Delhi District Court
Sh. Ram Ashrey vs Delhi Development Authority on 27 July, 2010
Suit No. 1005/2006
IN THE COURT OF SH. CHANDER JIT SINGH: CIVIL JUDGE (WEST):
TIS HAZARI COURTS: DELHI
Suit No. 1005/2006
Sh. Ram Ashrey
S/o Sh. Nanan Ram
R/o B-208, Hari Nagar,
New Delhi.
...................PLAINTIFF
VERSUS
1. Delhi Development Authority
Through its vice chairman
Vikas Sadan, INA Market
New Delhi.
2. Sh. Sat Narayan
S/o Sh. Amin Chand Sharma,
R/o Y-159, JJ Colony No. 1,
Nangloi, Delhi.
3. Sh. Bal Kishan
S/o Sh. Amin Chand Sharma,
R/o Y-159, JJ Colony No. 1,
Nangloi, Delhi.
...........DEFENDANTS
Date of Institution : 08.11.1993
Date of Reservation : 15.07.2010
Date of Decision : 27.07.2010
J U D G E M E N T:
This is the suit for declaration and mandatory injunction filed by the plaintiff. The case of plaintiff in brief is:
1. That plaintiff is in possession of property bearing no. E-99, Mayapuri, Phase-II, New Delhi (hereinafter referred to as suit property) since, 1977 and suit property was initially alloted to Satnarain and Bal Kishan by defendant no.1. Allottee of the suit Ram Ashrey Vs. DDA 1/7 Suit No. 1005/2006 property has executed power of attorney and other documents in favour of plaintiff and plaintiff was put in vacant and peaceful possession of suit property. Plaintiff is doing his business of Old motor parts from the very beginning in the name and style of M/S Jagdish Auto Parts and as the sole proprietor of the aforesaid firm. Plaintiff is income-
tax assessee and is also member of Old motors and machineries parts Dealer Association. That about 20 days before filing the suit, officials of defendant no.1 tried to illegally dispossess plaintiff despite having a knowledge and awareness about the ownership and possession of plaintiff. After that, plaintiff submitted that he is ready and willing to pay necessary mutation fees/ charges as well as unreasoned increase amount. That officials of defendant no.1 has visited repeatedly and threatened to dispossess him. Hence, the present suit.
2. Upon notice, written reply was filed on behalf of Defendant no.1/ DDA contending that no notice under Section 53 (B) of DD Act has been served on defendant and therefore, suit is not maintainable in this form. Suit has not been properly valued and more than relief of injunction is sought. Plaintiff has not come to the court with clean hands and suppressed the material facts from the court. It was averred that plaintiff is an unauthorized occupant of property bearing no. E-99, Mayapuri, Riwari Lines, Industrial Area, Phase-II, New Delhi. Suit property was initially procured by one Sh. Satyanarain and Bal Kishan and later on, allotment was canceled as original allottees were not running any commercial activities being the Government employees. Fact of subsequent cancellation was communicated to the original allottees vide letter no. F-21 (158) 75/LSB(I) dated 14.06.1978. Suit filed by original allottees was also dismissed. In view of this, any transfer made by any original allottee is illegal and against the law and therefore, neither plaintiff nor anybody else has any right, title or interest in the suit property. DDA is within its rights to resume possession from unauthorized occupants and therefore, plaintiff has no locus standi to file the present suit. Hence, Ram Ashrey Vs. DDA 2/7 Suit No. 1005/2006 the suit be dismissed.
3. Plaintiff had filed the replication to the written statement of defendants reasserting the averments of the plaint and denying the contrary allegations of their written statements.
4. From the pleadings of the parties, following issues were framed:
1. Whether the plaintiff is in settled possession of suit property? OPP.
2. Whether plaintiff has any right, title or interest in the suit property? OPP.
3. Whether the plaintiff is entitled to relief claimed for? OPP.
4. Relief.
5. In order to prove his case, plaintiff has examined two witnesses and relied upon photocopy of registration with shops & Establishment Office as Ex. PW1/1; electricity bills Ex. PW1/2; IT assessment as Ex. PW1/3 and photocopy of LIC policy as Ex.
