A.K. Sikri, J.
1. The petitioners in this batch of writ petitions are those who had to shut down their industrial undertakings in Delhi pursuant to the orders passed by the Supreme Court in the case of M.C. Mehta v. Union of India as these industrial units were in non-conforming/residential areas. While appreciating and being sensitive to the problem of pollution created by such units which were operating in non-conforming/residential areas and imminent need to shift them to industrial areas, in the interest of clean environment in Delhi, the respondent No. 1 and respondent No. 2 had taken policy decision to develop proper industrial areas for relocating these industries. This policy decision was taken some time in the year 1996, i.e., before the final the orders were passed by the Supreme Court directing closing down of these industrial units operating from non-conforming/residential areas which orders were passed in the year 2000-01.
2. The Commissioner of Industries of the Government of N.C.T. of Delhi had formulated this policy. The respondent No. 3 , i.e. DSIDC assumed the charge of developing the industrial area which was to come up at some places including in ,,. Bawana. The respondents invited applications in the year 1996 from persons/ entities eligible for allotments as per policy to apply for allotment of industrial plots in the authorised industrial areas developed/to be developed by the authorities for the purpose of relocating the industrial units in Bawana. The application forms specified the terms and conditions of the said policy. As per the said terms, non-conforming industrial units operating in residential and/or other non-conforming areas were eligible for allotment of flatted factory/industrial plots for relocation. The cost of the industrial plots was specified at the rate of Rs. 3,000/- per sq. mtr. subject to finalisation depending upon cost of acquisition and cost of construction/ development. For industrial plots, the schedule of payment was indicated to be payable in five stages namely earnest money at the rate of Rs. 300/- per sq. mtr. of land applied at the time of submitting the application form, first Installment being 50% of the estimated cost of the plot with adjustment of earnest money paid allowed to be adjusted in said Installment, second Installment being 20% of the estimated cost payable after six months, third Installment being 20% of the estimated cost payable six months thereafter and the balance cost of 10% payable at the time possession of the plot was to be handed over.
3. All these petitioners in these writ petitions were allotted alternate industrial plots in terms of the policy and on the aforesaid terms and conditions. On scrutiny of these applications, the DSIDC informed these petitioners that they were eligible for allotment of plots in Bawana Industrial Area and in April, 2000 informed these petitioners the size of the alternate industrial plots for which they were found eligible. The petitioners were also asked to pay first Installment from the date of issue of these letters. One such letter dated 25th April, 2000 contains the aforesaid details of the size of the plot measuring 250 sq. mtrs., tentative cost of the plot as Rs. 7,50,000/- and demand of Rs. 2,25,000/- minus Rs. 1,20,000/- already deposited as earnest money. It was stated that if the payment is not made within three weeks, interest at the rate of 18 per cent would be charged thereafter for the delayed payment and in case payment is not made within the period of 60 days from the date of issue of the letter, plot was liable to be cancelled and the amount already deposited was liable to be forfeited. This letter further specifies that the allottee was required to close the industrial units at the existing location and obey all orders and directions issued in this behalf by the Government or any other authority or person so authorised in this behalf. Similar letters were addressed to all these petitioners.
4. While steps were taken by the Government for relocating of these industries in Bawana industrial area which was being developed for this purpose, these petitioners were allowed to operate, in the meantime, from non-conforming/ residential areas where their industrial units had been located. As already pointed out, issue pertaining to the operation of various industrial units in non-conforming/ residential areas was seized off by the Supreme Court in the case of M.C. Mehta (supra). Various orders were passed in this petition from time to time. It is not necessary to refer to these orders in detail. Suffice is to state that consequence of such orders passed in the year 2000-01 was that these units were directed to be closed down. Thus all the existing industrial units belonging to the petitioners which were operating in non-conforming/residential areas had to close down their operations. This situation needed necessary impetus to the project of fully developing the industrial area in Bawana so that the petitioners could shift their units in the said Bawana Industrial Area without much loss of time.
5. It may be pointed out at this stage that in order to give a comprehensive package for relocation of the concerned industrial units, the respondents 1 to 3 held discussions with respondent No. 4 i.e. Delhi Financial Corporation and involved it to be a part and parcel of the relocation scheme. The respondent No. 4 on its own part agreed to give financial assistance to the allottees of the industrial plots and to finance 65% of the cost of the alternative industrial plot with the balance 35% being contribution of the allottee. Most of these petitioners availed of the financial assistance in this regard offered by the respondent No. 4. Loans towards land cost were sanctioned by it and the terms of and conditions of the financial assistance were indicated in the said sanction letters.
6. On 3rd October, 2000 the DSIDC held a draw of lots for allotment of alternative industrial plots to the petitioners. The successful allottees who were allotted specific industrial plots at the Bawana industrial complex were issued further intimation as regards the specific plot number allotted to them. As per this intimation, the allottees were informed that the respondent No. 4 had agreed in principle to finance the cost of the plot. This letter also contained a demand of further cost so as to make up 50% cost of the plot. However, the demand now has been raised to Rs. 4,200/- per sq. mtr. in which the payment schedule was indicated. The second Installment was stated to be 20% of the revised estimated cost after six months of the letter of intimation; the third Installment was stated to be 20% of the revised estimated after the next six months and the fourth Installment was stated to be balance cost at the time of handing over possession.
7. The petitioners made representations against the aforesaid increase in the land cost alleging that the same was arbitrary. Many petitioners however, paid the amount on the basis of revised calculations and demand based on this revision, without prejudice to their rights and contentions.
