Delhi District Court
Suit No.83/13 vs Delhi Development Authority on 1 December, 2014
1
IN THE COURT OF SH. SHAILENDER MALIK,
LD. SCJ/RC/NW/ROHINI COURTS/DELHI
Suit No.83/13
Smt. Phool Wati W/o
Sh. Hanwant Singh
R/o E1, Arya Apartments,
Sector15, Rohini, Delhi. ......... Plaintiff
vs
Delhi Development Authority
Vikas Sadan, New Delhi .......... Defendant
Date of Institution ..........22.12.2008
Date of reserving judgment ..........01.12.2014
Date of announcing judgment ..........01.12.2014
JUDGMENT
This is a suit for permanent injunction and declaration. It is stated that DDA in year 2000 floated a scheme for rehabilitation of Punjab migrants and received the application forms for alltoment of flats. One Vinod Kumar and Saroj Rani had also applied for allotment of Janta flat and for alloted flat no.266, A6, Group 2, Pocket1, Narela, Delhi under the above said scheme. The possession of the same was handed over to them on 30.01.2002. on 06.07.2002, above said Vinod Kumar vide GPA, and Will dated 06.07.2002, transfered the above said flat to Smt. Kumud Aggarwal W/o D.K. Aggarwal. Thereafter, on 19.07.2005, said Smt. Kumud Aggarwal W/o D.K. Aggarwal by way of GPA, SPA, receipts, affidavit, possession letter, transfered the right in the above said flat to Smt. Phoolwati (plaintiff herein).
Plaintiff was shocked to receive a letter dated 24.11.2008, from DDA whereby plaintiff was directed to vacate the flat in question by 23.12.2008 on the ground that possession of the plaintiff in the flat is illegal. It is stated that plaintiff is bonafide purchaser and has acquired her right in the flat in question by virtue of execution of necessary documents as per law. It is stated that there is urgency in the matter therefore, plaintiff is unable to serve the mandatory notice u/s 80 CPC. While alleging that order dated 24.11.2008 of DDA, is illegal and void hence the suit was filed seeking decree of permanent injunction to restrain defendant / DDA from dispossessing the plaintiff from flat no.266, A6, Group 2, Pocket1, Narela, Delhi. Plaintiff has also sought the decree of declaration to declare that order whereby possession of 2 the plaintiff over the above said flat is null and void.
Defendant / DDA filed the WS taking the objection that suit is not maintainable for want of mandatory notice u/s 53B of DDA Act. It is pleaded that transfer of ownership of flat in question by the allottee is not legal. Moreover, documents of transfer of flat are not in accordance wiht provisions of section 17 and 49 of Indian Registration Act. It is pleaded that DDA had issued the allotment letter in favour of Vinod Kumar and Smt. Saroj Rani vide file noF339 (909) 01/HSRPM/NA/3044 through a demand letter no.30224 dated 30.07.2001. competent authority had canceled the allotment of flat in question. Plaintiff has no locus standi to institute the present suit as admittedly no lease deed has been signed in favour of above said original allotte Vinod Kumar s/o Bihari Lal and Smt. Saroj Rani. Allotment was on higher purchaser agreement basis and allotte failed to appear before competent authority on 09.11.2004 alongwith the original documents for verification of her eligibility and genuineness and therefore, allotment was canceled. Plaintiff being Power of Attorney holder, suit should have been filed by the original allottee. Suit is also bad for non joinder of necessary parties as original allottee Vinod Kumar and Smt. Saroj Rani are necessary party in the present suit. Moreover, Divisional Commissioner (Revenue) Govt of NCT is also necessary party as flats have been issued by DDA as per the list provided by DC (Revenue). It is pleaded that on receipt of complaint of DC (revenue) competent authority examined the genuineness of original allotee and allottee in this case had failed to appear before competent authority. While denying the case of the plaintiff on merits it is further pleaded that suit of the plaintiff is not maintainable. It is pleaded that as per the terms and conditions of the scheme only those persons were eligible for allotment who were having verification as Punjab Migrants from concerned SDM/DC. Verification about genuineness of the allottee was the job of SDM/DC only. In the absence of any master role/list or related record available with DDA, it was not possible for DDA to go into the question of genuineness of allottee once he/she comes with the verification/recommendation from the SDM/DC office. On receipt of complaints cases of Peera Garhi Camp was referred to SDM for reverification.
