Smt. Sushila Kumari vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 960 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Petitioner prays that demand raised vide letter dated 16.9.2002 be quashed and mandamus be issued to the first respondent to raise the demand for ground rent upon the respective flat owners i.e. respondents 3 to 10, in proportion to the areas owned and occupied by them. Further mandamus is sought that the demand of interest raised in the impugned letter be quashed. Further mandamus is sought that the first respondent be directed to refund or otherwise adjust a sum of Rs.15,70,909/- paid by the husband of the petitioner.

2. Writ petition concerns itself with property bearing Municipal No.10-A, Prithvi Raj Road, New Delhi.

3. Impugned letter issued by the first respondent to the petitioner reads as under:-

" No. L & DO/LI-9/2(3-A)/2002/418 Dated:16.9.2002.

To,

Smt. Sushila Kumari,

Wife of Late Dr. Karni Singh,

Executrix & Trustee,

Lallgarh Palace,

Bikaner-334001.

Sub: Premises situated on Plot.No.3 (part), Block No.2 known as 10-A, Prithviraj Road, New Delhi.

R/Madam,

I am directed to refer to your letter dated Nil received in this office on 17.7.2002 on the above subject and to say that the following payments are to be made by you being the legal representative of the lessee of the property:

1. Amount demanded vide this office letter dated 29.3.93. Rs.2,13,729.00 Interest on item No.1 & 2 of demand letter Dated 29.3.93 @ Rs.1564/- P.M. w.ef. 15.4.93 to 14.9.2002. Rs.1,76,732.00 3. R.G.R w.e.f. 15.7.93 to 14.1.2003 @ Rs.67850/- P.A. Rs.6,44,575.00

4. Interest on above R.G.R

w.e.f. 15.7.93 to 14.9.02

@ 10 %P.A. Rs.3,01,008.00

You are, therefore, requested to remit the above amount through Bank Draft drawn in favor of Land & Development Officer, New Delhi Along with a set of clothmounted completion plans as demanded vide this office letter dated 21.3.95 within 30 days from the date of issue of this letter, failing which action under the terms of lease will be taken.

Your faithfully,

Sd/-

R.P. Singh)

Assistant Settlement Commissioner.

4. Property bearing Municipal No.10, Prithvi Raj Road, New Delhi measuring 2.6 acres was demised by the Secretary of State on a perpetual lease in favor of Lala Gopal Das Kapur vide perpetual lease deed dated 10.4.1923. Rent as per lease for the land was Rs.300/-. The covenants contemplated increase in the yearly rent. Inter alia, the perpetual lease deed dated 10.4.1923 contains the following covenants:-

"(2) The Lessee will pay unto the Lesser the yearly rent hereby reserved on the days and in the manner hereinbefore appointed.

(4) All arrears of rent and other payments due in respect of the premises hereby demised shall be recoverable in the same manner as arrears of land revenue under the provisions of Punjab Land Revenue Act, 17 of 1887, and any amending Act for the time being in force.

(12) The Lessee shall upon every assignment, transfer or sub-lease of the said premises hereby demised or any part thereof within one calendar month thereafter deliver a notice of such assignment, transfer or sublease to the Chief Commissioner, Delhi or such officer or body as the Governor General in Council may authorise in this behalf setting forth the names and description of the parties thereto and the particulars and effect thereof, and all such assignees transferees and sublessees and the heirs of the Lessee shall be bound by all the covenants and conditions herein contained and be answerable in all respects therefore."

5. Perpetual lease was in favor of the father-in-law of the petitioner, H.M.Sadul Singh G.Bahadur of Bikaner. On demise of H.M.Sadul Singh G.Bahadur on 29.5.1950, property was inherited by his son, husband of the petitioner, Dr. Karni Singh Bahadur. Supplementary perpetual lease deed dated 11.10.1967 was executed by the first respondent in favor of Dr. Karni Singh. By and under this supplementary perpetual lease, additional benefits were granted. Nothing turns on terms of the said supplementary perpetual lease as far as the issues raised in the present petition are concerned. Its execution has been noted for record.

