Delhi High Court
Shri Ramesh Chand Aggarwal And Ors. vs Mcd And Ors. on 20 September, 2005
Equivalent citations: 127(2006)DLT91
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Sanjay Kishan Kaul, J.
1. The plaintiffs claim to be the joint owners of a freehold plot of land bearing number 41, Category III, Group A, admeasuring 401.34 square yards located in Kalindi Colony, Village Kilokri, New Delhi in pursuance to a registered sale deed dated 05.08.1986. The plaintiffs purchased the plot from one Smt.Laxmi Dewan, who in turn had purchased it from one Smt. Raj Kumar. Smt. Raj Kumar was the original allottee of the plot of land having purchased it from Swatantra Cooperative Housing Building Society Limited vide a sale letter dated 07.10.65.
2. The society had submitted a lay out plan for sanction to the Standing Committee of the MCD and the lay out was sanctioned by the Resolution number 11 dated 01.10.58. The total land area was 20 acres, out of which area allotted for residential plots was 13.1 acres, for roads was 4.4 acres and that covered for parks and open spaces was 1.2 acres. The sanctioned lay out plan is stated to have irregular boundaries with the result that there was no proper approach roads to certain plots. the Society negotiated with its neighbour Central Road Research Institute for exchange of land and such exchange of land having been agreed upon, the same was approved by the resolution of the MCD bearing no. 158, dated 08.05.1964. The Society is stated to have purchased additional area to the extent of 0.88 acres, out of which 0.46 acres was left out for the planning while 0.42 acres was acquired by the Delhi Administration. Thus once again a revised plan was submitted to the MCD for carving out nine additional plots. This proposal was, however, rejected by the MCD by resolution number 796 dated 10.10.68. A similar application made by the Society was again rejected by the resolution number 364, dated 30.08.1973.
3. A resolution dated 576 dated 21.08.1996 is, however, stated to have been passed revising the lay out plan and carving out two additional plots subject to certain terms and conditions specifying that set back shall be provided as per building bye-laws for the two plots, conditions imposed by earlier approved lay out plan shall be adhered to, sites for community facilities will be handed over by the society to the MCD free of cost and open areas shall be maintained as such. A subsequent representation for revision of lay out plan was rejected on 08.07.1991. The cause of action has arisen for filing of the present suit for prohibitory injunction, declaration and cancellation on account of the fact that the plaintiffs were informed by defendant no.1 MCD that the land covered by their plots stood vested in defendant by virtue of the letter dated 31.05.79 of the Society, which is reflected in Para 11 of the plaint as under:
The physical possession of Lawns/ open spaces sites bearing S. NO.1 to 5 as shown in Green colour in the approved/revised lay out Plan of Kalindi Colony of Swatantra Co-operative House Building Society Ltd. at ring Road, Opposite Kilokri, New Delhi, bearing drawing no. TP/AC/4014 has been handed over to MCD today i.e. 31.05.1979, free of cost as per details given below:-
Site No.1: Lawn-3 doors opening towards the lawn sites and some jhuggies as temporary. Site No.2: Vacant-Lawn with including opening.
Site No.3: Land-use undefined.
Site No.4 Land-use undefined, barbedwire fencing alone and all temporary mud jhuggies. Site No.5: Land use undefined "partly developed as land by the Society. Site No.6 : The possession of this site meant for school is not handed-over by the Society, as this site is under dispute-matter in court."
4. The claim of the plaintiffs is that they are the owners in pursuance to the registered sale deeds and the land having been transferred by the Society in their favor, the Society ceases to have any right to deal with the property or hand over possession to the MCD. In addition, it is stated that the letter of 31.05.79 does not define, particularize or identify the plaintiffs' plots and is general in nature. It is further submitted that the land can be acquired by the Government only in pursuance to proceedings under the Land Acquisition Act, 1894. The plaintiffs have raised two alternative pleas " resolution dated 28.01.76 did not concern them, and even if it concern them, at best the plaintiffs can be asked to keep the plots as open spaces. Since officers of the MCD came to take possession from the plaintiffs' servant at site on 18.01.2001, which is stated to have been prevented and again on 11.04.2001 where again it was prevented, the suit was filed on account of the threat of the officials to come to the site again on 23.04.2001 and plaintiffs came to be in uncontested possession from the beginning of the execution of the sale deed.
