Delhi District Court
Smt. Shakuntala Devi vs Delhi Development Authority on 16 October, 2014
IN THE COURT OF SH. SANJEEV AGGARWAL LD. ADJ03
(NORTHWEST) ROHINI COURTS: DELHI
MCA No.02/13
Smt. Shakuntala Devi ..............Appellant
Vs.
Delhi Development Authority .............Respondent
O R D E R
1 Vide this order, I shall disposeoff the present appeal filed by the appellant against the impugned order dated 1932013 whereby the application of the appellant U/O 12 Rule 6 CPC was dismissed (parties are hereinafter being referred to by their respective status before the ld. Trial Court).
2 The brief facts which can be culled out from the impugned order of the ld. Trial Court are as under:
1. By this order, I shall dispose off an application moved on behalf of plaintiff Ms. Shakuntla Devi u/o 12 rule 6 CPC with the prayer for decreeing the suit of the plaintiff on admission by the defendant. It is stated in the application that the plaintiff has filed the present suit Smt. Shakuntala Devi Vs. Delhi Development Authority Page no.1/20 against the defendant DDA with the prayer for Mandatory Injunction for giving direction to the DDA to convert the flat in question i.e B160, Avantika, Sec1, Rohini, Delhi into free hold. It is stated that the DDA has also filed the WS admitting therein that plaintiff vide letter dt. 20.07.2006 applied for conversion of the flat in question into free hold and furnished the required documents. It is pleaded in the WS that inspection of the flat in question was also carried out and owner was found to have covered the courtyard, one room on the first floor and kitchen, bathroom and toilet. It is reported that there was some unauthorized encroachment of 9 steps and roof projection from both sides in the said flat in question. It is also pleaded in the WS that on 31.03.2008 plaintiff was advised to remove the encroachment.
2. It is stated that the DDA has not converted the flat into free hold and has no authority not to convert the flat to free hold in view of the judgment of Hon'ble Delhi High Court in case "Ajay Bijli Vs. UOI" 181, (2011) DLT, 565 and UOI Vs. Vinay Kumar Aggarwal, 116, (2005), DLT
332. It is even prayed that the suit of the plaintiff be decreed on the admission of the defendant, DDA.
3. Reply has been filed on behalf of defendant wherein averments in the application has been denied and it is stated that the plaintiff Ms. Shakuntla had applied for conversion of her flat into free hold and furnished the documents but the DDA field officer after inspection of the said flat had given the report that the owner has covered the courtyard, one room n the first floor and Smt. Shakuntala Devi Vs. Delhi Development Authority Page no.2/20 there was unauthorized encroachment of 9 steps of staircase on the Govt. land. It is further stated in the reply that legal notice dt. 13.12.2010 of the plaintiff was duly replied by the DDA vide letter dt. 7.2.2011 and as per the latest survey report dt. 27.04.2011 the plaintiff has made the following unauthorized encroachment/addition/ alteration:
(i) Front as well as rear courtyeard covered with RCC slab and constructed one room, one kitchen and toilet and bathroom with red sand stone and T iron.
(ii) Chhajja projection at roof level and constructed a stair case on public land.
4. I have heard Ld. Counsel for the plaintiff and Ld. Counsel for the defendant. It is argued by counsel for the plaintiff that in view of the judgment of Hon'ble High court in Ajay Bijli's case as well as in Vinay Kumar Aggarwal's case it is well established that the DDA is required to convert the flat into free hold despite there being some unauthorized encroachment/ construction. He submits that as per ration of the judgment of Hon'ble High Court it is not for the DDA to see regarding unauthorized construction/ encroachment and the job of DDA is to convert the flat into free hold, specifically when it is admitted by DDA that plaintiff has furnished all the necessary documents along with her application and has also furnished the necessary cost/ charges.
Smt. Shakuntala Devi Vs. Delhi Development Authority Page no.3/20 On the other hand Ld. Counsel for DDA, defendant submit that the application is liable to be dismissed becuase plaintiff herself admits regarding the unauthorized construction/ encroachment on Govt. land.
5. Having heard the submissions at bar and having gone through the record carefully.
It be noted that policy for conversion from leasehold to freehold was issued in April, 1992. That policy remained in force, till certain modifications were made through the two circulars issued on 25.6.1996, and 24.7.1996. The original scheme, conceived in 1992 has remained more or less the same except that restrictions on the area of the plot which could be converted was subsequently withdrawn and the 1999 scheme gave an opportunity to avail of the concessional rates for the last time up to 31.3.2000. During the working of the 1992 scheme certain issues required resolution, as a result of which the two circulars of 1996 were issued. The substance of the first 1996 circular is that where sale permissions were applied for and unearned increase was deposited as per the terms of the lease deed but sale deed had not been executed; the amount of unearned increase deposited was to be in fact refunded. In such cases where the property has been reentered, the reentry order was to be revoked by the Lease Administering Authority on payment of prescribed charges of Rs.
