Delhi District Court
Rekhi Educational Society (Regd.) vs Delhi Development Authority on 31 July, 2012
Suit No. 1473/2006
IN THE COURT OF MS. RICHA GUSAIN SOLANKI
CIVIL JUDGE(WEST):TIS HAZARI COURTS: DELHI
Suit No. 1473/2006
Rekhi Educational Society (Regd.)
through its Secretary S. Harmeet Singh
WZ403, Shiv Nagar,
New Delhi.
..............Plaintiff
Versus
Delhi Development Authority,
Through its Vice Chairman,
Vikas Sadan, I.N.A.,
New Delhi110023.
...........Defendant
Date of institution : 04.08.2006
Final arguments heard on : 05.06.2012
Judgment reserved on : 23.07.2012
Date of decision : 31.07.2012
JUDGMENT: This is a suit for declaration and permanent injunction. The brief facts as averred in the plaint are as follows:
1. The plaintiff is a society registered under the Societies Registration Act vide certificate of registration No. S/16604 dated 29.04.1986. The plaintiff applied to the defendant for allotment of land for running a senior Rekhi Educational Society Vs. DDA 1/17 Suit No. 1473/2006 secondary school and submitted requisite information and documents which were duly received in the office of the defendant vide F. No 18(64)89/12/Inst. Plaintiff was directed to contact Dy. Director (Inst) DDA vide letter dated 12.07.1989 who forwarded the case to the Commissioner (Land) DDA for considering the request of the plaintiff society for allotment of land in Pappan kalan, Vikaspuri, Hari Nagar, New Delhi. The plaintiff was asked by the defendant to submit (i) current essentiality certificate from the Education Department, (ii) Project report,
(iii) Bank balance certificate in original for Rs 65 lakh (iv) Income Tax certificate under Section 80 G from the Income Tax department. All these documents were duly submitted by the plaintiff in the office of the defendant.
Thereafter the allotment committee of DDA met on 30.05.2002 and the name of plaintiff society was mentioned at Sl. No. 59. The land earmarked for allotment to the plaintiff was stated to be a plot of land measuring 2 acres at Sector 16B, PhaseII, Dwarka, New Delhi. The defendant asked the plaintiff for revalidation of the essentiality certificate vide its letter dated 19.08.2002 which was submitted by the plaintiff along with letter dated 10.03.2004. The plaintiff also furnished to the defendant Bank Balance Certificate dated 27.01.2004 showing a balance amount of Rs. 1,93,47,600/ in the name of plaintiff society.
Rekhi Educational Society Vs. DDA 2/17 Suit No. 1473/2006 The defendant allotted land to some societies as per the Institutional Allotment Committee meeting held on 30.05.2002 but the plaintiff society has not been allotted land till date. Plaintiff sent reminders to the defendant and the LG of Delhi requesting allotment of land but received no reply.
Thereafter plaintiff was told that a new policy of allotment of land to institution/societies is in the process of being finalized.
Finally, plaintiff sent a legal notice dated 24.05.2006 to the defendant which was duly served but still plaintiff has not been allotted the land. It is the case of plaintiff that the defendant has no right to change the policy of allotment retrospectively because such an exercise will be discriminatory, malafide and illegal.
2. Plaintiff has, therefore, filed the present suit for declaration and permanent injunction praying that a decree of declaration be passed in favour of the plaintiff and against the defendant/DDA declaring that the plaintiff society is entitled to the allotment of land on concessional rates for running a senior secondary school in respect of which the Institutional Allotment Committee of the DDA had already made its recommendations for allotment of land to the plaintiff and a decree of permanent injunction be passed restraining the defendant from auctioning/allotting the earmarked plot of land measuring 2 acres at Sector 16B, PhaseII, Rekhi Educational Society Vs. DDA 3/17 Suit No. 1473/2006 Dwarka, Delhi to any third party.
