Deepak Lamba And Anr. vs Delhi Development Authority on 29 October 2003

Delhi High Court
Deepak Lamba And Anr. vs Delhi Development Authority on 29 October, 2003
Equivalent citations: 108(2003)DLT440
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT

Sanjay Kishan Kaul, J.

1. Rule.

2. With the consent of learned Counsel for the parties, the petition is taken up for final disposal at this stage.

3. A perpetual sub-lease deed dated 19.10.1966 was executed in favor of late Smt. Vidya Wanti Lamba in respect of plot No. N-85, Panchsheel Park, New Delhi measuring 1200 sq. yds. Smt. Lamba passed away on 30.09.1981 and prior to her death, she had executed a Will dated 31.5.1980. In terms of the said Will, the property in question devolved on two of her sons, namely, S/Shri Raj Kumar Lamba and Deepak Lamba, though she was survived by four sons and two daughters.

4. In terms of Clause (6)(a) of the sub-lease deed, in case of sale, transfer or assigning of the property in question, 50% unearned increase was chargeable. However, in the event of death of a sub-lessee, a separate provision was made in Clause (10) for mutation of the property in favor of the legal heirs. The said Clause (10) is as under:

“(10). Whenever the title of the Sub-lessee in the residential plot is transferred in any manner whatsoever the transferor and the transferee hall, within three months of the transfer, give notice of such transfer in writing to the Lesser and the Lessee.
In the event of the death of the Sub-lessee the person on whom the title of the deceased devolves shall, within three months of the devolution, give notice of such devolution to the Lesser and the Lessee.

The transferee or the person on whom the title devolves, as the case may be, shall supply the Lesser and the Lessee certified copies of the document(s) evidencing the transfer or devolution.”

5. The petitioners being the two sons, who had inherited the property in pursuance of the aforesaid Will applied for mutation of the property in their names on 17.4.1986 and the mutation was granted on 1.5.1986 and a letter was issued to the petitioners in that behalf. It may be noticed that apart from copy of the Will, affidavits were also filed on behalf of other legal heirs to the effect that they do not have any objection to mutation of the property in question. The letter dated 1.5.1986 is as under :

“With reference to your letter dated 17.4.86 on the subject cited above, I am directed to state that consequent upon the death of Smt. Vidya Wanti Lamba w/o Late Shri Barkat Ram Lamba, sub-lessee of the plot in question and on the basis of the documents filed, the mutation has been made in the names of S/ Sh. Raj Kumar Lamba and Deepak Lamba sons of Late Sh. Barkat Ram Lamba who are also the nominees/legal heirs of the late Smt. Vidya Wanti Lamba.”
6. One of the sons of late Smt. Lamba, Shri Ashok Kumar Lamba, however, subsequently sought to resile from the affidavit and contest the rights of the petitioners to the property in question. Shri Ashok Kumar Lamba also informed DDA accordingly and consequently DDA issued a letter dated 18.9.1987 suspending the earlier letter dated 1.5.1986 for the petitioners to take appropriate steps in accordance with law in respect of the Will in question. The contents of the said letter are as under :

“In continuation of this office letter of even number dated 1.5.86 on the subject cited above, I am to inform you that Sh. Ashok Kumar Lamba has challenged the genuineness of ‘WILL’ and has informed that he has moved the Court for Probate of the ‘WILL’. As such, the mutation allowed vide letter referred to above has since been suspended till such time the matter is decided by the Court of Law.
You are, therefore, advised to approach the Court of Law and obtain the probate so that further necessary action could be taken.”
7. The disputes between the parties thereafter went on and the petitioners filed Probate Case No. 62/1987 for probate of the Will dated 31.05.1980. Shri Ashok Kumar Lamba apparently set up another Will and filed a probate case in the year 1986, which was, however, subsequently transferred to Original Side of the High Court and numbered as Probate Case No. 48/1996. Shri Ashok Kumar Lamba also filed a suit for partition bearing No. 2815/1988.

8. Shri Ashok Kumar Lamba, however, passed away on 21.11.1992 and his legal heirs thereafter prosecuted the proceedings. It appears that finally better sense prevailed on the legal heirs of late Smt. Lamba to settle their family disputes amicably and a compromise application was filed dated 21.9.2002 in Suit No. 2815 / 1988, which compromise was accepted by this High Court on 24.9.2002.

9. In terms of the aforesaid compromise, various proceedings were withdrawn and the legal heirs of late Ashok Kumar Lamba agreed to withdraw the earlier letter objecting to mutation of the property in favor of the petitioners. The said legal heirs also agreed to hand over portion of the property, which was in their possession, to the petitioners. The petitioners were in part possession of the property. The petitioners agreed in terms of the family settlement to pay a sum of Rs. 1.25 crores to the other legal heirs. There is no dispute that the compromise stand implemented and the said legal heirs have addressed a letter to DDA withdrawing the letter of late Ashok Kumar Lamba and submitting the necessary affidavits along with the said letter. The petitioners thereafter addressed a letter dated 27.12.2002 enclosing the further documents and requesting to withdraw the letter of suspension dated 18.9.1987 as a consequence whereof the mutation would be restored in the names of the pefitioners. The prayer made in the said letter is as under :

“In view of the matter having been settled in our favor in terms of above mentioned family settlement duly recorded/approved by Hon’ble Court of Delhi, it is requested to please withdraw your letter of suspension dated 18.9.1987 and restore the mutation of the plot in the name of Shri Raj Kumar Lamba and Shri Deepak Lamba which was allowed vide your letter dated 1.5.1986.”
10. The petitioners also applied for conversion of the property into freehold on 19.6.2003 and paid the conversion charges.

