Delhi High Court
Sita Ojha vs Delhi Development Authority & Anr on 29 November, 2012
Author: Rajiv Sahai Endlaw
Bench: Chief Justice, Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 776 OF 2012, CMs No. 19869/2012 (stay), 19870/2012
(additional documents), 19871/2012 (delay)
% Judgment Delivered on 29.11.2012
SITA OJHA . . . Appellant
Through : Mr. Tanmaya Mehta,
Advocate.
VERSUS
DELHI DEVELOPMENT AUTHORITY & ANR ... Respondents
Through: Mr. Ajay Verma, Advocate
for DDA
Mr. Sitab Ali Chaudhary,
Advocate for Respondent
No.2
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
1. This intra Court appeal impugns the orders dated 3 rd August, 2012 and 28th September, 2012 of the learned Single Judge in WP(C) No.4648/2012 filed by the respondent No.2 Mrs. Malti Tiwari against respondent No.1 DDA. Though the appellant was not a party to the writ petition from which this appeal arises, but claiming to be aggrieved from the orders made therein, has preferred this appeal.
2. The respondent No.2 filed the writ petition aforesaid pleading, LPA 776/2012 Page 1 of 11
i) that her father-in-law Dr. Shiva Murti Tiwari was an applicant for a MIG plot under the Rohini Residential Scheme, 1981;
ii) that in the draw of lots held on 27th May, 1997, Plot No.79, Sector 24, Pocket V, Rohini, Delhi admeasuring 90 meters was allotted to him;
iii) that he had paid the entire consideration demanded therefor to the respondent No.1 DDA;
iv) that one Mrs. Savitri Sharma, daughter of Dr. Shiva Murti Tiwari and her husband Mr. Anil Sharma fraudulently obtained signatures on blank papers of the said Dr. Shiva Murti Tiwari and fabricated a Will, GPA, SPA and Agreement to Sell, all dated 15th January, 1998 with respect to the said plot;
v) that Dr. Shiva Murti Tiwari on coming to know of the same, cancelled all the said documents on 11 th February, 1998;
vi) that on the same day, i.e. 11 th February, 1998, Dr. Shiva Murti Tiwari also executed his last final and only valid Will and got registered the same, bequeathing all his movable and immovable properties including the plot aforesaid in favour of respondent No.2;
vii) that a suit was filed by Mrs. Savitri Sharma in the year 2000 to restrain Dr.Shiva Murti Tiwari from selling, transferring, alienating or parting with possession of and executing any sale deed in respect of the said plot;
viii) that Dr. Shiva Murti Tiwari died on 16th December, 2007;
LPA 776/2012 Page 2 of 11ix) that the Respondent No.1 on 27th August, 2009 applied for mutation of the aforesaid plot in her favour on the basis of the Will dated 11 th February, 1998;
x) that the other legal heirs of Dr. Shiva Murti Tiwari also were objecting to or contesting and not opposing the mutation of the said plot in her favour;
xi) only Mrs. Savitri Sharma was opposing the mutation of the said plot in favour of the respondent No.1;
xii) that there was no stay against the mutation;
xiii) that the respondent No.2 had filed WP(C) No.658/2010 seeking direction to the DDA to mutate the plot in her favour and which was disposed of vide order dated 2 nd February, 2010 with a direction to the DDA to pass a reasoned order on the application for mutation;
xiv) that the DDA vide order dated 1st February, 2012 disallowed the mutation;
xv) that the rejection by the DDA of the application of the respondent No.2 for mutation was in violation of the rules, regulations, circular dated 31st May, 2010 and the policy of the DDA in this regard. The writ petition from which this appeal arises was thus filed impugning the order dated 1st February, 2012 of the DDA and seeking a mandamus to the DDA to mutate the aforesaid plot in favour of the respondent No.2 and thereafter deliver possession thereof to the respondent No.2.
LPA 776/2012 Page 3 of 113. The writ petition came up first before the learned Single Judge on 3rd August, 2012 when the counsel for the DDA appeared on advance notice. The learned Single Judge, finding merit in the contention of the respondent No.2 that pendency of a suit for specific performance of agreement to sell, as per the circular dated 31 st May, 2010 was not to come in the way of mutation, disposed of the writ petition setting aside the order dated 1st February, 2012 of the DDA of rejection of the request of respondent No.2 for mutation and directing the DDA to pass a fresh order on the application of the respondent No.2.
