Mukundakam Sharma, J.@mdashThis order shall dispose of the application registered as R.A. No. 8561/2000 as also C.M. No. 8561/2000 which are filed by the respondent-DDA praying for review of the order dated 4th April, 2000.
2. It is stated in the application that there was concealment of material facts by the petitioners while fling the application C.M. No. 6012/97 which has resulted in passing the aforesaid order dated 4th April, 2000. It is stated that due to the aforesaid order, grave and irreparable loss would result to the respondent and that the said order would have a far reaching effect as the same would be cited against the D.D.A. in all cases where allottees commit breach of the terms of the letter of allotment.
3. The writ petition was filed in this court challenging the notification dated 21st October, 1992 issued by the respondent No.2 and also the virus of Rule 41A of the Delhi Cooperative Societies Rules, 1973 on the ground that the price of the land to be allotted was on the higher side than the normal rate and that the said demand of the price of the land made by respondent No.1 was illegal and arbitrary. Similar writ petitions were also filed in this Court wherein also challenge was made to the fixation of pre-determined rate of land in the Dwarka Project and also challenging the validity of Rule 41A of the Delhi Cooperative Societies Rules. When the present writ petition was filed by the petitioners, notice was issued on the said petition and on the interim application filed it was ordered that without prejudice to the rights and contentions of the parties it would be equitable and just at that stage to direct the petitioners to pay the amount of their first Installment calculated at the rate of Rs.97/- per square metre within ten days from the passing of the said order dated 18th December, 1992 in view of the statement made that due to disturbances in the city they were unable to encash their cheques. It was also observed that the balance amount which is to be paid by the petitioners to the respondent would be decided when the writ petition is heard. All the writ petitions including the present writ petition which were connected and wherein similar challenges were made were taken up for hearing by the Division Bench of this Court and by judgment and order dated 31st March, 1993 it was ordered as follows:-
"Reliefs
For the aforesaid reasons we hold and direct that :
(a) as far as pre-1983 Cooperative Group Housing Societies are concerned, viz., Civil Writ Petition Nos. 4184/92, 4396/93 and 767/93, same are allowed and the revised demand and fresh letters of allotment issued to them by the respondents at the rate of Rs.1650.65 per sq. mtr. are quashed and subject to the terms of their letters of allotment they will be liable to pay at the rate of Rs.975/- per sq.mtr.
(b) the challenge to the pre-determined rate of Rs.1650.65 per sq.mtr. made by the other Cooperative Group Housing Societies who were registered in 1983 and thereafter fails.
(c) we hold that the provisions of Rule 41A of the Delhi Cooperative Societies Rules are ultra virus and bad in law and the cooperative societies are at liberty to fill up their vacancies ignoring the said rule.
(d) as far as the Cooperative Group Housing Societies are concerned, it is the Lt. Governor, who is the head of Administration, who had framed the illegal rule which prevented the vacancies from being filled and consequently, resulted in payment being not made to the D.D.A. The rate of Rs.1650.65 per sq. mtr. had been valid up to 31st March, 1993. As the demand raised at this rate could not be paid by the cooperative societies because of an illegal rule, viz., Rule 41A, it will be just and proper to extend the time so as to enable the cooperative societies to fill up the vacancies and to make the payment as demanded. We, Therefore, direct that petitioners and other cooperative societies who are similarly situate will be entitled to make the payments, as had originally been demanded @ Rs.1650.65 per sq.mtr. by 30th April, 1993 without incurring any other liability including interest.
There will be no order as to costs."
4. By the aforesaid judgment and order the present writ petition was also disposed of. The petitioners were governed by the directions contained for the post 1983 cooperative group housing societies. So far pre-1983 cooperative group housing societies are concerned, the direction was that the revised demand and fresh letters of allotment issued to them by the respondents at the rate of Rs.1650.65 per sq.mtr. stood quashed and it was held that in their case they were required to pay at the rate of Rs.95/- per sq.mtr. The challenge, however, to the pre-determined rate of Rs.1650.65 per sq.mtr. made by the other cooperative group housing societies which were registered in 1983 and thereafter was rejected by the Division Bench. However, in their cases it was ordered that as the demand raised at that rate could not be paid by the cooperative societies it would be just and proper to extend the time for payment so as to enable the cooperative societies to fill up the vacancies and to make the payment as demanded. In terms of the aforesaid observations it was ordered that the cooperative societies who were similarly situated would be entitled to make the payments as had originally been demanded, i.e., at the rate of Rs.1650.65 per sq.mtr., by 30th April 1993 without incurring any other liability including interest. I am informed during the course of arguments on this petition that the matter had gone to the Supreme Court and that pursuant to the order of the Supreme Court time for making payment stood extended by another two/three months and, Therefore, the said period for making payment by orders of the court stood extended till July 1993.
