1 IN THE COURT OF SH. AJAY GOEL:SCJ CUM RC(CENTRAL)DELHI Original suit no. 640/88 S.No. 836/06/03 In the matter of : Sh. [ENTITY], s/o Sh. Shiv Dev Singh, r/o C-202, Defence Colony, New Delhi Plaintiff Versus 1. [ENTITY], through Secretary, Ministry of Urban Development Nirman Bhawan, New Delhi 2. [ENTITY]. 3. The [ENTITY] 4. [ENTITY] its Administrator) 5. The [ENTITY] E-34, Connaught Place, New Delhi. Through Branch Manager Defendants 2 Date of Institution:- 25.3.88 Date of assignment to this court:- 6.11.08 Date of Decision:-17.1.09 JUDGMENT
1. This is a suit for perpetual injunction filed by plaintiff against the defendants stating that the Land & Development Officer on behalf of President of India vide his letter dated 31.3.1987 accorded the permission for conversion of the plot no. 3-A, Block no. 124 known as 14, Janpath Lane, New Delhi to a multi storeyed building and demanded payment of additional premium in the sum of Rs.1,67,55,535/- alongwith certain damages, ground rent etc. on the basis of calculation made in 1986 rates of land. The letter of the Land & Development Officer was replied by the plaintiff vide letter dated 8.4.1987 and it was made clear by the plaintiff to the land and Development officer that the terms of calculating of additional premium could be calculated on the basis of application filed by the plaintiff on 21.8.1972. The L&DO was also approached in 1977. A sum of Rs.
1,00,000/- as paid to the defendants on 30.1.86 and again vide letter dated 12.5.1987 the L&DO Officer, Ministry of Urban Development was called upon to rectify the mistake in their letter dated 31.3.1987. The Land and Development Officer was called upon to comply with the requirements of rectification of conversion charges by calculating the same on the basis of application of the plaintiff made in 1972 on the basis of 1972 rates and to issue a no objection certificate to mortgage the vacant land. As stated it was made clear to the respondents both in letters dated 8.4.1987 and 12.5.1987 that it is only after the rectification made that the bank guarantee would be filed but the defendants insisted upon filing of bank guarantee pending rectification. Plaintiff again vide letter dated 26.5.1987 to the Joint Secretary, Govt. of India, Ministry of Urban Development requested the defendant no. 3 to direct the Land & Development Officer to revise the terms for the change of the user on the basis of the applicant of plaintiff dt. 21.8.1972. As stated first application being filed on 21.8.1972 the defendants had no authority to calculate the additional premium on the basis of 1986 rates. The plaintiff thereafter sent letters dt. 15 June and 24th June 1987 to the same effect but of no avail. It was further stated that vide letter dated 29th June, 1987 the plaintiff addressed to the L&DO Officer that the conversion charges on the 1972 rates shall calculate to Rs.19,04,356/- which the plaintiff was required to pay and was voluntarily ready to pay and even on the basis of 1977 rates the additional premium for change of user calculates to Rs.52,45,215/-. These rates of 1972/1977 were calculated by L& DO but later on demanded 1986 rates. It was submitted that there has been malafide action on the part of the officers of the defendants in calculating 1986 rates and they malafide raised a demand of Rs. 1,67,55,535/- for the ulterior motives. However, without prejudice to his rights the plaintiff paid the first installment of the additional premium as demanded vide letter dated 31.3.1987 and by letter dated 31.8.87 called upon the defendants to issue a no objection certificate to the New Delhi Municipal Committee for sanction, release of the building plans and also rectification of the mistake but no objection certificate was not issued to NDMC and Vide letters dated 25.9.1987 and 29.7.1987 the defendant no. 2 was reminded of the action to be taken. It was further stated that pursuant to the deposit of the first installment by the defendants in the sum of Rs. 55,85,18/-the plaintiff under undue pressure also submitted two bank guarantees bearing no. BG/G-11/87 dated 24th September, 1987 for Rs. 63,67,103/- in respect of the second and third installment. The defendants no. 1 and 2 were again requested to issue no objection for sanction of the building plans for the proposed commercial multi storeyed complex but the NOC was not issued and vide letter 21.3.1986 defendant no. 1 and 3 communicated that " It has been decided that " No Objection Certificate" for commencing construction may be sanctioned by the L & DO, on receipt of the first installment and other charges with the condition that the local body will sanction the completion and occupation certificate only after all dues are received by the L&DO." As stated vide letters dated 1.10.97, 10.10.1987,12.10.1987,23.87 plaintiff requested for issuances of NOC and for sanction of plans but no action was taken by the defendants. Reminders dated 2.11.87 and 17.11.1987 were also sent by plaintiff for rectification for conversion charges on the basis of 1972 rates but to no effect. As stated it is clearly stipulated in the scheme of Govt. of India that after the acceptance of the first installment the L&DO is required to issue no objection for sanction of plans but despite payment of first installment and furnishing two bank guarantee for second and third installments no steps have been taken by the defendants to issue NOC without which it will not be possible for the plaintiff to construct the building. As stated bank guarantee no. BG-G- 11/87 dated 24.9.87 for Rs. 71,49,028 shall become due on 1.4.88 and defendant no. 1 and 2 were likely to proceed to invoke the bank