Delhi High Court
Inderjit Singh And Anr. vs Tarlochan Singh And Anr. on 7 February, 1991
Equivalent citations: 1991(20)DRJ281, ILR1991DELHI617, 1991RLR239
JUDGMENT Mahinder Narain, J.
(1) The application 1,A. 265 of 1991 has been moved in Suit No. 2986 of 1989 for recording compromise under Order 23 Rule 3 Civil Procedure Code .
(2) By an order dated 22.1. 1990, this Court (A B.Saharya, J) called upon the standing counsel for the Delhi Development Authority to assist the Court to determine whether the compromise which was being proposed, is lawful or not. Full set of papers was required to be delivered to the Standing Counsel for the Delhi Development Authority, and I have heard Mr. Jayant Bhushan, Advocate, on behalf of the Delhi Development Authority.
(3) The facts which are not in dispute, are that plot No. 16, in the lay-out plan of the Community Centre, Mayapuri Industrial Area, Phase-1, New Delhi, admeasuring 104.05 sq. meters was purchased by Tarlochan Singh, defendant No. 1. A perpetual lease with regard to the said plot was executed. This perpetual lease-deed is dated 26.8.1977. This was executed between the President of India and Tarlochan Singh.
(4) It is also not in dispute that Tarlochan Singh applied to the Delhi Development Authority on 17.1 1 1988, to have the said plot in the names of himself, Smt. Gurdev Kaur his wife, Inderjit Singh and Harjit Singh, his sons.
(5) By letter dated 5.12.1988, the Delhi Development Authority agreed to make all the aforesaid persons co-lessees with respect to plot No. 16, Community Centre, Mayapuri Industrial Area, Phase I, New Delhi, in the following proportions:- Tarlochan Singh gon of S.S. Chanan Singh 40% Smt. Gurdev Kaur, wife of Tarlochan Singh 20% Inderjit Singh, son of Tarlochan Singh 20% Harjit Singh, son of Tarlochan Singh 20% The Delhi Development Authority also informed the said co-lessees that ail other terms and conditions of the auction/lease deed will be binding on all the co-lessees.
(6) By the present application, the said co-lessees seek to have portions of the building built on the plot, declared as owned by them as follows :- Inderjit Singh, plaintiff No. 1 : Whole of the second floor Harjit Singh, plaintiff No. 2 : Whole of the basement Tarlochan Singh defendant No. 1 : Whole of the Ground and first floors. Smt. Gurdev Kaur, defendant No. 2 : Whole of the third floor and the terrace.
(7) By the compromise which is sought to be made a basis of the decree to be passed by this Court, the parties agree that plot No 16, on which the building has been built, shall remain undivided, and as stated above, the shares of the parties in the plot would be in accordance with what the Delhi .Development Authority has agreed.
(8) What was required to be considered is whether what was being proposed by this compromise was lawful, in other words in accordance with the terms of the perpetual lease which has been executed. For this purpose, it is necessary to look at the provisions of Clause 2 of the perpetual lease. The said clause reads as under :- 2. The Lessee shall not deviate in any manner from the lay-out plan or alter the size of the plot whether by sub-division, amalgamation or otherwise, unless specifically permitted to do so by the Lesser.
(9) Mr. Jayant Bhushan also referred to clause 4(a) of the lease, which reads as under :- 4(a). The Lessee shall not sell, transfer, assign or otherwise part with possession of the whole or any part of the commercial plot except with the previous consent in writing of the Lesser which he shall be entitled to refuse in his absolute discretion. Provided that such consent shall not be given for a period of ten years from the commencement of this Lease unless, in the opinion of the Lesser, exceptional circumstances exist for the grant of such consent. Provided Further that in the event of the consent being given the Lesser way impose such terms and conditions as be thinks fit and the Lesser shall be entitled to claim and recover a portion of the unearned increase in the value (i.e. the difference between the premium paid and the market value) of the plot at teh time of sale trnsfer, assignment, or parting with the possession the amount to be recovered being fifty percent of the unearned increase and the decision of the Lesser in respect of the market value shall be final and binding. Provided Further that the Lesser shall have the pre-emptive right to purchase the property after deducting fifty % of the unearned increase as aforesaid.
(10) Clause 2 of the perpetual lease refers to the lay-out plan. Mr. Bansal points out that the perpetual lease refers to lay-out in its other parts also, and a reference to the same makes it clear that the "lay-out" is referred to in the context of lay-out plan of Community Centre, Mayapuri Industrial Area,Phse-l". This is so stated in the 3rd recital of the perpetual lease; also in the schedule of the perpetual lease.
(11) The question is whether there is any deviation in the lay-out plan, as postulated by the perpetual lease deed by what is proposed in the application under Order 23 Rule 3 Civil Procedure Code The lay-out plan in the context of the perpetual lease being the lay-out plan of the Community Centre, Mayapuri Industrial Area, Phase-1, it must necessarily mean the entire lay-out plan of the said Community Centre. Inasmuch as plot No. 16 as laid out in the Community Centre, Mayapuri Industrial Area plan, is not to be altered by what is proposed in this application under Order 23 Rule 3, the provision of clause 2 in the perpetual lease does not appear to to impinged upon or violated by the parties to the suit, and. therefore, no "permission" is required from the Lesser under the said provision.
