RAJIV SAHAI ENDLAW - (1.) THE appellant DDA impugns the order dated 29.01.2007 of the learned Single Judge partly allowing the W.P.(C) No.14961-62/2004 filed by the respondent and, while upholding the claim of DDA for unearned increase, quashing the demand of `15,09,31,495/- on account thereof and directing the appellant DDA to charge unearned increase at the rate of `100/- per floor / flat and at which rate the demand for unearned increase stands reduced to approximately `1,500/- only.
(2.) THE demand aforesaid for the unearned increase was with respect to commercial plot admeasuring 2548 sq. mtrs. bearing No.E-1, Jhandewalan Extension, New Delhi. THE said plot was in the year 1980 put to auction and the bid of M/s Skipper Construction Co. (Pvt.) Ltd. accepted. However, upon the bid amount being not paid, the said transaction did not materialize and the plot was re-auctioned by the appellant DDA. This time, the bid of M/s Banganga Investments Pvt. Ltd. (BIPL) being the highest was accepted and in whose favour, in the year 1995, a Perpetual Lease Deed with respect to the said plot of land came to be executed. BIPL raised construction of a multi-storeyed building on the said plot of land and Completion Certificate with respect whereto was issued on 08.03.1999. Bipl initiated proceedings for merger / amalgamation with the respondent No.1 M/s Videocon Industries Ltd. and in which proceedings vide order dated 10.05.1999 merger / amalgamation was allowed. Upon intimation thereof being given to the appellant DDA, appellant DDA raised the demand inter alia of the unearned increase of `15,09,31,495/- and impugning which the W.P.(C) No. 14961-62/2004 was preferred by the respondent.
(3.) THE provisions in the Perpetual Lease Deed aforesaid with respect to the unearned increase are contained in Clause 6 thereof and which is as under: 6) 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 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 commercial plot at the time of sale, transfer, assignment, or parting with the possession, the amount to be recovered being fifty percent 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 whole property or any part thereof that may be subject of sale, transfer, assignment or otherwise parting with the possession as the case may be after deducting fifty percent of the unearned increase as aforesaid. PROVIDED FURTHER that notwithstanding the limitations and conditions as mentioned in sub-clause 6(a) the Lessee may sell or transfer the floor space constructed on the plot subject to the permission of the Lessor in writing on payment of `100/- for each flat/floor space for the first sale/transfer. For subsequent sale/transfer the Lessor may on payment of proportionate 50% of the unearned increase (i.e. the difference between the premium already paid by the purchaser/transferor and the market price at the time of sale/transfer towards the portion of the land) grant permission to the sub-Lessee/ transferor for such subsequent sale / transfer of the floor space to be transferred. Prior permission of the Lessor for such second and subsequent sale/transfer of floor space shall be subject to the conditions of getting the Deed of apartment and the sub-lease (as defined under the Delhi Apartment Ownership Act, 1986) executed by the Lessee in favour of such floor space buyers / transferee. PROVIDED FURTHER that the Lessee shall be required to intimate the first list of the floor space buyer/transferees giving full details of the name, address and quantum of floor space to the Lessor, simultaneously with the grant of the completion certificate. However, completion certificate shall be issued only on furnishing the valid list of the first purchasers of floor space along with copies of deed of apartment duly executed with each one of them. THE grant of permission by the Lessor to the Lessee for transfer of floor space or subsequent transfer of floor space to another person, shall not absolve the Lessee from the responsibility for violation of the terms and conditions of the Lease. THE Lessee shall also be responsible for making all arrangements as are necessary for the fire fighting system and the common services. b) Notwithstanding anything contained in sub-clause (a) above, the Lessee/sub-Lessee/floor space buyer may with the previous consent in writing of the Vice Chairman of DDA (hereinafter called the Vice Chairman) mortgage or charge the said commercial plot/space to such person as may be approved by the Vice Chairman in his absolute discretion. PROVIDED THAT first mortgage permission shall be or deemed to have been granted, on handing over the possession of the plot and on execution/registration of the lease deed for the purpose of construction of the building in favour of the Scheduled/Nationalized Banks and Govt. Institutions which allow loan against mortgage permission issued by DDA to the Lessee. PROVIDED further that in the event of the sale or foreclosure 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 commercial plot/apartment as aforesaid and the amount of the Lessor?s share of the said unearned increase shall be first charge, having priority over the said mortgage or charge. THE decision of the Lessor in respect of the market value of the said commercial plot/apartment 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. c) THE Lessor?s right to the recovery of fifty percent of the unearned increase and the pre-emptive right to purchase the property as mentioned hereinabove shall apply equally to an involuntary sale or transfer whether it be by or through an executing or insolvency Court. The learned Single Judge in the judgment impugned in this appeal, relying on Indian Shaving Products Ltd. Vs. DDA 95 (2002) DLT 87 has held that merger/amalgamation of BIPL, which was the Lessee under the Perpetual Lease aforesaid, with the respondent amounted to transfer by BIPL of the plot aforesaid to the respondent. The said finding of the learned Single Judge is not assailed by the respondent also. We may notice that the respondent has filed written notes of submissions in appeal and no challenge to the said finding is made therein also. The counsel for the respondent has also during the hearing admitted that the said finding is not challenged. We may notice that in General Radio & Appliances Co. Ltd. Vs. M.A. Khader AIR 1986 SC 1812, Cox & Kings Vs. Chander Malhotra (1997) 2 SCC 687, Parasram Harnand Rao Vs. S.N. Jain AIR 1980 SC 1655 & Singer India Ltd. Vs. Chander Mohan Chadha AIR 2004 SC 5039 are also judgments on the proposition that such amalgamation/merger amounts to transfer.;