Delhi High Court
Delhi Development Authortiy vs Ram Prakash Gupta on 19 November, 2018
Equivalent citations: AIRONLINE 2018 DEL 2833
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 19th November, 2018
+ CM(M) 1179/2018 & CM APPL. 40270/2018
DELHI DEVELOPMENT AUTHORTIY ..... Petitioner
Through: Mr. Naveen Kumar Raheja, Adv.
versus
RAM PRAKASH GUPTA ..... Respondent
Through: Mr.H.K. Nahata, Adv.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
% J U D G M E N T (ORAL)
1. On 16th March, 1981, the respondent-plaintiff applied for
allotment of plot under the Rohini Residential Scheme. At the time of
applying, he had declared his name as "Ram Ashrey Dayal".
Thereafter, he changed his name to "Ram Prakash Gupta" purportedly
without informing the petitioner (the DDA).
2. On 5th January, 2004, a draw of lots took place, in which the
respondent-plaintiff was allotted MIG Plot No. 545, in Pocket 4,
Block No.C, Sector 28, Rohini Phase IV. A demand letter was issued,
to the respondent-plaintiff, dated 19-27th January, 2004, requiring him
to deposit ₹ 3,71,520/-.
3. On 15th March, 2010, the DDA wrote to the respondent-
CM(M) 1179/2018 Page 1 of 14
plaintiff, informing him that his allotment had been cancelled, as he
had applied under a fictitious name and he was in possession of an
alternate plot.
4. This prompted the respondent-plaintiff to file Suit No. 69/2013,
which was renumbered as 58701/2016 (the decree bears Suit No.
58384/2016), seeking mandatory and permanent injunction in respect
of allotment of Plot No. 545. He also prayed that the possession of the
plot be handed over to the respondent-plaintiff. Injunction, against
allotment of the said plot to anyone else, was also prayed.
5. The aforesaid Suit No.69/2013 came to be decided by the
learned Senior Civil Judge Rent Controller vide judgment dated 2nd
June, 2016. The learned Senior Civil Judge framed the following
issues:
"1. Whether the plaintiff is entitled to the possession of
MIG Plot No.545, Pocket-IV, Block No. C, Sector-28, Rohini,
measuring 60 sq. meter Phase-IV, or to any alternative of plot
of similar size and similar area and locality? - OPP.
2. Whether the plaintiff is entitled to the decree of
injunction? OPP.
3. Whether the suit is not maintainable? OPP.
4. Whether suit is hit by Section 53-B of Act ? OPD.
5. Whether the plaintiff has concealed any material fact?
OPD.
6. Whether the suit is not correctly valued for the
purposes of court fees and jurisdiction? OPD).
7. Relief."
CM(M) 1179/2018 Page 2 of 14
6. The following relief was finally granted, by the said
judgment, to the respondent-plaintiff, in para 22 thereof:
"The suit, of the plaintiff is partly allowed. Plaintiff is held
entitled for decree of mandatory injunction. Defendant is
directed to allot alternative plot of similar size in similar area
and similar locality to plaintiff in lieu of suit property i.e.
MIG Plot No.545, Pocket-IV, Block No.C, Sector-28,
measuring 60 sq. meter, Rohini, Phase-IV, under Rohini
Residential Scheme, 1981 of DDA as the same has already
been allotted to some other person. No order as to cost.
Decree sheet be prepared accordingly. File be consigned to
record room."
7. The aforementioned judgment was followed by a decree, which
reads thus:
"Claim: Suit for mandatory injunction with consequential
relief of injunction.
Plaint presented on: 18/05/2012.
The case is coming for disposal before me today and it
is ordered that the suit of the plaintiff is partly allowed.
Plaintiff is entitled for decree of mandatory injunction.
Defendant is directed to allot alternative plot of similar size in
similar area and similar locality to plaintiff in lieu of suit
property i.e. MIG Plot No. 545, Pocket-IV, Block No.C,
Sector-28, measuring 60 sq. meter, Rohini Phase-IV, under
Rohini Residential Scheme, 1981 of DDA as the same has
already been allotted to some other person. No order as to
costs.
Costs of the Suit
S Plaintiff Rupees S. Defendant Rupees
No. No.
1. Stamp for plaint NIL 1. Nil
2. Stamp for power NIL 2. Nil
3. Stamp for Exhibits. NIL 3. Nil
4. Pleader's fee on ₹ NIL 4. Nil
CM(M) 1179/2018 Page 3 of 14
5. Subsistence for NIL 5. Nil
Witness
6. Commissioner's fee NIL 6. Nil
7. Service of process NIL 7. Nil
8. Miscellaneous NIL Nil
Total NIL Total Nil
Given under my hand and the seal of this Court on this 2nd
Day of June, 2016. "
8. It is not in dispute that the aforementioned judgment and decree
was never challenged and has, accordingly, attained finality.
