JUDGMENT
Pradeep Nandrajog, J.
1. M/s. Ram Rakha Mal and Sh. Dewan Chand were the co-lessees each having 50% share in property bearing shop No. 91, Azad Market, Delhi. Inter-alia clauses B and C of the perpetual lease-deed stipulated as under:-
(b) The Lessee shall before any assignment or transfer of the said premises hereby demised or any part thereof obtain from the Lesser approval in writing of the said assignment or transfer and all such assignees and transferees and the heirs of the Lessee shall be bound by all the covenants and conditions herein contained and be answerable in all respects therefore.
(c) The Lessee can transfer the land after obtaining the permission of the Lesser aforesaid and the Lesser will not share any unearned increment in the value of the land (being the difference in the premium paid by him to the Lesser and the market value of the land then prevailing) for permitting such transfer. The Lesser will, however, be entitled to claim and recover the unearned increment in the value of land in the event of any subsequent transfer of the land by a transferee the amount so to be recovered being 50% of the unearned increment in the value of the land.
2. On the basis of a general power of attorney executed in his favor by the lessee(s), Shri Ram Nath Chopra applied to the respondent seeking permission to sell the perpetual lease hold rights in favor of one Shri Munshi Ram. Sanction was granted on 18.1.1973. Sale deed was executed in favor of Munshi Ram and on 8.3.1973 mutation was effected in his favor. Thus, Munshi Ram was accepted as the perpetual lessee of the premises.
3. One Man Mohan Anand S/o Munshi Ram obtained a decree for possession concerning the shop. On the basis of the decree for possession, Man Mohan Anand obtained possession of the shop.
4. Munshi Ram executed a gift deed in favor of his son Anand. Application was moved before the respondent seeking mutation in favor of Man Mohan Anand. Mutation was sanctioned on 18.7.1981. Accordingly, in the record of the respondent Shri Man Mohan Anand was recorded as the perpetual lessee.
5. On 30.10.1998 Shri Man Mohan Anand executed a gift deed in favor of the petitioner. It may be noted that the petitioner is the real brother of Man Mohan Anand. Petitioner applied for mutation of the lease hold rights in his favor vide application dated 7.7.2003. According to the respondent, petitioner being not a class-I heir of his brother could not be treated as his blood relation and accordingly, respondent, vide letter dated 10.6.2004, wrote to the petitioner claiming 50% of the unearned increase in the value of the land. This claim was predicated under Clause-c of the lease deed.
6. According to the respondent, whenever there was a transfer of the perpetual lease hold rights, respondent was entitled to claim and recover up to 50% of the unearned increase in the value of the land. This according to the respondent is the power flowing to it under Clause-c of the perpetual lease deed.
7. It was not in dispute that the respondent has framed guidelines as per which, in certain cases of gift, unearned increase is not to be charged. The respondent is not treating said gifts as transfers. Relevant para of the policy reads as under:-
4. GIFT WHEN NOT TREATED AS TRANSFER FOR RECOVERING UNEARNED INCREASE:
The following two instances of gift of property shall not be treated as transfer and neither unearned increase shall be recoverable nor shall the ground rent revised:-
(i) Gift of properties to the members of one’s own family out of natural love and affection; Family for this purpose shall mean husband/wife, mother, father, son, daughter, grandson/grand daughter as the case may be.
(ii) Gift to a charitable institution subject to its furnishing of a certificate that it has no objection to the accepting of the property in gift.
8. A perusal of the policy guidelines shows that the word ‘family’ is limited to the husband/wife, mother, father, son, daughter, grandson/grand-daughter. Brother is excluded. It is obvious that the policy guidelines intends to restrict the family of the lessee to the immediate next kin. Such of the relations who are related by blood to the lessee, i.e., lessee’s parents, his/her children and grand-children as also husband and wife are included within the family. Inspiration appears to be the concept of class-I heirs under the Hindu Succession Act.
9. But the question arises in relation to the very applicability of clause-c. A perusal of clause-c shows that where, as a result of transfer, lessee gets benefit he must share the same with the Lesser. Rationale is that in Delhi, residential, commercial and industrial plots were allotted at pre-determined rates by various Government agencies. Since the beneficiary get land at a value much less than the market value, in case the lessee traded, Government retained the right to share in the benefit which accrue to the lessee. This rationale was noted and accepted with approval by their Lordships of the Supreme Court in the decisions reported as , DDA v. Vijaya Gursahaney and Anr. Following was observed/noted/held by their Lordships:-
10. The rationale behind the formulation of its policies and guidelines issued by DDA is to curb illegal transactions in favor of persons not of blood relation of the allottee, being practiced rampantly and the property being transferred by an underhand sale in the garb of will and power of attorney etc. DDA has formulated a policy that in such cases the Department would ask for 50% of unearned increase in the value of property. It is always open to the appellants to inquire whether an alleged will is in actuality a sale in the garb of will in total disregard of the policy decision of the authority. Merely because probate/letters of administration are granted, would not preclude DDA from so inquiring. It must be grasped that DDA has been given no notice of the testamentary proceedings. Therefore, it would have no right to appear or oppose such proceedings. As already said, DDA is a creature of the statute and any policy decision or guidelines formulated by such Authority will have a binding effect on the parties, in absence of rules to the contrary.
10. If under the garb of a gift or a will, property is actually conveyed for consideration, transaction would attract unearned increase for none can resort to a strategy to defeat law. However, where gift is out of natural love and affection and there is no consideration flowing from the donee to the donor, the donor not earning anything in the transaction, I fail to understand as to what share would Lesser be entitled to.
11. A learned Single Judge of this Court, S.K. Kaul, J. in the decision reported as , S.K. Bhasin v. DDA, while considering a request by the perpetual lessee in favor of her husband’s nephew, and on noting that the will was an outcome of love and affection, held that being close relations, may be not falling in the category of blood relations as defined by the respondent, unearned increase would not be payable.
12. There is another aspect on facts. Admittedly, Munshi Ram was the perpetual lessee. Petitioner is the son of Munshi Ram. The writ property was gifted by Munshi Ram to his son Man Mohan Anand, i.e., brother of the petitioner. Man Mohan Anand in turn has gifted the same to the petitioner, i.e., his brother. Ultimately, what the petitioner gets is what was, at one stage, belonging to his father.
13. Writ petition accordingly stands disposed of quashing respondent’s letter dated 10.6.2004 demanding unearned increase. Mandamus is issued to the respondent to proceed under the gift deed executed by Man Mohan Anand in favor of the petitioner and on the petitioner completing procedural formalities, to grant the necessary mutation in favor of the petitioner. Needful be done within 12 weeks from today.
14. No costs.