Delhi Development Authority vs Shri Gurcharan Singh
2009 Latest Caselaw 5289 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                           Reserved on: 06.11.2009
%                                                     Date of decision: 18.12.2009


+                               LPA No.1097 of 2006


DELHI DEVELOPMENT AUTHORITY                                ...APPELLANT
                   Through:                     Ms. Sangeeta Chandra,
                                                Advocate.


                                          Versus


SHRI GURCHARAN SINGH                                        ...RESPONDENT
                   Through:                     Mr. H.D. Talwani, 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?                           Yes

2.        To be referred to Reporter or not?                            Yes

3.        Whether the judgment should be                                Yes
          reported in the Digest?


SANJAY KISHAN KAUL, J.

1. The mother of the respondent was the original owner of

property bearing No.B-2/17, Janak Puri, New Delhi,

purchased by her in an auction conducted by Delhi

Development Authority (for short „DDA‟). The prescribed

user of the property is residential. The ground floor of the

said property was let out by the respondent for the

residence of the Principal of a school. There were some

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disputes between the respondent and the tenant as the

tenanted premises were not vacated and the tenant was

found running a school. The appellant issued show cause

notice on 27.12.1995 followed by a final show cause notice

dated 18.3.1996 asking the respondent to stop misuse. It is

not necessary to go into further details in respect of this

dispute but suffice to say that when the respondent applied

for conversion of property into freehold, the application was

not processed on account of misuse charges.

2. The respondent filed Civil Writ Petition No.3211/2001 which

was disposed of on 8.1.2003. In terms of the said order the

respondent agreed to pay misuse charges in respect of the

ground floor portion and the period for which the misuse

charges were held payable was 1.4.1993 to 31.3.1996. The

appellant was directed to send a fresh demand of misuse

charges in terms of the said order. This order has become

final.

3. The second round of litigation began by filing WP (C)

No.15897/2004, which has resulted in the impugned

judgement dated 15.12.2005. A reading of the impugned

order shows that the respondent, once again, sought to

raise the issue of levy of misuse charges which was

negated by the learned single Judge in view of earlier order

passed on 8.1.2003. Apart from this, two other issues were

raised by the respondent: (i) The permissible covered area

is only the ground floor coverage excluding the coverage of

the floors above and thus the misuse charges have been

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calculated incorrectly; (ii) the rebate admissible for such

conversion having been increased from 25 per cent to 40

per cent, the excess charges paid were liable to be

refunded.

4. The learned single Judge found that though the demand

raised by the appellant was as per formula applied and

while applying the formula the permissible covered area

had been determined only in the context of the ground floor

while it ought to have been in the context of the Floor Area

Ratio (for short „FAR‟) for the plot meaning thereby the built

up area on the plot as a whole as permissible in law. The

respondent was also entitled to refund of rebate of 40 per

cent instead of 25 per cent.

5. The appellant/DDA is aggrieved by the aforesaid two

directions.

6. Insofar as the second direction is concerned, it is not in

dispute that the misuse charges in respect of the

respondent have been determined only for 750 sq.ft. for the

period of 1.4.1993 to 31.3.1996. Learned counsel for the

appellant has pointed out that the rebate had increased

from 25 per cent to 40 per cent vide circular dated

18.5.2003. The order was made effective from 27.6.2003.

The plea, thus, advanced was that the respondent cannot

take benefit of lower conversion charges based on the date

of the application, being application No.338601 dated

12.12.1994, while seeking a higher percentage of rebate as

applicable subsequently after almost ten (10) years.

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7. We find force in the aforesaid contention for the reason that

undisputedly there has been increase in the conversion

charges from the date of the application. The respondent

himself had, in fact, asked for a rebate of 25 per cent as is

apparent from a reading of the impugned order. This was

the rebate prevalent when the application for conversion

was made. The circular enhancing the rebate to 40 per

cent is effective prospectively from 27.6.2003. The actual

conversion in the case of the petitioner was allowed on

4.9.2003 after the circular but by that time the conversion

rates had increased considerably. We are in agreement

with the submission of the learned counsel for the appellant

that the respondent cannot take advantage of this circular

on the basis of the date when the conversion application

was allowed while simultaneously claiming that he is

entitled to pay conversion charges only as on the date the

application was filed in the year 1994.

8. The other plea arises from the meaning of what is

understood by "permissible covered area". The conversion

policy has been explained in the "Information for the

Guidance of the Leaseholders". Clauses 1.7 and 1.8, which

are relevant are reproduced hereinunder:

"1.7. The formula for calculation of charges for change of use are as under:-

Prior to 1.4.1981 Size X Misused area Present The land 10½% of Permissible commercial rate on the the covered area rate of land date of last plot X for the Minus transaction X purpose for for the which the purpose for property is which land misused was leased.

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From 1.4.1981 to 31.8.1981, the percentage multiplier in the above formula was 12½ & from 1.9.89 onwards it is 13.9.