5. The plaintiffs claim that the reliance placed by the defendant on the judgment of the Apex Court in Civil Appeal No 4246/2001 Poonam v. MCD dated 27.07.2000 is misplaced as it does not apply to the case of the plaintiffs. It is stated that all that the Supreme Court had stated in the Judgment was that if the plot did not form part of the approved layout plan, there could be no sanction for construction. Thus it is stated that the issue of ownership was not in question. The plaintiffs had filed a suit before the Trial Court seeking a direction against the MCD to sanction the building plans for the plot, and by an interim order dated 11.12.1998 Learned Additional District Judge had allowed the application restraining the MCD from acting upon the letter dated 08.07.1991. However in FAO 49/1999 Learned Single Judge of this Court relying upon the judgment of the Apex Court in Poonam's case (supra) set aside the order of the Trial Court and a review filed was also dismissed. The plaintiffs along with the suit filed an IA 3669/2001 under Order 39 Rules 1 & 2 of Code of Civil Procedure (hereinafter referred to as the 'Code') and the by the order dated 23.04.2001, defendant no.1 herein MCD was restrained from dispossessing the plaintiffs from the suit property without due process of law. On the next date of hearing on 18.09.2001 the counsel for the MCD stated that the possession of the suit property was with the MCD and not with the plaintiffs and thus the question of dispossession did not arise. On 12.11.2001 it was observed that in view of the said statement of Learned counsel for the MCD, an ex-parte injunction cannot be allowed to continue. On 7.11.2001 it was directed that the parties shall maintain status quo, but the plaintiffs are restrained from raising any further consideration. This order was without prejudice to the rights and contentions of the MCD that it is in possession of the suit property.
6. The suit, as originally framed, was filed only against the sole defendant-MCD. However, two applications were filed " IA 10254/2001 by defendant no.2 and IA 8942/2001 by the Society-defendant no.3 " for impleadment. Defendant no.2 claimed to be the owner of the adjoining and contiguous property and thus claimed that he was directly affected by the injunction order and the stand taken by the MCD. These applications stand allowed by the order dated 02.11.2001, as explained by the order dated 05.09.2005 and written statements and replies have been filed even by these two defendants. Defendant no.2 also filed an application IA 10253/2001 under Order 39 Rule 4 of the Code for vacation of the interim orders. In view thereof, it is these two applications " IA 3669/2001 and IA 10253/2001 " on which arguments were heard. The suit has been contested and the application for injunction opposed by all the three defendants and the stand is more or less common. The defendants have disputed the claim of the plaintiffs of ownership.
7. The principal document to be considered is the original sale deed dated 07.10.1965, executed by the Society in favor of the predecessor in interest of the plaintiffs. There is no dispute that the sale deed was executed and duly registered. The sale deed records that the society vide its circular dated 21.07.1965 offered for sale to its members the plots on the clear understanding that the revised lay out plans of these plots had not been sanctioned by the MCD and the intending purchasers should be prepared to take the plots with the conditions that if the MCD rejected the revised lay out plans or passed it with modification, the intending purchaser would agree to take back the money after deduction of expenses. It is this clause which is the fulcrum of the arguments of the defendants as they submitted that in view of the undisputed position of the rejection of the revised lay out plan by the resolution dated 10.10.68 and again by the resolution dated 30.08.73, the only right of the predecessors in interest of the plaintiffs was for refund of the amount.
8. On the other hand, counsel for plaintiffs submits that the deed clearly states that subject to conditions of the circular dated 21.07.65 and in consideration of the amount of Rs 4531.16, the plot vested in the vendees. The very phraseology used is "to hold the same to the vendee as absolute owner"
9. The plaintiffs have also filed receipts in respect of water connection on the plot dated 07.05.96. Reliance is also placed on a ration card in respect of the said plot. The material document is for payment of house tax received by the MCD as late as of 2001 in pursuance to a house tax bill raised by the MCD. A copy of the assessment order of the Deputy Assessor and Collector of MCD dated 28.11.2001 has also been placed on record assessing the house tax in respect of the property in question. There is no explanation on the part of the learned counsel for the MCD in respect of these documents other than to state that the tax department of the MCD may be unaware of the lack of ownership on the part of the plaintiffs.
