Delhi District Court
Sh. Rajesh Kumar vs Delhi Development Authority on 5 July, 2014
IN THE COURT OF Ms. JYOTI KLER, ADDITIONAL SENIOR CIVIL JUDGE
CUMJUDGE SMALL CAUSE COURTCUM GUARDIAN JUDGE, SOUTH
EAST DISTRICT, SAKET COURT COMPLEX, NEW DELHI
CS No: 306/13
Case ID No. 02406C0143452013
IN THE MATTER OF :
Sh. Rajesh Kumar
Son of Late Sharwan Kumar Sahni,
R/o Flat no. JD40C, First Floor,
G8 Area, Rajouri Garden,
New Delhi110064.
.....Plaintiff.
VERSUS
1. Delhi Development Authority
Through its Vice Chairman
I.N.A. Vikas Sadan,
New Delhi 110023.
2. The Dy. Director,
Delhi Development Authority,
Janta (Housing) Branch,
DBlock, 2nd Floor, Vikas Sadan,
I.N.A., New Delhi 110023.
.....Defendants
Date of Institution: 05.06.2013
Date of Final Arguments: 27.05.2014
Date of Judgment: 05.07.2014
CS 306/13 Rajesh Kumar Vs. Delhi Development Authority 1/11
Suit for Mandatory Injunction
JUDGMENT
1. Vide this judgment, I shall dispose off a Suit for Mandatory Injunction instituted by Sh. Rajesh Kumar (hereinafter referred as "the plaintiff") against Delhi Development Authority (hereinafter referred as "defendant no. 1") and the Deputy Director of Delhi Development Authority (hereinafter referred as "defendant no. 2").
2. The facts of the case are as under: Father of the plaintiff, namely, Sh. Sharwan Kumar Sahni, applied for an allotment of a Janta Flat with the defendants vide NPRS bearing Registration No. 10289 dated 28.04.1980 which was booked under the scheme of New Pattern 1979. He expired on 07.04.1991 leaving behind the plaintiff and his mother and siblings. Mother of the plaintiff also expired on 25.01.2012. None of the parents of the plaintiff informed him about the registration. In the month of June 2012, brother of the plaintiff came across the Registration Sleep No. 10289 dated 28.04.1980. Then, only the plaintiff and his brother became aware of the registration by their father. Thereafter, brother of the plaintiff sent a letter to the Assistant Director (R) Housing, DDA Vikas Sadan, INA, New Delhi to know about the status of flat. Letter was replied by the defendant no.2 vide reply dated 18.01.2013 bearing no. J(Misc.)/Regd.10289/Dy. 3227/12/NK/93. It was informed to the brother of the plaintiff that the allotment of flat as per New Pattern Scheme has already been closed and all the eligible applicants were allotted flats without any back log. Plaintiff was shocked to receive this letter as CS 306/13 Rajesh Kumar Vs. Delhi Development Authority 2/11 no communication was ever sent to him or his siblings or to his father by the DDA. The father of the plaintiff was an eligible applicant for allotment but not flat was allotted to him. Hence, plaintiff sent a notice on 21.03.2013 to DDA and thereafter filed the present Suit as DDA did not redress his grievance.
3. It is prayed by the plaintiff that the defendants be directed to allot a Janta Flat in the name of the plaintiff under NPRS/79 Scheme as he is the legal heir of his father, and other legal heirs, i.e. his siblings have no objection if the flat is allotted in his favour.
4. Summons of the Suit were issued to the defendants who appeared before the Court and filed Written Statement. It is admitted by the defendants that the father of the plaintiff had applied for allotment of a Janta Flat under NPRS 79 with the address of communication as C 129, Hari Nagar Clock Tower, Delhi64. The registration no. is admitted. It is further the case of the defendants that a flat bearing No. 59D, Ground Floor, Pocket SA B7, Kondli, Gharoli, Delhi was allotted to him on 28.12.1992. The allotment was made subject to the Regulations of DDA applicable. A demand letter dated 22.02.1993 was sent to the allottee for payment of a total sum of Rs. 1,15,312.58/. Allottee failed to deposit the amount and hence the allotment was cancelled. It is also the case of the defendants that NPRS 1979 was closed after given due and wide publicity in all the leading newspapers for the information of public. The defendants prayed that the Suit of the plaintiff may be dismissed as it has been filed beyond the limitation period and also is without merits. The defendants further took the plea that they were enable to produce entire original file of the Suit property as the same was not traceable CS 306/13 Rajesh Kumar Vs. Delhi Development Authority 3/11 in the records of the DDA.