8. In September, 2001, the DSIDC issued demand letters demanding further Installment towards the land cost. It was stated in these letters that the total cost of the land so as to make up 100 % cost be paid by the allottees whereupon possession of the plots would be handed over once complete payment is made. This payment was demanded on the basis of cost computed at the rate of Rs. 4,200/- per sq. mtr. The petitioners did not want to pay the cost computed at the rate of Rs. 4,200/- per sq. mtr. According to them, this was illegally revised from originally stipulated cost of Rs. 3,000/- per sq. mtr. The petitioners also had grievance that the demand of 100% amount by the DSIDC was totally unjustified as the Bawana Industrial Area had not been fully developed. It lacked in so many infrastructural facilities because of which it was neither feasible nor possible nor prudent to construct industrial units in the said area. Since the respondent) had also not decided the representations of the petitioners against revision of land cost fixed at Rs. 4,200/- per sq. mtr. more so when even this demand was stated to be provisional and subject to further revision, these writ petitions came to be filed challenging the aforesaid action of the respondents.
9. It may be stated at this stage itself that in various writ petitions although, apart from aforesaid grievance, other prayers are also made but at the time of arguments, Counsel for the parties addressed the aforesaid two issues. The two-fold issues, for the sake of clarity, can be formulated here.
(I) The respondents could not demand the balance payment and force the petitioners to pay 100% amount, as demanded, as the industrial area was not fully developed and ready for proper take off.
(II) Revising the cost from Rs. 3,000/- per sq. mtr. to Rs. 4,200/- per sq. mtr. was arbitrary and illegal.
10. Before proceeding further, it may be mentioned that along with the writ petitions, the petitioners had also filed stay applications seeking interim reliefs. Primarily the interim relief was to stay the demand of further payment and direct the respondents not to cancel the allotments of the petitioners for such non-payment and not to charge interest of 18 per cent for alleged delay as stipulated in the demand notices. These applications were heard and disposed of vide detailed order dated 24th May, 2002. It would be appropriate to quote relevant portions of this order as pulse of the matter would be known from this order which records in extenso the respective submissions of the parties on the points in issue :
'On 25th September, 2001, the respondent-DSIDC wrote a letter to the allottees informing that due to administrative reasons the schedule for deposit of balance 50% payment of the cost was earlier deferred as notified in the leading newspapers, however, it was now decided to demand the balance 50% of the cost of the plot by 31st October, 2001. The allottees were, thereforee, called upon to make payment of 50% of the plot by 31st October, 2001. It was on the said letter being issued that the writ petitions came to be filed in this Court alleging, inter alia, that firstly price of the plot could not be increased from Rs. 3,000/- to Rs. 4,200/- per sq. mt. and secondly, the respondent could not ask the allottees to pay the balance amount in one Installment by 31st October, 2001.
The contention of some of the petitioners is that if 70% of the payment is made @ Rs. 4,200/- per sq. mt. it will amount to the payment of 100% of the cost of the land @ Rs. 3,000/- per sq. mt. The contention is that the respondents cannot be permitted to make profit by increasing the cost of the land allotted to the petitioners inasmuch as the scheme framed by the Government is to relocate the petitioners to an alternative plot of land on no profit no loss basis. Reference has also been made to the affidavit of Mr. Ganga Das, the then Principal Secretary-cum-Commissioner (Industries) and representatives of DDA, DSIDC, Delhi Electric Supply Undertaking, Public Works Department and Municipal Corporation of Delhi as its members was constituted to examine/review the price on which the land was to be offered for relocating the industries. It was further stated in the affidavit that relocating industries had been assured that the cost of the industrial land would be on no profit no loss basis and the sum of Rs. 500/- being charged for application form was proposed to be adjusted towards the cost of the plot. Submission, thereforee, is that since the respondents had assured the allottees that they would be given the industrial land on no profit no loss basis, they could not increase the price from Rs. 3,000/- per sq. mt. to Rs. 4,200/- per sq. mt. It is submitted that no material whatsoever was placed on record to justify that the cost had increased from Rs. 3,000/- per sq. mt. to Rs. 4,200/- per sq. mt.
In the counter affidavit, the stand taken by the respondent-DSIDC is that the initial cost of the industrial-plot was only tentative and subject to change depending upon the cost of acquisition, cost of development etc. and cost of the plot was raised to tentative price of Rs. 4,200/- per sq. mt. as a result of various factors such as rise in the cost of acquisition, increase in the cost of power supplied by Delhi Jal Board, increase in the demand raised by Delhi Jal Board for water supply, increase in the expenses for providing the plant for treatment of industrial waste besides other ancillary reasons. It is submitted that Rs. 3,000/- per sq. mt. mentioned in the application form was only the tentative price subject to change on the basis of the actual cost which may have to be paid by the respondents for various service required for developing the plot. It is submitted that even this price of Rs. 4,200/- is only tentative and will be subject to further change that may have to take place if the respondents were required to pay the higher cost of acquisition for the land acquired for setting up the industrial estate. It is submitted that the respondents will place on record the material to justify the increase in price and satisfy the Court about the actual cost of development and the cost paid for acquisition of land on which the industrial estate has been set-up.
Prima facie, I am satisfied with the Explanationn furnished by the respondents in the affidavit that the cost of the industrial plot has been increased due to various factors mentioned in the counter affidavit. At this stage, this Court is not deciding as to what should be the actual cost that may have to be paid by the petitioners to the DSIDC, however, since the scheme of relocation is a self-financing scheme, the industrial site can be developed only with the funds generated from the allottees and unless money is paid to the respondents development may come to a stand-still. This Court cannot, thereforee, restrain the respondents from claiming the cost of the land tentatively at the rate of Rs. 4,200/- per sq. metre.
