Delhi High Court
Smt.Rajo Devi vs Delhi Development Authority on 10 August, 2010
Author: Indermeet Kaur
Bench: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 03.8.2010
Judgment Delivered on: 10.8.2010
+ RSA No. 80/1995
SMT.RAJO DEVI ...........Appellant
Through: Mr.S.C.Nigam, Advocate.
Versus
DELHI DEVELOPMENT AUTHORITY
..........Respondent
Through: Mr.M.K.Singh and Mr.Rajesh
Mahajan, Advocates.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J.
1. This is a second appeal filed by the appellant/plaintiff.
2. (i) Plaintiff Rajo Devi had filed a suit for permanent and mandatory injuction against the Delhi Development Authority (DDA).
(ii) She had purchased a plot of land measuring 145 sq. yards comprised in Khasra No.134/1,167 and 169 situated at Village Jogabai Urban Area for a sum of Rs.1,000/- vide sale deed 2.6.1969.
(iii) On 30.12.1972 this land was acquired by the Land and Acquisition Department.
(iv) She was paid compensation on 29.9.1974.
RSA No.80/1995 Page 1 of 12
(v) Vide letter dated 6.2.1979, the Land Sales Officer (R),
DDA was directed by the Land and Building Department, Delhi Administration to allot a plot of land measuring 125 sq. yards to the plaintiff under the scheme of "Large Scale Acquisition Development and Disposal of the Land in Delhi"
as per the plaintiff's entitlement.
(vi) Accordingly plot no.71 in Block-E, Malviya Nagar, New Delhi measuring 104.515 was allotted to the plaintiff.
(vii) Vide communication dated 31.5.1979, plaintiff was directed to deposit a sum of Rs.9615.40 which she had accordingly done.
(viii) Possession slip was given to the plaintiff on 8.8.1979.
(ix) On 28.3.1980 stamp duty with the Stamp Collector was deposited by the plaintiff.
(x) On 26.5.1980 plaintiff deposited three copies of the perpetual lease deed with the DDA.
(xi) On 8.5.1981 plaintiff received a letter dated 6.5.1981 from the Deputy Director, DDA informing her that the allotment of the afore plot No.E-71, Malviya Nagar, New Delhi stood cancelled. She was directed to handover the possession of the plot to DDA.
(xii) This cancellation of her allotment was illegal, arbitrary and without notice to the plaintiff.
(xiii) Injunction had been sought against the DDA from dispossessing the plaintiff from the aforenoted suit property.
3. In the written statement, the DDA had contested the suit. A preliminary objection had been taken that the allotment and the cancellation had been done by the DDA only at the instance of the RSA No.80/1995 Page 2 of 12 Delhi Administration and as such the Union of India and the Delhi Administration were necessary parties in the suit. On merits, it was stated that pursuant to inter se communication dated 17.2.1981 between the DDA and the Delhi Administration the Delhi Administration had informed the DDA that no such file qua the allotment in favour Rajo Devi had been opened by the Department and as such the question of their sending any recommendation letter to the DDA did not arise. It was stated that the said letter Ex.DW-1/1 dated 6.2.1979 recommending allotment in favour of Rajo Devi appeared to be a forged document and a vigilance enquiry had also been ordered against various such like incumbents.
4. The Trial Court had framed four issues. Oral and documentary evidence led before the Trial Court had been examined; the contention of the plaintiff that her allotment had been cancelled without any show cause notice had been upheld; being violative of the principles of natural justice. Principle of promissory estoppel invoked by the plaintiff was also held applicable against the DDA. The so-called fraud alleged by the DDA had not been detailed; this defence of the defendant was rejected. The suit of the plaintiff had been decreed on 9.9.1993.
5. The first Appellate Court vide judgment and decree dated 16.9.1995 reversed the finding of the Trial Judge. It held that the Trial Court had fallen in grave error in ignoring the contention of the defendant that the Union of India and the Delhi Administration were necessary parties in the absence of whom the suit of the plaintiff could not be decreed. On this proposition, the first Appellate Court drew support from the communication dated RSA No.80/1995 Page 3 of 12 6.2.1979 (Ex.DW-1/1) addressed by the Under Secretary, Land and Building Department, Delhi Administration to the DDA as also another communication dated 21.3.1979 (Ex.DW-2/A). It was held that these documents clearly evidenced that the DDA is not the authority which can allot the land; it is the only Delhi Administration which can make such allotments. As such the Delhi Administration was a necessary and a proper party. Reliance upon the amended provisions of Order 1 Rule 9 CPC and the proviso contained therein was relied upon to non-suit the plaintiff, holding that the Delhi Administration being a necessary party not having been joined, the suit of the plaintiff was liable to be dismissed. The appeal was accordingly allowed and the decree of the Trial Judge was set aside.
