11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4808/2007
BASHIR-UDDIN .... Petitioner
Through Mr. Anil K. Kher, Mr. M.K. Awtang
and Mr. S.S. Pandit, Advocates.
versus
UOI & ANR. ..... Respondent
Through Mr. Sanjay Katyal, Advocate with
Mr. Saurabh, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 14.05.2009 Admit. With the consent of the parties, the matter is taken up for final disposal.
2. On 2nd December, 1981, the Delhi High Court decreed the suit for specific performace in favour of the petitioner, Mr. Bashir Uddin against Ms. Lila Wati in respect of property No. B-40, Nizamuddin West, New Delhi. The decree is undisputed and has become final. The decree was registered and it is also an admitted case that the petitioner is in possession of the said property. The said decree was passed under Order XXIII, Rule 3 of the Code of Civil Procedure, 1908 after recording statements of both parties.
3. The property being lease hold and Union of India, Land and Development Officer (L&DO) being the lessor, the petitioner on 30th March, 2000 applied for conversion of the property into free hold and WPC NO.4808/2007 Page 1 deposited requisite fee of Rs. 28, 000/- including 30% sur charge payable in cases where the original lessee has sold or transferred possession without permission or payment of unearned increase. The grievance of the petitioner is that respondent L & DO is refusing to convert the property into free hold and to execute the conveyance deed.
4. The plea raised by the respondent L & DO in the counter affidavit is that Mr. S.K. Behl, S/o late Mr. C.K. Behl and Smt. Lila Wati Behl, is the recorded owner and in the present case, the petitioner has not entered into any transaction with the recorded lessee Mr. S.K. Behl.
5. Mr. S.K. Behl is admittedly the son of late Smt. Lila Wati. Smt. Lila Wati had filed suit No.437/54 claiming that she was the actual owner of the property and her son Mr. S.K. Behl was a benami onwer. The suit was decreed on 2nd November, 1954. Thereafter, Smt. Lila Wati entered into an agreement to sell with the petitioner in 1979. These facts are admitted by the respondent in paragraph 2 of their counter affidavit which reads:-
"2. That Smt. Lila Wati Behl filed a Suit No.437/54 in the Court and obtained a decree dated 2/11/1954. However, Respondent No.2 was not a party to this suit wherein the Hon'ble Court WPC NO.4808/2007 Page 2 had declared that the plaintiff i.e. Smt. Lila Wati is the lessee of the property and the defendant i.e. Shri. S.K. Behl was declared benamidar. But this decree was not registered with Sub-Registrar and no mutation could be carried out in the name of Smt. Lila Wati Behl. Thereafter, Smt. Lila Wati Behl entered into an Agreement to Sell with Petitioner on 4/12/1979."
6. In paragraph 3 of the counter affidavit filed by L & DO it is stated that Mr. S.K. Behl had subsequently filed a suit for permanent injunction against his mother before the Civil Judge, who refused to grant the permanent injunction vide order dated 25th May, 1981. The appeal against the said order was also dismissed by the learned Additional District Judge on 25th November, 1982. These facts are admitted in paragraph 3 of the affidavit filed by the respondent L & DO, which reads:-
"3. That consequent thereupon Shri. S.K. Behl filed a suit for permanent injunction against his mother. However, the Hon'ble Court/Ld. Civil Judge refused to grant the permanent injunction vide its order dated 21/5/1981. Aggrieved by the order of the Ld. Civil Judge Shri S.K. Behl preferred an appeal before the Court of Ld. Addl. District & Sessions Judge vide appeal No.302/81 and the said Appeal was dismissed on 25/11/1982. The Petitioner filed Suit No.139/81 against Smt. Lila Wati Behl for specific performance of Agreement to Sell executed by Smt. Lila Wati in favour of Shri Bashi Uddin and the said Suit was decreed in favour of the Plaintiff on 2/12/1981."
WPC NO.4808/2007 Page 3
7. This Court in W.P.(C) Nos. 22172-73/2005 titled Ashok Kumar Monga Vs. L & DO has held that compromise decree in respect of a property, which was the subject matter of the suit need not be registered, in view of the decision of the Supreme Court in Som Dev & Ors. versus Rati Ram & Anr., reported in JT 2006 (8) SC 469.
