O.S.Bajpai vs The Administrator Lt.Governor
2016 Latest Caselaw 2639 Del

$~J
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                Judgment Reserved on: 17.12.2015
%                                             Judgment Pronounced on: 05.04.2016
+       Review Petition No. 394/2015 and CM No. 15443/2015 in W.P.(C)
        1959/2007
        O.S.BAJPAI                                   ..... Petitioner
                         Through: Mr. Shashwat Bajpai, Advocate.

                Versus
        THE ADMINISTRATOR LT.GOVERNOR              ..... Respondent

Through: Mr.Sanjay Jain, ASG with Mr.Sanjeev Narula, CGSC with Mr.Ajay Kalra and Mr.Shreshth Jain, Advocates.

Ms.Sunita Bhardwaj, Advocate for the applicant in CM 31292/2015.

Dr.Manmohan Sharma and Mr.Anurag Pratap, Advocates for-M/s Nirmal Tower Bldg. (P.) Ltd.

CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.(JUDGMENT)

CM No.15443/2015 (condonation of delay) in Rev. Pet. No.394/2015

1. By the present application filed under Section 5 of the Limitation Act, 1963 read with Section 151 of CPC, the applicant/respondent No.2 seeks condonation of delay of 1867 days (about five years) in filing the accompanying review petition against the judgment/order dated 28.05.2010 passed by this court in W.P.(C) 1959/2007.

2. Admittedly, no appeal has been filed by the applicant/respondent No.2 against the said judgment/order dated 28.05.2010. The court after having disposed of the writ petition, had continued to list the matter in court to monitor the progress of the implementation of the directions issued by this court. The respondent was directed to file status report.

3. Now, after five years the present application for review of the said judgment/order dated 28.05.2010 has been filed seeking deletion of particular directions as contained in para 18 (iv) of the said order. The grounds stated in the application for the delay of above about five years in filing the accompanying review petition do not in any manner appear bona fide. It is stated in the application that while seeking to implement the directions issued by this court, it came to be noticed that the applicant/revisionist was not in a position to implement the directions as they were not within the framework of The Delhi Apartment Ownership Act, 1986 inasmuch as the directions given in the said judgment/order dated 28.05.2010 travel beyond the scope and the scheme of the Act. Reference is then made to various meetings held between the Government officials themselves, movements of the file and meetings with the Additional Solicitor General. Delay in filing the review is sought to be explained in this manner.

4. In our opinion, the grounds given for condonation of delay lack bona fide and are misplaced. What is complained of is alleged legal lacunae in the judgment/order of this court dated 28.05.2010. It would not take respondent No.2, which is assisted by a battery of legal luminaries, five years to

comprehend that the directions given in the judgment/order of this court are allegedly beyond the scope of the 1986 Act.

5. Further, in the course of the monitoring the implementation of the directions and going through the various status reports filed by the respondents, this court had passed two judgments dated 22.12.2010 and 13.07.2012. These judgments were passed after detailed arguments on the contents of the status reports. At that stage, no such argument was raised by respondent No.2.

6. In the light of the above, we see no merits in the present application. However, we have still gone into the merits of the matter.

Rev. Pet. No. 394/2015

1. The present review petition is filed by respondent No2/Union of India seeking review of the judgment dated 28.05.2010 passed by this court disposing off the present writ petition. The writ petition was filed as a public interest litigation to draw attention of this court to the apathy and inaction on the part of the respondents in not properly enforcing the Delhi Apartment Ownership Act, 1986 (hereinafter referred to as „1986 Act‟).

2. It was the grievance of the petitioner that though the Act was passed 20 years ago (from the date of the petition), the respondent had still not been able to enforce the provisions of the 1986 Act. This court vide its judgment dated 28.05.2010 disposed off the petition. This court held that various infirmities had been pointed out by the petitioner in the 1986 Act and its implementation and that the same were also acknowledged by the respondents. It was held that there was complete absence of remedial/penal provisions in the enactment which enabled the builders of multi-storey

buildings to commit breaches as no consequences flow from the said breach. It was noted that there was a proposal pending to bring in a completely new Delhi Apartment‟s Bill. The order further states that the court is not in a position to give directions to bring out a suitable legislation but cannot let the matter rest at that. Till the time new legislation comes (if at all that happens), some means are to be found for effective implementation of the 1986 Act as far as possible. Hence, the court while disposing off the petition passed the following salient directions:-

"(a) Appointment of Competent Authority:

i) That the competent authorities may be appointed/nominated area-wise or building wise, so that these authorities are able to effectively discharge their functions. This should be done in accordance with the definition of competent authority as given in Section 2 (k) of the Act.

