Shri R.K. Sachar Vs. Delhi Development Authority - Court Judgment

SooperKanoon Citationsooperkanoon.com/706515
SubjectProperty
CourtDelhi High Court
Decided OnSep-13-2002
Case NumberCW Nos. 77, 299, 340, 345, 455, 458, 460, 472, 481, 603, 615, 620, 711, 712, 838, 1205, 1359, 1561,
Judge Sanjay Kishan Kaul, J.
Reported in(2003)134PLR18
ActsConstitution of India - Articles 14 and 226; Delhi Development Authority Management and Disposal of Housing Estate Regulations, 1968 - Regulation 2(13)
AppellantShri R.K. Sachar
RespondentDelhi Development Authority
Appellant Advocate S.K. Rungta, Adv
Respondent Advocate J.M. Sabharwal, Sr. Adv., ; Anusuya Salwan and ; Bankey Bih
DispositionWrit petitions dismissed
Cases Referred(See East India Tobacco Co. v. State of Andhra Pradesh
Excerpt:
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a) the case focused on the validity of imposition of additional surcharge under article 226 of the constitution of india -in the present case, an additional surcharge of 20% was imposed on the flats allotted in south delhi - it was brought into notice that there was considerable difference between the price prevalent in south delhi as compared to the other areas in delhi - further, the aim of the said imposition of surcharge was to provide the subsidized houses to the weaker sections -in view of the said facts, it was ruled that the imposition of the surcharge was not discriminatoryb) the case focused on the criteria to fix the rates of flats - the matters of costing were within the ambit of delhi development authority and fell within the purview of contractual relationship - thereforee,.....
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sanjay kishan kaul, j. 1. the perennial problem of costing of dda flats has once again given rise to this batch of writ petitions.2. the petitioners were originally registrants under the new pattern scheme of 1979 (nps). in september 1993 a self financing scheme vi-b was announced and persons registered under the nps were permitted to convert to self-financing scheme. the petitioners applied for conversion and their conversion were accepted.3. in 1994-1985 the sfs vii and viii scheme registrants were allocated flats but no allocation was made in respect of vi-b scheme. on 8.8.1996 ix sfs scheme was announced and the same was open to genera public as also to the registrants of vi-b scheme. it was stated for the petitioners that this would be the last opportunity given to them and other.....
Judgment:

Sanjay Kishan Kaul, J.

1. The perennial problem of costing of DDA flats has once again given rise to this batch of writ petitions.

2. The petitioners were originally registrants under the New Pattern Scheme of 1979 (NPS). In September 1993 a self financing scheme VI-B was announced and persons registered under the NPS were permitted to convert to self-financing scheme. The petitioners applied for conversion and their conversion were accepted.

3. In 1994-1985 the SFS VII and VIII scheme registrants were allocated flats but no allocation was made in respect of VI-B scheme. On 8.8.1996 IX SFS scheme was announced and the same was open to genera public as also to the registrants of VI-B scheme. It was stated for the petitioners that this would be the last opportunity given to them and other registrants of VI-B Self Financing Scheme. The petitioners got them registered under the scheme but were still not allocated flats in the draw of lots held for the said IX Self Financing Scheme which resulted in certain writ petitions being filed in the year 2000 by the registrants of VI-B Self Financing Scheme. It is stated in the writ petition that in those proceedings the respondent held out that a fresh draw of lots will be held at an early date, preferably within three months from the date of the order being 20.4.2000 and that persons like the petitioners would be given a flat. Thereafter the allotment letters were issued in 2001 allotting different flats in C-9 Vasant Kunj raising demands for the said flat of approximately Rs. 17.80 lakhs.

4. The petitioners are aggrieved by the aforesaid costing of the flats.

5. Learned counsel for the petitioners has contended that the petitioners applied for registration as far as back in 1979 but since no allotment was made to them, they were permitted to convert to the SFS VI-B scheme in 1993 and finally in 1996 to the IX Self Financing Scheme. The relevant clause of IX SFS is as under:

'Important II. Registrants of 6th-B Self Financing Scheme awaiting allotment of Cat. II flats are also eligible to apply under this scheme. They can apply for Cat.-II flats only. This shall be the first and last opportunity for these registrants. They shall be given priority in allotment over all the other applicants of 9th SFS. The conditions above at (a) (b) and (c) will be applicable in their cases as well.'

