Delhi High Court - Orders
Pankaj Shah And Anr vs Delhi Development Authority And Ors on 12 August, 2021
Author: Najmi Waziri
Bench: Najmi Waziri
$~5(1)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 965/2018
PANKAJ SHAH AND ANR. .....Petitioners
Through: Mr Parag Tripathi, Senior Advocate
with Ms Sanam Tripathi, Ms Mishika
Bajpai and Ms Gunjan Singh,
Advocates.
versus
DELHI DEVELOPMENT AUTHORITY AND ORS.... Respondents
Through: Mr Arun Birbal and Mr Sanjay Singh,
Advocates for DDA.
Mr Bharat Gupta, Advocate for Mr
Shadan Farasat, ASC, GNCTD/R-5 &
R-6.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
ORDER
% 12.08.2021 W.P.(C) 965/2018, CM APPL. 4060/2018, CM APPL. 23874/2018 & CM APPL. 12881/2019 The hearing was conducted through video conferencing.
1. One Mr Jaggu Bhai Shah (petitioners' father) who was a member of the Sarai Juliana Cooperative House Building Society Ltd., was allotted a plot of land bearing number 241, Sukhdev Vihar, New Delhi-110025, admeasuring 294 sq. yds., on 21.08.1973 as per the approved layout plan. His place of residence was in New Delhi. He had nothing to do with Bombay (as the city was then called), when the said land was allotted to him. Much later on, he shifted to the Signature Not Verified Digitally signed By:KAMLESH KUMAR W.P.(C) 965/2018 Page 1 of 16 Signing Date:23.09.2021 16:07:50 United States of America (U.S.A) where he passed-away, on 22.05.2001. There was no dispute about his title and interest in the said land.
2. Mysteriously though, after his demise, three persons viz. Ramesh Shah, Sohan Shah and Priya Shah, by an application dated 17.08.2016 to DDA, sought mutation of the said land in their favour, claiming that their father Jaggu Bhai Shah had passed away in Bombay on 25.12.1990; a 'Death Certificate' purportedly issued by Greater Bombay Municipal Corporation, was adduced in support of the application.
3. About a month later -- on 12.09.2016, one Gurpreet Singh son of Sardar Jaswant Singh, sought mutation of the same property in his name, on the basis of a notarized agreement to sell, between Sardar Jaswant Singh and Mr Jaggu Bhai Shah. Gurpreet Singh claimed benefit of a Relinquishment Deed issued in his favour, by his sister one Tejinder Kaur. The said Agreement to Sell is not on record but the aforesaid Relinquishment Deed is Annexure-B (at pdf pgs. 361- 366 of the counter affidavit filed by R-6). DDA sent out notices to both the parties. DDA says that, the first applicants i.e. Ramesh Shah, Sohan Shah and Priya Shah visited the DDA's office and upon their representation, the aforesaid land was mutated in their favour, as the DDA found the applicants' documents in order.
4. As regards the application of Gurpreet Singh, when the original documents were sought from him, he stated that the same had been lost and that he had issued a public notice in this regard.
5. Mr Jaggu Bhai Shah breathed his last on 22.05.2001 in U.S.A. On Signature Not Verified Digitally signed By:KAMLESH KUMAR W.P.(C) 965/2018 Page 2 of 16 Signing Date:23.09.2021 16:07:50 21.10.2017 his sons (the petitioners) applied to DDA for mutation of the said land in their names. The application was supported by their father's Death Certificate (Annexure-P16) issued on 18.10.2002 by Minnesota Department of Health. It is reproduced hereunder:
6. In support of the application, petitioner no.1 also filed a copy of his Signature Not Verified Digitally signed By:KAMLESH KUMAR W.P.(C) 965/2018 Page 3 of 16 Signing Date:23.09.2021 16:07:50 Indian passport showing that he is the son of late Mr Jaggu Bhai Shah. Copy of the passport is reproduced hereunder:Signature Not Verified Digitally signed By:KAMLESH KUMAR W.P.(C) 965/2018 Page 4 of 16 Signing Date:23.09.2021 16:07:50
7. The factum of the earlier mutation was revealed to them. They were dismayed at the evident fraud perpetrated upon them and on DDA, by absolute strangers.
8. Thereafter started a saga of repeated representations to the DDA seeking cancellation of the fraudulent mutation done in favour of Ramesh Shah and Sohan Shah and Priya Shah. Notices in this petition have been issued to them, however, they stopped appearing in the matter.
