Vijaya C. Gursahaney vs Delhi Development Authority And ...
1994 Latest Caselaw 329 Del

JUDGMENT

D.F. Wadhwa, J.

(1) The petitioner, who says that lease hold rights of plot be a ring No.D-3,Community Centre,Naraina,NewDelhi, devolved upon her under a Will executed by its lessee, challenges the demand raised by respondent-Delhi Development Authority (for short 'the DDA') towards 50% unearned increase in the value of the land four the purpose of transferring leasehold rights in her favor, and petitioner further seeks a direction that the plot be transferred in her name without payment of any unearned increase, and that necessary mutation be made in the records of the D.D.A. In the alternative,it is prayed that in case the petitioner is liable to pay 50% unearned in crease, it should be on the basis of the value or the rate of land prevalent on 8 May 1980 when the petitioner applied for transfer of the leasehold rights of the plot in her favor.

(2) There are two respondents. First respondent is the D.D.A., a body constituted under the Delhi Development Act, 1957, and the second respondent is the Deputy Director (CD in the office of the D.D.A. By a subsequent order. Union of India through the Secretary, Ministry of Urban Development, was also imp leaded as a respondent No.3.

(3) Ram Dhan was the original lessee having perpetual leasehold rights in the plot inquestion. He executed a Will dated 26 October 1977 bequeathing the leasehold rights in the plot in favor of the petitioner. Ram Dhan died. The petitioner applied to the court of the District Judge,Delhi,for grant of Letters of Administration with copy of the Will annexed. On 7 May 1980 the District Judge granted her the necessary Letters of Administration. On 8May 1980 she wrote to the Deputy Director (Commercial), Dda, respondent No.2, that Shri Ram Dhan had executed a Will in her favor, and that she had taken out Letters of Administration in her favor. She, therefore, wanted the leasehold rights of the plot to be transferred in her name.

(4) Multiple correspondence ensued. Then on 19 June 1992,after about 12 years of the petitioner writing to the Dda, she received a letter from the second respondent raising a demand of p63 Rs.6,51,020.00 towards 50% unearned increase required to be deposited within 15 days from the date of the letter, otherwise it was stated that allotment of .the plot was liable to be cancelled without any further notice. Again the petitioner was informed by letter dated 17 September 1992 of the Dda requiring her to pay the aforesaid amount within 15 days otherwise allotment of the plot was threatened to be cancelled.These two letters, the petitioner is challenging in this petition, and, as noted above, has also prayed for transfer of the plot in her favor without payment of any unearned increase. Since she did not get any relief from the respondents, this petition was filed on 15 October 1992.

(5) By an interim order this court directed stay of cancellation of the allotment of the plot and recovery of the unearned increase as demanded by the D.D.A. subject, however, to the condition that the property in question shall not be disposed or, encumbered by the petitioner.

(6) Only the Dda filed its counter-affidavit opposing the petition. It is stated that there had been violation of the terms and conditions of the lease deed and, therefore, the lease of the plot was liable to be forfeited, and that the petitioner, therefore, had no right to invoke the jurisdiction of this Court under Article 226 of the Constitution. Then it was stated that after considering the documents filed by the petitioner she was liable to pay 50% of the unearned increase amounting tors.6,51,020.00 together withinterestattherateofl8%perannumtillthedateofpayment,andthatthisdecision was communicated to the petitioner by letters dated 14May 1992,19 June 1992 and 17 September 1992, and that the demand was raised as per the terms and conditions of the lease deed. Then the respondents said that the lease deed was granted in favor of the original lessee under the Government Grants Act by the President of India and was a statutory document. It Was not denied that the leasehold rights of the plot in question were purchased by Ram Dhan and lease deed had been executed in his favor, but it was said that the impugned action had been taken in terms of that document. Respondents said that the request of the petitioner for transfer of leasehold rights in her favor were received in the office of respondents on 8 May 1980 along with copy of death certificate of Ram Dhan as well as copy of Letters of Administration granted by the District Judge by order dated 27 April 1979. Respondents then said that the petitioner was asked to furnish certain documents like sale agreement, power of attorney if executed by Ram Dhan in her favor, and also certified true copy of the 'probated' Will. Then the respondents stated that when they examined the Will certain "commitments" were mentioned therein and the petitioner was asked to explain the significance of these words in detail. It was only then that the petitioner was asked to pay 50% unearned increase of the price of the land as per the policy decision of the respondents.

