UDAY KAUSHISH Vs. DELHI DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) This common judgment shall decide the above-noted writ petitions which have been preferred by the petitioner, thereby invoking the extraordinary writ jurisdiction of this Court under Article 226 of the Constitution of India, 1950, seeking certain reliefs against the respondent No.1/Delhi Development Authority ['DDA'], raising common questions of law and facts and can be conveniently disposed of together. However, in order to avoid any confusion and for better appreciation, this Court would present the facts of the two writ petitions separately.

(2.) Briefly stated, the case of the petitioner is that a commercial plot of land bearing Municipal No. 28360 admeasuring 5444 Square Yards situated at Desh Bandhu Gupta Road, Paharganj, Delhi-110055, formerly known as 'Arakashan Paharganj' (hereinafter referred as the 'subject property'), was leased out by the Secretary of State for India in favour of late Shri Durga Chand Kaushish S/o late Pandit Lakshmi Chandra vide registered lease deed dtd. 17/9/1931 'Registered with the office of Sub-Registrar as document No. 203 in Additional Book No.1, Volume No. 30 on pages 327 to 341 dtd. 25/1/1932". It is stated that the said lease was for a term of 90 years commencing from 1/4/1931 and it was agreed that it could be renewed for a further period of 70 years. It is stated that the lessee, late Shri D.C. Kaushish, paid a premium of Rs.18,242.00 besides agreeing to pay annual rent @ Rs.365.00 payable in two equal half yearly instalments of Rs.182.50 Paisa. It stated that in furtherance of the Scheme by the Delhi Improvement Trust ['DIT'] for the improvement and development of the Basti Ara Kashan area wherein the subject property was comprised, an agreement dtd. 27/5/1955 was also executed between the DIT and late Shri Durga Chand Kaushish, whereby the same terms and conditions of the original lease deed dtd. 17/9/1931 were reiterated, as also yearly rent. It appears that after the abolition of DIT and advent of the respondent No.1/DDA in 1957, dispute arose between late Shri Durga Chand Kaushish and the respondent No.1/DDA with respect to the quantum of rent, and on 3/6/1964, a sum of Rs.4657.75 Paisa was recovered from the lessee as arrears of rent through the Collector, which was paid under protest. Aggrieved thereof, late Shri Durga Chand Kaushish filed a suit before this Court seeking reliefs in the nature of injunction, thereby restraining the DDA from recovering anything in excess of the rent of Rs.365.00 per annum. It is stated that the said suit was decreed ex parte in favour of the original lessee i.e., late Shri Durga Chand Kaushish on 10/9/1967, thereby holding that on proper construction of the lease deed, no rent in excess of Rs.365.00 could be recovered from the lessee until the expiry of initial 90 years of lease i.e. until 1/4/2021. The ex parte decree dtd. 10/9/1967 was, however, set aside by this Court vide order dtd. 8/1/1969 by the learned Single Judge, which order was assailed in RFA 'Regular First Appeal' (OS) No. 16/1970 before the Division Bench of this Court, which appeal was allowed in favour of late Shri Durga Chand Kaushish vide judgment and decree dtd. 26/5/1971 and it was held that that the original lessee was only required to pay a sum of Rs.365.00 as the annual rent during the subsistence of the lease deed dtd. 17/9/1931. This led to the respondent No.1/DDA preferring an appeal bearing Civil Appeal No. 298/1972 Delhi Development Authority v. Durga Chand Kaushish, [(1973) 2 SCC 825] before the Supreme Court, which was dismissed vide judgment dtd. 28/8/1973.

(3.) In order to address the matters in issue, cutting the long story short, it appears that on the death of Shri Durga Chand Kaushish, a suit for partition was instituted bearing CS (OS) No. 414/2008 which led to passing of a preliminary decree by this Court dtd. 24/3/2009 and in the said suit, vide order dtd. 7/8/2009, it was inter alia recorded that steps would be initiated for conversion of the subject property to freehold basis, by which time it appears that there was running 'Sheila Cinema Complex' at the subject property. The suits between the legal heirs of deceased were consolidated and ultimately compromised vide judgment and decree dtd. 6/11/2012 was recorded, giving different shares to each of the legal heirs in the properties left behind by the deceased Shri Durga Chand Kaushish, and Mr. Rajat Aneja, Advocate was appointed as Court Commissioner, who took up the matter with the respondent No.1/DDA as well as respondent No.2 and respondents No. 4 to 7, thereby calling upon the respondent No.1/DDA inter alia to intimate the tentative amount required to be paid along with requisite documents for effecting conversion, including the amount of ground rent and other charges in respect of the subject property. It appears that during the pendency of the partition suit bearing CS (OS) No. 414/2008, the Ministry of Urban Development, Land and Development Office, Union of India, vide its communication dtd. 29/5/2013 clarified that the existing scheme for conversion of leasehold tenures into freehold tenures shall also be applicable to cinema sites for which lease deeds/perpetual leases have been executed and construction thereupon stands completed. In between, there were directions by this Court in the aforesaid partition suit to the Court Commissioner to expedite the pending process of conversion of the subject property from leasehold to freehold and as it appears that there was no response from respondent No.1/DDA, this Court in the aforesaid partition suit vide order dtd. 15/7/2013 issued notice to the learned Standing Counsel for the respondent No.1/DDA, who appeared on 8/8/2013 and submitted that there was no policy of conversion of Cinema Halls from leasehold to freehold, hence no document/information could be supplied on behalf of the DDA.