Delhi Development Authority ... vs Shri Ram Kumar Sharma S/O Late ...
2006 Latest Caselaw 258 Del

JUDGMENT

Madan B. Lokur, J.

1. The Appellant has preferred an appeal under Clause X of the Letters Patent against a judgment and order dated 14th August, 2003 passed by a learned Single Judge allowing CWP No. 655/2001 filed by the Respondent. We find merit in the appeal and are of the opinion that it should be allowed.

2. The controversy in the present case is rather narrow and concerns the cost payable by the Respondent for a flat allotted to him.

3. The Respondent's mother (his predecessor in interest) registered herself under the 5th Self Financing Scheme of the Delhi Development Authority (DDA) in 1982. She was issued a letter on 26th December, 1991 allocating a category II flat in her name in Jasola, Block-7 on the third floor. The tentative cost of the flat was indicated as Rs. 5,15,400/- and the schedule of Installments was as follows: -

  InstallmentS        AMOUNT            DUE DATE 
FIRST              Rs. 128850.00     31.01.92
SECOND             Rs. 103080.00     31.07.92
THIRD              Rs. 128850.00     31.01.93
FOURTH             Rs. 103080.00      31.07.93

 

4. The full text of the allocation letter is not on record before us nor was it placed on record before the learned Single Judge but learned counsel for the parties agreed that paragraph 4 thereof provides that in case payment is not made within 90 days of the due date as per the schedule, the allotment would stand cancelled automatically but that it could be restored on payment of dues with interest along with cancellation and restoration charges. Paragraph 4 thereof reads as follows: -

4. The amount demanded should be paid on or before the due date mentioned in para 2 and 3 above. Extension of time for making payment of the amount demanded in column 7 of para 3 above up to a maximum period of 90 days from the due date is admissible. An allottee need not apply for extension but he will have to pay interest @ 12% p.a for the first month and @ 18% p.a for the subsequent period. In case payment of the amount asked for in the demand letter is not made within 90 days of the due date, the allotment shall stand cancelled automatically. However, cancellation due to non-payment of first 4 installments during the stipulated period can be got restored on payment of dues with interest along with cancellation and restoration charges for each cancellation due to non-payment, subject to availability of the allocated flat. The cancellation due to non-payment of final Installment within 120 days of the date of issue (letter of the block date) of the demand letter for 5th Installment shall not be restored under any circumstances.

5. There is no dispute that the Respondent paid the first and second Installments in time. The third Installment was deferred by the DDA but the Respondent made the payment before the due date. The fourth Installment was deferred by the DDA on more than one occasion and the final date fixed for payment was 30th September, 1996. The Respondent had a grace period of 90 days to make the payment, that is till 28th December, 1996. However, the payment was delayed and eventually made by the Respondent on 4th January, 1997 after a delay of about 7 days.

6. On 18th September, 1998, the DDA issued the final demand letter (for the fifth Installment) to the Respondent indicating therein that he was allotted Flat No. 86-T at a cost of Rs. 9,34,300/- along with some other charges including late payment charges of Rs. 2,500/- in respect of the fourth installment.

7. Feeling aggrieved by the high cost demanded by the DDA, the Respondent filed a writ petition in which it was prayed that the DDA be directed to refund a sum of Rs. 4,18,900/- or such other amount as has been charged in excess from what was initially represented as the cost of the flat.

8. The DDA filed a counter affidavit in which it relied upon a policy dated 31st March, 1999. A copy of the policy was not attached to the counter affidavit. It appears that during the hearing before the learned Single Judge, it was submitted by the Respondent that the policy could not have retrospective effect and so the DDA changed its track and relied upon an earlier policy dated 16th August, 1996 to justify the higher cost of the flat. A copy of the policy dated 16th August, 1996 was also not filed before the learned Single Judge nor is it filed before us but it has been referred to in a Full Bench decision of this Court in Renu Bali v. Delhi Development Authority 2006 (Vol.1) AD (Delhi) 127. The policy dated 16th August, 1996 reads as follows:

Sub: Regularisation of delays in respect of the flats allotted in South Delhi under the SFS.

