Delhi District Court
Alexander Haq vs Delhi Development Authority on 29 February, 2016
Page No. 1 of 12
IN THE COURT OF MS. CHHAVI KAPOOR, CIVIL JUDGE,
WEST DISTRICT, TIS HAZARI COURT, DELHI.
Unique ID No. 02401C0005261995
Suit No.634/14
Alexander Haq
S/o Sh. A. Haq
R/o Y.P. 51A, Pitampura,
Delhi - 110034
.................. Plaintiff
Versus
Delhi Development Authority
Service to be effected through
Its Vice Chairman,
Vikas Sadab, Behind INA Market,
New Delhi, ................ Defendant
Date of Institution of the Suit : 06.11.1995
Date of Reserving of Judgment : 10.02.2016
Date of Judgment : 29.02.2016
JUDGMENT
1. This is a suit for Permanent injunction with the following facts.
2. Plaintiff claims to be the owner and in physical possession of suit property bearing no. Flat 51A, Pocket - Y, P. CategoryA, Pitam Pura, Suit No. 634/14 Alexander Haq Vs DDA Page No. 2 of 12 Delhi 34. A site plan depicting the suit property has been filed alongwith the plaint. It is claimed that the suit property was allotted to one Sh. Mohd. Ibrahim Khan, S/o Sh. Abdul Ahmed Khan by DDA, whereafter he transferred the same to following persons; 1) from Mohd. Ibrahim Khan to Sh. Mahender Handa, S/o Sh. T. R. Handa, 2) from Mahender Hands to Smt. Santosh Chauhan, W/o Sh. Bikram Singh, 3) from Smt. Santosh Chauhan to Sh. Mohan Singh, S/o Sh. Hara Singh, 4) from Mohan Singh to Sh. Yogender Pal, S/o Sh. Prithvi Chand and Sh. Narender Kumar, S/o Sh. Chunni Lal (joint owners). It is the aforementioned two joint owners namely Sh. Yogender pal and Sh. Narender Kumar who have transferred the property to the plaintiff on 14.10.1992 against consideration amount of Rs .27,000/ after execution of GPA, Receipt and other documents. It is claimed that the possession of the suit property was handed over to original allottee on 31.08.1990, whereafter the property has been sold to various persons. The plaintiff had come across a public notice issued in the newspaper Nav Bharat Times on 30.10.1995, in which defendants had threatened to forfeit the deposited amount and take back the possession of the suit property. It is alleged that no show cause notice has been issued to the plaintiff, but officials of DDA had threatened to dispossess the plaintiff from the suit property without following due process of law. It is alleged that the plaintiff is a bona fide purchaser and is in lawful possession of the property. It is denied that the plaintiff has committed any act of cheating Suit No. 634/14 Alexander Haq Vs DDA Page No. 3 of 12 or fraud for obtaining the possession of the property and therefore, he has approached this Court with the present suit with the following prayer :
(i) That a decree of permanent injunction may kindly be passed in favour of the plaintiff and against the defendants whereby restraining the defendant, including its agents, officials and employees etc. permanetly from taking illegal, forcible possession of the suit property bearing flat no. 51A, Pocket (Y) P, Category A, Pitampura, Delhi - 110034 as shown with Red Colour in the site plan attached herewith from the plaintiff.
3. In reply to the suit, DDA has filed a written statement claiming that plaintiff is not the original allottee of the suit property and therefore, has no locus standi to file the suit against DDA. DDA has denied that the plaintiff is the lawful owner of the flat, but has admitted that he is in possession of the same. Further, it has been stated that the suit property was allotted to Sh. Mohd. Ibrahim Khan by issuance of demandcum allotment letter dated 24.04.1990 / 03.05.1990 for which a possession letter was issued in his name on 31.08.1990. It is claimed that possession was taken over at site, but it was later on revealed that the possession of the flat was taken over by some other person and not the actual allotee. It is claimed that this fact was brought to the notice of DDA by letter dated 07.08.1991, written by Sh. Mohd. Ibrahim Khan. It has been claimed that an FIR has been lodged with SHO, PS Dabri on 21.01.1992 and the Suit No. 634/14 Alexander Haq Vs DDA Page No. 4 of 12 matter is under investigation. It has also been stated that DDA has also written to the Deputy Commissioner of Police, (West) Tilak Nagar, Delhi on 22.03.1993 for taking action in this case. It is alleged that all the documents of the case have been sent to SHO, PS Kotla Mubarak Pur, but the investigation has not been concluded and therefore, a press notification was issued for taking back possession of the flat. It is claimed that the press notification was issued in order to grant an opportunity to the occupant of the flat to present his case before possession could be resumed by DDA. However, it is claimed that since the plaintiff has no right, title or interest in the flat as he is not the original allottee, hence, his suit is liable to be dismissed.
