Delhi District Court
Sh. Yogender Kumar Sharma vs Rca No. 01/13 Page 1 Of 12 Pages on 21 July, 2014
IN THE COURT OF SHRI ANKUR KUMAR: JSCC: ASCJ:
GUARDIAN JUDGE (NORTH EAST) KKD COURTS, DELHI.
RCA No. : 01/13
Date of Institution of Appeal : 26/07/2010
Date on which Reserved for Order : 04/07/2014
Date of Order : 21/07/2014
Case I.D. Number : 02402C0382852010
In the matter of :
1. Sh. Yogender Kumar Sharma
S/o Sh. Chintamani Sharma,
R/o 196/1, Sri Ram Nagar,
Shahdara,
Delhi.
2. Sh. Rajender Kumar Sharma
S/o Sh. Chintamani Sharma,
R/o 196/1, Sri Ram Nagar,
Shahdara,
Delhi.
3. Sh. Devender Kumar Sharma
S/o Sh. Chintamani Sharma,
R/o 196/1, Sri Ram Nagar,
Shahdara,
Delhi.
4. Sh. Chander Shekhar Sharma
S/o Sh. Chintamani Sharma,
R/o 196/1, Sri Ram Nagar,
Shahdara,
Delhi. ........ Appellants
VERSUS
RCA No. 01/13 Page 1 of 12 pages
Delhi Development Authority (DDA),
Through its Secretary,
Vikas Sadan, INA,
New Delhi. ........Respondent
O R D E R :-
1. This appeal has been filed against the judgment and decree dated 13.04.2010 passed by the court of Sh. Pulastya Pramachala, ld. CCJ/ARC, East MM, Delhi in suit bearing No. 374/07 titled as Sh. Chintamani Sharma & Ors. Vs. DDA by which the Ld. Trial Court has dismissed the suit of the plaintiff.
Initially the appeal was filed in the court of Sh. Ajay Gupta, ld. ASCJ (East) which was returned on 17.07.2010 due to bifurcation and it was refiled on 26.07.2010 and subsequently vide order dated 04.01.2013 the appeal was transferred to this court.
2. Brief facts leading to filing of this appeal are that father of the plaintiff (appellants herein) had filed a civil suit bearing no. 23/95 for restraining the defendants from taking forcible possession of the suit property and declaring that plaintiff is entitled to grant of perpetual lease in respect of the land measuring 22 bigha comprising part of Khasra No. 222/200 min., 172/38, 182/38 to 199/38 in Chiragah Shumali, G.T. Road (hereinafter referred to as suit property), the said suit came to be dismissed on 13.04.2010. The order dated 13.04.2010 has been challenged by filling the present appeal. It is the case of the appellant that the respondent DDA had leased out 99 bighas of land comprising in khasra No. 222/200 min. 172-38, 182-38 to 199-38 in Village Chirag Shumali, G.T. Road, Shahdara in 1949 to Delhi Peasants Co-operative Multi Purpose Society and who had sub RCA No. 01/13 Page 2 of 12 pages let the said land in 1949 to the father of the appellant and since then the father of the appellant have been in continuous possession and after his death the appellant herein. It is further averred that in the year 1963 Respondent / DDA tried to take forcible possession therefore the father of the appellant filed a civil suit bearing no. 496/63 against the DDA and the same was decreed in favour of the appellant vide order dated 21.12.1964 and vide judgment dated 20.07.1965 in RCA No. 52/1965 the appeal was dismissed. Again in the year 1968 the officials of DDA tried to take forcible possession of the land in question and again a civil suit bearing no. 270/1968 was filed and interim order was passed by the court. It was directed that status quo shall be maintained which was later on confirmed on 15.06.1968 with slight modifications. During the operation of the interim orders the DDA violated the interim orders and a contempt petition was filed on 03.08.1996. However, in order to avoid the contempt proceedings, matter was compromised and on 11.05.1978 it was decided that an area of 22 bigha would be given to the plaintiff on perpetual lease on payment of annual rent. An agreement was drafted on 30.11.1979 and was filed in the court on 10.01.1980. Thereafter, a lease deed was executed by the DDA in favour of the plaintiff, which was duly registered on 17.05.1983 whereby land measuring 22 bigha out of the total land was given to the plaintiff. It is further averred that a lease deed was for a perpetual period, however, somehow the initial lease deed was executed for 10 years.
