Delhi District Court
M/S Shri Ganesh Enterprises Pvt. Ltd vs Delhi Development Authority on 16 March, 2007
1
IN THE COURT OF SH. J.P. NARAIN,
CIVIL JUDGE : DELHI
SUIT NO. 663/06
M/s Shri Ganesh Enterprises Pvt. Ltd.
X-15, Okhla Industrial Area
Phase-II
New Delhi.
Plaintiff.
Versus
Delhi Development Authority
through Vice Chairman
Vikas Sadan, I.N.A.
New Delhi
Defendant
JUDGEMENT:
By this judgment, I shall dispose of the present suit of the plaintiff. The case of the plaintiff in brief is that plaintiff is a private limited company duly registered with registrar of companies and Mr. Subrat Nayyar is one of the Director of the plaintiff company and has been authorised to file the suit on behalf of the plaintiff company. That the plaintiff company acquired the leasehold rights of plot No.X-15 Okhla Industrial Area, Phase-II, New Delhi for Rs.5,69,000/- in a auction 2 held on 17.9.81 by the defendant No.1. The plaintiff paid 25% of the bill amount i.e. Rs.1,42,250/- at the spot. The defendant sent letter No. 5 [47] 81/LSB [1] dated 1.10.1981 by which letter the bid was confirmed for Rs.5,69,000/-. The plaintiff was further requested to deposit the balance amount of Rs.4,26,761/- up to 30.10.1981. The plaintiff deposited the balance amount on 28.10.1981 before the stipulated time granted. Thereafter the plaintiff raised another demand for Rs.9,710/- which was also paid on 10.6.1982. The possession of the plot was given by the defendant vide memo dated 11.5.1982. The plaintiff thereafter applied for sanctioned plan which was sanctioned vide sanction letter No.F3[61]82/9148 dated 13.8.1982. The no objection certificate for putting up industry was issued by the defendant vide their letter dated 10.11.1982. The factory license No.79006 for the financial year 1983-84 was issued by MCD on 4.3.1983 which was further renewed for the financial year 1984-85 vide letter No.S- 3941 dated 29.11.1984. The electric connection was granted by DESU on 7.3.1984 which is evident from the consolidated bills issued by DESU for the months of March to May 1984 showing the initial reading was taken on 7.3.1984. The factory license and electric 3 connection was given to the plaintiff on the basis of no objection granted by the defendant vide their letter dated 10.11.1982. The plaintiff thereafter commenced his business in March/April 1984 as the sales tax return for the quarter April to June 1984 was filed with the sales tax department. The sales tax assessment for the financial year 1984-85 was completed vide order dated 31.10.1988. This clearly shows that the plaintiff had commenced his business and started production in March/April 1984. The plaintiff requested the defendant to execute the perpetual lease and submitted stamped lease deed documents vide letter dated 28.10.88 and sent the reminder dated 13.2.89 and 22.4.90 and defendant failed to take any action nor executed the lease deed and thereafter vide letter dated 4.3.94 asked the plaintiff to deposit a sum of Rs.3,23,970/-. The plaintiff vide letter dated 28.3.94 replied the notice stating that demand is unjustified. Thereafter plaintiff sent another letter dated 8.8.94 and asked the defendant to provide the yearwise break up of the wrong and unjustified demand. That the defendant vide letter dated 1.12.95 gave four different heads of their demand without providing the details of the calculation under each head and thereafter plaintiff vide letter dated 4 26.12.95 asked the defendant to provide the calculation under each head. Thereafter plaintiff sent the reminder dated 12.4.96 and 22.2.96 and defendant failed to furnish the calculation till date. That the demand for composition fee is without any justification and without any authority conferred upon defendant under the DD Act. Similarly, the demand of Rs.11,051/- as penalty is not justified as the plaintiff has submitted the papers on 28.10.88 and defendant has not suffered any loss because the premium amount in full was already paid to them. That the plaintiff has not disputed the payment of the ground rent but the amount of the ground rent, date of the payment of the ground rent and mode of payment are all decided after the completion of the lease deed but the defendant has not delivered the lease deed. That the plaintiff has served notice U/s 53B but the same has not been complied with. Plaintiff has sought a decree of mandatory injunction directing the defendant to deliver and handover the perpetual lease of plot No.X-15, Okhla Industrial Area, Phase-II and a decree of permanent injunction restraining the defendants from interfering into the peaceful enjoyment of the aforesaid plot.