guarantee and encash the same without granting NOC. It was sated that as per condition in letter dated 31.3.1987 in case of default in payment of any installment of additional premium the plaintiff shall be liable to pay the 2 interest per annum over and above the normal rate of interest, however the defendants cannot be allowed to impose penalty and interest on the one hand and then also to encash the bank guarantee without revising he terms of conversion charges on the basis of application dt. 21.8.72 and issuing no objection to both the defendants no. 4 and 5 to enable the plaintiff to proceed with the sanction of the plans as well as construction of the multi storeyed building. It was further stated that defendant no. 3 vide his letter dated 8.1.88 called a report from the defendant no. 4 for the purpose of issue of NOC and defendant no. 3 vide his letter dated 11.2.1988 submitted the report. It was stated defendants were discriminating the case of the plaintiff from that of the other similarly situated buildings and have committed violation of [SECTION] of the [ACT]. Defendant no. 3 had sent a letter dated 24.2.1988 to the attorney of the plaintiff stating that the development plans of the plaintiff is covered by comprehensive re-development scheme which was being prepared by the DDA and the same could not be finalised and action is being taken to get the scheme finalised therefore the plot could not be allowed to be developed. As stated defendants were not even allowing the plaintiff to develop the plot till such time as the development scheme was finalised by the DDA whereas DDA was not in a hurry to formulate the scheme. It was further stated that there was no statutory development plan for this area and the defendants had no authority to direct NDMC to withhold sanction of plans. Further nine grounds were taken mentioning the abovesaid facts and it was prayed that decree of perpetual injunction in favour of plaintiff and against the defendants be passed restraining the defendants, its officers, agents from claiming conversion charges/additional premium more than Rs. 19,04,356/- and from encashing the two bank guarantees deposited by the plaintiff.
2. WS was filed on behalf of defendants No. 1 to 3 and defendant no.4 In WS filed by defendant no. 4 it was stated that plaintiff had not sought any relief against defendant no. 4 and defendant no.4 is only the performa party. As stated defendant no. 4 was not able to sanction the plan for want of NOC from L&DO. Resolution passed by the committee rejecting the plains vide resolution dated 4.9.86 was filed. In WS filed on behalf of defendants no. 1 to 3 preliminary objections were raised stating that the suit was not maintainable as there had been no breach of obligation on behalf of the defendants and that the plaint was not correctly valued as well as notice u/[SECTION] [ACT] was not given. It was submitted that earlier the lessee applied on 4.7.1977 for permission to construct the multi stoeyed commercial building on the premises in question but the said application could not considered as the suit premises remained under re-entry from 1974 to 1979 on account of some breaches etc. upon the premises. It was stated that the defendants did not receive any application from plaintiff in 1972 for construction of multi storeyed building and therefore question of applicability of the land rates of 1972 for the permission to construct multi storeyed commercial building upon the premises does not arise. As stated after vacating the re-entry orders, the lessee applied on 30.1.86 for construction of building hence the conversion charges were worked out on the land rates applicable on the application dated 30.1.1986. It was admitted that plaintiff had written to defendant no. 2 for calculation of conversion charges as per land rates of 1972, however vide letter dated 31.3.87 as stated it was informed to the plaintiff by defendant no. 2that no objection certificate for sanction of the plan by NDMC can be issued only on payment of charges as communicated to the plaintiff and vide letter dated 2.7.87 defendant no. 2 had informed that conversion charges were correctly worked out and there was no scope for its review. It was stated that no application was received for conversion in 1972. Application of 1977 as stated also cannot be taken into consideration as the plaintiff never pursued it and the property had been re-entered. It was further stated that plaintiff did not comply with all the terms and conditions stated in the letter dated 31.3.87 and it was submitted that the amount paid by the plaintiff vide their letter dated 29.6.1987 for Rs.57,66,260/- was accepted as " on account payment" by the defendants without prejudice to their rights under the lease and did not debar the defendants to recover/claim any additional premium, damages or misuse charges that were due or would be due for the suit premises which facts were communicated to the plaintiff vide letter dated 2.9.87. It was also stated that instant case was not similar to any other case as alleged by the plaintiff. It was admitted that Zonal Plan of the area is under preparation and a comprehensive re-development scheme is being proposed by the DDA. As stated remaining charges or charge of use are due alongwith charges for misuse and unauthorised construction and defendants will have no objection in issuing no objection certificate provided payment of arrears of conversion charges as well as those of misuse and unauthorised construction are discharged by the plaintiff in full. Rest of the contents of the plaint were denied and it was prayed that suit of the plaintiff be dismissed with costs.