3. Plaintiff before expiry of this lease deed vide letter dated 13.04.1989 requested to convert the lease into perpetual lease and the respondent herein vide letter dated 17.01.1990 informed the plaintiff RCA No. 01/13 Page 3 of 12 pages that for a period of 5 years the lease has been extended on the condition that the land would be resumed if it were required for planned development of Delhi. Thereafter, plaintiff vide various letters and representations asked the respondent to grant perpetual lease.
4. On 07.01.1995 respondent along with police officials came to seek possession of the suit property and accordingly the present suit was filed which came to be dismissed vide order dated 13.04.2010.
5. In the amended written statement, defendant has raised preliminary objections to the effect that notice under Section 53B DDA Act was not served upon them, hence the present suit is not maintainable in the present form. It is further averred that the suit has been filed with ulterior motives because the land measuring 98 bigha and 9 biswas was leased to Delhi Peasants' Cooperative Multi Purpose Society Ltd. land measuring 22 bigha was leased out to plaintiff for agricultural purpose only for a limited period of 10 years which lapsed on 13.01.1990. It is further averred that this lease was extended from 14.01.1990 to 13.01.1995 and thereafter, lease automatically stood determined and the renewal of this lease from 14.01.1990 to 13.01.1995 was made subject to condition mentioned in letter dt. 17.01.1990. It is further averred that after expiry of lease period, plaintiff was duly served with notice dt. 02.01.1995 and was also required to pay a sum of Rs.2461.76 on account of rent upto 13.01.1995. It is further averred that since the land is required for planned development, therefore, plaintiff is required to hand over its vacant physical possession but plaintiff has not handed over its possession despite determination of lease and without having any right RCA No. 01/13 Page 4 of 12 pages over the same. In the reply on merits, defendant denied that the lease was on perpetual basis or plaintiff was ever assured that his lease will be renewed at each interval of 10 years. Defendant denied all allegations as well as claim made by the plaintiff.
6. Replication to the written statement was filed in which the plaintiffs have denied the contents of written statement and reiterated the contents of plaint.
7. Vide order dated 05.10.2007 issues were framed by the Ld. Trial Court which are as under:-
1. Whether the present suit is barred in view of the provisions of section 53Bs of DDA Act? OPD
2. Whether the lease deed executed in favour of the plaintiff on 04.05.1983 which were subsequently extended vide letter dt. 17.01.1990 stands determined? OPD
3. Whether the plaintiff is entitled to a decree of declaration that he is entitled to a perpetual lease deed in respect of suit property? OPP
4. Whether the relief of declaration is barred by law of limitation? OPD
5. Whether the plaintiff is entitled to decree of mandatory injunction as prayed for in the plaint? OPP
6. Whether the plaintiff is entitled to decree of permanent injunction as prayed for in the plaint? OPP
7. Relief.
8. In support of his case plaintiff examined as many as 7 witnesses. Sh. Devender Kumar Sharma as PW-1; Sh. Rajender Kumar Sharma as PW-2; Sh. Yogender Kumar Sharma as PW-3; Sh.
Mehar Chand, Dealing Assistant in LSB (I), DDA as PW-4; Sh. Kulbir Singh, Patwari in Nazul Branch as PW-5; Sh. Raj Kumar, Assistant, Meeting Cell, DDA as Ex.PW-6; Sh. Satya Pal Pahal, Kanoongo, DDA RCA No. 01/13 Page 5 of 12 pages as PW-7. On the other hand defendant examined one witness i.e. PW-7 Sh. Satya Pal Pahal filed his affidavit in support of defendant i.e. DDA and was again examined as DW-1/1 and DE was closed vide order dated 14.12.2009.
9. After considering the material on record, Ld. Trial Court by the impugned judgment dt. 13.04.2010 dismissed the suit of the plaintiff.
