Delhi High Court
Rupesh Kakkad vs Union Of India & Ors. on 28 October, 2015
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 28th October, 2015.
+ W.P.(C) No.766/2012
RUPESH KAKKAD ..... Petitioner
Through: Mr. Asuthosh Lohia, Ms. Soumya
Kumar Mr. Sagar Chauhan, Advs.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Akshay Makhija, CGSC, Ms.
Mahima Bahl, Ms. Sanju Geeta and
Mr. Siddharth Thakur, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The petition impugns the order dated 29th December, 2011 of the
respondents Union of India (UOI), Joint Secretary (C&W), Defence Finance
and Defence Estate Officer Cantonment Board rejecting the request of the
petitioner for mutation of property, being leasehold plot of GLR Survey
No.73/2, Varanasi Cantonment, to the name of the petitioner. Axiomatically,
a mandamus is sought for mutation in the name of the petitioner.
2. The petition was entertained and the respondents have filed a counter
affidavit to which a rejoinder has been filed by the petitioner. The petitioner,
in compliance of the order dated 1st April, 2013 in this proceeding, has filed
an additional affidavit and to which a response has been filed by the
W.P.(C) No.766/2012 Page 1 of 13
respondent. The respondent has filed yet another supplementary affidavit in
pursuance to the order dated 26th November, 2014 in this proceeding. The
petitioner is stated to have filed a response to the said supplementary
affidavit of the respondents but which is not on record. The counsel for the
petitioner states that he is not pressing for the same to be considered. The
counsels have been heard.
3. The position which emerges is as under:-
A. The land ad measuring 1.20 acres (52,272 sq. ft.) bearing GLR
Survey No.73/2 Varanasi Cantonment was initially leased to
Shri Gurucharan Prasad and Shri Jagannath Prasad w.e.f. 11th
January, 1932.
B. The leasehold rights in the aforesaid land were transferred to the
exclusive name of Shri Jagannath Prasad in pursuance to a
Partition Deed dated 24th August, 1948 between the said Shri
Gurucharan Prasad and Shri Jagannath Prasad and a
Supplementary Deed dated 15th July, 1949 was executed.
C. Pursuant to the user of the land being allowed to be changed,
another Supplementary Deed dated 14th May, 1963 was
executed.
W.P.(C) No.766/2012 Page 2 of 13
D. Shri Jagannath Prasad died on 3rd August, 1973 and the
leasehold rights in the land aforesaid were inherited by his sons
Shri K.P. Saigal and Shri Shamboo Prasad Saigal and the
leasehold rights were mutated from the name of Shri Jagannath
Prasad to the name of his said sons.
E. Shri K.P. Saigal and Shri Shamboo Prasad Saigal, vide Sale
Deed dated 19th November, 1998 transferred leasehold rights in
respect of 17,008 sq. ft. out of the aforesaid land to Shri
Rajendra Kakkad, Sh. Illesh Kakkad, Sh. Rupesh Kakkad
(petitioner herein) and Sh. Nilesh Kakkad.
F. The aforesaid Sh. K.P. Saigal and Sh. Shamboo Prasad Saigal
vide Sale Deed dated 8th December, 2000 transferred the
leasehold rights in another 14,260 sq. ft. in favour of the
petitioner herein.
G. In this manner, Sh. K.P. Saigal and Sh. Shamboo Prasad Saigal
retained only 21,004 sq. ft. out of total leasehold land ad
measuring 52,272 sq. ft.
H. The petitioner applied for mutation in his name of leasehold
rights with respect to the aforesaid 14,260 sq. ft.
W.P.(C) No.766/2012 Page 3 of 13
I The said application was rejected vide order dated 31 st January,
2011.
J. The petitioner filed W.P.(C) No.1773/2011 in this Court
impugning the aforesaid rejection.
K. This Court vide order dated 26th May, 2011 in the aforesaid writ
petition set aside the order dated 31st January, 2011 and
remanded the matter to the respondents for consideration afresh.
L. The respondents, vide impugned order dated 29th December,
2011, after reconsidering the matter have again rejected the
application of the petitioner for mutation. The reason therefor,
as borne out from paras 7 & 8 of the impugned order, is as
under:-
"7. The matter has since been re-examined in
compliance of the order dated 26.05.2011 of the Hon'ble
High Court in WP 1773/2011. After careful consideration
of the records of the case, opinions of Director General of
Defence Estates, Army Headquarters, Defence (Finance)
and Legal Advisor (Defence), it is observed that sub-
division of the property in favour of the petitioner and
other purchasers would amount to creation of fresh
leases. Disposal of fresh leases is governed by Rule 16 of
CLAR, 1937. The Rule provides that an initial premium
shall be charged on the lease and the lease shall be put up
to public auction for sale to the person who agrees to pay
the highest amount as premium. In the instant case since
the due procedure of charging initial premium through
W.P.(C) No.766/2012 Page 4 of 13
public auction is not getting followed, there is violation of
Rule 16 of the CLA Rules, 1937. It is also observed that
the premium which was due to the Government was taken
by the lessee while transferring leasehold rights through
sale deeds. Therefore mutation of property in favour of
petitioner would result in heavy revenue loss to
Government. It is also held that regularizing sub-
division of the property located outside civil area is
bound to become precedence for similar requests
seeking regularization of sub-divisions in all 62
Cantonments which would result in proliferation of
colonization of Cantonments thus affecting the overall
security environment.