3. Replication to the WS of defendants no. 1 to 3 was filed in which contents of the plaint were reiterated and those of the WS were denied.
4. Vide order dated 8.8.1989 following issues were framed:-
1)Whether the additional premium for change of user has to be calculated on plaintiff's application dated 21.8.1972 rates amounting to Rs. 10,04,356/- only and if so to what effect?
2) In case issue no. 1 is decided in negative, then what must be the base for calculation of conversion chargs and to what effect?
3)In case issue no. 1 is decided against the plaintiff, then whether the defendants no. 1 to 3 are liable to issue No Objection Certificate on the receipt of first installment and should not they be restrained from recovering the rest of the amount or encashing the bank guarantee before the plaintiff is able to commence the construction after release of the building plans and raise funds from the purchasers of the flats in the proposed building?
4)Whether the NDMC in similar cases has released the building plans before the payment of conversion charges or the issuances of No objection certificate. If so, to what effect?
5)Whether the suit, as framed, is not maintainable in view of the preliminary objections taken by defendants 1 to 3?
6)Whether the plaintiff ever submitted an application for permission to construct multi-storey building in the year 1972?
7)Whether the plaintiff is to be charged conversion charges on the rate prevailing on 4.7.77 or 30.1.1986?
8)Relief.
5. Name of defendant no. 4 was deleted from the array of defendants vide order dated 14.11.00.
6. The plaintiff examined two witnesses in support of his case i.e. PW-1[ENTITY] and PW-2 [ENTITY].
PW-1 in his statement reiterated the contents of the plaint. Copy of application dated 21.8.1972 was ex. PW-1/1. Copies of letters dated 4.7.77, 3.3.96, 4.9.86, 9.9.96 was ex. PW-1/2 and PW-1/3, PW1/4, PW-1/5. Copy of letter dated 31.3.87 sent by L&DO was ex. PW-1/6. Letter dated 8.4.87 sent by plaintiff was ex. PW-1/7. Carbon copies of letters sent by attorney of plaintiff dt. 12.5.87, 26.5.87 and 15.6.87, 24.6.87 were ex. PW-1/8 to PW-1/12. The AD card of ex. PW-1/10 was ex. PW-1/10A and AD card ex. Pw-1/11 was ex. PW-1/11A. Letter dated 29.6.87 as stated was delivered to L&DO by plaintiff by hand copy of which was ex. PW-1/13. Copy of letter sent to Ministry of Urban Development by attorney of plaintiff was ex. PW-1/14 and AD card was ex. PW-14/A. Copies of letters dated 31.8.87, 22.9.87, 23.9.87,25.9.87, 1.10.87, 12.10.87 to L&DO office were ex. PW-1/15 to ex. PW-1/18. Copies of letter sent by attorney of plaintiff to Ministry of Urban Development dt.
23.10.87,23.10.87,23.10.87, 2.11.87,2.11.87 were ex. PW- 1/19 to ex. PW-1/22 and AD card of ex. PW-1/19 and PW- 1/20 were ex. PW-1/19A and PW-1/20A. Copies of letters sent to Ministry of Urban Development by plaintiff were ex. PW-1/23 and Pw-1/24 and AD card of PW-1/23 was ex. PW- 1/23A and postal receipt of Pw-1/24 was ex. PW-1/24A and AD was ex. PW-1/24B.
Pw-2 Sh. [ENTITY] was Assitant in L&DO office and in his statement he admitted that as per records brought by him in the notings dated 9.9.86 at page no. 81it was noted that the application dated 21.8.72 was not available and as such they may take the crucial date for working of conversion charges as 5.7.77(i.e. The date of receipt of the application in the office). Similarly at page 82 it was stated that the copy of letter dated 16.8.72 received on 21.8.72 had been discussed at page 82 and the photocopy of the letter was received from the attorney of the plaintiff. He brought the office copy of letter dated 31.3.87 which was already ex. Pw-1/6. The photocopy of the letter dated 16.8.72 delivered with the L&DO office on 21.8.72 was at pg 74 of the file maintained by the department dt. 19.3.89 was at page 74. The photocopy of office order dated. 21.3.86 was ex. PW-2/1.
