Rohini Residential Scheme 1981 Association v. Delhi Development Authority

5. It needs to be mentioned, right here, that when this petition was taken up by this Court on 11.09.2015, learned Standing Counsel for DDA/respondent submitted that since petition was also accompanied by a stay application, the Writ Petition was not maintainable in view of specific orders passed by Hon‟ble Supreme Court on 10.03.2015 in Rahul Gupta Vs. DDA: SLP (C) No. 16385-16388/2012 which, in no uncertain terms, directed that no Court other than this Court (Supreme Court) shall entertain any application for grant of interim directions with reference to the aforesaid allotment and if any such interim direction was sought, the aggrieved party be rather relegated to Supreme Court. It was also pointed out that the Petitioner-Association had been registered in July, 2015 only and even the names of its members had not been disclosed and if the notice is issued, the principle of lis pendens would be attracted and the title of some of the allotees under the scheme would also come under cloud, to their detriment. It was also submitted by learned Standing Counsel for DDA that DDA‟s action of reducing the size of the plots has W.P.(C) 8525/2015 6 of 35 already been upheld by a Co-ordinate Bench of this Court in Major General Pradeep Kumar Mahajan & Ors. Vs. DDA: 2005 (80) DRJ. 699.

6. Since the issue with respect to reduction in size has already been adjudicated in Major General Pradeep Kumar Mahajan (supra) while entertaining the aforesaid Writ Petition, this Court rejected the challenge with regard to the reduction of size, at the very threshold. It also observed that there was no requirement of passing any interim order as it would further delay the project and, accordingly, the limited notice was issued with regard to rate/demand.

7. It needs to be mentioned that such order of „limited notice‟ was challenged by filing Latent Patent Appeal but fact remains that such LPA was also dismissed holding that the decision of learned Single Judge in issuing restricted notice could not be faulted. Reference be made to Rohini Residential Scheme 1981 Association Vs. DDA: 2015 SCC OnLine Del 11973.

8. Thus, the sole surviving aspect in the present Writ Petition is whether demand raised in the allotment letter issued in the year 2015 is liable to be quashed or not.

9. It is now time to take note of the stand taken by DDA. In its counter-affidavit, it claimed as under: -

(i) There is no privity of contract between them and the alleged

Association. It never recognized any such Association and, moreover, such Association had, absolutely, no locus standi to file W.P.(C) 8525/2015 7 of 35 the petition. Allotment was to be made to the individuals and if there was any grievance, only such individual(s) could have challenged the alleged action.

(ii) All actions taken by DDA are as per the policy and such actions are neither arbitrary nor beyond its powers. Rates are not exorbitant at all and these have been charged as per the policy which has, repeatedly, been upheld by the Hon‟ble Constitutional Courts in series of judgments.

(iv) Premium is based on pre-determined rates (PDR) and while fixing PDR, the Central Government takes note of cost of acquisition, development charges and concessional charges for use occupation. It is break-even rate as it does not contain any element of profit. Such PDR were based on specific parameters and were not open to any challenge.

(v) The rates mentioned in the Rohini Residential Scheme 1981 were tentative in nature and, therefore, amenable to change and all the applicants had applied under the scheme, after being fully aware of such terms and conditions and, therefore, they are estopped from challenging the same, that too, after 34 years. Moreover, the cost of the plot has increased due to passage of time, enhancement of land rates and all those aspects were kept in mind and the premium so calculated is neither excessive nor exorbitant. W.P.(C) 8525/2015 8 of 35

(vi) There is no arbitrariness in allotment, which was in a phased manner. Since it was a very large project and huge number of persons had applied for allotment, it was not possible to allot plots to all of them in one go and, therefore, DDA had to prepare priority list of different categories and the allotment was made on the basis of priority number given to each such applicant.

10. Thus, according to DDA, the present Writ Petition deserves to be dismissed.

11. Rival contentions made at the time of final arguments are more or less in synchronization with the respective stand of the parties, as taken in the Writ Petition and Counter-Affidavit.

12. Mr. N Prabhakar, learned counsel for Petitioner-Association reiterates that DDA, being a state instrumentality, is expected to act fairly and justly. Since the land in question is Nazul Land, DDA is bound to follow Delhi Development Authority (Disposal of Developed Nazul Land) Rules, 1981 and the land, therefore, should have been allotted as per PDR, with the principle of „no profit and no loss‟. The applicants are from Economically Weaker Strata and such aspect was disregarded by DDA while issuing Demand Letters in 2015. He submits that Petitioner- Association is representing various such Registrants under the abovesaid Scheme and since all such Registrants, who are aggrieved by the discriminatory manner in which the demand has been raised, have chosen to come under one umbrella, such fact would not, in itself, mean and W.P.(C) 8525/2015 9 of 35 indicate that there is no locus standi of the Association or absence of any privity of contract. Moreover, such argument cannot be heard from a statutory body.

13. It is also contended that the premium mentioned in the allotment letters issued in 2015 is, apparently, inclusive of market rates as the cost of acquisition and development charges could not have multiplied 115 times. Relying on India Thermal Power Ltd versus State of Madhya Pradesh (2000) 3 SCC 379, it has been argued that contract in question is not a private, but a statutory contract.

