Shri Harendar Singh Vs Ministry of Housing and Urban Affairs and Anr.

“(a) issue an appropriate writ in the nature of certiorari and any other appropriate writ, order or direction in the nature of mandamus, thereby directing the respondents to mutate/substitute the name of petitioner in respect of property

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No. B-IV/21, measuring 255.50 Sq. Ft. (full Share) consisting of ground and upper floor. Old Double Storey, Lajpat Nagar, New Delhi-110024 as lessee in the records of the respondent No. 2 (L & D.O.) in place of its last recorded lessees (1) Shri Vijesh Katyal S/0 Shri Murli Nath Katyal and (2) Shri Sunil Katyal S/0 Shri Badri Nath Katyal both R/0 E-12, Greater Kailash, New Delhi-48, on the basis of sale documents i.e. Regd. agreement to sell, Regd. GPA, Regd. SPA, Regd. Wills, Indemnity Bond, Possession letter, Receipt, consent affidavits and affidavits all dated 03.12.1996 executed by said Sh. Vijesh Katyal and Sunil Katyal in favor of Smt. Mansa Kaur, the mother of the petitioner, which have been filed as ANNEXURES:-P-16 to P- 28 respectively) and the petitioner has inherited the lease hold rights therein as one of the legal heirs of his mother, in the facts and circumstances of the case in the interest of justice ;

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(b) Any other or further order or direction(s), which this Hon'ble Court may deem fit, just and proper be also passed in the facts and circumstances of the case and in the interest of justice, equity and fair play.

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2. Relevant facts for adjudication of the present writ petition as pleaded are as follows:-

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a) Property no. B-IV/21, old double story, consisting of tenement on ground and upper floor (full share), ad-measuring of 255.5 sq. Ft., Lajpat Nagar, New Delhi-24 (hereinafter referred to as “ subject property ”) was allotted by the Ministry of Rehabilitation through Land and Development Office (hereinafter referred to as “ L&DO ”) to Mrs. Jethi Bai w/o Mr. Lal Chand vide a registered Lease and Conveyance Deed dated 30.11.1966.

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b) Following the passing of Mrs. Jethi Bai, the subject property was mutated by the Additional L&DO Officer to her son, Mr. Asa Nand s/o Mr. Lal Chand on the basis of a registered Relinquishment deed dated 29.08.1978 executed by Mr. Hari Chand s/o Mr. Lal Chand, Mrs. Ram Piyari d/o Mr. Lal

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Chand and Mrs. Shanno Devi d/o Mr. Lal Chand in favour of Mr. Asa Nand, vide Mutation letter dated 23.09.1978. Further, the subject property was also assessed to house tax with Municipal Corporation of Delhi (hereinafter referred to as “ MCD ”) in the name of Mr. Asa Nand s/o Mrs. Jethi Bai.

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c) Subsequently, vide Agreement to sell (hereinafter referred to as “ ATS ”), General Power of Attorney (hereinafter referred to as “ GPA ”), Will, Possession Letter and Receipts all dated 18.04.1991, the subject property was sold by Mr. Asa Nand to Mr. Vijesh Katyal s/o Mr. Murli Nath Katyal and Mr. Sunil Katyal s/o Mr. Badri Nath Katyal for a consideration amount of Rs. 1,85,000 after sale permission was granted by L&DO. Further, a registered Sale Deed dated 27.08.1991 with respect to the subject property was also executed by Mr. Asa Nand in favour of Mr. Vijesh Katyal and Mr. Sunil Katyal and the subject property was also assessed to house tax with the MCD in the name of Mr. Vijesh Katyal and Mr. Sunil Katyal. Consequently, on the basis of Sale Deed dated 27.08.1991, the subject property was mutated by the L&DO in name of Mr. Vijesh Katyal and Mr. Sunil Katyal.

