Dr. Som Dutt Butta (Deceased) ... vs Union Of India
2011 Latest Caselaw 2745 Del

   IN THE HIGH COURT OF DELHI AT NEW DELHI

     W.P. (C) 597/1976 & CM Nos. 1818/2002 and 3725/2010

                                              Reserved on: April 26, 2011
                                              Decision on: May 23, 2011

        DR. SOM DUTT BUTTA (DECEASED)
        THROUGH LR‟S                                   ..... Petitioners
                        Through: Mr. Gaurav Sarin with
                        Ms. Charul Sarin and Mr. P.D. Shah, Advocates.

                           Versus

        UNION OF INDIA AND ORS.              ..... Respondents
                        Through: Mr. Jay Kishore Singh, Advocate
                        for R-6.
                        Mr. Arjun Pant, Advocate for NDMC.
                        Mr. B.V. Niren, CGSC with Mr. Parikshit Singh
                        Shekhawat, Advocate for R-1.


        CORAM: JUSTICE S. MURALIDHAR

        1. Whether 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 Digest? Yes

                               JUDGMENT

23.05.2011

Introduction

1. Since 1969 a dispute over a small area of about 14 sq. yds. under a staircase on the rear side of shops 20 and 20 A in Khan Market, New Delhi (hereafter „the shops in question‟) leading up to the first floor premises also known as the „Central Hall‟ has remained unresolved. The dispute, which reached this Court in 1976, is whether this area was wrongly included in the lease and conveyance deed dated 17th November 1961 executed in favour of the Petitioner Dr. Som Dutt Butta (now deceased) in respect of the shops in question and whether it was for the exclusive use of Respondent No. 6 Mr. Dhanpat Rai Ahuja (now deceased), the lessee of the Central Hall.

2. This writ petition by Dr. Butta challenges an order dated 4th January 1972 by the Authorised Chief Settlement Commissioner (ACSC) in the Office of the Regional Settlement Commissioner (RSC) allowing a suo moto revision under Section 24 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 („DPCRA‟) and cancelling the lease and conveyance deed dated 17th November 1961 executed in respect of the shops in question in favour of Dr. Butta and directing that a fresh lease and conveyance deed be issued in his favour showing the correct area with a correct line plan of the shops in question. This petition also challenges an order dated 25th July 1974 of the Deputy Chief Settlement Commissioner (DCSC) dismissing Dr. Butta‟s petition under Section 33 DPCRA, an order dated 30th August 1974 by the DCSC rejecting Dr. Butta‟s prayer for restoration of the revision petition and an order dated 28th November 1975 of the Director, Department of Rehabilitation („DoR‟), Government of India dismissing Dr. Butta‟s application seeking review of the order dated 30th August 1974.

3. During the pendency of this writ petition Dr. Butta expired on 20th February 1993. By an order of this Court dated 17th May 1994 his legal representatives („LRs‟), i.e., Mrs. Narain Devi Butta the wife, and sons Mr. Yash Pal Butta and Mr. Surender Kumar Butta were substituted for Dr. Butta. On 28th June 1999, Mrs. Narain Devi Butta, wife and Mrs. Swarn Lata Bangia daughter of late Dr. Butta executed a relinquishment deed releasing their respective 1/4th share in the shops in question in favour of the other LRs, i.e., the two sons Mr. Yashpal Butta and Mr. Surender Kumar Butta. Before his death on 17th December 2009 Mr. Surender Kumar Butta transferred his 50% undivided interest in the shops in question by an Agreement to Sell, a General Power of Attorney („GPA‟) and Will dated 7th December 2009 in favour of Mr. Dinesh Arora. CM No. 7287 of 2010 was filed for substitution and impleadment of Mr. Dinesh Arora in place of late Mr. Surender Kumar Butta. This application was allowed by this Court on 28th October 2010. Respondent No. 6 Mr. Dhanpat Rai Ahuja also expired during the pendency of this writ petition and has been substituted by his LRs by an order dated 26th November 2007 passed in CM No. 1818 of 2002. Subsequently, one of the LRs of Respondent No. 6, Mrs. Kiran Khanna

[Respondent No. 6(a)] also died. Application for substitution of her legal heirs, CM No. 3724 of 2009 was allowed on 20th May 2009. The control of the shops in question stood transferred by the Land and Development Office („L&DO‟) to the New Delhi Municipal Council („NDMC‟) which was then added as a party/Respondent No. 7 in this writ petition by an order dated 24th August 2007 passed in CM No. 8590 of 2006.

