Delhi High Court
M/S Ashoka Estate Pvt. Ltd. & Ors. vs Union Of India & Ors on 23 January, 2012
Author: Manmohan Singh
.* HIGH COURT OF DELHI: NEW DELHI
% Judgment decided on: 23.01.2012
+ W.P.(C) No.6742/2000
M/S ASHOKA ESTATE PVT. LTD. & ORS. ......Petitioners
Versus
UNION OF INDIA & ORS .....Respondents
AND
+ W.P.(C) No.6671/2000
PUSHPA VADERA ..... Petitioner
Versus
UOI & ORS .... Respondents
AND
+ W.P.(C) No.7636/2000
KAILASH NATH & ASSOCIATES ..... Petitioner
Versus
UOI & ORS ..... Respondents
AND
W.P.(C) No. 6742/2000 etc. Page 1 of 31
+ W.P.(C) No.7649/2000
M/S ANSAL PROPERTIES & INDUSTRY ..... Petitioner
Versus
UOI &ORS ..... Respondents
AND
+ W.P.(C) No.7717/2000
M/S ANSAL PROPERTIES & INDUSTRY ..... Petitioner
Versus
UOI & ORS ..... Respondents
AND
+ W.P.(C) No.7718/2000
M/S ANSAL PROPERTIES & INDUSTRY ..... Petitioner
Versus
UOI & ORS ..... Respondents
AND
+ W.P.(C) No.7747/2000
M/S SAGOON BUILDER P. LTD. ..... Petitioner
Versus
UOI &ORS ..... Respondents
W.P.(C) No. 6742/2000 etc. Page 2 of 31
AND
+ W.P.(C) No.1082/2001
BRIG. HARBANS BAHADUR & ORS ..... Petitioners
Versus
UOI & ORS ..... Respondents
Advocates who appeared in this case:
For the Petitioners: Dr. Harish Uppal, Adv. in W.P.(C) No. 6742/2000,
Mr. H.L Tiku, Sr. Adv. with Ms. Yashmeet Kaur, Adv. in
W.P.(C) No. 6671/2000,
Mr Jayant Nath, Sr. Adv. with Mr. Anish Tandon, Adv. in
W.P.(C) Nos.7636,7649 & 7717, 7718/2000,
Mr. Amit Sethi, Adv. in W.P.(C) No.7747/2000, Mr. Amit
Khemka with Mr Ranjit Adv. in W.P.(C) No.1082/2001.
For the Respondents: Mr. Parag P. Tripathi, ASG with Mr. B.V. Niren,
Mr. S. Farsat and Mr. Manikya Khanna, Advs. for
respondent in W.P.(C) No.6742/2000.
Mr Ashutosh Lohia, Adv. for NDMC in W.P.(C)
No.6742/2000.
Mr. Parag P. Tripathi, ASG with Mr Raman
Oberoi, Adv. for respondent in W.P.(C) No.6671/2000.
Mr. Parag P. Tripathi, ASG with Mr. B.V. Niren,
Mr. S. Farsat and Mr Manikya Khanna, Advs.
for the respondent in W.P.(C) Nos.7636, 7649, 7717,
7718, 7747/2000 and 1082/2001.
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE MANMOHAN SINGH
W.P.(C) No. 6742/2000 etc. Page 3 of 31
MANMOHAN SINGH, J.
1. Since a common question of law is involved in all the writ
petitions, the facts and details of the writ petition, being W.P. (C)
No.6742/2000, are being taken for disposal of all the writ petitions.
2. The present writ petition has been filed by seventeen petitioners
(hereinafter referred to as the „petitioner‟) challenging the legality and validity
of communication dated 10.04.1999 issued by respondent No.2 demanding
Additional Premium of Rs.48,37,415/- and Revised Ground Rent @
Rs.2,42,057/- per annum by applying land rates at four times of the actual
notified rates in alleged violation of its own guidelines dated 11.01.1995.
3. The petitioner also seeks to challenge the order dated 31.07.2000
by which respondent Nos. 1 and 2 have sought to determine the lease and the
two notices dated 04.10.2000 issued by respondent No.4 under Sections 4
and 7 of the Public Premises (Eviction of Unauthorized Occupants) Act,
1971.
4. The controversy revolves around the terms communicated by
respondent Nos.1 and 2 in respect of change of user of properties of the
petitioners from the residential to commercial.
5. The dispute in the present writ petition pertains to a plot of land
being No.24, Barakhamba Road, New Delhi. The said property comprises of
land measuring about 0.956 acres or equal to about 4628 sq. yds. The said
property was purchased by Sh. Prem Nath by Registered Sale Deed dated
16.05.1938. The said Original Lessee had taken the property from
respondent Nos.1 and 2 vide Perpetual Lease Deed.
