Delhi District Court
Sh. Narender Singh vs Deputy Director (La) on 15 December, 2011
IN THE COURT OF MS. CHHAVI KAPOOR
CIVIL JUDGE -05: (WEST DISTRICT)
TIS HAZARI COURTS: DELHI
Suit No.590/10
Unique ID No.0240IC0744522007
Sh. Narender Singh,
S/o Sh. Bhuley Ram Verma,
R/o SJ-55, Shastri Nagar,
Ghaziabad, UP
.............Plaintiff
Versus
1 Deputy Director (LA)
Land Sales Branch (Residential)
Delhi Development Authority
INA, Vikas Sadan,
New Delhi.
2 Delhi Development Authority,
Through its vice chairman,
INA, Vikas Sadan,
New Delhi.
.............Defendants
Date of filing : 31.07.2007
Date on which order has been reserved: 17.09.2011
Date of pronouncement of judgment : 15.12.2011
JUDGMENT
1 Plaintiff has filed a suit for Mandatory Injunction against the Defendants. Facts of the suit are as under:
2 The Defendant no.1 had, on recommendation of the Delhi Administration alloted a plot measuring 32 sq meter, in pocket no.11 B, in Sector-23, Rohini Residential Scheme Delhi (hereinafter referred to as the "suit plot") under the Scheme of Large Scale Acquisition, Development and Disposal of land in Delhi to one Sh. Khiman, S/o Late Sh. Hargulal vide its Sh. Narender Singh Vs Deputy Director (LA) LSB (R) DDA 1/13 allotment letter no. F.12 (06)/93/LSB(R)2362 dated 05.07.2000. The allotee of the suit plot expired on 02.07.2001 and the Plaintiff, being his sole beneficiary by virtue of a registered Will dated 24.07.2000, applied to the Defendant no.1 for mutation of the plot in his name. A Written Application dated 31.12.2003 was preferred by the Plaintiff which was received by the Office of the Defendant no.1 vide entry no.27 on 01.01.2004.
3 It is claimed that the Defendant no.1 has illegally and withheld the sanction of the mutation of the suit plot in favour of the Plaintiff by its letter dated 22.07.2005. As per this letter, the original allottee (Sh. Khiman) had also executed a registered General Power of Attorney dated 24.07.2000 in favour of the Plaintiff which amounted to a sale transaction and this had attracted a demand for unearned increase before sanctioning of the mutation in favour of the Plaintiff. It is stated that the demand for unearned increase is wholly unjust and without any basis, since no consideration amount had exchanged hands between the original allottee and the Plaintiff. It was also averred that the Application for mutation of the suit plot was filed after the death of the original allottee (Sh. Khiman) and therefore, it was claimed that the GPA had no operation or strength at the relevant time. Instead it was claimed that it was the Will dated 24.07.2000, on the basis of which the mutation was being sought and therefore, it was prayed that the conduct of the Defendants in refusing sanction be declared null and void and they be directed to sanction mutation in name of the Plaintiff. Plaintiff had approached the Defendants many a times and had even served a Legal Notice dated 29.03.2007 U/S 53 B of the Delhi Development Act, 1957 but no favourable step has been taken by the Defendants till date. The Defendants have instead served the Plaintiff with a letter dated 08.06.2007 thereby making a demand of unearned increase amounting to Rs.3,43,224/-. Plaintiff claims that he is not entitled to pay this amount or any other amount on account of unearned increase. He has therefore, filed the present suit for Mandatory Injunction to direct the Defendants to sanction the mutation of the suit plot Sh. Narender Singh Vs Deputy Director (LA) LSB (R) DDA 2/13 from the name of its original allottee in the name of the Plaintiff. 4 A detailed Written Statement was filed on behalf of the Defendants by which facts stated in the plaint were vehemently denied and controverted with. It was claimed that the real intention of the Plaintiff was to usurp the suit plot without paying the necessary charges to the Government authorities. It was also claimed that the Plaintiff had filed false affidavits dated 07.05.2002 and 31.12.2003 vide which , he had concealed the fact of execution of the GPA in respect of the suit plot. In fact, in the said affidavits, it was stated that no GPA and SPA were ever executed and only a will was executed by the original allottee (Sh.Khiman) in favour of the Plaintiff. It was on inspection with the records of the Sub-Registrar, that the Defendants became aware of the fraud committed by the Plaintiff.