2. Defendant DDA has contested the suit and 5 filed written statement stating therein that the plaintiff has failed to deposit the outstanding dues of Rs.3,23,970/- towards the composition fee for non- construction, penalty for late execution of the lease deed and arrears of ground rent and defendant authority has cancelled the allotment of the suit plot on 31.3.98 and the information of the cancellation of allotment has been sent to the plaintiff vide letter dated 28.8.98. That the plaintiff has filed another suit No.739/98 and the suit is barred by principle of resjudicata. It is admitted that the suit plot was purchased by the plaintiff in the auction held on 17.9.81 at the bid price of Rs.5,69,000/- and possession was handed over to the plaintiff on 11.5.82 after receipt of the full payment. That the lease deed papers were sent to the plaintiff on 5.1.84 for payment of stamp duty and the lease papers were returned on 7.11.88. That a demand notice for a sum of Rs.3,23,970 was issued to the plaintiff on 4.3.94 and reminders were sent to the plaintiff on 22.2.96, 23.5.96 and 25.9.96 and plaintiff failed to deposit the amount and the allotment was cancelled vide order dated 31.3.98.
3. From the pleadings of the parties, the following issues were framed :
61.Whether the suit has been filed, verified and signed by properly authorised persons? OPP
2.Whether the suit is bad for want of notice U/s 53B of DD Act? OPD.
3.Whether the plaintiff is entitled for the relief of mandatory injunction? OPP
4.Whether the plaintiff is entitled for relief of permanent injunction? OPP.
5.Relief.
4. In support of his case the plaintiff has examined PW1 Sh. Subrat Nayyar. In defence defendant has examined DW1 Ashok Kumar.
5. I have meticulously scrutinized the entire testimony on the record and have given my thoughtful consideration to the rival submissions. My findings on the issues is as under :-
6. ISSUE NO.1 PW1 has testified that he is one of the Director of M/s Sri Ganesh Enterprises Pvt. Ltd. And plaintiff company is duly registered with registrar of Company vide certificate ex.PW1/1. He has further 7 testified that the company has passed a resolution on 2.11.99 and he is authorised to file the present suit. He has proved the extract of the resolution ex.PW1/6. Not even a suggestion was given to PW1 that the suit has not been filed, verified and signed by a duly authorised person. Testimony of PW1 remained unchallenged on this point and same is corroborated by documentary evidence ex.PW1/6. From the oral testimony supported with the extract of resolution ex.PW1/6 it is established that the suit has been filed, verified and signed by properly authorised person and accordingly, issue no. 1 is decided in favour of plaintiff.
7. ISSUE NO. 2The case of the plaintiff is that the plaintiff has served notice U/s 53B of DD Act upon the defendant and said notice has not been complied. A copy of the legal notice U/s 53B dated 2.6.99 is on the file but the same has not been proved and thus plaintiff has failed to prove the service of legal notice U/s 53B DD Act, 1957. Counsel for the plaintiff has submitted that the only relief claimed is of permanent and mandatory injunction and as such the provisions of Section 53B are not applicable and no notice is required before filing the 8 present suit. In the written submissions also counsel for the plaintiff has taken the same plea. Admittedly, plaintiff has prayed for a decree of permanent injunction and mandatory injunction only. Section 53B reads as under:
(1)No suit shall be instituted against the Authority, or any member thereof, or any of its officers or other employees, or any person acting under the directions of the Authority or any member or any officer or other employee of the Authority in respect of any act done or purporting to have been done in pursuance of this Act or any rule or regulation made thereunder until the expiration of two months after notice in writing has been, in the case of the Authority, left at its office, and in any other case, delivered to, or left at the office or place of abode of, the person to be sued and unless such notice states explicitly the cause of action, the nature of relief sought, the amount of compensation claimed and the name and place of residence of the intending plaintiff and unless the plaint contains a statement that such notice has been so left or delivered.