6. On 2.2.1973, Dr. Karni Singh sold 2.10 acres (out of the total area of 2.6 acres) to one Sh. Sudarshan Kumar Punj & Ors. He retained land measuring 0.5 acres unto himself.

7. This remainder, 0.50 acres of land retained by Dr. Karni Singh was given Municipal No.10-A, Prithvi Raj Road, New Delhi, the property to which this petition relates itself to.

8. Vide letter dated 24.1.1979, Dr. Karni Singh sought no objection from the first respondent to effect construction of flats on the 0.50 acres of land. Vide letter dated 13.10.1981, the first respondent conveyed its approval to Dr.Karni Singh, but on certain terms. Approval contained is as under:-

"No.1I-9/2(3-A)/784 New Delhi, dated 13.10.81

To,

Dr. Karni Singh,

Lallgarh Palace,

Bikaner (Rajasthan).

Sub: Premises situated on Plot No.3-A, Block No.2, known as 10-Prithviraj Road, New Delhi.

Dear Sir,

With reference to your letter dated 24.11.79, seeking permission for construction of multi-storeyed group housing building on the demised premises in terms of clause (5) of the lease, I am to inform you that the Lesser is willing to consider your said request provided you are willing to comply with the following terms and conditions in full, in advance:-

1. Payment of addl.Premium in lump-sum Rs.13,50,405.00 Payment of interest on addl.

Premium @ 10% P.A. from 26.2.80 to 14.10.81 and thereafter from 15.10.81 to the date of payment @ Rs.11,263.38. P.M (to be calculated and added). Rs.2,20,504.50

2. Payment of existing ground rent from 15.10.80 to 14.1.82 @ Rs.57.10 P.A. Rs.171.30 Interest @ 10%P.S from 15.1.80 to and thereafter from 15.10.81 to the date of payment @ Rs.1.43 P.M (to be calculated and added).

3. Revised ground rent @ Rs.67850/P.A Rs.17.10 after three years from the crucial date i.e. 26.2.83 or from the date of completion of the building whichever is earlier.

4. Furnishing an undertaking on non-judicial paper of Rs.2/- agreeing to pay the revised ground rent of the original ground rent in terms of clause (14) of the original lease.

5. Furnishing an undertaking on non-judicial paper of Rs.2/- agreeing to execute at your own cost a suppl.Lease deed which will provide for apart from the above, and in addition to the existing covenants of the lease to the extent the same are not modified or superseded by these terms, the following:-

5A.Cost of supplementary lease Rs.60.00

i) restricting the sale, transfer, mortgage, assignment of the building, blocks, flats or any part thereof without the prior permission of the Lesser and payment of unearned increase in any of such events.

ii) revision of addl.ground rent after every span of 10 years the ground rent so revised however, will not exceed 25% of the ground rent prevailing at the time of each revision.

iii) Keeping a running strip of land measuring 1425 Sq.ft in front and rear at the demised premises free form all encumbrances, structure, construction and surrendering the same to the Lesser or his authorised agent as and when called upon to do so.

Along with the Supplementary Lease Deed, executing Tripartite agreement so as to facilitate the transfer of flat/flats or leasehold right on pro-rata basis and the formation of a Co-operative Society of the Flat owners for smooth running of the common amenities and common places etc. (Standard Form of such tripartite agreement containing detail stipulation and the draft of the Supplementary Lease Deed of which Tripartite Agreement will be an integral pat will be supplied later on).

The construction of the multi storeyed commercial group housing building will not be started until the exemption under section 20 & 21 of the Urban Land (Ceiling & Regulation ) Act, 1976 is obtained and plans got sanctioned under Municipal Bye-Laws from the local body and got approved from the Lesser under the terms of lease deed.

If the above terms and conditions are acceptable the acceptance thereof may please be communicated to this office in writing together with the necessary undertakings and a crossed cheque/demand draft covering the full amount drawn in favor of Land & Development Officer within 30 days from the date of receipt of this letter so that the final terms and conditions of the proposed supplementary Lease Deed and the formal documents to be executed between the parties may be finalised and the draft of such supplementary lease deed may be communicated to you. If your acceptance, the undertaking and the amount mentioned, hereto before is not received within 30 days aas stated above it will be presumed that you are not willing to accept these terms and conditions.