14. It is also argued that change in the premium could have been only in terms of enhancement in the acquisition cost and no such stand has been taken by DDA and DDA has not indicated anything which may even remotely suggest that the cost got escalated because of the enhancement in acquisition. Registrants had applied under the Scheme in the year 1981 and since the land was to be allotted over a period of 5 years, these rates were valid up to the year 1986 and approximately 25,000 allottees were given allotment upto year 1986 on previous rates and, therefore, the subsequent allotments also, which got belated for no fall of Registrants, could have been on escalated and exorbitant rate and, therefore, DDA could not have revised the rate as per its ipse dixit.

15. It is also argued by Mr. N Prabhakar, learned counsel for Petitioner-Association that such astronomical increase was, even otherwise, hit by the equitable principle of promissory estoppel, doctrine W.P.(C) 8525/2015 10 of 35 of proportionality and Wedenesbury unreasonableness. Thus, the members of the Petitioner-Association could not have been treated differently and there is no rationale behind creating a class within a class and it has, thus, been prayed that the Writ Petition be allowed in terms of the prayers.

16. It may also be mentioned that the Petitioner-Association submitted a list of its members and as per the last list, there were only 511 members as on 01.01.2019.

17. All such contentions have been refuted by DDA and while adopting its stand taken in written statement, it reiterated that the Petitioner-Association had no locus standi and the issue raised in the present petition had already been settled and, therefore, the petition was liable to be dismissed.

18. Relying on Sheelawanti &Anr. Vs. DDA & Anr:1995 SCC Online Del 115, which is a full Bench decision of this Court, it has been argued that the scope of judicial review, in cases involving costing and fixation of prices, is very limited and, merely, because the method of valuation suggested by the applicants/allotees would be fairer and more logical, the method or the basis adopted by DDA could not be struck down as Arbitrary or whimsical. It is also argued that the abovesaid decision of the Full Bench of this Court was affirmed by the Hon‟ble Supreme Court as Special Leave Petition (SLP No. 13508/1995) was dismissed on 14.07.1995. It is also argued that such decision was subsequently W.P.(C) 8525/2015 11 of 35 affirmed by Hon‟ble Supreme Court in DDA Vs. Ashok Kumar Behal and Others: (2002) 7 SCC 135.

19. Ms. Manika Tripathy, learned counsel for DDA further submits that the concept of PDR has also received imprimatur in Ramanand Vs. Union of India: ILR (1994) I Delhi 423. There is also strong reliance upon DDA Vs. Pushpendra Kumar Jain:1994 (Supp) 3 SCC 494 whereby the Hon‟ble Supreme Court, inter alia, held that since the right arises only on the communication of the letter of allotment, the price prevailing on the date of such communication would be applicable, unless otherwise provided in the Scheme. She submits that it is also observed in the said judgment that if such allotee was not willing to take or accept the allotment at such date, it is always open to him to decline allotment and, therefore, it was held that there was no unfairness in the above procedure.

20. It is, thus, argued by DDA that in the present case also, the estimated rates mentioned in the brochure were tentative and illustrative and were subject to modification and such fact was clearly amplified and elaborated in the brochure itself and since the allotment was eventually made in the year 2015, the rates as prevalent in the year 2015, were mentioned in the demand letters and, therefore, there is nothing arbitrary or illogical. It is also argued that the Scheme and auction of plots under Rohini Residential Scheme has already been approved by this Court in Shalan Kapoor & Ors. Vs DDA: WP No. 5160/2007 decided on 21.08.2007 and, therefore, the present petition is liable to be dismissed. W.P.(C) 8525/2015 12 of 35

21. Before appreciating the rival contentions, let me have a quick glance over the brochure of the Rohini Residential Scheme, 1981. It records that Rohini is predominantly a residential area and residential sector was carved out which were for group housing, community center, convenience shopping and other community facilities as well.

22. As per the abovesaid scheme, the land-use distribution was as under:- Land Use Residential Area in ha. Percentage Plots 1,17,000 units in group housing 17,000 1413.00 56.58 Commercial 108.00 4.35 Industrial 482.00 19.32 Public & Semi-Public Facilities

126.00 5.06 Recreational 211.00 8.47 Circulation 155.00 6.22 Total 2497.00 100.00

23. Clauses 1 to 4 of the terms & conditions of the Rohini Residential Scheme read as under: - “1. Eligibility: Any individual who is not a minor may apply for allotment of only one plot if he/she fulfils the following conditions:

(i) The total annual income of the individual from all sources including the income of his wife/her husband, and minor children should (a) in the case of EWS: not exceeding Rs. 600 P.M. W.P.(C) 8525/2015 13 of 35 (b) in the case of LIG: in excess of Rs. 600 but should not exceed Rs. 1000 P.M.

(c) in the case of MIG: in excess of Rs. 1000 but should not exceed Rs. 2000 P.M.

(ii) The individual or his wife/her husband or any of his/her minor children do not own in full or in part on lease-hold or free-hold basis any residential plot of land or a house or have not been allotted on hire-purchase basis a residential flat in Delhi/New Delhi or Delhi Cantonment. If, however, individual share of the applicant in the jointly owned plot or land under the residential house is less than 66 sq. mts., an application for allotment of plot can be entertained. Persons who own a house or a plot allotted by the Delhi Development Authority on an area of even less than 65 sq. mts. shall not, however, be eligible for allotment.

