Delhi High Court
Smt. Sulochana Devi Thru. Lrs. vs Dda & Anr. on 6 September, 2013
Author: V.K. Shali
Bench: V.K. Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ R.S.A. No.70 of 2007
Decided on : 6th September, 2013
SMT. SULOCHANA DEVI THRU. LRS. ...... Appellant
Through: Mr. Rajender Aggarwal, Advocate.
Versus
DDA & ANR. ...... Respondents
Through: Mr. S.D. Salwan, Advocate for the DDA.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
1. This is a regular second appeal filed under Section 100 CPC against the order dated 29.1.2007 passed by the learned Additional District Judge in appeal being R.C.A. No.125/2002 titled DDA vs. Sulochana Devi (dead) by LRs & Anr. by virtue of which the judgment and decree dated 23.4.2002 passed by the learned Civil Judge in Suit No.954/1988 was set aside.
2. My learned predecessor has formulated the following substantial question of law vide order dated 6.4.2011 :-
R.S.A. No.70/2007 Page 1 of 16
"Whether the finding in the impugned judgment dated 29.01.2007 reversing the finding of the trial judge and thereby dismissing the suit of the plaintiff on the ground that the provisions of Section 53 (B) of the Delhi Development Act, 1957 have not been complied with is a perversity? If so, its effect?"
3. Briefly stated, facts leading to the filing of the present appeal are that the plaintiff/appellant herein (through LRs) filed a suit bearing No.954/1988 seeking declaration and injunction with the consequential relief that she is entitled to a legal character and an alternative site in lieu of the tenement in question which was demolished by the DDA.
4. It was alleged in the suit that the grand-father of the plaintiff/appellant (Salochana Devi) was an allottee/tenant in respect of property No.B-56/173-174, Hudson Lines, Kingsway Camp, Delhi (hereinafter referred to as the suit property). It was alleged that before the claim of the claimant in CAF No.D/2086/I (MA) could be adjusted towards public dues by way of rental and cost of the property, she expired and her compensation rights were inherited by her collaterals including the plaintiff/appellant. It was alleged that the suit property could not be transferred by the defendant No.1/Union of India as it was demolished in R.S.A. No.70/2007 Page 2 of 16 pursuance of the Kingsway Redevelopment Scheme and since then the allotment rights were heritable by the plaintiff/appellant. The collaterals, accordingly, had filed an application before the Settlement Authority for substitution of allotment rights of the deceased Ram Murti. The application for allotment rights was rejected by the Settlement Officer vide letter dated 29.4.1985 and on revision filed by the plaintiff, the Chief Settlement Commissioner vide order dated 7.11.1985 remanded the case back to the Managing Officer-cum-Settlement Officer. The plaintiff/appellant was appointed as a sole successor in interest of the allottee. She filed an application on 10.11.1986 for allotment of a plot of land in lieu of the tenement of the suit property. It was also alleged that the defendant No.2/DDA had earmarked the plot No.2645, Hudson Lines, as a suit property for the purpose of allotment; however, the said alternative allotment was not made to the plaintiff/appellant consequent to the demolition which resulted in filing of the suit for declaration and injunction. The said suit was assigned to the Court of Sh. K.C. Lohia, Sub-Judge, First Class, Delhi and it was dismissed as withdrawn. Thereafter, she filed another suit (suit No.954/1988) seeking declaration R.S.A. No.70/2007 Page 3 of 16 and injunction as well as consequential relief for allotment which was decreed by the Civil Judge vide judgment dated 23.4.2002.
5. The respondent No.1 herein (DDA) filed an appeal against the said judgment and the decree passed in favour of the appellant. During the course of that appeal, an objection was taken by the respondent herein to the effect that the suit for declaration and injunction and the consequential relief could not be decreed as there was a bar under Section 53B of the DDA Act, 1957 to entertain the suit without a statutory notice having been given to it. On the basis of the said objection, the learned Additional District Judge, vide order dated 29.1.2007, allowed the appeal and the judgment and decree dated 23.4.2002 was set aside.
