Rajendra Coop. G.H. Socy. Ltd. vs Dda
2007 Latest Caselaw 1666 Del

JUDGMENT

Mukul Mudgal, J.

1. Rule DB. With consent of counsel for the parties, the writ petition is taken up for final hearing.

2. This writ petition was filed by the petitioner seeking the following reliefs:

(A) Issue appropriate writ, order or direction in the nature of mandamus directing the respondent to specify a plot which is going to be allotted to the petitioner under the scheme on the basis of letter dated 18th December, 1995, and they may further be directed to give 3 months extension of time for calling general body meeting of the members of the society as prayed.

(B) Restrain the respondent by an appropriate writ or orders from cancelling the proposed allotment already made by the DDA in their favor vide letter dated 18.12.95.

3. During the course of the proceedings in this Court, considerable reliance has been placed on orders passed in favor of Kunj Vihar Co-operative Group Housing Society, which led to the filing of an affidavit by the Vice-Chairman of the DDA. The sum and substance of the said affidavit of the Vice-Chairman of the DDA is as follows:

3)...The petitioner Society was offered land on 18.12.95 and, therefore, the societies which form part of the same batch of Societies as the petitioner, are the societies which were offered land on the same day. As per the decision of the Hon'ble L.G., the said Societies could be considered for the extension of time, provided they had made the payment of 35% premium on or before 30.09.96. Thus, the crucial date for the purpose of consideration of the grant of extension was 30.09.96.

4) That the petitioner, had admittedly made the payment of 35% premium on 7.2.97 under Court orders. Hence, the stand of the DDA in is Counter Affidavit is that since the payment of 35% premium has been made after the crucial cut off date and, therefore, the petitioner is not eligible to be covered under the benefit for extension.

5) That it was the case of the petitioner before the Hon'ble Court on 25.11.04 that the petitioner is being discriminated against and other societies who had made the payment after the cut off date, had been granted extension.

Thus, the Court has directed me to examine as to whether there are any such Societies as contended by the petitioner and if so, on what terms & conditions such an allotment was made to them?

6) That the matter has accordingly been examined and it has been found that there was only one other Society by the name of 'The Kunj Vihar Co-Operative Group Housing Society' which had been given the benefit of extension of time even though the payment of 35% premium had been received from the Society after the cut off date.

Upon further examination of the circumstances under which, the said extension was granted, it transpires that a suit was filed by the said Society in the Lower Court and later on, a Writ Petition being CWP No. 4732/00 had been filed by the said Society against the DDA in the Delhi High Court. This Writ Petition was disposed of vide order dated 12.09.00. A copy of the said order is annexed hereto as Annexure-A. However, the order dated 12.09.00 is being set out hereunder:

Dhanpothowar Co-Operative Group Housing Society Ltd. and Ors. v. DDA and Ors. being CW No. 4541/97 was decided on 11.9.00. It is contended that this Court has dismissed the Writ Petition and has approved the extension granted by the Competent Authority for deposit of the amount. It is contended by Counsel for the petitioner that an amount of Rs.1,30,87,400/- has already been deposited with the DDA on account of enhanced rate of land. The number of seniority of the Society is 1355 and DDA has not charged the restoration charges as well as other dues in terms of their own policy in view of the pendency of CW No. 4541/97 and other Writ Petitions. Now, that writ petition has been decided. Therefore, there is no impediment in the way of DDA to consider the case of the petitioner in terms of their own revised policy.

With the above observations, the Writ Petition is allowed in terms of Prayer No. 3 of the Writ Petition.

7) That when the said order was sent to the DDA for compliance, the order was interpreted in the light of the last two lines being 'with the above observations, the Writ Petition is allowed in terms of prayer No.(iii) of the Writ Petition' to mean that the DDA was directed to accede to prayer No. 3 in the Writ Petition.

Prayer No.(iii) in the Writ Petition is set out hereunder:

To direct the respondent/DDA to accept the Restoration charges, interest/enhanced rate, if any, from the petitioner society on the same principles as the Respondent/DDA has done in case of other societies pertaining to allotment of land in Dwarka/Pappankala Residential Scheme.