2. Rates: The provisional rates for land shall be as under: Size of plot Category Rate per in sq.mts. sq. mt. 26 EWS/Janta Rs. 100 32 LIG Rs. 125 48 LIG Rs. 150 60 MIG Rs. 200 90 MIG Rs. 200 These rates are subject to revision from time to time at the discretion of the D.D.A.

3. Submission of Application:

(i) The application shall be in the prescribed form attached with this brochure.

(ii) The applicant will have to deposit the following earnest money:

(iii) Application forms duly completed along with the earnest money may be deposited in any of the prescribed branches of the bank listed below with the application form. The bank authorities have been authorized by the DDA to issue registration deposit receipt on submission of the application forms and the deposit of the earnest money. W.P.(C) 8525/2015 14 of 35

(iv) The deposit will have to be made for a minimum period of one year and will carry interest at the rate of 7% per annum which will be credited to the respective deposit account. Withdrawal of deposit before the expiry of one year shall not be allowed except under special circumstances and at the absolute discretion of Vice-Chairman, Delhi Development Authority. No interest will be paid in such cases.

(v) The application will be received during office hours on all working days by the Banks mentioned hereinbefore, w.e.f. 9th Feb. 1981 The last date of receipt of applications is 31st March, 1981.

4. Transfer from other Housing Schemes: Persons who are registered with the DDA under any of its Housing Registration Schemes or New Pattern Scheme 1979 are allowed to get their registration transferred to 'ROHINI. They will form a separate block of registration and priority in the matter of allotment will be given to them. Those who desire to get their registration transferred from any of the earlier DDA Housing Schemes to Rohini Scheme will pay along with their application in difference between the amount already deposited and the earnest money payable for the Rohini Scheme. While submitting the application, they will be required to surrender the fixed deposit earlier receipt di.ly discharged and the copy of the challan form in respect of their deposit in that Housing Scheme. Interest on their fixed deposit in the Housing Scheme would be transferred to their new account and adjusted at the time of the final allotment of the plot They will get interest at the rate of 7% per annum on the amount of interest as calculated upto 31.3.1981. On transfer, the applicant shall have no right to, any allotment under the earlier Housing Scheme. (emphasis supplied)

24. As per clause 5 of the terms and conditions of the abovesaid scheme, DDA reserved its right to, even; allot a different size of plot in the same category. W.P.(C) 8525/2015 15 of 35

25. As per clause 7, it was also stipulated that the lessee would have to pay within such time period, such additional sum or sums to balance premium as may be decided by the lessor on the ground of increase in the cost of acquisition of development and that the decision regarding time and amount of the additional premium, if any, would be taken by the Lt. Governor in his absolute discretion and shall be final and binding on the lessee.

26. The residential sector provided plots of sizes, varying from 26 Sq. meters to 120 Sq. meters with a provision of Four Storey Group Housing.

27. Let me first deal with the aspect of locus standi.

28. Admittedly, the Petitioner-Association does not seem to be representative body in true sense as it comprises of hardly 500 members. As per admitted case, 11,000 demand letters were issued in terms of judgment of Hon‟ble Supreme Court and, therefore, the petitioner cannot be, truly speaking, a representative body.

29. However, this Court, for a moment, leaves aside such technical aspect.

30. Question is whether the rates could have been revised or not and whether the decision in this regard can be labelled as arbitrary or not?

31. The scheme in question is of 1981.

32. It was a very ambitious project of DDA as it aimed providing housing to 1,17,000 persons. The scheme was launched with an estimated land requirement of 2497 hectare and 1413 hectare (56.58%) was to be W.P.(C) 8525/2015 16 of 35 distributed among 117000 applicants in 5 years by draw of lots and balance land was to be utilized for development of infrastructure. Of course, since the actual registrants were 82384 only, much lower than the projected figure, the requirement of land reduced proportionately.

33. It seems that the allotment of land though started in 1982 but till year 2008, only 55,169 plots could be distributed to some such registered applicants and 25,366 applicants kept on awaiting allotment for around three decades.

34. Of course, for such an ambitious project, DDA should have done its homework in a better and effective manner. Their planning, it seems, was not upto the mark or perhaps they encountered obstacles in acquisition and development. The requirement for housing purpose was of 1413 hectares land. Of course, simultaneously, DDA was also under obligation to see the needs in terms of other land-use as provided under the scheme.

35. Fact remains, the amount, which all such applicants were asked to deposit was provisional in nature.

36. The broad terms & conditions of the Rohini Residential Scheme have already been noticed and when the rates were mentioned in the brochure, it was categorically observed in the relevant terms & conditions that these were provisional rates and that these rates were subject to revision from time to time at the discretion of Delhi Development Authority. Such important aspect cannot be overlooked. W.P.(C) 8525/2015 17 of 35

37. Thus, even when the scheme was launched, DDA had given provisional rates and there was a clear-cut caveat that these rates were provisional and subject to revision.

38. For the purposes of creating residential plots, DDA required 1413 hectares of land but it seems quite clear that despite making best efforts, DDA could not arrange for such land.

