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2006 DIGILAW 1308 (DEL)

T. P. OBEROI v. DELHI DEVELOPMENT AUTHORITY

2006-08-07

S.RAVINDRA BHAT

body2006
S. RAVINDRA BHAT, J. ( 1 ) THE petitioner in these proceedings under Article 226 of the Constitution of india, claims a quashing order in respect of the communciation of the Delhi development Authority (the respondent in the proceedings, hereafter called "dda") declining his request for conversion of a flat into free hold property; a mandatory order, against the DDA to convert the property into free hold is also claimed. ( 2 ) ONE Subhash Chander Gupta (hereafter "the allottee") registered himself in a plan known as the "fifth Self Financing Scheme" (hereafter, SFS)framed by the DDA, for allotment of flats. During pendancy of his registration, dda introduced a policy for conversion of its flats and properties from the existing leasehold rights into free hold rights, in 1992. The DDA allocated a flat in the SFS in March, 1993 to the allottee; he appears to have transferred his rights in favour of one Ms. Shubhadra Anand, in June 1993, who paid all the instalments demanded, till 1996. Ms. Anand then transferred her rights to the petitioner's wife, on 14-5-1996; the latter transferred her rights to the petitioner, and executed a deed of Power of Attorney in his favour on 16-12-1998. The fifth and final instalment towards cost of the flat was demanded by dda in 2000; the petitioner deposited the charges. The total disposal cost of the flat was Rs. 9,28,500/ -. The final demand letter stated that "cost of flat (including the free hold charges ) Rs. 9,28,500/-" ( 3 ) THE DDA declined to hand over possession of the flat to the petitioner, apparently on the ground that he was not the original allottee. He then relied upon the conversion policy of the DDA, and approached this court for relief. While disposing off the writ petition ( CW 5858/2001) this court held as follows, on 24-9-2001:" (4) It would be for the petitioner to apply to the DDA and comply with the requisite requirements for transfer by furnishing general power of attorney coupled with agreement to sell and other documents, as may be required. Learned counsel for the petitioner states that he is williing to do so and to pay the requisite charges for transfer of the said allotment in the name of the petitioner's wife. Learned counsel for the petitioner states that he is williing to do so and to pay the requisite charges for transfer of the said allotment in the name of the petitioner's wife. (5) Nothing stated in the order hereinabove shall be construed as a direction to the DDA to transfer the flat in favour of the petitioner as attorney of his wife. It would be for the respondent DDA to consider the application for transfer in accordance with its policy and deal with it. " ( 4 ) THE petitioner then applied on 25-9-2001, to the DDA, claiming possession, and citing its policy of conversion, by which even "power of attorney" sales or transfers were recognised, and provided for. Such transferees could be given the benefit of conversion from leasehold to freehold, of properties which were acquried by them, through such transactions, upon payment of an extra amount of 33-1/3 % over and above the normal conversion charges. The dda did not take any action; therfore, a legal notice was issued, in 2003. By the impugned letter dated 24-3-2004, the request was declined, in the following terms:"accordingly, the case has been examined on merits. Since the above allotment is on freehold basis and at present there is no policy to transfer the free hold allotment to any other person on the basis of General Power of attorney, Agreement to sell etc, hence the request cannot be acceded to. " ( 5 ) THE petitioner alleges that the decision is arbitrary, and contrary to the conversion policy. In addition to the grounds urged in the course of the petition, Mr. S. K Rungta, learned counsel also submitted that the impugned decision is contrary to clauses 12 and 14 of the conversion policy, which visualize that "power of Attorney" holders and successive beneficial purchasers through such transactions can be extended the facility of conversion of property form leasehold, to free hold rights. It was submitted that if the DDA permits and recognises such transaction, the impugned decision not to hand over possession on the ground that the petitioner is not an original allottee, is arbitrary. It was urged that the amounts collected towards cost of the flat included the conversion charges. ( 6 ) MR. It was submitted that if the DDA permits and recognises such transaction, the impugned decision not to hand over possession on the ground that the petitioner is not an original allottee, is arbitrary. It was urged that the amounts collected towards cost of the flat included the conversion charges. ( 6 ) MR. Rungta lastly relied upon a letter issued by the Union ministry of Urban Development, to the DDA, about applicability of the conversion policy to transactions through General Power of Attorney sales completed prior to 2001, which may not have been registered. The said letter, dated 