4. The DDA thereafter vide order dated 22nd August, 2012 mutated the aforesaid plot in the name of the respondent No.2.
5. The respondent No.2 filed CM No.16660/2012 in the disposed of writ petition aforesaid complaining that notwithstanding mutation in the name of respondent No.2, DDA was not delivering possession of the plot to the respondent No.2 and seeking a direction therefor.
6. The said application came up before the learned Single Judge on 28th September, 2012 when DDA was directed to take a prompt decision on the said application of the respondent No.2 for possession.
7. The counsel appearing for the appellant has argued:
A. That though the order dated 3 rd August, 2012 of the learned Single Judge records that pendency of a suit for specific performance of an agreement to sell is no bar to a mutation of the plot but fails to notice that the disputes which were pending were as to the validity LPA 776/2012 Page 4 of 11 of the Will under which the respondent No.2 claims title from Dr. Shiva Murti Tiwari aforesaid and thus the said policy did not apply. B. That the Will on the basis of which the respondent No.2 claims title to the property is challenged not only by the appellant who is the daughter of Dr. Shiva Murti Tiwari aforesaid but also by Mr. Dayanand Tiwari being the son of Dr. Shiva Murti Tiwari. The said challenge is stated to be pending consideration in proceedings in the Court of the Civil Judge, Lucknow, in another proceeding in the Court of the Civil Judge, Sultanpur, UP, in yet another proceeding pending before the SDM, Dist. Sultanpur, UP and yet yet another proceeding pending in the Court of Additional District Judge at Tis Hazari.
C. That the respondent No.2 thus made a false statement in the writ petition that the Will was not being opposed.
8. We may notice that the respondent No.2 though in the writ petition was claiming mandamus for mutation of the plot allotted to her father-in- law in her favour on the basis of a Will of her father-in-law, but had not impleaded any of the natural heirs of her father-in-law as parties to the writ petition.
9. The counsel for the respondent No.1 DDA and the counsel for the respondent No.2 appear on advance notice and considering the nature of the controversy, we have with consent heard the counsels finally on the appeal.
LPA 776/2012 Page 5 of 1110. Though the counsel for the respondent No.2 contended that the appellant being not a party to the writ petition from which this appeal arises, cannot prefer an appeal, but we are unable to agree. It has been recently held by the Division Bench of this Court in Om Prakash v. Pratap Singh, MANU/DE/3494/2012 that a remedy of appeal is available to a person even though not a party to the original proceedings but against whom the order made in the said proceeding is sought to be used or to whom it causes prejudice.
11. Moreover, the appellant here has made serious allegation against the respondent No.2 of mis-stating of facts in the writ petition and we feel obliged to even otherwise look into the facts to maintain judicial discipline and decorum and to prevent the judicial process from being abused. For this purpose, it is deemed appropriate to set out para 17 of the writ petition preferred by the respondent No.1 which is as under:
"17. That even other legal heirs except said Smt. Savitri Sharma, are not objecting or contesting and not opposing the mutation of the said plot in favour of the Petitioner as they are not opposing the mutation of the said plot in favour of the Petitioner. Further, they are not a party to the suit or they have not even moved an application for impleadment as a necessary party in the said suit. Further, they have not made any application to the Respondent DDA not to mutate the said plot in favour of the Petitioner. It is pertinent to mention here that only Smt. Savitri Sharma is opposing to the mutation of the said plot in favour of the Petitioner on the basis of some false and fabricated documents LPA 776/2012 Page 6 of 11 which is not sustainable in law and the petitioner is disputing the legal sanctity of those documents."
12. The appellant along with this memorandum of appeal has filed copies of the plaint in the suit filed by the respondent No.2 in the Court of the Civil Judge, Lucknow and of the written statement filed by the appellant in that suit. The counsel for the respondent No.2 though attempted to take us on the path of collusion between the appellant and Mrs. Savitri Sharma aforesaid by contending that the appellant has chosen to be proceeded against ex parte in the suit filed by Mrs. Savitri Sharma but has been forced to admit that the property in Lucknow subject matter of the suit in Lucknow as well as the plot aforesaid at Rohini are claimed by the respondent No.2 under the same Will of Dr. Shiva Murti Tiwari. He also could not dispute that the appellant in the said suit at Lucknow is impugning the said Will of Dr. Shiva Murti Tiwari.
13. We are satisfied that the appellant, at least in the suit at Lucknow, is challenging the Will of Dr. Shiva Murti Tiwari whereunder the respondent No.2 claims title and right to mutation of the said plot and thus the pleading in para 17 above appears to be false.
