Delhi Development Authority Vs. Mrs. Vijaya C.
Gurshaney & Anr  Insc 406 (26 August 2003)
S.N. Variava & H.K. Sema. Sema,J.
Appeal (civil) 5424 of 1999 Delhi Development
Authority Nanak Chand
These two appeals are being disposed of by a
Civil Appeal No. 34 of 1995 has been preferred
against the judgment dated 10.5.1994 passed by the High Court in C.W.P.No. 3696
of 1992 and Civil Appeal No. 5424 of 1999 is preferred against the order of the
National Consumer Disputes Redressal Commission, New Delhi, dated 1.4.1998 passed in Revision
Petition No. 933 of 1997. Since the facts of both the appeals are identical, we
are taking the facts from Civil Appeal No. 34 of 1995.
Shorn of unnecessary details, the facts leading
to the filing of the present appeal arises under the following circumstances: -
One Ram Dhan (since deceased) had purchased a plot No. D-3, Community Centre, Narayana,
in the public auction held by the Delhi Development Authority (hereinafter the
'DDA') on 25.5.1969. The perpetual lease deed of the plot was executed between
Ram Dhan and the President of India on 17.2.1972. On 18.9.1978, Ram Dhan died
without any construction on the plot. The respondent herein - Mrs.Vijaya C. Gurshaney,
seems to have applied for grant of Letters of Administration to the District
Judge, Delhi, on the strength of a
Will, said to have been executed by Ram Dhan on 26.10.1977 in her favour. It
appears that the District Judge granted Letters of Administration on 7.5.1980.
Thereafter, the respondent had applied to DDA for substitution of her name in
place of deceased Ram Dhan. DDA issued show cause notice for non-construction
on plot within the specified time, which was replied by the respondent by her
letter dated 11.12.1982 requesting DDA for mutation of her name in place of Ram
Dhan on the strength of the alleged Will, whereupon DDA asked the respondent to
produce the relevant documents for further consideration. DDA by its letter
dated 12.8.1985 asked the respondent to pay 50% of unearned increase as per
terms and conditions stipulated in the perpetual lease deed as the transfer was
not in favour of blood relation of Ram Dhan, whereupon the respondent seems to
have agreed to pay 50% of unearned increase to DDA. DDA, thereafter, by its
letter dated 19.6.1992 asked the respondent to pay Rs.6,51,020/- towards 50% of
unearned increase in the value of property.
By another letter dated 17.9.1992, DDA demanded
payment of the aforesaid amount failing which would result in cancellation of
the lease. Aggrieved by the aforesaid two letters, the respondent filed a Writ
Petition, inter-alia, for quashing of the aforesaid letters. The respondent
further sought a direction that the plot be transferred in her name without
payment of any unearned increase and that the mutation be made in the records
Alternatively, the respondent prayed that in
case the respondent is liable to pay 50% of unearned increase it should be
calculated on the basis of the value or the rate of land prevalent as on
13.5.1980 when the respondent applied for transfer of the leasehold rights of
the plot in her favour. The High Court, on hearing the parties, came to the
conclusion that since the petitioner (respondent herein) had obtained the
Letters of Administration in accordance with the procedure prescribed under the
Indian Succession Act, 1925, the question as to what considerations prevailed
upon the deceased Ram Dhan to bequeath his plot to the respondent herein is
irrelevant. The High Court was of the view that the moment the Administrator
grants Letters of Administration on the basis of a Will the respondent is
entitled to all the rights the deceased had vested in him at the time of his
death. The High Court further held that the grant of Letters of Administration
is a judgment in-rem and a conclusive proof of the existence and genuineness of
the Will and its effect cannot be nullified except by proceedings for
revocation of the Letters of Administration.
Parties are heard at length. Mr. Mukul Rohtagi,
learned ASG appeared on behalf of the appellant. Mr. Nikhil Nayyar, learned
counsel appeared on behalf of the respondent No. 1 in C.A. No. 34 of 1995 and Mr.P.N.
Ramalingam, learned counsel appeared on behalf of the respondent in C.A. 5424 of 1999.
The High Court has not at all adverted to the
terms and conditions stipulated in the perpetual lease deed executed between
DDA and the deceased - Ram Dhan, on the basis of which two impugned letters in
Writ Petition have been issued. This is where the High Court had side tracked
the main issue and decided an issue, which was not at all relevant in the facts
and circumstances of the case. It was the specific case of the appellant
(respondent before the High Court) that the Will was actuated by monetary
consideration and was in fact a sale. It was also the specific case of the
appellant that it was actually a transfer of land to non-blood relation of the
deceased - Ram Dhan and was in violation of the terms and conditions stipulated
in the lease deed and therefore, the respondent was liable to pay 50% of
unearned increase in the value of the property.
