Sanjay Kishan Kaul,
1.The petitioners are group housing societies, which amongst others are stated to have been registered with the Delhi Development Authority (DDA) in 1983 for allotment of land. A common seniority list was prepared and allotment has been made from time to time by the DDA.
2.In the year 1992, the dispute arose with regard to increase in the land rates in respect of the land allotted to the societies and civil writ petition being CWP No. 4184/1992 and other connected writ petitions titled `Federation of Coop. G/H Society & Ors. V. Union of India & Ors.', : 1993(26)DRJ156 were filed and decided. The controversy arose on account of the fact that there was increase in the rate of charging, which was sought to be justified by the respondents on various grounds including loading of certain charges on the pre-determined rates. A plea was also raised that imposition of such charges would amount to an unreasonable restriction on the right to form association and is, thus, contrary to Article 19(1)(c) of the Constitution of India and the Delhi Co-operative Societies Rules, 1973. These charges were, however, upheld and it was also held that policy decision(s) of the Executive are beyond the scope of judicial review taking into consideration the matter in issue. The Division Bench of this Court observed as under :-
'59. When the State develops a housing project which is really a mini city, planning to accommodate 1.1 million persons, it ought to discharge its obligations towards all sections of the society. The State is entitled to not only cater to the demands for land and housing of the middle income and higher income groups but is also required to provide for the needs of the lower income groups. It is no doubt true that squatters are those persons who have settled on public land but it cannot be denied that they are poor people and, thereforee, the respondents would be under an obligation to see that their illegal occupation at the place where they are squatting comes to an end and they are re-settled at a different place. For the State to make provisions to provide for or subsidise settlement or re-settlement of poor people is a desirable thing. It has taken a policy decision that squatters should not be made homeless and that they should be re-settled in a developed colony. There is nothing wrong in requiring the more affluent to look after or pay for the less fortunate people. For accommodating squatters the DDA will get 50% of the break-even cost and the balance of 50% of the break-even cost will be distributed amongst the other allottees in the Project. In any case this is a matter of policy and, in the exercise of judicial review, it will not be appropriate for this Court to hold that the squatters, who represent the poor section of the society should not be settled/re-settled in this Project.'
3.The present writ petitions have now been filed on account of a charge levied as a consequence of the notification issued by the Ministry of Urban Development dated 03.06.1999 in exercise of the powers conferred under sub-section (2) of Section 11A of the Delhi Development Act, 1957 ( hereinafter to be referred to as, ' the said Act') making certain modifications in MPD - 2001 for group housing norms. In terms of this notification, a levy has been imposed on all group housing societies as a contribution towards housing for EWS fund @ Rs.25,000/- per dwelling unit of sizes of 1000 sq. ft. or more plinth area.
4.The matter in controversy falls in a narrow compass in view of the decision in Federation of Coop. G/H Society ' s case (supra). This is so as in principle, the levy of charges on account of EWS housing is not disputed since that has been upheld in the said judgment. The contention, however, advanced by the learned counsel for the petitioners is that the land rates fixed already takes into account the said EWS charges and there cannot be dual charging on this account by issuance of the aforesaid notification.
5.Learned counsel for the petitioners has referred in extenso to the counter affidavit filed by the respondents in Federation of Coop. G/H Society ' s case (supra). In the counter affidavit, a stand was taken by the respondent that the price was fixed on a cost benefit analysis basis and in view of the requirement of accommodation to be provided to the weaker sections of the society by providing land to them on subsidized rates, a subsidy is provided to such sections of the society to be set off by charging additional amounts for others. A break-even rate is calculated in terms of the formula of the respondents and thereafter 50% addition is made on the same for various accounts including EWS charges. The cost benefit analysis based on the principles of gross subsidies is, thus, taken into account to arrive at a multiplier. The increase in rate from Rs.975/- per sq. mtr. to Rs.1,650.65 per sq. mtr. was justified on the basis that the break-even rate was Rs.1,100.45 per sq. mtr. and for co-operative societies, a weightage of 1.50 was given on the aforesaid account. A higher weightage is given to higher income groups consisting of co-operative societies, SFS, residential, industrial and commercial land. Reference was made also to rule 2(l) of the Nazul Land Rules, which provides for higher pre-determined rates for allotment to persons belonging to middle income group and lower pre-determined rates for allotment to persons in lower income group.