3. In the written statement filed on behalf of the defendant/DDA, it is submitted that Defendant/DDA that no valid notice under Section 53 B of DD Act has been served upon it. It is submitted that the society applied for allotment of land on 16.06.1989 and it was found that the sponsorship of the society was old and the society was not having sufficient funds for purchase of land and construction of building. Plaintiff was therefore, asked to get the sponsorship revalid and augment funds as per letter dated 25.10.1989, 13.12.1990, 08.10.1997 and 03.06.1998. On 15.06.1998, a complaint was received by some miscreant by way of change of name and address of the society. Two representatives i.e Ms. Kavita Mukharji and Sh. Tejinder Singh claimed to be the actual President of the society. The matter was taken up with Registrar of societies vide letter dated 01.09.1998. The Registrar of societies vide letter dated 10.12.1999 clarified that Sh. Tejinder Singh is the President of the Society as per their records. On completion of codel formalities the matter was placed before the Institutional Committee which recommended a plot of land measuring 2 acres at Sector 16, Dwarka, Phase2 on 30.05.2002. In the meantime, the essentiality certificate had become invalid. The essential certificate was revalidated as per letter dated 21.02.2003. On 23.03.2004 the matter was placed before the Rekhi Educational Society Vs. DDA 4/17 Suit No. 1473/2006 competent authority who raised certain doubts in view of the complaint lodged by one of the members of the plaintiff society namely Sh. Jaswant Singh Negi. The matter was again referred to the Registrar of Societies. The matter was again placed before the competent authority on 30.04.2004 who ordered vide its orders dated 11.05.2004 that list of the governing body for the last 10 years be obtained from the Registrar of Societies as two persons namely Ms. Kavita Mukharji and Sh. Tejinder Singh claimed themselves to be the President of the Society. The reply dated 04.06.2004 from the Registrar of societies was received along with the list of governing body furnished by both the parties claiming be the President of Society. The Registrar of societies clarified that one of the claimants Ms. Kavita Mukharji was called in 1999 in the office and she stated that she had no concern with the society.
On 23.08.2004 again the case was placed before the competent authority who desired to process the case as per new policy guidelines which were under consideration during the relevant period. However, in the meantime policy for the allotment of land was changed from allotment mode to auction vide gazette notification dated 19.04.2006. Therefore, the plaintiff society is not entitled for the relief so claimed. It is admitted that allotment of land to various societies were made on the recommendation of the Institutional allotment Committee Rekhi Educational Society Vs. DDA 5/17 Suit No. 1473/2006 meeting held on 30.05.2002 and 14.02.2003 but the plaintiff's case was different as two representatives claimed to the actual President of the Society which was to be clarified by the Registrar of Society.
4. The plaintiff filed replication to the written statement of defendant no. 1 wherein the plaintiff reiterated and reaffirmed the contents of the plaint and denied the averments made by the defendants in their written statement.
5. Vide order dated 21.04.2006 following issues had been framed by my Ld. Predecessor :
1. Whether the plaintiff is entitled to decree of declaration, as prayed for? OPP.
2. Whether the plaintiff is entitled to decree of permanent, as prayed for? OPP.
3. Whether the suit is not maintainable for want of statutory notice under Section 53 B DD Act? OPD
4. Whether the suit has nto been properly valued for the purpose of Court fee and has not been signed, verified by the duly authorised person? OPD
5. Relief.
6. In its support plaintiff examined only one witness. PW 1 Sh. Harmeet Rekhi Educational Society Vs. DDA 6/17 Suit No. 1473/2006 Singh, Secretary of plaintiff society entered the witness box on 02.12.2006 and tendered his affidavit Ex P 1. Ex P 1 states the same facts as were stated by the plaintiff in the plaint. PW 1 relied on document Ex PW 1/1 which is a copy of certificate of registration of plaintiff society. Ex PW 1/2 is the authorization in favour of PW 1 to sign, verify and institute the present suit. He has relied on letter dated 21.12.1999 as Ex PW 1/3 wherein the society was directed by DDA to submit documents for allotment of land. He has further relied on Ex PW 1/4 and Ex PW 1/5 which are the copies of letter by plaintiff and accompanying Income Tax exemption certificate. Ex PW 1/6 is the letter dated 16.07.2006 from plaintiff to DDA submitting the bank account statement from 08.05.2000 to 12.07.2001 reflecting a balance of Rs.