The High Court although extracted the relevant
clauses of terms and conditions of lease and referred to the policy decision of
DDA but the same were not at all adverted to while reaching the conclusion. In
our view, the High Court, in its impugned order has not at all adverted to the
relevant issues and decided the case totally based on unfounded grounds.
To appreciate the present controversy in proper
perspective Clauses 4, 5 and 8 of the lease deed, which are relevant for the
present purpose are extracted:
"4(a) The Lessee shall not sell, transfer,
assign or otherwise part with the possession of the whole or any part of the
commercial plot except with the previous consent in writing of the Lessor which
he shall be entitled to refuse in his absolute discretion.
PROVIDED that such consent shall not be given
for a period of ten years from the commencement of this Lease unless, in the
opinion of the Lessor, exceptional circumstances exist for the grant of such
PROVIDED FURTHER that in the event of the
consent being given, the Lessor may impose such terms and conditions as he
thinks fit and the Lessor shall be entitled to claim and recover a portion of
the unearned increase in the value (i.e. the difference between the premium
paid and the market value )of the plot at the time of sale, transfer,
assignment or parting with the possession, the amount to be recovered being
fifty per cent of the unearned increase and the decision of the Lessor in respect
of the market value shall be final and binding.
PROVIDED FURTHER that the Lessor shall have the
pre-emptive right to purchase the property after deducting fifty per cent of
the unearned increase as aforesaid.
(b) Notwithstanding anything contained in
sub-clause (a) above, the Lessee may, with the pervious consent in writing of
the Chief Commissioner of Delhi (hereinafter called "the Chief Commissioner"),
mortgage or charge the plot to such person as may be approved by the Chief
Commissioner in his absolute discretion.
PROVIDED that, in the event of the sale or
fore-closure of the mortgaged or charged property, the Lessor shall be entitled
to claim and recover the fifty percent of the unearned increase in the value of
the plot as aforesaid and the amount of the Lessor's share of the said unearned
increase shall be a first charge, having priority over the said mortgage or
charge. The decision of the Lessor in respect of the market value of the said
plot shall be final and binding on all parties concerned.
PROVIDED FURTHER that the Lessor shall have the
pre-emptive right to purchase the mortgaged or charged property after deducting
fifty percent of the unearned increase as aforesaid.
(5) The Lessor's right to the recovery of fifty
per cent of the unearned increase and the pre-emptive right to purchase the
property as mentioned hereinbefore shall apply equally to an involuntary sale
or transfer whether it be by or through an executing or insolvency Court.
(8) Whenever the title of Lessee in the plot is transferred
in any manner whatsoever the transferor and the transferee shall, within three
months of the transfer, give notice of such transfer in writing to the Lessor.
In the event of the death of the Lessee the
person on whom the title of the deceased devolves shall, within three months of
the devolution, give notice of such devolution to the Lessor.
The transferee or the person on whom the title
devolves, as the case may be, shall supply the Lessor certified copies of the
document(s) evidencing the transfer or devolution." Further, DDA on
26.7.1988 with the approval of the Lt. Governor of Delhi formulated a policy and
issued guidelines to be followed with regard to payment of 50% of the unearned
increase in the value of the land inter alia on the basis of the Will left by
the deceased allottee. The guidelines are:- I. In cases where a request is
received for transfer of property on the basis of 'WILL' to a person outside
blood relation who is not within the definition of 'family member' under the
guidelines issued earlier, the following documents should necessarily be
obtained from the applicant/legatee for the purpose of mutation:
1) Certified copy of will left by the allottee;
2) Death certificate of the allottee;
3) Affidavit disclosing the particulars of the
legal heirs whom the allottee had survived;
4) No objection of the legal heirs regarding
mutation of the interest of the deceased in favour of the legatee(s);
5) Affidavit from the legatee declaring that the
property in question had not passed on to him during the lifetime of the
Testator and no sale agreement/agreement for construction etc. had been
executed by the Testator in his/her favour, nor any GPA/SPA had been executed
in his favour or in favour of a person nominated by him;
6) Legatee may be asked to produce certified
copy of assessment order of income-tax and house tax receipt showing the name
of the person in whose name the property is being assessed;
7) An undertaking from the applicant/legatee to
the effect that if at any stage it is found out that the property had passed on
to the legatee during the lifetime of the Testator then it will be deemed to be
a case of misstatement of facts, misrepresentation or fraud and the mutation in
his/her favour shall stand terminated and the property shall automatically vest
in the Lessor;
8) Indemnity Bond from the legatee duly
9) In case the plot/flat was allotted through
Co-operative society, the NOC from the Society;
10) Original registration Certificate, Fixed
Deposit receipt, Challan form, wherever necessary; and
11) Such other documents as required to be
obtained as per instruction issued from time to time or procedure laid down therefor.
