JUDGMENT
Vikramajit Sen, J.
1. The question that has arisen in these petitions is whether the Land & Development Office (L&DO) is competent to reject the Petitioners’ applications for conversion of their leasehold properties to freehold. This assault has not been raised for the first time and a number of decisions have already been pronounced by Single Benches and also the Division Bench of this Court. These decisions have reviewed the Policy publicised by the L&DO itself. The paradox is that the lower staff of that Department resolutely refuse to implement the Policy of the highest echelons of the Government. The other dimension is the Respondent’s repeated refusal to abide by Judgments of the High Court; it is no defense that a Special Leave Petition has been filed, since their Lordships have declined to interdict the operation of the Judgment of the Division Bench of this Court in Union of India v. Vinay Kumar Agarwal .
2. The salient features of the policy of conversion of property from leasehold into freehold are to be found in the Brochure of that very name published in June, 2003 by the Government of India, Ministry of Urban Development and Poverty Alleviation, Land and Development Office. The clauses thereof which are germane to the present controversy are extracted for facility of reference:-
11. WHETHER CONVERSION WILL BE GRANTED EVEN IF THERE IS A MISUSE OF THE PROPERTY?
Yes, Conversion will be granted even where a portion of residential property is being put to Non residential use, subject to payment of misuse charges, whether earlier demanded or not.
12. WHETHER CONVERSION WILL BE
GRANTED EVEN IF THERE IS UNAUTHORISED CONSTRUCTION?
Conversion will be granted to the leasehold properties even if there is unauthorised construction, subject to payment of damages charges, whether earlier demanded or not. However the applicant will be liable for action under Municipal Bye-Laws.
The conversion to freehold in the presence of misuse/unauthorised construction does not act as a waiver of any action which is liable to be taken under the building bye-laws by the Local Body.
13. IF PAST MISUSE AND UNAUTHORISED CONSTRUCTION WERE TAKEN CONGNIZANCE OF BY THE Lesser HOW THESE CASES WILL BE HANDLED?
In respect of these properties where any amount earlier claimed by the Lesser and not paid by the lessees will have to be paid before the application for conversion can be considered. In respect of those properties where misuse and/or unauthorised construction exists, conversion may be allowed only after recovering the misuse charges and/or damages charges, irrespective of whether earlier demanded or not.
14. WHETHER CONVERSION WILL BE GRANTED IF THERE IS ENCROACHMENT ON GOVERNMENT/PUBLIC LAND?
No. Conversion to freehold shall not be permitted in respect of a property involving encroachment on Government/ Public land.
15. WHETHER CONVERSION WILL BE GRANTED IF THERE IS A DISPUTE BETWEEN THE Lesser AND LESSEES ABOUT PAYMENT OF CERTAIN DUES?
No, Conversion will not be granted unless any pending dispute including for payment of certain dues in respect of leasehold premises between the Lesser and lessee is resolved.
16. WHETHER APPLICATION FOR CONVERSION CAN BE GIVEN DURING THE PENDENCY OF SUBSTITUTION/MUTATION?
Applications can be given by the person/persons on whose names the substitution/mutation will have to be carried out. However, these applications will be considered only on disposal of pending substitution/mutation case. On disposal of substitution/mutation case, if it is found that the substitution/mutation is carried out on the name of the same person/persons who applied for conversion, the same application will be taken into account. Otherwise the conversion application will be rejected.
20. ON WHAT GROUND THE CONVERSION
APPLICATION WILL BE REJECTED?
The Conversion application will be rejected on any of the following grounds :-
20.1 When the lease stood determined/cancelled or the property stood re-entered.
20.2 When there is a pending litigation about the title of the property.
20.3 When there is a pending litigation between the lessee and Lesser.
20.4 When the property is mortgaged and No Objection Certificate for conversion obtained from the mortgagee is not enclosed with the application.
20.5 When the application is signed by a person who is not eligible to apply for conversion.
20.6 If the applicant is a General Power of Attorney holder and the conversion is to be granted in favor of the purchaser and if there is no documents to evidence the transaction in favor of the purchaser.
