Ms. Sangita Dhingra Sehgal vs Delhi Development Authority
2005 Latest Caselaw 539 Del

JUDGMENT

S. Ravindra Bhat, J.

1. This writ petition Under Article 226 of the Constitution of India challenges a notice dated 18-11-1998, issued by the Delhi Development Authority (DDA) demanding an amount of Rs. 27,11,975/- towards allotment of a Self Financing Category (S.F.S.) flat in Motia Khan, Delhi.

2. The petitioner had applied for the allotment of an SFS category flat in 1983. She paid installments demanded by DDA. On 15 March 1985, an announcement was made by the DDA that owning to certain unforeseen circumstances, construction of those flats was held up. On the 23rd of October 1997, after a lapse of about 12 years, a Press report was published, stating that out of the original 119 alottees of the Motia Khan SFS category flats, only 84 could be given physical possession. The petitioner approached this Court under Article 226 of the Constitution of India by filing W.P. 5294/97. The court had directed that one flat ought to be reserved, to await final orders in the proceedings. On 25th September 1998, the Court recorded the DDA's statement that Flat Number 402 was available. The court therefore, directed DDA to allot it to the petitioner. Pursuant to the direction, DDA issued the impugned allotment letter, demanding the sum of Rs 27, 11, 975/-.

3. The petitioner's grievance is that the DDA has demanded huge amounts after having made her wait for an unreasonably long period of time. She had made all the payments demanded, immediately after registration and the issuance of an allocation letter. It is averred that a total amount of Rs. 1,69, 628/-demanded by the DDA had been deposited by January 1984 itself. The subsequent delay which ensued was entirely on account of the DDA's fault; the petitioner could not be penalised for it. It is averred that the petitioner, a judicial officer and a member of the Delhi Higher Judicial Service, is bound by conditions of service embodied in rules framed in that regard. These conditions of service prescribe a cost ceiling limit of Rs 18, 00, 000/- (Rupees eighteen lakhs only) for residential houses that can be owned by such officials.

4. The DDA, in its response, took the position that the petition was not maintainable, since the cost of the flat, disclosed at the initial stage, was indicative, and not final. It has alleged that the petitioner had defaulted in making payment of the third Installment, of Rs. 95,475/-, which was payable by 10th October, 1985. The interest on that amount works out to Rs. 2,23,412/. It is also alleged that the petitioner was made aware of the delay likely to occur in the handing over of possession of the flats, due to delay in construction; an option was also offered by way of allotment of alternative flats. The petitioner did not, however, respond to it. DDA has, in its reply, also furnished the break up of the disposal cost in respect of the flats at Motia Khan.

5. Several persons, who like the petitioner, were offered flats in Motia Khan, and were faced with similar demands, approached this court unsuccessfully. In those cases, the court had directed, on 28th July, 1998, that a without prejudice payment be made within an extended period, with interest at 18% p.a with effect from 1st August, 1998. The matter was eventually considered by the Supreme Court in certain proceedings under Article 136 of the Constitution of India. On 13th May 1999, the Supreme Court, in those proceedings passed the following order:

Looking to the facts and circumstances of the present case and in particular the fact that the construction which should have commenced in 1983 has, in fact, been completed in 1999, this is a fit case wherein the peculiar facts and circumstances of the present case, those applicants who desire to surrender their claim for a flat should be permitted to do so, provided they send an intention to that effect to the concerned respondents on or before 27.5.1999. In respect of those applicants who convey their willingness to surrender their claim for a flat within the above stipulated period, the respondents will refund the amounts already received from the concerned applicant together with simple interest [email protected]% p.a from the date of the receipt of the amount concerned till payment. Such amounts with simple [email protected]% p.a to be refunded on or before 30.6. 1999. The Special Leave Petition is disposed off. Since this is in view of the peculiar facts of the present case, this order shall not be treated as precedent.