6.Learned counsel for the petitioners contends that the methodology of calculation has not changed and though the land rates are more now, since the present allotments had been made subsequently in the year 1999 and afterwards, the principle is the same. Thus, the challenge is not to fixation of the basic rate or loading of the charges thereon but to the effect that once these charges have already been loaded, there cannot be a second charge levied by the notification in question.
7.It would be necessary to reproduce the notification in order to appreciate the contention of the learned counsel for the parties, which is in the following terms :-
'MINISTRY OF URBAN DEVELOPMENT
(Delhi Division)
NOTIFICATION
New Delhi, the 3rd June, 1999
S.O. 428(e).- Whereas the guidelines dated 5-3-99 had been issued by this Ministry revising the Group Housing norms for Delhi. However, certain clarifications had been sought for by the local bodies/agencies. Some modifications in the said guidelines have also been suggested. The matter was discussed in detail in the Ministry when local bodies, Govt. of NCT of Delhi, NCR Planning Board, representative of builders, architects and members of public were consulted through a series of meetings and public notice issued.
2. Now, thereforee, after careful consideration, in super-session of this Ministry's guidelines dated 5-3-99 and in partial modification of Notification dated 23rd July, 1998, the Central Government in exercise of the powers conferred by sub-section (2) of Section 11A of Delhi Development Act, 1957, hereby make certain modifications in MPD-2001 to the Group Housing norms in Delhi and lay down guidelines for taking up Group Housing by both co-operative societies and private builders as per Annexure. There guidelines will come into effect from the date of publication of this notification in the Gazette of India.
[ No. K-13011/17/96-DDB]
R.C. NAYAK, Under Secy.
A N N E X U R E
MODIFICATIONS AND GUIDELINES
(i) The minimum size of a plot for group housing is reduced to 3000 sq. m. with FAR of 167, height 33m and ground coverage of 33.33% with density of 35DUs (minimum) and 45 DUs (maximum) per 3000 sq. m. depending on the discretion of the builder. In addition, proportionate rise in number of DUs will be permitted allowing 1 additional DU for every additional 100 sq. m. up to 4000 sq. mtrs. after which the existing norms will apply. In addition to cooperative societies, private developers will be encouraged to take up group housing. The minimum plot size for plots being allotted to cooperative societies of DDA would also be lowered to 3000 sq. m. as in the case of private developers.
(ii) Basement/basements up to the set back lines will have to be constructed, which will be free from FAR and shall be used for parking and services as per MPD norms. Basement parking will be mandatory. Total required parking will be provided in easement and in other floors / open space within the plot.
(iii) The parking requirement will be 1.80 Equivalent Car Space (ECS) per 100 sq.m. of total floor area.
(iv) Plots for group housing should be located on roads facing a minimum width of 60' (18 mtrs.) for existing colonies within MPD 1962 urban limits and 20 mtrs. in other areas.
(v) Levy on additional FAR i.e. the difference between FAR of 167 and FAR earlier provided vide MPD - 2001 will be collected @ Rs.450/- per sq. m. or as revised from time to time, at the time of sanction of building plans.
(vi) All Group Housing while applying for sanction of plan will henceforth make contribution of Housing for EWS Fund. The contribution will be @ Rs.25,000 per dwelling unit of size 1000 sq. ft. (92.90 sq. m.) or more plinth area. The amount will be paid to the DDA. A separate escrow account for this purpose will be opened by the DDA. Funds available in the account will be utilised for construction of houses for the EWS. The Fund will be operated by DDA under specific direction of this Ministry.
(vii) The private builders will ensure that minimum of 20% of the DU's constructed are for LIG category. Such flats should have a carpet area between 250 sq. ft. (23.22 sq. m.) minimum and 500 sq. ft. (46.44 sq. m.) maximum.
(viii) The developer shall make the prescribed contribution towards license fee, scrutiny fee, conversion charges, external development charges, etc wherever applicable.
