R.P.DEWANWALA vs VICE-CHAIRMAN, D.D.A.

BRIEFLY the facts are that the complainant is a retired public servant. He got himself registered for a MIG flat in ''Special Housing Registration Scheme of 1982 for Retired/Retiring Public Servants'' on depositing the registration amount of Rs. 10,000/- on 7.2.83. It is alleged that according to the scheme the DDA had to construct the house and announce from time to time specific area of houses and to ask the registrants to exercise their options for the areas. Later it was decided by the DDA in January, 85 to allot to the registrants the houses out of the 5000 houses, which were already under construction in different areas of Delhi. In March, 86 a draw was held by the DDA to allocate house to the registrants and result of the draw was published in the Indian Express of 18th April, 86.

IN the draw the complainant was allocated a flat in Rohini Complex. He informed the DDA that the flat was not acceptable to him as he had given his choice for a flat in South Delhi. It is alleged that without careing for his wish he was allotted the said flat on 29th August, 86. He protested against the allotment of the flat and requested the DDA to refund the registration fee in case it was not possible to allot a flat to him in South Delhi. The DDA turned down his request on the ground that it was against their policy vide their letter dated 8.5.87. He again made representations against the allotment of the flat in Rohini Complex to DDA. Ultimately the DDA cancelled the allotment and demanded a sum of Rs. 9.779.45 P. from him as cancellation charge vide letter dated 1.8.88. It is alleged that the claimant was entitled to a flat in South Delhi. Consequently it has been prayed by the complainant that the DDA be directed to allot to him a MIG flat on the ground floor in South Delhi on hire purchase basis at a price, which was charged from others in 1986-87. In case a MIG flat was not available in Self Financing Scheme (Category-II) the flat be converted into MIG, and that be allotted to him. It is further prayed that the DDA be directed to pay rupees two lacs as compensation each to him and his wife for undue suffering, Rs. 50,000/- to him on account of loss incurred by him in keeping the estimated amount of money payable on the allotment of the flat floating, from mid 1986 onwards and Rs. 50,000/- which shall have to be spent due to escallation of cost of material and labour over and above the expenditure which would have been incurred in 1986-87on the works left out by DDA and considered essential to make the flat liveable.

The complaint has been contested by the DDA. It has inter-alia been pleaded by it that the complaint is barred by limitation. On merits it is stated that the flats were likely to be constructed in West Delhi, North Delhi and trans-Yamuna area under the scheme. The progress of the construction of flats was slow and the registrants of the scheme were pressing hard for the early allotment of the flats readily available in Rohini and Trans-'' yamuna area. Such flats were allotted to the registrants through draw of lots held on 29th March, 86. The complainant was informed vide letter dated 6.1.87, 8.5.87, 3.11.87 and 23.4.88 that the change of locality from Rohini to South Delhi was not possible as per policy. The representation of the complainant dated 4.9.86 was received in the office and he was informed vide letter dated 6.1.87 that the change of locality from Rohini to South Delhi could not be acceded to. He was also advised that if the flat was not acceptable to him he should apply for cancellation of the same. A preliminary objection has been taken by the respondent that the complaint is not within limitation.

WE have heard the parties at a considerable length on the question of limitation. The complainant has argued that the onus to prove that the complaint is barred by limitation should be on the respondent. WE do not agree with his contention. Section 3 of the Limitation Act provides that every suit instituted after a prescribed period shall be dismissed although limitation has not been set-up as a defence. From a reading of the section it is evident that even if no objection regarding limitation has been taken by the defendant and the suit is barred by limitation it becomes the duty of the Court to dismiss the suit. It is, therefore, generally for the person who files a suit/complaint, to satisfy the Court that his suit/complaint is within limitation. In the circumstances of this case, we do not find that the onus to prove that the complaint is not within limitation should be placed on the DDA. Now it is to be seen whether the complaint is within limitation?. The flats were allocated in the newspaper on 18th April, 1986. The complainant, after reading the same, made a representation on 18.4.86 that the allotment in Rohini Complex was not acceptable to him and he be allotted a flat in South Delhi only. Thereafter he again made representations dated 8.5.86. A demand letter dated 25.8.86 was issued to the complainant asking him to deposit Rs. 1,11,407/- according to the conditions on which the flat was allotted to him. The complainant, after receipt of the said letter did not deposit the amount but again made a representation dated 4.9.86. Even thereafter he went on making the representations. The DDA vide letter dated 6.1.87 informed the complainant that he could not be allotted a flat in South Delhi on hire purchase basis and incase the allotment was not acceptable to him he should apply for the cancellation of the same, so that his registration money could be returned in terms of Clause 6 of the demand-cumallotment letter dated 29.8.86. Again a letter dated 8.5.87 was written by the DDA to the complainant inviting his attention to its earlier letter dated 6.1.87. He was also warned that incase the flat allotted was not acceptable to him the same would be cancelled. The complainant, however, did not deposit the balance amount in terms of the allotment letter and therefore the allotment stood cancelled. Even if the limitation is deemed to have started after expiry of one month from the date of this letter it started on 8th June, 1987.

THE complainant has urged that Article 54 of the Limitation Act applies to the present case. According to this Article, a suit for specific performance can be filed within three years from the date fixed for the performance and incase no such date is fixed when the plaintiff has notice that the performance is refused. In this case the complainant came to know finally in June, 1987 that incase he would not deposit the balance amount his allotment would stand cancelled. He did not deposit the amount in terms of the letter and therefore his allotment stood cancelled latest in June, 1987. He could file complaint within 3 years thereafter but he filed it on 20.2.91. Thus the complaint is not within limitation. The limitation for claiming compensation also arose on the same day, when the cause of action for specific performance arose. If the limitation for compensation is taken to be the same, the complaint regarding this relief is also not within time. In view of the fact that the complaint is not within limitation, it is not necessary to give decision on merits. For the aforesaid reasons we dismiss the complaint as barred by limitation with no order as to costs. Complaint dismissed.