6. That under the master plan sanctioned for Delhi, the area around
Connaught Place including the area where the plot of the petitioner stood, was
declared to be a commercial area. Hence, under the DDA Act and the Master
Plan, it was compulsory that use of the premises should be for commercial
purposes.
7. The petitioner, in view of the position under the master plan,
applied to NDMC (Respondent No.3) for permission for construction of a
multi storeyed commercial building on the said plot. Necessary plans were
submitted to NDMC on 25.08.1970. The plans submitted to respondent No.3
NDMC were sanctioned, vide Resolution No.37/19 dated 23.10.1970.
8. Thereafter, the petitioner entered into a Collaboration Agreement
dated 01.03.1972 with respondent No.5 namely M/s Dewan Chand Builders
Pvt. Ltd. The said agreement dated 01.03.1972 also provides that the said
M/s Dewan Chand Builders Pvt. Ltd. was responsible to pay
commercialisation charges and other dues to the respondent for seeking
permission to develop a multi-storeyed commercial building.
9. The builder has allegedly failed to fulfill its obligations, therefore,
he has been impleaded as respondent No.5. The petitioner after receipt of
sanctioned plan from NDMC, submitted an application to respondent L&DO
for grant of permission for construction of a multi-storeyed commercial
building. Several reminders were also sent to this effect as no permission was
received. The petitioner thereafter started construction after due intimation to
respondent L&DO. The respondent had issued a notice dated 11.07.1973
asking the petitioner to show cause as to why an order of re-entry may not be
passed.
10. Thereafter, the petitioner along with the builder M/s Dewan Chand
Builders Pvt. Ltd. Respondent No.5 filed a writ petition being C.W.P. No.
909/1973 titled Rajeshwar Nath and Ors. vs. L&DO & Ors., challenging the
notice dated 11.07.1973. After filing of the writ petition, the building was
completed and a number of flats were sold by the petitioners/builders.
11. Subsequently respondent Nos. 1 and 2 effected some change in
their policy. A communication intimating the new policy dated 11.01.1995
was received by the petitioner. Petitioner vide letter dated 28.03.1995 wrote
to Respondent L&DO accepting the said policy and also forwarded a pay
order of Rs.1 lakh as a token amount. Pursuant to the said communication,
the respondent L&DO on 20.10.1995 sent revised terms for grant of
permission to construct a multi storeyed building.
12. In a similar controversy earlier, a writ petition was filed in 1973
being W.P.(C) No. 219/1973 titled as Chiranjilal Vs. L&DO on account of
construction of multi-storeyed buildings located at Barakhamba Road, New
Delhi. Along with that writ petition fifteen other writ petitions were filed
challenging re-entry before this court during the period 1972-1991 and were
tagged together. The petition filed by the petitioner and the builder were
tagged along with other similar petitions that were pending before this Court.
13. When the writ-petitions came up for hearing in 1994, a statement
was made by L&DO to regularize the same by a scheme. The scheme was
published on 11.01.1995. Pursuant to this on 17.10.1995 demands were
raised by L&DO from each of the writ petitioners.
14. The petitioner on 29.11.1995 sent a communication to respondent
L&DO pointing out the defects in the terms communicated by the respondent
L&DO.
15. Thereafter on 18.01.1996, an additional circular was issued by the
Ministry of Urban Affairs, Government of India stating that the land rate
would be on the basis that the permissible FAR on the date of construction
would be taken as 100 and then multiplied on the basis of the actual FAR
permitted. Thus, if the land rate is Rs.600/- and the actual FAR permitted in
1972-74 was 400 that FAR will be treated as 100. If, for example, on the
date of application, the applicable FAR is 250, then the land rate would be
multiplied by 2.5 to arrive at figure of Rs.1500/- instead of Rs.600/-.
16. The batch matters along with which C.W.P. No.909/83 had been
tagged, were heard by this Court and disposed off by a common judgment
passed by this Court on 19.05.1998. Some of the demands raised by
respondent L&DO were quashed. Respondent L&DO was given 6 weeks
time to raise fresh demands on the basis of the directions given by this Court.
The operative portion of the said judgment directed as follows:-
"That the respondents, consistently with the observations
made hereinabove, shall within six weeks from the date of
this order, give fresh terms and conditions for the
condonation of the breaches of the terms and conditions of
the lease to the concerned Lessee (petitioner) irrespective
of the fact whether any notice of determining the lease
and/or for exercising the right of re-entry has been already
given or not."
