TMI Blog2015 (3) TMI 1423X X X X Extracts X X X X X X X X Extracts X X X X ..... oing by the ratio of Suraj Lamp Industries (P) Ltd. s case [ 2009 (5) TMI 1012 - SUPREME COURT ], the respondent is at a higher footing than a holder of Power of Attorney and therefore the respondent is entitled to have conversion of the land. As pointed out earlier, the suit for specific performance, in our view, is a collusive one and therefore cannot confer any right upon the respondent to claim conversion. On the date of filing of the writ petition, the respondent was neither a holder of a power of attorney nor had any subsisting right in the suit property and while so, the High Court was not right in holding that the respondent is entitled to apply for conversion of the property. Dehors the scheme of conversion, the respondent is not entitled to apply for conversion of the property. The respondent does not fall within the ambit of Clause 13 of the Conversion Scheme and therefore the impugned order of the High Court cannot be sustained and is liable to be set aside. Appeal allowed. - Civil Appeal No. 3124 of 2015 (Arising out of SLP (Civil) No. 9305/2011) - - - Dated:- 24-3-2015 - V. Gopala Gowda And R. Banumathi, JJ. For the Appellant : Ms. Binu Tamta, Adv. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art of obligation. In the civil suit, Jan Talwar though entered appearance subsequently remained exparte. Based on the compromise decree in the original suit, Gaurav Kukreja applied to DDA for the conversion of suit property from leasehold to freehold. However, the DDA refused the conversion on the ground that as per the scheme, Gaurav Kukreja did not possess a good title. 4. Aggrieved, respondent-Gaurav Kukreja filed W.P.(C) No.7608/2009 before the High Court of Delhi, seeking the conversion of suit property from leasehold to freehold, on the strength of a policy decision taken by DDA and based on the compromise decree in the civil suit. Respondent contended that DDA wrongfully denied him the benefit of Conversion Scheme even when respondent has complied with the conditions therein. Respondent is stated to have deposited an amount of Rs.18,55,347/- with DDA towards conversion charges. 5. Learned Single Judge of High Court of Delhi, after considering material on record allowed the writ petition by holding that the decree passed in the civil suit stands on a higher footing than any General Power of Attorney as per Clause 13(a) of the Conversion Policy. The possession of suit p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly considered the rival submissions and perused the impugned order and material on record. 10. In the suit for specific performance filed by respondent-Gaurav Kukreja and his father-Lekh Raj Kukreja, DDA was not made a party to the suit despite the fact that it was within their knowledge that the property is a leasehold property under the control of DDA and cannot be disposed of without obtaining a prior permission from the DDA. In terms of Section 15(a) of the Specific Performance Act 1963, the suit for specific performance can be filed by any party to the contract. In the instant case, suit for specific performance was filed by the respondent and his father who admittedly were not the parties to the agreement to sell. Jan Talwar (vendor), during the pendency of suit, remained exparte and the suit was decreed in terms of a compromise arrived between the parties, all of whom were family members. In our considered view, suit for specific performance is a collusive suit, where the respondent and his father used the process of the court to get rid of the stamp duty, registration charges and unearned increase payable to DDA. 11. Be that as it may, as per the decree for specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided that: a) Application for conversion is made by a person holding power of attorney from lessee/sub-lessee/allottee to alienate (sell/transfer) the property. b) Proof is given of the possession of the property in favour of the person in whose name conversion is being sought. c) Where there are successive power of attorneys, conversion will be allowed after verifying the factum of possession provided that the linkage of original lessee/sub-lessee/allottee with the last power of attorney is established and attested copies of power of attorneys are submitted. In such cases, a surcharge of 331/3% on the conversion fee would be payable over and above the normal conversion charges (no unearned increase will be recoverable). In terms of Clause 13 of the Scheme, it is thus mandatory for a person to file a conversion application to have a power of attorney from the lessee/sub-lessee/allottee. Further in case of successive power of attorney, Clause 13 requires for the proof of possession alongwith the linkages of original lessee/sub-lessee/allottee with the last power of attorney is established and attested copies of power of attorney be submitted. In the light of Clause 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have disastrous collateral effects also. For example, when the market value increases, many vendors (who effected power of attorney sales without registration) are tempted to resell the property taking advantage of the fact that there is no registered instrument or record in any public office thereby cheating the purchaser. When the purchaser under such power of attorney sales comes to know about the vendor s action, he invariably tries to take the help of musclemen to sort out the issue and protect his rights. On the other hand, real estate mafia many a time purchase properties which are already subject to power of attorney sale and then threaten the previous power of attorney sale purchasers from asserting their rights. Either way, such power of attorney sales indirectly lead to growth of real estate mafia and criminalisation of real estate transactions. 15. Further a three Judge Bench of this Court in Suraj Lamp Industries Pvt. Ltd.(2) vs. State of Haryana Anr., (2012) 1 SCC 656, considered the validity of such SA/GPA/WILL transaction and observed thus: 23. Therefore, an SA/GPA/WILL transaction does not convey any title nor creates any interest in an immovabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lekh Raj Kukreja did not follow up the matter within a reasonable time and they have approached the High Court only in the year 2009. 17. Main contention of the respondent is that he is a decree holder for specific performance and even going by the ratio of Suraj Lamp Industries (P) Ltd. s case, the respondent is at a higher footing than a holder of Power of Attorney and therefore the respondent is entitled to have conversion of the land. As pointed out earlier, the suit for specific performance, in our view, is a collusive one and therefore cannot confer any right upon the respondent to claim conversion. 18. In Director of Settlements, Andhra Pradesh and Ors. vs. M.R. Apparao and Anr., (2002) 4 SCC 638, while considering the scope of the power of High Court to issue a writ of mandamus under Article 226 of the Constitution, this Court has held as under: 17. .It is, therefore essentially, a power upon the High Court for issuance of high prerogative writs for enforcement of fundamental rights as well as non-fundamental or ordinary legal rights, which may come within the expression for any other purpose . The powers of the High Courts under Article 226 though are discret ..... X X X X Extracts X X X X X X X X Extracts X X X X
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