10. It is to be kept in mind that at this stage this Court is concerned only with the interim applications based on the settled principle of prima facie case, balance of convenience and irreparable loss and injury. As to what is to be fate of the plot would be ultimately decided in the suit.
11. In my considered view, there is no doubt that the initial allotment of the plot to the predecessor in interest of the plaintiffs who was the original allottee was on the expectation of an approval which the Society would be able to obtain after sanction of those plots from the MCD. This did not happen and those plans were rejected on 10.10.68. and 30.08.73. The sale deed originally executed by the Society dated 07.10.65 itself envisages this possibility and records that in such an eventuality the intending purchasers would be agreeable to take back the money after deduction of expenses entailed in respect of seeking approval of the lay out plan. The fact however remains that the amount was not refunded by the Society though there is a dispute as to whether this amount was sent and not accepted. Prima facie there can be no doubt that the plaintiffs can have no right at least to construct on the plot. The question, however, remains as to what has to be done with the plot pending consideration of the suit.
12. Learned counsel for the defendants placed a strong reliance on the judgment of the Apex Court in Poonam's case ( Supra). The subject matter of that decision was certain plots of the same society. These were the plots affected by there being no proper approach road which had resulted in certain land being exchanged as noted above. The exchange was however permitted by sanction of the revised lay out plan vide resolution dated 8.5.1964, but the building activity was still prohibited in respect of the plots forming subject matter of the dispute in that case. The circular dated 21.07.65 set out that the irregular plots had disappeared as a consequence of the exchange of land with the Central Road Research Institute, but some more regular plots were being carved out for which plans had to be submitted to the MCD. The plots were allotted in pursuance thereto on undertaking of the parties for conditional allotment. The Supreme Court was of the considered view that once the allotment of the plot was conditional and entered into an agreement with a condition, which condition was not satisfied, the allottee would have no right except to receive back the money paid to the Society. The counsel for the appellant therein in fact showed the conditional sale deeds in respect of the eleven new plots carved out and the non conditional agreements were pointed out where the plots were not which had been carved out. The Apex Court refused to give a direction to the MCD to create one more plot and since that plan did not form a part of the sanctioned lay out plan, no building activity could be permitted. This judgment has been discussed in detail because the defendants' contention was that the plaintiff is not entitled to any relief on account of this judgment.
13. Learned Counsel for the plaintiffs sought to rely upon the provisions of Section 54 of the Transfer of Property Act, 1982 (hereinafter referred as 'TP Act' ) which defines sale as under:
Sale: defined - 'sale' is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made "Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for Sale " A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.
14. Learned counsel submitted that the sale has to be absolute and that is what the sale deed records. Learned counsel relied upon the judgment of the Supreme Court in Vidhyadhar v. Mankikrao AIR 1999 Supreme Court 1441. It was held that in order to constitute a sale, there must be transfer of ownership from one person to another and the transferor cannot retain any part of his interest or right in that property, or-else, it would not be a sale. Even if the whole of the price is not paid, but the document is executed and registered, the sale would be complete as the payment of whole of the price at the time of execution of the sale deed is not sine qua non to complete the sale since the transfer of ownership has to be for "price paid or promised or part paid & part promised"
15. Learned counsel for the defendants, on the other hand, have referred to Section 26 of the TP Act, which is as under:
"Fulfilment of condition precedent" Where the terms of a transfer of property impose a condition to be fulfillled before a person can take an interest in the property, the condition shall be deemed to have been fulfillled if it has bee substantially complied with."
16. It was thus submitted that the transfer of property imposed a condition to be fulfillled which was the sanction of the plans before a person can take interest in the property.
17. In my considered view, in view of the observations of the Apex Court in Vidhyadhar v. Mankikrao ( Supra ), the sale had to be absolute. In fact the sale deed itself used the phraseology "to hold the same to the vendee as absolute owner" This phraseology was used as it was a mandatory requirement of a sale within the meaning of Section 54 of the TP Act. The sale deed did not have to take effect on a condition being fulfillled which was the sanction of the plan. A reading of the sale deed shows what was envisaged was that the sale was complete, but in case the plans were not sanctioned, the plaintiff could not make a grievance against the society and would be entitled to refund of the amount after taking expenses.