3rd March, 2006, reads as follows: To The Vice Chairman, Delhi Development Authority, Vikas Sadan , INA Colony, New Delhi 110023 [attention: Smt. Asma Manzar , commissioner (H)] Sir, I am directed to refer to DDA's communciation vide letter no. F. 126 ( 229)/90/sfs/83 dated 5-5-2004, on the subject noted above and to state that the matter regarding execution of conveyance deed in the name of purchaser/gpa Holders in respect of the flats allotted by DDA on freehold basis after 1992 has been considered in the Ministry. It has been observed that the Government of National capital Territory of Delhi had made the registration of documents such as General Power of attorney/ Agreement to Sell compulsory after September, 2001, the conveyance deed may be executed in the name of purchasers/gpa holders by charging 662/3 % of the current basic conversion chages , as penalty, irrespective of the fact as to whether the GPA/agreement to sell is registered or unregistered. Yours faithfully, sd /- (S. N. GUPTA) Under secretary to the Govt. of India 23061478 ( 7 ) THE DDA, in its return, admits that the petitioner had paid the final instalments; more importantly, it also admits that the property was converted into freehold. However, the position taken by it is curious; it avers that in the absence of a policy for transfer of free hold property to a transferee through a General Power of Attorney transaction, it cannot hand over possession to the petitioner. Mr. A. S. Chauhan, learned counsel, reiterated the submissions made in the counter affidavit. ( 8 ) THE narrative of facts does not show any serious dispute between the parties about the essential facts. The allottee transferred his rights, and eventually those rights were acquired by the petitioner through a GPA transaction. Mr. A. S. Chauhan, learned counsel, reiterated the submissions made in the counter affidavit. ( 8 ) THE narrative of facts does not show any serious dispute between the parties about the essential facts. The allottee transferred his rights, and eventually those rights were acquired by the petitioner through a GPA transaction. He undisputedly paid the last instalment, including conversion charges. The property is freehold. The question is whether the DDA can refuse to hand over possession on the ground that there is no policy. ( 9 ) CLAUSE 12 of the policy for conversion envisions different situations where conversion can be allowed in cases where the lessee/ allottee has parted with possession, and even visualizes a specific fact situation where there are successive power of attorneys (clause 12 (c) ) in which case, conversion would be allowed after verification of possession provided that the linkage of original allottee with the last power of attorney is established. Although this clause cannot directly apply to the facts of this case, since the allottee here had parted with his rights long ago, yet the intention of the DDA to recognise rights of beneficial owners and transferees emerges. Except possession, all the necessary ingredients required by the respondent, to convert the property, are present in this case. The property too been converted. In these circumstances, having regard to the fact that the petitioner deposited the amounts, including conversion charges, which were unreservedly accepted by the DDA, it would be inequitous to deny him possession. ( 10 ) IN the above circumstances, normally the petition ought to have been allowed in terms. However, the DDA's concern, though not specifically articulated, appears to be that if possession is handed over unreservedly to the petitioner, it should not be held accountable at a later stage, if the allottee steps forth and claims his rights. This apprehension can be allayed by appropriate directions. Counsel for the petitioner had agreed, upon instructions, to the course of a suitable undertaking being furnished to indemnify the DDA in case of any such eventuality. ( 11 ) THE following directions are therefore issued: (a) The petitioner shall furnish a suitable undertaking indemnifying the dda in the event of any claim pertaining to the title or possession of the flat in question, being preferred by the allottee, or anyone claiming through him. ( 11 ) THE following directions are therefore issued: (a) The petitioner shall furnish a suitable undertaking indemnifying the dda in the event of any claim pertaining to the title or possession of the flat in question, being preferred by the allottee, or anyone claiming through him. The undertaking/ indemnity shall also incorporate a condition that if there is litigation, civil or criminal in that regard, the petitioner shall defend it; (b) The petitioner shall in addition include a stipulation that in the event he parts with possession, or title to the flat in question, he would inform the DDA in that regard; (c) The DDA shall, within four weeks of receipt of the undertaking as per above directions, process the petitioner's application, hand over possession of the flat, and execute a conveyance deed. The writ petition and civil miscellaneous application are allowed in terms of the above directions. No costs.