* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA NO.82/2008 & CMs 2693/08 (delay) & 2691/08 (stay)
Reserved on: 7th July, 2008
th
Date of Decision : 8 August, 2008
DDA .....Appellant
Through Ms. Monica Sharma, Adv.
versus
JAGDISH CHOPRA .....Respondent
Through None.
CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE MANMOHAN
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be
reported in the Digest? Yes
JUDGMENT
08-08-2008
: MUKUL MUDGAL, J.
1. The present Letters Patent Appeal arises from the judgment and order
dated 17th August 2007 passed by the learned single Judge in Writ Petition (C)
LPA No.82/2008 Page No.1 of 18
No.20246/2005, wherein the learned Single Judge had issued directions to the
appellant authority to “consider the case of the respondent as one of an
automatic cancellation followed by the request for restoration of the allotment
on delayed payment of about slightly over a month.” The appellant authority
was also directed to hold a mini draw and allot a flat to the respondent at the
cost which was prevalent in June-July, 2000.
2. The brief facts of the case are as follows:
a) The respondent applied for an LIG flat under the New Pattern
Registration Scheme 1979 (NPRS) with the appellant, Delhi Development
Authority (DDA) and gave his address as F-72, Outram Lane, Kingsway
Camp, Delhi.
b) According to the respondent after shifting his address to House No.
297, Block 18, Dakshinpuri, Madangir, Delhi he informed the appellant on
14.9.1995 of the change of address. The appellant, however, disputes this.
c) A further intimation was given on 11.3.1999 which was received by the
appellant on 15.3.1999. The latter communication is not disputed by the
LPA No.82/2008 Page No.2 of 18
appellant.
d) The respondent again changed his address to House No. 166, F-1,
Madangir, Delhi-110 062 and according to him he informed the appellant of
this change of address on 12.4.1999. He has produced the photocopy of the
said letter with initials by way of acknowledgment dated 15.4.1999 which
according to him is that of the appellant.
e) The next communication by the respondent to the appellant was on
30.10.2000 stating that he had yet not heard about the allotment of flat to him.
He gave his address as House No. 166, F-1, Madangir. The receipt of this
communication is admitted by the appellant.
f) In the meanwhile, the respondent’s allotment had matured in a draw of
lots held on 28.3.2000. A demand-cum-allotment letter with
block dates of 30.6.2000 to 7.7.2000 was sent to him at the address at House
No.297, Block 18, Dakshinpuri, Madangir, Delhi. In this letter it was indicated
that the allotment, which was on cash down basis, was liable to be
automatically cancelled if the payment was not made within 30 days i.e.,
LPA No.82/2008 Page No.3 of 18
6.8.2000 or, together with interest on or before 5.10.2000. The appellant
claimed that this letter, which was sent by courier, was not delivered back to
the appellant as unserved, and therefore it was presumed that the respondent
had been duly intimated of the allotment by the deemed service of such letter.
g) The factual situation, therefore is that when the respondent approached
the appellant on 30.10.2000, he had crossed the deadline for making payment
by about 25 days.
h) The appellant authority vide letter dated 13th November, 2000 informed
the respondent about the cancellation of the allotment made in his favour and
called upon him to submit the original documents for refund of the registration
amount as the allotment stood cancelled due to the non fulfillment of the terms
and conditions of the demand cum allotment letter.
i) The respondent made several representations to the appellant as on 30th
November, 2000, 10th January 2001, 13th July 2001, 4th October 2001, 4th June
2002, 24th July 2002 and 22nd February 2004 and thereafter filed the writ
petition.
LPA No.82/2008 Page No.4 of 18
j) The learned Single Judge in his judgment/order dated 17th August 2007
in Writ Petition (C) No.20246/2005 had issued directions to the appellant
authority to consider the case of the respondent as one of an automatic
cancellation followed by the request for restoration of the allotment on delayed
payment. The appellant authority was also directed to hold a mini draw and
allot another flat of the same category and size in the same locality to the
respondent, at the cost which was prevalent in June-July 2000 within a period
of six months from the date of judgment.
k) The appellant being aggrieved by the findings of the learned Single
Judge has filed the present Letters Patent Appeal.