6. The appellant feeling aggrieved by the aforesaid judgment of the appellate court has filed the present regular second appeal.
7. According to Section 100 CPC, the second appeal is permissible only on a substantial question of law which has been already formulated. In the light of the formulation of substantial question of law which arises for consideration of this court is as to whether the appeal could have been R.S.A. No.70/2007 Page 4 of 16 allowed by the first appellate court on the basis of non-giving of notice under Section 53B of the DDA Act and if so, whether the judgment of the first appellate court suffers from any perversity?
8. The main contention of the learned counsel for the appellant has been that the appeal could not have been allowed on account of non- giving of notice under Section 53B of the DDA Act as in a suit for injunction which was filed by the appellant, it was not necessary to give a notice. In support of his contention, the learned counsel for the appellant has placed reliance on three judgments D.P. Rai Ahuja vs. Delhi Development Authority; 1974 RLR 664, Mst. Memmona Bi vs. Municipal Corporation; 1974 RLR 198 and Har Kishan Lal & Ors. vs. M/s. Jain Textiles Traders; 53 (1994) DLT 80.
9. The second submission which was made by the learned counsel for the appellant is that even if it is assumed that a notice under Section 53B of the DDA Act was to be given, the requirement of the said notice was waived off by the respondent/DDA. In this regard, the learned counsel contended that originally the trial court had framed an issue with regard to the maintainability of the suit on account of lack of notice; however, R.S.A. No.70/2007 Page 5 of 16 the said issue was struck off on 30.1.1990. It was, therefore, contended that once the issue with regard to the statutory notice was struck off by the trial court itself, it was not open to the respondent to file an appeal on the basis of the said issue.
10. Alternatively, it was contended that even if a notice under Section 53B of the DDA Act, 1957 was required to be given, the said notice had been waived on account of the fact that the appellant herein had filed an application under Section 80, sub-Section 2 of the CPC seeking exemption from giving notice to the Union of India. The said provision is at pari materia with Section 53B and the application under Section 80 (2) CPC was allowed by the court and thereafter, it was contended that the suit having been contested on merits by the DDA, it was not open to them to contend that the judgment and the decree belatedly now was bad on account of non-giving of notice. Reliance in this regard was placed on Yashod Kumari & Anr. vs. MCD & Ors.; 111 (2004) DLT 33, the Division Bench judgment of this court wherein it was observed that non- service of notice under Section 53B of the DDA Act could not be held to be vital to the decision of the suit. Reliance was also placed on the R.S.A. No.70/2007 Page 6 of 16 judgment of the Apex Court in case titled Raghunath Das vs. Union of India & Anr.; AIR 1969 SC 674 as well as a recent judgment passed by the learned Single Judge of this court in Col. A.B. Singh (through LRs) vs. Shri Chunnilal Sawhney & Ors.; 2011 IX AD (Delhi) 235. It was contended that the judgment of the first appellate court allowing the appeal of the respondent on the ground of non-service of notice under Section 53B of the DDA Act suffers from infirmity and the same deserves to be set aside and the judgment and decree passed by the trial court deserves to be restored.
11. As against this, the learned counsel for the respondent/DDA has tried to distinguish the three judgments passed in D.P. Rai Ahuja, Mst. Memoona Bi and Har Kishan Lal's cases (supra) by contending that these three judgments are essentially pertaining to the subject of injunction, be that prohibitory, mandatory or perpetual, while as in the instant case, the suit was filed for declaration and for allotment of an alternative site and, therefore, these judgments have no applicability to the facts of the present case.
