Smt. Darshana Gupta & Anr. vs Govt. Of Nct Of Delhi & Ors.
2012 Latest Caselaw 6757 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of decision: 26th November, 2012

+                               LPA No.771/2012

      SMT. DARSHANA GUPTA & ANR.            ..... Appellants
                  Through: Mr. N.S. Dalal & Mr. Pankaj Gupta,
                           Advs.

                                   Versus

    GOVT. OF NCT OF DELHI & ORS.              ..... Respondents

Through: Mr. Sumit Chander, Adv.

CORAM :-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

D. MURUGESAN, CHIEF JUSTICE CM No.19727/2012 (for exemption) Allowed, subject to just exceptions.

The application is disposed of.

LPA No.771/2012

1. This intra-court appeal impugns the order dated 19.11.2012 of the

learned Single Judge refusing to entertain W.P.(C) No.7215/2012

preferred by the appellant and relegating the appellant to the statutory

remedy of appeal. The said writ petition was filed by the appellant

impugning the order dated 12.11.2012 of refusal of 'No Objection

Certificate / Permission' for transfer of land, admeasuring 1058 sq. yds.

out of Khasra No.142/778 situated in the extended Lal Dora of village

Kanjhawala, Delhi, applied for under Section 5 of the Delhi Lands

(Restrictions on Transfer) Act, 1972. The learned Single Judge in the

impugned judgment held that since Section 6 of the Act provides for the

remedy of appeal against an order under Section 5 of the Act, the writ

petition was not maintainable.

2. The counsel for the respondent appears on advance notice and we

have with consent heard the counsels finally on the appeal.

3. The contention of the counsel for the appellants is that the said Act

places restriction on transfer of only those lands which have been

acquired or in respect of which acquisition proceedings have been

initiated and the competent Authority (under the Act), under Section 5,

can refuse permission on the said grounds only and not on any other

ground. Inviting attention to the order dated 12.11.2012, it is stated that

permission for transfer has been denied not on the ground of the subject

land being under acquisition but on the ground of an FIR having been

lodged with respect to a dispute as to the title to the said land. It is thus

contended that the refusal is not under Section 5 of the Act and thus the

remedy of appeal under Section 6 of the Act is not available.

Alternatively, it is argued that the exclusion of writ jurisdiction on the

ground of availability of alternative remedy is not an absolute rule and

since the order of refusal of permission in the present case is patently

illegal and beyond the jurisdiction of the competent Authority, it be set

aside in writ jurisdiction. It is further urged that the disposal of the

appeal will take time. Urgency is shown by pleading that the appellants

are the prospective purchaser of the said land and under the Agreement to

Sell in their favour, the transferors of the land have imposed the

responsibility of obtaining permission on the appellants. It is contended

that unless permission is immediately granted, the appellants run the risk

of losing the right to purchase the land and also forfeiting their earnest

money.

4. On the contrary, counsel for the respondent has opposed the locus

of the appellants to challenge the order. It is contended that the

appellants are merely the prospective purchasers and the transferors who

had sought permission and to whom permission to transfer has been

denied have not chosen to challenge the order.

5. The appellants have not even made the transferors of the land as

parties to the writ petition or to this appeal. It is not known whether they

are desirous of challenging the refusal. The time for completion of the

purchase, as per the copy of the Agreement filed before us, has already

lapsed though the counsel for the appellants states that the transferors

have extended the said time by another 15 days. He also states that the

appellants are in a position to file an affidavit in this Court on behalf of

the transferors of their support for the present proceedings.

6. Having considered all the aforesaid facts, we are of the view that

rather than adjourning this appeal to enable the appellants to implead the

transferors as parties hereto and issue notice to them and / or to await

their response, it will be better that the appellants, as directed by the

learned Single Judge, avail the remedy of appeal where all the questions

in the proper perspective can be gone into. To allay the apprehensions of

the appellant of delay, direction can always be issued to the Appellate

Authority for expeditious disposal of the appeal.

7. Accordingly, while not interfering with the order of the learned Single

Judge, we direct that upon the appeal being filed by the appellants along

with the transferors within one week hereof, the Appellate Authority shall

dispose of the same within a period of two weeks from the date of the filing

of the appeal.

The appeal is disposed of. No costs.

CHIEF JUSTICE

RAJIV SAHAI ENDLAW, J NOVEMBER 26, 2012 'gsr'