5. Therefore, in the case of petitioners being a post-1983 cooperative group housing society the writ petition stood dismissed but the time for making payment of the amount at the rate of Rs.1,650.65 per sq.mtr. stood extended till July 1993. The letter of allotment to the petitioners is dated 2nd November 1992 whereby a plot of land measuring approximately 7500 sq. metres in Dwarka Phase-I was allotted to the petitioners. According to the terms and conditions of the said allotment, the petitioners were required to deposit an amount of Rs.43,32,956.55, being an amount comprising of the earnest money of 10% and the premium of the plot equivalent to 25%, within 45 days of the letter. Clause II of the letter of allotment was to the following effect:-
"II. In case you fail to deposit the part premium and earnest money as demanded above and/or the balance premium as and when demanded as Para 2 above, the earnest money deposited by you shall stand forfeited."
Pursuant to the aforesaid clause, the petitioners deposited the sum of Rs.22,00,000 by challan dated 2nd November, 1992. Thereafter, the writ petition was filed in this court wherein an interim order was also passed. However, even thereafter the petitioners did not deposit the balance amount of Rs.3,59,375/- even in terms of the interim order passed by this court and instead wrote a letter dated 28th December, 1992 to the D.D.A. contending inter alias that the balance amount of Rs.3,59,375/- in terms of the court order would be deposited within two weeks. They, Therefore, sought for extension of time for depositing the said balance amount of Rs.3,59,375/- by two weeks. By a subsequent letter written on 12th August, 1993 the petitioners stated that the had deposited an amount of Rs.22,00,000 on 28th December, 1992 as part payment of the purchase money of the land and that the balance amount could not be deposited because some of the members of the society were not interested to get the said land at the rate of Rs.1650/- pr sq.mtr. In that view of the matter, the petitioners sought refund of the aforesaid amount of Rs.22,00,000 which was deposited by the society with the respondent-DDA. The writ petition was also dismissed subsequently but time for making payment of the said amount was extended as stated hereinabove. The petitioners did not make any payment to the respondent even despite the said order. Subsequently, an application, being C.M. No. 6012/1997, was filed in this Court by the petitioners praying for refund of the amount deposited by them with the D.D.A. pursuant to the orders of the court in view of dismissal of the writ petition. The said application was taken up for consideration on 4th April, 2000 when there was a strike of the lawyers in the High Court. Therefore, proxy counsel for the petitioners appeared on the said date and the D.D.A. was represented by its senior law officer. When the matter was called out the said proxy counsel was heard on behalf of the petitioners and the senior law officer of the D.D.A. was also heard. The D.D.A. did not file any reply to the said application despite the fact that last opportunity was granted to the respondent on 9th February, 2000. Accordingly, Therefore, the court proceeded to dispose of the said application in absence of a reply to the application. It was observed that the said amount of Rs.22,00,000/- was deposited by the petitioners with the D.D.A. pursuant to the orders of this Court and that since no land was allotted in favor of the petitioners they would be entitled to get back the said amount deposited by them with the D.D.A. In terms of the aforesaid observations, a direction was issued to the D.D.A. to refund the aforesaid amount deposited by the petitioners with the D.D.A. pursuant to the orders of this Court with interest in terms of the policy of the D.D.A. Being aggrieved by the said order and the direction issued, the respondent-DDA has filed the present applications seeking for review of the said order dated 4th April, 2000.