60,01,021.40. Ex PW 1/7 is the essentiality certificate issued to the plaintiff on 24.03.1999 for a period of three years. Ex PW 1/8 is a letter dated 19.08.2002 from DDA to the plaintiff requesting the society to submit a valid essentiality certificate as the previous certificate was more than five years old. Ex PW 1/9 is copy of letter dated 02.09.2002 from the plaintiff to DDA in response of the letter Ex PW 1/8. Ex PW 1/10 is the letter dated 26.02.2004 from plaintiff to DDA requesting the allotment of suit property and stating that the society has a total bank Rekhi Educational Society Vs. DDA 7/17 Suit No. 1473/2006 balance of Rs. 2,05,48,695.90. Ex PW 1/11 is the copy of certificate issued by Union bank of India that the balance of society as on 27.01.2004 is Rs. 1,93,47,600/. Ex PW 1/12 is the revalidated essentiality certificate valid upto 23.03.2004. Ex PW 1/13 to Ex PW 1/16 are copies of reminders and requests addressed to DDA and to the Hon'ble Lt Governor regarding the allotment of suit property. The legal notice sent to DDA is Ex PW 1/17 and its postal receipts and AD card are Ex PW 1/18 and Ex PW 1/19, respectively. He also relied on document mark A which is the copy of minutes of Institutional Allotment Committee meeting held on 30.05.2002 wherein the name of the plaintiff is mentioned at serial no. 59.
In his cross examination, PW 1 admitted that the essentiality certificate is required to be revalidated from time to time. He further admitted that as per DDA record there were two claimants under the society. He also admitted that DDA issued a letter dated 31.01.2003 to submit the essentiality certificate within one week failing which the case of the plaintiff's society shall be closed. He further stated that the funds of plaintiffs society on the date of application in the year 1989 were approximately Rs. 1,00,000/.
7. In its support defendant has also examined only one witness. DW 1 Sh.
Rekhi Educational Society Vs. DDA 8/17 Suit No. 1473/2006 C.S. Bisht, additional Director, DDA entered the witness box on 15.07.2011 and tendered his affidavit Ex DW 1/X in evidence. DW 1/X states the same facts as were stated by the defendant in the written statement. DW 1 placed reliance on documents collectively exhibited as Ex DW 1/1. One letter dated 25.10.1989 Ex DW 1/1 is from DDA requesting the plaintiff to furnish bank certificate certifying that the funds of the plaintiff are to the tune of Rs. 47.50 lacs. Another letter dated 08.10.1997 also Ex DW 1/1 states that the name of plaintiff society has been sponsored for allotment and therefore sponsorship received prior to 1990 should be revalidated. He also relied on letter dated 15.06.1998 as Ex. DW 1/2 from Sh. Tejinder Singh on behalf of plaintiff society to DDA clarifying that the address of the plaintiff society has not changed and intimating that some person has fabricated documents of the plaintiff society. Ex. DW 1/3 is the letter dated 01.09.1998 from DDA to the Registrar of Societies requiring information as regards the plaintiff society its President and its members. Ex. DW 1/4 is the letter dated 10.12.1999 sent in response to letter Ex DW 1/3 stating that Sh. Tejinder Singh is the President of plaintiff society. He also placed reliance on Ex DW 1/5 which is copy of letter dated 04.06.2004 from Assistant Director (Societies) to DDA stating that the plaintiff society is being claimed to Rekhi Educational Society Vs. DDA 9/17 Suit No. 1473/2006 headed by two parallel groups i.e one by Sh. Rakesh katyal/Mrs. Babita Mukherjee and the other by Sh. Tejinder Singh. Ex DW 1/6 is the copy of gazette dated 19.04.2006 stating that the nazul land may be allotted by either auction or by tender. Ex DW 1/7 is the copy of letter dated 21.12.1999 from DDA to the plaintiff requesting them to submit documents for allotment of land.
In his cross examination, DW 1 admitted that prior to the notification dated 19.04.2006, previously allotment was made on the basis of auction. He further stated that after the change of policy no allotment was being made to any society on concessional rates. He also admitted that the name of plaintiff society was recommended and placed at Sr. No. 59 by Institutional Allotment Committee meeting on 30.05.2002. He further stated that a complaint was received from one Sh. J.S. Negi, member of plaintiff society dated 29.05.2002 and tendered copy of the same as Ex DW 1/D1. He also admitted that the bank balance of the plaintiff society was approximately Rs.2 crores before the matter was placed before the competent authority on 30.04.2004
8. I have heard both the parties and have perused the record carefully.
9. Ld. Counsel for plaintiff submits that the new policy as per the notification Ex DW 1/6 is not applicable to his case as the plaintiff Rekhi Educational Society Vs. DDA 10/17 Suit No. 1473/2006 applied for allotment in the year 1989. He further submits that DDA has unduly delayed plaintiff's application and has discriminated against it in as much as other societies were given allotment but the plaintiff was not alloted land.
