- (1.) ADMIT. As the respondent has failed to appear inspite of being served, this appeal is taken up for final hearing.
(2.) THIS appeal challenges the judgment of the learned Single Judge dated 25th March, 2004 wherein the learned Single Judge construed Clause 11 of the Lease Deed. Clause 11 of the Lease Deed reads as follows:- " (11) The Lease shall before every assignment or transfer of the said premises hereby demised or any part thereof obtain from the Lessor or the Chief Commissioner of Delhi or such Officer of body as the Lessor may authorize in this behalf approval in writing of the said assignment or transfer and all such assignees and transferees and the heirs of the lessee shall be bound by all the covenants and conditions herein con-tained and be answerable in all respects thereof. " (emphasis supplied)
(3.) THE writ petitioner, respondent herein sought permission in view of the aforesaid Clause to transfer the property to a purchaser and the permission was declined, hence, the writ petition was filed in this Court. The learned Single Judge noticed that the reasons given for non-granting the sale permission to the respondent was the demand of appellant towards 50% unearned increase. The learned Single Judge has held that Clause 11 only stipulates the requirement of prior permission and does not stipulate or authorise the respondent to claim any unearned increase for transfer of the plot. For this purpose, the learned Single Judge has relied upon two judgments of this Court titled as Sunil Vasudeva Etc. v. DDA, 1989 RLR 23 and Ramji Dass Guglani v. Delhi Development Authority and Ors. , 2003 IV AS (DELHI) 33 Accordingly, the learned Single Judge directed the transfer without any unearned increase. Mr. Dubey, the learned counsel for the appellant has submitted that in arriving at the conclusion that Clause 11 did not stipulate the levy of unearned increase has not taken note of the fact of the circulars which he fairly conceded, were not brought to the notice of the learned Single Judge. Accordingly, since the issue affects a large number of transfers, we have considered the effect of the circular dated 30th August, 1965, the relevant clause of which reads as under: "iv. II. 8 Sale/transfer of leased premises - Permission for sale/transfer of the leased premises will be granted where such permis-sion is required to be obtained under the terms of lease on the following terms and conditions:- (i) Payment of 50% of the unearned increase in the value of land over its value, at the time of last transaction, the amount of unearned increase is recoverable in all cases of restricted leases (see para IV. I. 1 above) irrespective of whether a specific provision for the recovery of unearned increase exists in the lease deed or not, unless it is specifically prohibited by the terms of lease as in the case of first sale of some Rehabilitation properties. The Government of India have also relaxed this rule in certain cases of transfer as mentioned hereinafter. " (emphasis supplied);