Delhi District Court
Sh. Ram Vilas vs Delhi Development Authority on 4 May, 2019
Old CS No. 248/14
New CS No. 535683/16 Dated:-04.05.2019
IN THE COURT OF MS. VANDANA,
SCJ CUM RC (NORTH), ROHINI COURTS, DELHI.
In the matter of :-
1. Sh. Ram Vilas
S/o Sh. Mangali Prasad
R/o Begum Pur Extension,
Begum Pur, New Delhi
2. Lokesh
S/o Ram Prasad
R/o RZ-123, Block-2,
Sangam Vihar, Nazafgarh,
New Delhi
3. Satveer Singh
S/o Sh. Swaroop Singh
R/o E-1/165, DDA Flats,
Sunder Nagri, Delhi
4. Sh. Bhim Singh
S/o Sh. Lekhraj
R/o 595, J. J. Sunlight Colony no. 2,
Kilokari, Delhi-110014
5. Rajeev Parkhi
S/o Sh. Dev Parkhi
R/o V.P.O. Meer Pur,
Tehsil Khurja, District
Bulandshahar, U. P. ...........Plaintiffs
VERSUS
1. Delhi Development Authority
Vikas Sadan, INA, New Delhi-110023
Through it's Vice Chairman
Local Office of DDA
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New CS No. 535683/16 Dated:-04.05.2019
Madhuban Chowk, Sector-14,
Rohini, Delhi.
2. Commissioner of Police
Delhi Police,
I.P. Estate, New Delhi
Through it's additional Commissioner of police
Economic Offence Wing,
Crime Branch, Mandir Marg,
New Delhi ........... Defendants
JUDGMENT
1. New No. : 535683/16
2. Under Section : Suit for Permanent &
Mandatory Injunction
3. Date of Institution : 09.10.2014
4. Date of Final Order : 04.05.2019
5. Final Order : Dismissed
The present suit is for Permanent & Mandatory Injunction filed by the plaintiffs against the defendants.
1. Succinctly stated the fact as mentioned in the plaint are as under:-
1.1 The plaintiffs applied for allotment of flat with defendant no. 1 under the housing scheme of 2008. All five plaintiffs belong to Scheduled Caste category for the purpose of benefit of reservation in allotment. It has been alleged that despite having been declared plaintiffs successful by the DDA / defendant no. 1 did not issue demand-cum allotment letter to the plaintiffs.
1.2 It has been further averred that soon after the publication of allotment of flats, the Economic Offence Wing of Delhi Police registered an FIR no. 2/2009 section 419/420/467/468/471/120-B IPC for huge conspiracy behind Sh. Ram Vilas & Ors. Vs. DDA & Ors. 2/17 Old CS No. 248/14 New CS No. 535683/16 Dated:-04.05.2019 the allotments of flats under the Delhi Development Authority Scheme alleging that persons of scheduled casts and scheduled tribe category (including plaintiffs) were fraudulently induced by accused persons to file their application forms for flats allotment and their signatures were obtained on applications forms, Bank loan Forms.
1.3 Thereafter, on 11.12.2009, all the plaintiffs received letters from the Deputy Director Housing Development EHS/LIG/MIG/SFS, Delhi Development Authority through which the plaintiffs were informed that E.O.W. Crime Branch of Delhi Police has intimated vide letter no. 423/P/Sec/Addl.
C.P./EOW/dated 29.10.2009 that their case of allotment of flats in question is under investigation. Therefore, their demand cum allotment letter is withheld till the final outcome of investigation by the EOW and whenever the report is received from the EOW Crime Branch, New Delhi further necessary action would be taken accordingly.
1.4 The plaintiffs submitted their written representation dated 03.03.2011 in the form of legal notice, however, the same was not responded. Therefore, the plaintiffs filed Writ Petition which was disposed of vide order dated 06.02.2012 by the Hon'ble High Court of Delhi granting liberty to the plaintiffs to seek vacation/modification of direction dated 29.10.2009 issued by the respondent/EOW to the DDA by filing appropriate application in that regard.
