Delhi High Court
Mr. Ashok Kumar Khurana vs Delhi Development Authority ... on 22 August, 2005
Author: P Nandrajog
Bench: P Nandrajog
JUDGMENT
Pradeep Nandrajog, J.
CM 7360/2005
Allowed as prayed for.
WP(C) No. 15146/2004
1. Petitioner prays as under :
"a. Issue writ of Mandamus or any other writ in the nature of Mandamus directing the Respondents to pay the Petitioner interest accrued on the deposit of Rs. 3,28,450/.
b. Issue writ of Mandamus or any other writ in the nature of Mandamus directing the Respondents to calculate the value of the flat allotted to the Petitioner as per the rates prevalent in 1998."
2. D.D.A. had sought registration under it's Self Financing Scheme (SFS). Petitioner had applied. He was registered vide registration No: 013251 dated 13.8.1982. In the year 1988, D.D.A. informed petitioner that at a draw held on 31.12.1987 petitioner was successful and that a duplex flat on Ground Floor and First Floor in category III, Block B, Pocket 5 and 6, Vasant Kunj stood allotted to him. Estimated cost of the flat was intimated as Rs. 3,64,800/-. Petitioner was called upon to pay 90% of the etimated cost in four installments as under :
i. Rs.91,200/- by 15.1.88
ii Rs.72,960/- by 15.7.88
iii. Rs.91,200/- by 15.1.89
iv. Rs.72,960/- by 17.7.89
3. It was intimated that balance cost was to be paid on final costing when flat was ready for delivery. Giving benefit of registration deposit and interest accrued thereon, 1st installment payable was scaled down to Rs. 69,632.35. Since demand letter was issued on 8.1.1988, time for deposit of Rs. 69,632.35 was extended up to 15.2.1988.
4. Petitioner deposited the four installments.
5. In 1998 at a draw held on 15.5.1998, Flat No. 2393, Category III, Block C-2, Vasant Kunj was allotted to the petitioner. The flat was not worthy of habitation. Petitioner represented. D.D.A. accepted the representation. At another draw held in September 1998, Flat No. 4327, Sector-B, Pocket 5 and 6 on the Second and Third floor was allotted. Not only was the allotment invalid as petitioner was to be allotted a Ground Floor flat but the same already stood allotted to some other person. It was anovious case of double allotment.
6. Petitioner's name was entered at yet another draw. Flat No. 2090, Pocket C, Vasant Kunj was allotted to him. Petitioner was later on informed vide letter dated 3.11.1998 that flat number be read as 2290 instead of 2090. To the misfortune of the petitioner this flat too was allotted to some third party.
7. Petitioner protested to D.D.A. informing that D.D.A.'s coffers were fattened by Rs. 3,28,450/- being the four installments paid by the petitioner, last of which was paid on 5.2.1993, and he was still without a roof over his head.
8. On 6.3.2003 D.D.A. informed petitioner that he would be allotted a flat in the South West Zone at cost of 1998 but he would have to pay interest on the balance cost @ 7% compounded till March 2003, and that petitioner would not be paid interest on the amount paid by him. Further, petitioner was intimated that he was not to litigate with D.D.A. Petitioner's consent was sought. Letter dated 6.3.2003 reads as under :
"To:
Shri Ashok Kumar Khurana,
9, Friends Colony,
Amritsar (Punjab)
Sub: Regarding restoration of CAT.III SFS flatin Vasant Kunj Sir, With reference to your dated 30.12.2002 on the above subject, I am directed to inform you that the competent authority has acceded to your request for restoration subject to the following conditions:
1. Flat will be allotted to you out of all vacant flats available in South West Zone through a computerized draw.
2. Allotment will be at current cost of 1998 along with interest @ 7% on the net amount payable (compounded till 3/03).
3. No BCI/interest on deposit shall be given on you deposits as per policy in cases of restoration.
4. That you shall not litigate the costing matter in any court of Law.
You are, therefore, requested to send your consent on the above conditions within 7 days; otherwise, it will be presumed that you are not interested in the restoration and allotment of a flat."