Smt. Shakuntala Devi Vs. Delhi Development Authority Page no.4/20 100 per day or Rs. 3000 per annum. In such cases no damages on account of lessee being in unauthorized occupation of the property was recoverable. The material terms of the said first 1996 circular read as follows:
"4 In this connection it is further clarified that
(a) In respect of misuse of properties or unauthorized construction thereon, if misuse is condonable as per Master Plan provisions/zoning regulations or it is within the condonable items as prescribed by the Government, from timetotime, no additional conversion fee will be charged in such cases as prescribed vide this Ministry's letter of even number, dt. 8.4.1992.
(b) In respect of other misuses, conversion to freehold will be available provided the area misused does not exceed 25% of the built up area or 500 sq. ft. conversion fee, as prescribed, will be charged.
(c) in cases where applications for sale permission were made by the parties and in the process unearned increase was deposited, but sale deeds have not been executed, pursuant to the sale permission, refund/ adjustment or the amount paid by the party will be available in case party approaches the Government of conversion of Smt. Shakuntala Devi Vs. Delhi Development Authority Page no.5/20 property on payment of the prescribed conversion fee/ surcharge/ Addl. Conversion fee, as applicable.
Similarly second circular of 1996 concerns itself with clarifications about the extent of plots, where misuse exists; it limits entitlement of conversion to plots where misuse is less than 500 sq meters, or 25 % of the plot area. This circular makes it clear that application for conversion into free hold is not to be rejected merely because there is re entry which has taken place.
Above stated Circulars were taken into consideration in UOI Vs. Vinay Kumar Aggarwal 116 (2005) Delhi Law Times 322 (DB) when Hon'ble High Court held that there is no rationale why person who has suffered reentry should be denied facility of conversion of his property from leasehold into freehold whereas GPA holder or lessor who sells property relieved of rigours of such determination, reentry of lease and permitted to enjoy benefits of conversion into freehold. Same judgment was then relied upon Ajay Bijli Vs. Union Bank of India & Anr. 181 (2011) DLT 565 it was held that merely because property had been reentered can not be a ground for denying conversion.
Smt. Shakuntala Devi Vs. Delhi Development Authority Page no.6/20 However probably it was not in notice of Ld. Counsel of plaintiff that judgment UOI Vs. Vinay Kumar Aggarwal's Case has already been over ruled in UOI & Ors. Vs. Engineering And Ind. Corporation Pvt. Ltd. 193 (2012) DLT 514 (FB) wherein it was held by Full Bench of High Court while interpreting Clause 4 of policy circular that opening workds of clause : "In this connection it is further clarified" makes it clear that circular is clarificatory. In Clauses (a), (b) and (c) particular situation pertaining to misuse, unauthorized construction or transfer, a residual provision is stipulated dealing by way of clarification, with properties which have been reentered. It was clarified tht in cases of properties reentered, the reentry order will be revoked by lease administering authorities on payment of prescribed charges.
Moreover In J.S. Furnishing Co. (P) Ltd. Vs. UOI 185 (2011) DLT 560 it was held that free hold conversion can not be claimed as a matter of right. As per police terms application for conversion shall not be entertained during pendency of dispute and without payment of misuse charges.
Petitioner without concluding the litigation and without paying misuse charges could not avail of freehold conversion.
Smt. Shakuntala Devi Vs. Delhi Development Authority Page no.7/20 Even otherwise also question passing decree on admission U/o VI rule 12 CPC can not be claimed as a right, passing order for under this provision is matter of discretion of court. Under this rule, the court can, at an interlocutory stage of the proceedings, pass a judgment on the basis of admissions made by the defendant. But before the court can act upon the admission, it has to be shown that the admission is unequivocal, clear and positive. This rule empowers the court to pass judgment and decree in respect of admitted claims pending adjudication of the disputed claims in the suit. So, in spite of admission of a fact having been made by a party to the suit, the court may still require the plaintiff to prove the fact which has been admitted by the defendant. (Balraj Taneja & Anr. Sunil Madan & Anr. 81 (1999) DLT 779 (SC).
When it is plaintiff herself says that she though had committed unauthorized encroachment/ construction, in such case I don't find discretion of court should be favorably exercised for plaintiff. Hence, the application of the plaintiff is dismissed.