1.5 Thereafter, the plaintiffs submitted their applications before Hon'ble Court of Ld. C.M.M. the trial court of the above said criminal case, seeking direction to EOW to vacate the direction given in the letter no. 423/P/Sec/Addl.C.P./EOW/dt. 29.10.2009 and in alternative directing the EOW to grant no objection to Delhi Development Authority for issuance of demand cum allotment letter in respect of flats of above plaintiffs/allottees. It has been further stated that the above noted application was dismissed by Hon'ble Court of Ld. C.M.M. Rohini, Delhi being beyond the circumscribe of criminal procedure code, holding that letter dated 29.10.2009 issued by EOW to Delhi Sh. Ram Vilas & Ors. Vs. DDA & Ors. 3/17 Old CS No. 248/14 New CS No. 535683/16 Dated:-04.05.2019 Development Authority does not direct Delhi Development Authority to withhold allotment of the plaintiffs. However, Hon'ble Court directed Delhi Development Authority that in case it finds that the plaintiffs have not acted in breach of terms of scheme, Delhi Development Authority would be free to give effect to the allotments, notwithstanding the pendency of the criminal case.
1.6 It has been averred that the result of Forensic Science Laboratory reveals that the applications for DDA for allotment, Bank kits and PAN Forms were signed by the plaintiffs themselves and no forgery was deducted. The earnest money of the plaintiffs Rs. 1,50,000/- for each flat is still lying with defendant no. 1 and plaintiffs have repaid the loan amount of earnest money deposited by their banker on their behalf. It has been further stated by them that the plaintiffs are bearing interest thereupon and suffering from wrongful financial loss and defendant no. 1 gaining wrongfully for the same from the date of deposition of earnest money. It has been further alleged that the plaintiffs have served legal notice dated 16.07.2014 to defendant no. 1 but on inaction by defendant no. 1 plaintiffs served their reminder of legal notice upon DDA, but no action was taken by the DDA. Later on, counsel for plaintiffs Sh. Rakesh Kumar Burman received a reply of DDA dated 26.08.2014 under reference no. 642921/legal notice/2014/1894 in it had informed that as and when the report is received from defendant no. 2, the demand letter may be generated and the same shall be proceeded further. Having no other alternative, the present suit seeking the following reliefs was filed:-
(A) Mandatory Injunction - Direction to defendant no. 1 to issue demand letter and further process for allotment of the flats in D.D.A. Housing Scheme of 2008 for allotted flats of plaintiffs against their applications.
(B) Permanent Injunction - Restraining defendant no. 2 from causing interference and undue influence in the process of allotment of the plaintiffs in Housing Scheme of 2008 of D.D.A. for the flats of the plaintiffs against their applications.
Sh. Ram Vilas & Ors. Vs. DDA & Ors. 4/17 Old CS No. 248/14 New CS No. 535683/16 Dated:-04.05.2019 2. WRITTEN STATEMENT OF DEFENDANT NO. 1 2.1 Vide written statement, it was submitted that there is no cause of
action in favour of the plaintiffs for instituting present suit against the DDA and present suit is liable to be rejected. It was further submitted that the plaintiffs Shri Ram Vilas, Shri Lokesh, Satveer Singh, Bhim Singh and Shri Rajeev Parkhi had applied for allotment of flat under DDA Housing Scheme-2008 and they were alloted flats in the draw held on 16.12.2008. It was further submitted that the Additional Commissioner of Police, Economic Offences Wing, Crime Branch, Delhi Police, New Delhi vide letter No. 423/P.Sec./Addl.CP/EOW dated 29.10.2009 in "Status Report with respect to FIR No. 2/2009 dated 09.01.2009"
stated that allotment case of Shri Ram Vilas, Shri Lokesh, Satveer Singh, Bhim Singh and Shri Rajeev Parkhi/plaintiffs is under investigation of Economic Offence Wing. Intimation in this regard was sent by DDA vide letter dated 11.12.2009 to all the plaintiffs, stating therein that their demand-cum- allotment letters are withheld till final outcome of the investigation by the EOW and whenever, the report is received from the EOW, Crime Branch, further necessary action would be taken accordingly.
