11. * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Delivered on: 15.04.2010 + W.P.(C) 6991/2003 NAND KISHOR KHANNA ..... Petitioner Through : Mr.Riaz Mohd. versus THE CHAIRMAN DDA & ORS. ..... Respondents Through : Ms. Renuka Arora, CORAM: HON'BLE MR. JUSTICE G.S.SISTANI 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? G.S.SISTANI, J. (ORAL) 1. Rule. With the consent of counsel for the parties, writ petition is set down for final hearing and disposal. 2. Brief facts of the case, as set out in the present petition, are that in the year 1985, based on an advertisement published by the respondent DDA in the local newspaper, petitioner applied for a SFS, Type II Flat, in Madhipur by application no.015487 vide Registration no. 030801. Vide FDR no.008758 dated 24.7.1985 petitioner deposited Rs.10,000/- as the booking amount. The estimated date of handing over the possession of the flat was in the year 1990. In the year 1987, in a draw held on 31.12.1987, petitioner was allotted a flat on the ground floor in Category II, Pocket IV, Madhipur, New Delhi, and a demand-cum-allotment letter dated 8.1.1988 was issued to the petitioner. The petitioner was called upon to deposit Rs.2,21,300/- as the estimated total cost of the above said flat, which was to be paid in four installments, as per the following schedule: First Rs.55325 - 1.10.87 Second Rs.44260 - 1.3.88 Third Rs.55325 - 1.8.88 Fourth Rs.44260 - 1.1.89 3. As per the petition, the petitioner paid the installments on 1.10.1987, 1.8.1988 and 1.1.1989 on the scheduled dates. Thereafter in the year 1996, the petitioner received a demand- cum-confirmation letter on 16.7.1996 from the DDA informing the petitioner that instead of Ground Floor a Third Floor flat bearing no.296, Type II, Pocket III, had been allotted to him. The petitioner was called upon to pay the fifth installment, in the sum of Rs.2,45,000/-, which amount was paid by the petitioner on 21.11.1996 and also submitted various other documents vide letter dated 16.12.1986. Thereafter the petitioner made a representation to the DDA requesting them for possession of the flat on 30.9.1996. However, petitioner was informed by a letter dated 27.6.1997 to pay a further sum of Rs.82,517/-. As the amount was not paid, a show cause notice was issued by the respondent DDA to the petitioner, which was duly replied by the petitioner. 4. Grievance of the petitioner is that till date despite the petitioner having deposited initially a sum of Rs.2,21,300/- within the time allowed and subsequently Rs.2,45,000/- in the year 1996, possession of the flat has not been handed over to him. 5. Learned counsel for the petitioner submits that subsequently the DDA has waived off the sum of Rs.82,571/- which was demanded from the petitioner. This fact is not disputed by counsel for the DDA. 6. There is no explanation whatsoever from the DDA as to why the possession of the flat was not handed over to the petitioner after the petitioner made the entire payment or at least after Rs.82,571/-, as demanded by the respondent DDA, was waived off. 7. Pursuant to an order of this Court the respondent DDA has filed a calculation sheet with respect to flat no.33, Type II, Ground Floor, 12 Paschim Vihar, New Delhi, which has now been allotted to the petitioner. As per the calculation sheet, this flat has an excess area of 21.59 sq. meters (courtyard), for which the DDA has demanded Rs.5,25,961/- being the current cost of the courtyard. 8. Learned counsel for the petitioner submits that the petitioner cannot be called upon to pay the market rate for the excess area as the possession of the flat was not handed over to the petitioner due to the fault of the respondent DDA. Counsel further submits that in any case the petitioner is not interested in the excess area being offered by the DDA and he should be allotted a flat of the same area, which was initially allotted to him for which the entire payment has been made as the petitioner would not be in a position to take the excess financial burden, as demanded by the respondent DDA. 9. I have heard learned counsel for the parties and given my thoughtful consideration to the matter. The basic facts are not in dispute that the petitioner applied in the year 1985 to the DDA for allotment of a flat. As per the demand letter issued, petitioner had paid the first four installments amounting to Rs.2,21,300/-. Based on the demand raised by the respondent DDA, the petitioner deposited the fifth installment in the sum of Rs.2,45,000/- with the respondent DDA. The DDA called upon the petitioner to pay additional sum of Rs.82,571/-, which was not paid. However, subsequently, the DDA has waived off this amount. During the pendency of the petition, DDA has agreed to hand over the possession of flat bearing no.33, Ground Floor, 12 Paschim Vihar, New Delhi, to the petitioner on the petitioner depositing the price for the excess area, which is 21.59 sq. meters. In the calculation sheet, DDA has demanded Rs.5,25,961/- for this excess amount as per the current cost for the courtyard. Taking into consideration the facts of this case, especially, when all payments as demanded by the DDA stand paid by the petitioner in the year 1989 and the fifth installment stands paid in 1996 the petitioner cannot be called upon to pay for the excess area at the current cost, the petitioner has been deprived of a flat despite making the entire payment to DDA, I am of the opinion that the petitioner cannot be saddled with current cost for the excess area for the lapse of the DDA, in not handing over the possession of the flat, which was allotted to the petitioner, as far back as in the year 1996. There is no justification to demand the current cost of the courtyard. Accordingly, present petition is allowed. The DDA would be entitled to raise a demand on the petitioner for the excess area at the cost of the year 1996. Accordingly, the fresh demand shall be raised within a period of four weeks from today. On completion of all formalities possession of the flat shall be handed over to the petitioner as expeditiously as possible. Writ petition stands allowed in above terms. G.S. SISTANI, J. April 15, 2010 'msr’