9. On 10.3.2003 petitioner gave the requisite undertaking.
10. On 24.6.2003 Flat No: 9911, Pocket C-9, Vasant Kunj was allotted to the petitioner. Following was demanded:
i. Cost of Flat Rs. 21,29,100.00
ii. Less amount paid Rs. 3,28,440.00
iii. API on 5th final demand Rs. 1,94,071.00
iv. Maximum penalty for previous
allocation Rs. 5,000.00
v. Restoration Charges Rs. 25,000.00
vi. Service Charges(Capitalised
value) Rs. 53,902.00
vii. Share money Rs. 1,000.00
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Net Payable Rs. 20,79,633.00
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11. Petitioner made representation against the demand. They were rejected.
12. Case of the petitioner is predicated on parity with one Yoginder Kumar Goel. He was allotted Flat No. 3434 on Ground Floor at the draw held on 28.9.1998, same draw when petitioner was allotted Flat No. 2090. Price demanded from Yoginder Goel was Rs. 12,30,500/- as per demand cum allotment letter dated 4.6.1999.
13. Petitioner claims that but for DDA's default in making double allotment, he would have got Flat No.2290 at same cost as was charged from Yoginder Goel. Qua his undertaking, petitioner pleads that DDA having monopoly over housing in Delhi, petitioner being a weaker party, had no option but to succumb to DDA's dictatorial demand. It offends Article 14, contends the petitioner.
14. It transpired that Yoginder Goel was not put in possession of Flat No. 3434. He was allotted Flat No. 9818, Pocket C-9, Vasant Kunj. DDA was demanding a higher cost. He filed a writ petition being CWP NO. 2732/03. Vide order dated 4.8.2003 said petition was allowed. Mandamus was issued to D.D.A. that it would charge price as of 4.6.99 and would give him benefit of interest @ 10% p.a. from 1.11.1999 on the amount deposited by him with D.D.A.
15. Pursuant to the directions issued to D.D.A. in case of Yoginder Kumar Goel, following is the final demand to him (see para 3 of DDA's additional affidavit dated 25.5.2005.) 'Flat No. 9818/C-9, Vasant Kunj.
Plinth area of the Flat:-
122.58 Square metres + court yard 3.89 Square meters. The calculation of the cost for the flat No. 9818/C-9, Vasant Kunj @ 1839.11 PAR and 975 per square meter for land premium as was done for the Flat No. 3434/D-3, Vasant Kunj.
1) Cost of Construction @ 1839.11 *(122.58 + 3.89) Rs. 2,32,592/-
2) Community Facility Rs. 750/-
3) Departmental Charges Rs. 23,334/-
4) Administrative charges Rs. 2,333/-
5) EWS Charges Rs. 14,000/-
6) Land premium Rs. 75,600/-
7) 20% surcharge on 1 to 6 above Rs. 69,722/-
8) Free Hold Charges)Prox) Rs. 46,202/-
9) API on 4 installments Rs. 53,040/-
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Total Rs. 517573/-
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10) Additional differenceof Land Premium including
surcharge thereon (126.47) -115-20*975) Rs. 13186.00
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Grand Total Rs. 530750
Rounded Rs. 530800
Final Disposal Figure (Cost/Price)
1) Cost as per enclosed sheet Rs.530800.00
2) API on demand vide DAL detail
04.06.98 (181880/-+418785/-) Rs.600585.00
3) Maintenance/Service Charges Rs. 83888/-
4) Restoration Charges Rs. 7500/-
5) Change Charges Rs. 10000/-
6) Capitalized Value of S/charges Rs. 6659/-
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Total Rs.12,39,432/-
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Less
1. Paid Rs.12,48,241/-(-)
2. interest to be allowed on Rs.12,48,241/-
from 1.11.99 to 31.01.2004 (51 months)
@ 10% =530,502 (-) TDS of Rs.530,502
Rs.477452-(-)
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Balance Refundable Rs.486,261/-"
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16. Qua petitioner, D.D.A. justifies the demand as under :'That the costing of the Flat No. 9911/C-9, Vasant Kunj, New Delhi in the instant case of Petitioner Shri Ashok Kumar Khurana are as follows:
Flat No. 9911/C-9,
Ground Floor,
First Floor.
Plinth Area of the Flat: 124.58 square meters + Court yard 15 square meters.
