2015 (3) TMI 898 - HC - Indian Laws

Land allotted by DDA for institutional land - Additional Floor Area Ration (FAR) charges - Amount deposited for additional FAR under protest - Procedural provisions as retrospective - Doctrine of fairness - Held that - In the decision reported in Indian Tobacco Association 2005 (8) TMI 113 - SUPREME COURT OF INDIA , the doctrine of fairness was held to be a relevant factor to construe a statute conferring a benefit, in the context of it to be given a retrospective operation. The same doctrine of fairness, to hold that a statute was retrospective in nature, was applied by the Supreme Court in the decision reported as Vijay 2006 (7) TMI 648 - SUPREME COURT . It was held that where a law is enacted for the benefit of community as a whole, even in the absence of a provision the statute may be held to be retrospective in nature. In the instant case the moment the notification dated December 23, 2008 was promulgated, representations were made to do away with the condition of paying extra premium for the extra FAR. A committee was constituted to look into the issue, which decided that for three category of bodies (i) Educational, (ii) Health Care and (iii) Social Welfare, the additional charges need to be withdrawn. The Central Government accepted the same. The notification dated July 17, 2002 was promulgated. The object of the legislation is to confer a benefit without taking away anybody's vested right and without inflicting a corresponding detriment on some other person or on the public generally. To confer a benefit is the express object of the legislation. The presumption thus would be that the intent was to give a retrospective effect. We have already reasoned above that the decision of the Division Bench of this Court dated July 20, 2012, though not so expressly stating, meaningfully read, has treated the notification dated July 17, 2002 as retrospective and thus the respondent in LPA No.107/2014 and the writ petitioners in the three captioned writ petitions would be entitled to succeed on three distinct and independent reasons. Firstly, parity with the writ petitioners of the various writ petitions which were allowed on July 22, 2012, which decision was affirmed by the Supreme Court. Secondly, on the doctrine of fairness adopted by the Supreme Court in Indian Tobacco Association's case and Vijay's case . Thirdly that the notification dated July 17, 2012 has to be given a retrospective operation. - Writ petition is accordingly dismissed.

Summary

Issues Involved:
1. Legality of the additional Floor Area Ratio (FAR) charges imposed by the Delhi Development Authority (DDA).
2. Retrospective application of the notification dated July 17, 2012, exempting certain institutions from additional FAR charges.
3. Entitlement to refund of additional FAR charges paid under protest by the petitioners.

Issue-wise Detailed Analysis:

1. Legality of the Additional FAR Charges:
The petitioners, who are non-profit educational institutions, were allotted land by the DDA and constructed buildings after obtaining necessary sanctions. The Master Plan for Delhi stipulates the Floor Area Ratio (FAR) for different land uses. Due to increased demand for built-up areas, the DDA decided to enhance the FAR, subject to additional charges as notified on December 23, 2008. The charges were Rs. 29,525/- per sqm for South Delhi and Dwarka, Rs. 13,008/- per sqm for North, East, West Delhi, and Rohini, and Rs. 9,691/- per sqm for Narela. Various non-profit bodies made representations against these steep charges, arguing that the additional FAR should be made available at no extra cost. A committee was constituted to revisit the issue, and interim orders allowed petitioners to deposit the charges under protest and proceed with construction.

2. Retrospective Application of the Notification Dated July 17, 2012:
The committee recommended exempting educational, healthcare, and social welfare institutions with income tax exemptions from paying additional FAR charges. This recommendation was approved by the Central Government and notified on July 17, 2012. The notification amended the earlier notification dated December 23, 2008, stating that no additional FAR charges would be recovered from the specified institutions. The Division Bench of the High Court, in its order dated July 20, 2012, treated the notification as having retrospective effect, even though it was not explicitly stated. The Court noted that the benefit conferred by the legislation without inflicting a corresponding detriment on others justified a retrospective interpretation.

3. Entitlement to Refund of Additional FAR Charges:
The petitioners, having deposited the additional FAR charges under protest, sought refunds after the July 17, 2012 notification. The DDA rejected their representations for refunds, leading to the filing of writ petitions. The Court held that the petitioners were entitled to the same benefits as those who had filed earlier writ petitions challenging the December 23, 2008 notification. The Court applied the doctrine of fairness, as established in the Supreme Court decisions in Indian Tobacco Association and Vijay, to hold that the notification should be given retrospective effect. Consequently, the petitioners were entitled to refunds of the amounts paid.

Conclusion:
The Court dismissed LPA No.107/2014 and allowed the writ petitions WP(C) 7921/2012, WP(C) 1327/2013, and WP(C) 915/2014, directing the DDA to refund the amounts paid by the petitioners within eight weeks, failing which the sums would accrue interest at 12% per annum. The decision was based on three grounds: parity with earlier writ petitioners, the doctrine of fairness, and the retrospective application of the July 17, 2012 notification.