R.S.A. No.70/2007 Page 7 of 16
12. It was also contended by Mr. Salwan, the learned counsel for the DDA that so far as the judgments passed in Yashod Kumari and Col. A.B. Singh's cases (supra) are concerned, the said judgments are also not applicable to the facts of the present case and they are distinguishable from the facts of the present case also. It was also contended that the question of waiver of the notice under Section 53B of the DDA Act does not arise in the instant case on the contrary; the question which arises for consideration is that there is no estopple against law. Accordingly, it was contended that the question of law which has been formulated in the instant case with regard to the judgment of the first appellate court suffering from perversity does not arise and the said judgment may not be set aside.
13. I have carefully considered the submissions made by the learned counsel for the parties and have gone through the record. It may be pertinent here to refer to Section 80 sub-section (2) of the CPC as well as Section 53B of the DDA Act, which read as under :
R.S.A. No.70/2007 Page 8 of 16
Section 80 sub-section (2) CPC :-
"80. Notice. - (1)...................
(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1);
but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1)."
xxxxxxxxxxxxxxxxxxxxxx Section 53B of DDA Act :-
"Section 53 B. Notice to be given of suits. - (1) No suit shall be instituted against the Authority, or any member thereof, or any of its officers or other employees, or any person acting under the directions of the Authority or any member or any officer or other employee of the Authority in respect of any act done or purporting to have been done in pursuance of this Act or any rule or regulation made thereunder until the expiration of two months after notice in writing has been, in the case of the R.S.A. No.70/2007 Page 9 of 16 Authority, left at its office, and in any other case, delivered to, or left at the office or place of abode of, the person to be sued and unless such notice states explicitly the cause of action, the nature of relief sought, the amount of compensation claimed and the name and place of residence of the intending plaintiff and unless the plaint contains a statement that such notice has been so left or delivered.
(2) No suit such as is described in sub-section (1) shall, unless it is a suit for recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.
(3) Nothing contained in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit."
14. A perusal of the facts in the light of the above provisions shows that the appellant herein had filed a suit for declaration, permanent injunction and consequential relief. The sum and substance, so far as the declaration is concerned, is that the appellant was claiming an alternative allotment. Section 34 of the Specific Relief Act, 1963 lays down that a suit for declaration would be maintainable when a person has a legal character and some person is casting a cloud on that legal character. The proviso to Section 34 also lays down that if a person seeking declaration R.S.A. No.70/2007 Page 10 of 16 is also entitled to any consequential relief then such a consequential relief has to be claimed along with the suit for declaration and in the absence of claim for such a consequential relief, the suit itself would not be maintainable.
15. In the instant case, the appellant's suit for declaration was essentially for seeking an alternative allotment in lieu of the allotment purported to have been made by the Ministry of Rehabilitation Union on account of predecessor in interest of appellant being a refugee from the Pakistan. The DDA was made as a necessary party because after the incorporation of DDA in 1957, the allotments of Nazul lands are to be made by the DDA. Therefore, the DDA was not only a necessary but also a proper party and similarly, it was the Union of India who had originally, through Ministry of Rehabilitation, allotted the suit property in question to the predecessor in interest of the appellant. The suit was admittedly for declaration, injunction and consequential relief. So far as the three judgments passed in D.P. Rai Ahuja, Mst. Memoona Bi and Har Kishan Lal's cases (supra) are concerned, which have been relied upon by the appellant, are essentially dealing with only the suits for injunction R.S.A. No.70/2007 Page 11 of 16 and the only important law point which has been laid down in these judgments is that in an injunction suit, whether it is for prohibitory, permanent or mandatory, no notice under Section 80 sub-Section (2) or Section 53B of the DDA Act is required to be given for the simple reason that the very purpose of filing the suit would get defeated in case notice under the aforesaid statutory provisions is directed to be given. Therefore, rightly so, in these judgments, the court has observed on account of the urgent relief which is sought by a party, a notice under Section 53B is not required to be given. Therefore, these judgments do not help the appellant in any manner whatsoever because the suit which was filed by the appellant was not