As already mentioned above, cost of the plot mentioned was only tentative and subject to changes depending upon the cost of development and the cost of acquisition etc. and I, thereforee, do not want to interfere at this stage with the decision of the respondent-DSIDC to claim the cost of the land at Rs. 4,200/- per sq. mt. I, accordingly, direct that subject to the petitioners depositing with the respondent-DSIDC, 70% of the cost calculated @ Rs. 4,200/- per sq. metre within two weeks from today, the allotment in favor of the petitioners will not be cancelled.
Another question still remains to be considered is as to how the balance price is to be paid. In terms of the original application 50% of the estimated cost was to be paid at the time of allotment of the plot by way of first Installment, 20% of the estimated cost was to be paid by way of second Installment after six months of the payment of first Installment and 20% of the estimated cost of the plot was to be paid after next six months. The balance of the actual cost to be paid at the time of handing over of possession. In terms of the demand made in October, 2000, 50% of the cost was required to be paid by March, 2001, the second Installment of 20% was required to be paid by September, 2001 and the third Installment of estimate cost was to be paid by 31st March, 2002. Because of the pendency of the writ petition and because of some other factors, it appears that some of the allottees have not even paid the second Installment of 20% of the land. I, thereforee, direct that all those allottees who have not yet paid 70% of the cost of the land calculated at the rate of Rs. 4,200/- per sq. metre will make payment of the same within two weeks from the date of passing of this order and the third Installment of 20% of the cost will be paid within six months thereafter. The balance 10% of the actual cost will be paid at the time of handing over of the possession. In case, the land has been developed and the respondent is in a position to hand over possession of the plot to the allottees, the allottees in terms of the letter dated 25th April, 2001 shall pay the entire balance amount to the DSIDC at the time of handing over of possession. This will, however, be subject to the final orders that may be passed by Court in this petition. I may make it clear that the developed plot of land, which will be handed over to the petitioner will mean that road, electricity and water supply are available at the site.'
11. It is thus clear, that in terms of aforesaid interim order, 70% of the cost of land calculated at the rate of Rs. 4,200/- per sq. mtr. was to be paid within two weeks from the date of that order, 20% was to be paid within six months thereafter and 10% at the time of handing over possession. Order was passed on 24th May, 2002 and thus in confirmity with this order, by first week of December, 2002 90% payment was to be paid by all these petitioners. It may, however, be stated that even after the aforesaid order was passed, payment was not made within stipulated period by the various allottees. This fact was pointed out to the Court by learned Counsel for the respondents during the course of hearing on 17th December, 2002 and after hearing Counsel for the parties, the Court passed the following order:
'Allottees who have paid 50% of the estimated cost by March, 2001, but fell in default thereafter, may make the payment of the 20% Installment due together with interest at 18% PA from 6th June to 6th December, 2002 on or before 31st December, 2002;
--Payment of the next Installment of 20% by 31st December, 2002 without payment of interest;
--Allottees who have been sent/received intimation with regard to the possession being handed over, may take possession upon payment of the balance 10% of the estimated cost.
It is clarified that if the second Installment of 20% which was payable by 6.12.2002 is paid by 31.12.2002, no interest would be charged.'
12. During the course of arguments, it was stated that all the petitioners have made 70% payment calculated at the rate of Rs. 4,200/- per sq. mtr. and most of them have made payment to the extent of 90%.
13. According to the respondents, plots have been fully developed and ready for possession of which the respondents are offering possessions and demanding 10% balance payment as well. However, the petitioners grudgingly state that the area has not been developed with proper infrastructure and handing over of the possession of these plots to the petitioners would be of no use to them as they can neither construct the industrial units nor would they be in a position to operate the same even if they are able to construct.
14. With this background, let us deal with the issue of proper development of the Bawana Industrial Area as the first issue.
(I) RE : Development of Bawana Industrial Area:
15. As the respondents disputed the contention of the petitioners that many works were yet to be carried out for the development of the industrial area and had submitted that substantial development had been carried out at the site and the respondents had completed the requisite works of sewerage, water and electricity etc., order dated 11th November, 2002 was passed in these writ petitions directing the respondents to file a comprehensive affidavit giving the current status in respect of development works, relating to sewerage, water and electricity as also the status of street lighting, roads and drainage system as well as the measures taken for provisions of Common Effluent Treatment Plant (CETP). Pursuant to this direction, the respondents filed an affidavit alleging that most of the works had been completed. This claim of the respondents was, however, disputed by the petitioners. Having regard to these rival contentions, the proposal of the Court for appointment of Local Commissioners, in order to put the matter beyond the pale of any controversy, was agreed to by the Counsel for the parties. A team of Local Commissioners was thus appointed which comprised Mr. Ajay Verma, Advocate, Mr. Pankaj Gupta, Advocate and Mr. Paramjit Chopra, Architect, M/s. Chopra & Associates. The scope of the task to be undertaken by the Local Commissioners was delineated in the order dated 28th November, 2002 and following terms were set for them:
'(1) status of laying and development of roads, sewers, storm water drains;
(2) status of electricity works whether any poles have been fixed etc., availability of electricity at present in the area and the extent thereof;
(3) demarcation of plots, if any, carried out;
(4) status of land and its level from the road level including the proposed internal roads, service lanes which are to join the main roads;
(5) status of telephone lines;
(6) status with regard to water supply including drinking water;
(7) any other information which in the opinion of the Local Commissioners/ Architect is relevant for assessing the development and feasibility of construction.
The respondents shall make available to the Local Commissioners their proposed plans of development and also give a note on the proposed stages of development and their completion time, as estimated by them. The Local Commissioners, while giving their report shall also keep in mind the proposed plan as furnished by the respondents. It would be open for the petitioners to give to the Local Commissioners in writing any information or their comments with regard to the development works. The Local Commissioners shall also take photographs to depict the state of development.'