As a result of this interpretation, the charges as mentioned in prayer (iii) were demanded from the petitioner Society and an extension of time was granted.

8) That upon a careful perusal of the order, it transpires that although it may or may not have been the intention of the Court to direct the DDA to give the extension of time since the order also stated that "DDA to consider the case of the petitioner in terms of their own revised policy", it appears that since the last sentence stated that the Writ Petition was allowed in terms of prayer (iii), the order was interpreted on the basis of the aforementioned direction. Hence, extension of time was allowed to the said society after interpreting the orders of the Hon'ble Court.

9) That it is, however, the humble submission of the deponent that the circumstances in which the extension of time was given to the 'The Kunj Vihar Co-Operative Group Housing Society' arose due to the interpretation of the orders of the Hon'ble Court and the present petitioner cannot derive any benefit from the said extension of time given to the said Society, since the petitioner is clearly not falling within the parameters laid down by the Hon'ble Lt.Governor in 1997.

10) Hence it is most respectfully prayed that the grant of extension of time to 'The Kunj Vihar Co-Operative Group Housing Society' may not be taken as a precedent for granting relief to the petitioner society herein since the said extension has been granted in the peculiar facts and circumstances of that case which does not have any parity with the facts in the present case. The Writ Petition, therefore, merits dismissal.

4. This affidavit was filed pursuant to the order of 25.11.2004, which reads as follows:

%25-11-2004

Present: Mr.Harish Malhotra for the petitioner.

Ms.Sangita Chandra for the respondent.

+WP(C) 292/97

In this matter on 7.2.1997 on the direction of the Court a sum of Rs.43 lakhs was directed to be deposited by the petitioner with the respondent for allotment of a plot of 5500 sq. mtr. in terms of the allotment order dated 18.12.1995. The Court directed that the said allotment shall not be cancelled by the DDA and the question of interest will be decided later on. From 1997 we have come to 2004, nothing has happened in the writ petition.

Counsel for the respondent/DDA has contended that in terms of decision of this Court in the case of Dhanpothdwar Co-operative Group Housing Society Ltd. v. Delhi Development Authority and Ors. CW No. 4541/1997, the Court had dismissed the writ petition while holding that time for making payment could be extended by the DDA in view of the nothings on the file of the respondent. On the basis of the said judgment it was contended before us by counsel for the respondent that the petitioner had not deposited the amount with 35% premium prior to 30th September, 1996 and as the amount was not deposited prior to 30th September, 1996, allotment cannot be made to the petitioner. On the other hand, counsel for the petitioner has contended that he was prepared to make payment to the DDA according to the market rate prevalent on 7th February, 1997 along with interest on delayed payment. Another submission of the counsel for the petitioner is that though the case of the petitioner has been discriminated by non-allotment, the DDA has allotted land to other societies after 7th February, 1997. Let the affidavit of the Vice Chairman of the DDA be filed whether any allotment has been made to another society pertaining to the same batch after 7th February, 1997 and if so, on what terms and conditions. Let the same be filed within four weeks.

Renotify on 13.1.2005.

dusty.

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Vijender Jain, J.

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Anil Kumar, J.

November 25, 2004

5. Having read the explanation given in the additional affidavit given by the Vice-Chairman, DDA and the terms of the order dated 12.09.2000 in WP(C) No. 4732/2000 titled "Kunj Vihar Co-operative Group Housing Society v. D.D.A.", which could have led to an ambiguous understanding, we are of the view that the Kunj Vihar Co-operative Group Housing Society's case cannot be taken as a precedent for granting relief to the petitioner or any other entity. That lead us to the crux of the controversy in the present writ petition. It is not in dispute that the petitioner has already paid a sum of Rs.43,06,168/- on 27.02.1997. The case set up by the DDA is that such extension of time to make the deposit of 35% of the land price was available only to such societies which made the payment on or before 30th September, 1996. Thus, the issue which is required to be determined is: whether the extension of time granted up to 30th September, 1996 by the DDA could be extended by the Court in view of the peculiar facts and circumstances of the case as occasioned by an ambiguous understanding of the order of the Court dated 12.09.2000 and subsequent reliance on that so-called precedent of the Kunj Vihar Co-operative Group Housing Society.

