Full Judgment Text
2023INSC797
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5647 OF 2023
(Arising out of SLP (C) No.31548 of 2014)
Lal Bahadur Shastri Educational
Society & Anr. .…Appellant(s)
Versus
Delhi Development Authority & Ors. …. Respondent(s)
With
CIVIL APPEAL NO. 5648 of 2023 @ SLP (C) No. 2009 of
2015
J U D G M E N T
A.S. Bopanna, J.
Delay condoned.
I.A. No.159570/2019 is allowed.
1. Leave granted in both matters.
2. The common issue arising for consideration in these
appeals is with regard to the claim for payment of interest
Signature Not Verified
Digitally signed by
Rajni Mukhi
Date: 2023.09.05
17:11:33 IST
Reason:
on refund of the amount which had been deposited by the
SLP(C) No.31548/2014 Page 1
appellants with the respondent – Delhi Development
Authority to avail the benefit of the construction based on
additional FAR. The appellants in both these appeals are
charitable institutions. The respondent through the
notification dated 10.10.2008 issued in exercise of the
powers conferred by Section 57 of the Delhi Development
Act, 1957 had notified the fixation of rates to be applied for
use conversion, mixed land use and other charges for
enhanced FAR arising out of MPD 2021. In respect of the
institutional plots also, the additional FAR charges were
provided therein.
3. The appellant in the Civil Appeal arising out of SLP(C)
No.31548 of 2014 had assailed the said notification insofar
as an imposition of the additional FAR charges, in W.P.(C)
No.3099 of 2010 before the High Court. The appellant in
Civil Appeal arising out of SLP (C) No.2009 of 2015 had
assailed the same, in W.P. (C) No.2823 of 2010 before the
High Court of Delhi. In the said writ petitions, application
seeking interim orders had been moved. Towards
SLP(C) No.31548/2014 Page 2
consideration of the said application for grant of interim
relief to permit sanction of Revised Plan so as to enable
construction and completion, the appellants offered to
deposit the disputed amount being the amount demanded
towards additional FAR charges which had been assailed in
the writ petition. The High Court having accepted the
suggestion permitted the appellant to pay the said amount
and avail the benefit. The appellants having deposited,
availed the benefit and proceeded with the construction.
4. During the pendency of the writ petition, the
respondent issued a notification dated 17.07.2012 whereby
an amendment was made in para 6(g) to the notification
dated 10.10.2008 and 23.12.2008 which were assailed
before the High Court. By such amendment, it was
provided that no additional FAR charges would be recovered
from Educational Societies/Health Care and Social Welfare
Societies having Income Tax Exemption. The said benefit
became available to the appellants herein and as such the
writ petitions pending before the High Court did not
SLP(C) No.31548/2014 Page 3
warrant an adjudication on the disputed questions.
Therefore, the High Court in all the writ petitions which
were pending before it had taken note of the change made
through the subsequent notification and had accordingly
disposed of the analogous matters in W.P.(C) No.8572 of
2009 and other petitions through the order dated
20.07.2012. In the said proceedings the deposit which had
been made either before the High Court or by way of bank
guarantees were permitted to be withdrawn.
5. In that background the writ petitions filed by the
appellants herein before the High Court were also disposed
of. We take note of the order dated 31.10.2013 in the case of
the appellant in first of the appeals herein, whereby the
High Court having extracted the earlier order had disposed
of the writ petition. Insofar as the amount deposited with
the respondent, it was directed that the refund be made
within the period of eight weeks but the prayer for payment
of interest was declined. It is in that light the appellant is
before this Court.
SLP(C) No.31548/2014 Page 4
6. At this juncture it is relevant to note that in the case
relating to appellant in the second of the appeals herein, the
writ petition in W.P.(C) No.2823 of 2010 had been disposed
of in similar terms through the order dated 27.08.2012 and
the deposited amount was directed to be released. In that
view, an application was taken out by the said appellant
herein on the aspect relating to interest and had sought
refund of the amount with the interest at 15% per annum.
The High Court having considered the matter was of the
opinion that since the writ petitions were not ultimately
adjudicated, the claim for interest would not be justified.
The appellant in the second of the above noted cases had
therefore assailed the said order passed by the High Court
in W.P.(C) 2823 of 2010, before this Court in SLP (C)
Nos.7907-7908 of 2013. The said SLP came to be
dismissed on 22.02.2013. In that view, insofar as the claim
for pendente lite interest being declined insofar as the
appellant in the second of the above-noted matters, it has
attained finality.
SLP(C) No.31548/2014 Page 5
7. In the above backdrop we have heard Ms. Meenakshi
Arora, learned senior counsel and Shri S. Niranjan Reddy,
learned senior counsel for the respective appellants, Shri
Kailash Vasdev, learned senior counsel, and Ms. Niharika
Ahluwalia, learned counsel for the respondents and perused
the appeals papers.
