Delhi High Court
Sanjeet Kumar Agrawal vs Delhi Development Authority ... on 28 September, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 28th SEPTEMBER, 2022
IN THE MATTER OF:
+ LPA 197/2021 & CM APPLs. 19698/2021, 19701/2021
SANJEET KUMAR AGRAWAL ..... Appellant
Through: Mr. Sunil J Mathews, Advocate
versus
DELHI DEVELOPMENT AUTHORITY THROUGH ITS
CHAIRMAN ..... Respondent
Through: Ms. Prabhsahay Kaur, Standing
Counsel for DDA
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
SUBRAMONIUM PRASAD, J
1. By way of the instant LPA, the Appellant seeks to challenge the Order
dated 01.06.2021, passed by learned Single Judge in W.P.(C) 5696/2021.
The learned Single Judge by the order impugned herein has dismissed the
Writ Petition.
2. The facts of the case reveal that DDA invited applications under the
DDA Housing Scheme, 2021, for allotment of flats at various places in
Delhi, including Jasola, vide advertisement dated 02.01.2021. The Appellant
herein was an applicant in the said Housing Scheme.
3. The applications for the Scheme closed on 16.02.2021. Draw of lots
was held on 10.03.2021. 22,750 persons applied for 1350 flats. The
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Digitally Signed By:HARIOM
Signing Date:28.09.2022
16:47:06
Appellant was successful in the draw of lots and was allotted Flat No.2033,
Third Floor, Block 2, Pocket 9B, Jasola, New Delhi-110025.
4. A demand-cum-allotment letter was issued to the Appellant on
30.03.2021. Under the said letter, the Appellant was to pay a sum of
Rs.1,94,34,618/- on or before 29.06.2021.
5. The Appellant filed a writ petition bearing W.P.(C) 5696/2021 on
24.05.2021 challenging the demand-cum-allotment letter dated 30.03.2021,
questioning the demand of Rs. 1,94,34,618/-. It was stated by the Appellant
that the cost demanded for the flat was much higher than what it ought to be.
The demand cum allotment letter was also challenged on the ground that the
DDA is not in a position to handover the possession of the flats within three
months from the date of demand-cum-allotment letter after all clearances as
stated in the advertisement. The Appellant had relied on a letter dated
23.04.2021 which had been issued by RERA to the DDA seeking certain
clarifications to demonstrate that the DDA will not be in a position to
handover physical possession of the flats within three months of the
payment of possession.
6. The learned Single Judge by the Order impugned herein dismissed the
writ petition stating that if the Petitioners therein had any reservations about
the Scheme, they could raise their grievance before the DDA. The learned
Single Judge held that after participating in the draw of lots without any
protest, the Petitioners were estopped from raising any objections. This
Order, passed by the learned Single Judge has been sought to be challenged
in the present appeal.
7. Mr. Sunil J Mathews, learned Counsel for the Appellant, has taken
this Court through the Scheme and, more particularly, to Annexure -A of
the Scheme, which states that the possession of the flats will be handed-over
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Signing Date:28.09.2022
16:47:06
within three months of issuance of demand-cum-allotment letter. He has also
taken this Court through Clause 9 of the Scheme to contend that the flats at
Jasola have been kept at a higher rate.
8. Per contra, Ms. Prabhsahay Kaur, learned Standing Counsel for the
DDA, contends that in Annexure-A of the Scheme, it had been stated that
the cost of HIG flats at Jasola, Pocket 9B, which has been allotted to the
Appellant, would cost Rs.1.97-2.14 crore and the demand cum allotment
letter of Rs. 1,94,34,618/- is actually lesser than the tentative cost. She
further contends that the DDA had initiated the process of registration with
RERA on 26.06.2020 which is even prior to the date of the advertisement of
the Scheme, i.e. 02.01.2021. She further submits that the DDA has made its
submission of Project Registration Application on 11.02.2021 and had
submitted the registration fee on 26.03.2021. She, therefore, states that there
was no misrepresentation by the DDA, when it has been stated that the
registration of the current Housing Project is under process with RERA.
9. Heard Mr. Sunil J Mathews, learned Counsel for the Appellant, and
Ms. Prabhsahay Kaur, learned Standing Counsel for DDA, and perused the
material on record.
