DR. VIKRAM HINGORANI AND ORS.  Vs UNION OF INDIA AND ORS.

W.P.(C ) 7452/2019 Page 1 of 13
$~27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decisio n: 27th January, 2021
+ W.P.(C) 7452/2019
DR. VIKRAM HINGORANI AND ORS. ….. Petitioner s
Through: Dr. Aman Hingorani, Advocate . (M:
9971288116)
versus

UNION OF INDIA AND ORS. ….. Respondent s
Through: Mr. Manish Mohan, CGSC with Ms.
Manisha Saroha, Adv ocate for R -1 &
R-2.
Mr. Santosh Kumar & Mr. Vikram
Saini, Advocate s for R -3.
(M:9999021461)
Mr. Amarendra Choubey, Advocate
for R -4.
Mr. B. L. Wali , Advocate for R -5.
CORAM:
JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J.(Oral )

1. This hearing has been done in hybrid mode (physical and virtual
hearing ).
CM APPL. 52813/2019 (for condonation of delay)
2. This is an application for condonation of 54 days’ delay in fil ing the
counter affidavit . For the reasons stated in the application, the delay is
condoned . Application is disposed of.
W.P.(C) 7452/2019, CM APPLs. 31038/2019 (for stay) , & 26100/2020
(for vacation of stay)

3. The Petitioners in the present case, along with Respondent No.6 are
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50% o wners of property bearing N o.13, Main Road, West Patel Nagar , New
Delhi (hereinafter, “ suit property ”). The other 50% is owned by
Respondent Nos.3 and 4 i.e., Mr. Gautam Tahilramani and Mr. George R
Tahilr amani . The case of t he Petitioners is that the L&DO is not mutating
the suit property in their name, leading to the filing of the present writ
petition.
4. This case has a long and chequered history. Without going into too
many historical facts, suffice it to say, that the Petitioners and Respon dent
No. 6 are the legal heirs/ representatives of Late Mr. H. B. Hingorani, who is
the original owner of the suit property . Respondent No s.3 and 4 are the legal
heirs of Late Mrs. Sati Ramchand Tahilramani , who is the daughter of Late
Mr. H. B. Hing orani . Sometime in 1998, Late Mrs. Sati Ramchand
Tahilramani is alleged to have entered into a collaboration agreement with
one M/s Push pa Builders to raise construction upon the entire suit property.
M/s Pushpa Builders in turn put Kotak Ma hindra Bank (earlier known as
ING Vysysa Bank) in possession of the ground floor of the suit property.
Thus, a long drawn litigation ensued between the builder , the bank and all
the legal heirs of the two owners.
5. A suit came to be file d by the Petitio ners against the builders and
various other Defendants seeking delivery of the legacy/ share in the suit
property as also partition , injunc tions and rendition of accounts . A final
decree of partition was recorded in the said suit on 24th April, 2008 in Suit
No.364/2004 titled Dr. Vikram Hingorani & Ors. v. Mr. Mohan Hingorani
& Ors., wherein the following agreement was arrived at:
“(a) That the share of the Plaintiffs and the
Defendant Nos. 1 to 3 in the suit land on which the
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superstructure shall be as fol lows:

The Plaintiff Nos. 1 to 3 = 1/6 share
The Plaintiff Nos. 4 to 6= 1/6 share
The Defendant No. 1 = 1/6 share
The Defendant Nos. 2 and 3 = 1/ 2 share

(b) That the existing superstructure has been
partitioned by metes and bounds as under:
Defendant No. 2 and 3: Basement, Second Floor,
Terrance with terrace rights upto the sky
Defendant No.1: A and B Type Flats on the First Floor
Plaintiff No. 1: D Type Flat on First Floor .
Plaintiff No. 2: B Type Flat on Ground Floor
Plaintiff No. 3: D Type Flat on Ground Floor
Plaintiff No. 4: C Type Fl at on First Floor
Plaintiff No. 5: C Type Flat on Ground Floor
Plaintiff No. 6: A Type Flat on Ground Floor

(c) That the open spaces in the front and rear at
the ground floor and the driveways will be jointly
owned by the Pl aintiffs only, and do not const itute the
common areas of the building . The Defendant No.2
and 3 shall have the right to access their portion of the
suit property from the main gate and through the side
entrance on the ground floor without a ny hindrance.
The Plaintiffs and the Defendant No.1 shall have the
right to have tanks/satell ite/ dish/cable TV/antenna etc
installed on the terrace and shall have access thereto
without any hindrance for the purpose of installation,
repla cement and maint enance of such I tems only.