10. Before this Court, Sh. Rishi Diwan, Ld. Counsel for the appellant has argued that the Ld. Trial Court failed to appreciate the pleadings, evidence and law submitted by the appellant. He submitted that the ld. Trial Court failed to take into account Ex.PW7/1 which is an order dated 24.08.1995 passed by the Vice Chairman, DDA apprising further extension. He has further argued that the ground rent / lease money has been deposited uptill date. Therefore, the lease could not be determined and the findings of issue no. 2 is perverse. He has further argued that onus to prove this issue was upon the defendant which they failed to discharge. Hence, the issue ought to have been decided in favour of the plaintiff. With respect to issue no. 3 he has submitted that plaintiff is in continuous possession since 1949. He has submitted that vide Ex.PW1/6 an out of court settlement was worked out and according to the said settlement the suit land was to be given on perpetual lease. He has relied upon Policy Resolution and Nazul Agreement to say that his lease should have been converted into a perpetual lease. These resolutions are Ex.PW6/1 to Ex.PW6/11. He has also argued that a condition was imposed by the DDA vide letter 17.01.1990 which is Ex.PW1/15 that they can resume the suit land if required by them for the planned development. He submits that this is RCA No. 01/13 Page 6 of 12 pages a unilateral condition which could not have been imposed while extending the lease for a period of 5 years in 1990. In so far as issue no. 4 is concerned he submits that the relief of declaration is not bared by the law of limitation as the cause of action arose in the year 1995. He, therefore, submits that the order dated 13.04.2010 should be set aside. On the other hand, Ms. Shobhana Takiar, Ld. Counsel for respondent has argued that the cause of action for seeking declaration of perpetual lease has arisen in the year 1983 when for the first time a lease for 10 years was registered. So far as issue no. 2 is concerned she has submitted that no assurance was given for execution of perpetual lease after 13.01.1995 and the lease stood determined, the provisions of transfer of property act would not be applicable as the lease was granted under the Governments Grant Act, 1985. She has also submitted that DW-1 in his cross-examination had stated that a letter dated 02.01.1995 terminating the lease was pasted upon the suit property. She further submits that resolutions cannot be binding until the same has been communicated to the defendant. In so far as issue no. 3 is concerned she submits that appellant / his father having accepted the lease deed dated 14.05.1983 he is now estopped from claiming that he is entitled to perpetual lease. She submits that the parity which is being claimed by the appellant in respect of the M/s. DLF Case is not applicable as there is no pleading to this effect and secondly the facts of the DLF Case was quiet different from the facts of the present case.
11. I have heard the Ld. Counsel for the parties and perused the entire material on record.
12. There is no challenge to the findings of issue no. 1 which RCA No. 01/13 Page 7 of 12 pages was decided against the defendant. In so far as issue no. 2 is concerned the ld. Trial Court has held that the defendant have failed to place on record the copy of notice dated 02.01.1995 and even the factum of pasting has been not prove. This finding of fact has also not been challenged by the defendant. It has been further held that the lease stood determined by efflux of time. Ld. counsel for the plaintiff has argued that Ex.PW7/1 has not been taken into consideration by the ld. Trial Court. Ex.PW7/1 is copy of the note sheet whereby the representation of the appellant was decided by the official of respondent. The operative portion of the note sheet is "keeping in view the history of the case and the present condition, it is suggested that the license of the land under reference may be extended for a period of 5 years from 14.01.1995 to 14.01.2000". First of all, this is of no help to the appellant as it is only a suggestion by the officer who had decided the representation of the appellant. Secondly, it is not clear as to what happened subsequently, whether any final decision was taken pursuant to this or not and whether the same was communicated or not to the appellant.
The Hon'ble Supreme Court in Sethi Auto Service Station Vs. DDA 2009 (1) SCC 180 has held that "the internal notings does not culminate into an executable order effecting the rights of the parties. It is only when it reaches the final decision making authority in the department, gets its approval and the final order communicated to the person concerned".
The Hon'ble Supreme Court in UOI Vs. Vartak Labour RCA No. 01/13 Page 8 of 12 pages Union 2011 (4) SCC 200 has held that "notings in departmental files do not have the sanction of law, creating legally enforceable right". From the above judgments it is clear that the notings do not create any right in favour of party relying upon the notings. Thus, the reliance on Ex.PW7/1 is misconceived.
13. It is also not disputed that the lease which is Ex.PW1/13 was granted under the Governments Grants Act, 1985 as per section 2 and 3 of this Act the provisions of Transfer of Property Act are not applicable. The Hon'ble Supreme Court in SVM Mohd. Jamulidin Brothers Vs. Government of T.N. 1997 3 SCC 466 while interpreting section 2 and 3 has held that the provisions of Transfer of Property Act are not applicable to land which has been leased out under the Governments Grants Act, 1985. The Hon'ble Supreme Court in UOI Vs. Dinshaw Shapeorji Anksear 2014 (6) Scale 662 has held that "the Government has unfettered discretion and can impose any condition, limitation or restriction in its grants and the rights, privileges and obligation of the grants would be regulated only in according to term of grant itself though they may be inconsistent with provisions of any statute or common law".
