Shri Sanjay Kumar vs Delhi Development Authority
2003 Latest Caselaw 223 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioner being an Arjuna Awardee applied for allotment of a flat on out of turn basis to the respondent in the year 2000 and the request of the petitioner was considered favorably. The petitioner was issued an allotment letter dated 20.06.2001 allotting flat No. 8785, Pocket 8, Sector C, Category III, Ground Floor, Vasant Kunj, New Delhi at the disposable cost of Rs. 17,60,703/-. The petitioner was aggrieved by the cost of the flat on the ground that the flat was built in the SFS Scheme on 1984, which were constructed for allotment of the registrants of V, VI and VI-A SFS Scheme and two and a half per cent of the total flats constructed were to be allotted on out of turn basis.

2. The grievance of the petitioner is two-fold. Firstly, charging of the current cost and secondly, the surcharge of 20% over the disposable price for the flats in South Delhi.

3. The petitioner, however, paid a sum of Rs. 9,50,000/- vide challans dated 25.09.2001 and 03.10.2001 and thereafter filed the present writ petition. In terms of the interim Order dated 07.12.2001, it was directed that in case the petitioner has deposited a sum of Rs. 9,50,000/-, the possession of the flat be handed over to the petitioner on completion of necessary formalities and the petitioner undertook to pay the balance amount including 20% surcharge together with interest in case the amount is so found due. It was directed that the petitioner shall not alienate, assign or part with possession of the flat pending disposal of the writ petition. The possession of the flat has since been handed over to the petitioner.

4. In the counter affidavit, it is stated that in case of out of turn allotments, the cost of construction is worked out at par with land premium at rates prevalent on the dates of draw. The break up of the cost has been given as under :-

  "(i) Cost of construction               Rs.  8,14,204/-
(ii) Land Premium @ 4021 per sq. mtr.
     prevalent during 200-2001             Rs. 6,09,700/-
(iii) 20% surcharge                      Rs. 2,84,781/- 
                                         -------------                                                                                                                              Rs.17,08,685/
                                          ==========   
 

5. It is further stated that for an out of turn allotment, the concept of old cost or current cost has no relevance and the allottee has to pay cost of construction worked out on FAR basis plus land premium at the rates prevalent on the date of draw/issue of demand-cum-allotment letter. The only actual period interest (API) charge is stated to be @ 15% per annum for 18 months on the capital investment made by the department amounting to Rs. 1,49,548/-.

6. Insofar as the levy of 20% surcharge is concerned, it has been stated that the said levy has been upheld by a judgment of this Court in R.K. Sachar v. Delhi Development Authority reported as 2002 VIII AD (DELHI) 280.

7. I have considered the submissions advanced by the learned counsel for the parties.

8. Insofar as the issue of 20% surcharge is concerned, the contention of the learned counsel for the petitioner is that the same is applicable only to the IX SFS Scheme of 1996 and the Expandable Housing Scheme of 1996 and not to the VI SFS Scheme. It is, thus, stated that the judgment in R.K. Sachar's case (Supra) would not apply. I am unable to accept the said contention, as there is no restriction on the surcharge. In R.K. Sachar's case (Supra), the issue of 20% surcharge was considered and it was held that the same was based on the considerable difference between the price prevalent in South Delhi as compared to other areas and the object of the same was to provide subsidised houses to weaker sections and migrants from Punjab and Jammu & Kashmir, who were placed in a disadvantaged position. The validity of the same was also decided on the touchdown of the Supreme Court judgment in Premji Bhai Parmar & Ors., etc. v. Delhi Development Authority & Ors. where it was held that the authorities are entitled to provide housing to weaker sections by what was called taxing higher strata, which can, by no stretch of imagination, be said to violative of Article 14 of the Constitution of India.

9. In my considered view, the contention raised by the learned counsel for the petitioner is no more res integra in view of the judgment in R.K. Sachar's case (Supra) and the same is rejected.

10. The other issue raised by the learned counsel for the petitioner is in respect of costing of the flat, which is stated to be the current costing.