2.2 It was further stated that the plaintiffs filed writ petition before Hon'ble High Court of Delhi bearing No. WP(C)No. 2009-13/2011 for quashing of a common communication by DDA dt. 11/12/2009 withholding demand-cum- allotment letters of the petitioners and for issuance of writ of mandamus directing DDA to issue the demand-cum-allotment letters to the petitioners and thereafter to handover the delivery of possession of allotted flats. That during the pendency of aforesaid writ petition, a status report was filed by EOW on 03.02.2012 stating that petitioners were also examined during investigation, the application forms of 46 dummy/proxy applicants were recovered, collected and referred to Forensic Science Laboratory, Rohini, Delhi for comparison with specimen handwritings of these dummy/proxy applicants and of the accused persons. Further investigation revealed that the the plaintiffs herein were dummy/proxy applicants and even the funds for filling their application forms Sh. Ram Vilas & Ors. Vs. DDA & Ors. 5/17 Old CS No. 248/14 New CS No. 535683/16 Dated:-04.05.2019 were arranged by the accused, Mithan Lal Gautam. It was further stated that the Hon'ble Court disposed of the aforesaid writ petition vide order dated 06/02/2012 with liberty granted to the petitioners to seek vacation/modification of the direction dated 29/10/2009 issued by EOW to DDA in the court of Ld. CMM.
2.3 That aforesaid petitioners approached the Court of Ld. CMM who declined the prayer of the applicants vide order dated 07/06/2014 with following observations that "this is without prejudice to the right of DDA to independently decide whether its terms and conditions have been violated in respect of five flats. In order to assist the DDA to take the decision, the EOW may place before the DDA a copy of all relevant material including the said allotments alongwith copy of the chargesheet and other documents. DDA shall be at liberty to decide whether to proceed with allotment keeping in view all relevant material. In case it finds that the applicants have not acted in breach of the terms of the scheme, DDA would be free to give effect to the allotments notwithstanding the pendency of the case. Similarly, if DDA finds that allottees are not entitled to the allotment, the DDA shall be free to cancel their allotments without being influenced by any observation made in this order".
2.4 It has been further submitted that no direction was issued against the DDA by the Hon'ble High Court of Delhi and Ld. CMM, Delhi. Moreover, DDA was/is not a party in criminal case. It is further submitted that Ld. CMM in his order in para 11 observed that "the correctness of the above assertion cannot be adjudicated by this court and this determination is in the province of DDA". Therefore, it is clear from the observation of the Ld. CMM that the Court of LD. CMM was not having the power to adjudicate the matter.
2.5 It was further alleged that the simplicitor suit of the plaintiffs for injunction without seeking relief of declaration is not maintainable. Further, the suit is barred by law of latches as it has been filed after more than 4 years of receiving of the letter dt. 11.12.2009 from the defendant no. 1/DDA.
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2.6 It was further alleged that DDA has no mechanism to adjudicate
and decide the involvement/culpability of the plaintiffs in the alleged fraud committed by the accused persons. Therefore, unless and until the case bearing FIR No. 2/09 is finally decided by the concerned Court regarding the culpability of the plaintiffs, the DDA cannot hand over the allotted flats to dummy/proxy applicants.
3. No rejoinder was filed.
4. FRAMING OF ISSUES 4.1 Vide order dated 13.11.2017, following issues were framed :
(a). Whether the plaintiff is entitled to the decree of Mandatory Injunction as prayed for ? OPP.
(b). Whether the plaintiff is entitled to the decree of Permanent Injunction as prayed for ? OPP.
(c). Whether the suit is bad for want of cause of action ? OPD-1
(d). Whether the suit is not maintainable as the plaintiff has suppressed the material facts ? OPD-1.
(e). Whether the present suit is not maintainable as simplicitor suit for injunction without seeking relief of declaration is not maintainable ? OPD-1.
(f). Whether the suit is barred by section 11 and order 2 rule 2 of CPC ? OPD-1.
