Supreme Court - Daily Orders
Delhi Devt.Auth. vs Suresh Gupta on 16 November, 2016
Bench: A.K. Sikri, R. Banumathi
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.10886-10887 OF 2016
(Arising out of SLP(C) Nos.24376-24377 of 2013)
DELHI DEVELOPMENT AUTHORITY APPELLANT
VERSUS
SURESH GUPTA & ANR. RESPONDENTS
O R D E R
Delay condoned.
Leave granted.
We have heard the learned counsel for the parties at length at this stage itself. The minimal facts which are required to dispose of these appeals are recapitulated below:-
One Ms. K.D. Sikand was allotted Plot No.E-1091, Government School Teacher CHBS Ltd. (hereinafter referred to as “property in question”) vide perpetual sub-lease deed dated 28.12.1987. She transferred her rights in the said plot vide General Power of Attorney/Agreement to Sell dated 18.03.1988 in favour of three persons, namely, Anil Kumar, Sarla Devi and Sadhana Devi. These three persons entered into another agreement with the respondent Nos.1 and 2 herein vide General Power of Attorney/Agreement to Sell dated 08.12.1989.Signature Not Verified Digitally signed by SWETA DHYANI Date: 2016.12.10 10:45:50 IST
Reason: It so happened that when the perpetual lease Deed dated 28.12.1987 was executed by the Delhi Development Authority (hereinafter referred to as “DDA”) in favour of 2 K.D. Sikand, she was already allotted a flat by the DDA. The DDA has the policy at the relevant time not to give allotments of more than one flat/property. For this reason, sub-lease Deed dated 28.12.1987 contains Clause III which inter-alia provided that in case the allottee is already having another flat/plot from DDA, the allotment in question would be cancelled.
Sometime in the year 1992 or near about, the DDA came with the policy of conversion of leasehold rights into freehold rights. Since the property in question was allotted to K.D. Sikand on lease basis, respondent Nos.1 and 2 who had purchased the sub-lease rights in respect of the plot in the manner stated above, applied to DDA for conversion of leasehold rights in the said plot into freehold rights in the year 1992. While making this application, they had also paid all the conversion charges as well as the penalty charges to regularize the purchase, pursuant to which the leasehold rights and possession of the plot was transferred in favour of respondent Nos.1 and 2.
The request of the respondents was turned down by the DDA vide communication dated 28.09.1992. In this communication, respondents were informed that since Ms. K.D. Sikand had already been allotted another flat, allotment of the property in question in her favour was inappropriate and, therefore, the said allotment had been cancelled by the Lessor/Lieutenant Governor. In view of the said cancellation, respondents were informed that their request 3 for conversion of the plot from leasehold to freehold could not be acceded to.
Insofar as cancellation of the property in question by the lessor is concerned, it was done vide letter dated 12.05.1992 addressed to Ms. K.D. Sikand, the original allottee of property in question. The respondents, however, insist for conversion by making further applications from time to time. Later, on 06.01.2003, their request was again turned down by the DDA.
Notwithstanding the cancellation of the allotment of property in question in favour of Ms. K.D. Sikand, possession of the plot was not taken by the DDA. Not only this, respondents were allowed to construct the building thereupon and they put up two and a half storey construction on the property in question in which they have been residing.
We may also mention at this stage that there was number of cases of same nature where double allotment has been secured by many persons suppressing the allotment of another property/flat in their names. This was gaining attention of the authorities and ultimately a policy decision was taken by the DDA in January, 2006. As per the policy decision, the allotment on second flat/plot was also allowed to be retained by said allottees with the condition that these allottees would pay the current cost of the second flat/plot which was originally obtained by a false affidavit to the effect that they were not allotted any 4 other plot. After this decision, the application of the respondents of conversion was processed and accepted vide communication dated 26.04.2006. In this communication, respondents were informed that the competent authority had been pleased to decide that the sub-lease Deed could be restored in their favour subject to the respondent paying cost of the plot. The cost of the said plot was worked out at Rs.59,45,817/-.