4. After the hearing concluded a site visit was undertaken by the Court. The NDMC has also placed before the Court the complete records of the case.

Background Facts

5. Shop No. 20 Khan Market was allotted to Dr. Butta by the Housing and Rent Officer, Delhi on 23rd June 1951 and possession thereof was given to him on the same day. Later on his request the rear shop No. 20 A was allotted to him on 30th December 1955 and a formal allotment letter was issued on 28th February 1956. On 28th December 1956 Dr. Butta made a formal application for transfer of the shops in question in his favour. At this stage the exact area of the shops in question were not formally got measured.

6. 153 shops were constructed by the Government of India on the ground floor and 76 flats on the first floor in Khan Market with joint/independent passage and staircase to access the first floor. According to the Petitioner, by a letter dated 7th January 1957 of the Ministry of Rehabilitation, he was permitted to make a window measuring 2x3 ft. in the wall of shop No. 20 A which opened out below the staircase leading to the first floor. However, no document of grant of such permission is on record.

7. Pursuant to an auction Respondent No. 6 purchased the Central Hall on the first floor above the shops in question on 13th October 1957. The area advertised in the auction was 375 sq. yds. Respondent No. 6 claims to have paid a total consideration of Rs. 83,100/- for the entire area.

8. On 17th November 1961 a lease and conveyance deed was executed in favour of Dr. Butta in respect of the shops in question. The said deed showed the total area to be 648 sq. ft. i.e. 72 sq. yds. On 20th September 1968, Dr. Butta filed Suit No. 679 of 1968 in the Court of Sub-Judge, First Class, Delhi, for a permanent injunction to restrain Mr. Ahuja, Respondent No. 6, from closing the window in the rear wall of shop No. 20A. Mr. Ahuja on the other hand claimed that Dr. Butta had illegally opened the window in the property of Mr. Ahuja.

9. On 1st February 1969 a lease deed was executed in favour of Mr. Ahuja in respect of the Central Hall with the area being shown as 361 sq. yds. and the break up given as: (i) staircase Ground Floor 14 sq. yds. at full rate (ii) Central Hall 347 sq. yds. 1/3rd rate. On 7th February 1969 Mr. Ahuja wrote to the RSC stating out that although he had purchased the Central Hall in 1961 and that "in this property I am also the owner of staircase on the ground floor adjoining Shop Nos. 20 and 20 A" and that in the lease agreement executed in favour of Dr. Butta "my area of staircase has also been included in his area." He pointed out that the lease deed in respect of the shops in question in favour of Dr. Butta showed their area to be 72 sq. yds. whereas shops 20 and 20 A were of 38 and 17 sq. yds. respectively. Mr. Ahuja stated that this was a "glaring mistake which may lead to a lot of complications legal or otherwise later on" and requested that the lease for the shops in question be amended immediately.

10. On receipt of the said letter, the Managing Officer (`MO‟) (AG) in the Office of the RSC requested the Assistant Valuation Officer (`AVO‟) in the Office of the CSC by a letter dated 28th April 1969 to examine the grievance and supply the line plan of the shops in question. The AVO was also requested to intimate "with whose shop the stair case area is." This led to a fresh measurement and drawing up of a line plan, which will be discussed hereafter.

11. The Assistant Engineer then wrote to the MO on 31st July 1969 stating that the area incorporated in the lease and conveyance deed executed in favour of Dr. Butta in respect of the shops in question was incorrect "and it should have been

56 sq. yds. instead of 72 sq. yds." The lease deed was directed to be amended accordingly. On 14th August 1969 the MO wrote to Dr. Butta asking him to attend the MO‟s Office in order to execute a supplementary lease deed in respect of the shops in question "as the area shown in the previous deed is wrong. It should be 504 s.ft instead of 648 sq. ft." The record with the NDMC (Vol. II page 28) also shows that the cost of land and superstructure in respect of the shops in question were re-worked on 22nd August 1969. The land cost was worked out at Rs.52 per sq. yd. Again for shop No. 20 the cost of land worked out to Rs. 1317 (i.e. 38x52x2/3) and the cost of superstructure to Rs. 3300. For Shop No. 20 A the cost of land worked out to Rs. 589 (i.e.17x52x2/3) and the cost of superstructure Rs.1765. After allowing rebate of 10% for land the total cost worked out to Rs. 6780.40.

