Delhi District Court
Sh. Ishwar Dayal vs Delhi Development Authority on 16 September, 2011
Suit No. 1654/2006
IN THE COURT OF MS. SHEFALI SHARMA
CIVIL JUDGE (WEST): TIS HAZARI COURTS: DELHI
Suit No. 1654/2006
Sh. Ishwar Dayal,
S/o Sh. Babu Lal,
R/o H. No. 141, BlockCPA, New Seelampur,
Delhi53.
.......PLAINTIFF
VERSUS
Delhi Development Authority
through its Vice Chairman,
Vikas Sadan, I. N. A.
New Delhi.
........DEFENDANT
DATE OF INSTITUTION : 02.03.2005
DATE OF RESERVATION : 12.09.2011
DATE OF DECISION : 16.09.2011
JUDGMENT: This is a suit for Declaration and Permanent Injunction filed by the plaintiff against the defendant/ DDA. The brief facts as averred in the plaint are as follows:
1. That the plaintiff got registered with the defendant for the allotment of Janta Flat in Rohini Delhi in the year 1996 under JHRS Scheme vide registration no. 39453 issued by the defendant to the plaintiff. That according to the said registration, the defendant allotted flat no. 14C, Second Floor, Pocket8 & 9, Sector25, Rohini, Delhi on 15.04.2004 for which the defendant sent a demand letter to the plaintiff to deposit the demanded amount along with relevant documents within stipulated period mentioned in the said demand letter. However, due to sudden consecutive death of near relatives of the plaintiff i.e. Mohar Singh and Smt. Ramwati on 06.03.2004 and 22.09.2004, the plaintiff and his family members were under great mental depression and inadvertently, the demand letter was misplaced by the plaintiff. Sh. Ishwar Dayal vs. DDA 1/10 Suit No. 1654/2006 When the plaintiff despite his sincere efforts failed to trace out the same, he approached the defendant authority and informed about the misplaced demand letter and that he was willing to deposit the amount which was demanded and requested that a duplicate demand letter be issued to him. However, no heed was paid to the request of the plaintiff. Thereafter, plaintiff again visited the defendant authority and requested for the issuance of duplicate demand letter. However, plaintiff was surprised to receive a letter on 07.01.2005 bearing no. J353 (345)2004/JHRS/ RO dated 28.12.2004 from the defendant authority whereby the plaintiff was directed to deposit the demanded amount along with the relevant documents within 15 days failing which the allotment stand cancelled. The plaintiff on the very same day i.e. on 07.01.2005 immediately replied to the defendant authority annexing the copy of FIR which was got registered by the plaintiff for the demand letter which was misplaced, again requested the defendant authority to issue duplicate demand letter and also submitted that he was willing to make the payment of the demanded amount. The said letter was duly received by the defendant authority, yet the plaintiff received a letter bearing no. J/353(345) 2004/JHRS/RO dated 31.01.2005 whereby it was informed that his allotment with respect to the Janta Flat stood cancelled due to nonpayment of the required amount on time. Left with no option, the plaintiff issued a legal notice to the defendant on 10.09.2005 and eventually filed the present suit seeking the relief to declare that the letter of cancellation Acknowledgment vide Ref. No. J/353(345)2004/ JHRS/ RO dated 31.01.2005/ 02.02.2005 with respect to the cancellation of allotment of flat no. 14C, Second floor, Pocket8 & 9, Sector25, Rohini, Delhi as null and void and further seeking the relief that defendant be restrained from creating third party interest in flat no. 14C, Second floor, Pocket8 & 9, Sector25, Rohini, Delhi.
2. In the written statement filed on behalf of the defendant/ DDA, the allegations of the plaintiff in the plaint are denied. It is stated that plaintiff got himself registered for allotment of flat Sh. Ishwar Dayal vs. DDA 2/10 Suit No. 1654/2006 under Janta Category under the scheme known as JHRS 1996 vide application 39453. His priority number was 19932. A flat bearing no. 14C, Second floor, Pocket8 & 9, Sector25, Rohini, Delhi was alloted to him on hire purchase basis through draw of lots held on 27.01.2004. Accordingly, demand cum allotment letter dated 15.04.2004 was sent to him. As per demand cum allotment letter, the due date of payment and furnishing document was 14.06.2004. But the plaintiff failed to make the payment by stipulated date and therefore under the provision of clause13 of demand cum allotment letter the allotment stood automatically cancelled. The cancellation of allotment was conveyed to the plaintiff and also requested to furnish certain documents for refund of registration money vide letter dated 31.01.2005/ 02.02.2005. However, before issuance of cancellation letter, a show cause notice dated 28.12.2004 was also issued to ascertain/ confirm if any payment is made by plaintiff. But in the instant case, no payment was made by the allotee/ plaintiff. It is admitted that the plaintiff, vide letter dated 07.01.2005 received in the office of defendant, has categorically mentioned that he could not attend the office due to deaths in his family and had requested for issuance of duplicate demand letter but his request was received after a period of 4 months approximately after cancellation of the allotment. Rest of the averments were categorically denied.
