O P SINGH v. CHAIRMAN GORAKHPUR DEVELOPMENT AUTHORITY GORAKHPUR
2003-08-25
MARKANDEY KATJU, R.S.TRIPATHI
body2003
DigiLaw.ai
M. KATJU, J. By means of this petition the petitioner has prayed for a writ of certiorari to quash the impugned order dated 27-8-1998 Annexure-9 to the writ petition to the extent that it directs realization of additional payments from the allottees/buyers of plots in the 3rd phase of the Rapti Nagar Awasiya Yojna on the basis of fresh costing after remand of the matter by the High Court. 2. Heard learned Counsel for the parties. 3. In the year 1989 the Gorakhpur Development Authority (hereinafter called GDA) floated a scheme called Rapti Nagar Awasiya Yojna. Details of the scheme regarding sale of different types of plots are contained in the information brochure copy of which is Annexure-1 to the writ petition. According to the brochure the average estimated selling price of the plots was Rs. 20 per sq. ft. It was mentioned that the actual price would be intimated before delivery of possession and difference between the estimated price and the actual price had to be paid by the allottee before taking possession. 4. It is alleged in paragraph 4 of the writ petition that by letter dated 1-5-1989 the petitioner and another were informed that rental cost worked out to 19. 50 per sq. ft. vide Annexure-2 to the writ petition. The petitioner applied for allotment of a plot in the 3rd phase of the Yojna and following the draw of lots on 28-12-1990 the petitioner was allotted plot No. 18 measuring 240 sq. mts. in the Doctors Enclave by letter dated 3-12-1990. 5. The petitioner was informed by the GDA that he has been allotted the aforesaid plot and the total cost of the same was Rs. 55,541. 85p. He was asked to complete the formalities regarding taking possession vide Annexure-3 to the writ petition. Another letter dated 12-12-1990 was issued by the respondent No. 3 to the petitioner informing him that he had been allotted plot No. 18 at the Doctors Enclave in the Yojna and he should take possession of the plot by 15-12-1990 failing which he has to pay supervision charges vide Annexure-4 to the writ petition. In pursuance of that letter the petitioner was given possession of the plot on 12-12-1990 vide deed of possession Annexure-5 to the writ petition. It is stated in paragraph 9 of the petition that the petitioner was put in possession of plot No. 18 measuring 240 sq.
In pursuance of that letter the petitioner was given possession of the plot on 12-12-1990 vide deed of possession Annexure-5 to the writ petition. It is stated in paragraph 9 of the petition that the petitioner was put in possession of plot No. 18 measuring 240 sq. mts. on 12-12-1990 against payment of full consideration and in fact the petitioner has paid in excess. Thereafter, a regular lease deed in respect of the aforesaid plot was executed by the Gorakhpur Development Authority on 22-5-1993 vide Annexure-6 to the writ petition. 6. In paragraph 11 of the petition it is stated that thereafter, the petitioner submitted a map/layout plan for construction of a residential house on the said plot and the same was approved by the GDA. The petitioner began construction also. Thereafter, the State Government by an order dated 10-5-1995 and 24-5-1995 decided that lease land given by various development authorities would be converted to free hold property on demand of 2% of the price of the property. It is alleged in paragraph 13 of the petition that the petitioner has already deposited 10% of the price as lease rent though he had to deposit only 2% and hence, the balance was excess deposit. Thereafter, the lease deed was converted into free hold deed dated 18-5-1996 vide Annexure-7 to the writ petition. It is alleged in paragraph 14 of the petition that thus the entire transaction between the GDA and the petitioner stood finally completed and the petitioner became full owner of the property free from all encumbrances. 7. In paragraph 16 of the petition it is alleged that a large number of applicants for plots in the IIIrd phase of the Yojna who had been issued allotment letters were issued demand notices in the year 1992 informing them the exact plot number (situate not in the IIIrd phase, but in the IVth phase of the scheme) asking them to deposit money at the rate of Rs. 35 sq. ft. instead of the Rs. 20 or Rs. 19. 50 sq. ft. Aggrieved by this enhancement several writ petitions were filed in this Court, which were disposed of by a common judgment dated 3-9-1997 copy of which is Annexure-8 to the writ petition. By this judgment the matter was sent back to the Commissioner, Gorakhpur who was directed to decide their representations within four months. 8.
19. 50 sq. ft. Aggrieved by this enhancement several writ petitions were filed in this Court, which were disposed of by a common judgment dated 3-9-1997 copy of which is Annexure-8 to the writ petition. By this judgment the matter was sent back to the Commissioner, Gorakhpur who was directed to decide their representations within four months. 8. It is alleged in paragraph 20 of the writ petition that the present petitioner had no connection with the aforesaid proceedings as he has been given possession of the allotted land on 12-12-1990 and subsequently lease was executed in his favour which was converted into free hold land on 18-5-1996 and the transaction between the petitioner and the GDA was completed. The petitioner was not among the petitioners before the High Court. Thereafter, the matter was decided by the Chairman, GDA on 27- 8- 1996 vide Annexure-9 to the writ petition. The Chairman, GDA upheld the demand of Rs. 35 sq. ft. which was made by the GDA and he also observed that some allottees like the petitioner in the IIIrd phase had erroneously been given plots @ Rs. 19. 50 p. sq. ft. The land had been given to the GDA by the Special Land Acquisition Officer after completion of land acquisition proceedings and the land was developed by the GDA and allotted @ Rs. 19. 50 p. Since the file containing the costing details was not available in the office of the GDA a fresh costing exercise was undertaken on the basis of the award passed in the land acquisition proceedings and the development costs reckoned at the then prevailing rates and accordingly a fresh costing was done and a fresh demand notice was issued directing the petitioner and the others to deposit the difference between the old and the new rate recommended by the Chairman, GDA. Aggrieved this writ petition has been filed. 9. A counter-affidavit has been filed by the GDA. 10. In paragraph 4 of the same it is stated that the GDA provides developed plots and houses in different categories on no profit and no loss basis. The land is acquired under the Land Acquisition Act and developed by the authority according to the master plan. Funds are obtained on loan from the Government or Financial Institutions/corporations, which have to be repaid after the sale of the land or houses.