(g). Whether the suit is barred by law of limitation ? OPD-1
5. PLAINTIFF'S EVIDENCE 5.1. Plaintiff no. 4 Sh. Bhim Singh was examined as PW1 and tendered his evidence vide affidavit Ex. PW1/A. He relied upon the following documents:-
(a) Mark A is order passed by Ld. CMM dated 07.06.2014 ;
(b) Mark B is forensic science laboratory report ;
(c) Mark C is letter dated 11.12.2009 ;
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(d) Mark D is status report dated 28.10.2009 filed by the defendant no. 2 to
LG ;
(e) Mark E is order of Hon'ble High Court dated 06.02.2012 ;
(f) Ex. PW1/1 is the legal notice dated 16.07.2014 ;
(g) EX. PW1/2 and Ex. PW1/3 are postal receipts dated 16.07.2014 ;
(h) Ex. PW1/4 and Ex. PW1/5 are AD cards dated 16.07.2014 ;
(i) Ex. PW1/6 is computer copy of legal notice dated 14.08.2014 ;
(j) Ex. PW1/7 is postal receipt dated 14.08.2014 ;
(k) Ex. PW1/8 is computer copy of reminder of legal notice ;
(l) Ex. PW1/9 is postal receipt dated 14.08.2014 ;
(m) Ex. PW1/10 is computer copy of legal notice to the defendant no. 2
dated 03.09.2014 ;
(n) Ex. PW1/11 is postal receipt dated 03.09.2014 ;
(o) Ex. PW1/12 is copy of letter dated 26.08.2014.
5.2 Plaintiff no. 2 Sh. Lokesh was examined as PW2 and tendered his
evidence vide affidavit Ex. PW2/A.
5.3 Plaintiff no. 5 Sh. Rajeev Parkhi was examined as PW3 and tendered
his evidence vide affidavit Ex. PW3/A.
5.4 Plaintiff no. 1 Sh. Ram Vilas was examined as PW4 and tendered his
evidence vide affidavit Ex. PW4/A.
5.5 All of them relied upon the documents already exhibited as Ex.
PW1/1 to Ex. PW1/12.
6. They were duly cross-examined and discharged. Thereafter, PE was closed.
7. EVIDENCE OF DEFENDANT NO. 1 7.1 Sh. Jai Singh, Assistant Director (LIG), DDA, I.N.A, Vikas Sadan, New Sh. Ram Vilas & Ors. Vs. DDA & Ors. 8/17 Old CS No. 248/14 New CS No. 535683/16 Dated:-04.05.2019
Delhi was examined as DW-1 and tendered his evidence vide affidavit Ex.
DW1/A. He relied upon the documents i.e. photocopy of letter dated 28.10.2009 is Mark 'D' and annexure 'B' is mark D-A. He was duly cross- examined and discharged. Thereafter, DE stands closed.
7.2 Due to consistent absence of defendant no. 2, he was proceeded ex parte vide order dated 14.03.2017.
8. Final arguments heard. Case file perused.
9. My issue wise findings are as under:-
10. I shall decide the legal issue first:-
11. ISSUE No. (c). Whether the suit is bad for want of cause of action ? OPD-1 11.1 It was contended by the defendant / DDA that no cause of action to file the present suit arose in favour of the plaintiff from the order dated 07.06.2014 passed by Ld. CMM, as the said order was only an observation and no direction was passed for the DDA.
11.2 It was further stated by the defendant no. 1 that the plaintiffs had applied for allotment of flat under DDA scheme 2008 and they were alloted flats in draw held on 16.12.2008 but demand cum allotment letter could not be issued due to investigation of FIR no. 2/2009 dated 09.01.2009 and that is why DDA withheld the further process of allotment till the final outcome of the case, hence the plaintiffs have no cause of action.
11.3 Undoubtedly, cause of action is to be seen from the facts averred in the plaint. It was agitated by plaintiffs that cause of action is continuous one as DDA / defendant no. 1 has wrongfully withheld the further process of allotment Sh. Ram Vilas & Ors. Vs. DDA & Ors. 9/17 Old CS No. 248/14 New CS No. 535683/16 Dated:-04.05.2019 till date in their favour.
