Purshottam Kumar vs Delhi Development Authroity
2009 Latest Caselaw 1625 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                     Date of decision : 24.04.2009


+                          LPA No.1635 of 2006


PURSHOTTAM KUMAR                                    ...APPELLANT

                           Through:     Ms.Richa Kapoor, Advocate.


                                    Versus


DELHI DEVELOPMENT AUTHROITY                         ...RESPONDENT

                           Through:     Mr. Rajiv Bansal, Advocate.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?              No

2.        To be referred to Reporter or not?               No

3.        Whether the judgment should be
          reported in the Digest?                          No


SANJAY KISHAN KAUL, J. (Oral)

1. The appellant, a person belonging to the scheduled tribe,

applied to the DDA for allotment of a shop under the SC/ST

category in Zone E-6, Dilshad Garden, New Delhi. A draw

of lots was held by the DDA on 08.05.2003 and shop no.18,

LSC, Block O & P, Dilshad Garden, New Delhi was allotted to

the appellant in terms of the allotment letter dated

30.05.2003. The allotment letter stated that as per the

terms and conditions of allotment, 25 per cent of the

premium was to be paid within 60 days while balance 75

per cent had to be paid in 24 equated monthly instalments

inclusive of interest at the rate of 6 per cent per annum.

The cost of the shop was stated to be Rs.11,59,500/- and

the monthly instalments were quantified at Rs.38,550/-.

2. The appellant did not pay any amount, but approached the

DDA stating that the price of the shop was not within his

means.

3. It is the case of the appellant that on an enquiry, he found

that a similar shop bearing no.19 in the same locality had

been put in the tender at Rs. 10,43,550/- for the general

category.

4. The appellant filed a WP(C) No.262/2004 before this Court

stating the aforesaid facts and claiming that for reserve

category candidates, there is a reduction of 10 per cent

given over the average auction rate of commercially built

up properties in the immediate preceding year and since

the reserve price was Rs.40,000/- per square metre, the

same was liable to be reduced by 10 per cent for fixing the

price of the shop of the appellant.

5. The appellant claims that the basis for determination of the

price was a Resolution No. 28 dated 12.03.1992 of the DDA

relating to disposal of commercial properties. The

appellant also claimed that the size of the unit to be

allotted to the appellant was 27.60 metres whereas the

shops to be allotted to the reserve category should not be

more than 20 square metres. The action of the respondent

is stated to be illegal on these two accounts and with these

averments, the writ petition was filed making the following

prayers:

" a) Issue a writ of mandamus thereby directing the Respondent-Authority to allot the shop to the Petitioner on the basis of Resolution contained in item No.28 dated 12.03.1992, and

b) A writ of Declaration declaring the act of the Respondent-Authority demanding from the Petitioner higher rate than the rate which has been worked out on the basis of the resolution contained in item No.28 dated 12.03.1992 as being arbitrary and illegal."

6. The respondent-DDA resisted the writ petition. It was stated

that the reserve price, size and locality was available as per

annexure to the application and the appellant applied for a

big shop by ticking the relevant column and thus the

appellant sought a large size shop. In this behalf, it was

stated that the appellant had also made a choice for a kiosk

near Safdarjung Bus Terminal of which the reserve price

was Rs.61,72,000/- and thus it has been pleaded that the

claim of the appellant that the commercial space in

question is too expensive for him is clearly an afterthought.

Insofar as the Resolution No.28 dated 12.03.1992 was

concerned, it was pointed out that the same stood

superseded by the Resolution No.69 of 2002 dated

18.06.2002 and that the reserve price was fixed by the

Price Fixation Committee as per that Resolution. In terms

of the Resolution No.69 of 2002, it had been resolved that

for a relevant financial year, the price would be fixed by

taking the average rate of auction fetched by the DDA in

the previous calendar year to ensure that the reserve price

is fixed by 1st April. The application of the appellant was

deposited on 11.03.2003 and thus it was in the financial

year 01.04.2002 to 31.03.2003. The price had to be fixed

as per the calendar year 01.01.2001 to 31.12.2001. The

differential in price with Shop No.19 is stated to be on

account of the fact that the tender for the same was floated

in October, 2003 and thus it came in the financial year

01.04.2003 to 31.03.2004 and thus the price fixation had to

be done on the basis of the calendar year 01.01.2002 to

31.12.2002. There was thus a differential in the average

auction rate for the two calendar years which were the

reckoning years for determining the prices in the relevant

financial years.

7. The writ petition filed by the appellant has been dismissed

as per the impugned order dated 16.05.2006. The learned

Single Judge has accepted the contentions of the DDA as

made aforesaid. It has been pointed out that the appellant

had the option for various properties and had given his

options taking into consideration the price notified which

could not be questioned. The third option given by the

appellant was for two kiosks near Safdarjung Bus Terminal

for the notified prices of Rs.61,72,000/- and Rs. 29,34,000/-

respectively for kiosk no.1 and kiosk no.5. The appellant,

thus, could not have made such an option without having

the means for the same. The price of the shop in question

was only Rs. 11,59,500/- which was known to the appellant.

The learned Single Judge has concluded that the appellant

could not predicate his claim on the reserve price fixed for

a subsequent year. In the facts of the case, the prices had

fallen and if the prices had increased, the appellant would

not have come to the Court claiming that he wanted to pay

more. This is apart from the fact that the prices were

notified to all.

8. We have heard learned counsel for the appellants at length.

9. Learned counsel for respondent-DDA has pointed out that

to some extent the appellant has tried to make out a new

case in the appeal other than what was pleaded in the writ

petition.

