Federation Of Ashok Vihar ... vs Union Of India & Ors.
1999 Latest Caselaw 514 Del

ORDER

S.N. Variava. CJ.

1. This LPA is against the Order dated 27.5.94. By this Judgment a number of Writ Petitions were disposed of. All the Writ Petitions had been filed challenging the conversion fees fixed for converting the leasehold interest in lands in Delhi into freehold interest. Lands belonging to the Government had been allotted to several persons either directly or through in group housing societies or by the DDA. All the allottees had executed Lease Deeds which were generally for a period of 99 years. Under the Lease Deeds certain restrictions were imposed about the manner in which the land could be used, as well as regarding alienation of the leasehold property by the lessee. Except in cases of allottees under the rehabilitation scheme, whenever the original allottee alienated his interest, 50% of the unearned increase had to be paid to the Government. These conditions applied to subsequent alienations also. In cases of allottees under the rehabilitation scheme, the first transfer was not governed by this requirement of paying 50% unearned increase but all subsequent transfers were governed by this requirement.

2. All the petitioners, in all the petitions, had not challenged the proposal for conversion of leasehold interest into freehold interest. The challenge in all the petitions was merely to the conversion fee, fixed under the scheme. All the other Petitioners appear to have been satisfied by the impugned Judgment dated 27.5.94. Appeal has been filed only by these Appellants who were petitioners in Writ Petition No. 146/93.

3. In this appeal, the conversion fee in respect of plots as well as flats in an area known as Wazirpur/Ashok Vihar has been challenged. Under the scheme the conversion fees in respect of plots have been laid down as follows:

 Plot area in sq. mtr.         Conversion fee to        Formula for
                              be calculated on         calculating 
                              the following basis.     conversion fee 
Upto 50                       NIL                      NIL
Above 50 and upto 150         7.5% of notified and     0.075 and RX
                              rate per sq. mtr. for 
                              area above 50 sq. mtr. 
Above 151 and upto 250        Conversion charges       (7.5 XR) plus
                              applicable to 150        0.1xRX (P-150)
                              sq. mts. plus 10% of 
                              notified land rate per 
                              sq. mtr. for 
                              area above 150 sq. mtr.
Above 250 and upto 350        Conversion charges       (17.5xR) Plus
                              applicable to 250        (0.15xRX (P-250)
                              sq. mts. plus 15% of 
                              notified land rate 
                              per sq. mtr. for area
                              above 250 sq. mtr. 
Above 355 and upto 500        Conversion charges       (32.5 XR) plus
                              applicable to 350        (0.2xXR (p-350)
                              sq. mts. plus 20% of 
                              notified land rate per 
                              sq. mtr. for area above 
                              350 sq. mtr. 
P- Plot area sq. mtr. 

 

Land rates for residential purposes in Rupees per sq. mtr. as notified by the Ministry of Urban Development. For the period upto 31.3.1997 the conversion charges would be calculated on the land rates notified by the inistry of Urban Development w.e.f. 1.4.1987 vide their latter No. J-22011 4/37LDD dated 1.6.1967 (Annexure-C). For the period beyond 31.3.1992 the notified land rates applicable for calculating the conversion charges would be those prevailing on the date of conversion.

For areas where rates have not been notified by the Ministry of Urban Development, the residential land rates notified by the Delhi Development Authority for the areas would be applicable."

4. It is pointed out that the conversion fees are based on the land rates notified by the Ministry of Urban Development w.e.f. 1.4.1987. It was submitted that the DDA had issued a brochure. Wherein, under Annexure-C in item No. 37, for the area of Wazirpur/Ashok Vihar the land rate w.e.f. 1.4.87 was shown to be Rs. 3225. It was submitted that land rate for Wazirpur/Ashok Vihar could not be Rs. 3225 but should have been Rs. 1510.

5. In support of this reliance was placed upon a letter dated nil January, 1990 issued by Delhi Administration to the Secretary DDA wherein market rate of land for the purpose of recovery of unearned increase on the value of land/plots consequent upon the transfer or sale of residential plots had been fixed. It was pointed out that in Annexure-A to this letter for Wazirpur the rate had been fixed at Rs. 3225. However, for Ashok Vihar, the rate had been fixed at Rs. 1510. It was submitted that this clearly indicated that for Ashok Vihar the market rate of land w.e.f. 1.4.87 was only Rs. 1510. It was submitted that the DDA could not have fixed the land rate of Wazirpur and Ashok Vihar at Rs. 3225. It was submitted that the rate of Rs. 3225. in Annexure to the letter of Delhi Administration was for Wazirpur Industrial Area and not for Wazirpur Residential plots. It was submitted that so far as the residential plots were concerned, the rate could only be Rs. 1510. It was submitted that the DDA should have taken this rate for the purpose of calculating the conversion fees.

6. Before us, it is an admitted position, both by the Appellants and the Respondents, that there is no difference between Wazirpur and Ashok Vihar. It is an admitted position that initially the name of the colony was Wazirpur. In Wazirpur there is an industrial area. However, apart from that industrial area, there also are residential colonies known as Wazirpur Residential Colonies No.I, II and III and a group housing colony known as Wazirpur Residential Colony No. IV. Wazirpur Residential Colonies have, over the course of years, come to be popularly known as Ashok Vihar.