17. That the said judgment was challenged in the Supreme Court by
some of the private parties. The Supreme Court vide its order dated
26.04.1999 while upholding the judgment of the Division Bench of this Court
gave liberty to the parties in the SLP‟s to move the High Court for
clarification and/or further directions on matters of calculations.
The Supreme Court also clarified that in respect of the fresh
demand raised on 10.04.1999, if any parties intend to raise any issues in
respect of the same, they may do so before the L&DO within a week from the
order of the Supreme Court.
18. The respondent L&DO on 10.04.1999 communicated fresh terms
for grant of permission for change of user to the petitioner in purported
compliance with the judgment of this Court dated 19.05.1998. The respondent
No.2 L&DO vide communication dated 31.07.2000 also sent a
communication determining the lease and making an order of re-entry.
19. The respondent No.4 on 04.10.2000 sent two notices under
Section 4 and 7 respectively of the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971. The notice under Section 4 seeks to commence
proceedings to take physical possession of the property from the petitioner.
Similarly the notice under Section 7 seeks to commence proceedings to
recover the alleged dues claimed vide communication dated 10.04.1999 as
damages.
20. It is also appropriate to mention some of the relevant dates and
events for better understanding of the facts. The same are:
16.5.1938 The petitioner‟s family became owner of
plot No.24 Barakhamba Road, New Delhi
23.10.1970 Building plans for construction of a Multi-
storeyed commercial building submitted to
Respondent No.3 were approved.
01.03.1972 Petitioners entered into Collaboration
Agreement with respondent no.5 for
construction of the multi storeyed
commercial building. As per the
agreement, Respondent no.5 was liable to
pay commercialization charges to
Respondents 1 and 2.
11.7.1973 Respondents 1 and 2 issued show cause
notice for passing order of re-entry for
construction of Multi Storeyed Building
allegedly without their permission.
1973 Petitioner filed C.W.No.909/1973
challenging the said notice dated
11.07.1973.
11.01.1995 Fresh policy guidelines issued by of
respondents 1 and 2 received by
petitioners on (17.02.1995).
28.03.1995 Petitioners agreed to abide by the said
policy and requested for fresh terms as per
policy issued.
28.10.1995 Fresh terms communicated by respondents
1 and 2 for permission for change of user
of land, in purported compliance of the
new policy.
29.11.1995 The fresh demand of Respondents 1 and 2
was allegedly not in accordance with the
new policy. Hence petitioner wrote to
respondents 1 and 2 accordingly.
19.05.1998 This Court passed a common judgment in
about 22 writ petitions on similar matters
as that of the petitioner, where detailed
directions were given for calculation of
Additional Premium and Revised Ground
Rent.
10.04.1999 Respondents 1 and 2 issued fresh terms to
the petitioners in purported compliance of
judgment of this Court dated 19.05.1998.
The terms communicated were erroneous
in the view of the petitioner.
26.04.1999 SLP filed by other parties against the
judgment of High Court dated 19.5.1998
disposed off. The said parties were
permitted to move the High Court for
clarification and/or for further directions.
24.04.2000 Reminder sent by respondent No.2.
31.07.2000 Order passed by respondents No.1 and 2
purportedly re-entering the premises and
determining the lease.
04.10.2000 Two notices sent by Respondent No.4
under Section 4 and 7 respectively of The
Public Premises (Eviction of Unauthorized
Occupants) Act 1971.
21. Mr Parag P. Tripathi, learned Additional Solicitor General of India
appearing on behalf of the respondent No.1/Union of India submitted that
although the petitioners have not directly impugned or challenged the
notification/circular dated 10.01.1996 in these writ petitions, however in
effect they are challenging the said notification by stating impliedly that the
notification / circular is contrary to the 1995 policy. According to him the
case of the respondent No.2 is covered by the 1996 notification which has not
been directly impugned by the petitioners and in any event cannot be done
now, because, the said challenge would be barred by laches and the
principles of constructive res judicata and also by Order 2 Rule 2 CPC. He
argues that in fact the Notification/Circular of 18.01.1996 has always been
consistently followed by respondent No.2 and as far as the question of
permitting misuse or user contrary to the lease deed is concerned, it is a
matter which depends on the discretion of the lessor subject to terms of the
lease deed and any policy in this regard. Therefore, the writ petitions filed by
the parties are not maintainable and are liable to be dismissed.
22. We have heard the learned counsel appearing on behalf of all the
petitioners. It is an admitted position that after the passing of the order dated
26.04.1999 by the Supreme Court, fresh demands were raised by the
respondents on all the petitioners. As the legal point involved in all the
petitions is common, except the relevant dates and events, therefore only the
facts of W.P.(C) No. 6742/2000 are given in this judgment. The result
thereof would be the same.
