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TMI Blog2003 (12) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the statutory Tease to the effect that lease cannot be transferred without consent of the lessor. Clause 6(b), as noticed hereinbefore, if construed to be imperative in terms thereof a member of the society is prohibited from transferring his interest in any manner whatsoever. Even delivery of possession of the premises pursuant to or in furtherance of the agreement is prohibited. But by reason of the said circular letter dated 28.6.1999, which has not been issued even in terms of Article 77 of the Constitution, not only such permission is not required to be taken but even the right to recover 50% of the unearned increase is waived and only on payment of conversion charges a leasehold is made freehold, pursuant whereto or in furtherance whereof only upon payment of conversion charges any member of the society would become entitled to transfer or assign his interest in the land or the building constructed thereupon without even obtaining any prior consent of the lessor. We, therefore, are of the opinion that the said circular letters are valid. Determination of market value by reason of such circular letters, thus, became a part of the terms of the lease having regard to the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and circumstances of the case, also direct that the application for conversion filed by the respondents herein should be disposed of expeditiously. Keeping in view the conduct of the appellant herein, we think that they should bear the costs of the respondents. Counsel s fee is assessed at 25,000/- in each appeal. X X X X Extracts X X X X X X X X Extracts X X X X ..... ction Certificate on or about 12.5.1994 showing the consideration of ₹ 5,00,00,000/- in respect of the plot in question. Respondent No. 1 herein thereafter filed an application before the competent authority of the Appellant on or about 23.5.1994 for sale of the leasehold property indicating the cost of construction and price of the plot as ₹ 5,00,00,000/-. 6. The Government of India, however, without enforcing any increase in the sale price of the land extended the validity of the land rates in force till 31.3.1992 for a further period from 1.4.1994 to 31.3.1996 by a circular letter dated 11.11.1994. The appellant herein despite the same proceeded on the basis that having regard to the fact that the purchaser had agreed to pay the consideration of ₹ 5,00,00,000/- and further agreed to bear the cost of difference in unearned increase, the market value of the land would be ₹ 7,50,00,000/- and on that basis demanded a sum of ₹ 3,62,44,420/- as a condition of grant of permission by a demand letter dated 22.2.1995. Such amount was to be paid within a period of sixty days. 7. The respondents thereafter filed writ petitions before the Delhi High Court ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cond sale, but the 50% unearned increase deposited at the time of first sale permission has not been deducted from the amount of 50% unearned increase calculated now for the second sale because, though, the issue regarding deduction of unearned increase paid earlier has been approved by the Authority, but this matter is under consideration of the Ministry. The approval or otherwise, of Ministry in this regard has not been received as yet. If approved, this amount may be conveyed to the appellant. Further, it may also be communicated to him that this demand is provisionally subject to revision on receipt of rates for the period 93-94 from Delhi Admn. For this, management shall be asked to obtain an affidavit from the legatee." 11. Relying on or on the basis of the practice adopted by the D.D.A. and having regard to the orders dated 24.6.1992 issued by the Delhi Administration and that of the Government of India as also the resolution dated 28.11.1995, it was held : "It does not require any argument to say that the DDA was well aware of this clause and had issued the Order dated 11.8.92 on the basis of the Order issued by the Delhi Administration on the 24th of June, 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed was executed. The respondents herein, however, complied with the directions of the High Court. 14. Relying on Clause (3) of the said scheme which is to the following effect : 3. "It is further clarified that these orders will have prospective effect and the cases already decided will not be re-opened. Note: In respect of pending applications, where conveyance deeds are yet to be executed/registered, refund in respect of conversion fee paid, if any, on account of these instructions should be allowed. 4. This issues with the approval of Finance Division's U.O. No. 1066-F dated 21.6.99." 15. Rajeev Gupta was permitted to execute the aforementioned deed by paying only the Conversion charges, i.e. without payment of even 50% of the unearned increase. It is not disputed that civil Appeal No. 1783 of 2000 titled D.D.A. v. Rajeev Gupta was disposed of on 30.4.2003 in terms of a signed order as the case was said to be covered by the policy of conversion from leasehold to freehold and the proposal of the D.D.A. to compromise was noted. The respondents herein thereafter filed an application for raising additional pleas, inter alia, on the ground that having regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d senior counsel, appearing on behalf of the respondents, on the other hand, would submit : (1) The fact of the matter in pending cases as also in the case of Rajeev Gupta would clearly demonstrate that they stood on a common footing and as such the respondents herein cannot be treated differently to that of Rajeev Gupta. (2) The market value as determined by the Central Government or the Delhi Administration refers to the market value and the same do not say that thereby any benchmark has been provided. (3) The submissions raised hereinbefore on behalf of the appellant were not raised before the High Court nor had been adverted to in the counter affidavit. (4) Any mistake on the part of the Delhi Administration had never been pleaded nor urged. (5) As three opportunities had been granted to the respondents to clarify their stand as regard the existing policy decision and they having failed and/or neglected to do so, it is not open to them to raise the plea of inequities before this Court. (6) Even in the form of application required to be filed for conversion of leasehold into freehold, it having been stated 'that unearned increase would be recoverable, the same cannot be reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all other relevant facts are almost identical. Rajeev Gupta was to pay a sum of ₹ 4,13,00,000/-, whereas J.S. Monga and Abdul Rasool Virji were to pay sums of ₹ 3,62,44,420 and ₹ 2,23,34,725/- respectively, pursuant to interim order passed by the High Court. Whereas J.S. Monga deposited the entire amount as demanded, Abdul Rasool Virji deposited a sum of ₹ 1,49,72,225/-, as per the directions of the High Court. 