5 Defendants also averred that the original allottee had acted in derogation of the terms of the allotment as he had not sought any prior approval of the superior lesser (DDA) nor had taken consent in writing before selling/assigning and parting with possession of the suit plot. It was also claimed that the Plaintiff had earlier agreed to pay the amount of unearned increase vide his letter dated 12.06.2006 but had subsequently resiled from the same. Defendants submitted that by way of the registered GPA dated 24.07.2000 and other documents (SPA dated 21.08.2000) , suit plot was sold and this had resulted in the demand of the Defendants for payment of unearned increase. Defendants stated that the conduct of the Plaintiff was indicative of the general practice by which properties were being transferred all over Delhi without payment of the requisite stamp duty and other revenue charges. It was claimed that the Plaintiff had acted maliciously and had concealed material facts from the Defendants. It was claimed that same was being done by the Plaintiff in the present suit and , therefore, it was prayed that his suit be dismissed with heavy cost.
6 A detailed Replication to the Written Statement of the Defendants was filed in which Plaintiff reiterated his legal and lawful rights Sh. Narender Singh Vs Deputy Director (LA) LSB (R) DDA 3/13 for the relief of Mandatory Injunction. It was again reiterated that the registered GPA dated 24.07.2000 had ceased to exist on the demise of its executant (S. Khiman) and , therefore, it was claimed that the same could not be taken into account while deciding the application for sanction of mutation. In addition , it was admitted that the Plaintiff had inadvertently not mentioned about the factum of the execution of GPA dated 24.07.2000 at the time when application for sanction was moved with the Defendants. It was further claimed that the original allottee had never executed any document of title or sale in favour of the Plaintiff and, therefore, the question for seeking permission did not arise. It was also stated that by virtue of a mere letter of the Plaintiff vide which he had agreed to pay amount of unearned increase, the Plaintiff could not be forced to pay the unwarranted amount. The allegations of fraud , leveled against the Plaintiff were denied and it was prayed that the suit be decreed in favour of the Plaintiff.
7 On the basis of pleadings on record, following Issues were framed for determination in the suit on 11.11.2008:-
(i)Whether the Plaintiff is entitled to decree of Mandatory Injunction as prayed for?OPP
(ii)Whether the suit of the Plaintiff is not maintainable against Defendants? OPD
(iii)Whether the suit is bad for misjoinder of parties as alleged?OPD
(iv)Relief
8 Plaintiff examined himself as PW-1 and his father Sh.Bhuley Ram as PW -2 in support of his case. Both the witnesses relied upon the documents mentioned in their affidavits.
9 Defendants examined Sh.Dharmender Sharma , Assistant Director ,LA, DDA as DW-1 in support of their case. The witness relied upon the documents stated in his affidavit.
10 I have heard counsels for both parties and have gone through the judicial record. My Issue-wise findings are as follows:- 11 Issue Nos. (i) & (ii) can be disposed off by way of a Sh. Narender Singh Vs Deputy Director (LA) LSB (R) DDA 4/13 common finding. Therefore, both the Issues are being taken up together.
Issue Nos. 1 and 2:
12 Onus to prove that the Plaintiff was entitled to a decree of Mandatory Injunction thereby directing the Defendants to sanction mutation of the suit plot in favour of the Plaintiff was placed upon him . The Plaintiff and his father had deposed as PW-1 and PW -2 (respectively) in support of the averments made in the plaint . Both the witnesses had deposed to the effect that the suit plot had been bequeathed in favour of the Plaintiff (PW-1) by way of a registered will dated 24.07.2000 of the original alottee of the suit plot namely Sh. Khiman. It was also proved on record that apart from the registered will, a registered General Power of Attorney dated 24.07.2000 was executed by Sh. Khiman in favour of the Plaintiff. It was the case of the Plaintiff that after the death of Sh. Khiman, he had applied for mutation of the suit plot in his name with the Defendants but they had wrongfully turned down his request on the ground that he was liable to pay unearned increase on the value of the suit plot as the plot had been transferred in derogation of the rules. Plaintiff had claimed that no such transfer was made during the life time of Sh. Khiman, who had merely authorized him to look after the property through the General Power of Attorney . It was his case that no amount of consideration had been paid by him to Sh. Khiman and that as a result of this , he was not liable to pay the unearned increase to the Defendants.
13 Defendants denied the pleas putforth by the Plaintiff.It was argued that apart from the will and GPA dated 24.07.2000, Sh. Khiman had also executed a Special Power of Attorney by which possession of the plot was handed over to the Plaintiff during the life time of Sh. Khiman. Defendants also pleaded that the Plaintiff had earlier concealed material facts required as per rules from the Department and had submitted two false affidavits dated 07.05.2002 and 31.12.2003 along with application for sanction of mutation in his name. It was claimed that in the said affidavits ,the plaintiff had concealed facts about execution of GPA in his Sh. Narender Singh Vs Deputy Director (LA) LSB (R) DDA 5/13 favour. It was further argued that the General Power of Attorney as well as Will dated 24.07.2000 were a part of sale documents by which the suit plot had been sold during the life time of Sh. Khiman to the Plaintiff. It was claimed that monitory consideration had passed between Sh. Khiman and the Plaintiff and due to the aforesaid reason, unearned increase to the tune of Rs.3,43,224/- was chargeable from the plaintiff. 14 At this juncture, I would like to quote a few rules which were considered by the Defendants while deciding the application for sanction of mutation on the basis of the will of Sh. Khiman;-. Clause 6 (a) of the Terms and conditions of allotment letter Dated :05.07.2000 "That the allottee/lessee shall not sell, transfer or assign or otherwise, part with possession of the whole or any part of the residential plot except with the previous consent in writing of the lessor which shall be entitled to refuse in his absolute discretion. Provided further, that in the event of consent being given, the lessor may impose such terms and conditions as he thinks fit and the lessor shall be entitled to claim and recover a portion of the unearned increase in the value (i.e the difference between the premium paid and the market rate value) of the residential plot at the time of sale transfer assignment or parting with possession, the amount to be recovered being 50% of the unearned increase and the decision of the lessor in respect of the market value shall be final and binding".
