K. RAMAMOORTHY ( 1 ) AT the first blush the question that has arisen in this batch of writ petitions may appear to be sue generis. But on a close examination and analysis of the principles enunciated by the Courts in England and India, the principles applicable could be brought under the rubric of the well known principle of equity . ( 2 ) BEFORE we notice the facts necessary, the point that has to be considered in this case is that if two innocent persons are to suffer by the act of a third party by obtaining orders of Courts preventing one of two innocent persons from acting, who is to suffer the loss. ( 3 ) IT is contended by the petitioners that they are entitled to the plots as per the draw of lots held by the D. D. A, on the basis of value fixed by it and the D. D. A. ought to have issued the demand-cum-allotment letter within a reasonable time from the date of draw of lot and inasmuch as it was not done the D. D. A. is not justified in demanding a higher amount than what it was entitled to demand. ( 4 ) IT is the contention of the D. D. A. that owing to ad-interim orders passed by this Court in the writ petitions tiled by land owners from allotting the plots to the allottees, the demand letters could not be issued immediately after the draw of lot but the demand letters could be issued only after the order of injunction was vacated by this Court. It is the contention of the DDA that there was no act of ommission or commission on the part of the DDA and the DDA was in law entitled to make the demand on the basis of the value prevailing on the date of the order making the demand but having regard to the circumstances the DDA is claiming only interesat 16% per annum on the amount which was fixed with reference to the plots of land intended for allotment to the petitioners. It is also contended by the DDA that because the petitioners were also innocent, DDA had taken a lenient view of the matter and, therefore, the demand made by the DDA cannot be called in question by the petitioners. It is also contended by the DDA that because the petitioners were also innocent, DDA had taken a lenient view of the matter and, therefore, the demand made by the DDA cannot be called in question by the petitioners. The principle relied on is Actus curiae neminem grava Bit "an act of Court shall prejudice no man". But in the instant case, at the instance of a third party, an order, was passed by this Court and subsequently that order was vacated and that has caused prejudice to the petitioners and the D. D. A. The question is whether the D. D. A. can seek to take umbrage under this doctrine to sustain the impugned demand. ( 5 ) THE learned counsel for the DDA relied upon the decision in Delhi Development Authority v. Pushpendra Kumar Jain, JT 1994 (6) S. C. 292, wherein it has been laid down by the Supreme Court that the DDA is entitled to fix the price on the date of the communication of the letter of allotment and, therefore, when DDA has taken a sympathetic view it is not open to the petitioners to contend that there was any arbitrariness or unreasonableness on the part of the DDA in making the demand. ( 6 ) WE are reminded of the maxim summumjus summa injuria - extreme law is extreme injury. The rigour of the law untempered by equity is not justice but the denial of it. Lord Hobrt in Pits v. James, Hob 121 at page 125 observed as under : "i commend the Judge that seems fine and ingenius, so it tends to right an equity; and I condemn them that either out of pleasure to show a subtle wit will destroy, or out of incuriousness or negligence will not liable to support, the act of the party by the art or act of the law. " ( 7 ) IN Vol. 27 Amenean Jurisprudence 2nd Edn. at page 517, the principles is stated thus:- In a juridical sense, the term "equity" is employed usually in contradistinction to strict law, or strictum et summum jus. At page 518 it is stated "aristole defined the nature of equity to be the "correction of the law where. by reason of its universality, it is deficient. at page 517, the principles is stated thus:- In a juridical sense, the term "equity" is employed usually in contradistinction to strict law, or strictum et summum jus. At page 518 it is stated "aristole defined the nature of equity to be the "correction of the law where. by reason of its universality, it is deficient. " At page 522 "the jurisdiction of equity is dependent upon a number of factors, including the following:- 1 the matter in dispute, as being equitable in its nature: 2. the want of an adequate remedy at law:and 3. the relief involved or requested, as being equitable in character and available in equity. At page 685 under the caption where equities are equal, the law prevails the statement of law is in the following terms:- "a maxim declares that "where equities are equal, the law must prevail,"or that "where the equities of the parties are equal, the legal title must prevail. Thus, the parties being equally innocent and their equities being equal, equity will follow the law The meaning of the precept is that if two persons have equal equitable claims upon, or interests in, the same subject matter, or in other words, if each is equally entitled to the protection and aid of a court of equity with respect to his equitable interest, and one of them in addition to his equity has obtained also the legal estate in the subject matter, he who thus has the legal estate, will prevail accordingly, for example, it is held that in a suit by an innocent purchaser against the maker of a promissory note, where the equities of the parties are shown to be equal, the purchaser having the legal title is entitled to a favourable decree. " ( 8 ) A little exercise is required to trace the history of the evolution of the principles of equity to appreciate