1. Defendants no.1 to 3 and 5 did not examine any witness in support of their case and DE was closed vide order dated 24.10.02.
2. I have gone through the record as well heard the arguments addressed by the Ld. Cl. for both parties. My issues wise findings are as under:-
3. The counsel for the defendant has argued that no notice u/[SECTION] [ACT] has been served hence the suit is not maintainable. She has also argued that no letter ever was received by them as alleged by the plaintiff and there is no application of plaintiff on 21.8.1972. The defendant has further argued that the NOC was given by the order of the court hence the issue of conversion charges should be decided accordingly. The plaintiff has refuted the arguments and submitted that the cause of action arose in 1972 first and both the parties were ad-idem and were conscious regarding the nature of dispute and thus the remedial steps should have been taken by the defendant on the occasion when first dispute arose and now they cannot be permitted to raise filmsy objections and thus the court should decide the issues irrespective of the contentions of the defendant because they have not been supported by any evidence.
4. Issue no. 5:- Whether the suit, as framed, is not maintainable in view of the preliminary objections taken by defendants 1 to 3? For the sake of convenience I am taking up issue no. 5 first. The preliminary objections no. 1 to 3 of the defendant are qua notice u/[SECTION] [ACT] and regarding the proper evaluation of suit for purposes of court fees and jurisdiction and qua non maintainability of suit as there is no breach of obligation. I am dealing with the contention one by one. First of all there is no evidence of defendant on these issues, though the onus was upon them to prove the same, still the plaintiff has rightly argued that notice u/[SECTION] [ACT] was exempted by the Hon'ble High Court vide order dated 25.3.88 as the suit was initially filed in Hon'ble High Court of Delhi which now has come to this court after raising pecuniary jurisdiction. This order is binding on both the parties and hence this plea does not find favour this court. I find support for this view [PRECEDENT] judgment passed by Division Bench of Hon'ble High Court of Delhi wherein it has been held that " It can be presumed after the registration of the suit that court impliedly granted the leave to institute suit and notice stood waived." The said judgment is fully applicable to the facts of the instant case. Regarding pecuniary jurisdiction it is settled law that plaintiff is master of his case and he has to value the suit. Here in the present case the decree of injunction has been sought restraining the defendant from claiming conversion charges and for which market value is not to be assessed. It was held in [PRECEDENT] in [PRECEDENT] Co. that " when the suit is not for mandatory injunction and no possession is to be handed over then court fees is liable to be paid as Rs.13/- and not on market value." I find support from the view of Hon'ble High Court in [PRECEDENT] Moreover this suit was initially filed in Hon'ble High Court of Delhi on Original side and thereafter come to this court on the order of Hon'ble High Court. On these all reasoning this plea is also not tenable. There is cause of action, hence the plaintiff is within his right to file the present suit, thus the suit is maintainable and the issue no. 5 is decided in favour of plaintiff and against the defendants.
5. Issues no. 3 and 4: In case issue no. 1 is decided against the plaintiff, then whether the defendants no. 1 to 3 are liable to issue No Objection Certificate on the receipt of first installment and should not they be restrained from recovering the rest of the amount or encashing the bank guarantee before the plaintiff is able to commence the construction after release of the building plans and raise funds from the purchasers of the flats in the proposed building? and Whether the NDMC in similar cases has released the building plans before the payment of conversion charges or the issuances of No objection certificate. If so, to what effect?:- Both of these issues are taken up together. During the course of arguments both parties have admitted that NOC had been issued by the department on the orders of Hon'ble High Court. I have gone through the order 25.5.98 passed by Justice [ENTITY] who had ordered to give NOC and resultingly NOC was issued by the department. This order had attained finality on two separate proceedings i.e. the application for review of this order was not considered later on as per order dated 17.9.99. Secondly, vide FAO decided on July 2, 1999 the division bench of Hon'ble High Court consisting of Justice [ENTITY] and Justice Devender Gupta, the plea of defendants was rejected. The SLP was also dismissed by Hon'ble Supreme Court on 10.9.99 as mentioned in ordersheet dated 17.9.99. Thus, these issues are redundant as agreed by both the parties as already disposed off in favour of the plaintiff.