Revision Petitions before the CSC

12. Aggrieved by the communication dated 14th August 1969 of the MO, Dr. Butta filed a revision petition before the CSC. By an order dated 17th November 1969 the MO‟s order dated 14th August 1969 was set aside and a direction was issued to "the appropriate authorities to proceed in the matter after hearing the petitioner." Thereafter on 18th/22nd December 1969 the MO wrote to Dr. Butta asking him to appear on 6th January 1970 with "all evidence in support of your contentions." Dr. Butta however took the stand that action if any could only be taken by the CSC. Pursuant to the decision taken by the Office of the RSC, a suo moto revision under Section 24 DPCRA was preferred by the DoR on 7th July 1970 before the CSC praying that the lease deed dated 17th November 1961 in respect of the shops in question should be cancelled so that a fresh lease deed could be issued "for the actual area underneath the shops." Dr. Butta and Mr. Ahuja were impleaded in the revision petition as Respondent Nos.1 and 2 respectively.

13. Meanwhile aggrieved by the fact that he was charged for an area of 375 sq. yds. whereas area shown in his lease deed dated 1st February 1969 was 361 sq. yds., Mr. Ahuja, on 23rd September 1969 and 9th January 1970, made applications seeking refund of the excess amount. The RSC, by an order dated

12th January 1970, declined the prayer holding that according to the line plan supplied in respect of the lease deed executed in favour of Mr. Ahuja the area of the Central Hall was 361 sq. yds. and the staircase was 14 sq. yds. This was followed by another order dated 20th January 1970 of the RSC confirming that the measurement of the Central Hall was shown to be 347 sq. yds., passage on the first floor was 14 sq. yds. and the base of the staircase on the ground floor was also 14 sq. yds., thus making a total area of 375 sq. yds. By a letter dated 13th March 1970 the MO informed Mr. Ahuja that the line plan already supplied by the valuation branch was correct. Aggrieved by the said decision, Mr. Ahuja filed a revision petition before the CSC on 24th March 1970 seeking inter alia a declaration that Mr. Ahuja was "entitled to a proportionate rebate for reason of the area being found less than what was advertised."

14. By an order dated 30th October 1970 the suo moto revision petition of the DoR was directed to be heard with the revision petition filed by Mr. Ahuja pending before the ACSC. On 4th January 1972 the ACSC accepted the suo moto revision petition of the DoR and cancelled the lease deed dated 17th November 1961 in favour of Dr. Butta and directed a fresh lease deed to be issued incorporating the correct measurements of the land and superstructure in respect of the shops in question. The ACSC further held that the value of the site underneath the staircase measuring 14 sq. yds. at Rs. 52 per sq. yd. was assessed as Rs. 728/- and the entire value had been recovered from Mr. Ahuja. Consequently Mr. Ahuja‟s revision petition seeking refund of the excess amount was rejected by the ACSC by the same order.

15. Aggrieved by the aforementioned order dated 4th January 1972, Dr. Butta filed a petition under Section 33 of the DPCRA before the DCSC. On account of non-appearance of Dr. Butta the said petition was dismissed on 25th July 1974. An application filed thereafter seeking restoration of the said revision petition was also dismissed by the DCSC on 30th August 1974. Dr. Butta then approached the Joint Secretary of the DoR seeking review of the order dated 30th August 1974. This was rejected by the Director DoR by the impugned order

dated 28th November 1975 on the ground that Section 25 DPCRA read with Rule 106 of the DPCR Rules, 1955 did not authorise the Central Government to review an order passed by itself and further the case is not one of clerical error or mistake. Dr. Butta thereafter filed the present writ petition on 26th April 1976 challenging the aforementioned orders of the ACSC, DCSC and the Director. When this writ petition came up for hearing on 11th May 1976 Rule was issued by this Court.

