Full Text
Date of Decision: 11.01.2023
28142/2020 GROUP CAPT MUKESH PAUL ..... Appellant
Through: Mr. Suryakant Singla & Ms. A Sahitya Veena, Advs.
Through: Ms. Monika Triapthy, SC with Mr. Manish Vashisht & Mr. Varun Bhatnagar, Advs.
HON’BLE MR. JUSTICE AMIT MAHAJAN
VIBHU BAKHRU, J. (ORAL)
JUDGMENT
1. The appellant has filed the present appeal impugning an order dated 12.02.2018, passed by the learned Single Judge in Writ Petition
(Civil) No. 11273 of 2016, whereby the appellant’s writ petition was partly allowed.
2. The appellant had filed the said writ petition, inter alia, praying as under:- “a) issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the demand letter No. F.777(739)95/SFS/DW-II/05 dated 0.11.13 as illegal and void ab initio; b) issue a writ of mandamus or any other appropriate writ order or directing the respondent to give possession of a Flat no.169, GF, Pocket III, Sector-11, Dwarka., Delhi forthwith in compliance of orders of Hon’ble Lieutenant Governor of Delhi dated 18.03.2009; c) issue a further writ of mandamus or any other appropriate writ order or direction directing the respondent to compensate the petitioner by paying exemplary damages along with interest at the prevalent market rate to him for the harassment caused to him; d) Grant costs in favour of the Petitioner;”
3. In the month of July 1995, the appellant had applied under the VIII SFS Scheme for a flat in Dwarka. In the month of November 1995, the appellant was allotted a flat in Sector-22, Pkt/ Block-1, Dwarka at a cost of ₹7,20,000/-. The appellant claims that he was completely ignorant about the allotment of the flat at the material time; he became aware of such allotment on receipt of a letter dated 09.10.1998, from the respondent (DDA), calling upon him to apply for refund of the registration deposit of ₹50,000/-. On becoming aware of the cancellation of the allotment, the appellant requested for re-allotment of the flat, which was rejected. Thereafter, the appellant applied for refund of the registration amount along with interest but that request was also not processed.
4. The appellant, thereafter, approached various authorities including the Hon’ble Lieutenant Governor, NCT of Delhi for redressal of his grievance. On 18.03.2009, the Hon’ble Lieutenant Governor found that there was no record with the DDA to establish that the Letter of Allotment was ever issued to the appellant. Accordingly, he ordered allotment of Category-II SFS flat in Dwarka at the then current cost to the appellant. However, no action was taken by the DDA in that regard at the material time except sending a letter dated 12.04.2009, informing the appellant of the said decision.
5. Thereafter, the DDA allotted Flat no. 13-C, Pocket 2, Sector-7, Dwarka and issued a demand letter dated 19.02.2010. It is the appellant’s case that the said communication was also not received by him. Subsequently, on becoming aware of the allotment, the appellant availed of a home loan and on 12.07.2010, deposited a sum of ₹29,42,878/- along with conveyance deed charges with the DDA.
6. On 29.03.2011, the DDA issued the possession letter in respect of the said flat (Flat no. 13-C, Pocket 2, Sector-7, Dwarka). The appellant claims that the said flat was smaller than the flat originally allotted to him in the year 1995. The appellant also claims that at the time of handing over of physical possession of the flat, he found that same was not fit for human inhabitation and was in the state of disrepair. The appellant wrote several letters to the DDA for carrying out the necessary repairs; however, the appellant claims that the DDA failed to carry out the necessary repairs. Thereafter, the appellant requested for change of accommodation as he had suffered an injury in the course of his service with the Indian Air Force and found it difficult to climb stairs.
7. Apparently, the DDA acceded to the aforesaid request and allotted a flat on the ground floor being Flat no. 169, GF, Pocket III, Sector-11, Dwarka. The DDA issued a demand letter in the month of November, 2013, levying restoration charge as well as demanding additional cost for the alternative flat amounting to ₹50,62,245/-.
8. This additional demand compounded the appellant’s grievance. According to him, he had merely applied for change of allotment as the flat allotted to him earlier (Flat no. 13-C, Pocket 2, Sector-7, Dwarka) was found to be unfit for human inhabitation.