the question that has arisen in this case. In Lickbabrow vs. Mason, 1786 Vol. 2 T. R. page 64 = 100 E. R. 35 = 1 R. R. 425, Ashhurst J. put the principles in the following terms:- "we may lay it down as a broad general principle, that, wherever one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it. "this case was considered by the House of Lords in Farqvharson Brothers and Co. v. C. King and Co. , 1902a. C. page 325. The. facts briefly are that the appellants, who were timber merchants, warehoused with a dock company the timber they imported, and instructed the dock company to accept all transfer or delivery orders signed by their clerk. The clerk had their authority to make limited sales to their known customers. The clerk under an assumed name fraudulently sold timber of the appellants to the respondents, who knew nothing of the appellants or of the clerk under his real name, and who bought and paid the clerk for the timber in good faith. The clerk carried out the sales by giving the dock company orders for the transfer of timber into his assumed name, and then in that name giving delivery orders to the respondents. Earl of Halsbury L. C. was pleased to observe as under:- "this was a theft, and the thief could give no better title than he himself had, which was none. Therefore, it seems to me luce clarius that the appellants are entitled to succeed, and I move your Lordships to reverse the order appealed from with costs. "lord Macnagthen observed as follows:- "this defence, in my opinion, has no foundation in principle or authority. To try the principle, take a common case-a case which everybody understands. Nothing is better settled than this, that if a person buys a chattel and it turns out that the chattel was found by the person who professed to sell it, the true owner can recover his property,unless there has been a sale in market overt. The right of the true owner is not prejudiced or affected by his carelessness in losing the chattel, however gross it may have been. If I lose a valuable dog and find it afterwards in the possession of a gentleman who bought it from somebody whom he believed to be the owner, it is no answer to me to say that he never would have been cheated into buying the dog if I had chained it up or put a collar on it or kept it under proper control. If a person leaves a watch or a ring on a seat in the park or on a table at a cafe and it ultimately gets into the hands of a bona fide purchaser, it is no answer to the true owner to say that it was his carelessness and nothing else that enabled the finder to pass it off as his own. If that be so, how can carelessness, however extreme, in the conduct of a man s own business preclude him from recovering his own property which has been stolen from him?nor is the case without authority. In the Bank of Ireland v. Evans Trustees (1), in this House, the trustees, who were a corporate body, called upon the bank to replace stock sold under a forged power of attorney bearing the genuine impression of their corporate seal. The defence was that the carelessness of the trustees in the custody of their seal enabled their clerk to impose on the bank, and disentitled them to relief. The judges were consulted. Their unanimous opinion, which this House adopted, was delivered by Parke B. He thought that the negligence, if there was negligence, in the custody of the seal was only remotely connected with the transfer which the bank set up as good against the trustees; and then he proceeds in these words (2): "if such negligence could disentitle the plaintiffs, to what extent is it to go? If a man should lose his cheque-book, or neglect to lock the desk in which it is kept, and a servant or stranger should take it up. it is impossible, in our opinion, to contend that a banker paying his forged cheque would be entitled to charge his customer with that payment. Would it be contended that if he kept his goods so negligently that a servant took them and sold them. he must be considered as having concurred in the sate, and so be disentitled to sue for their conversion on a demand and refusal?" A somewhat similar contention was raised in the more recent case of Scholfield v. Lord oflondesborough. (3) It was argued (and the argument found favour with some judges) that everybody who accepts a bill of exchange owes a duty which was defined as "the duty not to be negligent as to the form of the bill. " That argument was rejected in this House. (3) It was argued (and the argument found favour with some judges) that everybody who accepts a bill of exchange owes a duty which was defined as "the duty not to be negligent as to the form of the bill. " That argument was rejected in this House. But in rejecting it both the Lord Chancellor and Lord Watson made observations of much wider application. The Lord Chancellor said (1): "i am not aware of any principle known to the law which should attach such consequences to a written instrument when no such principle is applicable in any other region of jurisprudence where a man s own carelessness has given opportunity for the commission of a crime. A man, for instance, does not lose his right to his property if he has unecessarily exposed his goods, or allowed his pocket-hand-kerchief to hang out of his pocket, but could recover against a bona fide purhaser of any article so lost, notwithstanding the fact that his conduct had to some extent assisted the thief. " And Lord Watson in his judgment says (2): "it is not consistent with the general spirit of the law to hold innocent persons responsible for not taking measures to prevent the commission of a crime which they may have no reason to anticipate. " My Lords, the rules of law applicable to this case are in my opinion well settled. And I would only venture to remind your