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Scj­Cum­Rc (N/W) : Rohini Courts : Delhi vs Mcd And Ors. 2005 Iv Ad(Delhi) 639 on 1 December, 2014

                 IN THE COURT OF SH. SHAILENDER MALIK 
              SCJ­CUM­RC (N/W) : ROHINI COURTS : DELHI
Suit No. 88/13


Smt Manisha
W/o Sh. Suraj
R/o B­7/44, 
Sector­17, Rohini,
Delhi
                  VS
Delhi Development Authority
Vikas Sadan
New Delhi­23

Date of institution:                          .......             22.12.2008

Date of reserving order:                                .......         25.11.2014

Date of announcing order:                     .......             01.12.2014 

JUDGMENT

This is a suit for permanent injunction and declaration. Facts as stated in the plaint are that defendant/DDA in year 2000 floated a scheme for rehabilitation of Punjab Migrants and accepted the application forms from such migrants on deposit of Rs. 10000 for allotment of flats. One Raj Rani W/o Tarlok and Raman Kumar S/o Tarlok applied for the allotment of Janta Flats and were alloted flat no. 474, Sector A­6, Type A, Group 2, Pocket 1 Narela. It is stated the possession of the above said flat was handed over to them on 11.02.2002. It is stated that on 29.12.2003 Raj Rani W/o Tarlok and Raman Kumar S/o Tarlok transfered the above said flat to Smt Saroj Bala W/o Chiala Ram vide deed of agreement to sell and purchase. Thereafter on 13.04.2005 said Saroj Bala W/o Chiala Ram vide GPA, agreement to sell, receipt, affidavit and possession letter transfered the suit Page No. 1/14 flat to plaintiff.

It is further stated in the plaint that plaintiff was shocked to receive a letter from DDA whereby plaintiff was directed to vacate the above said flat by 23.12.2008 on the ground that possession of the plaintiff over the said flat is illegal. It is stated that plaintiff is a bonafide purchaser has acquired the right in the said flat by virtue of execution of necessary documents as per law. Hence, the present suit was filed seeking decree of permanent injunction thereby restraining defendant/DDA from dispossessing the plaintiff from suit flat no. 474, Sector A­6, Type A, Group 2, Pocket 1 Narela. Plaintiff has also sought the decree of declaration declaring that the order whereby possession of plaintiff over the flat 474, Sector A­6, Type A, Group 2, Pocket 1 Narela is null and void.

Defendant/DDA filed the WS taking the objection therein that suit is bad for want of service of prior notice under Section 53 B of Delhi Development Act. It is pleaded that transfer of ownership by allottee is not legal. Moreover alleged transfer has not been in accordance with provisions of Registration Act, as such alleged transaction of sale is null and void. It is pleaded that allotment letter was issued by DDA in favor of Smt Raj Rani through file no. F­339(724) 01/HSRPM/NA. Competent authority had canceled the allotment in respect of flat in question. As such plaintiff has no locus standie to institute the present suit. Admittedly, no lease has been signed in favor of original allottee. Allotment was on hire purchase agreement basis and since original allottee failed to appear before competent authority on 23.11.2004 along with the original documents for verification of their eligibility and genuineness, therefore, allotment was canceled by DDA. Suit is bad for non­joinder of necessary parties as original allottee Raj Rani is necessary party for proper adjudication of the matter. Moreover, Divisional Commissioner (Revenue), Government of NCT is also necessary/proper party as allotment of flat has been issued as per the list issued by that authority. On receipt of complaint from DC (Revenue) GNCT, competent Authority examined the genuineness of original allottee. But allottee failed to turn up for verification of documents. While denying the case of the plaintiff on merits except those facts Page No. 2/14 which are matter of record, it is pleaded that suit of the plaintiff is not maintainable. It is pleaded that as per the terms and conditions of the scheme only those persons were eligible for allotment who were having verification as Punjab Migrants from concerned SDM/DC. Verification about genuineness of the allottee was the job of SDM/DC only. In the absence of any master role/list or related record available with DDA, it was not possible for DDA to go into the question of genuineness of allottee once he/she comes with the verification/recommendation from the SDM/DC office. On receipt of complaints cases of Peera Garhi Camp was referred to SDM for re­verification.

