Nishant Rai Andrew vs DDA

Rajiv Sahai Endlaw, J.—The Petitioner, in a draw of lots held on 27th February, 1998 was made an out of turn allotment under the Physically Handicapped Quota, of Shop No. 3, CSC, Jagriti Enclave, Zone 10&11 and a Demand-cum-Allotment Letter dated 21st October, 1998 issued to him. The Petitioner though deposited a sum of Rs. 3,68,265/- with the Respondent DDA towards the price of the said shop but requested for change of location for the reason of the same being at a distance from his residence. The request of the Petitioner was examined and acceded to by the Respondent DDA and another Shop No. 25, in Dhallupura Chilla, Delhi was allotted to the Petitioner vide revised demand letter dated 5th January, 2001. The counsel for the Petitioner states that the price of the said shop was less than the amount of Rs. 3,68,265/- which had already been deposited by the Petitioner and the Petitioner was rather entitled to a refund of approximately Rs. 12,000/-.

However the possession of Shop No. 25 Dhallupura Chilla, Delhi also could not be delivered to the Petitioner since according to the Respondent DDA the same already stood allotted to another.

The Petitioner in the circumstances approached the Lok Adalat, and before the Lok Adalat also some alternative shops were offered to the Petitioner. According to the counsel for the Respondent DDA, upon the Petitioner not accepting any of the same, the Respondent DDA vide letter dated 18th May, 2007 requested the Petitioner to take refund of the monies deposited with interest @ 7% per annum.

Finally this petition was preferred, notice whereof was issued. It is the stand of the Respondent DDA in its counter affidavit that the Petitioner having failed to accept the alternative shops offered to him and having preferred a complaint before the Consumer Forum and withdrawn the same is not entitled to any relief.

On suggestion of this Court to the Respondent DDA to identify five shops in the vicinity of the residence of the Petitioner for allotment to the Petitioner, list of five such shops was given to the Petitioner. The Petitioner identified one of the said shops for acceptance in lieu of the shop No. 25 Dhallupura Chilla, Delhi to which he claims entitlement. However it is the contention of the counsel for the Respondent DDA that the Respondent DDA is incompetent to so allot the identified shop and has to necessarily hold draw of lots. The Petitioner was as such asked to identify three of the said five shops and of which one would be allotted in the draw of lots to the Petitioner. The Petitioner has filed an affidavit dated 22nd November, 2010 listing the said three shops.

The counsel for the Respondent DDA has however stated that the Petitioner has in the said affidavit imposed another condition for acceptance i.e. of the shops being given to him at the rate on which the shop at 25, Dhallupura Chilla, Delhi was allotted to him. He contends that the Petitioner is liable to pay the price as prevalent now of the said shops.

The counsels have been heard on the aforesaid aspect. I am of the opinion that the Petitioner is entitled to either of the said three shops at the rate applicable thereto but as of the date when the allotment which could not fructify, was made to the Petitioner i.e. of 5th January, 2001. The Petitioner cannot be made liable for increase in price thereafter in as much as the fault for non-delivery of the possession of the shop which was admittedly offered to the Petitioner lies squarely on the Respondent DDA. The counsel for the Respondent DDA has contended that the Respondent DDA had in 2007 before the Lok Adalat offered alternative shops to the Petitioner and which were not accepted by the Petitioner and the Respondent DDA should thus not be bound with the rates of 2001. However the fact of the matter remains that No. settlement could be arrived at before the Lok Adalat and as such it cannot be said that the wrong committed by the Respondent DDA in 2001 was corrected in any manner in the year 2007.

The counsel for the Respondent DDA has next contended that the three shops to be now put to draw of lots and of which any can be allotted to the Petitioner or any of them may not have been in existence as on 5th January, 2001 so as to have a rate of that date.

If that be the position then the rate applicable when the shops first came into existence shall be the rate at which the Petitioner would be required to make the payment.

Though the counsel for the Petitioner has sought time to obtain instructions from the Petitioner in this regard but the said course of action having been found to be reasonable by this Court, need is not felt to adjourn the matter.

The writ petition is therefore allowed on the following terms:

a. The Respondent DDA to put the three shops in terms of the affidavit dated 22nd November, 2010 of the Petitioner to a draw of lots within six weeks of today. A Demand-cum-Allotment Letter of the shop to which the Petitioner is so found entitled in the draw of lots be issued to the Petitioner immediately thereafter;

b. the intimation of the date of draw of lots be given to the Petitioner to enable the Petitioner to be present therefore if so desirous.

c. the demand for the price of the shop so allotted to the Petitioner be made at the rates as applicable on 5th January, 2001 and if the shop was not in existence on that date, of the rate applicable/fixed when the shop first came into existence.

d. if the price claimed from the Petitioner is of 5th January, 2001, the Petitioner shall be entitled to interest @10% per annum on the amount of Rs. 3,68,265/- aforesaid deposited by him from the date of deposit till 5th January, 2001; however if the price is of any date after 5th January, 2001, the Petitioner shall be entitled to interest @10% per annum on the amount of Rs. 3,68,265/- deposited by him from the date of deposit till the date of fixation of price claimed from the Petitioner;

e. the amount already deposited by the Petitioner with the Respondent DDA and which continues to be with the Respondent DDA, be adjusted in the price so due of the shop to the Petitioner;

f. the Petitioner to deposit the balance amount if any due from the Petitioner within the time permitted in the Demand-cum-Allotment Letter;

g. the possession of the shop be given to the Petitioner in accordance with the rules.

The counsel for the Respondent DDA however states that he is not aware that the aforesaid shops are still available or not.

He may inform on the said aspect on or before 24th August, 2011.

The petition is disposed of with No. order as to costs.