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

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

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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

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

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