15 This rule was intimated to the original allotee Sh. Khiman vide a letter No. F.12(06)93/LSB (R)/12362 dated 05.07.2000.There is no Sh. Narender Singh Vs Deputy Director (LA) LSB (R) DDA 6/13 issue that the aforesaid rule was not within the contemplation of the Plaintiff. Infact , Plaintiff has also relied upon the copy of Resolution No. 163/93 of DDA, which contains the following stipulations:-
" In case of transfer/mutation of properties on the basis of will , when the lessee has his family of his own and has willed the property outside the line of succession;
Unearned increase is not chargeable subject to the compliance of principles and conditions hereunder :-
1. No monitory consideration has passed between the executors of the will and the legatee;
2. The possession of the property has not passed on to the legatee during the life time of the lessee;
3. The legatee in such cases is also required to furnish an additional document i.e an affidavit declaring that the property in question had not passed on to him during the life time of the testator and no sale agreement/ agreement of construction etc. had been executed by the testator in his /her favour nor any GPA/SPA had been executed in his/her favour or in favour of a person nominated by him.'' 16 It was the case of the Defendants that the factum of execution of GPA dated 24.7.2000 was concealed by the Plaintiff in his Sh. Narender Singh Vs Deputy Director (LA) LSB (R) DDA 7/13 affidavits and in pursuances of the rules governing sanction of mutation, they were entitled to reject his application and charge unearned increase from him. In an evasive reply to these allegations, Plaintiff had stated in the Replication that the factum of the execution of GPA had been inadvertently not mentioned in the affidavit submitted to the department of Defendants. It is highly improbable that the fact of execution of GPA was mistakenly not mentioned in both the affidavits filed by the Plaintiff. Even otherwise, Plaintiff had admitted that a GPA had been executed in his favour during the lifetime of Sh. Khiman, by virtue of which, his case was no longer covered for exemption from payment of unearned increase. 17 Plaintiff had vehemently argued that in order to recover unearned increase from him, the Defendants were supposed to prove that monetary consideration had exchanged hands between him and Sh. Khiman during his life time. It was pleaded that the GPA was not irrevocable and otherwise did not record, payment of any consideration amount for alleged sale of the suit plot in his favour. It was argued that the onus to prove that money had been paid to Sh. Khiman was not discharged by the Defendants and that they had failed to substantiate their demand for unearned increase.
18 A perusal of the contents of the registered Will dated 24.07.2000 is noteworthy. The same are being reproduced below:
" This deed of will is made at Delhi on this 24.07.2000 by Sh. Khimman son of Shri Hargulal resident of Vill. Ganauli, P.O. Ghirori, Loni, Ghaziabad, UP hereinafter called the Testator, who aged about years.
Sh. Narender Singh son of Shri B.R.Verma
resident of Vill. Ganauli, P.O. Chirori, Loni,
Ghaziabad, UP hereinafter called the
Testimony, Nationality; Indian.
Whereas the Testator is the absolute owner
and in possession of one plot; land area
Sh. Narender Singh Vs Deputy Director (LA) LSB (R) DDA 8/13
measuring 40 sq. yards; (32 s Meters) bearing plot No. 399, Allotted by DDA Under Alternative Scheme, situated at Sec. 23, Pocket 11 B, Rohini, Delhi Allotment dated 17.04.2000, file No.012 (0006)/93- GRD.
Till the Testator is alive he will remain the absolute owner of the said plot and after the death of the testator the above said testimony will to become the absolute owner of the said plot.
Other legal heirs of the testator shall have no right or concern with the said plot.
This is my first and last will in respect of the said plot.