9. The learned counsel for the DDA submits that by a reasoned decision on 07.02.2018, DDA cancelled the said fraudulent mutation and intimated the petitioners by a letter. DDA's reasons for the said cancellation as shared online during the court proceedings, are as under:Signature Not Verified Digitally signed By:KAMLESH KUMAR W.P.(C) 965/2018 Page 5 of 16 Signing Date:23.09.2021 16:07:50 Signature Not Verified Digitally signed By:KAMLESH KUMAR W.P.(C) 965/2018 Page 6 of 16
Signing Date:23.09.2021 16:07:50 Signature Not Verified Digitally signed By:KAMLESH KUMAR W.P.(C) 965/2018 Page 7 of 16 Signing Date:23.09.2021 16:07:50 Signature Not Verified Digitally signed By:KAMLESH KUMAR W.P.(C) 965/2018 Page 8 of 16 Signing Date:23.09.2021 16:07:50
10. Although the petitioners were informed that the mutation has been cancelled, the reasons were provided to the petitioners only after court's direction of 14.07.2021.
11. The order of the DDA dated 16.07.2021, complying with the aforesaid Court's directions has been shared during the court proceedings. The said order of DDA reads as under:Signature Not Verified Digitally signed By:KAMLESH KUMAR W.P.(C) 965/2018 Page 9 of 16 Signing Date:23.09.2021 16:07:50
12. Interestingly, the DDA in its affidavit dated 17.01.2019 filed by Mr Paras Nath, Deputy Director (CS), DDA has deposed, inter alia, as under:
"...IV. That before submitting the reply parawise, I respectfully seek liberty of this Hon'ble Court to submit as follows:-
(i). That plot No. 241 ad-measuring 294.8 square yards in Sarai Juliana Coop. House Building Society Ltd. at Sukhdev Vihar (hereinafter the subject matter plot) was sub-leased to Shri Jaggu Bhai Shah, son of Shri Bhimji Bhai on 21.08.1973. Occupancy certificate was applied on 17.05.78 and issued on 31.08.78 and that was within the stipulated time.
(ii). That Shri Jaggu Bhai Shah, son of Shri Bhimji Bhai is stated to have expired on 25.12.1990 and his wife Smt. Shakuntla Shah is stated to have expired on 03.09.97.
Thereafter, three persons namely Shri Ramesh Shah, son, Mrs. Priya Shah, daughter, and Shri Sohan Shah, son, applied for mutation vide letter dated 17.08.2016 and submitted documents for mutation along with original death certificates issued by the Municipal Corporation of Greater Bombay. From the documents submitted by them it appeared that there were three surviving legal heirs of the deceased allottee; two sons and one daughter and all the three persons had applied for mutation by submitting the necessary documents.
(iii). That in addition to above, one Shri Gurpreet Singh, son of late Sardar Naswant Singh also applied for mutation vide an application dated 12.09.2016 on the basis of an agreement to sell stated to have been executed by the subleasee in favour of Sardar Jaswant Singh, son of Dr. Bahdur Singh on 14.05.92. On the basis of the death certificate submitted with mutation papers by the alleged legal heirs of deceased sub-lessee, the documents submitted were treated as false and fabricated as the sub-
Signature Not Verified Digitally signed By:KAMLESH KUMAR W.P.(C) 965/2018 Page 10 of 16 Signing Date:23.09.2021 16:07:50lessee had expired on 25.12.90 i.e. prior to the execution of documents of sale of property. Shri Gurpreet Singh, son of late Sardar Jaswant Singh v/as called but he never attended the office of DDA and the letter of DDA issued to him on the address was not delivered and was returned by the postal authorities and the same remains in file. Shri Gurpreet Singh, son of late Sardar Jaswant Singh has stated that documents pertaining to the property have been lost and has given a publication in press.
(iv). That site inspection of the plot was conducted on 21.03.2017. It was reported that only the ground floor is constructed on the subject matter plot and that is an old construction. As per site inspection report, one Mrs. Priya Shah was available on the spot along with the caretaker Shadab Ali. There was nothing adverse in the site inspection report. Photographs of the building constructed over the plot with copy of PAN card of Ms. Priya Shah, photographs and copy of voter identity card of said Shadab Ali residing in the property are available in the file of DDA. There is no reference of Shri Gurpreet Singh in the site inspection report who had approached DDA for mutation in his favour on the basis of an alleged general power of attorney, agreement to sale and Will.
(v) That in view of the above facts and circumstances, claim of Shri Gurpreet Singh was ignored and mutation was allowed in the names of the alleged legal heirs namely Shri Ramesh Shah, son, Mrs. Priya Shah, daughter, and Shri Sohan Shah, son, on 17.07.2017.
