Mahesh Kumar & Ors. vs Commissioner & Competent ...
2011 Latest Caselaw 368 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                       Date of decision: 21st January, 2011

+                                             W.P.(C) 926/2007

%        DEEPAK KUMAR PATHAK & ORS.              ..... Petitioner
                    Through: Mr. Vivek Chib & Mr. K. Varghese,
                             Advocates.

                                              Versus

         MCD & ANR.                                                    ..... Respondent
                                      Through:      Mr. O.P. Saxena, Advocate

                                                 AND

                                            W.P.(C)1026/2007

%        MAHESH KUMAR & ORS.                      ..... Petitioners
                    Through: Mr. Hem C. Vashisht, Advocate

                                              Versus

         COMMISSIONER & COMPETENT AUTHORITY, SLUM & JJ
         DEPARTMENT, MCD & ANR.                  ..... Respondents
                     Through: Mr. O.P. Sexena, Adv.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                                Yes

2.       To be referred to the reporter or not?                         Yes

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

RAJIV SAHAI ENDLAW, J.

1. The two petitions were being listed together for hearing on the

contention of counsels that they entailed similar question. However, factual

matrix being different, facts thereof are set out separately.

W.P.(C) NO.926/2007

2. The fourteen petitioners are the occupants of the stalls allotted in the

year 1983 by the Slum & J.J. Wing, then of the DDA, subsequently of the

MCD and now succeeded by the Delhi Urban Shelter Improvement Board,

in Lakshmi Market, Madangir, Main Road near Khanpur Depot. It is the

case of the petitioners that the said stalls were allotted on "License Fee

Basis" with the license fee at the time of allotment of `25/- per month. The

petitioners claim that about the same time stalls were also allotted on similar

basis in Sidharth Market and G-Block Market, also in the Madangir area.

The petitioners claim that in the year 1986 the allotment of the stalls in

Sidharth Market and G-Block Market was converted from „License Fee

Basis‟ to "Permanent Lease Basis" upon payment of four times the original

cost of the stalls. It is stated that thus a sum of `9,000/- only was demanded

and collected from each stall holders. The petitioners claim that they were

also informed at that time that their stalls would also be similarly converted

from „License Fee Basis‟ to „Permanent Lease Basis‟ and representations in

this regard were also submitted by the petitioners.

3. The petitioners however claim that conversion was not allowed in

Lakshmi Market only for the reason that the papers of Lakshmi Market had

been misplaced in the office of DDA. The petitioners rely upon an inter

office memo dated 5th February, 1992 in this regard.

4. The petitioners however claim that in or about the year 1992 they

were issued letters in which initial cost of conversion of `2,000/- was

demanded pending the working out of the cost of conversion and to be

adjusted in the cost ultimately computed. The petitioners claim to have

again represented for issuance of the demand letters of the entire conversion

cost.

5. On 29th January, 2002 the Slum & J.J. Department of the MCD

published a public notice for regularization of commercial stalls in favour of

unauthorized occupiers thereof. The petitioners state that though they are

original allottees of stalls but by way of abundant caution applied thereunder

also.

6. The petitioners further claim that in September, 2003 ultimately

demand letters were issued in respect of the stalls in their occupation in

Lakshmi Market, demanding `2,45,000/- for conversion of the stalls from

„License Fee Basis‟ to „Permanent Lease Basis‟. The petitioners represented

against the said demand contending that they were similarly situated as the

stall holders in Sidharth Market and G-Block Market, conversion wherein

was allowed for `9,000/- only and thus they could not be charged

`2,45,000/-. Upon rejection of their representations, the present writ

petition was filed.

7. Notice of the writ petition was issued. A counter affidavit was filed in

which it was admitted that though a decision was taken in the year 1999 to

convert the allotments of the stalls from „License Fee Basis‟ to „Permanent

Lease Basis‟ but since the costing was not available, the same could not be

implemented and on account of payment of `2,000/- only was demanded

from those stall holders who were seeking to repair their stalls. It is also

pleaded that most of the occupants of the stalls are not the original allottees

but subsequent purchasers but allotment in whose favour had been

regularized in accordance with the scheme. It is further pleaded that the sum

of `2,45,000/- was calculated in the year 2003 by the Finance Wing and the

petitioners had not paid the same for four long years till the filing of the writ

petition or even thereafter also. It was denied that the case of the petitioners

is similar to that of stall holders in Sidharth Market or G Block Market or

that the petitioners are entitled to conversion on payment of `9,000/- only as

paid by the stall holders of Sidharth Market and G-Block Market.