(12) LAY-OUT means an arrangement, an arrangement by which various components are placed with reference to each other. In this way the word "lay-out" is defined under Section 313 of the Delhi Municipal Corporation Act, 1957. That provision reads as under :- 313(1) Before utilising, selling or otherwise dealing with any land under Section 312, the owner thereof shall send to the Commissioner a written application with a lay-out plan of the land showing the following particulars, namely :- (a) the plots into which the land is proposed to be divided for the erection of buildings thereon and the purpose or purposes for which such buildings are to be used ; (b) the reservation or allotment of any site for any street, open apace, park. recreation ground, school, market or any other public purpose (c) the inteoded level, direction and width of street or streets; (d) the regular line or street or streets; (e) the arrangements to be made for levelling, paving, metalling, flagging, channelling, sewering, draining, conserving and lighting street or streets. (2) The provisions of this Act and the bye-laws made there under as to which of the public streets and the height of buildings abutting thereon, shall apply in the case of streets referred to in sub-section (1) and all the particulars referred to in that sub-section shall be subject to the section of the Standing Committee. (3) Within sixty days after the receipt of any application under Sub-section (1) the Standing Committee shall either accord sanction to the lay-out plan on such conditions as it may think fit or disallow it or ask for further information with respect to it. (4) Such sanction shall be refused- (a) if the particulars shown in the lay-out plan would conflict with any arrangements which have been made or which are in the opinion of the Standing Committee likely to be made for carrying out any general scheme of development of Delhi whether contained in the master plan or a zonal development plan prepared for Delhi or not; or (b) if the said lay-out plan does not conform to the provisions of this Act and bye-laws made there under; or (c) if any street proposed in the plan is not designed so as to connect at one end with a street which is already open (5) No person shall utilise, sell or otherwise deal with any land or layout or make any new street without or otherwise than in conformity with the orders of the Standing Committee and if further information is asked for. no step shall be taken to utilise, sell or otherwise deal with the land or to lay-out or make the street until orders have been passed upon receipt of such information : Provided that the passing of such orders shall not be in any case delayed for more than sixty days after the Standing Committee has received the information which it considers necessary to enable it to deal with the said application. (6) The lay-out plan referred to earlier in this section shall, if so required by the Standing Committee, be prepared by a licensed town planner.
(13) In my view in the context of the perpetual lease in which the word "lay-out" occurs, what is to be seen is whether there is any alteration in the arrangement of plots in the Community Centre, Mayapuri Industrial Area, by the parties to the suit. To this. the answer must obvious be in an emphatic "NO".The parties to this suit do not, in any way, control any plot other than plot No 16. and, therefore, cannot alter the lay-out of plot No t6. Layout of community centre can be altered in juxtaposition to each other. As that is not what is contemplated by the parties, the lay-out of plot No. 16 cannot be said to be deviated from.
(14) There is yet another meaning which can be given to the word 'lay-out" in clause 2 of the perpetual lease deed. That is the lay-out of building which has been built upon the said plot. The arrangement of its various component parts, that is to say the open areas, respective rooms and their sizes, on various floors.
(15) By what is contemplated between the parties, no part of the layout of the building and the plan according to which the same hag been built, is proposed to be deviated from, (16) In these circumstances, 1 do not think that there is any deviation from the lay-out with respect to either plot No. 16, Community Centre, or the building which has been built thereon.
(17) Mr. Jayant Bhushan relying upon the word "transfer" in clause 4 of the perpetual lease deed, says that the arrangement postulated between the parties by this application would amount to transfer. 1 do not agree I do not agree for the reason that in two judgments of the Supreme Court, i.e. (The Commissioner of Income-tax, Gujarat v. Keswhav hi Lallubhai Patel) and (V.N. Sarin v Major Ajit Kumar Poplai), the Supreme Court has said that when joint property is transferred to one of the persons who were earlier joint owners upon partition, than there is no transfer. In the facts and circumstances of the case, what will be happening in this case, is that four joint perpetual lessees would be becoming owners of specific areas of a property, which has been built on plot No. 16. This is no different from what that takes place on partition between coparceners owning co-parcenery property.
(18) In my view, in view of facts and circumstances of this case, what is being done by the parties to the suit, would not amount to transfer within the meaning of clause 4 of the perpetual lease.
(19) Mr. Jayant Bhushan urges that what is to be proposed between the parties in this suit, is sub-dividing the plot within the meaning of clause 2 of the perpetual lease-deed. I do not agree. The parties are specifically staling that they would be undivided owners of the plot. By the act of the parties postulated by this application, the plot is not, in fact, being subdivided.
(20) In view of what I have stated above, I am of the view that what is being sought to be done by this application under Order 23 Rule 3 Civil Procedure Code , is lawful, and for that reason, there is no impediment to passing of a decree in terms of what is proposed between the parties. 21. 1. A. 265 of 1991 is allowed.
(21) Statement of Tarlochan Singh, defendant No. I, Mr. Sanjay Poddar, Advocate, counsel for defendants, Inderjit Singh, plaintiff No. 1, and Mr. Vineet Raizada, Advocate, counsel for the plaintiffs, has been recorded scparately.
(22) Decree is passed in terms of the compromise. The application I.A. 265 of 1991 shall form part of the decree