Anuradha Kalra vs The Delhi Development Authority
2015 Latest Caselaw 4500 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                           W.P. (C). No.5072/2013

                                     Decided on : 29th June, 2015

ANURADHA KALRA                                   ...... Appellant
           Through:               Mr. Arun Malik & Mr. A.B. Pandey,
                                  Advocates.

                        Versus

THE DELHI DEVELOPMENT AUTHORITY          ...... Respondent
             Through: Ms. Manika Tripathy Pandey, Advocate.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This is a writ petition filed by the petitioner under Article 226 of

the Constitution of India. The petitioner has sought the following three

reliefs :-

a. Issue a Writ of Certiorari or any other appropriate Writ and/or order quashing the letter, bearing No.F125(359) 97/SFS/VK II and dated nil, vide which the respondent has rejected the request of the petitioner for delivery of possession of the flat bearing no.6001/1, Sector-D, Pocket-6B, Vasant Kunj, New Delhi.

b. Issue a Writ of Certiorari or any other appropriate Writ and/or order directing the

Respondent to transfer the flat bearing no.6001/1, Sector-D, Pocket-6B, Vasant Kunj, New Delhi to the name of the petitioner;

c. Issue a Writ of Mandamus or any other appropriate Writ order and/or direction thereby directing the Respondent to deliver the possession of flat bearing no.6001/1, Sector-D, Pocket-6B, Vasant Kunj, New Delhi to the petitioner as payment of entire demand has been made by the Petitioner in terms of Demand Letter dated 20.02.1997 in accordance with conversion policy;

d. Issue a Writ of Mandamus or any other appropriate Writ order and/or direction restraining the Respondent from transferring, and/or creating any right, title and interest in the flat bearing no.6001/1, Sector-D, Pocket-6B, Vasant Kunj, New Delhi in favour of any other person/party; and

e. Pass any other or further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

2. Briefly stated the facts leading to filing of the present writ

petition are that one Dhanpati had registered under the 9 th SFS category

2 flat. She was allocated a flat on the ground floor in Sector D, Pocket

6B, Vasant Kunj, New Delhi vide demand-cum-allocation letter dated

20.02.1997. At the time of allocation, the specific flat number was not

given in the allocation letter; however, the floor is given and the specific

flat is allotted by a draw of lots after the allottee has made the entire

payment in pursuance to the said allocation letter. On 15.7.1997, the

allottee Dhanpati is purported to have sold the said allocation to the

present petitioner Anuradha Kalra by executing an agreement to sell,

will, power of attorney, etc. Anuradha Kalra, in pursuance to the

allocation letter continued to deposit various amounts from time to time

under the aforesaid scheme. It is further alleged in the petition that on

21.12.2001 a letter was addressed to Dhanpati allotting her the said

specific flat bearing No.6001/1, in the aforesaid Sector D, Pocket 6B,

Vasant Kunj, New Delhi and she was further called upon to make

payment of Rs.2,230/- towards the various charges. The aforesaid

payment was deposited by the present petitioner on 12.2.2002. On

10.12.2003, the petitioner intimated to the respondent/DDA for issuance

of possession letter to her on the basis of general power of attorney,

agreement to sell, receipt, etc. It is alleged that the possession of the

said flat was not handed over to her; however, in a meeting held on

24.4.2008, the respondent/DDA had agreed to transfer the possession to

the petitioner after charging a token penalty amount of Rs.5,000/-.

Further in terms of the letter No.J-20011/12/L dated 21.12.1989 issued

by the Government of India, which laid down guidelines to confer the

clear title of the flat to the allottee after realizing the conversion charges,

surcharge and processing fee. It was alleged that the respondent was

under an obligation to convey the freehold title in respect of the flat in

question to the present petitioner. The petitioner had submitted all the

requisite documents in this regard to the respondent; however, on

2.9.2009, the petitioner received an intimation that her request for

handing over the possession of the flat in question was examined by the

competent authority and she was required to deposit maintenance

charges to the tune of Rs.27,080/-. The aforesaid charges are purported

to have been deposited by the petitioner on 27.10.2009. It is further

alleged that after keeping the claim/request of the petitioner for issuance

of possession letter pending for more than a decade, the respondent vide

their letter bearing No.125 (359) 97 SFS, VK 2 dated nil and in

supersession of letter dated 31.12.2001 demanded an exorbitant amount

of current cost from the petitioner. The current cost of the flat in

question was stated to be approximately Rs.55 lacs and since the

appellant had deposited an amount of Rs.8 lacs or so, she was required

to deposit the balance amount of Rs.42,66,157 with the respondent

failing which on 14.7.2013, the flat was to be treated as automatically

cancelled.

3. It is contended that the petitioner being the purchaser of the flat in

question could not have been asked to deposit an additional amount at

the current cost of Rs.42,66,157/- as it was against the law laid down by

this court in W.P. (C) No.4598/2005 titled Shri T.P. Oberoi vs. DDA

decided on 7.8.2006. Since neither the possession was handed over to

the petitioner nor the demand letter for payment of additional cost on the

basis of current cost of the flat in question was withdrawn, the petitioner

was constrainted to file the present petition.