The respondents, though being relieved that their request for restoration of the plot had been accepted on the basis that they could also get the conversion of the leasehold rights into freehold, felt aggrieved by the cost which was worked out on the basis of rates prevailing in the year 2006. According to the respondents, since they had applied for conversion on in the year 1992, they were entitled to have the regularization as well as the conversion at the rate which was prevailing in the year 1992. As this plea of the respondents was not accepted by the DDA, the respondents approached the High Court of Delhi by filing writ petition for issuance of Mandamus against the DDA directing the DDA to charge the rates which were applicable in the year 1992. The DDA contested the aforesaid petition by pointing out the aforesaid facts, namely, the second allotment in favour of Ms. K.D. Sikand was impermissible and had been cancelled in the year 1992 by the DDA and it is only because of the change in policy decision the property in question was restored and that policy 5 decision clearly contained a stipulation that the current cost of the year 2006 would be charged and, therefore, there was no question for respondents herein demanding that the cost of year 1992 is to be paid.
The learned Single Judge of the High Court, after hearing the parties, allowed the writ petition filed by the respondents primarily on the ground that such application for conversion was made by the respondents way back in the year 1992 and it is the DDA which took 14 years time to decide the said application and respondents could not be faulted. For the aforesaid inaction on the part of the DDA, the respondents were entitled to have the restoration of the plot at the rates which were applicable and prevailing as on 01.01.1993. The DDA preferred an appeal against the aforesaid judgment but remained unsuccessful inasmuch as vide impugned judgment dated 29.09.2011, the Division Bench has also upheld the view taken by the Single Judge. The reason given by the Division Bench remains the same, which was the reason assigned by the Single Judge in allowing the writ petition, as can be seen from the following discussion contained in the impugned judgment of the High Court:-
“It was for the appellant-DDA to take a decision in such cases, which are peculiar, as the said respondents who applied for conversion had deposited the payment and penalty amount, are not guilty of fraud and if at all they have also suffered on account of the fraud committed by the original allottee. There is no explanation why the appellant-DDA took nearly 14 years from 1992 till 2006 to decide how to deal with such peculiar cases. Lapse and delay on the part of the appellant cannot be a ground to enhance liability, which is 6 payable and is now being demanded from the respondent Nos.1 and 2. The respondent Nos.1 and 2 have paid the conversion costs, penalty amount for illegal transfer, and the purchase price to the sub-lessee or her attorney. The respondent Nos.1 and 2 have been now asked to pay the purchase price to the appellant-DDA.” This decision has been assailed by the DDA in the present proceedings.
Mr. Sharan, leaned senior counsel appearing for the DDA, has made two-folds submissions:-
(i) In the first instance, it is pointed out that the very basis of the impugned judgment of the High Court is factually incorrect, wherein DDA has been blamed for lapse and delay in taking a decision on the application of the respondents which was submitted in the year 1992.
Referring to the facts which we have noted above, it was argued that insofar as DDA is concerned, it has taken the decision immediately by rejecting the request of the respondents which was totally ignored by the High Court. Even averment to this effect was specifically made in the impugned judgment of the High Court.
(ii) It is also argued that, as per Clause III of the lease deed dated 28.12.1987, Ms. K.D. Sikand was not entitled to get the allotment of property in question. Therefore, the decision to cancel the said plot was legal and justified. It is only because of the policy decision taken in the year 2006 that some right acquired in favour of the respondents in getting the cancellation withdrawn and restoring the allotment in their favour. However, this 7 policy decision categorically mentioned that it would be done only on the basis of current cost i.e. the cost that was prevailed in the year 2006, when this decision was taken. Therefore, it was not permissible for the High Court to change the conditions contained therein and apply the rates of year 1992.
Learned counsel for the respondents, on the other hand, made an endeavour to justify the decision of the High Court on the basis of reasons which are given by the High Court in the impugned judgment.
After hearing the learned counsel for the parties and going through the record, we are inclined to accept the aforesaid two-fold submissions made by learned senior counsel for the DDA.