On re­verification, Deputy Commissioner(West) reported vide letter dated 11.02.2004 that there are double/triple allotment and 291 cases were not part of original list of migrants. In the meeting held on 21.05.2004 in the chamber of Principal Commissioner, DDA with Divisional Commissioner (Revenue) GNCT, it was decided that re­verification will be confined only to Punjab Migrant families living in Peera Garhi Camp. It was also decided that all those persons figuring in double/triple allotment and 291 cases were not found part of original migrants, will be given notices by SDM at pre­fixed dates and on all such occasions the officers of DDA will also be present with concerned files so as to reach definite conclusion about the genuineness of particular Punjab migrant. Divisional Commissioner was requested to instruct Deputy Commissioner (West)/ SDM Punjabi Bagh to issue show­cause notices to concerned persons of double/triple allotment as well as 291 persons who were not found part of original list of Punjab migrants. Committee was constituted by Deputy Commissioner(West) comprising of 2 officers from DDA and 2 officers from o/o Deputy Commissioner (West) for scrutinizing the cases in respect of Peera Garhi Camp. Smt Raj Rani was served with the show­cause notice dated 09.11.2004 for appearance before the above said committee on 23.11.2004 with original documents for verification. However, said Raj Rani did not appear before the Committee. Thereafter, a press notification was given in 3 leading newspapers on 04.06.2006 by SDM, Punjabi Bagh, clearly mentioning the last opportunity for allottees to appear before the Committee. But, even after issuance of such press notification, allottee Raj Rani did not appear Page No. 3/14 therefore, upon approval by the competent authority a letter of cancellation of allotment of above said flat was issued on 24.11.2008 with the directions to handover the possession or to take steps as per law.

Upon completion of pleadings following issues were framed on 25.01.2012:

1. Whether the suit of the plaintiff is not maintainable in view of Section 53B of the DDA Act?OPD

2. Whether the transfer of the ownership of the suit property by the original allottee in favor of the plaintiff herein, not being valid, is void and thus, the allotment was rightfully canceled?OPD

3. Whether the allotment in favor of the original allottee was a double allotment/fraudulent allotment/allotment obtained by forged documents and thus, allotment was rightfully canceled?OPD

4. Whether the suit of the plaintiff is within the period of limitation?OPP

5. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?OPP

6. Whether the plaintiff is entitled for the relief of declaration as prayed for?OPP In order to substantiate her case, on behalf of plaintiff 3 witnesses were examined. PW1 is plaintiff Manisha. PW2 is Manoj Kumar, Asst. Engineer from DDA and PW3 is Sh. Brijesh Chandra, Asst. Director from DDA. On behalf of defendant same Sh. Brijesh Chandra asst. Director has again appeared as DW1.

I have heard ld. Counsels for the parties and has gone through record carefully, my findings on each issue are following:

Issue no. 1 (Whether the suit of the plaintiff is not maintainable in view of Section Page No. 4/14 53B of the DDA Act?OPD) This issue was framed on the objection taken on behalf of DDA that the suit is not maintainable in view of Section 53 B of DD Act. This is a suit for injunction. It it submitted by the counsel for plaintiff that6 at the time of filing the suit an application was moved in terms of Section 80(2) CPC seeking exemption of filing the suit without service of notice. Having considered the provisions of Section 53 B of DD Act I find that this provision is different from Section 80 CPC and even from Section 478 of DMC Act. The difference of scope of above mentioned provisions was discussed by Division Bench of Hon'ble Delhi High Court in Prinda Punchi and ors. Vs MCD and ors. 2005 IV AD(Delhi) 639, in that judgment while noting the difference of above mentioned provisions it was observed that:

"Section 53 B of Delhi Development Act know of no exemptions or waiver. The aforesaid provision of Section 53B enacted long after enactment of the provision of sub­section (2) of Section 80 of the CPC. The legislature was aware of the said provision of sub­ section (2) of Section 80 of CPC when Section 53 B of the Delhi Development Act was enacted. Consciously, the legislature did not incorporate in Section 53 B of the Delhi Development Act any exception as that of sub­section (2) of Section 80 of CPC. Therefore, it would not be appropriate to include and add such provision as that of sub­section (2) of Section 80 of CPC into the provision of Section 53 B of the Delhi Development Act. 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. The law of interpretation of statutes clearly provides that there can be no addition or subtraction to the language of a statute when the same is clear and unambiguous. There is no unambiguity or uncertainty in the language of Section 53 B and, therefore, there is no scope of adding any words to the said, existing provision in the statute."

Thus it was held in that judgment that there cannot be any waiver of service of notice in terms of Section 53 B of DD Act. Service of notice under that provision , prior to the institution of the suit, is mandatory. In the present suit merely moving an application under Section 80(2) CPC for exemption, otherwise also does not satisfy the requirement when said application was never considered and there has never been any order of Court on that application filed under Section 80(2) CPC. Moreover, as stated above present suit is bad for the reason for non compliance of Section 53 B of DD Act. Even according to Section 80(2) CPC plaintiff is required to establish some urgency which in the facts and circumstances of the case as discussed above have not been established. Thus, I find that suit is bad and not maintainable for want of service of notice as required under Section 53 B of DD Act. Issue accordingly decided against the plaintiff and in favor of defendant.

Issue no. 2 (Whether the transfer of the ownership of the suit property by the original allottee in favor of the plaintiff herein, not being valid, is void and thus, the allotment was rightfully canceled?OPD) This issue was also framed on the objection taken on behalf of DDA. DDA has taken a specific plea in the para 2 of its WS that transfer of ownership of flat in question by original allottee to plaintiff or to anyone is not in accordance with the provisions of Registration Act. As per the case of the plaintiff original allottee namely Raj Rani and Raman Kumar had sold the flat in question to one Saroj Bala by deed of agreement to sale and purchase and like documents all dated 29.12.2003 and thereafter said Saroj Bala vide GPA, agreement to sell, transfered the suit flat to plaintiff. Thus, plaintiff is admittedly a subsequent purchaser and is not the allottee of the flat in question.

Now, if we examine the evidence of plaintiff PW1, Manisha in her affidavit of examination in chief has testified that original allottee Raj Rani and Raman Kumar transfered the flat on 29.12.2003 to Smt Saroj Bala vide a deed of agreement for sale and purchase which is Ex.PW1/2 and documents of transfer executed by Saroj Bala in favor of plaintiff on 13.04.2005 are Ex.PW1/3.

Admittedly, the documents are not duly registered and therefore do not comply with the provisions of Section 17 of Registration Act. Provisions of Transfer of Property Act and of Indian Registration Act, make is clear that any immovable property of worth Rs. 100 or more if sold is required to be affected by a registered sale deed necessarily. In the present case it is not disputed that documents of transfer either in favor of Saroj Bala or in favor of plaintiff were not by any registered sale deed.

Another important aspect of the matter to be noted here is that perusal of deed of agreement to sale and purchase which is Ex.PW1/2, which original allottee Raj Rani and Raman Kumar have executed in favor of Saroj Bala, would clearly show that it is mentioned in the document itself that has alloted flat in question on "Hire Purchase Agreement" basis. If a property was alloted by way of "Hire Purchase Agreement", ownership in property does not transfer until payment of all hire installments. In present case original allottee have not paid the entire hire installments of flat in question, therefore, ownership in it was not transfered from DDA. Though, allottees Raj Rani and Raman Kumar were allottee but not the owner of the same at therefore, were not entitled in law, even to enter into an agreement of sale to purchase. It is not even the case of the plaintiff that original allottee had made the payment of entire hire purchase installments. Nor even Saroj Bala or the plaintiff stated to have made any payment of hire installments to DDA. Thus, Saroj Bala had not acquired a good title or ownership by document Ex.Pw1/2 and as consequence plaintiff could not have also got a better title than transferee, in flat in question. Thus, reading the evidence of PW1 along with the documents Ex.PW1/2 and PW1/3 which are not even registered sale deed, I find that alleged transfer of ownership of flat in question by original allottees to Saroj Bala and ultimately from Saroj Bala to plaintiff was not lawful. Consequently, issue no. 2 stands decided against the plaintiff.

