Delhi District Court
) Smt. Kamla Devi vs Delhi Development Authority on 30 July, 2011
Suit No. 904/2006
IN THE COURT OF MS. SHEFALI SHARMA
CIVIL JUDGE (WEST): TIS HAZARI COURTS: DELHI
SUIT NO. 904/2006
Sh. Tarif Singh since deceased through his LRs:
1) Smt. Kamla Devi, widow of Tarif Singh
2) Sh. Krishan Kumar, s/o Sh. Tarif Singh
since deceased the suit abates qua him.
3) Master Sonu @ Sandeep, s/o Sh. Tarif Singh
All R/o H. No. 190, Near Chopal,
Village Munirka, PO JNU, New Delhi110067.
.......PLAINTIFF
VERSUS
Delhi Development Authority
through Vice Chairman
I. N. A., New Delhi.
........DEFENDANT
DATE OF INSTITUTION : 03.07.1997
DATE OF RESERVATION : 28.07.2011
DATE OF DECISION : 30.07.2011
JUDGMENT: This is a suit for Permanent injunction filed by the plaintiff against the defendant. The brief facts as averred in the plaint are as follows:
1. That the land of the plaintiff was acquired by DDA under the policy of Government and plaintiff was alloted a plot bearing no. 115, BlockC, Pocket8, Sector17, Dwarka Residential Scheme and plaintiff deposited the required Tarif Singh vs. DDA 1/10 Suit No. 904/2006 money with the defendant department. However, the plaintiff was surprised to receive a letter from the office of defendant/ DDA to the effect that why his allotment should not been cancelled since he had entered upon an agreement to sell of the said property with one Smt. Sudesh Chopra in violation of the terms and conditions of allotment. It is the case of the plaintiff that Smt. Sudesh Chopra with the assistance of one Sh. Dharamvir Dahiya and Sh. Brijesh Sinha, is trying to blackmail the plaintiff since both these aforesaid persons are trying to assert pressure and influence upon the plaintiff. It is stated that neither Smt. Sudesh Chopra nor the said two persons have any concern with the plot in question nor has the plaintiff entered upon any agreement with Smt. Sudesh Chopra. The grounds on the basis of which the notice was sent to the plaintiff by defendant authority are unfounded and he is entitled to the allotment of the said plot.
The aforesaid factual matrix gave the cause of action to the plaintiff to file the present suit seeking the relief that defendant be restrained from cancelling the allotment of the plot bearing no. 115, BlockC, Pocket8, Sector 17, in Dwarka Residential Scheme situated in Pappan Kala, Delhi.
2. In the written statement filed on behalf of the defendant/ DDA, the allegations of the plaintiff in the plaint are denied and it is stated that the suit of the plaintiff is liable to be rejected for want of notice under Section 53B of DD Act. It is further contended that the plaintiff has not come with clean hands before the Tarif Singh vs. DDA 2/10 Suit No. 904/2006 court and has suppressed the material facts deliberately and intentionally. That the plaintiff had entered into an agreement to sell with one Smt. Sudesh Chopra, R/o C1/4, Krishna Nagar, Delhi in respect of the plot in the suit and has violated the terms and conditions of the allotment, and on this ground, the allotment is liable to be cancelled. That the land of the plaintiff measuring 4 bigha 13 biswa was acquired by the Govt. vide award no. 2181C dated 12.09.1980 and the name of the plaintiff was recommended for allotment of an alternative plot measuring 250 sq. yards in South Zone vide letter no. F32(11) 42/86/LSB/Alt/0892 dated 02.04.1992 addressed to the defendant/ DDA by the Joint Secretary, LSB Deptt., Delhi Administration. That in view of the letter dated 02.04.1992 written by the Joint Secretary, LSB Deptt. Delhi Administration, the plaintiff was allotted an alternative plot measuring 207 sq. meters in Dwarka, bearing plot no. 115C, Pocket8, Sector17 by the defendant/ DDA vide letter no. F27(27)92/ LSB (Residential)/ 448 dated 28.01.1997 and as per the terms of allotment, sum of Rs. 4,46,950/ was paid by the plaintiff on account of the cost of the said alternative plot. That after receipt of the demanded money towards cost of the alloted plot, possession letter dated 20.03.1997 was issued to the plaintiff by the defendant/ DDA. That show cause notice dated 21.04.1997 was issued to the plaintiff by the defendant/ DDA as to why his allotment be not cancelled as the plaintiff had entered into agreement to sell in respect of the said plot, in order to sale out the same in favour of one Tarif Singh vs. DDA 3/10 Suit No. 904/2006 Smt. Sudesh Chopra d/o Sh. K. L. Chopra, R/o C1/4, Krishna Nagar, Delhi. The plaintiff was asked to explain/ clarify the position within 15 days of receipt of the said letter. That said Smt. Sudesh Chopra also submitted a copy of the order dated 10.04.1997 passed against the plaintiff (therein defendant) vide the said order plaintiff was restrained from selling, alienating or parting with the possession of the plot in question i.e. plot no. 115C, Pocket8, Sector17, Dwarka, Delhi. It is submitted that since the plaintiff has violated the terms of the allotment by selling the plot in question in favour of Smt. Sudesh Chopra, thus the allotment is liable to be cancelled. Rest of the contentions of the plaintiff are categorically denied.
