Delhi High Court
Subhash Kumar Jain And Anr. vs Union Of India And Anr. on 31 May, 2024
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: February 15, 2024
Decided on: May 31, 2024
+ W.P.(C) 6937/2013
VINAY KUMAR AGGARWAL
..... Petitioner
Through: Mr. Ajay Kumar Tandon,
Advocate
V
UNION OF INDIA & ANOTHER
..... Respondents
Through: Ms. Manisha Agrawal
Narain, CGSC with Mr.
Sandeep Singh Somaria and
Ms. Khushi, Advocates
+ W.P.(C) 13812/2023
SUBHASH KUMAR JAIN AND ANOTHER
..... Petitioners
Through: Mr. S. S. Ahluwalia and
Mr. Mohit, Advocates
V
UNION OF INDIA AND ANOTHER
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 1
12:48:51
..... Respondents
Through: Ms. Ritu Reniwal, Sr. P.C.
with Mr. Kamaldeep, GP for
respondents
M. No.7678369121
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The present writ petitions bearing no W.P. No 6937/2013 titled as
Vinay Kumar Aggarwal V Union of India & another and W.P.
No. 13812/ 2023 titled as Subhash Kumar Jain & another V
Union of India & another are filed under Article 226 of the
Constitution for seeking issuance of directions against the
respondents for conversion of the property bearing no. 1/14, Block
60-A 1, M.M. Road (now Rani Jhansi Road), New Delhi [subject
matter of W.P.(C) 6937/2013 and hereinafter referred to as
"property no. 1/14"] from lease hold to free hold; and property
bearing no. 1/12 and 1/13, Block 60-A 1, M.M. Road (now Rani
Jhansi Road), New Delhi [subject matter of W.P.(C) 13812/2023 and
hereinafter referred to as "property no. 1/12 and 1/13"] from
leasehold to freehold and to change the title of property no. 1/12 and
1/13 in their records in the name of the petitioners in W.P.(C)
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 2
13812/2023 namely Subhash Kumar Jain and Urmila Jain
(hereinafter referred to as "Subhash Kumar Jain" and "Urmila
Jain" respectively) and for quashing the order dated 01.01.2013
passed by the respondent no. 2 i.e. Land and Development Office,
Ministry of Urban Development, Maulana Azad Road, Nirman
Bhavan, New Delhi-110018 (hereinafter referred to as "L&DO").
2. Briefly stated facts relevant to present case and as stated by the
petitioners are that a perpetual lease deed dated 31.10.1931 was
executed between the Secretary of State for India in Council as
Lessor and Banwari Lal Panna Lal Contractors as Lessee in respect
of the plot subject matter of the present petitions bearing no. 1, Block
60-A, M.M. Road (now Rani Jhansi Road), New Delhi measuring
1.47 acres with effect from 12.01.1928 at yearly rent of Rs.80/-. The
plot was divided and one-third share was given to Lala Lakshmi
Chand s/o Banwari Lal. Thereafter, Lala Lakshmi Chand gave his
one-third share in the said plot to his son Vinay Kumar [petitioner in
W.P.(C) 6937/2013 and hereinafter referred to as "Vinay Kumar"]
through Will dated 06.09.1956. The entire plot was further divided
into sub-plots which were numbered from 1/1 to 1/20. Vinay Kumar
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 3
sold the property bearing no. 1/12 and 1/13, 1, M.M. Road (now Rani
Jhansi Road), New Delhi to Prem Kumar Jain {since deceased and
represented by his LR namely Urmila Jain [petitioner no.2 in W.P.(C)
13812/2023]}, Raj Kumar Jain, Padam Kumar Jain, Subhash Kumar
Jain [petitioner no.1 in W.P.(C) 13812/2023] vide registered Sale
Deed dated 27.04.1963. Subhash Kumar Jain and Prem Kumar Jain
along with others had intimated the respondent no.2 i.e. L&DO about
the purchase of the property no. 1/12 and 1/13 from Vinay Kumar
vide letter dated 10.05.1963. Subhash Kumar Jain and Prem Kumar
Jain along with others again sent letters dated 21.12.1966 and
02.02.1967 to L&DO intimating about the purchase of the property
no. 1/12 and 1/13 and requesting L&DO to transfer the said property
in their name but did not receive any reply from L&DO with
reference to the abovementioned letters. Raj Kumar Jain and Padam
Kumar Jain sold their respective shares in the property no. 1/12 and
1/13 to Prem Kumar Jain and Subhash Kumar Jain by way of
registered Sale Deed dated 10.12.1970. Subhash Kumar Jain and
Prem Kumar Jain again sent a letter to the respondents for changing
the title of property no. 1/12 and 1/13 in their name in the records.
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 4
The property no. 1/12 and 1/13 was mutated in the names of Prem
Kumar Jain and Subhash Kumar Jain in the records of Municipal
Corporation of Delhi (MCD) and the same was intimated to Subhash
Kumar Jain and Prem Kumar Jain vide mutation letter dated
24.07.1985 issued by MCD. Subhash Kumar Jain and Prem Kumar
Jain again sent a letter dated 25.08.1995 to the L&DO for changing
the title of the property no. 1/12 and 1/13 in their name in the records.
Subhash Kumar Jain and Prem Kumar Jain have been depositing the
house tax for the property no. 1/12 and 1/13 and are in legal and
exclusive possession of the said property for last more than 50 years.