39. According to Ms. Manika Tripathy, learned Standing Counsel for DDA, there were unauthorized colonies on several such areas and it became a mammoth task to get such authorized occupants evicted from there. She also submits that there was a Sewerage Treatment Plant at Rithala, admeasuring 130 hectares of land but somehow the same has been shown as residential in the conceptual scheme. The work of development could have commenced only once the land had come to the pool of DDA. Before allotting any plot, certain ground work are to be done which, inter alia, entailed laying of peripheral water supply, sewerage disposal of lines, roads, internal roads etc. She also contended that even otherwise, as per the Master Plan-2021, only 8% of the area in a residential pocket could be earmarked for a plotted development and, therefore, if the plots were to be provided to all such registrants, the requisite approval was required from competent authority for necessary relaxation. W.P.(C) 8525/2015 18 of 35

40. Be that as it may, it cannot be said that the DDA was completely inactive and dormant. The year-wise break up of allotment is contained in Annexure P-11 of Writ Petition which also depicts the same.

41. Merely because DDA did not anticipate the obstacles and roadblocks while coming up with such ambitious plan would not, in itself, mean and indicate that even if the scheme was launched in 1981 and plots were, eventually, offered in the year 2015, such plots could have been offered only at the rate provided under Rohini Residential Scheme 1981. Even if idea of any profit is kept aside, such rates were not going to be static and there has to be, necessarily, expenditure upon removal of encroachments, acquisition and development.

42. The stand of DDA is very clear.

43. It never targeted any profit.

44. This is not, even otherwise, expected from them since the housing scheme was primarily meant for economically weaker section and as per scheme, as a measure of social justice, the layout of the residential areas has been planned in such a manner so as to provide as much as 97% plots to economically weaker section and low and middle income groups.

45. When the demand letters were issued, the premium of the plot was mentioned as Rs. 11,077/- per sq. mtr. For a plot measuring 26 sq. mtrs. and even such rate was provisional in nature. Earlier, the plots were of different sizes from 26 sq. mtrs. to 90 sq. mtrs. but thereafter, as per the decision taken by DDA, plots were offered in two categories only i.e. 26 W.P.(C) 8525/2015 19 of 35 sq. mtr. and 60 sq. mtrs. The premium for a plot having size 60 sq. mtrs as Rs. 23,252/-.

46. Interestingly, the present Association though hardly comprises of 500 such registrants. During the course of arguments, when it was asked as to whether any such registrant had already received the possession and whether such allottee continues with the possession or had already sold the same, no definite and concrete reply could come from the side of Petitioner-Association.

47. Much has been said about the pre-determined rates.

48. Section 2 (l) of Delhi Development Authority (Disposal of Developed Nazul Land) Rules 1981 reads as under: - "pre-determined rates" means the rates of premium chargeable from different categories of persons and determined by notification from time to time, by the Central Government, having regard to- (a) cost of acquisition, (b) development charges, and

(c) concessional charges for use and occupation-

(i) for developed residential plots, at the rate of Rs. 3.60 per square metre for the first 167 square metres or part thereof, Rs. 4.80 per square metre for the next 167 square metres or part thereof, Rs. 6 per square metre for the next 167 square per metres or part thereof, Rs.

7.20 per square metre for the next 167 square metres or part thereof, Rs. 8.40 per square metre for the next 167 or part thereof, and Rs. 9.60 per square metre thereafter;

(ii) for developed industrial plots, at the rate of Rs. 3.60 per square metre for the first 0.81 hectares or part thereof, Rs. 4.80 per square metre for the next 0.81 hectares or part thereof, Rs. 6 per square metre for the next 0.81 hectares or part thereof, Rs. 7.20 per square metre for the next 0.81 hectares or part thereof, Rs. 8.40 per square metre for the W.P.(C) 8525/2015 20 of 35 next 0.81 hectares or part thereof, and Rs. 9.60 per square metre thereafter: PROVIDED that the pre-determined rates at which allotment is made to persons belonging to middle income group may be higher than the rates of premium fixed for plots allotted to persons in the low income group: PROVIDED FURTHER that in fixing the pre-determined rates of premium, the Central Government may fix a higher rate of premium for plots situated on main roads, comers or two roads, or at other advantage positions than the rates of premium fixed for plots situated far away from the main roads;

49. Thus, the component of such Pre-Determined Rate (PDR) would be cost of acquisition, development charges and concessional charges. Cost of acquisition and development charges are not static components and these variable components depend on so many factors and merely because when scheme was launched in the year 1981, provisional rate was mentioned as Rs. 100 per sq. mtr. would not mean anything substantial.

50. Moreover, though, provisional rate of land for EWS/Janta category for a 26 sq. mtrs plot was Rs. 2600 as per scheme but they were only asked to deposit earnest money of Rs. 750/-. This also indicates that the entire land was not available with DDA, else there was no embargo in seeking the entire amount, instead of seeking earnest money from any such applicant.