(2)No suit such as is described in sub-section (1) 9 shall, unless it is a suit for recovery of immovable property or or a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises. (3)Nothing contained in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit.
8. From the bare perusal of sub-section (3) it becomes clear that where the only relief claimed is of injunction and the purpose of the injunction would be defeated by service of notice then in that case notice U/s 53B is exempted by sub-section (3) and no notice is required. In the present case plaintiff is not only seeking a decree of permanent injunction restraining the defendants from interfering in the peaceful enjoyment of the suit plot but also a decree of mandatory injunction directing the defendant to deliver and handover the perpetual lease deed of the plot. The relief of mandatory injunction cannot be called the urgent or immediate relief and it cannot be said that the purpose would be defeated by serving of notice. In the case of Prinda 10 Punchi (Smt.) and Another Vs. Municipal Corporation of Delhi and Others 2005 IV AD (Delhi) 639, Division Bench of our own Hon'ble High Court has dealt in detail regarding the requirement of issuance of notice to the DDA before institution of the suit. It was held 'That a bare perusal of the statutory provisions shows that the legislature had carefully worded the statutory provisions keeping in view the spirit, intendment and purpose of the discretion conferred to waive the requirement of the statutory notice keep in view the exigencies of the matter, Section 53B of the Delhi Development Act knows of no exemptions or waiver. The aforesaid provision of section 53B was enacted long after enactment of the provision of Sub-section (2) of section 80 of the CPC. The legislature was aware of the said provision of sub-section (2) of section 80 CPC when section 53B of the Delhi Development Act was enacted. Consciously the legislature did not incorporate in section 53B of the Delhi Development act any exception as that of sub- section (2) of Section 80 CPC. Therefore, it would not be appropriate to include and add such provision as that of sub-section (2) of section 80CPC. Therefore, it would not be appropriate to include and add such provision as 11 that of sub-section (2) of section 80 CPC into the provision of section 53B of the Delhi Development act. On the contrary the legislature has consciously referred to a suit for declaration of title in Section 53B (2) of the statute. It is settled law that a statute has to be enforced, as it exists. No words can be imported into the specific language used by the legislature. As per statutes, before the filing of any suit, notices to the Union of India under section 80 of the Code of Civil Procedure and to the Delhi Development under section 53B of the Delhi Development Act were required to be issued. The appellant has admittedly not done so. When a suit seeking a decree of declaration is instituted, notice has to be given under section 80 CPC as also under section 53B of the Delhi Development Act. As such, there could be no plea of waiver of a notice. We accordingly find no merit in this appeal and the same is dismissed with costs.'
9. Admittedly no notice U/s 53B has been proved and notice U/s 53B cannot be waived off and therefore the suit is bad for want of notice and accordingly Issue No.2 is decided against the plaintiff and in favour of the defendant.