In case you have any point to clarify in connection with the above, you may kindly see the undersigned after prior appointment (Tele: 322624) between 2 to 3 P.M. in the afternoon within a week of the date of receipt of this letter.

Yours faithfully,

Sd/-

Dy.Land & Development Officer.

For & On behalf of the President of India."

9. It may be noted at this stage itself that term of the approval for construction of flats and sale thereof to third parties was that the transfer of the flat of leasehold right would be on pro-rata basis as far as the land was concerned. A tripartite would be entered into to facilitate the transfer. A co-operative society of the flat owners would have to be formed.

10. Armed with the permission to construct flats on the land, Dr. Karni Singh entered into a collaboration agreement dated 12.11.1981 with a developer, M/s. Bhayana Builders Private Limited. As per the said agreement, the builder was to construct 9 flats. 3 flats fell to the share of Dr. Karni Singh and the remaining 6 flats fell to the share of the builder. In other words, contribution of Dr. Karni Singh was the land. Contribution of the builder was the money to be spent on construction of the flats.

11. Flats came to be constructed as per the collaboration agreement. 3 flats, being Nos.7, 8 and 9 came to the share of Dr. Karni Singh. The remaining 6 flats were sold by the builder to respondents 3 to 8 herein.

12. On the death of Dr. Karni Singh, the 3 flats which fell to his share were inherited by the petitioner and respondents 9 and 10 in the present petition.

13. On 7.7.1992, the first respondent required the petitioner to ensure that an association of apartment owners was framed. Following was communicated to the petitioner:-

"No.1I-9/2(3A)/92/441 Dated: 7.7.92.

To,

Smt. Sushila Kumari,

Wife of Late Dr.Karni Singh,

Executrix & Trustee,

Lallgarh Palace,

Bikaner-334001.

Sub: Premises situated on Plot.No.3-A, Block No.2 known as 10-A, Prithviraj Road, New Delhi.

Madam,

In terms of para 5 of this office letter No.1I-9/2(3-A)/79/794 dated 13.10.91, you have furnished an undertaking that you will execute a Supplementary Lease Deed on re-development of the demised premises mentioned above into Multi-Storeyed Group Housing Building but the same has not yet been executed.

Further your attention is invited to section 13(1) of the Delhi Apartment ownership Act, 1986 where under you are required to execute deed of Apartment in case of an allotment, sale or other transfer as under:

(a) In the case of an allotment, sale or other transfer made after the commencement of this Act, within 3 months from the date of such allotment, sale for other transfer and

(b) In th case of any allotment, sale or transfer made before the commencement of this Act within six months from the date of such commencement.

You are also requested to take action for the formation Association of Apartment owners as required under Section 15 of this Act. A copy of this model Bye-Laws of Association of Apartment owners is also enclosed.

Under Sub-section 2(9) of this section, you were tom file in this office a certified copy of each deed of Apartment duly registered as provided in Section 14 of this Act. This office has not so far received any deed of Apartment from you in respect of Apartment/Flats constructed on the demised premises. A specimen of the deed of Apartment is enclosed. You are, therefore, requested to please execute deed of Apartments in favor of the allottees/ transferees/ vendees, as the case may be, have these registered and furnish a copy of each such deed to this office within a period of 30 days from the date of receipt of this letter.

Yours faithfully,

Sd/-

(G.V.Krishna Rau)

Land & Development Officer."

14. Petitioner responded to the said letter. Response was as under:-

"Shri G.V.Krishna Rau

Land & Development Officer,

Ministry of Urban Development,

Nirman Bhawan, New Delhi.

Sub: 10A, Prithvi Raj Road, New Delhi.

Sir,

Under instructions from and for and on behalf of my client Smt. Sushila Kumariji, widow of Dr.Karni Singh, Lallgarh Palace, Bikaner and in response to your letter No.1I-9/2 (3A) 92/dated 7.7.92, it is submitted as under:-

1. That in your letter No.1I-9/2(3A)/79/794 dated 13.10.81 you had specifically stated as under:-

"(Standard form of such tripartite agreement containing detail stipulations and th draft of the supplementary lease deed of which tripartite agreement will be an integral part will be supplied later on)".