6. It is pointed out that the aforesaid amount of Rs.22,00,000/- was not deposited pursuant to the orders of this Court but the same was deposited much prior to the interim order passed by this Court in the writ petition. It was also pointed out that the said amount of Rs.22,00,000/- was deposited by the petitioners with the D.D.A. in terms of the letter of allotment and the same only comprised a part payment and not the entire amount as required to be paid in accordance with the terms and conditions of the letter of allotment. It is also pointed out that even despite the interim order passed by this court the balance amount was not deposited. The writ petition also came to be dismissed. Even despite the said fact the liberty to pay the balance amount as given in the said order was also not availed of by the petitioners and, Therefore, the petitioners were not entitled to claim refund of the amount by filing an application of the nature particularly after the amount is forfeited by the respondent in terms of the letter of allotment. It is also pointed out by the applicant-DDA that an amount of Rs.12,37,987.50 was forfeited out of the total amount of Rs.22,00,000/- which was deposited by the petitioners with the respondent on 20th December, 192 and the balance amount was repaid to the petitioners. It was submitted that the aforesaid amount of Rs.12,37,987.50 stood forfeited in accordance with the terms and conditions of the letter of allotment and the same cannot be refunded back nor could be claimed by the petitioners. On the aforesaid pleas raised by the applicant/respondent, I have heard the learned counsel appearing for the petitioners as also the learned counsel appearing for the D.D.A.
7. The writ petition filed by the petitioners was dismissed but giving a benefit to the petitioners to pay the balance amount within the extended time, which was ordered to be deposited by July 1993. The pre-determined rate of Rs.1650.65 which was demanded from the petitioners under the letters of allotment was, however, upheld by the Division Bench of this Court. It is to be also noticed that during the pendency of the writ petition in this Court and even despite the interim order passed by the Division Bench of this court, the petitioners did not deposit a single paisa with the respondent. The amount of Rs.22,00,000/- was deposited by the petitioners prior to the filing of the writ petition. It was deposited in terms of and to avail of the benefit flowing from the letter of allotment. The letter of allotment contained a clause of forfeiture of the earnest money providing that in case the allottee failed to deposit part premium and the earnest money as demanded and/or the balance premium as and when demanded, the earnest money deposited by the allottee would stand forfeited. The earnest money deposited by the petitioners in the present case has also been forfeited for the default in making payment of the amount in terms of and in accordance with the aforesaid clause contained in the letter of allotment. There was admittedly a default on the part of the petitioners in making deposit of the premium money in terms of the demand. Therefore, it is established from the records that there was an error apparent on the face of the records. The order dated 4th April, 2000 came to be passed by this court on a wrong presumption that the amount of Rs.22,00,000/- was deposited by the petitioners pursuant to the interim order passed by this court which is not a fact and a correct position. Out of the aforesaid amount of Rs.22,00,000/-, an amount of Rs.12,37,987.50, which was the earnest money deposited by the petitioners, was forfeited and the balance amount was paid to the petitioners which was received. The said refund of the amount after making deduction of the amount forfeited by the respondent was also accepted by the petitioners without any protest and demur. The said deduction was also not challenged in any forum except by way of finding an application seeking for a direction to refund the amount, which was also filed after three years. The aforesaid forfeiture was made in the year 1994 and the balance amount was refunded by two cheques dated 10th May, 1994 and 7th September, 1994.
The application on which the aforesaid order dated 4th April, 2000 came to be passed was moved only in the year 1997. In the said application the aforesaid facts which are stated herein were not disclosed. On the other hand, in paragraph 4 of the aid application it was stated by the writ petitioners that the aforesaid amount of Rs.22,00,000/- was deposited by the petitioners as per direction of the High Court and without prejudice to the rights and, Therefore, the said amount of Rs.22,00,000/- was to be given back to the petitioner-society by the D.D.A. In the light of the aforesaid submission and the statement in the application this court was misled and the aforesaid order dated 4th April 2000 came to be passed erroneously. The aforesaid statement which was made by the petitioners in paragraph 4 is contrary to the real facts which were, however, suppressed. The order sought to be reviewed, Therefore, came to be passed by this Court on the basis of an application containing incorrect and misleading statement. The forfeiture of the earnest money was made in terms of and in accordance with the letter of allotment. The balance amount was also received without protest and demur and the application was also filed after a period of long three years from the date of such receipt.
8. Considering the entire facts and circumstances of the case and in the light of the aforesaid discussion, I am of the considered opinion that the orders and directions dated 4th April, 2000 are required to be recalled which I hereby do. Consequently, the review application being R.A. No. 8561/2000 as also C.M. No. 8561/2000 stand allowed. I also hold that no directions as sought for by the petitioners in the application being C.M. No. 6012/1997 could be given. The said application is held to be without any merit and is dismissed accordingly by recalling the order dated 4th April, 2000.