only for injunction but also for declaration as well as consequential relief. So far as the judgment passed in Yashod Kumari's case (supra) is concerned, no doubt in the said judgment, the Division Bench of this court had observed that giving of notice in the facts of that case under Section 53B of the DDA Act was not necessary but the facts of the said case are distinguishable from the facts of the present case. In the said case, a suit for declaration and injunction was filed along with an application under Section 80 sub-Section (2) CPC which gives power to the court to exempt the giving of notice under R.S.A. No.70/2007 Page 12 of 16 Section 80 (2) of the CPC. This application was neither allowed nor rejected and the suit was continued to be contested on merits. The suit was dismissed by the trial court on the ground that notice under Section 53B of the DDA Act was not given. The Division Bench of this court had held that the appellant in the said case had admittedly filed an application under Section 80 sub-Section (2) CPC seeking exemption from giving of that notice to the Union of India. This application was neither allowed nor rejected and the suit was continued to be contested on merits by the Union of India and, therefore, it was assumed by all the parties that the application has been allowed and the question of notice was treated to have been waived off. The DDA was impleaded as a party in the suit later on and a plea was taken by the Union of India that the suit is also not maintainable on account of non-giving of notice under Section 53B of the DDA Act. No such objection was taken by the DDA. It was in this context that the Division Bench observed that the suit having been contested on merits and the objections regarding non-giving of notice under Section 53B of the DDA Act not having been raised by the DDA but by the Union of India, therefore, in such a contingency, the suit could not have been dismissed by the trial judge.
R.S.A. No.70/2007 Page 13 of 16
16. In the present case, the suit was initially filed by the appellant against Union of India as well as DDA and an application under Section 80 sub-Section (2) CPC was filed which was allowed, so far as the Union of India is concerned but no similar application was filed qua the DDA. Therefore, merely because the application under Section 80 sub-Section (2) CPC was allowed, the plea of notice under Section 53B of the DDA Act having not been served on the respondent/DDA could not be deemed to have been waived off. Further, this fact gets fortified by the fact that originally an issue with regard to the maintainability of the suit on account of lack of notice itself was framed and curiously the said preliminary issue was dropped on 30.1.1999 but the reason for the same is difficult to discern. But certainly by dropping the said issue, it could not be deemed that the question of the maintainability of the suit was given up by the respondent as admittedly, it is not the case of the appellant that any statement of the respondent/DDA in this regard was made or recorded.
17. The fundamental principle of law is that there is no estopple against law meaning thereby even if a statement in this regard was made R.S.A. No.70/2007 Page 14 of 16 by the respondent/DDA still it would be the duty of the court to have seen as to whether the requirement of Section 53B of the DDA Act was complied with or not. Reliance in this regard can be placed on Gangappa vs. Rachawa; AIR 1971 SC 442. In issue with regard to estopple where there is a prohibition contained in any law, it cannot be given up much less, the same can be waived. Moreover, the facts of the two cases which are sought to be relied upon by the appellant in Yashod Kumari and Col. A.B. Singh's cases (supra) are distinguishable from the facts of the present case. The Apex Court had laid down in catena of judgments that while applying the ration laid down in a case, the facts of the reiterated case in which such a proposition of law has been laid down, must also be correlated and seen in the light of the fact of the cases in which it is sought to be applied. The propositions of law which are laid down in different case cannot be treated like theorems or principles of mathematics and made applicable to the facts of the case in hand in an implied manner.
18. I, therefore, feel that issue with regard to the non-giving of notice under Section 53B of the DDA Act was vital to the suit of the appellant R.S.A. No.70/2007 Page 15 of 16 and the first appellate court has rightly held that such an issue could not have been waived off by the respondent/DDA. That being the position, I feel that the judgment of the first appellate court does not suffer from any perversity or as to warrant interference by the present court in the second appeal. The substantial question of law which has been formulated by my learned predecessor is negative on account of the fact that the judgment does not suffer from any perversity. The regular second appeal is without any merit and the same is accordingly dismissed.
V.K. SHALI, J.
SEPTEMBER 06, 2013 'AA' R.S.A. No.70/2007 Page 16 of 16