(d) That should the Defendant Nos. 2 and 3 wish to
construct, th e terrace, the Plaintiffs will have no
objection to such construction subject to such
construction being legally permissible and subject to
such construction not ca using any damage whatsoever
to the building and /or the portions of the Plaintiffs and
Defendant No. 1 so partitioned by metes and bounds.
In case of such construction, the Defendant Nos, 2 and
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3 will, at their cost, provide/shift the water
tanks/satellite dish/cable TV/an tenna etc of the
Plaintiffs and the Defendant No. 1 onto the terrace of
such construction and provide the Plaintiffs and the
Defendant No. 1 access to such terrace without any
hindrance for the aforesaid purpose. While the
Plaintiffs shall provide the conv enient space on the
ground floo r for Installation of water motor/meter of
the Defendant No. 2 and 3, such installation would not
entitle the Defendant No. 2 and 3 to construct any
underground water tank in the premises.

(e) That a 4 feet w ide gate shall b e constructed by the
Defendant Nos. 2. and 3 at their expense on the right
end corner of the rear boundary wall. Should the
Defendant No. 2 and 3 need to keep any construction
material on the premises, such construction material
shall be ke pt only temporar ily on the rear side of the
building and if such construction material remains
unutilised for a period of three months, the
construction material will be removed immediately
from the premises by the Defendant Nos. 2 and 3 at
their cost. The Defendant No. 2 and 3 shall, at all
times, ens ure that no damage is caused to the rear side
of the building by their construction material and
should there be any damage, t he Defendant Nos. 2 and
3 shall i mmediately restore the damaged premises to
the ori ginal condition at their cost.

(f) That the ma in staircase and the existing lift shaft
shall remain the common areas of the building.

(g) That should any of the Plaintiffs or Defendant Nos.
1 to 3 wish to install a lift in the lift shaft within the
existing provision, h e/she can do so at his/her own
expense, provided that
(i) such lift will also become part of the
common area of the building along with the
lift shaft

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(ii) the party installing the lift will ensure
that there are suitable and accessible
openings of the l ift and lift shaft on each
floor of the building

(iii) the party installing the lift will ensure
the installation of such lift is duly sanctioned
by the competent authorities and is
run/maintained under a valid and subsisting
licence

(iv) each Plaintiff /Defendant No. 1 to 3 can
use the lift; and that

(v) the party installing the lift at his/her
expense, will not claim/charge any expense
or cost from the other parties for using the
lift, whether it be towards installation,
maintenance, us er charges, taxe s or for any
other purpose.
(h) That all proceeds/monies/mense profits/damages
from the suit property upto 18.3.2008 will be divided
between the Plaintiffs and the Defendant Nos. 1 to 3 as
per the following shares:

The Plaintiff Nos. 1 to 3 =1/6 share
The Plaintiff Nos. 4 to 6 = 1/6 s hare
The Defendant No. 1 = 1/6 share
The Defendant Nos. 2 and 3 = 1/2 share

As of 18.3.2008 onwards, the Plaintiffs and the
Defendant Nos.1 to 3 will be entitled to
proceeds/monies/mense profits/damages propo rtionate
to thei r respective portions of the su it property so
partitioned by metes and bounds.

(i) That each Plaintiff/Defendant Nos. 1 to 3 will be
entitled to apply and obtain from the competent
authorities mutation and/or freehold conversion in
their i ndividual names of their respective portions o f
the suit property so partitioned by metes and bounds.
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There will be no requirement of obtaining NOC from
each other for such purpose.

(j) That each Plaintiffs/Defendant Nos. 1 to 3 will be
entitled to aliena te or sell thei r respective shares in the
suit property/portions of the suit property so
partitioned by metes or bounds.