51. Moreover, such determination of rates and premium is better left to the concerned civic agency only. W.P.(C) 8525/2015 21 of 35

52. Reference in this regard be made Sheelawanti &Anr.(supra) where also, a similar question arose with respect to power to determine land price and the Full Bench of this Court held that scope of judicial review in cases, involving costing and fixation of price, was very limited. Petitioners in the aforesaid case were registrants of flats under 1979 scheme. In the aforesaid scheme, while mentioning prices for MIG, LIG and Janta Flats, it was also mentioned that such rates were subject to revision or modification depending upon the exigency of layout, cost of construction etc. Rate of MIG flat under the scheme was Rs. 42,000/- but the grievance of the petitioner was that DDA had demanded and had issued letters requiring them to pay for MIG category between Rs. 4,40,000/- to Rs. 5,20,000/- which was highly exorbitant and arbitrary and, accordingly, they sought writ and direction quashing such illegal demand made by DDA with further direction to them to render true and faithful account of the actual cost incurred on the construction of the flats and acquisition. The Larger Bench was constituted to decide the following questions:-

W.P.(C) 8525/2015 22 of 35

53. After careful analysis of various precedents, the Full Bench of this Court came to the conclusion that scope of judicial review involving costing and fixation of prices was very limited. Reference be made following paras:- “12. We may first refer to the decision of the Supreme Court in Shri Sita Ram Sugar Co. Ltd. v. Union of India, (1990) 3 SCC 223 (4) wherein we find that most of the earlier judgments on the question have been considered. In that case, the Court was examining the validity of the notifications issued by the Central Government in exercise of its power under sub-section (3) of Section 3 of the Essential Commodities Act, 1955, fixing the price of levy sugar in a particular year. Notifications were challenged as being ultra vires the said Act and violative of the fundamental rights of the petitioners, as fixations of price of levy sugar was dubbed to be discriminatory, arbitrary and unreasonable, inter alia, on the grounds that while pricing, material factors which vary from factory to factory like crushing capacity of plant, the sugar cane price paid, the capital employed in the manufacture of sugar, etc., have been ignored and irrelevant method of overall cost profiles of factories grouped together in zones without regard to their individual capacity and cost characteristics had been taken into consideration. Declining to interfere in the matter, the Court observed as under:- “Where a question of law is at issue, the court may determine the rightness of the impugned decision on its own independent judgment. If the decision of the finding of law by the authority is liable to be upset. Where it is a finding of fact, the court examines only the reasonableness of the finding. When that finding is found to be rational and reasonably based on evidence, in the sense that all relevant material has been taken into account and no irrelevant material has influenced the decision, and the decision is one which any reasonably minded person, acting on such evidence, would have come to, then judicial review is exhausted even though the finding may not necessarily be what the court would have come to as a trier of fact. Whether an order is characterised as legislative or administrative of quasi judicial or, whether it is a W.P.(C) 8525/2015 23 of 35 determination of law or fact, the judgment of the expert body, entrusted with power, is generally treated as final and the judicial function is exhaused when it is found to have “warrant in the record” and a rational basis in law.”

13. Further, while holding that price fixation is in the nature of a legislative action even when it is based on objective criteria founded on relevant material and that the Government cannot fix any arbitrary price, the Supreme Court observed thus: - “The court has neither the means nor the knowledge to reevaluate the factual basis of the impugned orders. The court, in exercise of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence.”

14. Relying on the observations in its earlier decision in Gupta Sugar Works v. State of U.P., 1987 Supp SCC 476 (5) to the effect that the Court neither acts like a Chartered Accountant nor like an Income Tax Officer and it has only to examine whether price determined was with due regard to considerations provided by the statute and whether extraneous matters had been excluded from determination and while upholding (para 58) that price fixation is not within the province of the Courts and that judicial function in respect of such matters is exhausted when there is found to be rational basis in the conclusions reached by the concerned authority, it observed: “Judicial review is not concerned with matters of economic policy. The court does not substitute its judgment for that of the legislature or its agents as to matters within the province of either. The court does not supplant the “feel of the expert” by its own views. When the legislature acts within the sphere of its authority and delegates power to an agent, it may empower the agent to make findings of fact which are conclusive provided such findings satisfy the test of reasonableness. In all such cases, judicial inquiry is confined to the question whether the findings of fact are reasonably based on evidence and whether such findings are consistent with the laws of the land.” W.P.(C) 8525/2015 24 of 35

15. Similar observations to the effect that “price fixation” is neither the forte nor the function of the Court and it is not within the province of the Court to examine the price structure in minute detail, if it is satisfied that the pricing is not arbitrary or is not a result of the application of any wrong principle are also found in an earlier judgment of the Supreme Court in Kerala State Electricilty Board v. S.N. Govinda Prabhu and Bros., (1986) 4 SCC 198. (6)

