Delhi High Court
Namgyal Inst. For Research On ... vs Dda & Ors on 23 September, 2008
Author: Manmohan
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.M. No. 4138/2008 in Writ Petition (Civil) No. 14645/2006
Reserved on: 11th September, 2008
Date of Decision: 23rd September, 2008
NAMGYAL INST. FOR RESEARCH ON LADAKHI ART &
CULTURE AND ANR. ..... Petitioners
Through: Ms. Shyamala Pappu, Sr.
Advocate, with Mr. R. Krishnamoorthy,
Advocate. Mr. K. Datta, Advocate.
Versus
DDA & ORS ..... Respondents
Through: Mr. Rajiv Bansal, Advocate and
Mr. Lalit Gupta, Advocate for
applicant in CM No. 4138/2008.
CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE MANMOHAN
1. Whether the Reporters of local papers may be allowed to see the
judgment? No.
2. To be referred to the Reporter or not? Yes.
3. Whether the judgment should be reported in the Digest? Yes.
JUDGMENT
% 23.09.2008
: MANMOHAN, J
1. The writ petition has been filed on behalf of Namgyal Institute for
Research on Ladakhi Art & Culture (hereinafter referred as the 'Society')
CM No. 4138/08 in W.P. (C) NO. 14645-46/2006 Page 1
against the respondents praying for quashing of the letter/order No.
12(33)/83/1L/1051 dated 10.05.2006 issued by the Respondent No.2
(Deputy Director (IL) DDA) herein directing cancellation of perpetual lease
dated 22.11.1995 and praying for further directions for quashing the
proceedings issued by the Respondent No. 3 (Estate Officer, DDA) pursuant
to letter/order dated 24.05.2006 in respect of built up property bearing No. B-
25, Qutab Institutional Area, New Delhi-110 016 (hereinafter referred to as
the said property).
2. The present application has been filed for impleadment /intervention
by Turner Morrison Land Ltd. in Writ Petition (Civil) No. 14645-46 of 2006.
3. The brief facts of the case, as per the applicant are as follows:-
(a) The Society was registered on 02.03.1985 to carry on the activities for
the promotion of Art, Culture, Literature and Education.
(b) In order to promote its objective the Society approached DDA for
obtaining lease of plot of land to carry on its activities. Thereafter, perpetual
lease deed was executed and registered and executed on 02.11.1985.
(c) Clause 4 of the lease Deed stipulated that time for commencement
and completion of the proposed building was the essence of the contract.
(d) Due to paucity of funds the society was not in a position to comply
with the terms of Clause 4 of the said Lease Deed and the society was unable
to even commence the construction of a building on the said property. In
these circumstances, the society approached Turner Morrison Ltd.
(e) In pursuance of negotiations between the parties, a construction
CM No. 4138/08 in W.P. (C) NO. 14645-46/2006 Page 2
agreement dated 11.12.1995 (hereinafter referred as the Construction
Agreement) was executed between TML and Petitioner society.
(f) In terms of the said Construction Agreement, TML agreed and
undertook as to costs to commence and complete construction of a building
on the said property by utilizing the maximum Floor Area Ratio (FAR).
(g) Subsequently, the construction work was duly completed by the
applicant company in or about September, 1999 and the building so
constructed by TML has a built up area of 71146 sq.ft. (approx.), inclusive of
13510 sq. ft. of basement.
(h) However, TML decided to carry on its business of construction
through another Company named Turner Morrison Land Ltd. i.e. the
applicant company (hereinafter referred as 'TMLL').
(i) Hence, TML decided to assign its rights and obligations under the
said Construction Agreement dated 11.12.1995 in favour of the applicant
herein i.e. TMLL and this intention was duly communicated to society vide
letter dated 04.03.1996 and the society vide its letter dated 28.03.1996, duly
gave its no objection in this behalf.
(j) Thereafter, by a Deed of Assignment dated 02.08.1996, all rights and
obligations of TML under the said construction agreement dated 11.12.1995
were assigned in favour of TMLL with the knowledge and consent of the
society. The society was also a signatory to the said Deed of Assignment.
(k) The Petitioner society has not been able to clear its dues payable to
the applicant company. Apart from incurring huge expenses running into
CM No. 4138/08 in W.P. (C) NO. 14645-46/2006 Page 3
crores of rupees, the applicant company has also entrusted security deposit of
Rs. 3 crores to the petitioner society.
(l) On account of the failure of the society to repay the construction cost
to the applicant company, the present application has been filed.
4. The Clauses of the said Construction Agreement 2, 3.1, 3.2 and 4
executed between the first party, Namgyal Institute for Research on Ladakhi
Art and Culture and the Second Party, Turner Morrison Ltd., dated 11th
December, 1995 are reproduced below:
"2. It will be the obligation of the
Second Party to do the following:
(a) To appoint Architect, Engineer,
Sub-contractor for commencing the
construction on the said plot.
