Ajay Bijli vs Union Of India & Anr.
2011 Latest Caselaw 348 Del

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

+                  W.P.(C) 6062/2006 & CM No. 4885/2006


 AJAY BIJLI                                            ..... Petitioner
                            Through :    Ms. Shobhna Takiar, Advocate.

                   versus


 UNION OF INDIA & ANR.                                      ..... Respondents
               Through :                 Ms. Manjira Dasgupta, Advocate for
                                         Mr. Shyel Trehan, Advocate for
                                         MCD.
                                         Mr. Akshya Chandra, Advocate for
                                         L&DO.

    CORAM: JUSTICE S. MURALIDHAR

                            ORDER

% 20.01.2011

1. The Petitioner challenges an order dated 27th July 2005 passed by the

Land and Development Office („L&DO‟), Respondent No. 2, rejecting

the Petitioner‟s application for conversion for the reasons that the

Property at Shop No. 232, Kamla Market, New Delhi (hereinafter

referred to „property in question‟) was re-entered and that the

application for conversion was signed by a person "who is not eligible

for conversion."

2. On 21st May 1979 a perpetual lease deed was executed in favour of

one Shri Amar Nath in respect of the property in question. A

conveyance deed was executed in favour of Shri Amar Nath on 28th

February 1984 and was also duly registered on 7th April 1984.

3. Shri Amar Nath executed a General Power of Attorney („GPA‟) and

Special Power of Attorney („SPA‟) both dated 15th March 1990 in

favour of Mr. K.M. Bijli father of the Petitioner. The GPA and SPA

were registered. By a registered will dated 15th March 1990 Shri Amar

Nath bequeathed the property in question in favour of the Petitioner.

Shri Amar Nath entered into an agreement to sell with the Petitioner in

respect of the property in question. This was also duly registered.

4. By a further GPA dated 18th January 1991, the Petitioner‟s father

nominated the Petitioner as his attorney in respect of the property in

question. On 14th February 1992, the L&DO issued the guidelines for

conversion. On 7th June 2005, the Petitioner applied for conversion and

deposited the conversion fee of Rs. 1,86,902/-. Thereafter, on 18th

May/18th June 2005, the Petitioner received a notice from the L&DO

addressed to Mr. Amar Nath, ex-lessee, alleging violation of Clause

I(viii) of the lease deed which mandates that the lease deed should

register all the changes of the property in question with the L&DO

within one calendar month from such change.

5. The Petitioner replied to the above notice on 30th June 2005 stating

that he was the owner and in possession of the property in question

having been purchased from Shri Amar Nath by the agreement dated

19th March 1990. It was pointed out that under the conversion policy, it

can be applied by both the original allottee as well as the subsequent

purchasers on the basis of an agreement to sell.

6. By the impugned order dated 27th July 2005, the L&DO rejected the

Petitioner‟s request on the ground that the property has been re-entered

and the application for conversion was signed by a person not eligible

for conversion. By a letter dated 18th October 2005, the L&DO also

returned a sum of Rs. 1,39,989/- of the amount deposited by the

Petitioner as conversion charges.

7. The Petitioner relies upon Clause 3.2 of the said guidelines which

permits a GPA holder to apply for conversion and states that

conversion would be granted even if there is an unauthorised

construction. He submits that in terms of this Court‟s judgment in

Union of India v. Vinay Kumar Agarwal (2005) 79 DRJ 428, which

has been affirmed by the Supreme Court, conversion can be granted

even when there has been a re-entry.

8. Ms. Shobhna Takiar, learned counsel for the Petitioner points out

that the impugned show cause notice dated 18 th May 2005 is

unsustainable in law. She refers to Annexure R-2 which is a notice

dated 12th September 1991 issued by the L&DO to the Petitioner‟s

father alleging breaches observed upon inspection of the property in

question. She refers to the notice dated 17th June 1999 addressed to Shri

Amar Nath through attorney Shri Krishna Mohan Bijli again in respect

of the breaches. A third notice dated 6th January 1997 was again

addressed to Shri Amar Nath through attorney Shri Krishna Mohan

Bijli in respect of misuse. The fourth notice dated 29th July 2004

regarding misuse was issued to Amar Nath "though Attorney Shri

Krishan Mohan Bijli." A notice was issued on 5th January 2005

regarding re-entry to Shri Amar Nath "though Attorney Shri Krishan

Mohan Bijli."

9. Learned counsel for the Respondents was unable to deny that the

above communications were sent to him. In fact these communications

are annexed to the reply filed by the Respondent L&DO itself. Having

addressed all the above letters to Shri Amar Nath "c/o Shri Krishan

Mohan Bijli", the L&DO cannot possibly contend that in terms of

Clause 1(viii) it had no information about possession of the property

being parted with by Shri Amar Nath was received. Consequently, this

could not be a ground for the impugned order of re-entry.

10. Ms. Takiar is right in pointing out that mere because the property

had been re-entered cannot be a ground for denying conversion. In

Vinay Kumar Agarwal v. Union of India 2005 79 DRJ 418 (DB) a

Division Bench of this Court held that in respect of the properties

which had been re-entered or in respect of which a notice for re-entry

had been issued, conversion could not be denied only because the

property had been sold in the meantime. The said judgment has been

upheld by the Supreme Court by dismissing SLP No. 6624 of 2005

filed by the Union of India by an order dated 18th February 2010.

11. It was pointed out by learned counsel for the Respondents that in

Vinay Kumar Agarwal, the application for conversion had already been

filed prior to the order of re-entry whereas in the present case it was

filed after the re-entry had been ordered. In the considered view of this

Court, this makes no difference to the factum of re-entry. It cannot be a

ground for denying conversion as explained in Vinay Kumar Agarwal.

12. For the reasons already explained the grounds on which the re-entry

was ordered i.e. the violation of Clause 1(viii) of the lease deed was not

available to the L&DO since it was aware of the fact that the original

lessee had already parted with the possession of the property to Shri

Krishna Mohan Bijli, the Petitioner‟s father.

13. The other reason for denying conversion is that the application was

filed by a person not entitled to do so. This objection is untenable in

law. The other reason given for denying conversion is that there were

breaches which were not removed. The Respondents have themselves

filed the copy of a handwritten letter dated 28th December 2004 from

the Petitioner informing the L&DO that the breaches were removed.

This was prior to the impugned order of re-entry. Consequently, this

Court holds that the impugned order dated 27th July 2005 passed by the

L&DO rejecting the Petitioner‟s application for conversion is

unsustainable in law and is hereby set aside.

14. The grounds cited in the impugned order for rejection of the

conversion application are Clauses 20.1 and 20.5 of the Conversion

Policy. However, neither Clause is attracted in the present case for the

reasons already mentioned.

15. The Respondents will now permit the conversion to take place upon

the Petitioner‟s complying with all the formalities including payment of

requisite conversion charges within a period of four weeks from today.

The conversion deed thereafter will be executed within a further period

of four weeks.

16. The writ petition is disposed of. The pending application is also

disposed of.

S.MURALIDHAR, J JANUARY 20, 2011 ak