Full Judgment
Sanjay Kishan Kaul, J.
1. Rule.
With the consent of learned counsel for the parties, the matter is taken up for final disposal. One Smt. Saroj became a member of respondent No.2 co-operative society on 8.3.1962. During her life time on 11.10.1964 Smt. Saroj transferred her share in favor of her brother Shri Jagmohan Lal who nominated the petitioner as his nominee. In January 1980plot No.780 was allotted to Shri Jagmohan Lal and Shri Jagmohan Lal exchanged the said plot with Smt. Sheila Bhandari to offer plot No.659.
2. In January 1982 Shri Jagmohan Lal who was the bachelor applied for transfer of his share in favor of the petitioner who was the son of Smt. Saroj. It may also be noted that originally Smt. Saroj had nominated the petitioner as her nominee.
3. A perpetual sub lease deed was executed on 23.2.1982 in favor of the petitioner which was duly registered.
4. On13.10.1998 after a lapse of almost 16 years the DDA suddenly decided to issue a letter to the petitioner seeking payment of Rs.3,80,360 on account of 50% unearned increase along with interest @ 18%p.a. as the mutation/ transfer was made out of the blood relation as the petitioner was the son of the sister. The petitioner protested against the same on 23.11.1998.
5. The petitioner deposited the amount on 28.4.2000 under protest without interest. However, payment of interest was once again demanded on 5.6.2000 and finally the petitioner filed the present writ petition in view of the threat held out by respondent No.1 to cancel the sub lease deed in favor of the petitioner. Learned senior counsel for the petitioner contends that the demand of unearned increase after a lapse of 16 years is totally without any basis in law since the original allottee was the mother of the petitioner and the petitioner was in direct descendant. However, the mother of the petitioner Smt. Saroj had transferred her share in favor of her brother Shri Jagmohan Lal who was a bachelor and subsequently Shri Jagmohan Lal nominated the petitioner as the nominee. Not only this even perpetual sub lease was executed and registered and for no reason now after a lapse of 16 years the payment of unearned increase with interest was sought. Learned senior counsel also refers to the documents being letter dated 17.11.1971 in respect of another flat in respondent No.2 society where the Lt. Governor permitted a transfer in case of the son of wife's brother, taking into consideration that the person concerned did not have an issue. Learned senior counsel submits that the case of the petitioner would be similar since the petitioner is a nominee of the brother of his mother who was bachelor.
6. In the counter affidavit the only defense taken is that the fact came to the notice of respondent No.1 during audit objection and thereforee, unearned increase was demanded. It is further stated that the representation of the petitioner was sent to the Lt. Governor but was found untenable. It is relevant to note that no response has been given to the plea of the petitioner stating that the petitioner was being discriminated against in view of a similar case being allowed as aforesaid. A direction was also passed on 13.7.2001for the then counsel of DDA to examine the plea of the petitioner but no response has been filed.
7. I have considered the submissions advanced by learned counsel for the parties. Admittedly there has been no concealment on behalf of the petitioner insofar as the period prior to execution of sub lease deed is concerned since the appropriate application was made which has been considered and allowed by respondent No.1. The mother of the petitioner was the original member of the society and the petitioner is in the direct descendant being the son of Smt. Saroj. Smt. Saroj has, however, transferred her share to Shri Jagmohan Lal which transfer was recognized by respondent No.1. Shri Jagmohan Lal was a bachelor. Shri Jagmohan Lal in turn requested for transfer of his share in favor of the petitioner, being the bachelor and the petitioner being the son of his sister. This was accepted and a sub lease deed was executed in favor of the petitioner crystallizing the rights in favor of the petitioner.
8. Its also relevant to note that in terms of clause `6' of the said sub lease deed no transfer, assigning or parting with possession is permitted without prior permission of the perpetual Lesser. It is further provided that in the event of consent being given for transfer, Lesser 'may' impose such terms and conditions as it thinks fit including recovery of portion of the unearned increase.
9. The aforesaid clause `6' makes it clear that there ions mandatory provision to recover unearned increase but 'may' be imposed and recovered. No such unearned increase was recovered at the relevant stage of time and in fact permission was granted for transfer specially taking into consideration the inter se relationship between Smt. Saroj, Shri Jagmohan Lal and the petitioner. In my considered view it was rightly done.
10. In view of the aforesaid, there was no occasion after the lapse of 16 years to claim unearned increase from the petitioner on the basis of some audit objection. No details have been given as to how the audit objection came to be taken after a lapse of 16 years. It is also relevant to note that the case cited by the petitioner of a similarly situated person has referred to in Annexure `H'. That was also a case of transfer by a person who was aged and had no issue and transfer was made to the son of the wife's brother. The Lt. Governor approved the said case. In view thereof, there was no reason why the case of the petitioner should have been found not fit to waive the unearned increase, if at all the same was recoverable. The respondents have acted in a discriminatory manner.
11. A writ of mandamus is issued quashing the demand made by respondent No.1 in terms of letter dated 5.10.1998 and respondent No.1 is directed to refund the amount already deposited by the petitioner of Rs.3,80,360/- within a period of four weeks from today.
12. Incase the refund is not made within the four weeks, the same shall carry interest @ 18% p.a. from the date of deposit till the date of payment. Writ petition stands disposed of in the aforesaid terms leaving the parties to bear their own costs.