9. The respondent-plaintiff filed Execution Petition 351/2017,
seeking execution of the decree.
10. Opposing the said execution petition, the DDA sought to
contend that the allotment of alternative plot could be made only in
compliance with its rules and regulations, including payment of land
costing and development charges. It was further submitted that
approval, regarding the execution, was pending with the Finance
Department of the DDA. The DDA submitted that it was ready to allot
an alternate plot to the respondent-plaintiff, subject, however, to the
financial aspects, regarding which the final decision rested with the
Lieutenant Governor.
11. Vide order dated 11th May, 2018, the above submissions of the
DDA were rejected by the learned Senior Civil Judge. It was held, in
the said order, that Order XXI of the Code of Civil Procedure, 1908,
CM(M) 1179/2018 Page 4 of 14
did not distinguish between execution of a decree by a government
body or by a private person. It was also noted that the decree did not
contemplate payment of any additional amount by the respondent-
plaintiff, and that the judgment and decree had attained finality,
having remained unchallenged.
12. Noting the fact that wilful disobedience of a decree would
expose the person guilty thereof to detention in civil prison as well as
attachment of property. Under Order 21 Rule 32 of the CPC, the
learned Senior Civil Judge, nevertheless chose, for the time being, to
direct issuance of warrants of attachment of the immovable property
of the office of the Dy. Director of the DDA. The matter was directed
to be placed before the learned ACJ for appointment of a bailiff on
19th May, 2018.
13. It appears that, thereafter, on 16th June, 2018, the DDA issued
an allotment letter, to the respondent-plaintiff, allotting the
respondent-plaintiff an alternative plot, subject, however, to the
payment of various additional amounts.
14. The aforementioned order, dated 11th May, 2018, of the learned
Senior Civil Judge, was challenged, by the DDA, by way of MCA
13/2018, which appeal was dismissed, by the learned Additional
District Judge (hereinafter referred to as "ADJ"), for want of
jurisdiction, vide order dated 10th August, 2018.
CM(M) 1179/2018 Page 5 of 14
15. It was noted, therein, that the order, dated 11 th May, 2018, was
passed under Order XXI Rule 32 of the CPC, which provided for the
mode of execution of a decree and that the appeal challenged the order
issuing warrants of attachment itself.
16. It was conceded, by the DDA, before the learned ADJ, that the
order dated 11th May, 2018 was not appealable under Order XLIII of
the CPC; however, it was sought to be submitted, nevertheless, that it
was appealable under Order XXI Rule 58 thereof. Holding that the
Order XXI Rule 58 of the CPC. dealt with objections after attachment,
and not adjudication prior to attachment, the learned ADJ held that the
order issuing warrants of attachment was not appealable and,
therefore, dismissed the Appeal.
17. The DDA, thereafter, moved an application under Order XXI
Rule 26 of CPC. It was sought to be averred, therein, that, as, on 6th
June, 2018, an alternate plot namely plot No. 102, Pocket C-2, Sector-
28, Rohini which also measured 60 sq. meters, had been allotted to the
respondent-plaintiff, and a copy thereof had been handed over to the
bailiff on the spot, the order dated 11th May, 2018 was duly complied
with, and could not be treated as unexecuted.
18. The application sought to fault the respondent-plaintiff in
failing to comply with the directions contained in the said letter of
demand. It was further sought to be contended that, unless and until
the policy of the Government was declared null and void or modified,
CM(M) 1179/2018 Page 6 of 14
it was beyond the jurisdiction of the court to direct any further action
against the DDA, as, else, it would open a Pandora's box.
19. In these circumstances, the application sought to contend that
the order issuing warrants of attachment deserved to be recalled and
the execution stayed.
20. Holding that the judgment and decree dated 2nd June, 2016, as
passed by the learned Senior Civil Judge, did not contemplate
payment of any additional amount, by the respondent-plaintiff, for
allotment of the alternate plot, the learned Senior Civil Judge held that
there was clear disobedience, by the DDA, with the directions
contained in the said judgment and decree. It was held that, in the
circumstances, the issuance of the allotment letter, dated 6 th June,
2018, could not be treated as complying with the said judgment and
decree. No occasion, therefore, was found to exist, to interfere with
the order issuing warrants of attachment.
21. The DDA has approached this Court, by means of the present
petition, under Article 227 of the Constitution of India, challenging
the order, dated 14th September, 2018, passed by the learned Senior
Civil Judge.
