Delhi High Court
Dr. Vikram Hingorani And Ors. vs Union Of India And Ors. on 27 January, 2021
Equivalent citations: AIRONLINE 2021 DEL 685
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:29.01.2021
09:15:10
$~27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 27th January, 2021
+ W.P.(C) 7452/2019
DR. VIKRAM HINGORANI AND ORS. ..... Petitioners
Through: Dr. Aman Hingorani, Advocate. (M:
9971288116)
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr. Manish Mohan, CGSC with Ms.
Manisha Saroha, Advocate for R-1 &
R-2.
Mr. Santosh Kumar & Mr. Vikram
Saini, Advocates for R-3.
(M:9999021461)
Mr. Amarendra Choubey, Advocate
for R-4.
Mr. B. L. Wali, Advocate for R-5.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J.(Oral)
1. This hearing has been done in hybrid mode (physical and virtual hearing).
CM APPL. 52813/2019 (for condonation of delay)
2. This is an application for condonation of 54 days' delay in filing the counter affidavit. For the reasons stated in the application, the delay is condoned. Application is disposed of.
W.P.(C) 7452/2019, CM APPLs. 31038/2019 (for stay), & 26100/2020 (for vacation of stay)
3. The Petitioners in the present case, along with Respondent No.6 are Signature Not Verified Digitally Signed By:PRATHIBA M SINGH W.P.(C) 7452/2019 Page 1 of 13 Signing Date:28.01.2021 22:11 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:29.01.2021 09:15:10 50% owners of property bearing No.13, Main Road, West Patel Nagar, New Delhi (hereinafter, "suit property"). The other 50% is owned by Respondent Nos.3 and 4 i.e., Mr. Gautam Tahilramani and Mr. George R Tahilramani. The case of the Petitioners is that the L&DO is not mutating the suit property in their name, leading to the filing of the present writ petition.
4. This case has a long and chequered history. Without going into too many historical facts, suffice it to say, that the Petitioners and Respondent No. 6 are the legal heirs/representatives of Late Mr. H. B. Hingorani, who is the original owner of the suit property. Respondent Nos.3 and 4 are the legal heirs of Late Mrs. Sati Ramchand Tahilramani, who is the daughter of Late Mr. H. B. Hingorani. Sometime in 1998, Late Mrs. Sati Ramchand Tahilramani is alleged to have entered into a collaboration agreement with one M/s Pushpa Builders to raise construction upon the entire suit property. M/s Pushpa Builders in turn put Kotak Mahindra Bank (earlier known as ING Vysysa Bank) in possession of the ground floor of the suit property. Thus, a long drawn litigation ensued between the builder, the bank and all the legal heirs of the two owners.
5. A suit came to be filed by the Petitioners against the builders and various other Defendants seeking delivery of the legacy/share in the suit property as also partition, injunctions and rendition of accounts. A final decree of partition was recorded in the said suit on 24th April, 2008 in Suit No.364/2004 titled Dr. Vikram Hingorani & Ors. v. Mr. Mohan Hingorani & Ors., wherein the following agreement was arrived at:
"(a) That the share of the Plaintiffs and the Defendant Nos. 1 to 3 in the suit land on which the Signature Not Verified Digitally Signed By:PRATHIBA M SINGH W.P.(C) 7452/2019 Page 2 of 13 Signing Date:28.01.2021 22:11 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:29.01.2021 09:15:10 superstructure shall be as follows:
The Plaintiff Nos. 1 to 3 = 1/6 share The Plaintiff Nos. 4 to 6= 1/6 share The Defendant No. 1= 1/6 share The Defendant Nos. 2 and 3 = 1/2 share
(b) That the existing superstructure has been partitioned by metes and bounds as under:
Defendant No. 2 and 3: Basement, Second Floor, Terrance with terrace rights upto the sky Defendant No.1: A and B Type Flats on the First Floor Plaintiff No.1: D Type Flat on First Floor. Plaintiff No.2: B Type Flat on Ground Floor Plaintiff No.3: D Type Flat on Ground Floor Plaintiff No.4: C Type Flat on First Floor Plaintiff No.5: C Type Flat on Ground Floor Plaintiff No.6: A Type Flat on Ground Floor
(c) That the open spaces in the front and rear at the ground floor and the driveways will be jointly owned by the Plaintiffs only, and do not constitute the common areas of the building. The Defendant No.2 and 3 shall have the right to access their portion of the suit property from the main gate and through the side entrance on the ground floor without any hindrance.
