JUDGMENT
Pradeep Nandrajog, J.
1. The cases at hand are reflective of either gross vindictiveness towards Shri B.L.Patney, writ petitioner in WP(C) 10928/2004, or culpable negligence by the officers of DDA.
2. DDA put to auction plot No.A-3/133, Paschim Vihar, New Delhi. It was notified to the prospective bidders that plot measured 83.61 sq.meters. Shri B.L.Patney participated in the auction. His bid in the sum of Rs.2,92,000/- was the highest. Bid was accepted on 18.1.1988. Full price was paid on 17.2.1988. It is not in dispute that Shri B.L.Patney never defaulted in making payment.
3. Pending completion of formality for execution of perpetual sub-lease, possession of the plot was offered to Shri B.L.Patney. As required by DDA, Shri B.L.Patney reached the site on 14.6.1988. The concerned officer of DDA did not handover possessio n because when measured, the area of the plot was found to be 95.52 sq.meters.
4. On 26.4.1989, DDA demanded a further sum of Rs.41,594.55, calculated on the basis of bid amount per sq.meter for the excess area. Shri B.L.Patney paid the sum. DDA demanded Rs.3,033/- towards interest. He paid the same. On 1.12.1989, posse ssion of the plot was handed over.
5. One would have expected things to have come to an end because only formality required was procedural i.e. execution of the perpetual lease deed. Here started a long story of misery for Shri B.L.Patney. Lease deed was not being executed. His patience was getting exhausted. He approached the Consumer Court seeking compensation for deficiency in service. He pointed out to the Consumer Court that the first deficiency was that DDA put to auction a plot without measuring it. Bids were ubmitted based on the information provided by DDA that the plot measured 83.61 sq.meters. When later on it was noted that the area was more, DDA took ten months to raise the demand for the extra amount. This was the second deficiency, namely, dela . Further, it was the DDA which was responsible for stating less plot area and accordingly receiving bids. There was no reason to charge interest for the additional demand, interest being reckoned from the date post 30 days of bid confirma ion. The next deficiency pointed out was that at the time of auction, frontage of the plot was shown to be 20 ft. but at site it came to 17-1/2 ft. Further deficiency pointed out was that possession at site was delivered on 1.12.1989 i.e. after 3 months of the auction.
6. On 24.1.1991, the State Commission awarded compensation in the sum of Rs.65,000/- to Shri B.L.Patney.
7. It appears that the proceedings taken before the State Commission were not to the liking of the officers of the DDA who are used, it appears, to greasing of their palms for doing the work which they are supposed to otherwise perform. They did no t execute the lease deed. After persistent requests from Shri B.L.Patney, on 6.8.1992 DDA sent a draft perpetual lease deed to him. The draft lease deed incorrectly described the dimensions of the plot. Petitioner states that this was deliberate DDA states that this was an unintentional mistake. In any case, it is the fault of DDA, be it deliberate or unintentional.
8. Shri B.L. Patney brought the aforesaid discrepancy to the notice of DDA. DDA did not remedy the error which was pointed out. Probably, the officer who wanted illegal benefit to flow to him, was stonewalled by Shri B.L.Patney.
9. Yet another complaint had to be lodged before the State Consumer Commission.
10. During the pendency of the complaint aforesaid, lease deed was executed on 3.3.1994.
11. It was noticed by Shri B.L.Patney that the lease deed contained a covenant that Shri B.L.Patney would construct a building after obtaining sanction within a period of 2 years from the date of delivery of possession. Date of possession being 1 .12. 1989 and lease deed executed on 3.3.1994, said covenant was obviously incapable of being adhered to by Shri B.L.Patney. It is not the case of DDA that Shri B.L.Patney could have constructed on the plot without a lease deed being executed in h s favor.
12. Shri B.L.Patney applied for extension of time to effect construction. DDA did not extend the time. Shri B.L.Patney states that officers of DDA wanted him to withdraw the complaint pending before the State Consumer Commission.
13. On 16.7.1998, the State Consumer Commission passed an order directing DDA to grant extension of time for effecting construction. Sh.B.L.Patney was awarded compensation in the sum of Rs.1,00,000/-. The aforesaid decision of the State Consumer Commis sion was challenged by DDA before the National Consumer Forum. It was dismissed on 29.4.1999. Petition for Special Leave to Appeal against the decision of National Consumer Forum being SLP (C) No.15445/99 was dismissed on 31.1.2000.