In the case of the residential leases in Rehabilitation Colonies, misuse charges are recoverable from 5.5.1982 onwards in accordance with the following formula:-

    Size    X   Misused area         Present                    Present            6¼%
    of          Permissible          determined                 pre-
    the         covered area         commercial                 determined
    plot                         X   value of the      Minus    value     of   X
                                     land for the               the land for
                                     purpose   for              the
                                     which    the               purpose it
                                     property   is              was leased
                                     misused

1.8 In cases where whole of the premises is under misuse, the misused area will be taken as a total built up area i.e. plint area including thickness of all the walls, garages and servant quarters. In cases of misuse of part of the premises, the misused area will be calculated according to actual measurements of the area under misuse, such area being assessable/verifiable from the building plan as sanctioned by the local municipal body."

9. There is no dispute about the size of the plot or the misused

area. The dispute is only about „permissible covered area‟.

It is the plea of the respondent that since the building

consists of more than the ground floor, appropriate

adjustments should be made and the permissible covered

area should be construed to mean the, „total covered area

on all floors‟ as used in clause 2.36 of the Delhi Building

Bye-Laws, 1983, which define the Floor Area Ratio or FAR.

On the other hand learned counsel for the appellant

submitted that the respondent cannot ask the Court to re-

write the formula and the formula must be strictly adhered

to. In this behalf learned counsel drew our attention to the

Delhi Building Bye-Laws 1983 where covered area is

defined under Clause 2.19 which reads as under:

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"2.19. Covered area. - Ground area covered immediately above the plinth level covered by the building but does not include the space covered by:

(a) Garden, rockery, well and well structures, plant nursery, waterpool, swimming pool (if uncovered), platform round a tree, tank, fountain, bench, CHABUTRA with open top and unclosed on sides by walls and the like;

(b) Drainage culvert, conduit, catch-pit, gully, pit, chamber, gutter and the like; and

(c) Compound wall, gate slide swing, canopy, areas covered by Chajja or alike projections and staircases which are uncovered and open at least on three sides and also open to sky."

The FAR is defined under Clause 2.36, which reads as

under:

"2.36 Floor area ratio (FAR). - The quotient obtained by dividing the total covered area (plinth area) on all floors multiplied by 100 by the area of the plot:

FAR = Total covered area of all floors X 100 Plot Area"

10. Learned counsel, thus, rightly submitted that the concept of

covered area is different from the concept of FAR. Clause

2.19 clearly states that covered area is the ground area

covered immediately above the plinth level covered by the

building while excluding certain aspects as specified in the

Clause. On the other hand FAR is the quotient obtained by

dividing the total covered area (plinth area) on all floors

multiplied by 100, by the area of the plot.

11. We had in terms of our order dated 5.5.2009 directed the

appellant to file an affidavit whether in all cases of

conversion of plots from leasehold to freehold while

calculating misuse charges the „permissible covered area‟

has been treated as analogous to the definition „covered _____________________________________________________________________________________________

area‟ as defined in Clause 2.19 of the Delhi Building Bye-

Laws, 1983 and does not include the covered area of floors

above the ground floor. The affidavit dated 9.5.2009 has

been filed by Shri S.S. Gill, Director (Residential Lands),

DDA which categorically states that the term „permissible

covered area‟ as per Bye-Law 2.19 is not including the

covered area of floors above the ground and the said

expression is being treated as analogous to covered area

given by Bye-Law 2.19. As an illustration various cases of

conversion have been annexed to the affidavit to show the

said consistent policy.

12. We find that the Building Bye-Laws clearly define two

different terminologies i.e., „covered area', and, 'FAR‟ or

„Floor Area Ratio‟. Since, the conversion policy uses the

words „permissible covered area‟, it is apparent that the

only addition is of the adjective, „permissible‟, to the

expression, „covered area'. This means that non-

permissible covered area is not to be included. Under

Clause 2.19 of the Delhi Building Bye-Laws, 1983, „covered

area' is defined as the ground area covered immediately

above the plinth area covered by the building and does not

refer to the area constructed on other floors. This approach

is being consistently followed by the Department.

13. However, the FAR or the, „Floor Area Ratio‟, is a quotient

arrived at by applying the prescribed formula. For this

purpose, Clause 2.36 requires that the „total covered area'

... „on all the floors‟, must form a part of the prescribed

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calculation. In that clause, after the words, „total covered

area‟, the words, „plinth area‟ are inserted in parenthesis

followed by the words, „on all the floors‟. The use of this

terminology makes it apparent that even the framers were

conscious of the limited scope and meaning ascribed to the

expression, „covered area‟, in Clause 2.19, and the fact that

by itself, the expression, „covered area‟, cannot be taken to

mean the total covered area on all the floors.

14. The aforesaid treatment accorded to the expression,

„covered area‟, while determining the quotient denoting the

FAR shows two more things :-

a) Whenever any special or extended meaning is to be given to the expression, „covered area‟, appropriate words are added.

b) Whenever the framers intended that the total covered area on all floors should be considered, they have no hesitation in saying just that.