Accordingly, the mandamus was issued to the respondent L & DO to carry out the mutation. Therefore, the contention of the respondents that the decree dated 2nd November, 1954 was not registered, is devoid of merit. The compromise decree dated 2nd November, 1954 did not require registration as it pertained to the property which was subject matter of the suit. Suit of late Smt. Lila Wati against Mr. S.K. Behl was decreed in 1954. Thereafter, the suit of the petitioner for specific performance was decreed against Smt. Lila Wati in year 1981. Subsequent decree is registered. Mr. S.K. Behl tried to obtain injunction against Smt. Lila Wati from selling the property to the petitioner before the Civil Judge and Additional District Judge way back in 1981/1982, but was successful. This is the accepted and admitted position by L & DO. Thus there is no doubt about the title of the petitioner. L & DO cannot dispute the same except for violation of the terms of the lease.
WPC NO.4808/2007 Page 4
8. The free hold scheme read as a whole is to enable regularization of illegal transfers made by the lessee without permission and/or without paying unearned increase to L & DO. The petitioner's case is at par if not better than other cases where transfers have been made by executing power of attorney etc. These have been regularized on payment of sur charge in addition to requisite free hold charges. In the present case, the petitioner has paid surcharge. The mere fact that the petitioner had filed a suit for specific performance of the agreement to sell executed by Smt. Lila Wati in his favour and the said decree has executed, does not entitle the respondent L & DO to treat the petitioner's case as different from cases of transfer by execution of Power of Attorney and agreement to sell, with possession under Section 53(A) of the Transfer of Property Act. 1882. Even second and third unauthorized transfers have been condoned and are being regularized. The object and purpose of the conversion scheme of DDA, which is similar to the scheme of L&DO was explained in Kiran Kohli versus Delhi Development Authority reported in (2008) 148 DLT 590 as under:-
"6. In the meanwhile, DDA formulated a conversion scheme under which the lease hold WPC NO.4808/2007 Page 5 properties could be converted into free hold properties. DDA is aware that there are large scale transfers of residential properties contrary to Clauses II.6(a) and (b). The DDA is (was) unable to control and monitor the said transfers or even take actions against the defaulters. This had, in fact, created a problem with the actual occupants and defacto owners of the property being different from the registered owners as per the records of DDA. For effecting transfers, in violation of Clauses 11.6 (a) and (b) the registered owners have executed documents other than sale deeds to protect rights and interest of purchasers like Will, GPA, SPA, agreement to sell, etc.
7. The Object and motive behind this scheme is to ensure that illegal transfers of property are brought on record and regularised on payment of a fee or a penalty amount, DDA is able to maintain proper records and the properties are converted into free hold from lease hold. The State also benefits with payment of stamp duty and the actual defacto owner being brought on record in the books. The land records are updated and ensures transparent and open transactions in future. In these cases therefore, waiver from payment of 50% unearned increase has been granted with a stipulation that the transferee will be liable to pay 1/3rd of conversion costs as penalty or as additional conversion costs.
8. With a view to regularize the said transfers, it was decided that the transferee while applying for conversion from lease hold to free hold, will be liable to pay a penalty or an additional amount equal to 1/3rd of the total conversion costs. This fee or the penalty amount was much lower than the 50% unearned increase payable on transfer in terms of Clauses 11.6(a) and (b) of the Sub Lease Deed. To protect the interest of DDA and to ensure that it is not saddled with claims and liabilities from the original allottee or third parties, WPC NO.4808/2007 Page 6 certain documents are required to be submitted and executed by the transferee while applying for conversion. Obviously, the transferee has to file documents on the basis of which he is claiming that right, title and interest of the original allottee has transferred to him. These documents include Power of Attorney, Agreement to Sell etc."
9. The reasoning will equally apply in the present case. The requirement of registered Power of Attorney etc is to protect L&DO from third party claims as execution of power of attorney, agreement to sell etc., does not result in transfer of title in an immovable property of value of more than Rs.100/-. In the eyes of law there is no transfer. However, in the present case there is a validly executed sale deed and the title of the petitioner under the Transfer of Property Act, 1882 is legal and valid. It is a perfect title subject to the L&DO granting regularization.
The writ petition is accordingly allowed. The respondent L & DO will accordingly examined the application of the conversion filed by the petitioner in light of the observations made above. Application will be disposed of within 2 months from the date copy of this order is received.
The petitioner will be entitled to costs of Rs.10,000/-.
SANJIV KHANNA, J.
MAY 14, 2009
NA/P
WPC NO.4808/2007 Page 7