2.1 Subhash Kumar Jain and Prem Kumar Jain filed an application
dated 27.01.2010 before the L&DO for mutation of property no. 1/12
and 1/13 along with copies of Sale Deeds dated 27.04.1963 and
10.12.1970. The L&DO acknowledged the receipt of the said
application vide acknowledgement dated 27.01.2011. Subhash
Kumar Jain and Prem Kumar Jain filed another application dated
11.01.2011 for mutation of title of property no. 1/12 and 1/13 in their
names before the L&DO and also deposited a true copy of the Sale
Deed dated 10.12.1970 vide a letter dated 01.03.2011 addressed to
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 5
the L&DO. Vinay Kumar also filed an application bearing no.
105455 for conversion of the property no. 1/14 from leasehold to
freehold along with a challan dated 03.02.2011 containing details of
payment of Rs.6,36,400/- with regard to the aforesaid conversion.
L&DO issued an inspection notice dated 11.04.2011 to the petitioners
for the properties bearing nos.1/12, 1/13 and 1/14, 1, M.M. Road
(now Rani Jhansi Road), New Delhi. The inspection officer
appointed by L&DO had inspected the above said property on
18.04.2011 and based on the breaches noticed by him, L&DO issued
a notice dated 12.07.2011 to the petitioners to remedy the breaches
on the said property but without mentioning property no. 1/14 in the
said notice. Vinay Kumar replied to the breach notice dated
12.07.2011 vide letter dated 20.07.2011 and stated that there was no
unauthorized construction or encroachment or re-entry in property
no. 1/14 and requested L&DO to process his conversion application
dated 03.02.2011. Vinay Kumar vide letters dated 22.11.2011 and
19.03.2012 again requested L&DO to process his application for
conversion in view of the fact that no breaches were noticed upon
inspection. Subhash Kumar Jain and Prem Kumar Jain on 09.08.2011
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 6
informed L&DO that the title of the property be changed in its
records as it may be required by MCD to regularize that part of the
property which is not proper according to L&DO. Subhash Kumar
Jain and Prem Kumar Jain on 22.12.2011 reminded L&DO for
mutation of the property no. 1/12 and 1/13 in their favour since it has
already been mutated in the record of MCD.
2.2 Subhash Kumar Jain and Prem Kumar Jain in the year 2012 had
filed an indemnity bond dated 06.09.2012 and undertaking before
L&DO for the conversion of the property no. 1/12 and 1/13 from
leasehold to freehold as per law. Subhash Kumar Jain and Prem
Kumar Jain also filed an application bearing no. 103335 before the
L&DO on 12.09.2012 and deposited a fee of Rs.60,000/- vide
cheques bearing nos. 822557 dated 01.09.2012 and 687329 dated
04.09.2012 drawn on HDFC Bank as fees for conversion of the
property no. 1/12 and 1/13 from leasehold into freehold. L&DO
issued another inspection notice dated 19.09.2012 to Vinay Kumar
for inspection of property no. 1/12 to 1/14 and deputed Mr. Jai
Bhagwan, Surveyor to inspect the said premises on 19.10.2012.
Vinay Kumar in response to the inspection notice dated 19.09.2012
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 7
vide letter dated 06.10.2012 addressed to the Assistant Engineer,
L&DO stated that he did not own property no. 1/12 and 1/13 as they
had been sold 50 years back in 1963. Vinay Kumar also stated that
the proposed inspection was in violation of L&DO's prevailing
inspection policy. However, without prejudice to his rights, Vinay
Kumar welcomed the inspector to again visit his property no. 1/14.
The inspection took place on 19.10.2012 but its outcome was never
communicated to Vinay Kumar. The L&DO on 01.01.2013 had
intimated to the petitioners that properties no. 1/12 and 1/13 are
considered as a single unit along with property no. 1/14 in their
records. Vinay Kumar replied to the letter dated 01.01.2013 vide
letter dated 09.01.2013. Subhash Kumar Jain and Prem Kumar Jain
vide letter dated 18.01.2013 gave clarification to L&DO that the
property no. 1/12 and 1/13 is owned by them for the last 50 years and
L&DO should correct the title of the said property in their name for
all purposes. Vinay Kumar vide letter dated 01.04.2013 again
reminded L&DO to convert the property no. 1/14 from leasehold to
freehold. The respondents also issued a notification bearing no.
24(372)/2000-CDN dated 12.06.2020 vide which conversion into
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 8
freehold of properties sold through regular sale deeds was made
permissible.