PW1/4. Defendant has also examined two witnesses to prove his case and relied upon copy of letter dated 02.12.1972 as Ex. DW1/1; copy of allotment letter as Ex. DW2/1A; possession certificate dated 01.10.1975 as Ex. DW2/1B; copy of allotment committee report/ finding as Ex. DW2/2; copy of cancellation letter dated 02.12.1977 as Ex. DW2/3; copy of reply by plaintiff as Ex. DW2/4 and letter dated 03.12.1990 as Ex. DW2/5.
6. I have heard the arguments advanced by both the parties and meticulously examined the judicial file and documents placed on record. My issue-wise findings are as follows:-
ISSUE No. 1, 2 & 3.
All these issues are taken up together as they are inter connected and to achieve brevity. PW1 was examined twice i.e. on 18.12.1997 and on 31.10.2005 for reason that subsequently amendment was made in the pleadings. On both the occasions, plaintiff has deposed on lines of claim made in the plaint in his examination-in-chief. He Ram Ashrey Vs. DDA 3/7 Suit No. 1005/2006 was thoroughly cross-examined on both the occasions. In his cross-examination conducted on 18.12.1997, he stated that he has no knowledge about cancellation of allotment of suit plot by DDA. He admitted that he never inquired from DDA office the fact that whether suit property is in name of Satnarian or not. He further admitted that "Mark-A" which is cancellation letter has been filed with list of document on behalf of plaintiff on 19.11.1993. He further admitted that he has not filed any GPA etc executed by Sat Narain in his favour. In his cross-examination on 03.10.2005, he stated that he is not in possession of any documents with regard to sale or purchase of suit property. He also stated that he was partner of Sat Narain Sharma, however no partnership deed has been filed on record. He further stated that partnership was entered in 1975 which was dissolved 5-6 years back. Raghbir Singh was examined as PW2 on 09.07.1998. In his cross-examination, he has stated that plaintiff is carrying on the business of motor parts and is his neighbour from last 20 years. He further stated that no transaction of sale/ purchase took place in his presence. After closure of evidence, A. S. Sharma, Asstt. Director, Land Sales Branch was examined as DW1 on 10.11.1998. DW1 deposed on the lines of written statement in his examination-in-chief. He had also stated that as per his record, Sat Narain executed Power of Attorney in favour of Ram Ashrey on 08.01.1986 but property was never mutated in the name of plaintiff. In his cross-examination, he stated that a request of Ram Ashrey to allot suit land in his favour is on record though it is without date and a reply dated 03.12.1990 was sent to Ram Ashrey apprising him the allotment of suit plot in name of Sat Narain has been cancelled due to concealment of facts by them and therefore, request cannot be accepted. DW2 was examined after amendment of pleadings in the year 2007. He reiterated the defense made in the written statement in his examination in chief by way of affidavit. In his cross-examination, he stated that allotment was cancelled by allotment committee on the ground that allottees were employed. He further stated that records do not contain any documents showing Ram Ashrey Vs. DDA 4/7 Suit No. 1005/2006 their employment. He further stated that it is correct that no notice or show cause notice has ever been issued to the plaintiff or the alltotee by the allotment committee before resorting to cancellation of suit plot. It is correct as per record that neither any enquiry nor police complaint has ever been made against the original allottee on the ground of concealment of fact. He further stated that as per record, it is correct that the possession of plaintiff over the plot in question is continuous. It is further stated that it is correct that no action has been taken by the DDA against plaintiff under Public Premises Act.
Ld. Counsel for plaintiff has argued that cancellation is illegal as it was done without any notice and was communicated after one and half year of cancellation. He argued that IT returns, LIC etc shows his possession on suit land. He further argued that his possession has not been disputed by any of the DWs and further that he has obtained possession by lawful means. He argued that bonafide of plaintiff can be gathered from the fact he has applied in DDA for mutation. Hence, suit be decreed.
