Smt. Parminder Kaur Khurmi And Anr. vs Union Of India (Uoi) And Anr. on 4 November 2003
Delhi High Court
Smt. Parminder Kaur Khurmi And Anr. vs Union Of India (Uoi) And Anr. on 4 November, 2003
Equivalent citations: 2004IAD(DELHI)637, 108(2003)DLT175
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed
JUDGMENT
Badar Durrez Ahmed, J.
1. Rule. With the consent of parties the matter is taken up for hearing today.
2. The petitioners are seeking a direction in the nature of mandamus directing the respondent no.1 to issue sale permission in favor of the petitioner no.1 in respect of the property bearing No.J-7, B.K. Dutt Colony, New Delhi-110003 (hereinafter referred to as “the said property”)
3. This property which is a lease-hold property was initially owned by one Mr Chunni Lal Nepali. Upon his demise, it came to be owned by his son Shri Bal Krishan Nepali, who is respondent no.2 herein. Despite service, nobody has entered appearance on behalf of respondent no.2.
4. On 17.07.1989, an agreement to sell was entered into by and between the said Shri Bal Krishan Nepali and the petitioner No.1’s husband (Sh. H.S. Khurmi). On 03.10.1989, other documents, such as Special Power of Attorney, General Power of Attorney and Will, etc. were executed. Since this was a lease-hold property, before the sale could be finalised, permission of the Land & Development Office (respondent no.1) was necessary. Accordingly, such permission was sought and sale permission was granted by the respondent no.1 on 21.12.1989. However, the same was granted on certain conditions and one of them (clause 2) required that the sale deed should be executed and presented before the Sub-Registrar within 90 days from the date of issue of the letter. It was further indicated that in the event the same was not registered within the stipulated period, the permission so given would be treated as having lapsed. Despite the grant of the sale permission, the sale deed could not be executed for one reason or the other and, in the main, due to the prolonged illness of Shri H.S. Khurmi, who ultimately died on 19.03.2001. On his death, Late Sh. H.S. Khurmi left behind his widow (petitioner no.1), his son (petitioner no.2) and a daughter (Smt Lovleen Chaddha). It is not disputed that the daughter, i.e., Smt Lovleen Chaddha relinquished her shares in favor of petitioner no.2, i.e., her brother. Thus, the petitioner nos. 1 and 2 succeeded to the estate of Late Shri H.S. Khurmi.
5. On 11.06.2001, the petitioner sought fresh permission for bringing about the conveyance of the property agreed upon earlier and for completing the sale. This application, which was jointly signed by the petitioner no.1 and the said Shri Bal Krishan Nepali, was presented to the respondent no.1. No reply was received from the respondent no.1. Therefore, the petitioner no.1 sent reminders dated 10.07.2001 and 05.10.2001. Ultimately, by a letter dated 13.11.2001, the Land & Development Office (L&DO) informed the petitioner that it would have to apply afresh and would also have to submit a fresh agreement to sell from said Shri Bal Krishan Nepali in favor of the petitioner before permission to sell is granted. The petitioners are aggrieved by this letter of the respondent no.1.
6. The impugned letter also required the petitioner no.1 to submit a valuation report of the property duly approved by a Government valuer.
7. Insofar as the requirement of a fresh agreement is concerned, learned counsel appearing on behalf of the petitioner drew my attention to the original agreement dated 17.07.1989 entered into between the respondent no.2 (Shri Bal Krishan Nepali) and the petitioner no.1’s husband (Shri H.S. Khurmi) and, in particular, he referred to the following paragraph:-
“The expression 1st party and second party shall mean and include their heirs, successors, executors and assigns of the respective parties.”
8. From the aforesaid, it is clear that reference to the expression “second party” which initially referred to Shri H.S. Khurmi was to mean and include his heirs, successors, executors and assigns. It is not disputed that the petitioners are the heirs and successors of Late Shri H.S. Khurmi. The petitioner no.2 had also, by an affidavit, a copy whereof is on record at page 15 of the paper book, indicated that he had no objection/interest whatsoever if the sale permission is sought for or the sale deed is registered in his mother’s name, i.e., the petitioner no.1’s name in respect of the said property for which Late Shri H.S. Khurmi had entered into an agreement to sell with the seller, Mr Bal Krishan Nepali. Thus, petitioner no.1 becomes the sole representative of Late Shri H.S. Khurmi and steps into his shoes. In this view of the matter, I am in agreement with the submissions made by the learned counsel for the petitioner that no further agreement to sell would be necessary as the existing agreement to sell dated 17.07.1989 read with the relinquishment deed of the petitioner no.1’s daughter and the affidavit of the petitioner no.2 make it clear that the petitioner no.1 has stepped into the shoes of Late Shri H.S. Khurmi. That takes care of the question with regard to the requirement of a fresh agreement to sell.
9. Coming to the second aspect, i.e., the requirement for making a fresh application, it is clear that the petitioner no.1 Along with the said seller, i.e., Shri Bal Krishan Nepali, had filed the application dated 11.06.2001. Therefore, it would only be delaying matters by requiring the petitioner to once again ask Shri Bal Krishan Nepali to file such an application for permission to sell. The L&DO can very well treat the said application dated 11.06.2001 as if it had been filed in the first instance.
10. The third aspect of the impugned letter is the requirement of filing a revaluation report. The lease in respect of the property dated 30.08.1969 which originally stood in the name of Late Shri Chunni Lal clearly indicates that insofar as the first sale of the premises is concerned, it shall not attract any payment on account of unearned increase”. This is clear from clause 7 (c) of the lease which reads as under:-
“7 (c) The said allottee herein may transfer his leasehold rights in the demised premises or any part thereof after obtaining the permission of the Government and the Government will not claim any unearned increment in the value of the said demised premises (being the difference in the premium paid by him to the Government and the market value of the land then prevailing) for permitting such transfer. In the event f any subsequent transfer of the said demised premises by the transferee, the Government shall be entitled to laim and recover the unearned increment in the value of the said demised premises, the amount so to be recovered being 50 per cent of the unearned increment in the value of the said demised premises. In the case of any subsequent transfers after the first transfer the Government shall have the pre-emptive right to purhase the said demised premises and all the building and structure standing thereon demised premises and all the building and structures standing thereon after deducting 50 per cent of the unearned increment as aforesaid.”
As such, the question of valuation is irrelevant and it would not be necessary for the petitioners to submit any valuation report.
11. It is, therefore, clear that this writ petition can be disposed of with the direction that the respondent no.1 process the application already on record, i.e., the application dated 11.06.2001, which bears the signatures of both, the petitioner no.1 as well as the seller (Shri Bal Krishan Nepali) and pass necessary orders thereon within six weeks without requiring a fresh agreement to sell or a Valuation Report.
12. With these directions the writ petition is disposed of.
Copy of this order be given dusty to both the parties.