12 10. ISSUE NO. 3The case of the plaintiff is that plaintiff has purchased the plot on leasehold basis from the defendant and has made the entire auction amount and thereafter possession was handed over to him. Thereafter plaintiff requested the defendant to execute the perpetual lease deed and plaintiff submitted the stamped lease deed documents and thereafter defendant vide letter dated 4.3.94 asked the plaintiff to make a payment of Rs.3,23,970/- and thereafter plaintiff wrote several letters asking the defendant to provide the break up of the demand and same was not provided. It is the admitted case that vide letter dated 1.12.95 defendant has provided the break up of Rs.3,23,970/-. Para No.6 of the plaint reads as follows:
'That the break up of Rs.3,23,970/- under four heads as mentioned in the letter dated 1.12.1995 of the defendant are [1] composition fee up to 10.10.1993 Rs.1,76,433.59 paisa [2] penalty for late execution of lease deed Rs.11,051/- [3] ground rent w.e.f. 11.5.1982 to 14.7.1994 Rs.1,03,855.79 paisa and [4] interest on ground rent from 11.5.1987 to 31.10.1993 Rs.32,629.67 paisa.' 13
11. According to the plaintiff the demand of composition fee and penalty is not sustainable and illegal. The plaintiff has sought a decree of mandatory injunction directing the defendant to deliver and handover the perpetual lease deed of the plot and also a decree of permanent injunction restraining the defendants from interfering in the peaceful enjoyment of the suit plot.
12. The defence of the DDA in short is that the lease deed papers were sent to the plaintiff on 5.1.84 and the plaintiff returned the lease deed papers on 7.11.88 i.e. after a lapse of about 5 years. That the lease deed has not been executed due to non payment of dues of the answering defendant. That a demand notice for a sum of Rs.3,23,970/- was issued to the plaintiff on 4.3.94 and reminders were sent to the plaintiff on 22.2.96, 23.5.96 and 25.9.96 and thereafter when the plaintiff failed to deposit the money the cancellation letter in respect of the suit plot was issued to the plaintiff on 28.8.98.
13. I have given my careful thought to the submissions made by the plaintiff and the defendant.
Counsel for the plaintiff has submitted that the demand 14 of Rs.3,23,970/- is wrong and illegal. The Ld. Counsel has submitted that demand of composition fee is without any justification and without any authority and there is no provision in the DD Act for demand of any composition fee. Ld. Counsel has submitted that the entire auction amount had only been paid and lease papers were deposited and therefore DDA is duty bound to execute the lease deed. Ld. Counsel has further submitted that there is no justification for payment of penalty for late execution of the lease deed. That the defendant has not suffered any monetary loss. That the demand of the ground rent is also illegal as plaintiff is liable to ground rent only on the execution of the lease deed. Counsel for the plaintiff has further submitted that allotment has been cancelled without serving any show cause notice and the cancellation of the allotment without any service of show cause notice is illegal and unjustified. On the other hand, JLO on behalf of DDA has submitted that the demand raised by the DDA are in accordance with the terms and conditions and from the evidence on the record it has been established that plaintiff did not submitted the papers for execution of the lease deed for about five years and despite number of opportunities given plaintiff failed to deposit the due 15 amount and thereafter allotment was cancelled and after the cancellation of the allotment plaintiff has no right, title or interest in the suit property and DDA is not under any legal duty to execute the lease deed. JLO has further submitted that PW1 has admitted documents ex.PW1/D1 to PW1/D5 and in those letters it was categorically mentioned that on failure to deposit the money the allotment will be cancelled and letter ex.PW1/D1 to PW1/D4 amounts to show cause notice and no show cause notice was required to be served before canceling the allotment. JLO has further submitted that plaintiff has not sought any decree of declaration declaring the demand to be illegal or the cancellation of the allotment to be declared illegal and therefore the suit for the mandatory injunction is without any basis.
