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Date of Decision: 23rd December, 2015
M/S AGGARWAL SOAP FACTORY & ORS ..... Petitioners
Through: Mr. Ajay Gulati, Adv.
Through: Mr. Vikas Sood, Adv.
JUDGMENT
1. Allowed, subject to just exceptions.
2. The application is disposed of. W.P.(C) 12220/2015
3. The petition impugns the communication dated 25th November, 2014 of the respondent Delhi State Industrial and Infrastructure Development Corporation Ltd. (DSIIDC) to the extent demanding unearned increase charges in the sum of Rs.9,44,569/- from the petitioner no.1 for recording change in the constitution of the petitioner no.1 firm. Axiomatically, mandamus is sought to the respondent to record such change.
4. Finding that the issue is no longer res integra and has been settled 2015:DHC:10526 vide several dictas of this Court, it has been enquired from the counsel for the respondent DSIIDC appearing on advance notice, why the petition should not be allowed forthwith.
5. The counsel for the respondent DSIIDC though states that there are Land Management Guidelines of the respondent DSIIDC which do not permit the same and / or which authorise the respondent DSIIDC to demand such charges but is neither carrying the said Guidelines nor is able to cite any specific provisions thereof. He is also not able to respond to as to why the view taken by this Court in Shri Kranti Kumar Jain Vs. Delhi State Industrial and Infrastructure Development Corporation Ltd. MANU/DE/3373/2014 is not to be followed in this case. He is also not able to state whether there is any appeal preferred against the said judgment. He lastly contends that he is not the main counsel and is proxy counsel and is appearing on advance notice and thus the matter be adjourned.
6. The practice of serving advance copy of the petition has been introduced to enable petitions, which can be disposed of on the very first date and / or the question wherein is no longer res integra, to not clog the board of this Court and to be disposed of on very first date. There is no reason for the counsel for the respondent DSIIDC not to appear and to send a proxy counsel that too without any instructions.
7. As per the documents on record, it is found that the President of India, vide Perpetual Lease Deed dated 20th June, 2006, granted lease in favour of M/s Aggarwal Soap Factory i.e. the petitioner no.1 though its partners Sh. Mange Ram Gupta, Smt. Sumitra Devi (i.e. the petitioner no.3 herein) and Sh. Pawan Kumar Gupta (i.e. the petitioner no.2 herein), of industrial plot No.2685, Sector-B, in the layout plan of Narela, containing by admeasurement an area of 149.328 sq. mtrs.
8. Clause 5 and Clause 8 of the said Lease Deed are as under: “5(a) The Lessee shall not sell, transfer, assign or otherwise part with the possession of the whole or any part of the industrial plot except with the previous consent in writing of the Lessor which he shall be entitled to refuse in his absolute discretion.
PROVIDED that such consent shall not be given for a period of ten years from the commencement of this lease unless, in the opinion of the Lessor exceptional circumstances exist for the grant of such consent.
PROVIDED FURTHER, 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 industrial 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 pre-emptive right to purchase the property after deducting fifty percent of the unearned increase as aforesaid. 5(b) Notwithstanding anything contained in sub-clause (a) above, the Lessee may with the previous consent in writing of Lt. Governor of Delhi (hereinafter called the Lt. Governor) mortgage or charge the industrial plot to such person as may be approved by the Lt. Governor in his absolute discretion.
PROVIDED that in the event of the sale or fore-closure 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 industrial plot as aforesaid, and the amount of the Lessor‟s share of the said unearned increase, shall be a first charge having priority over the said mortgage or charge. The decision of the Lessor in respect of the market value of the said industrial plot 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. 5(c) This lease / sub-lease shall stand automatically terminated if there is any change in the constitution of the Proprietorship / Partnership firm as on the date of execution of the deed without the prior approval of the Lessor, except changes due to death of the Proprietor or any of the partners.
8. Whenever the title of the Lessee in the industrial plot is transferred in any manner whatsoever the transferor or and the transferee shall within three months of the transfer, give notice of such transfer in writing to the Lessor. In the event of the death of the Lessee the person on whom the title of the deceased devolves shall within three months of the devolution, give notice of such devolution to the Lessor. The transferee or the person on whom the title devolves, as the case may be shall supply the Lessor certified copies of the documents evidencing the transfer or devolution.”
9. It is the case of the petitioner that Sh. Mange Ram Gupta, one of the partners of the petitioner no.1 firm to whom the lease was granted, died interstate leaving besides the petitioner no.2, six other legal heirs and all of which legal heirs have by registered deeds relinquished / released the share inherited by them in the petitioner no.1 firm and the leasehold rights in the land aforesaid in favour of the petitioner no.2 making the petitioner no.2 and petitioner no.3 the only partners of the petitioner no.1 firm. The petitioner no.2 accordingly applied to the respondent DSIIDC to record the aforesaid in its books and to transfer the share of Sh. Mange Ram Gupta in favour of the petitioner no.2 Sh. Pawan Kumar Gupta @ Pawan Garg. However, the respondent DSIIDC has demanded unearned increase for effecting such change.
10. The counsel for the petitioners has contended that the petitioners are not seeking any conversion of leasehold rights into freehold but only wanting the change in the constitution of the petitioner no.1 firm which is the lessee under the Perpetual Lease Deed aforesaid to be recorded in the books of the respondent DSIIDC. Reliance is placed on Shri Kranti Kumar Jain supra.
11. The only objection which the respondent DSIIDC can have for not recording such change and / or to demand unearned increase therefor is on the ground that the other legal heirs of Sh. Mange Ram Gupta have released / relinquished their share in favour of the petitioner no.2 who was already a partner. However, the same in my view cannot be a ground for demanding unearned increase.
12. When a partner dies interstate leaving several heirs, it is always open to the heirs to release / relinquish their share in favour of one or more of them. It is not as if the person who is claiming substitution in place of the deceased partner is an outsider to the petitioner no.1 firm or that the heir of the deceased partner being inducted for the first time in the firm for it to be said that by this device / mode the leasehold rights are being transferred / assigned. A perusal of the photocopy of the registered Partnership Deed dated 13th February, 2011 which is stated to have been in force at the time of execution of the Perpetual Lease Deed is also found to provide that in case of death of any partner his share will be transferred to his / her legal heir/s only. This is an internal matter of the legal heirs whether they want only one of the partners to succeed to the share of their predecessor and the respondent DSIIDC cannot have a say in the same.
13. The petition is thus allowed.
14. The respondent DSIIDC, on the facts hereinabove recorded, is held not entitled to claim any unearned increase for recording such change in the constitution of the petitioner no.1 firm. However, before any mandamus can be issued to the respondent to record the said change, it is deemed appropriate that the petitioners no.2 and 3 appear before the concerned official of the respondent DSIIDC along with original documents to enable the respondent DSIIDC to satisfy itself as to the factum of the death of the deceased and of the other legal heirs having relinquished / released their share in favour of the petitioner no.2.
15. The petitioners no.2&3 to appear before the Relocation Division Officer, Narela of the respondent DSIIDC on 11th January, 2016 at 1500 hours along with original documents and if the said official is satisfied of the demise of Sh. Mange Ram Gupta and genuineness of the documents, the needful shall be done. Else, reasoned order shall be passed and communicated to the petitioners on or before 31st January, 2016. No costs. Dasti.
RAJIV SAHAI ENDLAW, J. DECEMBER 23, 2015/„gsr‟..