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d) Thereafter, vide registered ATS, GPA, Special Power of Attorney (hereinafter referred to as “ SPA ”), Wills, Indemnity Bond, Possession Letter, Receipts, Consent Affidavit and Affidavits (hereinafter said documents referred to as “ sale documents ”) all dated 03.12.1996, Mr. Vijesh Katyal and Mr. Sunil Katyal allegedly sold the property to the mother of the petitioner, Mrs. Mansa Kaur w/o Mr. Hardit Singh for a consideration of Rs. 2,78,000. However, the said GPA, SPA, Consent Affidavit and Affidavit of nonrevocation of the GPA were executed by the said lessees of the subject

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property in favour of father of petitioner, Mr. Hardit Singh s/o Mr. Pratap Singh. The subject property was also assessed to house tax with MCD in the name of Mrs. Mansa Kaur, mother of the petitioner.

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e) The petitioner has placed on record various receipts with respect to the subject property, showcasing payments made towards property tax, conversion charges, electricity charges and water bills of various years under the name of his mother, Mrs. Mansa Kaur to the MCD.

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f) It is alleged by the petitioner that following the passing of father of the petitioner, Mr. Hardit Singh on 06.03.2003 and mother of the petitioner, Mrs. Mansa Kaur on 06.04.2016, the subject property was inherited by him with his two brothers i.e. Mr. Uttam Singh and Mr. Ravinder Singh and sister i.e. Mrs. Pano Kaur. However, vide registered Relinquishment Deed dated 16.04.2018, the said brothers and sister of the petitioner relinquished their rights over the subject property in favour of the petitioner.

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g) Subsequently, monitoring committee appointed by the Hon’ble Supreme Court sealed the subject property on account of misuse, unauthorized construction and encroachment made in front of the subject property. Vide request letter dated 13.04.2018, the petitioner requested L&DO to execute a supplementary deed with respect to the subject property in his favour and for de-sealing of the subject property. Along with the said letter, the petitioner also annexed copies of all the sale documents dated 03.12.1996, on which he placed reliance for the purchase of subject property by his mother, Mrs. Mansa Kaur from Mr. Vijesh Katyal and Mr. Sunil Katyal.

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h) Vide letter dated 22.06.2018, Deputy L&DO-IV informed the petitioner that his request for supplementary deed and de-sealing can only be considered after payment of all dues of the breaches of misuse, encroachment and unauthorized construction on the subject property. Petitioner replied to the said letter vide letter dated 06.07.2018 and stated that he is ready to remove all encroachments and pay the government dues with respect to all misuses, unauthorized constructions and encroachments.

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i) Vide letter dated 14.08.2018, Deputy L&DO intimated the petitioner that he is required to approach the Monitoring Committee appointed by the Hon’ble Supreme Court to temporarily de-seal the subject property for removal of encroachment.

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j) It is the case of the petitioner that the L&DO is not inclined to substitute his name in their records qua the subject property, despite his willingness to comply with all formalities and payment of all necessary dues. Hence the present petition.

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3. Learned Counsel for the petitioner, in support of the present petition made the following submissions: -

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i) The respondents are legally required and under obligation to mutate the name of the petitioner in the records of L&DO with respect to the subject property as per the Government guidelines and having the same inherited from his mother, who was a bonafide purchaser of the subject property from its last recorded lessees on the basis of sale documents dated 03.12.1996.

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ii) The petitioner has absolutely inherited the subject property as an heir of his mother, Mrs. Mansa Kaur after his brothers and sister relinquished their rights/ interest in the subject property by way of a registered relinquishment deed dated 16.04.2018.

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iii) The petitioner is entitled for mutation of his name qua the subject property as the transfer of lease hold rights in the property is legally permissible under the lease deed dated 30.11.1966.

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iv) The petitioner is ready and willing to comply will all terms and conditions of the original lease and pay all necessary dues, fees, conversion charges and/ or penalties for misuse of the subject property and to remove the unauthorized construction and encroachment on the subject property.

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v) Petitioner is in actual physical possession of the subject property and there has been no opposition or claim by any third party in the said property since the purchase thereof by the mother of the petitioner, Mrs. Mansa Kaur.

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vi) The subject property stands mutated in the name of the petitioner and has been assessed to property tax with MCD (Central Zone), Lajpat Nagar, New Delhi. Further, property tax and necessary charges qua the subject property stands paid up to date.

