Rajasthan High Court - Jodhpur
Urban Improvement Trust, Bhilwara vs Balwant Dhobi on 7 March, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR.
...
S.B. Civil First Appeal No. 243 / 2016
Urban Improvement Trust, Bhilwara, Bhilwara through its
Secretary.
Versus
Balwant Dhobi S/o Shri Rajulal, by caste Dhobi, resident of C-287,
Alok Vidhyalaya Road, Near Park, Subhash Nagar, Bhilwara (Raj.)
_____________________________________________________
For Appellant(s) : Mr. Sandeep Shah
Mr. Shreyansh Mardia.
For Respondent(s) : Mr. A.K. Babel.
_____________________________________________________
HON'BLE MR. JUSTICE DEEPAK MAHESHWARI
Judgment
07/03/2017
BY THE COURT:
1. This appeal has been preferred by respondent appellant UIT, Bhilwara assailing the judgment and decree dated 4.5.2016 passed by learned Additional District Judge No.3, Bhilwara in Civil Original Suit No.240/2012 whereby learned trial Court decreed the suit for declaration and injunction in favor of the plaintiff- respondent to the effect that the plaintiff is entitled in the category of Scheduled Caste for allotment of residential house (2 of 13) [CFA-243/2016] No.F-52 situated in Panchawati Housing Scheme or any other house in lieu thereof and also that the cancellation of the allotment of the said house made in favour of plaintiff is declared null and void. It was also ordered to allot the said house or any other house to the plaintiff and to complete the proceedings of allotment.
2. Heard learned counsel for both the sides and perused the relevant record as also the impugned judgment.
3. Briefly stated, the facts giving rise to this appeal are that plaintiff Balwant Dhobi applied for allotment of house in Panchwati Housing Scheme on 27.11.2010 to UIT, Bhilwara vide application form Ex.1 in the category of Scheduled Caste. In column No.12 of the said application regarding the information whether applicant is a Government servant, "x" was marked but on the top of the application, categories of Scheduled Caste as also of Government employee were found ticked right. In the receipt Ex.2 issued in regard to the said application form, category of Scheduled Caste was mentioned. In the affidavit Ex.3, sworn in by the applicant in support of the application, his occupation was mentioned to be 'private service'. Certificate regarding the category of Scheduled Caste Ex.4 was also annexed with the application form, though no such certificate of being Government employee was annexed therewith. Vide letter dated 7.10.2011 Ex.6, UIT, Bhilwara informed the plaintiff regarding provisional allotment of House No.F-52 in his favor and at the same time, he was asked to furnish the certificate of being a Government employee. Plaintiff has stated in the plaint that he tried to contact concerned person (3 of 13) [CFA-243/2016] in the Office of the UIT, Bhilwara for submitting his objection that he has not applied in the category of Government employee, but he failed in his attempt. Thereafter, he gave a notice Ex.7 through his advocate on 21.10.2011 raising the same objection. When no action was taken thereon, he issued a reminder on 5.1.2012 Ex.10. Postal receipt Ex.11 and AD receipt Ex.12 have also been produced by the plaintiff in support of the said reminder. But he received a letter on 13.1.2012 informing the cancellation of the house allotted to him, which, according to him, was issued in the back date of 3.1.2012. UIT, Bhiwlara sent him cheque of Rs.20,000/- for refund of the application money vide letter dated 30.1.2012 Ex.13 but he did not encash the said cheque Ex.14.
4. Mentioning these facts, plaint was filed by plaintiff Balwant Dhobi before the learned trial Court.
5. Written statement was filed on behalf of the defendant appellant stating that both the categories of Scheduled Caste as well as Government employee were ticked right by the applicant in his application. Candidature of the plaintiff was considered and included in the lottery in the category of Government employee in which he succeeded and provisionally allotted the house. But despite notice, he did not furnish any certificate of being a Government employee for which reason the provisional allotment made in his favor was cancelled vide letter dated 03.1.2012. It was also stated that since plaintiff was not eligible in the category in which provisional allotment was made to him, so, he is not entitled for any declaratory relief.
