Delhi District Court
Rajdeep Sood vs . Raghbir Singh Page 1 Of 11 on 9 March, 2015
IN THE COURT OF SH BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE02, SOUTH EAST,
SAKET COURTS, NEW DELHI
Execution No. 18/14
Rajdeep Sood
....... Decree Holder
Vs.
Raghbir Singh & Ors.
....... Judgment Debtors
ORDER:
1. Vide this order I shall dispose of an application u/o 21 rule 32 (5) CPC and the present execution filed by the Decree Holder.
2. It is averred that JD No. 1 and 3 have delivered physical possession of the suit property to the Decree Holder on 21.10.2013 in compliance of judgment and decree dated 21.10.2013 and the decree has been partly satisfied. However, the conveyance of the suit property in favour of DH remains to be done. Therefore, the DH has made following prayers: • Decree of Specific performance by issuing directions to DDA (JD No. 2) to convert the suit property into freehold by allowing the application of the DH bearing No. 56435 dated 08.11.2004 and to Ex. No. 18/14 Rajdeep Sood Vs. Raghbir Singh Page 1 of 11 execute a conveyance deed in favour of the DH, or • The JD No. 1 may be directed to execute a sale deed in favour of DH after getting the suit property free hold from JD No. 2, or • Decree may be executed by adopting a procedure under Order 21 Rule 32 Sub Rule 5 CPC by an appointment of Local Commissioner with a direction to him to complete the process of conveyance of the suit property in favour of the DH after getting the conversion of the suit property into freehold from DDA (JD No.
2) on behalf of JD No. 1.
3. Perusal of the record reveals that DH had filed a suit for Possession by way of Specific Performance and Permanent Injunction against the JDs. The JD No. 1 who was the original allottee of flat in question by DDA (JD No.2) and JD No. 3 who claimed to have purchased the flat in question from JD No.1, had entered into a compromise with the DH before the Ld. Predecessor of this court and filed the compromise deed dated 21.10.2013 along with the joint application under Order 23 Rule 3 CPC. Vide judgment and decree dated 21.10.2013, the suit of the DH was decreed in terms of settlement dated 21.10.2013 Ex. P/B, certified copy of which is on record. The DDA (JD No. 2) was also directed to process the application No. F56435 dated 08.11.2004 filed by the plaintiff (DH herein) for conversion of the property bearing No. J212, Duplex, Ground Flor Ex. No. 18/14 Rajdeep Sood Vs. Raghbir Singh Page 2 of 11 and First Floor, Sarita Vihar, New Delhi into free hold expeditiously in accordance with law.
4. Now, grievance of the DH by way of present execution is that the JD No. 2 i.e. DDA has not complied the said directions of the court vide order dated 21.10.2013 to process his application for conversion of the suit property from leasehold into freehold despite repeated reminders sent by him to which there is no response of DDA, which has neither been rejected nor accepted.
5. In the background of these facts, the notice of execution was directed to be issued to the JDs. The JD No. 1 and 3 have sent their NOC by way of affidavit stating that they have no objection if JD No. 2 i.e. DDA is directed to convert the suit property into freehold property in favour of DH directly.
6. However, JD no. 2 filed reply/objections to the present execution contending that the suit was filed by the DH in collusion with JD No. 1 and 3. The JD No. 2/DDA was never a party to the alleged compromise and hence decree cannot be binding upon the JD No. 2. It is further contended that the alleged agreement between the DH and JD No. 1 and 3 is not a registered document as required under the provisions of Registration Act and hence under the scheme of conversion from leasehold system into freehold, the flat in question cannot be converted into freehold unless the attorney to sell executed Ex. No. 18/14 Rajdeep Sood Vs. Raghbir Singh Page 3 of 11 between the parties is registered with the SubRegistrar concerned as per law/policy of conversion. It is stated that the DH has claimed to have purchased the flat in question on the basis of GPA and Agreement to Sell executed by the JD No. 1 and as per the guidelines issued by the Ministry of Urban Development in respect of conversion of DDA Flats, a person having registered GPA and Agreement to Sell between September 24, 2001 and October 11, 2011 will be entitled to conversion of freehold after paying 66.2/3% surcharge in addition to conversion charges applicable on the date of application. However the Agreement to sell dated 28.06.2002 executed by JD no. 1 in favour of DH is not registered document as required under the Registration Act and hence same cannot be taken into consideration by the DDA under the aforesaid guidelines as well as the aforesaid scheme for conversion. It is stated that DH is not entitled for any conversion of the flat in question in his favour as per the policy of conversion. Hence, the DDA/JD No. 2 has prayed for dismissal of the present execution.