20. The contention of the learned counsel appearing on behalf of the respondents, therefore, must be held to have some substance that whereas Rajeev Gupta has received the benefit of the purported new policy of conversion from lease hold to free hold, the respondents herein were deprived therefrom for no fault on their part. STATUTORY PROVISIONS : 21. Section 22 of the D.D.A. Act reads as under : "22. Nazul lands (1) X X X (2) X X X (3) After any such nazul land has been developed by, or under the control and supervision of, the Authority, it shall be dealt with by the Authority in accordance with rules made and directions given by the Central Government in this behalf." 22. Section 56 of the Act reads as under : "56 Powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he value (i.e., the difference between the premium paid and the market value) of the residential 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." Clauses X(a) and (b) of Sub-Lease reads as under : "X.(a) All powers exercisable by the Lessor under this Sub Lease may be exercised by the Lt. Governor, the Lessor may also authorize any other officer or officers to exercise all or any of the powers exercisable by him under this Sub-Lease" (b) The Lt. Governor may authorize any officer or officers to exercise all or any of the powers which he is empowered to exercise under this Sub-lease except the powers of the Lessor exercisable by him by virtue of Sub-clause (a) above." Clause XI of the Sub Lease reads as under : "In this Sub-Lease, the expression "the Lt. Governor" means the Lt. Governor o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose of recovery of unearned increase in the value of land/plot consequent upon Sale/Transfer of residential plots allotted under the Scheme of Large Scale Acquisition, Development & Disposal of land in Delhi. Lt. Governor of National Capital Territory of Delhi is pleased to revise the market rates of land for the purpose of recovery of unearned increase in the cost of land/plot consequent upon the transfer/sale of residential plots allotted under the Scheme of Large Scale Acquisition, Development & Disposal of land in Delhi, superseding his previous orders conveyed vide order No. F.R. 16(7)/82-L&B/3026-34 dated 31.1.92, as given below :- x x x 27. The appellant itself issued the following circular, relevant portion of which reads as under : "Sub: Fixation of market rate of land for the purpose of Recovery of unearned increase in the value of land/plot consequent upon the Transfer or Sale of residential plots allotted under the "Scheme of large Scale Acquisition Development and Disposal of land in Delhi" for the period from 1.4.90 to 31.3.91 and 1.4.91 to 31.3.92. A copy of the Joint Secretary (Admn.) L&B Deptt. Delhi Admn. Letter No. F-16 (7)/82/L&B/20369 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature cannot be said to be inhibited in any manner to fix the market value for a locality which would be applicable to all the plots of lands situated therein. As the market value has to be fixed in terms of the provisions contained in the statutory lease, the lessor is not precluded from fixing it for an area in question and thereby avoid any arbitrary or unreasonable action by any of its officers. Market values are fixed by the authority for different purposes. Fixation of such market value, therefore, for the purpose of recovery of unearned increase cannot be said to be de' hors the D.D.A. Act and the Rules framed thereunder. 31. It is not a case where a conflict has arisen between a statute or a statutory rule on the one hand and an executive instruction, on the other. Only in a case where a conflict arises between a statute and an executive instruction, indisputably, the former will prevail over the latter. The lessor under the deed of lease is to fix the market value. It could do it areawise or plotwise. Once it does it area wise which being final and binding, it cannot resile therefrom at a later stage and take stand that in a particular case it will fix the market ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pen market by a willing seller might be expected to realise from a willing purchaser. A willing seller is a person who is a free agent to offer his land for sale with all its existing advantages and potentialities as on the date of the sale and willing purchaser taking all factors into consideration would offer to purchase the land as on the date of the sale..." 34. In State of Punjab and Ors. v. Mahabir Singh and Ors. AIR 1996 SC 2994 , this Court observed that the guidelines provided under Section 47A of the Stamp Act would only serve as prima facie material available before the Registering Authority to alert him regarding the value, holding : "...It is common knowledge that the value of the property varies from place to place or even from locality to locality in the same place. No absolute higher or minimum value can be predetermined. It would depend on prevailing prices in the locality in which the land covered by the instrument is situated. It will be only on objective satisfaction that the Authority has to reach a reasonable belief that the instrument relating to the transfer of property has not been truly set forth or valued or consideration mentioned when it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which had been developed by it keeping in view the fact that save and except some cases, the market value of the land would be same or similar. 