Delhi High Court
Union Of India vs J. Daulat Singh & Ors. on 25 May, 2009
Author: Ajit Prakash Shah
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 250/2009 & CM Nos. 7734-36/2009
UNION OF INDIA ..... Appellant
Through: Mr. Sanjeev Sachdeva and
Mr. Preet Pal Singh, Advocates.
versus
J. DAULAT SINGH & ORS. ..... Respondents
Through: None.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL
ORDER
% 25.05.2009
1. The present appeal is directed against the impugned order
dated 4th December, 2007, passed by the learned single Judge.
2. The predecessor-in-interest of the respondents (original
petitioners in the writ petition) was allotted/granted a perpetual lease
in respect of 16.5 acres of land being a plot on Aurangzeb Road, New
Delhi. Various conditions were incorporated in the lease deed.
Subsequently, the plot was sub-divided into two parts. This sub-
division was carried out with the concurrence of the Lessor. The
division was necessitated by the death of the original Lessee and
understanding/arrangement between the legal representatives.
3. The Lessee approached the Land and Development Officer (in
short 'L&DO') with a proposal to sell Plot No.11A i.e. smaller sub-
divided plot and with its proceeds re-develop the other plot, to
construct separate flats in terms of the Group Housing Scheme, then
prevalent, after approval by the concerned Municipal Authorities i.e.
New Delhi Municipal Corporation (in short 'NDMC'). This was
granted and the legal representatives of the Lessee paid
Rs.60,00,000/-, in terms of the demand then made by the L&DO, for
such sale.
4. The Central Government /L&DO issued a 'no objection
certificate' for obtaining completion certificate after re-development
from the NDMC. Accordingly, the above certificate was issued.
5. On 9th September, 1994, the respondent acting for himself and
for other co-owners/Lessees wrote to the L&DO seeking for execution
of supplementary lease deed. The understanding then was that the
supplementary lease deed would be executed with a restrictive
condition that the Lessee could not sell the property without prior
approval and payment of unearned increase/ conversation charges.
6. In response to the request, L&DO replied on 8th May, 1995
stating that a sum in excess of Rs.1.42 crores was payable which
included additional premium as well. This demand was repeated
from time to time. Being aggrieved, the respondent preferred a writ
petition in this Court, out of which the present appeal arises.
7. The L&DO justified its demand before the learned single Judge
on the ground that permission to construct upon the sub-divided plot
was on the basis that the co-owners/Lessees would reside in the
property. However, the respondents constructed 24 flats out of which
only 6 flats were retained for occupation and 18 were rented to
outsiders. It was also claimed that 3 flats were being misused for
office by the tenants in violation of the terms of the lease and master
plan.
8. As per the L&DO, since the respondent and other co-owners/
Lessees agreed to use the premises themselves, the L&DO did not
insist for additional payment initially.
9. The learned single Judge has rightly held that the original lease
did not contain a clause for payment of unearned increase. Keeping
in view the respondents and the co-lessees approached the appellant,
which led to the smaller sub-divided plot being sold upon payment of
unearned increase. The learned single Judge rightly observed that
however, when the permission was sought for constructing Group
Housing in the year 1985 that was granted; the letter evidencing 'no
objection' of the L&DO was on record and that they did not in any
manner reserve the right to claim additional premium for
construction of Group Housing in the event the premises were not
used by the co-lessees/co-owners. Thus, the learned single Judge
rightly held that in the absence of any material to support the
submission that at the relevant time permission could be granted
only upon payment of additional premium and that the respondents
were treated differently because of their claim to use the premises,
the demand of the appellant in that regard was not well founded.
The learned single Judge also took note of the fact that as far as the
justification by the L&DO regarding the claim for additional amounts
on account of alleged misuser was concerned, there was no material
to show as to how the premises were misused and for what period.
The learned single Judge correctly held that mere letting out of the
premises by itself did not amount to violation of lease deed and other
conditions unless there was material to show that such renting of the
premises was a camouflage for sale. As per the learned single Judge,
if such unauthorised sub-letting in terms of the Act or any condition
had taken place, the appellant ought to have followed some
procedure by putting the respondents on notice about the extent and
duration of such violation. Accordingly, the learned single Judge
rightly quashed the demand and issued a direction to the appellant
to take steps and ensure that the supplementary lease deed is
executed in respect of the sub-divided plot.
10. The learned counsel for the respondents during the course of
hearing before the learned single Judge had submitted that the
respondents were willing to furnish an undertaking that in the event
of supplementary lease deed being executed they would abide by its
terms including the demand for payment of unearned increased in
this regard. The learned single Judge also rightly held that this did
not preclude the L&DO from inspecting the premises and raising
such demands as may be raised by them if they found that any of the
terms and conditions in the lease deed has been violated.
11. We may also mention that there is delay of more than 416 days
in filing of the present appeal. We find no infirmity in the order of the
learned single Judge to warrant any interference. The appeal is
accordingly dismissed. However, it is made clear that this order will
not be treated as a precedent in any other matter. It is ordered
accordingly. All pending application stand disposed of as well.
CHIEF JUSTICE
NEERAJ KISHAN KAUL, J.
MAY 25, 2009
sb