8. In the light of the contentions put forth and the
sequence of events mentioned above being kept in
perspective, the matter requires examination. At the outset,
it would be appropriate for us to take note of the legal
position on which the emphasis was laid by the learned
senior counsels for the appellants by placing the decisions
of this Court for our consideration.
(i) The decision of the Constitutional Bench of this Court
in the case of Central Bank of India vs. Ravindra &
Ors. (2002) 1 SCC 367 is relied upon with specific
reference to para 37 wherein the purport of the terms
‘interest’ as compensation has been taken note of in
SLP(C) No.31548/2014 Page 6
the context of the definition of interest being
compensation fixed by agreement or allowed by law for
the use or retention of money or for the loss of money
by one who is entitled to its use. In that regard, we
note that the consideration in the said proceedings
was predicated in the context of the phrases ‘the
principal sum adjudged’ and ‘such principal sum’ in
the background of the provision contained in Section
34 of the Code of Civil Procedure, 1918.
(ii) The decision of this Court in South Eastern Coalfields
Limited vs. State of Madhya Pradesh and Ors.
(2003) 8 SCC 648 with specific reference to paras 26
and 28 is placed to emphasize the principle of
restitution whereby the parties are put to the same
position and to contend that no one shall suffer by an
Act of the Court which was considered and applied in
the said case for the benefit of grant of interest.
SLP(C) No.31548/2014 Page 7
(iii) The decision in the case of Rajasthan Housing Board
& Ors. vs. Krishna Kumari (2005) 13 SCC 151 is
placed with reference to para 5 wherein, even while
providing benefit to the allotting authority and denying
relief to the allottee to waive interest over the arrears,
this Court had emphasized the legal maxim ‘ Actus
Curiae Neminem Gravabit ’.
(iv) Further on the same principle of application of the
Principle of Actus Curiae Neminem Gravabit and
providing relief to the party altering the position
during the pendency of the litigation, the decision in
the case of Food Corporation of India and Anr. vs.
M/s Seil Ltd. & Ors. (2008) 3 SCC 440 with specific
reference to para 25 is placed for our consideration.
9. In that backdrop while getting back to the facts on
hand, in order to consider whether the benefit of the legal
proposition enunciated in the above cases would be
applicable to the instant facts, what would be relevant to be
SLP(C) No.31548/2014 Page 8
taken note herein and which has in fact been emphasized
by the learned senior counsel for the appellant is the
interim order dated 07.05.2010 passed by the High Court in
W.P.(C) No.3099 of 2010, on C.M. No.6215 of 2010, an
application filed seeking for interim order in the said writ
petition.
10. In the writ petition, it is recorded that notice was
issued to the respondents and insofar as the application for
interim order it would indicate that the notice was accepted
by the counsel for the respondents therein but there was no
hearing of both sides, in that sense. It would be relevant to
extract the portion as contained in the order relating to
deposit of the amount:
“The petitioner states that he will deposit the
disputed amount but in case excess amount is
found to be deposited at the stage of final
decision in the writ petition, the same should be
refunded to the petitioners by the respondents
with appropriate interest.
We are of the view that the aforesaid is a fair
suggestion and in case the petitioners
succeed in the petition, the question of
SLP(C) No.31548/2014 Page 9
refund of amount with interest would be
examined at that stage. On deposit of the
amount and on completion of requisite
formalities by the petitioners, the respondents
will proceed to grant Revised Sanction Plan as
well as the Completion Certificate.”
(Emphasis Supplied)
11. If the above-noted order is deciphered, it indicates that
the amount to be deposited was voluntarily offered to be
done on behalf of the appellant. Since obviously the
learned counsel for the respondent had taken notice just
then and no submission on his behalf has been recorded
the respondents at that stage had not played any part.
Further, there is no indication that the Court had insisted
for the deposit. It is no doubt true, it is however indicated
in the order that the said suggestion was accepted as a fair
one by the Court and it was also observed that the question
of the refund of the amount with interest would be
examined at that stage in case the petitioners succeed in
the petition. If the said aspects are kept in view and the
nature of the issues raised before the High Court in the writ
SLP(C) No.31548/2014 Page 10
petition is taken note of, the prayer in the writ petition was
for quashing the demand dated 09.03.2010 raising the
demand for Rs.7,67,79,600/-. The basis to challenge such
demand is also due to the fact that the notification dated
10.10.2008 and 23.12.2008 issued by the respondent due
to which such demand was raised was also assailed and
sought to be quashed as not being sustainable. Therefore,
it is evident that the quashing of the demand for the
amount would only follow if the notification imposing the
additional FAR charges was quashed by adjudicating it to be
unsustainable and consequently the demand not being in
accordance with the law.