7. We are unable to accept the submission that in the Annexure to the letter of Delhi Administration, the rate of Rs. 3225/-, which is shown for Wazirpur, was for the industrial area. The letter itself makes it clear that these are market rates for transfer or sale of residential plots. Thus the rate of Rs. 3225, which has been prescribed for Wazirpur is undoubtedly in respect of Wazirpur Residential Colonies 1, II, III and IV. Of course, the Annexure to the letter also shows the rate of Ashok Vihar to be Rs. 1510/-. However, admittedly Ashok Vihar is the same as Wazirpur. It is thus clear that in the Annexure to this letter, there is a mistake. the same area has been shown twice. Different rates have been shown for the same area. However, this letter has nothing to do with conversion fees.

8. DDA while issuing its brochure has not made this mistake. They have correctly put Wazirpur/Ashok Vihar under the same item and put the same rate for both. As there was some doubt about Wazirpur and Ashok Vihar the Learned Judge had in the impugned judgment directed the Respondents to issue a clarification Respondents have since clarified the Wazirpur/Ashok Vihar are one and the same and that the applicable land rate is Rs. 3225.

9. To be remembered that valuation of land could be done in more ways than one. Each method may lead to a different result. Just because one method of figure appears more attractive to some one, is no reason for the Court to interfere. Courts should not expect exact division or valuation on scientific lines. That would be practically impossible in cases like this. Courts should only interfere if it is shown that what is proposed is arbitrary or discriminatory. All that the Court has to see is whether a uniform principle is followed and whether the subjects are treated fairly and reasonably.

10. Apart from claiming that the land rate should have been Rs. 1510, the Appellants have placed no material on record to show that the rate of Rs. 3225 is arbitrary or unreasonable. On the contrary. It appears to us that the correct rate should be Rs. 3225 and not Rs. 1510. In our view, Wazirpur/Ashok Vihar are better colonies than pitampura and Haiderpuri. Therefore the rate for Wazirpur/Ashok Vihar could not be the same as for Pitampura and Haiderpuri. It would definitely be higher than Pitampura and Haiderpuri. It also had to be higher than Shalimar Bagh. It thus becomes clear that in the Annexure to the letter of Delhi Administration the first item showing the rate to be Rs. 3225/- is correct and the subsequent item showing rate to be Rs. 1510/- is a mistake. Thus in our view, there is no arbitrariness or nreasonableness in fixing land rate for Wazirpur/Ashok Vihar at Rs. 3225.

11. It was next submitted that the conversion rate an respect of flats was absolutely arbitrary and that the same was required to be struck down. In respect of flats the conversion rate is as follows:

(C) FOR FLATS/TENEMENTS ALLOTTED BY DELHI DEVELOPMENT AUTHORITY AND ITS SLUM WIND ON LEASEHOL BASIS.

 Category of    East      North/West      South     Central 
Flats/         Zone      None           None      None
tenements
Janta          Nil       Nil            Nil       Nil
LIG            3000      9000           12000     15000
MIG/SFS(I)     4750      12750          17000     21250
TYPE-II
SFS(II)/MIG    6250      18750          25000     31250
 TYPE 
-II-A/TYPE II-B
SFS(III)       7,500     22,500         30,000    37,000

 

 (D)  FOR PLOTS CONSTRUCTED BY GROUP HOUSING SOCIETIES ON LAND  ALLOTTED  BY 
DELHI DEVELOPMENT AUTHORITY. 
 Plinth Area    East      North/West     South     Central
of Flat/       Zone      Zone           Zone      Zone
tenement
in sq. mtrs. 
upto 30        Nil       Nil            Nil       Nil   
above 30 and 
upto 50        3,000     9,000          12,000    15,000 
Above 50 and 
upto 75        4,250     12,750         17,000    21,250
Above 75 and 
upto 100       6,250     18,750         25,000    31,250 
Above 100 and 
upto 125       7,500     22,500         30,000    37,500 
Above 125      Conversion charges would be on the basis of 
               the formula for built up plots refer red 
               to in para A of Annexure us the plot area 
               would be deemed to be 1.2 plinth area of 
               the flat."

 

12. It was submitted that the conversion rates for flats should also have been based upon the land rates for residential purpose as notified by the Ministry of Urban Development w.e.f. 1.4.87. It was submitted that conversion rates fixed for flats were absolutely arbitrary and had no nexus with the conversion rates fixed for the plots. It was submitted that the conversion rates fixed for flats resulted in an inequitable position inasmuch as persons having flats or tenements would end up paying far more than those who have been allotted plots. By way of an example it was submitted that many buildings had two flats whilst others had three flats or even more. It was submitted that in respect of plots having similar size flats, (like LIG buildings), where there were only two flats, each flat owner had to pay Rs. 9000 as conversion fee. Thus for this building a conversion fee of Rs. 18,000/- would be paid. Whereas in a building, where there were three flats, the three flats owners would be paying Rs. 27,000/-. It was submitted that this was discriminatory inasmuch. In one building the conversion fee was Rs. 18,000/-, whereas for identical flats in another building the conversion fee was Rs. 27,000/-.

