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TMI Blog1982 (5) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... 931 between the Secretary of State for India in Council (the Lesser) of the one part and the petitioners (the lessee) of the other part. To the Secretary of State for India, the President of India succeeded as the Lesser. Clauses 5 and 6 of the lease deed are material for the purposes of this case : (5)The Lessee will not without such consent in writing of the Chief Commissioner of Delhi or duly authorised officer as aforesaid erect or suffer to be erected on any part of the said demised premises and building other than and except the buildings erected thereon at the date of these presents. (6)The Lessee will not without such consent as aforesaid carry on or permit to be carried on the premises any trade or business whatsoever or use the same or permit the same to be used for any purpose other than that of a residence or do or suffer to be done thereon any act or thing whatsoever which in the opinion of the Chief Commissioner of Delhi may be an annoyance of disturbance to the Secretary of State or his tenants in the New Capital of Delhi. (4) After the Master Plan was published in 1961 the petitioners on 18th March, 1963 applied to the Land and Develo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the L. D.O. that they bad submitted plans for residential Use to the New Delhi Municipal Committee (NDMC) which had been rejected on the ground that the area had been declared commercial and a number of commercial buildings were coming up in the neighborhood. In view of the fact that the land use of the area is commercial in the master plan and the zonal plan and only commercial buildings will be permitted to be constructed in this area, the petitioners said that : WEare being forced to convert this building into a commercial property. We accordingly want to convert the property into commercial multistoreyed building and as such please let us know the charges, if any, perreturn. (10) The L. D.O. made no reply to this letter. The petitioners then wrote to the Chief Commissioner on 20th March 1973 repeating their request for permission. As no reply was received to this letter the petitioners filed the present writ petition under Article 226 of the Constitution on 14th August 1974. (11) To continue the narrative what the petitioners did in 1971 was that they submitted plans for a multi-storeyed building to the Ndmc on 5th August 1971. The Ndmc rejected those pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally be ₹ 10,000 per sq. yard from 1972 to 1979. The L D.O. has now given the terms to the petitioners treating their application dated 30th December 1970 as the first application and has quoted the rate of ₹ 1500 per sq. yard as the rate on the basis of which the Lesser is willing to give his consent for a permanent change of purpose from the residential to commercial. The petitioners dispute this and say that they are not liable to pay such a high rate of ₹ 1500 per sq. yard and that they are entitled to permission at the market value of the land prevailing in 1963 when they made the first application on 18th March 1963. In 1963, the rate of the land in this area was ₹ 300 per sq. yard. But the L D.O. says that* he will not give permission at that rate but would accord permission for permanent change of purpose at the rate of ₹ 1500 per sq. yard. (14) The question is what is the right point 'of time which should be considered asthe basis for grant of permission. This case strikingly shows how the hime factor is important in litigation. In 1963, the price of the land was ₹ 300 per sq. yard. This continued till 1966. From 1966 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .O. that they were being forced to convert this building into a commercial property . The Government are prepared to treat this as a valid application because they never made any reply to this appplication. (16) The petitioners contend that in a similar case permission was granted by the Lesser to one Khandelwal Ferro Alloys Limited in 1964 on the basis of ₹ 300 per sq. yard. We have seen the letter of the L. D.O. dated 6th August 1964 written to the Ferro Alloys Ltd. It is true that the rates were quoted on the basis of ₹ 300 per sq. yard, but subsequently on 2nd September 1966 the Chief Commissioner refused permission for change of purpose and withdrew the offer of ₹ 300 per sq. yard. In our opinion, the example of Ferro Alloys Limited cannot be relied upon by the petitioners to buttress their case. That is a case where the Lesser has re-entered the property because a multi-storeyed building had been erected on the land of 19 Curson Road without his permission. The case is in court now. We, therefore, do not wish to say anything more on the subject. It is sufficient for our purpose to say that the petitioner's case is different from that of Fer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion would normally be the basis. What is the crucial date is the first question ? What are the land values prevalent on the crucial date is the second question ? On the correspondence, we have come to the conclusion that the crucial date for according permission ought to be 30th December 1970. This was the first application for permission for all practical purposes. This the Government do not dispute. It is their own stand. Now, the land values prevailing in 1970 were ₹ 600 per sq. yards, according to the Government's own', prescribed rates. We do not see how in view of this admitted stand the Government can ask for payment on the basis of ₹ 1500 per sq. yard. They rely for this purposes on a letter dated 30th July 1979 which is said to be a clarification of the Government policy formulated on 21st June 1979. This letter reads : To 33-7-79. The Land Development Officer, New Delhi. Sub: Rates to be applied for pending applications received prior to 1972 for conversion to multistoreyed commercial and Group Housing, in Delhi. Sir, This question of the rate to be applied for pending applications received prior to 1972 for conversion to multi-storeyed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs