P.K. Sharan vs D.D.A. & Ors.
2011 Latest Caselaw 4282 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of decision : 2 nd September, 2011

+                             W.P.(C) No. 5191/1997

       SNEHLATA GUPTA & ANR.                      ..... Petitioners
                    Through: Mr. R.K. Saini with Mr. Sitab Ali
                             Chaudhari & Mr. Vikas Saini, Advs.

                                         Versus

       D.D.A. & ORS.                                      ..... Respondents
                              Through: Ms. Sangeeta Chandra, Adv. for DDA
                                       Mr. V.K. Tandon, Adv. for R-3 RCS
                                          AND
                               W.P.(C) No. 5301/1997
       P.K. SHARAN                                              ....Petitioner
                              Through: Mr. Rajesh Kr. Chaurasia, Adv.
                                         Versus
       D.D.A. & ORS.                                        ...Respondents
                              Through: Ms. Sangeeta Chandra, Adv. for DDA
                                       Mr. V.K. Tandon, Adv. for R-3 RCS
                                          AND
                               W.P.(C) No. 5309/1997
       PILLU EDALJI                                                  ....Petitioners
                              Through: None

                                         Versus
       D.D.A. & ORS.                                        ...Respondents
                              Through: Ms. Sangeeta Chandra, Adv. for DDA
                                       Mr. V.K. Tandon, Adv. for R-3 RCS

WP(C)5191/97,5301/97,5309/97,5310/97&5366/97                            Page 1 of 14
                                           AND

                               W.P.(C) No. 5310/1997
       ROSHNI TALWAR & ANR.                                    ....Petitioners
                   Through: None

                                         Versus
       D.D.A. & ORS.                                        ...Respondents
                              Through: Ms. Sangeeta Chandra, Adv. for DDA
                                       Mr. V.K. Tandon, Adv. for R-3 RCS
                                          AND
                               W.P.(C) No. 5366/1997
       ASHA AGRAWAL & ANR.                                     ....Petitioners
                  Through: None
                                         Versus
       D.D.A. & ORS.                                        ...Respondents
                              Through: Ms. Sangeeta Chandra, Adv. for DDA
                                       Mr. V.K. Tandon, Adv. for R-3 RCS

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?

RAJIV SAHAI ENDLAW, J.

1. The petitioners in the five writ petitions claim to be the purchasers of

different portions of the construction on plot No. 213, Kailash Hills, New

Delhi. The sub-lease of the land admeasuring 300 sq. yards underneath the

said property was granted vide perpetual sub-lease dated 14th January, 1994

executed by the President of India (as Lessor) and the Sarva Hitkari

Cooperative House Building Society Ltd.(as Lessee) in favour of Shri Shiv

Kumar Gupta (as sub-lessee) who was a member of the said Society.

2. The aforesaid Shri Shiv Kumar Gupta was a Non Resident Indian and

had been granted special permission by the Reserve Bank of India to become

a member of the said Society. The said Shri Shiv Kumar Gupta upon

payment of entire premium of the aforesaid plot of land was put into

possession thereof.

3. Shri Shiv Kumar Gupta however agreed to transfer all his rights in the

aforesaid plot of land in favour of one Shri Sunil Gupta and put the said

Shri Sunil Gupta into possession of the said plot of land. In fact, the

perpetual sub-lease aforesaid itself is signed on behalf of Shri Shiv Kumar

Gupta, by the said Shri Sunil Gupta as attorney.

4. Shri Sunil Gupta aforesaid is stated to have transferred his rights in

the said plot of land to the respondent no.2 Mr. Pankaj Kumar and Mr.

Pankaj Kumar raised construction on the aforesaid plot of land and in or

about the year 1995 sold different portions thereof to the petitioners in these

five writ petitions or their predecessors-in-interest and put them into

possession thereof. Needless to state that the documents executed by Mr.

Pankaj Kumar also, in favour of the petitioners / their predecessors are

agreement to sell, power of attorney, Will etc.

5. The petitioners / their predecessors-in-interest are stated to have been

in undisturbed possession of their respective portions of the property since

the year 1995. The counsels for the petitioners on enquiry state that besides

the petitioners none else is in occupation / possession of any portion of the

property or land aforesaid.

6. These petitions were filed upon the DDA as superior lessor of the land

underneath the property, vide letter dated 10th November, 1997 addressed to

Shri Shiv Kumar Gupta at the address of the plot/property aforesaid

intimating cancellation of the sub-lease deed aforesaid in favour of Shri Shiv

Kumar Gupta vide order dated 25 th September, 1997.

7. Notices of the petitions were issued and vide interim orders in the

petitions, which continue to be in force, status quo was directed to be

maintained. The pleadings have since been completed.

8. Pursuant to orders dated 1st May, 2007 and 22nd May, 2009 the

Registrar Cooperative Societies (RCS) was also impleaded as a respondent.