On reverification, Deputy Commissioner(West) reported vide letter dated 11.02.2004 that there are double/triple allotment and 291 cases were not part of original list of migrants. In the meeting held on 21.05.2004 in the chamber of Principal Commissioner, DDA with Divisional Commissioner (Revenue) GNCT, it was decided that reverification will be confined only to Punjab Migrant families living in Peera Garhi Camp. It was also decided that all those persons figuring in double/triple allotment and 291 cases were not found part of original migrants, will be given notices by SDM at prefixed dates and on all such occasions the officers of DDA will also be present with concerned files so as to reach definite conclusion about the genuineness of particular Punjab migrant. Divisional Commissioner was requested 3 to instruct Deputy Commissioner (West)/ SDM Punjabi Bagh to issue showcause notices to concerned persons of double/triple allotment as well as 291 persons who were not found part of original list of Punjab migrants. Committee was constituted by Deputy Commissioner(West) comprising of 2 officers from DDA and 2 officers from o/o Deputy Commissioner (West) for scrutinizing the cases in respect of Peera Garhi Camp. Vinod Kumar and Saroj Rani were served with the showcause notice dated 21.10.2004 for appearance before the above said committee on 09.11.2004 with original documents for verification. However, allottees did not appear before the Committee. Thereafter, a press notification was given in 3 leading newspapers on 04.06.2006 by SDM, Punjabi Bagh, clearly mentioning the last opportunity for allottees to appear before the Committee. But, even after issuance of such press notification, allottee Vinod Kumar and Saroj Rani did not appear therefore, upon approval by the competent authority a letter of cancellation of allotment of above said flat was issued on 24.11.2008 with the directions to handover the possession or to take steps as per law.
Upon completion of pleading Ld. Predecessor of this court vide order dated 25.01.2012 framed following issue
1. Whether the suit of the plaintiff is not maintainable in view of Section 53(B) of DDA Act?OPD.
2. Whether the transfer of the ownership of the suit property by the original allottee in favour of plaintiff herein, not being valid, is void and thus, the allotment was rightfully cancelled.?OPD.
3. Whether the allotment in favour of the original allottee was s double allotment/ fraudulent allotment/ allotment obtained by forged documents and thus the allotment was rightly canceled?OPD.
4. Whether the suit of the plaintiff is within the period of limitation?OPP.
5. entitled for the relief of permanent injunction as prayed for?OPP.
6. Whether the plaintiff is entitled for the relief of declaration as prayed for?OPP.
7. Relief On behalf of the plaintiff two witnesses were examined. PW1 is plaintiff Phool Wati and PW2 is J.S. Sehgal. No witness was examined on behalf of the defendant. I have heard Ld. Counsel for the plaintiff and DDA. My findings on each issue are following: 4 Issue no. 1 (Whether the suit of the plaintiff is not maintainable in view of Section 53B of the DDA Act?OPD) This issue was framed on the objection taken on behalf of DDA that the suit is not maintainable in view of Section 53 B of DD Act. This is a suit for injunction. It it submitted by the counsel for plaintiff that at the time of filing the suit an application was moved in terms of Section 80(2) CPC seeking exemption of filing the suit without service of notice. Having considered the provisions of Section 53 B of DD Act I find that this provision is different from Section 80 CPC and even from Section 478 of DMC Act. The difference of scope of above mentioned provisions was discussed by Division Bench of Hon'ble Delhi High Court in Prinda Punchi and ors. Vs MCD and ors. 2005 IV AD(Delhi) 639, in that judgment while noting the difference of above mentioned provisions it was observed that:
Section 53 B of Delhi Development Act know of no exemptions or waiver. The aforesaid provision of Section 53B enacted long after enactment of the provision of subsection (2) of Section 80 of the CPC. The legislature was aware of the said provision of subsection (2) of Section 80 of CPC when Section 53 B of the Delhi Development Act was enacted. Consciously, the legislature did not incorporate in Section 53 B of the Delhi Development Act any exception as that of subsection (2) of Section 80 of CPC. Therefore, it would not be appropriate to include and add such provision as that of subsection (2) of Section 80 of CPC into the provision of Section 53 B of the Delhi Development Act. It is settled law that a statute has to be enforced as it exists. No words can be imported into the specific language used by the legislature. The law of interpretation of statutes clearly provides that there can be no addition or subtraction to the language of a statute when the same is clear and unambiguous. There is no unambiguity or uncertainty in the language of Section 53 B and, therefore, there is no scope of adding any words to the said, existing provision in the statute.
