Delhi High Court
Ajay Bijli vs Union Of India & Anr. on 20 January, 2011
Author: S.Muralidhar
Bench: S. Muralidhar
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
3
+ W.P.(C) 6062/2006 & CM No. 4885/2006
AJAY BIJLI ..... Petitioner
Through : Ms. Shobhna Takiar, Advocate.
versus
UNION OF INDIA & ANR. ..... Respondents
Through : Ms. Manjira Dasgupta, Advocate for
Mr. Shyel Trehan, Advocate for
MCD.
Mr. Akshya Chandra, Advocate for
L&DO.
CORAM: JUSTICE S. MURALIDHAR
ORDER
% 20.01.2011
1. The Petitioner challenges an order dated 27th July 2005 passed by the Land and Development Office („L&DO‟), Respondent No. 2, rejecting the Petitioner‟s application for conversion for the reasons that the Property at Shop No. 232, Kamla Market, New Delhi (hereinafter referred to „property in question‟) was re-entered and that the application for conversion was signed by a person "who is not eligible for conversion."
2. On 21st May 1979 a perpetual lease deed was executed in favour of one Shri Amar Nath in respect of the property in question. A conveyance deed was executed in favour of Shri Amar Nath on 28th February 1984 and was also duly registered on 7th April 1984.
3. Shri Amar Nath executed a General Power of Attorney („GPA‟) and Writ Petition (Civil) No. 6062/2006 Page 1 of 6 Special Power of Attorney („SPA‟) both dated 15th March 1990 in favour of Mr. K.M. Bijli father of the Petitioner. The GPA and SPA were registered. By a registered will dated 15th March 1990 Shri Amar Nath bequeathed the property in question in favour of the Petitioner. Shri Amar Nath entered into an agreement to sell with the Petitioner in respect of the property in question. This was also duly registered.
4. By a further GPA dated 18th January 1991, the Petitioner‟s father nominated the Petitioner as his attorney in respect of the property in question. On 14th February 1992, the L&DO issued the guidelines for conversion. On 7th June 2005, the Petitioner applied for conversion and deposited the conversion fee of Rs. 1,86,902/-. Thereafter, on 18th May/18th June 2005, the Petitioner received a notice from the L&DO addressed to Mr. Amar Nath, ex-lessee, alleging violation of Clause I(viii) of the lease deed which mandates that the lease deed should register all the changes of the property in question with the L&DO within one calendar month from such change.
5. The Petitioner replied to the above notice on 30th June 2005 stating that he was the owner and in possession of the property in question having been purchased from Shri Amar Nath by the agreement dated 19th March 1990. It was pointed out that under the conversion policy, it can be applied by both the original allottee as well as the subsequent purchasers on the basis of an agreement to sell.
6. By the impugned order dated 27th July 2005, the L&DO rejected the Writ Petition (Civil) No. 6062/2006 Page 2 of 6 Petitioner‟s request on the ground that the property has been re-entered and the application for conversion was signed by a person not eligible for conversion. By a letter dated 18th October 2005, the L&DO also returned a sum of Rs. 1,39,989/- of the amount deposited by the Petitioner as conversion charges.
7. The Petitioner relies upon Clause 3.2 of the said guidelines which permits a GPA holder to apply for conversion and states that conversion would be granted even if there is an unauthorised construction. He submits that in terms of this Court‟s judgment in Union of India v. Vinay Kumar Agarwal (2005) 79 DRJ 428, which has been affirmed by the Supreme Court, conversion can be granted even when there has been a re-entry.
8. Ms. Shobhna Takiar, learned counsel for the Petitioner points out that the impugned show cause notice dated 18 th May 2005 is unsustainable in law. She refers to Annexure R-2 which is a notice dated 12th September 1991 issued by the L&DO to the Petitioner‟s father alleging breaches observed upon inspection of the property in question. She refers to the notice dated 17th June 1999 addressed to Shri Amar Nath through attorney Shri Krishna Mohan Bijli again in respect of the breaches. A third notice dated 6th January 1997 was again addressed to Shri Amar Nath through attorney Shri Krishna Mohan Bijli in respect of misuse. The fourth notice dated 29th July 2004 regarding misuse was issued to Amar Nath "though Attorney Shri Krishan Mohan Bijli." A notice was issued on 5th January 2005 Writ Petition (Civil) No. 6062/2006 Page 3 of 6 regarding re-entry to Shri Amar Nath "though Attorney Shri Krishan Mohan Bijli."
9. Learned counsel for the Respondents was unable to deny that the above communications were sent to him. In fact these communications are annexed to the reply filed by the Respondent L&DO itself. Having addressed all the above letters to Shri Amar Nath "c/o Shri Krishan Mohan Bijli", the L&DO cannot possibly contend that in terms of Clause 1(viii) it had no information about possession of the property being parted with by Shri Amar Nath was received. Consequently, this could not be a ground for the impugned order of re-entry.
10. Ms. Takiar is right in pointing out that mere because the property had been re-entered cannot be a ground for denying conversion. In Vinay Kumar Agarwal v. Union of India 2005 79 DRJ 418 (DB) a Division Bench of this Court held that in respect of the properties which had been re-entered or in respect of which a notice for re-entry had been issued, conversion could not be denied only because the property had been sold in the meantime. The said judgment has been upheld by the Supreme Court by dismissing SLP No. 6624 of 2005 filed by the Union of India by an order dated 18th February 2010.
11. It was pointed out by learned counsel for the Respondents that in Vinay Kumar Agarwal, the application for conversion had already been filed prior to the order of re-entry whereas in the present case it was filed after the re-entry had been ordered. In the considered view of this Court, this makes no difference to the factum of re-entry. It cannot be a Writ Petition (Civil) No. 6062/2006 Page 4 of 6 ground for denying conversion as explained in Vinay Kumar Agarwal.
12. For the reasons already explained the grounds on which the re-entry was ordered i.e. the violation of Clause 1(viii) of the lease deed was not available to the L&DO since it was aware of the fact that the original lessee had already parted with the possession of the property to Shri Krishna Mohan Bijli, the Petitioner‟s father.
13. The other reason for denying conversion is that the application was filed by a person not entitled to do so. This objection is untenable in law. The other reason given for denying conversion is that there were breaches which were not removed. The Respondents have themselves filed the copy of a handwritten letter dated 28th December 2004 from the Petitioner informing the L&DO that the breaches were removed. This was prior to the impugned order of re-entry. Consequently, this Court holds that the impugned order dated 27th July 2005 passed by the L&DO rejecting the Petitioner‟s application for conversion is unsustainable in law and is hereby set aside.
14. The grounds cited in the impugned order for rejection of the conversion application are Clauses 20.1 and 20.5 of the Conversion Policy. However, neither Clause is attracted in the present case for the reasons already mentioned.
15. The Respondents will now permit the conversion to take place upon the Petitioner‟s complying with all the formalities including payment of requisite conversion charges within a period of four weeks from today. Writ Petition (Civil) No. 6062/2006 Page 5 of 6 The conversion deed thereafter will be executed within a further period of four weeks.
16. The writ petition is disposed of. The pending application is also disposed of.
S.MURALIDHAR, J JANUARY 20, 2011 ak Writ Petition (Civil) No. 6062/2006 Page 6 of 6