JUDGMENT
S. Muralidhar, J.
1. The petitioner registered himself with the Delhi Development Authority (‘DDA’) for allotment of an MIG Flat under the HUDCO 1979 Scheme. In response to an advertisement inviting applications for allotment of flats from retired persons, the petitioner submitted an application to the DDA on 20.7.1989. He was informed by the DDA by a letter dated 23/27.4.1990 that he had been allotted a flat in Rohini on the second floor at a cost of Rs. 2.11 lakhs and he was asked to make payment of Rs. 39,898.78 by 25.7.1990 and the balance in 120 equal monthly Installments.
2. Since his wife and aged mother had health problems, the petitioner made a representation on 29.3.1990 to the Lt. Governor (who is also the Chairman of DDA) for change of allotment from the 2nd to the ground floor. Meanwhile he made the payment of Rs. 39,898.78 on 25.7.1990 towards the Rohini Second Floor flat to avoid cancellation. He made second representation on 25.7.1990. According to the petitioner, although the Lt. Governor had accepted his request and ordered on 18.5.1990 that the petitioner be allotted a first floor flat, no action was taken by the DDA till December 1990. Meanwhile a third representation was made by the petitioner on 6.11.1990 which according to the petitioner was also agreed to by the Lt. Governor in December 1990 by ordering that the petitioner should be allotted a first floor flat in any of the Rohini Sectors 1 to 8.
3. Thereafter the DDA issued a demand-cum-allotment letter dated 25.7.1991 allotting the petitioner a first floor MIG flat No. 3-B in Pocket-F, Nand Nagri. The cost was indicated as Rs. 3,45,700 out of which the petitioner was asked to pay Rs. 1,28,490.15 by 25.8.1991. The cost included a sum of Rs. 7500/- as charges for the change of floor.
4. According to the petitioner the cost of the flat was excessive considering that first floor MIG flats in Nand Nagri, which were constructed in 1987, were allotted at a cost of Rs. 1,47,000 only. He wrote a letter to the DDA on 14.8.1991 stating that although he was depositing the initial amount of Rs. 1,28,490.15 he should be given some more time to deposit the balance since the amount charged was excessive. He pointed out in a representation dated 6.9.1991 made to the Vice-Chairman DDA that a similar type of flat on the first floor in Nand Nagri had been allotted to one Mr. Trehan on 24.8.1991 at a cost of Rs. 1,93,400. By its reply dated 21/24.6.1993, the DDA informed the petitioner that the cost of flat had been worked out correctly according to the approved pricing policy of the DDA on the principle of “no profit no loss.”
5. The petitioner then filed the present writ petition on 15.12.1993 seeking the quashing of the impugned demand letter dated 25.7.1991 by which the cost of flat was fixed at Rs. 3,45,700 against the original cost of Rs. 1,47,000. The further prayer was that the DDA should be directed to charge Rs. 1,47,000 or Rs. 1,89,000 i.e the amounts paid by the other flat owners who had applied in 1979 for similar flats.
6. This Court directed the notice to issue in this writ petition on 17.12.1993. The interim order passed on that date reads as under:
On petitioner’s depositing a sum of Rs. 1,89,000 in all within four weeks from today, the flat bearing No. 3-B, Pocket-F, First floor, Nand Nagri, allotted to him, shall not be cancelled. This order is subject to the conditions as imposed by us in C.W. 3267/91 entitled Ashok Kumar Behal and Ors. v. U.O.I. and Ors. decided on 25.8.1993 and reported as 1993 (III) AD (Delhi) 577.
7. In its reply affidavit filed on 16.9.1995, the DDA contended that the brochure for the “Registration Scheme on New Pattern 1979” had indicated that the prices indicated therein were illustrative/tentative and were subject to revision. No assurance had been given that the petitioner would be allotted a flat at the tentative prices indicated in the brochure. It was contended that the revision of land rates and the tremendous increase in the cost of development, maintenance charges, watch and ward charges had necessitated the upward revision of prices. A reference was made to the judgment of the Hon’ble Supreme Court in Bareilly Development Authority v. Ajaipal Singh and of this Court in Federation of Cooperative Group Housing Societies v. Union of India 1993 (2) Delhi Lawyer 117 in which it had been held that fixation of prices was a matter of policy and beyond the scope of judicial review of the Court. The decision of the Full Bench of this Court in Sheelawanti v. Delhi Development Authority was relied upon by the DDA to contend that since the allotment took place at the request of the petitioner he would liable to pay the prevalent current cost after the grant of change of floor.