8. In view of the above, the request of the petitioner
for mutation of the property cannot be acceded to."
(emphasis added)
4. On enquiry, it is informed that a separate application for mutation was
filed by the petitioner along with Shri Rajendra Kakkad, Sh. Illesh Kakkad
and Sh. Nilesh Kakkad with respect to 17,008 sq. ft. of land but the same is
still pending consideration.
5. On further enquiry, it is informed that the Lease Deed dated 11 th
January, 1932 has been extended from time to time and is now valid till the
year 2022.
6. The counsel for the petitioner has placed only the copy of the original
Lease Deed dated 11th January, 1932 before this Court and has not placed the
supplementary lease deeds aforesaid executed and / or the documents
executed for extension of the lease till 2022. However a perusal of the order
W.P.(C) No.766/2012 Page 5 of 13
sheet shows that the original lease deed dated 11 th January, 1932 was
directed to be brought before this Court and was perused by this Court as is
borne out from the order dated 1st April, 2013.
7. On a reading of the impugned order what emerges is that the reason
for refusal of mutation is, that the same would amount to sub-division of
leasehold and which is not permissible. It has as such been straightaway
enquired from the counsel for the petitioner whether under the Lease Deed,
transfer of part of the land amounting to sub-division of the leasehold land is
permissible.
8. The counsel for the petitioner, though is unable to show any clause in
the lease deed permitting transfer by the lessee of a part of the leasehold
property and obliging the lessor to, upon such transfer, grant a separate lease
deed of the said part, however contends that since the lease deed, vide
Clause 1(8) thereof permits the lessee to sub-lease the property, the sub-lease
could be either of the entire leasehold property or of a part thereof and the
use of the word "sub-lease" indicates that if the lessee creates a sub-lease of
part of the property, the sub-lessee of the said part would be entitled to have
a separate lease deed executed from the lessor in his / her favour. It is
further contended that since the lessees i.e. Shri K.P. Saigal and Shri
W.P.(C) No.766/2012 Page 6 of 13
Shamboo Prasad Saigal, under the Lease Deed are permitted to sub-lease the
leasehold premises, the permission for sub-division stood given. On further
enquiry, it is informed that there is no other provision or rule permitting the
sub-division of leasehold premises.
9. I am afraid, the counsel for petitioner is confusing „sub-lease‟ with
„sub-division,‟ when the two are entirely different. The original lessees were
not granted ownership rights in the land but only leasehold rights in the land.
A power to sub-lease would be a power to further lease out the leasehold.
The same would however not entitle the lessees to sub-divide the property
and to grant sub-lease of different portions of the sub-divided property to
different persons.
10. I have in this regard also considered whether there is any inherent
right in a lessee to sub-divide. The same, subject to the contract to the
contrary, is to be found in Section 108 (B) of the Transfer of Property Act,
1882 which vests a right in the lessee to transfer absolutely or by way of
mortgage or sub-lease the whole or any part of his interest in the property.
Therefrom also, the distinction between sub-lease and sub-division is borne
out. If sub-lease was to cover sub-division, the need for the words "whole or
any part of his interest in the property" would not have arisen.
W.P.(C) No.766/2012 Page 7 of 13
11. However the lease is found to have been granted in favour of the
aforesaid Shri Gurucharan Prasad and Shri Jagannath Prasad by a Lease
Deed executed between them and the Secretary of State for India in Council.
The recital of the said lease records that the Cantonment Authority of
Banaras had executed the said lease deed on behalf of the Secretary of State,
with the conformation of the Government of India. The question would arise
whether the said lease would be a Government Grant in as much as if it is a
Government Grant, as per Section 2 of the Government Grants Act, 1895,
the provisions of the Transfer of Property Act would not be applicable
thereto. Thus, even if there were to be no prohibition in the lease deed
against a sub-division, in the absence of any clause permitting sub-division,
the lessee would still not have a right to sub-divide in as much as a
Government Grant is to be read as per its own terms.
12. Upon the same being put to the counsel for the petitioner, he invited
attention to Section 112 of the Cantonment Act, 1924 which only provides
that every Board i.e. Cantonment Board shall be competent to enter into and
perform any contract necessary for the purposes of that Act. I am unable to
see as to how the said provision would take away the character as is evident
on the face of the subject lease, of the same being a Government Grant, from
W.P.(C) No.766/2012 Page 8 of 13
that of being a Government Grant. Once that is so, the question of
applicability of Section 108 of the Transfer of Property Act would not arise.