6. It has been contended that there were only 269 registrants under the VI-B scheme while the total number of registrants under the IX SFS was about 6000. It is thus contended that the petitioners should have been given priority and in such eventuality they should have been allotted flats in 1996-1997 which was not so done due to mistake of the respondent. It is thus contended that the basis of the costing of the flat has to be prevalent price at the time when the petitioners should have been allotted a flat and that the petitioners should not suffer as a consequence of the failure of the respondent to include the name of the petitioners in the draw of lots.

7. The second submission advanced on behalf of the petitioners is that when the petitioners moved this Court through various writ petitions challenging there non-inclusion in the draw of lots, respondent conceded the case of the petitioners and stated that their names would be included in the next draw of lots and it was directed in terms of the order dated 20.4.2000 that the draw of lots should be preferably held within three months. However the draw of lots was not held within the said period and thus in the alternative in any case the price to be charged should be as prevalent in July, 2000. The contention is that the respondent intentionally delayed the holding of the draw of lots in order to charge higher cost. It is stated that the petitioners were informed only in January 2001 that the draw of lots were held, after more than nine months after the order was passed for which no Explanationn was forthcoming. Not only this the allocation of the flats took place in October 2001 and the allotment of specific flats in terms of the allotment letter was made only in December, 2001.

8. Learned counsel for the petitioners have relied upon the judgment of the Division Bench of this Court in J.S. Rao (Professor) v. DDA and Anr. 2000 R.L.R. 521, where it was held that if the DDA inadvertently did not included the name of an allottee in the draw of lots, the allottee cannot be made to suffer for the mistake of the DDA and cannot be deprived of allotment or saddled with higher liability. This principle that the authority cannot burden the allottee with higher cost on account of its own default has been further propounded in various judgments some of which have been referred by learned counsel for the petitioners and are Rakesh Kumar v. DDA : 92(2001)DLT171 , Suresh Kumar Gupta v. DDA, : 93(2001)DLT699 , and Attar Kaur v. DDA 87 (2002) DLT 147.

9. It has been held that it was the duty of the DDA to check and rectify the mistake within reasonable period of time which could be one year in view of the policy of DDA of 25.5.1995 and in case the mistake is detected by DDA after a period of one year there is no reason why the registrants should be asked to pay more.

10. The petitioners have also contend that there is a wrong calculation of the land premium taking into account the square foot area of the flats in question which has also escalated the price of the flat. In this behalf, learned counsel also assailed the demand of 15% interest while issuing the demand letters since it was contended that interest would be payable only when the demand is raised and is not met by another. To support the said contention petitioners have placed reliance on a Division Bench Judgment of this Court in Link Engineer Pvt. Ltd. v. DDA and Ors : 68(1997)DLT324 . It may, however, be noted that this judgment dealt with the issue of demand of unearned increase and it was held that no interest could be charged for the period concerned when the same was not demanded. Similarly in Suresh Kumar Gupta Case (supra) it was held that once there was error in computation by the DDA or the demand letter was not received by the allottee, the allottee can not be burdened with interest.

11. The forth aspect agitated by the learned counsel for the petitioners is that the respondent cannot charge both enhanced land rates as also interest thereon as it would amount to putting double burden on the petitioners in the form of paying a higher rate which was not even prevalent on the date from which interest had been demanded. It is contended that there is no absolute right to increase the cost of the flat as held by the Supreme Court in Indore Development Authority v. Sadhana Aggarwal and Ors., : [1995]2SCR555 , and the authorities were duty bound to explain disproportionate enhancement of the cost at the time of delivery of flats. This contention is based on the fact that the estimated cost in the brochure was mentioned as Rs. 8.10 lakhs while final demand was made for Rs. 17,78,622/-.

12. The aforesaid plea is further supported by the fact that persons who had been successful in the draw of lots held in 1996 have been charged Rs. 8,47,600/- and the persons who have been allotted flats along with the petitioners in the draw held in December, 2001 have been asked to pay Rs. 13,46,799/-.

13. Learned counsel for the petitioners referred to the judgment of the Supreme Court in Premji Bhai v. Delhi Development Authority : [1980]2SCR704 to contend that there cannot be discrimination amongst the persons of the same class and for the purpose of allotment of flats scheme wise. The Supreme Court observed as under:

'What is forbidden by Article 14 is discrimination amongst persons of the same class and for the purpose of allotment of flats scheme-wise, allottees of flats in the same scheme, not different schemes in the same income bricket, will have to be treated as a class and unless in each such class there is unequal treatment or unreasonable or arbitrary treatment, the complaint that Article 14 is violated cannot be entertained.'