6. The petitioner filed an interlocutory application, CM 12653/2002 claiming that she wanted to withdraw the petition since it had been pending for a long time and that pursuant to orders of the Supreme Court, the DDA had refunded an amount of Rs 407, 237/-(being the aggregate of the amount deposited, i.e. Rs 169628/-and interest on that deposit at 10% per annum till 27th of May 1999, i.e. Rs. 271,072/-less Income Tax). The petitioner claimed that she was in fact entitled to interest at 15% per annum and not 10% per annum, as was allowed by the DDA. She is further claimed interest at 10% on the amount of Rs 440 700/- for two years and 10 months between 28 May 1999 and 31st of March 2002. This amount is Rs 124, 865/-. In addition, an amount of Rs 6585/-being the interest at 10% on Rs 124, 865/-for a period of six months and 10 days has been claimed.

7. The DDA expressed its willingness to consider the claims and pass an order. By the order dated 19 Feb 2003, this court recorded the statement of DDA that the application itself would be treated as a representation. Pursuant to this, the Commissioner of Housing DDA, passed a speaking order on 14th of July 2003. The order rejected the request for enhanced interest and also for interest in respect of periods beyond what was permitted by the Supreme Court. Relevant portion of the order are extracted below:

She filed a Civil Writ Petition Number 5294/1997 and the court ordered DDA to reserve one flat out of 84 flats at Motia Khan, if not allotted to anyone. This order was passed on 8 Dec 1997(C/23). In pursuance to that order, a letter was sent to her by DDA on 10.9. 98 giving a various options which were:-

[a] To have a flat out of surrendered/cancelled flats since all the flats were allotted already.

[b] Wait for the 3rd block in Motia Khan to come up to get an allotment.

[c] Apply for alternative allotment of the ready built flat in any other locality of Delhi to be given to draw of lots.

[d] Apply for refund of the deposited amount (C-27).

Another order was passed by the High Court in the pending Writ Petition that the petitioner shall meet the Commissioner(Housing) DDA show us to discuss the proposals of DDA and the counter proposals of the petitioner to arrive at a solution. In pursuance to that order Smt. Sangita Dhingra Sehgal met the then Commissioner (Housing) Shri Gyanesh Kumar and based on the discussion the court ordered that flat No. 402, Cat.III, Block-5, Motia Khan will be allotted to Smt. Sangita Dhingra Sehgal and the demand-cum-allotment letter will be issued within four weeks from the date of order which is 25 Sep 1998. The demand that was issued on 18.11.1998 showing a total cost of the flat as Rs 27, 04, 890/-and a net amount payable is Rs. 23,11,975.80(C-36). Aggrieved by such steep increase in the cost of the flat, Smt. Dhingra gave a representation to the LG requesting for allotment of alternative accommodation in lieu of her flat at Motia Khan which should the priced less than Rs. 18 lakhs since as per the restrictions of the 5th Pay Commission the cost ceiling limits as permitted for any such employee is to the limit of Rs 18 lakhs only. The matter was discussed by LG with the VC and the decision was taken to give alternative flats in 4 such cases in Dwarka. A computerised draw was held on 28 Mar 2001 well be for original allotees of Motia Khan namely Shri L.S. Darbari, Shri SC Duggal, Smt. Sangita Dhingra Sehgal and Mohd. Athar Qureshi (C/73). Smt. Sangita Dhingra Sehgal was allotted flat No. 260 in Sector 22, Pkt 1, Dwarka and the demand letter was issued on 18.2.2002 showing a total cost of the flat is Rs. 11,87,315/-. Adjusting the total amount already paid and other charges the net amount payable was Rs.10,58,710/- (C/57). Smt. Sangita to Dhingra Sehgal did not accept this alternative allotment in Dwarka and applied for refund. The refund application was given on 29.04.2002 and she submitted the necessary documents for refund on 7th May, 2002 (C/75,76 and C/81) respectively. A refund cheque No. 048781 of Rs.4,07,237/- was issued to her with covering letter dated 07.06.2002 (C/84). Thereafter Smt. Dhingra met the Commissioner (Housing) and gave a representation that on the orders of the Supreme Court, special orders were made for Motia Khat allottees and an interest @ 10% was allowed on their deposits. Since this 10% interest was given as a special case, the cancellation charges of Rs.5,000/- which have been deducted while giving refund due to allotment in Dwarka as an alternative to Motia Khan flat may not be duected C/86). The matter was processed on file and a decision was taken Dhingra Sehgal and also in similar other 3 case. In pursuance to this decision refund of Rs.5,000/- has also been made to Smt. Dhingra and the cheque was personally collected by her on 19.07.2002 (C/90).