Lordships of an observation made by Lord Cairns in this House (3) to the effect that in cases of this sort, where your Lordships have to perform the disagreeable duty of determining which of two innocent parties is to suffer by the fraud of a third, all your Lordships have to do is to apply the settled and well-known rules of law and apply them rigorously. " Lord Lindley put the matter thus:- "in the present case, in my view of it. Capon simply stole the plaintiff s goods and sold them to the defendants, and the defendants title is not improved by the circumstance that the theft was the result of an ingenious fraud on the plaintiffs and on the defendants alike. The defendants were not in any way misled by any act of the plaintiffs on which they placed reliance: and the plaintiffs are not, therefore, precluded from denying Capon s authority to sell. The defendants were not in any way misled by any act of the plaintiffs on which they placed reliance: and the plaintiffs are not, therefore, precluded from denying Capon s authority to sell. The question which the defendants pressed Mathew J. to leave to the Jury, and which the late Master of Rolls and Vaughan Williams L. J. thought ought to have been left to them-namely, "did the plaintiffs by their conduct enable Capon to hold himself out as the owner of the goods or as having the power to dispose of them?"- would, in my opinion, have been seriously misleading unless accompanied by explanations which would have taken out of it the element of error introduced by the word "enable". I feel very strongly the observation that if the defendants are right the Factors Acts would never have been wanted In my opinion, Mathew J. was quite right in leaving to the jury the question as he framed it: "did the plaintiffs so act as to hold Capon out to the defendants as their agent to sell goods to the defendants?" The verdict is unimpeachable, and it is fatal to the defendants. " In Commonwealth Trust Limited v. Akotey 1926 A. C. 72, the facts stated in the head note are as follows:- "the respondent, a grower of cocoa in the Gold Coast Colony, there consigned by railway 1050 bags of cocoa to L. to whom he had. previously sold cocoa. Before a difference as to the price had been settled, L. sold the cocoa to the appellants and handed the consignment notes to their agent, who reconsigned the cocoa to the appellants. The appellants bought in good faith and for the full price. The respondent sued the appellants in the Colony for damages for conversion. "lord Shah held as follows - "it was further argued before their Lordships that although the property in the cocoa had riot passed from the respondent, yet that the respondent had so acted as to estop him from setting up his title in answer to the claim of the appellants. Reliance was placed on the well-known statement of Ashhurst J. in Lickbarrow v. Mason (1), "that wherever one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the lost must sustain it. Reliance was placed on the well-known statement of Ashhurst J. in Lickbarrow v. Mason (1), "that wherever one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the lost must sustain it. " Their Lordships are clearly of opinion that the present is a plain case for the application of that principle. There is no kind of specialty in this case such as occurred in Farquharson Bros, and Co. v. King and Co. (2), the parallel to which would be that the goods were delivered to Laing by the fraudulent act of respondent s agent: the goods were in fact delivered over to Laing by the direct act of the respondent himself. To permit goods to go into the possession of another, with all the insignia of possession thereof and of apparent title, and to leave it open to go behind that possession so given and accompanied, arid upset a purchase of the goods made for full value and in good faith, would bring confusion into mercantile transactions, and would be inconsistent with law and with the principles so frequently affirmed, following Lickbarrow v. Mason". Vol. 2 T. R. 64 = 100 E. R. 35 = 1 R. R. 425. In R. E. Jones, Limited v. Waring and Gillow, Limited, 1926 A. C. 670, Viscount Cave L. C. held as follows:- "my Lords^ there is a great body of authority in favour of the view that. where a person to whom money has been paid by mistake has been misled by the payer s conduct, and on the faith of that conduct has acted to his own detriment, the payer cannot in law-as surely he cannot in fairness-insist on repayment. The well known dictum of Ashhurst J. in Lickbarrow v. Mason (1), that "wherever one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it," cannot now be treated as free from exception: but it still holds good as a general principle, and where the prayer has been guilty of anything which can be called negligence or indiscretion, there has been no hesitation in applying it: see per Lord Halsbury in Farquharson and Co. v. Kind and Co. . " 1902 A. C. 325. v. Kind and Co. . " 1902 A. C. 325. ( 9 ) IN Mercantile Bank ofindia Ltd. v. Central Bank of India Ltd. , A. I. R 1938 Privy Council 52 the Court had occasion to consider this question. Briefly stated the facts are the customers of two banks Mercantile Bank and Central Bank had loans facilities from both the banks. By pledging the goods with railway receipts he used to borrow money from both the banks. On one occasion he abused his position with Central Bank and borrowed money from the same security from the Mercantile Bank. Central Bank sued the customer and also the Mercantile Bank for conversion. The defence by the Mercantile Bank was "the plaintiff bank having placed C. K. N. and Sons in possession of the railway receipts without anything therein to indicate that the plaintiff bank had any interest therein or that C. K. N. and Sons were