6. This is a second appeal. On 22.9.1997 the substantial question of law was formulated which inter alia reads as follows:
"Whether Delhi Administration/Union of India is a necessary party since the land in question has been put at the disposal of D.D.A. under Section 22 of the Act and the land having been dealt with for all purposes by the D.D.A.?"
7. In the course of the arguments, learned counsel for the appellant has submitted that two more substantial questions of law have in fact arisen which had not been formulated. The first relates to the violation of the rules of natural justice, as admittedly no show cause notice had been issued to the plaintiff before her allotment was cancelled vide communication dated 6.5.1981. The second substantial question of law relates to the principle of promissory estoppel. The first Appellate Court should have taken note of this principle as formulated in Section 115 of the Evidence Act and in this view of the matter could not have reversed the findings of the Trial Judge. Both these questions of law have to be RSA No.80/1995 Page 4 of 12 answered by this Court.
8. It is relevant to state that the first Appellate Court vide its impugned judgment dated 16.9.1995 had non suited the plaintiff and dismissed his suit only on one issue i.e. non-joinder of necessary party. The violation of rules of natural justice, if any, had not been gone into and neither had the question of promissory estoppel been dealt with by the first Appellate Court. The Trial Court had given a finding that the rules of natural justice had been violated; further the principle of promissory estoppel will operate against the DDA; the DDA had been estopped from cancelling the allotment of the plaintiff. These issues were neither raised and nor discussed by the first Appellate Court.
9. As already noted supra, the first Appellate Court had dismissed the suit of the plaintiff only on the ground of non-joinder of a necessary party. As such these additional grounds now raised do not have to be gone into as no adverse finding on these propositions have been given which go against the plaintiff. This Court thus has only to answer the substantial question of law as formulated by it on 22.9.1997.
10. Order 1 Rule 9 of the Code is the statutory provision for mis- joinder and non-joinder of parties. It reads as follows:-
"No suit shall be defeated by reason of the misjoinder or non- joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
Provided that nothing in this rule shall apply to non-joinder of a necessary party."
11. This provision mandates that no suit shall be defeated by reason of mis-joinder and non-joinder of the parties. However the proviso clarifies that nothing in this rule will apply to non-joinder of RSA No.80/1995 Page 5 of 12 a necessary party. Therefore, care must be taken to ensure that the necessary party is before the Court, be it the plaintiff or the defendant, otherwise, the suit or the proceedings will have to fail. Necessary party is a party whose presence is necessary in order that the decree if passed in the proceedings can become an effective decree. Such a person should be bound by the result of the action and the question to be settled and where such a question in the action cannot be effectively and completely settled unless he is a party; in such an eventuality the suit is liable to be dismissed. However, the Court in a given case may permit the plaintiff to amend the suit by impleading the necessary party.
12. Perusal of the record shows that the facts which emerge are by and large undisputed.
13. It is not in dispute that Rajo Devi had purchased a plot measuring 145 sq. yards of land in Khasra no.134/1,167, 169, Village Jogabai which had been acquired in proceedings under the Land Acquisition Act. It is also not in dispute that communication dated 6.2.1979 Ex.DW-1/1 had been received by the DDA from the Delhi Administration wherein the DDA had been requested to allot a plot of 125 sq. yards land in favour of the plaintiff Rajo Devi; a copy of which had also been endorsed to Rajo Devi. Thereafter the consideration amount of Rs.9615.40 had been deposited by the plaintiff pursuant to which a possession slip had been handed over to her. Vide communication dated 6.5.1981 Ex.DW-1/3 without notice to the plaintiff her aforenoted allotment was cancelled. The reason for the cancellation is contained in the below noted relevant extract which reads as follows:
"And whereas it has now been discovered by the lessor that the RSA No.80/1995 Page 6 of 12 Delhi Administration had never made any recommendation for allotment of a plot to you as none of your land had ever been acquired by that administration for purposes of planned development of Delhi and that you have obtained the allotment in respect of the plot mentioned herein above fraudulent manner, for none of your lands had ever been acquired by the Govt. and no recommendations, in fact, was ever made by the Land & Building Department, Delhi Admn., to the Delhi Development Authority to make allotment of a plot to you in lieu of your such acquired land.