11. In Delhi Development Authority v. Pushpendra Kumar Jain , it was held that the right to a flat arose only on communication of the letter of allotment and the rates prevalent on the date of such communication would be applicable. Learned counsel for the petitioner, however, contends that the principle laid down in the said judgment cannot apply to the present case as it is one of SFS scheme, while the said judgment in Pushpendra Kumar Jain's case (Supra) dealt with the LIG, MIG and such other flats. It is contended that in case of SFS flats, there are two stages - the first stage is the allocation of the flat and payment of Installments and the second is the issuance of demand letter. On payment of Installments, a draw is held when a specific flat is allotted to a person. This is so as there is participatory financing by the allottee.

12. Learned counsel for the petitioner contends by reference to the policy of the respondent relating to the SFS flats that only interest can be charged on the original cost. The relevant extract of the same is as under :-

"1. Charging of actual period interest from allocatees/allottees of SFS flats.

Allottees/allocatees of flats under S.F.S. will have to pay actual period interest for the flats which they ultimately hold.

Under S.F.S. allottees/allocatees are required to deposit the Installments based on the estimated cost in advance as per the schedule laid down by the D.D.A. In cases where an allottee enters a scheme at a later stage, he/she has to deposit all the due Installments within the given time with interest thereon from time to time as per the schedule already fixed by D.D.A., while allocating the flats in a scheme. This is due to the fact that D.D.A. had to manage these amounts on behalf of allocatees/allottees for construction of the flats allotted/allocated to them. The interest so payable is called actual period interest."

13. Learned counsel has also relied upon the judgment of the Supreme Court in Premji Bhai Parmar's case (Supra) to contend that the income-wise and area-wise scheme in which all flats come up together as one project forms a class and discriminatory treatment in the same class violates Article 14 of the Constitution of India.

14. Learned senior counsel for the respondent, on the other hand, contends that insofar as the policy referred to aforesaid is concerned, the same applies to people who were registered originally under the SFS Scheme, while in the case of the petitioner, he was never so registered under the scheme and only sought out of turn allotment in the year 2000. It is further contended that a consistent uniform policy has been adopted in relation to the issue of costing of the flats for out of turn allotment, though learned counsel for the petitioner disputes the same by contending that the plinth area ratio has no application to SFS flats.

15. In my considered view, the judgment in Pushpendra Kumar Jain's case (Supra) cannot be said to be applicable only in the case of LIG and MIG flats. The principle laid down in the said judgment would apply in all cases where allotment is issued of flats in question. It has to be further appreciated that there is no question of participatory financing by the petitioner, as the petitioner was never registered under the SFS scheme nor did it participate in any financing process. The case of the petitioner has only been considered favorably for out of turn allotment.

16. The respondent has taken a clear stand of a consistent uniform policy in costing of such flats on the basis of plinth area ratio as also the current land premium rates prevalent at the stage of allotment. In my considered view, the said principle cannot be faulted. It has to be appreciated that the Court in exercise of its jurisdiction under Article 226 of the Constitution of India does not sit as an appellate authority to redetermine the methodology of costing. It was only the broad parameters, which have to be seen when the same can be said to be so arbitrary or illegal as to invite intervention by the Court. This is also clear from the judgment of the Full Bench of this Court in Smt. Sheelawanti & Anr. v. D.D.A. & Anr. , SLP against which was dismissed on 24th July, 1995.

17. The petitioner having applied only in the year 2000 cannot claim the right to be allotted the flat at the price prevalent in 1984 with only interest added to it. The petitioner's case has been considered favorably in an expeditious manner and in the year 2001 itself the allotment letter had been issued to the petitioner on the basis of the draw of lots held on 23.10.2000. Thus, in my considered view, the petitioner is liable to pay the cost as demanded from the petitioner in terms of the allotment letter dated 20.06.2001.

18. The writ petition is without any merit and is consequentially dismissed. Interim orders are vacated. However, in view of the fact that possession of the flat was handed over to the petitioner as per the interim Order passed on 07.12.2001 and subject to payment of only Rs. 9,50,000/-, the petitioner is granted four weeks time to make the balance payment without interest, failing which the petitioner is directed to hand over possession of the flat back to the respondent within a week thereafter and the allotment of the petitioner will stand cancelled and the amount deposited by the petitioner after adjustment of cancellation charges shall be refunded back to the petitioner within four weeks of the possession being handed over to the respondent. This direction has become necessary since the benefit of possession was made available to the petitioner only under directions of the Court and subject to the terms and conditions set out in the Order dated 07.12.2001.