Ld. Counsel for defendant has argued that transaction was made in violation of lease deed. He argued that cancellation of allotment was made after scrutinization and consequently, property became public property and hence, possession of plaintiff is not legal. It was argued that earlier allotees had filed a suit challenging the cancellation but the same was dismissed in default. He further argued that at the time of transaction, there was nothing vested in allottees which can be transferred by him and prayed that suit be dismissed.
Case of plaintiff is that he has purchased the suit property from Satnarain and Bal Kishan to whom allotment was made. Though, plaintiff has admitted in his cross-examination that neither he has filed document of ownership i.e. GPA etc nor they were in his possession. Hence, there is nothing on record on the basis of which right, title or interest of plaintiff in the suit property, if any, can be evaluated. Even otherwise, in the case of Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana, AIR 2009 SC 3077, Ram Ashrey Vs. DDA 5/7 Suit No. 1005/2006 Hon'ble Supreme Court of India has held that illegal and irregular process of Power of Attorney sales which interferes with regular transfers under Deed of Conveyance properly stamped, registered and recorded in register of Registration Department is to be discouraged and deprecated. Further, in G. Ram Vs. DDA AIR 2003 Delhi 120, Hon'ble High Court of Delhi has held that an agreement of sale is not a document of transfer nor by reason of execution of power of attorney, right, title or interest of an immovable property can be transferred. Such a transfer can be effected by executing a registered document as envisaged under Section 54 of Transfer of Property Act read with Section 17 of Registration Act. Therefore, these documents, if any exists as none has been brought on record, have no force nor confer any right to plaintiff. Further, as per Ex. DW2/1A, suit plot was allotted on perpetual lease hold basis and in case of leasehold allotments, prior permission of DDA is required before entering into any transaction with regard to lease property but there not even a single a assertion that such permission was sought much less obtained. Though, it is admitted by DW2 that no notice was served on allottees before cancellation of plot yet the question arises that whether a person, who bases his claim on the document which do not have legal recognition, can question the legality of cancellation by DDA. Still considering this question on merit, there is nothing on record which shows cancellation being questioned in DDA by way of representation by any of the allottes or by the plaintiff even who allegedly has become owner. One may be tempted to assume that there has been violation of principal of natural justice by not affording any opportunity to allottes before cancellation of allotment but one must weigh also time taken to seek its redressal as the suit was filed in 1993 and admittedly, allotees have the knowledge since 1977. Rather efforts were made by plaintiff to get property mutated in his name and when he was informed in 1990, he kept sleeping over his rights till 1993 and no action was taken. Further, perusal of Ex. DW2/2 shows that Bal Krishan has made some representation with regard to suit property and it is observed that "on Ram Ashrey Vs. DDA 6/7 Suit No. 1005/2006 appearance, Sh. Bal Krishan deposed". Since this shows that Bal Krishan appeared and in such case, it cannot be said that allottees were not given any chance to present themselves. Further, it has also been observed in Ex. DW2/2 that " on demand by allotment committee, none of them (i.e. original allottees) could produce any business records". Hence, they were given chance but they fail to show that they were running business but they failed to prove it and therefore, it cannot be said that they were not given chance of hearing before cancellation. However, the possession of plaintiff has been admitted by DW2 in his cross-examination and also it has been admitted that no proceedings under Public Premises Act has been initiated. In view of above discussions, issue of having right way of ownership is decided against plaintiff and in favour of defendant and issue of possession is decided in favour of plaintiff and against defendant. Relief:-
In view of above discussions, suit if partially decreed by way of permanently restraining defendant from dispossessing plaintiff from suit property except in due course of law. Suit with regard to mandatory injunction and declaration is dismissed. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court today on 27.07.2010 (CHANDER JIT SINGH) Civil Judge (West) THC, Delhi /27.07.2010 Ram Ashrey Vs. DDA 7/7