(k) That the transferee/vendee of each
Plaintiff/Defendant Nos. 1 to 3 will be bound by the
terms of the oral family settlement of 18.3.2008. It is
open to each Plaintiff/Defendant Nos. 1 to 3 to act in
the terms of the oral family settlement of 18.3.2008
through their lawful attorney/agent. ”

6. As per the said family settlement/ partition deed, various shares of the
parties were spelt out and a decree was passed o n 24th April, 2008 . As per
the family settlement , the Petitioners and Respondent No.6 were given their
undivided share in the land and also the super -structure. The possession
decree was, thereafter, passed on 15th January, 2013 putting the Pe titioners
in possession. The Su preme Court, vide order dated 25th April, 2018 in SLP
(C) Nos. 8694 -8699/2014 titled Kotak Mahindra Bank Ltd. v. Dr. Vikram
Hingorani & Ors. upheld both the decree of partition and t he decree of
possession in the following te rms:
“ Heard Mr. Shekhar Naghad e, learned senior
counsel for the petitioner and Mr. C.A. Sundaram,
learned senior counsel appearing for respondent nos.1
to 6.
In our considered opinion, this is not a fit case
for interference under Article 136 of the Const itution of
India.

The Special Leave Petitions are accordingly
dismissed.

However, having regard to the status of the
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petitioner, time is granted till end of December 2018 to
vacate the premises in question faili ng which the
concerned authorities of the b ank shall be liable for
contemp t of this Court.

Vide order dated 15.04.2014, while issuing
notice, it was directed that the petitioner shall deposit
before the trial court compensation fo r the use and
occupation of the premises @ R.2,00,000/ – per month
with effect from the date of the impugned order. The
amount so deposited was to be invested in a term
deposit which was to enure for the benefit of the
successful party .

In view of the order passed today, the
abov ementioned amount along with accrued intere st is
now directed to be releas ed in favour of respondent
nos.1 to 6 (plaintiffs before the trial court)

As the petitioner has been granted time to vacate
the premises till end of December 2018, it shall
continue to pay the use and occupation charges at t he
abovementioned rate to respo ndent nos.1 to 6 till the
vacation of the premises. Pending applications, if any,
stand disposed of. ”

7. The Petitioners, thereafter, sought mutation of their names in respect
of their share in the suit property. However, t he L&DO took the stand that
the property had been re -entered due to misus er, whereas , clear ly, the said
order of re -entry already stood withdrawn , as recorded on 3rd March, 2006 in
W.P. (C) 3182/ 2006 titled ING Vysya Bank Ltd. v. UOI & Ors. The
mutation ap plication, however, continue s to remain pending. Hence , the
present writ petition.
8. The prayer sough t in the present writ petition reads as under:
“(a) issue appropriate Writ, Direction and Order
setting aside/quashing the Rejection Le tter for
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Mutatio n No. L&DO/PS3/62952/389 dated 03.05.2019
issued by Deputy Land & Development Officer
rejecting the mutation application of the Petitioners in
respect of their share in Property No. 13, Main Road,
West Patel Nagar, New Delhi;

(b) issue an appropriate Writ , Direction and Order
setting a side/quashing the Mutation -cum-Substitution
letter No. L&DO/PS -III/195 dated 02.02.2005
pertaining the lease hold rights in respect of Property
No. 13, Main Road, West Patel Nagar, New Delhi in
the names of th e Respondent Nos . 3 and 4;

(c) issue a Writ of Mandamus directing the Respondent
Nos. 1 to 2 to mutate/substitute such lease hold rights
in respect of Property No. 13, Main Road, West Patel
Nagar, New Delhi in favour of the Petitioners in terms
of the fin al decree of par tition dated 24.04.2008 with
Exhibit C 1 passed by the Court of Shri N K Sharma,
A.D.J., Tis Hazari Courts, Delhi in Suit No. 364/2004;

(d) issue a Writ of Prohibition restraining the
Respondent Nos. 3 and 4 and all persons claiming
under them from acting on the Mutation -cum-
Substituti on letter No. L&DO/PS -III/195 dated
02.02.2005;

(e) issue a Direction to the Respondent No. 5 to pay the
misuse or other charges for breach of lease deed terms,
if any, levied by the Respondent No, 1 and 2;

(f) award costs of this Petition to the Petitio ners; and

(g) pass any other Orders as may be deemed fit and
proper.”