In this case the alleged will is executed on 26th October, 1977. Ram Dhan died on 18th September, 1978. Letters of
Administration were granted on 7th May, 1980. Admittedly, the respondent is not related to
the deceased - Ram Dhan. The High Court clearly erred in holding that merely
because Letters of Administration are granted the appellants cannot inquire
into the true nature of the transaction. It is settled law that a Testamentary Court, whilst granting
Probate or Letters of Administration does not even consider particularly in
uncontested matters, the motive behind execution of a testamentary instrument.
A Testamentary court is only concerned with finding out whether or not the
testator executed the testamentary instrument of his free will. It is settled
law that the grant of a Probate or Letters of Administration does not confer
title to property. They merely enable administration of the estate of the
deceased. Thus, it is always open to a person to dispute title even though
probate or Letters of Administration have been granted.
DDA is a creature of the Statute. The aims and
objects of Delhi Development Act, 1975 are contained in Section 6 of the Act.
"6. The objects of the Authority shall be
to promote and secure the development of Delhi according to plan and for that
purpose the Authority shall have the power to acquire, hold, manage and dispose
of land and other property, to carry out building, engineering, mining and
other operations, to execute work in connection with supply of water and
electricity, disposal of sewage and other services and amenities and generally
to do anything necessary or expedient for purposes of such development and for
purpose incidental thereto:
Provided that save as provided in this Act,
nothing contained in this Act shall be construed as authorising the disregard
by the Authority of any law for the time being in force." The rationale
behind the formulation of its policies and guidelines issued by DDA is to curb
illegal transactions in favour of persons not of blood relations of the allottee,
being practiced rampantly and the property being transferred by an under hand
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 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.
Furthermore, clauses 4, 5 and 8 of the lease
deed, as extracted, envisage that the lessee cannot sell, transfer or part with
the possession of the whole or any part of the commercial plot except with the
previous consent of the lessor in writing, with a rider that the lessor can
refuse the transfer. It is also provided in proviso to clause 4(b) that in the
event of sale or foreclosure of the mortgaged or charged property, the lessor
shall be entitled to claim and recover the 50% of unearned increase in the
value of the plot. It is further provided in clause 8 that in the event title
of lessee in the plot is transferred in any manner whatsoever the transferor
and the transferee shall within three months of the transfer give notice of
such transfer in writing to the lessor. The respondent herein has not complied
with any of the conditions stipulated in the lease agreement and, therefore, it
was within the competence of DDA to invoke the terms and conditions stipulated
in the lease agreement by charging 50% of unearned increase in the value of the
plot. The letters dated 19.6.1992 and 17.9.1992, impugned in the Writ Petition
before the High Court, were in the terms of invoking of clauses 4, 5 and 8 of
the lease agreement and policy decision and guidelines of DDA as noticed above.
The impugned judgment and order of the High Court runs contrary to the terms
and conditions stipulated in the lease agreement and the same is unsustainable.
It is accordingly set aside.
Regarding the quantum of 50% unearned increase
to be paid, counsel on both sides arrived at a consensus that in the facts and
circumstances of this case, the respondent – Mrs. Vijaya C.Gurshaney shall pay
a sum of Rs.3,73,745/- to DDA towards the 50% of unearned increase in value of
the plot in question. Respondent's counsel, on instructions, agreed to pay the
entire amount by 31st December, 2003. We order accordingly. Till the entire amount
is paid to DDA, the possession of the plot shall not be delivered to the
Civil Appeal No. 34 of 1995 is accordingly
allowed in the above terms. The parties are asked to bear their own costs.
CIVIL APPEAL NO. 5424 OF 1999 In this appeal the
respondent had already paid the unearned increase.
However, as a result of the judgment impugned in
C.A. No. 34 of 1995 he claimed a refund, which was allowed by the District
Forum. On appeal by DDA, State Commission affirmed the order of the District
Forum and the Revision preferred by DDA, before the National Consumer Disputes Redressal
Commission, was also dismissed by the impugned order. As we have set aside the
judgment impugned in C.A. No. 34 of 1995, it follows that the respondent is not
entitled to a refund.
This appeal is accordingly allowed with no order
as to costs.