The Plaintiffs and the Defendant No.1 shall have the right to have tanks/satellite/ dish/cable TV/antenna etc installed on the terrace and shall have access thereto without any hindrance for the purpose of installation, replacement and maintenance of such Items only.
(d) That should the Defendant Nos. 2 and 3 wish to construct, the terrace, the Plaintiffs will have no objection to such construction subject to such construction being legally permissible and subject to such construction not causing any damage whatsoever to the building and/or the portions of the Plaintiffs and Defendant No. 1 so partitioned by metes and bounds. In case of such construction, the Defendant Nos, 2 and Signature Not Verified Digitally Signed By:PRATHIBA M SINGH W.P.(C) 7452/2019 Page 3 of 13 Signing Date:28.01.2021 22:11 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:29.01.2021 09:15:10 3 will, at their cost, provide/shift the water tanks/satellite dish/cable TV/antenna etc of the Plaintiffs and the Defendant No. 1 onto the terrace of such construction and provide the Plaintiffs and the Defendant No. 1 access to such terrace without any hindrance for the aforesaid purpose. While the Plaintiffs shall provide the convenient space on the ground floor for Installation of water motor/meter of the Defendant No. 2 and 3, such installation would not entitle the Defendant No. 2 and 3 to construct any underground water tank in the premises.
(e) That a 4 feet wide gate shall be constructed by the Defendant Nos. 2. and 3 at their expense on the right end corner of the rear boundary wall. Should the Defendant No. 2 and 3 need to keep any construction material on the premises, such construction material shall be kept only temporarily on the rear side of the building and if such construction material remains unutilised for a period of three months, the construction material will be removed immediately from the premises by the Defendant Nos. 2 and 3 at their cost. The Defendant No. 2 and 3 shall, at all times, ensure that no damage is caused to the rear side of the building by their construction material and should there be any damage, the Defendant Nos. 2 and 3 shall immediately restore the damaged premises to the original condition at their cost.
(f) That the main staircase and the existing lift shaft shall remain the common areas of the building.
(g) That should any of the Plaintiffs or Defendant Nos. 1 to 3 wish to install a lift in the lift shaft within the existing provision, he/she can do so at his/her own expense, provided that
(i) such lift will also become part of the common area of the building along with the lift shaft Signature Not Verified Digitally Signed By:PRATHIBA M SINGH W.P.(C) 7452/2019 Page 4 of 13 Signing Date:28.01.2021 22:11 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:29.01.2021 09:15:10
(ii) the party installing the lift will ensure that there are suitable and accessible openings of the lift and lift shaft on each floor of the building
(iii) the party installing the lift will ensure the installation of such lift is duly sanctioned by the competent authorities and is run/maintained under a valid and subsisting licence
(iv) each Plaintiff/Defendant No. 1 to 3 can use the lift; and that
(v) the party installing the lift at his/her expense, will not claim/charge any expense or cost from the other parties for using the lift, whether it be towards installation, maintenance, user charges, taxes or for any other purpose.
(h) That all proceeds/monies/mense profits/damages from the suit property upto 18.3.2008 will be divided between the Plaintiffs and the Defendant Nos. 1 to 3 as per the following shares:
The Plaintiff Nos. 1 to 3 =1/6 share The Plaintiff Nos. 4 to 6 = 1/6 share The Defendant No. 1 = 1/6 share The Defendant Nos. 2 and 3 = 1/2 share As of 18.3.2008 onwards, the Plaintiffs and the Defendant Nos.1 to 3 will be entitled to proceeds/monies/mense profits/damages proportionate to their respective portions of the suit property so partitioned by metes and bounds.
(i) That each Plaintiff/Defendant Nos. 1 to 3 will be entitled to apply and obtain from the competent authorities mutation and/or freehold conversion in their individual names of their respective portions of the suit property so partitioned by metes and bounds.Signature Not Verified Digitally Signed By:PRATHIBA M SINGH W.P.(C) 7452/2019 Page 5 of 13 Signing Date:28.01.2021 22:11 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:29.01.2021 09:15:10
There will be no requirement of obtaining NOC from each other for such purpose.
(j) That each Plaintiffs/Defendant Nos. 1 to 3 will be entitled to alienate or sell their respective shares in the suit property/portions of the suit property so partitioned by metes or bounds.