not the owners thereof, enabled C. K. N. and Sons to hold themselves out as the owners thereof and. thereby to pledge the said railway receipts for value with the defendant bank. who acted in good faith, and the plaintiff bank is therefore estopped from setting up itstitle against that of the defendant bank to the relative goods or their value. It was contended by the Mercantile Bank that on the basis of the principle enunciated by Ashhurst, J. in Lickbarrow v. Mason that Central Bank enabled the customer to commit fraud and, therefore, the loss should be borne by the Central Bank of India and the suit ought to have been dismissed. After referring to the cases right from Lickbarrow v. Mason upto 1926 A. C. 72, Their Lordships of the Privy Council observed:- "in their Lordships judgment, it cannot be said that the respondents owed any duty to the appellants in the matter. There was no relationship of contract or agency. They had no reason to think that the documents would ever be handed to the appellants. Mr. Miller s contention that estoppel does not depend on the existence of a duty is. in their Lordships judgment, refuted by the authorities already cited and many other like authorities which it is not necessary to cite. "their Lordships posited that the principle laid down in Lickbarrow v. Mason would not apply because the Central Bank did not owe any duty to the Mercantile Bank. in their Lordships judgment, refuted by the authorities already cited and many other like authorities which it is not necessary to cite. "their Lordships posited that the principle laid down in Lickbarrow v. Mason would not apply because the Central Bank did not owe any duty to the Mercantile Bank. ( 10 ) THE Supreme Court of India had occasion to consider the principles in New Marine Coal Co. (Bengal) Private Ltd. vs. The Union of India, AIR 1964 S. C. 152, Head Note (a) gives tersely the facts. "a contract entered into by A with the Government of India for the supply of coal to the Railway Administration in contravention of the provisions of S. 175 (3) of the Government of India Act, 1935 is void and unenforceable. But if in pursuance of the said void contract, A has performed his part and the Government of India has received the benefit of the performance of the contract by A, S. 70 Contract Act, would apply and the Government of India was bound to make compensation to A in the form of the value of the said coal under that section. "the Supreme Court dealt with the matter in the following manner:- "mukherji J. , thought that the principle laid down by Ashhurst J. in the case of Lickbarrow (1787) 2 T. R. 63 was a broad and general principle which applied to the facts in the present case. It may be conceded that as it was expressed by Ashhurst J. in the case of Lickbarrow, (1787) 2 T. R. 63 the proposition no doubt has been stated in a broad and general manner. Indeed, the same proposition has been affirmed in the same broad and general way by the Privy Council in Commonwealth Trust Ltd. Vs. Akotey, 1926a. C. 72. In that case, the respondent who was a grower of cocoa in the Gold Coast Colony, consigned by railway 1050 bags of cocoa to L, to whom he previously sold cocoa. Before a difference as to the price had been settled L. sold the cocoa to the appellants and handed the consignment notes to their agent, who reconsigned the cocoa to the appellants. The appellants bought in good faith and for the full price. The respondent then sued the appellants for damages for conversion. Before a difference as to the price had been settled L. sold the cocoa to the appellants and handed the consignment notes to their agent, who reconsigned the cocoa to the appellants. The appellants bought in good faith and for the full price. The respondent then sued the appellants for damages for conversion. It was held by the Privy Council that by his conduct the respondent was precluded from setting up his title against the appellants, and so, his claim was rejected. In support of the view taken by the Privy Council, reliance was placed on the well-known statement of Ashhurst J. , in the case of Lickbarrow, (1787)2 T. R. 63. and so. it may be conceded that the broad principle enunciated by Ashurst J. , received approval from the Privy Council. Subsequently, however, this question has been elaborately examined by the Privy Council in Mercantile Bank of India Ltd. Vs. Central Bank of India Ltd. . 65 Ind. App. 75 at p. 86: (AIR 1938 PC 52 at pp. 55-56 ). and the validity of the broad and general proposition to which we have just referred has been seriously doubted by the Privy Council. Lord Wright who delivered the Judgment of the Board, referred to the decision in the case of Lickbarrow. (1787) 2 T. R. 63 and observed: "that it may well be that there were facts in that case not fully elucidated in the report which would justify the decision: but on the face of it their Lordships do not think that the case is one which it would be safe to follow. "then reference was made to the opinion of Lord Summer in the case of R. E. Jones Ltd. V. Warring and Gillow Ltd. , 1926 A. C. 670 where the principle enunciated by Ashhurst J. , was not accepted, because it was held that the principle of estoppel must ultimately depend upon a duty. Lord Lindley similarly in Farquharson Bros. and Co. Vs. King and Co. 1902 AC 325 pointed out that the dictum of Ashurst J. was too wide. A similar comment has been made as to the said observation by other Judges to which Lord Wright has referred in the course of his judgment. It would thus be seen that in the case of the Mercantile Bank of India Ltd. , 65 Ind. App. 1902 AC 325 pointed out that the dictum of Ashurst J. was too wide. A similar comment has been made as to the said observation by other Judges to which Lord Wright has referred