23. The first contention of the learned counsel for the petitioner is that
the calculations of additional premium in the letter dated 10.04.1999 is
erroneous in view of the judgment passed by the Division Bench on
19.05.1988.
24. The respondent Nos. 1 and 2 have also demanded revised ground
rent by the impugned letter dated 10.04.1999. It is obvious that the
calculation of additional ground rent also depends on the correct calculation
based on the crucial date and the land rates applicable on the crucial date,
therefore, on the basis of policy dated 11.01.1995 of respondent Nos. 1 and 2,
revised ground rent was to be calculated as follows:
"Revised ground rent will be charged @ 2.5 of the
notional premium i.e. premium arrived upon by
multiplying the land area with land rates applicable
at the time of crucial date".
25. The respondent Nos. 1 and 2 have also demanded the amount for
permission to change the user of the premises under the headings of (a)
Additional Premium (b) Revised Ground Rent (c) misuse (d) penalty for
unauthorized construction and (e) interest.
26. The respondents by the impugned letter dated 10.04.1999 also
demanded interest on additional premium the details of the same are given as
under:
"1(ii) Interest @ 14% p.a. from 20.01.1996 Rs.20,89,233.00
(90 days after the issue of the terms
Letter dated 20.10.95) to 19.02.99 and
thereafter @ Rs. 56,437/- p.m.
Similarly respondents have demanded interest on Revised Ground
Rent as follows:
2(ii) Interest @ 10% p.a. from 10.01.96 Rs.16,59,989.00/-
to 19.02.99 and thereafter
@ Rs. 44.841/- p.m. (90 days
after issue of terms letter dated
20.10.95)
2(iv) Interest @ 10% on the Rs.1,34,275.00/-
above RGR From 15.1.96
to 14.2.99 and Thereafter
@ Rs. 7060/-.
27. Under this heading the demand of the respondents No.1 and 2 is
Rs.37,49,222/-. The contention of the petitioner is that the said demands
were without any basis and reason as the same were raised in 1995 and were
quashed by the judgment of the Division Bench, therefore, the question of
interest does not arise.
28. The Division Bench vide its judgment dated 19.05.1998 clearly
quashed the notice/demand/bills raised by the lessor and no further action was
taken by the respondents in pursuance thereof. Therefore, we feel that the
claim of charging interest is also not sustainable as the said demand for
interest is erroneous on the face of the judgment passed by the Division
Bench. It is a matter of fact that while passing the judgment dated
19.05.1998 directions were issued to the respondent Nos.1 and 2 to issue
fresh directions within six weeks from the date of order for condonation of the
breaches of the alleged terms and conditions of the lease deed. The
respondent Nos. 1 and 2 sent the fresh terms and conditions to the petitioner
by the impugned letter dated 10.04.1999 demanding the interest from January
1996 to April 1999.
29. As regards the misuser charges, according to the petitioner the
built-up area in the building is 1,67,231 sq. ft. or thereabout. The alleged
misuse of about 9,000 sq. ft. as claimed by the respondent is without any
basis whatsoever. The learned counsel for the petitioner submits that even no
notice of appearance in order to clarify the fact has been issued by the
respondent. It is argued by the petitioners that most of the floor space was
sold to the third parties and petitioners have no control over the persons who
had purchased the floor area in the multi storey building therefore, he could
not have stopped the purchaser of the area or petitioner in action against them
if any as the possession of the said area is lying with the third parties. The
petitioner in support of his submissions has referred Clause 14 of the Flat
Buyer Agreement which reads as under:
"BUYERS TO ABIDE BYTHE BUILDING BYE-
LAWS OF STATUTORY AUTHORITIES
The buyer shall maintain at his/her/their cost the
premises agreed to be acquired by him/her/them in
the same condition, state and order in which it
would be delivered to him/her/them and shall abide
by all laws, bye-laws, rules and regulations of the
Government/local bodies and/or of Ashoka Estate
Maintenance Society or any other Authorities and
local bodies and shall attend, answer and be
responsible and liable for all losses, damages, fines
and penalties for all deviations, violations or breach
of any of the conditions or laws, bye-laws, or rules
and regulations and shall always observe and
perform all the terms and condition contained in this
Agreement."