6. We have already made it clear that the Kunj Vihar Co-operative Group Housing Society's case cannot form the precedent for the present case. However, we are of the view that as there was some doubt about the applicability of the principle laid down in the Kunj Vihar Co-operative Group Housing Society's case, such reason is sufficient in itself to extend the time for making the payment, which ended on 30.09.1996 and in any case ended on 27.02.1997.

7. The orders of 22nd May, 1997 and 4th December, 2006 are also instructive and read as follows:

22-05-97

Present: Mr.Harish Malhotra for the petitioner.

Mr. Sumit Bansal for the respondent.

+CW 292/97 & CM 472/97

Mr.Malhotra says that to end the controversy he is willing to pay the interest or current price as determined by the DDA. Mr.Bansal says that without prejudice to the rights and contentions of the parties, he will seek instructions.

Renotify on 7.8.1997

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Vijender Jain, J.

May 22, 97

%04.12.2006

Present: Mr.Harish Malhotra, Sr.Advocate with Mr.Tanuj Khurana for the the petitioner.

Ms.Sangeeta Chandra for respondent.

+WP(C) No. 292/97

We have heard learned Counsel for the petitioner as also Ms.Sangeeta Chandra, Standing Counsel for respondent in opposition. Without prejudice to the rights and contentions of the parties and subject to a final decision being taken by the respondent, let the petitioner deposit with the DDA interest on 35% premium from the due date till the date of payment i.e. 28.2.1997 when the payment was made under orders of this Court and the balance 65% premium to be paid on current pre-determined rate for the year 2006-2007 i.e. the rate of Rs.14,751/- per suare meter within sixty days from today. The Registrar of Cooperative Societies shall in the meanwhile carry out the verification with regard to the status of the office bearers and the eligibility of members.

A copy of the order be sent to the Registrar of Cooperative Societies for compliance and also to Mr.V.K.Tandon, Nominated Counsel.

Renotify on 20.3.2007.

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Manmohan Sarin,J.

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Vipin Sanghi, J.

December 04, 2006

8. In the order dated May 22, 1997, the offer of the petitioner's counsel to pay the interest or current price as determined by the DDA was recorded and by the order dated December 4, 2006 the current pre-determined rate for the year 2006-07, i.e., Rs.14,751/- per square metre, was required to be deposited by the petitioner within sixty days from the said date. The current pre-determined rate for the year 2007-08 of the land has been calculated by the DDA in a calculation handed over to this Court as Rs.5,66,25,928/-.

9. Thus, the total amount payable including the interest for the delay in making the payment now comes to Rs.5,66,25,928/-. We are, therefore, of the view that in light of the original prayer made in the writ petition, upon the payment of said sum of Rs.5,66,25,928/- not later than 6th October, 2007, the petitioner will be entitled to seek the setting aside of the order cancelling the allotment dated 15th October 1996. If the payment is made within the said period, no further interest shall accrue, failing which the DDA will be permitted to take action in accordance with law. We accordingly direct that upon the payment of the aforesaid amount within the period specified by this Court, the DDA shall earmark a plot of 5500 sq. mtrs. land in Dwarka. The specific allocation of the 5500 sq. mtrs. land in Dwarka to the petitioner shall, as set out above, be done within a period of six weeks of the deposit of the sum of Rs.5,66,25,928/-. We further direct that upon the petitioner fulfillling the requisite conditions required to be fulfillled by the Registrar of Cooperative Societies and completion of other required formalities, the possession of the aforesaid plot of land shall be handed over to the petitioner by the D.D.A., but the same shall not be later than six weeks from the completion of the formalities and the expression of satisfaction of the Registrar of Cooperative Societies.

10. W.P.(C) 292/1997 and CM Nos.11624/2003 and 11908/2007 stand disposed of accordingly.

Copies of this order be sent to the Vice-Chairman, D.D.A. and the Registrar, Cooperative Societies immediately to ensure compliance. Compliance Reports be furnished by both the D.D.A. and the Registrar within the stipulated time frame.