14. A reference is also made to the Delhi Development Authority Management & Disposal of Housing Estate Regulations, 1968 to contend that the reference is to the property and not to the individual and thus once the disposal price is already fixed, there can be no question of any surcharge or additional amount towards price.

15. A further challenge made by the petitioner is to levy 20% surcharge on the ground that the flat of petitioners is in South Delhi. Learned counsel for the petitioners contended that if the petitioners had been allotted the flats in 1996, no such scheme for additional surcharge was prevalent at that stage of time and thus the petitioners are being discriminated against other persons who were allotted the flats in 1996. This surcharge is also assailed on the ground that the concept of SFS scheme itself mean that the applicants pay for their own flats and they have already paid extra land premium cost of the flat being in South Delhi. The contention is that the petitioners cannot be charged twice over merely because they were fortunate enough to get a flat in South Delhi as it was allotted in a draw of lots. It was thus contended that it is a mere chance that the petitioners got a flat in South Delhi and they would not have been granted any rebate by allotting a flat in any other area. Reference is made to the Divisional Bench in Nar Singh Jain v. Union of India : 80(1999)DLT742 to contend that the estimated 'Cost' is only a price paid or to be paid for something and the price is the consideration which a purchaser is to pay to acquire a commodity which is a flat in the instant case. Such price comprises of cost of the product to the seller along with something more by way of his margin of profit.

16. The aforesaid 20% surcharge is finally assailed on the ground that there is no such contention provided in the brochure of SFS IX Scheme for charging additional surcharge. It was thus contended that the absence of any such provision imply that no such additional cost could be charged.

17. Respondent DDA on the other hand has justified the allotment letters issued by them and learned senior counsel has contended that challenge to the same is mis-placed.

18. The first submission advanced in opposition of the writ petition is that the merit in controversy is purely one of contract relating to costing of flats and it is not for the Courts to go into these issues for which the prayer has been made by the petitioners. Reliance is strongly placed on the judgment of the Full Bench of this Court in Smt. Sheelawanti and Anr. v. DDA, : AIR1995Delhi212 . The said Full Bench judgment considered the judgment of the Supreme Court in Shri Sitaram Sugar Company Limited and Anr. v. Union of India and Ors., : [1990]1SCR909 , Gupta Sugar Works v. State of U.P. and Ors., : [1988]1SCR577 , Bareilly Development Authority and Anr. v. Ajay Pal Singh and Ors., : [1989]1SCR743 , in order to examine the scope of judicial review in matter of such polities. The Full Bench observed as under:

'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 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.'

19. In Bareilly Development Authority case (supra), the Supreme Court held that once the brochure indicated that the cost was estimated cost and that actual cost may increase or decrease, the same cannot be labelled as arbitrary and discriminatory calling for interference under Article 226 of the Constitution of India. It was held that the parties cannot claim rights conferred upon them by the contract in the absence of any statutory obligations on the part of the BDA in contractual field.

20. Learned senior counsel also referred to the Division Bench judgment of this Court in DDA Self Financing Flats owners Society v. Union of India and Ors., : AIR2001Delhi39 , where it was held that principle of promissory estoppel would not come to the aid of the allottees when the brochure itself indicated that the pricing was an estimated provisional cost. It was further held that once the calculations are made by the DDA as per policies approved by the competent authority, difference arising out of various factors cannot be said to be arbitrary and unreasonable. The Division Bench observed as under:

'15. Even this clause in no uncertain terms indicates that the terms and conditions contained in the Brochure were alterable and were subject to change. Even looking to the practical aspect of the matter, it appears to us that the estimated cost of the venture, which was to be completed in future, was merely indicative of probable or approximate cost thereof. In case during its execution prices of material and labour went up and if the excess cost was not to be recovered from the allottees. DDA will be running the housing scheme in deficit, which is not desirable. It needs to be noted that DDA is a public authority. The money which it utilises for construction of flats is public money. The DDA is not supposed to offer the flats to the allottees at rates lower than the cost of construction of flats incurred by it. In case the cost of construction is higher than the estimated and projected cost of flats, the difference needs to be recovered from the allottees in order to save tax payers money. thereforee, it seems to us that the price indicated in the Brochure was liable to change according to the cost incurred by the DDA for the construction of the flats under the Scheme. This being the position we fail to appreciate how the principle of promissory estopple will apply to the facts of the instant case. There was no categorical assurance by the DDA to the proposed purchasers that the flats will be sold at the price indicated in the Brochure. Rather the DDA had amply clarified that the price was tentative and was subject to change. Even in the demand-cum-allotment letters issued by the DDA to the allottees it was categorically stated that the actual cost of the flats will be finalised after the completion of construction of the flats and the difference, if any, would be payable by the allottees along with the 5th and last Installment before handing over possession of the flats. The allottees accepted the condition without demur at the stage. In the circumstances, thereforee, the contention of the learned counsel for the petitioners based on promissory estopple fails and is hereby rejected.'

21. Learned senior counsel for DDA also referred to the judgment of the Supreme Court in Premji Bhai Parmar's case (supra) to contend that in most of price fixation the executive has a wide discretion and he is only answerable if there is any statutory control over its policy of price fixation. Thus while dealing with aspect of cost of flat, it was observed as under:

'In price fixation executive has a wide discretion and is only answerable provided there is any statutory control over its policy of price fixation and it is not for the function of the Court to sit in judgment over such matters of economic policy as must be necessarily left to the Government of the day to decide. The experts alone can work out the mechanics of price determination; Court can certainly not be expected to decide without the assistance of the experts.'

22. While dealing with the scope of DDA (Amendment and Disposal of) Regulation 1968, the Supreme Court in Premji Bhai Parmar's case (supra) observed as under:

'12. It is, however, necessary to examine the contention whether this 'no profit no loss' policy statement has any statutory flavour as contended by Mr. Nariman. The regulation styled as the Delhi Development Authority (Management and Disposal of Housing Estates) Regulations, 1968, (Regulations' for short) are framed in exercise of the powers conferred by Section 57 and were laid before the Houses of Parliament as required by Section 58. Disposal price has been defined in Regulation 2(13) to mean in relation to a property such price as may be fixed by the Authority for such property. There is not the slightest or even a remote reference to 'no profit no loss' formula for determining the cost price. A quick survey of the Regulations do not spell out any formula for price determination on the basis of 'no profit no loss'. Whether the power to determine disposal price is in the Housing Committee will be presently examined. Regulations, however, on the contrary indicate that the power to determine the disposal price is vested in the Authority and as price has been fixed by the delegate of the Authority even if it is inclusive of surcharge it cannot be said that it runs counter to the declared policy of the Authority.'

23. Insofar as the petitioner registrants are concerned it is contended that though these persons were originally registered in 1979, it was not possible to allot flats to all the petitioners in one go and hence the allotment was made on priority list basis. Since these priority numbers of the petitioners could not be covered, they were given the option to transfer the registration to VI-SFS scheme.

24. Insofar as the working out of the cost of flats in C-9 Vasant Kunj is concerned, it is stated that land rate of Rs. 4812/- per square meter have been applied for and land premium prevailing on the date of allotment as there was no land allocation whereas the land rate of Rs. 2296/- per square meter had been applied for D-6 Vasant Kunj Flats since allocation have been made in February 1997. It is further stated that the plinth area of C-9 Vasant Kunj flats range from 98 square meters to 139 square meters while the area for D-6 Vasant Kunj flats range from 88.55 square meters to 88 square meters. It is further stated that the flat rate of interest of 15% p.a. has been charged for only 18 months since there was no allocation of flats which was not the position of D-6 Vasant Kunj.

25. Dealing with the submission of petitioners that there was no question of actual period of interest in case of the petitioners, it is contended that there was no scheduled four Installments paid by the petitioners nor the petitioners contributed for construction of the flats, the petitioners are liable to pay land premium prevalent on the date of issue of demand letter and thus cannot claim any parity with other allottees of IX SFS Scheme. The cost is stated to have been computed on the basis of the date of the demand cum allotment letter. Reliance in this behalf has been placed on the judgment of the Supreme Court in DDA v. Pushpendra Kumar Jain JT 1994 (6) 292 where it was held that the right of an allottee to a flat arises only on communication of the letter of allotment and that the price of rates prevalent on the date of such communication is application. The Supreme Court observed as under:

'8. No 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 drawl of lots. Since D.D.A. 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 restored 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 drawl 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 September 1, 1979 and closed on September 30, 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 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 fairness in the above procedure.'

