Delhi High Court
Union Of India (Uoi) Ministry Of ... vs Shri Suraj Parkash Anand S/O Sh. ... on 18 January, 2006
Author: M B Lokur
Bench: C.J., M B Lokur
JUDGMENT
Madan B. Lokur, J.
1. The Appellant is aggrieved by the judgment and order dated 23rd August, 2004 passed by a learned Single Judge allowing WP (C) No. 2355/2002. We find that this is not a fit case for interference and dismiss the appeal.
2. Shri K.L. Sawhney was a successful bidder in a public auction held on 27th August, 1970 in respect of a plot bearing No. DD-33, Kalkaji, New Delhi measuring 867 sq. yards. Thereafter, the Appellant executed a perpetual lease deed dated 3rd December, 1971 in his favor. One of the terms of the lease deed, that is, clause (d) provided that a Lesser would have the right to revise the annual ground rent subsequent to the first transfer of the property and that the revised ground rent would be 2 '% of the value of the land at the time of such transfer. Clause (d) of the lease deed reads as follows:-
(d) The Lesser shall also have the right to revise the annual ground rent at the time of any assignment or transfer of the premises hereby demised subsequent to the first transfer or assignment as aforesaid. The revised ground rent payable in such case shall be at the rate of 2 ' per cent of the value of the land at the time of such transfer.
3. Shri Sawhney was desirous of having his brother-in-law as a co-lessee in the said property and the Appellant accepted his request subject to the condition that that would be treated as a first transfer. Shri Sawhney agreed to this.
4. Thereafter, Shri Sawhney and his brother-in-law made some construction on the said property and there appears to have been some excess construction. The excess construction was compounded by the Municipal Corporation of Delhi on payment of a fee sometime in April, 1987.
5. On 11th February, 1994, the Appellant raised two demands against Shri Sawhney. These were for damage charges on account of unauthorised construction and revised annual ground rent. In respect of damage charges, the stand taken by Shri Sawhney was that since he had paid a compounding fee to the Municipal Corporation and so the damage charges could not be demanded in addition thereto. As regards the revised annual ground rent, his contention was that it was not at all payable.
6. Shri Sawhney passed away some time in 1999 and his widow (Respondent No.2) as well as the brother-in-law (Respondent No.1) then applied for conversion of the said property into freehold but the Appellant refused to accede to that request on the ground that neither damage charges nor the revised annual ground rent was paid.
7. This led the Respondents to file a writ petition in this Court challenging the demands made by the Appellant.
8. Before the learned Single Judge, as well as before us, learned counsel for the Appellant relied on Office Order No.31/76 dated 26th May, 1976. On the basis of this Order, it was contended that a decision had been taken that additional ground rent would be recovered for additional construction up to 33 1/3% over and above the total construction permitted at the time of the lease subject to the coverage being permissible under the municipal bye-laws in force at the time of additional construction.
9. It is indeed unfortunate that the Appellant has tried to mislead this Court by misquoting the relevant paragraph of the Office Order in the typed copy attached to the appeal paper-book as well as in the counter affidavit filed before the learned Single Judge. From a photocopy of the Office Order, also filed by the Appellant, it is clear that 'no' additional ground rent would be recovered for additional construction up to 33 1/3% over and above the total construction, which was permissible at the time of lease provided such construction is permitted under municipal bye-laws on the date of construction.
10. To get over this hurdle, it was alleged that the Respondents had exceeded the 33 1/3% limit. It is for the first in appeal before us that the Appellant has raised such an issue. The Appellant did not take such a stand in its correspondence with the Respondents or even in the counter affidavit filed before the learned Single Judge. We cannot permit the Appellant to urge this new factual point orally and at this stage.
11. In any event, we are of the view that because of Clause (d) of the lease deed, the Appellant was not justified in charging any additional ground rent because there was no second transfer of the said property. However, in view of the Office Order dated 26th May, 1976 the learned Single Judge has nevertheless permitted the Appellant to charge additional ground rent in respect of any excess coverage at the same rate (2 '%) at which ground rent was being paid as per the lease deed. We need not go into the correctness or otherwise of this view taken by the learned Single Judge because it was stated by learned counsel for the Respondents that the amount demanded by the Appellant has since been paid to buy peace.
12. In so far as the damage charges are concerned, it appears that before the learned Single Judge it was stated by learned counsel for the Appellant that damage charges could be imposed only for construction which has not been compounded. It appears that there is no construction that has been carried out by the Respondents, which has not been compounded. Since that is so, the Respondents having paid the compounding fee, the Appellant cannot demand any damage charges. However, the learned Single Judge has left it open for the Appellant to recover any damage charges in respect of that portion of the construction which has not been compounded. Learned counsel for the Appellant did not advance any argument to impugn this conclusion of the learned Single Judge.
13. We see no reason to vary the order passed by the learned Single Judge.
14. The appeal is dismissed, but with costs of Rs. 5000/- payable by the Appellant to the Respondents within 4 weeks from today.