16. The Local Commissioners visited the site and executed the commission. On the basis of site inspection and keeping in mind the aforesaid scope of reference, they submitted their 18 pages report on 13th December, 2002 and annexed Along with that various photographs, site plans and other documents supplied by the DSIDC which form part of the report and after including these documents, the report runs into 226 pages.
17. Perusal of the report shows that when the Local Commissioners reached the site and office of the DSIDC on 7th November, 2002, they requested the DSIDC to submit (a) proposed plan of development and (b) note on the proposed stages of development and their completion of time, as estimated by them. These documents were duly submitted which are annexed with the report as Annexure R-1; i.e. site plan and Annexure R-2, i.e. Note. The DSIDC also produced layout plans (Annexure R-3), project report of layout and services prepared by RITES (Annexure R-4), stages of plots and land (Annexure R-5), stages of water supply/sewage/drains (Annexure R-6) Status of electricity (Annexure R-7), Status of roads (Annexure R-S) and Status of Horticulture work (Annexure R-9) The petitioners also submitted documents including press advertisement dated 7th December, 2002 for pre-qualification of contractors for horticulture work (P-1), Press Note dated 29th November, 2002 regarding possession and press note dated 2nd December, 2002 inviting tenders for Solid Waste Collection etc.(P-2). The petitioners in CW1150/01 and CW 7765/01 submitted their comments also (Annexures P-3 and P-4 to the report). A detailed discussion was held by the Local Commissioners with the DSIDC representatives as well as the petitioners in different writ petitions who were present and it lasted for about two hours. Thereafter, the Local Commissioners moved for physical inspection of the site and of the facilities existing there. This inspection was carried out for about two and half hours in the presence of and with full participation of the representatives of the DSIDC as well as several petitioners. Their comments were duly noted by the Local Commissioners which have been incorporated in the report. Then the report proceeds to discuss the status of various infrastructural activities.
18. We may now discuss the report of the Local Commissioners on these issues with reference to the submissions made by learned Counsel for the petitioners and respondents/DSIDC. Before embarking on this venture, it may be stated at the outset that no objections are filed to the report of the Local Commissioners and in fact Counsel for all the parties, during the course of arguments, submitted that they accept the said report and the submissions were made on the basis of findings of the Local Commissioners as recorded in the report. In fact order dated 17th December, 2002 records that the Counsel for all the parties have commended the task performed by the Local Commissioners.
(i) Status of laying and development of roads, sewers, storm water drains etc.
Commenting upon this item, it is observed that the entire project envisaged about 143 kms, of roads and the road work, according to the DSIDC, was complete which claim appeared to be correct to the Local Commissioners. A fully functional network of well-laid metalled roads which included main roads of about 80m and 40m width also, internal roads etc. existed. Only a part of the road connecting Sector 4 to Sector 5 was under construction at the point where a bridge was being constructed over the Western Yamuna Canal.
In respect of sewers and drains also, the Local commissioners found that they were existing in a planned manner.
The Local Commissioners also noted that as per the DSIDC, the CETP was envisaged and till that could be constructed as an interim measure, two Oxidation Ponds in Sector 5 and one in Sector 2 were being constructed. The Local Commissioners found that construction of these Oxidation Ponds was under way.
The petitioners do not seriously dispute the claim of the DSIDC and have accepted the Local Commissioners' report, regarding construction of work. Main objection was, however, about the non-construction of the CETP. It was submitted that the report of the Local Commissioners makes it clear that there are only two Oxidation Ponds in the two sectors whereas there are in total 74 sectors. Thus much is still needed to be done even to bring in place functional sewerage system. It was also submitted that since the report makes no mention of sewage sump with pump house or even the pumping system, the independent assessment of the expert brings to light defect that there is no raw sewage sump with pump house and pumping system is not present.
Learned Counsel for the respondents, on the other hand, in one of the hearings held in January, 2003, stated that the work of construction of Oxidation Ponds was in full swing and they are expected to be ready within two months. On the basis of this statement, the construction of the Oxidation Ponds should have been completed by now. In any case, it is clear that the final solution is the construction of CETP which even, according to the respondents, has been envisaged. The respondents should start this work immediately and endeavor to complete the same as expeditiously as possible. Necessary directions in this respect are given at the appropriate place.
(ii) Status of electricity work :
The report reveals that the total load estimated for the project, when fully operational, is expected to be 300 MW. At the time of inspection 10MW supply was available. The respondents were in a position to grant temporary connection of 1KW each to each plot owner on making necessary application and completion of all formalities. The report further states that two more grid sub-stations of 66 KV are about 90% complete and are expected to be commissioned by end January, 2003. The work of erecting HT cables for additional capacity was in progress. The DSIDC/North Delhi Power Ltd. were aiming to provide 75 MW by September, 2003 and 150 MW by September/2004. As on that date there were 26 plot owners who had applied for temporary connection and all of them were given temporary connection of 1KW each.
The Local Commissioners further found that the project, envisages erection of 5,000 poles of which only 1,428 poles have been erected. The authorities informed that balance nearly 3,500 poles would be erected by September, 2003. But subsequently a document was given which disclosed that only about 840 poles are planned to be erected by that time.
The learned Counsel for, the petitioners argued, on the basis of this very report, that 1 KW of electricity supplied which was ensured by the DSIDC was not even enough to carry on the construction work, leave alone any production. At least 3 KW of electricity was needed for concrete mixers/stone cutters/grinders. The Local Commissioners also highlighted that as against proposed 500 transformers, only 24 transformers were in place. Similarly, only l,400 poles out of 5,000 poles were erected. Admittedly, there was no street light in the complex even as per the report, It was also emphasised, relying upon Annexure C to report, that it was almost impossible for the allottees to fetch electricity from their respective plots in Pocket A to H in the northern side and I to J in the southern side.