(7) It will be appropriate to refer to some of the relevant terms of the perpetual lease deed on the basis of which the respondents state that they had raised the demand. These would be sub-clauses 4, 5 and 8 of clause Ii pertaining to the covenants to be performed by the lessee, and are:- (4)(a) The Lessee shall not sell, transfer, assign or otherwise part with the possession of the whole or any part of the commercial plot except with the previous consent in writing of the Lesser which he shall be entitled to refuse in his absolute discretion. Provided that such consent shall not be given for a period of ten years from the commencement of this Lease unless, in the opinion of the Lesser, exceptional circumstances for the grant of such consent. Provided Further that in the event of the consent being given, the Lesser may impose such terms and conditions as he thinks fit and the Lesser shall be entitled to claim and recover a portion of the unearned increase in the value (i.e. the difference between the premium paid and the market value) of the plot at the time of sale, transfer, assignment, or parting with the possession, the amount to be recovered being fifty per cent of the unearned increase and the decision of the Lesser in respect of the market value shall be final and binding. Provided Further that the Lesser shall have the pre-emptive right to purchase the property after deducting fifty per cent of the unearned increase as aforesaid. (b) Notwithstanding anything contained in sub-clause (a) above,.the Lessee may, with the previous consent in writing of the Chief Commissioner of Delhi (hereinafter called "the Chief Commissioner"), mortgage or charge the plot to such person as may be approved by the Chief Commissioner in his absolute discretion. Provided that,in the event of the sale or fore-closure of the mortgaged or charged property, the Lesser shall be entitled to claim and recover the fifty percent of the unearned increase in the value of the plot as aforesaid, and the amount of the Lesser's share of the said unearned increase shall be a first charge,having priority over the said mortgage or charge. The decision of the Lesser in respect of the market value of the said plot shall be final and binding on all parties concerned. Provided Further that the Lesser shall have the pre-emptive right to purchase the mortgaged or charged property after deducting fifty percent of the unearned increase as aforesaid. (5) The Lesser's right to the recovery of fifty percent of the unearned increase and the pre-emptive right to purchase the property as mentioned herein before shall apply equally to an involuntary sale or transfer whether it be by or through an executing or insolvency court. (8) Whenever the title of Lessee in the plot is transferred in any manner whatsoever the transferor and the transferee shall, within three months of the transfer, give notice of such transfer in writing to the Lesser. In the event of the death of the Lessee the person on whom the title of the deceased devolves shall, within three months of the devolution, give notice of such devolution to the Lesser. The transferee or the person on whom the title devolves, as the case may be,shall supply the Less or certified copies of the document(s) evidencing the transfer or devolution. " If we refer to the policy decision of the D.D.A., it is as under : "I In cases where a request is received for transfer of property on the basis of 'WILL' to a person outside blood relation who is not within the definition of 'family member' under the guidelines issued earlier, the following documents should necessarily be obtained from the applicant/legatee for the purpose of mutation :- (1) Certified copy of will left by the allottee; (2) Death certificate of the allottee; (3) Affidavit disclosing the particulars of the legal heirs whom the allottee had survived; (4) No objection of the legal heirs regarding mutation of the interest of the deceased in favor of the legatee(s); (5) Affidavit from the legatee declaring that the properly in question had not passed on to him during the lifetime of the Testator and no sale agreement/agreement for construction etc., had been executed by the Testator in his/her favor, nor any GPA/SPA had been executed in his favor or in favor of a person nominated by him; (6) Legatee may be asked to produce certified copy of assessment order of income-tax and house tax receipt showing the name of the person in whose name the property is being assessed; (7) An undertaking from the applicant/legatee to the effect that if at any stage it is found out that the property had passed on to the legatee during the lifetime of the Testator, then it will be deemed to be a case of misstatement of facts, misrepresentation or fraud and the mutation in his/her favor shall stand terminated and the property shall automatically vest in the Lesser; (8) Indemnity Bond from the legatee duly registered; (9) In case the plot/flat was allotted through a Co-operative Society, the Noc from the Society; (10) Original registration Certificate, Fixed Deposit receipt, Challan form, wherever necessary; and (11) Such other documents as required to be obtained as per instruction issued from time to time or procedure laid down therefore. II. In case where a request is received for transfer of property on the basis of Will to a person within the definition of family member, following documents should be obtained from the applicant/legatee :- (1) to (3) -same documents as mentioned in SI. No. 1 (1) to (3) above. (4) No objection of the legal heirs other than those who are legatee(s) regarding mutation of the interest of the deceased in favor of the legatee(s). (5) to (9) -same as mentioned at sl. No. 1(7) to (11) above. III. Thorough enquiry should be made before effecting the mutation with a view to seeing if any monetary consideration has passed in executing the 'WILL' by the Testator in favor of the legatee. If it transpires that the Will was executed out of monetary consideration, then necessary action for recovery of 50% unearned increase should be initiated. IV. In case where probate/letters of administration have been obtained, then no other documents need be asked for except documents as mentioned at sl. No. 1(5) to 1(8) and 1(10) above. V. Mutation should be recommended by the concerned officers in favor of the legatee only after satisfying themselves that the right of the Lesser regarding recovery of amount of 50% unearned increase is not being jeopardised.