4. A replication has been filed by the plaintiff, in which facts stated in the written statement have been denied and controverted with . Facts stated in the plaint have been reaffirmed and it has been prayed that the suit of the plaintiff be decreed in his favour.
5. On the basis of pleadings of the parties, following issues were framed for adjudication of the suit on 17.04.2000:
1. Whether the plaintiff has no locus standi to file the present suit? OPD
2. Whether the plaintiff is entitled for the relief of injunction as prayed for ? OPP
3. Relief.
6. In order to prove his case, plaintiff has examined himself as Suit No. 634/14 Alexander Haq Vs DDA Page No. 5 of 12 PW1. PW1 has relied upon the documents as; Site Plan; Ex. PW1/1, POA of purchase of property by plaintiff from yogender and Narender; Mark A, Receipt; Mark B and copy of election I card of the plaintiff ; Mark C.
7. Sh. Nanak Chand, Asstt. Director (Housing) (Janta), DDA was examined as DW1. This witness has relied the documents as; Demand cum allotment letter issued on 24.04.199003.05.1990 to Mohd. Ibrahim Khan; E. DW1/1, Letter dt. 07.08.1991; Ex. DW1/2, Report dt. 28.06.1993 lodged by DDA; Ex. DW1/3, Report dt. 21.01.1992; Ex. DW1/4, Complaint dt. 22.03.93 with Dy. Commissioner of Police; Ex. DW1/5, Press notification dt. 30.10.1995; Mark A.
8. Plaintiff was granted an opportunity by the Appellate Court on 17.01.2004 to lead additional evidence in this case. Matter was remanded back whereafter additional evidence was led by both the sides.
9. Plaintiff has examined himself as PW1 on 09.09.2005 and has relied upon the following documents: Site Plan as Ex. PW1/1, Public notice dated 3010.1995 as Mark A, complaint given by the plaintiff as Ex.PW1/2, General Power of Attorney executed by Sh. Yoginder Pal and Shri Narinder Kumar in favour of plaintiff as Ex.PW1/3, Agreement to sell as Ex.PW1/4, Will dated 14.10.1992 executed by Sh. Yoginder Pal and Sh. Nariender Kumar as Ex. PW1/5 and Ex. PW1/6, money receipt dated 14.10.1992 as Ex. PW1/7, Certified copy of order dated 19.02.2002 as Ex. PW1/8, G.P.A, executed Suit No. 634/14 Alexander Haq Vs DDA Page No. 6 of 12 by Sh. Mohd Abraham Khan alongwith Agreement to sell, receipt and Will in favour of shri Mohinder Handa are marked as Mark A1 to 4. GPA, Agreement to Sell, Receipt and Will duly executed by Sh. Mohinder Handa in favour of Shrimati Santosh Chouhan are marked as Mark B1 to 4; Agreement to Sell, Receipt and Will duly executed by Shrimati Santosh Chouhan to Shri Mohan Singh are marked as Mark C1 to 4. Agreement to Sell, Receipt and Will duly executed by Sh. Mohan Singh are marked as Mark D1 to 4; copy of ration card, gas papers and telephone bill are Ex. PW1/9 to Ex. Pw1/12 respectively.
10. Sh. Yogender Pal was examined as PW2. He had exhibited GPA as Ex. PW2/1, SPA as Ex. PW2/2 and agreement to sell as Ex. PW2/3, Will dated 06.03.1991 as Ex.PW2/4. He has also relied upon documents already exhibited as Ex. PW1/3, Ex. PW1/4 and Ex. Pw1/5, Ex. PW1/6 and Ex. PW1/7.