5. In the replication, plaintiff alleged that DDA was not producing the original file with ulterior motives. The other preliminary submissions raised in the written statement was also denied in the replication and the contents of the plaint were reiterated. The plaintiff also averred that the DDA was guilty of delay as they failed to allot a flat to his father during his lifetime for 11 long years and therefore it did not lie in their mouth to take the plea of limitation now.
6. On completion of pleadings, Court framed the following issues vide Order dated 23.08.2013:
1. Whether the plaintiff is entitled for the decree of Mandatory injunction? OPP
2. Whether Suit of the plaintiff is time barred? OPD
3. Relief.
7. Parties were directed to lead their evidence. Plaintiff examined himself as PW1 by way of affidavit Ex.PW1/A while the defendants examined Sh. Brijesh Chander as DW1 by way of affidavit Ex.D1.
8. PW1 reiterated the contents of the plaint in his affidavit. He also relied upon certain documents in support of the contents of his affidavit, which are as follows:
i) Ex. PW1/1 (OSR) : Copy of Election Identity Card of PW1.
ii) Ex. PW1/2 : Certificate of Registration No. 10289 dated 28.04.1980.
iii) Ex. PW1/4(OSR) : Copy of the letter dated 18.12.2012 sent to the CS 306/13 Rajesh Kumar Vs. Delhi Development Authority 4/11 DDA by the brother of the plaintiff.
iv) Ex. PW1/5: Acknowledgment of DDA regarding receipt of letter dated 18.12.2012.
v) Ex. PW1/6 : Reply dated 18.01.2013 sent by the DDA to the letter dated 18.12.2012.
vii) Ex. PW1/7 : Legal notice dated 21.03.2013 sent to the DDA by the plaintiff.
viii) Ex. PW1/8 : Postal receipts dated 22.03.2013, of having sent legal notice.
ix) Ex. PW1/9, Ex. PW1/10 & Ex. PW1/11 : No objection certificate from the siblings of the plaintiff, i.e. Yogesh Kumar, Anju Kohli and Varsha Sethi respectively.
x) Ex. PW1/12(OSR) : Copy of death certificate of the father of the plaintiff.
xi) Ex. PW1/13 (OSR) : Copy of death certificate of the mother of the plaintiff.
xii) Ex. PW1/14 : Newspaper clipping from the Time of India dated 06.08.2013 with the titled "Revival of Flats Allotted in 1979 as per Policy: DDA".
xiii) Ex. PW1/15 : Courier Receipt dated 26.06.2012 vide which the brother of the plaintiff has sent the letter to DDA.
9. PW1 was crossexamined by Ld. Counsel of the defendants. He deposed during his crossexamination that he was residing at JD40C, 1 st Floor, G8 Area, Rajouri Garden, New Delhi since 1990 and had again said that he was not sure of the year. On further query he deposed that he with his CS 306/13 Rajesh Kumar Vs. Delhi Development Authority 5/11 family stayed at C129, Hari Nagar, Clock Tower, New Delhi, which was the address of communication provided to the DDA for around an year after his father's death and this address was already left by them in the year 1993. He also admitted that DDA was not intimated about the changes of the address. It was further deposed by him that he was not aware of any allotment letter sent by DDA in the year 1993 as they had already left this address by that time. He further admitted that he was not able to read newspapers. He denied any knowledge of the document marked PW1/D1 put to him by the Ld. Counsel for the defendant which is the photocopy of the public notice published by DDA stated that NPRS 79 stood closed.