The land is acquired under the Land Acquisition Act and developed by the authority according to the master plan. Funds are obtained on loan from the Government or Financial Institutions/corporations, which have to be repaid after the sale of the land or houses. In paragraph 8 of the same it is stated that the GDA made allotments of the land on the basis of the estimated costing at the time of allotment, and at the time of final costing the cost was determined at Rs. 35 sq. ft. in the year 1992 and accordingly demand notices were issued to the allottees giving them option either to take the refund of the amount deposited by them with 10% interest or pay the balance between the estimated price of Rs. 19. 50 p. sq. mts. and the final cost of Rs. 35 per sq. ft. Since the file of the earlier costing was not traceable the Chairman directed the authority to do a fresh costing prevalent at the time when the scheme was completed. The GDA worked out the cost once again keeping the considerations as were prevalent at that time i. e. , in the 1989-90. The costing of the land was made on the basis of the guidelines issued by the Government without earning any profit. Earlier the land was allotted at a lesser rate but the authority cannot afford to acquire the land and develop the same at a higher cost but sell it at a lower cost. At the time of delivery of possession to the allottees on deposit of the amount as per the demand it was made clear to them that the deposit is always subject to increase or decrease as the case may be at the time of overall costing. Accordingly, a number of documents were executed including one copy of which is Annexure-13 to the writ petition. The conditions mentioned there is that the price is only an estimated price, which can increase or decrease. It is stated in paragraph 17 of the counter-affidavit that the demand is based on consideration of the relevant factors including the acquisition cost, development charges and establishment charges etc. which are liable to be paid by the allottee.
The conditions mentioned there is that the price is only an estimated price, which can increase or decrease. It is stated in paragraph 17 of the counter-affidavit that the demand is based on consideration of the relevant factors including the acquisition cost, development charges and establishment charges etc. which are liable to be paid by the allottee. In paragraph 23 of the same it is stated that the authority works on no profit and no loss basis and cannot be made liable to bear loss on the transactions. Most of the allottees have accepted the order of the Commissioner and it was reasonable. In paragraph 24 of the same it is stated that in the brochure it is mentioned that the price is an estimated price. 11. On the facts of the case we find no merit in this petition. As stated in the counter-affidavit, the GDA has to arrange funds from the Government or Financial Institutions/corporations and has to repay the loan with interest after the land is sold/transferred. Obviously, the authority cannot be made to function at a loss. In fact it is working in the public interest and giving land/house on no profit and no loss basis. It appears that the Chairman GDA after detailed consideration found that the earlier costing was not correct. The GDA is a public body and function s on public money and cannot be asked to work at a loss. Clause 4 of the brochure, which is Annexure-1 to the writ petition, clearly states that the price is only an estimated price. 12. In Dr. Barthakur and others v. Ghaziabad Development Authority, Ghaziabad, 2003 (52) ALR 339, a Division Bench of this Court upheld the contention that the initial cost was only tentative. In Bareilly Development Authority and another v. Ajay Pal Singh and others, 1989 (2) SCC 116 , the Supreme Court held that in the brochure of the authority there was a right to enhance the cost and hence the revision of the cost was justified. In Sanjay Place Group Housing Association v. Agra Development Authority and others, 1992 (2) SCC 426 , it was held that even after delivery of possession of the flats on full payment of the cost the Development Authority can make additional demands.
In Sanjay Place Group Housing Association v. Agra Development Authority and others, 1992 (2) SCC 426 , it was held that even after delivery of possession of the flats on full payment of the cost the Development Authority can make additional demands. In Indore Development Authority v. Sadhna Agarwal (Smt.) and others, 1995 (3) SCC 1 , the enhancement of the cost was held to be justified. In Shimla Development Authority v. Asha Rani, 1996 (8) SCC 487 , a similar view was taken. 13. As regards the demand of 6% per annum interest on the difference between the original and estimated price, in our opinion this demand is also valid. In this connection it may be stated that there is a mis-conception about interest. Award of interest is not a penalty or punishment at all. Interest is the normal accretion on capital. Money doubles every six year (due to compound interest ). To give an illustration if A had to pay B a sum of Rs. 100 in the year 1991 but he pays it in the year 2003 then he should also be asked to pay the interest thereon during this period of 12 years. This is because Rs. 100 in the year 1991 becomes Rs. 200 after six years and it becomes Rs. 400 after 12 years (because of interest ). Hence, if A pays only Rs. 100 to B in the year 2003, which he was liable to pay in the year 1991, then in fact A has pocketed the sum of Rs. 300 which he has earned as interest on the sum of Rs. 100. Had A paid Rs. 100 to B in the year 1991 then that amount would have became Rs. 400 in the hands of B by the year 2003. Hence in all fairness B should be ordered to pay Rs. 400 to A in the year 2003 because he has wrongly retained the sum for 12 years. 14. In view of the reasons given above there is no merit in this petition and it is dismissed. Petition dismissed. .