Shri Trilok Singh Sawhney vs Delhi Development Authority
2002 Latest Caselaw 1231 Del

JUDGMENT

C.K. Mahajan, J.

1. Rule.

By way of this petition, petitioner seeks reimbursement of the amount of unearned increase, interest and excess compounding charges along with damages. He also seeks directions to the respondent not to interfere in the construction of the building till such time the construction has been allowed by the MCD and also stay of further proceedings before the learned MM, Patiala House. He also seeks quashing of the orders dated 22.6.1988, 26.11.1996 and 12.5.1997 passed by the respondent-DDA.

2. Briefly the facts are that one Mr. Kailash Chand Jain was the owner of plot No -D-924, New Friends

Colony, New Delhi. He executed a Will dated 18th June 1981 in favor of the petitioner. Mr. Kailash Chand Jain had submitted building plans for raising a residential house over the said plot which were sanctioned by the respondent on 20-7.1981. However, before construction could be started, Mr . Kailash Chand Jain died on 2.12.1981 and thus the petitioner became the owner of the aforesaid property by virtue of the Will dated 18th June 1981. The aforesaid plot was mutated in the name of the petitioner . Due to certain losses in business, petitioner could raise only the garage block over the said plot of land consisting of one living room, kitchen, bathroom, latrine, verandah, garage with requisite and proper walls etc. according to the sanctioned plan in 1983. Petitioner could not raise further construction due to riots in 1984. On 28.4.1988, petitioner applied to the respondent for extension of time for raising the construction and completion of the building. However, the respondent vide letter dated 22.6.1988 informed the petitioner that his mutation had been suspended and therefore extension as sought for could not be allowed. Petitioner protested vide letter dated 4.7.1988. A statutory notice dated 1.6.1989 was also sent to the respondent.

3. Since no action was taken by the respondent, petitioner filed a suit for declaration and

injunction. The Trial Court vide order dated 7th July 1995 while dismissing the suit of the petitioner on the ground of limitation held as under :- "The action of DDA in demanding unearned increase from the plaintiff is, therefore, ultra vires the provision of lease deed and is without jurisdiction.

I, therefore, hold that DDA is not competent to suspend the mutation which was granted earlier in favor of the plaintiff by DDA vide their letter dated 15.5.1982 Ex. DW1/P1. DDA is not competent to demand unearned increase from the plaintiff when the property has come to him from the original lessee by way of a Will. Accordingly, both the issues are decided in favor of the plaintiff ."

4. An appeal was filed by the petitioner.

During the pendency of the appeal, the respondent sent a letter dated 26.11.1996 restoring the mutation in the name of the petitioner on petitioner's depositing Rs. 4,15,891/- on account of unearned increase together with interest @ 18% per annum and unconditional withdrawal of court case. The appeal was withdrawn and the petitioner deposited Rs 18,01,695/- towards 50% unearned increase with 18% interest and compounding charges. The respondent vide letter dated 21-4.1997 removed suspension of the mutation and granted permission to construct the house vide letter dated 9.10.1997. The building plan was sanctioned by the MCD vide letter dated 25.11.1997.

5. The petitioner states that he is entitled to recover the excess cost of construction from the

respondent.

6. Petitioner sent a notice to the respondent on 17.10.1997 requesting them to release the amount collected from the petitioner along with damages to which no reply was received by the petitioner.

Hence the present petition.

7.   The     petition   is   opposed  by   the     respondent.
It     is     stated     that  the  mutation  in  the   name     of     the
petitioner     was     based     on   a  mistake   inasmuch     as     the
petitioner     was     not  a   family  member   of     Shri     Kailash
Chand     Jain     in     whose   name   the  plot   in     question     was
originally     sub-leased     and   thus  was   in     violation     of
Clause     II     (6)(a) & (b)  of   the  Perpetual     Sub     Lease.
Therefore,      the     mutation   in   the   name  of   the     petition
was     suspended.     However,   a   lenient  view  was   taken  and
the     petition  was  asked   to  deposit  50%  of   the  unearned
increase     amounting   to  Rs. 4 ,51 ,891/-   to   regularise   the matter .        The     petitioner   however   did   not   deposit     the
amount     and   requested   for   extension  of   time  which     was
not  agreed   to  as   the  mutation  already  stood  suspended.
During     the     pendency     of     the     appeal      filed     by.     the
petitioner,      the     petitioner   was  asked   to   deposit     50%
unearned     increase  along  with   18%   interest  so   that   the
mutation     could  be   restored.     Petitioner   deposited   the
demanded     amount     and     the       mutation     was        restored.

However, the petitioner once again asked for extension of time for completing the building. A demand of

Rs. 5,43,178/- was raised for delayed' construction which was deposited by the petitioner.

8. It is further stated that as per Clause II (6) (a) and (b), the sub-lessee could not have sold, transferred, assigned or otherwise parted with possession of whole or any part of the plot in any manner to a person who was not a member of the lessee, i.e., the New Friends Cooperative House Building Society. Petitioner was not a member of the said society. As per the proviso to the said clause, the Lesser was within its right to recover 50% of the unearned increase which the respondent has recovered from the petitioner.

9. I have heard the petitioner as well as the Law Officer appearing on behalf of the respondent-DDA.

There is no opposition to the writ petition as the Law Officer was unable to assist the Court.

10. The facts are not in dispute. The question that needs determination is whether bequest of property under a Will would amount to sale of the property. Reliance was placed upon a judgment of this Court in the matter of Mrs. Vijaya G. Gursahaney v. Delhi Development and Ors., CWP 3696/92 decided on 10th May, 1994. Lease hold rights were acquired by the petitioner under a Will executed by the lessee.

11. The respondent/PDA claimed unearned increase

from the petitioner on the ground that transaction between the petitioner and sub-lessee amounted to sale of the immovable property and therefore, the respondents were entitled to unearned increase in the value of the land for the purpose of transferring lease hold rights. The Court concluded that the decision of the respondents to charge unearned increase was not legal and the communication in this regard was invalid, The demand for payment of unearned increase was set aside.

12. In the present case, the Will executed by the deceased is not in dispute. All the rights under the Will were bequeathed in favor of the petitioner, The suit for declaration and injunction filed by the petitioner was dismissed by the trial Court only on the ground of limitation. The trial court held that DDA was not competent to demand unearned increase from the plaintiff and the issues other than that of limitation were decided in favor of the plaintiff (petitioner in the present petition). The respondents restored the mutation in the name of petitioner during the pendency of the appeal on petitioner's depositing Rs. 4,15,891/- on account of unearned increase together with interest @ 18% per annum.

13. In light of the aforesaid decision of the Division bench of this Court, the contention of the respondents that the petitioner was not a blood

relation of the deceased would be of no relevance. It is immaterial as to what considerations prevailed with the deceased for bequeathing the plot to the petitioner. Accordingly, the demand of the respondents as contained in the letter dated 26th November, 1996 is held to be illegal.

14. In light of aforesaid discussion, the petition is allowed. The respondents are directed to refund the amount of Rs. 4,15,891/- deposited by the petitioner towards unearned increase together with interest @ 18% per annual from the date of deposit till payment within four weeks from today.