14. We have asked the counsel for the respondent No.2 who had also drafted the writ petition aforesaid whether he, at the time of drafting of the writ petition was aware of the proceedings at least at Lucknow, if not of the other proceedings. He replies in the negative and states that the respondent No.2 had not informed him of the said proceedings.
LPA 776/2012 Page 7 of 1115. Being prima facie satisfied of a false pleading having been affirmed by the respondent No.2, we deem it appropriate to direct the appearance of the respondent No.2 in person before us on 11.12.2012. It is ordered accordingly.
16. The counsel for the DDA has contended that DDA in fact had vide order dated 1st February, 2012 which has been quashed by the learned Single Judge directed the mutation to be kept in abeyance till the pendency of the disputes between the heirs of Dr. Shiva Murti Tiwari. He further states that a notice dated 15th October, 2012 was issued to Mrs. Savitri Sharma as well as the appellant inviting objections to the request of the respondent No.2 for delivery of possession and in response thereto, the appellant has filed objections dated 30 th October, 2012. It has also been stated that the DDA on receipt of the said objections has also issued notice to the respondent No.2 as to why the mutation already granted in her favour be not revoked. It is contended that the issue is still at large before the DDA and there was no cause of action for the appellant to prefer this appeal.
17. The counsel for the appellant contends that this appeal was preferred because of the apprehension of the DDA delivering possession of the plot to the respondent No.2. It is argued that once possession is delivered by the DDA, the respondent No.2 will, within no time, further transfer the plot, to embroil the appellant in further litigation.
LPA 776/2012 Page 8 of 1118. The counsel for respondent No.2 has also argued that though the respondent No.2 is contesting the Will in so far as the other properties are concerned, is not contesting the Will qua the plot aforesaid. It is further argued that no suit has been filed by the appellant for declaration of the said Will as forged. It is thus contended that the appellant cannot object to the mutation already carried out in favour of respondent No.2. Reliance is also placed on the guidelines of the Land Disposal Department of the DDA for transfer/mutation of residential plots to contend that where the Will is registered, no No Objection Certificate of the other natural heirs is required.
19. We are unable to accept the aforesaid contentions. The counsel for the respondent No.2 also admits that the appellant is disputing the Will of Dr. Shiva Murti Tiwari qua inter alia the property at Lucknow. It is admitted that the Will is one only. Once the validity of a Will is challenged, the said challenge would apply to the entire estate bequeathed thereunder and merely because the appellant failed to appear in the suit at Delhi is no ground for the respondent No.2 to believe that the appellant is accepting the case of the respondent No.2 based on the same Will vis-à- vis the aforesaid plot. It cannot be lost sight of that the suit at Delhi in which the appellant is stated to have been proceeded ex parte is by another sister of the appellant and it is well nigh possible that the appellant did not appear in the said suit so as not to appear to be adversarial to her sister Mrs. Savitri Sharma and being content that the Will on the basis of which the respondent No.2 is claiming the said plot is LPA 776/2012 Page 9 of 11 challenged in the other courts and which challenge, if successful, would enure vis-à-vis the entire estate/properties.
20. We are further of the opinion that DDA, despite knowledge of the pendency of the various legal proceedings and challenge to the Will, ought not to have granted mutation, merely because the Court had directed it to re-look into the matter.
21. We are of the opinion that the order dated 1st February, 2012 of the DDA refusing mutation was correct in the facts and circumstances of the case and ought not to have been set aside by the learned Single Judge, particularly in light of what has emerged now and which facts were concealed by the respondent No.2. We also deprecate the conduct of the respondent No.2 of not impleading the other natural heirs as parties to the writ petition.
22. The counsel for the respondent No.2 confirms that possession of the plot has still not been delivered by the DDA to her.
23. We therefore allow this appeal and set aside the orders dated 3 rd August, 2012 and 28th September, 2012 passed by the learned Single Judge as also the order dated 22nd August, 2012 of DDA of mutation in name of respondent No.2 and restore the order dated 1st February, 2012 of the DDA refusing mutation in favour of respondent No.2. The parties shall however be entitled to in future apply in the pending civil proceedings for appropriate directions with respect to the said plot. We LPA 776/2012 Page 10 of 11 also impose costs of Rs.20,000/- on the respondent No.2 to be deposited in this Court within two weeks herefrom.
24. Though the appeal is disposed of, but to proceed further in the matter of false pleadings and affidavit by the respondent No.2, list the matter before this Court on 11th December, 2012.
Dasti.
CHIEF JUSTICE (RAJIV SAHAI ENDLAW) JUDGE NOVEMBER 29, 2012 Pk LPA 776/2012 Page 11 of 11