Vardan Cooperative Group Housing ... vs Delhi Development Authority
2006 Latest Caselaw 593 Del

JUDGMENT

Pradeep Nandrajog, J.

Page 1393

1. The petitioner, a Co-operative Group Housing Society, duly registered under the Delhi Co-operative Societies Act, 1972 challenges the letter dated 17.12.1992 written by DDA demanding composition fee in sum of Rs. 1,85,457.80 and penalty in sum of Rs. 2,500.00 for execution of lease deed, on the ground that the society was responsible for the delay caused in the execution of the lease deed and was responsible for delay in construction of the flats. Composition fee has been charged in order to extend the time for completion of construction by the petitioner of the Group Housing flats till 28.03.1992.

2. Due to subsequent developments during the pendency of the writ petition, an amended writ petition was permitted to be filed to include in it, challenge to a further sum of Rs. 3,07,703.00 which was paid by the petitioner to the respondent.

Page 1394

3. Petitioner applied to DDA for allotment of a plot of land so that it could construct residential flats for its members. Plot No.64, admeasuring 2.083 acres at Patparganj was allotted to the petitioner. Physical possession at site was handed over on 29.3.1984 but, site was encumbered, in that, three huts existed at the site.

4. Demarcation plan on which factum of possession dated 29.3.1984 was recorded mentions as under :

Physical possession of land measuring 2.083 acres has been handed over to M/s Vardan Co-operative Group Housing Society Ltd. with 3 huts to be removed by DDA.

5. It is pleaded by the petitioner that DDA took approx 3 years to remove the unauthorized hutments and thereafter only, perpetual lease deed was executed in favor of the petitioner on 10.7.1987.

6. In the meanwhile, on 18.9.1985 M/s Raj Rawal Associates were appointed as Architects. On 18.9.1985, the Architect submitted the necessary application to DDA for sanction of the plans as per which the group housing complex could be constructed.

7. On 8.5.1987, conditional sanction was accorded, on the terms stipulated therein. Sanction was valid for a period of 3 years.

8. The petitioner claims to have complied with the terms of the conditions set out in the sanction letter dated 8.5.1987 and as a result, on 16.6.1987 building plans were released.

9. Since building could not be completed within 3 years, on 31.5.1990, the Architect sought extension of the sanction which was granted on 23.7.1990. Time was extended up to 15.6.1991.

10. The complex being still incomplete, on 31.12.1991 further extension was sought. DDA agreed to extend the time but demanded a sum of Rs. 1,85,457.80 towards composition fee and Rs.2,500/- on account of penalty for late execution of the lease deed.

11. Stating the facts aforesaid and raising a challenge to the two demands aforenoted, present petition was filed by the petitioner projecting the case that though the physical possession of the land measuring 2.083 acres at plot No. 64, Patparganj, Delhi was given to the petitioner on 29.03.84, three hutments having a covered area of about 50-60 sq.yds. and situated in different locations in the plot existed which were to be removed by the respondent. In view of the location of the hutments and those occupying them, it was not possible to raise any construction on the plot till such time those hutments were removed for the reason DDA would not grant a sanction to construct any building till the land was freed of the encumbrance. That at the time when possession was handed over, an assurance was held out by the respondent that the hutments would be removed very soon. The respondent itself insisted that before the lay-out of the petitioner could be approved, one of the documents which the petitioner was required to file was NOC from the Director, Group Housing of the respondent itself that the plot of land was free from any unauthorized construction. That since unauthorized construction in the form of 3 hutments had continued to exist there, the Director, Group Housing of the respondent was not in a position to issue the required certificate. That despite repeated reminders by the petitioner for issuance of NOC, it was not issued by the Director Group Housing of the respondent since unauthorized construction Page 1395 had continued to exist at the site. That it was only in the 1st week of April, 1986 that the respondent removed the unauthorized hutments at the site and thereafter issued NOC on 03.04.1986 provisionally. (I may note that in para 5 of the writ petition it has been stated that the huts were removed in July 1987 but in the written submissions date mentioned is 1st week of April 1986. I would therefore take the date as 1st week of April 1986). That after receipt of the NOC, the petitioner submitted a fresh lay out plan on 12.05.1986. That on 17.06.1986, the petitioner was asked to deposit a sum of Rs. 5,65,790.00 as cost of land for construction of dwelling units, which payment was made by the petitioner by cheque dated 18.07.1986. That the petitioner was able to get the NOC on 26.03.1987. That the plans submitted by the petitioner were approved by the respondent on 16.06.1987.

