Parmod Kumar & Anr. vs Lt.Governor Of Delhi & Ors.
2008 Latest Caselaw 2137 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     Date of Decision : 03.12.2008

                              C.M. NO. 4845/2008
                                    in
%                           W.P.(C) Nos.6704-05/2004

       PARMOD KUMAR & ANR.                        ..... Petitioners
                    Through:           Ms. Rajeshwar K. Gupta, Advocate

                      versus

       LT.GOVERNOR OF DELHI & ORS.        ..... Respondents
                     Through: Mr. Rajiv Bansal, Advocate for DDA
                               Ms. Manpreet Kaur for Mr. V.K.
                               Tandon, Advocate for Forest
                               Department

       CORAM:
       HON'BLE MR. JUSTICE VIPIN SANGHI

       1. Whether the Reporters of local papers may
          be allowed to see the judgment?

       2. To be referred to Reporter or not?                 Yes

       3. Whether the judgment should be reported            Yes
          in the Digest?


VIPIN SANGHI, J. (Oral)

1. The writ petition had been disposed of by this Court on

15.09.2005. While disposing of the petition the Court had issued the

following directions:

"(i) If within six weeks from today, DDA and the conservator of forests are not able to resolve the dispute whether the trees should or should not be removed from the site, DDA would allot some other plot to the petitioner in Prashant Vihar. Plot would admeasuring 124 Sq. Mts. or near about, in no case

cm 4845.08 in wpc 6704.04 page 1 of 15 would be less than 120 Sq. Mts. Allotment would be at the same price as was the auction bid. If the plot to be allotted is upto 150 Sq. Mts., additional premium would be paid by the petitioner at the per square meter cost as per auction bid.

(ii) On the petitioner, being either intimated that the plot in question is cleared of the trees or alternative plot as aforesaid offered, petitioner would pay balance bid amount without interest or in case of the alternative plot being a large plot, bid amount + additional amount without any interest within four weeks.

(iii) Possession of the plot in question or the alternative plot would be handed over to the petitioner within 12 weeks from today."

2. The background facts of the case are that the petitioner

purchased the plot in question bearing no. E-10, Prashant Vihar

admeasuring 124 Sq. Mtrs. in public auction conducted by the DDA for

Rs. 31.50 lacs and deposited Rs. 8 lacs as earnest money. He was

required to make a deposit of the balance amount of Rs. 23,50,016/-

by 24.02.2003. In the meantime the petitioner found that there were

various trees on the plot auctioned to him. He required the DDA to

obtain permission for cutting of the said trees before possession and

balance payment. Admittedly, it was the obligation of the DDA to

obtain the said permission from the Tree Officer to remove the trees

so that vacant possession of the plot could have been delivered to the

petitioner. The respondent for one or the other reason was not able to

obtain the permission from the Tree Officer. The petitioner preferred

cm 4845.08 in wpc 6704.04 page 2 of 15 the present writ petition and the same was disposed of in the aforesaid

terms. Thereafter, the respondent DDA obtained the permission from

the Tree Officer and removed the trees on the said plot. The

respondent issued a communication date 30.06.2007 requiring the

petitioner to comply with various conditions. It, inter alia, included

deposit of 75% of the premium amount for the plot. The petitioner

was required to give his consent to the terms and conditions of auction

on a non judicial stamp paper worth Rs. 10/-. The petitioner complied

with the said conditions on 06.08.2007.

3. The respondent vide a communication dated 31.08.2007 /

10.09.2007 forwarded the proforma of the lease deed to be executed

by the petitioner. The petitioner states that from the said proforma,

he could gather that he was being required to pay the ground rent

from the year 2002. The petitioner represented against the aforesaid

move of the DDA vide communication dated 21.09.2007. In the

meantime, the petitioner had already preferred Contempt Case

No.1488-89/2005. That petition was disposed of on 09.01.2008. In

that proceeding the respondent DDA stated that they would hand over

the possession of the plot to the petitioner upon his making payment

of the requisite stamp duty and the ground rent as per the policy of

the DDA. The petitioner disputed the demand raised by the

respondent towards ground rent. The Court observed that the said

issue requires substantive adjudication and that it could not be gone

into in a Contempt Case. Thereafter the petitioner has preferred the

cm 4845.08 in wpc 6704.04 page 3 of 15 present application to seek a direction to the respondent to give effect

to the lease deed prospectively and consequently to charge the

Ground Rent from the date the possession of the plot is handed over

to the petitioner.