40. It is also not in dispute that the Central Government was the ultimate authority for determination of the market value. The proposal of the appellant before the Union of India to enhance such market value @ 20% per annum did not receive any favourable response. They thought it fit to continue with the same valuation till 1996. Such a decision on the part of the Union of India was a conscious one. It is really surprising that on the one hand a stand is taken that Clause 6(b) of the sub-lease contain a statutory provision and, thus, cannot be altered either by the Union of India or by the Lt. Governor, recourse is sought to be taken to the provisions of Sections 2 and 3 of the Government Grants Act in terms whereof the term of any grant or term of any transfer of land made by the Government would stand insulated from the tentacles of any statutory law as thereby unfettered discretion of the Government has been conferred to enforce any condition or limitations or restrictions in all types of grants and the right, privilege and obligation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one construction of a deed for forty years the House of Lords held that neither party was estopped from setting up the mistake, and that rent underpaid for so long as it was not barred by the Statute of Limitation could be recovered." 45. It is not disputed that the said question had not been raised in the counter affidavit; on the other hand, it appears that the High Court specifically granted three opportunities to the respondents to place on its records any other policy decision whereupon it intended to place reliance as would appear from the following : "16.10.1996 Present : Mr. A.N. Haksar, Sr. Advocate with Mr. R.K. Virmani for the Petitioner. Ms Sudha Bhandari for Counsel for the Respondents CW. No. 3948/95 There is no counter filed on behalf of the Respondents. There is no appearance on behalf of the Union of India today. Learned Counsel for the Petitioner has invited the attention of the Court to the averments made in paragraph 23 of the petition and the documents Annexure-1 at page 50 of the paper book which according to him is the policy governing unearned increase during the relevant period. Reply to this paragraph 23 of the counter is evasive. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, Anand Lok, New Delhi, the date of application is 26.6.1989 and the permission was granted on 26.7.1989 by receiving unearned increase calculated with reference to the market rate of the land in the locality contained in the relevant circulars but not on the basis of the Circular dated 24.6.1992 relied on by the High Court." 47. Keeping in view of the fact that the Appellant despite being given several opportunities by the High Court did not disclose its policy, we do not think that they should otherwise also be given an opportunity to raise new grounds. DETERMINATION OF THE AMOUNT OF UNEARNED INCREASE BY THE APPELLANT : 48. The Appellants proceeded on the premise in the case of the Respondents, that the Circular letters issued by it or the Union of India need not be given effect to and the valuation of the land should be worked as ₹ 7,50,00,000/-for the purpose of computing the unearned increase. However, it must be presumed that the vendees proceeded on the basis that the amount of unearned increase would be determined in terms of the said circulars. Furthermore, 50% of the unearned increase was to be paid to the Appellant as a condition of lease. While determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey cannot take advantage of the order passed by the High Court. The High Court gave them opportunities to get their deed registered. They could have refused to do so and in that event like Rajeev Gupta they were not required to deposit the amount. The parties did not contemplate that the Central Government would come out with another policy decision, which would be more beneficial to the sub-lessee. A fortuitous circumstance like the issuance of the said circular dated 28.6.1999 was not in contemplation. The appellant, therefore, cannot, keeping in view the prospective effect given to the said circular, take any benefit thereof. Furthermore, they have not filed any application to amend their writ petition. They merely have urged additional grounds. It is no doubt true that this Court can take into consideration subsequent events and mould relief accordingly but thereby it cannot substitute a new relief based on a fresh cause of action. We are, therefore, of the opinion that the interim order passed by the High Court does not come to the aid of the respondents. RATE OF INTEREST : 53. By reason of the aforementioned Interim order, the High Court directed payment of 18% interest. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the circumstances of the case. We are not inclined to interfere with that view of the High Court but make it clear that this concession is confined to the facts of this case and to the parties herein and shall not be construed as a precedent for overriding Rule 64A of the Mineral Concession Rules, 1960. It is also clarified that the payment of dues should be cleared within six weeks from today (if not already cleared) to get the benefit of reduced rate of interest of 12%; failing the payment in six weeks from today the liability to pay interest @ 24% per annum shall stand." 56. In K.T. Venkatagiri and Ors. v. State of Karnataka and Ors. [2003] 1 SCR 1081, it is stated : "We are, therefore, of the opinion that with a view to do complete justice between the parties and having regard to the order passed by this Court in Khoday Distilleries case, the following directions should be issued : (1) x x x (2) x x x (3) x x x (4) x x x (5) x x x (6) x x x (7) On the amount found to be due and owing to MSIL by any of the appellants the same shall be paid and interest at the rate of 18% per annum shall be leviable from the date of realisation till 12.2.1997 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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