7. DH has filed rejoinder to reply filed by the DDA/JD No. 2 contending that DH is not seeking any specific performance of contract u/s 53A of the Transfer of Property Act and therefore provision of Registration Act are not attracted. It is further contended that even as per guidelines of conversion of DDA, the DH is entitled to convert the property into freehold and there is no bar in converting the Ex. No. 18/14 Rajdeep Sood Vs. Raghbir Singh Page 4 of 11 property as freehold.
8. From the aforesaid factual matrix, it is evident that the JD No. 1 was the original allottee of the flat in question bearing No. J212, Duplex, Ground Flor and First Floor, Sarita Vihar, New Delhi from DDA/JD No. 2. The DH has claimed to have purchased the flat in question from JD No. 1 vide Sale Agreement and Receipt dated 28.06.2002, Will dated 28.06.2002, registered GPA dated 08.10.2002 etc. DH filed a suit for Possession by way of Specific Performance of Contract and Permanent Injunction against the JDs before the Ld. Predecessor of this Court. The JD No. 3 was impleaded as she was also claiming some right in flat in question against the DH on the ground that she was subsequent purchaser of the flat in question by virtue of some documents. However, DH and JD No. 1 and 3 reached to the settlement which resulted into passing of consent decree dated 21.10.2013.
9. It is evident from the perusal of the record that DH has sent several letters to DDA/JD No. 2 after passing of the judgment and decree dated 21.10.2013 to process his pending application dated 08.11.2004 for conversion of property into freehold property, but despite several reminders, the application of the DH remained un decided. JD No. 1, the original allottee also moved an application to DDA/JD No. 1 dated 21.03.2014 to convert the suit property into Ex. No. 18/14 Rajdeep Sood Vs. Raghbir Singh Page 5 of 11 freehold in his favour or in favour of DH in pursuance to the judgment and decree dated 21.10.2013.
10. The JD No. 2/DDA has replied the application of JD No. 1 dated 21.03.2014 vide letter dated 22.05.2014 which has been filed by JD No. 2 along with the reply to present execution disclosing the reasons for not converting the property from leasehold to freehold. It was stated in the reply dated 22.05.2014 by the DDA that registered Agreement to Sell dated 28.06.2002 and registered GPA dated 30.06.2004 is mandatory requirement for processing the request of conversion as per policy of conversion which has not been furnished and therefore the request of conversion cannot be acceded to. From the reply filed by JD No. 2/DDA to the present execution it is apparent that request of the DH for converting the suit property from leasehold to freehold made vide application bearing No. 56435 dated 08.11.2004 has been declined on the similar grounds.
11. Now question arises as to whether the said stand taken by the JD No. 2/DD is sustainable in the eyes of law.
12. JD No. 2/DDA has placed on record the manual i.e. Scheme of conversion from leasehold system into freehold which elaborates the terms and conditions for getting the property converted from leasehold into freehold. The conditions for execution of conveyance deed on freehold basis in cases where allottee has parted Ex. No. 18/14 Rajdeep Sood Vs. Raghbir Singh Page 6 of 11 with possession of the flat are found mentioned in clause 8 of the said manual. The JD No. 2/DDA has relied upon Clause 8 Sub Clause (d) of the said manual for declining the request of the DH and JD No. 1 for conversion of property from leasehold into freehold. Clause 8 (d) of the manual is reproduced as under:
(d) The General Power of Attorney/Agreement to Sell executed from 24.09.2001 onwards, must be registered with the Subregistrar.
13. On the strength of Clause 8 (d) of the manual, the JD No. 2/DDA contended that Agreement to sell dated 28.06.2002 submitted by DH is not registered document and same is required to be registered under Section 17 (1A) of the Registration Act r/w Article 23A of Indian Stamp (Delhi Amendment) Act. The said Agreement to Sell being not registered one, the flat in question cannot be converted from leasehold into freehold and on this ground application of the DH and of the JD No. 1 have been declined by DDA/JD No. 2.
14. However, this contention of the DDA/JD No. 2 is not tenable. Among other requirements as envisaged under clause 8 of the manual, so far the requirement contained in sub clause (d) is concerned, the General Power of Attorney/Agreement to Sell must be registered with the SubRegistrar. It shows that either GPA should be registered or Agreement to Sell should be registered with the Sub Registrar and both the documents are not required to be compulsorily Ex. No. 18/14 Rajdeep Sood Vs. Raghbir Singh Page 7 of 11 registered with the SubRegistrar. The slash or oblique '/' between the General Power of Attorney and Agreement to Sell itself shows alternative arrangement between two documents and it cannot be read as "and" and it has to be read as "or". It has been held in Rohit Chauhan Vs. Chairman, University College of Engineering, Sambalpur AIR 2001 Orissa 125 that the oblique (/) between the words cannot be read as "and", but it has to be read as "or".
