JUDGMENT
B.C. Patel, C.J.
CM No. 3688/2005
Allowed subject to just exceptions.
LPA No.508/2005 & CM No. 3689/2005
1. The appellant Delhi Development Authority has preferred an appeal against the judgment of the learned single Judge in WP(C) No. 5523/2004 dated 25.8.2004. The appeal itself has been filed after delay of 123 days and thus CM No. 3689/2005 has been filed for condensation of delay in filing the appeal. On perusal of the impugned order and the facts recorded therein it is apparent that this appeal is clearly an abuse of the process of law apart from the aspect of delay in filing the appeal.
2. The respondent herein had earlier filed Civil Writ Petition No. 3453/2000 which was allowed by the learned single Judge in terms of the order dated 25.11.2002. However, in view of the pendency of an appeal before the Supreme Court, certain directions were passed while allowing the said writ petition.
3. It is necessary to set out the facts to appreciate the controversy in question. One Smt. Pushpa Kumari Devi, widow of late Dr. Nagendra singh was the perpetual lessee of a plot bearing No.15, Palam Marg, Vasant Vihar, New Delhi, on which a house had been constructed. Dr. Nagendra Singh had predeceased Smt. Pushpa Kumari Devi. Smt. Pushpa Kumari Devi passed away on 11.8.1996 and prior to her demise she had executed a Registered Will dated 24.5.1995 bequeathing the property in favor of the respondent. The couple was issueless and according to the averments made in the writ petition, they used to treat the respondent as their own son and had close family relations for over 30 years. The respondent is stated to have spent his childhood in Europe and was a member of the household of Dr. Nagendra Singh both in Europe and New Delhi.
4. The respondent applied for obtaining Letters of Administration. The respondent also applied to the DDA for mutation of the property in his favor on the basis of the Will, and the appellant DDA vide communication dated 12.12.1996 required the respondent to furnish a number of documents, including certain affidavits to the effect that the property had not passed on to the respondent during the life time of the testator and that no monetary consideration had passed for bequeath. These documents were duly furnished by the respondent, but despite this fact, the appellant was willing to mutate the property in favor of the respondent only subject to payment of 50% unearned increase. This was on the basis that as per the clause of the lease deed in case of any transfer or assignment, 50% unearned increase was chargeable.
5. The Letters of Administration had been obtained in the meantime and the plea of the respondent was that in view of the Will having been probated, no unearned increase could be chargeable. The respondent had also placed reliance on a Division Bench judgment of this Court in Mrs. Vijaya Gursahaney v. DDA and Ors. (1994 RLR 67). The relevant Guidelines on Land Management issued by the appellant were also relied upon by the respondent including Clause 13.13. In terms of the said clause a property could be transferred to a person outside of blood relations on the basis of the Will subject to furnishing of certain documents. These documents were to establish that there was only a bequeath without any consideration. In such a case no unearned increase was chargeable, as in the case of blood relations.
6. Civil Writ Petition No. 3453/2000 was resisted by the DDA on the ground that the judgment of the Division Bench in Mrs. Vijaya Gursahaney” case (supra) had been impugned by filing a Special Leave Petition before the Supreme Court. It was also contended that the Will does not carry a recital that it had been executed out of love and affection, which was the prerequisite for application of Clause 13.13. The said clause reads as under:-
“The property may be transferred to a person outside blood-relation (who is not within the definition of family member(s) on the basis of Will, but the documents as mentioned in following pages are required to be submitted by legatee. No unearned increase is recoverable, if mutation is effected on the basis of Will in favor of the beneficiary(s)/Legatee(s) whether or not he/she is a family member of the testator. However, the Will should be executed in favor of legatee out of love and affection and not for monetary consideration. It is to be declared by the legatee that the property has not passed to him during the life time of the testator. These cases are governed by instructions issued by the legal section of DDA with the approval of L.G.”
7. The learned single Judge while allowing the said writ petition by order dated 25.11.2002 recorded findings in para 8 as under:-
“8. Learned counsel next submitted that the Will in question did not carry any recital to it having been executed for “love and affection”, besides the petitioner was not a relation of the Testator. In these circumstances, Competent Authority was justified in drawing an inference that the Will had not been executed for “love and affection” and had been executed for consideration. I am not impressed with this submission. The petitioner has averred in the petition duly supported by the affidavit the long standing relationship with the Testator and her husband. It has been claimed that the petitioner was treated as a son and had stayed with them, both in India and abroad. In these circumstances, if an issueless couple makes a Will in favor of the petitioner, an inference of the same having been executed for consideration without there being any evidence for the same, is not warranted.”
8. In so far the plea based on the pendency of the Special Leave Petition in Mrs. Vijaya Gursahaney’s case (supra) was concerned, the learned single Judge in para 7 of the judgment recorded as under before recording the findings in para 8:-
“… … … I am not inclined to accede to this prayer, since in my view apart from the aforesaid judgment, the petitioner is entitled to the relief even in terms of the DDA’s own guidelines.”
9. On the issue of the pendency of the matter before the Supreme Court and in view of an application being filed for conversion into freehold the learned single Judge recorded that in order to allay the apprehension of the appellant the learned counsel for the respondent made a concession that the respondent would not press his application for conversion to freehold till the Special Leave Petitions preferred by the appellant were decided by the Supreme Court.
10. The second round of litigation gave rise to Writ Petition (Civil) No. 5523/2004 which has been decided in terms of the order dated 25.8.2004. The occasion for the same was that the appellant DDA still did not take any action in pursuance of the judgment dated 25.11.2002 in CW No. 3453/2000 in view of the caveat added therein in respect of the appeal in Mrs. Vijaya Gursahaney’s case (supra). The appeal was ultimately allowed by the Supreme Court in Delhi Development Authority v. Mrs. Vijaya C. Gurshaney and Anr. .