Learned Counsel for the respondents, on the other hand, submitted that the tenders for street lighting which had been invited had already been, finalised and the work had also been awarded. The contractor was thus going to start this work of street lighting. It was further submitted that as per the proposed plans, the respondents were expecting to provide 75 MW by September, 2003 and 150 MW by September, 2004. Similarly poles were being erected. Thus according to the learned Counsel for the respondents, electricity work was in progress. His submission was that on taking possession, of plots at this point of time, which was being offered to the petitioners the only activity at present required on the part of the petitioners was the erection of their industrial units. Thus electricity power, at the, moment, was required for construction activity alone and not for production. For this purpose, I KW connection was sufficient. It was submitted that the petitioners cannot expect that they would take possession of plots only when the entire electricity allotted at 300 MW is available which load was required when the total industrial area is fully operational, i.e. when all factories have been constructed and are carrying out production. He submitted that the respondents shall keep pace with the construction of factories in the area by the petitioners and other allottees providing additional electricity from time to time depending upon the requirements of the allottees.
(iii) Demarcation of Plots :
As per the report all plots had been demarcated. During arguments, the petitioners accepted this position.
(iv) Status land and its level from the road :
The DSIDC informed the Local Commissioners that the land of the plots, in relation to the road level, varied from a depth of less than 0.5m to above 1.5m. According to the DSIDC, as noted in the report, plots up to 1.5m depth were not being earth-filled as a matter of policy because it was anticipated that the plot holders would be constructing a basement. The Local Commissioners have made the following observations on the basis of physical verification:
'On a physical inspection, the Local Commissioners found that most of the plots were below the road level varying from about 450mm (1 / 2') to about 1200mm (4') from the roads, whether main or internal. The few units under construction were also found to be constructing a basement or excavating thereforee.'
Learned Counsel for the petitioners pointed out that the land at the site had depression with deeper potholes. Land filling, thereforee, was required. They further submitted that the DSIDC in its project has budgeted Rs. 8 crores for landscaping and it would be proper if there is no abandonment by it of the initial requirement of the land filling and direction be issued to it to carry the work of land filling. As per the building bye-laws basement cannot be more than 40% and thereforee making provision for basement is the ground for abandonment of the original plan for land filling is wrong and without basis.
(v) Status of telephone lines :
As per the report there are no landline telephones in the complex. However, as per the DSIDC, the MTNL was making available at request WLL telephones. The MTNL, in the meantime, was proposing to lay cables for land line telephones work whereof had not commenced. Learned Counsel for the respondents submitted that till the time cables are laid and land line telephones become available, the petitioners could obtain WLL telephones which were of same efficiency and entailed same expenses.
(vi) Status with regard to water supply including drinking water :
Total projected water requirement for the entire complex when fully functional is 6 mg/d. Presently 1.5mg/d supply was available from Delhi Jal Board. In addition 5 tubewells supplying 1 mg/d had been bored and these tubewells had been fitted with chlorination. Report further comments that tenders had been invited for boring another 7 tubewells which were expected to be operational within next six months. Water was supplied to individual plots, on one site of the road by means of 4' dia water supply main line from which plots on that side of the road could access their connections. For the plots on the other side of the road, to avoid road cutting, the DSIDC had provided chambers on that side of the road, accessing the main water line on the other side of the road by 1' dia GI pipes. These chambers, could be accessed by a group of 3-4 plot owners for their water connections. During random inspection, the Local Commissioners found the main water line, with sluice valves as well as the water chambers, to be in existence. In fact to verify the water supply, the Local Commissioners directed that the sluice valve at one point be opened and water was seen gushing out.
The petitioners, however, argued that there was no feeder main, raw water treatment plant, storage sump, additional dual pipe in place. Even though work was complete on the distribution line without the source for transmission of water and system for purification in place, the drinking water facility could not be ensured. The respondents relied upon the report in support of their claim that water supply was as per the requirement as on date was available. Even drinking water was available as bore well were fitted with chlorination.
(vii) Remainder-any other information :
Under this head, the report records that the provision had been made for commercial establishment including for raw material markets. Although according to the petitioners no such establishment for supply of building and construction material was available within the complex, there exists 350bed Maharishi Valmiki Hospital adjoining the complex; complex appeared to be well connected to the city with well-developed roads; plots had been allotted and demarcated for Delhi Fire Service; Delhi Police; Social Welfare for Working Women, petrol pumps etc. but not construction for these facilities had been started. The DSIDC had also undertaken tree plantation and had also invited tenders for balance work in this behalf.
19. The aforesaid discussion with regard to facilities available in Bawana industrial area would show that the petitioners are primarily concerned with alleged non-availability of electricity, telephone lines, drinking water facility and proper provision for sewers as well as filling of the land/plots. In so far as provision for electricity is concerned, as already noted above, the respondents have taken steps. Progress in this respect may be somewhat slow which needs to be exaggerated. However, it cannot be said that unless there is provision for total electricity as per the project, the petitioners should not take possession of the plots.
20. Learned Senior Counsel for the respondent/DSIDC is right in his submissions when he argued that after taking possession, the petitioners shall be first required to make construction of their industrial units which process itself would take quite some time. It is expected with the passage of time provision for supply of more electricity would be made and pace would be kept commensuration with the pace of construction activity and the increased requirement of supply over a period of time. Similarly, it is expected that the respondents shall pursue the MTNL also to start the work of laying cables so that by the time construction of the industrial units starts and gets completed, adequate provision of land line telephone is available in the complex. It may be noted that in view of availability of WLL telephones, the petitioners would not suffer any hardship on this account.
