K. Ramamoorthy, J.@mdashThe facts in CW 350/95 could be stated thus:
On the 27th of April, 1971, the land admeasuring 1,960 sq. yds. equal to 1,633 sq. metres was granted on perpetual sub-lease to one Satish Chander Malhotra. On the 25th of November, 1988, Satish Chander Malhotra sold his rights to the fourth respondent Smt. Kaushlaya Rani Bhusari. On the 24th of October, 1993, the petitioner entered into an agreement for sale with the fourth respondent. On the 7th of January, 1994, the Appropriate Authority under the Income Tax Act, 1961 issued No Objection Certificate u/s 269UL(3) of the Income Tax Act, 1961. On the 1 st of December, 1994, the DD A made a demand for Rs. 4.13 crores towards 50% unearned increase in the value of the land of the said property. On the 26th of December, the petitioner made a representation to the Joint Director (CS), DDA, objecting to the demand for Rs. 4.13 crores and requested that if it is revised to Rs. 1,07,18,444.50, the petitioner could pay the amount and on receipt of information, the petitioner would comply with the same. But that was not done. Therefore, the writ petition was filed and the petitioner has prayed for the following reliefs:
"In the above facts and circumstances of the case and ground, the petitioner most humbly prays that this Hon''ble Court may be graciously pleased to issue:
(i) A writ of certiorari quashing the order/letter No. F.l(286) 78/CS/ DD/935 dated 1.12.1994 granting sale permission of property No. 4, Palam Marg, Vasant Vihar, New Delhi subject to the condition of payment of Rs. 4.13 crores as the amount of unearned increase.
(ii) A writ of mandamus directing the respondents 1 and 2 to rectify and revise/determine the amount of unearned increase on the basis of the fixed rates which have been declared/announced vide the aforesaid notification/circulars/orders issued by the respondents 1 to 3 and the order/letter No. J-22011/2/903-LD dated 11.11.1994 issued by the Government of India, Ministry of Urban Land and Development, as mentioned in the writ petition.
(iii) Direct the respondents 1 & 2 to grant sale permission in respect of the aforesaid property bearing No. 4, Palam Marg, Vasant Vihar, New Delhi subject to the payment of unearned increase to be computed in accordance with the fixed rates announced and notified by the Government of India vide its aforementioned notification dated 11.11.1994, at Rs. 10,500/- per sq. metre for Vasant Vihar under the jurisdiction of Land & Development Office or, in the alternative, at the fixed rate of Rs. 15,120/- per sq. metre, fixed and notified by the Lt. Governor and the DDA vide the aforesaid notifications dated 24.6.92 and 11.8.92 and other letters/communications/orders as mentioned in the writ petition.
(iv) Stay of operation of the aforesaid letter/order No. F.1(286)/78/CS/ DDA/935 dated 1.12.1994 issued by the respondents 1 and 2."
CW. No. 883 of 1995
2. The facts of this case could be narrated thus
Shri Mangal Singh Monga, the father of the petitioners, was granted the perpetual sub-lease rights in property No. A-5/3, Government Servants Cooperative House Building Society Limited, Vasant Vihar, New Delhi - 110 067 admeasuring an area of 1,568 sq. yards. After the death of Mangal Singh Monga, the names of Ms. Harbans Monga and petitioners 1 to 7 were entered in the register of the DDA. Ms. Harbans Monga also died. Consequently, the petitioners 1 to 7 became entitled to the entire rights under perpetual sub-lease.
3. On the 19th of February, 1994, the petitioners entered into an agreement for the sale of the property to petitioners 8 & 9 for a consideration of Rs. 5 crores. An application u/s 37A Was made to the Appropriate Authority for the grant of No Objection Certificate. On the 12/16th of May, 1994, the Appropriate Authority granted the No Objection Certificate u/s 269UL(3) of the Income Tax Act, 1961. On the 23rd of May, 1994, the petitioners jointly applied to the DDA for the grant of sale permission in respect of the said property.