Proceedings in the civil suit

16. Meanwhile Suit No. 679 of 1968 filed by Dr. Butta in respect of closure of the window by Mr. Ahuja was dismissed by the learned Sub-Judge, First Class (SJFC), by a judgment and decree dated 30th July 1970. It was held by the learned SJFC that the window opened in the property of Mr. Ahuja and that he could not be restrained from constructing staircase in front of the window and thus closing the window. It was further held that the shops in question purchased by Dr. Butta did not include the staircase towards which the disputed window of the Petitioner opened and also that the wall in which the window opened was owned jointly, half and half, by Dr. Butta and Mr. Ahuja. It was held that Mr. Ahuja had exclusively purchased the area of the staircase.

17. Against the aforesaid judgment dated 30th July 1970 of the learned SJFC, an appeal RC No. 115 of 1972 was filed by Dr. Butta in the Court of Additional District Judge (ADJ). The said appeal was dismissed for default on 30th April 1975. Dr. Butta‟s application under Order 41 Rule 19 before the learned ADJ seeking restoration of the appeal was dismissed by the learned ADJ on 13th October 1976. Thereafter, Dr. Butta preferred FAO No. 7 of 1977 in this Court. While directing notice to issue in the said appeal petition, this Court stayed any demolition including the closing of the window. That appeal has since been disposed of on 8th February 2001 by referring the dispute between the parties to arbitration by the Chairperson, NDMC.

18. At one stage, Dr. Butta filed a contempt petition stating that, Mr. Ahuja had

in violation of the interim order of this Court, closed the window and altered the position of the staircase to the first floor by cutting into the common wall. Mr. Ahuja contended that change in the entrance of the staircase was done on 14th December 1966 with the permission of the NDMC. It was stated that earlier the staircase was a spiral one and went around the entire area of 14 sq. yds. on the ground floor.

Maintainability of the revision petitions

19. Mr. Gaurav Sarin, learned counsel appearing for the Petitioner first submitted that in order to justify the invocation of suo moto revisional powers under Section 24 (2) DPCRA, the DoR had to show that a fraud had been played by Dr. Butta in respect of the lease deed dated 17th November 1961. Further even for the purposes of Section 24 (1) DPCRA since there was no „order‟ passed for the execution of the lease in favour of Dr. Butta there is no occasion for exercising of suo moto revisional powers. In reply Mr. Jay Kishoree Singh, learned counsel appearing for Respondent No.6 pointed out that the suo moto powers had been exercised under Section 24 (2) and not Section 24(1) DPCRA. Consequently, there was no need to show that any fraud had been played by Dr. Butta. On the scope of the revisional powers, he placed reliance on the decisions in Om Prakash v. Union of India (1970) 3 SCC 942 and Ajay Canu v. Union of India (1988) 4 SCC 156.

20. To appreciate the above submissions a reference may be made to Section 24 DPCRA which reads as under:

"Section 24 - Power of revision of the Chief Settlement Commissioner. (1) The Chief Settlement Commissioner may at any time call for the record of any proceeding under this Act in which a Settlement Officer, an Assistant Settlement Officer, an Assistant Settlement Commissioner, an Additional Settlement Commissioner, a Settlement Commissioner, a managing officer or a managing corporation has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit.

(2) Without prejudice to the generality of the foregoing power under sub-section (1), if the Chief Settlement Commissioner is satisfied

that any order for payment of compensation to a displaced person or any lease or allotment granted to such a person has been obtained by him by means of fraud, false representation or concealment of any material fact, then, notwithstanding anything contained in this Act, the Chief Settlement Commissioner may pass an order directing that no compensation shall be paid to such a person or reducing the amount of compensation to be paid to him or as the case may be, cancelling the lease or allotment granted to him; and if it is found that a displaced person has been paid compensation which is not payable to him, or which is in excess of the amount payable to him, such amount or excess, as the case may be, may, on a certificate issued by the Chief Settlement Commissioner, be recovered in the same manner as an arrear of land revenue.

