M.M.Ajwani vs Dda And Anr
2013 Latest Caselaw 1731 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of Decision: 17.04.2013

+      W.P.(C) 7792/2011

       M.M.AJWANI                                          ..... Petitioner
                         Through: Mr.S.K.Rungta, Senior Advocate
                         With Mr.Prashant Singh, Adv.

                         versus

       DDA AND ANR                                    ..... Respondents
                         Through: Mr.Arun Birbal, Advocate for R.1.
                         Mr.V.C.Jha, Ms.Sonia Sharma, Advocates
                         For R.2.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                         JUDGMENT

V.K.JAIN, J. (ORAL)

1. The petitioner claims to have purchased residential flat bearing No.50, 2nd

and 3rd floor, duplex in Pocket `F' Sheikh Sarai, New Delhi which was allotted by

DDA to Shri Davendra Prakash Goel. Shri Davendra Prakash entered into a

transaction with one Shri Shakti Chand Rana for transfer of the aforesaid flat to

him and executed the documents, such as, Agreement to Sell and registered

General Power of Attorney in his favour. In turn, he entered into a transaction with

the petitioner for sale of the aforesaid property to him and on the strength of the

documents which had been executed by the allottee in his favour, he executed the

documents such as Agreement to Sell and registered Power of Attorney in favour

of the petitioner. The petitioner applied for conversion of the aforesaid property

into free hold, in terms of the policy of DDA for converting lease hold properties

into free hold. The aforesaid request was rejected by DDA, vide its letter dated 3 rd

August, 2011 on the ground that the policy for conversion envisaged conversion of

lease hold rights into free hold only in respect of the transactions which had been

carried out on or before 30.9.2001. The aforesaid rejection is in challenge in the

present writ petition. The petitioner is also challenging the conversion policy of

DDA to the extent it limits the conversion of lease hold rights into free hold only to

those properties which were subject-matter of transactions carried out on or before

30.9.2001.

2. On the basis of the newspaper reports and public notices in newspapers, the

learned Senior Advocate for the petitioner states that during the pendency of this

writ petition, DDA has modified the conversion policy. and it is now allowing

conversion of lease hold rights into free hold rights even in respect of those

properties where the transaction took place later than 30.9.2001, provided that it

had taken place on or before the last date specified by DDA in this regard.

3. The second issue involved in this petition is with respect to refund of the

20% surcharge which DDA had levied and recovered in respect of the residential

flats allotted by it in South Delhi. The decision of DDA to levy the said surcharge

was quashed by the Apex Court in Delhi Development Authority vs. Joint Action

Committee Allottees of SFS Flats and Ors. in Civil Appeals No.6668-6698 and

6700-6732/2000 decided on 13.12.2007 and this was noted by a Division Bench of

this Court in its order dated 18.1.2008 passed in LPA No.890/2003 and connected

matters, including LPA No.355/2004 filed by Davinder Kumar Goel. The

aforesaid decision of the Apex Court was not complied by DDA in respect of those

persons who had purchased the flat on the basis of documents, such as, Agreement

to Sell and Power of Attorney etc. The act of DDA in denying the refund of the

surcharge to such persons was challenged before this Court and a Division Bench

of this Court, vide order dated 20.10.2011 passed in LPA No.875/2011, held that

DDA has been liable to refund the aforesaid surcharge even in such cases. The

order passed by the Division Bench was challenged by DDA before Supreme Court

in SLP No.9156/2012. Notice in the aforesaid SLP was issued by the Apex Court

on 11.5.2012, a stay of the refund, as directed by this Court was ordered and the

matter is stated to be pending in the Supreme Court.

4. The third issue involved in this petition is with respect to payment of interest

by DDA on account of delay in construction of the flats allotted by it. The only

plea taken by DDA in respect of the aforesaid charges is that the said charges have

already been refunded by it to the original allottee Shri Davinder Prakash Goel.

Mr.Rungta, on instructions, disputes the aforesaid statement made in the reply of

DDA.

5. In these circumstances, this writ petition is disposed of with the following

directions:-

i) The application of the petitioner for conversion of property bearing Flat

No.50, 2nd and 3rd floor duplex in Pocket `F' Sheikh Sarai, New Delhi into free

hold shall be examined afresh by DDA, as per its revised policy and a decision

thereon shall be taken within a period of three months from today and the decision

so taken shall be communicated to the petitioner within one week thereafter;

ii) In the event of the Apex Court dismissing the Special Leave Petition/Appeal

filed by DDA against the decision of this Court in LPA No.875/2011, the amount

of the surcharge shall be refunded to the petitioner within four weeks from the date

of dismissal of the SLP/Appeal alongwith interest on that amount @ 10% per

annum with effect from 1st May, 2013. If, however, the aforesaid amount is

refunded to the petitioner within four weeks of the application for conversion of the

lease hold rights into free hold being allowed in favour of the petitioner, no interest

would be payable it to the petitioner. In the event of application of the petitioner

for conversion of leasehold rights into freehold not being allowed, DDA would be

liable to refund the surcharge to the original allottee Shri Davinder Prakash Goel.

If the SLP/Appeal filed by DDA is allowed, there would be no question of refund

of the aforesaid surcharge to the petitioner;

iii) As regards, refund of the Belated Construction Interest (BCI), considering

the stand taken by DDA in its reply, I am not inclined to pass any direction for

payment of the aforesaid amount of the petitioner, even in the event of his

application for conversion of the aforesaid property into free hold being allowed in

his favour. DDA, however, is directed to file an affidavit within four weeks giving

particulars of the refund of the aforesaid amount to the original allottee along with

the documents evidencing the refund, after serving copy of the said affidavit on the

petitioner through counsel.

The writ petition stands disposed of.

Copy of this order be given dasti to both the parties.

V.K. JAIN, J

APRIL 17, 2013 KS