in the course of his judgment. It would thus be seen that in the case of the Mercantile Bank of India Ltd. , 65 Ind. App. 75 : (AIR 1938 PC 52), the Privy Council has seriously doubted the corectness of the broad observations made by Ashhurst J. in the case of Lickbarrow. (1787) 2 T. R. 63 and has not followed the decision in the case of Commonwealth Trust Ltd. 1926 A. C. 72. Therefore, it must be held that the decision of Mukherji J. , which proceeded on the basis of the broad and unqualified proposition encunciated by Ashurst J. in the case of Lickbarrow (1787) 2 T. R. 63 cannot be sustained as valid in law. There are two other decisions to which reference may usefully be made in considering this point. In Arnold V. Cheque Bank, (1875-76)1. C. P. D. 578 atp. 588. Lord Coleridge C. J. , in dealing with the question of negligence, observed that: "no authority whatever had been cited before them for the contention that negligence in the custody of the draft will disentitle the owner of it to recover it or its proceeds from a person who has wrongfully obtained possession of it. In the case before them. there was nothing in the draft or the endorsement with which the plaintiff had anything to do. calculated in any way to mislead the defendants. It was regularly endorsed, and was then enclosed in a letter to the plaintiffs correspondents, to be sent through the post. There could be no negligence in relying on the honesty of their servants in the discharge of their ordinary duty that of conveying letters to the post: nor can there be any duty to the general public to exercise the same care in transmission of the draft as if any or every servant employed were a notorious thief. "these observations illustrate how before invoking a plea of estoppel on the ground of negligence, some duty must be shown to exist between the parties and negligence must be proved in relation to such duty. "these observations illustrate how before invoking a plea of estoppel on the ground of negligence, some duty must be shown to exist between the parties and negligence must be proved in relation to such duty. Similarly, in Baxanale v. Bennett, (1878) 3 Q. B. D. 525 at p. 530 Bramwell L. J. , had occasion to consider the same point. In that case the defendant gave H. his blank acceptance on a stamped paper and authorised H. to fill in his name as drawer. He returned the blank acceptance to the defendant in the same state in which he received it. The defendant put it into a drawer of his writing table at his chambers, which was unlocked and it was lost or stolen. C. after-wards filled in his own name without the defendant s authority, and an action was brought on it by the plaintiff as endorsee for value. The Court of Appeal held that the defendant was not liable on the bill. Dealing with the question of negligence attributed to the defendant, Bramwell L. J. observed that- "the defendant may have been negligent, that is to say, if he had the paper from a third person, as a bailee bound to keep it with ordinary care, he would not have kept it in a drawer unlocked"but, said the learned Judge, this negligence is not the proximate or effective cause of the fraud. A crime was necessary for its completion, and so. it was held that the defendant was not liable on the bill. This decision shows that negligence must be based on a duty owed by one party to the other and must besides, be shown to have been the proximate or the immediate cause of the loss. " ( 11 ) IN Halsbury s Laws of England, 4th Edn. Vol. 16, the case of Lickbarrow v. Mason is noted under the Heading. Estoppel by Negligence in paragraph 1620 at page 1092, the statement of the law is in the following terms:- "much of the difficulty in applying the law of estoppel by negligence has arisen from a too literal acceptance of the broad principle laid down by Ashurst J in Lickbarrow v Mason (1787)2 Term Rep 63 at 70; on appeal (1793) 4 Bro Parl Cas 57. HL: "that wherever one of two inocent persons must suffer by the acts of a third, he who has enabled such person to occasion the loss must sustain it". That case turned not upon estoppel but upon the negotiable elements of bills of lading, by reason of which the property they represented (though not any contract) wastransferable by indorsement. but the decision might be supported on the ground of estoppel (indeed. Ashurst J, though hedoesnot use the expression, treats the bill of lading as being "negotiable by estoppel" just as the scrip was. according to the second ground of the decision negotiable in Goodwin v. Robarts (1876) Appcas476, HL ). the bill of lading having been issued by the shipper with the intention that it should be acted on by a purchaser from the consignee, and it having been acted on by him in the manner intended by the skipper. Having regard to the facts before the court, and to the rest of his judment. the principle was stated by Ashurst J with sufficient accuracy forthe purposes of that case, and it has been properly applied in many cases. On the otherhand, there have been occasions when a too literal acceptance of its terms has led to error, and the necessity for some qualification has been frequently recoignised. Lord Halsbury in Farquharson Bros and Co v King and Co. (1902) AC 325 at 332. HL, and Henderson and Co. v Williams (1895)1 QB 521 at 529, CA, evidently preferred the expression of Savage CJ in Root v French (1835)13 Wendell 570 at 572: "when one of two innocent persons must suffer from the fraud of a third, he shall sufferwho, by his indiscretion, has enabled such person to commit the fraud". The words in italics add an important qualification to the proposition laid down by Ashurst J, but it is apparent, having regard to the principles stated in the text and the numerous authorities referred to in the