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2003 DIGILAW 40 (DEL)

RAMJI DASS GUGLANI v. DELHI DEVELOPMENT AUTHORITY

2003-01-16

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SANJAY KISHAN KAU ( 1 ) THE partition of 1947 resulted in the influx of large number of refugees who were rehabilitated and settled in Delhi under various re-settlement schemes, one such scheme being in Guru Teg Bahadur Nagar, Kingsway camp, Delhi. One late Shri Iqbal Rai was one such person and was granted leasehold rights in respect of a plot/tenement measuring 50 sq. yds. bearing No. B/28, Outram Lines, kingsway Camp, Delhi. A lease deed and conveyance deed for structure thereon were executed on 30th May 1968 and were duly registered being effective from 1st October 1955, The relevant clause of the said lease deed dealing with the issue of transfer is as under: " (C) The Lessee can transfer the land after obtaining the permission of the lessor aforesaid and the Lessor will not share any unearned increment in the value of the land (being the difference in the premium paid by him to the lessor and the market value of the land then prevailing) for permitting such transfer. The Lessor will, however, be entitled to claim and recover the unearned increment in the value of land in the event of any subsequent transfer of the land by a transferee the amount so to be recovered being 50% of the unearned increment in the value of the land. In the case of any subsequent transfer the Lessor shall have the pre-emptive right to purchase the premises as hereby demised and all the buildings and structures standing thereon, after deduction of 50% of the unearned increment as aforesaid. " ( 2 ) IN the year 1960, respondents No. 2 and 3 formulated a scheme of redevelopment of various localities within Kingsway Camp area which was-executed by respondent No. 3 up to 1976 and thereafter by respondent No. 1/ dda. It was once again transferred to respondent No. 3/mcd in April 1978 but was again transferred to respondent No. 1 in May 1981 and the same position continued thereafter. The persons in Outram Lines, as a consequence of this redevelopment, were to be shifted to various areas in transit camps to be finally given allotment of specific plots and a draw of lots was held for the said purpose in may 1970 when plot No. 2429, Hudson Lines was allotted to Shri Iqbal Rai. The persons in Outram Lines, as a consequence of this redevelopment, were to be shifted to various areas in transit camps to be finally given allotment of specific plots and a draw of lots was held for the said purpose in may 1970 when plot No. 2429, Hudson Lines was allotted to Shri Iqbal Rai. Since the claim was being implemented in a phased manner, shri Iqbal Rai was not handed over possession of the plot in question till 1981 when Shri iqbal Rai decided to sell the rights in the plot in question and applied on 22nd June 1981 to the Landdo, respondent No. 2 for grant of permission. TNs was so as in terms of the lease deed only permission was required and no unearned increase had to be charged for the first transfer. However, no decision was taken on the application and Shri Iqbal Rai entered into an agreement to sell in favour of the petitioner on 19th December 1981. Simultaneously, Shri Iqbal Rai executed a will in favour of the petitioner and also executed two GPAs and one SPA in favour of Shri harbans Lal, brother of the petitioner and certain other documents were also simultaneously executed. ( 3 ) A response to the said application was received almost three years later on 3rd december 1984 from Landdo asking the petitioner to obtain permission for the said transfer from the DDA. The petitioner thus made an application on 16th September 1985 to the DDA. ( 4 ) IT may be noticed that prior to the said application, the allotment letter dated 17th august 1984 was issued in favour of Shri iqbal Rai allotting the plot No. 2429 which had been allotted in the draw of lots held earlier. Certain amounts were also demanded from Shri Iqbal Rai which were deposited within time by Shri Harbans Lal on behalf of shri Iqbal Rai. A Certificate dated 10th August 1987 was also issued by DDA certifying that quarter No. B/28 had been demolished in may 1984. It may also be noted that the "possession of the transit accommodation at quarter No. 3z Block C Jahangir Puri had been handed over to the petitioner on 24th august 1984 and the petitioner continued to occupy the same. It may also be noted that the "possession of the transit accommodation at quarter No. 3z Block C Jahangir Puri had been handed over to the petitioner on 24th august 1984 and the petitioner continued to occupy the same. Certain other premiums were also asked for from Shri Iqbal Rai which were also deposited on behalf of Shri Iqbal Rai by Shri Harbans Lal. It is only on 12th december 1986 that a letter was issued by the DDA rejecting the sale permission applied for on behalf of Shri Iqbal Rai. The petitioner and Shri Harbans Lal continued to