30. According to the petitioners, they have not committed any breach
and no action can be taken against them. The petitioner has also argued that
the said demand is also contrary to the provision of the Delhi Apartment
Ownership Act, 1986. Section 5 of the said Act provides each apartment to
be heritable and transferable. The same reads as under:
"Subject to the provisions of Section 6, each
apartment, together with the undivided interest in
the common areas and facilities appurtenant to such
apartment, shall, for all purpose constitute as a
heritable and transferable immovable property
within the meaning of any law for the time being in
force, and accordingly, an apartment owner may
transfer his apartment and the percentage of
undivided interest in he common areas and facilities
appurtenant to such apartment by way of sale,
mortgage, lease, gift, exchange or in any other
whatsoever in the same manner, to the same extend
and subject to the same rights, privileges,
obligations, liabilities, investigations, legal
proceedings, remedy and to penalty, forfeiture or
punishment as any other immovable property or
make a bequest of the same under the law
applicable to the transfer and succession of
immovable property."
31. In view of the above said provision, the petitioners allege that
there is a procedure provided under Section 8 of Delhi Apartment Ownership
Act, 1986 which provides, as to how a lessor is to deal with the flat owner
who is in default. It is argued that in the present case, the respondent Nos. 1
and 2 have chosen to by-pass the said mandatory provisions of Section 8 of
the Act and the petitioner is not aware of the area being misused. No show
cause notice of any sort was given to the petitioner nor any personal hearing
was given to the petitioner in order to explain whether any mis-use exists or
not and the petitioner has no idea about it and the respondents have, therefore,
no power to levy misuse charges. No term has been pointed out by the
respondent No. 2 as to under which provision they are empowered to levy the
misuse charges.
32. The respondent Nos. 1 and 2 have also levied damages for alleged
unauthorized construction of the area of 424 sq. fts. The detail of the same are
given as under:
Damages charges Un-authorised construction Area 424 sq. fts.
i) @ Rs.2,968/- p.a. from 17.1.79 to 31.3.79 Rs. 602.00
ii) @ Rs.5,665/- p.a. from 1.4.79 to 31.3.81 Rs.11,330.00
iii) @ Rs.16,677/- p.a. from 1.4.81 to 31.3.87 Rs.1,00,062.00
iv) @ Rs.36,238/- p.a. from 1.4.87 to 7.7.88 Rs.45,968.00
Increased area -954 sq. ft.
v) @Rs.81,537/- p.a. from 8.7.88 to 31.3.89 Rs.60,376.00
vi) @ Rs.1,48,892/- p.a. from 1.4.89 to 31.7.90 Rs.1,98,659.00
vii) @ Rs.2,48,153/- p.a. from 1.8.90 to 31.3.91 Rs.1,65,209.00
viii) @ Rs.2,97,784/- p.a. from 1.4.91 to 31.3.99 Rs.2,46,7936.00
33. It is submitted by the petitioner that the total area constructed in
the premises is about 1,67,231 sq. ft., the respondent Nos. 1 and 2 are
claiming the damages charges for alleged unauthorised construction of 424 sq.
fts. The further contention of the petitioner is that the petitioners has no idea
and is not aware of the same. The levy of damages for unauthorized
construction, if any, is not permissible unless the principles of natural justice
is followed. No positive reply has been given by the respondents, nor any
show cause notice of personal hearing was given before the levy of damages.
The petitioner was unaware about the same. On the other hand the respondent
Nos. 1 and 2 in the impugned letter have alleged that they have chosen to re-
enter the property vide the impugned communication dated 31.07.2000 and
have claimed that right and title in the properties have ceased.
34. It is argued that the action of the respondent Nos. 1 and 2 in
seeking to take possession is clearly contrary to the settled law. The Supreme
Court in the case of Express Newspapers Pvt. Ltd. vs. UOI: AIR (1986) SC
872 clearly held that respondents 1 and 2 in similar circumstances are obliged
to take possession only by due process of law which necessarily implies filing
of a suit by the lessor for the enforcement of the alleged right of re-entry, if
any, upon forfeiture of lease due to breach of the terms of the lease. Hence,
notices sent by respondent No.4 are also misconceived. Respondent Nos. 1
and 2 cannot take the possession in the manner they are trying to do.
35. It is the admitted position that the Division Bench upheld the levy
of additional premium/conversion charges to be calculated on the basis of
land rates prevalent on the crucial date, i.e. the date on which the application
was made for change of user to the L&DO by the land owner.