16. We may now refer to another decision of the Supreme Court in Bareili Development Authority v. Ajay Pal Singh (supra), which dealt with an issue similar to the one arising in the present case. Therein, the Bareili Development Authority (B.D.A. for short) had undertaken construction of dwelling units for people belonging to different income groups styled as lower income group, middle income group, high income group, and economically weaker sections and had issued an advertisement offering to register names of the intending applicants desirous of purchasing dwelling houses/flats in any one of the different income groups intended to be constructed by the B.D.A. In the brochure containing the terms and conditions, a “general information table” was given indicating the types of houses corresponding to income groups, cost, etc., and the note below the “general information table” given in the said brochure stated that the cost was only the estimated cost which was subject to increase or decrease according to the rise or fall in the price at the time of completion of the houses/flats. By Clauses 12 and 13 in the said brochure, a right was reserved by the Authority to change, alter or modify any of the terms and for conditions of allotment given in the brochure as and when felt necessary. Subsequently the Authority revised the cost of the flats, informed the registrants of the flats about it, requiring them to pay accordingly, which was challenged, inter alia, on the ground that the cost demanded as compared to the one advertised in brochure, was much beyond the means of the petitioners and was arbitrary. While allowing the appeals against the judgment of the Allahabad High Court, the Supreme Court, referring to the terms and conditions in the brochure including clauses 12 and 13, referred to above, observed that there being no misstatement or incorrect statement or fraudulent concealment in the information supplied in the brochure on the strength of which applicants had applied and got their names registered, thus, resulting in a concluded contract, they could not be heard to say that the B.D.A. had arbitrarily and unreasonably changed the terms and conditions of the brochure to the prejudice of the W.P.(C) 8525/2015 25 of 35 petitioners, particularly also for the reason that some of the registrants had given written consent accepting the change and varied terms and conditions. In Para 21, it was held that: “Even conceding that the B.D.A. 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., B.D.A. in this case) in the said contractual field,”

17. It was thus held that the contract entered into between the B.D.A. and the registrants was non-statutory, purely contractual and the rates were governed only by the terms of the contract and no writ or order could be issued under Article 226 of the Constitution.

18. Following the decision in the B.D.A.'s case a number of Benches of this Court declined to go into the question of the costing of flats and of land and upheld the pricing of the flats even under the present Scheme as well. These judgments are Veena Saxena v. D.D.A., 1992 (47) DLT 266 (1): Abhimanyu Kumar Sethi v. D.D.A., 1992 (47) DLT 295 (8); Mahanand Sharma v. D.D.A., [CW 1327/91(9) dated 15 January 1992]: Vinod Kumar Gupta v. D.D.A. (CW 728/92 dated 22 October 1991 (10): J.K. Dhingra v. D.D.A. (CW 2787/90, dated 16 May 1991): (11) and Puran Chand v. U.O.I. (CW 3876/92, dated 24 May 1993); (12)

19. The consistent view of this Court, thus, was that escalation in prices of the flats constructed by the D.D.A. under different schemes, including the present Scheme, could not be challenged under Article 226 of the Constitution till the decision in Ashok Kumar Behl v. D.D.A., 52 (1993) DLT 153, in which the Court went into the question of pricing and quashed the escalated price of the flats allotted under the scheme. It appears that the Court did so apparently for the reason that despite W.P.(C) 8525/2015 26 of 35 specific directions in that behalf the D.D.A. had failed to place the relevant material before the Court to explain how the price fixation had been done and on what basis. Court querries in this behalf were not answered, which led to the belief that the D.D.A. was suppressing something and had acted arbitrarily to the prejudice of the writ petitioners. These significant factors put the case out of the ambit of the ratio of the Bareili Development Authority's case.

20. From the above, it is clear that the scope of judicial review in the cases involving costing and fixation of prices is very much limited. Apart from the observations and the findings recorded in B.D.A.'s case (Page 126), extracted above, that a public body entering in the realm of contract acts merely in its executive capacity and thereafter the relations are no longer governed by constitutional provisions but by contract, which apply in this case as well, even otherwise, what has to be seen and examined by the Writ Court is whether the pricing of flats demanded by the D.D.A. for different categories of allottees is whimsical or arbitrary. The data placed on record by the D.D.A. prima facie does not warrant so. There are of course some contentions points, like formula and basis for working out the land rate, cost of development, construction and inclusion of certain expenses, which could only be decided on evidence, which we do not propose to do in writ jurisdiction. Merely because the method of voluation suggested by the petitioners would be more fairer or logical, the method or the basis adopted by the D.D.A. cannot be struck down as arbitrary or whimsical.............

25. Even otherwise, the Scheme itself contemplates varying rates depending upon the class to which an allottee belongs— such as economically weaker section. Low Income Group or Middle Income Group. But in each case, the consideration payable for the flat is referred to as the “cost”. In other words, even to those who belong to the economically weaker sections, the consideration payable is called the “cost” of the flat. If the basic cost (i.e. the actual) expenditure incurred by the DDA is to be the “cost” for the flats then, the same rate should have been uniformally applied to all the classes of allottees. Admittedly, it is not so. Therefore, the word “cost” referred in the Scheme cannot be equated to the basic expenditure incurred by the DDA. The term has a wider significance and is used to convey the meaning of the term “price”. W.P.(C) 8525/2015 27 of 35

26. The Scheme uses the word „cost‟ at several places. But it is clear that it is used in the sense of a „price‟ to be fixed.

27. The new Lexicon, Webster's Dictionary of the English language (1988 Edition) gives one of the meaning of the term cost as “the price paid or to be paid for something”.

28. The Scheme itself has equated the “cost” to the word “price”. Clause 13 gives the “likely cost of flats” and thereafter says “the prices are indicative and do not represent the final cost”. Again clause 14 says “…… the estimated prices mentioned in the brochure are illustrative ……”

29. We have been taken through the affidavits and other material on record by learned counsel for the parties. We, however, do not find that the fixation of land price cost of construction of the flats worked out by the respondent, DDA is arbitrary or whimsical.