(vi). That after mutation was carried out, petitioner no. 1 Shri Pankaj Shah approached DDA and made a claim over the property on the basis of a Will stated to have been executed in favour of Shri Rajiv J. Shah and Shri Pankaj J. Shah (petitioners) and it was claimed that that they are the actual and only legal heirs of the sub-lessee.
(v). That there is a substantial difference in the documents submitted by the two sides. As per the copy of death certificate submitted by the mutatee Shri Ramesh Shah, Mrs. Priya Shah and Shri Sohan Shah, Shri Jaggu Signature Not Verified Digitally signed By:KAMLESH KUMAR W.P.(C) 965/2018 Page 11 of 16 Signing Date:23.09.2021 16:07:50 Bhai Shah, son of Shri Bhimji Bhai had expired on 25.12.1990 and his wife Smt. Shakuntla Shah had expired on 03.09.1997. However, as per the documents submitted by Shri Pankaj Shah, Shri Jaggu Bhai Shah, son of Shri Bhimji Bhai expired on 22.05.2001. Shri Pankaj Shah has stated in the letter in para 2 that an affidavit was executed by Late Shri Jagu Bhai Shah sometime in 1973 which states Rajiv Shah and Pankaj Shah to be his dependant family members. This type of affidavit is not available in the record of DDA perhaps this may be available in society record. It is claimed that both Shri Rajiv Shah and Shri Pankaj Shah are residing abroad and thus some anti-social elements have taken advantage of their non-residence in India. It is also possible that Mrs. Priya Shah was available along with care taker Shadab Ali so there is a possibility that there was connivance between so called mutates and caretaker Shadab Ali.
(vi) That Shri Pankaj Shah had enclosed some coloured copies of documents of plots and requested to cancel the mutation. Thus a letter dated 02.01.2018 was issued to the mutatees namely Shri Ramesh Shah, Mrs. Priya Shah, and Shri Sohan Shah, with a copy to Shri Pankaj Shah. On that date, the application for conversion of the subject matter property in free-hold by the above named three persons was also pending. Mutation was earlier allowed on the basis of original death certificate and after proper identification. Site inspection was also got conducted before allowing the mutation. These persons were frequently appearing in the office of DDA. However, the letter dated 02.01.2018 was not served on them and was returned by the postal authorities and the same was placed in the relevant file.
(vii). That it is apparent from the documents / claim of Shri Pankaj Shah it was concluded that the original documents submitted by the mutatees were false and fabricated. Now the petitioners have filed the present writ Signature Not Verified Digitally signed By:KAMLESH KUMAR W.P.(C) 965/2018 Page 12 of 16 Signing Date:23.09.2021 16:07:50 petition.
(viii). That cancellation of mutation has already been approved by the competent authority of DDA but the letter of cancellation of mutation has not been issued in view of the ad-interim order dated 02.02.2018 passed by this Hon'ble Court.
V. That without prejudice to what is stated above, reply para wise is given below: -
1. Contents of para 1 are a matter of record being introductory para.
2. Contents of para 2 are admitted to the extent that plot no. 241 ad-measuring 294.8 square yards in in Sarai Juliana Co-operative House Building Socieity Ltd. at Sukhdev Vihar was sub-leased to Shri Jaggu Bhai Shah, son of Shri Bhimji Bhai on 21.08.1973. Rest of contents are denied for want of knowledge.
3. Contents of para 3 are admitted to the extent that respondent Nos. 2, 3 and 4 namely Shri Ramesh Shah, Mrs. Priya Shah and Shri Sohan Shah had applied for mutation of the subject matter property in their favour vide application dated 17.08.2016 and had claimed themselves as sons and daughter of the allottee and had submitted documents for mutation along with original death certificates issued by the Municipal Corporation of Greater Bombay. From the documents submitted by them, it appeared that there were three surviving legal heirs of the deceased; two sons and one daughter as declared in the documents and all the three persons had applied for mutation by submitting the documents.
4. Contents of para 4 are denied for want of knowledge.
5. Contents of para 5 are denied for want of knowledge except to the extent that respondent nos. 2, 3 and 4 Shri Ramesh Shah, Mrs. Priya Shah and Shri Sohan Shah had applied for mutation of the subject matter property vide the letter dated 17.08.2016 and had claimed themselves to be the sons and daughter of the allottee and had submitted certain documents for mutation alongwith Signature Not Verified Digitally signed By:KAMLESH KUMAR W.P.(C) 965/2018 Page 13 of 16 Signing Date:23.09.2021 16:07:50 original death certificate stated to have been issued by the Municipal Corporation of Greater Bombay.