Thus it was held in that judgment that there cannot be any waiver of service of notice in terms of Section 53 B of DD Act. Service of notice under that provision , prior to the institution of the suit, is mandatory. In the present suit merely moving an application under Section 80(2) CPC for exemption, otherwise also does not satisfy requirement when said application wsa never considered and there has never been any order of court on that application filed u/s 80 (2) CPC. Moreover, as stated above, present suit is bad, by a reason for non compliance of Section 53 B of DD Act. Even according to Section 80(2) CPC plaintiff is required to establish some urgency which in the facts and circumstances of the case as discussed above have not been established. Thus, I find that suit is bad and not maintainable for want of service of notice as required under Section 53 B of DD Act. Issue accordingly decided against the 5 plaintiff and in favor of defendant.
Issue No.2 (Whether the transfer of the ownership of the suit property by the original allottee in favour of plaintiff herein, not being valid, is void and thus, the allotment was rightfully cancelled.) This issue was framed on the objection taken on behalf of DDA. DDA has taken a plea in para 2 of WS that transfer of ownership of flat in question by original allottees to plaintiff or to any one, it not in accordance with provisions of Registration Act. As per case of plaintiff, original allottee namely Vinod Kumar and Saroj Rani had sold the flat in question to one Smt. Kumud Aggarwal by deed of agreement of sale and purchase dated 06.07.2002 and thereafter, Smt. Kumud Aggarwal vide documents like GPA, agreement to sell etc. all dated 19.07.2005 transfered the flat to plaintiff. Thus, plaintiff is admittedly a subsequent purchaser and not the allottee of the flat in question.
Now if we examine the evidence of plaintiff, PW1 Phool Wati in her affidavit of examination in chief has testified that original allottees Vinod Kumar and Saroj Rani on 06.07.2002, transfered the flat to Kumud Aggarwal vide deed of agreement of sale and purchase which is Ex. PW1/2 and documents of transfer executed by Kumud Aggarwal in favour of plaintiff dated 19.07.2005 are Ex. PW1/3. Admittedly, sale of flat in question, has not been effected by any registered sale deed as per Section 17 of Indian Registration Act. Provisions of Transfer of Property Act and of Indian Registration Act, make it clear that any immovable property worth Rs.100 or more, if sold, is required to be effected by a registered sale deed necessarily. In present case it is not disputed that documents of transfer either in favour of Kumud Aggarwal of in favour of plaintiff were not by any registered sale deed.
Another important aspect of the matter to be noted here is that perusal of deed of agreement of sale and purchase Ex. PW1/2 which original allottee Vinod and Saroj have executed in favour of Smt. Kumud Aggarwal would clearly show that it is mentioned in documents itself that DDA has allotted flat in question on "Hire Purchase Agreement" basis. If a property was allotted by way "Hire Purchase Agreement" ownership in property does not transfer untill payment of all hire installments. In present case, if original allottee had not paid entire hire installments of flat in question ownership in it, was transfered from DDA. Therefore, Vinod Kumar and Saroj Rani though were allottee of flat but not the owner of same and therefore, were not entitled in law, even to enter into an agreement of sale and purchase. It is not even case of the plaintiff that original allottee had made the payment of entire hire purchase installments. Nor even Kumud Aggarwal or plaintiff stated to have made any payments to DDA. Thus, Kumud Aggarwal had not acquired a good title or ownership by Ex. PW1/2 and as consequence, plaintiff could not have also got better title then transferee, in 6 flat in question. Thus, reading the evidence of PW1 alongwith documents Ex. PW1/2 ad Ex. PW1/3 which are not even registered sale deed, I find that alleged transfer of ownership of flat in question by original allottee to Kumud Aggarwal and ultimately from Kumud Aggarwal to plaintiff was not lawful. Consequently, issue no.2 stands decided against plaintiff.
