V.P. Singhal Vs. Delhi Development Authority - Court Judgment

Excerpt:
the case examined the effects of delay in handing over possession of a flat - the allottee could either put an end to the contract, seek refund of the amount paid by him, and hold the respondent responsible for breach of contract; or take the delivery of the possession of the allotted flat the petitioner did not exercise any of the two options at the relevant time the court held that the petitioner was disentitled to receive the interest claimed but was liable to pay penal interest on the installments falling due in addition, since the allotment of the flat stood automatically cancelled for non-payment of the installments, the petitioner was liable to pay restoration charges to the respondent - - however, the respondent failed to take any action on the said representation. since the petitioner failed to deposit the amount demanded in the said letter, the allotment stood automatically cancelled. bhattacharjee's case, (supra) with we fully agree, the options open to the petitioner were either to put an end to the contract, seek the refund of the amount paid by him, also hold the respondent liable for breach of contract or to have taken the delivery of the possession of the allotted flat and then have compelled the respondent to provide the civic amenities complained of. however, the petitioner failed to exercise either of these two options open to him' at the relevant time.k.s. gupta, j.(1) petitioner's case in this petition under article 226 of the constitution of india is that the delhi development authority, respondent launched 'registration scheme on new pattern 1979' (for short 'the scheme') which was opened on september 1,1979 and closed on september 30,1979. the petitioner being eligible under the scheme applied for registration by making a deposit of rs. 4,500.00 and he was registered under the scheme in mig category. it is alleged that after 14 years of wait the petitioner vide allotment-cum-demand letter dated august 27,1993 was allotted flat no. 307, pul pehladpur, delhi, on cash down basis at the cost of rs. 6,01,500.00 by the respondent. however, as a result of decision, in retired/retiring public servants forum v. dda, dated february 3, 1995, the respondent held a fresh draw in which the name of the petitioner was also included and he was allotted the same flat no. 307, pul pehiadpur, at the same cost of rs. 6,01,500.00 on hire-purchase basis. revised allotment-cum-demand letter dated may 12/15, 1995 (annexure p 2) was thereafter issued by the respondent to the petitioner asking him to pay a sum of rs. 20,000.00 as confirmation deposit on or before june 14, 1995, first installment of rs. 2,58,644.00 by july 14, 1995 and 120 monthly installments of rs. 5,559.35p. each beginning from july 10, 1995. petitioner deposited the confirmation amount of rs. 20,000/ on june 8, 1995 and first installment of rs. 2,58,644.96p. on july 14, 1995. necessary documents for taking possession of the allotted flat were sent by the petitioner to the respondent along with covering letter dated august 2, 1995. it is further alleged that the petitioner visited the site to inspect the flat allotted to him and to his shock and surprise he came to know that the basic amenities such as water, electricity, sewerage were not available in the area and the provision for them was likely to take at least another 6 to 8 months. thereforee, the petitioner made a representation on august 9,1995 (annexure p-5) to the respondent pointing out lack of civic amenities in the area and requiring it to pay interest @ 18% per annum on the payment already made till the basic amenities were made available for taking possession of the allotted flat. payment of monthly installment of rs. 5,559.35p. was further sought to be deferred till then. however, the respondent failed to take any action on the said representation. it is prayed that a writ of mandamus or any other appropriate writ, order or direction may be issued directing the respondent to defer monthly installments towards the cost of the flat starting from july 10,1995 and also to pay interest @ 18% per annum on the deposit of rs. 2,89,744.34p. from july 14, 1995 till the date possession letter confirming the availability of the basic amenities is issued to the petitioner. (2) in response to the show-cause notice respondent filed reply on the affidavit of r.l. srivastava, director (h-ll). it is stated that pursuant to a decision of the full bench petitioner was allotted a flat in pul pehladpur and allotment-cum-demand letter dated may 12,1995 was issued to him. since the petitioner failed to deposit the amount demanded in the said letter, the allotment stood automatically cancelled. it is further stated that as per the report of the assistant engineer the area where the petitioner has been allotted flat stands electrified and water services are available there. sewerage and drainage too are available and functioning properly at the site. (3) on april 8, 1996 in c.m. 2361/96 respondent was directed to deliver the possession of the allotted flat to the petitioner if he pays the installments which have fallen due up to the date within a period of four weeks. this direction was made without prejudice to the liability of either party to make the payment of interest. thereafter on july 19, 1996 mr. n.k. kaul appearing for the respondent made the statement that the possession of the flat has been delivered to the petitioner. (4) contention advanced by mr. r.k. saini appearing for the petitioner was that as flat no. 307, pul pehladpur allotted to the petitioner did not have the amenities such as water, electricity and sewerage in august, 1995, the petitioner is not only entitled to defer the monthly installments starting from july 10, 1995 but he is also entitled to claim interest @ 18 per annum on the amount of rs. 2,89,774.34p. paid to the respondent. liability to pay penal interest and restoration charges by the petitioner was further disputed by him. (5) submission made by mr. saini and the claim made in the petition are fully answered by a decision of this court in k. bhattacharjee v. dda, : 63(1996)dlt467 . a batch of writ petitions was disposed of by the said decision and while dealing with the argument identical to that raised before us it was observed on page 476 of the report : 'can the allottee refuse to make the payment if he is aware that the flat allotted to him and over which possession is being offered, is not accompanied by requisite facilities and amenities so as to make the flat habitable one as per allottee's hopes, if not high hopes? the learned counsel for the petitioners have forcefully appealed' 'a flat' means a flat fit for human residence' and would not mean a flat for the sake of its name. the learned counsel are right to the extent of making this submission. the dda being a public authority, having offered flats, must offer such flats as will be habitable by the allottees. however, the real question arising for decision is little different. firstly, it is not the case of the petitioners that the flats by themselves are not habitable on account of say structural or constructional defects. they say that the external facilities and amenities are not available. what is being contended is that not the flats, but the colony is not habitable. secondly, we have already held that the question of delivering possession by the dda would arise only when the allottee has made the payment. having made the payment and having discharged his obligation under the contract, he would call upon the dda to deliver the possession and while taking the possession the allottee would have every right to insist on the flat being habitable and fit for human residence. if the dda fails in discharging its such obligation, two courses are open to the allottee. he may put an end to the contract and seek a refund of the amount paid by him, also hold dda liable for breach of contract, or he may take delivery of possession and then compel performance by the dda of its unfulfilled obligations.'obviously in view of the ratio in k. bhattacharjee's case, (supra) with we fully agree, the options open to the petitioner were either to put an end to the contract, seek the refund of the amount paid by him, also hold the respondent liable for breach of contract or to have taken the delivery of the possession of the allotted flat and then have compelled the respondent to provide the civic amenities complained of. however, the petitioner failed to exercise either of these two options open to him' at the relevant time. he is thus not only disentitled to receive the interest claimed but is also liable to pay penal interest on the installments falling due in between july 146 10, 1995 till payment was made by him pursuant to the order dated april 8,1996. as the allotment of the flat stood automatically cancelled for non-payment of the installments amount, the petitioner is further liable to pay the restoration charges to the respondent. in the result, the petition is disposed of by allowing six weeks time to the petitioner to make payment of penal interest on the installments falling due between july 10,1995 till payment was made by him pursuant to the order dated april 8,1996 along with the restoration charges. on the petitioner making default in the payment of interest and restoration charges within the period aforementioned the respondent will be at liberty to decline restoration of the allotment of flat no. 307, pul pehladpur, in petitioner's favour.