notes, that even in that form the sta^ment is not universally true. Probably the various conditions necessary to establish a case of estoppel by statement or by conduct cannot-be more-succinctly stated, having regard to the necessity of combining elasticity with precision, than in the Judgments of Parke B in Freeman v Cooke (1848)2 Exch 654, and Blackburn J in Swan v North British Australasian Co (1863)2 H and C 175, Ex Ch. Probably the various conditions necessary to establish a case of estoppel by statement or by conduct cannot-be more-succinctly stated, having regard to the necessity of combining elasticity with precision, than in the Judgments of Parke B in Freeman v Cooke (1848)2 Exch 654, and Blackburn J in Swan v North British Australasian Co (1863)2 H and C 175, Ex Ch. See also Mercantile Bank of India Ltd v Central Bank of India Ltd [1938] AC 287, [1938] All ER 52. PC". ( 12 ) THEREFORE, we have to analyse the facts of the instant case in the light of the principles adumbrated above and consider a case where both the parties are absolutely innocent and nothing could be attributed to them forthe present situation a^d work out the equities between the parties. ( 13 ) THE argument on behalf of the petitioners is that various allottees had received demand cum allotment letter from the DDA in 1991 calling upon them to pay a sum of about Rs. 60,0007- towards the total premium of plot but they were asked to pay nearly Rs. 95,000. 00without any justification whatsoever. As noticed earlier, the DDA takes the position that the demand-cum-allotment letters could not be issued to the petitioners in respect of the plots because there was an order of injunction issued by this Court restraining the DDA from making any allotment. The DDA took all steps to move this Court to vacate the order of injunction and that process had taken sometime and soon after the order of injunction was vacated the demand-cum-allotment letters have been issued to the allottees. To appreciate the contentions, the facts have to be stated. ( 14 ) ROHINI Scheme was promulgated by DDA in the year 1980-81 for allotment of plots to persons belonging to Economically Weaker Sections: persons tailing in Lower Income Group and Middle Income Group. The Scheme stipulated that as a measure of socialjus tice the layout of the residential areas has been planned to give as much as 97% plots to economically weaker sections and low and middle income groups The total annual income of the indeividuai from all sources including the incoime of his wife/ her husband and minor children as per the Scheme was :-The provisional rates of land as given in the Scheme ranged from Rs. 10o/ - to Rs. 200. 00 per sq. 10o/ - to Rs. 200. 00 per sq. meter depending upon the category of the individual. The provisional rates of land for those falling in the category of MIG as per Scheme was Rs. 200. 00per sq. meter. The said rates were. however, subject to revision from time to time at the discretion of the DDA. In 1981 the applicants were asked to pay a sum of Rs. 5. 000. 00 as registration fee. On or about 26. 3. 81 each of the petitioners had deposited Rs. 5,000. 00 with the DDA. The DDA had promised to allot 90 sq. meters of plot to the petitioners but subsequently it was reduced to 60 sq. meters. That reduction is not challenged, as it is as per the Scheme announced by the DDA. The DDA asked for the consent of the applicants for 60 sq. meters in the place of 90 sq. meters. On March 11, 1991 the petitioners had given their consent. In 1988 a priority list was published by the DDA. On March 27, 1991 a draw is held and it is called the 6th draw. The petitioners were successful in the draw and they became entitled to the issuance of demand-cum-allotment letters. On April 6,1991 the DDA announced the allotment of plots to the various persons as a result of the draw held on March 27. 1991. It was categorically stated that the allotment letters will be issued after September 24, 1991 and physical possession of the plots, so allotted, is likely to be handed over to the allottees after one year i. e. on April 20. 1992. In paragraph 15 of the petition, it is stated as follows :- "that the respondent on the basis of draw held on 27. 3. 91 issued demand cum allotment letter on 12. 11. 91 (Annexure G ). many other letter requiring the allottees to deposit a sum of Rs. 51. 307 88 in the following manner- ( 15 ) IT is stated in the writ petition that on April 23. 1991 (Annexure G-1) a letter was written by the petitioner to the DDA informing the DDA about the change of address. On January 21,1993 (Annexure G-2) petitioner wrote to the DDA stating "further so far, I have not received your demand letter in respect of plot No. 30 allotted to me in Sector 24 Pocket No. 22. 1991 (Annexure G-1) a letter was written by the petitioner to the DDA informing the DDA about the change of address. On January 21,1993 (Annexure G-2) petitioner wrote to the DDA stating "further so far, I have not received your demand letter in respect of plot No. 30 allotted to me in Sector 24 Pocket No. 22. It is requested that further correspondence may kindly be made on the above given address". It is the case of the petitioner that he visited the office of the DDA on many occasions and he was assured that demand- cum-allotment letter would be issued shortly. On November 2. 1993 (Annexure H), the DDA wrote to the petitioner asking him to meet the Assistant Director (LSB) Rohini on any working day between 10 A. M. to 5 P. M. within three days from the date of issue of the letter for certain clarification in regard to the allotment. On November 4. 1993 the petitioner visited the office of the respondent DDA. On that date the office of the respondent handed over the demand-cum-allotment leter No. M/9/22259/lsb (Rohini) File No. F025 (1863)91-93lsb (Rohini) mentioning the date of draw as 27. 