Issue no.3 (Whether the allotment in favour of original allottee was double allotment/ fraudulent allotment/ allotment obtained by forged documents and thus the allotment was rightly canceled?) Onus of proving this issue though was on defendant as DDA has taken up a plea in WS that since competent authority upon receiving the complaint regarding double/ triple allotment as well as bogus verification and resultant fraudulent allotment of flats in the name of those whose name were actually not in the list of Punjab migrants, a committee was formed to verify the original documents for eligibility and genuineness. In that committee allottees of the flat in question did not appear despite being personal served with the notice as well as by way of publication in the newspaper. This aspect is also necessary to be appreciated properly in the light of evidence as come on record because even plaintiff is seeking the relief of declaration to declare order regarding the possession of plaintiff in flat in question, to be null and void. Thus, from both angles this issue is very important.
Let us examine the evidence as come on record. As stated above, plaintiff has examined two witnesses. PW1 is Phool Wati plaintiff and PW2 is J.C. Sehgal Tehsildar from the office of SDM Pubjabi Bagh. PW1 in her affidavit of examination in chief as testified all those facts as are averred in the plaint. PW1 testifies that the Janta Flat in question was alloted to Vinod Kumar and Saroj Rani under the scheme of DDA floated for rehabilitation of Punjab migrants. Possession of the flat were handed over to original allotees on 30.01.2002 and on 06.07.2002 original allotte Vinod and Saroj Rani sold the said flat to Smt. Kumud Aggarwal vide deed of agreement to sell and purchase dated 06.07.2002 which is Ex. PW1/2. PW1 further testifies that on 19.07.2005 said Smt. Kumud Aggarwal transfered her rights in the suit flat to her (plaintiff PW1) vide documents like GPA, SPA, agreement to sell, receipt, etc collectively Ex. PW1/3. (except SPA and Will dated 19.07.2005). PW1 says that she was shocked upon receipt of letter dated 24.07.2008 from DDA whereby she was directed to vacate the flat on the ground that her possession in the flat in question is illegal. PW1 says that she is bonafide purchaser and owner in possession of the flat. Original allottee has shifted to some unknown place and his whereabouts are not known therefore,steps could not be taken to appear before the committee constituted and she remained completely in dark about the developments as she was never served with nay 7 notice requiring to appear before said committee. PW1 further testified that she was never given a chance to defend herself moreover, at the time of submission of application form, all the relevant documents regarding eligibility were submitted before SDM/ DC of the area and same were verified and recommended. PW1 says that allotment of the suit property could not have been canceled as the person could not judge his own case and legal rights of bonafide allottees and bonafide purchasers can not be defeated by a stork of pan.
PW1 was duly cross examined, in cross examination PW1 when states that she had purchased the flat from Kumud Aggarwal she had seen her documents of title in respect of flat. PW1 admits that there was no registered sale deed in favour of Kumud Aggarwal. PW1 also admits that there is no registered sale deed even in her favour in respect of flat in question though PW1 further says that she had purchased the flat by documents like GPA, agreement to sell, etc. PW1 has also stated that she was no aware if the flat in question was alloted by DDA to the allottee under a scheme for rehabilitation of Punjab migrants and original allottee failed to appear before the committee constituted for verification of documents for eligibility and genuineness. PW1 even went to the extent of saying that she is not aware about the contents of her affidavit of examination in chief.
PW2 is J.C. Sehgal who brought the summoned record from the office of SDM Punjabi Bagh and has testified that a committee was constituted for verification of genuineness of documents of allottee for eligibility and as per the list available on the record allottee Vinod Kumar whose name is at serial number 84 was found in the list of in eligible allottees who were earlier alloted the flat under the category of being Punjab migrants. Said list is Ex. PW2/A. Having appreciated the evidence as come on record, this court has already given findings while deciding the issue no.2 that the transfer of ownership of suit flat firstly in favour of Kumud Aggarwal and thereafter, in favour of plaintiff herein was not stricly in accordance with law and thus it has already been held that such transfer/ sale is inherently void and illegal. While confining my consideration to see whether allotment of flat in the name of alltoee was rightly canceled or not by the competent authority. First of all plaintiff has failed to establish any reason in her affidavit of examination in chief to show that cancellation of allotment was not in accordance with law. Facts testified by PW1 in para 7 and 8 of her affidavit like she was not served with any notice or that she remained in dark about the developments or that notice was not actually served to original allottes because those allottes has shifted to unknown placed and their whereabouts were not known, these facts first of all can be ignored on the ground of being beyond pleadings as nothing has been so stated in the plaint.