21. In so far as drinking facility is concerned, though there is some dispute about the availability of this drinking water on the ground that system of purification is not in place, it is expected that the respondents shall make appropriate provision in this respect immediately in addition to the provisions already made in order to ensure that drinking water facility is adequately available.
22. In so far as situation of sewers is concerned, the respondents are also expected to provide for raw sewage sump with pump house and the pumping system as per the project requirement and work thereon should start immediately.
23. The direction sought by the petitioners in respect of land filling does not appear to be justified. The respondents have stated that as these industrial units would construct basement, purpose would be served in land filling. It is not disputed by the petitioners. The only contention of the petitioners is that as per building bye-laws the basement cannot be more than 40% and thereforee the respondents should not abandon the original plan for land filling. Even if the basement is constructed over 40% of land, the earth which would be extracted by digging that 40% area would be sufficient for each plot holder to fill the land, if required, over the rest of the area. The project of the DSIDC for landscaping the area is laudable one and it would not only enhance the beauty of the industrial area in question but would go a long way in protecting the environment as well. In any case this is a prima facie opinion of the Court as the Court is not expert in the field. It would be appropriate if Mr. Paramjit Chopra, Architect, M/s. Chopra & Associates visits the site again and examine this issue keeping in view the site conditions as well as respective stands of the parties. If he is of the opinion that land filling is required, the respondents shall do the need in this behalf.
24. As already pointed out above, completion of project of this magnitude is a time consuming process as it is said 'Rome was not built in a day'. The report of the Local Commissioners gives a fair idea of the progress achieved in setting up the Bawana industrial area. The respondents are carrying out the developmental activities. Requirement of some of the facilities, like electricity, water etc. would depend upon the settlement of these industrial units. It would grow with more and more industrial units coming up. What is required is that the respondents keep pace with the increase in demand which would grow as time passes. However, it cannot be expected that only after provision for all these facilities is made that the petitioners would accept the possession of plots and would then start making their construction. Both the things are to go simultaneously. What is required to be seen at this stage is that necessary infrastructure is available for the petitioners to start constructing their industrial units. This Court is satisfied that such infrastructure does exist.
25. However, in order to ensure that remaining works which are required to be completed are undertaken and progress in this behalf is made in all earnestness by the respondents, respondents are directed to file status report of the progress of such works every three months in this Court. In case it is found that the progress is slow and is not keeping pace with the demand, the petitioners would be at liberty to approach the Court and seek appropriate directions in this behalf. This direction should assuage the apprehensions of the petitioners.
26. There are about 16,000 allottees in this industrial area. During the course of hearing, it was informed that 7,100 allottees had made payments of 90% and were ready to pay the balance amount, if possession is given. It was stated that although 1,900 allottees had given 100% payments, only 300 out of them were given the actual possession. The respondents shall thus ensure that those who have given complete payments, are handed over actual possession without loss of further time. The respondents shall also offer possession of plots to others who have made 90% payments, on receiving 10% balance payments. Others are also expected to comply with payment terms and take possession of the flats.
// RE: Costing of the Land :
27. In the interim order dated 24th May, 2002, while deciding stay applications, this Court had taken note of the submissions of both the parties in so far as cost of fixation of Rs. 4,200 /- per sq. mt. is concerned. Main contention of the petitioners is that these plots are to be given on no profit and no loss basis and the respondents cannot be permitted to make profit by increasing the cost of the land. It is stated that initially cost was fixed at Rs. 3,000 /- per sq. mtr. and there was no reason to enhance the same to Rs. 4,200/- per sq. mtr. The respondents, on the other hand, have taken the stand in the counter affidavit that initially cost of industrial plot was only tentative and subject to change depending upon the cost of acquisition, cost of development etc. It was also submitted that the respondents were not making any profits. In order to understand as to what was the basis for revising the cost to Rs. 4,200/- per sq. mtr. the respondents were directed to file an affidavit disclosing the basis thereof. Pursuant thereto, the DSIDC has filed affidavit dated 20th January, 2003. In Annexure A-I annexed with this affidavit the DSIDC has given the details of its justification for increasing the cost of plot. As per this annexure, when the cost of Rs. 3,000/- per sq. mtr. was fixed tentatively, it was done keeping in view the provisions for various factors including compensation for land acquisition, cost of power, development cost, CETP & MP roads, payments to other departments and other miscellaneous expenditure. Cost under these heads to be incurred now is more than what was provided for earlier.
28. The petitioners have objected to the enhanced provision in cost relating to some of the components and the submissions of the petitioner, in this behalf noted in nutshell, are as under:
(i) It is stated that 'cost' of Rs. 57.44 crores shown as interest on Earnest Money Deposit (HMD) is wrongly shown as provision for payment of interest on HMD was there from beginning and was shown in the application form itself. Furthermore, interest on deposits cannot be included towards enhancement of cost. Moreover the DSIDC admits that it has received interest on money deposits of 52,000 applicants and as income towards interest is more than the expenditure towards payment of interest, there was no reason to add Rs. 187.92 per sq. mtr. towards cost of plot on this account. It is also submitted that the DSIDC has been charging interest at the rate of 18% per annum from the allottees in case of extension of time for payment of the Installments which has not been taking into consideration.
(ii) In respect of increased cost of land acquisition, it is stated that the reason given in the Annexure A-I filed by DSIDC is wrong. According to Annexure A-I initially the land acquisition rate was Rs. 15 lacs per acre when 1070 acres of land was acquired and for remaining acquisition i.e. 933.29 acres acquisition rate was enhanced to Rs. 22-23 lacs per acre. The petitioners submit that this reason given by the respondents is contradictory to their own submissions made before the Supreme Court in CWP No. 4677 of 1995. In this case before the Supreme Court, the Govt. of NCT of Delhi had filed affidavit dated 18th December, 1996 and in para 3 thereof it was stated that physical possession of 1,300 acres of land was being taken on 18th December, 1996. thereforee, according to the petitioners, if any further land was acquired at a higher cost that could not be a part of project and thereforee burden thereof cannot be trusted upon the petitioners.