26. Learned counsel for the respondents contends that the cost of construction has been worked out on actual expenditure basis with interest capital invested towards construction of the flat and the land rates prevalent on the date of demand-cum-allotment letter. It is stated that where allotment is made after collection of five instlaments, land rates prevalent on the date of issue of demand-cum-allocation letter is charged. But that was not case with the petitioners and the petitioners having not been called upon to invest by way of periodical Installments and are thus not similarly situated to persons who had made such payments.

27. It has also been stated that the gross area of the scheme in C-9 Vasant Kunj is more than gross area of flats in D-6, Vasant Kunj in terms of the following table:

Sector C floorPocket-9Plinth Area (In Sq. Mtr)Cost (Rs. inLacs)Sec. D FloorPocket 6BPlinth Area (In Sq. Mtr)Cost. (Rs. inLacs)Ground107.73Rs.17.64Ground83.198.77GF+FF139.58Rs.23.54First85.699.10(Duplex) FF+SF124.91Rs.21.73Second83.568.86(Duplex)Second100.37Rs.17.33Third83.648.84SchemeGross AreaPlinth AreaRatioSector -CPocket-9 Vasant Kunj12,200 Sq.Mtr.7,979.94 sq.mtr.1.53Sector D,Pocket -6, Vasant Kunj35701 Sq. mtr.43,735.53 sq.0.80.

28. Insofar as the plea against 20% surcharge is concerned, it is stated that the same has been done with the object of meeting the cost of subsiding the allottees of Janta, LIG, MIG flats who are persons from economical weaker sections since departmental charges were brought down for these categories of cases from 10% to 6.5%. It is further stated that the administrative charges @ 1% are added while working out disposal cost of SFS/MIG/LIG houses while these charges are not levied for Janta houses. It is stated in the counter affidavit that subsidy has been allotted in the shape of discount for cash down allotments and given/likely to be given to the Punjab and Kashmiri migrants would be much more than the amount already received and likely to be received by levy of 20% surcharge and this surcharge is thus being utilised for the said purpose since the maximum collection by way of surcharge including surcharge levied on Motia Khan flats is about Rs. 50 crores as against the subsidy and discount to Rs. 100 crores for the aforesaid purpose.

The aforesaid is also based on an analysis conducted by the Land Costing Wing of the DDA that the market rate of residential land in South Delhi are higher by 225 to 269% compared to rates of North Delhi and higher by 93 to 103% if compared to West Delhi. There is thus stated to be in built subsidy on the land cost in the prime areas of South Delhi. The decision to levy 20% surcharge for South Delhi flats has been taken with the approval of the authority vide resolution No. 105 dated 27.8.1996 in view of the following reasons:

'a) The real value of South Delhi flats in much more than what DDA is charging from its allottees.

b) The proceeds of surcharge were to be utilized for giving discount for expendable houses sold on cash down basis.'

29. The aforesaid surcharge is only for SFS allottees of South Delhi flats and not for registrants under EWS/LIG and MIG schemes. The aforesaid is stated to be within legal parameters as laid down in DDA SFS Finance Flat owners Society case (supra), where it was observed in para 18 as under:

'Even if the DDA were to charge the petitioners more than the cost price of the flats in order to generate funds to provide dwelling units to whose who fall in lower income groups at a subsidised cost, no fault could be found with the same. The Supreme Court in Premji Bhai's case : [1980]2SCR704 (supra) dealing with the question of pricing held that where the authority was set up for making available dwelling units to persons belonging to different income groups it would not precluded from, formulating its own price formula for different income groups. In doing so it could collect something more than cost price from those with higher incomes to benefit those who are in the lower income groups.'