(ix) All other Master Plan norms will be adhered to. The above guidelines will not apply to cooperative group societies where the constructions stand completed. The guidelines will also not apply to such cooperative group housing societies building plans stand approved. In all other cases, the above guidelines will be applicable. For group housing taken up by private builders, all applications will be covered under the above norms including those which are under process by the local bodies. In all such cases, the applicant shall apply afresh after fulfilling the above norms.'
8.Learned counsel for the petitioners, thus, contends that imposition vide clause (vi) is unjustified, illegal and is a second charge on the same account, which has already been loaded on to the petitioner societies.
9.Learned counsel for the respondents, on the other hand, contends that there is no dispute about the fact that EWS charges have been loaded on the petitioner in terms of the calculation of the rate, since the principle remains the same. However, the charges in question are sought to be justified on account of subsequent developments, which have taken place as a consequence of the amendment of the Bye-Laws vide notification dated 23.07.1998. In terms of this notification on consideration of the Building Bye-Laws, 1983, a modification was made in MPD - 2001 in exercise of the powers conferred under sub-section (2) of Section 11A of the said Act. In terms of this notification, additional FAR was made available and, thus, the group housing societies were also benefited as a consequence thereof.
10.Learned counsel for the respondents has referred to the counter affidavit filed by the respondent No. 1 - Union of India to contend that group housing societies had come up, but no provision was made for housing of essential supporting staff and, thus, enormous amount had to be spent for shifting and relocation of jhuggi jhompri clusters, which came into being as a consequence thereof. It was further stated that when increased floor area ratio and dwelling units were given to co-operative societies in terms of the notification dated 23.07.1998, it had been agreed that as a reciprocal gesture, they would contribute to the provisions of EWS shelter and housing.
11.It would be relevant to reproduce para 11 and 14 of the said counter affidavit, which are as under :-
'11.. That over a period of time number of Cooperative Group Housing Societies have come up in the NCT of Delhi, however, no provision was made for houses for essential supporting staff e.g. sweeper, carpenter, plumber, electrician, maid servant, security guard, etc. This dichotomy resulted into large undeveloped housing clusters around Group Housing Societies thereby affecting planned development. The Government has to make provision for enormous amount for shifting / relocation of these jhuggi jhompri clusters. One one side the planned development was the casualty and it resulted into unhygienic, unwarranted clusters creating tremendous pressure on the civic infrastructure and causing nuisance to the residents of the Cooperative Group Housing Societies.
... ... ... ... ... 14. That at the time when increased floor are ratio and dwelling units were given to the cooperative societies and to all housing societies by amended notification of March, 1999, it had been agreed to by all persons that in reciprocation in increase in number of dwelling units as well as floor area ration allowed to them, they would contribute to the provision of EWS shelter and housing as increase in number of dwelling units would also lead to increase in density and greater stress on need for services and infrastructure.'
12.Learned counsel for the respondents contends that there is no overlapping in terms of the charges levied. This is also sought to be justified by reference to the notification in question. Clause (vi) of the notification dated 03.06.1999 prescribes a levy of additional FAR. It is stated that this levy operates in a different field, since it is uniformly applicable to all units as a consequence in increase in FAR. This contention has to be considered in view of the counter contention of the learned counsel for the petitioners that the consequence of the amendments and the notification dated 23.07.1998 resulting in increase in FAR benefiting the petitioners is already covered by the charge under this clause. It is submitted by the learned counsel for the respondents that clause (vi) applies only to units of dwelling sizes of more 1000 sq. ft. This is so levied on account of the fact that where there are such larger dwelling units which come into existence, they are normally utilized by a particular strata of society which requires support services including manpower, which would ultimately occupy the EWS housing.
13.Learned counsel for the respondents also contends that this charge has to be appreciated keeping in mind that taking into consideration all the circumstances, it was always open to the respondents to have increased multiplier for EWS charging from the existing 1.50. However, instead of increasing the same, the fixed levy has been imposed of Rs.25,000/- per dwelling unit.
14.Learned counsel for the respondents have lastly contended that in matters of price fixation and such levies, the matters are best left to the concerned authorities and the scope of judicial intervention is limited, especially in view of the Full Bench judgment of this Court in Smt. Sheelawanti & Anr. v. D.D.A. & Anr., : AIR1995Delhi212 , which has been upheld by the Supreme Court.
15.I have considered the submissions advanced by the learned counsel for the parties.