(4 of 13) [CFA-243/2016]
6. On the basis of above pleadings, following issues were framed by learned trial Court :-
"1. Whether plaintiff applied in housing scheme of LIG in the category of SC/ST on 08.12.2010 vide application form No.3345 alongwith a Demand Draft of Rs.20,000/- upon which he was informed vide letter dated 7.10.2011 about allotment of House No.F-52, Panchawati and was also asked to furnish the certificate of being Government employee.
2. Whether plaintiff issued a letter dated 21.10.2011 and a remainder dated 5.1.2012 to the defendant and thereafter defendant, without following the concerned rules/conditions of allotment issued a letter in back date cancelling the said allotment which was received on 13.1.2012 by the plaintiff and thus, the action of the defendant is void and illegal.
3. Whether plaintiff is entitled for permanent injunction against defendant seeking allotment of House No.F/52 or any other house in Panchawati Housing Scheme and also to complete all the formalities in this regard.
4. Whether the plaintiff is not entitled for any declaratory relief as he was not entitled for the category in which House No.F-52 was provisionally allotted to him.
5. Whether no cause of action arose in favor of the plaintiff on the dates stated in para No.9 of the plaint.
6. Whether the proper Court Fee has not been paid by the plaintiff.
7. Relief."
(5 of 13) [CFA-243/2016]
7. During trial, plaintiff got himself examined as PW-1 and submitted the documents mentioned as above. Assistant Accounts Officer Mr. Om Prakash Chipa was examined by defendant as DW-1.
8. After hearing both the sides, learned trial Court proceeded to decide the suit in the manner aforesaid.
9. During the course of hearing of this appeal, some queries were made by Coordinate Bench of this Court on 18.1.2017 whereupon an application under Order 41 Rule 27 CPC came to be filed on behalf of the appellant and certain documents were prayed to be taken on record as additional evidence relating to the file of allotment of House No.F-52 to the plaintiff including the Office notes and various correspondence made thereupon.
10. Learned counsel for the respondent has vehemently opposed the application while relying upon the judgment rendered by Hon'ble Supreme Court in State of Gujarat & Anr. Vs. Mahendra Kumar Parshottambhai Desai (D) by LRs., reported in 2006 (3) RLW 2097 (SC) and also in case of Union of India Vs. Ibrahim Uddin & Anr., reported in (2012) 8 SCC 148.
11. Per contra, learned counsel for the appellant has referred to the provisions contained in sub-rule (b) of Rule 27 of Order 41 CPC. He has submitted that if the appellant Court requires any documents to be produced to enable it to pronounce judgment or for any other substantial cause, it may allow such document to be produced under the aforesaid provision of law. He has further submitted that in response to the queries made by this Court on (6 of 13) [CFA-243/2016] 18.1.2017, he has filed this application along with the relevant documents and his case falls under sub-rule (b) of Rule 27 of Order 41 CPC.
12. In view of the fact that the documents have been produced in reply to the queries made by this Court, the said application is allowed and the documents produced by the appellant are taken on record.
13. During arguments, learned counsel for the appellant has submitted that candidature of the plaintiff respondent was considered in the category of Government employee as the said category was ticked right by him on the application form but he failed to produce the certificate to this effect that he is a Government employee. Vide letter dated 7.10.2011 Ex.6, he was asked to furnish the said certificate but he failed then the appellant was left with no option but to cancel his candidature as also the provisional allotment made in his favour in the category of Government employee. He has also stated that information regarding cancellation of the provisional allotment was given to the plaintiff vide letter dated 3.1.2012. He thus, submitted that the judgment impugned is required to be quashed and set aside.
14. Per contra, learned counsel for the respondent has stated that the plaintiff never applied in the category of Government employee. On perusal of the documents tendered in evidence, it is clear that he applied in the category of scheduled caste only. That is the reason for which no certificate of being a Government employee was furnished by him. Appellant has wrongly included his name in the category of Government employee without there (7 of 13) [CFA-243/2016] being any basis for it. Thus, the cancellation of allotment of the house on the ground that certificate of being Government employee has not been furnished is perse illegal and without any just basis. Learned trial Court has taken this aspect into consideration. The judgment impugned is correct in facts and law and no interference is required in the said judgment.
