Delhi High Court
S.R. Bhutani And Ors. vs D.D.A. on 29 January, 2003
Equivalent citations: 2003 (68) DRJ 380
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 the matter is taken up for final disposal.
3. A perpetual sub-lease deed dated 16.2.1973 was executed by the President of India in favor of one Sh. M.L Tandon in respect of plot bearing No. C-566, New Friends Colony, New Delhi. The said Sh. Tandon entered into an agreement for transfer of the property and also executed a registered Wilt on 28.3.1977. Sh. Tandon expired on 3.1.1980 and in terms of order dated 14.1.1982 passed by the respondent the property was mutated in the name of Mohd. Yunus on the basis of the registered Will and an endorsement to that effect was also made on the perpetual sub-lease deed.
4. The petitioners entered into an agreement with Mohd. Yunus for purchase of the property in question on 27.6.1992. Mohd. Yunus also executed a registered General Power of Attorney on the same date in favor of petitioner No. 4.
5. In April, 1992 Government of India announced a scheme for conversion of plots up to size of 500 sq. metres and the petitioners applied to the respondent on 22.2.1993 for conversion into free-hold and paid the amount in Installments in terms of the scheme from 1993 to 1997 including 33% surcharge since it is a power of attorney transaction. The petitioner kept on making representations for execution of the free-hold document of title but respondents did not execute the same.
6. Respondent No. 2 issued a notice dated 23.7.2001 demanding a sum of Rs. 3,16,933/- towards 50% unearned increase Along with interest @ 18% per annum from 14.1.1982 till date of payment. It is stated in the said letter that the mutation of the plot stands suspended due to obtaining, unauthorised, mutation out of family members and that the case for regularisation and mutation will be considered on the payment of the aforesaid amount Along with the restoration charges. The petitioner objected to the same vide letter dated 16.8.2001 but the respondents sent another letter in September, 2001 in the form of final notice of
demand. The petitioner thus filed the present petition for quashing of the aforesaid demands and for directions to the respondent to execute the document of freehold title in their favor.
7. In the counter affidavit the only plea raised is that Mohd. Yunus obtained a mutation in his favor by concealing the fact that he was not a family member of original sub-lessee Sh. M.L. Tandon. The particulars of the fraud have however not been stated since the plea is not that Mohd. Yunus claimed to be a family member and that he had misrepresented himself as a family member. The defense is based on the fact that in terms of the office order of the respondent dated 18.8.1999 such mutation should take place only inter se the family members and not to third persons. Interestingly, this circular is much after the mutation has been carried out in favor of Modh. Yunus.
8. It is also being pleaded in the counter affidavit that different agreements have been executed in favor of petitioners 1 to 3 in respect of the portions of property and no such division of the plot is permissible.
9. Learned counsel for the petitioner has referred to the judgment of this court in H.R. Vaish v. Union of India & Ors., dealing with the issue of conversion of lease-hold into free-hold where a reference has also been made to the circular of the DDA dated 23.6.1995 read with earlier letter dated 16.5.1994. The said circular deals with various categories of cases and in terms thereof where lessee/sub-lessee has applied for sale permission but DDA has not conveyed the unearned increase or where the same has been conveyed but has not been paid the application for sale permission should be treated as infructuous/withdrawn. Even in cases where after sale permission was conveyed the amount of unearned increase has been paid in full or part but no sale deed has been executed the amount is liable to be refunded. The only exceptions is a case where after completion of formalities the sale deed has also been registered.
10. In my considered view the principles laid down in H.R. Vaish's case (supra) would squarely apply to the present case since the case of the petitioner would be covered by the circular dated 23.6.1995.
11. Even assuming that, Mohd. Yunus was not entitled to the mutation of the property in question the consequence of that would have been that it would be a second power of attorney sale transaction and the petitioners would be entitled to the conversion in their name on payment of 33% extra charges. These charges have been so paid. The factum of the intervening mutation in favor of Mohd. Yunus cannot convert the nature of transaction which is one of power of attorney.
12. Another aspect to the present case is the fact that the petitioners have purchased the property in question in pursuance to the mutation carried out by the respondent in favor of Mohd. Yunus. The petitioners certainly cannot be prejudiced only on the ground that the said mutation should not have been carried out in favor of Mohd. Yunus and unearned increase should have been recovered. In terms of the scheme of conversion there is no question of payment of unearned increase by any of the parties. This is abundantly clear from the circular dated 23.6.1995.
13. Insofar as the plea about different agreements being entered into in favor of petitioners 1 to 3 and petitioner No. 4 being appointed as power of attorney is concerned learned counsel for the petitioner fairly states that petitioners 1 to 3 are not seeking a segregated mutation/transfer on a free-hold basis but that the property should be transferred jointly in favor of petitioners 1 to 3 on a freehold basis.
14. In view of the aforesaid a writ of certiorari issued quashing the impugned notices dated 23.7.2001 and September. 2001 seeking to recover unearned increase and restoration charges against the petitioners. A writ of mandamus. Is issued directing the respondents to execute the conveyance deed on a free-hold basis in favor of petitioners 1 to 3 on the petitioners completing necessary documentation in the behalf. The needful be done within a period of 8 weeks and the conveyance deed be duly registered in favor of the petitioners 1 to 3.
15. The writ petition is allowed with costs of Rs. 5000/-.
