Delhi High Court
Asha Agrawal & Anr. vs D.D.A. & Ors. on 2 September, 2011
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision : 2 nd September, 2011
+ W.P.(C) No. 5191/1997
SNEHLATA GUPTA & ANR. ..... Petitioners
Through: Mr. R.K. Saini with Mr. Sitab Ali
Chaudhari & Mr. Vikas Saini, Advs.
Versus
D.D.A. & ORS. ..... Respondents
Through: Ms. Sangeeta Chandra, Adv. for DDA
Mr. V.K. Tandon, Adv. for R-3 RCS
AND
W.P.(C) No. 5301/1997
P.K. SHARAN ....Petitioner
Through: Mr. Rajesh Kr. Chaurasia, Adv.
Versus
D.D.A. & ORS. ...Respondents
Through: Ms. Sangeeta Chandra, Adv. for DDA
Mr. V.K. Tandon, Adv. for R-3 RCS
AND
W.P.(C) No. 5309/1997
PILLU EDALJI ....Petitioners
Through: None
Versus
D.D.A. & ORS. ...Respondents
Through: Ms. Sangeeta Chandra, Adv. for DDA
Mr. V.K. Tandon, Adv. for R-3 RCS
WP(C)5191/97,5301/97,5309/97,5310/97&5366/97 Page 1 of 14
AND
W.P.(C) No. 5310/1997
ROSHNI TALWAR & ANR. ....Petitioners
Through: None
Versus
D.D.A. & ORS. ...Respondents
Through: Ms. Sangeeta Chandra, Adv. for DDA
Mr. V.K. Tandon, Adv. for R-3 RCS
AND
W.P.(C) No. 5366/1997
ASHA AGRAWAL & ANR. ....Petitioners
Through: None
Versus
D.D.A. & ORS. ...Respondents
Through: Ms. Sangeeta Chandra, Adv. for DDA
Mr. V.K. Tandon, Adv. for R-3 RCS
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may Not necessary
be allowed to see the judgment?
2. To be referred to the reporter or not? Not necessary
3. Whether the judgment should be reported Not necessary
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petitioners in the five writ petitions claim to be the purchasers of different portions of the construction on plot No. 213, Kailash Hills, New WP(C)5191/97,5301/97,5309/97,5310/97&5366/97 Page 2 of 14 Delhi. The sub-lease of the land admeasuring 300 sq. yards underneath the said property was granted vide perpetual sub-lease dated 14th January, 1994 executed by the President of India (as Lessor) and the Sarva Hitkari Cooperative House Building Society Ltd.(as Lessee) in favour of Shri Shiv Kumar Gupta (as sub-lessee) who was a member of the said Society.
2. The aforesaid Shri Shiv Kumar Gupta was a Non Resident Indian and had been granted special permission by the Reserve Bank of India to become a member of the said Society. The said Shri Shiv Kumar Gupta upon payment of entire premium of the aforesaid plot of land was put into possession thereof.
3. Shri Shiv Kumar Gupta however agreed to transfer all his rights in the aforesaid plot of land in favour of one Shri Sunil Gupta and put the said Shri Sunil Gupta into possession of the said plot of land. In fact, the perpetual sub-lease aforesaid itself is signed on behalf of Shri Shiv Kumar Gupta, by the said Shri Sunil Gupta as attorney.
4. Shri Sunil Gupta aforesaid is stated to have transferred his rights in the said plot of land to the respondent no.2 Mr. Pankaj Kumar and Mr. Pankaj Kumar raised construction on the aforesaid plot of land and in or WP(C)5191/97,5301/97,5309/97,5310/97&5366/97 Page 3 of 14 about the year 1995 sold different portions thereof to the petitioners in these five writ petitions or their predecessors-in-interest and put them into possession thereof. Needless to state that the documents executed by Mr. Pankaj Kumar also, in favour of the petitioners / their predecessors are agreement to sell, power of attorney, Will etc.
5. The petitioners / their predecessors-in-interest are stated to have been in undisturbed possession of their respective portions of the property since the year 1995. The counsels for the petitioners on enquiry state that besides the petitioners none else is in occupation / possession of any portion of the property or land aforesaid.
6. These petitions were filed upon the DDA as superior lessor of the land underneath the property, vide letter dated 10th November, 1997 addressed to Shri Shiv Kumar Gupta at the address of the plot/property aforesaid intimating cancellation of the sub-lease deed aforesaid in favour of Shri Shiv Kumar Gupta vide order dated 25 th September, 1997.
7. Notices of the petitions were issued and vide interim orders in the petitions, which continue to be in force, status quo was directed to be maintained. The pleadings have since been completed.
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8. Pursuant to orders dated 1st May, 2007 and 22nd May, 2009 the Registrar Cooperative Societies (RCS) was also impleaded as a respondent.