3. The petitioner Vinay Kumar has filed the petition bearing no.
W.P.(C) 6937/2013 on the grounds that it is absolutely
wrong/illegal/malafide on part of L&DO and also in violation of the
terms of the perpetual lease deed dated 31.10.1931 to mention in their
records vide letter dated 01.01.2013 that property no. 1/12 and 1/13
and property no. 1/14 have been taken as a single unit. L&DO in
accordance with clause 2(11) of the Perpetual Lease dated
31.10.1931 was informed by Prem Kumar Jain vide letter delivered
on 10.05.1963 about the transfer of the property no. 1/12 and 1/13
vide Sale Deed dated 27.04.1963. L&DO despite repeated reminders
has failed to carry out the requisite mutations/substitutions since
10.05.1963. Vinay Kumar after Sale Deed dated 27.04.1963 was left
only with the ownership of property no. 1/14 which then became a
separate unit. L&DO failed to appreciate that property no. 1/12 and
1/13 is not owned by Vinay Kumar and he cannot force/compel the
owners of the said property to join him for converting their properties
from leasehold to freehold. L&DO cannot take advantage of its own
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 9
wrong/laxity. L&DO had the knowledge that Vinay Kumar had
already sold property no. 1/12 and 1/13 to Subhash Kumar Jain and
Prem Kumar Jain and others on 27.04.1963 and L&DO after more
than 50 years cannot issue notice dated 01.01.2013 in violation of the
terms of the perpetual lease deed dated 31.10.1931 calling upon
Vinay Kumar to apply jointly with the owners of separate properties
bearing no. 1/12 and 1/13 for withdrawal of re-entry and other
purposes. L&DO cannot deny converting the property no. 1/14 from
leasehold into freehold. L&DO to harass Vinay Kumar intentionally
issued another inspection notice dated 19.09.2012 for inspecting the
property even when the same was earlier inspected on 18.04.2011 in
accordance with the inspection notice dated 11.04.2011 wherein no
breach was noticed with respect to the property no. 1/14. L&DO as
per its Citizen Charter ought to have processed the application for
conversion dated 03.02.2011 within 03 months from the date of its
receipt specifically when no breach was noticed with respect to
property no. 1/14. The respondents have acted arbitrarily as apparent
from the letter dated 01.01.2013 whereby the respondents have called
upon Vinay Kumar to apply jointly with property no. 1/12 and 1/13
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 10
which is in violation of the terms of the perpetual lease deed dated
31.10.1931 which permitted sale of a part of the property without the
permission of L&DO. L&DO despite being an instrumentality of the
State has failed to act in compliance with the terms of the perpetual
lease deed dated 31.10.1931. The petitioner Vinay Kumar besides
raising other grounds prayed that the impugned actions/orders
including the letter dated 01.01.2013 issued by L&DO be quashed
and the respondents be directed to convert the property no. 1/14 from
leasehold to freehold.
4. The petitioners Subhash Kumar Jain and Urmila Jain (LR of Prem
Kumar Jain) have filed the present petition bearing no. W.P.(C)
13812/2023 on the grounds that L&DO had acted illegally and
violated the rights of the petitioners by not mutating the property no.
1/12 and 1/13 in the records even after 60 years from the date of
execution of the registered sale deeds dated 27.04.1963 and
10.12.1970. L&DO has failed to consider the various
communications sent by the petitioners since 1963 intimating the
purchase of the property no. 1/12 and 1/13 in terms of clause 11 of
the perpetual lease dated 31.10.1931. L&DO has already done
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 11
inspection of the property and has considered the petitioners as the
owner of the property no. 1/12 and 1/13 vide inspection notice dated
12.07.2011. L&DO has already accepted the fees of Rs.60,000/- for
conversion of property from leasehold to freehold vide application
bearing no. 103335. The respondents have acted in an arbitrary
manner in issuing the letter dated 01.01.2013 whereby the
respondents called upon the petitioners to apply jointly with property
no. 1/14 knowing fully well that the petitioners had purchased the
property from Vinay Kumar in 1963. L&DO ought to have processed
the application for conversion from leasehold to freehold within 03
months after deposit of adequate fee by the petitioners. The
impugned actions and orders of the respondents have resulted in
violation of the fundamental rights of the petitioners. The
respondents have wrongly held that property no. 1/12 and 1/13 and
property no. 1/14 are one single unit. The petitioners have nothing to
do with property no. 1/14 which is owned by Vinay Kumar. The
respondents as per the notification bearing no. 24(372)/2000-CDN
dated 12.06.2020 transferred properties through regular sale deeds to
be converted into freehold. The respondents are violating the
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 12
fundamental rights of the petitioners and are discriminating against
them by not converting their property into freehold despite the
notification dated 12.06.2020. L&DO has already permitted the
conversion from leasehold to freehold of properties bearing nos. 1/4
to 1/9 belonging to Rakesh Gupta and properties bearing nos. 1/10
and 1/11 belonging to Vijay Goel. The petitioners besides raising
other grounds prayed that the respondents be directed to convert the
property bearing no. 1/12 and 1/13 into freehold from leasehold and
to change the title of the said property in the records of the
respondents in the petitioners' name and to quash the order dated
01.01.2013 passed by L&DO and consider the property no. 1/12 and
1/13 as separate from property no. 1/14.
5. The respondents filed a counter affidavit in W.P.(C) 6937/2013
wherein stated the plot admeasuring 1.47 acres situated in Block 60-
A at MM Road was leased out to Shri Banwari Lai Panna Lai on
31.10.1931 for the purpose of garages for Motor Cars and a shop for
selling accessories of motor car accessories and subsequently land
use of the said plot was changed into residential. Krishan Swaroop
after death of Shri Banwari Lai Panna Lai on 06.05.1936 was
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 13
substituted. Krishan Swaroop in pursuance of partition decree passed
by this Court in suit bearing no 741/1956 requested for sub-division
and mutation of the above said plot/property. The eastern half of the
property was mutated in the name of Krishan Swaroop and the
western half of the property was mutated jointly in the name of Vinay
Kumar and others on the terms and conditions of the original
perpetual lease deed.The western half of the property was shown as
sub-divided into 05 separate parts in the site plan 2280 dated
05.06.1962 prior to zonal plan coming into force. The property no.
1/12 to 1/14 came to share of Vinay Kumar.
5.1 The different/individual stake holders of the property began to get
plans sanctioned from the local body and issue regarding sub division
of the property was examined in detail in the year 2005-2006 and a
letter dated 10.10.2005 was written to the MCD whereby the
respondents sought confirmation in the said matter. MCD vide letter
dated 30.11.2005 stated that building plan of 1/1 M.M. Road was
sanctioned in 1976 accepting it as separate entity on the basis of
earlier sanction by NDMC in the year 1938. L&DO has accepted the
sub-division of the western part of the property no. 1, M.M. Road
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 14
(now Rani Jhansi Road), New Delhi after acceptance of sub-division
by MCD which has sanctioned plan without any NOC and in
consultation with Ministry of Law and subsequent approval of
Ministry of Urban Development. The sub-division of properties can
only be done after obtaining clearance from Ministry of Law and
clearance from local bodies regarding density of units, approach
roads, service by lanes etc. and is then show as a distinct unit. Hence
the property can be sub-divided only after approval of a lay out plan
by the local body based on the above criteria.
5.2 The respondents recognize property nos. 1/12 to 1/14 as one
single unit although local body has numerated the property as 1/12,
1/13 and 1/14 but has sanctioned the plan as one single unit only. The
transfer of property no. 1/12 and 1/13 will amount to sub-division of
the property which is not permissible under the Master Plan. The
conversion application was filed by the petitioner Vinay Kumar in
respect of property no. 1/14 but the property no 1/12 to 1/14 has been
recognized by L&DO as a single unit. The property subject matter of
the present petitions is a re-entered property and as per Clause 20.1 of
the Conversion Policy of 2003 of L&DO, conversion application
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 15
cannot be considered if the property stands re-entered. Vinay Kumar
was required to pay the government dues in order to withdraw the re-
entry before applying for conversion and since the property no. 1/12
to 1/14 are considered as a single unit the application needs to be
signed by all the co-lessees of the property as required under Clause
4 of L&DO's Conversion Policy. The inspection notice and breach
notice were issued to all the co-lessees of the property. Accordingly
all the co-lessees were required to file a single application signed by
them for conversion. The whole of the property i.e. property nos.
1/12 to 1/14 as per procedural requirements can be considered for
withdrawal of re-entry and for any other purposes.
5.3 The inspection which was conducted on 19.10.2012 was not in
contravention of any Office Policy or Memorandum. The respondents
at time of calculating the government dues in respect of the property
no. 1/12 to 1/14 after the inspection dated 18.04.2011 found that
inspection was carried out on 28.10.1987 for the property nos. 1/14 to
1/17 which did not clarify the extent of the unauthorized construction
in the property nos. 1/12 to 1/14. Accordingly to confirm the details
of unauthorized construction and misuse for the said portion, it was
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 16
decided by L&DO to carry out fresh inspection. L&DO on
19.10.2012 could only inspect the property no. 1/14 and the property
no. 1/12 and 1/13 could not be inspected and thus the result of the
inspection was not communicated to Vinay Kumar.
5.4 The application for mutation/substitution can only be considered
by the office of L&DO in case of leasehold property. The property
no. 1/12 to 1/14 is a re-entered property and all the co-lessees are
required to apply jointly for withdrawal of re-entry before
considering the application for mutation/conversion. The property
bearing no. 1/3 to 1/9 has been recognized by L&DO as a single unit
and considering the request in respect of property no. 1/3 to 1/9 as a
single unit cannot be treated as sub-division. It was prayed that
present petitions be dismissed.
6. The petitioner Vinay Kumar filed rejoinder to the counter affidavit
filed on behalf of the respondents wherein besides reiterating the
facts as mentioned in the petition stated that V.K. Goyal who was the
owner of property no 1/10 and 1/11 had filed Civil Writ Petition No.
4419/2007 titled as V.K. Goyal V Union of India and another and
during pendency of said writ petition, L&DO vide letter dated
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 17
22.04.2010 had communicated its decision to Rakesh Gupta, who
was the owner of property no. 1/3 to 1/9 treating the perpetual lease
dated 31.10.1931 as commercial and not residential and of allowing
sub-division and withdrawal of re-entry in parts. The properties no
1/3 to 1/9 were mutated and converted from leasehold to freehold by
L&DO in the name of Rakesh Gupta vide registered conveyance
deed dated 18.01.2011. The respondents in Civil Writ Petition No.
4419/2007 on 01.09.2010 again confirmed that sub-division has been
allowed in the entire property and undertook that after a further
inspection of the property, the re-entry notice would be withdrawn
since the basis on which the sub-division was already allowed, will
be applied qua V.K. Goyal as well. Accordingly said petition was
disposed of vide order dated 01.09.2010 with the direction to the
respondents to take necessary action within 04 weeks and the liberty
to revive the petition in case the respondents did not take any action
within 08 weeks from the date of the order. The respondents in view
of undertaking converted the property nos. 1/10 and 1/11 into
freehold in the name of V.K. Goyal vide registered conveyance deed
dated 25.03.2011. Subhash Kumar Jain and Prem Kumar Jain had
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 18
requested and reminded the respondents to mutate/transfer the
property no. 1/12 and 1/13 multiple times including vide letters dated
21.12.1966 and 02.02.1967 but the respondents neither acted as per
the terms of the perpetual lease dated 31.10.1931 nor replied to the
said letters for the last more than 50 years. The respondents wrongly
rejected Vinay Kumar's application for conversion of property no.