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vii) The petitioner is willing to give an undertaking to the respondents that in case any person comes forward and claims any right and interest in the

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subject property in future, the petitioner shall be responsible for such alleged claim. Further, the petitioner is also willing to face consequences, in case any claim is made by the last recorded lessees in the subject property or the sale documents dated 03.12.1996 are challenged in future by the persons who had transferred their rights in the subject property. Hence, there is no impediment in law for the respondents to mutate the subject property in the name of the petitioner.

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4 . Per contra , refuting the submissions made on behalf of the petitioner, learned Counsel for the respondents made the following submissions: - i) Prayer sought by the petitioner through the present petition is of such kind that it ought to have been made before the learned Civil Courts.

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ii) As per the official records of L&DO, the subject property is still mutated in the name of Mr. Vijesh Katyal and Mr. Sunil Katyal. There is no such record available with the respondents, which shows that the mutation of subject property is in the name of Mrs. Mansa Kaur.

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iii) Mutation of subject property in the name of Mrs. Mansa Kaur was never done. Thus, on her passing intestate, the subject property cannot be mutated in favour of petitioner.

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iv) Petitioner is relying on sale documents dated 03.12.1996. However, no proper Sale Deed was executed by the recorded lessees in favour of Mrs. Mansa Kaur and without any such Sale deed, petitioner by way of inheritance cannot claim to be lessee of the subject property in the L&DO records.

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v) Since, no proper Sale Deed is executed by the recorded owners in favour of Mrs. Mansa Kaur, a No-Objection Certificate (hereinafter referred to as “ NOC ”) ought to have been obtained from Mr. Vijesh Katyal and Mr. Sunil Katyal or from their legal heirs to the effect that an alleged sale in favour of the deceased mother of the petitioner had taken place with respect to the subject property or a Suit for declaration should be instituted to get the subject property mutated in his favour.

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vi) The issue of de-sealing of the subject property is beyond the purview, scope and jurisdiction of the respondents. Further, various receipts such as payment of property tax on which the petitioner is relying upon to claim ownership, is not a valid proof of ownership. Moreover, mere physical possession does not confer ownership rights.

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vii) There is no policy to mutate a property without a valid registered Sale Deed. Thus, without a registered Sale Deed in favour of Mrs. Mansa Kaur from the recorded owner’s i.e. Mr. Vijesh Katyal and Mr. Sunil Katyal, mutation of the subject property cannot be made.

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viii) It is denied that the petitioner cannot be deprived of mutation in his favour, when there is no opposition since long. At foremost, all requisite compliances need to be satisfied. Law doesn’t work on assumption, presumption and surmises.

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5. Refuting the stand taken by the respondents, learned Counsel for the petitioner submitted that: - i) The present Writ Petition is maintainable for the reliefs claimed against the respondents and it is denied that the petitioner should have approached learned Civil Courts.

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ii) The subject property can be mutated in the name of the petitioner, even if, Mrs. Mansa Kaur was not substituted as a lessee of the subject property in the L&DO records.

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iii) Mrs. Mansa Kaur remained in the actual physical possession of the subject property on the basis of sale documents dated 03.12.1996 and after her death, said possession was continued by the petitioner as successor-in-interest of his mother.

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iv) On account of sale documents dated 03.12.1996 not being challenged, they have attained finality. Therefore, the petitioner is entitled to the grant of mutation of his name with respect to the subject property.

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v) A Sale Deed is not mandatory for mutation of the subject property, firstly, because, the sale documents dated 03.12.1996 are registered and secondly, there is a registered Will of the last recorded lessees of the subject property in favour of Mrs. Mansa Kaur. Therefore, essential requirement of law for mutation of the subject property in favour of petitioner stands fulfilled. Further, NOC of the last recorded lessees is not required because the last

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recorded lessees had surrendered the actual physical possession of the subject property to the mother of the petitioner, Mrs. Mansa Kaur.

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vi) The issue of sealing the subject property by the Monitoring Committee appointed by the Hon’ble Supreme Court is not relevant for the purpose of adjudicating the issue involved in the present writ petition. Further, it is denied that payment of property tax is not a valid proof of ownership.