30. In the said judgment reference was also made to the judgment of the Supreme Court in Premji Bhai Parmar case (supra) to the following effect:

'10. Pricing policy is an executive policy. If the Authority was set up for making available dwelling units at reasonable price to persons belonging to different income-groups it would not be precluded from devising its own price formula for different income-groups. If in so doing it uniformally collects something more than cost price from those with cushion to benefit those who are less fortunate it cannot be accused of discrimination. In this country where weaker and poorer sections are unable to enjoy the basic necessities, namely food, shelter and clothing, a body like the Authority undertaking a comprehensive policy of providing shelter to those who cannot afford to have the same in the competitive albeit harsh market of demand and supply nor can afford it on their own meagre emoluments or income, a little more from those who can afford for the benefit of those who need succour, can by no stretch of imagination attract Article 14. People in the MIG can be charged more than the actual cost price so as to give benefit to allottees of flats in LIG, Janta and CPS. And yet record shows that those better off got flats comparatively cheaper to such flats in open market. It is a well recognised policy underlying tax law that the State has a wide discretion in selecting the persons or objects it will tax and that the statute is not open to attack on the ground that it taxes some persons or objects and not others. It is only when within the range of its selection the law operates unequally, and this cannot be justified on the basis of a valid classification, that there would be a violation of Article 14 (See East India Tobacco Co. v. State of Andhra Pradesh : [1963]1SCR404 Can it be said that classification income-wise-cum-scheme-wise is unreasonable? The answer is a firm no. Even the petitioners could not point out unequal treatment in same class. However, a feeble attempt was made to urge that allottees of flats in MIG scheme at Munirka which project came up at or about the same time were not subjected to surcharge. This will be presently examined but aside from that, contention is that why within a particular period namely, November 1976 to January 1977 the policy of levying surcharge was resorted to and that in MIG schemes pertaining to period prior to November 1976 and later April 1977 no surcharge was levied. If a certain pricing policy was adopted for a certain period and was uniformally applied to projects coming up during that period, it cannot be the foundation for a submission why such policy was not adopted earlier or abandoned later.'

31. Attention was also drawn to para 19 of the brochure dealing with general conditions where a sub para '4' is as under:

'iv) The details of flats such as pocket, sector no, and tentative cost are available in Annexure 'B'.

The cost of flats mentioned therein is tentative and subject to revision on account of escalation in cost of construction, land and material etc. Prices are indicated without taking the inflation into account. Final disposal price is generally higher than the estimated price.'

32. I have considered the submissions advanced by the learned counsel for the parties.

33. It is no doubt true that the petitioners were registered under 1979 scheme. However, as explained in the counter affidavit in view of the large number of registrants it was not possible to accommodate all the persons and a priority list was prepared. In terms of the priority list unfortunately the number of petitioners did not come and they were given the option to switch over to IX-SFS scheme. Finally they switched over to IX SFS Scheme. Thus the first question which arises for consideration is limited to the extent whether the petitioners have been discriminated against similarly situated persons.

34. There is no doubt about the proposition that in case charges are levied on account of fault of DDA, then such person should not be burdened due to the fault of the DDA. A number of judgments in this behalf have been referred to by the learned counsel for the petitioners as referred to above including Professor G. Rao case (supra). The question is whether the petitioners fall within the parameters of persons who are left out of the draw of lots. All these cases dealt with individuals where the person has missed the draw of lots by non inclusion of the name or similar situations.

35. A reference in this behalf may be made to the orders passed in Civil Writ Petitions on 20.4.2000 dealing with issue of non inclusion of petitioners in the draw of lots. A reading of the said order shows that the petition was in fact contested by the DDA on the ground that the petitioners therein had given only a limited number of preferences and although the name of the petitioners were included in the draw of lots, they were not successful. However, additional affidavit was filed during the pendency of the writ petition stating that cases of petitioners and similarly other situated persons were placed before the Grievance Redressal Committee on 10.3.2001 and it was decided that such persons would be given another opportunity to own allocation/allotment of SFS flats for which a fresh draw of lots would be held. This decision taken by the DDA was approved by the Court by stating that the same was reasonable and justified. It was thus observed that in view of the statement, name of such persons would be included in the draw of lots at an early date and preferably within a period of three months from the date of the said order. The aforesaid facts thus show that there is no question of discrimination against the petitioners.

36. Insofar as the aspect of costing is concerned, the same has been considered at length by the Full Bench of this Court in Sheelawanti case (supra). It has been held by the Full Bench that matters of costing are within the domain of DDA and fall within the parameters of contractual relationship. It is not for the Court to fix the price of flat. This aspect has to be specially appreciated in view of the Clause 19(iv) dealing with the issue of costing in the brochure. It has been stated in the said clause that the cost mentioned therein are tentative and subject to revision on account of escalation in cost of construction, land and material. Similar clauses have been earlier upheld in various judgments of this Court and in view of the same it is not open to the allottees to contend that the flats should be given at a specified rate. The Division Bench of this Court in DDA Self Finance Flat owners case (supra) held to the same effect following the observations made by the Full Bench in Smt. Sheelawanti case. Even in the case of Bareilly Development Authority (supra), it was noticed that once it is indicated that the actual cost may increase or decrease, the said clause cannot be stated to be arbitrary or illegal and parties are bound by the same.