1/14 from leasehold to freehold. The local bodies and authorities
have recognized property no. 1/14 as a separate entity from property
no. 1/12 and 1/13 which were sold by Vinay Kumar in 1963. The
property no. 1/14 has been provided with a separate electricity meter
and the property tax was also determined and collected separately. It
is apparent that sub-divisions were allowed in respect of the property
bearing plot no. 1 and the properties no 1/3 to 1/9 (seven units) and
properties no 1/10-11 (two units) have already been converted into
freehold property.
6.1 The respondents have also recognized and carried out mutation in
case of Plot no.1, Block no. 90 known as 5, Jain Mandir Road, New
Delhi on 27.02.1992 on basis of similar terms of lease deed. The
respondents have wrongly stated that the land use of the premises
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 19
was changed into residential on a later date. The land use of the
property subject matter of the present petitions has been commercial
since the execution of the perpetual lease deed dated 31.10.1931 till
date. The Zonal Plan or Master Plan cannot supersede the terms and
conditions of the unrestricted perpetual lease deed dated 31.10.1931.
MCD has also allotted separate municipal numbers to the existing
building and these buildings are separately mutated in the names of
the respective owners in the records of MCD. The respondents have
failed to produce any material to support their case that sub-division
of properties can be done only after obtaining clearance from
Ministry of Law as well as from the local bodies. The respondents
did not serve any notice of re-entry upon Vinay Kumar in respect of
property no. 1/14 as prior notice is a prerequisite before re-entry is
exercised by the principal lessor. L&DO in the breach notice dated
12.07.2011 had categorically stated that it had been issued "to
remedy the breaches before exercising re-entry powers" thereby
clearly indicating that there was no re-entry till 2011. It is an
admitted fact that no re-entry order/notice has been passed/issued
after the breach notice dated 12.07.2011 and therefore, the property
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 20
cannot be said to be re-entered. It is illegal and arbitrary to expect the
owners of property nos. 1/12 to 1/14 to apply together for conversion
of the properties from leasehold to freehold. The respondents by
marking the name of Vinay Kumar against the property no. 1/14 in
the notices dated 11.04.2011, 12.07.2011 and 19.09.2012 have
accepted him to be the owner of property no. 1/14 and that he has no
concern with property no. 1/12 and 1/13. The respondents even after
inspections of the property on 28.10.1987 and 18.04.2011 have failed
to find/calculate the government dues in respect of misuses/breaches,
if any in respect of property no. 1/14 and they cannot take advantage
of their own wrongs and laxity.
7. The respondents also filed additional affidavit besides reiterating
facts mentioned in counter affidavit stated that the petitioner Vinay
Kumar vide letter dated 27.04.1963 had informed L&DO that he had
sold an area about 234 sq. yards bearing property no. 1/12 and 1/13 to
Prem Kumar Jain, Subhash Kumar Jain and others vide sale deed
executed on 27.04.1963 and requested L&DO to enter the names of
the purchasers as joint lessees of the western half portion of the
property bearing no. 1, M.M. Road (now Rani Jhansi Road), New
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 21
Delhi. The request of Vinay Kumar for mutation of property no. 1/12
and 1/13 was examined and vide letter dated 27.07.1963 was asked to
furnish documentary proof regarding his sole ownership of the part of
property sold by him. Vinay Kumar vide letter dated 09.08.1963
informed L&DO that the said plot measuring 0.72 acre was
partitioned amongst the family members by way of oral partition and
he furnished a copy of the plan by which the oral partition became
effective. The matter was re-examined and Vinay Kumar vide letter
dated 13.12.1963 was informed that the plan furnished by him was
not a sufficient proof of the partition. Vinay Kumar was requested to
furnish documentary proof to that effect. The matter was again re-
examined and Vinay Kumar vide letter dated 24.02.1967 was
informed that there was no sufficient evidence to establish that any
family settlement had taken place, therefore, it was not possible for
L&DO to mutate the specific portion of the entire property in the
name of the purchasers i.e. Prem Kumar Jain, Subhash Kumar Jain
and others.
7.1 The individual stakeholders in the property bearing no. 1, M.M.
Road (now Rani Jhansi Road), New Delhi began to get plans
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 22
sanctioned from the local body. The matter regarding sub-division of
the plot was examined in detail in the year 2005-2006 and a letter
dated 10.10.2005 was sent to MCD whereby L&DO sought
confirmation in the said matter. MCD vide letter dated 30.11.2005
stated that as per its records, building plan of property no. 1/1 was
sanctioned in 1976 accepting it as a separate entity on the basis of
earlier sanction by NDMC in the year 1938 i.e. prior to the
introduction of the MPD-1962. L&DO accepted the sub-division of
the western half of the plot into 5 parts viz. 1/1-1/2, 1/3-1/9, 1/10-
1/11, 1/12-1/14 and 1/15-1/17 as per site plan 2280 dated 05.06.1962
after acceptance of the same by MCD in consultation with Ministry
of Law and subsequent approval of Ministry of Urban Development.