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vii) The respondents have not placed on record any policy which debars the petitioner to be mutated as a lessee of the subject property, so much so that as per the existing policies of respondents, the petitioner is entitled to be mutated as a lessee of the subject property.

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viii) Stamp duty paid on registered agreement and on mutation of property with MCD amounts to lawful sale thereof as required in case of a sale deed, which required payment of stamp duty plus corporation tax. Even otherwise, in view of the Judgment of this Court in Smt. Gurmeet Kaur v. Shri Harbhajan Singh & Anr.¹ , sale documents dated 03.12.1996, are legally recognized and confer valid title in favour of the petitioner with respect to the subject property.

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ix) As per the Office Order 03/2021, that has been filed by the respondents in compliance of the Order of this Court on 10.12.2019, the petitioner is entitled to the mutation of the subject property in his favour. The said Office Order reads as under:

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1 2017 AIR (Del) 164 = 2017 (241) DLT 339

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“ OFFICE ORDER NO. 03/2021

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Subject: Updation of land records subsequent to conversion of its tenure of property from leasehold to freehold.

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In continuation of Office Order No.8/2019 issued vide File No. 24026/01/2019/CDN/283 dated 13/12/2020 on the subject mentioned above, the undersigned is directed to say that under clause No. 6 of the procedure for substitution or mutation after conversion of tenure of a property from leasehold to freehold, provision has been made to carry out the inspection of boundary of the plot/ tenement to detect if there is any encroachment on Government/Public land.

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Based on the representations with regard to above provision, it has been decided that once the property becomes freehold, there is no need of inspection for the purpose of substitution/mutation. Accordingly, the provision of inspection of a freehold property for the purpose of substitution or mutation is completely dispensed with. However, inspection will be carried out in case, any complaint is received against any such property. A revised procedure to be adopted for substitution or mutation after conversion of property from leasehold to freehold is enclosed as Annexure I for information and compliance.

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This issue with the approval of competent authority.”

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x) Reliance was placed on Maya Devi v. Lalta Prasad² , Vikas Wadhwa v. Pradeep Kumar & Ors.³ and Vasudha Gupta v. DDA & Anr.⁴ .

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6. Heard counsel for the parties and perused the records.

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7. In the present case, the petitioner is seeking mutation of the subject property in his favour, on the basis of registered ATS, registered GPA, registered SPA, registered Will, Indemnity Bond, Possession Letter, Receipts, Consent Affidavit and Affidavits, all dated 03.12.1996. As per the said

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2 2014 AIR (SC) 1356, 2015 (5) SCC 588

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3 2019 (256) DLT 787

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4 2014:DHC:4992

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W.P.(C) 9707/2018

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documents, recorded lessees of the subject property i.e. Mr. Vijesh Katyal and Mr. Sunil Katyal executed the said ATS, Will, indemnity bond, possession letter and receipts in favour of the mother of the petitioner, Mrs. Mansa Kaur. However, the said GPA, SPA, Consent Affidavit and Affidavit of nonrevocation of the GPA were executed by the said lessees in favour of father of petitioner, Mr. Hardit Singh. On account of death of the petitioner’s father and mother on 06.03.2003 and 06.04.2016 respectively, petitioner claims title over the subject property, as his brothers and sister have relinquished their rights over the subject property vide Relinquishment Deed dated 16.04.2018. It is the case of the petitioner that he inherited the subject property after the death of his mother, who was the bonafide purchaser of the subject property from the said recorded lessees.

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8. Per contra , it is the case of the respondents that no proper Sale Deed was executed by the recorded lessees in favour of Mrs. Mansa Kaur, due to which her name was not recorded in the L&DO records and without any such Sale deed, petitioner by way of inheritance cannot claim to be lessee of the subject property.

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9. It is admitted by the petitioner that the last recorded lessees namely Mr. Vijesh Katyal and Mr. Sunil Katyal, had acquired the leasehold rights by way of a Sale Deed dated 27.08.1991. Despite this, the mother of the petitioner, who allegedly purchased the subject property, never got executed a Sale Deed.