10. A perusal of the DDA Housing Scheme, 2021 and, more particularly,
Annexure-A of the Scheme reveals that the tentative cost of a flat at Jasola,
Pocket 9B, is Rs.1.97-2.14 crore. If the Appellant thought that the price of
the flat was higher, he need not have participated in the draw of flats. The
Appellant participated in the draw of lots without demur. After having
participated in the Scheme, the Appellant cannot then question the price of
the flat.
11. Further, it is well settled that it is not for the writ courts to exercise its
jurisdiction under Article 226 of the Constitution of India to enter into the
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Signing Date:28.09.2022
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questions of fixation of price regarding allotment of flats fixed by
authorities.
12. The Apex Court in Bareilly Development Authority & Anr. v. Ajai
Pal Singh & Ors., (1989) 2 SCC 116, while dealing with the case wherein
the cost of houses/flats had been challenged, has observed as under:-
"21... Even conceding that the BDA has the trappings
of a State or would be comprehended in "other
authority" for the purpose of Article 12 of the
Constitution, while determining price of the
houses/flats constructed by it and the rate of monthly
instalments to be paid, the "authority" or its agent
after entering into the field of ordinary contract acts
purely in its executive capacity. Thereafter the
relations are no longer governed by the constitutional
provisions but by the legally valid contract which
determines the rights and obligations of the parties
inter se. In this sphere, they can only claim rights
conferred upon them by the contract in the absence of
any statutory obligations on the part of the authority
(i.e. BDA in this case) in the said contractual field.
22. There is a line of decisions where the contract
entered into between the State and the persons
aggrieved is non-statutory and purely contractual and
the rights are governed only by the terms of the
contract, no writ or order can be issued under Article
226 of the Constitution of India so as to compel the
authorities to remedy a breach of contract pure and
simple -- Radhakrishna Agarwal v. State of Bihar
[(1977) 3 SCC 457 : (1977) 3 SCR 249] , Premji Bhai
Parmar v. Delhi Development Authority [(1980) 2
SCC 129 : (1980) 2 SCR 704] and DFO v. Biswanath
Tea Company Ltd. [(1981) 3 SCC 238 : (1981) 3 SCR
662]
23. In view of the authoritative judicial
pronouncements of this Court in the series of cases
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dealing with the scope of interference of a High Court
while exercising its writ jurisdiction under Article 226
of the Constitution of India in cases of non-statutory
concluded contracts like the one in hand, we are
constrained to hold that the High Court in the present
case has gone wrong in its finding that there is
arbitrariness and unreasonableness on the part of the
appellants herein in increasing the cost of the
houses/flats and the rate of monthly instalments and
giving directions in the writ petitions as prayed for."
(emphasis supplied)
13. Clause 10 of the DDA Housing Scheme as well as the demand-cum-
allotment letter dated 30.03.2021 makes it clear that the cost of the flat
should be deposited within 90 days from the date of issue of the demand-
cum-allotment letter.
14. Clause 10 of the Scheme further states that a further period of three
months over and above the initial period of 90 days is available to the
allottees, subject to payment of interest at the rate of 10 per cent and if the
amount is not deposited, then the application money will be forfeited and the
flat will be made available for allotment to others. The Appellant had to
deposit the money on or before 26.09.2021 and he could make further
deposit by 27.09.2021 with interest at the rate of 10 per cent. The money has
not been paid and, therefore, as per Clause 10 of the Scheme, the flat could
be made available for allotment to others.
15. Further, the contention of learned Counsel for the Appellant that there
was misrepresentation of facts by the DDA and that the money could not
have been demanded because the DDA was not in a position to handover the
possession of the flats after all clearances also cannot be accepted. A perusal
of the letter dated 23.04.2021 which the Appellant states has been received
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Signing Date:28.09.2022
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by him under the RTI Act, 2015, shows that the questions raised by RERA
are only clarificatory in nature. Further, it is informed by Ms.
Prabhsahay Kaur, learned Standing Counsel for the DDA, that RERA has
already granted registration to DDA on 31.08.2022.
16. The facts of the case make it abundantly clear that the instant case is
one of an unwilling purchaser who is looking for excuses not to pay the
money. The application made by the DDA had not been rejected on the date
when the demand-cum-allotment letter was issued by the DDA.
17. In view of the above, the LPA is dismissed. Pending applications, if
any, stand disposed of.
SATISH CHANDRA SHARMA, CJ
SUBRAMONIUM PRASAD, J
SEPTEMBER 28, 2022
hsk
Signature Not Verified
Digitally Signed By:HARIOM
Signing Date:28.09.2022
16:47:06