3. The learned Single Judge in his judgment/order dated 17th August 2007
inter alia held as follows:
“13. This Court finds that without entering into the
controversy whether the change of address
intimated by the Petitioner was in fact recorded by
the DDA, the matter could be decided on certain
admitted facts.14. Even the DDA does not dispute that on
30.10.2000 it received intimation of the change ofLPA No.82/2008 Page No.5 of 18
address. Even assuming that the automatic
cancellation came into effect on that very date, it
could not have been difficult for the DDA to inform
the Petitioner that it will be willing to restore the
allotment by treating the payment of the Petitioner
thereafter as a case of delayed payment. Admittedly
the delay as of that date was only 25 days
beyond the deadline of 5.10.2000 as indicated in
the demand-cum-allotment letter.15. However, the DDA does not appear to have
adopted such an approach. In response to the
numerous representations made by the Petitioner on
30.11.2000, 10.1.2001, 13.7.2001, 4.10.2001 and
22.2.2004, the response of the DDA has been to
treat the case as a cancelled allotment which could
not be restored. The Petitioner was informed on
1.4.2002 that the case had been placed
before the competent authority and had been
rejected. The Petitioner thereafter made further
representations on 4.6.2002, 24.7.2002 and also had
a legal notice issued to the DDA on 11.3.2003.
Thereafter, he filed the present writ petition.16. The narration of facts hereinabove indicates
that the approach of the DDA in the matter was not
reasonable. It could have easily, even according to
its own case, treated the case as one of an automatic
cancellation of allotment followed by a delayed
payment. The Petitioner was ready and willing to
take the allotment of the flat at the time he
informed the DDA on 30.10.2000 of the change of
address. In the numerous representations made after
knowing of the cancellation of the allotment, the
Petitioner kept asking for the allotment to
be made to him. Therefore, the DDA ought to haveLPA No.82/2008 Page No.6 of 18
considered this as a request for restoration. It
should have applied its Policy dated 1.6.2000 as
further modified by the policies dated 31.8.2001
and 3.6.2005, and processed the petitioner’s case
thereunder.17. The delay was not so extraordinary that it
could not be condoned. Mr. Saini says that it is a
normal practice of the DDA to permit at least three
months’ time beyond the time indicated in the
demand-cum-allotment letter for making payment.
In this case the delay was only of 25 days. Even if
it is assumed that the petitioner may have required
about 10 days thereafter to arrange the funds, the
total period of delay would not be over 45 days.
Considering that this is the case of delayed payment
this Court is of the considered view that the delay
of 25 days in the Petitioner approaching the DDA
for the allotment of the flat to him could have easily
been condoned. In other words it should have easily
been possible for the DDA, in terms of the above
policies dated 1.6.2000 as modified by the revised
policies dated 31.8.2001 and
3.6.2005, to have condoned the delay and restored
the allotment.18. Accordingly a direction is issued to the DDA to
consider the case of the Petitioner as one of an
automatic cancellation followed by the request for
restoration of the allotment on delayed payment of
about slightly over a month. It is directed that the
DDA will process the case of the Petitioner on the
basis that the delay in making payment has been
condoned subject of course to the Petitioner making
payment within the time to be stipulated in the
fresh demand letter. The DDA will allot theLPA No.82/2008 Page No.7 of 18
Petitioner either the flat in question if it is available,
and if not, the DDA will hold a mini draw within a
period 6 weeks from today, and allot another flat of
the same category and size in the same
locality within a period of 6 weeks thereafter. On
the basis that the delay which has been condoned is
for a period slightly over one month the DDA will
collect the restoration charges and also charge
interest for such period of delay. The cost of the flat
will be that indicated in the demand letter already
issued to the Petitioner with block dates of
30.6.2000 to 7.7.2000. This is further subject to all
other formalities including proof of identity being
satisfied by the Petitioner.”4. The learned Single Judge in his judgment/order dated 17th August 2007
had held that the narration of facts indicates that the approach of the DDA in
the matter was not reasonable. We are unable to differ with the findings of
the learned Single Judge as the appellant should have treated the case of the
respondent as one of an automatic cancellation of allotment followed by
delayed payment. The respondent was ready and willing to take the allotment
of the flat. He even informed the DDA on 30th October 2000 about the change
of address. The respondent after knowing of the cancellation of the allotment
kept asking for allotment to be made to him in numerous representations made
LPA No.82/2008 Page No.8 of 18
to the Appellant on 30th November, 2000, 10th January 2001, 13th July 2001, 4thOctober 2001, 4th June 2002, 24th July 2002 and 22nd February 2004. The
appellant should have, in our view, as rightly held by the learned Single Judge
applied its policy dated 1st June 2000 as modified by the revised policy dated
31st August 2001 and 3rd June 2005 and ought to have considered the request of
the respondent for restoration.
5. The learned Single Judge also directed that the delay of 25 days could
have been easily condoned by the appellant and it would have been easily
possible for the appellant in terms of the policy dated 1st June 2000 as modified
by the revised policy dated 31st August 2001 and 3rd June 2005 to have
condoned the delay and restored the allotment. We do not find any infirmity
with the findings of the learned Single Judge as the assertion that it was normal
practice of the appellant DDA to permit at least three months time beyond the
time indicated in the demand-cum-allotment letter to make the payment has
not been countered. This has also been done by relying on the policies of
DDA dated 31st August 2001 and 3rd June 2005. We have not been shown any
LPA No.82/2008 Page No.9 of 18
reason why these policies do not apply in the present case. In this case, thedelay was only of 25 days and even to raise the funds and other requisite
documents the total period of delay would not have been over a period of 40
days. Therefore, the treatment of the case of the respondent as a cancelled
allotment, which could not be restored by the appellant, cannot be justified
even on this ground.