12. That according to the revised guidelines dated 01.05.1991 of the respondent pertaining to composition fee, notwithstanding that as per the lease deed building had to be completed within 2 years of 29.3.1984, 5 years period had to be exempted for raising construction and accordingly, if any composition fee on account of delayed construction had to be paid, same had to be reckoned from the date of the commencement of the 6th year.

13. According to the petitioner a composition fee of Rs. 33,719.60 only is payable. Petitioner determines this amount on the ground that it was not at fault for the delay in submitting the plans and, therefore, period for construction had to be reckoned w.e.f. 16.6.1987 when building plans were sanctioned. Thus, no composition fee is payable up to 16.6.1992. Since building was completed on 15.6.1993, composition fee for only one year was payable.

14. After writ petition was filed and since petitioner failed to obtain a stay against the demand, the sum demanded by DDA was paid under protest for the reason, DDA denied issuance of a C-Form and a D-Form to the Society, in absence of which the petitioner could not obtain a completion certificate.

15. Problems of the petitioner did not come to an end after it paid the demand in dispute inasmuch as on 8.4.1993 DDA demanded a further sum of Rs. 4,33,489/-. The said demand has a break-up as under :

a) Extension of time for construction up to 28.6.1993 Rs. 3,03,476/-

b) Penalty for execution of lease deed Rs. 6,500/-

c) Ground rent for the period up to 14.7.1993 Rs. 99,683/-

d) Other dues Rs. 23,830/-

16. After paying the aforesaid amount, but under protest, and with leave of the court, writ petition was amended to lay a further challenge to the sum of Rs.3,03,476/- demanded vide letter dated 8.4.993 and paid by the petitioner on 6.12.1993.

17. Amended petition thus seeks a refund of Rs.1,87,957.80 and quashing of demand in sum of Rs.2,500/- as also refund of Rs.3,07,703.00. Interest has also been claimed.

18. defense of DDA is that the three hutments covering about 50-60 sq.yards area were at a corner. They were so located that construction was not hampered. After taking possession of the land on 29.3.1984, nothing was heard from the society till 17.5.1985 when sanction was sought. On scrutiny of Page 1396 the plans, it was noted that no provision was made for providing service personnel quarters. When this was intimated, Architect wrote back that the society was unable to make any provision for the same. Revised plans were submitted on 18.9.1995. On 3.4.1986 a provisional no objection was granted. The society had to pay certain charges which were conveyed to be paid on 17.6.1986. These charges were deposited on 2.3.1987. It is stated that the plans were finally cleared on 8.5.1987. In a nutshell, DDA states that the existence of the hutments was wholly irrelevant as it was a non-issue.

19. It is further pleaded by DDA that additional reason for delay, being wholly on the shoulders of the petitioner, was the fact that a sum of Rs. 5,65,079.76 towards cost of land had to be paid by the society for which on 17.6.1986, a letter was written to the society. Amount not being deposited, reminders were sent on 13.10.1986 and 27.11.1986. It was only on 2.3.1987 that the society made the requisite deposit.

20. Issue arises as to whether delay is attributable to the petitioner or to DDA.

21. As regards delay in execution of the perpetual lease deed, the reason for delay is belated deposit of Rs. 5,65,079.76 by the society towards cost of land and therefore DDA is certainly entitled to penalty on account of delay in execution of the lease deed. Challenge to said demand must fail.