14. I have meticulously scrutinized the entire testimony on the record. In cross-examination PW1 has admitted that the lease papers were collected from the office of the Collectorate of Stamps in the year 1988 and were sent to DDA on 2.11.88. PW1 has testified that he cannot say whether the lease deed papers were returned to DDA after lapse of five years period. PW1 has 16 admitted that the letter dated 4.3.94 ex.PW1/3 was received by the plaintiff for deposit of Rs.3,23,970/-. He has also admitted that the payment was not deposited with DDA. PW1 has also admitted receiving letter dated 1.12.95 ex.PW1/D1, letter dated 22.2.96 ex.PW1/D2, letter dated 23.5.96 ex.PW1/D3 and letter dated 25.9.96 ex.DW1/D4. PW1 has admitted that despite receiving of letter ex.PW1/D1 to PW1/D4 payment was not deposited by the plaintiff. PW1 has also admitted that letter dated 28.8.98 ex.PW1/D5 was also received from the DDA. PW1 has also admitted that the detail of the payment to be made is explained in letter dated 1.12.95 and 25.2.96 and thereafter has testified that the details of composition, ground rent, interest and penalty fee calculated by DDA has not been furnished. The letter dated 28.8.98 copy of which is ex.PW1/D5 is admitted by the plaintiff and perusal of the letter shows that the allotment was cancelled for non payment of the dues. From the same it is established that the allotment was cancelled on 21.8.98 and same was communicated to the plaintiff vide letter dated 28.8.98. The present suit was filed after cancellation of the allotment. The plaintiff is seeking a decree of mandatory injunction directing the defendant to execute the lease deed without making the 17 payment of the dues demanded by the DDA and without seeking a declaration that the payment demanded is illegal and that the cancellation is illegal. Once the allotment has been cancelled then question of execution of any lease deed in favour of the plaintiff does not arise unless and until the cancellation of allotment is declared null and void. The plaintiff has not sought any declaration that the cancellation of allotment be declared as illegal and without the cancellation of allotment being held null and void no decree of mandatory injunction can be passed in favour of the plaintiff. Even otherwise from the evidence on the record it has been established that the plaintiff is responsible for the delay in execution of the lease deed. Admittedly, the plaintiff has deposited the documents of the lease deed vide letter dated 28.10.88. DW1 has categorically testified that the lease deed papers were sent to the plaintiff on 5.1.84 and the lease papers were received back on 7.11.88 i.e. after the expiry of period of five years. DW1 has further testified that plaintiff was requested vide letter ex.DW1/1 and DW2 to make the payment of Rs.3,23,970/- on account of composition fee, penalty for late execution of the lease deed, ground rent upto 14.7.94 and interest on ground rent from 11.5.82 to 31.10.93. DW1 has further testified 18 that reminders ex.DW1/3, DW1/4 and DW1/5 were also sent and despite reminders plaintiff failed to make the payment and thereafter the cancellation was communicated vide letter ex.DW1/6. Letters ex.DW1/1 to DW1/6 are admitted by PW1 and I have perused the aforesaid letters. From the perusal of ex.DW1/6 it becomes clear that the allotment of the suit plot was cancelled and was communicated to the plaintiff and plaintiff was in the knowledge of the same before filing the present suit. A relief of mandatory injunction can be granted only when the defendant is under a statutory duty to perform a particular job. In the present case the allotment was already cancelled and unless and until the cancellation of the allotment is declared null and void defendant DDA is not under any duty to execute the lease deed. In the present case no declaration has been sought that the cancellation of the plot be declared null and void. On this ground alone plaintiff is not entitled to the decree prayed for. Otherwise also the relief of the mandatory injunction is discretionary relief and from the evidence on the record it has been established that the plaintiff has failed to deposit the lease papers and kept the lease papers for about five years and subsequently when money of Rs.3,23,970/- was demanded the 19 plaintiff failed to make the payment despite number of opportunities. PW1 has admitted the letters ex.DW1/1 to DW1/6 in cross-examination and photocopy of the same documents are exhibited as PW1/1 to PW1/D5. In letter ex.PW1/D1, PW1/D2, PW1/D3, PW1/D4 the plaintiff was cautioned that on failing to deposit the money allotment will be cancelled and that warning amounts to show cause notice. As the plaintiff was at fault and has not deposited the due amount of Rs.3,23,970/- and therefore allotment has been rightly cancelled and therefore plaintiff is not entitled to the decree of mandatory injunction. It is settled law that the relief of injunction is discretionary relief and one who seeks equity must do equity.
