LAL BAHADUR SHASTRI EDUCATIONAL SOCIETY & ANR.versusDELHI DEVELOPMENT AUTHORITY & ORS.

                  [2023] 11 S.C.R. 835 : 2023 INSC 797



                             CASE DETAILS

  LAL BAHADUR SHASTRI EDUCATIONAL SOCIETY & ANR.
                                      v.
           DELHI DEVELOPMENT AUTHORITY & ORS.
                      (Civil Appeal No. 5647 of 2023)
                          SEPTEMBER 05, 2023
   [A. S. BOPANNA AND PRASHANT KUMAR MISHRA, JJ.]

                              HEADNOTES

       Issue for consideration: Claim for payment of interest on refund
of the amount deposited by the appellants-charitable institutions with the
respondent to avail the benefit of the construction based on additional FAR,
if justified.
     Interest – Claim for, on refunded amount – Propriety:
      Held: On 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 – Petitioners
being desirous of availing the same and to proceed with the construction
on obtaining the Sanctioned Plan in-curred the expenditure by offering to
deposit the amount and avail the benefit instead of awaiting adjudication and
thereafter availing – Thus, when as on the date the deposit was made, the
notification remained valid and even subsequently there is no declaration that
the notification and the demand made is illegal, but through the subsequent
notification an exemption was granted by the respondents themselves to a
certain category of institutional plots to avail additional FAR without levying
such charges – Thus, the circumstances in which the deposit was made is
not in a situation where the appellant suffered any loss due to the ‘Act of
Court’ – 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 dtd.07.05.10 passed
by the High Court there was an indication that the question of refund of
                                       835
836          SUPREME COURT REPORTS                        [2023] 11 S.C.R.


amount with interest would be examined at the stage of conclusion of the
writ petitions, on facts, when there was no adjudication and determination
with regard to the right of 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. [Paras 13 and 14]
      Contempt petition – Scope – Amount refunded:
       Held: 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 is justified
– No error committed – 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 appeals have
availed their remedy, it would be open for the appellant in the second of the
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.
[Para 16]

       LIST OF CITATIONS AND OTHER REFERENCES

     Central Bank of India v. Ravindra & Ors. (2002) 1 SCC 367 : [2001]
4 Suppl. SCR 323; South East-ern Coalfields Limited v. State of Madhya
Pradesh and Ors. (2003) 8 SCC 648 : [2003] 4 Suppl. SCR 651; Rajasthan
Housing Board & Ors. v. Krishna Kumari (2005) 13 SCC 151; Food
Corporation of India and Anr. v. M/s Seil Ltd. & Ord. (2008) 3 SCC 440 :
[2008] 1 SCR 663 – held not applicable.
         LAL BAHADUR SHASTRI EDUCATIONAL SOCIETY                         837
              v. DELHI DEVELOPMENT AUTHORITY


     Prithawi Nath Ram v. State of Jharkhand & Ors. (2004) 7 SCC 261 :
[2004] 3 Suppl. SCR 740 – relied on.

       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES

     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5647 of 2023.
     From the Judgment and Order dated 31.10.2013 of the High Court of
Delhi at New Delhi in WPC No. 3099 of 2010.
     With
     Civil Appeal No. 5648 of 2023.
     Appearances:
     Ms. Meenakshi Arora, S. Niranjan Reddy, Sr. Advs., Ankit Jain, Mohit
D. Ram, Ms. Monisha Handa, Bhagirath N.patel, Anubhav Sharma, Kamal
Gupta, Harshvardhan Jha, Mrs. Yugandhara Pawar Jha, Abhishek Chaudhary,
Sparsh Aggarwal, Aman Pathak, Advs. for the Appellants.
     Kailash Vasdev, Sr. Adv., Nitin Mishra, Ms. Mitali Gupta, Ishaan
Sharma, Ms. Shagun Sabharwal, Ms. Niharika Ahluwalia, Ms. Binu Tamta,
Ms. Namita Choudhary, Advs. for the Respondents.

       JUDGMENT / ORDER OF THE SUPREME COURT

                               JUDGMENT
     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 on refund of the amount which had
been deposited by the 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
838          SUPREME COURT REPORTS                         [2023] 11 S.C.R.


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 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 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.
          LAL BAHADUR SHASTRI EDUCATIONAL SOCIETY       839
      v. DELHI DEVELOPMENT AUTHORITY [A.S. BOPANNA, J.]


      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.
      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.
     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
840           SUPREME COURT REPORTS                         [2023] 11 S.C.R.


          of the terms ‘interest’ as compensation has been taken note of in
          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.
      (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 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.
          LAL BAHADUR SHASTRI EDUCATIONAL SOCIETY       841
      v. DELHI DEVELOPMENT AUTHORITY [A.S. BOPANNA, J.]


      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 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 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.
842           SUPREME COURT REPORTS                          [2023] 11 S.C.R.


      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 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 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
         LAL BAHADUR SHASTRI EDUCATIONAL SOCIETY       843
     v. DELHI DEVELOPMENT AUTHORITY [A.S. BOPANNA, J.]


to the right of 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 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 vs. State of Jharkhand & Ors. (2004) 7 SCC
261 relating 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 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
844            SUPREME COURT REPORTS                        [2023] 11 S.C.R.


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.
      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.


Headnotes prepared by:                                        Appeals disposed of.
Divya Pandey