54. The aforesaid decision of Full Bench was taken in appeal before the Hon‟ble Supreme Court. Admittedly, such SLP was dismissed by the Hon‟ble Supreme Court on 14.07.1995.

55. Challenge in Major General Pradeep Kumar Mahajan & Ors. (supra) was also with respect to the decision of DDA to allot flats of smaller size than what had been mentioned in the scheme and this Court held that DDA was bound by any decision taken by Central Government and refused to interfere with the matter. Since aforesaid judgment pertains to the same scheme of 1981, following paras of the aforesaid judgment have some relevance which read as under: -

W.P.(C) 8525/2015 28 of 35 allotment even till 1999 and lack of adequate land. To satisfy claims of all pending applicants within the available land is good enough justification, in public interest, to tinker with the policy.

49. Arguments of the petitioners that hand they opted for a 60 sq. mtrs. plot, they would have got one in 1991 and at price of said year and as a result of the change in policy they would be burdened with price of year 2005 and onwards depending upon when DDA offers a plot to them is best answered by the observations of Professor Wade in „Administrative Law‟ by H.W.R. Wade 6th edition: “There is ample room within the legal boundaries for radical difference of opinion in which neither side is unreasonable. The reasonableness in administrative law must, therefore, distinguish between proper course and improper abuse of power”.

50. Court is not to test reasonableness on its own standards as it might conceive in a given situation. A thing is not unreasonable in the legal sense merely because the court thinks it to be unwise. “Wednesbury‟s reasonableness” is the test to be applied.

56. Reference be also made to DDA Vs. Pushpender Kumar Jain: 1994 Supp (3) SCC 494 where also some flats had been allotted by DDA under hire-purchase scheme and, eventually, when the demand-letters were issued, it was indicating higher rates than the one mentioned in the brochure. In that case also, brochure contained a stipulation that the price of the flats would be subject to revision/modification and it was held that any such allottee is bound to make the deposit at the enhanced rate as per demand if he wanted to secure flat. It was observed that any such allottee would get indefeasible right to allotment only on the date of communication of allotment and since the cost had been enhanced prior W.P.(C) 8525/2015 29 of 35 to the allotment-letter, such demand of enhanced rate was justifiable. It needs to be mentioned her that in above case, the contention of the writ petitioners that they could have been charge land-rate prevailing on the date of draw of lots was upheld by this Court and it was in that backdrop that matter was taken to Supreme Court by DDA. While allowing the appeal, it was observed as under: - “.........

6. A perusal of the High Court's order shows that it is based upon the following two reasons: (1) Though the draw was held on 12-10-1990, the allotmentcum-demand letter was issued to the respondent only on January 9/13, 1991. This delay was the result of inefficiency of the DDA. (2) Inasmuch as the issue of allotment-cum-demand letter was delayed in the office of DDA, it cannot charge the revised land rates to the respondent inasmuch as the respondent became entitled to get the flat on 12-10-1990; the revision of land rates subsequent to the draw of lots cannot affect the respondent.

7. In our opinion, both the grounds assigned by the High Court are unsustainable. There was no material placed before the High Court — nor has any material been brought to our notice — to record a finding that the interval of three months between the draw of lots and the despatch of allotment-cum-demand letter was on account of inefficiency of the appellant. The appellant's case is that the draw of lots was held for nearly three thousand flats and since the land rates were revised meanwhile, the process of calculating the cost of each flat and sending of demand-cum-allotment letters to nearly three thousand allottees took some time. In our opinion, the interval of three months cannot be characterised either as inordinate or as deliberate delay. The scheme itself does not prescribe the period within which allotment has to be W.P.(C) 8525/2015 30 of 35 communicated from the date of draw of lots. It has, of course, to be done within a reasonable period.

8. Now coming to the other ground, we are unable to find any legal basis for holding that the respondent obtained a vested right to allotment on the draw of lots. Since DDA is a public authority and because the number of applicants are always more than the number of flats available, the system of drawing of lots is being resorted to with a view to identify the allottee. It is only a mode, a method, a process to identify the allottee, i.e., it is a process of selection. It is not allotment by itself. Mere identification or selection of the allottee does not clothe the person selected with a legal right to allotment at the price prevailing on the date of draw of lots. The scheme evolved by the appellant does not say so either expressly or by necessary implication. On the contrary, clause (14) thereof says that “the estimated prices mentioned in the brochure are illustrative and are subject to revision/modification depending upon the exigencies of lay-out, cost of construction etc.”. It may be noted that registration of applicants under the said scheme opened on 1-9-1979 and closed on 30-9-1979. About 1,70,000 persons applied. Flats were being constructed in a continuous process and lots were being drawn from time to time for a given number of flats ready for allotment. Clause (14) of the Scheme has to be understood in this context — the steady rise in the cost of construction and of land. No provision of law also could be brought to our notice in support of the proposition that mere draw of lots vests an indefeasible right in the allottee for allotment at the price obtaining on the date of draw of lots. In our opinion, since the right to flat arises only on the communication of the letter of allotment, the price or rates prevailing on the date of such communication is applicable unless otherwise provided in the Scheme. If in case the respondent is not willing to take or accept the allotment at such rate, it is always open to him to decline the allotment. We see no unfairness in the above procedure.