Under the present delegation of powers, delay in making payments of first 4 Installments as well as payment of 5th and final Installment are regularised as per following delegation of powers:

Director (H)-1 - up to 3 months Commr. - up to 1 year Principal Commr. - From 1 year to 1 year V.C. - Full powers

2. With the approval of L.G a decision was taken that the current price for South Delhi flats will be worked out by adding a surcharge of 20% from the price worked out as per old format. The approval of L.G to this decision was granted on 12.07.1996.

3. There are presently cases in the Housing Department where there have been delays in the making of the payments of the flats allocated/allotted in South Delhi under S.F.S. Before the aforesaid revision took place, delays of one year or so were being regularised with usual charges, i.e on payment of 18% interest per annum and restoration charges, etc. in few cases where delays are unusually long, current price has also been demanded.

4. With the revision aforesaid, a question has arisen whether delay should be got regularised or flats should be disposed of at current price since that can fetch perhaps some more revenue in few cases.

5. Matter has been considered and it is felt that non-regularisation of delays in deserving cases will be presented and, therefore, in the cases of those who have got allocation/allotments in South Delhi, if any time extension/regularisation is done as per above delegation of powers, then we may do so with the following condition: -

Delay shall be regularised on payment of either current price or old price/usual charges, whichever is higher.

9. According to learned counsel for the DDA delay in payment of the fourth Installment by the Respondent resulted in automatic cancellation of the flat allocated to him, but the allocation was restored on the basis of the above policy subject to his paying the current price or old price / usual charges, whichever is higher. In the present case, the current price was higher and that is what was demanded from the Respondent. This position was, of course, contested by the Respondent. The learned Single Judge rejected the contention of the DDA and hence this appeal.

10. This very issue admittedly came up for consideration before a Full Bench of this Court in Renu Bali. The question posed by the Full Bench was as follows: -

Whether demand for payment of current cost as calculated by the Delhi Development Authority from the defaulter registrants could be said to be justified.

11. The Full Bench referred to the policy dated 16th August, 1996 and answered the question in the affirmative. Learned counsel for the parties are agreed that this case is covered by the decision of the Full Bench but the only controversy is which conclusion of the Full Bench is applicable. According to learned counsel for the Respondent conclusion ii (a) is applicable while according to learned counsel for the DDA conclusion ii (c) is applicable. These conclusions read as follows: -

ii (a) When a default is only for a short period i.e. up to a period of one year, cancellation of allotment could be revoked and restored and the delay in payment of the Installment regularised by the DDA on payment of old cost both for cost of land as also cost of construction with interest @ 18% per annum.

ii (c) In case of South Delhi flats only when demanded amount is received after 22.8.1996, the flat could be restored on old cost and interest @ 18% per annum or current cost, whichever is higher. While calculating current cost, 10% interest could be levied by the Delhi Development Authority on the cost of construction for escalation in such construction in the meantime, which will be payable till the date of restoration. However, levy of 10% interest per annum on cost of land on the basis of prevailing land rates on the date of restoration would not be permissible.

12. Having considered the matter, we have no doubt that the case is covered by conclusion ii (c) of the Full Bench. While conclusion ii (a) is of a general nature, conclusion ii (c) specifically deals with restoration of flats to South Delhi allottees. There is no dispute that the flat allotted to the Respondent in the present case is in South Delhi. Therefore, applying the maxim generalia specialibus non derogant, namely, that if a special provision is made on a certain matter, that matter is excluded from the general provision (see Venkateshwar Rao v. Govt. of Andhra Pradesh ), conclusion ii (c), which pertains specifically to South Delhi flats would be applicable and not the general conclusion ii (a).

13. In this view of the matter, we are of the opinion that the impugned judgment and order deserves to be set aside as being covered by conclusion ii (c) of the decision rendered by the Full Bench in Renu Bali. 14. The appeal is, therefore, allowed in terms of conclusion ii (c) in Renu Bali. No costs.