6. The learned counsel for the appellant Ms. Monica Sharma, contended
that the respondent had changed his address from House No. 297, Block-18,
Dakshin Puri, Madangir, Delhi to House No. F-1/166, Madangir, Delhi. The
appellant did not ever receive any letter from the respondent for incorporating
the new residential address of the respondent in its records. The appellant had
sent the demand cum allotment letter and show cause notice at the address
which was intimated by the respondent and did not receive back any of the
letter/notices unserved. It is admitted case of the appellant itself that this letter
which was sent by courier was not delivered back to the appellant as unserved.
A mere presumption of the receipt of a letter which was not delivered back to
LPA No.82/2008 Page No.10 of 18
the appellant cannot lead to a drastic penalty of cancellation of allotment.7. This Court in Madan Lal Mokhawal v. Delhi Development Authority,
decided on 21st February 2005 in Writ Petition (C) No.15212/2004, has held
that such demand letters should be sent by registered post as under:
“11. The discussion with regard to service in my
view has to be the back-drop of the provisions
under the Delhi Development Act. Section 43 of
the Act deals with service of notices etc. under the
Act. The relevant portion of the Act is extracted
below:“43(1) Service of notices, etc. –
All notices, orders and other
documents required by this Act
or any rule or regulation made
thereunder to be served upon
any person shall, save as
otherwise provided in this Act or
such rule or regulation, be
deemed to be duly served-(a) xxx (b) xxx (c) xxx (d) in any other case, if the document is addressed to the person to be served and- (i) is given or tendered to him, or (ii) if such person cannot be LPA No.82/2008 Page No.11 of 18 found, is affixed on some conspicuous part of his last known place of residence or business, if within the [National capital territory of Delhi] or is given or tendered to some adult member of his family or is affixed on some conspicuous part of the land or building to which it relates, or (iii) is sent by registered post to that person."12. Section 43 (1)(a)(b)(c) deal with different
eventualities. Sub-clause (a) deals with service on
a Company; sub-clause(b) deals with service on a
partnership and sub-clause(c) deals with service on
a public body or Corporation/Society. The mode
of service in the case of others namely, which
include individuals in the present case is specific.
It requires in the first instances personal service
upon the noticee. In the event of the person not
being found, the mode of affixation is permitted.
The only other mode recognized is through
registered post. It may be kept in mind that the
strict letter of Section 43 may not, prime facie, be
applicable, as the notices are not statutory. Yet, it
is to be remembered that DDA is an authority
created under the Act. Its schemes, including the
scheme under consideration are formulated in
exercise of its statutory powers. Hence, the
standards prescribed under the Act, norms imposed
by the statute, and would bind the DDA.
Consequently, failing the mode of a personal
tender of the communication, the DDA cannot
escape its obligation to serve the notice ofLPA No.82/2008 Page No.12 of 18
allotment as indeed a demand-cum-allotment letter
is, to every registrant, through registered post.
13. It may also be useful to notice Section 27 of
the General Clauses Act which expands on the
expressions “serve” “give” and “send”
respectively. It enacts that unless a contrary
intention appears the service in such cases would
be deemed to be effected by properly addressing,
pre-paying and posting by registered post a letter
containing the document and unless the contrary is
proved it shall be deemed to have been effected at
the time at which the letter would be delivered in
the ordinary course of post. A joint reading of
Section 43 of the Act and Section 27 of the
General Clauses Act, therefore, clearly obliges the
DDA to ensure that every registrants in its
Schemes are intimated through registered post.”
This not having admittedly been done by DDA, any punitive action
against the respondent based upon such a letter sent by courier which was
presumed to have been delivered cannot be sustained. If a courier is resorted
to it can only be in addition to the normal mode of service and in any event the
documentation of the courier agency must demonstrate that the service was
duly effected on the addressee. Since the very foundation of the impugned
action against the respondent is based upon a flawed presumption of the
LPA No.82/2008 Page No.13 of 18
service of the demand letter, the cancellation of the respondent’s allotment
could not be sustained. The appellant is unable to inform the court even today
of the exact date of the dispatch of this letter of allotment and the very fact
that the demand-cum-allotment letter was sent by courier and not through
registered post goes against the appellant and is contrary to the position of law
as laid down by the judgment of this court in Madan Lal’s case (supra).
