Delhi District Court
M/S. Skipper Sales Pvt. Ltd vs Delhi Development Authority on 18 January, 2011
IN THE COURT OF SURESH KUMAR GUPTA,
ADDITIONAL DISTRICT JUDGE 03 (EAST),
KARKARDOOMA COURT, DELHI
Suit No.62/08/89
ID No. : 02402C0082142006
IN THE MATTER OF :
M/s. Skipper Sales Pvt. Ltd.,
89, Nehru Place,
New Delhi ........Plaintiff
Versus
1. Delhi Development Authority,
Vikas Sadan, I.N.A.,
New Delhi.
2. Asstt. Collector Nazul I
D.D.A., Vikas Sadan,
I.N.A., New Delhi ............Defendants
Date of Institution : 08.03.1989
Date of arguments heard : 04.01.2011
Date of judgment : 18.01.2011
Suit No.62/08/89 Page 1 of 19
J U D G M E N T
1. The plaintiff has filed a suit for declaration and permanent injunction against the defendants with the averments that plaintiff is a private limited company with registered office at 89, Nehru Palace, New Delhi duly incorporated under Indian Companies Act. The plaint has been signed, verified and instituted on behalf of the plaintiff by Sh. Harpreet Singh, Managing Director of the company who is duly authorized to sign, verify and institute the suit for and on behalf of plaintiff. On 05.08.80 the plaintiff purchased a commercial plot measuring 1011.50 sq. meters situated at 89 Nehru Palace, District Centre Kalkaji, New Delhi (hereinafter referred to as suit property) from the defendant for a sum of Rs.5,06,00,000/ in an open auction. The entire premium consideration amount was paid to the defendants. On 08.05.81 the possession of suit property was given to the plaintiff. On 05.11.80 the plaintiff submitted its sanction plan and building permits with the defendants. On 20.08.83 the defendant sanctioned the plans in favour of plaintiff. The defendants took three years to sanction the building plan and building permits. The sanctioning of plan has delayed the construction. The building byelaws on 08.05.81 provides a period of two years for the completion of construction work from the date of sanction of plan but building byelaws were amended and came into force on 23.06.86 vide which period was increased from two years to three years for construction purposes in case of larger complexes and multi storeyed building from the date of Suit No.62/08/89 Page 2 of 19 sanctioning of the plan. The defendants issued a letter dated 22.11.85 to the plaintiff to submit the completion certificate within seven days otherwise allotment of suit property shall be cancelled. A reply was given that building plan was sanctioned after coming into force of amended byelaws so a period of three years is required for the completion of construction. The defendants didn't take any action rather building plan and permit were revalidated for the first time on 03.02.87 upto 19.08.87. The building plan and permits were again revalidated on 07.09.87 upto 19.08.88 and lastly revalidated upto 19.08.89 vide letter dated 17.01.89. The purchaser under clause 3(1) of the terms and conditions of the auction was to pay yearly ground rent in respect of the plot @ Rs.1/ per year for the period of first two years allowed for construction purposes and thereafter annual rent @ 2.5% of the premium paid. The defendants started raising illegal demand of the ground rent of the suit property with effect from 08.05.81 to 07.05.83 and at the annual rate of 2.5% of the premium paid from 07.05.83 alongwith interest vide letter dated 03.01.86. The plaintiff protested but yield to the pressure of the defendants and paid a sum of Rs.28,77,242.22 on account as ground rent. It was explained to the defendants that vide letter dated 14.03.88 that ground rent is payable from the date of sanction of the building plan and further a period of three years should be granted for completion of construction. The defendants rejected the representation vide letter dated 22.06.88. The plaintiff filed an application dated 22.08.88 U/s 41(3) of Suit No.62/08/89 Page 3 of 19 DDA Act to the Central Govt. for passing the appropriate orders but plaintiff has not received any communication from the Central Govt. The defendant again raised an illegal demand of ground rent vide letter dated 18.11.88 through Asstt. Collector, NazulI, Vikas Sadan, DDA vide which demand of Rs.67,10,629/ was raised. The demand is illegal as building plan was sanctioned on 20.08.83 and amended byelaws came into force vide which a period of three years was given for completion of construction. All these facts are not considered by the defendants. The defendants as well as Asstt. Collector, Nazul are threatening to seal the suit property or to arrest the Managing Director and other Directors of the plaintiff and to recover the same through coercive means. Hence, this suit.