(k) That the transferee/vendee of each Plaintiff/Defendant Nos. 1 to 3 will be bound by the terms of the oral family settlement of 18.3.2008. It is open to each Plaintiff/Defendant Nos. 1 to 3 to act in the terms of the oral family settlement of 18.3.2008 through their lawful attorney/agent."
6. As per the said family settlement/partition deed, various shares of the parties were spelt out and a decree was passed on 24th April, 2008. As per the family settlement, the Petitioners and Respondent No.6 were given their undivided share in the land and also the super-structure. The possession decree was, thereafter, passed on 15th January, 2013 putting the Petitioners in possession. The Supreme Court, vide order dated 25th April, 2018 in SLP (C) Nos. 8694-8699/2014 titled Kotak Mahindra Bank Ltd. v. Dr. Vikram Hingorani & Ors. upheld both the decree of partition and the decree of possession in the following terms:
" Heard Mr. Shekhar Naghade, learned senior counsel for the petitioner and Mr. C.A. Sundaram, learned senior counsel appearing for respondent nos.1 to 6.
In our considered opinion, this is not a fit case for interference under Article 136 of the Constitution of India.
The Special Leave Petitions are accordingly dismissed.
However, having regard to the status of the Signature Not Verified Digitally Signed By:PRATHIBA M SINGH W.P.(C) 7452/2019 Page 6 of 13 Signing Date:28.01.2021 22:11 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:29.01.2021 09:15:10 petitioner, time is granted till end of December 2018 to vacate the premises in question failing which the concerned authorities of the bank shall be liable for contempt of this Court.
Vide order dated 15.04.2014, while issuing notice, it was directed that the petitioner shall deposit before the trial court compensation for the use and occupation of the premises @ R.2,00,000/- per month with effect from the date of the impugned order. The amount so deposited was to be invested in a term deposit which was to enure for the benefit of the successful party.
In view of the order passed today, the abovementioned amount along with accrued interest is now directed to be released in favour of respondent nos.1 to 6 (plaintiffs before the trial court) As the petitioner has been granted time to vacate the premises till end of December 2018, it shall continue to pay the use and occupation charges at the abovementioned rate to respondent nos.1 to 6 till the vacation of the premises. Pending applications, if any, stand disposed of."
7. The Petitioners, thereafter, sought mutation of their names in respect of their share in the suit property. However, the L&DO took the stand that the property had been re-entered due to misuser, whereas, clearly, the said order of re-entry already stood withdrawn, as recorded on 3rd March, 2006 in W.P. (C) 3182/2006 titled ING Vysya Bank Ltd. v. UOI & Ors. The mutation application, however, continues to remain pending. Hence, the present writ petition.
8. The prayer sought in the present writ petition reads as under:
"(a) issue appropriate Writ, Direction and Order setting aside/quashing the Rejection Letter for Signature Not Verified Digitally Signed By:PRATHIBA M SINGH W.P.(C) 7452/2019 Page 7 of 13 Signing Date:28.01.2021 22:11 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:29.01.2021 09:15:10 Mutation No. L&DO/PS3/62952/389 dated 03.05.2019 issued by Deputy Land & Development Officer rejecting the mutation application of the Petitioners in respect of their share in Property No. 13, Main Road, West Patel Nagar, New Delhi;
(b) issue an appropriate Writ, Direction and Order setting aside/quashing the Mutation-cum-Substitution letter No. L&DO/PS-III/195 dated 02.02.2005 pertaining the lease hold rights in respect of Property No. 13, Main Road, West Patel Nagar, New Delhi in the names of the Respondent Nos. 3 and 4;
(c) issue a Writ of Mandamus directing the Respondent Nos. 1 to 2 to mutate/substitute such lease hold rights in respect of Property No. 13, Main Road, West Patel Nagar, New Delhi in favour of the Petitioners in terms of the final decree of partition dated 24.04.2008 with Exhibit C 1 passed by the Court of Shri N K Sharma, A.D.J., Tis Hazari Courts, Delhi in Suit No. 364/2004;
(d) issue a Writ of Prohibition restraining the Respondent Nos. 3 and 4 and all persons claiming under them from acting on the Mutation-cum-
Substitution letter No. L&DO/PS-III/195 dated 02.02.2005;
(e) issue a Direction to the Respondent No. 5 to pay the misuse or other charges for breach of lease deed terms, if any, levied by the Respondent No, 1 and 2;
(f) award costs of this Petition to the Petitioners; and
(g) pass any other Orders as may be deemed fit and proper."