Various allocates of Motia Khan went to High Court and later in SLP in Supreme Court challenging the abnormal increase in the cost of the flats of DDA Looking to the peculiar facts and circumstances of the case, the Supreme Court in its order dated 13.05.99 in the case of K.L. Luthra v. LG and Ors. asked DDA to refund the amount already received from the applicants and pay them 10% simple interest on the on the amount thereof. This should be on or before 30.06.1999. A representation was received from the petitioners on 27.05.99 in pursuance of orders of Supreme Court.

Since 10% interest was finalized by the supreme Court in order dated 13.05.99, interest was given up to 27.05.99 i.e. the date of representation. DDA complied the order. No deviation was made in any case and all the refunds have been made with interest up to 27.05.1999 for all 1997 allocatees of Motia Khan SFS flats. Later on, few more applications were received by DDA which were submitted after the dead line fixed by the Supreme Court, i.e. 30.06.99 since this order was passed by the Supreme Court looking to the peculiar facts and circumstances, it was thought proper to entertain even the late application and the same interest rate was allowed to these applicants also but inte3rest was paid up to 27.05.99, the date up to which interest was given to earlier cases.

Only in four cases mentioned above, alternative allotments were made in Dwarka. However, all the four allottees have taken refunds including Mrs. Sangita Dhingra Sehgal. In the other 3 cases also refunds were made initially after deducting Rs.5,000/- as cancellation charges and interest was paid @ 10% up to 27.5.1999 only. Later as a special dispensation even that Rs.5,000/- was waived and hence a refund of that amount has also been given to these four allottees.

Looking to the above circumstances and fact it is clear that DDA made a policy in pursuance of the orders of the Supreme Court and strictly implemented the policy uniformly. Smt. Sangita Dhingra Sehgal herself applied for alternative allotment and requested L.G. for the same. When the allotment in Dwarka was not accepted by her, refund was given as per policy. While requesting for non deduction of Rs. 5,000/- as cancellation charges, Smt. Sangita Dhingra Sehgal herself has pointed out that interest of 10% was allowed on her deposits on the orders of the Supreme Court and as such cancellation charges or Rs.5,000/-should also not be deducted for the altenrative allotment. Even that request was accepted by DDA and refund was made.

Therefore, looking to the facts and background of the case, the following picture emerges:

[a] Her request of 15% interest on her deposits cannot be considered. She herself knows about the Supreme Court order and the rate of interest ordered therein as has been mentioned in her own letter and that is why she herself has given the alternative offer.

[b] Even 10% interest which is as per Court orders is justified up to 27.05.1999 only which was the policy decision taken at that time. Even the late applications were entertained on the ground that all such applicants would be given refund up to 27.05.1999 only. The case of Smt. Dhingra also falls in this category of late applicant.

Thus, for an individual case, it does not seem justifiable to deviate from the policy formulated by DDA in compliance of Supreme Court order which is implemented uniformly and accepted practically by all the allocatees of Motia Khan SFS Flats of the draw of 1997.

8. Learned Counsel for the petitioner submitted that the position taken by DDA is not justified. Having made the petitioner wait for an unconscionably a long period of time of 15 years, during which the cost of the flat allocated to her escalated astronomically, leading to a situation where it was impossible for her to accept the flat, the least that the DDA could do was to reimburse the amounts paid by her with interest for the entire duration that it was lying in deposit with it. It is submitted that once the petitioner decided to withdraw the amount, there was no reason for the DDA to allow interest only for the part of the period. Counsel for the petitioner submits that though the rate of interest calculated and demanded was at 15% per annum, in view of the orders of the Supreme Court, the petitioner limited the demand to 10% till the actual date of reimbursement/payment. The decision of the DDA not to permit interest for the period beyond 27th of May 1999 has been assailed as unreasonable and based on no rationale.

