Delhi High Court

Sh. K.C. Bansal & Ors. vs The Commissioner, Mcd & Ors. on 15 December, 2010

Author: Rajiv Sahai Endlaw

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 15th December, 2010.

+                           W.P.(C) No.9988/2009
%

SH. K.C. BANSAL & ORS.                                  ..... PETITIONERS
                   Through:               Mr. B.K. Sood & Mr. Vipul Sharda,
                                          Advocates.

                                      Versus

THE COMMISSIONER, MCD & ORS.              .... RESPONDENTS
                 Through: Ms. Suparna Srivastava with Mr.
                           Anshum Jain, Advocates for MCD.
                           Mr. Samar Bansal, Advocate for R-3.
                           Ms. Shikha Tandon & Ms. Kanika
                           Agnihotri, Advocate for R-4.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                   NO

2.       To be referred to the reporter or not?            NO

3.       Whether the judgment should be reported           NO
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the order dated 14th May, 2007 of the

respondent MCD mutating property bearing No.27, Sunder Nagar Market,

New Delhi in the name of the respondent no.3. The petitioners also seek

mandamus to the respondent MCD to mutate the said property in the name

of the petitioners. The petitioners seek cancellation of the mutation in favour

of the respondent no.3 on the plea that the respondent no.3 has obtained the

mutation on the basis of forged and fabricated documents.

2. Notice of the petition was issued. Counter affidavits have been filed

by the respondent MCD and the respondent no.3 . The petitioners have filed

rejoinder to the counter affidavit of the respondent no.3.

3. The petitioners claim that one Shri Sri Krishan Dass Aggarwal being

the father of the petitioner no.1 and the grandfather of the petitioners no.2&3

was the perpetual lessee of the land underneath the aforesaid property and

the owner of the superstructure comprising of shop on the ground floor and

first floor constructed thereon; that the ground floor as well as the first floor

were let out with the first floor being let out to the respondent no.3 and his

brother. The petitioners admit that the said Shri Sri Krishan Dass Aggarwal

had vide an agreement to sell dated 29th September, 1993 agreed to sell the

said entire property to one Sh. Vijay Kumar Gupta brother of the respondent

no.3 and had also executed a registered Power of Attorney and Will with

respect to the said property in favour of the said Sh. Vijay Kumar Gupta.

They however claim that the purchaser Sh. Vijay Kumar Gupta did not

comply with the obligations under the said Agreement to Sell and resultantly

Shri Sri Krishan Dass Aggarwal in or about the year 1999

cancelled/determined the Agreement to Sell as well as the Will and the

General Power of Attorney by executing registered cancellation deeds of the

Power of Attorney and the Will. Upon the demise of Shri Sri Krishan Dass

Aggarwal on 23rd January, 2002, the petitioners claim to have applied to the

super lessor of the land underneath the property (respondent no.4 L&DO)

for mutation from the name of Shri Sri Krishan Dass Aggarwal to the name

of the petitioners on the basis of a Will dated 1 st January, 2002 of Shri Sri

Krishan Dass Aggarwal. The said application remained pending. In the

meanwhile in the year 2006 the management of the property was transferred

from L&DO to MCD and according to the petitioners on transfer of records

from L&DO to MCD, the MCD became aware of the application of the

petitioners for mutation of leasehold rights in their name. The petitioners

contend that the respondent MCD however surreptitiously on 14th May, 2007

without notice to the petitioners mutated the property for the purpose of

House Tax only from the name of Shri Sri Krishan Dass Aggarwal to the

name of the respondent no.3 on the basis of a registered Agreement to Sell

dated 29th May, 2004 executed by Sh. Vijay Kumar Gupta aforesaid as the

attorney of Shri Sri Krishan Dass Aggarwal in favour of the respondent no.3.

The petitioners upon learning of the same represented to the respondent

MCD and upon the said representation not meeting with any success filed

the present petition.

4. The mutation impugned in this petition being only for the purpose of

payment of Property Tax and which is not a record of rights and the

mutation letter itself providing that the same does not confer any title to the

respondent no.3, it was at the outset enquired from the counsel for the

petitioners as to why the petitioners have pursued this remedy and whether

the petitioners had instituted any substantive proceedings against Sh. Vijay

Kumar Gupta and the respondent no.3. The counsel for the petitioners

contends that there is no need for the petitioners to institute any proceedings

in as much as the petitioners continue to be the owners in possession of the

property through the tenants and are only aggrieved from the mutation

effected by the respondent MCD. On the contrary the counsel for the

respondent no.3 contends that it is the respondent no.3 who is in possession

and in control and management of the property, not as a tenant but as an

agreement purchaser in possession in part performance of agreement to sell.

