JUDGEMENT
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(1.)PLOT No. D -945, New Friends Colony was allotted to one Mr. Amrik Singh and a sub -lease deed in his favour was executed on 18.01.1973. Vide registered Will dated 14.10.1997, he bequeathed the aforesaid property of the respondent Kiran Kohli. On the demise of Shri Amrik Singh, the aforesaid property was mutated in the name of the respondent on the basis of the Will executed in her favour. Vide letter dated 14.04.1986, the appellant - -DDA suspended the letter dated 02.09.1982, whereby the aforesaid property was mutated by it in the name of the respondent, alleging contravention of clause ii. 6(a) and (b) of the sub lease deed. The plea taken by DDA, in nutshell, was that the respondent had purchased the aforesaid property from Mr. Amrik Singh and, therefore, the Will executed in her favour was for consideration and not out of natural love and affection. In the meanwhile, DDA also notified a scheme for conversion of leasehold properties into freehold properties, DDA also decided to grant freehold rights also in respect of those properties which had already changed hands from the original allottee, provide the purchases paid 1/3 of the prescribed conversion charges as penalty or additional conversion fee. The documents required by DDA for conversion of leasehold rights into freehold rights in such cases comprised agreement to sell and power of attorney in favour of the purchaser. In the absence of these two vital documents, conversion of leasehold property into freehold property was not envisaged under the scheme notified by DDA. The respondent applied for conversion of the aforesaid property into freehold on 30.08.1996 and also agreed to pay the prescribed conversion charges. DDA, however, did not allow the conversion sought by her.
(2.)BEING aggrieved from the act of the appellant in suspending the mutation and refusing conversion of the aforesaid property into freehold, the respondent filed a writ petition, seeking direction to the appellant to convert the aforesaid property into freehold. The respondent also assailed the demand of 50% of the earned increase by DDA vide its letter dated 08.05.1986.
Vide subsequent letter dated 08.05.1986, DDA agreed to restore the mutation subject to payment of 50% of the earned increase.
The learned Single Judge vide impugned order dated 30.01.2008 held that the appellant DDA was not entitled only to recover 50% of the earned increase and that the respondent would be entitled to conversion of the aforesaid property into freehold on payment of prescribed conversion charges along with prescribed penalty or additional conversion charges. The learned Single Judge was of the view that there was no distinction between the cases of transfer on the basis of documents such as agreement to sell and power of attorney and transfer on the basis of Will in favour of the transferee. Being aggrieved from the said order, the appellant DDA is before us by way of this appeal.
(3.)CLAUSE II. 6(a) and (b) of the sub -lease executed by DDA in favour of Shri Amrik Singh reads as under:
11.6 (a) The Sub -Lessee shall not sell, transfer, assign or otherwise part with the possession of the whole or any part of the residential plot in any form or manner, benami or otherwise, to a person who is not a member of the Lessee.
(b) The Sub -Lessee shall not sell, transfer, assign or otherwise part with the possession of the whole or any part of the residential plot to any other member of the Lessee 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 residential plot at the time of sale, transfer, assignment, or parting with the possession, the amount to be recovered being fifty per cent 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 preemptive right to purchase the property after deducting fifty per cent of the unearned increase as aforesaid.
It would thus be seen that that the sub lessee Shri Amrik Singh could not have sold, transferred or assigned or otherwise parted with possession of the property sub -leased to him in any form or manner, without prior permission of the lessor. It further shows that the lessor was entitled to refuse such permission, if sought, in its absolute discretion and in the event of permission being granted, the lessor could impose such conditions as it deemed appropriate and was also entitled to recover 50% of the earned increase in the value of the property. The expression 'earned increased' has also defined in the sub -lease to mean the difference between the land premium paid by the sub -lessee and the market value of the plot at the time it was sold, transferred, assigned or parted with.
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