3. 93 and according to the petitioner he was asked to pay the amount as calculated as under and if the payment is not made in the prescribed manner the allotment shall automatically stand cancelled:-It is the case of the petitioners that the date of draw has deliberately been mentioned as 27. 3. 93 in stead of 27. 3. 91. The case of the petitioners is that the demand made by the DDA is not at all sustainable in law and there was no fault on the part of the petitioners and the petitioners cannot be saddled with the burden of paying nearly twice the amount that he was obliged to pay if the demand had been issued earlier. On these averment, the petitioners pray for:- "issue a writ order of direction in the nature of Mandamus or in any other writ. order or direction quashing the demand as contained in Annexure I in the sum of Rs. 86. 326. 64 and directing the respondents to accept payment which was the rate to be charged as mentioned in the brochure or alternatively not more than at the rate charged from other allottees on the basis of the draw held on 27. 3. order or direction quashing the demand as contained in Annexure I in the sum of Rs. 86. 326. 64 and directing the respondents to accept payment which was the rate to be charged as mentioned in the brochure or alternatively not more than at the rate charged from other allottees on the basis of the draw held on 27. 3. 91 as evidenced by Annexure G. " ( 16 ) THE DDA filed counter contending, inter-alia, that the drawwas held on 27. 3. 91, that on 6. 4. 91 in respect of MIG Category under the General Category of Rohini Residential Scheme the priority Nos. 216 to 1420 have been included in the draw of lots and have been allotted plots and letters could be issued after 20. 4. 91 though possession shall be handed over after one year. In paragraph F, the DDA explained the difficulties in the following term:- "however, before the allotment letter in favour of the petitioner could be issued there were several stay orders which were obtained by the land owners restraining the authority from making allotment of plots in Rohini particularly Sectors 23 and 24. These stay orders were made in Civil Writ Petitions No. 744. 745, 746. 3322. 3323 and 3392 of 1991. The petitioner who had been successful in respect of allotment of a plot in Sector 24 could not be issued the demand- cum-allotment letter because of the stay orders that had been granted by the Hon ble High Court. The matter relating to issue of demand cum allotment letter was beyond the control of the respondent because of restraint in respect of allotment of plots. "the DDA justified its demand in the following manner in paragraph G of the counter:- "immediately on vacation of the stay orders the matter regarding demand-cum-allotment letters and at what rate the same should be issued was taken up for consideration by the DDA. The matter was placed before the authority for fixing the land rates of Rohini Phase- Ill. and under the said costs benefit analysis the rate determined on the basis of the pure analysis in respect of. land for the year 1993- 94 was worked out at Rs. 2. 675. 29 ps. per sq. mtr. The said rates are being notified for allotment of plots in 1993-94 for Rohini. "it is stated by the DDA that as a special case. land for the year 1993- 94 was worked out at Rs. 2. 675. 29 ps. per sq. mtr. The said rates are being notified for allotment of plots in 1993-94 for Rohini. "it is stated by the DDA that as a special case. taking a very considerate view in stead of the rates determining on the basis of pure analysis as pre-determined rate for 1993-94 in respect of allotment of lands at Rohini it was decided to issue demand- cum-allotment letters on the basis of the rates prevailing on the date of the draw with ihterest at 16. 62% per annum for the intervening period of three years and the rate of interest has been determined on the basis of average costs index rise. It is further stated that this was done only in respect of 2088 plots in respect of which a draw had already been held. But demand-cum-allotment letters could not be issued because of the injunction order granted by this Court. Mr. Ravinder Sethi, learned senior counsel gave us the following dates:- ( 17 ) ON, March 5, 1991 notice in Hindustan Times was issued regarding the holding of draw. On March 27. 1991 draw was held for allotment. On April 4, 1991 the land owners filed Civil Writ Petitions No. 744 to 746 challenging the notifications issued for acquiring te land. On April 8. 1991 ad-interim injuntion was granted by this Court in the writ petition. On April 8, 1992 the injunction order was vacated by this Court. . The S. L. P. filed by the land owners were dismissed by the Supreme Court in November 1992. According to the DDA. it was after the orders by th. e Supreme Court the cases for the allotment of plots were processed by the DDA. It is stated by the DDA that the allottees, i. e. the petitioners, have been issued demand-cum-allotment letters at Rs. 1,579. 71 ps. per sq. mt. in stead of the pre-determined in force at the relevant time of Rs. 2,675. 29. Therefore, according to the DDA there was no default on the part of the DDA in issuing demand-cum-allotment letters and as per the decision of the supreme Court in DDA v Pushpender Kumar Jain, the law laid down is that the relevant rate applicable for fixing of price of plot is only the issuance of the demand-cum-allotment letter. 2,675. 