9. It transpires that the RCS, vide order dated 29th November, 1995, cancelled the membership of Shri Shiv Kumar Gupta of the Society aforesaid for the reason of Shri Shiv Kumar Gupta, in violation of the terms and conditions of the permission subject to which RBI had permitted him to hold property in India and in violation of the Rules/ provisions of the Delhi Co-operative Societies Act, 1972 and DCS Rules, 1973 and Bye-laws of the Society, having sold the plot aforesaid. Consequently, upon the RCS, vide letter dated 16th May, 1997 intimating the DDA of the cancellation of the membership of Shri Shiv Kumar Gupta, DDA cancelled the sub-lease deed as aforesaid.
10. At this stage it may also be noticed that the respondent no.2 Mr. Pankaj Kumar had on 28 th February, 1996 applied to the DDA in accordance with the policy by then in vogue of the conversion of leasehold rights into freehold, for conversion of leasehold rights in the said plot of land into freehold. Though the counsels for the petitioners have contended that no decision has been taken by the DDA on the said application but the counsel WP(C)5191/97,5301/97,5309/97,5310/97&5366/97 Page 5 of 14 for the DDA states that the said application was rejected on 10 th June, 1997 for the reason of there being no lease in existence.
11. Since the policy of the DDA permits freehold conversion even in case of re-entered / forfeited leases, it has been enquired from the counsel for the DDA as to why the petitioners, who are now in possession of the property on the land aforesaid for the last more than 15 years and without any disturbance / claim from any other person(s) including the Society aforesaid, should not be permitted to have the freehold conversion, upon payment of the charges therefor and for restoration, in their own names.
12. The counsel for the DDA has contended that once the membership of Shri Shiv Kumar Gupta of the Society and in pursuance to which membership the sub-lease deed was executed in his favour, stands cancelled, no application for freehold conversion can be entertained. It is further contended that the policy of freehold conversion entitles the DDA to refuse the freehold conversion in the event of any legal dispute as to the title. It is stated that the aforesaid constitutes a legal dispute and owing whereto the freehold conversion is not possible.
WP(C)5191/97,5301/97,5309/97,5310/97&5366/97 Page 6 of 14
13. It is also contended that since the RCS also has taken a stand before this Court that the order of cessation of membership stands till date and has attained finality, without the said order being set aside and in which regard no relief has been claimed in any of the petitions, the DDA cannot entertain the application for freehold conversion. Reliance in this regard is placed on order dated 23rd November, 2010 in W.P.(C) No. 20207/2005 titled Virender Pal Singh Vs. GNCTD in which case, in the face of defect in membership of Society, that petition filed by the successor of the member for a direction for allotment of a plot was dismissed. However in that case, the member of whom the petitioner was claiming to be the successor, had himself admitted that he was not eligible to be a member and no third party rights had been created.
14. It is further contended by the counsel for the respondent DDA that there is no precedent of conversion being allowed in such facts. However, it is not clear whether in similar circumstances any application for conversion was disallowed.
WP(C)5191/97,5301/97,5309/97,5310/97&5366/97 Page 7 of 14
15. The counsel for the respondent no. 3 RCS has also contended that for the petitioners to claim any right in the land as successors in interest of Shri Shiv Kumar Gupta, they have to first have the order of cessation of membership of Shri Shiv Kumar Gupta set aside by approaching the Financial Commissioner against the order of RCS cancelling the membership of Shri Shiv Kumar Gupta.
16. The DDA, having granted the lease of land of the colony in which the plot aforesaid is situated, to the Society aforesaid, even on cancellation of the sub-lease deed, would not be entitled to repossess the land; the land would vest in the Society and not in the DDA. It was thus upto the Society to have taken action for repossession of the said land and to allot the same to any other member. Though the Society is not before this Court but the counsels for the petitioners on inquiry confirm that besides the present petitions no other dispute at the instance of the Society is pending with respect to the said property or any portion thereof. It is further pointed out that it is not as if the Society is not aware of cessation of membership of Shri Shiv Kumar Gupta inasmuch as the order of cessation of membership is shown to have been sent to the Society also. It thus appears that the Society has not taken any steps whatsoever in the face of the property having already WP(C)5191/97,5301/97,5309/97,5310/97&5366/97 Page 8 of 14 been constructed and sold as aforesaid. It is not felt appropriate to issue notice to the Society and to invite the Society to litigate with the petitioners.
17. The expression "sale/sold" have been used hereinabove inspite of any registered deed of title in favour of the petitioners, in the light of the judgment of the Division Bench of this Court in Asha M. Jain Vs. Canara Bank 94 (2001) DLT 841 holding that judicial notice has to be taken of the practice prevalent in Delhi of the property changing hands on the basis of documents such as agreement to sell, power of attorney, will etc.
18. I have in the circumstances wondered whether the agony of the petitioners who otherwise appear to be bonafide purchasers for value should be extended any further. The culprit Shri Shiv Kumar Gupta is not before this Court. Inspite of the membership of Shri Shiv Kumar Gupta having been cancelled, no steps appear to have been taken to warn persons such as the petitioners from dealing with respect to the said plot. Ultimately when the action was taken by the DDA, the petitioners/their predecessors-in- interest had already paid the price for different portions of the property and had come into possession thereof.