11.4 It is an admitted fact by the DW1 that the allotment of plot of petitioners have not been cancelled but as, in the pending criminal case, the petitioners have been shown as dummy applicants therefore, further process has not been made with respect to the allotment of the flats in favour of the plaintiffs which has been challenged by the plaintiffs. Whether the plaintiff's challenge is valid one and they are entitled for the relief as prayed for, is altogether different, but, in the facts in hand, it is clear that the cause of action is continuous one for the plaintiffs under section 22 of Limitation Act. Therefore, suit can't be said to be without cause of action and accordingly, the above said issue is decided in favour of the plaintiffs and against defendant no. 1.
12. ISSUE NO. (e). Whether the present suit is not maintainable as simplicitor suit for injunction without seeking relief of declaration is not maintainable ? OPD-1.
12.1 It was contended by the defendant / DDA that no relief of declaration has been sought by the plaintiff and hence simplicitor suit for injunction without seeking the relief of declaration is not maintainable, in view of Anathule Sudhakar Vs. P. Buchi Reddy AIR 2008 Supreme Court, 2003.
12.2 In response to above, it was pointed out by the plaintiffs that their title is clear, hence, there is no need of seeking the relief of declaration.
12.3 But, undisputedly, the plaintiffs have been shown as proxy applicants in criminal case which case is sub judice and still at initial stage. So far as the arguments regarding FSL report favouring the plaintiffs, is concerned, it is trite to say that FSL report is corroborative piece of evidence and not Sh. Ram Vilas & Ors. Vs. DDA & Ors. 10/17 Old CS No. 248/14 New CS No. 535683/16 Dated:-04.05.2019 substantive. Hence, the plea of the plaintiff is that their title is clear, is not tenable in the eyes of law, more specifically in view of clause 22 of DDA housing scheme 2008 i.e. Ex. DW1/PA, which specifies as under :-
"If it is found that the applicant has applied although he was not eligible as per conditions laid down in para 2 of this brochure or has claimed benefit of reservation on the basis of wrong documents or has submitted more than one application as given in para 2 (IV & V) or has given false affidavit / information including quoting wrong PAN number or suppressed any material fact whether at the time of application or at the time of taking over possession or at the time of execution of conveyance deed, the application (s) allotment
(s) will be rejected / cancelled summarily without issuing any show cause notice for the same. In case of such cancellation / deposited against application
(s) allotment (s) shall be forfeited."
12.4 Therefore, in the present facts, the plaintiffs ought to have sought the relief of declaration that they be declared as owners of the flats in question which was alloted in their favour. The relief of injunction i.e. to direct the DDA / defendant no. 1 to issue demand letter and further process for allotment of the flats in D.D.A. Housing Scheme of 2008 for allotted flats of plaintiffs against their applications would be subsequent relief.
12.5 Therefore, I am of the view that simplicitor suit for injunction not maintainable, hence, the above said issue is decided against the plaintiffs and in favour of the defendant no. 1.
13. ISSUE NO. (d). Whether the suit is not maintainable as the plaintiff has suppressed the material facts ?
OPD-1.
13.1 The defendant has failed to specify any material suppression of
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facts by the plaintiffs. Neither any arguments were addressed in this regard at the time of final arguments. Therefore, as defendant no. 1 remained fail to discharge it's onus to prove the above said issue, accordingly the above said issue is decided against the defendant no. 1 and in favour of the plaintiffs.
14. ISSUE NO. (f). Whether the suit is barred by section 11 and order 2 rule 2 of CPC ? OPD-1.
14.1 It was alleged by the defendant / DDA that the present suit is not maintainable as the earlier Writ petition i.e. Writ Petition (C) No. 2009-13/2011 was filed by the plaintiff in the Hon'ble High Court of Delhi, has already been disposed of by the Hon'ble Justice Ms. Hima Kohli on 06.02.2012. Therefore the present suit is barred under section 11 and order 2 rule 2 CPC.
14.2 Before discussing the facts, I would like to recite the Section 11 which lays down that "no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit."
14.3 From the above, it is clear that for the purpose of applicability of section 11 the former proceedings must be a suit but in the case in hand it was writ petition filed before the Hon'ble High Court.
