Delhi High Court
Krishna Basra vs Municipal Corporation Of Delhi & ... on 22 March, 2010
Author: Sanjiv Khanna
13.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4802/2008
Date of decision: 22nd March, 2010
KRISHNA BASRA ..... Petitioner
Through: Ms. Kamlesh Mahajan, Advocate.
versus
MCD & ANR. ..... Respondents
Through: Ms. Usha Saxena, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
1. Ms. Ram Chameli was allotted property No. C-69, Kasturba Niketan
Complex, Lajpat Nagar-II, New Delhi by respondent-MCD in accordance
with the scheme floated by the Slum and JJ Department of the MCD for
redevelopment. Ms. Ram Chameli became entitled to allotment of land
measuring 33.58 square meters. In the draw of lots, she was allotted plot
No. D-9, Kasturba Niketan Complex, Lajpat Nagar, New Delhi.
2. On 10th September, 2003, Ms. Ram Chameli expired and the
petitioner-Ms. Krishna Basra being her daughter made an application for
recording mutation in her name. The petitioner relied upon a registered
Will dated 13th March, 2001 executed by late Ms. Ram Chameli. It is
apparent from the original file that the application filed by the petitioner
was considered and it was decided to obtain legal opinion. This was
necessary as Mr. Dinesh Mehta, Mr. Chetan Mehta and Mr. Sandeep Mehta
grandsons of late Ms. Ram Chameli had also filed an application for
mutation. The office file reveals that from 3rd June, 2005 till 23rd
December, 2005, the respondents were not able to decide whether or not to
mutate the property in the name of the petitioner or the grand children due
to conflicting claims.
3. In the meanwhile, the petitioner herein filed a civil suit for injunction
in which the respondents were served. The grandsons of late Ms. Ram
Chameli were also parties to the said civil suit. During the pendency of the
civil suit, the respondent-MCD by their letter dated 30th January, 2006
informed the petitioner that the property can be mutated in her favour in
case the will relied upon is probated from the court of competent
jurisdiction or she furnishes no objection certificate/relinquishment deed
from the remaining legal heirs of the deceased.
4. The petitioner by her letter dated 8th February, 2006 which was
delivered by hand as well as by registered post informed the respondent-
MCD that she had filed proceedings for grant of probate/letter of
administration in respect of the Will dated 13th March, 2001.
5. In spite of the aforesaid letters and stand of the respondent-MCD, it
is shocking and surprising that subsequently mutation was transferred and
recorded in the name of Mr. Chetan Mehta. The Dealing Assistant
(Allotment) wrote a detailed note dated 31st December, 2007 making
reference to minutes of a meeting dated 2nd May, 2003 presided over by the
Joint Secretary (Disability Division) to resolve matters recording
discrepancy in number of persons in occupation of the land at Kasturba
Niketan. Thereafter, the file was processed in great hurry and moved to
Head Clerk (Allotment), Assistant Director (Allotment), Deputy Director
(Allotment) on 31st December, 2007 itself. The file was examined and
cleared by the J.L.O (HQ) and two other officers on 2nd January, 2008
(obviously 1st January, 2008 was a holiday being new year‟s day). J.L.O.
has recorded that contents mentioned above in the note dated 31st
December, 2007 merit acceptance as the grandsons of deceased Ram
Chameli had filed an affidavit that they were in continuous physical
possession of the premises. The note does not state that any actual site
verification about possession was made.
6. Thereafter, allotment/mutation letter was issued in favour of Mr.
Chetan Mehta in view of the relinquishment deed executed by Mr. Dinesh
Mehta and Mr. Sandeep Mehta.
7. The probate case was decided in favour of the petitioner on 6th
September, 2008 and probate of the Will dated 13th March, 2001 has been
granted.
8. The stand of the respondent-MCD is not understandable and cannot
be comprehended. They have acted contrary to their own letters and the
law of inheritance. In the counter affidavit, the MCD has relied upon the
minutes of the meeting dated 2nd May, 2003. The relevant portion of the
minutes records as under:-
" Joint Secretary (Disability Division) took a
meeting with Officers of Govt. of NCT of Delhi
and Slums and Resettlement Wing, Municipal
Corporation of Delhi to resolve the matter
regarding discrepancy in number of persons in
occupation of land at Kasturba Niketan, at 11.30
am on 2.5.2003.
2. List of participants is annexed.
3. In the meeting the issues relating to
discrepancy in number of persons in occupation
of land at Kasturba Niketan, was discussed in
detail and the broad parameters for settling
disputed cases were decided as under:
(i) If the allottee has expired but his/her children
are living there, their claim can be treated as
genuine. If persons other than allottees are living
without proof regarding entitlement (by way of
allotment through exchange/assignment by MCD)
claim for allotment should not be accepted.
(ii) If there is a mention in the original list
regarding legal heirs, such cases be considered.
(iii) Controversial cases are to be studied in depth
in consultation with the legal experts before
taking a decision."
9. A reading of the aforesaid minutes shows that the committee was
dealing with the question of discrepancy in number of persons in
occupation of land and broad parameters for settling disputed cases were
resolved. In clause (i) it was resolved that claims of children of an allottee,
who has expired and are living on the land in question, can be treated as
genuine but claim by any third person without proof regarding entitlement
should not be accepted. Clause (i) of the broad parameters gives discretion
to the authorities to accept a claim made by children of a dead allottee, who
are living in the premises. The use of the word „can‟ in the first sentence of
clause (i) shows the discretionary element. The said clause is not clearly
applicable when there is a dispute, as in the present case between daughter
of the deceased and grand children of the deceased. It appears that the
officers of the respondent have gone out of the way and ignored the earlier
file notings relating to transfer of mutation and the letters that the petitioner
should get probate or get relinquishment deed from other legal heirs. Even
under the law of inter-state succession, the petitioner had inherited the
property.
10. The writ petition is accordingly allowed and the mutation/allotment
granted by the respondent-MCD in respect of property No. C-69, Kasturba
Niketan Complex, Lajpat Nagar-II, New Delhi is quashed. The respondent-
MCD will reexamine the case of allotment in light of the probate granted to
the petitioner in respect of the Will dated 13th March, 2001. Before passing
any order, they shall hear all third parties also. Additional Commissioner
(MCD) will also examine the facts of the case and if deemed appropriate,
departmental action, if required, will be taken against officers, who were
guilty of lapse and dereliction of duty.
The writ petition is disposed of. There will be no order as to costs.
SANJIV KHANNA, J.
MARCH 22, 2010
VKR