11. The petitioners thereafter addressed a letter dated 21.7.2003 to DDA on account of the fact that when they went to enquire about the issue of their mutation and transfer, they were informed thatthe issue of unearned increase hadbeenraised which may be payable by the petitioners. The petitioners stated that it was not even a case of fresh mutation, but a case of withdrawal of the suspension letter.

12. The petitioners have finally filed the present writ petition seeking directions against the respondent to restore mutation in favor of the petitioners in respect of the plot in question and for conversion of the property into freehold.

13. The only defense taken in the counter affidavit is that in view of the fact that the petitioners have paid the consideration of Rs. 1.25 crores to the other legal heirs of late Shri Ashok Kumar Lamba, the petitioners would be liable to pay 50% unearned increase. Interestingly, a preliminary objection has been raised stating that the petition is premature since no decision had been taken on the application of the petitioners as the process of calculation of unearned increase was still pending consideration.

14. To support the aforesaid plea, learned Counsel for the respondent has also referred to recent judgment of the Supreme Court in Civil Appeal No. 34/1995 titled DDA v. Mrs. Vijaya C. Gursahane and Anr. and Civil Appeal No. 5424/1999 titled DDA v. Nanak Chand both decided by a common. Order dated 26.8.2003. The Supreme Court was ceased with the issue of payment of 50% unearned increase in cases where probates of Will were granted or letters of administration were issued. The terms of the lease deed were referred to and the Supreme Court came to the conclusion that it was always open to DDA to enquire whether the alleged Will is actually a sale in the garb of a Will in total disregard of the policy decision of the Authority in view of the restrictive covenant in the lease deed in respect of the sale or transfer of the property in question. It was held that merely because probates or letters of administration are granted would not preclude DDA from so enquiring. It was also stated that these were cases not of blood relations of the deceased. This was so stated in view of the policy of DDA that in cases of blood relations, no unearned increase is chargeable, but in cases where there may be actually sale of the property in question on power of attorney basis and on the death of a person, those documents are not put up, but only a Will executed simultaneously is sought to be utilised to mutate property in the name of the beneficiary, unearned increase should be charged.

15. I have considered the submissions advanced by learned Counsel for the parties.

16. Insofar as the issue of charging of unearned increase is concerned, the same forms subject matter of a circular dated 23.6.1995 of DDA. The said circular is as under:

“DELHI DEVELOPMENT AUTHORITY (CO-ORDINATION BRANCH/LANDS) 95/Corodn/Land Disposal Dt. 23.6.1995 Sub: Conversion of lease hold tenure of land into free hold to deal with cases connected with sale permission, etc. In pursuance of Govt. of India, Ministry of Urban Development letter No. 1101017/26/93-LD dt.23.10.93 and No. J-20011/12/III dt.16.5.94 regarding conversion of lease-hold tenure of land into free hold in cases connected with earlier sale permission, etc., the matter has been examined in detail and the following decisions have now been take to dispose of all such pending cases.
ISSUES DECISIONS
(i) Where lessess/sub- (i) & (ii)
lessee has applied for In such cases, conversion may
sale permission, but be allowed by treating the earlier
DDA has not conveyed application for sale permission
the unearned increase. as infructuous/withdrawn.
(ii) Where lessees/sub-lessee
has applied for sale Permission
and DDA has conveyed
unearned increase, but the same
has not been paid.
(iii) Where lessee/sub-lessee (iii) The amount of unearned
has applied for sale increase/sub-lessee with reference
permission and DDA to sale permission would be
has conveyed unearned refundable if the original
increase and the same lessee/sub-lessee has applied
has been paid in full or for conversion and he/
partly by the lessee but she is in physical possession of
the sale deed has not been the property in question.
registered.
(iv) Where all the action (iv) Conversion to free-hold
as mentioned above have may be allowed after carrying
been completed including out mutation with reference to
registration of sale deed. sale deed executed by the lessee
and after Realizing prescribed
conversion charges.

This issues with the approval of Vice-Chairman, DDA.