9. Mr. Manish Mohan, ld. CGSC appears for Respondent Nos.1 and 2. Counter affidavit has been filed on behalf of Respondent Nos.1 and 2. The stand taken by Respondent Nos.1 and 2 i.e., the L&DO is that the mutation would be effected insofar as Respondent Nos.3 and 4 are concerned, only Signature Not Verified Digitally Signed By:PRATHIBA M SINGH W.P.(C) 7452/2019 Page 8 of 13 Signing Date:28.01.2021 22:11 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:29.01.2021 09:15:10 once the outstanding Government dues are paid by them. The relevant portions of the affidavit of the L&DO is set out below:
"9. That a letter dated 04.06.2012 was received from Sh. G.T. Ramani wherein they have stated that no space is occupied by any company for commercial use, only ING Vysya Bank is operating on the ground floor and also stated that all the construction has been made as per plan approved by MCD. They have also requested to inspect the premises and ready to pay the charges for withdrawal of re-entry. However, no Sanctioned Building Plan/ any other documents were furnished by the Respondent No. 3 & 4. Therefore, terms for withdrawal of re-entry could not be offered to them, and withdrawal of re-entry order to Respondent No. 3 & 4 could be issued only on the recovery of all outstanding Government dues from Respondent No. 3 & 4 and Respondent No. 5. Thereafter, no communication was received from Respondent No. 3 & 4. xxx
11. That thereafter, inspection notice was issued on 14.01.2019 for inspection of the premises on 21.01.2019. In response, Respondent No. 3 requested for another date. Another notice was issued on 24.01.2019 for inspection of the premises on 04.02.2019. Technical team of this office visited the site on 04.02.2019 and found the breaches of unauthorized construction. Breach notice was issued on 12.03.2019 to the Respondent No. 3 & 4. However, as per procedure of this Office, conversion / mutation / substitution or any request of the Respondent No. 3 & 4 can be taken up / considered only after the withdrawal of re-entry qua them and withdrawal of re- entry can be done only on the recovery of all outstanding Government dues from Respondent No. 3, 4 & 5. Thereafter, mutation application of the Petitioners was rejected on 03.05.2019.Signature Not Verified Digitally Signed By:PRATHIBA M SINGH W.P.(C) 7452/2019 Page 9 of 13 Signing Date:28.01.2021 22:11 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:29.01.2021 09:15:10
12. That as per policy and procedure of the Answering Respondent, until the re-entry is withdrawn qua Respondent No. 3 & 4, no action for conversion / mutation at their request can be taken up, and re-entry can be withdrawn only after recovery of all outstanding Government dues from Respondent No. 3 to 5. As per High Court order dated 03.03.2006, the Hon'ble Court directed the Respondent No. 5 to appear before Sh. A. Bhattacharya on 08.03.2006 who would proceed after that at his convenience. Hearing was provided and the Bank stated that they would submit documents including Sanctioned Building Plan. But the documents have never been submitted in the office of Answering Respondent. Further, although the Respondent No. 3 & 4 submitted their compromise to pay the charges but no Sanctioned Building Plan / documents have ever been submitted by them.
13. That the re-entry order dated 06.02.2006 was issued to the Respondent No. 3 & 4 and not to the Bank as the Bank was not a recorded lessee. The bank filed the writ petition and the Hon'ble Court disposed of the writ vide order dated 03.03.2006 directing the Land and Development Office (Mr. A.R. Bhattacharya, Deputy Land and Development Officer) to give a personal hearing to the Bank on 08.03.2006 and proceed thereafter at his convenience and also stated in the order that re-entry order stood withdrawn. It is understood that the re-entry order stands withdrawn against the Bank who filed the writ for the relief regarding re-entry order but re-entry order was issued to the Respondent No. 3 & 4 only and not, to the Bank by the Answering Respondent. Hence, no action of withdrawal of re-entry was taken by the Answering Respondent qua the Respondent No. 3 & 4 with respect to their portion of the property. Therefore, the re-entry order issued to the Respondent No. 3 & 4 still stand qua their portion of the property still stands and can be withdrawn only on recovery of all the outstanding Signature Not Verified Digitally Signed By:PRATHIBA M SINGH W.P.(C) 7452/2019 Page 10 of 13 Signing Date:28.01.2021 22:11 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:29.01.2021 09:15:10 Government dues from Respondent No. 3 to 5. xxx V. That in this regard, the reply as stated in paras 8, 13 and 14 of the Preliminary Objections may be referred for reply to this para. It is also stated that the property stands re-entered which means the rights and title of the Respondent No. 3 & 4 in the property, have been suspended."