36. The Division Bench in their judgment dated 19.05.1998 clearly
held that where no application for change of user had been made, the date of
sanction of the building plans by the local body was to be treated as crucial
date. It is also held that for the purpose of calculating the additional
premium/conversion charges, the crucial date would be as under:
"(a) The date of receipt of application (complete
in all respects) for conversion accompanied by the
requisite documents and the earnest money, where
applicable, will be the crucial date for determining the
land rates applicable for calculation of conversion
charges;
(b) In cases where no application for conversion
has been made or where such application is made after
sanction of the building plan, date of sanction of such plan
by the local body will be the crucial date;
(c) In cases where application has neither been
made nor construction executed in accordance with the
originally sanctioned plan but is executed as per the
revalidated plan, the date of revalidation of such plan will
be the crucial date."
37. In the present case, the complete plans of the petitioner were
sanctioned on 23rd October, 1970. The crucial date therefore, is to be taken
as 23rd October, 1970 and therefore, the calculation of additional premium /
conversion charges has to be on that basis.
38. The Division Bench in their decision also held that the land rates
as notified on the crucial date shall be applied as follows:-
"The Additional Premium/conversion charges, for the
conversion of the user of the land will be determined with
reference to the land rates (as notified by the Government
(Ministry of Urban Development) from time to time applicable
on the crucial date as per the FAR assigned to the plot
prevailing on the crucial date. In case where the land rates are
linked to the prescribed FAR, the same will be increased or
reduced, as the case may be proportionately with reference to
the actual FAR applicable on the plot as on the crucial date but
in cases where the land rates have been prescribed as per
existing FAR, while calculating Additional
Premium/conversion charges, the land rate need not be
proportionately increased or reduced."
The additional premium is to be determined with reference to the land
rate on the crucial date as per the FAR assigned to the plot, prevailing on the
crucial date.
39. The land rates as notified in 1970 applied to the FAR assigned to
the plot as rates were not prescribed for any specific FAR. Annexure P-17,
i.e. Information for the Guidelines issued by the Government of India for the
lease holders, specifies the land rates, but there is no mention of FAR. The
respondents No.1 and 2 have multiplied the land rates as applicable for 1970
by 4, though there is nothing to show that the land rates stipulated in 1970
were prescribed with any particular FAR and, more so, an FAR of 100. The
respondents No.1 and 2, as per the policy, dated 11.01.1995 gave the formula
for calculating the additional premium / conversion charges as follows:
"50% of the difference between commercial/
residential land value as the case may be as per the
rate prevailing on the crucial date and those
prevalent at the time of last transaction".
40. The case of the petitioner is that in view thereof additional
premium had to be calculated on the basis of above said formula taking into
account the land rate in October 1970 on the basis of FAR assigned to the
plot and that the respondent No.2‟s letter dated 10.04.1999 claiming
additional premium of Rs.48,37,415/- is contrary to the judgment passed by
the Division Bench on 19.05.1998. The details of the same have already been
referred to above.
41. Learned counsel for the petitioner submits that the petitioner‟s
case is squarely covered by the reported judgment of Mrs. Daya Wanti Punj
& Ors. v. NDMC & Ors.: AIR 1982 Delhi 534 (DB) as the facts in the two
cases are almost similar. This judgment of a Division Bench has not been
challenged before the Hon‟ble Supreme Court and has become final. The
petitioner has also referred to another judgment in CWP No. 1159/1982 Ajit
Singh Sabharwal, which has been decided on the basis of Mrs. Daya Wanti
Punj (supra) judgment.
The petitioner has placed on record the documents which show
that the case of the petitioner is similar to the cases of Daya Wanti Punj
(supra) and Ajit Singh Sabharwal (supra) wherein conversion was allowed
@ Rs. 600/- per Sq. Yds. Paras 17 to 20 of the judgment passed by the
Division Bench in the case of Daya Wanti Punj (supra) reads as under:
"(17) The Government considers the application
dated 30th December, 1970 as the first application
for permission for permanent change of purpose.
But they are asking for charges on the basis of the
rates prevailing in 1972 i.e. Rs.1500 per sq. yard.
The short question for decision is whether the
actual rates of 1970 should form the basis of the
permission or the rates of 1972 be the basis which
the Government has adopted. In this connection, we
will refer to the letter of the Ministry of Works and
Housing and Urban Development dated 22nd April,
1966 in which the policy regarding the "crucial
date" with reference to which the charges should be
calculated is laid down. The relevant portion of the
letter is:
"CRUCIAL DATE OF CALCULATING THE
UNEARNED INCREASE:
For the purpose of calculating
Government dues, land values prescribed by
Government as prevailing at the time of according
sale permission would normally be the basic....
PERMANENT CHANGE OF PURPOSE:
Principles enunciated in the foregoing
paragraphs for determining the charges, and the
crucial date for calculating such charges will also
apply in respect of permanent change of purpose of
leased premises."