13. It was also submitted that in case of plots, an area of 50 sq. mts. was exempt from paying any conversion charges. It was submitted that each flat owner may possibly be holding less than 50 sq. yards of land. It was submitted that even if the area occupied by the plot was more than 50 sq. yards while calculating the conversion charges for flats an area 50 sq. yards was not excluded. It was submitted that thus the owner of a plot would end up paying less conversion charges than the flat owners.

14. It was further submitted that in Block 4 of Ashok Vihar Phase II, there were two identical areas of land, one of which had been divided into 90 plots of the same size and the second one has been utilised for construction of 184 flats. It was submitted that even though the total area of both these plots was more or less equal, the plot owners merely paid Rs. 4102 as conversion fees for a plot of 80 sq. yards. It was submitted that thus all the plot-owner paid total conversion fees amounting to a maximum of Rs. 3,70,00/-. It was submitted that, on the other hand, 184 flat-owners would have to pay @ Rs. 9000/- per flat and would have to pay total of Rs. 16,56,000/-. It was submitted that this was absolutely discriminatory and arbitrary. It was submitted that in the same scheme such differentiation should not be allowed to exist.

15. We are in agreement with the learned Judge when he holds that there can be no comparison between the flats and plots of land. In case of plots of land the conversion fee could be based upon the area of the land. However, in respect of the flats it would be difficult to exactly calculate the conversion at based upon the area of land. To be remembered that this is not a scheme framed for a particular locality. This is a scheme framed for the whole of Delhi. Thus the scheme cannot be termed void on basis of an isolated instance or example taken only from one locality. In case of plot of land the actual area owned by an allottee is known. In case of flats, the DDA has, in a number of cases, provided common areas and facilities like parks, schools, post office etc. There is no method by which this common area, can be calculated. There is certainly no method by which the benefit gained by having the common areas and common facilities can be calculated. There are many areas in Delhi where the common area facility is not available to the plot owners but only available to the flat owners. Also as stated above valuation of the land is not an exact science. There can be many methods which can be adopted. Merely because to the Appellant one method appears more attractive, does not mean that is the only method or that other methods are arbitrary or discriminatory. It is only in cases of polbably arbitrary exercise of power that this Court can interfere. The Court cannot expect the State to resort to microscopic classification in a scheme take the present. It would not be possible to developed formula which leads to identical results in every case. All that the Court has to see is whether the scheme applies uniform principles and whether it is fair and reasonable. In our view, it is erroneous to compare the allottees of plots with the flat owners. In our view it is not possible to accept sub-

mission that in respect of that owners also the conversion was should be based on the area of land.

16. It must also be remembered that this is the scheme for the residents of the whole of Delhi. As stated earlier, the allottees had to pay 50% of the unearned increase to the Government. Also there were restrictions regarding alienation. By this scheme, the allottees are offered a chance to convert the leasehold interest into freehold interest. Even though the scheme was propounded in 1992, the land rates made applicable was that in effect from 1.4.1987. In 1992, market rates were much higher than those which prevailed in 1987. Yet, the rates of 1987 were taken. In our view, far from being arbitrary or discriminatory, this is a scheme which is beneficial to the residents of Delhi. This is not a scheme which the Court should struck down. There is no reason why the Court should interfere with the rate prescribed. To be remembered that now all. except the Appellants, appear to have accepted it.

17. It may only be mentioned that in the impugned Judgment, the Leaned Judge had directed the Respondent to issue certain clarification by a certain date. If those clarifications were no issued by that date, then the scheme was declared to be inoperative and unenforceable. We are told that the clerification was not issued by the date mentioned in the judgment. Even the Appellants do not want the scheme to stand struck down. We are not required to decide in this Appeal and/or express any opinion on the question whether by virtue of the directions in the impugned Judgment the scheme can be said to be inoperative or unenforceable. That question is, therefore, left open.

18. In the above view, the Appeal stands dismissed.

19. Before we part, it must be mentioned that by an interim order dated 19.8.96, the Appellants have been permitted to deposit only Rs. 1612.50 per sq. mts. We are informed that some of the parties have deposited only this amount, whereas many others have deposited Rs. 3225/- per sq. mts. We are informed that in respect of the parties who have deposited only Rs. 1612.50 per sq mts.the Govt, has not converted the leasehold interest into freehold interest. This is because of the clarification issued by the Supreme Court on 7.1.1997. Now, all persons who have deposited Rs. 1612.50 will be required to deposit the balance amounts. As the Respondents have not yet converted those leasehold interest into freehold interest they will only now be considering the application for conversion of these parties. Repondents will be granting conversion only at this stage. Had these parties known that the Respondents were going to do this, they would undoubtedly have applie now and would not have deposited Rs.1612.50. Thus, it would be inequitable to expect these applicants to pay interest on the balance amount not deposited with the Respondent. We, thus direct that no interest with be payable on the balance amount.