14. Shri B.L.Patney who had in the meanwhile retired from service as Joint Chief Manager, Bank of India on 30.6.1992 remained without a roof over his head. He continued to live in a rented accommodation. Amount paid to DDA for purchase of th e plot in the sum of Rs.3,36,000/- remained blocked. Not only that, cost of construction continued to rise. By the time, the matter attained finality with the dismissal of SLP, 12 years went by.
15. Unknown to Shri B.L.Patney, further misery was brought upon him by DDA. It appears that the plot, if one believes in vastu shastra, ought not to haver been purchased by Shri B.L.Patney as it was destined not to be his.
16. In August,2002, DDA put up for auction plots in Paschim Vihar. Plot No.A-3/133, Paschim Vihar purchased by Shri B.L.Patney was put to auction. Shri Khushdeep Bansal, writ petitioner in WP(C) 1967/2003, to his misery, was the highest bidder. Hi s bid was accepted. He paid the requisite amount. Lease deed was executed in his favor and DDA, after demolishing the boundary wall constructed by Shri B.L.Patney, delivered possession of the plot to Shri Khushdeep Bansal on 5.12.2002. Perpetual l ase deed was executed in his favor on 9.12.2002. He applied to the Municipal Corporation of Delhi for sanction to erect a building. On 7.2.2003 requisite sanction was granted. He commenced construction of a building.
17. Shri B.L.Patney states that the auction of the plot, handing over of its possession, execution of the lease deed and sanction of building plans in favor of Shri Khushdeep Bansal, all happened within six months. He was not to go every day to his plot to see whether it was safe. When he learnt about a building being constructed on his plot, he first thought that it was an act of trespass, but on making inquiry, he learnt that DDA had auction the plot to Shri Khushdeep Bansal. By 2003, Sh i B.L.Patney was 73 years of age.
18. He sent a protest to the Vice Chairman, DDA. On learning what had happened, DDA cancelled the bid of Shri Khushdeep Bansal vide letter dated 27.2.2003. It was stated that plot in question was already sold by DDA and was under litigation. He w as informed that the bid amount deposited by him would be refunded shortly.
19. Shri Khushdeep Bansal on receipt of cancellation notice dated 27.2.2003 filed WP(C) 1967/2003 praying that it be quashed.
20. DDA tried to resolve the matter by offering another plot firstly to Shri B.L.Patney and thereafter to Shri Khushdeep Bansal. Both remain adamant. Shri B.L.Patney filed WP(C) 10928/2004 praying that vacant possession of plot No.A-3/133, Paschim Viha r, New Delhi be directed to be handed over to him. Compensation in the sum of Rs.42,13,000/- is claimed against DDA. It is further prayed that inquiry be directed to be held to pinpoint the officers responsible and appropriate criminal and administ ative action be directed to be taken against them.
21. DDA has not filed a counter affidavit in WP(C) No.10928/2004 Counter affidavit has been filed in WP(C) No.1967/2003.
22. Justification for re-auctioning the plot given in the counter affidavit is that the property register of DDA was seized by C.B.I. DDA did not have exact details of unsold plots. In the year 2001 it carried out an exercise to identify vacant plots. It presumed that all vacant plots were unsold and this was the reason why plot No.A-3/133, Paschim Vihar, New Delhi was auctioned. However, DDA admits that this was a mistake. There is one averment in the counter affidavit which musty be note . In para 2(xvii) of the preliminary submissions, DDA states that : ”(xvii)It is submitted that it is only on 20.12.2002, when for the first time doubts were raised by the L.S.A(III) about the allotment of the plot in question. Accordingly, the original files pertaining to the plot in question were traced and on 10.1.2003, it was confirmed that the plot in question had already been duly allotted to Shri Patney and the same was erroneously included in the list of vacant plots for auction mainly for the reason of the plot in question lying vacant. The foresaid error was immediately brought to the notice of the Vice Chairman of answering respondent/ DDA, who recommended and approved cancellation of the allotment of plot in question in favor of petitioner, being subsequent allottee. The Vice C airman also directed the penalty proceeding against responsible official concerned.”