22. Mr. Raheja, appearing for the DDA, has drawn my attention to
various provisions of the C.P.C., namely, Order XXVI Rule 6 C.P.C.,
Section 33, Section 47 (particularly explanation B thereto) as well as
to Rule 2(l) and Rule 6 of the Delhi Development Authority (Disposal
CM(M) 1179/2018 Page 7 of 14
of Developed Nazul Land) Rules, 1981 (hereinafter referred to as "the
DDA Rules").
23. Mr. Raheja admits the fact that the decree did not specifically
require any additional payment to be made by the respondent-plaintiff,
as a condition for grant of alternate plot to him. He also admits that the
judgment and decree, dated 2nd June, 2016, of the learned Senior Civil
Judge, were never challenged and had attained finality. He, however,
seeks to piggyback on para 17 of the said judgment and decree of the
learned Senior Civil Judge, which reads thus:
"17. Since the suit property has already been allotted to
some other persons, hence as per the rules of DDA and on the
basis of above discussion, plaintiff is entitled for possession
of alternative plot of similar size, similar area and locality
from DDA. Both the issues are accordingly, decided in favour
of plaintiff and against defendant."
The submission of learned counsel is that the use of the words "as per
the rules of the DDA", as employed in the afore-extracted para 17 of
the judgment of the learned Senior Civil Judge, entitled him to ask for
additional payments, from the respondent-plaintiff. However, he
submits that there was no concession on the part of the DDA, recorded
in the judgment of the learned Senior Civil Judge, to the effect that the
alternate plot would be allotted at the same rate.
24. Mr. Raheja has also sought to draw my attention to various
provisions of the DDA Rules, as well as to various notifications and
instructions issued thereon, which dealt with the "pre-determined
CM(M) 1179/2018 Page 8 of 14
rates", which would be applicable for allotment of plot of area of 60
sq. meters, which, in his submission, increase year by year.
25. His submission is that it is not possible to allot an alternate plot
to the respondent-plaintiff, unless and until the said payment is made
by him.
26. In my view, the submissions of learned counsel for the
petitioner are totally devoid of merit and, in fact, the respondent-
plaintiff has been needlessly dragged into an avoidable litigation,
owing solely to the caprice of the DDA. There is no dispute about the
fact that the judgment and decree, as passed by the learned Senior
Civil Judge, which was never challenged, directed allotment of
alternate plot to the respondent-plaintiff, without adding any caveat,
thereto, regarding payment of any additional amount by him.
27. Insofar as para 17 of the said judgment and decree, on which
learned counsel for the petitioner seeks to place reliance, is concerned,
I am unable to subscribe to the submission that the said para would
entitle the petitioner to ask for any additional payment from the
respondent-plaintiff.
28. Quite clearly, the use of the word "as per the rules of the DDA"
in the said para only refers to the fact that the Rules of the DDA
permitted allotment of an alternate plot. That does not mean that,
having capriciously withheld, from the respondent-plaintiff, the plot to
which he was allotted, having allotted the said plot to someone else
and, thereafter, having dragged the respondent-plaintiff to needless
CM(M) 1179/2018 Page 9 of 14
litigation to secure enforcement of the judgment and decree which
stood passed in his favour, the petitioner could burden him with
additional payments for compliance with the decree.
29. Learned counsel for the petitioner sought to emphasize that it
was not permissible for the scope of a decree to exceed the scope of
the judgment itself. There can be no cavil with such a proposition.
However, I am of the view that no such infirmity exists in the decree
passed in the present case.
30. Learned counsel for the petitioner sought to rely on the
judgment of the Kerala High Court in Kunju Kunju Chandran v.
Velouthakunju Raghavan, AIR 2005 Ker 317, and drew my attention
to the judgment of the Supreme Court in Bhavan Vaja v. Solanki
Hanuji Khodaji Mansang, AIR 1972 SC 1371 which was relied
therein.
31. The law, as postulated in the said passage, is to the effect that,
while the executing court cannot go behind the decree, it had a duty to
find out the true effect of the decree, for which purpose it was required
to take into consideration the pleadings and proceedings leading upto
the decree. The decision also stated, therein, that the jurisdiction of
the executing court did not begin and end merely by looking at the
decree as it was finally drafted.
32. I do not see how this judgment comes to the aid of the
petitioner, in view of my finding, hereinabove, that there was no
CM(M) 1179/2018 Page 10 of 14
discrepancy between the judgment and the decree, as they came to be
passed by the learned Senior Civil Judge.
