16 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 7397/2007 K.L.SEHGAL ..... Petitioner Through Mr. Abhishek Thakur, Advocate versus LAND & DEVELOPMENT OFFICE ..... Respondent Through Mr. Gaurav Duggal, Advocate CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA O R D E R % 20.05.2009 The petitioner, Mr. K.L. Sehgal on 27th September, 1957 had purchased property No. 275 & 276, Double Storey, New Rajender Nagar, New Delhi- 110060 (‘the property’ for short) from one Mr. Bhagat Ram Chandna. On the same date itself i.e. 27th September, 1957, Mr. Bhagat Ram Chandna wrote a letter, informing the Regional Settlement Commissioner, Ministry of Rehabilitation that he was selling the second half portion of the property to Mr. Kishan Lal Sehgal and therefore formal permission for transfer of the same may be kindly accorded and granted. The said letter records that the Regional Settlement Commissioner, Ministry of Rehabilitation had already granted permission for transfer of the second half of the property to another person. 2. The aforesaid letter was written in view of the clauses of the lease deed dated 11th April, 1957 executed under the Displaced Persons (Compensation & Rehabilitation) Act, 1954. The said clauses have been reproduced in the counter affidavit by the respondent s and read as under:- “The lessee shall before any assignment or transfer of the said premises hereby demised or any part thereof obtain from the Lessor approval in writing of the said assignment or transfer and all such assignesse and transferees and the heirs of the Lessee shall be bound by all the covenants and condtions herein contained and the answerable in all aspects therefore.” “The lessee can transfer the land after obtaining the permission of the Lessor aforesaid and the Lessor will not share any unearned increment in the value of the land (being the difference in the premium paid by him to the lessor and the market value of the land then prevailing) for permitting such transfer. The Lessor will, however, be entitled to claim and recover the unearned increment in the value of the land in the vent of the 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. In the case of any subsequent transfer the lessor shall have any pre-emptive right to purchase the premises as hereby demised and all the building and structures standing thereon, after deducting 50% of the unearned increment as aforesaid.” 3. The respondents L & DO in the counter affidavit have admitted that permission to transfer the property in the name of the petitioner was granted vide letter dated 17-18th October, 1957. 4. The original file produced before me shows that the application dated 27th September, 1957 made by Mr. Bhagat Ram Chandna, the auction purchaser and the original lessee was approved stating that the Additional Settlement Commissioner had no objection to the transfer of the property to Mr. K.L. Sehgal, the petitioner herein. 5. On 13th August, 1999, the petitioner applied for conversion of lease hold rights in the property into free hold. The said application was made to the Ministry of Urban Development and Planning as the earlier lease, which was executed by Ministry of Rehabilitation, is now under the administrative control of L & DO. 6. On 21st August, 2000, L & DO wrote a letter to the petitioner stating that as per their records, Mr. Bhagat Ram Chandna and Mr. Bihari Lal Chandna continue to remain lessesses of the property and the petitioner was asked to explain the capacity in which he had applied for conversion of the property from lease hold to free hold. The petitioner thereafter wrote a number of letters to respondent L & DO enclosing therewith copy of sale deed dated 27th September, 1957 and certified copy thereof. 7. On 11th August, 2003, the respondent L & DO informed the petitioner that his application for conversion can be considered on payment of following Government dues:- “1. Penalty for Sale without permission from 27.09.1957 to 15.04.2003 @ Rs. 3000/- PA Rs. 1, 36, 652.00 2. N.G.R. (ground rent) from 01.07.1957 to 31.03.2004@ Rs/ 2/- P.A. Rs. 92.00 3. Penalty for belated intimation Rs. 100/-“ 8. The letter, further, stipulates that in case the payments were not made within 30 days from the date of issue of this letter, the petitioner shall be liable to pay interest @ 10% per annum. 9. The respondent L & DO in the counter affidavit has defended the said statement and claim on the basis of the policy decision dated 11th March, 1994, copy of which has been enclosed with the counter affidavit. It is alleged that the permission to sell was granted to Mr. Bhagat Ram Chandna on 17th-18th October, 1957, but before the said date Mr. Bhagat Ram Chandna had already executed the sale deed dated 27th September, 1957 in favour of the petitioner herein. Moreover, the petitioner had applied for mutation of the property in his name only in 2003, when he intimated and informed the respondent L & DO about the transfer along with certified copy of the sale deed. Accordingly, as per circular dated 11th March, 1994, the petitioner is liable to pay penalty @ of Rs. 3000/- per year from 1957 till 2003. 