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10. The issue raised in the present petition is- whether the petitioner is entitled to mutation with respect to the subject property, in place of the last

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recorded lessees on the basis of alleged sale documents dated 03.12.1996, executed by the last recorded lessees in favour of his mother.

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11. It has been held by the Hon’ble Supreme Court in Suraj Lamp (supra) that immovable property can be lawfully conveyed only by a registered deed of conveyance and transfers through ATS, GPA, Will do not convey title over an immovable property. Relevant paragraphs of the said Judgment read as under: -

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“23. Therefore, an SA/GPA/will transaction does not convey any title nor creates any interest in an immovable property. The observations by the Delhi High Court in Asha M. Jain v. Canara Bank [(2001) 94 DLT 841] , that the “concept of power-of-attorney sales has been recognised as a mode of transaction” when dealing with transactions by way of SA/GPA/will are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/will transactions are some kind of a recognised or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognise or accept SA/GPA/will transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.

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We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of “GPA sales” or “SA/GPA/will transfers” do not convey title and do not amount to transfer, nor can they be recognised or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognised as deeds of title, except to the limited extent of Section 53-A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in municipal or revenue records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered assignment of lease. It is time

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that an end is put to the pernicious practice of SA/GPA/will transactions known as GPA sales. ”

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(emphasis supplied)

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12. It has been submitted by the petitioner that a Sale Deed is not mandatory for mutation of the subject property because the sale documents dated 03.12.1996 are registered. However, the said submission also doesn’t hold good as it has been held by the Hon’ble Supreme Court in Shakeel Ahmed v. Syed Akhlaq Hussain⁵ that even if ATS, GPA, SPA, Affidavit, Wills are registered, they still don’t confer title over a property, relevant paragraphs of which is as under: -

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“12. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a court of law on its basis. Even if these documents i.e. the agreement to sell and the power of attorney were registered, still it could not be said that the respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to Sections 17 and 49 of the Registration Act and Section 54 of the Transfer of Property Act, 1882.”

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(emphasis supplied)

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13. In Shakeel Ahmed (supra) , Hon’ble Supreme Court also held that Suraj Lamp (supra) , would not operate prospectively by holding as under: -

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“15. The argument advanced on behalf of the respondent that the judgment in Suraj Lamp & Industries [Suraj Lamp & Industries (P)

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5 (2023) 20 SCC 655

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Ltd. (2) v. State of Haryana, (2012) 1 SCC 656 : (2012) 1 SCC (Civ) 351 : (2011) 183 DLT 1 (SC)] would be prospective is also misplaced. The requirement of compulsory registration and effect on nonregistration emanates from the statutes, in particular the Registration Act and the Transfer of Property Act. The ratio in Suraj Lamp & Industries [Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana, (2012) 1 SCC 656 : (2012) 1 SCC (Civ) 351 : (2011) 183 DLT 1 (SC)] only approves the provisions in the two enactments. Earlier judgments of this Court have taken the same view.”

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14. Judgment relied upon by the learned counsel for the petitioner are not applicable to the facts of the present case. In Maya Devi (supra) , Hon’ble Supreme Court was examining the issue of an objection raised by the third party in execution proceeding under Order XXI Rule 58 of the CPC. Similarly, in Vikas Wadhwa (supra) , the learned Single Judge of this Court was examining the aspect of Suit for possession on the basis of documents, which were entered into prior to the amendment to Section 53-A of the Transfer of Properties Act, 1882. Further, in Vasudha Gupta (supra) , the petitioner therein was an immediate buyer of the subject property therein and she was seeking conversion of the said property. However, in the present petition, petitioner is not the immediate buyer of the subject property, in fact he is claiming ownership over the subject property through his mother.

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15. In view of the aforesaid, this Court is of the considered opinion that the relief sought in the present petition cannot be granted and the same is thus dismissed and disposed of.

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16. Pending application(s), if any, also stands disposed of.

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17. Judgment be uploaded on the website of this Court, forthwith .

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AMIT SHARMA (JUDGE)