12. Pending consideration of the adjudication with regard
to the validity of the said notifications dated 10.10.2008
and 23.12.2008, the respondents through a subsequent
notification dated 17.07.2012 had exempted certain
categories from the imposition of additional FAR charges
and had indicated in the said notification that the other
contents of the notification dated 23.12.2008 will remain
SLP(C) No.31548/2014 Page 11
unchanged. Since, through the said notification the benefit
was available to the writ petitioners, the writ petitions
insofar as the challenge to the notifications dated
10.10.2008 and 23.12.2008 not being necessary to be
considered on merits had been disposed of and the amount
which had been deposited was directed to be refunded.
13. Therefore, in the present facts as on the date when
the writ petition was filed and the petitioner had voluntarily
offered to deposit the amount, the amount was to be paid
and recoverable under the notification dated 10.10.2008
and 23.12.2008 if the benefit of additional FAR was to be
availed. The petitioners being desirous of availing the same
and to proceed with the construction on obtaining the
Sanctioned Plan had proceeded at ‘breakneck’ speed and
had incurred the expenditure by offering to deposit the
amount and avail the benefit instead of awaiting
adjudication and thereafter availing. In that view, when as
on the date the deposit was made, the notification remained
valid and even subsequently there is no declaration that the
SLP(C) No.31548/2014 Page 12
notification and the demand made is illegal, but through the
subsequent notification an exemption has been granted by
the respondents themselves to a certain category of
institutional plots to avail additional FAR without levying
such charges, it is not the case where any of the principles
as enunciated in the above-noted decisions would apply
herein.
14. As noted, the circumstances in which the deposit was
made is not in a situation where the appellant has suffered
any loss due to the ‘Act of Court’ in the sense it ought to be
construed. Further, insofar as the respondent is concerned,
the notification providing for additional FAR charges was in
force on the date when the deposit was made. Even though
in the interim order dated 07.05.2010 passed by the High
Court there is an indication that the question of refund of
amount with interest would be examined at the stage of
conclusion of the writ petitions, in the circumstances as
has unfolded and noted above, when there was no
adjudication and determination with regard to the right of
SLP(C) No.31548/2014 Page 13
the appellant and a declaration that the amount was
illegally demanded and retained by the respondent, either
the direction to pay interest or to compensate in any other
manner for the pendente lite period would not arise.
However, insofar as the non-refund of the amount for a
longer period even after the expiry of the period permitted
by the Court, admittedly the appellant in the first of the
above cases has initiated separate proceedings. In that
regard, all contentions are kept open and none of the
observations made in deciding the issue herein would
prejudice the parties in seeking adjudication of their
contentions therein.
15. Apart from the fact that the appellant in the second of
the appeals has failed in the proceedings before this Court
in an earlier SLP insofar as the pendente lite interest, in
view of the conclusion above, the same would apply to their
case as well and for the subsequent period they may avail
their remedy. Insofar as the order impugned in the second
of the above appeals, it is seen that the said order dated
SLP(C) No.31548/2014 Page 14
15.10.2009 is arising out of the contempt proceedings.
Contempt Case No.326 of 2020 was filed alleging wilful
disobedience of the order dated 27.08.2002 whereby a
direction had been issued to refund the deposit which had
been made. In that light, the appellant had sought for a
direction, to be compensated. The High Court while
disposing of the contempt petition has taken into
consideration that there was no adjudication on merits and,
therefore, the payment of interest or compensation would
not arise.
16. Be that as it may, as rightly contended by the learned
counsel for the respondent by placing reliance on the
decision of this Court in the case of
Prithawi Nath Ram
(2004) 7 SCC 261 relating
vs. State of Jharkhand & Ors.
to the scope of the proceedings in a contempt petition and
in a circumstance where subsequently the amount has been
refunded and the contempt, if any, to that extent is purged,
the ultimate conclusion to dispose of the contempt petition
by the High Court, in any event, is justified and we see no
SLP(C) No.31548/2014 Page 15
error committed so as to interfere. However, insofar as the
contention relating to the retention of the money belonging
to the appellant in the second of the cases herein
subsequent to the expiry of the period indicated in the order
dated 27.08.2012 passed in W.P. (C) No.2823 of 2010 before
the High Court and as to whether such retention has
caused loss to the appellant and conversely the benefit
derived from the same by the respondent, if any, and the
manner in which the same is to be compensated or not as
also the rate at which it is to be done are matters which
would have to be considered in appropriate proceedings and
in accordance with law wherein the parties will avail all
opportunities to put forth their contentions and place
material. Therefore, in a similar manner in which the
appellants in the first of the above appeals have availed
their remedy, it would be open for the appellant in the
second of the above appeals also to avail the remedy before
the appropriate forum, in accordance with the law. All
contentions of both parties in that regard are left open.
SLP(C) No.31548/2014 Page 16
17. The appeals are disposed of in the above terms,
without any order as to costs.
18. Pending application, if any, shall stand disposed of.
………………...…………………….J.
(A.S. BOPANNA)
..............................................J.
(PRASHANT KUMAR MISHRA)
New Delhi,
September 05, 2023
SLP(C) No.31548/2014 Page 17