Gajinder Singh Bhatia vs The Lt. Governor & Anr.
2012 Latest Caselaw 7214 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Reserved on: December 05, 2012
                                     Pronounced on: December 17, 2012

+   W.P.(C) No. 2918/1998

    GAJINDER SINGH BHATIA               ..... Petitioner
                 Through: Mr. Amardeep Singh &
                          Mr. Baljinder Singh, Advocates

                            versus

    THE LT. GOVERNOR & ANR.             ..... Respondents

Through: Ms. Anusuya Salwan, Mr.Vikas Sood and Mr. Kunal Kohli, Advocates

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

% JUDGMENT

1. Petitioner in this writ petition had initially challenged notice of 20th March, 1998 determining the Perpetual Lease Deed of 10th July, 1975 of Plot No.22, Block B, Riwari Line Industrial Area - Phase I, New Delhi, (henceforth referred to as subject plot) and Communication of respondent - DDA of 14th May, 1998 (Annexure P-16) refusing to restore the aforesaid Lease Deed in question.

2. While entertaining this writ petition, vide order of 10 th June, 1998 petitioner was permitted to deposit `53 lacs with respondent -

DDA towards compounding fee, etc. without prejudice to rights of both the sides. During pendency of the writ petition, respondent - DDA had restored the lease of subject plot vide its Communication of 14th May, 1999. Accordingly, the writ petition was amended by petitioner to seek refund of composition fee of `25,17,884/- and `3,36,071/-, restoration charges of `4,04,600/- and damages of `5,61,440/- alongwith refund of `53 lacs deposited by petitioner with respondent - DDA in terms of aforesaid interim order of 10 th June, 1998.

3. According to respondent - DDA, possession of subject plot was handed over to petitioner on 2nd December, 1970 and thereafter, series of defaults on part of petitioner in respect of payments and fulfilling other conditions of allotment, resulted in cancellation of the subject plot. But before that, 'No Objection Certificate' for construction on the subject plot was granted to petitioner on 13th November, 1973 and Perpetual Lease Deed in respect of subject plot was executed in July, 1975. Extension of time upto March, 1977 to complete construction work on subject plot was granted to petitioner by respondent - DDA in December, 1976.

4. The chain of events precisely summed up by petitioner's counsel are as under:-

"(a) Urban Land (Ceiling & Regulation) Act, 1976 comes into force in February, 1976. Plot is

covered under the Act. Permission is applied for.

(b) After three years, permission under Urban Land (Ceiling & Regulation) Act, 1976 is granted in June, 1979.

(c) In the meanwhile the petitioner had applied for loan to Delhi Financial Corporation in 1971 and had kept it alive till 1978.

(d) After another two years (from July, 1979) in April, 1981 DDA agreed to grant extension and charged composition fee (`4,720.33), for it, however, instead of issuing extension, the DDA cancelled the Lease Deed.

(e) Another three and half years passed by, and then DDA restores the Lease Deed in December, 1985.

(f) At this stage the petitioner did not have the loan available from Delhi Financial Corporation, therefore, he needed more time to make arrangement.

(g) Another two years pass by and then DDA agreed to give extension that too only for two months (24.4.1987 to 30.6.1987), which was not sufficient time. However, they charged composition fee of `45,982.50 which was paid.

(h) Another two and half years pass by and then the DDA agrees to give extension, but gives it for an elapsed period upto 31.12.1989 vide letter dated 06.3.1990, which was of no use, however, they had charged composition fee of `75,862.50, which was paid.

(i) Another four years are wasted and then DDA agrees to grant extension but only for two months (12.01.1994 to 31.03.1994), for which

they demanded composition fee of `12,07,968.70.

(j) Another one and half year is wasted and then the DDA agrees to give extension but only for one and half months (16.10.1995 to 06.12.1995), for which they demanded composition fee of `18,39,381/-. First the petitioner protested, however, then under pressure he agreed to pay.

(k) DDA wastes another two and half years, and inspite of petitioner's repeated requests, does not grant any reasonable extension but cancels the Lease Deed on 20.03.1998.

(l) Only when this Hon'ble Court's intervention is sought by the petitioner vide the present writ petition, the DDA grants petitioner a reasonable extension from 01.06.1999 to 30.09.1999 and he is finally able to complete the construction."

5. Respondent - DDA, who is the contesting respondent maintains that petitioner despite being provided repeated opportunities to complete construction on the subject plot, had failed to do so, which discloses totally non-committal approach. It is further maintained that petitioner had not paid composition fee for the extensions provided for completion of construction on the subject plot and if petitioner was aggrieved by short extensions granted to complete the construction, then he should have challenged the inadequacy of time granted to complete construction on the subject plot. According to respondent - DDA, having failed to do so, petitioner cannot now seek refund of the composition fee,

etc. deposited. As after completing the construction on the subject plot in September, 1999, petitioner had already obtained completion certificate etc. and since petitioner has been already treated leniently by respondent - DDA, therefore, this writ petition deserves rejection.