4. By letter dated 22.2.1995, the DDA sent a letter demanding a sum of Rs. 3,62,44,420/- towards 50% unearned increase in the value of the land of the said property. On the 9th of March, 1995, the writ petition was filed in this Court praying for the following reliefs:
"In the premises stated above, it is Therefore respectfully prayed that this Hon''ble Court may be pleased to:
(a) Issue a writ of certiorari or such other appropriate writ, order or direction quashing Annexure-A, the impugned order/letter No. P.1(221)/78/CS/DDA/1664 dated 22.2.1995 issued by the Joint Director(CS) in the office of the Delhi Development Authority, Vikas Sadan, INA, New Delhi in connection with sale permission in respect of property No. A-5/3, Government Servants Co-operative House Building Society Limited, Vasant Vihar, New Delhi -110 067 subject to the condition of prior payment of Rs. 3,62,44,4207- as the amount towards 50% unearned increase;
(b) issue a further writ of mandamus or such other appropriate writ, order or direction directing the respondents 1 and 2 to rectify and revise/determine the amount of unearned increase on the basis of the fixed rates which have been declared announced vide the aforesaid notification/circulars/orders issued by the respondents 1 to 3 and the order/letter No. J-11-11/2/903-LD dated 11.11.1994 issued by the Government of India, Ministry of Urban Land & Development, as mentioned in the writ petition;
(c) direct the respondents 1 and 2 to grant sale permission in respect of the aforesaid property bearing No. A-5/3, Government Servants Cooperative House Building Society Limited, Vasant Vihar, New Delhi-110067 subject to the payment of unearned increase to be computed in accordance with the fixed rates announced and notified by the Government of India vide its aforementioned notification dated 11.11.1994 at Rs. 10,500/- per sq. metre for Vasant Vihar, under the jurisdiction of Land & Development Office or, in the alternative, at the fixed rate of Rs. 15,120/- per sq. metre, fixed and notified by the Lt. Governor and the DDA vide the aforesaid notifications dated 24.8.92 and 11.8.92 and other letters/communications/orders as mentioned in the writ petition.
(d) further order the stay of the operation of the aforesaid order/letter ''F.1(221)/78/CS/DDA/1664 dated 22.2.1995 issued by the Joint Director(CS) in the office of the Delhi Development Authority, Vikas Sadan, INA, New Delhi in connection with sale permission in respect of property No. A-5/3, Government Servants Co-operative House Building Society Limited, Vasant Vihar, New Delhi - 110 067 No. F.1(286)/78/CS/DDA/935;
(e) the cost of the proceedings."
C.W. No. 3948 of 1995
5. The facts of this case could be narrated thus:
On the 17th of April, 1965, the plot, now known as No. 6, Eastern Avenue, Maharani Bagh, New Delhi, was granted to late Narayan Raghvan Pillai under perpetual sub-lease. The said allottee died on the 31st of March, 1992. During his life-time, by his testamentary disposition, he bequeathed the said property in favor of his two sons, Shri Raymond Ajit Pillai (R-4) and Shri Raghavan Sushil Pillai (R-5) by a Will dated 13.03.1978. By order dated 28.5.1993, the DDA carried out mutation in its register mentioning the names of respondents 4 & 5. By order dated 16.11.1993, the District Judge, Delhi granted probate of the said Will dated 13.3.1978 in Probate Case No. 333/1992. Therefore, according to the petitioner, the right of respondents 4 & 5 in the property has been established.
6. On the 16th of January, 1994, respondents 4 & 5 entered into an agreement for the sale of the property in favor of the petitioner. An application was made to the Appropriate Authority under Form 37-1 for No Objection Certificate and on the 28th of April, 1994, the Appropriate Authority issued No objection Certificate. Thereupon, respondents 4 & 5 made an application to the DDA for permission for the sale of the property by their letter dated 17.6.1994.
7. By letter dated 4.9.1995, which was received by respondents 4 &5 on the 12th of October, 1995, the DDA made a demand for a sum of Rs. 2,23,84,725/- towards 50% provisional unearned increase for grant of sale permission. On the 19th of October, 1995, the petitioner filed this writ petition praying for the following reliefs:
"In the circumstances, the petitioner most humbly prays that this Hon''ble Court may be graciously pleased to issue:
(i) A writ of certiorari or any other appropriate writ, order or direction to call for the records of the respondent No. 1 and to quash the order/ letter No. F.3(1)78/CS/MB/DDA/4087 dated 4.9.95 granting sale permission of property No. A-1, Maharani Bagh, New Delhi subject to the condition of payment of Rs. 2,23,84,725/- as the amount of unearned increase.
(ii) A writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 and 2 to rectify and redetermine the amount of unearned increase on the basis of the fixed rates which have been declared/announced vide the aforesaid notification/ circulars/orders issued by the respondents 1 to 3 and the order/ letter No. J-22011/2/903-LD dated 11.11.1994 issued by the Government of India, Ministry of Urban Land and Development."