20.7 When the applicant is holder of Power of Attorney and the conversion is to be granted in favor of the purchaser and there is no evidence produced in support of the possession of the premises with the purchaser.
20.8 When the allottee of the plot did not complete the construction of the building and does not produce any evidence in this regard.
20.9 When the charges payable under different heads mentioned in the application forms are not fully paid.
20.10 If the property involves encroachment on public land/Government land.
20.11 When the application is incomplete.
3. The extant Policy has not been assailed by any party and therefore this Court is not called upon to reflect on its reasonableness or legal propriety. However, even if an assault had been mounted against it and a judicial review was to be undertaken, I would find in favor of the Policy since it does not manifest any of the hues of Wednesbury unreasonableness. Properties in the metropolis have already virtually moved out of the hands of the Government because of the execution of long term leases, majority of which have a tenure of 99 years. The rents are so nominal that even administrative costs may not be recoverable. Furthermore, it would be most sanguine to expect that these lands and/or buildings could be resumed by the Government even after the tenure has run out; the public will be incenced to such an extent that political parties are likely to steer clear from any such attempt. The present scheme has the direct effect of earning revenue for the Government through conversion charges, and at the same time, reducing administrative obligations and costs. What is most important and significant is that misuse or unauthorised constructions are not condoned at all, since other Authorities are duty bound to take legal action on these infractions. In the process of conversion to freehold, the terms of the existing leases would be rendered ineffectual no doubt, but the other important aspects which are already regulated by the Master Plan etc. would remain unaffected. Having pondered on this subject for several months, within which period a host of petitions have been allowed directing the implementation of the Policy, I am in no manner of doubt that it is well conceived and remains worthy of strict and immediate compliance. WP (C) No.6837/2005 has been allowed by me on 2.8.2005; WP (C) No.7751/2005 on 11.11.2005; WP (C) No.7990-92/2002 on 9.12.2005 and WP (C) No.2835/2003 on 14.12.2005.
4. In Vinay Kumar Agarwal the direct question for cogitation was whether conversion could be refused by the L&DO, only on the ground of existence of re-entry orders. The answer was in the negative as is evident from this passage thereof:
24. If one sees the power of the appellant in the perspective explained above, it would be apparent that there is no rationale why a person who has suffered re-entry should be denied the facility of conversion of his property from leasehold into freehold, whereas a General Power of Attorney holder or even a Lesser who sells the property, (when there is no authority to do so) can nevertheless be relieved of the rigors of such determination/re-entry of lease, and be permitted to enjoy the benefit of conversion into freehold. We are conscious of the fact that the respondent has not attacked clause 18.1. We therefore cannot say that the condition is arbitrary or unreasonable. However, while construing the provisions of a policy, the court is bound to give it a reasonable, and non-arbitrary interpretation. It is settled that when confronted with two interpretations, one which leads to the action becoming Unconstitutional, and the other which, even while furthering the object of the measure, saves it the court must adopt the latter (U.P. Avas Evam Vikas Parishad Vs. Jainul Islam and Maharashtra SRTC Vs. State of Maharashtra).
27. We therefore agree with the view taken by the learned single judge, that the application of the respondent could not have been rejected on the ground of re-entry but on the other hand in view of payment made, it ought to have been processed, is the correct one.
5. In WP (C) No.6958/2005 the Lease Deed in respect of Shop No.22 was executed on 21.5.1990. An application for conversion of the shop from leasehold to freehold was filed on 16.10.2004 along with a deposit of Rs.39,000/-. The Respondents issued a letter dated 29.4.2004 detailing the existence of unauthorised construction and encroachment of public land. Refusal to grant conversion was also justified on the existence of alleged breaches in contravention of Clause 1 (iii) & (iv) of the Lease Deed. A threat of re-entry was extended if breaches were not remedied within thirty days. The facts of the other petitions are similar and hence are disposed of by this common Judgment.