15. In view of dictionary meaning of oblique or slash (/) as held in authority cited supra, it is apparent that as per clause 8 (d) of the manual placed on record by DDA/JD No. 2 itself, either of the document i.e. GPA or Agreement to Sell is required to be registered and both the documents are not required to be registered with the Sub Registrar. Admittedly, the DH has furnished the registered GPA dated 08.10.2002 along with his application for conversion with the DDA. Therefore, as per their own document, the contention of the DDA/JD No. 2 that since the DH has not furnished the registered Agreement to Sell, his request for conversion cannot be accepted, is not tenable.
16. There is another aspect of the matter also. The DH by way of present execution is not seeking any relief based on specific performance of contract u/s 53A of the Transfer of Property Act and, therefore, bar contained u/s 17(1A) of the Registration Act and Article 23A of Indian Stamp (Delhi Amendment) Act are not applicable as Ex. No. 18/14 Rajdeep Sood Vs. Raghbir Singh Page 8 of 11 also held in catena of judgments. Reliance may be placed upon Vinod Kumar & Anr. Vs. Ajit Singh, IA No. 20617/2012 in CS(OS) 2661/2012, Ram Kishan & Anr. Vs. Bijender Mann @ Vijender Mann & Ors 2013 (1) PLR 195 DB (P&H), Dhan Singh & Anr. Vs. Jagbir Singh & Ors, 201 (1) PLR 185.
17. So far collusion between DH and JD No. 1 and 3 as pleaded by DDA/JD No. 2 is concerned, it is not in dispute that JD No. 1 was the original allottee in whose favour the flat in question was allotted by DDA. The JD No. 1 executed registered GPA, Agreement to Sell, Will etc. in favour of DH in respect of flat in question and in pursuance to the compromise, the consent decree was passed by the court vide order dated 21.10.2013. Thereafter, the JD No. 1 handed over the possession of flat in question to the DH vide possession letter dated 21.10.2013 which is placed on record. It is also apparent from the record that JD No. 1, the original allottee was willing to get the property converted into freehold in his favour first and then to execute the sale deed in favour of DH and filed an application in this regard dated 21.03.2014, though same has been declined by DDA. Similarly, notice of present execution was issued to the JD No. 1 and 3 and in reply thereto they have also submitted their no objection in the form of affidavit stating that they have no objection if the DDA is directed to Ex. No. 18/14 Rajdeep Sood Vs. Raghbir Singh Page 9 of 11 convert the property into freehold in favour of DH directly. Therefore, it cannot be said that there is any collusion between the DH and JD No. 1 and 3 for getting the property converted from leasehold into freehold.
18. Moreover, it was observed by the Hon'ble High Court of Delhi in J.K. Bhartiya & Ors. Vs. Union of India & Anr. 126 (2006) DLT 302 that, "The conversion shall be allowed in cases where lessee/sublessee/allottee has parted with the possession of the property, provided that (a) application for conversion is made by a person holding power of attorney from lesseee/sublessee to alienate sell/transfer of the property and (b) Proof is given of possession of the property in favour of the person on whose name conversion is being sought."
19. Since in the present case, the JD No. 1, the original allottee of the flat in question has executed registered GPA, Agreement to Sell, Will etc in favour of DH and has also handed over the possession of the flat in question vide possession letter dated 21.10.2013 pursuance to judgment and decree passed by the court and DH is willing to pay all the statutory dues for conversion, therefore I find no hurdle in getting the property converted from leasehold into freehold. The objection raised by the DDA is not sustainable as discussed herein above. Accordingly, the JD No.2/DDA is directed to Ex. No. 18/14 Rajdeep Sood Vs. Raghbir Singh Page 10 of 11 process the application of the DH dated 08.11.2004 for converting the property from leasehold into freehold expeditiously subject to other fulfillments of formalities and payment of statutory dues by the DH.
Announced in open Court (Balwant Rai Bansal)
on 9th March, 2015 Addl. District Judge 02 (SouthEast)
Saket Courts, New Delhi
Ex. No. 18/14
Rajdeep Sood Vs. Raghbir Singh Page 11 of 11
Ex. No. 18/14
Rajdeep Sood Vs. Raghbir Singh
09.03.2015
Present: DH in person.
None for JD No. 2.
Vide my separate order of even date, the application u/o 21 rule 32 (5) CPC and the present execution is disposed of.
Now, case is adjourned for 19.05.2015 for further proceedings and compliance.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi 09.03.2015 Ex. No. 18/14 Rajdeep Sood Vs. Raghbir Singh Page 12 of 11