15. In light of the facts stated in the plaint as well as written statement, it comes out that the crux of the matter is whether the candidature of the plaintiff was rightly rejected by the defendant while considering him to have applied in the category of Government employee. Findings on Issues No.1 to 4 basically depend on answer to this vital question. On perusal of the documentary evidence submitted by the plaintiff, it is crystal clear that in column 12 of the application form Ex.1, he crossed the column. The said column was as to whether the applicant is a Government employee or not. Further, receipt of the application form Ex.2 also mentions the category of the applicant as Scheduled Caste. Affidavit given in support of the application Ex.3 also finds mention that applicant Balwant Dhobi stated his occupation to be private service. All these documents go to show that he did not file his application in the category of Government employee. However, on the top of application form Ex.1, where categories were required to be ticked, both the categories of SC/ST and Government employee are found to have been ticked right. It is also pertinent to note that just below the information relating to category, a note has been appended that only one of the categories is to be selected and ticked right. But it appears on (8 of 13) [CFA-243/2016] the perusal of the file submitted by learned counsel for the appellant under the provisions of Order 41 Rule 27 CPC that no objection was raised after scrutiny of the application of plaintiff that he had ticked two categories right, in place of one. Letter dated 7.10.2011 Ex.6 issued by the defendant also does not find any mention of this objection. On perusal of the affidavit sworn in by plaintiff as PW-1, it comes out that he applied in the category of SC/ST. During cross examination made on the affidavit, PW-1 on being put the specific question to him that his candidature was included in the category of Government employee and he was allotted the house in the said category, he has stated that it is wrong, while expressing his surprise that the form was submitted in the category of SC/ST and how come that the allotment was made in the category of Government employee. More over, notice Ex.7 was also sent through advocate by the plaintiff to the appellant defendant on 21.10.2011 specifically highlighting the fact that he had applied for house in the category of Scheduled Caste and his application is not in the category of Government employee. In view of these facts, it is crystal clear that the applicant neither applied in the category of Government employee nor furnished any such document of being a Government employee. No evidence has come on record as to how and by whom category of Government employee was got ticked right. DW-1 Om Prakash Chhipa has categorically admitted during his cross examination that he did not have any personal knolwedge about the case of plaintiff as he was not posted in UIT, Bhilwara at that point of time. On the contrary, plaintiff has categorically (9 of 13) [CFA-243/2016] denied to have applied in the category of Government employee.
16. He has also stated in his cross examination that he read the complete list indicating the objections, which was placed on the notice board of UIT on 13.6.2011 but he did not find his name in the said list. It is pertinent to mention that even along with the application under Order 41 Rule 27 CPC, the said list has not been produced by the appellant wherein any such objections regarding plaintiff was mentioned. This also supports the contention of plaintiff that no such objection was ever raised and communicated by the defendant-appellant. In view of this, action of appellant taken for cancellation of allotment made in favour of plaintiff cannot be sustained.
17. Though, on perusal of the documents and the file submitted by the appellant under Order 41 Rule 27 CPC, it reveals that the name of the applicant was considered in the category of Government employee and he was provisionally allotted the house in the said category, yet looking to the facts stated above, the appellant has failed to explain how his name was included in the category of Government employee in place to that of Scheduled Caste. Even assuming for the arguments sake, that the plaintiff himself has ticked the category of Government employee also on top of the application form, it was incumbent upon the appellant to reject his candidature only after indicating this objection in the list published in this regard. But the appellant has utterly failed to prove that such step was taken by him.
18. In view of the discussions made above, it is apparently clear that without any fault on the part of the plaintiff respondent, his (10 of 13) [CFA-243/2016] name was considered in the category of Government employee by defendant-appellant and after provisionally allotting him House No.F-52 in Panchwati Housing Scheme, his allotment was cancelled without following the due process and on the ground that he has failed to submit the certificate of being Government employee, despite the fact that he never applied under that category. In view of above, findings arrived at by learned trial Court in regard to issue No.1 to 4 are found to be correct and no interference is required to be made in these findings.