As per the site plan 2280 dated 05.06.1962, property no. 1/3-1/9 and
1/10-1/11 were considered as two separate units hence, the said
properties were converted from leasehold to freehold. However, in
the present case, property no. 1/12 to 1/14 is a unified property which
is treated as a single unit under the site plan 2280 dated 05.06.1962
which is prior to the Zonal Plan/MPD-1962 coming into force.
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 23
8. The counsel for the petitioner Vinay Kumar advanced oral
arguments and also submitted written submissions. He argued that
the perpetual lease deed dated 31.10.31 in respect of the plot no. 1
M.M. Road (Rani Jhansi Road), New Delhi was unrestricted and
permits unconditional transfer and sub-lease of any part of the plot
originally leased, without requiring any permission from the
Lessor/L&DO. The perpetual lease deed dated 31.10.1931 does not
impose any restriction on the lessee's right to assign, transfer or sub-
lease any part of the property and only requires that a copy of the
deed of assignment, transfer or sub-lease be delivered to the lessor as
per Clause 2(11). Vinay Kumar is the owner of the property no. 1/14
only and sold the property no. 1/12 and 1/13 was sold to Subhash
Kumar Jain, Prem Kumar Jain and others vide registered sale deed
dated 27.04.1963. The said transfer has not been challenged by
anyone including the L&DO since 1963. L&DO vide its letter dated
10.10.05 to MCD recognized that the lease deed is an unrestricted
lease deed and rights under the said lease deed can be freely
transferred.
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 24
8.1 The counsel for the petitioner further argued that failure and
refusal of L&DO to recognise the part sale of property no. 1/12 and
1/13 is in violation of the terms of the lease deed dated 31.10.1931
and the refusal to convert property no. 1/14 from leasehold to
freehold is illegal, discriminatory and violative of Article 14,
principle of legitimate expectation and estoppel. L&DO has allowed
sub-division and transfer of other plots in Delhi which were granted
under unrestricted lease deeds containing similar terms as the present
lease deed dated 31.10.1931. There is no ground for refusing
mutation and conversion in the present case quoting the provisions of
the Master Plan. L&DO is bound not only to mutate the property no.
1/12 and 1/13 in favour of its owners i.e. Subhash Kumar Jain and
Prem Kumar Jain (now represented by his LR namely Urmila Jain)
but also to convert the property no. 1/14 from leasehold to freehold in
favour of Vinay Kumar. L&DO cannot refuse to record the sale of
property no. 1/12 and 1/13 on the ground that permission is required
from Municipal authority when MCD itself has recognised the
separate units for calculating and collecting property tax, sanction of
plans and granting electricity and water connections. There is no
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 25
valid re-entry effective with respect to any of the properties in the
plot bearing no. 1, M.M. Road (now Rani Jhansi Road), New Delhi
including the property no. 1/14 and the property no. 1/12 and 1/13.
He further argued that even if it is assumed that L&DO's re-entry has
been in effect since the re-entry notice dated 19.04.1975, Vinay
Kumar has become the owner of property no. 1/14 and Subhash
Kumar Jain and Prem Kumar Jain have become the owners of
property no. 1/12 and 1/13 by adverse possession as they have been
in open and adverse possession of the respective properties for last
more than 40 years since the date of the assumed re-entry and L&DO
chose not to assert its right of ownership/possession of the property at
any point in time throughout this period. The breach notice dated
12.07.2011 does not show any unauthorised construction on the
property no. 1/14, thus L&DO cannot re-enter the said property and
the subsequent inspection notice issued by the L&DO is also patently
illegal and in violation of L&DO's office order bearing no. 14/2009
dated 30.10.2009. The Zonal Plan or Master Plan cannot supersede
the terms and conditions of the unrestricted perpetual lease deed. It
was argued that the petition be allowed.
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 26
9. The counsel for the petitioners Subhash Kumar Jain and Urmila
Jain advanced oral arguments and filed written submissions. The
counsel besides reiterating the facts of the present case argued that it
would be inequitable to allow the respondents to sit over the matter
for an unreasonably long period and to take advantage of its own
wrong/inaction. The application for conversion of the property cannot
be rejected on the ground of re-entry in view of the payments already
made by the applicant . It is further argued that if the breaches are
rectified, the re-entry cannot be sustained. In the present case, once
the property is mutated in the names of Subhash Kumar Jain and
Urmila Jain, MCD will immediately sanction the construction done
by the petitioners on property no. 1/12 and 1/13 which have been
pointed out as breaches by the L&DO vide breach notice dated
12.07.2011. The counsel in support of arguments relied upon in
Vikramaaditya Bhartiya V DDA, 2013 (5) AD Delhi 693; Vinay
Kumar Aggarwal V UOI, 2004 (111) DLT 597; Harbans Lal
Pahwa V Lieutenant Governor and Others, 2012 (1) AD Delhi
136; Amrit Lal Bussi V UOI and Others, 1978 AIR (Delhi) 340;
Sahib Singh V DDA, 1987 (12) DRJ 170. The counsel for the
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 27
petitioners argued that the respondents be directed to convert the
property bearing no. 1/12 and 1/13 into freehold from leasehold and
to change the title of the said property in the records of the
respondents in the petitioners' name and to quash the order dated
01.01.2013 passed by L&DO and consider the property no. 1/12 and
1/13 as separate from property no. 1/14.
