Vasudha Gupta vs Delhi Development Authority And ...
2014 Latest Caselaw 4784 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      WP.(C) No.6258/2013

                                               Decided on: 24.09.2014

    VASUDHA GUPTA                                         ..... Petitioner
                       Through:     Mr.Babanjeet Singh, Adv.

                       versus

    DELHI DEVELOPMENT AUTHORITY AND ANR ..... Respondent

Through: Mr.Ajay Verma, Adv. for R-1/DDA.

Ms.Chanchal Sharma, Adv. for R-2.

CORAM:

HON'BLE MR. JUSTICE V.K. SHALI

1. This is a writ petition filed by the petitioner against the

respondent for quashing of order dated 19.07.2013 by virtue of which

the request of the petitioner for conversion of leasehold right in

respect of the flat No.D-1/04, Rajasthali CGHS, Pitampura, Delhi -

110034 was rejected.

2. Briefly stated, the facts of the case are that the petitioner had

purchased the flat in question from one Sh.Ramesh Kumar Mahajan

for a total consideration of Rs.25 lakhs on the basis of GPA &

Agreement to Sell. The e-stamp papers amounting to Rs. 1 lakh for

execution of these documents are purported to have been purchased by the petitioner on 29.09.2011 and thereafter the GPA and the

Agreement to Sell were executed on 03.10.2011. Simultaneously

possession of the flat in question was also handed over to the

petitioner and the consideration exchanged. The petitioner applied for

registration of these documents to the respondent No.2 on 03.10.2011

itself and after completion of the formalities, the documents of sale by

way of registration of GPA & Agreement to Sell were actually

registered by the respondent No.2 on 13.10.2011. On 28.12.2011, the

petitioner submitted the application for conversion of rights in the

property in question from leasehold to freehold and as she did not

hear anything from respondent No.1, she became apprehensive that

her application would be rejected in view of the judgment of the

Supreme Court in Suraj Lamp & Industries Pvt.Ltd Vs. State of

Haryana in SLP(C) No.13917/2009 decided on 11.10.2011.

Accordingly, on 10.04.2013, she wrote to the respondent No.1

bringing to their knowledge the fact that her case is not covered by

the judgment in Suraj Lamp & Industries Pvt. Ltd's case (supra)

although the transaction of sale in question was registered on

13.10.2011. But once the transaction is registered, then it relates back to the date when the GPA and the Agreement to Sell were executed.

For this purpose, the petitioner drew the attention of the respondent

No.1 to Section 47 of the Registration Act, 1908. The respondent

No.1 instead of considering the case of the petitioner favourably on

the basis of her written representation dated 10.04.2013, passed an

order on 19.07.2013, which is impugned in the present writ petition,

rejecting the request of the petitioner for conversion of rights in

respect of the property in question from leasehold to freehold on the

ground that the GPA and the Agreement to Sell were registered by the

Sub Registrar on 13.10.2011.

3. The petitioner feeling aggrieved, filed the present writ petition.

On notice having been issued to the respondents, the respondent No.1

filed its affidavit contesting the claim of the petitioner for such

conversion. The respondent No.2, who is the ex officio registering

authority, also filed a separate affidavit. The respondent No.2 took

the plea that as they do not maintain a record, therefore, he is not able

to state as to why the documents submitted by the petitioner being

GPA and the Agreement to Sell, though received on 03.10.2011, were

registered on 13.10.2011 and deficiencies in the documents were found which were reported to the petitioner. Even otherwise, it is

contended by the respondent No.2 that Suraj Lamp & Industries

Pvt.Ltd's case (supra) did not recognize the transaction of

SA/GPA/Will etc. as valid documents of sale after 11.10.2011.

4. So far as the respondent No.1 is concerned, it also took the plea

that after the judgment of the Supreme Court in Suraj Lamp &

Industries Pvt.Ltd's case (supra), the transaction which is entered into

between the petitioner and the seller on 03.10.2011 cannot be taken

cognizance of because they were registered on 13.10.2011 while as

the judgment in Suraj Lamp & Industries Pvt.Ltd's case (supra) was

delivered on 11.10.2011.