14.4 Further, Order 2 rule 2 lays down that "where a plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished."
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14.5 Again the above provision talks about the suit. There is a difference
between writ petition and the civil suit whereas the civil suit is filed for protecting the statutory or civil rights, writ petition is filed when fundamental rights are violated. Now coming to facts in hand, the plaintiff approached the Hon'ble High Court with the writ petition for quashing of common communication by DDA dated 11.12.2009 and for issuance of writ of mandamus directing DDA to issue the demand cum allotment letters to the plaintiff. The said writ petition was disposed of granting liberty to the plaintiffs to seek vacation / modification of direction dated 29.10.2009 issued by the respondent / EOW to the DDA by filing application. Accordingly, in the criminal court also the plaintiffs filed only an application that too with the limited relief which was granted by the Hon'ble High Court.
14.6 In view of the above, section 11 and order 2 rule 2 CPC is not applicable in the present facts and hence, the above said issue is decided in favour of the plaintiffs and against the defendant no. 1.
15. ISSUE NO. (g). Whether the suit is barred by law of limitation ? OPD-1 15.1 Preliminary objection was raised by the defendant regarding law of limitation submitting that the plaintiff has approached the court after more than 4 years of receiving the letter dated 11.12.2009 from the defendant no. 1 / DDA, hence the suit is beyond the limitation period.
15.2 On the other hand, it was pleaded by the plaintiffs that they firstly filed writ petition before the Hon'ble High Court bearing WP(C) No. 2009- 13/2011 on 23.03.2011. After that the plaintiffs resorted the jurisdiction of Hon'ble court of Ld. CMM Rohini, Delhi thereafter, they filed the present suit hence they are entitled to take the benefit of provision under section 14 of Limitation Act.
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15.3 The plaintiffs by way of writ sought the relief of quashing of
common communication dated 11.12.2009 addressed by the DDA vide which the plaintiffs were informed that the economic offence wing (EOW, crime branch, Delhi Police letter dated 29.10.2009 in FIR No. 2/2009 dated 09.01.2009) had informed the DDA that the allotment of the flat under the DDA housing scheme 2008 be withheld till the final outcome of the investigating by the EOW. Thereafter, the plaintiffs had approached the court of Ld. CMM dated 07.06.2014 praying for directions to economic offence wing, "to vacate the direction given in the letter" dated 29.10.2009 which was disposed of with the observation that in case the DDA finds that the applicants have not acted in breach of the terms of the scheme, DDA would be free to the allotment notwithstanding with the pendency of the case. Similarly, if DDA finds that the allottees are not entitled to the allotment, the DDA shall be free to cancel their allotments without being influenced by the observation made in that order".
15.4 It is apparent from the above that the plaintiffs had earlier knocked the door of Hon'ble High Court and in view of order passed by the Hon'ble High Cort, the plaintiffs approached the court of Ld. CMM. Thereafter, they filed the present civil suit. Considering the above sequence of litigation, it is evident that section 14 of Limitation Act comes into picture in the given facts as sub section 1 of section 14 of Limitation Act clearly lays down that in computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. Hence, the suit can not be said to be barred by law of limitation, and therefore, the above said issue is decided in favour of the plaintiffs and against the defendant no. 1.
16. ISSUE NO. (a). Whether the plaintiff is entitled to the decree of Mandatory Injunction as prayed Sh. Ram Vilas & Ors. Vs. DDA & Ors. 14/17 Old CS No. 248/14 New CS No. 535683/16 Dated:-04.05.2019 for ? OPP.
16.1 The onus to prove the above said issue was upon the plaintiffs. Through the relief of mandatory injunction, the plaintiffs have sought the direction to the defendant no. 1 to issue demand letter and to further process for allotment of the flats in DDA allotting scheme asserting that the plaintiffs have not been chargesheeted but their names have been cited only as witnesses and the letter dated 28.10.2009 issued by defendant no. 2 / EOW does not direct DDA / defendant no. 1 to withhold the allotment. It merely asks the DDA to scrutinize the applications and to report irregularities to the police.