10.On the other hand, ld. SLO submits that the application for allotment was not in response to any open tender etc.; plaintiff society voluntarily preferred the application and further even the recommendations are subject to the conditions of allotment. It is the Hon'ble LG who is the final authority to decide the question of allotment. Ld. SLO submits that admittedly no allotment has been made in the favour of plaintiff society and therefore no right has been created in the favour of plaintiff. Ld. SLO further submits that the case of plaintiff is unlike that of other societies which were allotted land. Due to the conflicting claims of the governing body of the plaintiff's society and due to invalid essentiality certificate, the case of the plaintiff was kept pending and in the meantime new policy Ex DW 1/6 came into force.
11.Issue wise findings are as under :
Issue no. 1 : Whether the plaintiff is entitled to decree of declaration, as prayed for? OPP.
The onus of proving this issue was on the plaintiff. In order to prove this issue, plaintiff has shown by letter dated 21.12.1999 Ex PW Rekhi Educational Society Vs. DDA 11/17 Suit No. 1473/2006 1/3 that the society was directed by DDA to submit documents for allotment of land. Ex PW1/3 is same as Ex DW 1/7 and is proved as being admitted by the defendant. He has further shown by document Mark A that upon its application the name of the plaintiff was recommended for allotment of suit property in the meeting of Institutional Allotment Committee held on 30.05.2002. The fact of this recommendation is admitted by the defendant and is hence proved. Further plaintiff has shown by letter dated 19.08.2002 Ex. PW 1/8 that the defendant had asked the plaintiff to submit a valid essentiality certificate for the purpose of allotment as the previous certificate was more than five years old. Plaintiff has further shown by letter dated 02.09.2002 Ex PW 1/9 that in response of the letter Ex PW 1/8, plaintiff referred to essentiality certificate Ex PW 1/7 as the valid certificate having been submitted. However plaintiff has admitted that in the mean time the essentiality certificate expired and vide letter dated 31.01.2003, the society was asked to submit fresh essentiality certificate within one week failing which the case of the plaintiff's society would be closed. It is also admitted that the revalidation of essentiality certificate was discretion of the competent authority.
On the other hand, defendant claims that the case of plaintiff could not be timely processed for another reason also, that is, of Rekhi Educational Society Vs. DDA 12/17 Suit No. 1473/2006 conflicting claims as regards the governing body of the plaintiff society. It is admitted position between the parties that one Ms. Babita Mukherjee falsely put her claim with the DDA that she was the President of the plaintiff society as against the stand of Sh. Tejinder Singh. Defendant has also shown vide Ex DW 1/D1 that one Sh. J.S. Negi, claiming to be member of plaintiff society, filed a complaint dated 29.05.2002 stating that the governing body of the plaintiff society was not recognized and making allegations against Sh. Tejinder Singh and Sh. Harmeet Singh. Defendant has shown vide letter dated 04.06.2004 Ex DW 1/5 that the competent authority was doubtful about the case of plaintiff because of these complaints and therefore wrote to Assistant Director (Societies) who replied stating that the plaintiff society is being claimed to be headed by two parallel groups i.e one by Sh. Rakesh Katyal/Mrs. Babita Mukherjee and the other by Sh. Tejinder Singh.
Thus the application of plaintiff was placed before the competent authority for the first time after removal of all doubts in the year 2004 when the letter Ex DW 1/5 was received. Admittedly till 19.04.2006 no intimation regarding the refusal or making of allotment had been sent from the defendant indicating that plaintiff's case was still under consideration. In the meantime new policy Ex DW 1/6 came into force w.e.f. 19.04.2006 by which nazul land is to be allotted by either Rekhi Educational Society Vs. DDA 13/17 Suit No. 1473/2006 auction or by tender. Once the new policy came into force, plaintiff cannot be allotted land in terms of old policy. Mere recommendation of the Institutional Allotment Committee did not confer any legal right on the plaintiff. Its case will necessarily have to be considered in terms of the new policy.