10. It is not possible to accept the stand of the respondent L & DO. Mr. Ram Bhagat Chandna had purchased the property in an open auction on 11th April, 1957. Within a few months thereafter, he made an application for transfer of property in the name of one Mr. Bihari Lal Chandna to the office of the Settlement Commissioner. Subsequently on 27th September, 1957, Mr. Bhagat Ram Chandna sold the property to the petitioner and sale deed was executed. On the same date itself, Mr. Bhagat Ram Chandna applied to the Settlement Commissioner for formal permission to transfer the property. The name of the petitioner was mentioned in the letter of request dated 27th September, 1957. The request for transfer was accepted by the Settlement Commissioner. The petitioner has also filed on record letter dated 18th January, 1958 written by Ministry of Rehabilitation to the Secretary, New Delhi Municipal Committee informing them that the property had been transferred by Mr. Bhagat Ram Chandna to the petitioner. The said letter records and asks New Delhi Municipal Committee to amend their records, in other words record the transfer of the property from Mr. Bhagat Ram Chandna to Mr. K.L. Sehgal, the petitioner. This letter was obviously written to enable the petitioner to secure mutation of the property in the municipal records. Copy of the said letter was also forwarded to the petitioner at property No. 275 & 276, Double Storey, New Rajender Nagar, New Delhi- 110060 i.e. the property itself. The petitioner has been paying the Property Tax to the local authorities from 1957. It is, therefore, clear that the respondents were fully aware and conscious that the property had been sold and transferred to the petitioner and petitioner has been residing in the property. Ministry of Rehabilitation had written a letter to the New Delhi Municipal Committee, confirming the fact that the transfer had been made with their approval and they have no objection in case the Municipal Committee makes the necessary amendments and mutates the property in favour of the petitioner. The office of the Settlement Commissioner was aware of the transfer of the property in favour of the petitioner and had accepted the same. Even if, there was any lapse or default in not asking prior approval for transfer, the same cannot be considered as illegal or void, which requires any action. The Ministry of Rehabilitation not find the transfer objectionable and wrong. After 50 years, it is not permissible to permit and allow L & DO, to go behind the transfer and question and challenge the same. The transfer was acceptable to Ministry of Rehabilitation and cannot be questioned today. L & DO is not competent and cannot answer and state about policy and guidelines applicable and applied by Ministry of Rehabilitation in 1957. 11. The petitioner has stated in the petition that in 1976 pursuant to a public notice issued by L &DO, the petitioner vide letter dated 16th June, 1976 had enclosed and filed copy of the building plan for additions and alterations made in the property. The respondent L & DO has not specifically controverted and denied receipt of the letter dated 16th June, 1976, but in counter affidavit it is stated that the record of the petitioner was received in their office in 1985. The petitioner cannot be blamed in case the respondent L & DO received incomplete file or file with missing pages. 12. Reliance on policy decision dated 11th March, 1994 is misconceived. Firstly, in the present case the approval for transfer of property was granted in the year, 1957, almost 37 years before policy decision dated 11th March, 1994 was formulated. Secondly, the transfer was accepted and as stated above if there was any lapse or violation of the lease, the same was condoned as is clear from the letter dated 18th January, 1958 , written by the Ministry of Rehabilitation to New Delhi Municipal Committee giving their consent to transfer the property from the name of Mr. Bhagat Ram Chandna to Mr. K.L. Sehgal and asking the Municipal Committee to amend their records. Thirdly, the policy itself states that the said instructions would came into play with immediate effect in pending cases but the decided cases would not be re- opened. Fourthly, the relevant paragraph of the policy stipulates that crucial date for the purpose of calculation of unearned increase is the date of intimation of transfer along with certified copy of the sale deed and accordingly unearned increase would be calculated. In the present case, the property was purchased in a public auction and the same was transferred to the petitioner within a few months thereafter on 27th September, 1957. Ministry of Rehabilitation cannot and did not ask for any unearned increase because no unearned increase was payable. L & DO has, also not asked for payment of unearned increase. In these circumstances demand for penalty of Rs.1,36,652/- is unjusted. 13. The petitioner is a Senior Citizen aged 77 years. He has been unnecessarily dragged to this Court and harassed from 1999 onwards. The respondent L & D0 will pay cost of Rs. 25, 000/- to the petitioner. The said cost will be paid within four weeks from today by sending a cheque to the petitioner at the property address. It is open for the respondent L & DO to recover this amount from delinquent officials after conducting the necessary inquiry, but this should not stop payment of costs. 14. In view of the above, demand of Rs.1,36,652/- as per the impugned letter dated 11th August, 2003 is set aside and quashed. The respondent will process the application of the petitioner for conversion of the property from lease hold to free hold, filed in 1999 within one month from the date copy of this order is received. The writ petition is disposed of. Dasti. SANJIV KHANNA,J MAY 20, 2009 NA