8. This Court being of the opinion that the counter affidavit did not

disclose the basis of the cost, vide order dated 5 th March, 2008 directed

filing of an additional affidavit.

9. In the additional affidavit so filed, it is stated that the costing of the

stalls in occupation of the petitioners was worked out on the basis of the

expenditure documents and was duly approved by the competent authority

on 19th April, 2002; that the area of the stalls was 8 sq. mtr. and the updated

rates of L&DO for the area for the year 2002, were `27,820/- per sq. mtr.

and thus the cost was worked out to `2,45,000/- per stall.

10. On the contention of the counsel for the petitioners on 30th April,

2008 of disparity in cost being charged from the petitioners and stall holders

of other Markets aforesaid, yet another affidavit was directed to be filed.

11. Along with additional affidavit so filed, the Policy contained in

Resolution No.318 dated 10th September, 2001 of the respondent MCD was

filed. In the said Policy it was noted that in early 1980s the scheme relating

to construction of stalls and shops with a view of providing stable

employment opportunities to the urban poor was floated; the shops/stalls

were constructed by the Slum & J.J. Department in various Colonies of

Delhi; as per the instructions of Delhi Government, the said shops/stalls

earlier allotted on „License Fee Basis‟ were agreed to be allotted on

„Leasehold Basis‟; that over the years the stalls were sold by the original

allottees and which was posing a problem in recovery of dues with respect

thereto and a decision was taken to regularize the unauthorized occupants by

charging occupancy charges equal to four times of the cost prescribed at the

time of allotment and issue leasehold rights to such persons. The original

cost of the stalls in the possession of the petitioners was stated to be not

available.

12. This Court vide order dated 8th February, 2010 directed filing of

further additional affidavit to the effect whether the demand for `2,45,000/-

was made on the basis of original cost of the stalls at the time of allotment.

13. In the affidavit so filed it was reiterated that the cost of `2,45,000/-

was calculated as per L&DO rates of 1999 to 2002; that the cost of the stalls

in other Markets in Madangir was also calculated as per the L&DO rates

then prevalent. It is stated that since the cost of the stalls of the petitioners

was calculated in subsequent year, the same was higher than the cost of the

stalls in other Markets calculated in earlier years. In yet another additional

affidavit dated 3rd April, 2010 it was disclosed that the stalls subject matter

of this writ petition were allotted on „License Fee Basis‟ in 1983, proposal

for costing of the stalls was received in April, 2002 in accordance with

updated land cost on L&DO rates and construction cost by adding interest at

14% with effect from 1982 to 2002 and which had the approval of the

appropriate authority.

W.P.(C) NO.1026/2007

14. The three petitioners claim to be in possession of the stalls initially

allotted in the year 1984 by the Slum & J.J. Department, then of the DDA,

thereafter transferred to MCD and now substituted by the Delhi Urban

Shelter Improvement Board in Sunlight Colony, Hari Nagar, Ashram, New

Delhi. It is the case of the petitioners that the said stalls were allotted in

accordance with the scheme for allotment of low cost commercial

stalls/shops to Economically Weaker Sections of the society. The stalls

were allotted initially on "License Fee Basis" with license fee of `25/- per

month. The petitioners further claim that the respondents vide Resolution

No.318 dated 10th September, 2001 (supra) decided to regularize change of

hands of the stalls and also change the terms of allotment from „License Fee

Basis‟ to "Permanent Lease Basis" upon payment of four times the cost of

the stalls at the time of allotment. The petitioners claim that demand letters

for `42,400/- were issued in this regard to those similarly situated as the

petitioners, the original costs of stalls being `10,600/-. The petitioners also

claim to have deposited the said amount with the respondents on 17 th

February, 2002. The petitioners however claim that letters illegally

demanding `4,84,228/- were issued to each of them. Upon representations

of the petitioners not meeting with any success, the present writ petition was

filed.

15. Notice of the writ petition was issued on 9th February, 2007 and the

respondents directed to disclose as to on what basis the original cost of the

stalls was worked out at `1, 20,557/- (i.e. 1/4th of `4, 84,228/-) and also the

amounts demanded from other similarly situated persons and the basis

thereof.