19. Insofar as findings relating to Issue No.5 and 6, no argument has been advanced by learned counsel for the appellant before this Court. On perusal of the findings relating to these issues also, there appears no illegality in the conclusion arrived at by learned trial Court.
20. On the basis of the documents produced under Order 41 Rule 27 CPC, learned counsel for the appellant has stated that after cancellation of provisional allotment of House No.F-52, the said house has been included in the next lottery and has been allotted to one Nandram on being successful in the said lottery. He has stated that 'patta' has also been issued in favor of Nandram of the said hounse on 28.10.2015. Copy of the said 'patta' has also been produced. In view of this fact, learned counsel for the appellant submits that House No.F-52 situated in Panchwati Housing Scheme cannot now be allotted to the plaintiff respondent. In this regard, he has relied upon the judgment of Hon'ble Supreme Court in case of A. Nawab John & Ors. Vs. V.N. Subramaniyam, reported in (2012) 7 SCC 738.
(11 of 13) [CFA-243/2016]
21. Per contra, learned counsel for the respondent while referring to the provisions of Section 52 of the Transfer of Property Act, 1882 has relied upon the following judgments :-
1. Sanjay Verma Vs. Manik Roy & Ors., reported in AIR 2007 SC 1332;
2. Paras Mal & Anr. Vs. Ms. Sobhag Devi & Ors., reported in AIR 2007 RAJ. 73;
3. Kedarnath Lal (d) & Anr. Vs. Sheonarain & Ors., reported in AIR 1970 SC 1717 and ;
4. Sunil D. Chedda Vs. Suresh Bansilal Sethi & Ors., reported in AIR 1992 SC 1200.
22. I have carefully gone through the principles laid down in the judgments referred above, In the judgment rendered by Hon'ble Supreme Court in case of A. Nawab John (Supra), relied upon by learned counsel for the appellant, it has been observed in Para-18 as below :-
"18. It is settled legal position that the effect of Section 52 is not to render transfers effected during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The pendente lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the court.
"12. ... The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject- matter of the suit. The section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the court."
(Sanjay Verma v. Manik Roy, SCC p.612, para 12.)"
(12 of 13) [CFA-243/2016]
23. It is thus clear that the alienation made during the pendency of suit in no manner affects the right of the parties under any decree, which may be passed in the suit unless the property was alienated with the permission of the Court. It is not the case here that the said house No.F-52 was allotted/alienated with the permission of the Court.
24. Similar principle has been laid down by Hon'ble Supreme Court in case of Sanjay Verma (supra) that "... ... A transferee pendente lite is bound by the decree just as much as he was a party to the suit. The principle of lis pendens embodied in Section 52 of the T.P. Act being a principle of public policy, no question of good faith or bona fide arises. The principle underlying Section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the Court."
25. In case of Kedarnath Lal (supra), it has been observed by Hon'ble Supreme Court that principles of lis pendens apply even to the alienations made through Court sales.
26. In light of the principles laid down in the above referred judgments, this Court is of the view that the principle of lis pendens embodied in Section 52 of the Transfer of Property Act (13 of 13) [CFA-243/2016] protects the rights of plaintiff respondents. Further, it is also to be noted that learned trial Court has ordered for the allotment of House No.F-52, Panchwati Housing Scheme or any other house in lieu thereof. It is, thus, clear that if in any eventuality, house No.F-52 is not allotted to the plaintiff respondent, then, any other house in lieu thereof can be allotted to him. On this count also, no interference is required to be made in the judgment impugned.
27. Learned counsel for the appellant has also raised this objection that no ad interim order staying the transfer/allotment of plot in dispute was operating during pendency of the suit and hence, further allotment made in favor of Nandram was permissible. In reply to these submissions, learned counsel for the respondent has relied upon the judgment in case of Sunil D. Chedda (supra) wherein it was observed that even non- compliance of the condition by the plaintiff for ensuring operation of the interlocutory injunction order will not make any difference to the operation of rule of lis pendens. Hence, this Court is satisfied that even in absence of any interim order, the application of rule of lis pendens will remain in effect.
28. In view of the discussions made above, there is no force in the appeal preferred by the appellant and the same is dismissed accordingly.
(DEEPAK MAHESHWARI), J.
Arun/PS