WP(C)5191/97,5301/97,5309/97,5310/97&5366/97 Page 9 of 14
19. It has been enquired from the counsels for the petitioners whether the petitioners are willing to collectively, without raising any inter se dispute, pay the charges to the DDA for setting aside of the re-entry and for freehold conversion at the rates as of today as well as other charges which may be demanded by the DDA as a pre-condition for freehold conversion. The said enquiry has been made since this Court is intending to put a finality to the dispute with respect to the plot, which has remained pending for the last over 14 years before this Bench only and it is felt that if any further disputes were to persist on the aspect of claims in accordance with the policy of DDA of freehold conversion, the Society should be heard and notice of the present petition be issued to the Society. The counsels for the petitioners after understanding the nuances fully, have under instruction from the respective petitioners stated that the petitioners do not intend to raise any dispute and are willing to pay freehold conversion charges of the date of the application to be now made by the petitioners and other charges required to be paid for the said purposes including for setting aside of the re-entry.
20. As far as the contentions of the counsel for the DDA and counsel for the RCS are concerned, it is not deemed expedient to in the peculiar facts aforesaid adjudicate the same. As aforesaid, it is neither the DDA nor the WP(C)5191/97,5301/97,5309/97,5310/97&5366/97 Page 10 of 14 RCS which is to benefit from the dispossession if any of the petitioners from the property; the beneficiary if any from so dispossessing the petitioners, would have been the Society which has as aforesaid chosen not to take any action or claim any right. The rights of the petitioners in the property have matured over 15 years now since when the Society has not taken any action and in the circumstances it is felt expedient to put a quietus to the matter in the manner aforesaid. It is felt that dismissal of the present petition would only lead to further litigation, not only at the instance of the petitioners but maybe at the instance of DDA also, though DDA is not to be the beneficiary even if the petitioners were to be dispossessed. The real beneficiary if any from the dispossession of the petitioners is the Sarva Hitkari Cooperative House Building Society Ltd which has not taken any steps. It is generally seen that with the policy of freehold conversion having come into vogue, such Societies are now defunct. The Division Bench of this Court in DDA v. Jayshree Bagley 180(2011) DLT 39 where also the transferees from a person allotment in whose favour stood cancelled, had been in possession for long without any claim from the persons to whom allotment had been subsequently made, held that no case for disturbing them was made out. WP(C)5191/97,5301/97,5309/97,5310/97&5366/97 Page 11 of 14
21. The powers of this Court while exercising jurisdiction under Article 226 are wide. This Court, to do substantial justice between the parties, can decline relief even where entitlement in law is made out (see Chandra Singh Vs. State of Rajasthan (2003) 6 SCC 545 and ONGC Ltd. Vs. Sendhabhai Vastram Patel (2005) 6 SCC 454) and similarly grant relief inspite technical violation as aforesaid. Similarly, in Taherakhatoon Vs. Salambin Mohammad (1999) 2 SCC 635 even at the time of the dealing with the appeal after grant of special leave, it was held that the Court was not bound to go into the merits and even if entering into the merits and finding an error, was not bound to interfere if the justice of the case on facts does not require interference or if the relief could be moulded in a different fashion. This Court has echoed the same views in Filmistan Exhibitors Ltd. v. N.C.T., thr. Secy. Labour 131 (2006) DLT 648 by holding that even if there is a violation of law, this Court is not bound to exercise discretionary jurisdiction and in Babu Ram Sagar Vs. Presiding Officer, Labour Court MANU/DE/9235/2006 by refusing to interfere in exercise of discretionary powers inspite of holding the reasons given by the Labour Court to be not convincing. The present appears to be a fit case to exercise such discretionary powers under Article 226 of the Constitution of India. WP(C)5191/97,5301/97,5309/97,5310/97&5366/97 Page 12 of 14
22. The petitions are disposed of with the following directions:
a.) The order of the RCS of cancellation of membership of Shri Shiv Kumar Gupta of Sarva Hitkari Cooperative House Building Society Ltd is hereby set aside/quashed.
b) The petitioners to jointly, within eight weeks of today, apply to the respondent DDA for freehold conversion of the leasehold rights underneath the land bearing property No. 213, Kailash Hills, New Delhi into freehold in the joint name of the petitioners. The said application to be accompanied with the documents under which the petitioners claim their rights; the petitioners to also comply with other formalities for making the said application including of deposit of charges, fee etc;
c.) The DDA to thereafter communicate to the petitioners the further/other amount if any payable by the petitioners towards charges for restoration of the sublease or on any other account. d.) Upon the petitioners paying the aforesaid charges if any and doing any other thing which they may be required to do, the conveyance deed of freehold rights in land be executed in favour of the petitioners. e.) The petitioners to pay costs of these proceedings of `50,000/- each WP(C)5191/97,5301/97,5309/97,5310/97&5366/97 Page 13 of 14 (petition) to the respondent DDA on or before the date of making application for freehold conversion aforesaid.
f) The directions having been issued in the peculiar facts of the case and in exercise of discretionary powers, it is clarified that the same shall not constitute a precedent for other cases.
RAJIV SAHAI ENDLAW, J SEPTEMBER 02, 2011 M WP(C)5191/97,5301/97,5309/97,5310/97&5366/97 Page 14 of 14