10. Defendant examined Sh. Brijesh Chander as DW1 who also reiterated the contents of his written statement. He specifically deposed that the original file pertaining to allotment to the father of plaintiff was missing from the record of DDA, it being an old record. He relied upon upon the computer generated print out of the data detail from the management information system maintained by the DDA containing the details of allotment to the father of the plaintiff which is Ex.DW1/A. This being a computer generated print out, he also produced and proved the certificate under Section 65B of the Indian Evidence Act which is Ex. DW1/B. He further relied upon the copy of public notice marked PW1/D1 to say that NPRS 79 stood closed.
11. Ld. Counsel for the plaintiff crossexamined this witness. During cross examination DW1 admitted that the original record to the effect that letter of allotment was sent to the father of the plaintiff was not traceable. He explained that it was an old record and therefore was not traceable. He however denied CS 306/13 Rajesh Kumar Vs. Delhi Development Authority 6/11 the suggestion that no letter was sent and hence there was no original record. Copy of the letter dated 25.06.2012 was put to him and he expressed ignorance to the said letter which is marked DW1/P1. He also deposed that he is not aware of the day when NPRS 79 was closed but admitted the public notice mark PW1/D1 published on 22.11.2012. He denied the suggestion that the flats under NPRS 1979 were still being allotted. He also denied that DDA did not reply to the letter sent in June,2012 deliberately as it wanted to shirk its responsibility of alloting the flat to the plaintiff.
12. After completion of evidence, final arguments were heard from both the sides.
13. Ld. Counsel for the plaintiff argued that the Suit was filed within the limitation period as admittedly, NPRS 79 was closed by the DDA in the year 2012 and flat was not allotted to the plaintiff. Suit was filed within a year of closure of the scheme, i.e. on 05.06.2013 and hence is within the limitation period. It was also argued by Ld. Counsel for the plaintiff that DDA could not allot a flat during the lifetime of father of the plaintiff for 11 years and therefore cannot take the plea of delay. It was further argued on behalf of the plaintiff that DDA having failed to prove that any letter of allotment was ever sent to the father of the plaintiff, the plaintiff is entitled to the relief claimed.
14. Ld. Counsel for the defendants argued that the plaintiff admittedly failed to inform DDA about change of address and therefore his case was not covered under the wrong address policy. It was further argued that DDA proved that the original record of the allotment to the plaintiff was not traceable and therefore was entitled to lead secondary evidence in terms of Section 65 CS 306/13 Rajesh Kumar Vs. Delhi Development Authority 7/11 of the Indian Evidence Act which it did by producing the print out from the computer data retained by DDA.
15. I have considered the rival contentions of both the sides. Record perused.
16. My issuewise findings are as below.
Issue No. 2: Whether Suit of the plaintiff is time barred?OPD
17. Burden to prove this issue was upon the defendant. It is alleged by the defendant that the plaintiff instituted the present Suit after 20 years of allotment and therefore the Suit is not maintainable. Plaintiff on the other hand took a plea that he became aware of registration by his father only in 2012 and thereafter he wrote a letter to the DDA. DDA informed him about cancellation in 2012 after which the filed the Suit in 2013 and therefore within the limitation.
18. As per the proved case of the defendants, NPRS 79 was closed after public notice Ex. PW1/D1 published on 22.11.2012. The allotment in favour of father of the plaintiff was cancelled but the date on which allotment was cancelled has not been disclosed to the Court by the defendants. Neither any document was produced in the Court which could throw some light on the fact as to when the allotment was cancelled. Hence, from the facts and documents proved on record, it appears that the cause of action in favour of the plaintiff arose on the date of closing of the scheme by issuing a public notice. This date, as per the cross examination of DW1 is 22.11.2012. The present Suit was filed on 05.06.2013, i.e. within 6 months and hence is within the limitation period.
19. Issue No. 2 is therefore decided in favour of the plaintiff and against the CS 306/13 Rajesh Kumar Vs. Delhi Development Authority 8/11 defendant.
