S.C. Goel & Anr. vs D.D.A. & Ors.
2011 Latest Caselaw 4232 Del

$~3 & 4
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                              Date of Decision: 30th August, 2011

+                            W.P.(C) 3668/1996

      S.C. GOEL & ANR.                                               ..... Petitioners
                             Through           Mr. Raman Kapur, Sr. Adv. with Mr. Aviral
                                               Tiwari, Adv.

                                     versus

      D.D.A. & ORS.                                                 ..... Respondents
                             Through           Ms. Sangeeta Chandra, Adv. for DDA
                                               Mr. Y.K. Gupta, Attorney & son of Resp.
                                               no. 2 in-person

                                         AND

+                            W.P.(C) 4958/2001

      S.C.GOEL                                                         ..... Petitioner
                             Through           Mr. Raman Kapur, Sr. Adv. with Mr. Aviral
                                               Tiwari, Adv.
                                     versus

      LT.GOVERNOR & ORS.                                            ..... Respondents
                             Through           Ms. Sangeeta Chandra, Adv. for DDA
                                               Mr. Y.K. Gupta, Attorney & son of Resp.
                                               no. 2 in-person
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?


WP(C)3668/1996                                                           Page 1 of 10
 RAJIV SAHAI ENDLAW, J.

1. Both the writ petitions have been filed by one Shri S.C. Goel through

Shri Lalit Mohan Madhan. The said Mr. Lalit Mohan Madhan himself is

Petitioner No. 2 in W.P.(C) No. 3668/1996. Shri S.C. Goel is stated to

have died. Mr. Lalit Mohan Madhan claims to be his legal heir qua the

property to which the petitions pertain and has filed applications for

substitution in place of Shri S.C. Goel.

2. It is not in dispute that the said Shri S.C. Goel and Shri Om Prakash

Gupta, respondent in both the petitions were brothers and lessees under the

respondent/DDA with respect to land underneath the property No. B-1/26,

Vasant Vihar, New Delhi. Mr. Lalit Mohan Madhan claims to be the

purchaser under an agreement to sell, power of attorney, Will etc. of the

share of Shri S.C. Goel which is defined in the said documents as the rear

portion of the said property.

3. Mr. Om Prakash Gupta represented before this Court through his

attorney and son Shri Y.K. Gupta disputes the rights of Shri Lalit Mohan

Madhan in the property. A suit for injunction in this regard is stated to have

been earlier filed by Shri Om Prakash Gupta and which suit has been

disposed of and the appeal arising wherefrom filed by Shri Om Prakash

Gupta is stated to be pending in the Supreme Court. Shri Om Prakash Gupta

is as such opposing the application of Shri Lalit Mohan Madhan for

substitution in place of Shri S.C. Goel in these writ petitions.

4. Shri Y.K. Gupta states that the natural heirs of Shri S.C Goel ought to

be issued notice and heard in response to the applications of Shri Lalit

Mohan Madhan for substitution as legal heir of Shri S.C. Goel. However, in

the facts and circumstances hereinafter appearing, the counsel appearing for

Shri Lalit Mohan Madhan (and who was earlier appearing for Shri S.C.

Goel), . Shri Y.K. Gupta and the counsel for the DDA have been heard in

both the writ petitions and no need for issuing notice to the natural heirs of

Late Shri S.C. Goel or to formally decide the application for substitution is

felt.

5. Writ Petition (C) No. 3668/1996 has been filed seeking directions to

DDA to convert leasehold rights in the land underneath the property

aforesaid into freehold without insisting upon signatures of Shri Om

Prakash Gupta; alternative, direction is sought against Shri Om Prakash

Gupta to sign all the necessary documents and comply with the other

formalities for having the leasehold rights converted into freehold.

6. Writ Petition (C)No.4958/2001 has been filed impugning the order

dated 20th July, 2001 of the Lt. Governor of Delhi determining the lease of

the land underneath the property and seeking direction for restoration

thereof and for restraining DDA from dispossessing the petitioner from the

said property. The counsel for Shri Lalit Mohan Madhan states that Shri

Lalit Mohan Madhan as attorney and purchaser in part performance and

now also under the Will of Late Shri S.C. Goel is in possession of the rear

portion of the property.

7. The senior counsel for the petitioners contends that once the leasehold

rights in the land underneath the property are converted into freehold, the

necessity for seeking cancellation of the determination of lease and for

restoration would not arise inasmuch as the policy for freehold conversion

provides for such conversion even in respect of re-entered leases. It is

further contended that Shri Lalit Mohan Madhan has already deposited the

entire charges for freehold conversion without waiting for Shri Om Prakash

Gupta to pay his share and is ready to bear all other expenses/charges for

freehold conversion. It is further contended that since freehold conversion

is for the benefit of Shri Om Prakash Gupta also, he need not have any

objection thereto. It is yet further urged that Shri Om Prakash Gupta as one

of the lessee/owner cannot hold other lessee/owner to ransom in the manner

as is being done. On enquiry as to whether the freehold policy of the DDA

permits only one of the many lessees and/or persons claiming rights under

one lease to apply for freehold conversion even if the other lessees/persons

are not willing for the same, the senior counsel for the petitioners contends

that there is no prohibition in the regard in the policy and it is only the

application form required to be filled up for freehold conversion which

instructs the same to be signed by all the lessees and/or their assignees. He

further contends that once the DDA is permitting freehold conversion qua

flats constructed on common land as in case of DDA flats and group

housing, there is no reason not to apply the same principle in the facts of the

present case also.