8. The stand taken by the DDA is that it had acted in accordance with law and the petitioners cannot challenge the demand made by the DDA. The parties are bound to the terms of the perpetual sub-lease deed and it is mentioned in the deed that the unearned increase is to be on the basis of market value. According to the DDA, the petitioner has no right to challenge this.
9. The learned Senior Counsel, Mr. L.R. Gupta, made submissions in C.W. 350/95. Mr. Mukul Rohtagi, the learned Senior Counsel, made submissions in C.W. 883/95 and Mr. A.N. Haksar, the learned Senior Counsel, made submissions in C.W. 3948/95.
10. Mr. L.R. Gupta, the learned Senior Counsel, submitted that in 1961 the Ministry of Home Affairs, Government of India, issued a letter dated 2.5.1961 regarding the control on land values in the urban areas of Delhi and acquisition, development and disposal of land in Delhi. The learned Senior Counsel for the petitioners submitted that the demand made by the DDA is, absolutely arbitrary and it is a case of colourable exercise of power and the DDA had also acted unreasonably. The learned Senior Counsel referred to the calculation sheet with reference to the properties in Punch Sheel and Anand Lok. The main argument was that there was no policy for the years 1993, 1994 and 1995, and, Therefore, the L&DO had been issuing orders relating to fixation of market rate for the purpose of recovery of unearned increase.
11. On the 24th of June, 1992, an order was issued by the Delhi Administration. On the 11th of August, 1992, the DDA issued proceedings applying the rates mentioned in the proceedings dated 24.6.1992. On the 11th of November, 1994, the Under Secretary to the Government of India, Ministry of Urban Development (Lands Division), Government of India, issued a letter to the Land & Development Officer, Nirman Bhavan, New Delhi and to the Vice-Chairman, Delhi Development Authority, Vikas Sadan, New Delhi/While extending the validity that the land rates w.e.f. 1.4.1994 till March, 1996, the letter directed the DDA to submit all proposals for revision of land rates with effect from 1.4.1996. Therefore, according to the learned Senior Counsel for the petitioners, in all the writ petitions, the position is that the DDA is bound by the order dated 24.6.1992 and the market rate, for the purpose of fixation of unearned increase, has to be on the basis of the order with reference to areas mentioned therein, and the DDA cannot seek to recover the unearned increase on the basis of sale consideration mentioned in the agreement for sale. According to the learned Senior Counsel, the sale considerations mentioned in the agreements for sale do not represent the correct market value and that is the reason why that market rates had been fixed for the purpose of unearned increase.
12. Mr. Ravinder Sethi, the learned Senior Counsel for DDA, submitted that there is a specific clause in the perpetual sub-lease deed with reference to this aspect and it is only on that basis, the demand had been made in all the cases. The fixation of rates by the L&DO was not with reference to unearned increase. When the unearned increase has to be fixed on the basis of market value, no calculation is involved. The agreement for sale is the basis on which the market value could be arrived at. According to Mr. Ravinder Sethi, the learned Senior Counsel for DDA, it will be paradoxical that the petitioner could say that the unearned increase would be paid only on the basis of the orders passed by the L&DO when there is a specific clause in the lease deed itself giving clear guidance as to how to fix the unearned increase, because the clause states that the unearned increase is to be difference between the premium paid and the market value. The learned senior Counsel, Mr. Ravinder Sethi, also submitted that in 1994 the Lt. Governor had decided that the unearned increase should be on the basis of what is stated in the agreement for sale.
13. Dealing with the three other matters A-1, Maharani Bagh, S-23, Panch Sheela, CHBS Ltd., and 14, Anand Lok, the learned Senior Counsel for DDA, Mr. Ravinder Sethi, submitted that they are not relevant for the purpose of deciding the issue in the present writ petitions. The DDA had also proceeded as per the policy, and, Therefore, the petitioners cannot have any grievance.
14. Mr. Ravinder Sethi, the learned Senior Counsel, referred to an order passed by this Court in CW.3517/93. The Order reads as under:
"C W. 3517/93 and CM. 5639/93 "
Heard on the question of admission. The record of the respondent authority has also been made available for our perusal. The dispute raised is of demand by the respondent authority by working out the amount of 50% of the unearned increase of Rs. 15,04,300/-. The respondents have explained the basis of calculation in para 9 of their counter affidavit and internal pages 9 and 10. We find that the calculation has been reasonably made by taking into consideration the figure of sale disclosed by the petitioner himself. No case is, Therefore, made out for interference in exercise of writ jurisdiction of this Court.