(iii) Revision of cost on account of power from Rs. 204.52 crores to Rs. 288 crores is challenged by submitting that the respondents are taking varying stand from what is taken in Annexure A-I as it is now sought to argue by producing letter from the DVB (Annexure-A/3) that the DVB had projected a estimated cost of Rs. 900 crores whereas the DSIDC had only charged Rs. 288 crores to the project. There was no mention of this amount of Rs. 900 crores which was not even ground earlier taken. Further provision for 200 KV and 66 KV was there from beginning and enhancement on this account that too by 280 per sq. mtr. could not be justified.
(iv) Service building:
Enhancement of cost on this account from Rs. 12 crores to Rs. 25.30 crores is challenged on the ground that para 4.2 of the project report shows that provision of Rs. 12 crores was made with regard to service building. No basis is given as to how this amount has been increased to Rs. 25.30 crores.
(v) Development cost:
It is argued that enhancement of development cost from Rs. 687.52 per sq. mtr. to Rs. 952.43 per sq. mtr. on the ground that net saleable area has been reduced is misconceived inasmuch as while net saleable area is reduced by 4.4% the cost is sought to be increased at a huge margin of 37%. Learned Counsel for the petitioners submitted that they would need detailed drawing specifications, estimates, notice inviting tender and financial bill of the contracts to be able to comment on the unilateral enhancement made by the DSIDC on this aspect.
(vi) Tubewells:
The cost of tubewells is increased from Rs. 26.54 crores to Rs. 28.89 crores as according to the DSIDC, it would be providing high yielding tubewells rather than low yielding tubewells projected earlier. This is challenged by the petitioners on the ground that the DSIDC has mentioned for the first time that earlier there was provision for low yielding tubewells which is going to be replaced by high yielding tubewells. No such thing as stated even in the affidavit. In any case cost of providing high yielding tubewells cannot go up by whopping figure of Rs. 2.4 crores, it was argued.
29. It may be stated that the DSIDC had submitted a short note on the verbal submissions made by the petitioners in respect of Annexure A-I and the petitioners also submitted their reply to this note. In the reply the averments made are the same which are taken note of herein above. In the short note of the respondents, the respondents have sought to justify the enhancement of cost in respect of aforesaid components. The respondents have also referred to various judgments of the Supreme Court as well as this Court in support of their contention that it is not for this Court to go into the costing,
30. It would be appropriate to take stock of these judgments in order to find out the parameters available to this Court within which it has to act while exercising of its power of judicial review over such a function of the respondents.
31. In Bareilly Development Authority and Anr. v. Ajai Pal Singh and Ors. : [1989]1SCR743 , the Supreme Court was deciding the question of decision by the authority in revising the cost of houses/flats which were offered by it to people belonging to different income groups styled as Lower Income Group, Middle Income Group and Higher Income Group as well as economically weak sections. Cost of each categories of flats was mentioned in the brochure issued by the authority. Thereafter the authority revised the cost of those houses/flats and the monthly Installment rates demanded were almost double the cost and the rate of Installments initially stated in the general information table contained in the brochure. This unilateral enhancement was challenged by filing writ petitions in the High Court on the ground that it was beyond the means of the allottees and to their prejudice was arbitrary. The High Court had accepted this ground and directed the authority to redetermine the cost of the flats and the rate of Installments payable. Against this decision the authority had come up in appeal. Allowing the appeal of the authority, the Supreme Court held that the authority had not arbitrarily and unreasonably changed the terms and conditions of the brochure to the prejudice of the respondents. The brochure clearly provided that authority reserves its rights to change, enhance, or any of the terms and conditions that is felt necessary and the allottees had accepted these terms. After voluntarily accepting the conditions imposed by the authority and entering into realm of concluded contract with the authority, the allottees were bound by the terms of the contract unless some statute stepped in and conferred some special statutory obligation on the part of the BDA in the contractual field, the Supreme Court held.
32. Revision of such cost by the DDA in respect of MIG, LIG and Janta flats came up before a Full Bench of this Court in the case of Smt. Sheelawanti and Anr. v. D.D.A. and Anr. : AIR1995Delhi212 in view of conflicting opinions of Division Benches. Therein upward revision of the cost by the DDA was challenged as being illegal and arbitrary. The Court formulated following two questions for determination:
'(1) Whether under Article 226 of the Constitution of India, this Court can interfere in the matter of pricing/costing of flats including escalation in cost of land particularly in view of Clauses Nos. 13 and 14 of the brochure regarding the Registration Scheme on New Pattern -1979 under which the petitioners are registrants for allotment of flats?
(2) Is the impugned revision of cost of land by the Lieutenant Governor of Delhi illegal and arbitrary?'
33. Referring to various judgments of the Supreme Court and in particular Bareilly Development Authority (supra), the Full Bench noted that the aforesaid judgment was followed by this Court in various cases on the basis of which costing of flats and of land had been upheld. After detailed discussion on this aspect, the Court observed:
'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 : AIR 1994 Delhi 149, 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 reasons that despite 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 queries 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 Bareilly Development Authority's case.
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 D.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 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 date placed on record by the D.D.A. prima facie, does not warrant so. There are of course some contentious 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 valuation 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.'