16.2 From the record, it is apparent that in the supplementary charge sheet the plaintiffs name have been mentioned as dummy applicants at Sr. No. 3 (Bhim Singh), 7 (Lokesh), 10 (Rajiv Parkhi) , 20 (Satbir Singh), 46 (Ram Vilas). The counsel for plaintiffs argued that the FSL report revealed that the application form / bank kits and PAN forms were signed by the plaintiffs themselves and were not forged. At the cost of repeatation, it is again stated that forensic science laboratory report is not substantive of piece of evidence rather it is corroborative piece of evidence and the said criminal matter is still subjudice.
16.3 Further PW-1, 2, 3 neither filed their passbook regarding taking of loan from ICICI Bank neither brought any witness regarding the alleged return of the loan amount, though it was imperative upon the plaintiffs to prove the above said fact as DDA application, acknowledgment of Bhim Singh was recovered from the house of Sh. Mitthan Lal Gautam who is the main accused in FIR 2/2019 under section 174A/419/420/467/468/471/201/120B/34 IPC.
16.4 It was further deposed by PW-3 that he had deposited the cash of Rs. 1,50,000/- with ICICI bank for the purpose of booking the DDA Flat instead of DD, though as per the guidelines of DDA housing scheme, only Demand Drafts were to be accepted by the department.
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16.5 It is also important to mention here that PW-3 had deposed
that he deposited the amount of Rs. 1,50,000/- from his saving but he did not file any documentary proof in this regard.
16.6 If we look at the testimony of PW-4, he deposed that he had arranged the amount of Rs. 1,50,000/- by borrowing of Rs. 70,000/- from his brother and he withdrawn Rs. 80,000/- from the GPF account. However, on being cross-examined he duly admitted that according to his GPF passbook Ex. PW4/D-1, he had not withdrawn Rs. 80,000/- from his GPF passbook for the financial year 2007-08 and 2008-09.
16.7 Interestingly, PW-1 Sh. Bhim Singh is resident of R-595, JJ Sunlight colony no. 2 Kilokari, Delhi-110014 and PW-3 Sh. Rajeev Parkhi is resident of VPO Meerpur, Tehsil Khurja, Distt, Bulandshaher, U.P. Both the places are far away from each other but both the above named plaintiffs very surprisingly got the DD prepared from ICICI Bank, Meera Bagh Branch, New Delhi which itself creates a doubt.
16.8 As the plaintiffs could not prove the source of payment and further in view of the above contradiction and in the light of the clause 22 of DDA housing scheme 2008 i.e. Ex. DW1/PA, the above said issue is decided against the plaintiffs and in favour of the defendant no. 1.
17. ISSUE No. (b). Whether the plaintiff is entitled to the decree of Permanent Injunction as prayed for ? OPP.
17.1 The plaintiffs have prayed for restraining the defendant no. 2 / EOW from causing interference and undue influence in the process of allotment of plaintiffs in housing scheme of 2008 of DDA for the flats of the plaintiffs. Vide issuance of letter dated 29.10.2009, the defendant no. 2 / EOW had only asked for careful scrutiny of the applications received by the defendant no. 1 / DDA Sh. Ram Vilas & Ors. Vs. DDA & Ors. 16/17 Old CS No. 248/14 New CS No. 535683/16 Dated:-04.05.2019 and inform of any irregularities, which otherwise also, an imperative duty of the defendant no. 1 / DDA. Therefore, it is evident that there is no direction by the defendant no. 2 / EOW for withholding the allotment and the only request made by the defendant no. 2, is to carefully scrutinize the applications. So no question of any interference or undue influence of the defendant no. 2 / EOW in the process of allotment of the plaintiffs, arises at all. Otherwise also, plaintiffs remained fail to show even a single document, except the above said letter dated 29.10.2009 that defendant no. 2 / EOW is causing influence the process of allotment of plaintiffs in housing scheme of 2008 of DDA for the flats of the plaintiffs. Even, DW-1 categorically admitted that ACP EOW cell had not directed DDA to withhold the further process of allotment of the flat of the plaintiffs. hence, the above sought relief stands declined being not maintainable.
18. In view of my aforesaid findings, the suit of the plaintiffs is dismissed.
No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Announced in the Open Court on 04.05.2019.
(VANDANA) SCJ-cum-RC (North) Rohini Courts, Delhi/04.05.2019.
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