xxx Registration of Deed of Apartment:

i) The promoter/builder shall in all cases where the transfer has taken place under the sale deed/lease deed/transfer by endorsement, prior to the date of the order, which may be passed by this Court, execute the deed of apartment in the proformae as may be approved and issued by the competent authority keeping in view the provisions of Section 13(1) of the Act. This should be done within two months from the date of constituting the competent authorities.

xxx

iv) In case of leaseholder land, the deed of apartment be entered into between three parties, i.e, promoter, apartment owner and Land Development Officer (L& DO) on behalf of the President of India as confirming part.

xxx

b) Apartment Owners Association:

the competent authority shall send specific notice to all multi-storeyed apartments informing the owners of apartments that it is their right to form owners‟ association in accordance with the bye-laws as per the Explanation B of Chapter 1 of the said bye-laws under Section 15(2) of the Act. The officials from the office of the competent authority shall be deputed to visit all these multi-storeyed buildings, who would ensure formation of owners‟ association. They would be authorized to call for the meeting of the owners and supervise the formation of the association, so as to ensure smooth formation of the association. This exercise in respect of multi-storeyed buildings shall be completed within six months and the existing maintenance companies shall transfer the management of the multi-storeyed buildings to such associations.

c) Transfer of Management, Books of Account, etc.

Once the apartment owners‟ association is formed, it shall takeover the management from the promoter/builder. All the books of account, bank account and other documents shall be handed over by the promoter/builder to the apartment owners‟ association so formed and all functions relating to the management of the building, common area, collection of maintenance charges, expenditure to be incurred on maintenance, employment of manpower, legal compliance, etc. will be performed by the association."

3. Unfortunately, instead of implementing the directions of the court in right earnest, the record shows that the respondents have only been using dilatory tactics. Now, the present review petition has been filed in 2015 i.e. five years after the order was passed by this court on 28.05.2010 seeking the relief that the directions contained in para 18(iv) of the judgment dated 28.05.2010 to the extent that Land and Development Officer (L&DO) on

behalf of the President of India will act as confirming party to the Apartment Deed be set aside. It is urged that this court erred in directing L&DO to act as a confirming party to the deed of Apartment and the directions are in conflict with the provisions of the Act and the Rules. The relevant direction as contained in Clause 18 (iv) in judgment dated 28.05.2010 which has prompted this application reads as follows:-

"18.Registration of Deed of Apartment:

xxx

iv) In the case of leaseholder land, the deed of apartment be entered into between three parties, i.e., promoter, apartment owner and Land Development Officer (L& DO) on behalf of the President of India as confirming party."

4. We have heard the learned ASG appearing for the applicant/respondent No.2 and the learned counsel appearing for the petitioner. The learned ASG has submitted as follows:-

(i) The directions as contained in para 18 (iv) of the judgment regarding L&DO being a party to the Apartment Deed are hit by and contrary to Section 13 of the 1986 Act. It is urged that a perusal of Section 13 would show that the deed of apartment is to be executed by the promoter only in favour of the flat purchasers. The said directions, in the said order dated 28.05.2010 fly in the face of statutory provisions.

(ii) The impugned directions in the order dated 28.05.2010 needlessly involve the President of India for execution of the deed of apartment.

(iii) The directions are also contrary to the stipulated form of Deed of Apartment which is stipulated in form B of the rules framed in exercise of powers under Section 27 of the 1986 Act.

5. On the basis of these averments, it is urged that the directions in the impugned judgment dated 28.05.2010 of this court are patently erroneous on the face of the record and would accordingly require modification.

6. Learned counsel appearing for the petitioner has strenuously opposed the present petition. He has pointed out that the applicant/respondent No2 is only using dilatory tactics to delay the implementation of the judgment dated 28.05.2010. It is pointed out that this court while disposing of the petition in its judgment dated 28.05.2010 had continued to list the matter in Court and monitored the matter to ensure compliance of the directions. The respondents were directed to file a status report. Pursuant to the said monitoring and status reports, two judgments have been passed subsequently by the Division Bench on 22.12.2010 and 13.07.2012 clarifying certain aspects of the matter. At no stage, the applicant/respondent No.2 raised the present arguments. It is urged that contempt petitions are pending before the appropriate court on account of non-compliance of the directions of this court dated 28.05.2010 and only to escape those contempt proceedings, the present review petition has been filed without explaining delay of 1867 days (five years approximately). It is urged that the present review petition is hence liable to be dismissed on this ground itself.