4. The submission of the learned counsel for the petitioner is

that there is no justification for the respondent to demand payment of

ground rent in the facts of this case from 2002 i.e. from the date when

demand for balance payment was made by the DDA. He submits that

the petitioner was not placed in possession of the plot in question for

all these years for no fault of the petitioner, and, if at all, the default

was on the part of the DDA. The terms of the lease postulate that for

a period of first five years, the ground rent would be only Re.1/- per

annum, and only thereafter the same is to be paid at the rate of 2.5%

per annum of the premium. The petitioner has still not been put in

possession of the plot. The ground rent is, however, sought to be

recovered by the DDA, even though conveyance deed has not been

executed and possession of the plot has not been delivered.

5. The respondent has filed a reply to this application. Reliance

is placed on Rule 42 (2) of the DDA (Disposal of Developed Nazul

Land) Rules, 1981 (for short `Nazul Land Rules‟). It is further argued

that the petitioner had already furnished an undertaking that he would

pay the ground rent from the date of allotment, and now it is not open

to him to raise a dispute in that regard. Mr. Bansal submits that when

the petitioner submitted the documents required by the DDA on

cm 4845.08 in wpc 6704.04 page 4 of 15 06.08.2007, he submitted his consent to comply with the terms and

conditions of auction. The said terms and conditions, inter alia,

provide that every allottee shall be liable to pay, in addition to the

premium payable, ground rent for holding Nazul Land allotted to

him/her under the said Rules at the rate of Re.1/- per annum, per plot

for the first five years from the date of allotment i.e. the date of issue

of the letter communicating the allotment, and thereafter it shall be

payable at the rate of 2 ½ % of premium originally payable or paid,

as the case may be. He submits that the Nazul Land Rules are

statutory in character and there is no challenge to the said rules by the

petitioner. He is bound to comply with the said rules. Rule 42 (3)

states that annual ground rent payable after the first five years shall

be at the rate of 2.5% of the premium originally payable. He submits

that the Court cannot pass a direction which is in contradiction with

the statutory rules. In support of the aforesaid submissions counsel

for the respondent relies on R.K. Singh Vs. Union of India, 2000

(55) DRJ (FB) 279.

6. Having heard learned counsels for the parties, in my view

there is merit in the submissions of the petitioner that the respondent

cannot charge ground rent from 27.11.2002. It is clear from the facts

aforesaid that though the plot had been auctioned in favour of the

petitioner in the year 2002, on account of the existence of various

trees on the plot, the respondent DDA was not in a position to deliver

actual physical and vacant possession thereof to the petitioner. As

cm 4845.08 in wpc 6704.04 page 5 of 15 aforesaid, the petitioner filed the present petition which was disposed

of with the direction that either the trees should be removed from the

aforesaid plot or another plot admeasuring near-about 124 sq. mts.,

but not less than 120 sq. mtrs., should be allotted to the petitioner in

Prashant Vihar, at the same price at which his auctioned bid was

accepted. Thereafter, upon obtaining the permission from the Tree

Officer, the plot has been cleared. The petitioner cannot, therefore, be

subjected to any liability in respect of the said plot which is yet to be

delivered to him, except to require him to pay the balance price, which

he has already paid. The respondent cannot seek to charge ground

rent for the plot when, as a matter of fact, the respondent was not in a

position to deliver possession of the plot to the petitioner, and the

possession has not yet been delivered to the petitioner.

7. Rule 42 of the Nazul Land Rules read as follows:-

"42. Allottee to be lessee of the Central Government.--(1) Save as otherwise provided in rule 44, all Nazul land allotted under these rules, whether at predetermined rates or at fixed premium under rule 7, or by auction or by tender, shall be held by the allottee as lessee of the President of India on the terms and conditions prescribed by these rules and contained in the lease-deed to be executed by the allottee.