The petition is dismissed."
15. The learned Senior Counsel for the petitioner in C.W. 358/95 referred to the counter-affidavit filed by the second respondent therein, i.e. the DDA. In the counter-affidavit, it is clearly mentioned:
"It is further stated that 50% of the unearned increase was also calculated on the basis of the market value/rate of Rs. 5,400/- per sq. meter, which was the rate notified by the Government of India by letter dated 1.6.1987 and the said rates were considered for 100 FAR and since total FAR is 824 sq. metre, the amount of 50% of the unearned increase was worked out to Rs. 15,04,300/-."
16. Therefore, it is clear that the DDA had been following the rates modified and fixed by the Government of India and the Orders passed by the Division Bench would any way affect the case of the petitioners in the writ petitions.
17. On the 24th of June, 1992, the Delhi Administration issued an order mentioning the rates for the purpose of recovery of unearned increase. The same reads as under:
"Lt. Governor of National Capital Territory of Delhi is pleased to revise the market rates of land for the purpose of recovery of unearned increase in the cost of land/plot consequent upon the transfer/sale of residential plots allotted under the Scheme of Large Scale Acquisition, Development & Disposal of Land in Delhi, superseding his previous orders conveyed vide order No. F.R.15(7)/82-L&B/3026-34 dated 31.1.92, as given below:
| S. No. | Name of Locality/Zone | Rate per
sq. m. fixed by Delhi Admn. w.e.f. 1.4.1988 to 31.3.90 (in Rs.) |
Revised
rates per sq. m. fixed w.e.f. 1.4.91 to 31.3.91 (in Rs.) |
Revised rate
per sq. m. fixed by Delhi Admn. w.e.f. 1.4.91 to 31.3.92 (in Rs.) |
| SOUTH ZONE | ||||
| (a) | Vasant Vihar, Anand
Niketan, Anand Lok, Panch Sheel Park, Gulmohar Park, West End, Niti Bagh, Maharani Bagh. |
6,500 | 8,750 | 10,500 |
| (b) | New Friends Colony | 6,500 | 8,750 | 10,500 |
| (c) | Safdarjung Area/
Enclave. |
6,000 | 8,750 | 10,500 |
| (d) | CRP Colony, East of
Kailash, Masjid Moth, Chirag Enclave. |
5,400 | 7,000 | 8,400 |
| (e) | Sarvodaya Enclave/
Colony |
5,400 | 7,000 | 8,400 |
| (f) | Malviya Nagar, Sadhna
Enclave, Cosmopolitan House Building Society |
4,800 | 6,300 | 7,600 |
| (g) | Kalkaji 4,800 7,000 8,400 | |||
| 2. | NORTH ZONE | |||
| (a) | Wazirpur | 5,200 | 5,200 | 5,300 |
| (b) | Shalimar Bagh | 5,000 | 5,000 | 5,300 |
| c) | Pitampura & Haidarpur | 4,200 | 4,380 | 5300 |
| d) | Prashant Vihar | 4,000 | 4,380 | 5,300 |
| (e) | Ashok Vihar | 4,000 | 4,380 | 5,300 |
| (0 | Yamuna Vihar | 4,000 | 4,380 | 5,300 |
| 3. | WEST ZONE | |||
| (a) | Tagore Garden | 5,000 | 5,250 | 6,300 |
| (b) | Naraina | 5,000 | 5,250 | 6,300 |
| (c) | Vikas Puri | 2,000 | 5,250 | 6,300 |
| (d) | janak Puri | 5,000 | 5,250 | 6,300 |
| (e) | Paschim Puri | 2,900 | 7,000 | 8,100 |
| (0 | Paschim Vihar | 3,800 | 7,000 | 8,100 |
| 4. | EAST ZONE | |||
| (a) | Jhilmil | 1,450 | 2,100 | 2,550 |
18. On the 5th of October, 1993, while fixing the unearned increase with reference to plot No. S-23, Panchsheela, CHBS Ltd., the Accounts Officer of the DDA had noted the following :
"Sale permission in respect of the above captioned plot No. S-23, Panchshila, CHBS Ltd. has been sought by Shri K.D. Somaia, sub-lessee in favor of Shri Viyal Relan. It may be pointed out here that it is the second sale; Shri K.D. Somaia purchased the aforesaid plot from Shri Balwant Singh Nag the original sub-lessee. The permission at that time was granted vide L.G.''s order dated 7.6.1978 in the Management file or pa/N (file No. F.2(319)/78/CS/DDA PS linked below). P-9''XNflag-A side.
