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2006 DIGILAW 1007 (DEL)

AFZAL FRIES v. UNION OF INDIA

2006-06-01

S.RAVINDRA BHAT

body2006
S. RAVINDRA BHAT, J. ( 1 ) ALL these proceedings under Article 226 of the Constitution raise somewhat similar and interlinked issues for resolution. The question pertains to a no- objection certificate and property rights in respect of Plot No. 44, Amrita Sher gill Marg (Ratendon Road ). This property was originally a 6800 square yards plot. In due course of time, it apparently got divided into two plots in equal proportions admeasuring 3400 square yards each. ( 2 ) THE petitioner in W. P. (C) 1219/2005, (respondent No. 9 in W. P. (C) 10969- 981/2004) M/s. Shanti Apparels Manufacturing (P) Ltd. , is in possession of one part of the said 3400 square yards plot. The other petitioners are residents of the building, which was constructed upon in the other part, it consists 18 flats. All the said flat owners are parties in these proceedings and are represented by counsel. ( 3 ) IT is undisputed that on 24. 11. 1973, the Land and Development Officer (Landdo) issued a re-entry order in respect of the entire plot (N0. 44 ). ( 4 ) M/s. Shanti Apparels Manufacturing (P) Ltd. seeks a direction that the re- entry be quashed and also that a no-objection certificate for the purpose of reconstruction/alteration of single storey house forming part of the plot be issued to it. Dr. Abhishek Manu Singhvi, learned senior counsel states upon instructions that the entire amount determined by the Landdo as condition for regularisation and withdrawal of re-entry notice in respect of the premises would be paid as per demand notice dated 25. 11. 2005 (which is a part of the record ). The Landdo demanded an amount of Rs. 5,57,10,826/- towards various heads. This includes the interest payment upto 31. 12. 2005 and certain other charges for further periods, till 14. 1. 2006. ( 5 ) LEARNED counsel for the flat owners who are parties in these proceedings in w. P. (C) 1219/2005 (as contesting respondents) and also as petitioners in W. P. (C) 10969-981/2004, W. P. (C) 12778/2004 represented by Ms. Vibha Makhija and Ms. Sumaiya Musharaf, Advocates, submit that their rights also require to be protected since the amount demanded is a consolidated one and break ups for individual portions have been computed erroneously. Ms. Monika Garg, learned counsel submits that as per existing policy of the Landdo, occupiers of individual units cannot be recognised. Vibha Makhija and Ms. Sumaiya Musharaf, Advocates, submit that their rights also require to be protected since the amount demanded is a consolidated one and break ups for individual portions have been computed erroneously. Ms. Monika Garg, learned counsel submits that as per existing policy of the Landdo, occupiers of individual units cannot be recognised. ( 6 ) MS. Makhija, learned counsel relies upon a communication dated 8th September, 1986 which indicated willingness of the Landdo to recognise rights in respect of separate individual units subject to certain conditions. Learned counsel also relies on clause 11 of the Perpetual Lease Deed executed on 11. 8. 1922 which enables the Landdo the Lessor to permit sub-letting upon fulfilment of the conditions imposed. It is also contended that consistently from 13. 4. 1981 onwards Landdo has been taking the position that upon payment of charges, supplementary lease deeds and tripartite agreement involving the lessor,lessee and the individual unit/plot holders/sub-lessee would be executed. ( 7 ) LEARNED counsel for the respondent Landdo submits on this aspect that the question of executing supplementary lease deeds and recognising the rights of individual unit holders would arise if the amounts are paid and other conditions as stated in the letter dated 13. 4. 1981 are fulfilled. ( 8 ) NO other contentions or issues were urged. I have heard counsel for the parties, and counsel for the Landdo. The Dy. Landdo is also present in Court. The petitioners as well as individual flat owners urged that these proceedings should be disposed off with appropriate directions, safeguarding rights of the parties, as well as ensuring that amounts demanded by Landdo are deposited, in view of the statement made today on behalf of M/s. Shanti Apparels. ( 9 ) HAVING regard to the statement made on behalf of M/s. Shanti Apparels manufacturing (P) Ltd. which is willing to deposit the entirety of the payment as per Landdo s letter dated 25. 11. 