(2) Every such allottee shall be liable to pay, in addition to the premium payable in accordance with these rules, ground rent, for holding the Nazul land allotted to him under these rules, at the rate of rupee one per annum per plot, for the first five years from the date of allotment:

Provided that in the case of Nazul land allotted to group housing cooperative societies; the ground rent shall be charged at the rate of rupee one per flat for the first five years from the date of allotment.

cm 4845.08 in wpc 6704.04                                              page 6 of 15
            (3)      The annual ground rent payable after the first

five years referred to in sub-rule (2) shall be at the rate of two and half per cent of the premium originally payable.

(4) The rate of ground rent in all cases shall be subject to enhancement after a period of thirty years from the date of allotment.

[Provided that notwithstanding anything contained in this rule, the Authority may allot Nazul land on free hold basis either through auction or by tender for residential purpose or commercial purpose.

Provided further that in the case of allotment on free hold basis, the allottee shall execute a conveyance deed in Form BA.]"

8. The Nazul Land Rules, in my view postulate that in case of

allotment by auction, the DDA would, upon the payment of the bid

amount, execute conveyance in favour of the allottee and, as

submitted by Mr. Bansal, contemporaneously place the allottee in

possession of the plot. The process of allotment of a plot, the

execution of the conveyance in favour of the allottee, and the delivery

of possession, it appears, is more or less contemporary, subject to the

time that is available to the allottees to make the payment of the

amount. In the present case, though the allotment can be said to

have been made at the time when the auction was held in the year

2002 wherein the petitioner emerged as the highest bidder, as a

matter of fact, on account of the aforesaid circumstances, the

petitioner has not been placed in possession of the plot till today. The

reasons for this delay are attributable to the respondent, and not to

the petitioner.

cm 4845.08 in wpc 6704.04 page 7 of 15

9. In my view, the endeavour of the respondent to give a literal

interpretation to Rule 42 (2) and 42(3) and apply the same strictly in

all situations is wholly unjustified. If the interpretation suggested by

the respondent DDA is adopted, it would lead to grave injustice to the

petitioner. It would amount to putting premium on the respondents

own defaults and failures. The said Rule has to be meaningfully and

reasonably interpreted. In my view, it can only mean that where the

allotment is followed by execution of the conveyance deed and

delivery of possession in the normal course, as per the schedule fixed

by the respondent for (i) making of payment (ii) execution of the

conveyance deed (iii) delivery or possession etc., the respondent

would be entitled to charge ground rent from the date of allotment in

terms of Rule 42. However, in a case where the date of allotment is

separated by a long period from the date when the DDA is in a position

to deliver possession of the plot, for reasons attributable to the DDA,

the liability to pay the ground rent cannot start from the date of

allotment, and must start only from the date when the allottee is

placed in possession of the plot under a conveyance. The expression

"date of allotment" used in Rule 42 (2) has to be interpreted in the

context in which it has been used, i.e. where the "date of allotment" is

more or less contemporaneous with the date of delivery of possession

upon execution of the conveyance deed in the normal course. Of

course, if allottee and not the DDA is responsible for the delay in

execution of the conveyance deed or delivery of possession for any

cm 4845.08 in wpc 6704.04 page 8 of 15 reason, the DDA would be entitled under Rule 42 to demand ground

rent from the allottee from the date of allotment, because no person

can seek to benefit from or to take advantage of his or her own

default.

10. The Nazul Land Rules apply to disposal of "developed" land

[see the definition of "Nazul Land" in Rule 2(i)]. Can it be said that

the land allotted to the petitioner was fully developed when it was

auctioned by the DDA? In my view, since there were trees standing

on the land, the same was not fully developed. It became fully

developed only when the trees were removed by the DDA. This is not

to say that auction held by the DDA was irregular. In fact, the DDA

should have removed the trees even before the auction.

