J&K HC | Mere technicality in adherence to notice should not result in defeating legitimate interests

Jammu and Kashmir High Court: Ali Mohammad Magrey, J. allowed the writ petition and directed the respondents to indemnify the petitioner.

The briefly stated case of the petitioner was that, the respondents invited applications for allotment of flats and the petitioner thereafter submitted a form along with a deposit of Rs 3 lacs in July 2013. The petitioner received a notice in November, 2014 wherein 10 days’ time was given to him to deposit the first instalment which time had already elapsed and it came to the knowledge of the petitioner that the flat had been allotted to him. The petitioner immediately approached the respondents, who provided him with the copy of the letter of intent along with a copy of payment schedule and was told that same was posted to him in December, 2013.

It was submitted that the petitioner had already deposited an initial amount and wasn’t conveyed the letter of intent besides the notice. It was further submitted that the petitioner filed a representation before the respondents, wherein the petitioner prayed for extension of at least three months for making the payment of 1st instalment in the backdrop of the fact that due to the floods in the valley in the year 2014, the petitioner had suffered the huge loss and was not in a position to pay.

It was further submitted that the petitioner after waiting for the response to his representation and also an extension of time keeping in view the previous experience of issuance of notices and late dispatch of the same, approached the respondents but was not given any extension and was told to wait and to his surprise, the petitioner came across another notice in January, 2015 wherein he was asked to deposit the instalment by ending of January, 2015 or in default the petitioner’s letter of intent shall be treated as withdrawn and his initial deposit will be forfeited and flat re-advertised.

The petitioner being aggrieved of the above said notice, challenged the same by virtue of writ petition and this Court disposed of the said writ petition with a direction to the respondents to afford the reasonable time to adhere to the terms of notice in regard to deposit of instalment and in the event such notice not having been served upon him, the same be served after affording reasonable time to the petitioner. The petitioner served the said order on the respondents and filed a detailed representation before the respondents, who chose not to file an appeal against the said order and despite the service on the respondents well within time; no action was taken by the respondents.

The Court on perusal of the facts and circumstances of the case cancelled the impugned notice and letter of intent. Further, the earnest money of Rs 3 lacs deposited by the petitioner was forfeited and the Flat in question re-advertised was declared as being against the order passed by this Court.

The Court further pointed out that it had earlier too directed the respondents to consider the hardship encountered by the petitioner in not making the deposit of instalment on account of the cause projected taking a pragmatic view and bearing in mind that a mere technicality in adherence to notice should not result in defeating his legitimate interests in regard to the acquisition of flat.

Petition was allowed and stood quashed to the extent of forfeiture of Rs 3 lacs and by writ of mandamus. Respondents were directed to pay the amount deposited by the petitioner along with interest of 9% from the date of deposition of the amount to its realization, within a period of one month.[Fida Ahmad v. Srinagar Development Authority, 2020 SCC OnLine J&K 484, decided on 21-09-2020]

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