15. Issue No.2 has already been decided in favour of the defendant and it has already been held that the suit is not maintainable for want of notice U/s 53B. No notice U/s 53B has been proved to have been served before institution of the suit and therefore plaintiff is not entitled to decree of mandatory injunction on this ground alone.
16. The plaintiff has failed to deposit the 20 amount of Rs.3,23,970/- due to the defendant on account of the composition fee, penalty, ground rent and interest and therefore not entitled to the relief of equity.
17. The allotment was cancelled and communicated to the plaintiff vide ex.PW1/D5 and before the cancellation letter ex.PW1/D1 to PW1/D4 were sent to plaintiff and same are admitted. From the perusal of ex.PW1/D1 to PW1/D4 it is established that ample opportunity was granted to the plaintiff to make the payment and to plead its case before cancellation of the allotment. The letters ex.PW1/D1 to PW1/D4 have provided ample opportunity and were sufficient to put the plaintiff at guard, but the plaintiff did not avail the opportunity and did not make the payment and as per the terms and conditions the allotment was cancelled. The letters ex.PW1/D1 to PW1/D4 were not less than show cause notices as in the letters it is specifically mentioned that on non payment allotment will be cancelled and therefore no separate show cause notice was required before cancellation of the allotment. After the cancellation of the allotment no right, title or interest in the suit property in favour of the plaintiff survives.
2118. The plaintiff has not sought any decree of declaration declaring that the demand raised by DDA is illegal. The perusal of the prayer clause clearly establish that no such declaration has been sought. Admittedly, the suit has not been valued for the relief of any declaration and no court fee has been paid. The plaintiff has not sought any decree of declaration declaring the cancellation of allotment as null and void and unless and until the allotment of the plot is restored defendant DDA is not under any statutory duty to execute the lease deed and therefore on this ground alone no right or title survives in favour of the plaintiff and on this ground alone plaintiff is not entitled to the decree of mandatory injunction.
19. In view of the aforesaid reasons it is established that plaintiff is not entitled to the decree of mandatory injunction. Accordingly issue No.3 is decided in favour of defendant and against the plaintiff.
20. ISSUE NO.4 Admittedly, property was given to the plaintiff on lease hold basis and defendant DDA is the owner of the property. From the evidence on the record 22 it has been established that the allotment of the suit plot in favour of the plaintiff has been cancelled and the occupation of the plaintiff is no more than an unauthorised occupant and it is settled proposition of law that injunction cannot be granted against a true owner.
21. In the case of 'Premji Ratansey Shah and Others Vs. Union of India' reported in JT 1994(6) Supreme Court 585 held:- 'It is equally settled law that injunction could not be granted against the true owner. Therefore, the Courts have rightly rejected decree of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of the trespasser and an injunction cannot be issued in favour of the trespasser or a person who gained unlawful possession against the owner. Pretext of the dispute of identity of the land should not be an excuse of praying injunction against the true owner.'
22. In the case of Mahadevo Savlaran Shelke and others Vs. Pune Municipal Corporation and 23 others (1995) 3 SCC 33 wherein the Apex Court held that: 'No injunction should be granted against the true owner at the instance of person in unlawful possession.'
23. Admittedly, the DDA is the owner of the property and allotment in favour of plaintiff has already been cancelled on account of non-payment of money legally demanded vide letter ex.PW1/D1 to PW1/D4 and after the cancellation of the allotment plaintiff has no right, title or interest in the suit property and in the light of the law settled by the Hon'ble Supreme Court as discussed above plaintiff has no right of any injunction against the true owner DDA and accordingly issue No.4 is decided against the plaintiff and it is held that plaintiff is not entitled to decree of permanent injunction.
24. ISSUE NO. 5 :
In view of the findings on issue No. 1 to 4, suit of the plaintiff is dismissed. Parties shall bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room.
(J.P. NARAIN) CIVIL JUDGE/DELHI.
ANNOUNCED IN OPEN COURT ON 16.03.2007.24