The Management wing has sent the case for calculation of 50% unearned increase. As such, the calculation has been done as per calculation sheet placed opposite. The market rates for 1993-94 have not been received after after 31.3.1992 from Delhi Admn. The market rates as circulated vide order No. F.16(7)/82-L&B/20369 dated 24.6.1992 for Panchshila for the purpose of sale etc. were Rs. 10,500/- up to 31.3.1992. The calculation now done is based on provisionally enhancement of 20% for the period 1.4.93 to 31.3.93 and further increase of 20% for the period 1.4.93 to 31.3.94. The rate applicable in the instant case are Rs. 15,120/- per sq. mtr. as the application for sale permission is May, 1993. On the basis of those rates i.e. Rs. 15,120/- per sq. mtr. the 50% unearned increase comes to Rs. 48,54,764 /-. As stated above, this is the second sale, but the 50% unearned increase deposited at the time of first sale permission has not been deducted from the amount of 50% unearned increase calculated now for the second sale because, though, the issue regarding deduction of unearned increase paid earlier has been approved by the Authority, but this matter is under consideration of the Ministry. The approval or otherwise, of Ministry in this regard has not been received as yet. If approved, this amount may be conveyed to the applicant. Further, it may also be communicated to him that this demand is provisionally subject to revision on receipt of rates for the period 93-94 from Delhi Admn. For this, management shall be asked to obtain an affidavit from the legatee.
In the instant case the applicant has not submitted income tax clearance. As it is a pre-condition for sale-permission, Management wing will be asked to get the same before 31.3.94, otherwise the market rates would be reviewed/ revised for the purpose of calculation of unearned increase on the date the Income Tax clearance is submitted by the legatee.
Submitted for approval of "A"."
19. The Accounts Officer has made specific reference to the order dated 26.4.1992.
20. On the 11th of November, 1994, the Government of India had written to the Land & Development Officer of the DDA specifically mentioning that the rates fixed would continue to be in the force and proposal should be sent by DDA for revision of land rates w.e.f. 1.4.1996. The same reads as under:
"The question of fixation of market rates of land in different areas of Delhi/ New Delhi w.e.f.1.4.1994 has been under consideration of the Government and it has been decided not to increase the land rates w.e.f.1.4.1994 but to extend the validity of the land rates for commercial/residential purposes as well as guidelines/principles laid down in this Ministry''s letter No. J-22011 / 1/91-LD dated 3rd March, 1993 for two more years i.e. w.e.f. lst April, 1994 till March, 1996 as per schedule attached.
2. The market rates for residential/commercial purposes are based on existing FARs prescribed for various areas.
3. In so far as hotel and cinema sites are concerned, each case should be specifically considered in consultation with the Ministry of Finance.
4. For any locality not covered by the schedule annexed hereto the rate for comparable areas will be applied.
5. Proposal for revision of land rate with effect from 1.4.1996 should be submitted by the Land and Development Office/DDA/Delhi Admn. to the Government at least six months before 1st April, 1996.
6. This issues with approval of the Finance Division vide their U.O. No. 996/ FD(L)/94 dated 10.11.1994."
21. On the 28th of November, 1995, the DDA had passed a Resolution No. 98/ 95 in this behalf. The relevant portion of the same reads as under:
"The lessor''s permission to sell/transfer a plot is given subject to charging of unearned increase in the market value of the plot as per the lease deed terms.
In supersession of the previous policy on the method of calculation of unearned increase the following methods are prescribed as approved by Authority vide Resolution No. 98/95.
These calculations will be applied as per the administrative guidelines on the applicability of unearned increase under various circumstances for transfer/ sale as prevailing now.
The rate shall be charged as applicable on the date of filing the application. The demand letter will not be updated if issued late. However, interest @ 10% p.a. shall be charged if payment is made after 60 days from the date of issue of demand letter.
All the cases where final demand has not been raised and/or received for calculations of UE1 based on the rates of 1994-95, the demand will be finalised on the basis of this new policy."
22. It is stated therein that in all cases where final demand had not been raised, the demand will be finalised only on the basis of the new policy. In mis it is clearly stated that unearned increase is to be worked out with reference to the consideration amount shown in the Income Tax Clearance Certificate, including the structure value. Therefore, in respect of the demands made to the petitioners, the demand for untamed increase could be only on the basis of the order issued by the Delhi Administration on the 24th of June, 1992. There is no dispute that in all the three matters demand had been made and, Therefore, the DDA cannot seek to project the case that there was a policy decision and the petitioner cannot have any grievance. As submitted by the learned Senior Counsel for the petitioners, there was no policy prior to 28.11.1995.
