Deepak Verma vs Dinesh Rai V. Chairman D.D.A.
2007 Latest Caselaw 295 Del

ORDER

S. Muralidhar, J.

1. The present contempt petition has been filed complaining of non- implementation of an order dated 20.9.2005 passed by the Division Bench of this Court disposing of LPA No. 218 of 2004 filed by the respondent-DDA against the petitioner herein in terms of judgment of the Full Bench in Smt. Renu Bali v. Delhi Development Authority (judgment dated 22.7.2005). The Division Bench, in its order dated 20.9.2005 issued the following direction:

In the light thereof, we direct the Delhi Development Authority to re-calculate the price/cost of the flat in term of the observations and directions issued therein. It is also made clear that fresh calculations shall be made by the DDA strictly in accordance with the aforesaid directions and conclusions laid down and the same would be issued to the individual allottee like the respondent herein after making adjustment of the amount already paid by the allottee. On receipt of the aforesaid re-calculation from DDA, the balance amount would be paid by the allottee of the flat within eight weeks. In the event of failure in making payment of the balance amount in terms of the said demand to be issued by the DDA, the allotment of the flat in favor of the said allottee shall stand cancelled automatically. Similarly, if, after re-calculation, DDA is to refund any amount to the allottee, the same shall be paid within eight weeks. For the reasons recorded above, we dispose of the appeal.

2. Thereafter, the petitioner made are representation seeking implementation of the above order and requesting for issuance of the refund cheque. This was followed by the petitioner by filing a contempt petition being CCP(C) No. 807 of 2006 in which, after notice and contest by the DDA, the following order was passed on 29.5.2006:

Learned Counsel appearing on advance notice on behalf of respondent states that the petitioner's case would be looked into and that an appropriate order would be issued upon the representation. A direction is, therefore, issued to the respondent to pass an appropriate speaking order in respect of the petitioner's representation within six weeks from today. The same shall be communicated directly to the petitioner. In case of any grievance of willful or non- compliance with the direction of the Court it is open to the petitioner to revive these proceedings by filing an appropriate application.

3. Consequent upon the aforementioned order dated 29.5.2006, the DDA issued a letter dated 25.9.2006 to the Special Power Attorney Holder/father of the petitioner herein which reads as under:

In this connection, it is submitted that your case pertains to change of floor and change was allowed by the competent authority from top floor to first floor on the request of the allottee. As per officer order dated 20.6.2006 pertaining to acceptance of judgment dated 22.7.2005 in the lead case titled Renu Bali v. DDA, it was decided that the cases of change of floor on request where current cost is chargeable, as per existing policy, shall be dealt with separately (copy enclosed). However, the issue of cases where change of floor was allowed by DDA, are under consideration of Supreme Court in the SLP filed by the Renu Bali, and your case also stands on similar footing.

In view of the above position, DDA may not refund amount claimed as excess by Sh. Deepak Verma since the case of charging current shall be decided by Supreme Court of India in SLP filed by Ms. Renu Bali.

In view of facts explained above, your case regarding payment of excess amount will only be decided once the case of Renu Bali is settled by the Hon'ble Supreme Court of India.

4. Aggrieved by the above letter dated 25.9.2006, the Petitioner has filed the present contempt petition. A few background facts may be noticed at this stage.

5. The petitioner applied for allotment of a flat in South Delhi under the Self Financing Schemes ('SFS'). It is not in dispute that he had paid all the Installments within the stipulated time. There was a delay in the construction of the flats which led to their not being given to the allottees within the original time- frame. Ultimately, when the flats were ready for delivery, a policy decision was taken by the DDA to levy surcharge to the extent of 20% of the original amount and also raise a demand for the current cost of the flat. On both these issues, the allottees approached this Court by way of writ petitions.

6. As far as the petitioner is concerned, when the flat was finally allotted, he sought for a change of floor. He was permitted by the DDA to change the floor. The policy of the DDA at that point in time was that consequent upon the grant of the request for a change of floor, the original allotment stood cancelled. The name of the allottee was thereafter included in the next draw of lots, and the allotment so made, either in the same locality or another locality, would be at the current cost. In case of an allottee who had paid all the Installments, this current cost would in effect be the increased pro rata cost of the land.

8. The challenge by the allottees to the levy of the 20% surcharge was negatived by a learned Single Judge of this Court by a judgment dated 20.10.2003. On the issue of demand of current from persons who had not made payments in time, i.e., those who had committed default in making the payment of installments the learned Single Judge gave certain directions. As far as the present case is concerned, the directions given by the learned Single Judge in regard to those who had been permitted change of floor are relevant and read as under:

112 Another category of costing cases arise where there has been a request for change of floors. The circular of 9.7.1990 was referred to in this behalf. However, the said circular is applicable only in respect of costing of left out flats and no case has been made out that the present flats allotted are in the said category. The resolution dated 13.9.1991 was also referred to in this behalf in view of the fact that the revised land rates had come into force from 6.12.1990. The revised land rates were made applicable in cases of change of floors at request of the allotees. Further no interest on their deposit against the earlier flat was to be allowed, which was being done earlier. Admittedly, other than issuance of these circulars, nothing was done to put the allottees to notice that in case of change of floors, such new pricing system would come in vogue.

113 In fact, a reference was made to the policy dated 15.3.1993 resolving the ban on change of location under SFS(s) in terms of resolution No. 108 of 1992 to continue giving discretion to the Lieutenant Governor/Chairman of DDA to permit change of floor in suitable cases. The suitable cases were also further explained and qualified, which were cases of handicapped persons with certain disabilities or elderly family members.