10. The plot bearing no. 1, M.M. Road (now Rani Jhansi Road), New
Delhi admeasuring 1.47 acres situated in Block 60-A at M. M. Road
was leased out to Banwari Lal Panna Lal, Contractors vide lease deed
dated 31.10.1931. Clause 2 (11) of lease deed permitted the lessee to
assign, transfer or sublease the premises or any part thereof and
thereafter to deliver copy of deed of assignment, transfer or sublease
to the lessor. It reads as under:-
The Lessee will upon every assignment, transfer or sublease
of the said premises hereby demised or any part thereof
and within one calendar month thereafter deliver a copy of
the deed of assignment, transfer or sublease to the Lessor
or the Chief Commissioner of Delhi, and all such assignees,
transferees and sub lessees shall be bound by all the
covenants and conditions herein contained and be
answerable in all respects therefor.
10.1 Krishan Swaroop was substituted on 06.05.1936 after death of
Banwari Lal Panna Lal as title holder. Krishan Swaroop in pursuance
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 28
of partition decree passed in Suit No. 741/1956 by this court
requested for sub-division of the plot and accordingly on basis of said
decree, division and mutation of the said plot was carried out. The
eastern half portion measuring .75 acre (32646 sq. ft.) came in share
of Krishan Swaroop and western half portion measuring .72 acre
(31348 sq. ft.) which was came jointly in share of Vinay Kumar,
Vidya Dhar, Prem Lata, Sudhir Kumar, Rajesh Kumar and Banwari
Lai Charitable Trust being legal heirs of Banwari Lal and was
mutated in their joint names on terms and conditions of original lease
deed. The western part was sub-divided in 5 separate portions in the
Site Plan 2280 dated 05.06.1962 prior to Zonal Plan coming into
force. The respondents have accepted the sub-division of western part
of the property No. 1, M.M. Road, New Delhi after acceptance of by
MCD but claimed that MCD has sanctioned Plan without any NOC
and consultation with Ministry of Law and subsequent approval of
Ministry of Urban Development. The property bearing no 1/12-1/14
measuring 742.30 sq. yards came into share of Vinay Kumar. Vinay
Kumar sold the plots bearing nos. 1/12 and 1/13 to Prem Kumar Jain,
Raj Kumar Jain, Padam Kumar Jain and Subhash Kumar Jain vide
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 29
registered Sale Deed dated 27.04.1963. Raj Kumar Jain and Padam
Kumar Jain sold their respective shares to Prem Kumar Jain and
Subhash Kumar Jain by registered Sale Deed dated 10.12.1970.
Accordingly Prem Kumar Jain and Subhash Kumar Jain became
lessees of the property no. 1/12 and 1/13 and their names were
mutated in the records of MCD. MCD in pursuance of letter dated
10.10.2005 issued by the respondents intimated that building plan of
1/1 M. M. Road was sanctioned in 1976 accepting it as separate
entity on the basis of earlier sanction by NDMC.
10.2 Vinay Kumar vide letter dated 27.04.1963 has informed the
respondents that he has sold area about 234 sq. yd. bearing municipal
no.1/12 &1/13 to Prem Kumar Jain, Raj Kumar Jain, Padam Kumar
Jain and Subhash Kumar Jain vide sale deed executed on 27.04.1963
and also requested the respondents to enter these purchasers as joint
lessees of the site of the western half portion of the entire property
known as 1, M.M. Road, New Delhi. Vinay Kumar vide letter dated
9.8.1963 informed the respondents that western part measuring 0.72
acre was partitioned amongst the family member by way of oral
partition but vide letter dated 13.12.1963 was requested to furnish
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 30
documentary proof of oral settlement. The petitioners have written
various letters to L&DO for conversion of their properties from lease
hold to free hold.
10.3 The respondents have denied conversion of the property bearing
no 1/12 to 1/14 by treating the property as single unit and the
petitioners were required to file joint application for conversion of
the property no 1/12 to 1/14 from lease hold to free hold. The CGSC
and Panel Counsel for the respondents in both petitions also
advanced similar arguments and justified stand of the respondents in
denying conversion. The respondent no 2 i.e. L&DO vide letter dated
01.01.2013 had intimated to the petitioners that property no. 1/12,
1/13 and 1/14 are considered as a single unit and sub-division of
properties can only be done after obtaining clearance from Ministry
of Law as well as clearance from local bodies with approval of layout
plan by the local body and transfer of property no. 1/12 and 1/13 will
amount to sub-division of the property which is not permissible under
the Master Plan. The respondents also claimed that the application for
conversion from lease hold to free hold was required to be signed by
all co-lessees of the property as per Clause 4 of L&DO's Conversion
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 31
Policy. The CGSC and Panel Counsel for respondents in support of
this argument referred Clause 4 of the Conversion Policy.
10.4 Clause 2.1 of Brochure pertaining to Conversion from Lease
Hold to Free Hold provides that conversion from lease hold to free
hold is optional. Clause 3 deals with persons who can apply. Clause
3.1 provides that the person/persons whose names appear on the
records of the Land and Development Office as lessee can apply for
conversion and if there are number of lessees, all of them will have to
sign the application. Clause 4 deals with proposition that whether co-
lessees can apply separately and provides that there should be only
one application for each property and all co-lessees will have to sign
on same application. It further provides that application will not be
accepted if it is not signed by all the co-lessees. According to Clause
4 application for conversion of the property from lease hold to free
hold must be signed by all co-lessees and this is mandatory
requirement.