6. At the very outset, it was urged by learned counsel for petitioner that unjust and unreasonable composition fee is demanded by respondent - DDA while granting unrealistically short periods of extension for construction on the subject plot whereas, by a Public Notice of 7th January, 1991, almost ten months time was granted to complete construction on such like plots.

7. However, in the instant matter, short extensions ranging between one to three months had been granted by respondent - DDA while demanding huge composition fee which according to petitioner's counsel, is contrary to the note of 10th April, 1989 of Vice Chairman of DDA, wherein it is noted that extension of three or even six months is unrealistically short and in this writ petition, order of 30th March, 2006 records that reasonable extension period of atleast one year is needed to complete the construction. Thus, while relying upon a decision of coordinate Bench of this Court in CW No. 7372/02, Hamdard (Wakf) Laboratories vs. Delhi Development Authority, rendered on 22nd November, 2004 and Vardan Co-operative Group Housing Society Ltd. Vs. Delhi Development Authority, 129 (2006) DLT 278, it was urged by

learned counsel for petitioner that from February, 1976 till June, 1979 charge of composition fee is unwarranted as during this period prohibition under Urban Land (Ceiling & Regulation) Act, 1976 to construct had operated and since, the demand of composition fee is exorbitant and contrary to the method of computation of composition fee as highlighted in the afore-cited decisions, therefore respondent - DDA be directed to refund the amount so claimed in this writ petition alongwith damages.

8. To controvert the aforesaid stand taken on behalf of petitioner, learned counsel for respondents contends that the present petition is totally misconceived as despite many extensions granted to petitioner, the Lease Deed of subject plot has been still restored to petitioner while taking a lenient view and the deposit of composition fee by petitioner is as per the policy circulars, to which there is no challenge, and so, there is no justification to refund the composition fee, etc. deposited by petitioner as the decisions relied upon by petitioner have no application to the facts of the instant case. So, dismissal of this writ petition is prayed for, by respondents' counsel.

9. The submissions advanced have been duly considered, the material on record and the decisions cited are perused and thereupon, it appears to this Court that the decision in Vardan (Supra) has no application to the facts of instant case as in the said case, the allotted land had encumbrances which respondent had

undertaken to remove but had not removed and so, charging of composition fee was held to be not justified. However, the ratio of the decision in Hamdard (Supra), squarely applies to the instant case.

10. In Hamdard (Supra), the method of computation of composition fee as detailed in S.K. Kapoor vs. DDA, 107 (2003) DLT 205, which has attained finality, was adopted to exclude the application of 'cumulative rates' and had excluded the period spent in obtaining exemption from operation of Urban Land (Ceiling & Regulation) Act, 1976 while computing composition fee and had stipulated that each extension granted for construction would be treated as of one year period while charging the composition fee and had directed the charging of composition fee by adopting the method of computation of composition fee as highlighted in S.K. Kapoor (Supra), as details of year-wise computation of composition fee had not been indicated by either side.

11. In the instant matter, the factual position is no different than the one which was in Hamdard (Supra). That is to say, the details of the composition fee charged have not been disclosed by respondent - DDA although, petitioner alleges that the composition fee charged is exorbitant, unreasonable and unjustified. In such a situation, not much is required to be said except that the rate of composition fee to be applied has to be in conformity with the decision in S.K. Kapoor (Supra), and Hamdard (Supra). Such a

course is being adopted because the policy circular of DDA imposing composition fee is not under challenge herein, but the method of computation of composition fee is certainly disputed by petitioner.

12. Since it is not disclosed as to what method was adopted to compute the composition fee in the instant matter, therefore, this writ petition is disposed of with direction to respondent - DDA to re-workout the composition fee charged, while not adopting 'cumulative rates', but by applying the method of computation of composition fee as already approved by this Court in S.K. Kapoor (Supra) and Hamdard (Supra). The time spent in obtaining exemption from the operation of Urban Land (Ceiling & Regulation) Act, 1976 be excluded while re-working out the composition fee, by treating the extensions already granted for construction on the subject plot as of one year each. Let the composition fee be re-worked within a reasonable period of six weeks or so and thereupon its copy be supplied to petitioner within a week thereafter, so that petitioner may check as to whether it has been re-worked in terms of the aforesaid directions issued herein and to point out calculation mistake or error, if any, so that corrective action is promptly taken by the contesting respondent, to avoid second round of litigation. Thereafter, if it is found that any amount is to be refunded with prevalent rate of interest to petitioner, then let it be so done preferably within a period of four weeks or so. However, claim for damages is negated as nothing

worthwhile was urged on behalf of petitioner in support of this claim.

13. This writ petition is disposed of in aforenoted terms, while leaving the parties to bear their own costs.

(SUNIL GAUR) Judge DECEMBER 17, 2012 pkb