34. Repelling similar challenge in the case of DDA Self Finance Flats owners Society (Regd.) and Ors. v. Union of India and Ors. : AIR2001Delhi39 , a Division Bench of this Court observed :
'The next question which needs to be determined is whether or not the price demanded by the DDA was arbitrary, irrational and unreasonable. The DDA in its various affidavits has explained the reason for issuing the impugned demand letters to the petitioners. It has been inter-alia stated in the affidavits that amount of difference between the actual cost and the provisional cost does not contain any element of profit. What is being demanded from the petitioners is the actual cost of the flats incurred by the DDA. The price of a flat depends upon variety of factors including price of land, labour charges, price of material which goes into construction thereof, supervision and management charges and the cost incurred for providing amenities to the buyers. All these factors are not constant and are liable to change. It has been asserted by the DDA therein that while DDA is not precluded from making some profits from the disposal of flats, it has in fact not earned any profit whatsoever from the disposal of flats situate at Basant Enclave.'
Another question which calls for answer is whether under Article 226 of the Constitution of India, High Court can interfere with the fixation of price of flats. In Premji Bhai's case : [1980]2SCR704 (supra) it was held that in the matter of price fixation the executive has wide discretion and it is not the function of the Court to sit in judgment over such matters. A full Bench of this Court in Smt. Sheelawanti v. DDA, (supra), where the petitioners' grievance was that instead of price quoted in the Brochure issued by the DDA, it was demanding enhanced price for the flats which amounts were highly exorbitant, it was held that the scope of judicial review in the case involving costing and fixation of prices is very much limited. In this regard it Was observed as follows:
'This Court having no expertise, knowledge or wherewithal to evaluate the cost aspect is not concerned with the correctness or otherwise of the price fixed and will not interfere.'
35. In a recent decision rendered by the Supreme Court in the case of Delhi Development Authority v. Ashok Kumar Behal and Ors. : [2002]SUPP1SCR622 , the Supreme Court has reiterated its earlier decisions and has summed up the position in the following words:
'We put an end to the controversy by setting aside the impugned judgment and dispose of the writ petitions filed by the respondents in terms of the order passed by the Full Bench of the Delhi High Court in Sheelawanti decided on 3.2.1995. We agree with the view expressed by the larger Bench in Sheelawanti case (supra).'
36. Thus the consistent view of the Supreme Court in various judgments, as followed by this Court repeatedly is that it is the executive function to fix such costs. Further, the authorities can revise the cost after taking into consideration the relevant factors which have caused such revision. Normally, the Court would not interfere with such executive function. In fact the matter is in the realm of contract and writ petition would not even be maintainable.
37. In the instant case, cost of Rs. 3,000/- per sq. mtr. as fixed initially was admittedly a provisional cost. It was subject to revision and the petitioners were specifically told about it. No doubt, the plots are to be allotted to the petitioners on 'no profit and no loss' basis. The respondents, thereforee, in the process cannot make any profits. They have to charge such rate from the petitioners which represents the actual cost. The petitioners are the persons whose industrial units have been closed down as they were in non-conforming/residential areas. They may be facing economic hardships. They have to rehabilitate themselves by shifting to the proposed Bawana Industrial Area. Even the Supreme Court, while directing closure of the petitioners' industrial units, mandated the respondents to give these petitioners plots in other areas, including the Bawana Industrial Area, on 'no profit and no loss' basis. It is for this reason that I heard the parties on this revision of cost at length. Otherwise, in view of the ratio of the aforesaid judgments, this exercise was not even required. However, it is to be borne in mind that the power of judicial review in such matters is very limited. What is to be kept in mind that the respondents have not taken arbitrary or irrational decision and have taken into consideration relevant factors only, excluding irrelevant considerations. [Refer; (1) Shri Sita Ram Sugar Company Limited and Anr. v. Union of India and Ors. reported in : [1990]1SCR909 , (2). Gupta Sugar Works v. State of UP and Ors. reported in : 1987CriLJ703 and (3) Kerala State Electricity Board v. S.N. Govind Prabhu & Brothers and Ors. : [1986]3SCR628 ].
38. These arguments were heard only to find out as to whether the respondent/ DSIDC had shown fairness in its action in revising the cost from Rs. 3,000/- per sq. mtr. to Rs. 4,200/- per sq. mtr. The respondent/DSIDC has given its justification and for this purpose given figures under various components in Annexure A-I which led to increase of cost from Rs. 815.39 crores to Rs. 1,297.06 crores under these heads. No doubt, the petitioners have made an attempt to challenge the revision in the cost under those heads by making various submissions which are noted above and the respondents have also tried to rebut those suggestions and justified the figures stated in Annexure A-I. However, it is not the function of this Court, in exercise of its powers under Article 226 of the Constitution of India, to go into these aspects microscopically and assume itself the role of costing under each head.
39. After hearing both the parties and having regard to the submissions made in the written note submitted by them, I am of the opinion that the decision of the respondent/DSIDC cannot be termed as irrational so as to attract the Wednesbury's principle of irrationality. The respondents, after all, have developed the concerned industrial area on no profit and no loss basis. The entire amount which is to be received from the allottees of these plots is to be spent on the project itself. The respondent/DSIDC cannot usurp and/or divert the receipts from the sale of these plots to any other project and/or venture and/or any other head. An assurance was given by Mr. K.T.S. Tulsi, learned Senior Counsel for the respondent/DSIDC that the entire amount received on this account would be spent only on the project and for the betterment of the industrial area. The DSIDC is directed to adhere to this commitment and assurance, which even otherwise it is supposed to do. Such a statement on behalf of the DSIDC should be sufficient to ensure that the amount of Rs. 4,200/- per sq. mtr. demanded now is not illegal as ultimately it is going to be spent for the benefit of the occupants of the Bawana Industrial Area on the project itself.
40. These writ petitions stand disposed of on the terms stated in this judgment.
41. There shall be no order as to costs.