(b) To prepare the plan for
construction of a building/buildings
on the said plot utilizing the
maximum FAR permissible and get
the same signed by the First Party
and obtain necessary approvals
from all relevant authority and
authorities for construction of the
building on the said plot of land.
(c) To commence and complete
construction on the said plot
utilizing the maximum FAR and
consisting of Basement floors and
other floors.
3.1 It will be obligation of the First
Party to do the following:
(a) To cooperate with the Second
Party for obtaining all necessary
CM No. 4138/08 in W.P. (C) NO. 14645-46/2006 Page 4
approvals and permissions and for
that purpose to sign all
applications, affidavits as may be
required from time to time
including the plans, revised
building plan and all documents
and papers for commencing the
construction, completing the
construction and for obtaining "C"
form and "D" form and completion
certificate.
(b) To pay the construction cost to
the Second Party at the rate of Rs.1,
200/- per sq. ft. to the Contractor
which the First Party shall pay to
the Contractor in stages depending
upon the progress of the work.
(c) The First Party further agrees
and undertakes to sign all necessary
papers and documents as may be
required by the Second Party from
time to time to enable the Second
Party to commence and complete
the construction.
3.2 (a) It will be the obligation of
the First Party to make payments to
the Contractor in accordance with
the Schedule of payment annexed
hereto and in the event delay in any
payment, the First Party shall pay
interest @ 36% per annum on the
delayed payment.
(b) That till the entire construction
cost is paid by the First Party to the
Second Party, the Second Party
shall have a lien over the said land
along with constructions thereon
and in that event shall have full
CM No. 4138/08 in W.P. (C) NO. 14645-46/2006 Page 5
authority and power to appropriate
all its construction cost, interest and
expenses by safe, transfer or lease
of such constructed area so as to
meet the outstanding liabilities of
the First Party and in that event the
First Party shall not raise any
objection in any manner
whatsoever.
(c) That further to secure the
payments to be made to the Second
Party the First Party shall deposit
the original title deeds of the said
property with the Second Party
who shall retain the same as a
security till the entire payment and
entire construction cost and all the
dues and expenses payable by the
First Party to the Second Party is
paid fully.
4. The construction shall be
completed by the Second party
within a period of 24 months from
the date of sanction of the building
plan by the relevant authority or
within such extended period as may
be agreed upon between the parties.
(emphasis supplied)"
5. The relevant Clause 3.2 sub-clause b of the aforesaid Construction
Agreement as well as the Resolution of the Governing Body dated
25.09.1995 clearly stipulates that till the entire agreed construction costs are
paid by the Society to the contractor, a lien over the said property alongwith
all constructions thereon was created in favour of TML and TML was
CM No. 4138/08 in W.P. (C) NO. 14645-46/2006 Page 6
granted unfettered rights to recover any outstanding construction cost,
interest and expenses inter-alia by sale, transfer or lease of the constructed
area. The society was not entitled to raise any objection to such utilization of
the said building by TML. Further, in terms of Clause 3.2 (C) above, the
society was also to deposit the original title deed of the said property with the
TML. Therefore, it is seen that TML has substantial and valuable interest in
the said property which formed the subject matter of the writ petition as can
also be noted from the abovementioned Construction Agreement and the
Resolution of the Governing Body of the Society.
6. It is also pertinent to note that TML decided to carry on its business of
construction through another Company TMLL i.e. the applicant Company.
The Rights and Obligations of TML under the said Construction Agreement
were assigned in favour of the applicant i.e. TMLL under the Deed of
Assignment dated 02.08.1996 with the knowledge and consent of the Society
and the Society was also signatory to the said Deed of Agreement.
Therefore, the interest in favour of TML was assigned in favour of the
applicant company in the said property.
7. The learned Senior counsel for the petitioner, Ms. Shyamala Pappu
contended that the said TML have forged and fabricated documents
purported to be executed by the officer bearers of the petitioner. However,
since the initial agreement has not been denied, therefore, we are of the
opinion that the applicant is a necessary and proper party.
8. In view of the above observations, the applicant Company is
CM No. 4138/08 in W.P. (C) NO. 14645-46/2006 Page 7
permitted to be impleaded as a party in this writ petition and allowed to
participate in the writ proceedings.
9. Mr. K. Datta, Advocate, contended that he has been appearing for the
petitioner in Writ Petition(C) No. 17210/2006. However, Mr. R.
Krishnamoorthy, Advocate, contends that he is now appearing for the
petitioner. But we find that Mr. K. Datta has not been given a discharge by
the petitioner. Therefore, we direct Mrs. Rani Parvati Devi and Secretary of
the Petitioner Trust to be present in the court for further directions on 4th
November, 2008.
MANMOHAN, J
SEPTEMBER 23rd , 2008 MUKUL MUDGAL, J
s/dr
CM No. 4138/08 in W.P. (C) NO. 14645-46/2006 Page 8
