1. This appeal (as well as the connected appeal LPA 888/2004 both under Clause X of the Letters Patent) is directed against the judgment and order dated 4th August, 2004 passed by a learned Single Judge in WP (C) 682/1989 and WP (C) 3137/1987.
2. This appeal has been filed by the Residents' Welfare Association of DDA flats in Pocket BG of Paschim Vihar, while the connected appeal has been filed by one of the residents of the same pocket and a member of the Appellant association.
3. The grievance of the Appellants is that 288 flats in Pocket BG Paschim Vihar were constructed by the DDA under one scheme and at the same time but 162 of these flats, which were allotted to the Appellants, were 12% costlier than the 126 flats earlier allotted to others. The Appellants challenged this cost differentiation in writ petitions filed under Article 226 of the Constitution.
4. The specific details in this regard are that the draw of lots for 126 flats took place on 12th June, 1985 and the allotment was made on 12th July, 1985. As regards 162 flats, the draw of lots took place on 29th March, 1986 and letters of allotment were issued on 5th September, 1986.
5. In response to the writ petitions, the Respondents filed affidavits before the learned Single Judge explaining their stand. As regards the allotment of flats in two phases, it was explained that originally a large number of flats were allotted in Pockets N and W of Pitampura in 1982 but many of those flats were Sub-standard and so their possession could not be given. To avoid any inconvenience to the allottees of flats in Pitampura, it was decided by the DDA to take out 126 flats from Pocket BG, Paschim Vihar and allot them to the original allottees of Pitampura. It is for this reason that 126 flats were kept in the draw of lots held on 12th June, 1985 and allotments made.
6. It is only thereafter that the balance 162 flats, the subject matter of the present appeals, were made ready for allotment and were in fact allotted a year later in 1986.
7. From these facts, it appears that the decision of the Respondents of taking 126 flats out of 288 in Pocket BG, Paschim Vihar for allotment to the original allottees of Pitampura is based on some reason and is not whimsical or arbitrary. These allotments were made due to some exigencies which, as per the additional affidavit filed by the Respondents, arose because the flats allotted in Pitampura had a major defect in them and so possession letters could not be issued to the allottees. Since the Pitampura allottees had been allotted defective flats, it was to adjust them that 126 flats were taken out from Pocket BG, Paschim Vihar for allotment. It is not possible for us to sit in appeal over this decision of the Respondents or to try and find fault with the decision.
8. As regards the difference in the cost of the flats, it was stated by the Respondents that the increase was due to blocked capital, service charges and maintenance charges for the period of over one year that it took for allotment letters to be issued in respect of the balance 162 flats. The learned Single Judge has mathmetically worked out, although we think it was not necessary for him to do so, the justification for the 12% increase and on this basis has concluded that from the figures available, the increase was factually justified.
9. It has been held by the Supreme Court in Delhi Development Authority v. Pushpendra Kumar Jain, that the cost of flats prevailing on the date of communication of the letter of allotment would be valid. In that case the pre-determined land rate had increased between the date of draw of lots for the flat and the date of communication of the letter of allotment. The Supreme Court held the demand based on the enhanced land rate to be justified. This is what the Supreme Court said in paragraph 8 of the Report: -
No provision of law also could be brought to our notice in support of the proposition that mere drawl of lots vests an indefeasible right in the allottee for allotment at the price obtaining on the date of drawl 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.
10. In so far as the present case is concerned, in view of the above decision of the Supreme Court the Respondents were fully entitled to charge the cost of 162 flats as on the date of communication of the letter of allotment which is September, 1986. Since this was more than one year later than the allotment of 126 flats (in the first phase), there was naturally an increase due to the factors mentioned by the Respondents, that is, blocked capital, service charges and maintenance charges. The Respondents were, therefore, justified in charging a slightly higher amount (about 12%) from the allottees of the balance 162 flats. We do not find any irrationality or arbitrariness on the part of the Respondents in this regard, particularly in view of the judgment of the Supreme Court mentioned above.
11. On a totality of the facts of the case, we do not find any reason to interfere with the order passed by the learned Single Judge. The appeal is dismissed. No costs.