8. The Hon’ble Supreme Court while dealing with the question of an
appellate court in an intra-court appeal interfering with the exercise of
discretion under an appeal in the case of B. Venkatamuni v. C.J. Ayodhya
Ram Singh, (2006) 13 SCC 449, held as follows:
“11. In an intra-court appeal, the Division Bench
undoubtedly may be entitled to reappraise both
questions of fact and law, but the following dicta of
this Court in Umabai v. Nilkanth Dhondiba Chavan
could not have been ignored by it, whereupon the
learned counsel for the respondents relied:
“52. It may be, as has been held in Asha Devi v.
Dukhi Sao that the power of the appellate court in
intra-court appeal is not exactly the same as
contained in Section 100 of the Code of Civil
Procedure but it is also well known that
entertainment of a letters patent appeal isLPA No.82/2008 Page No.14 of 18
discretionary and normally the Division Bench
would not, unless there exist cogent reasons, differ
from a finding of fact arrived at by the learned
Single Judge. Even as noticed hereinbefore, a court
of first appeal which is the final court of appeal on
fact may have to exercise some amount of
restraint.”
12. In the said decision, it was further noticed:
“50. Yet in Manjunath Anandappa v. Tammanasa it
was held:
’36. It is now also well settled that a court of appeal
should not ordinarily interfere with the discretion
exercised by the courts below.’ “
In our view, the learned Single Judge in exercise of his jurisdiction and
discretion has taken a reasonable and plausible view in the judgment and order
th
dated 17 August 2007 and no case at all is made out for this Court to reverse
the findings of the learned Single Judge, particularly where the direction of the
learned Single Judge subserves the interests of justice. Public bodies such as
DDA must deal with citizens in a reasonable manner and not find ways and
means to find reasons to deny allotment on flimsy grounds such as presumed
service as done in the present case.
9. The learned Single Judge in paras 10, 11 and 13 of his judgment and
LPA No.82/2008 Page No.15 of 18
order dated 17th August 2007 held as follows:
“10. There are two approaches that could be adopted
in the present matter. One is to ascertain if the fault
lay with the DDA in not taking note of the change
of address, and even after taking note of change of
address, in sending allotment letter to the old
address. One set of consequence will flow if the
fault is with the DDA. There are the policies of the
DDA as expressed in its Office Order dated
25.2.2005 and 13.2.2006 for such contingencies.
11. The second approach is to proceed on the
assumption that the fault lay
with the Petitioner in not informing the DDA of the
change of address till 30.10.2000. If the automatic
cancellation of the allotment ensued, and the
Petitioner was seeking restoration of the allotment
thereafter, then there are another set of DDA
circulars/resolutions dated 1.6.2000, 31.8.2001 and
9.6.2005, that would become applicable.
13. This Court finds that without entering into the
controversy whether the change of address
intimated by the Petitioner was in fact recorded by
the DDA, the matter could be decided on certain
admitted facts.”
The learned Single Judge, in our view, had rightly held that the matter
could be decided on certain admitted facts without going into controversy
whether the change of address as intimated by the respondent was recorded by
th
the appellant or not. The respondent had on 30 October, 2000 approached the
LPA No.82/2008 Page No.16 of 18
appellant stating that he has not heard about the allotment of flat to him and
given his house address as House No.166, F-1, Madangir. However, the
allotment was cancelled on 30th October 2000. It was a grave error on part of
the appellant that on the very day that it received the intimation from the
respondent about the change of address at a public hearing, it cancelled the
allotment made to the respondent, which cannot be justified on any ground.
The respondent should have applied its policy dated 1st June 2000 as modified
by the revised policies dated 31st August 2001 and 3rd June 2005 and ought to
have considered the request for restoration made by the respondent in his
numerous representations. The action of the appellant cannot be justified on
any ground and the case of the respondent deserves to be treated as one of an
automatic cancellation followed by the request for restoration of the allotment
of the flat on delayed payment of about slightly over a month. The respondent
deserves to be allotted another flat of the same category and size in the same
locality subject to terms. In any event, the exercise of jurisdiction and
discretion by the learned Single Judge is not so unreasonable so as to warrant
LPA No.82/2008 Page No.17 of 18
interference in this Letters Patent Appeal, as held by the Hon’ble Supreme
court in the case of B. Venkatamuni (supra).
10. In this view of the matter, we see no reason for differing from the
findings as given by the learned Single Judge and accordingly, the appeal is
dismissed along with the pending applications. The appellant is directed to
comply with the judgment / order dated 17th August 2007 of the learned Single
Judge on or before 12th September, 2008.
(MUKUL MUDGAL)
Judge
(MANMOHAN)
Judge
August 08, 2008
dr/sk
LPA No.82/2008 Page No.18 of 18