9. At the material time, the appellant’s grievance, essentially, related to the demand of the additional cost for change in the allotment. Since the appellant did not deposit the differential amount of ₹20,99,367/-, the DDA claimed the said amount with interest at the rate of 15% per annum compounded with effect from January 30, 2014 till the date of actual payment.
10. The appellant approached this Court seeking redressal of his grievances. The learned Single Judge did not find merit in the appellant’s contention that he was not required to pay the additional charges as demanded. However, the Court found that the restoration charges of ₹20,000/-, as claimed by the DDA, were not justified. Accordingly, the learned Single Judge passed the impugned order. Aggrieved by the impugned order, the appellant has preferred the present appeal.
11. The present appeal was taken up for hearing on 31.07.2018 and this Court passed an order, inter alia, observing as under:- “The appellant is a retired Air Force Officer with limited resources. If possible, the respondent would try to resolve the matter by giving some concession in view of the fact that the appellant had paid Rs.29,42,878/ on 12.07.2010. Some consideration if deemed appropriate may be given.”
12. The present appeal was taken up for hearing on 19.09.2018. One of the issues that concerned the Court on that date was whether the DDA had handed over to the appellant the flat (Flat no. 13-C, Second Floor, Sector-7, Pocket 2, Dwarka). According to the appellant, no repair was carried out in the said flat despite the appellant making repeated requests to the aforesaid effect. The Court had also noted that the controversy related to the demand of interest amounting to approximately ₹18 lakhs calculated till 30.09.2018. The petition was adjourned to enable the learned counsel for the respondent to take instruction on whether any repair was carried out. Subsequently, on 07.12.2018, the learned counsel informed the Court that repairs had been undertaken but the communications dispatched to the appellant had been returned undelivered. In the meanwhile, the appellant suffered a stroke and was indisposed for a considerable period of time and this appeal could not be effectively heard.
13. The appeal was heard on 12.07.2019 on the question of interest imposed by the DDA. However, the hearing remained inconclusive.
14. The appeal was taken up once again for hearing on 18.10.2019. On that date, the Court noted that in cases where the allottees are not in default, the DDA is required to pay simple interest to the allottee at the rate of 7% per annum. In the circumstances, the Court observed that it would be apposite if the appellant be directed to pay a simple interest at the rate of 7% per annum with effect from 01.11.2013 on the outstanding amount of ₹20,69,367/-. However, on that date, the learned counsel appearing for the appellant informed this Court that the appellant’s family members had visited the subject flat and found that the it was occupied. In the circumstances, the learned counsel for the respondent took time to take instructions.
15. The order passed on 18.10.2019 reads as under:-
16. It was subsequently confirmed that that while submissions were being advanced before this Court on the premise that the flat (169, GF, Pocket III, Sector-11, Dwarka) allocated to the appellant was available to be handed over to the appellant, the same had, in fact, already been allotted to another person. Thereafter, the DDA undertook the exercise of allocating another flat from its inventory to the appellant. The DDA suggested a few alternate flats including Flat no. 321, G.F, Sector-19, PKT-2, Dwarka
17. On 03.11.2022, the learned counsel appearing for the appellant indicated his willingness to take possession of one of the alternative flats suggested by the DDA (Flat no. 321, G.F, Sector-19, PKT-2, Dwarka). However, the appellant was required to pay the additional consideration (over and above ₹29,42,878/-) for allotment of the subject flat. This Court was of the view that the issue regarding the additional payment be determined on the basis of the additional cost of the said flat. This was considering that the flat in question was constructed in the year 1995 and there is no dispute that the appellant was entitled to allotment of the flat way back in 1995. The order passed by this Court on 03.11.2022, reads as under:-
18. In compliance with the orders passed by this Court, the DDA has filed an affidavit indicating the additional cost payable in relation to the subject flat (Flat no.321, G.F, Sector-19, PKT-2, Dwarka).