15. In this case, for calculating misuse charges, the framers

have employed another expression altogether. They‟ve

used the expression, „permissible covered area‟. In

substance, the argument of the respondent‟s counsel is

that this should be taken to mean the same thing as, „total

covered area (plinth area) on all floors‟ used in the formula

for arriving at the FAR. There is nothing to warrant such a

conclusion. The fact that the framers have chosen to use

this form of words only in relation to FAR, and not in

relation to misuse charges, can only mean that the framers

did not intend either the original Clause 1.7 or the amended

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clause 13.9, prescribing misuse charges, to have any such

meaning.

16. If the respondent‟s contentions are accepted then in the

formula prescribed for calculating misuse charges, the

misused area, which forms the numerator, would become

much smaller in comparison to the denominator.

Consequently, the resultant quotient would yield a much

lower figure which would then result in a lesser misuse

charge. Learned counsel for the respondent states that his

client must be held entitled to that benefit, but we do not

agree.

17. To our mind, the circumstances in which the expression

„permissible covered area‟, is used are a better guide. This

expression forms the denominator in a formula dealing with

charges to be levied for misuse where the numerator is

stated to be, „misused area‟. Therefore, what we have is,

„misused area‟, divided by „permissible covered area‟.

Whilst the expression „area‟ in the numerator is defined by

the adjective, „misused‟; the expression „covered area‟ in

the denominator is defined by the adjective „permissible‟.

It is elementary that the larger the denominator, the

smaller the quotient. It would therefore be logical to

assume that the framers intended that the calculation of

misuse charges leviable should be carried out by

prescribing a denominator that is clearly defined and

unambiguously excludes impermissible area. There is

nothing to warrant that it must be construed to include

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further elements, as suggested by the respondent, that

would only result in increasing the denominator and

consequently reducing the quantum of misuse charge to be

levied.

18. Before departing from the subject, we might mention that

the scope of the relevant clause of the policy is to levy

misuse charges in respect of area which is admittedly

misused. It is not the function of the courts to proactively

interpret such provisions with a view to whittling down their

scope and impact and to benefit the wrong doer beyond

what is necessarily contemplated by the policy itself.

19. For all the above reasons, we hold that the expression

„permissible covered area‟ is used in the bye-laws by way of

abundant caution to mean the area defined by Clause 2.19

excluding anything impermissible and nothing more; and

the conclusion of the learned Single Judge to the contrary,

cannot be sustained.

20. We are of the considered view that it is not the function of

this Court to re-write the formula. The creators of the

formula have understood the same in a particular manner

and have uniformly applied the same. Not only that the

expressions in the formula have been given their

interpretation on the basis of the Delhi Building Bye-Laws,

1983 which cannot be faulted.

21. The legal position is not in doubt in respect of judicial

review in respect of policy decisions. It is not the function

of the Court to re-write a policy as observed by a Division

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Bench of this Court in Shri Ram Niwas v. Lt. Governor and

Ors.; 2007 (8) AD Delhi 493. In fact, what is to be seen by

the Court is whether a uniform principle is followed and

whether the subjects are treated fairly and reasonably. It is

only in cases of palpable arbitrary exercise of power that

the Court can interfere. Thus, all that the Court has to see

is whether the Scheme applies uniform principles and

whether it is fair and reasonable {Federation of Ashok Vihar

Residents Welfare Association (Regd.) v. Union of India;

2000 (1) AD (Delhi) 519}.

22. The present case is not one where any mala fides are

attributed. There is nothing patently arbitrary,

unconsciously unfair, discriminatory or mala fide, which is

either pleaded or proved. once the respondent has been

treated at par with other applicants for conversion from

leasehold to freehold there is no reason for us to lay down a

policy or interfere in the policy already put in place by the

appellant by recasting a formula which is the natural

consequence if we give a different meaning to the

expression „permissible covered area‟. We are fortified in

our view by the observations of the Supreme Court in Ugar

Sugar Works Ltd. Vs. Delhi Admn. AIR 2001 SC 1447.

23. We are, thus, of the considered view that the calculation

made by the appellant cannot be faulted on this account

and the expression „permissible covered area‟ cannot

include, apart from the area covered immediately above

plinth area covered by the building, the construction made

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on the other floors. We have already observed that the

rebate entitlement of the respondent is also 25 per cent as

that was the rebate prevalent on the date of the application

for conversion and the conversion rates have been taken as

on that date and not the higher rates prevalent in 2003

when the rebate was increased to 40 per cent.

24. The appeal is accordingly allowed setting aside the

impugned order and the writ petition filed by the

respondent is dismissed leaving the parties to bear their

own costs.

SANJAY KISHAN KAUL, J.

DECEMBER 18, 2009 SUDERSHAN KUMAR MISRA, J. b'nesh

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