8. The senior counsel for the petitioners has also invited attention to the

plaint in the suit for injunction (supra) filed by Shri Om Prakash Gupta in

which Shri Om Prakash Gupta has pleaded that his brother Shri S.C. Goel

was allowed to take western portion of the plot and Shri Om Prakash Gupta

retained the eastern portion of the plot and the two raised construction over

their respective portions of the plot; it is thus contended that the facts of the

present case are akin to that of two separate flats on common land and

Shri Lalit Mohan Madhan is entitled to have the entire land converted into

freehold and/or at least the portion under the western/rear portion of the

property in his possession.

9. DDA has opposed the claim of the petitioners for having the entire

plot of land converted into freehold under his own signatures when the other

lessee Shri Om Prakash Gupta is not willing therefor. It is further the case

of the DDA that part of the plot cannot be converted into freehold inasmuch

as the same amounts to sub-division of the plot which is not permissible. It

is stated that the policy for conversion also requires conversion only at the

instance of the all the lessees together and of the entire plot.

10. Mr. Y.K. Gupta (supra) has also categorically stated that Shri Om

Prakash Gupta is not willing to have the plot converted into freehold.

11. The petitioner can avail of freehold conversion only in accordance

with the policy prescribed therefor. The petitioners are unable to show any

clause under which the relief as claimed is permissible. Even if the

requirement of the application for freehold conversion to be signed by all

the lessees is in the application form only, the same being part of the policy,

the said requirement cannot be ignored.

12. As far as the agreement of the petitioners of discrimination qua

multistoried flats is concerned, the counsel for DDA has rightly contended

that in case of the flats, the allotment/sale thereof is separate/independent

and each flat owner has a right for a separate flat while in the present case,

there is a joint /one lease in favour of Shri S.C.Goel whose successor Shri

Lalit Mohan Madhan claims to be and Shri Om Prakash Gupta aforesaid.

No case of discrimination is made out. The two, between whom

discrimination is alleged, cannot be said to be similarly situated. Moreover,

the policy for freeholder conversion has not been challenged in the present

petition. Thus, in the face of the opposition of Shri Om Prakash Gupta, the

relief sought in Writ Petition(C) No. 3668/1996 cannot be granted.

13. As far as the other writ petition impugning the re-entry is concerned,

upon enquiry from Shri Y.K. Gupta as to why Shri Om Prakash Gupta is not

willing to join in that inasmuch as he is equally affected by re-entry,

Shri Y.K. Gupta informs that Shri Om Prakash Gupta has instituted Suit No.

1740/2001 in this court impugning the action of the DDA of re-entry and for

restoration of the lease and vide interim order in which suit the parties have

been directed to maintain status quo as to the property. On enquiry, it is

also informed that though Shri S.C. Goel was impleaded as defendant in that

suit but since Shri Om Prakash Gupta does not recognize any rights of Shri

Lalit Mohan Madhan in the property, the said Shri Lalit Mohan Madhan has

not been impleaded as a party thereto. On further enquiry, it is informed

that upon demise of Shri S.C. Goel, his natural heirs are appearing in the

said suit.

14. The senior counsel for the petitioner has, on instructions, fairly stated

that the claim for restoration of the lease is intertwined to the claim for

freehold conversion inasmuch as without freehold conversion being

allowed, the question for restoration would not arise.

15. It is not deemed expedient to entertain Writ Petition (C) No.

4958/2001 impugning the cancellation of lease since the same is already the

subject matter of the suit aforesaid and in which the legality of the re-entry

and claim for restoration would necessarily have to be gone into.

16. Counsel for DDA clarifies that re-entry was effected for the reason of

unauthorized sale by Shri S.C. Goel in favour of Shri Lalit Mohan Madhan

and on the ground of sub-division of plot by Shri S.C. Goel and Shri Om

Prakash Gupta.

17. Shri Y.K. Gupta controverts that re-entry was sub-division also.

18. As far as the argument of senior counsel for the petitioners of one of

the co-owners holding up the other to ransom is concerned, I am of the

opinion that if a co-owner feels that he has right to compel the other co-

owner to join in freehold conversion, such right is to be exercised before a

Civil Court and not by way of a writ petition..

19. In the circumstances aforesaid, no need is felt to go into the

contentious question of substitution of the legal representatives of Shri

S.C.Goel inasmuch as the relief claimed in the petitions is found to be not

tenable. It is not deemed expedient to make any observations qua

substitution as it may affect the said question in the other proceedings

between the parties with respect to the said property.

20. The senior counsel for the petitioners, at this stage states that the

petitioners cannot be left remedy-less and seeks leave to challenge the

policy of freehold conversion insofar as restricting freehold conversion

without the signatures of all the lessees. The said question having not been

raised and considered in these writ petition, Shri Lalit Mohan Madhan is

entitled to raise the same in appropriate proceedings in accordance with law.

It is further clarified that this court has not gone into the validity of the

policy of freehold conversion.

Accordingly, both the petitions are dismissed.

No order as to costs.

RAJIV SAHAI ENDLAW, J AUGUST 30, 2011 Sd