16.The aforesaid facts clearly show that insofar as the methodology of calculation of the rates per sq. mtr. are concerned, they remain the same as was the earlier position and noticed in the judgment in Federation of Coop. G/H Society ' s case (supra). Thus, a multiplier is levied loading certain charges on to the petitioners over and above the break-even rate and the multiplier of 1.50 continues to be applied. The Division Bench of this Court in the said judgment has observed that the State is entitled not only to cater to the demands for land and housing of the middle income and higher income groups, but is also required to provide for the needs of the lower income groups and it is within the powers of the State to make provisions to provide for or subsidise the accommodation meant for such persons. This was, however, held to be a matter of policy and in exercise of judicial review, it would not be appropriate for the Court to hold that such people should not be settled by the process of this project.
17.The only controversy, thus, to be considered is whether it is open to the respondents to have levied the additional amount of Rs.25,000/- on account of EWS housing for dwelling units of size of 1000 sq. ft. and above. In this context, a material fact is the notification dated 23.07.1998 by which the Building Bye-Laws and the Master Plan were relaxed providing for increased FAR in dwelling units. On that account, an extra benefit was extended to the members of the petitioners inasmuch as on the same land area a larger area could be covered and units constructed. Thus, per dwelling unit cost in respect of the land would decline. However, on this account, a charge is provided for in the notification under clause (v), which is a specific levy on account of the additional FAR.
18.The levy in clause (vi) is undoubtedly on a different count, which is on account of contribution to EWS fund. There is force in the contention of the learned counsel for the respondents that apart from the increase of dwelling units and the direct benefit from the increase in FAR, a consequence would also flow on account of the increase in support staff, which would be required and cause for an increase in the EWS shelter cost. This would result in increase in the density and greater stress on services and infrastructure including EWS shelter on a per unit basis. Thus, the consequence of the notification is not only that there is a benefit of increased FAR, but an increase in the requirement of EWS housing on a per unit basis. A reading of the notification dated 03.06.1999 itself shows that it is the consequence of the notification dated 23.07.1998, which has resulted in the notification and guidelines have been provided in respect of the notification dated 03.06.1999. It is not in every case that this levy of Rs.25,000/- per dwelling unit is sought to be charged unlike the charges on account of additional FAR. Clause (vi) is made applicable to dwelling units of the size of 1000 sq. ft. and above. Thus smaller dwelling units are outside the purview of this charge and it is only applicable to a certain strata of society.
19.It cannot be seriously disputed that on account of increase in EWS charges, it was open to the respondents to increase the multiplier of 1.50. This was one option available to the respondents. However, instead of exercising this option, the respondents have chosen to add a fixed amount for each of the dwelling units. The consequence, in my considered view, is the same.
20.If the petitioners are benefiting from increase in the FAR, additional units and consequently there is increase in requirement of EWS facilities for which charges are to be levied, the increased cost must be borne by the petitioners in the larger interest of the society and as a social obligation. Further, matters like this are really outside the purview of judicial scrutiny and the only aspect to be considered is whether such a levy has been made in accordance with law.
21.I consider it also appropriate to note that a reading of clause (vi) shows that the funds so collected by the respondent No. 2 - DDA on account of this levy of Rs.25,000/- per dwelling unit is to be kept in a separate escrow account to be opened by the DDA and to be utilised for construction of houses for EWS. This fund is to be operated by the DDA under the specific directions of the relevant Ministry of the Union of India. Needless to say that this should be strictly observed, as this is a specific charge levied for a specific purpose and must be used for that purpose alone.
22.This is also relevant in the context of the problem of non- availability or planning for such EWS housing shelter in colonies which have been developed. This has also resulted in clusters and jhuggi jhompri coming up, which are occupied by persons who have to render such services. If such housing for EWS sections is provided, I am of the considered view that the problem of occupation of public land and jhuggi jhompri occupied by persons giving such services would come down, at least from the extent and scale at which it is at present.
23.In view of the aforesaid, I find no reason to interfere in exercise of jurisdiction under Article 226 of the Constitution of India.
24.Dismissed.
25.Interim orders are vacated.
26.The petitioners are granted four weeks time to pay the balance amount, which was stayed under the directions of this Court as an interim relief.