Issue No. 1: Whether the plaintiff is entitled for the decree of mandatory injunction? OPP
20. The burden to prove this issue was upon the plaintiff. Plaintiff has claimed that the defendants be directed to allot a flat to him under NPRS 79, he being legal heir of the applicant, i.e. his father. He also averred that other legal heirs of the applicant had no objection to the same.
21. However, plaintiff did not examined either of the legal heirs of the applicant to prove that they had no objection to the allotment of the flat to the plaintiff. He instead produced No Objection Certificate signed by them but not notarised or proved on record by the executant themselves.
22. PW1 admitted in his crossexamination that he was not aware whether letter of allotment was sent to him by the DDA at the communication address provided by his father as he and his family had shifted from the said address in the year 1993 then the letter of allotment was allegedly sent by the DDA. He also admitted that the fact of change of address was not communication to the DDA. It is thus clear from the admissions of the plaintiff that it was the plaintiff who was at fault as the fact of change of address was not communicated to the DDA which should have been done.
23. DDA alleged that the letter of allotment was sent on 22.02.1993. DDA further proved that the original record pertaining to posting of allotment letter was not traceable. DW1 was countered in his cross examination on this aspect but nothing substantial could be proved by the plaintiff. DW1 clearly denied that there was no record pertaining to sending of allotment letter and CS 306/13 Rajesh Kumar Vs. Delhi Development Authority 9/11 hence the plea of not traceable was false. DDA having proved the contents of Section 5 of Indian Evidence Act, became entitled to lead secondary evidence and it was done by proving Ex.DW1/A which is the computer generated data containing the details pertaining to the allotment file of the father of the plaintiff. This data clearly shows that the demand letter was sent to the plaintiff at C129, Hari Nagar, Clock Tower, New Delhi 64 on 22.02.1993 after allotment on 28.12.1992. This being the communication address of the plaintiff, presumption arises that the demand letter was duly delivered at the said address and hence service upon the plaintiff is presumed.
24. No evidence was led by the plaintiff to rebut the presumption of service of demand letter. On the contrary, plaintiff admitted that the change of address was not communicated to DDA and that he was not presiding at the address of communication in the year 1993. Plaintiff himself being at fault, now cannot claim this equitable relief of mandatory injunction from the Court. Defendant is a public body and no allegations of malafide have either been raised or proved against it by the plaintiff.
25. Presumed to having receipt the demand letter, plaintiff/his predecessor in interest failed to deposit the allotment amount and therefore allotment was cancelled as per regulations. It is not the case of the plaintiff here that the defendant did not allot any flat to the plaintiff despite his predecessor in interest being eligible. The allotment was cancelled for non payment to which DDA was entitled and was well within its rights.
26. Plaintiff relied upon a newspaper clipping Ex.PW1/14 dated 06.08.2013 and alleged that DDA was still allotting flats under NPRS 79. However, a CS 306/13 Rajesh Kumar Vs. Delhi Development Authority 10/11 reading of the clipping makes a clear that DDA was allotting flats only to such applicants who were covered under wrong address policy, i.e. those who had communicated about change of the communication address to DDA but it inadvertently sent the demand letter at their previous address. Case of the plaintiff is not covered under the said policy as admittedly the plaintiff did not conveyed about change of address to DDA.
27. For the aforesaid reasons, I am of the considered opinion that the plaintiff is not entitled to the discretionary and equitable relief of mandatory injunction as he himself has been the defaulting party. This issue is therefore presided against the plaintiff and in favour of the defendant.
Relief:
28. As the plaintiff has not been able to prove his entitlement for mandatory injunction, the Suit of the plaintiff is dismissed.
29. Parties are left to bear their own cost.
30. Decree sheet of dismissal be prepared.
31. File be consigned in record room.
Announced in the open court.
on 05.07.2014 (JYOTI KLER)
ASCJ/JSCC /Gdn.JUDGE
SOUTHEAST, SAKET COURTS, NEW DELHI
CS 306/13 Rajesh Kumar Vs. Delhi Development Authority 11/11