4. The respondent filed its counter affidavit on 22.10.2013. It did

not dispute the facts as alleged in the petition; however, it stated that

although the original allottee is purported to have died on 1.5.1998

according to the petitioner but the intimation regarding her death was

given for the first time vide letter dated 10.12.2003 at the time of

seeking possession of the letter. It has also been stated that as Dhanpati

had purportedly executed general power of attorney in favour of the

present petitioner, Anuradha Kalra, on 15.7.1997 and she had died

before taking the possession of the flat in question, therefore, the present

sale was, as a matter of fact, a pre-possession transaction between the

parties. It is also admitted by the respondent that the present petitioner

had applied for conversion of the said flat from leasehold to freehold on

25.5.2009 and furnished requisite documents, namely, agreement to sell,

power of attorney, etc. But it is contended that the question of handing

over the possession to the petitioner was considered by the competent

authority at the highest level and the question arose that there were only

two ways of regularizing the request of the petitioner either by charging

her unearned increase on the flat in question or alternatively to demand

the current cost of the flat from the purchaser, namely, the petitioner. It

is stated that the competent authority, namely, the Vice-Chairman, DDA

vide its order dated 30.7.2012 decided to charge the current cost from

the petitioner which was worked out to be in consultation with the

finance wing of the respondent/DDA to be Rs.51,45,600/- and after

giving her an adjustment of an amount of Rs.8,79,443/-, the present

petitioner was asked to deposit an amount of Rs.42,66,157/-. It is stated

that as this was the last and final installment, it was to be deposited by

14.7.2013 failing which the flat was deemed to have been automatically

cancelled. The aforesaid averments made in the counter affidavit were

refuted by the petitioner in rejoinder and its case in the petition was

reaffirmed.

5. I have heard the learned counsel for the petitioner as well as

Ms. Manika Tripathy Pandey, the learned counsel on behalf of the

respondent/DDA. The main contention made by the learned counsel for

the petitioner is that the petitioner being a purchaser of the flat in

question from the erstwhile allottee Dhanpati (since deceased) and after

having made the entire payment of the flat in question to the tune of

Rs.8,79,000/-, she was entitled to get the possession of the flat in

question. It was not only the possession of the flat in question but also

the conversion of the said flat to the freehold as she had also deposited

the conversion charges in terms of the directions passed by the

respondent/DDA. It has been contended by the learned counsel for the

petitioner that this court in T.P. Oberoi's case (supra) involved

somewhat the similar facts where the court had directed the handing

over of the possession of the flat in question to the purchaser by giving

suitable direction to the respondent after protecting the interest of the

DDA by directing the purchaser of the flat in question to furnish an

undertaking to the DDA to indemnify the DDA of any loss in the event

of the original allottee resurfacing/claiming the possession or allotment

of the flat in question. It has also been stated in the said case the flat

was converted into the freehold and thereafter the possession was

handed over to the purchaser who had also deposited the necessary

charges in this regard.

6. Ms. Manika Tripathy, the learned counsel has vehemently

contested the claim of the petitioner to get the possession or have the

letter with regard to the payment of additional cost based on the current

cost to be charged from the petitioner as valid exercise on the part of the

respondent. It has been contended by her as a matter of fact the writ

petition of the petitioner as such is not maintainable because there was

no privity of contract between the petitioner and the respondent.

Moreover, the petitioner herself was guilty of concealment of material

fact inasmuch as according to her. She has purported to have purchased

the allocation and not a specific flat way back on 15.7.1997 and

disclosed about the same only in 2003 when the vendor, that is,

Dhanpati, the original allottee, had died in the year 1998 itself. This

concealment of material facts from the court in itself is something

serious which disentitles the petitioner from getting any relief.

7. I have carefully considered the submissions made by the

respective sides and have also gone through the judgment passed by the

learned single judge of this court in T.P. Oberoi's case (supra). No

doubt in the said case, the facts were somewhat similar to the facts of

the present case except that in T.P. Oberoi's case (supra), the petitioner

was not the immediate purchaser of the flat in question from the original

allottee but in between there were 2-3 more persons but what is

important to be noticed and which makes the facts of T.P. Oberoi's case

(supra) distinguishable from the facts of the present case are that in the

said case, the original allottee had not perhaps died and therefore, he

stood by the transaction and certainly the power of attorney purported to

have been executed by his vendee in favour of the petitioner wasstill

subsisting and was not challenged by anybody while as in the present

case, there is no dispute about the fact that the petitioner is purported to

have purchased the allocation on 15.7.1997. The first question while

would arise is what can be sold or purchased by a person is a property,

where an allocation letter which does not have even the specific number

of the flat reflected in the said allocation letter cannot be the subject-

matter of purchase. Even the agreement to sell which is executed

between Dhanpati and the present petitioner leaves the space with regard

to the number of flat as blank, clearly showing that what was purchased

by the present petitioner was only an allocation letter that, in my view,

does not constitute a property because the word 'property has been

defined under the Transfer of Property Act meaning as under :-

"Section 3 lays down that the "immovable property" does not include standing timber, growing crops or grass;

Section 5 defines the "Transfer of Property as an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons; and "to transfer property" is to perform such act.