3 The plaintiff has challenged the said order on the ground that ld. Trial Court has not correctly interpreted the judgment(s) Smt. Shakuntala Devi Vs. Delhi Development Authority Page no.8/20 of Ajay Bijli Vs. UOI 181 (2011) DLT 565, UOI Vs. Vinay Kumar Aggarwal, 116 (2005) DLT 332 and J.S. Furnishing Co. (P) Ltd. Vs. UOI 185 (2011) DLT 560, in the proper perspective, because there is no other dispute pending in respect of this flat in any other court of law, therefore no purpose will be served to continue with the case, as the DDA has refused to convert this flat into freehold on the sole ground of unauthorized construction and the plaintiff also does not dispute the said position and, therefore no issue is to be framed, decided and the only question of law is, whether in a case of unauthorized construction, flat in question can be converted into freehold or not, therefore the order of the ld. Trial Court dated 19032013 is liable to be set aside.
4 Reply to the grounds of appeal has been filed by the DDA/Respondent wherein it is stated that the impugned order dated 19032013 has been rightly passed by the ld. Trial Court.
5 I have heard Sh. O.P. Gupta, ld. counsel for the appellant, Sh. S.S. Mittal, ld. counsel for the respondent/DDA and perused the Smt. Shakuntala Devi Vs. Delhi Development Authority Page no.9/20 record.
6 The ld. Trial Court has rightly held that the judgment of UOI Vs. Vinay Kumar Aggarwal, 116 (2005) DLT 332 has been overruled.
Vide judgment UOI and Ors. Vs. Engineering and Ind. Corporation Pvt. Ltd. 193 (2012) DLT 514 (FB), the relevant paras of the said judgment are reproduced as under: "The next policy circular is the one with which we are concerned i.e the policy circular dated June 25, 1996 and the subject matter of dispute is the interpretation to Clause 4 of the policy circular, contents whereof have been extracted by us.
In Vinay Kumar Aggarwal's case (supra), a Division Bench of this Court has opined that the clause in question mandates revocation of the reentry made by the Lease Administering Authorities by charging '100/ per day or '3000/ per annum where reentry was ordered Smt. Shakuntala Devi Vs. Delhi Development Authority Page no.10/20 on account of misuse of properties or unauthorized construction and this would mean that upon payment of said sums the breaches stand condoned, inasmuch as without the breach being condoned, reentry cannot be revoked. To put it simply, the said amounts have been treated akin to compounding charges. The Division Bench has been influenced by the fact that the clause in question, vide para
(a) thereof specifically deals with issues of misuse of properties or unauthorized construction thereon.
15 We may note that the decision of the Division Bench was challenged before the Supreme Court and Leave to Appeal was granted, but Civil Appeal No. 1364/2006 UOI Vs. Vinay Kumar Aggarwal was dismissed vide order dated February 18, 2010 which reads as under: Smt. Shakuntala Devi Vs. Delhi Development Authority Page no.11/20 "We are not inclined to interfere with the impugned judgments of the High Court. We however, leave the question of law that has been raised by the ASG, open for decision in some other case. With this observation the appeal is dismissed".
16 However, in a later decision pronounced by a Division Bench of this Court, following the law declared by the Division Bench in Vinay Kumar Aggarwal's case (supra), the Supreme Court granted Leave to Appeal in SLP(C) No.31868/2010 UOI Vs. Anu Mehra and the matter is pending before the Supreme Court.
17 Sh. Amarjit Singh Chandhiok, learned ASG urged that the Division Bench of this Court in Vinay Kumar Aggarwal's case (supra), probably for the reason the argument was not advanced, did not consider the argument that when a lease is determined the continued Smt. Shakuntala Devi Vs. Delhi Development Authority Page no.12/20 possession of the lessee becomes unauthorized;
rendering the lessee liable to pay damages on account of unauthorized occupation of the property leased and that the circular guideline in question merely contemplated this period of unauthorized occupation and provided that for each days unauthorized occupation damages would be paid at '100'/ per day subject to a maximum of '3000/ per annum and not that this was the amount payable to regularize the breach.
Per contra, ld. counsel appearing for the respondents urged that the view taken by the Division Bench was correct and that if reentry was effected due to misuse of property or an unauthorized construction being made, the revocation thereof on charges payable as per the circular would mean that the breach stood compounded.
Smt. Shakuntala Devi Vs. Delhi Development Authority Page no.13/20 18 Let us digest the clause in question. The opening words of the clause: In this connection it is further clarified makes it clear that the circular is clarificatory.
