Delhi High Court
Sh. Amit Kumar Singhal And Anr. vs D.D.A. on 11 September, 2002
Author: S K Kaul
Bench: S K Kaul
JUDGMENT
Sanjay Kishan Kaul, J.
1. Rule.
2. With the consent of learned counsel for the
parties, matter is being taken up for final hearing.
3. One Smt. Prakash Wati was the sub-lessee of plot
No. E-21, Panchshila Park, New Delhi in pursuance to
perpetual sub-lease dated 18.3.70. Smt. Prakash Wati
expired on 9.6.73 and prior to her demise had executed
a will dated 4.12.72 in favor of the petitioners. The
petitioners are the children of the younger brothers of
the husband of Smt. Prakash Wati.
4. Petitioners applied for grant of probate and
probate certificate was issued on 14.11.1975. The two
daughters of Smt. Prakash Wati were also made parties in
the probate proceedings. The petitioners applied for
mutation of the property in their name on 29.7.77 and
property was mutated in terms of letter dated 3.4.78.
5. On 5.1.2000 petitioners applied for conversion
of the property from lease hold to free hold. On
12.12.2000 a letter was issued by the respondent
stating that since the mutation made in pursuance to
the letter dated 3.4.78 was not proper as the
petitioners were not blood relations, the conversion
could not take place. It was also stated in the said
letter that the mutation was being cancelled and it was
suggested that same could be restored upon payment of
50% of un-earned increase amounting to Rs. 4,04,209/-.
Threat was held out for cancellation of the sub-lease.
Petitioners aggrieved by the said letter have filed the
writ petition praying for quashing of the letter dated
12.12.2000 and to direct the respondent to convert the
property of the petitioners into free hold.
6. In the counter affidavit filed by respondent the
facts as set out above are not disputed. It is stated
that mutation granted earlier vide letter dated 3.4.78
was re-examined at the time of conversion proceedings
and the mutation was cancelled vide letter dated
12.12.2000 since the petitioners were found out of the
blood relationship with the deceased sub-lessee. A
reference is made to an office order dated 18.8.1998
stating a policy regarding recovery of un-earned
increase in respect of case of transfer of properties.
Relevant clause of the said office order is as under:
"It is, therefore, clarified that all
such cases where mutation was suspended on
account of mutatee/transferee being
outside the definition of 'Family Member'
and which is pending for want of decision
regarding unearned increase, can be
regularized after recovery of demanded
amount of unearned increase Along with
interest @ 18% up to the date of payment.
Further, old cases of transfer where the
delay in raising the demand on account of
unearned increase had been on the part of
DDA, in such cases unearned increase at
old rates Along with interest @ 18% would
be chargeable."
7. Learned counsel for the petitioners contends
that the matter in controversy is no more res intgra in
view of judgment of DB of this Court in Mrs. Vijaya
Gursahaney v. DDA and Ors. 1994 RLR 397. It was
held in the said case that the DDA could not recover
un-earned income from a legatee of lessee's who has
obtained Letters of Administration under the Succession
Act since the grant of Letters of Administration is a
judgment in rem. It was held that on a legatee's
application for mutation, the DDA cannot hold any
enquiry about the Will and the object of the DDA cannot
be to harass citizens. It is also relevant to note
that in the aforesaid judgment the policy of the DDA in
this behalf was considered.
8. I am in agreement with submissions of learned
counsel for the petitioners. In the present case
probate has been granted to the petitioners which would
amount to a judgment in rem. It is not open for the
respondent in such a situation to dispute the bequeath
made in favor of the petitioners or to claim un-earned
increase merely because the petitioners does not fall
within the definition of blood relations as set out by
the respondent. Un-doubtedly the petitioners are close
relations of the deceased sub-lessee though they do not
fall in the category of the blood relations as defined
by the respondent.
9. There is another aspect to matter in as much as
mutation of the property was carried out as far back as
in 1978. When the petitioners applied for conversion
from lease hold to free hold in January, 2000, the
respondent suddenly woke up after a period of 22 years
to demand un-earned increase. One is left to wonder as
to what was the reason for this action.
10. I am of the considered view that the action of
the respondent in cancelling the mutation in favor of
the petitioners and demanding the un-earned increase is
totally illegal and without any basis.
11. A writ of mandamus is issued quashing impugned
letter dated 12.12.2000 and it is directed that the
respondent shall carry out the conversion of the
property into free hold without demanding any un-earned
increase on the petitioners completing necessary
formalities. Needful will be done within a period of
three months from today. In case any further
formalities are required to be completed by the
petitioners, the same will be intimated to the
petitioners within two weeks from today.
12. The petitioners shall also be entitled to costs
of Rs. 5000/-.
CM 792/2002
13. No further orders are called for on this
application in view of disposal of the writ petition.
Application stands disposed of.