(3) No order which prejudicially affects any person shall be passed under this section without giving him a reasonable opportunity of being heard.

(4) Any person aggrieved by any order made under sub-section (2), may, within thirty days of the date of the order, make an application for the revision of the order in such form and manner as may be prescribed to the Central Government and the Central Government may pass such order thereon as it thinks fit."

21. Section 24 (2) requires that there must have been "fraud, false representation or concealment of any material fact" in the passing of an order for the grant of lease in favour of Dr. Butta. This was not even the case of the DoR and to that extent learned counsel for the Petitioner may be right in contending that there was occasion to invoke Section 24 (2) DPCRA. However, the record shows that in the notings portion of the file (Vol. I page 7) there was an order passed on 14th November 1961: "Let deed of transfer issue." The line plan was also added to the file on 12th November 1961. Therefore there was indeed an order for the purposes of Section 24 (1) DPCRA which was sought to be suo moto revised by the RSC. In Om Prakash v. Union of India, the Supreme Court recognised the power of the CSC to call "for the records at any time of the proceedings under the Act in which an officer specified therein has passed an order, for the purpose of satisfying himself as to the legality or propriety of any such order."

22. Secondly, the proceedings before the ACSC by way of suo moto revision was in continuation of the earlier proceedings in which by an order dated 14th

August 1969 Dr. Butta had been asked to come to the office of the MO to have the lease deed corrected. Dr. Butta‟s revision petition against the said order resulted in its being set aside by the CSC on 17th November 1969 with a direction that Dr. Butta should be heard before any order adverse to him was passed. This then led to the letter dated 18th/22nd December 1969 from the MO asking Dr. Butta to appear before him with all the relevant documents to substantiate his claim. Thirdly, if indeed a genuine mistake was made by the DoR in indicating the extent of the shops in question in the lease deed dated 17th November 1961, it cannot be held that they were powerless to appropriately correct the lease deed to reflect the correct factual position. In any event this was done after a show cause notice to Dr. Butta and after giving him an opportunity of being heard and producing documents. Consequently this Court is unable to hold that in the instant case the proceedings before the authorities under the DPCRA were not maintainable or were without jurisdiction,

Legality of the orders in revision

23. Assailing the impugned orders, Mr.Sarin for the Petitioner submitted that the relevant clauses of the lease deed dated 17th November 1961 showed that the "undivided half share" in the staircase was also transferred to Dr. Butta. It is submitted that a similar clause was missing in the lease deed dated 1 st February 1969 executed in favour of Mr. Ahuja. It is submitted that the area above the staircase belonged to Mr. Ahuja and the area beneath it was to be shared by both Dr. Butta and Mr. Ahuja. Lastly, it was submitted that in any event, Mr. Ahuja had no need for the area beneath the staircase. On the other hand Dr. Butta was using it as part of his clinic. Mr. Sarin submits that Mr. Ahuja in his revision petition was in fact seeking a refund of the amount charged for the staircase. It was further urged that all other ground floor shops in Khan Market had the use and possession of the area beneath the staircase and no exception should be made as regards the shops in question. Lastly it was submitted that in the event of the order for executing a fresh lease deed in respect of the shops in question being upheld, it should be in favour of the LRs of Dr. Butta as have been brought on record in this petition.

24. Mr. Jay Kishore Singh, learned counsel appearing for Respondent No. 6 submitted that there is a clear mention in the lease deed dated 1st February 1969 in favour of Mr. Ahuja of 14 sq. yds. of the ground floor on which the staircase stood. He submitted that the fact that Mr. Ahuja sought and obtained permission in December 1966 to change the position of the staircase showed that it was Mr. Ahuja who was at all times in possession and in control of the entire staircase area. The costing of the amounts mentioned in the respective lease deeds of Dr. Butta and Mr. Ahuja also showed that what was given to Dr. Butta was only 55 sq. yds. and nothing more whereas Mr. Ahuja had paid for the area of the staircase as well. The mere fact that Mr. Ahuja had sought refund of what according to him was the excess amount did not make any difference since in any event that refund was refused by the impugned order of the ACSC and was not challenged by Mr. Ahuja. In this context he submitted that the Petitioner should not be allowed to urge points which were not argued before the ACSC or DCSC. Mr.Singh also submitted that the scope of the powers of judicial review of this Court was limited and unless there was any glaring error of jurisdiction, the impugned orders ought not to be interfered with. Reliance was placed on the decisions in Samir Chandra Das v. Bibhas Chandra Das (2010) 6 SCC 432, Bachhaj Nahar v. Nilima Mandal (2008) 17 SCC 491 and State of U.P. v. Satya Narain Kapoor (2004) 8 SCC 630.