7. Before dealing with the merits of the case, as already noted the court after having passed the judgment dated 28.05.2010, had kept the matter to monitor the implementation of the directions. The respondents had been

directed to file status reports regarding the progress in implementing the judgment. In the course of pursuing the status report, two further orders were passed by the court on 22.12.2010 and 13.07.2012 clarifying certain aspects of the judgment dated 28.05.2010.

8. On 22.12.2010, this court noted that an application has been filed by the applicant/respondent No.2 whereby it was averred that respondent No.2 had bought a policy to convert leasehold land tenure into freehold and the same was applicable to multi-storey flats. Hence, it was urged that it was not necessary to look into the 1986 Act with regard to apartments built on the land given by L&DO. This court, however, noted that no such conversion policy was advanced when the writ petition was heard and in any case the conversion policy has nothing to do with the working of the 1986 Act inasmuch as the policy of conversion to free hold and the Act are altogether in different fields. It was further stated that if a person/apartment owner does not want to convert his property into freehold, he cannot be deprived of the benefits of the 1986 Act. This court noted with dismay the fact that nothing has been done to implement the judgment of this court dated 28.05.2010. The Court noted that the department had accepted the judgment and was expected to implement the same. The application of respondent No.2 was dismissed. On the assurance and undertaking given by the learned ASG appearing before the court, that necessary action would be taken to comply with the directions and the same would be completed within a period of three months, this court extended the time by three months i.e. till 31st March, 2011.

On 13.07.2012, this court again noted that despite lapse of two years, no steps have been taken by the respondents and apart from the petitioner,

several other apartment owners are making a grievance that the deed of apartments are not being executed and registered. It is then this court clarified certain aspects pertaining to the registration of the deed of apartment by promoters and also regarding the demands of lessor, namely, DDA and L&DO that may be pending against the promoters. The following directions were passed in that regard.

"10. .... However, the question whether the promoter/builder has failed to so execute and register the Deed of Apartment is also to be adjudicated either in a suit for specific performance or in an arbitration, if provided for in the allotment/possession letter of the apartment. The Competent Authority, as aforesaid, under Section 13 (4) supra has been empowered to decide the disputes as to succession to the apartment. We are of the opinion that the dispute whether the promoter/builder has failed in executing and registering the Deed of Apartment would be within the scope of Section 13(4) of the Act and the Competent Authority would be entitled to pass an order directing the promoter/builder to execute the Deed of Apartment and if the Promoter/Builder inspite thereof does not execute the Deed of Apartment, to itself execute and register the Deed of Apartment on behalf of the promoter/builder. Similarly, the disputes if any, as to who, at present is entitled to the apartment, are also to be decided by the Competent Authority.

xxx

12. ..... We thus direct that upon any of the apartment owners so approaching the DDA or L&DO, DDA or L&DO as the case may be to within three months intimate pro-rata demand against that particular apartment and upon payment thereof join the promoter/builder or the Competent Authority as the case may be in executing the Deeds of Apartment. However, if the said claims are disputed by the apartment owners, we are afraid the same cannot be adjudicated neither in these proceedings nor by the Competent Authority and appropriate remedy thereagainst will have to be taken. ..."

9. It is hence clear that the judgments dated 22.12.2010 and 13.07.2012 have been passed after hearing detailed submissions of the parties. The applicant/respondent No.2 at no stage while arguments were being heard on the status report, raised the plea which is the subject matter of the present review petition. Apart from the delay, it is apparent that the plea now sought to be raised that the directions contained in para 18 (iv) of the judgment dated 28.05.2010 are contrary to the statutory provisions is an afterthought and cannot be entertained on this ground itself. It is only an attempt to somehow wriggle out of the judgment passed by this court on 28.05.2010.

10. We may also stress here the clarifications which were made by the court in its order dated 13.07.5012 while dealing with the status report. The court had clarified that the directions contained in paragraph 18(iv) of the judgment dated 28.05.2010 applies to DDA/L&DO i.e. the concerned land owning agency and not to L&DO in every leasehold case. This is implicit in para 12 of the said judgment, the relevant portion of which reads as follows:-

"12. .... We thus directed that upon any of the apartment owners so approaching the DDA or L&DO, DDA or L&DO as the case may be to within three months intimate pro-rata demand against that particular apartment and upon payment thereof join the promoter/builder or the Competent Authority as the case may be in executing the Deeds of Apartment. However, if the said claims are disputed by the apartment owners, we are afraid the same cannot be adjudicated neither in these proceedings nor by the Competent Authority and appropriate remedy there against will have to be taken. ...."