In the first instance, from the facts narrated above, it becomes clear that there was no lapse or delay on the part of the DDA in not taking the decision on the application of the respondents which was submitted in the year 1992, as pointed out above. In fact, it is the respondents who, even after the rejection of the said request, continued to persuade the matter but even the subsequent requests of the respondents were turned down by the DDA. Therefore, the entire basis of the judgment of the learned Single Judge as well as the Division Bench of the High Court is unfounded. The High Court has, thus, wrongly mentioned that no explanation is given by the DDA that it took 14 years i.e. from 1992 to 2006 to decide how to deal 8 with the cases of the respondents.
It is also to be borne in mind that pursuant to the policy decision taken by the DDA in January, 2006, the only consequence was to surrender the property in question to the DDA. If the DDA did not take steps earlier and allowed the respondents to construct the property on the said plot, by even sanctioning the building plan, some equity may have restored in favour of the respondents. However, that would not mean that the policy decision taken by the DDA was to be given a go-bye. As mentioned above, keeping in view such practicalities, not only in the case of the respondents herein, but many other cases which came to the light of the DDA, the DDA was persuaded and prompted to take such decision to eliminate the hardships. At the same time, it was categorically decided that the rates which were prevailing in the year 2006 had to be paid by such allottees. What is required to be kept in mind is that allotment in favour of Ms. K.D. Sikand stood cancelled in the year 1992 itself.
In fact when the DDA has cancelled the allotment way back in the year 1992, there was no challenge to the said cancellation by filing any petition either by Ms. K.D. Sikand or by the respondents at any time. It is only when a decision was taken to restore the allotment of plot withdrawing the cancellation with the demand to pay the cost of the plot as prevailed in the year 2006 that the respondents woke up and approached the Court with the plea 9 that cost prevailing in the year 1992 should be charged. Therefore, insofar as the cancellation is concerned, that remained unchallenged and matter is not examined from this angle by the High Court at all. Once this is restored in the year 2006 with the aforesaid decision, it was permissible for the DDA to take the rates of the property which were prevalent in the year 2006 in the absence of any challenge to the said policy decision.
The result of the aforesaid discussion would be to allow this appeal by subsisting the demand contained in the communication dated 26.04.2006 asking the respondents to pay a sum of Rs.59,45,817/-. However, this amount has not been paid so far because of the reason that respondents have succeeded before the Single Judge as well as before the Division Bench of the High Court.
In these peculiar circumstances, we are of the opinion that no interest would be payable by the respondents. The amount in question shall be paid by respondents to the DDA within a period of six months from today.
The appeals are allowed in the aforesaid terms.
....................J.
(A.K. SIKRI)
....................J.
NEW DELHI (R. BANUMATHI)
NOVEMBER 16, 2016
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ITEM NO.2 COURT NO.9 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) 24376-24377/2013
(Arising out of impugned final judgment and order dated 08/03/2013 in CRP No. 555/2012 29/09/2011 in LPA No. 799/2011 passed by the High Court of Delhi at New Delhi) DELHI DEVT.AUTH. Petitioner(s) VERSUS SURESH GUPTA & ANR. Respondent(s) (With appln. (s) for c/delay in filing SLP and interim relief and office report) Date : 16/11/2016 These petitions were called on for hearing today. CORAM :
HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MRS. JUSTICE R. BANUMATHI For Petitioner(s) Mr. A. Sharan, Sr. Adv.
Ms. Binu Tamta,Adv.
Mr. Dhruv Tamta, Adv.
For Respondent(s) Ms. Deeksha L. Kakar, Adv.
Ms. Jyoti Mendiratta,Adv.
UPON hearing the counsel the Court made the following O R D E R Delay condoned.
Leave granted.
The civil appeals are allowed in terms of the signed order.
Pending applications, if any, shall also stand disposed of.
(SWETA DHYANI) (MALA KUMARI SHARMA)
SR.P.A COURT MASTER
(Signed order is placed on the file)