25. At the outset, this Court would like to observe that although the order of the DCSC dated 25th July 1974 is one of dismissing the Petitioner‟s revision petition in default and the subsequent orders dated 30th May 1974 of the DCSC and 28th November 1975 of the Director of Rehabilitation have affirmed the said order, this Court at this point of time does not consider it expedient to remand the case to those authorities for a fresh disposal on merits. Considering that this writ petition has been pending for over 35 years in this Court, it is considered appropriate to dispose it of on merits.

26. The central issue in the petition is whether the area of the shops in question as shown in the lease deed dated 17th November 1961 in favour of Dr. Butta

required to be corrected. The dispute between the Petitioner on the one hand and Respondent No. 6 on the other concerns the area under the staircase from the ground floor to the Central Hall on the first floor above the shops in question. The fact that other ground floor shops in Khan Market include the area beneath the staircase to the flats above those shops cannot by itself be determinative of the question as far as the shops in question (i.e Shops 20 and 20 A) are concerned. Whether any right in the area under the staircase to the rear of shop 20 A was given to Dr. Butta or to Mr. Ahuja can be determined only by examining the respective lease deeds and other connected documents including the line plans and valuation sheets.

27. The lease deed dated 17th November 1961 executed in favour of the Petitioner is titled "Lease and Conveyance Deed in respect of Double Storeyed Flats over shops in various Rehabilitation colonies in Delhi." It is a standard form lease where the particulars of the shops/flats in question are filled in the blank spaces provided for that purpose. Clauses 2, 5 and 8 and Schedules of the lease deed dated 17th November 1961 read as under:-

"2. AND WHEREAS the Government has built a double storeyed building consisting of 153 shops and 76 flats (153 shops on the ground floor and 76 flats on the upper floor) with a joint/independent passage and staircase for going to the upper floor as shown in the plan annexed to these presents on plot No........situated in Khan Market Colony.

5. AND WHEREAS the Government has agreed to sell and the allottee has agreed to purchase shop No. 20, 20A and an undivided half share in the brick built staircase in the said block No.....for Rs. 6780.40 (Rupees Six Thousand Seven Hundred Eighty+40 p. only)

8. AND WHEREAS the said allottee of shop No. 20,20A has paid the total sum of Rs. 6780.40 (Rupees...........only) being the purchase price of the shop/flat No.......................and undivided share in the staircase situated in the said building (the receipt whereof the Government doth hereby acknowledge & from the same doth hereby release the said allottee whereof a sum of Rs. 3518.40 (Rupees three thousand five hundred eighteen+40 p. only) has been paid in case and the balance of Rs. 3262.00 (three thousand two hundred sixty two only) paid by adjustment against the compensation payable under the said Act to the allottee and

associate(s) whose name(s) and extent of their shares are more precisely given in Schedule „C‟ thereunder written and who has/have given his/their consent for transfer of his/their share in favour of the allottee and accordingly his/their name(s) is/are not joined with the allottee in the present deed as laid down in Rule 90(8) of the said Act."

28. The above clauses by themselves are not indicative of whether any share in the area beneath the staircase was given to Dr. Butta. Sub-clause (4) following the preamble clauses (internal page 2 of the lease deed) which is "For conveyance of upper floor allottees only" has nevertheless been filled up. It states that without the previous consent of the central government, the lessee (i.e. Dr. Butta) "shall not do anything which shall cause annoyance or inconvenience to the owners and/or occupants of adjoining first floor shop/flat being No. Central Hall and the staircase and a passage and the open space in front leading to the staircase and also the land under the staircase (shown hatched in Blue colour on the plan annexed hereto." It appears from this clause that Dr. Butta had to have specific permission of the central government in the event he wanted to use the area under the staircase for any purpose.

