance that his representation had not been decided. The said writ
petition was disposed of vide order dated 30th September, 2010 with a
direction to the respondent DDA to dispose of the representation of the
petitioner.
6. The respondent DDA has now vide its order dated 1st February,
2011 impugned in this petition disposed of the said representation of the
petitioner stating that out of the deposit of `1,50,000/-, the amount of
`1,00,000/- had been deducted on account of cancellation charges as per
provisions of Clause No.12 of DDA Housing Scheme-2006 brochure. It
has also been reiterated that the demand on the basis of plinth area of 35
sq. mtrs. is in order.
7. This writ petition has been filed claiming the following reliefs:
“In the premises of the aforesaid, it is, therefore respectfully prayed
that in view of the facts and circumstances above stated, this Hon’ble
Court may be pleased to:
a) To issue necessary writ, orders or directions against
the respondent thereby setting aside and quashing the
judgment / orders / letter bearing No.HC/H(1216)10/
Legal/57 dated 01.02.11 issued by Asma Manzar,
Commissioner (Housing), DDA.
W.P.(C) No.4849/2011 Page 4 of 7
b) Issue an appropriate writ, order or directions thereby
directing the respondent to restore the allotment to the
petitioner in respect of the flat No.95, Sector-22,
Pocket-15, Rohini, Delhi and adjust the registration
money forfeited by the respondent as cancellation
charges and to reduce the price of the flat No.95,
Sector-22, Pocket-15, Rohini, Delhi in proportion of
area of 28 Sq. Mtrs. as against the promised area of 35
Sq. Mtrs. for which the petitioner is ready to take
possession of the flat and to make the necessary
payment as and when directed by the Hon’ble Court;
Or
b) Issue an appropriate writ, order or directions
thereby directing the respondent to allot any other flat
in Sector-22, Pocket-15, Rohini, Delhi of plinth area
35 sq. mtr. and to adjust the registration money
forfeited by the respondent as cancellation charges for
which the petitioner is ready to take possession of the
flat and to make the necessary payment as and when
directed by the Hon’ble Court;
c) Pass any other order or such other further orders
as this Hon’ble Court may deem just and proper in the
facts and circumstances of the present case and also in
the interest of justice.”
8. The petitioner having withdrawn from the allotment and having
also received refund of `50,000/-, it is not understandable as to how the
relief of restoration of the allotment and / or of alternate flat is being
claimed.
W.P.(C) No.4849/2011 Page 5 of 7
9. The counsel for the petitioner has contended that the withdrawal of
allotment was under protest. However, the same is not borne out from
the letter dated 6th August, 2007 (supra) of the petitioner. The same is
unequivocal. Even if the petitioner intended to dispute the demand, the
same ought to have been done in the two writ petitions earlier filed and
which were disposed of as aforesaid.
10. As far as the claim of the petitioner for refund of the balance
`1,00,000/- is concerned, it is not disputed that such forfeiture is in
accordance with the Housing Scheme (supra). The writ of mandamus is
maintainable only when an authority is acting contrary to the rules. No
mandamus directing the authority to act in contravention of its rules /
regulations can be issued. (see UOI Vs. S.K. Saigal (2007) 14 SCC 556)
11. I am even otherwise of the opinion that the writ petition for the
relief of refund of `1,00,000/- would not be maintainable. (see Kanhaya
Lal Madan Vs. NDMC MANU/DE/1296/2011) The appropriate remedy
for the said relief if any would be by way of a suit.
12. The writ petition is therefore dismissed with liberty to the
petitioner to if so advised, to file a suit for recovery of `1,00,000/-.
W.P.(C) No.4849/2011 Page 6 of 7
CM No.9836/2011 (u/S 151 CPC for exemption)
Allowed, subject to just exceptions.
RAJIV SAHAI ENDLAW
(JUDGE)
JULY 13, 2011
Gsr..
W.P.(C) No.4849/2011 Page 7 of 7