14. Para 4 of the plaint is relevant. It has relied upon the letter Ex.DW-1/1 dated 6.2.1979 sent by the Land and Building Department, Delhi Administration to the DDA recommending the allotment of an alternate plot of land measuring 125 sq. yards in the name of Rajo Devi under the "Large Scale Acquisition Development and Disposal of the Land in Delhi". In fact the whole foundation of the case of the plaintiff has centered around this letter. It was pursuant to this communication which was sent by the Delhi Administration to the DDA that the DDA had initiated the entire process of allotment of the 125 sq. yards of plot of land in favour of the plaintiff i.e. the letter Ex. DW-2/1 dated 21.3.1979 informing the plaintiff of the proposed allotment. This communication reserved the right of the DDA that in case wrong particulars are furnished by the plaintiff the allotment is liable to be cancelled. Thereafter as per the case of the DDA because of certain concealment of facts which amounted to a fraud (as no recommendation had in fact been made by the Delhi Administration to the DDA recommending any allotment in favour of the plaintiff) the said allotment stood cancelled on 6.5.1981 (Ex.DW-1/3). This allotment was cancelled pursuant to the inter se communication between the DDA and Delhi Administration. Ex.DW-1/2 dated 29.12.1980 sent by the DDA to the Delhi RSA No.80/1995 Page 7 of 12 Administration wherein the DDA had sought a clarification on this recommendation of the allotment of a plot in favour of the plaintiff; the answer to which was given by mark A dated 17.2.1981 sent by the Joint Secretary, Delhi Administration informing the DDA that in 128 cases no files had been even opened by the Government which included the name of the plaintiff Rajo Devi (Serial No.15 of the annexure sent with the letter); in all these cases enquiry had been initiated. It was pursuant thereto the allotment stood cancelled. These documents are not in dispute.
15. The impugned judgment had non-suited the plaintiff only on the ground that the Delhi Administration who was a necessary party had not been joined. The DDA had admittedly not acquired the land of the appellant; it was acquired by the Delhi Administration; after the acquisition, there was a scheme of alternate allotment of plots which was also promulgated by the Delhi Administration. It is also the case of the plaintiff that she was entitled to this allotment under this scheme promulgated by the Delhi Administration. In fact the entire exercise of allotment had been initiated by the DDA only on the so-called recommendation of the Delhi Administration which itself was disputed by the Government in its letter dated 17.2.1981 when it was informed to the DDA that no such recommendation had been made by the Government; letter dated 6.2.1979 appeared to be a forged document; no file had ever been opened in the name of the Rajo Devi, the plaintiff and in fact a vigilance enquiry was under
way.
16. At this stage it would be relevant to examine the plaint. The prayer in the plaint reads as follows :-
RSA No.80/1995 Page 8 of 12
"It is, therefore, prayed that a decree for permanent injunction restraining the defft. from dispossessing the plaintiff from Plot No.E-71, Malviya Nagar, New Delhi, in favour of the plaintiff and against the deft. and the deft. be further directed by a decree of mandatory injunction to execute and register the lease/conveyance deed of the suit Plot No.E-71, in favour of the plaintiff. The suit be kindly decreed in favour of the plaintiff & against the deft. with costs of the suit."
