BAL KISHAN CHHABRA Vs. UNION OF INDIA

JUDGEMENT

(1.) The question that has arisen in these petitions is whether the Land and Development Office (LandDO) is competent to reject the Petitioners' applications for conversion of their leasehold properties to freehold. This assault has not been raised for the first time and a number of decisions have already been pronounced by Single Benches and also the Division Bench of this Court. These decisions have reviewed the Policy publicised by the LandDO itself. The paradox is that the lower staff of that Department resolutely refuse to implement the Policy of the highest echelons of the Government. The other dimension is the Respondent's repeated refusal to abide by Judgments of the High Court; it is no defence that a Special Leave Petition has been filed, since their Lordships have declined to interdict the operation of the Judgment of the Division Bench of this Court in Union of India Vs. Vinay Kumar Agarwal, 116 (2005) DLT 322.

(2.) The salient features of the policy of conversion of property from leasehold into freehold are to be found in the Brochure of that very name published in June, 2003 by the Government of India, Ministry of Urban Development and Poverty Alleviation, Land and Development Office. The clauses thereof which are germane to the present controversy are extracted for facility of reference:- 11. WHETHER CONVERSION WILL BE GRANTED EVEN IF THERE IS A MISUSE OF THE PROPERTY? Yes, Conversion will be granted even where a portion of residential property is being put to Non residential use, subject to payment of misuse charges, whether earlier demanded or not. 12. WHETHER CONVERSION WILL BE GRANTED EVEN IF THERE IS UNAUTHORISED CONSTRUCTION? Conversion will be granted to the leasehold properties even if there is unauthorised construction, subject to payment of damages charges, whether earlier demanded or not. However the applicant will be liable for action under Municipal Bye-Laws. The conversion to freehold in the presence of misuse/unauthorised construction does not act as a waiver of any action which is liable to be taken under the building bye-laws by the Local Body. 13. IF PAST MISUSE AND UNAUTHORISED CONSTRUCTION WERE TAKEN CONGNIZANCE OF BY THE LESSOR HOW THESE CASES WILL BE HANDLED? In respect of these properties where any amount earlier claimed by the lessor and not paid by the lessees will have to be paid before the application for conversion can be considered. In respect of those properties where misuse and/or unauthorised construction exists, conversion may be allowed only after recovering the misuse charges and/or damages charges, irrespective of whether earlier demanded or not. 14. WHETHER CONVERSION WILL BE GRANTED IF THERE IS ENCROACHMENT ON GOVERNMENT/PUBLIC LAND? No. Conversion to freehold shall not be permitted in respect of a property involving encroachment on Government/ Public land. 15. WHETHER CONVERSION WILL BE GRANTED IF THERE IS A DISPUTE BETWEEN THE LESSOR AND LESSEES ABOUT PAYMENT OF CERTAIN DUES? No, Conversion will not be granted unless any pending dispute including for payment of certain dues in respect of leasehold premises between the lessor and lessee is resolved. 16. WHETHER APPLICATION FOR CONVERSION CAN BE GIVEN DURING THE PENDENCY OF SUBSTITUTION/MUTATION? Applications can be given by the person/persons on whose names the substitution/mutation will have to be carried out. However, these applications will be considered only on disposal of pending substitution/mutation case. On disposal of substitution/mutation case, if it is found that the substitution/mutation is carried out on the name of the same person/persons who applied for conversion, the same application will be taken into account. Otherwise the conversion application will be rejected. 20. ON WHAT GROUND THE CONVERSION APPLICATION WILL BE REJECTED? The Conversion application will be rejected on any of the following grounds :- 20.1 When the lease stood determined/cancelled or the property stood re-entered. 20.2 When there is a pending litigation about the title of the property. 20.3 When there is a pending litigation between the lessee and lessor. 20.4 When the property is mortgaged and No Objection Certificate for conversion obtained from the mortgagee is not enclosed with the application. 20.5 When the application is signed by a person who is not eligible to apply for conversion. 20.6 If the applicant is a General Power of Attorney holder and the conversion is to be granted in favour of the purchaser and if there is no documents to evidence the transaction in favour of the purchaser. 20.7 When the applicant is holder of Power of Attorney and the conversion is to be granted in favour of the purchaser and there is no evidence produced in support of the possession of the premises with the purchaser. 20.8 When the allottee of the plot did not complete the construction of the building and does not produce any evidence in this regard. 20.9 When the charges payable under different heads mentioned in the application forms are not fully paid. 20.10 If the property involves encroachment on public land/Government land. 20.11 When the application is incomplete.

(3.) The extant Policy has not been assailed by any party and therefore this Court is not called upon to reflect on its reasonableness or legal propriety. However, even if an assault had been mounted against it and a judicial review was to be undertaken, I would find in favour of the Policy since it does not manifest any of the hues of Wednesbury unreasonableness. Properties in the metropolis have already virtually moved out of the hands of the Government because of the execution of long term leases, majority of which have a tenure of 99 years. The rents are so nominal that even administrative costs may not be recoverable. Furthermore, it would be most sanguine to expect that these lands and/or buildings could be resumed by the Government even after the tenure has run out; the public will be incenced to such an extent that political parties are likely to steer clear from any such attempt. The present scheme has the direct effect of earning revenue for the Government through conversion charges, and at the same time, reducing administrative obligations and costs. What is most important and significant is that misuser or unauthorised constructions are not condoned at all, since other Authorities are duty bound to take legal action on these infractions. In the process of conversion to freehold, the terms of the existing leases would be rendered ineffectual no doubt, but the other important aspects which are already regulated by the Master Plan etc. would remain unaffected. Having pondered on this subject for several months, within which period a host of petitions have been allowed directing the implementation of the Policy, I am in no manner of doubt that it is well conceived and remains worthy of strict and immediate compliance. WP (C) No.6837/2005 has been allowed by me on 2.8.2005; WP (C) No.7751/2005 on 11.11.2005; WP (C) No.7990-92/2002 on 9.12.2005 and WP (C) No.2835/2003 on 14.12.2005.