TMI Blog1998 (5) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... n on the said plot in anticipation of execution of lease deed. 2. The lease is under the Government Grants Act, 1895. Clause 5(a) of the deed of lease provides 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 Lesser 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 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 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 Lesser in respect of the market value shall be f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted permission to sell asked for by the petitioner subject to payment of unearned increase by the petitioner in terms of Clause (5)(a) of the lease deed. On 3.2.94, the DDA raised a demand, working out the quantum of unearned increase by applying the rates of plot as applicable to the year 1991-92, the year in which the permission to sell was granted by the DDA. The petitioner made several representations to the DDA requesting that the rates which were relevant and which ought to have been taken into consideration for working out the quantum of the unearned increase should have been those applicable in the year 1984-85 the year in which the petitioner had sought for permission to sell the plot. It was submitted that the petitioner cannot be blamed and held liable for the consequences flowing from the respondent's delay in dealing with the application. 7. The respondent-DDA has in its counter filed on the affidavit of Sh.S.Roy, Commissioner (Land Disposal) DDA placed reliance on resolution No.13 dated 2.2.81 according to which no permission for sale may be granted unless a period of ten years has elapsed and if a building has been constructed on the plot then unless a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deed came to be executed. The formal execution of lease deed may be delayed but once executed it will relate back to the date of commencement of lease as set out in the deed so far as the calculation of the life of the lease and consequently the period contemplated by resolution No.13 dated 2.2.81 are concerned. The petitioner was Therefore eligible to move an application for permission to sell the plot on 1.11.84, the date on which the period of 10 years from the 1.11.74, date of commencement of lease, expired. 11. The next question which arises for consideration is the date on which the building on the plot would be deemed to have been completed. It cannot be disputed that the building on the plot had actually stood completed on 19.5.78, the date on which the petitioner had applied for issuance of completion certificate. The learned counsel for the petitioner has invited the attention of the Court to certain provisions of Delhi Building Bye-Laws 1983 as applicable to DDA. The authority having jurisdiction under bye-laws is the Delhi Development Authority (bye-law 2.5). before occupying any building or part of a building the person intending to do so must have been granted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for securing such permission. What happens if the lessee makes an application seeking the permission but the DDA sits over the application and does not take decision thereon for quite a long time. It is a judicially noticeable fact that the prices of real estate, especially in Delhi, have been rising day-by-day and within the last decade or two they have just sky-rocketed. While seeking permission to sell the prices may be less but they would have certainly risen high, if not very high, by the time permission to sell is actually granted. 17. Two fundamental legal principles may be taken note of. LEX NON COGIT AD IMPOSSIBILIA. - The law does not compel a man to do that which he cannot possibly perform. NULLUS COMMODUM CAPERE POTEST DE INJURIA SUA PROPRIA. - No man take advantage of his own wrong. (see Broom's Legal Maxims, 10th edition at page 162 and page 191). The lessee having made an application complete in all requisite particulars, it is for the lessor-DDA to grant the permission on the very same day if it can. But the lessee-applicant cannot compel the DDA to act promptly. The lessee does not have any control over the time which may be consumed by the lessor-DDA in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the application made on 22.12.84 was complete in all material particulars. It did not suffer from any such deficiency as would invalidate the filing of the application. The respondents went on calling for incidental or secondary information and documents and also went on insisting on production of building certificate for which the petitioner could not be blamed. The DDA was, Therefore, obliged to calculate the unearned increase by working out the difference between the premium paid and the value of the plot on the date of application dated 22.12.84. 21. An incidental issue also arises. The petitioner had sought for permission to sub-let on 12.8.84. Permission was allowed w.e.f. 1.11.84. Permission to sell was granted on 20.6.91. It is not disputed at the Bar that the petitioner would remain liable to pay sub-lease charges for the period 1.1.84 to 30.6.91. According to the petitioner such charges have already been paid, if there is any deficiency in such payment the petitioner is prepared to make good the same. 22. For the foregoing reasons, the petition is allowed. The impugned demand working out the amount of unearned increase is hereby quashed and set aside. The respo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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