29. Then there are the Schedules to the lease deed. Schedule „A‟ described the structure that was transferred. It reads:

"Description of the structure of the transferred premises.

(a) All the brick built flat over shops Nos. 20, 20A/ shop Nos.

below the said flat Central Hall.

(b) Brick built staircase for the flats on the first floor."

Clearly clause (b) was meant only for flats on the first floor.

30. Schedule B referred to the land transferred. It reads:

"(1) Land under the superstructure measuring about 648 feet- charged 2/3 to GF+1/3 to FF (2) Land under the staircase measuring about .......sq. yds."

It is significant that the space in clause (2) has been left blank.

31. Schedule D gives the description of land leased jointly with upper floor/ground rent allottee as "Land under superstructure measuring about 648 sq. feet-charged 2/3 GF+1/3 to FF." Schedule E gives the description of the land leased jointly with the "other allottee of the staircase" and has been left blank. It reads: "Land under the staircase measuring about.......sq. yards."

32. The position becomes even clearer when one looks at the line plan prepared for the shops in question. The line plan with the lease deed dated 17th November 1961 was a simple one which gave no indication of any staircase on the rear side of shop No. 20 A. The original records produced by the NDMC show that on 26th July 1969 a line plan titled "Line Plan of Shop Nos. 20-20A, and Stair case in Back for F.F. Flat (Central Hall) at Khan Market, New Delhi as per plan No. D.P/A-305 (Issued by the Chief Architect CPWD on 24.3.51)" was prepared. A copy of the said line plan is at page 31 of Vol.II of the record produced by the NDMC. The said line plan clearly shows the Plot Area of the Shops in Question with clearly demarcated boundaries and this does not include the staircase area which is clearly to the rear of the shops in question. It also shows the "Details of Areas": for Shop No. 20 the Plot Area was 38 sq. yds. and the Built-up Area was 283 sq.ft and for Shop No. 20 A, the Plot Area was 18 sq. yds. and the Built-up Area was 147 sq.ft. It further indicates that the valuation was charged at 2/3rd rate for the ground floor shops and 1/3rd rate for the first floor. What is significant is the portion highlighted above which states that it is drawn up in terms of an earlier plan of 23rd April 1951.

33. The next relevant document is the one showing how the amount of Rs. 6780.40 being the total consideration paid for the shops in question was arrived at. The calculation is available in the original record of the NDMC at page 6 of Vol. I. It reads:

"Cost of land of Shop No. 20 = Rs.1317.00 (38 sq.yds) Cost of land of Shop No. 20-A= Rs.589.00 (17 sq.yds)

Total Rs.1906.00 Rebate Rs. 190.60 Net Rs.1715.40 Cost of structure of 20 & 20 A Rs.5065.00 Total cost Rs.6780.40"

34. When all the above documents are viewed cumulatively the position that clearly emerges is that what was given to Dr. Butta were the two shops in question to an extent of 38 (shop No. 20) and 17 sq. yds. (shop No. 20 A). The consideration paid by Dr. Butta was also for that extent. The mention in the lease deed dated 17th November 1961 of the total extent of 648 sq. ft. i.e., 72 sq. yds. was a mistake.

35. The lease deed dated 1st February 1969 in favour of Respondent No. 6 is worded differently. There is only one schedule attached to this lease deed. This schedule refers to the Central Hall above shop Nos. 20 and 20A, Khan Market. The operative clause reads as under:

"NOW, this Indenture Witnesseth that in consideration of the cost of land + superstructure of Rs. 83,100/- (Rupees Eighty three thousand & one hundred only) laid before the execution of these presents the receipt whereof the Lessor hereby acknowledges and the rent hereinafter reserved and of the covenants by the Lessor hereinafter contained the Lessor doth demise unto the lessee all the piece of land containing by admeasurement as per line plan attached (361 sq. yds.) charged staircase GF 14 sq. yds. At full rate Central Hall 347 sq yds 1/3rd rate situated in Central Hall over Shop Nos. 20-21 in Khan Market, New Delhi, which said plot of land is more particularly described in the Schedule hereunder written and with the boundaries thereof has for greater harness been delineated on the plan annexed to these presents and thereon coloured red, together with...." (emphasis supplied)