18. Insofar as the judgment in Poonam's case(Supra) is concerned, it has to be appreciated that the issue was one of sanction of building activity and carving out a plot. The conclusion reached by the Supreme Court was in view of there being no sanction of plan, no direction for carving out of the plot could be given nor could the building activity be sanctioned on the plot. This was so as the plot was obliterated on account of re-arrangement of the sanction plan. This is not so in the present case as the plot very much existed at site. Since it did not form a part of the sanction plan, building activity cannot be permitted to be carried on. However, the plaintiffs can be divested of the title (being the successor in interest) only in accordance with law. A sale deed has been executed by the Society in the instant case while that judgment refers to agreements.
19. A reading of the resolution dated 28.01.76 shows that it imposes certain conditions which are as under:
"i) Necessary set backs shall be provided as per building bye-laws and zoning regulations of the Master Plan for the plot no. C-35 and C-36 while getting the building plans sanctioned.
ii) All the conditions imposed by the Standing Committee of the MCD while approving the layout plan/services plan of this colony shall have to be adhered to.
iii) The open areas/pockets of vacant land after the adjustment of these two plots shall not be utilised for any other purposes and be kept as open spaces.
iv) Sites of various community facilities would be handed over by the Society to the Corporation free of cost at the time of the services of the colony are taken over."
20. Thus what was envisaged was that sites for various community facilities were to be handed over by the Society to the MCD but the open areas/pockets of vacant land were not to be utilised for any other purpose, but were to be kept as open spaces. This further re-inforces the conclusion that no construction could be done, but the plots had to be kept as open area. The original allottee nor any successor in interest including the plaintiffs were subsequently given money or any re-transfer deed was executed for vesting of the land in the society.
21. Insofar as the letter dated 31.05.1979 for "handing over/taking over certificate" is concerned, same talks about handing over the open spaces to the MCD. The plot in question is not mentioned as one of the sites and it cannot be construed at this stage, without adducing evidence, that there could have been a handing over of the site by the Society of the plot in question. This is more so when the title in the plot stood vested with the vendees and the vendor society had divested itself of the title.
22. It is no explanation of the MCD to state that its right hand did not know what its left hand was doing. There can be no occasion for assessment of property tax and acceptance of property tax in respect of plot in question if the MCD was in possession and the title did not vest with the plaintiffs. The report of the Local Commissioner dated 18.08.1998 before the Trial Court shows the presence of water meters, and the chowkidars of the plaintiff. I am thus of the prima facie view that the plaintiffs acquired a right in the plot in question in pursuance to the sale deed which still continues to vest in them. The recital in the sale deed was to absolve the Society of any liability to the purchaser in case of non sanction of plan other than to refund the sale consideration less expenses for applying for sanction. However in the absence of any sanction plan, there can be no building activity on the plot in question and the plot has to be kept as an open area. The photographs show and it is not disputed that there is a small structure constructed by the plaintiffs for residence of its chowkidars. There is also a wall in existence.
23. Insofar as the structure is concerned, the plaintiffs are directed to remove the same within a period of thirty days from the date of the order failing which it is open to MCD to demolish the structure. Insofar as the issue of wall is concerned, it is relevant to note that the definition of a building in the Delhi Municipal Corporation Act, 1957 in sub section 3 of section 2 is as under:
"building" means a house, out-house, stable, latrine, urinal, shed, hut, wall (other than a boundary wall) or any other structure, whether of masonry, bricks, wood, mud, metal or other material but does not include any portable shelter"
24. The definition clause thus itself excludes a boundary wall. The bye-laws are framed to regulate building activities. If the plaintiffs have made a boundary wall to protect the rights in their plot at least by an interim order it cannot be directed at this stage that the same should be demolished.
25. In view of the findings arrived at hereinabove whereby it cannot be said that the MCD was ever able to take legal possession of the property in question. It is directed that the possession of the plaintiffs including in respect of the wall shall not be distributed, but the plaintiffs shall remove the servant quarter or any other structure constructed on the plot within a period of thirty days from today failing which MCD can demolish the said structure. The plaintiffs shall not carry out any building activity on the plot in question and shall maintain the same as an open space. The plaintiffs are further restrained from transferring, alienating, encumbering or parting with possession of the plot.
26. The applications stand disposed of in the aforesaid terms.
27. Needless to say that views expressed in this order shall not affect the final adjudication of the suit.