10. A perusal of the above affidavit shows, therefore, that there are no charges which are being imposed upon the Petitioners or Respondent No.6. Ld. counsel appearing for Respondent Nos.3 and 4 - Mr. Santosh Kumar takes the position that since, under the deed of partition, the ground floor falls in the share of the Petitioners, the conversion/misuser charges should be paid by them. He further relies upon the letter of the MCD dated 21st October, 1999, as per which misuser charges to the tune of Rs.2,24,784/- would be liable to be paid. It is his submission, therefore, that since the ground floor falls in the share of the Petitioners, they should bear the misuser/conversion charges. Dr. Aman Hingorani, ld. counsel, however, submits that the stand of the bank is that it has paid the conversion/ misuser charges.
11. Insofar as the present petition is concerned, the decree of partition and consequent possession of the Petitioners, has attained finality in view of the order of the Supreme Court. The shares of the various parties have also been determined. Clauses (i) and (j) of the Settlement make it clear that the parties are free to seek mutation/substitution in their names as also conversion from leasehold to freehold, without any further NOC from the other parties. As per the affidavit of the L&DO, the only claim of the L&DO is in respect of the Government dues from Respondent Nos. 3 to 5. As per Signature Not Verified Digitally Signed By:PRATHIBA M SINGH W.P.(C) 7452/2019 Page 11 of 13 Signing Date:28.01.2021 22:11 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:29.01.2021 09:15:10 Dr. Aman Hingorani, ld. counsel, there are no dues being claimed qua the Petitioners in the counter affidavit. The stand of Respondent Nos.3 and 4 in respect of their own charges for mutation in their name is not the subject matter of the present writ petition. Respondent Nos.3 and 4, if they wish to get any mutation done, would have to take steps in accordance with law with the L&DO. Needless to add, the long drawn litigation due to the collaboration agreement and the bank being put in possession has caused sufficient frustration and difficulties to the Petitioners and Respondent No.6. The Petitioners cannot be made to bear the brunt of the conduct of Respondent Nos.3 and 4 or their predecessor/s in any manner whatsoever.
12. The stand of the L&DO being quite clear, there is no impediment in directing the mutation to be carried out in favour of Petitioners No.1 to 6 and Respondent No.6 in terms of the final partition decree dated 24th April, 2008. Admittedly, the Petitioners have been put in possession only on 8th December, 2018, following the judgment of the Supreme Court pursuant to which the Local Commissioner ultimately took possession of the suit property. Thus, the Petitioners cannot be made to pay any misuser charges for which they are not responsible. Insofar as conversion charges from leasehold to freehold are concerned, if any of the said charges fall in the share of the Petitioners, they would be liable to pay the same, in terms of the settlement.
13. In view of the above, Respondent Nos.1 and 2 are directed to mutate/ substitute the lease hold rights in the suit property bearing No.13, Main Road, West Patel Nagar, New Delhi, in favour of the Petitioners in terms of the final decree of partition dated 24th April, 2008 (with Exhibit C1).
14. Respondent Nos.3 and 4 shall not create any impediment whatsoever Signature Not Verified Digitally Signed By:PRATHIBA M SINGH W.P.(C) 7452/2019 Page 12 of 13 Signing Date:28.01.2021 22:11 Signature Not Verified Digitally Signed By:DINESH SINGH NAYAL Signing Date:29.01.2021 09:15:10 in the mutation and substitution taking place in favour of the Petitioners. If there are any misuser charges which are liable to be paid, in terms of the counter affidavit filed by the L&DO, it is free to proceed as per its counter affidavit, in accordance with law. In terms of clause (j) of the Settlement, parties are free to alienate or sell their respective shares in the suit property/portions of the suit property so partitioned by metes or bounds. All parties shall be bound by the terms of the Settlement and shall adhere to the same.
15. With these observations, the present petition along with all pending applications, is disposed of.
PRATHIBA M. SINGH JUDGE JANUARY 27, 2021 dj/T Signature Not Verified Digitally Signed By:PRATHIBA M SINGH W.P.(C) 7452/2019 Page 13 of 13 Signing Date:28.01.2021 22:11