Delhi Development Authority vs Suresh Gupta & Ors.
2011 Latest Caselaw 4861 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+              LETTERS PATENTS APPEAL 799/2011


%                           Date of Decision: September 29, 2011

DELHI DEVELOPMENT AUTHORITY             ..... Appellant
                Through Mr. Ajay Verma and Mr. Manu
                         Parashar, Advocates.

                  versus

SURESH GUPTA & ORS.                               ..... Respondents
                 Through

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA

                               ORDER

SANJIV KHANNA, J.:

CM No. 18271/2011

This is an application for condonation of delay of 221 days

in preferring the appeal.

2. Before issuing notice on the application for condonation of

delay, we have thought it apt to examine the matter on merits.

3. Contention of the appellant-Delhi Development Authority

(DDA) is that the respondent Nos.1 and 2 should be asked to pay

land rates prevalent in 2006. It is submitted that the learned single

Judge in the impugned order dated 10th January, 2011 has erred

in holding that the land rate prevalent as on 1st January, 1993

should be applied. It is submitted that the initial allotment by the

appellant-DDA to one K.D. Sikand vide perpetual sub-lease deed

dated 28th December, 1987 was illegal.

4. Plot No.E-1091, Government School Teacher CHBS was

allotted to K.D. Sikand vide perpetual sub-lease deed dated 28th

December, 1987. She transferred her rights in the plot vide

General Power of Attorney (GPA)/Agreement to Sell dated 18th

March 1988 in favour of Anil Kumar/ Sarla Devi/ Sadhana Devi.

There was another transfer by the said purchasers on 8th

December, 1989 in favour of the respondent Nos.1 and 2. The

said respondents applied to Municipal Corporation of Delhi (MCD)

for sanction of building plan and after approval, constructed a two

and a half storeyed building on the plot in 1990-91.

5. In order to regularize the transfers made on Power of

Attorney basis and convert lease hold rights in the plots into free

hold, appellant-DDA had promoted a conversion scheme.

Respondent No.1 on 20th May, 1992 applied to the DDA for

conversion of the leasehold rights to freehold rights in respect of

the said plot and paid the entire conversion charges. The said

respondent also paid additional penalty charges to the DDA as

the original sub-lessee had transferred/parted with possession of

the plot to third parties contrary to the terms of the sub-lease deed

and the said respondent was the beneficiary.

6. It is not disputed and denied by the appellant that the

respondents were bona fide purchasers for value and were not

aware of any defect or fraud played by the original allotee to

procure allotment. In fact, DDA itself was not aware of any such

fraud.

7. By communicated dated 28th September, 1992, the

appellant informed the respondent No.1 that the original sub-lease

deed dated 28th December 1987 executed in favour of K.D.

Sikand had been cancelled and, therefore, the request for

conversion from lease hold to freehold stood rejected. It was

alleged that K.D. Sikand has failed to disclose that she already

owned a flat and, therefore, was not eligible for allotment of the

plot in 1987. The respondents kept on corresponding with the

DDA but without success and ultimately, as a last resort,

approached the Court by way of W.P.(C) 820/2008, which has

been disposed of by the impugned order dated 10th January,

2011.

8. We have already noticed the facts in detail above. There

cannot be any doubt that the respondent Nos.1 and 2 purchased

the sub-lease rights in respect of the plot, which was originally in

1987 allotted to K.D. Sikand. They paid the entire sale

consideration in 1989 and thereafter constructed a two and a half

storeyed building on the plot. They had in 1992 applied for

conversion of the lease hold rights into free hold and had paid the

conversion charges as well as the penalty charges to regularize

the purchase pursuant to which the lease hold rights and

possession of the plot was transferred.

9. The dispute is whether the said respondents should be

asked to pay the price prevailing as on 1st January, 1993 or in

2006. In our considered opinion, the learned single Judge has

rightly held that the price prevalent as on 1st January, 1993 is

payable by the respondent Nos. 1 and 2 and not the price

prevailing in 2006. The respondents had applied for conversion

from lease hold to free hold in May, 1992 and had also deposited

payment including penalty charges. The said payment has

remained with the appellant. It was for the appellant-DDA to take

a decision in such cases, which are peculiar, as the said

respondents who applied for conversion had deposited the

payment and penalty amount, are not guilty of fraud and if at all

they have also suffered on account of the fraud committed by the

original allottee. There is no explanation why the appellant-DDA

took nearly 14 years from 1992 till 2006 to decide how to deal with

such peculiar cases. Lapse and delay on the part of the appellant

cannot be a ground to enhance liability, which is payable and is

now being demanded from the respondent Nos.1 and 2. The

respondent Nos. 1 and 2 have paid the conversion costs, penalty

amount for illegal transfer, and the purchase price to the sub-

lessee or her attorney. The respondent Nos. 1 and 2 have been

now asked to pay the purchase price to the appellant-DDA.

10. It may be noticed here that the averments made in the

application for condonation of delay of 221 days are vague and

except for stating that the matter was being debated and

examined at various levels, no other reason or ground is given.

11. In view of the aforesaid, there is no justification to issue

notice on the application for condonation of delay and,

accordingly, the application for condonation of delay stands

rejected and as an evitable corollary, the appeal also stands

dismissed in limine.

SANJIV KHANNA, J.

CHIEF JUSTICE September 29, 2011 NA/VKR