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2003 DIGILAW 679 (DEL)

KEWAL KRISHEN WAHI v. DELHI DEVELOPMENT AUTHORITY

2003-07-29

SANJAY KISHAN KAUL

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SANJAY KISHAN KAUL, J. ( 1 ) PERPETUAL leasehold rights in respect of plot No. 4, Pusa Road, Road No. 34, New Delhi were granted to one Shri Rai Saheb Lal Mathu;adas vide lease deed dated 15. 3. 1941 by the then Delhi Improvement Trust. A family partition took place in terms whereof the property in question along with the superstructure constructed thereon fell to the share of;one Shri Om Prakash s/o Shri Mathura Dass and his name was mutated in the records. On further partition, the leasehold rights came to be vested with Shri Vinod Kumar s/o Shri Om Prakash and renewed lease deed was executed on 5. 2. 1968. The prescribed user of the premises was residential dwelling house. ( 2 ) DELHI Development Authority, the respondent herein which is the successor to the Delhi Improvement Trust cancelled the lease deed vide letter dated 11. 9. 1974 w. e. f. 4. 9. 1974 on account of there being breaches of the lease committed by the tenants in occupation of the property. The said tenant was subsequently evicted from the premises in pursuance to orders passed by the Supreme Court on account of misuser. ( 3 ) SHRI Vinod Kumar requested for restoration of the lease and vide letter dated 27. 1. 1976, the respondent informed Shri Vinod Kumar that the lease deed could be restored subject to payment of Rs. 2129. 10 which included the misuser charges as well as the restoration charges. This amount was deposited on 30. 1. 1976. However, no formal order for restoration of the lease was issued till 4. 7. 1978. ( 4 ) SHRI Vinod Kumar entered into an agreement to sell with the petitioners for the property in question after permission was granted under the Urban Land (Ceiling and Regulation), 1976 on 28. 4. 1976 by the Addl. Secretary, Lease Administration, DDA and Competent Authority and a sale deed was executed on 6. 5. 1976. A mutation letter was also issued in favour of the petitioners on 15. 7. 1978. ( 5 ) THE petitioner received a letter dated 9. 11. 1978 stating therein that the registration of the sate deed in favour of the petitioner was illegal because at that time the lease of the plot stood cancelled and Shri Vinod Kumar and others were not lessees of the plot. Thus, the restoration order was withdrawn. 7. 1978. ( 5 ) THE petitioner received a letter dated 9. 11. 1978 stating therein that the registration of the sate deed in favour of the petitioner was illegal because at that time the lease of the plot stood cancelled and Shri Vinod Kumar and others were not lessees of the plot. Thus, the restoration order was withdrawn. The apparent basis for the issuance of this letter was that though the petitioner had deposited the restoration charges in January, 1976 and the sate deed was executed in May, 1976, the formal letter of restoration of the lease was only issued on 4. 7. 1978. ( 6 ) THE petitioners represented against the said decision and in terms of letter dated 13. 12. 1978, the respondents regularized the sale of the plot w. e. f. 6. 5. 1976 by resorting the lease subject to the payment of 50% incremental value of the land at current market value. ( 7 ) THE petitioners, however, were not satisfied with this imposition and represented against the same on 18. 12. 1978. Thereafter, some communications ensued but no decision was taken for almost 12 years when on 26. 4. 1990, a letter was issued to the petitioner asking for a sum of Rs. 36,33,788. 00 in pursuance to the letter dated 13. 12. 1978 towards incremental value of the land for regularization of the sale deed. The petitioner once again represented against the same and questioned the very basis for imposition of any amount. The petitioner was also granted hearing and it took another 12 years for the respondent to take a decision in terms of the impugned letter dated 15. 4. 2002 stating that the unearned increase amount had been re-worked out at Rs. 3,02,212. 00instead of Rs. 36,33,788. 00 but the petitioner was also liable to pay interest of Rs. 12,76,090/ - on the amount since it was due. ( 8 ) THE petitioner has filed the present writ petition seeking quashing of the said letter and for declaring that all actions taken by the respondent in pursuance to the letter dated 15. 7. 1978 as null and void. ( 9 ) IN the counter, affidavit filed by the respondent, the demand is sought to be justified on the basis of a circular dated 24. 2. 7. 1978 as null and void. ( 9 ) IN the counter, affidavit filed by the respondent, the demand is sought to be justified on the basis of a circular dated 24. 2. 1960 stipulating the fee to be charged in case of various eventualities including in case of transfer. The relevant portion of the said circular is as under: " (2) Leasehold plots:- (a) Where leased from of initial premium of on full premium and there is no restriction on transfer-No transfer fee can be charged. (b) Where leased on full premium and a transfer is not to be allowed (i) without prior permission, or (ii) until a building has been constructed:- transfer be allowed on payment of 50 p. c. of the difference between the original premium and the consideration money recorded in the transfer deed. (c) Where Lease provides specifically for the levy of 50 p. c. unearned increase in the event of a request for transfer. Transfer fee as provided in the lease to be charged. However, in throughout the fee 50 p. c. of the difference between the initial premium and the consideration money recorded in the transfer deed should be taken. (d) Where plots were leased free of premium or on concessional terms, and there is a restriction on transfer. Transfer may be allowed on payment of a fee of 50 p. c. of the difference between the initial premium, if any and the consideration money shown in the transfer deed. " ( 10 ) LEARNED counsel for the respondent, in fact, has contended that the only issue to be considered is whether the demand is legal and justified in view of the said circular as the claim of the respondent is based on Clause 2 (b) above. ( 11 ) LEARNED counsel for the petitioner, on the other hand, contends on the basis of the clause of the perpetual lease deed that there is no provision for recovery of any transfer charges and thus the demand is without any basis. It is further contended that even assuming that such charges can be recovered, the same can only relate back to the date of transaction in 1976, and lastly, there can be no question of payment of interest since the correct demand was never raised on the petitioner, even according to the respondent, till the year 2002 when the impugned demand was sent. ( 12 ) I have considered the submissions advanced by learned counsel for the parties. ( 13 ) IN my considered view, in order to determine the validity of the charges on account of unearned increase, the perpetual lease deed dated 5. 