represent against the same and at some stage even agreed to pay the 50% unearned increase in terms of the letter dated 18th June 1993. A rejection letter dated 11th February 1994 was issued by the DDA stating that the request of the petitioner could not be accepted since allotment in lieu of the quarter could not be made in favour of persons who were not lawful owners/lessors of the quarters. ( 5 ) THE petitioner thereafter filed the present petition specially in view of the fact that an advertisement had been issued seeking to auction the said plot No. 2429. The petitioner sought quashing of the said auction and the. letter dated llth February 1994 and the earlier letter dated 12th February 1986 and sought directions for handing over possession of plot No. 2429 to the petitioner and for execution of the perpetual lease deed in respect thereof. ( 6 ) IN the counter-affidavit filed by the respondent No. 1, one of the pleas raised is that the power of attorney was executed in favour of two people i. e. the petitioner and shri Harbans Lal. This is factually incorrect as all the powers of attorney are executed only in favour of one person which is Shri Harbans lal who is the brother-in-law of the petitioner while the agreement to sell and will in favour of the petitioner. It is Shri Harbans Lal who has been requesting the respondent for execution of the documents in favour of the petitioner. There are, thus, no two transactions in question. ( 7 ) IT cannot also be disputed that in terms of the original lease deed executed in respect of tenement B/28 the first transfer was without the requirement of any unearned increase and only permission was required. There are, thus, no two transactions in question. ( 7 ) IT cannot also be disputed that in terms of the original lease deed executed in respect of tenement B/28 the first transfer was without the requirement of any unearned increase and only permission was required. Such permission could not be refused unreasonably and certainly not on account of non-payment of any unearned increase. The plot allotted was in lieu of this quarter and thus the transaction being the first such transfer of sale, there could not be any question of payment of any unearned increase. ( 8 ) LEARNED counsel for the respondent has, in fact, raised only one defence which arises from a resolution passed by the respondent/ dda resolving that the allotment of plots in lieu of quarters could not be made in favour of persons who were not lawful owners/lessees of the quarters. This resolution has been passed on 16th November 1993. Thus, even otherwise this resolution could not have any retrospective operation. ( 9 ) IT was as early as 22nd June 1981 that shri Iqbal Rai had applied for permission to transfer the rights in respect of the property in question, the original being B/28 and thereafter plot No. 2429 in favour of the petitioner. It was only as late as 3rd December 1984 when he was asked to obtain NOC from dda. The petitioner thereafter duly applied even to the DDA. In such as case where the lease itself permitted first transfer and the allottee being Shri Iqbal Rai had taken due care to apply for permission at least six months prior to the execution of the documents in favour of the petitioner, Shri Iqbal Rai or the petitioner can hardly be faulted for the same. It may also be noted that Shri Iqbal Rai subsequently passed away on 4th August 1989. ( 10 ) IN view of the aforesaid, I am of the considered view that the request of Shri Iqbal rai for transfer in favour of the petitioner could not have been declined. There would also be no question of charging of any unearned increase being the first transfer in question. Needless to say that the documents to be executed in favour of the petitioner would have to incorporate the term of payment of 50% unearned increase since the first transfer is already over being in favour of the petitioner. There would also be no question of charging of any unearned increase being the first transfer in question. Needless to say that the documents to be executed in favour of the petitioner would have to incorporate the term of payment of 50% unearned increase since the first transfer is already over being in favour of the petitioner. ( 11 ) A writ of mandamus is thus issued directing the respondent No. 1 to execute the perpetual lease deed in favour of the petitioner and register the same in respect of plot No. 2429 hudson Lines, Kingsway Camp, Delhi. The petitioner shall complete the necessary formalities for the same and the process be completed within two months from today. The possession of the plot be also handed over to the petitioner within a period of one month of the petitioner executing the necessary documents. As a consequence of the said direction, the impugned communications dated 11th February 1994 and 12th February 1986 as also the advertisement for auction of the plot are hereby quashed. ( 12 ) WRIT petition is allowed in the aforesaid terms with costs of Rs. 5000/ -.