6. Clause 11 of the Brochure clarifies that even if the property is being misused conversion will be permitted by the L&DO. Clause 12 thereafter similarly clarifies that conversion will be granted even if there is unauthorised construction, subject to payment of damages/charges, whether earlier demanded or not. It clarifies that the conversion would not act as insulation against any action by the Local Body.
7. On the question of existence of unauthorised construction Mr.Chandhiok and Mr. Sethi, learned Senior Counsel appearing for the Petitioners, have contended that only a tin-shed above the signboard has been erected with a view to getting protection the vagaries of the weather and a side-entrance has been carved out. It has also been contended that the opening of a door or window would not constitute extra coverage or a violation of the Lease, as envisaged in Bye-law 6.4.1 of the Unified Building Bye-laws,1983. It has further been emphasized that the applicable FAR is 300 and hence no illegal/unauthorised excess coverage exists. The Respondents have raised these very objections, as is manifest from the following paragraphs of their letter addressed to the Petitioners.
4. Regarding tin shed/ covering above the sign board, it is stated that this should conform to the Municipal bye-laws and the projections beyond 2 1/2 feet of the authorized structure is illegal. Regarding more than one opening, it is stated that this is not permissible, since it will destroy the architectural facade. This is also in violation of clause I(iv)of the lease deed.
5. Regarding I floor and II floor, it is wrongly interpreted that 300 FAR is permissible in the New Lajpat Rai Mkt. On the other hand, as per MPD 2001, only 125 FAR is permissible in this area. The Zonal Plan further stipulated that market is to be retained as a `Single Storey Market’.
6. Regarding basement, since the same was constructed in violation of the lease terms and building bye-laws, the same cannot be allowed.
7. Regarding construction over platform, your attention is invited to clause I(v) of the lease deed which stipulated that the lessee shall neither enclose the common verandah nor raise any sort of construction or put any goods thereon so as to obstruct the common use there of. Further, the plan attached to the lease deed also indicated it as open platform.
8. Further, neither you obtained any permission from the Lesser as required under the lease terms nor the construction got sanctioned by the local bodies. None of these construction are covered under the standard plan of the market. Thus, these constructions are in blatant violation of the provisions of the Master Plan of Delhi, 2001 standard plan of the Market and the lease terms. Therefore, the request contained in the representation cannot be acceded to. In view of these violations, the request for conversion of the property into freehold also cannot be considered.
9. His assumption that he is free to violate the law of the land after depositing the conversion charges and damages charges is also unfounded. It may be made clear that even after execution of the conveyance deed, the same is liable to be revoked in the event of such violations. Therefore there is not merit in the representation.
Even if FAR 300 is applicable as per the Master Plan 1962, construction without prior clearance or obtaining a sanction of the building plans from the Appropriate Authority is impermissible and liable for demolition by the civil authorities concerned. However, the existence of unauthorised construction cannot act as an impediment to the grant of an application for conversion of land to freehold. Conversion does not condone violations of the municipal laws, rules and regulations. The L&DO usually cancels the lease and notionally re-enters the property; it imposes penalties/damages for reversing the re-entry orders. It has been clarified in the Policy itself that compliance with the Master Plan and/or building laws, rules and regulations would eventually rest with the civil/municipal authorities.
8. Determination of these questions is not necessary in these Petitions at the present moment. However, it is necessary to clarify that order or the threat of re-entry has been stayed in these proceedings and accordingly would not fall within the ambit of clause 20.1 of the Brochure. Reliance has also been placed on the Orders of the Division Bench in WP (C) No.3332/1998 passed on February 15, 2000 wherein the owners/occupiers were directed to demolish the unauthorised portion beyond 300 FAR within one month, failing which demolition in respect of the shop was to proceed. The Division Bench was not concerned with the issue of conversion of the land into freehold in previous proceedings. In CW 483/2004, while disposing of that writ petition it had been ordered that the L&DO and the MCD must see that there are no encroachments by anyone and no changes contrary to Lease Deed are made in the property. As has already been clarified conversion of the land/building will not condone these alleged illegal actions.