10.5 The Counsel for the petitioner Vinay Kumar argued that the
perpetual lease deed dated 31.10.31 permitted unconditional transfer
and sub-lease of any part of the originally leased plot without any
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permission from the Lessor/L&DO and the perpetual lease deed
dated 31.10.1931 does not impose any restriction on the lessee's right
to assign, transfer or sub-lease any part of the property. He also
argued that Vinay Kumar is the owner of the property no 1/14 only as
sold the property no. 1/12 and 1/13 to Subhash Kumar Jain, Prem
Kumar Jain and others vide registered sale deed dated 27.04.1963
and transfer was not challenged by L&DO since 1963. It was
strongly argued that property no 1/12-1/14 be allowed to be
converted from lease hold to free hold. It is correct that Clause 2 (11)
of perpetual lease dated dated 31.10.1931 permitted the lessee to
assign, transfer or sublease the premises or any part thereof but it
does not give right to the lessee for conversion of the property from
lease hold to free hold which is a function to be discharged by the
L&DO i.e. the respondent no 2. Vinay Kumar after sub-division of
western part of the property bearing no 1 M.M. Road in 5 separate
portions in the Site Plan 2280 dated 05.06.1962 became lessee in
respect of the property no 1/12-1/14 and further sub-division of
property no 1/12-1/14 was never recognised by the respondents and
in particular by L&DO i.e. the respondent no 2. The property no
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 33
1/12-1/14 was treated as one single unit. Vinay Kumar in respect of
the property no 1/14 and Prem Kumar Jain and Subhash Kumar Jain
in respect of the property no 1/12 and 1/13 have separately applied
for conversion of the properties from lease hold to free hold which is
not permissible under Clause 4 as referred herein above. The sale
deed dated 27.04.1963 executed by Vinay Kumar in favour of Prem
Kumar Jain, Raj Kumar Jain, Padam Kumar Jain and Subhash Kumar
Jain and sale deed 10.12.1970 executed by Raj Kumar Jain and
Padam Kumar Jain in favour of Prem Kumar Jain and Subhash
Kumar Jain do not give any independent and separate right in favour
of Prem Kumar Jain and Subhash Kumar Jain for conversion of the
property bearing no 1/12 and 1/13 and conversion of property bearing
no 1/14 from lease hold to free hold in favour of Vinay Kumar. The
arguments advanced by the counsels for the petitioners are without
any legal force. The respondents are justified in treating the property
no 1/12-1/14 as one unit for purpose of conversion from lease hold to
free hold those these properties are treated as separate property in
records of MCD. The property no 1/12 to 1/14 was never sub-
divided as independent units as per law. The respondents were
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 34
justified in not entertaining separate applications filed by Vinay
Kumar and Prem Kumar and Subhash Kumar Jain as per Clause 4.
There is no force in arguments advanced on behalf of the petitioners
that failure and refusal of L&DO to convert property no. 1/12-1/14
from leasehold to freehold is illegal, discriminatory and violative of
Article 14, principle of legitimate expectation and estoppel and
L&DO is bound to convert property no. 1/12-1/14 from leasehold to
freehold.
11. The petitioners also alleged that L&DO has permitted the
conversion property bearing no 1/4 to 1/9 belonging to Rakesh Gupta
and property bearing no 1/10 and 1/11 belonging to Vijay Goel from
leasehold to freehold. This factual position was factually controverted
by the respondents by stating that as per the site plan 2280 dated
05.06.1962, property no. 1/3-1/9 and 1/10-1/11 were considered as
two separate units, hence, the said properties were converted from
leasehold to freehold. It is further stated that in the present case,
property no. 1/12 to 1/14 was treated as unified property/ single unit
under the site plan 2280 dated 05.06.1962. Accordingly said plea of
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the petitioners and arguments advanced by the counsels for the
petitioners are without any legal and factual force.
12. The respondents also alleged that the property no. 1/12 to 1/14 is
a re-entered property and all the co-lessees are required to apply
jointly for withdrawal of re-entry before considering the application
for mutation/conversion. However the respondents never reentered
these property and the petitioners of both petitioner are in continuous
possession of these property.
13. The property no 1/12, 1/13 and 1/14 is a single unit in the records
of the L&DO and the petitioners of the present petitions were
required to apply jointly for their conversion from leasehold to
freehold as per Master Plan and others Rule and Regulations. The
arguments advanced by the respective counsels for the petitioners of
both petitions are considered in right perspective but not good
enough to support case of the petitioners. The judgments/case law
cited by the counsel for the petitioners of writ petition bearing no
W.P.(C) 13812/2023 as detailed herein above are also perused but
they are not applicable to facts of the present petitions. The
petitioners are not entitled for grant of relief as prayed for.
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 36
Accordingly, the both petitions bearing no W.P.(C) 6937/2013 and
W.P.(C) 13812/2023 are dismissed along with pending application if
any.
DR. SUDHIR KUMAR JAIN
(JUDGE)
MAY 31, 2024
SK/AM
Signing Date:06.06.2024 W.P.(C) 6937/2013 & W.P.(C) 13812/2023 Page 37