8Even otherwise if we examine these facts I find that as per facts pleaded in WS of DDA complaint of DC (Revenue) regarding bogus name in list was received some where in 2004 and committee was also constituted in year 2004 and notice was issued to allottees on 21.10.2004. By then plaintiff had not purchased flat in question. Which was purchased by plaintiff from some one else than original allottee i.e Kumud Aggarwal only on 19.07.2005 so there could not have been any occasion for plaintiff to know all these developments. Moreover, as stated above, plaintiff had purchased the flat with any intimation to DDA, nor plaintiff verified regarding payment of all hire purchase installments. Prior to payments of all hire installments ownership was still with DDA and allottes could not have enter into any agreement of sale. Moreover, when it has already been pleaded in the WS of DDA alongwith the documents on record showing that a committee was constituted on receipt of complaint from DC/ revenue GNCT regarding name of list of Punjab migrants, on the basis of which allotment was given by DDA to be not genuineness. For reverification vide letter dated 11.02.2004, regarding alleged double/triple allotment and 291 cases of not mentioned in the original list of Punjab migrants, therefore, in a meeting held on 21.03.2004 in the chamber of Principle Commissioner of DDA and DC Revenu, a committee was constituted of two officers from DDA and DC revenue for scrutinizing the original documents of all the allottes of Peera Gari Camp. It also came in the pleadings and with supported documents that original allottee in this case failed to appear despite being served with the show cause notice dated 21.10.2004 and notice by publication on 04.06.2006. The cognizance of this fact can be taken specifically when original allottes have not appeared in this case as a witness to state that process was not properly carried out for reverification of documents eligibility for allotment. Even if we ignore the facts stated in the WS and the documents still onus was on the plaintiff to show that there has been any irregularity committed while verifying the documents for eligibility and genuineness. It is not where stated even by plaintiff that allottee appeared before committee. When it is not disputed that original allottee failed to appear before the committee then it does not lie in the mouth of the plaintiff to state that the allotment was incorrectly canceled. It may be noted that original allottee had not appeared as witness in the present case nor were made the party in the present suit for reasons best known to plaintiff. In such situation, in the absence of any evidence to show that process of reverification carried out by Committee constituted for this purpose was not correct or that allottee had appeared with original documents, I do not find that any case is made out for relief of declaration as prayed for by plaintiff. Accordingly, this issue stands decided against plaintiff specifically in view of my findings on issue no.2.
9Issue No.4 This issue was framed on the objection taken on behalf of the defendant that suit is barred by limitation however, taking the plaint on the face of it, since it is the case of the plaintiff that she received the letter dated 24.11.2008 from DDA thereafter, filed the present suit seeking permanent injunction and declaration. Suit is within limitation. Accordingly, this issue stands decided in favour of the plaintiff and against the defendant.
Issue no.5 and 6 In view of the my findings on issue no.2 and 3 it has already been held that transfer of ownership of suit flat by original allottee in favour of Kumud Aggarwal and thereafter, to plaintiff was not in accordance with law. This court has already held that cancellation of allotment was not rightly done, therefore, once this finding has come I find that plaintiff has failed to establish any right therefore, both these issue stands decided against the plaintiff.
Relief.
In view of my findings on issue no.1, 2, 3, 5 and 6 suit stands dismissed. File be consigned to record room.
Announced in the open court (SH. SHAILENDER MALIK) On 01.12.2014 (SCJRC, ROHINI COURTS, DELHI) 10 Suit No.83/13 At 12:30 pm Pr. Sh. Sudershan Joon Ld. Counsel for the plaintiff. Ms. Ravi Prabha Ld. Counsel for the defendant. Counsel for the DDA has given the statement for not leading DE. I have heard the arguments of Ld counsel for the parties. Put up for orders at 4:00 pm. (SH. SHAILENDER MALIK) (SCJRC, N/W ROHINI COURTS, DELHI) 02.12.2014 At 4:00 pm. Pr. None
Vide my separate order of even date, suit stands dismissed. File be consigned to record room.
(SH. SHAILENDER MALIK) (SCJRC, N/W ROHINI COURTS, DELHI) 02.12.2014