23. In this view, we feel it is not necessary to go into various authorities cited by the learned Senior Counsel for petitioners and also the learned Senior Counsel for the DDA.
24. It is also not disputed that with reference to A-1, Maharani Bagh, S-23, Panchshila, CHBS Ltd., and 14, Anand Lok, the unearned increase was calculated on the basis of the order passed by the Delhi Administration on 24th of June, 1992, which was accepted by the DDA on the 11th of August, 1992. The proceedings issued by the DDA on the 11th of August, 1992 reads as under :
"A copy of the Joint Secretary (Admn.) L&B Deptt., Delhi Admn., letter No. F-16(7)/82/L&B/20369-75 dated 24.6.92 conveying the market rates of land indifferent areas of Delhi for computation of unearned increase recoverable in case of transfer/sale of Resdl. plots allotted under the scheme of Large Scale Acquisition Development and Disposal of Land in Delhi is enclosed.
1. These rates would be applicable to the plots measuring up to 500 sq. mtrs. in respect of Sale/Transfer of plots measuring more than 500 sq. mtrs., a rebate of 15% on the market price of area in excess of 500 sq. mtrs. would be allowed.
2. The date of submission of application by the party for permission for sale/transfer of land would be taken as the crucial date for the purpose of application of rates for calculating the unearned increase.
3. The permission granted by the office would be valid for a period of six months from the date of issue of the letter. If applicant does not complete the transaction within this period, permission already granted would be deemed to have been cancelled and the applicant shall have to apply afresh for the sale permission.
The localities for which no market rates of land have been indicated, the market rates of land for the adjoining/comparable locality may be made applicable.
This issues with the approval of P.M., DDA."
25. Therefore, it is clear that the DDA cannot be heard to contend that as per Clause (6)(B) of the perpetual sub-lease deed, what is stated in the agreement for sale could be taken to be the market value, as contemplated in Clause (6). Clause (6) of the perpetual sub-lease reads as under:
(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 or 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 or the lessee except with the previous consent in writing of the Lesser which he shall be entitled to refuse in his absolute discretion.
Provided that, in the event of the consent being given, the Lesser may impose such terms and conditions as he thinks fit and the Lesser 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 Lesser in respect of the market value shall be final and binding.
Provided Further that the Lesser shall have the Pre-emptive right to purchase the property after deducting fifty per cent of the unearned increase as aforesaid.
(c) Notwithstanding anything contained in Sub-clauses (a) and (b) above, the sub-lessee may, with the previous consent in writing of the Chief Commissioner, mortgage or charge the residential plot to such person as may be approved by the Chief Commissioner in his absolute discretion.
Provided that, in the event of the sale of the sale or fore-closure of the mortgaged or charged property, the Lesser shall be entitled to claim and recover the fifty per cent, unearned increase in the value of the residential plot as aforesaid, and the amount of the Lessors'' share of the said unearned increase shall be a first charge, having priority over the said mortgage or charge. The decision of the Lesser in respect of the market value of the said residential plot shall be final and binding on all parties concerned.
Provided Further that the Lesser shall have the pre-emptive right to purchase the mortgaged or charged property after deducting fifty per cent of the unearned increase as aforesaid."
26. It does not require any argument to say that the DDA was well aware of this clause and had issued the order dated 11.8.92 on the basis of the order issued by the Delhi Administration on the 24th of June, 1992. In the light of this, it is not open to the DDA to put forth the case that the market value, within the meaning of the Clause (6) of the perpetual sub-lease deed could be what is stated in the agreement for sale.
27. We are of the view that the DDA had no power to issue the demands in these writ petitions. Accordingly, the writ petitions are allowed and following directions are issued:
The DDA shall issue fresh demand to the petitioners in all these three writ petitions on the basis of order dated 24.6.1992. In case any amount had been paid on the basis of the impugned demand, the DDA shall be entitled to appropriate only that portion of the amount calculated in accordance with fixation of market rate of land as issued by the Delhi Administration on the 24th of June, 1992 and accepted by the DDA on the 11th of August, 1992 and shall pay back the balance with interest @ 18% p.a. from the date of payment by the petitioner concerned.
There shall be no orders as to costs.