2005 and having considered the submissions of all the parties, following directions are issued: (i)Upon M/s. Shanti Apparels Manufacturing (P) Ltd. depositing the sum of rs. 5,57,10,826/- , the respondent Landdo is directed to issue the no-objection certificate, requested for, within a period of two weeks; the re-entry shall be withdrawn by an appropriate orders within the said period; (ii)If any further amounts are required, the same shall be notified for the period after 15. 1. 5,57,10,826/- , the respondent Landdo is directed to issue the no-objection certificate, requested for, within a period of two weeks; the re-entry shall be withdrawn by an appropriate orders within the said period; (ii)If any further amounts are required, the same shall be notified for the period after 15. 1. 2006 till today. The same shall be indicated within one week to M/s. Shanti Apparels Manufacturing (P) Ltd. The said additional demand for up-to-date payment shall be satisfied by M/s. Shanti Apparels within one week of raising such demands; (iii)M/s. Shanti Apparels Manufacturing (P) Ltd. shall furnish an undertaking to make good the differential amount by way of an affidavit. The said affidavit/undertaking shall be filed within three days from today. A copy of the same shall be furnished to counsel for respondent No. 4; (iv)The respondent Landdo/acting Landdo, as the case may be, shall consider the entire issue of the quantum of charges, penalty etc. and apportioning the liability so found plus the additional amount amongst the individual occupiers of 18 flats/units and M/s. Shanti Apparels Manufacturing (P) Ltd. in appropriate proceedings; (v)Each of the said 19 parties shall be given opportunity of hearing and they shall also be permitted to substantiate their submissions by producing such materials and documents as they deem appropriate towards quantum and apportionment; (vi)Thereafter, the Landdo/acting Landdo, as the case may be, shall issue a comprehensive order in respect of each of the said 19 units and furnish copies of the same to individual occupiers; (vii)For the purpose of facilitating determination as per directions above in the case of 19 unit holders/occupiers, they shall furnish details of areas occupied by them and also the common areas in the buildings; (viii)The entire exercise of considering the materials and issuing comprehensive order as per the above directions shall be completed within a period of three months from today. (ix)In the event it is determined that any refund is to be effected, the same shall be appropriately indicated in the order but the amount shall be released to the M/s. Shanti Apparels Manufacturing (P) Ltd. (x)In case the excess amounts are found payable in respect of all or some of the occupiers of the flats/owners, as the case may be, the demand shall be indicated to each such flat owners, in respect of each such flat. In the event of failure to satisfy the same, it is open to the respondent Landdo to take appropriate action in accordance with law in respect of such portion; (xi)Having regard to the individual amounts apportioned, in respect of the 18 occupants, the said occupants hereby agree to refund the amounts payable by them to M/s. Shanti Apparels Manufacturing (P) Ltd. within a period of six months after such determination; (xii)If the individual allottees/occupiers of the 18 flats have any dispute with regard to the liability or any part thereof, it is open for them to agitate the same in appropriate legal proceedings in accordance with law. In such proceedings M/s. Shanti Apparels Manufacturing (P) Ltd. shall be impleaded as party; (xiii)If there is any further dispute inter se between M/s. Shanti Apparels manufacturing (P) Ltd. and individual flat owners, the same shall be dealt with in accordance with law and parties at liberty to approach the appropriate forum or seek arbitration in that regard. It is open to all the parties to enter into arbitration agreements with M/s. Shanti Apparels Manufacturing (P) Ltd. for the purpose of facilitating a speedy resolution of such disputes, if any; (xiv)Any amounts deposited with the Landdo as voluntary payment or towards any demands by either M/s. Shanti Apparels Manufacturing (P) Ltd. or any of the individual occupants shall be given due credit and adjustment. This shall also be indicated in the composite order to be issued by the Landdo. (xv)The Landdo shall file a compliance affidavit in these proceedings within a period of four months from today. ( 10 ) THE writ petitions, CCP and all other proceedings are disposed off in terms of above order. All rights and contentions of all the parties are kept open. Order Dasti under signatures of Court Master. .