9. Learned Counsel for DDA, on the other hand, submitted that the petitioner cannot claim any benefit that is higher than what was granted by the Supreme Court in its order, to the other allottees of the Motia Khan scheme. In fact, Supreme Court granted the facility of 10% specifically to those who applied for refund and opted out of the scheme. Even though the time limit itself was prescribed by the court, nevertheless, the DDA itself extended it and gave the facility or benefit to all persons who approached it. The order was based upon the footing that interest was payable to those who opted out of the scheme and wanted refund. The petitioner opted; yet she wanted to secure an alternative allotment at Dwarka. When that allotment was not to her liking, she wanted the entire amount with interest. Therefore, in a sense, the petitioner is seeking relief in addition to what was granted by the Supreme Court. It is also urged that if the petitioner were to be granted the relief of interest as claimed, there would be resultant discrimination.

10. I have considered the materials on record as well as the submissions made on behalf of the parties. The petitioner's initial grievance in 1997 was that no flat was being allotted. A direction was issued in writ proceedings initiated by her. She was offered a flat at Dwarka. The amount demanded for that flat worked out to Rs.10,58,710/-. The petitioner did not want that flat. At that stage, in 2002, she moved the court through an interlocutory application and sought for withdrawal from the scheme and a refund of all amounts lying with the DDA, together with interest. In the meanwhile, the Supreme Court had passed in order upon proceedings being initiated by similar alottees in the Motia Khan scheme. That order specifically enabled allottees to opt for refund, before a particular date. On the option being exercised, the allottees were to be refunded the amounts deposited by them with 10% interest per annum. Admittedly, the petitioner did not so opt. There may be some substance in the plea that the petitioner was unaware of the order of the Supreme Court. However, she was granted an option that only three others were given namely an alternative allotment. She, like the three others who sought for alternative allotment, eventually declined it. The facility of another option, therefore offset the disadvantage arising out of lack of information regarding the order of the Supreme Court. In any case, the petitioner availed of the opportunity or chance of securing an alternative flat. That flat was offered at a vastly lower cost, than the cost indicated in impugned demand. Nevertheless, she was not inclined to accept it.

11. The rationale indicated by the DDA to refuse interest for the period beyond 27th of May 1999 is that the Supreme Court had directed payment of interest till that date to all allottees who opted out of the scheme in respect of Motia Khan SFS Flats. The petitioner was one such allottee. The others were entitled to interest till that date. In the petitioner's case, a further option in the form of an alternative allotment was exercised; after the allotment was made, she declined the offer. The DDA has also justified its stand by saying that three other persons were also given the choice of an alternative flat; they too declined the offer. In their cases, the interest paid was till 27th of May 1999. It is therefore claimed that there cannot be a departure in the petitioner's case.

12. The stand of DDA, in my considered opinion, cannot be characterized as arbitrary or unjustified. The petitioner forms part of a class of allottees who were given the benefit of the 10% interest for the amounts lying with DDA. This was on the condition that an option to withdraw from the scheme had to be exercised. The petitioner got the benefit of that order and at the same time she was offered an alternative flat. Hence it is not as if the petitioner's money was held up or locked with the DDA for no reason. Consciously, she opted for another flat. When the flat was offered, she declined it. Under the circumstances, the question of the DDA being made liable for a further period after 27 May 1999, does not arise. Another reason why the petitioner's claim for interest for later periods cannot also be entertained is that the Supreme Court order itself defines the period; it also specifically states that the order shall not been treated as a precedent. The intention and purport of the order is clear; its logic and principle cannot be extended beyond its express terms. Hence, the DDA's adoption of a uniform criteria, cannot be held unreasonable or arbitrary.

13. In view of the foregoing discussion, the petitioner is not entitled to the reliefs claimed. The writ petition and all pending applications are therefore dismissed, with no order as to costs.