Reliance is placed on the judgment passed by the Hon'ble Apex Court in the case of Sethi Auto Service Station v. DDA cited at (2009)1 SCC 180 wherein a similar dispute as arose regarding resitement on the basis of older policy of DDA. It was observed by the Hon'ble Apex Court that mere favourable recommendation at some level of decisionmaking process is of no consequence and does not bind DDA.
Reliance is also placed on the judgment passed by the Hon'ble Delhi High Court in the case of Ram Chander Educational v. DDA decided on 04.02.2011 wherein a similar dispute arose before his Lordships, Hon'ble Mr. Justice S. Murlidhar. In that case too the petitioner had in his favour recommendations of the Institutional Allotment Committee. The petitioner had submitted before his Lorships that since he had applied prior to the policy of 19.04.2006 came into force, his case should be considered under the old policy only. It was Rekhi Educational Society Vs. DDA 14/17 Suit No. 1473/2006 observed:
"18. The main question in the present petition is whether the Petitioner's pending application for allotment of an institutional plot ought to be considered by the DDA and respondent no.2 in terms of Nazul Land Rules as they stood prior to the amendment brought about by the notification dated 9th December 2004 and 19th April 2006?...........
22. It is significant that there is no 'savings' clause in the amended Nazul Land Rules permitting applications pending on the date of the amendment to be considered in terms of the preamended rules. The intention therefore was that once the Nazul Land Rules were amended they would apply to all pending applications for allotment of institutional plots as well....
23. The petitioners have not challenged policy of the GNCTD, as reflected in the amendments to the Nazul Land Rules. No direction can possibly issue to the DDA to make an allotment in favour of the petitioner no. 1 contrary to the amended Nazul Land Rules."
Thus in view of the fact that the application of the plaintiff was still pending when the new policy came into force, plaintiff is not allotment to the suit property in terms of the previous policy.
Accordingly, this issue is decided against the plaintiff and in the favour of the defendant.
Rekhi Educational Society Vs. DDA 15/17 Suit No. 1473/2006
12. Issue No. 2 Whether the plaintiff is entitled to decree of permanent, as prayed for? OPP The onus of proving this issue was on the plaintiff. In view pf the discussion under Issue no 1, plaintiff has not acquired any right over the recommended land and therefore, he is not entitled to decree of permanent injunction.
Accordingly, this issue is decided against the plaintiff and in the favour of the defendant.
13. Issue No. 3. Whether the suit is not maintainable for want of statutory notice under Section 53 B DD Act? OPD The onus of proving this issue was on the defendant. No evidence has been led to show that the statutory notice under Section 53 B Delhi Development Act was not served upon the defendant/DDA.
On the contrary plaintiff has shown by Ex PW 1/17 to Ex. PW 1/19 that a legal notice dated 24.05.2006 was served upon DDA which was received by them on 31.05.2006.
Accordingly this issue is decided in the favour of plaintiff and against the defendant.
11. Issue No. 4 : Whether the suit has not been properly valued for the purpose of Court fee and has not been signed, verified by the duly Rekhi Educational Society Vs. DDA 16/17 Suit No. 1473/2006 authorised person? OPD The onus of proving this issue was on the defendant. No evidence has been led to show that the suit has not been properly valued for the purpose of Court fees. No evidence has been led to show that this suit has not been signed and verified by duly authorized person.
On the contrary plaintiff has shown by Ex PW 1/1 that plaintiff is a registered society. Further by Ex PW 1/2, plaintiff has shown that Sh. Harmeet Singh, Secretary of the plaintiff society was authorized to sign, verify and institute suit on behalf of plaintiff society.
Accordingly this issue is decided in the favour of the plaintiff and against the defendant.
Issue no. 5 Relief In view of the aforesaid discussion, the suit of the plaintiffs is dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room.
Pronounced in the Open court
today on 31.07.2012 at 04:00 PM (Richa Gusain Solanki)
Civil Judge (West)
THC, Delhi/31.07.2012
Rekhi Educational Society Vs. DDA 17/17