3. The plaintiff had filed replication to the written statement of defendant wherein the plaintiff denied the averments made by the defendant in its written statement and reiterated and reaffirmed the contents of the plaint. The same are not being reproduced herein for the sake of brevity.
4. From the pleadings of the parties, following issues were framed by my Ld. Predecessor vide orders dated 20.12.2006:
1. Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP.
2. Relief.
5. In order to prove his case, plaintiff examined only one witness. Widow of the plaintiff Smt. Kamla Devi entered the witness box as PW1 who vide her affidavit Ex. PW1/A relied upon the documents Ex. PW1/1 to Ex. PW1/8. Ex. Tarif Singh vs. DDA 4/10 Suit No. 904/2006 PW1/1 is the copy of challan bearing no. 83771 dated 13.03.1997 of Rs. 4,46,950/, Ex. PW1/2 is copy of accompanying application, Ex. PW1/3 is the photocopy of the letter dated 20.03.1997, Ex. PW1/4 copy of police report dated 04.10.1996, Ex. PW1/5 is the copy of letter dated 17.03.1997, Ex. PW1/6 is the copy of letter dated 30.09.1998, Ex. PW1/7 is the copy of letter dated 28.01.1997 and Ex. PW1/8 is the copy of NCR dated 16.09.1998.
6. In order to prove their case, defendant/ DDA has also examined one witness i.e. DW1 Sh. Dharamvir Sharma, Asstt. Director, Land Disposal Department, DDA who vide his affidavit Ex. DW1/X relied upon the documents Ex. DW1/2 to Ex. DW1/5. Ex. DW1/1 as mentioned in the affidavit was the award bearing no. 2181C dated 12.09.1980 however, since the same was not placed on record accordingly, same was deexhibited.
7. I have heard the counsel for plaintiff Sh. R. S. Chauhan and Sh. Vinod Sharma, Ld. SLO for DDA and carefully perused the material available on record.
8. My issuewise findings are as follows:
Issue No. 1: Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP.
The onus to prove this issue was upon the plaintiff.
PW1 vide her testimony has categorically testified that the land of the plaintiff was acquired by DDA under the policy of Government and plaintiff was alloted a plot bearing no. 115, BlockC, Pocket8, Sector17, Dwarka Tarif Singh vs. DDA 5/10 Suit No. 904/2006 Residential Scheme and plaintiff deposited the required money with the defendant department. However, the plaintiff was surprised to receive a letter from the office of defendant/ DDA to the effect that why his allotment should not been cancelled since he had entered upon an agreement to sell of the said property with one Smt. Sudesh Chopra in violation of the terms and conditions of allotment. The copy of the challan, copy of the application of the plaintiff and letter received from the defendant department are proved as Ex. PW1/1 to Ex. PW1/3 respectively. The said fact is admitted by the defendant. It is admitted that the land of the plaintiff measuring 4 bigha 13 biswa was acquired by the Govt. vide award no. 2181C dated 12.09.1980 and the name of the plaintiff was recommended for allotment of an alternative plot measuring 250 sq. yards in South Zone vide letter no. F32(11) 42/86/LSB/Alt/0892 dated 02.04.1992 addressed to the defendant/ DDA by the Joint Secretary, LSB Deptt., Delhi Administration. That in view of the letter dated 02.04.1992 written by the Joint Secretary, LSB Deptt. Delhi Administration, the plaintiff was allotted an alternative plot measuring 207 sq. meters in Dwarka, bearing plot no. 115C, Pocket8, Sector17 by the defendant/ DDA vide letter no.
F27(27)92/ LSB (Residential)/ 448 dated 28.01.1997 and as per the terms of allotment, sum of Rs. 4,46,950/ was paid by the plaintiff on account of the cost of the said alternative plot. That after receipt of the demanded money towards cost of the alloted plot, possession letter dated 20.03.1997 was issued to the plaintiff by the defendant/ DDA.
Tarif Singh vs. DDA 6/10 Suit No. 904/2006
The main controversy arose when one Smt. Sudesh Chopra submitted the copy of legal notice and restraint order dated 10.04.1997 in the case filed by Smt. Sudesh Chopra against the plaintiff with the defendant department which constrained the defendant/ DDA to issue a show cause notice to the plaintiff. The said show cause notice is proved as Ex. DW1/5. It is the case of the defendant/ DDA that since the reply to the show cause notice was not found satisfactory and since the plaintiff had violated the terms and conditions of allotment and sold the plot in question to Smt. Sudesh Chopra., therefore, he is not entitled to allotment in his favour.