IN WITNESSES THEREOF, the Testator signed on this will deed on the day, month and year first above mentioned:-
Witnesses sd/-
Sh. Bhalay Ram Testator 19 Usually, when a property is bequeathed by way of a Will, the
same is done by a member of family in favour of the other, out of natural love and affection. Infact, this is considered to be one of the fundamental characteristics of a Will. The testator in this case i.e. Sh. Khiman was not related to the Plaintiff. The Plaintiff who deposed as PW-1 had earlier stated on 26.03.2010 that Sh. Khiman was his grand father. However, subsequently on 14.12.2010, he had further deposed that Sh. Khiman was neither the father of his father, nor the father of his mother. Plaintiff had also admitted about execution of GPA dated 24.07.2000 on the same date as the date of execution of a Will. Infact, both the documents were registered with the Registrar at the same time. It has already been Sh. Narender Singh Vs Deputy Director (LA) LSB (R) DDA 9/13 discussed before that the Plaintiff had concealed about the execution of the GPA while applying for mutation. It is highly improbable that Sh. Khiman, who was not related to the Plaintiff would have transferred his property to him without any consideration. In addition, the execution of the GPA confers credence to the Argument propounded by the Defendants in as much as the Will dated 24.07.2000 was a part of a bigger set of documents vide which the suit plot was sold to the Plaintiff. At this stage, it is essential to refer to a practice which has been prevailing in the area of Delhi for the past many years which is known as the "GPA Sales". These kind of transactions have evolved to avoid prohibitions/conditions regarding payment of stamp duty and registration charges and also to avoid payment of capital gains on transfers. The policy of DDA for payment of unearned increase has therefore, been formulated to avoid monetary losses through such transfers. Such transfers need to be avoided for their consequences are adversely affecting the economy, the civil society as well as the law and order. These practices have been comprehensively dealt with in a recent ruling of the Hon'ble Supreme Court of India in SLP No.13917/09 titled "Suraj Lamp and Industries Pvt. Ltd. Vs State of Haryana and anrs.". Following is para no.2 of the said Judgment;
"2. The modus operandi in such SA/GPA/WILL transactions is for the vendor or person claiming to be the owner to receive the agreed consideration, deliver possession of the property to the purchaser and execute the following documents or variations thereof:
(a) An Agreement of sale by the vendor in favor of the purchaser confirming the terms of sale, delivery of possession and payment of full consideration and undertaking to Sh. Narender Singh Vs Deputy Director (LA) LSB (R) DDA 10/13 execute any document as and when required in future.
Or An agreement of sale agreeing to sell the property, with a separate affidavit confirming receipt of full price and delivery of possession and undertaking to execute sale deed whenever required.
(b) An Irrevocable General Power of Attorney by the vendor in favor of the purchaser or his nominee authorizing him to manage, deal with and dispose of the property without reference to the vendor.
Or A General Power of Attorney by the vendor in favor of the purchaser or his nominee authorizing the attorney holder to sell or transfer the property and a Special Power of Attorney to manage the property.
(c) A will bequeathing the property to the purchaser (as a safeguard against the consequences of death of the vendor before transfer is effected).
These transactions are not to be confused or equated with genuine transactions where Sh. Narender Singh Vs Deputy Director (LA) LSB (R) DDA 11/13 the owner of a property grants a power of Attorney in favor of a family member or friend to manage or sell his property, as he is not able to manage the property or execute the sale, personally. These are transactions, where a purchaser pays the full price, but instead of getting a deed of conveyance gets a SA/GPA/WILL as a mode of transfer, either at the instance of the vendor or at his own instance. "
20 Interestingly, a letter dated 12.06.2006 was addressed by the Plaintiff to the Defendant No. 1 vide which, the Plaintiff had sought information about the amount of unearned increase payable by him but the fact of issuance of this letter was no where mentioned in the plaint. It is a matter of record that this fact was lateron admitted by the Plaintiff in his Replication. Plaintiff has been unsuccessful in winning the confidence of this court and proving that that the suit plot had been simply bequeathed in his favour by way of the Will dated 24.07.2000. It appeared from the record that the suit plot was transferred before the demise of the original allottee Sh Khiman in favour of the Plaintiff. Plaintiff was not able to prove that the acts of the Defendant in refusing sanction and demanding unearned increase were unjustified, illegal and unlawful. Therefore, I hold that there was no infirmity in the orders demanding unearned increase from the Plaintiff. Mandatory Injunction, as prayed for by the Plaintiff, cannot be granted. Issues are decided against the Plaintiff.
Issue No.3 21 No evidence was led by the Defendant to prove this Issue. Issue is accordingly decided against the Defendant.
Relief 22 In view of my findings on the Issues stated above, Suit of the Plaintiff is held to be devoid of any merits and is consequently Dismissed.
Sh. Narender Singh Vs Deputy Director (LA) LSB (R) DDA 12/13 No order as to costs. Let a Decree Sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open court, Today on 15th December 2011, (CHHAVI KAPOOR) CIVIL JUDGE-05 (W) THC, Delhi/15.12.2011 Sh. Narender Singh Vs Deputy Director (LA) LSB (R) DDA 13/13