6. Contents of para 6 are admitted to the extent that on the basis of documents submitted by respondent no. 2, 3 and 4, mutation of plot was approved by the competent authority and thereafter mutation letter was issued by the concerned Assistant Director, DDA.
7. In reply to contents of para 7, it is staed that DDA had allowed the mutation on the basis of documents submitted by respondent no. 2, 3 and 4 alongwith the original death certificates. Prior to mutation there was no claim by anyone else in the file and thus there was no reason not to rely on the documents submitted for mutation.
...
ix. Contents of sub-para 9(ix) are denied for want of knowledge.
xi. In reply to contents of sub-para 9(vi), it is stated that as per the version in the sub-para, Shri Jagu Bhai Shah died in USA on 22.05.2001 and petitioner was holding his Will but the beneficiaries of the Will never approached or informed DDA about the same nor applied for mutation. This negligence may have caused other persons make attempts to grab the property.
xii. Contents of sub-para 9(ix) are denied for want of knowledge..."
13.The learned Senior advocate for the petitioners submits that in 2009 the aforesaid property was mutated in the name of the petitioners, with South Delhi Municipal Corporation; they paid property tax South DMC in the year 2015; that since they did not suspect any wrongdoing at that time, there was no occasion for them to take any action against scheming imposters, unbeknownst to the them; that as law abiding citizens the petitioners did not want to be in arrears of any taxes.
Signature Not Verified Digitally signed By:KAMLESH KUMAR W.P.(C) 965/2018 Page 14 of 16 Signing Date:23.09.2021 16:07:5014.On a query put by the Court to the learned Senior Counsel for the petitioners as to who took care of the property for the duration that Shri Jaggu Bhai Shah was in U.S.A. till the time the petitioners' application for mutation was filed, the answer is that a caretaker had been appointed to secure the interests of Shri Jaggu Bhai Shah. However, this asserted rights of ownership in the aforesaid property on adverse possession. A suit filed by Shri Jaggu Bhai Shah was decreed in his favour. Thereafter, the measures apropos payment of municipal taxes, etc. were initiated.
15. DDA has now cancelled the erroneous mutation, which ex facie was on the basis of fraudulent documents. Albeit, in its afore-quoted affidavit DDA admits that the documents submitted by the persons, namely, Mr. Ramesh Shah and Mr. Sohan Shah and Mrs. Priya Shah were erroneous and wrongful. It did not investigate the matter any further. DDA rejected their application for conversion of the land to freehold and sent notices to them. No reply was received to the said notices. The noticees also stopped appearing before DDA. It will be open to DDA to take appropriate action against them regarding their applications dated 17.08.2016 and 12.09.2016.
16.R-6 has filed a counter affidavit to which a Relinquishment Deed dated 24.08.2016 has been annexed. This Relinquishment Deed would be the premised upon an agreement to sell between Shri Jaggu Bhai Shah and Sardar Jaswant Singh. The latter document purportedly dated 14.05.1992, alluding to rights in the property was never annexed to the Relinquishment Deed. Therefore, if the Agreement to Sell is not available, the Relinquishment Deed itself would be of no Signature Not Verified Digitally signed By:KAMLESH KUMAR W.P.(C) 965/2018 Page 15 of 16 Signing Date:23.09.2021 16:07:50 consequence. It is for the Government of NCT of Delhi to take a view in the matter. In any case, the same shall be kept in abeyance and shall not be given any effect contrary to the interests of the petitioners, as noted hereinabove.
17.The applicant Gurpreet Singh son of Sardar Jaswant Singh has taken no action to assert his right, title or interest in the aforesaid property, after his so-called publication of public notice of having lost the notarized Agreement to Sell. If that being the position, one wonders as to whether a person would leave his rights, title or interest in a valuable land in South Delhi, simply because the Agreement to Sell was lost.
18.The respondents i.e., Ramesh Shah and Sohan Shah and Mrs. Priya Shah (R-2, R-3 and R-4), despite having been served notices, have neither appeared in the Court nor they have filed any reply. They are accordingly proceeded ex parte.
19.In the circumstances, the DDA shall process the petitioner's request for mutation and a conveyance deed be duly executed within two weeks from receipt of the copy of this order.
20.List on 07.10.2021.
NAJMI WAZIRI, J AUGUST 12 2021/rd Signature Not Verified Digitally signed By:KAMLESH KUMAR W.P.(C) 965/2018 Page 16 of 16 Signing Date:23.09.2021 16:07:50