8. On 16.1.1996 this Court directed the DDA to file an additional affidavit to answer the averments made by the petitioner in para 15 of the petition to the effect that a similar flat in Nand Nagri had been allotted to Mr. Trehan on 24.8.1991 at a cost of Rs. 1,93,400. By its affidavit dated 22.1.1997 the DDA explained that Mr. Trehan was allotted a flat in Nand Nagri consequent to a draw of lots held on 6.3.1990 whereas in the petitioner’s case, after the grant of change of floor, the draw of lots was held on 29.5.1991 and the demand letter was issued on 25.7.1991. Since the disposal cost of the flat was revised by the DDA every six months, the rates prevalent on the date of issue of the revised demand letter were charged. To counter this, the petitioner filed an affidavit dated 10.2.1997 pointing out that the petitioner’s representation dated 29.3.1990 for change of floor had been accepted way back on 18.5.1990 by the Lt. Governor. Had the consequential action been taken promptly it would not have delayed the issuance of the revised demand letter. The delay by the DDA in issuing the revised demand letter could not be an excuse for charging the revised current cost. Moreover, second demand letter showed that the DDA had levied transfer charges. Therefore, the question of the allotment being a fresh one to warrant the charging of the revised current cost did not arise.
9. By an order dated 19.8.1998, this Court confirmed the interim order passed on 17.12.1993.
10. Mr. R.K. Wattal, learned Counsel appearing on behalf of the petitioner has, in addition to the above averments, placed reliance on the judgment of this Court in Smt. Renu Bali v. Delhi Development Authority in which it was held by the learned Single Judge of this Court that the mere change of floor would not permit the DDA to charge the current cost prevalent on the date of change of floor. In the same judgment the learned Single Judge upheld the decision of the DDA to levy surcharge at 20%. Against the judgment of the learned Single Judge, Smt. Renu Bali filed an appeal on the issue of the surcharge and this was decided by the Full Bench in Smt. Renu Bali v. Delhi Development Authority . Thus the DDA accepted the judgment of the learned Single Judge to the extent that it prevented the DDA from charging the current cost in the event of change of floor.
11. None appeared for the DDA at the final hearing of the matter.
12. This Court finds from the reply and the subsequent affidavits filed by the DDA that there is no dispute as to the fact that the petitioner was given a revised demand letter after accepting his request for change of floor and that the cost indicated in the revised demand letter was the current cost prevalent on the date of the issuance of the revised demand letter. The short question that arises for consideration is whether the DDA was, in the facts and circumstances, justified in charging Rs. 3,45,700 for the flat allotted to the petitioner by the impugned demand letter dated 25.7.1991.
13. The further facts that remain undisputed are that the petitioner’s request on 29.3.1990 for change of floor was agreed to by the Lt. Governor, who is also the Chairman of the DDA, way back on 18.5.1990. It is also not disputed that a flat in Nand Nagri similar to the one allotted to the petitioner on 25.7.1991, the amount charged was Rs. 1,93,400. The cost of the flat in Rohini, built much later (i.e. in 1990) than the one in Nand Nagri (built in 1987) was Rs. 2,11,500. The extra cost charged has been explained as being on account of the rates prevalent as on the date of the draw held for the petitioner. This Court finds that having agreed to the petitioner’s request for change of floor on 18.5.1990 itself, the DDA for reasons best know to it held the draw only on 29.5.1991. For the delay by over a year on the part of the DDA in holding such draw, the petitioner cannot be asked to bear the burden of having to pay the current cost on the date of the draw. This the Court finds to be unreasonable.