(18) This letter shows that on the, „crucial
date‟ for calculating charges in respect of
permanent change of purpose ''the land values
prescribed by the Government as prevailing at the
time of according permission" would normally be
the basis. What is the "crucial date" is the first
question? What are the "land values" prevalent on
the "crucial date" is the second question? On the
correspondence, we have come to the conclusion
that the "crucial date" for according permission
ought to be 30th December, 1970. This was the first
application for permission for all practical purposes.
This the Government does not dispute. It is their
own stand. Now, the "land values" prevailing in
1970 were Rs.600 per sq. yard, according to the
Government's own prescribed rates. We do not see
how in view of this admitted stand the Government
can ask for payment on the basis of Rs.1500 per
sq. yard. They rely for this purpose on a letter dated
30th July 1979 which is said to be a clarification of
the Government policy formulated on 21st June
1979. This letter reads: "To
33-7-79
The Land & Development Officer,
New Delhi.
Sub: Rates to be applied for pending applications
received prior to 1972 for conversion to multi-
storeyed commercial and Group Housing, in
Delhi.
Sir,
This question of the rate to be applied for
pending applications received prior to 1972 for
conversion to multi-storeyed commercial and Group
Housing in Delhi has been considered in
consultation with Finance Division. Keeping in
view the fact that the land rates during the years
immediately prior to 1972 were not appreciably
lower than the rates fixed for 1972 it has been
decided that the rates determined for the year 1972
vide this Ministry's letter No. I-22011/1/75-III (11)
dated 21st June, 1979 may be applied for the
pre- 1979 cases. This has the approval of the
Finance Division (Lands Unit) vide their U.O. No.
5 (13) Fd (L)/79/379 dated 26-7-1979.
Yours faithfully,
sd/-
(V.S. Rathan)
Under Secretary to the
Govt. of India."
(19) On the strength of this letter, the L.&D.O.
says that he is bound by the instructions of the
Government to charge Rs.1500 per sq. yard
because even though it is a "pre-1972 case" it has
been decided by the Government that the rates
determined for the year 1972 have to be applied.
We cannot see eye to eye with the Government.
Nor do we see the logic of this letter. The stand of
the Government is legally indefensible. A man who
applies for permission in 1970 cannot be asked to
pay on the basis of the land values prescribed by
the Government for 1972. This is not in dispute that
for 1970 the rate would be Rs.600 per sq. yard.
That rate was prevalent from 1962 to 14th January,
1972. It is a fallacious reasoning to say that the
land rates prior to 1972 were not "appreciably
lower" than the rates fixed for 1972. There is a
world of difference between land values of Rs.600
per sq. yard for 1970 and Rs.1500 per sq. yard for
1972. This is an area of interplay of market forces.
(20) From the counter-affidavit of the
Government it appears that permission was given
on the basis of the land rates of Rs.600 per sq. yard
to three lessees, namely, (1) Life Insurance
Corporation regarding 25, Curzon Road, (2)
Himalaya House regarding 23, Curzon Road and
(3) Hindustan Times regarding 18/20, Curzon
Road. All the three lessees had applied to the
Government during the period 1966 to 1968. The
terms were given to them between 1968 and 1971
and they were informed that the lesser was willing
to give his consent for change of purpose from
residential to commercial on the basis of the land
value of Rs.600 per sq. yard. There cannot be a
different yard stick for the petitioners. Their case is
also covered by that block of years which covered
the period from 1966 to 14-1-72. They are entitled
to be treated on the same footing as those three
lessees, namely, L.I.C., Himalaya House, and
Hindustan Times, were treated. We see no
justification for adopting the basis of the land value
of Rs.1500 per sq. yard which is the basis of the
Government's demand. Our conclusion is that 1970
is "that point of time", to use an expression of the
Government policy dated 21st June, 1979, on the
basis of which market value of the land should be
ascertained for the purposes of giving permission
for permanent change of purpose."
42. We agree with the learned counsel for the petitioner as most of the
facts of the petitioner are similar with the facts of the case of Daya Wanti
Punj (supra) which attained finality.
43. The plans for the multi-storeyed building were sanctioned on
23.10.1970 on the basis of FAR 400. The construction was started and
completed plans were sanctioned by the NDMC vide its resolution No. 17
dated 21.03.1984, after Rs.6.5 lacs was paid as compounding charges. The
land rate in 1970 was Rs.600 per sq. Yds. as per brochure of the L&DO and
judgment in Dayawanti's case (supra) and also in the case of 11, Tolstoy
Marg, New Delhi. The crucial date in the case of petitioner is 23.10.1970.