10. The appellant has sought to challenge the prices fixed by

the Price Fixation Committee. It is the case of the appellant

that the relevant date would be the date of allotment and

since the draw was held on 08.05.2003, the relevant

financial year should be 2003-04.

11. The appellant has also sought to place reliance on an Order

passed on 14.12.2004 in the same writ proceedings by the

same learned Single Judge pointing out the discrepancy in

the pricing. It is pleaded that the learned Single Judge

ought to have considered that even a big shop meant only

of 15-20 square metres.

12. We have examined the contentions of the learned counsel

for the appellant on the basis of the record and find no

force in the same.

13. The first and foremost fact which cannot be lost sight of is

that the shop in question is a commercial one in which the

reserve price was indicated in the brochure itself. The

appellant had full knowledge of the price before he sought

allotment. It was not a case of tender, but of allotment.

The allotment to a SC/ST category applicant has to be made

at current reserve price. It is no doubt true that in the form

the appellant had opted for a big shop and a big shop is

defined to be one which is between 15-20 square metres

while a small shop is less than 15 square metres.

14. The real grievance of the appellant before the learned

Single Judge, as is apparent from the prayer clause, was

that the pricing for the shop allotted to the appellant should

be on the basis of the Resolution No.28 dated 12.03.1992.

This plea stands negated in view of the documents filed

with the affidavits of the respondent which show that the

said Resolution stands superseded by a subsequent

Resolution no.69 of 2002. The Price Fixation Committee

determined the pricing as per Resolution No.69 of 2002

dated 18.06.2002. The Resolution No.69 of 2002

undoubtedly had prospective effect. The application of the

appellant was deposited on 11.03.2003 which was much

after Resolution No.69 of 2002 came into force. Thus, it

cannot really be disputed that it is the Resolution 69 of

2002 which would be applicable to the case of the

appellant.

15. The Resolution No.69 of 2002 resolved that for the relevant

financial year, the price would be fixed by taking the

average rate of auction fetched by the DDA in the previous

calendar year to ensure that reserve price is fixed by 1st

April. Since the Resolution No.69 of 2002 came into force

in June, 2002, the period for which it would be applicable

would only be post the date of the Resolution dated

18.06.2002. The price fixation would have to be on the

basis of the average auction rate for the previous calendar

year which would be the year 2001 as the financial year in

question in which the application was made was

01.04.2002 to 31.03.2003. The application of the appellant

was, in fact, made towards the tail end of the financial year.

The reduction of price by 10% for SC/ST has been done

away with.

16. The result of the aforesaid is that the very substratum of

the challenge by the appellant does not exist as the price

fixation is governed by different Resolution i.e. Resolution

No.69 of 2002 and the price has been properly fixed as per

the said Resolution by the Price Fixation Committee.

17. The plea of discrimination is not sustainable for the reason

that the differential in price occurred on account of the fact

that the tender for shop no.19 was floated in October, 2003

and thus the relevant financial year became 01.04.2003 to

31.03.2004 making the year 2002 as the relevant calendar

year. There were thus two different calendar years

applicable in respect of the shops and the average auction

rates varied for the two calendar years. It so happened

that the average auction rate for the subsequent calendar

year was less and thus the reserve price for shop no.19 was

lower than the price of shop no.18 of the appellant. We

thus find no infirmity in the same.

18. We also find force in the conclusion of the learned Single

Judge that the appellant considered himself monetarily

capable of bidding for the kiosks nos. 1 and 5 at the

Safdarjung Bus Terminal for which the notified prices were

Rs.61,72,000/- and Rs.29,34,000/- which were much higher

than the price for shop no.18 of Rs.11,59,500/-. It is not in

dispute that the shop in question is a new unit and thus the

pricing policy for the new units would have to be made

applicable to shop no.18 and not the policy relating to old

and undisposed units. The principles applicable to old and

undisposed units including the date of draw forming the

basis of pricing would also thus not ipso facto apply to new

units. The Resolution No.69 of 2002 is also quite clear as

to how the pricing has to take place for the new units on

one hand and for old & undisposed units on the other.

19. The reliance placed by learned counsel for the appellant on

an earlier order passed by the learned Single Judge in the

same proceedings is of no assistance as the learned Single

Judge was only stating what appeared from the pleadings

and it called upon the DDA to explain the stand better.

The correct stand was put forth before the learned Single

Judge and he came to a final conclusion on the basis of the

impugned order. It is not as if the writ petition had been

disposed of vide order dated 14.12.2004, relied upon by the

learned counsel for the appellant, but the Vice Chairman,

DDA had been asked to look into the matter. The final

order passed dismissing the writ petition is the impugned

order.

20. We may notice that the appellant has not deposited a

penny, as informed to us, over the last six years, but kept

on challenging the pricing when he had applied for the shop

with his eyes open knowing fully well the pricing thereof.

21. The pricing has been found to be correctly calculated as per

Resolution applicable i.e.Resolution No.69 of 2002 dated

18.06.2002 and not Resolution No. 28 dated 12.03.1992

which stood specifically superseded. The only basis of the

writ petition was this Resolution no.28 dated 12.03.1992 as

is apparent from the prayer clause. The appellant has, in

fact, kept the shop blocked for all these six years.

22. We find no merit in the appeal and the same is dismissed

with costs quantified at Rs.11,000/-.

SANJAY KISHAN KAUL, J.

April 24, 2009                             SUDERSHAN KUMAR MISRA, J.
dm