14. It is also settled in Renu Bali that the DDA cannot charge the current cost only because there is a change in floor as is clear from paras 28, 112 to 115 of the judgment of the learned Single Judge which reads as under (DLT pp. 409, 439-440):
Learned Counsel then referred to the issue of charging of current cost arising as a consequence of the change of floor and took the example of CWP No. 5141/2000. After the first three Installments had been paid, the change of floor was granted and all payments had been made within time. Learned Counsel has, thus, submitted that there was no basis for charging of current cost in such cases as it was open to the respondents to consider the case for change of floor, but that would not give rise to the consequence of current cost and nor was there any intimation of such charging. Learned Counsel has further submitted that at least insofar as the SFS flats were concerned, no policy has been placed on record to substantiate charging of such current cost.
112. Another category of costing cases arise where there has been a request for change of floors. The circular of 9.7.1990 was referred to in this behalf. However, the said circular is applicable only in respect of costing of left out flats and no case has been made out that the present flats allotted are in the said category. The resolution dated 13.9.1991 was also referred to in this behalf in view of the fact that the revised land rates had come into force from 6.12.1990. The revised land rates were made applicable in cases of change of floors at request of the allottees. Further no interest on their deposit against the earlier flat was to be allowed, which was being done earlier. Admittedly, other than issuance of these circulars, nothing was done to put the allottees to notice that in cases of change of floors, such new pricing system would come in vogue.
113. In fact, a reference was made to the policy dated 15.3. 1993 resolving the ban on change of location under SFS(s) in terms of resolution No. 108 of 1992 to continue giving discretion to the Lieutenant Governor/Chairman of DDA to permit change of floor in suitable cases. The suitable cases were also further explained and qualified, which were cases of handicapped persons with certain disabilities or elderly family members.
114. I fail to appreciate how mere change of floor can result in the current cost being charged in the same area. There was a ban on change of floor. It was only in medical cases or of old persons that this change could be permitted taking into consideration the bonafide and suit abilities for the requirement of such change. Once the change was permitted, it has to be assumed that the same was after due scrutiny and based on the said parameters. If that be the position, the only charge which could have been levied was the differential in the price which would have been applicable as a consequence of the change of floor and based on the price of the ground floor for successful allottees of such floor. An important aspect, which has to be considered, is that at the stage of such change of allocation, the allottees were never informed of this consequence. The mere passing of a resolution in the records of DDA cannot be said to be a notice to such allottees. Thus, the allottees may or may or not have accepted to change the floor if they had known that the consequences would have been so harsh.
115. This is apart from the fact that there seems to be no basis for such a policy. The policy, thus, requiring current cost to be charged in cases of change of floor is also hereby quashed.
15. Learned Counsel for the petitioner is right in contending that on the above aspect, no appeal has been filed by the DDA and this is evidenced from the judgment of the Full Bench in Renu Bali v. Delhi Development Authority where the entire discussion was on the validity of the surcharge of 20% levied by the DDA.
16. Further it is clear that the allotment to Shri Trehan of a similar type of flat in Nand Nagri pursuant to the draw held on 6.3.1990 was at a cost of Rs. 1,93,400. The explanation offered by the DDA for charging the petitioner a higher amount in shows that the DDA was responsible for the delay in holding the draw in the petitioner’s case. There is no justification for charging the petitioner a higher cost.
17. This Court accordingly finds that viewed from any angle the DDA was not justified in charging for the flat in question an amount higher than that prevalent on the date of the original draw held on 13.3.1990 as a result of which the petitioner was first allotted a flat in Rohini. The petitioner cannot be called upon to pay a higher revised cost based on the current rates prevalent on the date of issuance of the revised demand letter issued after accepting the petitioner’s request for change of floor.
18. The result is that the petitioner can be charged only Rs. 1,93,400 for the flat in question. He has already paid a sum of Rs. 1,89,000 pursuant to the interim order dated 17.12.1993 and has been put in possession of the flat. Therefore, he is required to pay only the difference of Rs. 4,400. In the facts and circumstances of the case, it is directed that the petitioner will pay to the DDA, within a period of four weeks from today and in any event not later than 24.9.2007, a sum of Rs. 4,400 together with simple interest at 9% per annum thereon (i.e. on the sum of Rs. 4,400) from the date of deposit of Rs. 1,89,000 till the date of payment of Rs. 4,400 together with interest. Upon the petitioner making such payment, the DDA will complete all formalities including documentation within a period of six weeks thereafter.
19. With these above directions, this petition is allowed with no orders as to costs. Application stands disposed of accordingly.