The basis on which the defendant department came to the conclusion that the plaintiff has sold the suit property is only a legal notice issued by Smt. Sudesh Chopra to the plaintiff and the copy of the order in the suit titled as "Sudesh Chopra vs. Tarif Singh". The copy of the said order has not been placed on record. Moreover, admittedly, it was merely an interim order and not passed on the merits of the case. There is nothing on record to show that Smt. Sudesh Chopra filed any GPA, Agreement to sell, sale deed etc. executed by the plaintiff in her favour with the defendant department. DW1 in his crossexamination, has categorically admitted that there is no document regarding transfer of suit property by the plaintiff in favour of Smt. Sudesh Chopra.
In such an eventuality, there are no reasonable grounds afforded on behalf of defendant/ DDA to come to the conclusion that there was a transfer of Tarif Singh vs. DDA 7/10 Suit No. 904/2006 the property by the plaintiff in violation of the terms and conditions of the allotment. Admittedly, no sale deed has been executed by the plaintiff in favour of Smt. Sudesh Chopra.
It is a settled law that as is held in "G. Ram Vs. DDA", AIR 2003 Delhi 120 passed by Hon'ble High Court wherein it is stated that an agreement of sale is not a document of transfer not by reason of execution of a power of attorney, the right, title or interest of an immovable property can be transferred. Such a transfer can only be effected by executing a registered document as provided for under Section 54 of the Transfer of Property Act read with Section 17 of the Indian Registration Act.
In the absence of any documentary proof, the contentions of the defendant/ DDA does not hold force. Moreover, the plaintiff has categorically proved that the documents of the property in question were misplaced by the plaintiff earlier and a police report was filed by the plaintiff dated 04.10.1996 which is proved as Ex. PW1/4. The intimation about the same was also given to the defendant department which was received by DDA on 17.03.1997 which was proved as Ex. PW1/5. Thus the defendant/ DDA was in complete knowledge of the said facts. Thereafter, defendant/ DDA subsequently issued a letter dated 30.09.1998 to the plaintiff and that they were satisfied with the documents of the plaintiff and plaintiff was entitled to the allotment of the plot bearing no.115C, Pocket8, Sector17, Dwarka, Delhi. The said letter is Ex. PW1/6. Tarif Singh vs. DDA 8/10 Suit No. 904/2006
I have carefully gone through the said letter. It is stated by the defendant department that allotment of an alternative plot admeasuring 250 sq. yards in South Zone had already been recommended in favour of the plaintiff vide office letter bearing no. F32(11)42/86/LSB/Alt/0892 dated 02.04.1992 and it was further averred in the said letter that the information about the alternative allotment was sent to the plaintiff at his residential address. Thus despite being in complete knowledge of the fact that one Sh. Dharamvir Dahiya had got some papers signed from the plaintiff in view of the letter of the plaintiff to DDA proved as Ex. PW1/5, they still found the documents of the plaintiff satisfactory and assured him vide subsequent letter dated 30.09.1998 that he was entitled to allotment of flat. The plaintiff has also proved that he has filed a missing complaint/ NCR which is proved as Ex. PW1/8. Thus plaintiff never concealed any material fact from the department. In the absence of any cogent document filed on behalf of defendant department to the effect that plaintiff had transferred the property to one Smt. Sudesh Chopra, I am of the considered opinion that on the appraisal of the evidence adduced on behalf of the parties, the balance of preponderance of probabilities stands tilted in favour of the plaintiff. Moreover, it is alleged by defendant/ DDA that plaintiff has sold the property to Smt. Sudesh Chopra. Thus the onus was upon them to atleast implead Smt. Sudesh Chopra as necessary party in the present case in support of their allegations, which they failed to do.
Tarif Singh vs. DDA 9/10 Suit No. 904/2006
Thus in view of aforesaid discussions, I am of the considered opinion that there is no reasonable ground afforded by defendant department to cancel the allotment made in favour of the plaintiff and therefore, this issue is decided in favour of the plaintiff and against the defendant.
Relief In view of the aforesaid discussions, the suit of the plaintiff is hereby decreed. The defendant is restrained from cancelling the allotment of the plot bearing no. 115, BlockC, Pocket8, Sector17, in Dwarka Residential Scheme situated in Pappan Kala, Delhi. No order as to cost. Decree sheet be prepared accordingly. File be consigned to record room.
Pronounced in the open court today on 30.07.2011.
(SHEFALI SHARMA) CIVIL JUDGE (WEST) THC, DELHI/ 30.07.2011 Tarif Singh vs. DDA 10/10