K.L. Sehgal vs Land & Development Office
2009 Latest Caselaw 2168 Del

16
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+    W.P.(C) 7397/2007

     K.L.SEHGAL                                         ..... Petitioner
                       Through     Mr. Abhishek Thakur, Advocate
                                   versus

     LAND & DEVELOPMENT OFFICE                    ..... Respondent
                   Through Mr. Gaurav Duggal, Advocate

     CORAM:
     HON'BLE MR. JUSTICE SANJIV KHANNA

                       ORDER

% 20.05.2009

The petitioner, Mr. K.L. Sehgal on 27th September, 1957 had purchased

property No. 275 & 276, Double Storey, New Rajender Nagar, New Delhi-

110060 ('the property' for short) from one Mr. Bhagat Ram Chandna. On the

same date itself i.e. 27th September, 1957, Mr. Bhagat Ram Chandna wrote a

letter, informing the Regional Settlement Commissioner, Ministry of

Rehabilitation that he was selling the second half portion of the property to

Mr. Kishan Lal Sehgal and therefore formal permission for transfer of the

same may be kindly accorded and granted. The said letter records that the

Regional Settlement Commissioner, Ministry of Rehabilitation had already

granted permission for transfer of the second half of the property to another

person.

2. The aforesaid letter was written in view of the clauses of the lease deed dated 11th April, 1957 executed under the Displaced Persons (Compensation

& Rehabilitation) Act, 1954. The said clauses have been reproduced in the

counter affidavit by the respondent s and read as under:-

"The lessee shall before any assignment or transfer of the said premises hereby demised or any part thereof obtain from the Lessor approval in writing of the said assignment or transfer and all such assignesse and transferees and the heirs of the Lessee shall be bound by all the covenants and condtions herein contained and the answerable in all aspects therefore."

"The lessee can transfer the land after obtaining the permission of the Lessor aforesaid and the Lessor will not share any unearned increment in the value of the land (being the difference in the premium paid by him to the lessor and the market value of the land then prevailing) for permitting such transfer. The Lessor will, however, be entitled to claim and recover the unearned increment in the value of the land in the vent of the any subsequent transfer of the land by a transferee the amount so to be recovered being 50% of the unearned increment in the value of the land.

In the case of any subsequent transfer the lessor shall have any pre-emptive right to purchase the premises as hereby demised and all the building and structures standing thereon, after deducting 50% of the unearned increment as aforesaid."

3. The respondents L & DO in the counter affidavit have admitted that

permission to transfer the property in the name of the petitioner was granted vide letter dated 17-18th October, 1957.

4. The original file produced before me shows that the application dated

27th September, 1957 made by Mr. Bhagat Ram Chandna, the auction

purchaser and the original lessee was approved stating that the Additional

Settlement Commissioner had no objection to the transfer of the property to

Mr. K.L. Sehgal, the petitioner herein.

5. On 13th August, 1999, the petitioner applied for conversion of lease hold

rights in the property into free hold. The said application was made to the

Ministry of Urban Development and Planning as the earlier lease, which was

executed by Ministry of Rehabilitation, is now under the administrative

control of L & DO.

6. On 21st August, 2000, L & DO wrote a letter to the petitioner stating that

as per their records, Mr. Bhagat Ram Chandna and Mr. Bihari Lal Chandna

continue to remain lessesses of the property and the petitioner was asked to

explain the capacity in which he had applied for conversion of the property

from lease hold to free hold. The petitioner thereafter wrote a number of

letters to respondent L & DO enclosing therewith copy of sale deed dated 27 th

September, 1957 and certified copy thereof.

7. On 11th August, 2003, the respondent L & DO informed the petitioner

that his application for conversion can be considered on payment of following

Government dues:-

"1. Penalty for Sale without permission from 27.09.1957 to 15.04.2003 @ Rs. 3000/- PA Rs. 1, 36, 652.00

2. N.G.R. (ground rent) from 01.07.1957 to [email protected] Rs/ 2/- P.A.

                                                Rs. 92.00
         3. Penalty for belated intimation       Rs. 100/-"

8. The letter, further, stipulates that in case the payments were not made

within 30 days from the date of issue of this letter, the petitioner shall be

liable to pay interest @ 10% per annum.

9. The respondent L & DO in the counter affidavit has defended the said

statement and claim on the basis of the policy decision dated 11th March,

1994, copy of which has been enclosed with the counter affidavit. It is alleged

that the permission to sell was granted to Mr. Bhagat Ram Chandna on

17th-18th October, 1957, but before the said date Mr. Bhagat Ram Chandna

had already executed the sale deed dated 27th September, 1957 in favour of

the petitioner herein. Moreover, the petitioner had applied for mutation of

the property in his name only in 2003, when he intimated and informed the

respondent L & DO about the transfer along with certified copy of the sale

deed. Accordingly, as per circular dated 11th March, 1994, the petitioner is

liable to pay penalty @ of Rs. 3000/- per year from 1957 till 2003.