9. Mr. Manish Mohan, ld. CGSC appears for Respondent Nos.1 and 2.
Counter affidavit has been filed on behalf of Respondent Nos.1 and 2. The
stand taken by Respondent Nos.1 and 2 i.e., the L&DO is that the mutation
would be e ffected insofar as Respondent Nos.3 and 4 are concerned, only
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once the outstanding Government dues are paid by them. The relevant
portions of the affidavit of the L&DO is set out below :
“9. That a letter dated 04.06 .2012 was received from
Sh. G.T. Ramani wherein they have stated that no
space is occupied by any company for commercial use,
only ING Vysya Bank is operating on the ground floor
and also stated that all the c onstruction has been made
as per plan approved by MCD. They have also
requested to inspect the premises and ready to pay the
charges for withdrawal of re -entry. However, no
Sanctioned Building Plan/ any other documents were
furnished by the Respondent No. 3 & 4. Therefore ,
terms for withdrawal of re -entry could not be offered to
them, and withdrawal of re -entry order to Respondent
No. 3 & 4 could be issued only on the recovery of all
outstanding Government dues from Respondent No. 3
& 4 and Respondent No. 5 . Thereafter, no
communication was received fro m Respondent No. 3 &
4.
xxx
11. That thereafter, inspection notice was issued on
14.01.2019 for inspection of the premises on
21.01.2019. In response, Respondent No. 3 requested
for another date. Another notic e was issued on
24.01.2019 for inspection of th e premises on
04.02.2019. Technical team of this office visited the
site on 04.02.2019 and found the breaches of
unauthorized construction. Breach notice was issued
on 12.03.2019 to the Respondent No. 3 & 4. H owever,
as per p rocedure of this Office, conver sion / mutation /
substitution or any request of the Respondent No. 3 &
4 can be taken up / considered only after the
withdrawal of re -entry qua them and withdrawal of re –
entry can be done only on the recovery of all
outstand ing Government dues from Respon dent No. 3,
4 & 5. Thereafter, mutation application of the
Petitioners was rejected on 03.05.2019.

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12. That as per policy and procedure of the Answering
Respondent, until the re -entry is withdrawn qua
Respond ent No. 3 & 4, n o action for conversion /
mutat ion at their request can be taken up, and re -entry
can be withdrawn only after recovery of all
outstanding Government dues from Respondent No. 3
to 5. As per High Court order dated 03.03.2006, the
Hon’ble Cour t directed the R espondent No. 5 to appear
befor e Sh. A. Bhattacharya on 08.03.2006 who would
proceed after that at his convenience. Hearing was
provided and the Bank stated that they would submit
documents including Sanctioned Building Plan. But the
docume nts have never b een submitted in the office of
Answering Respondent. Further, although the
Respondent No. 3 & 4 submitted their compromise to
pay the charges but no Sanctioned Building Plan /
documents have ever been submitted by them.

13. That the re -entry order dated 0 6.02.2006 was
issued to the Res pondent No. 3 & 4 and not to the Bank
as the Bank was not a recorded lessee. The bank filed
the writ petition and the Hon’ble Court disposed of the
writ vide order dated 03.03.2006 directing the Land
and Devel opment Office (M r. A.R. Bhattacharya,
Deputy La nd and Development Officer) to give a
personal hearing to the Bank on 08.03.2006 and
proceed thereafter at his convenience and also stated
in the order that re -entry order stood withdrawn. It is
understood tha t the re -entry o rder stands withdrawn
against t he Bank who filed the writ for the relief
regarding re -entry order but re -entry order was issued
to the Respondent No. 3 & 4 only and not, to the Bank
by the Answering Respondent. Hence, no action of
withdrawa l of re -entry wa s taken by the Answering
Respon dent qua the Respondent No. 3 & 4 with respect
to their portion of the property . Therefore, the re -entry
order issued to the Respondent No. 3 & 4 still stand
qua their portion of the property still stands and can be
withdrawn only on recovery of all the ou tstanding
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Government dues from Respondent No. 3 to 5.
xxx
V. That in this regard, the reply as stated in paras 8,
13 and 14 of the Preliminary Ob jections may be
referred for reply to this para. It is also sta ted that the
property stands re -entered which m eans the rights and
title of the Respondent No. 3 & 4 in the property, have
been suspended. ”