Section 6 states that Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force.

............

(d) An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.

(dd) A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred.

(e) A mere right to sue cannot be transferred."

8. Keeping in view the aforesaid provisions of law pertaining to

transfer of property, there is no specific allocation of a flat in favour of

the deceased allottee, therefore, she or her legal successors had only a

right to sue which could not be transferred in favour of the present

petitioner. Similarly, under the self-financing scheme, a restriction was

placed on the allottee that the flat would be allotted to allottee for the

purpose of his residence which of course he or she would finance

themselves during the course of construction.

9. If that be so, the deceased petitioner could not have transferred

the flat to any person except by paying the unearned increase of 50% as

had been approved by the competent authority on the basis of current

cost as it was fresh allotment. The present petitioner has not placed the

brochure in this regard on record and, therefore, nothing can be said in

favour of the petitioner which would be of any help to her.

10. The allocation letter in the light of the aforesaid definition of the

word 'property' cannot be deemed to be a property which can be

transacted. This is the first disability with which the present case

suffers.

11. The next disability which makes the facts of the present case

totally distinguishable from the facts of T.P. Oberoi's case (supra) are

that Dhanpati, who was the original allottee, had admittedly died on

1.5.1998. The transaction between Dhanpati and the present petitioner,

Anuradha Kalra, had taken place on 15.7.1997. It was the incumbent

duty of the petitioner to have intimated about the purchase of the

allocation by her to the DDA de hors the fact as to whether the

allocation could be transaction or not. She was also required to have

intimated about the factum of the death of the original allottee in the

month of May, 1998. Instead of disclosing of these facts to the

respondent/DDA, the present petitioner surreptitiously kept on

depositing the money for and on behalf of a dead person and inviting the

respondent to make a specific allocation of a flat. It is only after a

specific flat is allotted to the dead person that in the year 2003, the

present petitioner for the first time intimates the respondent that she is

purported to have purchased the rights or the flat allocated to Dhanpati,

the original allottee on the basis of an agreement to sell, power of

attorney, receipt, etc. and it is on the strength of power of attorney that

she has approached the DDA claiming the possession of the property in

question.

12. Curiously, the language of the power of attorney does not mention

that it is a power of attorney executed for consideration and it is

irrevocable, therefore, for all practical purposes, the power of attorney

which is made as a basis of claiming the possession in the year 2003 has

ceased to have any effect on account of death of the executants of that

power of attorney on 1.5.1998 itself. Therefore, all these facts clearly

show two important things. Firstly, that there was no privity of contract

between the present petitioner and the respondent to maintain the

present petition itself inasmuch as she had no locus to file the petition

itself. Secondly, even if it is assumed that on account of purported

purchase of that allocation letter, she had a locus to maintain the writ

petition even then, she is not entitled to any relief from the court because

she was guilty of concealment of material facts.

13. It is now well settled that the grant of writ is a discretionary relief

by the court and it cannot be claimed as a matter of right. One of the

fundamentals of asking the court to exercise this discretionary power in

favour of the petitioner is that the petitioner must come to the court with

clean hands. While as in the instant case, it can, by no stretch of

imagination be said that the petitioner has come to the court with clean

hands and therefore, she is disentitled to any such relief.

14. There is another aspect. Even if it is assumed that the petitioner

had an agreement to sell coupled with the power of attorney, will,

receipt, etc. in her favour, the T.P. Oberoi's case (supra) judgment

would not be of any help to the present petitioner for the simple reason

that after T.P. Oberoi's case (supra) much water had flown down and

the Supreme Court in Suraj Lamp & Industries (P) Ltd. vs. State of

Haryana; (2012) 1 SCC 656 has held that a person does not get any

right, title or interest in the immoveable property on the basis of power

of attorney as well as coupled with agreement to sell etc. The proper

course of remedy open to such a person is to perfect their title by filing a

suit for specific performance. This judgment, on the face of it,

neutralizes the judgment of T.P. Oberoi's case (supra) for the simple

reason if at all the petitioner on the strength of the set of documents

which she is claiming to be the purchaser and consequently, possession

and conversion of the flat in question in his favour, it cannot be done as

these documents at best entitled her to get the decree of specific

performance by filing a suit in this regard against Dhanpati (since

deceased) rather than suing the present respondent.

15. For the reasons mentioned above, I am of the considered opinion

that the present writ petition of the petitioner is without any merit and

accordingly, the same is dismissed.

V.K. SHALI, J.

JUNE 29, 2015 'AA'