3. From the pleadings of the parties, following issues with respect to the main suit were framed by my Ld. Predecessor on 20.12.2006:
1. Whether the plaintiff is entitled to the decree of declaration as prayed for? OPP.
2. Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP.
3. Whether the suit is bad for want of statutory notice under Section 53B of DD Act, 1957? OPD.
4. Relief.
4. In order to prove his case, plaintiff examined three witnesses. Plaintiff himself entered into the witness box as PW1 who vide his affidavit Ex. PW1/X testified on the lines of the plaint Sh. Ishwar Dayal vs. DDA 3/10 Suit No. 1654/2006 and relied upon the documents Ex. PW1/A to Ex. PW1/F. Ex. PW1/A is the registration bearing no. 39453, Ex. PW1/B is the death certificate of Sh. Mohar Singh, Ex. PW1/C is the Death certificate of Smt. Ramwati, Ex. PW1/D is the copy of complaint, Ex. PW1/E is the acknowledgment of letter dated 28.12.2004 and Ex. PW1/F is the copy of legal notice dated 10.02.2005.
PW2 is Sh. Hari Chand who is the neighbour of the plaintiff. He fully supported the case of the plaintiff vide his affidavit Ex. PW2/X. PW3 is Sh. Tara Chand, who is also the neighbour of the plaintiff who vide his affidavit Ex. PW3/X testified on the lines of PW2.
5. In order to prove their case, defendant/ DDA has examined one witness i.e. DW1 Sh. Kailash Chander, Asstt. Director, Janta Housing, DDA who vide his affidavit Ex. DW1/X testified on the lines of written statement and relied upon the documents Ex. DW1/1 and Ex. DW1/2. Ex. DW1/1 is the demand cum allotment letter dated 15.04.2004 and Ex. DW1/2 is the letter dated 31.01.2005/ 02.02.2005. During his crossexamination, the application for issuance of duplicate demand cum allotment letter sent by the plaintiff to the defendant dated 07.01.2005, which was admittedly wrongly mentioned as 07.01.2004, was exhibited as Ex. DW1/P1.
6. I have heard the counsels for parties and carefully perused the material available on record.
7. My issuewise findings are as follows:
Issue No. 1: Whether the plaintiff is entitled to the decree of declaration as prayed for? OPP.
The onus to prove this issue was upon the plaintiff.
The plaintiff, vide his testimony Ex. PW1/X has categorically proved that the plaintiff got registered with the defendant for the allotment of Janta Flat in Rohini Delhi in the year 1996 under JHRS Scheme vide registration no. 39453 issued by the defendant to the Sh. Ishwar Dayal vs. DDA 4/10 Suit No. 1654/2006 plaintiff. That according to the said registration, the defendant allotted flat no. 14C, Second Floor, Pocket8 & 9, Sector25, Rohini, Delhi on 15.04.2004 for which the defendant sent a demand letter to the plaintiff to deposit the demanded amount along with relevant documents within stipulated period mentioned in the said demand letter. However, due to sudden consecutive deaths of near relatives of the plaintiff i.e. Mohar Singh and Smt. Ramwati on 06.03.2004 and 22.09.2004, the plaintiff and his family members were under great mental depression and inadvertently, the demand letter was misplaced by the plaintiff. When the plaintiff despite his sincere efforts failed to trace out the same, he approached the defendant authority and informed about the misplaced demand letter and that he was willing to deposit the amount which was demanded and requested that a duplicate demand letter be issued to him.
However, no heed was paid to the request of the plaintiff. Thereafter, plaintiff again visited the defendant authority and requested for the issuance of duplicate demand letter. However, plaintiff was surprised to receive a letter on 07.01.2005 bearing no. J353(345)2004/JHRS/ RO dated 28.12.2004 proved as Ex. DW1/P1 from the defendant authority whereby the plaintiff was directed to deposit the demanded amount along with the relevant documents within 15 days failing which the allotment stand cancelled. The plaintiff on the very same day i.e. on 07.01.2005 immediately replied to the defendant authority annexing the copy of FIR which was got registered by the plaintiff which is proved as Ex. PW1/D for the demand letter which was misplaced, again requested the defendant authority to issue duplicate demand letter and also submitted that he was willing to make the payment of the demanded amount. The said letter was duly received by the defendant authority, yet the plaintiff received a letter bearing no. J/353(345) 2004/JHRS/RO dated 31.01.2005 whereby it was informed that his allotment with respect to the Janta Flat stood cancelled due to nonpayment of the required amount on time.