11. Even otherwise, in our opinion, there is no merit in the contentions of the applicant. The basic argument is that the impugned directions in the

judgment of this court dated 28.05.2010 are contrary to Section 13 of the 1986 Act and the rules and hence this court has erred in passing the impugned directions. We may first look at Section 13 of the 1986 Act.

" DEED OF APARTMENT AND ITS REGISTRATION

13. Contents of Deed of Apartment-

1) Whenever any allotment, sale or other transfer of any apartment is made, the promoter shall, -

(a) In the case of an allotment, sale or other transfer made after the commencement of this Act, within three months from the date of such allotment, sale or other transfer, or

(b) In the cases of any allotment, sale or other transfer made before the commencement of this Act, within six months from the date of such commencement.

Execute a Deed of Apartment containing the following particulars, namely:-

(i) The name of the allottee,

(ii) Description of the land on which the building and the common areas and facilities are located, and whether the land is free-hold or lease-hold, and if lease-hold, the period of such lease,

(iii) A set of floor plans of the multi-storeyed building showing the layout and location, number of apartments and bearing a verified statement of an architect certifying that it is an accurate copy of the portions of the plans of the building as filed with, and approved by, the local authority within the jurisdiction of which the building is located.

(iv) Description of the multi-storeyed building, stating the number of storeys and basements, the number of apartments in that building and the principal material of which it is constructed.

(v) The apartment number, or statement of the location of the apartment, its approximate area, number and dimension of rooms, and immediate common area to which it has access, and any other date necessary for its proper identification.

(vi) Description of the common areas and facilities and the percentage of undivided interest appertaining to the apartment in the common areas and facilities.

(vii) Description of the limited common areas and facilities, if any, stating to which apartments their use is reserved.

(viii) Value of the property and of each apartment, and a statement that the apartment and such percentage of undivided interest are nor encumbered in any manner whatsoever on the date of execution of the Deed of Apartment.

(ix) Statement of the purposes for which the building and each of the apartments are intended and restricted as to use,

(x) The name of the person to receive service of process, together with the particulars of the residence or place of business of such person.

(xi) Provisions as to the percentage of votes by the apartment owners which shall be determinative of whether to rebuild, repair, restore, or sell the property in the event of damage or destruction of all or any part of the property."

12. It is noteworthy that the judgment of this court dated 28.05.2010 has noted the contentions of both the parties that there are various infirmities in the enactment. However, the court till the time a new legislation comes up, has issued the appropriate directions for effective implementation of the present legislation. The impugned directions as contained in para 18 of the judgment dated 28.05.2010 have to be seen in that context. Section 13 of the 1986 Act does not prohibit L&DO from being a joint signatory to the deed of apartment. In fact, the directions made are for the benefit of L&DO and

the Apartment owner. They help bring clarity and order. A perusal of Section 13(1) of the Act would show that a detailed description of the property/building is required to be reproduced in the deed of apartment. If in case L&DO is not a party to the deed of apartment, there is a possibility of the builder/promoter introducing wrong/incorrect description of the building/land and other such details. Later on, in all probability L&DO would turn down and claim that L&DO being the Lessor is not bound by the description and measurement and other details which are stated in the deed of apartment. This would lead to unnecessary confusion and litigations. It is in the interest of L&DO that the correct details of the building/plot/land etc. are stipulated in the deed of apartment and that L&DO also recognizes the apartment owner as having appropriate rights in the leasehold property. This would be in the interest of the parties.

13. The directions in para 18(iv) of the judgment are given in the light of the infirmities noted in the enactment. They are for the benefit of the parties including L&DO/DDA. The directions cannot be said to be contrary to Section 13 of the 1986 Act.

14. The principles on the grounds of which review would be allowed are well known. The Supreme Court in the case of Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma and Ors., MANU/SC/0004/1979: (1979) 4 SCC 389 held as follows:-

"It is true as observed by this Court in Shivdeo Singh v. State of Punjab, there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The

power of review may be exercised to the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate Court to correct all manner or errors committed by the subordinate Court."

15. In our opinion, the applicant/respondent No.2 has failed to point out any mistake/error apparent on the face of the record to enable us to exercise any powers to review. At best what is sought to be argued was that the decision was erroneous on merits. We see no merits in the present petition. The review petition and CM No.15443/2015 are dismissed.

(JAYANT NATH) JUDGE

CHIEF JUSTICE

APRIL 05, 2016 rb/v/n