Issue no. 3 (Whether the allotment in favor of the original allottee was a double allotment/fraudulent allotment/allotment obtained by forged documents and thus, allotment was rightfully canceled?OPD) Page No. 7/14 Onus of proving this issue though is on defendant as DDA has taken a specific plea that since competent authority on receipt of complaint regarding double/triple allotment as well as regarding bogus verification and fraudulent allotment of flat in the name of those whose name were actually not in the list of Punjab Migrants, a committee was formed to reverify original documents for eligibility and genuineness. In that committee allottees of the flat in question did not appear despite service of being personally served with the notice as well as by way of publication in the newspaper. This aspect is also necessary to be appreciated properly in the light of evidence as come on the record because even plaintiff is also seeking relief or declaration to declare the order regarding possession of plaintiff in the flat in question to be declared as owner of flat. Thus from both the angles this issue is very necessary.

Let us now examine the evidence as come on the record. As stated above on behalf of the plaintiff three witnesses were examined. PW1 is plaintiff Manisha who in her affidavit of examination in chief has testified all those facts as are averred in the plaint. PW1 testifies that flat in question was allotted in the name of Raj Rani and Raman Kumar under the scheme of DDA floated for rehabilitation of Punjab Migrants. Possession of the flat was handed over to original allottees on 11.01.2002 and thereafter on 29.12.2003 allottee Raj Rani and Raman Kumar sold the said flat to Smt Saroj Bala vide a deed of agreement to sale and purchase Ex.PW1/2. PW1 further testifies that on 13.04.2005 said Smt Saroj Bala vide documents like GPA, SPA, agreement to sale, receipt, affidavit etc. collectively exhibited as Ex.Pw1/3 transfered the suit flat to her (plaintiff/PW1). PW1 further testifies that she was shocked upon receipt of letter dated 24.11.2008 from DDA whereby she was directed to vacate the flat in question on the ground that her possession in the flat is illegal. PW1 states that she is a bonafide purchaser and owner in possession of the flat. Original allottees have shifted to some unknown place and their whereabouts are not known therefore steps could not be taken to appear before the committee constituted and she remained completely in dark about the development as she was never served with any notice requiring to appear before the said committee. PW1 further testifies that she was never given a chance Page No. 8/14 to defend her moreover at the time of submission of application form of the relevant documents regarding eligibility were submitted before SDM/DC of the area and same were verified and recommended. PW1 further states that allotment of flat could not have been canceled as any person could not judge his own case and legal rights of bonafide allottees and bonafide purchasers cannot be defeated by stroke of pen.

PW1 was duly cross examined on behalf of DDA. PW1 in cross examination admitted that she is not the original allottee of flat. PW1 also admits that she is not migrant from Punjab and flat in question was allotted under the scheme of DDA for rehabilitation of people migrated from Punjab only. PW1 further admits in cross examination that she had not verified prior to purchasing the flat in question, whether the name of Saroj Bala (seller) was entered in the record of DDA regarding flat in question.

PW2 is Manoj Kumar Asst. Engineer from DDA who brought the summoned record pertaining to flat in question and has testified that flat was originally allotted to Raj Rani and Raman Kumar. And as per the record brought by him photographs and identification proofs (ration card, identity card, voter ID Card) are on the record. PW2 further says that allotment was made to them being Punjab Migrants on the basis of above mentioned documents. Witness however testified that these documents were subject to verification by competent authority and he was not aware if the allotment was made after the verification of above mentioned documents. PW2 states that after the allotment possession was handed over to the allottee and at the time of possession, concerned officer will verify the identity of the person.PW2 however, voluntarily testified that status of those persons was to be verified by the competent authority. During cross examination PW2 admits that record brought by him is only pertaining to the record of handing over of possession of flat in question however, same is not regarding verification of the status of the allottee as Punjabi migrant.