13. A similar question has often arisen in the city of Delhi in relation to
the leases granted by the Land & Development Office (L&DO) and the
Delhi Development Authority (DDA) and where the consistent view is that
no sub-division of the lease, which has an impact of changing the layout
plan, affecting the density and FAR available for construction, can be
permitted under a lease deed, save if permitted by the lessor i.e. L&DO or
the DDA.
14. The counsel for the petitioner has then argued that the reasoning given
in the impugned order, of sub-division amounting to a fresh lease deed, is
incorrect.
15. Once it is found that sub-division of the leasehold is not permitted,
and on which ground the mutation has been refused, the language used in the
impugned order does not make any difference. The authority concerned, in
the impugned order, has reasoned that allowing sub-division which is not
permitted would tantamount to grant of a fresh lease and which cannot be
done without auction. It cannot be said that the said reasoning is also de hors
of any merit. Once it is found that the right which the petitioner is claiming
W.P.(C) No.766/2012 Page 9 of 13
is not borne out from the original lease, the creation of new rights would
undoubtedly amount to a new lease and which as per the consistent dictum of
the Supreme Court in Netai Bag Vs. The State of West Bengal (2000) 8
SCC 262, Sachidanand Pandey Vs. State of West Bengal (1987) 2 SCC 295
and Haji T.M. Hassan Rawther Vs. Kerala Finance Corporation (1988) 1
SCC 166 with respect to disposal of properties of the State can now be done
only by way of an auction.
16. No other argument has been raised.
17. Accordingly, the order dismissing the petition was dictated in open
Court.
18. However while correcting the order in the Chamber and going through
the file I found Clause 1(8) of the Lease Deed dated 11 th January, 1932 to be
as under:-
"1. And the lessees doth hereby covenant with the
Secretary of State -
(8)
*(xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxx upon every assignment transfer or sub-lease
of the premises hereby demised or any part thereof
or within one calendar month thereafter to deliver a
notice of such assignment transfer or sub-lease to the
Military Estates Officer setting forth the names and
description of the parties to every such assignment
transfer or sub-lease and the particulars and effect
thereof.
W.P.(C) No.766/2012 Page 10 of 13
__________________________________________
* The portion within brackets to be inserted if
application*"
(emphasis added)
Therefrom it appeared that the lease permits the lessee to assign,
transfer or sub-lease either the entire leased premises "or any part thereof"
and which the counsel for the petitioner had failed to point out. Though the
said clause was referred to in the hearing and also perused in the Court but
the words "or any part thereof" therein escaped attention, perhaps owing to
the dim copy thereof annexed to the petition.
19. Accordingly, the counsels were telephonically contacted and asked to
appear the next day. In response thereof the counsel for the petitioner did not
appear himself and sent his colleague but without any instructions. The
counsel for the respondents appeared and agreed that vide clause aforesaid of
the lease deed, assignment, transfer or sub-lease of part of the leased
premises is permitted. He however contended that the same would also not
entitle the transferee, assignee or sub-lessee of the part of the leased premises
to an independent lease of that part from the lessor i.e. the respondents. It
was stated that the same would at best entitle the transferee, assignee or sub-
lessee of a part to have his name added to the name of the lessee.
W.P.(C) No.766/2012 Page 11 of 13
20. There is still nothing before me to show that the petitioner is entitled
to mutation exclusively in his favour of only that part of the leasehold which
has been transferred to him. The petitioner, as aforesaid, can only have his
name added to that of the existing lessee in the records of the respondents.
21. However in this context, another argument of the counsel for the
respondents, of the lessee having not given intimation of transfer within the
time prescribed in Clause 1(8) of one calendar month becomes relevant.
22. I however find that the respondents, while rejecting the application of
the petitioner, have not given the said ground. It is thus not deemed
necessary at this stage to adjudicate whether the said time of one month
prescribed for intimating of assignment/transfer is of essence or not. Suffice
it is to state that no consequences, of violation thereof, are found to have
been prescribed in the lease deed.
23. The petition is accordingly allowed to the extent that subject to the
petitioner complying with the necessary formalities in this regard within a
period of three months from today, the respondents are directed to add the
name of the petitioner along with the names of the existing lessee with
respect to the lease aforesaid but on the condition that the petitioner thereby
would not become entitled to physical partition of the leasehold and the
W.P.(C) No.766/2012 Page 12 of 13
respondents would be entitled to treat the entire leasehold as one only for all
purposes whatsoever.
No costs.
RAJIV SAHAI ENDLAW, J.
OCTOBER 28, 2015 „pp‟..
W.P.(C) No.766/2012 Page 13 of 13