23. At the hearing held on 5.10.2004, noting that it was a gross case calling for compensatory redressal, but not at the expense of the tax payer, counsel for DDA was directed to inform the Court names of the officers who were responsible for the mess. At the next date of hearing on 12.10.2004, counsel for DDA stated that it was not possible to identify a particular officer as the mess was the result of a bundle of facts. Arguments were heard on 12.10.2004 I had put it to Shri B.L.Patney, whether e was willing to accept an alternative plot at the same rate in any zone. He refused. He stated that he wanted plot No.A-3/133, Paschim Vihar, New Delhi because it was near to the office of his son. He agreed to compensate Shri Khushdeep Bansal for the structure raised. Shri Khushdeep Bansal refused the said offer.
24. Both, Shri B.L.Patney and Shri Khushdeep Bansal are not at fault. But the plot is one. They cannot be tied in bigamy to one plot. They cannot share it. One of the two has to get the plot. The cauldron of facts may be a lawyers delight but it is a judges despair. Both claim equities in their favor. Shri B.L.Patney claims superior right in law.
25. Superior right in law claimed by Shri B.L.Patney is that having sold the plot to him, DDA was left with no title. He, who has no title can create no title in favor of a third party was the argument.
26. Legal case of Shri B.L.Patney is far superior to Shri Khushdeep Bansal. Indeed, having sold the plot to Shri B.L.Patney and having received the entire sale consideration, further having executed the perpetual lease deed in his favor, DDA was left with no right, title or interest in the land, save and except, interest of a superior Lesser to receive ground rent. This interest alone was capable of being transferred. Legal claim of Shri Khushdeep Bansal is much weak.
27. Do known and recognized principles of equity tilt the balance, needs to be considered.
28. As observed by I.C.F. SPRY in ”Principles of Equitable Remedies”, 5th Edition in chapter ”The Technique of Equity”, equitable principles have the hallmark of distinctive ethical quality. They are of great width and elasticity and are capabl e of direct application, as opposed to application merely by analogy. Further, as observed by learned author in the same chapter (page 4, 5th Edition) all equitable remedies are, in an appropriate sense, discretionary. This equitable discre ion is to be exercised by taking into account all relevant matters that tend towards the justice or injustice of granting the remedy that is sought, such as hardship laches, unfairness etc. All have to be weighed while directing oneself to the relief in question being granted or not, be it absolute, partial, additional or refused.
29. It is a balancing act required to be performed with caution. Countervailing matters of equal or greater weight, have to be put in scale to see where the scale tilts. Hardship caused to an innocent defendant may be offset, but if the inconve nience or detriment would be equally suffered by the plaintiff if he were left without a remedy, relief has to be considered by taking into account the aforesaid. At page 201 onwards, the learned author has discussed ”Hardship To Third Person ” .
30. The general principles of equity arise between two persons who have interacted with each other in a jural relationship or where one had a fudiciary relation to the other. But situations may arise where hardship or inconvenience to a third pa rty may be caused. In the instant case, it has to be noted that DDA acting in a jural relation with Shri B.L.Patney and independent thereof, was likewise acting with Shri Khushdeep Bansal. At no point of time were Shri B.L.Patney and Shri Khushdee Bansal acting with each other.
31. In the discussion, the learned author in the context of ”Hardship To Third Persons” has observed as under :
”Secondly, it is clear that the court may take account of the fact that there are ”third persons so connected with the defendant that, by reason of some legal or moral duty which he owes them, it would be ‘highly unreasonable’ for the court acti ely to prevent the defendant from discharging his duty.”
32. The learned author has noted that the position of equity was recorded as unclear on the issue where there was no special relationship to the third person. Dictum in Gall Vs. Mitchell, (1924) 35 C.L.R. 222 has been noted by the learned auth or, the dictum reads as under :
”Hardship of third person entirely unconnected with the property are immaterial.”
33. But immediately thereafter, commenting upon the principle, learned author has posed the question: merely because the person who may be injured is not a party to the proceedings, why should a court of equity close its eyes to his hardship or inju ry?