The circular in question deals with various issues and one of them being the issue of reentry being effected upon there being either misuse of property and/or unauthorized construction thereon. Vide para (a) of Clause 4 it is clearly contemplated that the clause deals with an issue concerning the misuse of property or unauthorized construction thereon and clarifies only with respect to misuse, evidenced by the fact that the said para refers to such misuse which is condonable as per Master Plan provisions or Zoning Regulations;
Clause (b) contemplates situations of misuse not exceeding 25% of the built area or 500 sq. ft. Clause (c) contemplates situations of unearned increase. After Smt. Shakuntala Devi Vs. Delhi Development Authority Page no.14/20 listing, in Clauses (a), (b) and (c) a particular situation pertaining to misuse, unauthorized construction or a transfer, a residual provision is stipulated in the concluding paragraph of the clause, dealing by way of clarification, with properties which have been re entered. It stands clarified that in cases of properties which have been reentered, "the reentry order will be revoked by the lease administering authorities on payment of prescribed charges of '100/ per day or '3000/ per annum and in such cases no damages on account of deemed unauthorized occupation of Government land/property will be levied by the lease administering authority while allowing conversion".
19 The underlined portions in the extract of the policy guideline would highlight that the charges stipulated are in lieu of damages on account of unauthorized Smt. Shakuntala Devi Vs. Delhi Development Authority Page no.15/20 occupation of the demised property, upon the lease being determined, and exfacie have no concern or connection with the misuse charges or charges towards unauthorized construction. Primafacie, the error committed by the Division Bench is not to keep in view the distinction between a lessor being entitled to determine a lease upon breach of a condition thereof, but being willing to condone the breach if adequately recompensed, visavis a lessor determining the lease relegating the lessee to the status of an unauthorized occupant and becoming liable to pay damages for unauthorizedly occupying the premise in question, and the lessor fixing the damages to be paid to regularize the unauthorized occupation. The expression "On account of deemed unauthorized occupation of Government land/property", which immediately follows Smt. Shakuntala Devi Vs. Delhi Development Authority Page no.16/20 the expression" On payment of prescribed charges of '100/ per day or '3000/ per annum", makes it evident that the circular clearly conveys the view projected by the learned Additional Solicitor General and thus we accept the argument.
20 We accordingly overrule the view taken by the Division Bench of this Court in Vinay Kumar Aggarwal's case (supra) and answer the reference as per para 19 above. We hold that '100 per day, subject to a maximum of '3000/ per annum payable as per the policy circular dated 25, 1996 is restricted only to the period post re entry being effected and is the amount towards damages payable for unauthorized occupation and that the said sum is not towards regularizing a breach in the form of misuse or unauthorized construction.
Smt. Shakuntala Devi Vs. Delhi Development Authority Page no.17/20 7 In view of the aforesaid law laid down in the aforesaid judgment in which the previous judgment of Hon'ble High Court i.e UOI Vs. Vinay Kumar Aggarwal (supra) have been overruled. The contention of ld. counsel for the plaintiff challenging the present appeal is without any substance as it has been held in said judgment, if the re entry was effected in the particular property due to misuse of property or on account of unauthorized construction being made, the revocation thereof on charges payable as per the circular would not mean that the breach stood compounded. Further '100/ per day, subject to a maximum '3,000/ per annum payable as per Policy circular dated June 25, 1996 is restricted only to the period of post entry being effected and is the amount towards damages payable for unauthorized occupation and that the same is not towards regularizing a breach in the form of misuse or unauthorized of construction.
8 The ld. Trial Court has also rightly held relying upon the judgment J.S. Furnishing Co. (P) Ltd. Vs. UOI 185 (2011) DLT 560 Smt. Shakuntala Devi Vs. Delhi Development Authority Page no.18/20 that freehold conversion cannot be claimed as a matter of right. As per policy terms, the application for conversion shall not be entertained during the pendency of dispute and without payment of misuse charges, without petitioner, concluding the litigation and without paying the misuse charges petitioner could not avail of freehold conversion.
9 In view of the said judgment, the freehold conversion of the property by the person applying for the same cannot be claimed as a matter of right, especially when there is a dispute with regard to misuse charges without concluding the said litigation between the principle lessor and without paying the misuse charges.
10 Further, it has been rightly held by ld. Trial Court that the decree u/O 12 Rule 6 CPC on admissions cannot be claimed as a matter of right, the court passing the order under this provision has a discretion to do so and further it has to be shown that the admissions are clear, unequivocal and positive. Since, in the instant case, the ld. Trial Court did not deem it fit to exercise its discretion for passing the decree in Smt. Shakuntala Devi Vs. Delhi Development Authority Page no.19/20 favour of the plaintiff, in these circumstances, this court cannot substitute its own discretion, in place of the discretion exercised by ld.
Trial Court, as a consequence the order under challenge does not suffer for any infirmity or illegality, it has been rightly passed giving cogent reasons in support of the same, as a resultant the present appeal has no merit, same stands dismissed.
TCR be sent back along with a copy of this order.
Appeal file be consigned to record room.
Announced in the open court on 16102014.
(Sanjeev Aggarwal) ADJ (N/W) ROHINI COURTS DELHI:16.10.2014*rk Smt. Shakuntala Devi Vs. Delhi Development Authority Page no.20/20