11. In our considered view, the learned single Judge in the impugned order has rightly noted that there was a dual plea raised by the respondent herein in the earlier writ petition, being CW No. 3453/2000 based on the Letters of Administration as also the absence of any consideration forming the basis of the bequeath. The respondent succeeded on both the heads of challenge. However, the additional plea recorded by the learned single Judge was the Division Bench judgment in Mrs. Vijaya Gurshaney’s case (supra). It is stated before us today that the mutation already stands carried out in favor of the respondent herein. In our considered view, it would make no difference to the matter in hand in view of the subsequent judgment of the Supreme Court in Delhi Development Authority v. Mrs. Vijaya C. Gurshaney and Anr. (supra). The basis of the Supreme Court judgment is that where there is a transaction of transfer camouflaged in the form of a Will, eunearned increase would be liable to be paid, even if Letters of Administration were obtained. In fact, this is the very basis of the Guideline 13.13. However, the learned single Judge while deciding the earlier writ petition had clearly recorded that the Will in favor of the respondent was without consideration. It was the reverse position before the Supreme Court, and the object was to curb illegal transactions under the garb of agreement to sell, Will, power of attorney etc.
12. It may also be noticed that the DDA itself has issued circulars and policy in respect of conversion into freehold whereby even where unearned increase has been paid and document has not been registered, unearned increase is liable to be refunded and only the charges for conversion into freehold are to be paid albeit 33% extra in case of a power of attorney transaction. This is in terms of DDA’s circular dated 23.6.1995 which is as under:-
“DELHI DEVELOPMENT AUTHORITY (CO-ORDINATION BRANCH/LANDS) 95/Coordn/Land Disposal Dt. 23.6.1995
Sub: Conversion of lease hold tenure of land into free hold to deal with cases connected with sale permission etc.
In pursuance of Govt. of India, Ministry of Urban Development letter No.1101017/26/93-LD dt.23.10.93 and No. J-20011/12/III dt.16.5.94 regarding conversion of lease hold tenure of land into free hold in cases connected with earlier sale permission etc., the matter has been examined in detail and the following decisions have now been take to dispose of all such pending cases.
ISSUES DECISIONS
(i) Where lessee / sub (i) & (ii) lessee has applied for In such cases, conversion may sale permission, but be allowed by treating the DDA has not conveyed earlier application for sale the unearned Increase. permission as infructuous /withdrawn.
(ii) Where lessees / sub-lessee has applied for sale Permission and DDA has conveyed unearned increase, but the same has not been paid.
(iii) Where lessee / sub (iii) The amount of unearned lessee has applied for increase / sub-lessee with sale permission and DDA reference to sale permission has conveyed unearned would be refundable if the increase and the same original lessee / sub-lessee has has been paid in full or applied for conversion and he / partly by the lessee but she is in physical possession of the sale deed has not been the property in question registered.
(iv) Where all the action (iv) Conversion to freehold as mentioned above have may be allowed after carrying been completed including out mutation with reference to registration of sale deed. sale deed executed by the lessee and after Realizing prescribed conversion charges.
This issues with the approval of Vice-Chairman, DDA.
(K.C. SAXENA)
JT. DIR (CO ODN) LANDS”
This circular dealt with the issue of conversion of leasehold tenure of land into freehold in cases of land connected with sale permission. In terms of this circular where a lessee / sub-lessee has applied for sale permission, but DDA has not conveyed unearned increase or has conveyed unearned increase, but the same has not been paid, the conversion applications are to be allowed by treating the earlier application for sale permission as infructuous / withdrawn. Not only this, where the DDA has conveyed unearned increase and the same has been paid partly or fully by the lessee / sub-lessee, but sale deed has not been registered, the amount of unearned increase would be refunded if the original lessee / sub-lessee has applied for conversion and he/she is in physical possession of the property in question.
13. This circular dated 23.06.1995 was further clarified by a letter dated 16.05.1994 clearly stating that in cases where demand has already been raised and the parties have already applied for conversion, the demand raised earlier would stand withdrawn and conversion allowed to the applicants on payment of conversion fee plus surcharge, if applicable without insisting on payment of unearned increase. The said letter dated 16.05.1994 is as under :-
“5) It has already been clarified that in cases where demand had already been raised/is under issue and party applied for conversion, the demand raised earlier would stand withdrawn and conversion allowed to the applicants on payment of conversion fee plus surcharge, if applicable, without insisting on payment of unearned increase.”
The aforesaid circulars have been considered in a judgment of this Court in H.R. Vaish v. UOI and Ors. .
14. The learned counsel for the appellant was not in a position to point out any material from the record to show that an inference can be drawn that it was not a case of Will out of genuine love and affection, but a case of sale or mortgage or any other such transaction which would invite unearned increase. In the absence of the same it was not even open to the DDA to state before this Court that it was a transaction of sale and not a Will. In fact, the whole concept of payment of unearned increase has been diluted by the DDA itself in view of the aforesaid circular.
15. We are of the considered view that there is no error committed by the learned single Judge in arriving at the conclusion.
16. It may be noted that there is a delay of 123 days in preferring this appeal and the Lieutenant Governor was also constrained to observe that there is unreasonable delay and gave a caution to the officers to adhere to the time limits. We hope that in future the appellant DDA will strictly follow the law of limitation and the caution administered by the Lieutenant Governor.
17. There is no merit in this appeal and the applications. We dismiss the same with cost of Rs. 10,000/- to be deposited with the Delhi High Court Legal Services Committee.