34. Answering the question, the learned author has observed :-
”Indeed, on general equitable grounds it appears that hardship either to third persons or to the public in general is undoubtedly a matter to be taken into account and that hence the existence of a special relationship or duty between thir persons and the defendant is not a pre-condition of relevance but, instead, is merely apt to go to questions of weight. The course of recent authority has supported this view. (Miller Vs. Jackson, (1977) Q.B. 966). . It does not follow that the position of third parties or of the public is commonly of decisive weight: its importance depends on the special circumstances of the case and, in particular, on considerations that affect directly the parties to the greement. ((Raphael V. Thames Valley Ry. Co. (1867) L.R. 2 Ch. 147). In particular a plaintiff is not ordinarily denied relief merely in view of prejudice or hardship to the public or third persons. (Kennaway V. Thompson (1981) Q.B. 88). Relief is refused by the Court only in exceptional cases where considerations of this kind are so disproportionately great, as against prospective prejudice or hardship to the plaintiff, as to render specific performance unjust in all the circu stances. (Hawkes V. Eastern Counties Ry.Co. (1952) 1 De G.M. and G. 737).”
35. Upholding the action of DDA to withdraw the plot from Shri Khushdeep Bansal and put Shri B.L.Patney in possession thereof, would require valuation of the superstructure and making Shri B.L.Patney to pay Shri Khushdeep Bansal for the same. Furt her, due to persistent defaults of DDA, Shri B.L.Patney would require to be further compensated in addition to the compensation he has already received from the State Commission. Shri Khushdeep Bansal would be required to be put in possession of a other plot and he would be required to be compensated by DDA for escalation in the cost of construction. I intend to mould my order accordingly.
36. Since Shri Khushdeep Bansal has constructed upon the plot and if the plot is allowed to remain with him, he would have no claim. No further equities would be required as far as he is concerned. Shri B.L.Patney could be allotted another plot an d appropriated compensated for the rise in cost of construction. I, therefore, deem it appropriate to confirm the allotment in favor of Shri Khushdeep Bansal.
37. Not only have officers of DDA either acted with spite or if there is no spite, with culpable negligence. I have noted above the pleading of DDA in the counter affidavit filed in WP(C) No.1967/2003. DDA admitted that on 20.12.2002 it had doubts whether it could auction the plot to Shri Khushdeep Bansal. If this was so, DDA could have immediately asked him to keep his hands of. DDA allowed Shri Khushdeep Bansal to proceed ahead. On 30.12.2002, he applied for sanction of the building plan to MCD. Sanction was granted on 7.2.2003. Had DDA acted promptly, Shri Khushdeep Bansal could have been informed not to effect any construction and since by December, he had not effected any, issue would have been otherwise. Further, D A admits that on 10.1.2003, it traced out the file of Sri B.L.Patney. Even on that date, Shri Khushdeep Bansal had not commenced construction because it was on 7.2.2003 that MCD granted him necessary approval. There is no reason why, immediately on 10 1.2003 or a day or two thereafter DDA did not write a letter to Shri Khushdeep Bansal. This shows how DDA functions.
38. Officers of DDA have acted with malice or gross negligence. Its officers cannot be allowed to function as they do. Cases of double allotment are witnessed in this Court time and again. DDA shifts the blame on computer error. I simply canno t understand as to why DDA cannot program their software to see that these situations do not arise. But who reforms DDA? It continues to act as in the past.
39. Officers of DDA who learnt at least on 10.1.2003 that the plot in question was already sold but did not act are certainly responsible. Action has to be taken against them. Further, had DDA correctly measured the plot when it was put to auction in the year 1988, problem would not have arisen because Sri B.L.Patney would have got the lease deed executed without a problem. Delay took place because over a year was spent on raising additional demand since plot size was more than what was put o auction. The officer of the DDA, who indicated a lesser plot size has also contributed and he too must be penalised. Further, the officer who prepared the lease deed incorrectly giving the dimensions of the plot and contributed to further delay should also be penalised. Thereafter, the officer of DDA who put a term in the lease deed requiring Shri B.L.Patney to construct upon the plot within two years of its possession, forgetting that possession was handed over in 1989 but lease deed was xecuted in the year 1994, knowing that Shri B.L.Patney could not have constructed on the plot without a lease deed, he too has contributed by his negligence. Officer of the DDA who cleared auction of the plot at the second stage is also responsibl because after the property register was seized by C.B.I., it was his duty to at least get a photocopy thereof. I find it rather strange that DDA would think that vacant plots are unsold and belong to it.