17. This prayer clause seeks a mandate against the defendant i.e. the DDA to execute and register a lease/conveyance deed of the aforenoted suit property in favour of the plaintiff. As already noted supra the DDA had come into the picture only pursuant to the recommendation made by the Delhi Administration. The very basis and foundation of this allotment stood destroyed by the communication dated 17.2.1981 when the Delhi Administration informed the DDA that a fraud had been played and no such recommendation had been made by the Delhi Administration. If the recommendation of the allotment itself was under dispute on which a vigilance enquiry was pending the question of the DDA executing this lease deed in favour of the plaintiff pending this enquiry did not arise. In these circumstances, when these facts were in the explicit knowledge of the plaintiff, it was incumbent upon the plaintiff to have arrayed the Delhi Administration as a necessary party/defendant. The Delhi Administration was a necessary party, as the clarification qua this issue, could have been given only by the Delhi Administration; in the absence of the Delhi Administration coming into the picture the prayer prayed for by the plaintiff could not be effectively granted. No lease deed could have been executed in favour of the plaintiff against whom fraud had RSA No.80/1995 Page 9 of 12 been alleged by the government agency. The clouds in this picture could have been cleared only by the Delhi Administration.
18. Under the amended provision of Order 1 Rule 9 of the CPC a necessary party not joined would lead to the dismissal of the suit as in the absence of such a necessary party, the suit can neither be effectively tried nor disposed of. In a judgment of this Court reported in 152(2008) DLT 36 Bhim Singh & Ors. Vs. Sukhbir Singh & Ors. the following observations of the Court are relevant.
"In the absence of any necessary party, no effective order or decree be passed. In view of the provisions of Order 1 Rule 9 it is clear that non-joinder of a necessary party would be fatal to the suit. This aspect of the matter has also to be borne in mind. The plaintiff has not been joined necessary parties and has taken the risk by not doing so. In the absence of necessary parties, no effective order or decree can be passed and the plaintiff must bear the consequences of his adventure. Non-joinder of necessary parties in a partition suit is fatal."
19. Section 22 of the Delhi Development Act, 1957 reads as follows:
"22. Nazul lands.- (1) The Central Government may, by notification in the Official Gazette and upon such terms and conditions as may be agreed upon between that Government and the Authority, place at the disposal of the Authority all or any developed and undeveloped lands in Delhi vested in the Union (known and hereinafter referred to as "nazul lands") for the purpose of development in accordance with the provisions of this Act.
(2) No development of any nazul land shall be undertaken or carried out except by, or under the control and supervision of, the Authority after such land has been placed at the disposal of the Authority under sub-section (1).
(3) After any such nazul land has been developed by, or under the control and supervision of, the Authority, it shall be dealt with by the Authority in accordance with rules made and directions given by the Central Government in this behalf.
(4) If any nazul land placed at the disposal of the Authority under sub-section (1) is required to any time thereafter by the Central Government, the Authority shall, by notification in the Official Gazette, replace it at the disposal of that Government upon such RSA No.80/1995 Page 10 of 12 terms and conditions as may be agreed upon between that Government and the Authority."
20. This provision is not attracted as it relates to the nazul lands which by an appropriate notification may be placed at the disposal of the DDA by the Central Government.
21. The judgment relied upon by the learned counsel for the appellant reported in WCP No.1526/1981 Mrs.Parkash Sharma Vs. Delhi Development Authority & Ors. does not come to his aid. Apart from the fact that in the said case the entire documentation including execution of a duly registered perpetual lease deed had been executed in favour of the petitioner, the plans were sanctioned and thereafter the petitioner had also constructed a house and only at that time when he had sought a completion certification, notice was given to him cancelling his allotment. This judgment does not decipher any further facts as to why the allotment was cancelled. In the instant case the reason for cancellation of allotment in favour of the plaintiff was the fraud alleged by the department against her; she had concealed material facts. Learned counsel for the DDA has pointed out that even as per the case of the plaintiff, her entitlement to an alternate plot was in terms of a scheme promulgated by the Government of Delhi. It is submitted that as per this scheme dated 2.5.1961, the Delhi Administration had notified that person with plots less than 150 sq.yds were not eligible; plaintiff's plot of land which was acquired was 145 sq.yds. Further the recommending letter dated 6.2.1979 had never been sent by the Delhi Administration; such a vital concealment amounting to fraud would vitiate all proceedings.
22. The substantial question of law is accordingly answered as follows: The Delhi Administration was a necessary party in the RSA No.80/1995 Page 11 of 12 absence of which the suit was rightly dismissed by the first Appellate Court.
23. There is no merit in the appeal. It is dismissed.
INDERMEET KAUR, J.
AUGUST 10, 2010 nandan RSA No.80/1995 Page 12 of 12