16. The respondents filed a counter affidavit pleading that the writ

petition filed in the year 2007 impugning the demand of 31st December,

2002 was barred on the principles of laches, acquiescence and waiver; it was

admitted that demand letters for `10,600/- as cost were issued to the

allottees except where there was unauthorized occupants/change in hands of

the stall; it was pleaded that as per the Policy and Terms of allotments, the

stalls could not be sold/transferred; it was pleaded that there was no Policy

of regularization of such unauthorized occupants and when the Policy was

approved, demand letters for `4,84,228/- were issued; it was also pleaded

that the said cost was calculated by the Finance Wing of the respondents.

17. This Court finding that the counter affidavit did not comply with the

direction in the order dated 9th February, 2007, directed filing of an

additional affidavit.

18. In the additional affidavit dated 24th September, 2007 it is stated that

the cost of `1,20,557/- was worked out on the basis of current L&DO rates

in the year 2000-2001.

19. The contention of the counsels for the petitioners is twofold. Firstly,

for its own delay, the increased price of land cannot be claimed by the

respondents from the petitioners. Secondly, it is contended that the Policy

being for regularization at four times the original cost of the stalls, the cost

cannot be calculated as per the prevalent land rates but has to be as per the

said formula only. The counsel for the respondent MCD has chosen not to

argue.

20. Though the Supreme Court in Premji Bhai Parmar Vs. DDA (1980)

2 SCC 129 and M/s Shri Sitaram Sugar Co. Ltd. Vs. Union of India (1990)

3 SCC 223 has held that it is not the function of the Court to sit in judgment

and interfere in price fixation matter or over such matters of economic

policy and it must be left to the Government to decide the same but the fact

remains that there has to be a basis for the cost/price demanded.

21. The respondents in none of the affidavits in either of the petitions

have been able to show any decision or Policy to demand the cost/price for

conversion from „License Fee Basis‟ to „Permanent Lease Basis‟ as per the

prevalent rates of land and on which basis the sum of `2,45,000/- and

`4,84,228/- has been demanded from the petitioners in the two petitions

respectively. The only decision/Policy disclosed is the Resolution No.318

dated 10th September, 2001 (supra). The same clearly provides for

conversion at the rate of four times the cost prescribed at the time of

allotment. The year of allotment is indisputably 1983 and 1984 respectively

in the two petitions. It appears that the cost at the time of allotment of the

stalls in question in W.P.(C) No.926/2007 is not available. However the

same, without any further decision in this regard (which has not been

disclosed) would not entitle the respondent MCD to change the basis of

calculating the cost of conversion from the petitioners. If the cost at the

time of allotment is not available, the respondent MCD is required to re-

work the said cost but cannot change the formula. It is incomprehensible

that the cost at the time of allotment cannot be re-worked. The same can be

worked out on the basis of the then cost of land and the then cost of

construction as per the published CPWD rates and used by respondent MCD

for other purposes.

22. Though the respondents in the affidavits filed have reiterated that the

cost demanded of `2,45,000/- and `4,84,228/- respectively has been

approved by the appropriate authorities but the said approval would be of no

avail inasmuch as the working of the cost is admittedly not as per the Policy

shown. The respondent MCD cannot be permitted to act contrary to their

own decision/Policy and this Court will have to necessarily interfere.

23. The writ petitions therefore succeed to the effect that the demand of

`2,45,000/- for conversion from „License Fee Basis‟ to „Permanent Lease

Basis‟ of the stalls in possession of the petitioners in W.P.(C) No.926/2007

at Lakshmi Market, Madangir and of `4,84,228/- for conversion from

„License Fee Basis‟ to „Permanent Lease Basis‟ of stalls in possession of

petitioners in W.P.(C) No.1026/2007 at Sunlight Colony, Hari Nagar,

Ashram, New Delhi is set aside/quashed. However the respondents cannot

be directed to make the said conversion at the rate of `9,000/- and `42,400/-

as sought. The respondents are required to work out the cost of allotment of

the stalls and to thereafter demand from the petitioners the conversion cost

at four times the said cost of allotment in accordance with its

Policy/Resolution aforesaid.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 21st January, 2011 bs