9. On behalf of some of the Petitioners, Mr.Chandhiok, learned Senior Counsel, has relied on the decision rendered in Suit No.22/1965 by the Sub-Judge, 1st Class on 22.4.1965. The question was altogether different in that litigation, in which the L&DO was not a party. The Suit had been filed against the Municipal Corporation of Delhi praying therein that they should be injuncted from interfering with the possession of the Petitioners in the verandahs in question. This was predicated on the contention that these verandahs do not vest in the Corporation and therefore it had no jurisdiction to issue any public notice. The second statement in that case was that a verandah had been allotted to by the Ministry of Rehabilitation, which is strongly disputed in these Writ Petitions. I cannot accept the contention that the judgment would be binding in rem on the application of Section 42 of the Evidence Act. It certainly does not preclude the Respondents from raising the objections that have been ventilated in these proceedings.
10. In my considered opinion the existence of unauthorised construction is not an obstacle to conversion of the property into freehold. The duty and responsibility to ensure removal of unauthorised construction shall continue to rest with the local body such as MCD, NDMC, DDA etc. even after the conversion to freehold is carried out. If no damages/charges have been quantified and conveyed to the Petitioners, this exercise should be completed within four weeks from today failing which they will be deemed to have been waived. Needless to state the charges shall be quantified strictly in conformity with the conversion policy itself. Reliance has been placed on some of the covenants in the Lease Deed such as Clause I (iii) which prohibits erection of any further direction on the existing structures and (iv) carrying out any alterations or additions either externally or internally without first obtaining the permission of Lesser. The argument is that if these elements exist the Lesser would be competent to re-enter upon on the demised premises. It must be presumed that the L&DO, which acts on behalf of the President of India, was fully aware of these covenants when the Policy was devised. If there is any inconsistency between the two, the Policy would override the terms of the lease.
11. What needs to be considered next is the existence of encroachment on public land. So far as the Policy is concerned the treatment of lessees has been separately carved out. Clause 14 explicitly states that conversion to freehold shall not be permitted in respect of a property involving encroachment on Government/Public land and Clause 20.10 needlessly repetitively states that such cases would constitute grounds for rejecting the conversion application. The Building Bye-Laws, 1983 as amended up to 1st January, 2003 prescribe that projection on public land is an action which is not permitted and is not compoundable. It is one thing to contend that verandahs and other areas are not public streets and therefore do not fall within the sway of the MCD, and quite another to argue that a citizen can encroach upon public land. I am not a bit convinced that canopies and shades over doors and windows do not constitute encroachment. Faced with this situation Mr.Chandhiok sagaciously and correctly did not press the argument further, and has submitted that these encroachments shall be removed. It will be of relevance to underscore straightway that while exercising extraordinary jurisdiction the Court would not come to the aid of a party which is guilty of malfeasance and failure to adhere to the spirit of law and rules and regulations in the public domain.
12. These Writ Petitions are disposed of with the direction to the Respondents to effect conversion of the shops in question from leasehold to freehold no sooner than the encroachment on public land are removed. As per the Respondent’s policy, existence of alterations or unauthorised construction shall not constitute any justifiable reason for refusing the conversion. Even after conversion, the directions and Orders of the Hon’ble Division Bench viz-a-viz unauthorised and illegal construction remains unaffected. Mr.Gambhir, learned counsel appearing on behalf of the Respondents, has contended that 70% of the lessees aggregating almost 200 parties have voluntarily removed unauthorised construction and encroachment on their own and have accordingly become entitled to the benefits of the policy. The Petitioners are granted sixty days time within which to remove all encroachments on public land whether by way of canopies, sunshades or shades from rain etc. on passages which fall beyond their platform/shop originally let out to them, regardless of whether these are signboards or covering over doors and windows. They shall file photographs of their respective shops illustrating this position. Failure to take this remedial action within the stipulated period will lead to the consequences of the rejection of their application for conversion.
13. The writ Petitions are allowed in these circumstances. Parties to bear their respective costs.