10. A perusal of the above affidavit shows, therefore, that there are no
charges which are being imposed upon the Peti tioner s or Re spondent No.6 .
Ld. counsel app earing for Respondent Nos.3 and 4 – Mr. Santosh Kumar
takes the position that since, under the deed of partition, the ground floor
falls in the share of the Petitioners, the conversion/ misuser charges s hould
be paid by the m. He further relies upon the l etter of the MCD dated 21st
October, 1999 , as per which misuser charges to the tune of Rs.2,24,784/ –
would be liable to be paid. It is his submission, therefore, that since the
ground floor falls in the share of the Petitione rs, they should bear the
misuse r/conversion charges. Dr. Aman Hingorani , ld. couns el, however,
submits that the stand of the bank is that it has paid the conversion/ misuser
charges.
11. Insofar as the present petition is concerned, the decree of partition and
consequent possession of the Petitioners , has attained finality in view of the
order of the Supreme Court. The share s of the various parties ha ve also been
determined. Clauses (i) and (j) of the Settlement make it clear that the
parties are free to seek mu tation/substitution i n their names as also
conversion from leasehold to freehold, without any further NOC from the
other parties. As per the affidavit of the L&DO, the only claim of the L&DO
is in respe ct of the Government dues from Respondent No s. 3 to 5. As per
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Dr. Aman Hing orani , ld. counsel , there are no dues being claimed qua the
Petitioners in the counter affidavit. The stand of Respondent Nos.3 and 4 in
respect of their own charges for mutation in their name is not the subject
matter of the present w rit petition. Respond ent Nos.3 and 4, if they wish to
get any mutation done , would have to take steps in accordance with law with
the L&DO. Needless to add , the long drawn litigation due to the
collabor ation agreement and the bank being put in po ssession h as cause d
sufficient frustration and difficulties to the Petitioners and Respondent No.6.
The Petitioners cannot be made to bear the brunt of the conduct of
Respondent Nos.3 and 4 or their predecessor /s in any manner whatsoever.
12. The stand of the L& DO being quite clear, there is no impediment in
directing the mutation to be carried out in favour of Petitioner s No.1 to 6 and
Respondent No.6 in terms of the final p artition decree dated 24th April,
2008. Admittedly, the Petitioners have been p ut in possession only on 8th
December, 2018 , following the judgment of the Supreme Court pursuant to
which the Local Commissioner ultimately took possession of the suit
property. Thus, t he Petitioners cannot be made to pay any misuser charg es
for which the y are not responsible. Insofar as conversion charges from
leasehold to freehold are concerned, if any of the said charges fall in the
share of the Petitioners, they would be liable to pay the same , in terms of the
settlement.
13. In view of the above, Resp ondent Nos .1 and 2 are directed to mutate/
substitute the l ease hold right s in the suit property bearing No.13, Main
Road, West Patel Nagar, New Delhi , in favour of the Petitioners in terms of
the final decree of partition dated 24th April, 2008 (with E xhibit C1).
14. Respondent No s.3 and 4 shall not create any impediment whatsoever
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in the mutation and substitution taking place in favour of the Petitioners. If
there are any misuse r charges which are liable to be paid, in terms of the
counter affidavit filed by the L& DO, it is free to pro ceed as per its counter
affidavit, in accordance with law . In terms of clause (j) of the Settlement,
parties are free to aliena te or sell their respective shares in the suit
property/portions of the suit property so partition ed by mete s or bounds. All
parties shall be bound by the terms of the Settlement and shall adh ere to the
same .
15. With these observations, the present petition along with all pending
applications, is disposed of.

PRATHIBA M. SINGH
JUDGE
JANUARY 27, 2021
dj/T
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