(K.C. SAXENA)
JT. DIR (CO ODN) LANDS”

This circular dealt with the issue of conversion of lease-hold tenure of land into freehold in cases of land connected with sale permission. In terms of this circular where a lessee/sub-lessee has applied for sale permission, but DDA has not conveyed unearned increase or has conveyed unearned increase, but the same has not been paid, the conversion applications are to be allowed by treating the earlier application for sale permission as infructuous/withdrawn. Not only this, where the DDA has conveyed unearned increase and the same has been paid partly or fully by the lessee/sub-lessee, but sale deed has not been registered, the amount of unearned increase would be refunded if the original lessee/sub-lessee has applied for conversion and he/she is in physical possession of the property in question.
17. This circular dated 23.6.1995 was further clarified by a letter dated 16.5.1994 clearly stating that in cases where demand has already been raised and the parties have already applied for conversion, the demand raised earlier would stand withdrawn and conversion allowed to the applicants on payment of conversion fee plus surcharge, if applicable without insisting on payment of unearned increase. The said letter dated 16.5.1994 is as under;

“5. It has already been clarified that in cases where demand had already been raised/is under issue and party applied for conversion, the demand raised earlier would stand withdrawn and conversion allowed to the applicants on payment of conversion fee plus surcharge, if applicable, without insisting on payment of unearned increase.”
The aforesaid circulars have been considered in a judgment of this Court in H.R. Vaish v. UOI and Ors., .

18. The result of the aforesaid is that if a party applies for conversion into freehold, the non-payment of unearned increase would be a non-issue for consideration of the application for conversion. In fact, really speaking, the concept of unearned increase has been given a go-bye by DDA in view of these circulars issued.

19. The judgment of the Supreme Court in DDA v. Mrs. Vijaya C. Gursahane’s case (supra) does not deal with the issue of conversion into free-hold, but only with the issue of payment of unearned increase. This has also arisen where the transaction is of really power of attorney transaction and in violation of the terms and conditions of the lease deed restricting the sale and transfer of the property in question. In such a case, it was held that unearned increase would be chargeable as these are not blood relations. Interestingly, in terms of the aforesaid circulars, were a party to apply for conversion into free-hold, the unearned increase has to be given a go-bye and the case has to be processed de hors the unearned increase. These circulars, however, were not brought to notice of the Supreme Court, which were dealing with the issue of calculation of unearned increase.

20. In the present case, the petitioners are admittedly blood relations being the direct legal heirs of deceased Smt. Lamba. The petitioners are her sons and there is no question of any sale or transfer of the property in question. There is, thus, no violation of the terms or the sub-lease restricting sale or transfer. In fact, the present case is covered by Clause 10 of the sub-lease deed, which requires the documents to be submitted in this behalf for mutation of the property in favor of the legal heirs. These documents were submitted with affidavits of the other legal heirs. The case of the petitioners for mutation was processed and the mutation was done in pursuance to the letter dated 1.5.1986. Really speaking, the issue of mutation, thus, stood concluded in favor of the petitioners in terms of the said letter dated 1.5.1986.

21. It is necessary to note that at no stage of time was the mutation in favor of the petitioners ever revoked, but in view of the disputes, the same was suspended. The letter dated 18.9.1987 also states that the petitioners should approach the Court for necessary action.

22. Unfortunately, the disputes between the legal heirs of Smt. Lamba prolonged for a number of years till they were finally settled on 17.9.2002 and the compromise application dated 21.9.2002 filed. The letter of Shri Ashok Kumar Lamba objecting to mutation in favor of the petitioners was withdrawn by his legal heirs and the necessary affidavits were also furnished. Thus, the raison d’etre for issuance of the letter dated 18-9.1987 itself does not survive and the consequences would be that the suspension would have to be withdrawn and the letter dated 1.5.1986 stands revived,

23. The respondents have, however, gone into an inquiry on the issue of unearned increase in view of the amounts paid by the petitioners towards the family settlement. In my considered view, this is not an aspect which can be taken into account by the respondent, which is payment made to relations in overall family settlement. The consideration is not one for the property, but in overall settlement of dispute between the family members.

24. The further aspect also arises as a consequence of the petitioners’ applying for conversion into free-hold. In view of the aforesaid circulars, even if unearned increase had been payable, the same was a non-issue and the case of the petitioners for conversion into freehold was liable to be processed de hors the issue of unearned increase.

25. The petitioners had been approaching the respondent, but to no avail. Time period of 4 months has passed and yet the respondent states that the matter is premature. It is not clear as to how many months or years should a party wait for the respondent DDA to react to a letter of mutation or an application for conversion.

26. In my considered view, the failure of the respondent to take action in the matter and to go on to the issue of unearned increase is illegal and without any basis. The letters and affidavits issued by legal heirs of late Ashok Kumar Lamba should result in the mutation letter in favor of the petitioners dated 1.5.1986 being revived and the petitioners’ case being processed for conversion into free-hold.

27. A writ of mandamus is issued directing the respondent to process the case of the petitioners for conversion into free-hold and execute the conveyance deed in favor of the petitioners on the petitioners’ complying with necessary formalities, if any remaining. The needful be done within a maximum period of 2 months from today.

28. The petitioners shall also be entitled to costs of Rs. 5,000/-.

No further orders are called for in this application in view of disposal of the writ petition.

Application stands disposed of.