PW2 was re­examined on behalf of plaintiff wherein he admits that in the Page No. 9/14 record brought by him affidavits with signatures of allottee, documents pertaining to water meter etc,. Are lying on the record. File brought by him also contains one recommendation letter to competent authority in favor of Raj Rani which is Ex.PW2/A. PW3 is Brijesh Chandra Asst. Director who simply testified that record summoned through him has already been sealed by the order of Vigilance Branch of DDA.

On behalf of defendant DDA, the same Brijesh Chandra Asst. Director (Janta Flats) had appeared as DW1. DW1 in his affidavit of examination in chief has testified that on transfer of ownership of flat in favor of plaintiff was illegal. DDA had issued the allotment letter in favor of Raj Rani in respect of flat in question, however, competent authority had canceled allotment, because allotment was on Hire Purchase Agreement basis and allottee could not appear before the competent authority on 23.11.2004 with original documents for verification of eligibility and genuineness. Therefore, allotment was canceled vide Ex.DW1/1. While stating other facts inter alia DW1 testifies that DDA received various complaints in respect of allotment of flat in the above scheme regarding bogus verification and resultant fraudulent allotment of flats to those whose name were actually not in the list of Punjab Migrants, available with DC Office. DW1 says that on re­verification DC West reported vide letter dated 11.02.2004 about double/triple allotment and 291 cases where names were not part of original list of migrants. In the meeting held on 21.05.2004 it was decided to issue notices to all those cases of double/triple allotment and 291 cases of names not in the list of original migrants. DW1 says that SDM Punjabi Bagh issued the show cause notice on 09.11.2004 to Smt Raj Rani (allottee in the present case), with the directions to appear before the committee on 23.11.2004 with original documents for verification. DW1 says that allottee did not appear and thereafter a press notification was given in 3 newspapers on 05.06.2006 which are Ex.DW1/2 and 3 but allottee still failed to appear and therefore, allotment was canceled in respect of flat vide letter issued no 24.11.2008 for handing over of possession.

DW1 was duly cross examined on behalf of plaintiff, in cross examination DW1 states that he do not have knowledge if letter of cancellation of allotment Ex.DW1/1 was ever served upon to allottee to Smt Raj Rani and Raman Kumar. DW1 has reiterated in cross examination that allotment was canceled on account of non appearance of allottee Smt Raj Rani and Raman Kumar before the committee of SDM for verification of original documents.

Having appreciated the evidence as come on the record, first of all it be noted that this court has already given finding while deciding issue no. 2 that transfer of suit flat firstly in favor of Saroj Bala and thereafter in favor of plaintiff was not lawful. Now, while confining my consideration to examine whether allotment of flat in question in favor of original allottee was rightly canceled or not. It is argued by ld. Counsel for plaintiff that pleadings of DDA and evidence of DW1 show that due to double/triple allotments of flats, allotment was verified and thereafter canceled. Where as DDA has failed to prove in this case as to how in case of allottee of the falt in question there was any double/triple allotment. It was also argued by ld. Counsel for plaintiff that DDA has failed to establish on record that notice was served upon original allottees for their appearance before committee constituted for verification of original documents. It is submitted by ld. Counsel for plaintiff that it is established from evidence of DW1 that documents of original allottees were duly verified, therefore there was no reason for committee or DDA to cancel the allotment in the absence of any evidence of double/triple allottment. It is also submitted that plaintiff is a bonafide purchaser and DDA can not defeat the interests of plaintiff in flat in question by canceling the allotment in favor of allottee, without any notice to allottee or even to the plaintiff.