(8) It is not disputed, and nay it could be disputed, that under the Will executed by Ram Dhan, the original lessee, he bequeathed all his rights in the plot in favor of the petitioner. It should be immaterial, as far as respondents are concerned, as to what considerations prevailed upon Ram Dhan to bequeath his plot to the petitioner. For the respondents to allege that Will was not executed by the testator out of any love or affection for the petitioner, is of no relevance.The petitioner obtained Letters of Administration as per the procedure prescribed under the Indian Succession Act, 1925. The Letters of Administration in the form prescribed under section 290 of the said Act were granted on 7 May 1980 in pursuance of the order dated 27 April 1979 of the District Judge, Delhi. We may also set out the Letters of Administration, the schedule attached to which mentions the plot in question :- "I,G.C.JAIN,Judge of the District of Delhi, hereby make known that on the 27th day of April, 1979, letters of administration with a copy of the Will annexed of the property and credits to the extent of Rs.37,000.00 (Rs.Thirty seven thousand only) as per schedule attached of late shri Ram dhan, late of Delhi, deceased, were granted to Mrs. Vijaya C.Gursahani wife of Shri Chandra Gursahani resident of II-0/48,Lajpat Nagar, New Delhi, she having undertaken to administer the same, and to make a full and true inventory of the said property and credits and exhibit the same in this court within six months from the date of this grant or within such further time as the court may from time to time appoint and also to render to this court a true accounts of the said property and credits within one year from the same date or within such further time as the court may from time to time appoint. Given under my hand and the seal of the court this 7th day of May 1980. sd/- District JUDGE: DELHI."

(9) Under section 220 of the Indian Succession Act, Letters of administration entitle the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death. The administrator, on the grant of Letters of Administration with the Will annexed, is entitled to all rights the deceased had at the time of his death vested in him. The order granting Letters of Administration is a judgment in remand is conclusive proof, inter alia, of the existence and genuineness of the Will and its effect cannot be nullified except by proceedings for revocation of the Letters of Administration. The Letters of Administration with Will annexed are granted when the court is satisfied that the Will has been duly executed and attested. When the law provided as to how the Will is to be proved and Letters of Administration granted, D.D.A. is no authority to start parallel proceedings to find out the genuineness of the Will. The relevant clauses of the lease deed, which we have set out above and on which the respondents refy, do not at all entitle the D.D.A. to charge any unearned increase from the legatee when the lessee in his Will had bequeathed the property to him.It is only the genuineness of the Will unless it is probated or Letters of Administration obtained which would make the D.D.A. to enquire into the same. Of course, as the law stands in Delhi, it is not necessary to have the Will probated or to have the Letters of Administration obtained, and the authority can itself satisfy as to the genuineness of the Will by adopting the fair and reasonable method. However, if it is unable to decide for any reason, it can require the legatee to get the genuineness of the Will established in a court of law as per the procedure prescribed under the Indian Succession Act. The D.D.A.can not broad base its enquiry as per the policy decision extracted above.

(10) We find that the decision of the respondents requiring the petitioner to pay unearned increase and interest thereon is not legal, and their communications dated 19 June 1992 and 17 September 1992 have no validity in law and are set aside. A direction is issued to the respondents to transfer the leasehold rights in property being Plot No. D-3, Community Centre, Naraina, New Delhi, measuring 88.8 sq. yds.,in favor of the petitioner and to mutate the plot in her name,all on the basis of the letters of administration with the Will annexed in her favor. "Will' means the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death [see section 2(h) of the Indian Succession Act]. There is nothing in the terms of the lease deed that the legatee has to pay any charges towards unearned increase in the cost of the land comprising the plot.

(11) We must record our deep anguish at the harassment caused to the petitioner all these 15 years. The correspondence with the D.D.A. forms part of as many as three volumes in its record, which was shown to us at the time of hearing. It is unfortunate that so much paper work has gone into without any benefit to the petitioner. The D.D.A.has been constituted to promote and secure the development of Delhi according to plan and for that purpose various powers have been conferred upon it. It is, thus, constituted for the benefit of the people. When it is allotting a plot or transferring the leasehold rights in plot in favor of other persons, it is not showing any favor or giving any dole, or conferring any special benefit on them. Rather, its instrumentalities should act with a feeling that they are serving the people and they should not by their actions or otherwise thwart the rights of the people which they have under the law.In the circumstances of this case we award Rs.5,000.00 as costs to the petitioner.

(12) Rule is made absolute.