36. The highlighted portion has been added by hand in the original lease deed dated 1st February 1969. The line plan of the Central Hall with the date of 12th November 1968 shows that the area charged in valuation for the Central Hall is 347 sq. yds. and the area charged for common passage is 14 sq. yds. The area of

the staircase in the ground floor is mentioned as 14 sq. yds. and the total area is 375 sq. yds. The records of the Central Hall contain the building plans prepared from time to time. All of them uniformly show the staircase area as forming part of the portion given to Mr. Ahuja along with the Central Hall. Mr. Jay Kishore Singh referred to a letter dated 14th December 1966 from the NDMC communicating to Mr. Ahuja the grant of sanction for alteration and additions in respect of the Central Hall. This, it is pointed out, pertained to the shifting of the staircase so that it commenced from the common passage area and not from the rear service lane. Dr. Butta does not appear to have questioned the permission given for the shifting of the stair case.

37. The extract of the valuation register (copy at page 91 of Vol X of the documents filed by NDMC) shows that costing of the Central Hall included that 14 sq. yds. of the staircase on the ground floor. An order dated 20th January 1970 of Mr. Bishan Lall, ASC makes the position clear (this is at p.27 of Vol. I of the documents filed by NDMC pertaining to the Central Hall). He and Mr. R.C. Bakshi, Senior Valuer did a spot inspection on 17th January 1970. Mr. Lall notes: "The Central Hall measured 347 sq.yds and the passage was found 14 sq.yds on the first floor and the base of the staircase at the ground floor measured 14 sq.yds. By adding the aforesaid 3 items, the total area came to 375 sq.yds. Shri Ahuja represented at the spot that the area of the base of the staircase should not have been counted but the Senior Valuer urged that the staircase was exclusively provided for the Central Hall, consequently the said area shall have to be included in the total area." (emphasis supplied) It was on this basis that Mr. Ahuja was informed that he was not entitled to any refund. This was affirmed by the impugned order dated 4th January 1972 of the ACSC. With Mr. Ahuja not choosing to challenge it, the impugned order on this aspect became final. Clearly the entire staircase area of 14 sq.yds went with the Central Hall. It formed part of the lease deed in favour of Mr. Ahuja. The full consideration paid by him included the amount towards the area of the staircase.

38. The scope of the present proceedings does not require and in any event does

not permit a re-examination of the decision rejecting the refund claim of Mr. Ahuja. As already noted, he has not challenged it and Dr. Butta in any event could not have challenged it. The present petition is therefore confined to examining if the decision of the ACSC that the lease deed dated 17th November 1961 in favour of Dr. Butta requires to be corrected, is correct. For all of the reasons set out hereinbefore, the answer to the said question has to be in the affirmative. The decision of the DoR to cancel the lease deed dated 17th November 1961 in favour of Dr. Butta and issue a fresh lease deed to reflect the correct measurement of the shops in question suffers from no legal infirmity. It is based on the records, the relevant portions of which have been referred to hereinabove.

Conclusion and Directions

39. The impugned order dated 4th January 1972 of the ACSC is hereby affirmed. The challenge to the other impugned orders dated 25th July and 30th August 1974 of the DCSC and the decision dated 28th November 1975 of the Director, DoR is negatived. Since the lease deed dated 17th November 1961 in respect of the shops in question does not reflect their correct extent, the NDMC will now proceed to precisely measure the area of the shops in question and, subject to completion of all formalities, have a fresh lease deed executed in favour of the persons substituted for the Petitioner as per the last amended cause title in these proceedings. The preamble clauses of the fresh lease deed will state that it is drawn up and is being executed in terms of the orders of the authorities under the DPCRA as affirmed by this order. The fresh lease deed will be in terms of the records of the NDMC. The above steps shall be completed by the NDMC within a period of twelve weeks from today.

40. The writ petition and the pending applications are disposed of in the above terms, but in the circumstances, with no order as to costs.

S. MURALIDHAR, J MAY 23, 2011 ak