114. I fail to appreciate how mere change of floor can result in the current cost being charged in the same area. There was a ban on change of floor. It was only in medical cases or of old persons that this change could be permitted taking into consideration the bona fide and suitabilities for the requirement of such change. Once the change was permitted, it has to be assumed that the same was after due scrutiny and based on the said parameters. If that be the position, the only charge which could have been levied was the differential in the price which would have been applicable as a consequence of the change of floor and based on the price of the ground floor for successful allocatees of such floor. An important aspect, which has to be considered, is that at the stage of such change of allocation, the allottees were never informed of this consequence. The mere passing of a resolution in the records of DDA cannot be said to be a notice to such allottees. Thus, the allottes may or may nor have accepted to change the floor if they had known that the consequences wooould have been so harsh.

115. This is apart form the fact that there seems to be no basis for such a policy. The policy, thus, requiring current cost to be charged in cases of change of floor is also hereby quashed.

Thus, as far as the change of floor was concerned, the learned Single Judge held that the cost would be on the basis of what was applicable on the date of allocation with the addition of the difference in price as a consequence of the change of floor.

9. The appeals against the judgment of the learned Single Judge dated 30.10.2003 were heard by a Full Bench of this Court. These appeals were disposed of vide judgment dated 22.7.2005 (Renu Bali v. DDA). The operative directions of the said judgment, as contained in para 57 indicate that the Full Bench upheld the judgment of the learned Single Judge as far as the levy of surcharge was concerned. As regards the charging of current cost, the Full Bench modified the order of the learned Single Judge only in regard to those who were in default in making the payment of installments. The Full Bench appears to have not interfered at all with the directions issued by the learned Single Judge on the issue of payment of current cost by persons who had been permitted to change of floor by the DDA. That this direction in the order of the learned

Single Judge was left unalterted by the Full Bench is evident from para 60 which reads as under:

60. For the reasons recorded above, we would partially allow the appeal filed by the Delhi Development Authority (LPA No 118/2004), while declining to grant to the allottees of the South-Delhi flats any relief except to the limited extent aforesaid, the appeals of the allottees (LPAs No 159/2004, 844/2003 and 58/2004) are disposed of in terms of the conclusions aforestated.

10. Mr. S.K. Rungta, learned Counsel appearing for the petitioner submits that as far as the levy of surcharge is concerned, he is no longer aggrieved and has in fact paid the surcharge. He further submits that although at the time of execution of conveyance deed dated 21.12.2005 the petitioner did make the payment of current cost as demanded, he has challenged the said demand and accordingly has filed the present contempt petition. According to the petitioner, since he had already paid all the installments in time he should have been charged the old cost in terms of the judgment of the learned Single Judge dated 30.10.2003. He submits that the Full Bench decision in Reun Bali has not modified the directions given by the learned Single Judge in the judgment dated 30.10.2003 as far as the applicable cost in case of change of floor is concerned.

11. In reply, Ms. Ansuya Salwan, learned Counsel appearing for the DDA submits that the case of Renu Bali (supra) has been appealed against the Hon'ble Supreme Court by Smt. Renu Bali, whose case also concerned change of floor. Since Renu Bali's case was no different from the present petitioner and she had questioned the judgment of the Full Bench before the Hon'ble Supreme Court, the DDA was not inclined to entertain the request of the petitioner for refund of the amount till such time the Hon'ble Supreme Court does not decide the SLP. With reference to the judgment of the Full Bench in Renu Bali, to the extent it is silent in relation to the cases of change of floor, Ms.Salwan submits that if so permitted, she would approach the Full Bench with a separate application seeking necessary clarification/modification.

12. To this Court, it appears that the stand taken by the DDA in the present case is not a reasonable one. The appeal filed by Smt. Renu Bali before the Hon'ble Supreme Court, according to Mr.Rungta, is only on the issue of the validity of the 20% surcharge which was decided against the allottees both by the learned Single Judge as well as the Full Bench. As regards the issue of change of floor, the order of the learned Single Judge dated 30.10.2003 has not been altered or modified by the Full Bench. Considering the fact that the Full Bench decision affirming the order of the learned Single Judge on the issue of cost chargeable in case of change of floor was rendered on 22.7.2005, this Court is unable to accede the request of the DDA to now approach the Full Bench with an application for clarification of the said judgment. In any event, the directions issued by the Full Bench in para 57 of its judgment are ambiguous and admit of no confusion whatsoever. The discussion in the judgment of the Full Bench clearly indicates that only the cases of those allottees who were in default were discussed and the directions in para 57 also pertained only to such cases. A collective reading of the judgment of the Full Bench as well as the learned Single Judge clearly indicates that the directions issued by the learned Single Judge in relation to demand of cost consequent upon a change of floor, have been upheld by the Full Bench of this Court.

13. It is not in dispute that the DDA has not filed Special Leave Petition before the Hon'ble Supreme Court questioning the aforementioned directions issued by the learned Single Judge which have been upheld by the Full Bench of this Court in Renu Bali. In that view of the matter, the pendency of the SLP in the Hon'ble Supreme Court at the instance of Smt. Renu Bali on the issue of validity of the 20% surcharge, cannot come in the way of the DDA issuing a refund cheque to the petitioner, if upon recomputation in accordance with the directions issued by the learned Single Judge in the judgment dated 30.10.2003, such refund is found due to him.

14. The DDA is now directed to recompute the cost payable by the petitioner strictly in accordance with the directions issued by the learned Single Judge in the judgment dated 30.10.2003 and issue a refund cheque to him of the amount found due to him, within a period of four weeks from today, and in any event not later than 14.3.2007. A compliance affidavit will be filed in these proceedings by the DDA on or before 23.3.2007.

15. List for further direction on 30.3.2007.

16. dusty to the parties.