However, since no such draft has been sent to my client in your letter under reply, it is not possible to reply effectively thereto.

2. That in reply to your above said letter dated 13.10.81, you had received from Dr.Karni Singh, a letter date 12.11.81 whereby he paid the sum demanded by you under protest. There is not provision under any Act, Rule of Law for payment of additional premium @ 10% P.A from 26.3.80 to 14.10.81 amounting to Rs.2,20,504.50 i.e. your office had illegally and wrongfully collected from Dr. Karni Singh, a sum of Rs.15,70,909.50 which is still lying with you in trust and which you are liable and bound to return to my client, forthwith.

3. That in reply to the rest of the contentions raised in your letter regarding execution of Deed of Apartment etc., it is submitted that although the Delhi Apartment Act has been enacted, it is not yet being implemented due to certain drawbacks and short coming which are prepared to be discussed and modifications approved in the current section of Parliament, as per recent newspaper reports. As such, the act is not yet in force.

My client has no intention whatsoever to deliberately flout any rule or order. On the contrary, the flat-owners at 10-A, Prithviraj Road, New Delhi had already taken steps and called a meeting to enable the formation of a society of flat-owners but the same could not be formed due to lack of quorum.

In the circumstances you are requested to refund the sum of Rs.15,70,909.50 to my client and to also intimate the names and designations of the officers to whom the Deed of Apartment and Association of Apartment owners etc., are to be submitted.

Yours faithfully,

Sd/-

(Sandip Choudhary)

Advocate."

15. On 21.10.1992, demand was raised upon the petitioner for ground rent for the period 15.7.1990 to 14.1.1993 in the sum of Rs.1,69,625/-. Interest at the rate of 10% for belated payment for ground rent in the sum of Rs.22,619/- was also demanded. Petitioner responded vide letter dated 18.5.1993. She disputed her liability to pay the ground rent. She intimated the names of the purchasers of the flats and required the first respondent to recover the ground rent proportionately. Petitioner also called upon the first respondent to refund to her the sum of Rs.15,70,909.50/- paid by her late husband towards ground rent.

16. Correspondence continued. To cut the long story short, ground rent was not paid. Impugned demand dated 16.9.2002 was raised.

17. Present petition was filed stating the facts aforesaid. Grounds on which the demand has been challenged is that under Clause 12 of the perpetual lease dated 10.4.1923, lease or any part thereof was assignable with the consent of the Lesser. On transfer being effected, the assignees were bound by the covenants and conditions of the lease. Thus since the first respondent had granted consent for construction of the flats, proportionate demand had to be raised on the respective flat owners. Challenge is expanded by raising the additional ground that when consent was granted, there was a term that a tripartite agreement would be entered into. At that stage it was contemplated that a legislation"Delhi Apartments ownership Act" would be framed. Proposed legislation contemplated a tripartite agreement and execution of a deed of apartment. Said proposed legislation envisaged an association of apartment owners to be formed. This association, would have been the representative body and liable for payment of ground rent. Legislation fructified as the Delhi Apartment ownership Act, 1986, but unfortunately never brought into force. Thus, the tripartite agreement which was envisaged never saw the light of the day. Accordingly, the term of the sanction requiring execution of the tripartite agreement became unenforceable. Accordingly, even on that ground, demand had to be raised on the individual flat owners.

18. Response of the first respondent is that there was no question of refund of Rs.15,70,909.50/- paid by Dr.Karni Singh as it was paid towards ground rent and interest etc. It was paid by him unconditionally. It was paid since Dr. Karni Singh accepted his liability to pay the ground rent.

19. It is stated by the first respondent that till date, none has applied for mutation of the land in his/her/its name on the demise of Dr.Karni Singh.