22. On the composition fee, issue of delay has to be determined with reference to 29.3.1984 being the date when possession of the site was handed over. The second relevant date is the first week of April 1986 when DDA removed the illegal hutments which existed at site at time when possession of the land was handed over by DDA to the society.

23. There may be overlapping reasons for delay in obtaining sanction. Some may be attributable to the petitioner and some may be attributable to DDA. This overlapping period has to be considered with reference to default of DDA for the reason even if the petitioner had complied with all formalities, it could not have obtained a sanction for the plans and as a consequence could not have commenced construction.

24. In this context, a letter dated 4.10.1985 addressed by the Deputy Director (Building) DDA to the petitioner is relevant. With reference to petitioner's letter dated 18.9.1985, Deputy Director (Building) DDA wrote as under:

Sub : Approval of layout plan and building drawings of Vardan CGHS at Patparganj

Dear Sir,

With reference to your letter dated 18.9.85 on the subject noted above, I am directed to request you to supply the following information to examine the layout plan:

1. That the land allotted to the society is free from unauthorized construction and no part of it is under order of stay from the Court.

2. A list of members of the society along with their parentages and address duly authenticated by the Registrar, Cooperative Society, Delhi.

3. An undertaking submitted by the Architect/Society have not been affixed the notarial stamp on the stamped paper.

Page 1397

25. The aforesaid letter belies the defense of DDA that at no stage did the issue of unauthorized construction on the plot delay sanction of the plans sought. A perusal of the afore noted letter dated 4.10.1985 shows that the DDA wanted a certificate from the petitioner that the site was unencumbered and no Court injunction was operative.

26. I am a little surprised at the aforesaid communication sent by DDA. DDA allotted the land. It was for DDA to have ensured that the same was free from encumbrances and there was no Court injunction operating qua the land. The petitioner could not have been burdened to gather and furnish said information. Additionally, that the site was encumbered, in that 3 hutments existed when DDA handed over possession to the society was well within the knowledge of DDA. DDA was obliged to remove the hutments.

27. It is obvious that the building department of DDA was not ready to issue the necessary clearance till the site was freed of the encumbrance. Thus, on this account, the society could not make any progress. That the society could have complied with certain other procedural formalities loses significance as long as the encumbrance existed for the reason as long as the 3 hutments existed the society was helpless and could not proceed ahead with the construction, much less even obtained the sanction.

28. I, therefore, hold that delay till the first week of April 1986 is the consequences of non-action by DDA in removing the hutments and therefore the society must be entitled to a waiver of said period.

29. It is not in dispute that DDA framed a policy as per which composition fee became liable to be paid for delay, 6th year onwards. Meaning thereby that 5 years period becomes available to the petitioner for completing the construction.

30. On the facts noted above, the 5 years would come to an end in the first week of April 1991. I take the date as 1.4.1991

31. I accordingly hold that the petitioner would be liable to pay composition fee as per policy, for the delay in completion of construction beyond 1.4.1991 and up to 28.6.1993. I may note that the date 28.6.1993 is the one adopted by me as per DDA's demand letter dated 8.4.1993. Needless to state, rates of the first year would be applied for the period 1.4.1991 to 31.3.1992, the rates applicable to the second year would be applied for the period 1.4.1992 to 31.3.1993 and the rates for the third year would apply for the period 1.4.1993 to 28.6.1993, in view of the law explained by this Court, applicable to charging composition fee in the decision dated 22.11.2004 in WP(C) No.7372/02 Hamdard (Wakf) Laboratories (India) v. DDA.

32. DDA is directed to revise the demand as per para 31 above and after adjusting the sum received from the petitioner is directed to refund the excess amount received by DDA together with interest @ 9% per annum with effect from 6.12.1993 (being the date on which petitioner paid Rs. 3,03,476/- demanded towards further composition fee) till date of refund.

33. No costs.