11. Reliance placed by Mr. Bansal on the fact that the petitioner

had expressly consented to the terms of auction as aforesaid, in my

view, is not well founded either. The petitioner submits that while

agreeing to the terms and conditions of the auction in the prescribed

proforma given by the DDA, the petitioner was not made aware of the

date from which the ground rent would be charged to him. He also

points out that the petitioner raised the objection with regard to the

date of start of the ground rent at the earliest possible point of time

i.e. when the respondent sent to him the form of the lease deed

containing specific dates from which ground rent would be charged,

and the rates at which the same would be charged.

12. It is clear that the petitioner disputed the endeavour of the

cm 4845.08 in wpc 6704.04 page 9 of 15 respondent to fasten the liability towards ground rent from 2002

onwards, even at the time of the disposal of the aforesaid Contempt

Case. The petitioner has filed the present application before the

execution of the perpetual lease deed in his favour. The terms and

conditions consented to by the petitioner did not contain any specific

date from which the liability to pay the ground rent was to arise. The

condition with regard to ground rent that the petitioner is stated to

have agreed to abide by, insofar as it is relevant reads as follows:

"(a) Every allottee shall be liable to pay, in addition to the premium payable, ground rent for holding Nazul land allotted to him/her under the said Rules at the rate of Re.one per annum, per plot for the first five years from the date of allotment i.e. the date of issue of the letter of communicating the allotment and thereafter it shall be payable at the rate of two and half percent (2.5%) of premium originally payable or paid as the case may be."

13. The petitioner submits that as per his understanding there

was no "letter of allotment" in the present case, since none was issued

by the respondent. This position is disputed by the respondent, who

submits that the letter dated 27.11.2002 was the demand letter and

also constituted the allotment letter. Though there appears to be

merit in this submission of Mr. Bansal, at the same time it is probable

that the petitioner genuinely did not construe the said letter as an

allotment letter, since it was not styled as one. Above all the DDA

cannot charge anything over and above what it is legally entitled to

charge. The respondent DDA was bound to make the allotment and

realize the amounts in terms of the order of the Court aforesaid. It

cm 4845.08 in wpc 6704.04 page 10 of 15 could not have insisted for payment of any further amounts by the

petitioner than what was legally recoverable from him.

14. There are two other aspects that need to be noticed. The

form of the perpetual lease bearing No.F11(4-A)/2002/LSB(R) sent by

the respondent to the petitioner, inter alia, provides "NOW THIS

INDENTURE WITNESSETH that, in consideration of the amount of

Rs.3,150,000 (Rupees Thirty One Lac Fifty Thousand only) paid

towards premium before the execution of these presents (the receipt

where of the Lessor hereby acknowledges) and of the rent hereinafter

reserved and of the covenants on the part of the Lessee hereinafter

contained, the Lessor, doth hereby demise unto Lessee, ALL THAT plot

of land .......................................................................................... TOGETHER

with all rights, easements and appurtenances whatsoever to the said

Residential plot belonging or appeartaining TO HOLD the premises

unto the Lessee in perpetuity from 27.00th day of November Two

Thousand Two YEILDING AND PAYING therefore yearly payable in

advance of Rs.1/- (Rupee One only) upto the 26.00th day of November

Two Thousand Seven and thereafter at the rate of two and a half

percent (2.5%) per annum of the premium................................................."

Therefore, the ground rent is to be paid for the period from which the

petitioner would "hold" the premises. Can the petitioner said to "hold"

the plot in question from 27th day of November 2002? In my view, the

answer is in the negative. The expression "hold" is defined in the

Blacks Law Dictionary to mean "To possess in virtue of a lawful title;

cm 4845.08 in wpc 6704.04 page 11 of 15 as in the expression, common in grants, "to have and to hold," or in