In view of the law down by the Hon'ble Supreme Court, the lease stood determined by efflux of time.
14. With respect to issue no. 3 it has been argued that the plaintiff is in possession since 1945 and by virtue of Ex.PW1/6 which is a compromise effected between the appellant's father and the respondent it was agreed that the land would be given to him on patta.
RCA No. 01/13 Page 9 of 12 pages He has further argued on the word "patta" there is no prefix or suffix. Therefore, it was agreed that perpetual lease would be granted. He has relied upon Ex.PW6/1 to Ex.PW6/11 which are resolutions. As I have already stated above that the resolutions do not have any binding nature until they are approved by a competent authority and communicated to the concerned party. Therefore, these resolutions are of no help to the appellant. The reliance upon the Nazul Agreement and Rules made is also of no help as neither it has been pleaded nor the agreement Ex.PW1/13 was entered into under the Nazul Rules. There are no pleadings to this effect, the plaintiff at the stage of argument cannot bring up this issue. The ld. Trial Court has rightly held that in the absence of pleadings the defendant would be prejudice. Lastly, it has been argued that by virtue of Ex.PW1/15 the defendant could not have incorporated a unilateral term which was not contained in the original agreement. It is an undisputed fact by virtue of Ex.PW1/13 the appellant herein was granted lease of the land for a period of 10 years. There is yet another reason to come to the conclusion that appellant was granted a lease for 10 years as in the Ex.PW1/7, which is a compromise recorded before the court of Sh. P.S. Sidhu on 14.01.1980 as per the clause 2 of the said agreement, it was clear that the period of lease for the land would be 10 years. It is also undisputed that for another period of 5 years the lease was extended. If the appellant herein had any grievance with regard to the condition contained in Ex.PW1/15 then he should not have enjoyed the period of 5 years by way of which the lease was extended, he accepted the extension of lease for a period of 5 years. The extension of lease for a period of 5 years by virtue of Ex.PW1/15 has not been RCA No. 01/13 Page 10 of 12 pages challenged. Therefore, now he cannot come and say that the condition in letter Ex.PW1/15 is beyond the original lease. It has also to be kept in mind that the lease was under the Government Grant Act, 1895 which impound unfettered power on the government for imposing any condition or limitation.
15. Unilateral deposit of annual rent by the appellant does not extend the lease. The Hon'ble Supreme Court in Murlidhar Jalan Vs. State of Maharashtra 1997 (5) SCC 480 has held that "by acceptance of rent the title of the government is not defeated, particularly when the lease stood expired".
The reliance of the appellant on the case of DLF's case is also, misconceived as discrimination has also not been pleaded by the appellant, therefore, at this stage it cannot be stated that appellant were discriminated by the respondent.
16. Issue no. 4 is with respect to the limitation. Appellant seeks relief of declaration to the effect that he is entitled to grant of perpetual lease. The initial lease which was granted to the appellant was in the year 1983 and in that year itself the appellant came to know that the lease is for a period of 10 years. As per Article 58 of the Limitation Act the period of limitation for seeking declaration starts from the date when the right first acrues and the period is 3 years. Appellant was conscious of the fact that he has not been granted perpetual lease. Therefore, the cause of action in favour of the appellant arose in the year 1983 itself and the period of limitation expired in the year 1986. The present suit came to be filed in the year 1995. Accordingly, the present suit is beyond the period of limitation and time bared.
RCA No. 01/13 Page 11 of 12 pages In view of above discussions, there is no illegality and perversity in the judgment of the ld. Trial Court dt. 13.04.2010 which deserves any kind of interference. Hence, the appeal has no merit and is accordingly dismissed.
Trial Court Record be sent back along with the copy of the order.
Appeal file be consigned to the Record Room, after due compliance.
Announced in the open court (ANKUR JAIN)
on this 21st day of July, 2014 JSCC/ASCJ/G.Judge (NE)
KKD Courts, Delhi.
RCA No. 01/13 Page 12 of 12 pages