The plaintiff through Ex. PW1/B and Ex. PW1/C which are Death certificates of near relatives, has proved that there were successive deaths in his family. This has been Sh. Ishwar Dayal vs. DDA 5/10 Suit No. 1654/2006 supported by the testimony of PW2 and PW3 who are neighbours of the plaintiff. It is not denied by the defendant/ DDA that the demandcumallotment letter was issued in April, 2004 and the plaintiff was directed to make the required payment of 14.06.2004 i.e. exactly during the time when two deaths took place in the family of the plaintiff viz. Mohar Singh and Smt. Ramwati on 06.03.2004 and 22.09.2004 respectively and when the plaintiff was not in his fit state owing to the aforesaid contingency in his family. Thus the contentions of the plaintiff that he, inadvertently, misplaced the demandcumallotment letter does not seem to be improbable. Further the FIR lodged by the plaintiff in this regard which is proved as Ex. PW1/D further substantiate is contentions.
On the other hand, defendant/ DDA has categorically admitted that the plaintiff, vide letter dated 07.01.2005 received in the office of defendant, has categorically mentioned that he could not attend the office due to death in his family. It is further admitted that the plaintiff had requested for issuance of duplicate demand letter but his request was received after a period of 4 months approximately, after cancellation of the allotment.
I have thoroughly perused the letter dated 07.01.2005 Ex. DW1/P1. At the very outset, it is pertinent to mention that although the date in the said letter is written as 07.01.2004 however, the defendant has categorically admitted that the letter is dated 07.01.2005 and not of the year 2004 which was wrongly written inadvertently. Defendant has also admitted the receipt of said document. Thus the letter dated 07.01.2005 was undisputedly received by DDA. The only contentions of the defendant/ DDA is that they received this letter for issuance of duplicate demand letter from the plaintiff after a period of 4 months after the cancellation of the allotment. On the very perusal of the acknowledgment of the receipt of letter dated 07.01.2005 filed on behalf of plaintiff which is proved as Ex. PW1/E, it is revealed that the letter dated 07.01.2005 was received in the office of DDA on the very same day. Whereas admittedly the allotment was cancelled later on 31.01.2005. Thus prior to cancellation, it was within the knowledge of Sh. Ishwar Dayal vs. DDA 6/10 Suit No. 1654/2006 defendant/ DDA that plaintiff has misplaced the demand letter and is also willing to pay the required charges. Thus the whole contentions of the defendant/ DDA that they received this letter after four months of the cancellation of allotment is completely baseless and appears to be a concocted line of defence to evade their responsibility.
Thus the oral testimony of DW1 in this regard is completely shattered by the documentary proof furnished by the plaintiff viz. acknowledgment of the receipt of the letter dated 07.01.2005 by DDA which is proved as Ex. PW1/E. I have carefully gone through the cancellation letter dated 31.01.2005 which is proved as Ex. DW1/2. It merely states that the allotment of the flat has been cancelled as the plaintiff failed to comply with the instruction. No reasons have been assigned as to why the allotment was cancelled despite the fact that the defendant was well aware after they received the letter dated 07.01.2005 that the plaintiff, owing to the deaths of his near relatives, has inadvertently, lost the original demandcumallotment letter and was willing to pay the demanded amount vide a duplicate demand letter. There are no reasons assigned as to why duplicate demand letter could not be issued to the plaintiff. Thus administrative order dated 31.01.2005 cancelling the allotment passed by the concerned official of DDA in exercise of his discretionary power, is not a speaking order.
It is a settled law that no public authority has an absolute or unfettered discretion. In the latest case of Akhil Bhartiya Upbhokta Congress vs. State of Madhya Pradesh (2011) 5 SCC, it has been emphasized by Hon'ble Supreme Court that "no functionary of the State or public authority has an absolute or unfettered discretion. The very idea of unfettered discretion is totally incompatible with the doctrine of equality enshrined in the Constitution and is an antithesis to the concept of the rule of law."
Sh. Ishwar Dayal vs. DDA 7/10 Suit No. 1654/2006 In his work Administrative Law (6th Edn.) Prof. H. W. R. Wade states that "...The whole conception of unfettered discretion is inappropriate to a public authority, which possesses powers solely in order that it may use them for the public good."
