Delhi High Court
Smt. Usha Lata Sood vs Delhi Development Authority on 11 February, 2003
Equivalent citations: 2003VIIAD(DELHI)245, 105(2003)DLT219, 2003(68)DRJ94
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Sanjay Kishan Kaul, J.
1. A perpetual sub-lease deed was executed on 23rd November 1971 in favor of Major Rameshwar Sahai and Smt. Sushil Kumari in respect of plot No. 29, Street No. D-1, Vasant Vihar, Site No. B, Govt. Servants Coop. Society, plot measuring 767 sq.yds. which sub-lease deed was duly registered.
2. The sub-lessees entered into a transaction in respect of the property in question and on account of certain disputes, the matter was referred to arbitration. The arbitrator made and published an award on 30th December 1981 in terms whereof it was held that the property stood sold to the petitioner who was declared the owner of the property in question. The award was made rule of the court on 5th April 1982 and was duly registered.
3. The petitioner volunteered to pay the unearned increase but the respondent threatened to cancel the sub-lease deed in view of the transfer having taken place without prior permission obtained in writing of the Lesser. The petitioner filed a suit for declaration and permanent injunction in May 1983 against the DDA and the original sub-lessees which suit was decreed on 8th March 1994. In terms of the decree, respondent/DDA was restrained from cancelling the sub-lease deed and was directed to transfer the plot in favor of the petitioner after accepting 50% unearned increase on rates prevalent in December 1981. The society was also directed to enroll the petitioner as one of the members. The petitioner on 11th April 1994 gave notice to the respondent with a copy of the judgment and decree calling upon the respondent to intimate the unearned increase but no intimation was received.
4. On 21st December 1999 a scheme was floated for conversion of leasehold property into freehold. In fact, the scheme was earlier floated but was extended on the said date to plots of area of more than 500 sq. yds. The petitioner deposited the conversion fee as also 33% extra assuming that it was a power of attorney transaction. This extra amount deposited was to the tune of Rs.1,87,437. The conversion, however, did not take place.
5. On 2nd February 2001 for the first time, the petitioner was informed that he was liable to pay a sum of Rs.7,91,029 being 50% unearned increase in terms of the judgment and decree dated 8th March 1994. This amount was deposited by the petitioner on 14th February 2001. The matter, however, did not rest at this and on 24th January 2002, a further demand on account of interest amounting to Rs.26,87,521 was raised on the petitioner being the interest on 50% unearned increase. It may be noted that there was no such provision for payment of interest in terms of the judgment and decree dated 8th March 1994.
6. The petitioner has filed the present petition seeking quashing of this demand of interest, conversion of leasehold rights into freehold and for execution of conveyance deed, refund of 50% unearned increase paid or in the alternative refund of 33.33% of the surcharge amount paid for conversion.
7. The factual matrix is not disputed in the counter-affidavit filed by the respondent. However, in so far as the claim of the petitioner for refund of the unearned increase deposited by him is concerned, learned counsel for the petitioner has referred to the circular dated 23rd June 1995 to contend that the said amount is liable to be refunded only in cases where original lessee/sub-lessee has applied for conversion. The relevant portion is as under:
(iii) Where lessee/sub-lessee has applied for sale permission and DDA has conveyed unearned increase and the same has been paid in full or partly by the lessee/sub-lessee but the sale deed has not been registered.
(iii) The amount of unearned increase deposited by the lessee/sub-lessee with reference to sale permission would be refundable if the original lessee/sub-lessee has applied for conversion and he/she is in physical possession of the property in question.
8. Learned counsel for the petitioner, on the other hand contends that the respondent cannot retain both the unearned increase and the 1/3rd of the surcharge. This is so since if unearned increase is accepted, the petitioner becomes the sub-lessee in pursuance to the judgment and decree dated 8th March 1994 and there would be no question of charging of the surcharge in that case.
9. I am in agreement with the submission of the learned counsel for the petitioner in this behalf. The claim of the respondent is that the unearned increase is not liable to be refunded since it was not the original lessee/sub-lessee who was seeking conversion. Admittedly, the unearned increase has been paid. The question of payment of interest would not arise since there is no such provision made in the decree which directed the payment of the said unearned increase and the mutation in favor of the petitioner.
10. There is also another aspect of the matter. The petitioner asked the respondent immediately after the decree on 11th April 1994 to communicate the unearned increase. This was communicated only on 2nd February 2001 after a lapse of almost seven years. The petitioner can hardly be blamed for the inaction of the respondent. Even in the said letter, no demand of interest was made and the demand of interest is clearly an after-thought in terms of the letter dated 24th January 2002. The demand is contrary to the judgment and decree dated 8th March 1994 and the said demand is, thus, liable to be quashed.
11. In view of the petitioner having paid the unearned increase, there would be no question of payment of the 1/3rd surcharge for conversion into freehold as the petitioner becomes the authorised sub-lessee and the petitioner is liable to be refunded back the surcharge.
12. In view of the aforesaid, a writ of mandamus is issued quashing the demand of interest raised by the respondent vide letter dated 24th January 2002 and the respondent is further directed to refund the surcharge amount of 1/3rd amounting to Rs.1,87,437 to the petitioner within a period of 4 weeks from today. In case of any delay in refund, the respondent shall be liable to pay interest at the rate of 18% per annum from today.
13. A writ is also issued directing the respondent to execute the conveyance deed in respect of plot No. 29, Street No. D-1, Vasant Vihar, Site No. B, Govt. Servants Coop. Society, plot measuring 767 sq.yds. in favor of the petitioner and on the petitioner completing the necessary formalities, the same should be registered in accordance with law. The needful be done by the respondent within a period of two months from today.
14. Parties are left to bear their own costs.
15. dusty to the parties.