11. Sh. Mahender Handa was examined as PW3. He has correctly identified GPA (Mark A1), Agreement to Sell (Mark A2), Will (Mark A4), Receipt (Mark A3). He has deposed that he had executed GPA (Mark B1), agreement to Sell (Mark B2), Receipt (Mark b3), Will (Mark B4).
12. PW4 Sh. Tarsen Balaj has tendered his affidavit as Ex. PW4/A.
13. DDA has examined Sh. Brijesh Chander, Assistant Director as DW2. This witness has tendered his affidavit as DW2/A. This witness has relief upon copy of demandcumallotment letter dt. 24.04.1990 as Suit No. 634/14 Alexander Haq Vs DDA Page No. 7 of 12 Ex. DW1/1, Copy of letter dt. 07.08.1991 as Ex. DW1/2, Copies of letters dt. 21.01.1992 and 22.03.1993 as Ex. DW1/4 and Ex. DW1/5, Copy of letter dt. 28.06.1993 as Ex. DW1/3, Ex. DW2/1 i.e. copy of letter dt. 28.07.1992 (OSR), Ex. DW2/2 i.e. copy of letter dt. 02.11.1995(OSR).
14. After conclusion of evidence, final arguments have been addressed by both sides.
15. I have considered the contentions raised by both the parties and have perused the judicial record.
16. My Issue wise findings are as follows.
Issue no. 1 and 2.
17. Both issues can be disposed off by way a common finding which is as under :
18. The suit flat bearing no. Flat 51A, Pocket - Y, P. CategoryA, Pitam Pura, Delhi 34 is in possession of the plaintiff. It is claimed that plaintiff is in lawful occupation of the flat as he has purchased it from the previous owner after payment of consideration amount of Rs. 27,000/ and against execution of sale documents such as agreement to sell, GPA, Receipt etc. dated 14.10.1992. The plaintiff claims to be in possession of the suit flat since 14.10.1992. On the other hand, as per the stand of DDA, the possession of the flat was was handed over to an impersonator who represented himself to be the original alottee and took over the possession of the flat from the officials of DDA on 31.08.1990.
Suit No. 634/14 Alexander Haq Vs DDA Page No. 8 of 12 As per the written statement of DDA, this fraud was revealed to them after a letter was written by the original allotee on 07.08.1991, bringing this fact into their notice. It is not expressly denied by DDA that the flat has been transferred since the date of handing over of possession by various persons at various times. It is observed that despite receiving communication from the original allottee on 07.08.1991 regarding the fraud conducted in this case, DDA had written to the SHO, PS Dabri on 21.01.1992 i.e. after a gap of almost five months, requesting him to take action on their complaint. There is another letter issued by the Deputy Director of Janta Flats Division to SHO, Ps Kotla Mubarak Pur on 28.06.1993 (Ex. DW1/3) which states that a possession letter was issued to the alleged original allottee by the then Assistant Director after scrutinazation of his documents on 31.08.1990. The letter further states that despite an inquiry conducted by the Assistant Engineer, the whereabouts of the person who represented himself to be the original allottee were not traceable. This letter ends with a requests to lodge an FIR against the said impersonator for taking the possession of the flat by fraudulent means. The press release, notifying the general public regarding the decision of the competent authority to take back possession of the flat has been issued on 30.10.1995 and does not state as to who is in possession of the flat at the relevant time. The press release merely states that the possession of flat was handed over to an impersonator, who held himself to be the original allottee and that, it had been decided Suit No. 634/14 Alexander Haq Vs DDA Page No. 9 of 12 that he was liable to hand over possession of the property back to DDA. In the defence evidence, there is no whisper of the action taken against the officials of DDA who had handed over the possession of the flat to the impersonator, believing him to be the original allotee. The documents exhibited by DDA state that the possession was handed over after scrutinzation of documents by the concerned official but it has not been explained as to how the impersonator came in possession of the genuine documents, who were cleared on scrutinzation by DDA officials. This leads to the obvious inference that either the impersonator was in possession of genuine documents of the flat or that he had submitted fake documents which were accepted by DDA officials. At the stage of final arguments, DDA counsel had placed on record a copy of orders dated 22.09.2005 passed in civil writ petition no. 3693/1996 titled Mohd. Ibrahim Vs. DDA & Ors., which revealed that DDA had been directed to allot a Janta Flat to the original allottee Mohd. Ibrahim by allowing his Civil Writ Petition. It was observed in the proceedings of this writ petition that DDA had cited no hesitation in allotting a suitable alternative flat to the original allottee. In the proceedings in the High Court, mention was again made to the ongoing investigation of the fraud committed in this case, but it transpires from the record of this suit that plaintiff has not been named as an accused in the said FIR. In fact, DDA has not cared to reveal the extent of investigation that has been carried out in this case. DDA has also not shown their bonafide by disclosing if Suit No. 634/14 Alexander Haq Vs DDA Page No. 10 of 12 any action has been taken by the department against the officials who had scrutinzed the documents submitted by the impersonator and thereafter, handed him the possession of the flat. There is no averment that the impersonator is absconding and has thus not taken part in investigation carried out by police. It is admitted by DW2 that no criminal complaint has been filed by DDA against the plaintiff. DDA has not revealed as to what action was taken by them immediately after receipt of letter dated 07.08.1991 from the original allottee to take back possession of the flat. The press notification has been issued after a gap of almost four years without showing to the court the bonafide of the decision or details of any inquiry conducted by the competent authority , thereby deciding to regain possession of the flat. There is a letter Ex. DW2/D2 (dated 06.11.1991), which was issued to the executive engineer of DDA, North Division to stop the site possession, but it appears that the orders have not been complied with and hence, the flat has since been transferred between various hands. It is admitted by DW2 that DDA has not filed any suit for regaining possession of the property from the plaintiff till today. DW1 has also admitted in his crossexamination dated 22.11.2001 that no action has been taken against the plaintiff so far. It is further admitted by DW1 that an application dated 03.11.1995 (Ex. DW1/P1) was received in their office from the plaintiff in response to the public notice. In the written statement of DDA, there is no averment that after receipt of the complaint from the original allottee, the Suit No. 634/14 Alexander Haq Vs DDA Page No. 11 of 12 flat was inspected to find out as to who was in possession of the same. No notice appears to have been affixed on the flat after receipt of the complaint from the original allottee dated 07.08.1991, in order to notify the occupant or the neighbours of the fraud committed in the case. DDA has made a bald assertion that plaintiff is in unlawful occupation of the flat. However, plaintiff has examined himself as PW1 and Sh. Yogender Pal as PW2, in order to prove that he has lawfully purchased the property against consideration from the previous owners. The documents exhibited by PW1 and PW2 are in original and are duly supported by the previous chain of documents as stated in the plaint. Plaintiff has also examined PW3 who has purchased the property on 11.10.1990 from person representing him to be the original allottee Mohd. Ibrahim Khan. PW3 also has also annexed on record the original documents by which he has purchased the property. These transactions do not appear to be sham or made out. In such circumstances, the claim of the plaintiff that he is a bonafide purchaser of the property stands proved. Plaintiff is in possession of the flat after execution of GPA and other documents and after payment of valid consideration amount and hence, it cannot be said that his possession in the flat is unlawful. Despite the fact that a fraud had been committed in handing over of possession of the flat to an impersonator, DDA has hurridely satisfied the grievance of the original allottee by making another allotment in his favour pending investigation, however, it was incumbent upon the same very DDA Suit No. 634/14 Alexander Haq Vs DDA Page No. 12 of 12 officials to have accorded due process of law to the case of the plaintiff in regaining possession of the flat from him. Therefore, I allow the claim of the plaintiff by holding him entitled to the relief of permanent injunction as prayed for in the plaint. Issues are decided in favour of plaintiff.
Relief
19. In view of my findings as stated above, the suit of the plaintiff is decreed by ordering DDA to adopt due process of law in taking back possession of the subject matter flat from the plaintiff. Costs of the suit are allowed to the plaintiff.
20. Decree Sheet be prepared.
Announced in the Open Court (CHHAVI KAPOOR)
th
today on 29 February, 2016 Civil Judge06/West
Tis Hazari Courts, Delhi
This judgment contains 12 pages and all the pages are signed by me.
(CHHAVI KAPOOR)
Civil Judge06/West
Tis Hazari Courts, Delhi
Suit No. 634/14 Alexander Haq Vs DDA