9. It transpires that the RCS, vide order dated 29th November, 1995,

cancelled the membership of Shri Shiv Kumar Gupta of the Society

aforesaid for the reason of Shri Shiv Kumar Gupta, in violation of the terms

and conditions of the permission subject to which RBI had permitted him to

hold property in India and in violation of the Rules/ provisions of the Delhi

Co-operative Societies Act, 1972 and DCS Rules, 1973 and Bye-laws of the

Society, having sold the plot aforesaid. Consequently, upon the RCS, vide

letter dated 16th May, 1997 intimating the DDA of the cancellation of the

membership of Shri Shiv Kumar Gupta, DDA cancelled the sub-lease deed

as aforesaid.

10. At this stage it may also be noticed that the respondent no.2 Mr.

Pankaj Kumar had on 28 th February, 1996 applied to the DDA in accordance

with the policy by then in vogue of the conversion of leasehold rights into

freehold, for conversion of leasehold rights in the said plot of land into

freehold. Though the counsels for the petitioners have contended that no

decision has been taken by the DDA on the said application but the counsel

for the DDA states that the said application was rejected on 10 th June, 1997

for the reason of there being no lease in existence.

11. Since the policy of the DDA permits freehold conversion even in case

of re-entered / forfeited leases, it has been enquired from the counsel for the

DDA as to why the petitioners, who are now in possession of the property on

the land aforesaid for the last more than 15 years and without any

disturbance / claim from any other person(s) including the Society aforesaid,

should not be permitted to have the freehold conversion, upon payment of

the charges therefor and for restoration, in their own names.

12. The counsel for the DDA has contended that once the membership of

Shri Shiv Kumar Gupta of the Society and in pursuance to which

membership the sub-lease deed was executed in his favour, stands cancelled,

no application for freehold conversion can be entertained. It is further

contended that the policy of freehold conversion entitles the DDA to refuse

the freehold conversion in the event of any legal dispute as to the title. It is

stated that the aforesaid constitutes a legal dispute and owing whereto the

freehold conversion is not possible.

13. It is also contended that since the RCS also has taken a stand before

this Court that the order of cessation of membership stands till date and has

attained finality, without the said order being set aside and in which regard

no relief has been claimed in any of the petitions, the DDA cannot entertain

the application for freehold conversion. Reliance in this regard is placed on

order dated 23rd November, 2010 in W.P.(C) No. 20207/2005 titled

Virender Pal Singh Vs. GNCTD in which case, in the face of defect in

membership of Society, that petition filed by the successor of the member

for a direction for allotment of a plot was dismissed. However in that case,

the member of whom the petitioner was claiming to be the successor, had

himself admitted that he was not eligible to be a member and no third party

rights had been created.

14. It is further contended by the counsel for the respondent DDA that

there is no precedent of conversion being allowed in such facts. However, it

is not clear whether in similar circumstances any application for conversion

was disallowed.

15. The counsel for the respondent no. 3 RCS has also contended that for

the petitioners to claim any right in the land as successors in interest of Shri

Shiv Kumar Gupta, they have to first have the order of cessation of

membership of Shri Shiv Kumar Gupta set aside by approaching the

Financial Commissioner against the order of RCS cancelling the

membership of Shri Shiv Kumar Gupta.

16. The DDA, having granted the lease of land of the colony in which the

plot aforesaid is situated, to the Society aforesaid, even on cancellation of

the sub-lease deed, would not be entitled to repossess the land; the land

would vest in the Society and not in the DDA. It was thus upto the Society

to have taken action for repossession of the said land and to allot the same to

any other member. Though the Society is not before this Court but the

counsels for the petitioners on inquiry confirm that besides the present

petitions no other dispute at the instance of the Society is pending with

respect to the said property or any portion thereof. It is further pointed out

that it is not as if the Society is not aware of cessation of membership of Shri

Shiv Kumar Gupta inasmuch as the order of cessation of membership is

shown to have been sent to the Society also. It thus appears that the Society

has not taken any steps whatsoever in the face of the property having already

been constructed and sold as aforesaid. It is not felt appropriate to issue

notice to the Society and to invite the Society to litigate with the petitioners.

17. The expression "sale/sold" have been used hereinabove inspite of any

registered deed of title in favour of the petitioners, in the light of the

judgment of the Division Bench of this Court in Asha M. Jain Vs. Canara

Bank 94 (2001) DLT 841 holding that judicial notice has to be taken of the

practice prevalent in Delhi of the property changing hands on the basis of

documents such as agreement to sell, power of attorney, will etc.

18. I have in the circumstances wondered whether the agony of the

petitioners who otherwise appear to be bonafide purchasers for value should

be extended any further. The culprit Shri Shiv Kumar Gupta is not before

this Court. Inspite of the membership of Shri Shiv Kumar Gupta having

been cancelled, no steps appear to have been taken to warn persons such as

the petitioners from dealing with respect to the said plot. Ultimately when

the action was taken by the DDA, the petitioners/their predecessors-in-

interest had already paid the price for different portions of the property and

had come into possession thereof.

