Sh. Subhash Chander Gupta vs Uoi & Ors.
2010 Latest Caselaw 5635 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 10th December, 2010.

+                           W.P.(C) No.17855/2004


%        SH. SUBHASH CHANDER GUPTA             ..... PETITIONER
                      Through: Mr. Madan Gera, Adv.

                                       Versus

         UOI & ORS.                                    ..... RESPONDENTS
                            Through:      Mr. Nitin Kapur, Adv. for Mr.
                                          Himanshu Upadhyay, Adv. for MCD.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                   NO

2.       To be referred to the reporter or not?            NO

3.       Whether the judgment should be reported           NO
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The father of the petitioner was the perpetual lessee under the

respondent no.2 Land & Development Office (L&DO) with respect to the

land admeasuring 3302 sq. ft. situated at Plot No.33-34, Block No.80 known

as 65-67, Panchkuiyan Road, New Delhi. Upon the demise of the father of

the petitioner, the name of the petitioner and his mother Smt. Bhagwati Devi

was substituted as perpetual lessee with respect to the aforesaid plot of land.

It is the claim of the petitioner that his mother Smt. Bhagwati Devi executed

registered Relinquishment Deed and relinquished all her rights and title in

the said leasehold and the construction thereon in favour of the petitioner.

The petitioner applied for mutation for recording his name as sole perpetual

lessee and for deletion of the name of his mother as perpetual lessee. The

petitioner also applied for conversion of the leasehold rights in the land into

freehold in accordance with the Policy introduced by the respondent no.1

and deposited conversion charges with the respondent no.2 L&DO.

However the said conversion was not processed, according to the petitioner

for the reason of the claim of the respondent no.2 L&DO for damages for

alleged unauthorized construction on the land. This writ petition was filed

contending that the claim of the respondent no.2 L&DO for damages for

alleged unauthorized construction was not tenable as also held by this Court

in Jor Bagh Association (Regd.) Vs. Union of India 112 (2004) DLT 690

and seeking a direction to the respondents to convert the leasehold rights in

the land underneath the property to freehold and for mutation of the property

in the sole name of the petitioner.

2. Notice of the writ petition was issued. The respondent no.2 L&DO

during the hearing of the writ petition vide letter/memorandum dated 14 th

February, 2005 carried out the mutation in the sole name of the petitioner.

The petition insofar as the said relief was claimed thus stands satisfied.

3. The respondent no.2 L&DO however filed a counter affidavit averring

that the petitioner/his predecessor for the reason of having raised

unauthorized construction on the plot of land were in breach of lease

conditions; that on account thereof the lease of the land was at one time re-

entered but upon the petitioner paying the regularization charges till then,

and undertaking to remove the breaches and to pay the regularization

charges till the date of removal of breaches, the re-entry was withdrawn; that

the petitioner/his predecessor had however neither removed the breaches nor

paid further regularization charges and thus were not entitled to conversion

of leasehold right into freehold. Along with counter affidavit copies of the

letters issued from time to time demanding temporary regularization charges

were annexed.

4. The respondent no.2 L&DO during the pendency of the writ petition,

vide letter dated 25th October, 2005 also rejected the application of the

petitioner for freehold conversion and refunded the charges therefor

deposited by the petitioner.

5. CM No.15315/2005 was moved by the petitioner in this regard for

stay of said rejection. This Court vide order dated 12 th December, 2005

restrained the respondent no.2 L&DO from cancelling the perpetual lease

deed and made the rejection of the application for conversion to freehold

subject to further orders in this writ petition.

6. The counsel for the petitioner on 8th May, 2006 informed that the

Panchkuiyan Road Market has been transferred from the L&DO for

management and control to MCD and the issue of conversion to freehold

was also required to be considered by the MCD. On oral request of the

counsel for the petitioner, MCD was also impleaded as respondent no.3 to

this writ petition.

7. The petitioner thereafter applied for amendment of the writ petition to

also seek the relief of impugning the rejection of the application for freehold

conversion and for declaration that the demand for regularization charges of

the alleged breaches and on the basis whereof freehold conversion was

being withheld is illegal. The said amendment was allowed on 18 th January,

2007 and counter affidavit to the amendment writ petition was filed by the

respondent no.3 MCD but the contents whereof are more or less the same as

that of the counter affidavit earlier filed by the respondent no.2 L&DO.

Rejoinder thereto has been filed by the petitioner.

8. The petition thereafter though was listed for final hearing, was being

adjourned from time to time for the reason of judgment of Single Judge

Bench in Jor Bagh Association (supra) pending consideration in an Intra

Court Appeal before the Division Bench of this Court. The counsel for the

petitioner on 6th July, 2010 contended that there was no stay by the Division

Bench in the appeal aforesaid; that in a number of other cases, other Single

Bench Judges of this Court have been following the judgment in Jor Bagh

Association have struck down such demands and directed freehold

conversion. He thus sought hearing of this writ petition without waiting for

the decision of the Division Bench in appeal (supra). As such on 24 th

September, 2010 it was made clear that the writ petition shall be heard.

9. The counsel for the respondent no.3 MCD today admits that the

question entailed in the present writ petition is the same which has been

decided in favour of the perpetual lessee by a Single Bench of this Court in

Jor Bagh Association (supra) and stated that he will prefer an appeal against

the judgment in the present writ petition also if allowing the claim of the

petitioner.

10. This Bench, not disagreeing with the view taken in the Jor Bagh

Association is of the opinion that the present writ petition ought not be kept

pending. The respondent if aggrieved from the decision would have the

remedy of appeal and rather it is expedient that the Division Bench while

considering the matter, considers the facets arising in different

matters/contexts.

11. It is not the case of the respondents that the perpetual lease in the

present case is different from the perpetual lease under consideration in Jor

Bagh Association. In the said judgment it was held that the terms and

conditions of the perpetual lease do not provide for imposition of any

charges by the superior lessor for temporary regularization of the alleged

unauthorized construction; the said demand was accordingly quashed.

12. The same is the position here also. The perpetual lease does not

provide for recovery of the damages on account of demand whereof the

conversion of leasehold rights into freehold has been rejected.

13. The counsel for the petitioner has also referred to the judgment dated

19th November, 2004 in W.P.(C) No.2504/1993 titled Onkar Nath vs.

Union of India in which following Jor Bagh Association (supra) similar

demand was quashed.

14. Accordingly the present writ petition is allowed; it is held that the

L&DO/MCD is not entitled to recover any damages/regularization charges

on account of alleged unauthorized construction over the land; the said

demands are quashed; consequently, the rejection dated 25 th October, 2005

of freehold conversion is also held to be bad and the respondents are now

directed to consider the application earlier filed by the petitioner for freehold

conversion de hors the claim for damages/regularization charges which have

been quashed and subject to the petitioner complying with other formalities,

convert the leasehold rights in the land underneath into freehold on or before

31st March, 2011.

15. Though the respondents, inspite of judgment of this Court having

contested the writ petition are liable for costs of these proceedings also but I

refrain from imposing any costs.

RAJIV SAHAI ENDLAW (JUDGE) 10th December, 2010 bs (Corrected and released on 20th December, 2010)