that applied to notes, "the owner and holder." Chicago Home for Girls

v. Carr, 300 Ill. 478, 133 N.E. 344, 346." Merely because the

petitioner emerged as the successful bidder in the auction conducted

by the respondent for the plot in question and his bid was accepted

and he paid the earnest money, it cannot be said that the petitioner

„held‟ the said plot. Possession of the plot under a legal title is

essential to constitute the „holding‟ of the plot. An allottee cannot be

said to „hold‟ a plot where the allottee does not possess the plot on

account of the failure or default on the part of the

grantor/lessor/vendor to even be in a position to deliver possession of

the plot and/or convey the title in the plot. However, in a case where

the grantor/lessor is not responsible for the failure of the

vendee/lessee to hold the plot, and it is the doing of the vendee/lessee

itself, the vendee/lessee would be deemed to „hold‟ the premises from

the day when the same could have been held by him, but for his own

failure and default. The ground rent is payable only from the date of

holding or deemed holding, as the case may be. That day not having

yet arrived in the facts of this case, there is no question of the

respondent being entitled to charge the ground rent from the

petitioner from the year 2002 onwards.

15. I may also note that according to the directions issued by the

Court on 15.09.2005, the petitioner could as well have been allotted

another plot, had the permission from the Tree Officer to remove the

cm 4845.08 in wpc 6704.04 page 12 of 15 trees from the plot in question not been received. In case the

petitioner would have been allotted another plot in terms of the said

directions, obviously the respondent could not have charged ground

rent from the petitioner from the year 2002 onwards since the

allotment itself would have been made only after the order dated

15.09.2005. Merely because the sale plot has been now offered to the

petitioner because in the meantime the permission of the Tree Officer

has been received and the trees have been removed from the plot, it

does not mean that the petitioner should be saddled with the liability

to pay the ground rent from the year 2002 when, as a matter of fact,

he has not been placed in possession of the plot till date.

16. Reliance placed by Mr. Bansal on R.K. Singh (supra), in my

view, is of no avail. By directing that the respondent cannot charge

ground rent from the petitioner in the facts of this case from the year

2002 onwards, all that this Court is doing is to give a reasonable and

meaningful interpretation to the Nazul Land Rules. It cannot be said

that the direction being given is contrary to the said Rules.

17. Mr. Bansal lastly submitted that the present application is not

maintainable since the writ petition had been disposed of on

15.09.2005, and the petitioner has pressed a substantive issue based

on a cause of action which has arisen after the disposal of the writ

petition. I find that the respondent has not even raised this objection

in the reply. If the respondent had raised the objection earlier, the

petitioner would have been put to notice and he could have taken a

cm 4845.08 in wpc 6704.04 page 13 of 15 decision whether to pursue this application or to prefer a separate writ

petition. The application has remained pending since 26.03.2008. The

respondent has had full opportunity to meet the contentions of the

petitioner as raised in the application. Moreover, the nature of

jurisdiction exercised by the Court while dealing with this application is

no different from that which the Court would have exercised, had a

separate writ petition been preferred instead. The exercise of

jurisdiction in either case would be under Article 226 of the

Constitution of India. Writ proceedings are not bound by strict rules of

procedure, and what is of relevance is to see that the parties have had

sufficient and proper opportunity to meet the case of the opposite

party. It is not the respondent‟s case that they have been

handicapped in any way in defending these proceedings merely

because an application, and not an independent writ petition has been

preferred by the petitioner.

18. I, therefore, allow this application and direct the respondent

to appropriately modify the relevant clause in the perpetual lease deed

to be executed in favour of the petitioner to provide for the payment of

ground rent from the date of execution of the conveyance. The

petitioner would be liable to pay ground rent at the rate of Re.1/- per

annum for the first five years and thereafter at the rate of 2½ % per

annum of the original premium from the date of conveyance. The

respondent is directed to provide to the petitioner the fresh form of the

conveyance in terms of this order within six weeks from today. The

cm 4845.08 in wpc 6704.04 page 14 of 15 petitioner shall procure the requisite stamp duty and present the

perpetual lease deed for execution and registration by the DDA within

three weeks thereafter.

19. Cost of Rs. 25,000/- imposed earlier shall also be paid within

six weeks.

                                     VIPIN SANGHI,J
DECEMBER 03, 2008
dp




cm 4845.08 in wpc 6704.04                                            page 15 of 15