Having given thoughtful consideration to submissions made by ld. Counsel for plaintiff and considering the evidence and documents proved on record, first of all it is important to note here that plaintiff has failed to establish any reasons in her affidavit of examination in chief to show cancellation of allotment of flat in question was not as per law. It be noted that onus was on plaintiff to establish those Page No. 11/14 facts which would make her entitled for relief of declaration as she has prayed for. Plaintiff PW2 in para 7 and 8 of her affidavit has testified certain facts like she was not served with notice or that she remained in dark about developments or that notice was not actually served to even original allottee because allottees had shifted to some unknown places or their whereabouts were not known. All these facts can be ignored on the ground of being beyond pleadings as nothing as such was so pleaded in the plaint.

Even otherwise if we examine these facts on merits, it is important to note that as per DW1 DDA received complaints in respect of bogus verification and resultant fraudulent allotment reverification was done and DC West gave his letter dated 11.02.2004 regarding cases of double/triple allotment and 291 cases of those people whose name was not part of original list of Punjab Migrants however, managed to get allotment. Thereafter, committee was constituted on 21.05.2004 and show cause notice was issued to original allottee on 09.11.2004. All these steps were taken prior to plaintiff purchasing the flat from Saroj Bala. Admittedly, plaintiff had purchased the flat in question only on 13.04.2005 from Saroj Bala, in such situation there could not have been any occasion for plaintiff to know about all above mentioned developments moreover, plaintiff had not purchased the flat in question with any intimation to DDA. plaintiff/PW1 has admitted in her cross examination that she had not verified prior to purchasing the flat in question, whether the name of Saroj Bala is entered in the record of DDA or not. That being the situation plaintiff can also not complain about service of any notice to her because plaintiff had never informed DDA regarding the fact of purchasing the flat in question.

So far as the argument of ld. Counsel that it was not clear that allotment of flat was canceled on account of double/triple allotment. This argument is apparently not sustainable for teh simple reason that DW1 has specifically testified in examination in chief as well as in cross examination that since complaint were received regarding allotment to those persons whose name were not in the original list of Punjab Migrants. DC West, in letter dated 11.02.2004 has identified 291 Page No. 12/14 such like cases. Therefore, a committee was constituted for verifying those cases with original documents for eligibility. This committee when issued the show cause notice to original allottee, they failed to appear. Here, it is important to note that original allottee have neither been made party in the present suit nor have been called upon as witness. Thus, it is only they who could have verify whether they received the show cause notice dated 09.11.2004 or not. Plaintiff cannot say that allottees were not served with the notice because by that time plaintiff was not at all in picture, plaintiff admittedly purchased the flat in April 2005. Thus, when it is not disputed that original allottee failed to appear before the committee then it does not lie in mouth of the plaintiff to state that allotment was incorrectly canceled. Original allottee failed to appear before committee for verification of original documents, therefore, I find that this fact is clearly established and plaintiff has failed to establish any case for relief of declaration as prayed for. Accordingly, issue stands decided against plaintiff, specifically in view of my findings in issue no. 2.

Issue no. 4 (Whether the suit of the plaintiff is within the period of limitation?OPP) This issue was framed on the objection taken on behalf of the defendant that suit is barred by limitation however, taking the plaint on the face of it is the case of the plaintiff that she received the letter dated 24.11.2008 from DDA thereafter, filed the present suit seeking permanent injunction and declaration. Suit is within limitation. Accordingly, this issue stands decided in favor of the plaintiff and against the defendant.

Issue no. 5 & 6 (Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?OPP ; Whether the plaintiff is entitled for the relief of declaration as prayed for?OPP) In view of my findings on issue no. 2 and 3 it has already been held that Page No. 13/14 transfer of ownership of suit flat by original allottee in favor of Saroj Bala and thereafter, to plaintiff was not in accordance with law. This court has already held that cancellation of allotment was not rightly done, therefore, once this finding has come I find that plaintiff has failed to establish any right therefore, both these issues stand decided against the plaintiff.

Relief In view of my findings on issue no. 1, 2, 3, 5 and 6 suit of the plaintiff stands dismissed. File be consigned to RR.

Announced in open court on 1st December 2014 SH. SHAILENDER MALIK (SCJ­RC, ROHINI COURTS, DELHI) Page No. 14/14