1) Cost of construction of the flat and
court yardas on12/2001 Rs.1016988/-
2) Land premium 94490*3660/4812/2 Rs. 718690/-
3) 20% surcharge on 1 and 2 above Rs. 347136/-
4) Free Hold charges (Provisional) Rs. 46202/-
Total Rs.2129016/-
Cost due on 12/2001(rounded off) Rs.2129100/-
Additions:
1. Share money Rs. 1000/-
2. Restoration charges Rs. 25000/-
3. Capitalized value of [email protected] 7.50% of LP Rs. 53902/-
4. Maximum Penalty for re-allocation Rs. 5000/-
5. 'API @ and % compounded from 1/20002 to 30/06/2003
on Rs.1800606/- (Rs.2129100-328440 paid)(a) up to
31.03.2002 (3 pm) Rs. 31512/-(b)
01.04.2003 to 31,03.2003(12pm) Rs. 218252/-(c)
01.04.2003 to 30.6.2003 (3pm) Rs. 34307/-
Total Rs.2408073/-
Less already paid Rs. 328440/-
Balance payable Rs.2079633/-"
17. Facts as noted above show complete parity between petitioner and Yoginder Kumar Goel. Both were successful in getting a flat at the draw held on 28.9.1998. Petitioner got Flat NO. 2090 later intimated to be 2290. Yoginder got Flat No. 3434. Only difference being that petitioner's flat was on ground floor and Yoginder's was on first floor and area was a little different. Again, both could not be given possession of the respective flat allotted to them. Whereas, Yoginder was offered Flat No. 3434n 4.6.1999 and in spite having paid could not get possession of the flat necessitating another allotment being flat No. 9818, Pocket C-9, Vasant Kunj, petitioner got stuck till 24.6.2003 when D.D.A. allotted Flat No. 9911, Pocket C-9, Vasant Kunj.
18.Let me note the petitioner's suffering. Having got himself registered under the SFS Scheme in 1982, luck dawned on him in 1987 when a flat was offered at a tentative price of Rs.3,64,800/-. 90% cost was demanded and paid by the petitioner. By 1993he was out of pocket in sum of Rs.3,28,440/-. At a draw held on 15.5.1998, flat no. 2393 was allotted. It was found to be not worthy of habitation. In September 1998, Flat No. 4327 was allotted. It was not in petitioners category. Yet another Flat No. 290 was allotted. It was found to be a case of double allotment. The flat in question is the fourth allotment.
19. D.D.A. has monopoly over housing in Delhi. It is in a dominating position. Citizens are at the mercy of DDA. Approach of D.D.A. of 'take the flat on my terms or leave it' can not be countenanced in a democracy. We live by the rule of law. It requires fairness in action. A state monopoly is bound to act fairly and reasonable in discharge of its duties. At every stage its action has to be guided by reason. Ignoring the earlier allotments, allotment made vide draw held on 28.9.1998 in which petitioner was allotted Flat No. 2090 later on changed to 2290 vide letter dated 3.11.1998 crystalises a right in faovur of the petitioner to get a flat at the prevailing cost of 1.12.1998.
20. D.D.A. has recognised this right as DDA in its letter dated 6.3.2003 has offered flat at cost of 1998. However, other conditions of said letter are unreasonable and arbitrary. They take away from the left hand what is given by the right.
21. Petitioner, in the least, is entitled to the same benefit as flowed to Yoginder Kumar Goel vide order dated 4.8.2003 in CWP 2732/03.
22. Mandamus is issued to D.D.A. to revise the demand qua Flat No. 9911/C-9, Vasant Kunj, the flat allotted to the petitioner on the price applicable as on 1.12.1998. Petitioner would be entitled to interest on deposit of Rs.3,28,440/- w.e.f.1.12.1998 till date of revised demand @ 10% p.a. As in case of Yoginder Kumar Goel, DDA would be entitled to API and maintenance/service charges but the same would be on same basis as charged from Yoginder Kumar Goel. Revised demand be raised wihin 8 weeks from tody. Petitioner would pay the same within 4 weeks. Within 4 weeks thereafter possession would be handed over. Registration formalities to be completed as per law.
23. Cost in sum of Rs.15,000/- in favor of the petitioner and against DDA.
