*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 22nd July, 2011.
+ W.P.(C) 8116/2008 & CM No.15654/2008 (for stay)
% K.R. CULTURAL & WELFARE SOCIETY (REGD.) .. Petitioner
Through: Mr. Ravinder Sethi, Sr. Adv. with Mr.
Rajiv Kumar Ghawana, Adv.
Versus
DDA ..... Respondent
Through: Mr. Rakesh Mittal, 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 challenge in this petition is to the order dated 4th August, 2006 of
the respondent DDA cancelling the allotment of land in favour of petitioner
for construction of Community Hall in Pocket No.10, Sector-15, Rohini,
New Delhi.
W.P.(C) No.8116/2008 Page 1 of 7
2. Notice of the petition was issued and upon the senior counsel for the
petitioner relying upon R.K. Saxena Vs. DDA 90 (2001) DLT 752 (SC)
status quo directed to be maintained. The said order has continued in force
till now. The pleadings have been completed. The counsels have been
heard.
3. The respondent DDA had vide letter dated 18th January, 2002 allotted
the land aforesaid to the petitioner. Clause 9 of the said letter is as under:-
“9. The payment and the acceptance letter with the required
undertaking must be sent within 60 days interest at the rate of
18% shall be chargeable for the delay period up to 6 months of
the issue this letter, after completion of 6 months from the date
of issue, the allotment shall be automatically cancelled, if the
society has made the partial payment after 6 months of issue of
this letter the society shall have to re-apply for allotment.”
4. It is the case of the petitioner that the letter was never served on the
petitioner and the petitioner learnt of the allotment in its favour upon visiting
the office of the respondent DDA in the month of March, 2002 and
whereafter the petitioner paid the entire demanded amount of `30,47,806/-
as under:-
“1. `10,00,000/- vide challan No.139506 dt. 28.6.2002
2. `9,50,000/- vide challan No.144081 dt. 21.8.2002
W.P.(C) No.8116/2008 Page 2 of 7
3. `3,00,000/- vide challan No.144082 dt. 28.8.2002
4. `7,97,806/- vide challan No.128923 dt. 2.9.2002
___________
` 30,47,806/-“
It is further the admitted position that besides the aforesaid, on 12 th
September, 2002 a further sum of `2,16,000/- was deposited towards interest
at the rate of 18% per annum. The said amounts have remained with the
respondent DDA till date.
5. The senior counsel for the petitioner has contended that the petitioner
after making the payments aforesaid continued to represent to the respondent
DDA and respondent DDA after nearly four years vide letter dated 4 th
August, 2006 (supra) cancelled the allotment; that the petitioner continued to
represent thereafter also and filed this petition ultimately in the year 2008.
6. The respondent DDA in its counter affidavit has stated that the letter
dated 18th January, 2002 of allotment was dispatched by speed post to the
petitioner. The respondent DDA along with its additional affidavit has filed
photocopies of its Dispatch Register and the speed post receipt. It is
contended that the action of the respondent DDA is strictly in accordance
W.P.(C) No.8116/2008 Page 3 of 7
with Clause 9 and thus cannot be faulted with.
7. I have enquired from the counsel for the respondent DDA as to why
the cancellation was effected after nearly four years, in the year 2006, when
according to the respondent DDA the allotment stood automatically
cancelled upon default in terms of Clause 9 (supra), on 17th July, 2002 itself.
The said question has been raised inasmuch as it is felt that considering the
proposed user of the land it is ultimately the residents of the locality for
whose benefit and convenience the proposed Community Hall has to be
constructed, who have suffered owing to the delay.
8. The counsel for the respondent DDA has stated that he has not found
any noting on the file for the delay between the years 2002 to 2006.
9. The senior counsel for the petitioner has besides relying upon R.K.
Saxena (supra), also invited attention to the judgment dated 11 th January,
2008 of the Division Bench of this Court in LPA No.2594/2005 titled DDA
Vs. Ms. Swaran where it was held that once DDA had kept the monies with
itself for long, cancellation is not be effected. It was also held that under the
Transfer of Property Act, 1882 time is not of essence and thus the
W.P.(C) No.8116/2008 Page 4 of 7
cancellation for default beyond 6 months ought not to have been effected.
10. The petitioner on the last date of hearing before this Court had also
contended that the respondent DDA had in identical situation granted time to
Rahul Dhaka Educational Society to make the payment. The counsel for the
respondent DDA had then sought time to obtain instructions. He today
states that he has examined the file of Rahul Dhaka Educational Society; the
said Society deposited approximately 50% of demanded amount within 6
months and it was in these circumstances that after expiry of 6 months also,
another opportunity was granted to Rahul Dhaka Educational Society to
make the balance payment within 10 days.
11. The senior counsel for the petitioner has contended that the petitioner
herein had also deposited a sum of `10 lacs being approximately 1/3rd of the
demanded amount before the expiry of 6 months and thus there is no reason
for the petitioner to be not given an opportunity as had been given to Rahul
Dhaka Educational Society.
12. The petitioner has thus undoubtedly been discriminated against.
There is no explanation as to why Rahul Dhaka Educational Society was
W.P.(C) No.8116/2008 Page 5 of 7
given another opportunity and the petitioner not. Part deposit of one-half or
one-third appears to be no reason for treating them differently
13. I am of the view that the controversy in the present case is squarely
covered by the judgment in Ms. Swaran (supra). The petitioner in the
present case deposited the entire demanded amount with the respondent
within about 8 months of the letter of demand even if believed to have been
served on the petitioner and within 6 months of the date when according to
the petitioner itself, the petitioner for the first time learnt of the allotment in
its favour. The petitioner has also deposited the interest. The Division
Bench has held that DDA ought not to have accepted the amount. The same
holds good in the present case also. The respondent DDA ought to have not
accepted further payments tendered beyond six months and even if the same
were deposited without its knowledge, ought to have returned the same and
communicated the cancellation immediately after 17 th July, 2002 itself.
Having not done so and having retained the same for last nine years, the
judgments aforesaid squarely apply.
W.P.(C) No.8116/2008 Page 6 of 7
14. The petition therefore succeeds; the cancellation effected of the
allotment in favour of the petitioner is set aside/quashed. The respondent
DDA is now directed to within three months of today and subject to
compliance of formalities if any remaining by the petitioner, put the
petitioner into possession of the allotted land and execute documents as may
be required to be executed in this regard.
No order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
JULY 22, 2011
Bs..
W.P.(C) No.8116/2008 Page 7 of 7