38. The basis of the costing of the flats has been indicated and the cost of the land has been taken as on the date of allotment. The Supreme Court in DDA v. Puspendra Kumar Jain case (supra) has already held that the rights in favor of an allottee only accrue on the allotment letter being issued to intending purchaser and not even on the date of draw of lots. The costing of the land has been done on this basis.

39. In view of the aforesaid, I find no force in the submission of the learned counsel for the petitioners that the cost should be different and collected in a different manner. The order passed on 20.4.2000 only indicate that 'preferably' the draw of lots should be held within three months. The process was immediately taken up and the allotment has been made. There was no direction to do so in a specific period of time. Though there has been some delay in holding the draw of lots and in issuing the allocation letters, the same would not give rights in favor of the petitioners in view of the observations of the Supreme Court in DDA v. Pushpendra Kumar Jain case (supra).

39. There is also force in the submission of the learned counsel for the respondents that interest has been charged on the cost of construction taking into consideration the fact that there was no contribution by the petitioners since none was demanded. The petitioners are situated differently from persons who have contributed four Installments in pursuance to the allocation letter. A consistent policy is being followed by the DDA in this behalf and persons who have contributed four Installments are placed in a different situation than the ones like the petitioners who have not contributed to the same. It will not make a difference that no such amount has been demanded from the petitioners.

40. The Supreme Court in Premji Bhai Parmar's case (supra) has held that on the issue of price fixation, executive has a wide authority unless there is statutory control. Admittedly there is no statutory control in the present case on the contrary the brochure itself provides that the pricing is tentative subject to further revision.

41. The last aspect to be considered is the challenge to 20% surcharge imposed by the respondent. The respondent has given the result of the survey which came to the conclusion that there is considerable difference between the price prevalent in South Delhi as compared to other areas. This is the basis provided for the difference and the surcharge. This is also to be read with the object to be achieved by the surcharge. It has been explained that the surcharge imposed on them will be sued for providing the subsidised houses to the weaker sections and migrants from Punjab and Jammu & Kashmir who are placed in disadvantages position.

42. The aforesaid aspect has been considered by the Supreme Court in Premji Bhai Parmar's case (supra), where it has been held that the authorities are entitled to provide housing to weaker sections by what was called taxing the higher strata which can by no stretch of imagination be said to be vocative of Article 14 of the Constitution of India. It is only when within the range of selection the law operates unequally and this cannot be justified on the basis of a valid classification can it be said to be vocative of Article 14 and classification of the different categories of housing being provided was upheld violative. The aforesaid principle was also followed by the Division Bench of this Court in DDA Self Finance Flat owners case (supra) where no fault was found with respondent for charging the petitioners more than the cost of the flats to provide dwelling units to those who fall in lower income group. The pricing formula for different income groups beings different has thus been upheld. Once this principle has been upheld, it is not open for the petitioners to contend that not providing for the said class in the contract would deny the respondent right to impose the said surcharge. No final costing has been provided and the surcharge has been included as a part of the final cost, the provision of which has been upheld by Division Bench of this Court and the Supreme Court. There is thus no question of any concession not being provided to areas who are not in South Delhi but the principle of imposing a surcharge in premium area to provide the subsidised houses for the under-privileged. It is also relevant to note that in the counter affidavit, it has been set out that the total amount of such surcharge recovered from this area and other areas would be only Rs. 50 cores while the Subsidizationto the extent of Rs. 100 crores for providing houses to the under-privileged. The details have also been given as to how the departmental charges for Janta flats have been brought down and no administrative charges are being levied for Janta houses. Another aspect is that despite the said surcharge there is apparently still considerable difference between the land rates and it is in fact only part of the built is subsidy of the land cost in the prima areas of South Delhi which are sought to be recovered by the process of this surcharge.

43. In view of the aforesaid, I find no merit in the writ petitions. The writ petition are dismissed leaving the parties to bear their own costs.