19. The learned counsel appearing for the DDA has drawn the attention of this Court to a tabular statement setting out the computation of cost. The same is reproduced below:- Particulars Cost of Extra Area as per Current Cost Plinth Area Rate (PAR) (in Rs. Per Sqm.) 34,020/- Year of 1st Costing 1996 Plinth Area Rate (PAR) (in Rs. Per Sqm.) after depreciation. 25,515/- Extra Covered Area of the flat (in square meter) {A}
14.98 Extra Covered Area of Court Yard (in square meter) {B}
18.62 Total Extra Plinth Area (25% of {B} + {A} (in square meter) 19.635 Cost of Construction (in Rs.) 5,00,987/- Add; Departmental charges @ 15% 75,148- Sub-Total{C} (in Rs.) 5,76,135- Add: Interest @ 10% p.a. for 18 months 86,420/- Construction Cost {D} (in Rs.) 6,62,555/- PDR (in Rs. Sqm) 73,084/- Land Factor 0.85 Land Cost of Extra area of Flat (Exclusive of Court Yard) {E} (in Rs.) 9,30,579/- Land Cost for Court Yard 1 Land Cost of Extra Area of Court Yard {F} (in Rs.) 13,60,824/- Total Land Cost {G} (in Rs.) 22,91,403/- Construction Cost {D} + Land Cost {G} (in Rs.) 29,53,958 Add: Surcharge @20% 5,90,792/- Total Provisional disposal cost of differential area of Flat (in Rs.) 35,44,749/-
20. The DDA is willing to allot the said flat subject to a consolidated payment of ₹35,44,749/-. To put a quietus to the controversy, this Court had suggested to the learned counsel for the appellant to pay the additional cost as demanded by that DDA, that is, ₹35,44,749/-.
21. After some arguments, the controversy between the parties has been narrowed down to an amount of ₹5,90,792/- being a surcharge at the rate of 20% as included in the tabular statement. The appellant is ready and willing to pay a sum of ₹29,53,958/- (₹35,44,749/- less ₹5,90,792/-) against the demand of ₹35,44,749/-.
22. On a pointed query as to the nature of the said charges, the learned counsel appearing for the DDA states on instruction that the said amount is a premium location charge. She states that the area in question (Dwarka), is now considered as a premium location and therefore, additional charges are levied in respect of the allotment of flats in the said area. She, however, concedes that the premium location tag has been accorded to Dwarka only recently in the year 2021 and no such charges were leviable on flats allotted in Dwarka at the material time, that is, in the year 1995 or even during the course of the proceedings in this appeal.
23. In this view, we find no justification for charging premium location charges from the appellant. As noted above, there is no dispute that he was entitled to allotment of the flat in Dwarka way back in the year 1995. He, on receiving intimation regarding the same, had immediately deposited ₹29,42,878/-. Even otherwise, the DDA has, keeping in view the peculiar facts of this case including that the appellant has suffered an injury in service of this nation, accepted to make the allotment on the basis of its cost, which relates to the period prior to the year 2021.
24. In view of the above, we are of the view that the subject flat be allotted to the appellant on payment of the additional amount of ₹29,42,878/-.
25. In addition to the above, there is another issue that needs to be clarified. It is stated that that the appellant has also deposited conveyance charges. In the event the conveyance charges are not included in the amount of ₹29,42,758/- paid by the appellant, the DDA would give due credit for the same and adjust it from the amount receivable from the appellant.
26. In view of the above, the present appeal is disposed of by directing the appellant to deposit the amount of ₹29,53,958/- (₹35,44,749 minus ₹5,90,792/-) with the DDA within a period of four weeks from today.
27. The deposit would be payable by demand draft. In the event the appellant makes the said deposit within the aforesaid period, the DDA shall take steps to hand over the flat (Flat no.321, G.F, Sector-19, PKT- 2, Dwarka) to the appellant or his authorized representatives and also complete all legal formalities required for conveying of flat to the appellant on the appellant paying the necessary conveyance charges.
28. The DDA shall also ensure that glass panes are duly fixed on the windows of the subject flat before the handing over of its possession to the appellant.
29. This Court is informed that Mr. Mahender Pal, Deputy Director (SFS), DDA is the concerned officer. He is directed to ensure that the order passed today is duly complied with. In the event the appellant faces any difficulty in completing the formalities, his representatives are at liberty to approach Mr. Mahender Pal, Deputy Director (SFS), DDA for resolving the same.
VIBHU BAKHRU, J AMIT MAHAJAN, J