9. We may clarify that the validity or justification of the revision of land rates by circular dated 6-12-1990 was not questioned in the writ W.P.(C) 8525/2015 31 of 35 petition nor has it been pronounced upon by the High Court nor has it been urged before us. We must, therefore, proceed on the assumption that the said revision of land rates is valid.

10. For the above reasons, the appeal is allowed and the judgment and order of the High Court is set aside. No costs.

57. DDA is also justified in placing its reliance upon Ramanand Vs. Union of India & Ors. (supra), where following questions came up for consideration: -

58. The Full Bench of this Court held that an individual whose land has been acquired does not have any absolute right to the allotment of alternative plot of land and further that the premium which is chargeable from such person at the predetermined rates prevailing on the date when the offer is made to him by DDA for allotment of a specific plot of land under the Nazul Rules. W.P.(C) 8525/2015 32 of 35

59. Thus, the key aspect is the fact that such predetermined rates (PDR) has to be the one which is prevailing on the date when an offer is made.

60. Moreover, as already noticed above, petitioners cannot seek allotment at a meager rate of Rs. 100 per sq. mtr. which was, even otherwise, a tentative rate even in the year 1981.

61. There is nothing which may indicate that such increase contains any element of profit. No writ can be issued merely on the basis of speculation. There is nothing which may indicate that DDA has acted arbitrarily or beyond its power. There is nothing to indicate that such demand-letter is arbitrary in nature. The price, which was mentioned in the brochure, was tentative and estimated one and was always subject to revision and modification and Petitioner-Association cannot be permitted to raise a grievance that even after lapse of around 24 years, they should be charged at the same old rate. Petitioners have not been able to substantiate the fact that the aforesaid rate is inclusive of market rate. Aspects related to acquisition, removal of encroachers and development charges cannot be kept aside and these components keep on inflated with every passing year and, therefore, only when the demand-letters were issued in the year 2015, the prices got escalated and there is nothing which may indicate that such price is inclusive of any profit. W.P.(C) 8525/2015 33 of 35

62. The aforesaid judgments relied by DDA cannot be distinguished by merely claiming that in all those cases, the land belonged to DDA itself whereas in the present case its Nazul land.

63. The underlying principle, in any case, would remain the same.

64. There is nothing to indicate that DDA is not empowered to revise the rates particularly when the rates indicated in the brochure were tentative in nature and were subject to revision or modification.

65. Moreover, numbers of plots were more than one lac and these were to be made available in a span of five years. The plots can be offered only when DDA acquires vacant and peaceful possession of the land, ensures that the unauthorized encroachment, if any is removed and there is basic and primary development for providing basic amenities. It must have been a herculean task when the plots were 1,17,000 in number. Therefore only, DDA prepared a priority list and in terms of such priority list, it offered the plots in a phased manner.

66. It may also be highlighted, right here, that while Petitioner- Association contends that DDA, being a statutory body, is enjoined to act strictly in conformity with the statutory provisions, it has also taken an alternate plea that the agreement between various such registrants and DDA is a private as well and, therefore, the Court should not interfere in any such private contract between the two parties.

67. The aforesaid contention seems misplaced in the sense that the contractual obligations, in its strict legal sense, stood crystalized only W.P.(C) 8525/2015 34 of 35 when the demand-letters were issued. Moreover, as already noticed above, rates mentioned in the brochure were provisional rates which were subject to change and even if the contract in question is treated to be a private contract, the registrants cannot run away from such terms and conditions. For all purposes, the terms of eventual allotment are in consonance with the brochure and, therefore, the registrants cannot in unilateral manner, avoid to abide by those or seek its dilution. These terms are not open to modification or dilution at the behest of individual allottees.

68. Moreover, when a public authority discharges function of allotment of land, which is traceable to a statutory source, the relationship, which had the initial shades of a statutory agreement, gets transformed into a character of a different nature. Such amalgamated relationship has to respect public law principles and is also to adhere to terms, which are personal in nature as manifestly, two different agreements, eventually, gets amalgamated into one.

69. Petitioner-Association, in view of the aforesaid peculiar facts of the present case, cannot dig out any real advantage from Bareilly Development Authority v. Ajay Pal Singh [(1989) 2 SCC 116], DDA v. Lal Amarnath Educational Society [1990 SCC OnLine Del 261], Sheelavanti v. DDA [ILR (1996) I Delhi], India Thermal Power Ltd. v. State of M.P. [(2000) 3 SCC 379], and Manuelsons Hotels Ltd. v. State of Kerala [(2016) 6 SCC 766]. The invocation of the equitable doctrine of W.P.(C) 8525/2015 35 of 35 promissory-estoppel by the Petitioner-Association is also misplaced in the present context.

70. In view of foregoing discussion and upon meticulous consideration of rival contentions, the prayer seems fallacious and thus, the present challenge, being not sustainable, does not warrant any judicial indulgence. The action of the Respondent-DDA, being squarely in consonance with the applicable statutory framework and its scheme and brochure, calls for no interference.

71. In view of the above, Writ Petition is dismissed.

72. No order as to costs.

73. All the pending applications are also disposed of in the aforesaid terms.

JUDGE MAY 30, 2025/dr/shs