40. Shri B.L.Patney has claimed Rs.42,13,000/- as compensation. The details thereof are as under :
(i) Interest @ 15% from 1988 till 1.7.2004 on deposit made him Rs.7,35,000/-
(ii) Compensation for rent paid @ Rs.2000/- per month Rs.3,78.000/-
(iii) Escalation charges in the cost of construction Rs.10,00,000/-
(iv) Conveyance and out of pocket expenses for litigation Rs.1,00,000/-
(v) Compensation for harassment and torture Rs.20,00,000/-
41. Compensation for past deficiency in service till 1998 have been granted to him under two orders of the State Consumer Forum. There is undoubtedly increase in the cost of construction. For this, Shri B.L.Patney has not received any compensat ion from DDA. There is no evidence placed on record that he is paying rent. On the contrary in para 37 of the writ petition, it is stated that the petitioner is an old man of 73 years of age. He is residing in a house rented by his son. It may be true that had Shri B.L.Patney constructed his own house, his son would haver shifted with him, but then it is the son who would have saved on rent.
42. CPWD Schedule of Rates has been held to be a good guide to determine the cost of construction. The indices issued by CPWD reveal that the cost index in January,1990 was 506. It rose to 1076 in January,2000. Provisional figures for Decem ber,2003 show that the cost index has arisen to 1211. On the cost index of 506 for January,1990, CPWD Schedule shows that cost of construction for a three storeyed house would be Rs.198.65 per sq.ft. This would be for an ordinary construction. On the cost index of 1211, the cost of construction for a three storeyed building would be Rs.450/- per sq.ft.
43. Shri B.L.Patney would, therefore, be entitled to two reliefs :-
(a) He is entitled to be put in possession of a plot measuring 95.52 sq.mtr.
(b) He would be entitled to be compensated for the increase in the cost of construction.
44. For a plot size of 95.52 sq.meter, permissible coverage is 66%. A two and half storeyed construction can be erected on the building. Shri Patney would be entitled to construct at least 650 sq.ft. covered area on the ground floor and first floor and 325 sq.ft. area on the second floor. He would thus be entitled to construct 1625 sq.ft. Difference in the cost of construction between January,1990 to December,2003 would be Rs.251.35 per sq.ft. Taking Rs.250/- as increase in cost of construction per sq.ft. and multiplying the same with 1625 sq.ft. area which could be constructed by Shri B.L.Patney, the increased cost of construction comes to Rs.4,06,250/-.
45. Mandamus is accordingly issued to DDA to forthwith allot a plot of near same size to him. If a plot of 95.52 sq.meter cannot be identified, plot of nearest size be identified and allotted to him. In no case, the plot would be less than 95.52 sq.meter. If the size of the plot identified is beyond 95.52 sq.meter, no excess amount would be charged if the variation is up to 5 sq.meter. Beyond that, Shri B.L.Patney, would pay at the rate per sq.meter determined on his bid amou t and not the current market value or the current pre-determined rate. The plot would preferably be in the same area or nearest to Paschim Vihar. In no case the plot would be in an undeveloped area.
46. Further mandamus is issued to DDA to pay to Shri B.L.Patney a sum of Rs.4,06,250/- being the cost escalation.
47. This burden would not be passed on to the citizens of Delhi. It would not be passed on to others who purchase land or flats from DDA. DDA would not compensate Shri B.L.Patney from its own funds. DDA has to recover this amount from the of ficers concerned. Mandamus is accordingly issued to the Vice Chairman, DDA to forthwith initiate an inquiry and complete the same within one month. This inquiry shall be conducted by the Vice Chairman himself. In the inquiry, he would identify ll persons responsible and proportionate contributory negligence. The compensation paid to Shri B.L.Patney in the sum of Rs.4,06,250/- shall be apportioned and recovered from these officers.
48. Compliance report would be submitted in the Registry of this Court on or before 13.12.2004
49. It is made clear that if the Vice Chairman, DDA does not complete the inquiry as aforesaid, he shall remain personally present in Court on 16.12.2004 It is made known to him that violation of this order would be treated as contempt.
50. WP(C) 1967/2003 is allowed. Impugned communication dated 27.2.2003 is quashed.
51. WP(C)10928/2004 is allowed as indicated in para 44 and 45 above. However, to ensure compliance, list for directions on 16.12.2004