2. 1968 itself has to be perused since there cannot be any charges contrary to or de hors the said perpetual lease deed. ( 14 ) IT may be noticed that in terms of Section 3 of the Government Grants Act, 1895, the government grant has to take effect according to its tenor not effected by any rule of law of any State or enactment of the legislature to the contrary. ( 15 ) THE relevant clauses of the said perpetual lease deed relied upon are as under: "ii. The Lessee with intent to bind all persons into whosoever hands the said land may come doth hereby for himself and his assigns covenant with the Lessor as follows:- (vii) without first obtaining such consent not to subdivide the said land or to part with the possession or transfer or sublease a part only of the said land. ; (vii) to register alt changes in the possession of the whole of the said land or of the building thereon whether by transfer succession or otherwise in the register kept in the office of the Lessor for this purpose within one calender month of respective dates of registration of such changes with the Registrar of Assurance under the Indian Registration Act and if the Lessee shall without sufficient cause neglect to register such change in the manner aforesaid with any officer appointed by the Lessor for this purpose the Lessor may impose on him for each such case of neglect liquidated damages not exceeding Rs. 100. 00 and the Lessor may in addition to the other remedies availableto him under these presents enforce the payment of such liquidated damages in the same manner as any other sum of money due to or claimable by the Lessor in respect of the said land in the manner in clause II (xii) thereof. 100. 00 and the Lessor may in addition to the other remedies availableto him under these presents enforce the payment of such liquidated damages in the same manner as any other sum of money due to or claimable by the Lessor in respect of the said land in the manner in clause II (xii) thereof. " ( 16 ) LEARNED counsel for the respondent contends that the basis for the claim against the petitioner is clause (vii) since there could not be parting with possession or transfer of the land without first obtaining the consent of the perpetual lessor and thus 50% unearned increase is chargeable in terms of the circular dated 24. 2. 1960 by reference to clause (b ). ( 17 ) I am unable to accept the contention of learned counsel for the respondent since clause (vii) reads otherwise. The said clause stipulates that subdivision of the plot is not permissible without first obtaining the consent of the lessor. The said portion puts a restriction on the lessee not to part with possession or transfer or sub-lease a part only of the said land. Thus, the said sub-clause deals with the eventualities of the sub-division of the plot or any transfer or parting with possession of a portion of the plot. This is not so in the present case. ( 18 ) THIS aspect is all the more clear by reading of clause (viii) above which deals with changes in possession of the whole of the land or building. The only stipulation on the lessee is that an intimation must be sent to the perpetual lessor within a period of one month of the date of registration of such change failing which liquidated damages not exceeding Rs. 100. 00 may be enforced. Thus, there is no restriction in respect of transfer of the plot other than to intimate to the perpetual lessor in case of such transfer. ( 19 ) IN the present case, the transfer occurred on 6. 5. 1976 and the intimation for the same was sent on 27. 5. 1976 which complied with Clause (viii ). In my considered view, the very basis of reliance on Clause (vii), as contended by learned counsel for the respondent, is misplaced as the said clause is concerned only with sub-division of the plot and the consequent parting with possession, transfer or sub-lease of the said part. 5. 1976 which complied with Clause (viii ). In my considered view, the very basis of reliance on Clause (vii), as contended by learned counsel for the respondent, is misplaced as the said clause is concerned only with sub-division of the plot and the consequent parting with possession, transfer or sub-lease of the said part. This being the position, the demand towards unearned incremental charges cannot be sustained and is quashed. The consequent demand for interest would also naturally not arise. It may not be out of place to mention that even this demand for the correct amount as per the respondent was only raised in the year 2002 and there could have been no occasion even to demand the interest on the said amount, assuming that the said demand was in accordance with law. The unearned incremental charges, if payable, were also liable to be calculated only with reference to the date of transaction which was 6. 5. 1976. ( 20 ) AS noted above, while setting out the history of the case, the restoration charges as demanded vide letter dated 27. 1. 976 were paid on 30. 1. 1976. The issuance of the restoration letter was only a ministerial act which should have followed immediately. It was unfortunately delayed till 4. 7. 1978. Shri Vinod Kumar was well within his rights to have transacted in respect of the property in question and the sale deed was executed after obtaining due permission. Interestingly, the DDA itself as the Competent Authority had granted permission on 28. 4. 1976 prior to execution of the lease deed and thereafter mutated the property in the name of the present, petitioners on 12. 7. 1978 communicated vide letter dated 15. 7. 1978. In such a case, no fault could be found with the petitioner nor could any demand be raised on the petitioners on this account. ( 21 ) A writ of mandamus is issued quashing the demand raised against the petitioners vide letter dated 15. 4. 2002 and it is declared that the respondent was not entitled to take any action in pursuance to the letter dated 9. 11. 1978. The petitioner is entitled to enjoyment of the property in terms of the sale deed dated 6. 5. 1976 read with the perpetual lease deed dated 5. 2. 1968. 4. 2002 and it is declared that the respondent was not entitled to take any action in pursuance to the letter dated 9. 11. 1978. The petitioner is entitled to enjoyment of the property in terms of the sale deed dated 6. 5. 1976 read with the perpetual lease deed dated 5. 2. 1968. ( 22 ) THE writ petition is allowed in the aforesaid terms and the rule is made absolute. The petitioner shall also be entitled to costs of Rs. 5000. 00