33. Learned counsel for the petitioner also sought to rely on the
prayers contained in the plaint and pleadings of the respondent-
plaintiff which read thus:
"A-(i) Pass a decree of mandatory injunction in favour of the
plaintiff and against the defendant, thereby, directly the
defendant/DDA to hand over possession of the suit property
bearing MIG Plot No.545, Pocket-IV, Block No. C, Sector-
28, measuring 60 sq. meters, in Rohini, Phase-IV, Delhi in
Rohini Phase IV Residential scheme in the name of Plaintiff
Ram Prakash Gupta; or alternatively,
A-(ii) Pass a decree of mandatory injunction in favour of the
plaintiff and against the defendant, thereby, directly the
defendant/DDA to allot and hand over the possession of any
other plot of similar size in similar area and locality with
similar facilities as that of suit property, in case suit property
has already been allotted by the defendant to any third person.
(B) Pass a decree of Permanent Injunction in favour of the
plaintiff and against the defendant, thereby restraining the
defendant, their agents, employees, associates, workers,
official/officials and the persons working on their behalf from
further allotment of the suit property to any other third person;
the defendants be further restrained from interfering into the
peaceful use and enjoyment of the plaintiff in his property
bearing No.7/13, IInd Floor, Old Rajinder Nagar, New Delhi
in any manner whatsoever, in the interest of justice.
(C) Any other relief as this Hon'ble Court may deem fit
and proper in the facts and circumstances of the case Cost of
the suit/proceedings be also awarded in favour of the plaintiff
and against the defendants.
Such other or further orders as this Hon'ble Court may deems
fit and proper in the facts and circumstances of the case be
also passed in favour of the plaintiff and against the defendant
to meet the ends of justice.
CM(M) 1179/2018 Page 11 of 14
34. Learned counsel for the respondent has drawn my attention to
paras 14 to 16 of the judgment dated 2nd June, 2016, of the learned
Senior Civil Judge, which read thus:
"14. DW-1 has further admitted that DDA has received the
entire payment by way of demand draft with respect to the
suit property and except the reply of letters issued by DDA,
plaintiff has complied, with almost all other formalities which
are required for the allotment and possession of the plot of
DDA.
15. Plaintiff- has proved that Ram Ashrey Dayal and Ram
Parkash is the same person and that he neither owned/
possessed any plot or residential accommodation of DDA at
the time of allotment of suit property in the year 2004. Hence,
he is entitled for possession of MIG Plot of DDA under the
Rohini Residential Scheme 1981.
16. Defendant in its WS has taken the plea that the suit
property has already been allotted to some other person. Even
DW-1 during her cross examination deposed that the suit
property has already been allotted to some other person. She
admitted that as per rules of DDA, if the plot is allotted to
some other person instead of the original allottee for non
compliance of any of the condition, his case can be considered
for allotment of alternative plot in nearby vicinity as per rules
of DDA.
17. Since the suit property has already been allotted to
some other persons, hence as per the rules of DDA and on the
basis of above discussion, plaintiff is entitled for possession
of alternative plot of similar size, similar area and locality
from DDA. Both the issues are accordingly, decided in favour
of plaintiff and against defendant."
35. As the learned counsel for the respondent points out there is an
admission, recorded in the above passages of the learned Senior Civil
Judge, which, as already noted hereinabove, was never challenged and
CM(M) 1179/2018 Page 12 of 14
has attained finality, to the effect that the entire payment, against the
plot which was booked by the respondent-plaintiff, and allotted to
him, was received by the DDA.
36. Learned counsel for the petitioner vociferously disputes this
submission, asserting that this "concession" was only during the
course of recording of evidence, and was contrary to the position as
emerged from the documents.
37. On a query, put to him, as to whether there was any document,
which indicated that complete payment had not been received by the
DDA, the only document, to which learned counsel for the petitioner
is able to refer, is the policy of the DDA itself.
38. I am of the view that the reference to the policy of the DDA
cannot resile or dilute the effect of paras 14 to 16 of the judgment of
the learned Senior Civil Judge.
39. Even on this ground, the contention that additional payment was
required to be paid by the respondent-plaintiff, has no legs to stand on.
40. The judgment, as well as the decree, directed allotment either of
a plot to which the respondent-plaintiff was entitled as per draw of
lots, or an alternate plot of equal size. That exercise ought to have
taken place much before the respondent-plaintiff was forced to
approach the court. Having failed to do so, the petitioner-DDA cannot
CM(M) 1179/2018 Page 13 of 14
seek to capitalize on its own default by now submitting the respondent
to additional payments.
41. The submissions of learned counsel for the petitioner are,
therefore, summarily rejected.
42. The present petition is clearly an abuse of process of law and is
completely bereft of any merit whatsoever.
43. The respondent-plaintiff has not been able to secure possession
of the plot to which he was entitled, and the attitude of the DDA, in
dragging the respondent-plaintiff to court time and time again, for the
said purpose, deserves to be deprecated.
44. With the above observations, the present petition is dismissed
with no order as to costs.
C. HARI SHANKAR, J.
NOVEMBER 19, 2018 dsn CM(M) 1179/2018 Page 14 of 14