6. Issue no. 6:- Whether the plaintiff ever submitted an application for permission to construct multi-storey building in the year 1972? The whole controversy revolves round the fact as to whether any application in 1972 for conversing the use was filed by the plaintiff and if so what was its effect and what are the rates for calculation of conversion and for which period. Under this issue no. 6 the plaintiff has submitted that two witnesses were produced which are PW-1 Sh. [ENTITY], plaintiff and Sh. [ENTITY]. PW-1 has proved ex. PW-1/1which is the application given to the department which bears stamp of L&DO office at point B. This is application move by Sh. [ENTITY] dated 16.8.72 received in the office on 21.8.72 wherein it has been clearly prayed by the plaintiff that conversion be allowed and conversion charges to be deposited be informed to the plaintiff. PW-2 is the concerned official from L&DO wherein he has admitted that there is copy of letter dated 16.8.1972 in the official record. The handing over the same application has been proved by the plaintiff and the original application has been concealed by the defendant. There is no cross examination to this effect on the witnesses of the plaintiff. Moreover further communication with the department is also proved by the plaintiff which also talks about this letter. It is not explained by the defendant as to if photostat copies were available on the record why they have concealed the original copy. Defendants have not led their evidence to disprove the contention of the plaintiff. It has been held in [PRECEDENT] as well as in AIR 1988 Delhi pg. 332 that "when the party conceals a particular document which is relevant for the decision of the case then that party is bound to suffer on account of non production irrespective of the onus of issues" and in this case, plaintiff has discharged his onus. The counsel for plaintiff has relied upon [PRECEDENT] wherein it was held that " if a witness is not cross examined on material points then the statement of witness is presumed to be admitted." It was not explained by the defendants as to how the seal had been put on the application ex. PW-1/1 and why the complete papers were not produced before the court by witness PW-2 when he was called to bring the complete file relating to property involved suit. Thus, this issue is partly decided in favour of the plaintiff and against the defendants and it is held that plaintiff submitted the application in the year 1972 to the department to the effect that the plot can be used for commercial purpose as the application does not contain that multi storey building was to be constructed.
7. Issue no. 1, 2, and 7:- Whether the additional premium for change of user has to be calculated on plaintiff's application dated 21.8.1972 rates amounting to Rs. 10,04,356/- only and if so to what effect? and in case issue no. 1 is decided in negative, then what must be the base for calculation of conversion charges and to what effect? and Whether the plaintiff is to be charged conversion charges on the rate prevailing on 4.7.77 or 30.1.1986? :-All these issues are inter connected and can be decided together. The counsel for plaintiff has relied upon [PRECEDENT] and its appeal filed by the UOI decided in [PRECEDENT] The counsel has argued that the decision regarding the date of calculation is to be taken by the department on the basis of the first date when they were informed and the rate prevalent thereon. I have gone through the judgments and the ratio laid down therein is not disputed. The court has to keep in mind the fundamental fact that the rate prevalent in 1972 vastly differ than the rate prevalent today i.e. after 26 years. It is also to be kept in mind that parties should not suffer on account of delayed justice but herein some reasonable basis has to be taken into account to see that justice is done to both the sides. The rates are either to be based upon the rates applicable to 1972, 1977 and 1986. The application first moved before the authorities in 1972 talks about simpliciter conversion and the application filed on 4.7.1977 talks about construction of a multi storeyed building. It is not made out from the file as to whether there was any different rate for simple conversion or conversion for construction of multi storeyed building. The conversion may be for one shop or for multi storeyed building but the same is not made out from the file as the defendant has not led evidence to that aspect. The plaintiff had also proved the documents but its effect qua the above preposition is not made out from the file. The presenting of the application to the authorities on 21.8.1972 has already find favour with the court as abovesaid. The defendants have admitted that they received the application on 4.7.1977 thus the only question now remains is as to what should be the calculation on the basis of letter dated 21.8.1972 or 4.7.1977. I direct the department to calculate the conversion charges on the basis of application dated 21.8.1972 for simplicitor conversion and also conversion charges for the use of plot for multi storeyed building. If both the rates are same and amount is same then in these circumstances, the amount to be taken from the plaintiff will be based on the application dated 21.8.1972, however if there is different rate for simple conversion and for conversion for the purpose of errecting multi storeyed building then the rates are to be calculated from 4.7.1977. Hence, in these circumstances the issues are decided accordingly in favour of the plaintiff and against the defendants.
8. In view of the above, suit is decreed in favour of plaintiff and against the defendants with costs. The defendants are hereby restrained from claiming conversion charges more than the calculation which comes after the calculating the amount as aforesaid and from further encashing the two bank guarantees as prayed for in the plaint. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in open court ([ENTITY]) 17.1.09 SCJ cum RC(Central)/ Delhi.