10. It is not possible to accept the stand of the respondent L & DO.

Mr. Ram Bhagat Chandna had purchased the property in an open auction on

11th April, 1957. Within a few months thereafter, he made an application for transfer of property in the name of one Mr. Bihari Lal Chandna to the office of

the Settlement Commissioner. Subsequently on 27th September, 1957, Mr.

Bhagat Ram Chandna sold the property to the petitioner and sale deed was

executed. On the same date itself, Mr. Bhagat Ram Chandna applied to the

Settlement Commissioner for formal permission to transfer the property. The

name of the petitioner was mentioned in the letter of request dated 27th

September, 1957. The request for transfer was accepted by the Settlement

Commissioner. The petitioner has also filed on record letter dated 18th

January, 1958 written by Ministry of Rehabilitation to the Secretary, New

Delhi Municipal Committee informing them that the property had been

transferred by Mr. Bhagat Ram Chandna to the petitioner. The said letter

records and asks New Delhi Municipal Committee to amend their records, in

other words record the transfer of the property from Mr. Bhagat Ram

Chandna to Mr. K.L. Sehgal, the petitioner. This letter was obviously written

to enable the petitioner to secure mutation of the property in the municipal

records. Copy of the said letter was also forwarded to the petitioner at

property No. 275 & 276, Double Storey, New Rajender Nagar, New Delhi-

110060 i.e. the property itself. The petitioner has been paying the Property

Tax to the local authorities from 1957. It is, therefore, clear that the

respondents were fully aware and conscious that the property had been sold

and transferred to the petitioner and petitioner has been residing in the property. Ministry of Rehabilitation had written a letter to the New Delhi

Municipal Committee, confirming the fact that the transfer had been made

with their approval and they have no objection in case the Municipal

Committee makes the necessary amendments and mutates the property in

favour of the petitioner. The office of the Settlement Commissioner was

aware of the transfer of the property in favour of the petitioner and had

accepted the same. Even if, there was any lapse or default in not asking prior

approval for transfer, the same cannot be considered as illegal or void, which

requires any action. The Ministry of Rehabilitation not find the transfer

objectionable and wrong. After 50 years, it is not permissible to permit and

allow L & DO, to go behind the transfer and question and challenge the same.

The transfer was acceptable to Ministry of Rehabilitation and cannot be

questioned today. L & DO is not competent and cannot answer and state

about policy and guidelines applicable and applied by Ministry of

Rehabilitation in 1957.

11. The petitioner has stated in the petition that in 1976 pursuant to a

public notice issued by L &DO, the petitioner vide letter dated 16th June, 1976

had enclosed and filed copy of the building plan for additions and alterations

made in the property. The respondent L & DO has not specifically

controverted and denied receipt of the letter dated 16th June, 1976, but in

counter affidavit it is stated that the record of the petitioner was received in their office in 1985. The petitioner cannot be blamed in case the respondent L

& DO received incomplete file or file with missing pages.

12. Reliance on policy decision dated 11th March, 1994 is misconceived.

Firstly, in the present case the approval for transfer of property was granted

in the year, 1957, almost 37 years before policy decision dated 11th March,

1994 was formulated. Secondly, the transfer was accepted and as stated

above if there was any lapse or violation of the lease, the same was condoned

as is clear from the letter dated 18th January, 1958 , written by the Ministry of

Rehabilitation to New Delhi Municipal Committee giving their consent to

transfer the property from the name of Mr. Bhagat Ram Chandna to Mr. K.L.

Sehgal and asking the Municipal Committee to amend their records. Thirdly,

the policy itself states that the said instructions would came into play with

immediate effect in pending cases but the decided cases would not be re-

opened. Fourthly, the relevant paragraph of the policy stipulates that crucial

date for the purpose of calculation of unearned increase is the date of

intimation of transfer along with certified copy of the sale deed and

accordingly unearned increase would be calculated. In the present case, the

property was purchased in a public auction and the same was transferred to

the petitioner within a few months thereafter on 27th September, 1957.

Ministry of Rehabilitation cannot and did not ask for any unearned increase

because no unearned increase was payable. L & DO has, also not asked for payment of unearned increase. In these circumstances demand for penalty of

Rs.1,36,652/- is unjusted.

13. The petitioner is a Senior Citizen aged 77 years. He has been

unnecessarily dragged to this Court and harassed from 1999 onwards. The

respondent L & D0 will pay cost of Rs. 25, 000/- to the petitioner. The said

cost will be paid within four weeks from today by sending a cheque to the

petitioner at the property address. It is open for the respondent L & DO to

recover this amount from delinquent officials after conducting the necessary

inquiry, but this should not stop payment of costs.

14. In view of the above, demand of Rs.1,36,652/- as per the impugned

letter dated 11th August, 2003 is set aside and quashed. The respondent will

process the application of the petitioner for conversion of the property from

lease hold to free hold, filed in 1999 within one month from the date copy of

this order is received.

The writ petition is disposed of.

Dasti.

SANJIV KHANNA,J MAY 20, 2009 NA