In the absence of any speaking order or even an averment in the written statement as to why the plaintiff was not given an opportunity to pay the demanded amount, the order of cancellation prima facie appears to be arbitrary and against the principles of justice and equity.
Further it is also pertinent to mention here that this use of discretionary power of DDA did not end here. During the pendency of the present suit itself, DDA alloted this flat to another person viz. one Ms. Poonam Asri and conveyance deed was also executed in her favour on 01.10.2010. Documents in this regard had been placed on record by Ld. SLO for DDA Sh. Vinod Sharma during the course of proceedings before this court on 18.07.2011.
Perusal of record shows that the present suit had been filed in March, 2005. Whether or not the cancellation of the allotment by DDA of the suit property was justified, could have only been decided after parties had led their respective evidence and the present suit was finally decided on merits. But without waiting for the outcome of the present case and without giving any notice to the plaintiff, defendant/ DDA during the pendency of the present suit alloted the flat in question to some another person creating 3rd party interest therein and more importantly, the intimation about the same was never given in the court and only upon the query by this court during the stage of final arguments, this fact was brought in the knowledge of the court and the said documents were then filed at the final stage after part final arguments were already heard. It was incumbent upon defendant/ DDA to have disclosed these facts before the court and infact moved an application to implead the 3rd person Ms. Poonam Asri since but for the query of this court at the final stage had the judgment been passed in ignorance of these facts it would have affected the rights of the said person. Thus DDA has concealed a material facts Sh. Ishwar Dayal vs. DDA 8/10 Suit No. 1654/2006 from this court.
As is already discussed above, the plaintiff has proved, vide Ex. PW1/E, that DDA has received his letter dated 07.01.2005 requiring the issuance of duplicate demandcum allotment letter and also that he was willing to pay demanded amount, despite that his allotment was cancelled on 31.01.2005 without affording any reasons for cancellation.
During the crossexamination of DW1, it came out that the allotment was cancelled since the plaintiff did not pay the requisite amount for document charges which, according to DW1 himself, is Rs. 75 per page of the documents and that the application for issuance of duplicate demand letter was not considered by the Competent authority due to non payment. When the plaintiff, through his letter dated 07.01.2005, had categorically expressed his willingness to make the required payment, there were no reasons given by the DDA as to why he was not afforded the opportunity to do the same.
Thus plaintiff has proved that he was alloted a flat bearing no. 14C, Second Floor, Pocket8 & 9, Sector25, Rohini, Delhi by DDA. That inadvertently, he misplaced the demandcumallotment letter but intimated about the same to DDA expressing his willingness to pay the demanded amount vide letter dated 07.01.2005 proved as Ex. DW1/P1. The said letter was duly received vide acknowledgment on the same date by DDA proved as Ex. PW1/E, yet the allotment was cancelled without affording an opportunity to the plaintiff.
In view of the aforesaid, it can be safely concluded that the cancellation of the allotment of flat bearing no. 14C, Second Floor, Pocket8 & 9, Sector25, Rohini, Delhi vide order dated 31.01.2005 is arbitrary and therefore, this issue is decided in favour of the plaintiff and against the defendant/ DDA.
Issue no. 2: Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP.
Sh. Ishwar Dayal vs. DDA 9/10 Suit No. 1654/2006
The onus to prove this issue is upon plaintiff. In view of my aforesaid findings in issue no. 1, this issue is disposed of accordingly.
Issue no. 3: Whether the suit is maintainable without service of notice under Section 53B of DD Act, 1957? OPD.
The onus to prove this issue was upon the defendant/ DDA. However, no substantial evidence has been led on behalf of defendant to show that suit is bad for want of notice under Section 53B of DD Act. Thus, this issue is decided in favour of plaintiff and against the defendant.
Relief In view of the aforesaid discussions, the suit of the plaintiff is hereby decreed. Defendant/ DDA is directed to allot an alternative flat of the like nature of the plot no. 14C, Second Floor, Pocket8 & 9, Sector25, Rohini, Delhi to the plaintiff within two months from today as per procedure after the plaintiff having completed the required formalities as per law. Since the defendant/ DDA alloted the suit property to some third person Ms. Poonam Asri and had created third party interest in the suit property without the knowledge of the court and concealed this material fact, this court is constrained to impose a cost of Rs. 20,000/ upon the defendant/ DDA to be paid to the plaintiff. Decree sheet be prepared accordingly. File be consigned to record room.
Pronounced in the open court today on 16.09.2011.
(SHEFALI SHARMA) CIVIL JUDGE (WEST) THC, DELHI/ 16.09.2011 Sh. Ishwar Dayal vs. DDA 10/10