29. Therefore, according to the DDA there was no default on the part of the DDA in issuing demand-cum-allotment letters and as per the decision of the supreme Court in DDA v Pushpender Kumar Jain, the law laid down is that the relevant rate applicable for fixing of price of plot is only the issuance of the demand-cum-allotment letter. ( 18 ) AS the decision of the Supreme Court is relied on by the DDA, which is distinguishable on facts, it is necessary to note the facts of the case. The DDA prepared and published a scheme called Registration Scheme of new pattern 1979 of intending purchasers of flats, to be constructed by DDA providing the procedure for allotment of flats constructed by it. Clause 11 of the "scheme, issued as a brochure says that "in case of flats allotted under Hire Purchase basis, the cost of the land plus 20% of the balance cost of the flat will be recovered as initial deposit at the time of allotment and balance amount will be recovered in monthly instalments spread over a period. of 7 years in case of M. I. G. , 10 years in case of L. I. G. and 15 years in case of Janta flats". Clause (14) says that "it may please be noted that the plinth area of the flats indicated and 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. " ( 19 ) NATURALLY, when the DDA had undertaken the construction of the flats there is bound to be a time lag between the date of the registration of the application and the allotment and the date of the application of the allotment and the date of draw and the actual issuance of demand-cum-allotment letter. Therefore, in our opinion. the DDA cannot rely as a matter of law that the ratio in the case in DDA v. Pushpender Kumar Jain would govern the instant case. That case turned on its own facts and has no application to the peculiar facts and circumstances of the instant case. Therefore, in our opinion. the DDA cannot rely as a matter of law that the ratio in the case in DDA v. Pushpender Kumar Jain would govern the instant case. That case turned on its own facts and has no application to the peculiar facts and circumstances of the instant case. It is also not known whether the fact that prior to the order of ad-interim injunction passed by this court it was brought to the notice of this Court that demand-cum-allotment letters had been issued by the DDA to a few allottees. In any case, ultimately the DDA had pursued the matter and got the injunction order vacated. The DDA cannot. however, attribute any latches or delay or any default on the part of the petitioners. And, as noted above, there is no fault on the part of the DDA also. We are to bear in mind the maxim a Soul Populi Est Suprema Lex; regard for the public welfare is the highest law. DDA being a public authority acting under the ageis of the Central Government and State Government, we can not ignore the relevancy of the maxim Necessitas Publica Major Est Quam Pravata - public necessity is greater than private. Therefore, the petitioners cannot contend that the DDA cannot charge any interest at all. Under these circumstances, having regard to the equitable principles adverted to above, a tertium quid - a via media - has to be worked out. However, in law the DDA cannot be allowed, in our view, to charge interest at 16. 62% per annum having regard to the class of people involved in the matter as allottees. According to DDA also the petitioners would have in usual course got the land at 1990-91 rates but on account of stay order, they could not be allotted the land. After vacation of stay order allotments were made by issue of letters in 1993. The result was that the DDA was deprived the use of the amount which remained with the allottees who were also deprived of possession of the plot and delay is also likely to result in increase in cost of construction. The Scheme was framed as a measure of social justice. Considering the station in life to which the petitioners belong and balancing the equities, it would not be just. fair and reasonable to add 16. The Scheme was framed as a measure of social justice. Considering the station in life to which the petitioners belong and balancing the equities, it would not be just. fair and reasonable to add 16. 62% interest on land rates of 1991, to arrive land rates for 1993 for the petitioners. The DDA is giving to the petitioners interest at 7% on the amount of Rs. 5,000. 00. Considering peculiar facts of the case. we feel it will be equitable if the DDA is directed to issue demand-cum-allotment letters to the petitioner and the persons similarly situated and demand therein interest@ 7% per annum for the intervening period from 1991 to 1993-94. Accordingly, the writ petition is allowed, quashing the demand of the sum of Rs. 83,326. 64 in the letter dated November 4. 1993 and a Mandamus is issued to the DDA to issue demand-cum-allotment letters claiming the rate of interest at 7% per annum on the amount of premium of plot as in 1991. Further, in our view it would not be just and reasonable if the petitioners are given by the DDA credit of interest on sum of Rs. 5. 000 - only upto 1991. We direct. DDA to give also credit to petitioners on intrerest account of Rs. 5. 000. 00 upto the date of issue of impugned letters of demand. We also direct that interest should not be added to the premium amount but claimed under a seperate head in the demand letters to be now issued since, to our mind, addition of interest to the amount of premium of land, may result in petitioners having to pay at a later stage higher amounts by way of lease money, ground rent and even House Tax. The demand letters in terms of this judgment shall be issued within a period of three months. The possession of the plots shall be delivered to the petitioners within four weeks from the date of intimation of payment of the amount by the petitioners. It is made clear that no interest shall be charged by the DDA from the date of the letter impugned and the date of issue of fresh demand letter. This judgment disposes of the other connected writ petitions also. There shall be no order as to costs.