20. It is the stand of the first respondent that the land is undivisible. There is a complete unity of interest in the land vis-a-vis the first respondent. When sanction was granted, this aspect was kept in view evidenced by the fact that it was term of the sanction that a co-operative society of the flat owners would be formed for smooth running of the common amenities etc. Petitioners have not formed any such co-operative society. Nobody has applied for mutation of the land in his/her/its name. The first respondent, as Lesser of the land is justified in demanding the entire ground rent from the natural heirs of late Dr.Karni Singh.

21. Prayer made in the writ petition that the first respondent be directed to refund/adjust the sum of Rs.15,17,909.50/- paid by the husband of the petitioner must fail on the short ground because this sum was demanded under cover of letter dated 13.10.1981 wherein permission was granted for construction of flats on the land. This amount was paid by Dr.Karni Singh under cover of letter dated 12.11.1981. Requisite undertaking was furnished. Tender was without prejudice. Another letter of even date was written by Dr.Karni Singh in which it was stated that payment was being tendered without prejudice to his right to claim back the money. However, no steps were ever taken for recovery of the said amount.

22. Be that as it may, after 1981, on this issue, neither Dr. Karni nor the petitioner ever entered into the controversy till the present demand was raised. Said challenge must fail and is accordingly rejected.

23. The main issue between the parties is whether the first respondent has to raise individual demands on the flat owners in proportion to the area of their flat vis-a-vis the total area of the land. It is not in dispute that none of the flat owners has sought mutation in the records of L & D.O It is also not in dispute that the parcel of land has not been divided. The 0.5 acres of land bearing No.10-A, Prithvi Raj Road, New Delhi has a unity of interest and unity of title.

24. Term of the sanction for construction of flats required the flat owners to acquire leasehold rights on pro-rata basis and formation of a co-operative society of the flat owners. This was so because the first respondent probably, wanted to communicate with only one person. Had the co-operative society of flat owners been formed, said society as juristic person would be the person from whom the first respondent could have effected recovery of the ground rent.

25. Admittedly, no such co-operative society has been formed. Argument of the petitioner that since the Delhi ownership Apartment Act, 1986 was never brought into force, tripartite agreements could not be entered is neither here not there. The flat owners could have and can still form a co-operative society or in the alternative a society registered under the Societies Registration Act, 1860. For reasons best known to them, they have chosen to sit silent. Claim of the petitioner that the first respondent is at fault since a tripartite agreement has not been entered into is misplaced because the issue of execution of a tripartite agreement would arise only when the flat buyers form a co-operative society or in the alternative a society.

26. There is another fact which I must record. Initially when show cause notice was issued in the writ petition, save and except respondent No.10, none entered appearance. Thereafter respondent No.5 started entering appearance. On 19.4.2004, directions were issued to the first respondent to issue a notice to the respective flat owners pointing out their default in making payment of the ground rent. This was without prejudice to the contention of the first respondent that issuing of said notice would not be construed as absolving the petitioner of the liability. The first respondent issued notices and inspite of being served, none except respondent no.3 entered appearance through counsel.

27. Prithviraj Road is probably one of the posh areas in Delhi. Those who acquire property on the said road come from the most economically high strata of society. It is expected of these persons to discharge their liability towards the Government. After all Government has to manage its finances within the budgetary constraints. If these citizens are not responsive to their obligation towards the Government, from whom would one expect a disciplined polity. I do not find any fault in the action of the first respondent in treating the land as conceptually and factually one parcel, having unity of title and interest. I find nothing wrong in the action of the first respondent in not requiring different flat owners to pay proportionately and raising a consolidated demand. I may note once again that none of the flat owners has till date applied for mutation with the first respondent.

28. The writ petition has to be dismissed. Ordered accordingly. However, since 4 of the flat owners have consented to liquidate the demand towards ground rent in proportion to the built area of their flats, the first respondent on receipt of payment by any flat buyer would recover the remaining by attaching the flats of the flat buyers who are not contributing in the payment of the ground rent. These flats would be sold at the first instance when the first respondent proceeds to recover it dues as arrears of land revenue. If the flat buyers form an association, be it a co-operative society or a society and the said body undertakes to pay the ground rent, first respondent would accept the ground rent from such body constituted.

29. No costs.