5. I have carefully considered the submission and also gone

through the record. I do not agree with the contention of the learned

counsel for the respondents that the documents in the instant case

cannot be relied upon by the court for the purpose of conversion of

rights in the property in question from leasehold to freehold. The

reason for this is that Section 23 of the Registration Act, 1908, clearly

lays down that a document which is required to be registered must be

done so within a period of four months. Similarly, Section 47 of the Registration Act, 1908, lays down that once the registration of a

document takes place, it relates back to the date when the document

was executed meaning thereby that in the instant case, although the

document was registered on 13.10.2011, but it could not be said that

the document became operative only on 03.10.2011. On the contrary,

a combined reading of the aforesaid two sections will clearly show

that not only the executants of a document is given four months time

to get the document registered with the Sub Registrar but also that

once the said document is registered, it relates back to the date when

the same was executed.

6. Having said so, in the instant case, the documents in question

being Agreement to Sell and GPA were executed on 03.10.2011 and

were applied for registration on that day itself though the same were

registered on 13.10.2011.

7. The explanation, which has been given by the respondent No.2

is that the proof of identification may not have been with the

petitioner, does not cut any ice for the reason that to hold that the

documents become operative only on registration of the same i.e. on

13.10.2011 would be interpreting the law, as envisaged under Section 47 of the Registration Act, 1908, incongruent to the said Section.

Moreover, the law itself prescribes four months time to get the

documents registered which cannot be taken away. So far as the

judgment in Suraj Lamp & Industries Pvt.Ltd's case (supra) is

concerned, the same judgment also observes that it will not affect the

validity of sale agreements and powers of attorney executed in

genuine transactions which may have taken place before the

pronouncement of judgment dated 11.10.2011. The court has made it

abundantly clear that the purpose is not to make all transactions as

illegal, but to ensure that the parties are not able to circumvent the law

so as to cause loss to the exchequer by depriving it of payment of

stamp duty or registration charges. This note of caution has been

struck by the judgment in Suraj Lamp & Industries Pvt.Ltd's case

(supra) wherein it has been observed that the purpose of making the

transactions inadmissible on account of non registration is not to

deprive genuine parties of their rights qua local bodies.

8. Accordingly, in the instant case also, I feel that the transaction

whereby the petitioner has purchased the flat in question from one

Sh.Ramesh Kumar Mahajan on the basis of a GPA and the Agreement to Sell is a genuine transaction, which cannot be faulted so as to

deprive the petitioner the benefit of seeking conversion of the

property in question from leasehold to freehold. The documents in

question i.e. GPA and the Agreement to Sell though registered on

13.10.2011 relate back to 03.10.2011 when the same were executed

and presented for registration, which is prior to 11.10.2011 when the

judgment in Suraj Lamp & Industries Pvt.Ltd's case (supra) was

pronounced. Even if the judgment Suraj Lamp & Industries Pvt.Ltd's

case (supra) is taken in proper perspective, it cannot be deemed to

have nullified all the genuine transactions which have been entered

into between the two parties; that was neither the purpose of law nor

of the court. I, therefore, feel that the respondent No.2 has not been

truthful & correct in his affidavit by stating that there was some

deficiency in the documents of the petitioner submitted for

registration as there is no contemporaneous record maintained by

them and it is only on the basis of an oral submission that this defence

is taken. The respondent No.1 also cannot deprive the petitioner of

being treated as a genuine purchaser of the flat in question merely on

the basis that the judgment in Suraj Lamp & Industries Pvt.Ltd's case (supra) was delivered on 11.10.2011 and the documents were

registered on 13.10.2011 since the documents i.e. GPA and the

Agreement to Sell had been executed on 03.10.2011 and submitted

for registration that day itself. Thus, in terms of Section 47 of the

Registration Act, 1908, purchase of the flat in question made through

GPA and the Agreement to Sell executed on 03.10.2011, though

registered on 13.10.2011, has to be treated as a genuine & valid

transaction. The decision of the respondent No.1 communicated vide

letter dated 19.07.2013 rejecting the prayer of the petitioner seeking

conversion of the rights in the property in question from leasehold to

freehold, is totally unreasonable, arbitrary and capricious and,

therefore, deserves to be set aside. The respondents are under an

obligation to process the request of the petitioner seeking to convert

the rights in the property in question from leasehold to freehold in

accordance with law after realizing the charges in terms of their

policy. Accordingly, the writ petition is allowed with the direction to

the respondents to process the case of the petitioner, ignoring the

letter dated 19.07.2013 which stands quashed, and decide the request

of the petitioner to convert the rights in the property in question from leasehold to freehold within a period of eight weeks from today. No

order as to costs.

V.K. SHALI, J SEPTEMBER 24, 2014/dm