19. It has been enquired from the counsels for the petitioners whether the

petitioners are willing to collectively, without raising any inter se dispute,

pay the charges to the DDA for setting aside of the re-entry and for freehold

conversion at the rates as of today as well as other charges which may be

demanded by the DDA as a pre-condition for freehold conversion. The said

enquiry has been made since this Court is intending to put a finality to the

dispute with respect to the plot, which has remained pending for the last over

14 years before this Bench only and it is felt that if any further disputes were

to persist on the aspect of claims in accordance with the policy of DDA of

freehold conversion, the Society should be heard and notice of the present

petition be issued to the Society. The counsels for the petitioners after

understanding the nuances fully, have under instruction from the respective

petitioners stated that the petitioners do not intend to raise any dispute and

are willing to pay freehold conversion charges of the date of the application

to be now made by the petitioners and other charges required to be paid for

the said purposes including for setting aside of the re-entry.

20. As far as the contentions of the counsel for the DDA and counsel for

the RCS are concerned, it is not deemed expedient to in the peculiar facts

aforesaid adjudicate the same. As aforesaid, it is neither the DDA nor the

RCS which is to benefit from the dispossession if any of the petitioners from

the property; the beneficiary if any from so dispossessing the petitioners,

would have been the Society which has as aforesaid chosen not to take any

action or claim any right. The rights of the petitioners in the property have

matured over 15 years now since when the Society has not taken any action

and in the circumstances it is felt expedient to put a quietus to the matter in

the manner aforesaid. It is felt that dismissal of the present petition would

only lead to further litigation, not only at the instance of the petitioners but

maybe at the instance of DDA also, though DDA is not to be the beneficiary

even if the petitioners were to be dispossessed. The real beneficiary if any

from the dispossession of the petitioners is the Sarva Hitkari Cooperative

House Building Society Ltd which has not taken any steps. It is generally

seen that with the policy of freehold conversion having come into vogue,

such Societies are now defunct. The Division Bench of this Court in DDA v.

Jayshree Bagley 180(2011) DLT 39 where also the transferees from a

person allotment in whose favour stood cancelled, had been in possession

for long without any claim from the persons to whom allotment had been

subsequently made, held that no case for disturbing them was made out.

21. The powers of this Court while exercising jurisdiction under Article

226 are wide. This Court, to do substantial justice between the parties, can

decline relief even where entitlement in law is made out (see Chandra

Singh Vs. State of Rajasthan (2003) 6 SCC 545 and ONGC Ltd. Vs.

Sendhabhai Vastram Patel (2005) 6 SCC 454) and similarly grant relief

inspite technical violation as aforesaid. Similarly, in Taherakhatoon Vs.

Salambin Mohammad (1999) 2 SCC 635 even at the time of the dealing

with the appeal after grant of special leave, it was held that the Court was

not bound to go into the merits and even if entering into the merits and

finding an error, was not bound to interfere if the justice of the case on facts

does not require interference or if the relief could be moulded in a different

fashion. This Court has echoed the same views in Filmistan Exhibitors Ltd.

v. N.C.T., thr. Secy. Labour 131 (2006) DLT 648 by holding that even if

there is a violation of law, this Court is not bound to exercise discretionary

jurisdiction and in Babu Ram Sagar Vs. Presiding Officer, Labour Court

MANU/DE/9235/2006 by refusing to interfere in exercise of discretionary

powers inspite of holding the reasons given by the Labour Court to be not

convincing. The present appears to be a fit case to exercise such

discretionary powers under Article 226 of the Constitution of India.

22. The petitions are disposed of with the following directions:

a.) The order of the RCS of cancellation of membership of Shri Shiv

Kumar Gupta of Sarva Hitkari Cooperative House Building Society

Ltd is hereby set aside/quashed.

b) The petitioners to jointly, within eight weeks of today, apply to the

respondent DDA for freehold conversion of the leasehold rights

underneath the land bearing property No. 213, Kailash Hills, New

Delhi into freehold in the joint name of the petitioners. The said

application to be accompanied with the documents under which the

petitioners claim their rights; the petitioners to also comply with other

formalities for making the said application including of deposit of

charges, fee etc;

c.) The DDA to thereafter communicate to the petitioners the

further/other amount if any payable by the petitioners towards charges

for restoration of the sublease or on any other account.

d.) Upon the petitioners paying the aforesaid charges if any and doing

any other thing which they may be required to do, the conveyance

deed of freehold rights in land be executed in favour of the petitioners.

e.) The petitioners to pay costs of these proceedings of `50,000/- each

(petition) to the respondent DDA on or before the date of making

application for freehold conversion aforesaid.

f) The directions having been issued in the peculiar facts of the case and

in exercise of discretionary powers, it is clarified that the same shall

not constitute a precedent for other cases.

RAJIV SAHAI ENDLAW, J

SEPTEMBER 02, 2011 M