Thus, there is no justification for the L&DO to demand anything more from
the petitioner than what was charged in case of Daya Wanti Punj (supra)
and Ajit Singh Sabharwal (supra).
44. The petitioner has also referred to the judgment in Ashoka Estates
Pvt. Ltd. Vs. Dewan Chand Builders : 159 (2000) DLT 233 in support of
their submissions where it has been held that the responsibility of paying the
commercialization charges is of the builders in view of the Clause of the
agreement between the owners and the builders.
45. It is also submitted that the demand of the L&DO is many times
more than the actual amount received by the owners from the
builders/purchasers and by this time, all the owners / petitioners are old and
are not in a position to meet the unreasonable demand of respondent No.2.
46. The case of the petitioner is also fortified by the reply dated
16.04.2010 to a query under the Right to Information Act, the relevant extract
of which reads as under:
"The information asked for is as under:
As stated in the application.
The information sought is given below:
Your application was referred to A.A. B.P. (N-2),
to provide the information. Now reply has received
as under:-
1. Plans were sanction on 400 FAR.
2. The required copy of reso. No. 17 dated
21.03.84 of Completion Plan in r/o 24, Ashoka
Road are available in record.
Copy of the same can be collected after paying
the requisite fees i.e. Rs. 2/- per page.
(A.M. ATHALE)
PIO/D.C.A.-I
Tel No. 23748419"
47. After having considered the facts and the earlier decisions on the
same very point, we feel that in fact it is a second round of litigation because
the issue involved has already been determined by two Division Benches of
this Court who had quashed the revised demand of rates at four times of the
actual notified rates.
48. The Division Bench in its judgment dated 19.05.1998 clearly held
that the additional premium/conversion charges for the conversion of user of
land will be determined with reference to the land rates (as notified by the
Government (Ministry of Urban Development) from time to time applicable
on the "crucial date" as per FAR assigned to the plot prevailing on the crucial
date.
49. We are of the view that the policy dated 11.01.1995 is the policy
which gave the formula for calculation of additional premium/conversion
charges which has already been accepted by the Division Bench in its
judgment dated 19.05.1998.
50. We feel that the calculation issued by the respondent No.2 vide
letter dated 10.04.1999 claiming additional premium/conversion charges of
Rs.48,37,415/- is erroneous and without application of mind. The land rates
have been wrongly presumed to be based on FAR 100 and the same were
wrongly multiplied with 4. This is so, because the FAR assigned to the plot
was already 400 and there was no scope for further multiplying by 4.
Annexure P-17 shows the land rate @ 600 Sq. Yds. in 1969 but did not
specify the FAR. There was no change in 1970. No contrary evidence in this
regard has been produced by the respondent No.2 in order to show that the
land rates in 1970 were prescribed for FAR 100. Therefore, the letter dated
10.04.1999 raising additional premium in view thereof is quashed. We also
quash the notification/circular dated 18.01.1996 issued by the respondent
No.2 in view of the reasons given by us. The said notification/circular was in
the possession of the respondents, it was not brought to the notice of the
Division Bench which delivered the judgment dated 19.05.1998. Since we
have considered the entire matter afresh and quashed the letter dated
10.04.1999, our decision with regard to the notification/circular dated
18.01.1996 would remain the same. Therefore, the question of the writ-
petitions being barred by laches or resjudicata does not arise.
51. For the aforesaid reasons by following the judgment of Daya
Wanti Punj (supra) we direct the respondents to raise demand for change of
user on the basis of the rates of Rs.600/- per sq. yds.
52. The present writ petition is allowed and we quash the
communication dated 10.04.1999 and the communication dated 31.07.2000
and the two communications dated 04.10.2000 as filed in the present writ
petition as annexure P-12, 14, 15 and 16 respectively. The respondent Nos. 1
and 2 are at liberty to raise their fresh demand for change of the user of the
property No.24, Barakhamba Road, New Delhi in accordance with principles
laid down by the Division Bench judgment dated 19.05.1998 and the finding
arrived by us.
53. The petitioner in Writ Petition No.6742/2010, in view of the order
dated 20.11.2000 had deposited Rs. 40 lacs by order dated 10.11.2000. The
said amount would be adjusted against the proposed fresh demand to be
raised by the respondent Nos. 1 and 2.
54. The connected Writ Petitions being W.P.(C) Nos. 6671/2000,
7636/2000, 7649/2000, 7717/2000, 7718/2000, 7747/2000 and 1082/2001
which are having the same prayers are also disposed of with these directions.
55. All the writ petitions stand disposed of. No costs.
MANMOHAN SINGH, J
BADAR DURREZ AHMED, J
JANUARY 23, 2012
jk/dp/mm