The counsel for the respondent no.3 also states that there is no need for

respondent no.3 to institute any proceeding.

5. The counsel for the petitioners has at the outset argued that the

malafidies of the officials of the respondent MCD are writ large in as much

as the application for mutation was prepared, signed, submitted and allowed

on one single day only i.e. on 14th May, 2007 itself. It is contended that the

mutation is liable to be set aside on this ground alone.

6. Though the respondent MCD is generally not known to act so

expeditiously but no penalty can be placed on efficiency and I am unable to

accept the said ground.

7. The counsel for the petitioners has next contended that the registered

Agreement to Sell dated 29th May, 2004 on the basis whereof mutation has

been effected in favour of the respondent no.3 apparently wrongly records

that the principal i.e. Shri Sri Krishan Dass Aggarwal was alive on that date.

He on the basis of the Death Certificate of Shri Sri Krishan Dass Aggarwal

contends that Shri Sri Krishan Dass Aggarwal having died before the date,

exercising powers under whose attorney the Agreement to Sell was

executed, the Power of Attorney would in any case have come to an end on

death and the respondent MCD inspite of said fact being pointed out has

erred in not revoking the mutation.

8. The Division Bench of this Court in Asha M. Jain v. Canara Bank

MANU/DE/1304/2001 has held that judicial notice has to be taken by the

Courts of the practice prevalent in the city of Delhi of properties changing

hands on the basis of said Agreement to Sell, Power of Attorney etc.

Ordinarily, the Power of Attorney and Will are executed and registered only

when the entire sale consideration has been paid and the possession of the

property has been handed over. The Power of Attorney admittedly executed

by Shri Sri Krishan Dass Aggarwal in favour of Sh. Vijay Kumar Gupta

empowered Sh. Vijay Kumar Gupta to do all acts, deeds and things with

respect to the property including sale thereof. It was thus felt that the present

transaction between Shri Sri Krishan Dass Aggarwal and Sh. Vijay Kumar

Gupta was a transaction of the kind as noticed and with respect whereto

observations aforesaid were made by the Division Bench.

9. The counsel for the petitioners however from the Agreement to Sell

has shown that only part payment of sale consideration was made and the

balance sale consideration remained.

10. The counsel for the respondent no.3 on the basis of documents filed

contends that the entire sale consideration has been paid.

11. All these are disputed questions of facts which cannot be decided in

writ jurisdiction.

12. The counsel for the respondentno.3 has also contended that the power

of attorney given by Shri Sri Krishan Dass Aggarwal being for consideration

could not be cancelled under Section 202 of the Contract Act, 1872.

Reliance in this regard is placed on:-

(i) Shikha Properties (P) Ltd. Vs. S. Bhagwant Singh 74 (1998)

DLT 113.

         (ii)          Veer Bala Gulati Vs. MCD 104 (2003) DLT 787.


         (iii)     Prem Raj Vs. Babu Ram 1991 Rajdhani Law Reporter 458.


         (iv)      Shri Harbans Singh Vs. Smt. Shanti Devi ILR (1977) II Delhi

         649.


         (v)       Kuldip Singh Suri Vs. Surinder Singh Kalra 76 (1998) DLT

         232.

There is prima facie merit in the said contention also of the

respondent no.3. However, nothing beyond the same ought to be observed

in these proceedings inasmuch as all these questions entail a factual

controversy and it is deemed expedient that the same are adjudicated in a

proceeding where evidence can be recorded.

13. The counsel for the respondent MCD has drawn attention to the

Departmental Instructions No.14 of 1990 dated 3 rd January, 1991 qua

mutation under Section 128 of the Delhi Municipal Corporation Act, 1957.

It is stated that the mutation in favour of the respondent no.3 has been done

in compliance of the procedure therefor prescribed under the head

"Transfers through GPAs or Unregistered Instruments" which clarifies that

mutation in such cases is not in recognition of the title but only for the

purposes of effecting the levy and recovery of property tax.

14. In view of all the aforesaid, I am of the considered view that no error

can be found in the order of the MCD mutating the property in the name of

the respondent no.3 for the purposes of effecting the levy and recovery of

property tax and no interference therewith is called for in these proceedings.