which covered the period from 1966 to 14-1-72. They are entitled to be treated on the same footing as those three lessees, namely, L.I.C., Himalaya House, and Hindustan Times, were treated. We see no justification for adopting the basis of the land value of ₹ 1500 per sq. yard which is the basis of the Government's demand. Our conclusion is that 1970 is that point of time , to use an expression of the Government policy dated 21st June, 1979, on the basis of which market value of the land should be ascertained for the purposes of giving permission for permanent change of purpose. (21) There remain the question of interest. The Government is also demanding interest from 1970 till today. This claim is wholly indefensible. What is the justification for charging interest we have not been told. On the facts of this case we have come to the conclusion that interest cannot be demanded. Even to the letter dated 30th December 1970 which the Government accepts as the first proper application they 'did not make any reply. They never quoted the price which the Lesser was willing to charge for according permission for change of purpose. Silence of the Lesser does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be just and sufficient as affecting such building, or if the land, on which it is proposed to erect or re-erect such building is vested in the Government or in the committee, and the consent of the Government concerned or, as the case may be, of the committee has not been obtained, or if the title to the land is in dispute between such person and the committee or any Government. (24) This section gives a right to the committee to insist on obtaining the consent of the Government. If the land is vested in the Government. If the party applying for sanction of the plans has not obtained the consent of the Government, the committee can refuse to sanction the plans. Two arguments were raised before us. One was that in the case of the present lease the land did not vest in the Government and, therefore, consent of the Government was not necessary. We do not agree. Under the terms of the lease deed the land vests in the Lesser, i.e. the President of India. Vesting is a word which has many meanings .The word vest has several meanings with reference to the context in which it is used. Ordinarily vesting means 'the having obtained an absolute and indefeasible right as cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest in the land remains vested in the Lesser. He has merely carved an interest in favor of the lessee by giving him a lease of the land on certain terms. It cannot be said that the land vests in the lessee. The ownership of the land vests in the Lesser. Vests indicates the ownership of the proprietary interest. There is a term for the forfeiture of the lease. Under that term if there is a breach of the covenants of the lease the Lesser has the right to re-enter upon the demised premises and thereupon this demise and everything contained shall cease and determine and the lessee shall not be entitled to any compensation whatsoever. The lease is determined on re-entry but the ownership of the land always vests in the Lesser. Therefore, his consent is required before the Ndmc can be asked to sanction the plan submitted to it. (28) Another argument was this. It is founded on discrimination, as we have said. As the plans of Lok Nath and Chiranji Lal were sanctioned even though the Government's consent had not been obtained, it was pleaded that in the case of the petitioners the plans should be deemed to have been sanctioned in the same manner as was done in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employed. The statute introduces a legal fiction for a certain purpose. It would not be legitimate to travel beyond the scope of that purpose and read into it words which are not there. '. (31) The fiction is strictly limited to the present and has been introduced for the sake or justice. It does not import the doctrine of relation back. It has no relation with the past. If it is held that the plan will be deemed to have been sanctioned in 1971, as is contended before us, it will work injustice and shall be contrary to the real truth and substance of the thing. It will defeat the beneficial purpose for which the fiction has been employed. Even if we allow our imagination to run riot the stautory fiction cannot take us to 1971, even assuming that the rejection of the plan is illegal. There is no statutory support for the argument advanced before us. All that the section says is that the unsanction plan will be treated as if duly sanctioned. It is a case of deemed sanction. The provision is not retrospective in operation. It is not in effect a retrospective changing of statute law. (32) The petitioners say that they are entitled to press into their service fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be deemed to have been passed in 1971. Firstly, the statute does not lend itself to that interpretation. It uses the words shall be deemed to have been sanctioned. It does not say shall always be deemed to have been sanctioned . Secondly, the building has not been completed within two years which is the requirement of bye-law No. 5 of NDMC. Nor can there be any revalidation of the plans so as to cover this long period of 1971 to 1982. The plans will have to be submitted a fresh. Afresh they will have to be considered. Afresh they will be sanctioned by Ndmc if found in order. So we come to the conclusion that there is no legitimate grievance of the petitioners against the NDMC. (36) There remains to consider the question of discrimination. We directed the Ndmc to make a supplementary affidavit on this point. The secretary filed the affidavit dated May 22, 1982 denying the charge of discrimination. It is a detailed affidavit. Facts and figures have been given. The affidavit discloses that in 1971 a ban was imposed by the Government on the construction of multi-storeyed buildings. This ban was lifted in 1977, During this period of 1971 to 1976 the Ndmc uniformely rejecte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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