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Madan Lal Mokhawal v/s Delhi Development Authority

Company & Directors' Information:- MADAN DEVELOPMENT PVT LTD [Strike Off] CIN = U45203WB1979PTC032311

    W.P.(C) 15212 of 2004

    Decided On, 21 February 2005

    At, High Court of Delhi


    For the Petitioner: R.K. Saini, Advocate. For the Respondent: Anil Sapra, Advocate.

Judgment Text

S. Ravindra Bhat, J.

1. By this petition a direction is sought for setting aside/quashing a decision of the Delhi Development Authority (DDA) cancelling the allotment of a flat to the petitioner by reason of non-payment of the demand.

2. The petitioner had registered himself in the 'New Pattern Registration Scheme, 1979' (hereinafter called 'TheScheme'). Upon his transfer to Saoner, District Nagpur, the petitioner intimated DDA about the change in his address by a letter dated 9.10.1999.

3. Apparently, the petitioner’s name figured in a draw of lots and he was declared successful, on 15.9.1998.Consequently, a demand-cum-allotment letter was sent to the old, previous address of the petitioner, despite his having intimated about the change in address. The letter was received back leading to its being dispatched again by courier service some time in February, 1999. The petitioner could not be served with the demand-cum-notice and the courier returned the communication, as undelivered. The DDA made no further attempts. After expiry of the date stipulated in the demand-cum-notice, the allotment was cancelled.

4. The petitioner alleges that he did not receive the allotment letter from DDA and he visited its offices on 26.7.2002 to enquire about the status of his registration.He was then informed about the draw of lots being held in 1998, his allotment pursuant to such draw, the dispatch of the allotment letter, its return and cancellation.The petitioner unsuccessfully represented to the DDA. In these circumstances he has moved this Court under Article 226 claiming an appropriate direction.

5. The DDA in its return has not disputed the allegations contained in the petition.It avers that in the first attempt the demand-cum-allotment letter was sent to the old, New Delhi address.Later it was sent to his changed address through courier which was received back unserved. The DDA avers that on 18.9.1998 it had in fact advertised in leading newspapers about allotment of various registrants with their priority numbers; that the petitioner’s priority number was also included in this publication.The DDA has also averred that on 21.11.2001 it decided that in cases where change of address had been intimated by the allottee but had not been recorded by the DDA and the allotment letters were sent at the old or wrong address, the allottee would be offered the flat at the same price given in the original demand letter without payment of interest. However, it has been further averred that the petitioner had been given a priority number in 1989 and that when in fact he was allotted a flat in 1998, this was published in the newspapers in addition to being intimated in the normal course. On this ground, the DDA resists the petition.

6. Mr.R.K. Saini, learned Counsel submits that the petitioner cannot be made to suffer on account of lapses of the DDA.When the petitioner shifted his residence from Delhi, he duly and promptly intimated DDA about the correct address.However, when the allotment took place in 1998, the intimation was first sent to the old address. Later it was sent to the correct address through a courier which was received back unserved by the DDA.Learned Counsel submits that such mode of service is unknown and in any case not recognized by law or practice in such cases. On this count he submits that the petitioner’s name should be included in a draw of lots and he should be offered a flat at the rate prevailing when the allotment was made in his favour in 1998. Mr.Saini had also relied upon a decision of this Court dated 15.12.2004 in WP(C) No. 19095/2004 and connected cases namely, Surinder Kumar Mehta v. Delhi Development Authority.In that case several other decisions dealing with facts situations arising out of omissions in the amendment of the Scheme were considered;and the approach to be adopted in cases where registrants were intimated about allotments, at wrong addresses, were indicated.The Court held, inter alia that:

'Reasoning to be found in the aforementioned decisions is that DDA would be liable to charge the price as on date when priority of the registrant matured and DDA was negligent in either not entering the name of the registrant of the draw of lots or posted the allotment letter at the wrong/previous address.Further whenever the allottee responded to DDA with promptness and brought to notice of DDA and its mistake and did not approach the Court belately, interest liability was not fastened on the allottee. Where allottee was negligent in not enforcing his right within reasonable time, interest liability was saddled on the allottee.'

7. Mr.Anil Sapra, learned Counsel for DDA submits that even though the initial intimation was undoubtedly sent at the old or wrong address, the DDA cannot be found fault in this case for two reasons:

1. The DDA in fact followed up its action by publishing the result of the draw in this case in newspapers.This meant that all concerned had an opportunity of informing themselves about the result.

2. In any case DDA did its best, as is evident from the fact that it sent the allotment letter to the correct address through courier.It cannot be faulted merely because the letter could not be served upon the petitioner.It is further submitted that service of intimation by courier is one of the permissible modes, and there was no obligation to send the allotment letter by registered post, in the event of an unsuccessful attempt through courier service.

8. The decision in Surinder Kumar’s case (supra) has dealt with various situations.The Court, after considering other judgments, held that the conduct of an aggrieved allottee has to be balanced with the fault alleged against DDA.This reasoning was on the basis that all registrants were assigned priority numbers and depending upon the seniority of such priority number, were expected to show some diligence in making inquiries. It was, therefore, held that generally speaking, a registrant whose allotment is cancelled, is not expected to follow up on almost day-to-day basis and a reasonable margin of time ought to be allowed to him before which he would be under an obligation to enquiry from the DDA. It was held that such reasonable time period would be about 2 to 4 years from their date of actual allotment after which the delay in approaching the Court for relief would have to be reckoned against him.

9. If one applies the ratio in Surinder Kumar’s case, it would be clear that the dispatch of the allotment letter to the correct address albeit through courier was only some time in February, 1999.If a reasonable margin of time as spelt out in Surinder Kumar’s case is given, the petitioner approached the DDA in July, 2002 itself after which he moved the present petition, in the year 2004.Hence, applying the ratio in that judgment I am of the view that the petitioner is entitled to relief and the DDA has to offer a flat for the same cost as was offered to him in the year 1988.

10. One last contention, requires consideration.The learned Counsel for the petitioner had asserted that service through courier is not recognized by law as far as these proceedings are concerned. Mr.Sapra, learned Counsel for DDA on the other hand, submits that there is no obligation to serve through registered post; it would suffice if the registrant is intimated through some normal mode which may include service by courier.

11. The discussion with regard to service in my view has to be in 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 Ruleor regulation made thereunder to be served upon any person shall, save as otherwise provided in this Act or such Ruleor regulation, be deemed to be duly served-

(a) x x x

(b) x x x

(c) x x x

(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 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. Sections 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 instance personal service upon the noticee. In the event of the person not being found,the mode of affixation is permitted. The only other mode recognised is through registered post.It may be kept in mind that the strict letter of Section 43 may not, prima facie, be applicable, as the notices are not statutory. Yet, it is to be remembered thatDDA 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, including the one relating to mode of service would constitute norms imposed by the statute, and would bind the DDA. Consequently, failing the mode of a personal tender of the comunication, the DDA cannot escape its obligation to serve the notice of 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 a

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t 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. 14. In view of the above findings, the petitioner is entitled to the relief claimed.I, therefore, direct the DDA to restore the registration of the petitioner, and include his name, in the next draw of lots, in the same zone where he was originally offered a flat when his name figured successfully in the draw of lots held on 15.9.1998.The DDA is further directed to charge only the cost applicable on the date of such allotment. In other words, the cost indicated in the demand-cum-allotment letter issued by the DDA on 15.9.1998 shall be the one indicated in the demand to be raised after the draw of lots held pursuant to this judgment. 15. The above directions shall be complied with by the DDA within the next six weeks. 16. Writ petition and applications are disposed of in the light of the above directions with no order as to costs.