Abdul Sattar And Anr. vs Dda And Ors.
2002 Latest Caselaw 1990 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioners claim to have been residents of Sarai Khalil from where they were removed in May 1976 for purpose of beatification of the city. The petitioner are aggrieved by the impugned demand letters dated 8.1.1998 issued to the second petitioner and dated 9.1.1998 issued to the first petitioner demanding the difference of premium, cost and ground rent in respect of flats in question being flat Nos. A-12/94-B and A-16/127-A, Inder Lok, Delhi respectively.

2. The petitioners have stated that they were never compensated for the demolition of their residential accommodation and a policy had been announced for providing tenement to each of the families consisting of seven or less than seven members while two slum tenements were to be allotted in case of families consisting of eight or more than eight members. Both the petitioner were allotted only single tenement.

3. On 23.12.1985 DDA announced a slum registration scheme and started registration for the flats. Both the petitioners registered under the scheme by paying the initial amount of Rs. 3,000/- each. On 20.1.1990 allotment cum demand letter was issued in favor of petitioner No. 1 making certain demand of payments. Similar letter was issued to petitioner No. 2 on 23.5.1990 and in the latter part of 1990 the possession of the flats were handed over.

4. As stated above in 1998 the impugned demand letters have been issued which are impugned by the petitioners as not legal and valid. It is also stated that in initial allotment-cum-demand letter, issued to the petitioners there were no endorsement prescribing as under:

"The allotment was made subject to payment of difference of premium cost and the ground rent fixed by S&JJ Department from time to time."

5. In the counter affidavit filed by respondent No. 3 it is stated that the petitioners have tried to mix up the issue of alternative accommodation made available to families whose residential accommodation were demolished at Sarai Khalil in 1976 with the cases of out of turn allotments to those persons who got themselves registered under the Slum Registration Scheme, 1985. It is stated that the petitioners along with other persons were allotted flats in question on out of turn basis as a special case on compassionate ground considering their demands for additional accommodation/bigger size of tenements. It is also stated that only provisional allotment letters were issued in 1990 and the same were subject to the terms and conditions of regular allotment and subject to payment of cost to be worked out for such allotment. The petitioners are also stated to have been given undertakings to pay the cost and increase in premium. A chart has been annexed to the counter affidavit showing the basis of calculation of the cost of the flats.

6. The undertakings filed by the petitioners have also been filed along with written submission of respondent along with note dated 19.1.1989 of the Joint Director of the respondent.

7. I have considered the submission advanced by learned counsel for the parties. The facts and record show that the petitioners were granted slum re-housing flats at Inder Lok after eviction from Sarai Khalil in 1976 but requested for the allotment of an additional flat on the criteria of a larger family. It is for this purpose that the petitioners registered under the Slum flat registration scheme, 1985. Taking into account the factual position of the petitioners, the Joint Director put up a note on 19.1.1989 for out of turn allotment to each of the petitioner at Inder Lok on cash down basis and the same was approved.

8. The allotment letters issued in 1990 itself specify the subject matter as "Reg. additional-cum-provisional out of Turn allotment of Slum Rehousing Flat at Inderlok". The letter clearly specify that the allotment of the flat is in lumpsum and in surrender of the claim for allotment of a slum flat against the registration scheme, 1985. The Cost of the flat was specified as Rs. 47,600/- an the balance amount was demanded after taking into consideration the amount of Rs. 3,000/- already paid. No specific flat number was given in this but in the subsequent communication "temporary allotment order" the specific flat number has been given. Clause 7 of the terms and conditions of the allotment prescribed as under:

"7. "Allottee is liable to pay the cost of liquidation of the Slum Rehousing Flat together with ground rent as fixed and demanded by this office."

9. The balance amount in terms of the impugned letters has been asked for on the basis of final costing stated to have been done by the Slum and JJ department. It has been worked out as Rs. 1,28,200/- and ground rent of Rs. 550/- per annum and the balance amount has been demanded after taking into consideration the payment already made. The basis of the cost of construction is set out in Annexure R-1 based on the year of completion. The cost of construction has been taken into account and depreciation has also been provided to work out the disposable cost. There is difference in the price of the two flats in respect of the two petitioners as the floors are different. The relevant portion of the said chart is as under:

For 960 Tenements

1) Year of Completion

2) Plinth area per unit F.F.S.F.39.68 T.F.34.58

3) Cost of construction @ 2435/25 per sq. mt.

  96631
  84210

 
  4)
  Deptt.  Charges  @  6.5%  p.a. on     (3)



 
  
  
  102912
  89684

 
  5)

Interest @ 12.6% p.a. 20 months (on S. No. 3 & 4) 21612 18834

6) Equilisation charges @ 50/-per sq mt- (rounded off to next hundred)

7) Cost/premium of land @ 635/- per sq. mt. 25200 22000

151724 132318

8) Less Depreciation charges i.e. @ 1% p.a. from date of completion to preceding month of costing (rounded to next halfOn previous Disp. Cost - Cost of land for 960 T/S-on 26800/-Apr.76-June, 91 i.e. 15.1/2 yrs.

year

For 128 T/S on 32480/-(Aug, 83-June 91) i.e. 8 yrs.

147570 128164

Disposal Cost say

147600 128200

Ground Rent P.A.

10. It is thus apparent that the flats in question have been allotted on out of turn basis in view of the representations of the petitioners on the terms and conditions of allotment. The terms and conditions prescribed that allottees are liable to pay cost of liquidation for the flat together with ground rent as fixed and demanded by the office. This is in terms of Clause 7. Further the affidavit and undertakings were executed by the petitioners to pay the difference of the amount, copies of which have already been placed on record.

11. It is not the settled position in law in view of the judgment of Smt. Sheelawanti and Anr. v. DDA and Anr., , affirmed by the Supreme Court that the Court in exercise of writ jurisdiction does not sit in appeal over the issue of costing. What is to be seen is only that there is some basis established for costing which in the present case is apparent from Annexure R-1. The Supreme Court has also held in the case of Delhi Development Authority v. Pushpendra Kumar Jain, JT 1994 (6) SC 92, that the relevant date for determining the cost of construction is the date on which the final allotment letter is issued and even holding of draw of lots would not be the relevant date for costing. In the present case annexure R-1 shows that the costing has been based on the date of construction taking the relevant parameters of the cost of construction, interest and depreciation in determining the cost.

12. It is also relevant to note that insofar as the costing of the flats under the scheme of 1985 is concerned, the same forms subject matter of adjudication in Tajeshwar Kumar Sharma v. Union of India, . Learned Single Judge of this Court held that the respondent authority was not obliged to sell the flats at price less than what it has cost and upheld the notices for the price of Rs. 1,28,000/- and 1,47,600/-. It was held that the tentative price communicated earlier was only indicative and did not represent the final cost. The learned Judge relied upon the Full Bench judgment of Smt. Sheelawanti & Another case (supra) as also the judgment of the Supreme Court in DDA v. Pushpendra Kumar Jain case (supra). In view of thereof the issue of costing under the said scheme is no more res integra and stands settled.

13. The cost demanded from the petitioners is in accordance with the costing done for all similarly situated persons for these flats and thus the petitioners are duty bound to pay the amounts in terms of the impugned letters.

14. Dismissed.

C.M.No. 6150/1999 Dismissed.