2. The defendants contested and resisted the suit by filing the joint written statement wherein preliminary objections qua maintainability, non issuance of notice U/s 53(b) of DDA Act, valuation and suit is not instituted signed and verified by a competent person are raised. On merits, it is averred that plans couldn't have been sanctioned before August, 20 1983 due to the delay in tactics and non cooperative attitude of the plaintiff. The delay is attributable to the plaintiff. The Chief Architect of defendant No.1 observed several objections and on 28.01.81 a letter was written to the plaintiff to remove those objections and even date and time was fixed for the meeting of plaintiff with Chief Architect in order to discuss the plan submitted by the plaintiff. There was no Suit No.62/08/89 Page 4 of 19 response from the plaintiff. The defendants had no choice but to reject the plan. The defendants instead of rejecting the plan issued reminders dated 04.07.81 to the plaintiff but in vain. The plans were examined by scrutiny committee of defendant No.1 and issued a letter dated 05.08.81 to the plaintiff to submit three sets of drawing for sanction and to depute its Architect for removal of objections but there was no response. The reminders dated 03.09.81 and 22.09.81 were issued to the plaintiff and no response was received as a result plans were rejected on 28.12.81. On 08.03.82 plaintiff made a fresh request for reconsideration of the plan and a letter dated 28.05.82 was issued to the plaintiff to submit fresh prints of the plans alongwith rejected plans. On 03.06.82 the drawings were submitted by the plaintiff and in the meantime plaintiff started illegal construction. On 15.07.82 a letter was written to the plaintiff to deposit Rs.10,193/ as penalty for starting construction without sanctioning of the plan. On scrutiny it was found that plaintiff has not submitted the lease deed, stacking charges of Rs.36743/ and a letter dated 17.08.82 was written for its compliance. The lease deed was not submitted. The plans were referred on 05.11.82 to DUAC. On 07.04.83 the plans were returned by DUAC with the remarks that DUAC would not deal with any case of Nehru Palace unless defendant No.1 had taken action in the matter of parking facility. The letters were written to DUAC and plans were approved by DUAC on 17/24.06.83. The defendant No.1 accordingly sanction the building plan on 20.08.83. The plaintiff has not Suit No.62/08/89 Page 5 of 19 applied for C and D forms despite the letters dated 04.11.85. The letter dated 28.11.85 of the plaintiff was duly replied vide letter dated 03.01.86. The period of two years has to be reckoned from the date of delivery of possession and sanction of plan has nothing to do with it. The plaintiff has paid a sum of Rs.3,00,522.71 as a ground rent. The plaintiff is liable to pay ground rent coupled with interest on the unpaid amount in accordance with terms and conditions of the sale. The plaintiff is not entitled for the exemption for a period of three years as alleged. The plaintiff has no authority to withhold the payment even if application was moved by the plaintiff to the Central Govt. U/s 41 of the Act. The liability to pay the ground rent arises out of the contract from 08.05.81. The demand raised by the defendants is justified and suit is frivolous.
3. No replication to the amended written statement was filed.
4. From the pleading of the parties following issues were framed for trial on 23.08.02 which are like this :
1. Whether the suit has been properly valued for the purposes of Court fee ? OPD
2. Whether the suit is maintainable in the present form in light of the fact that no notice U/s 53B of the DDA Act has been issued to the defendant authority ? OPD
3. Whether the demand letter dated 18.11.1988 raised by the defendant is illegal, arbitrary and without jurisdiction and is, therefore, liable to be declared illegal ? OPP Suit No.62/08/89 Page 6 of 19
4. Whether the plaintiff is liable to pay ground rent for any period prior to sanctioning of plans and and building permit in view of the terms and conditions of the allotment as contained in the auction booklet issued by the defendant ? OPD
5. Whether the ground rent was payable at the rate of Rs.1/ per year for a period of three years allowed for construction purposes in view of the amended building byelaws, 1983 ? OPP
6. Relief.
5. Two additional issues were framed for trial on 08.03.07 which are like this :
1. Whether the suit has not been instituted, signed and verified by the duly authorized and competent person ? OPD
2. Whether the suit of the plaintiff is liable to be dismissed for want of fulfillment of requirement of given notice U/s 53B of Delhi Development Act ? OPD
6. Both the parties have examined one witness each. No evidence was led on the additional issues. Both the parties have placed reliance on documentary evidence. I have perused the oral as well as documentary evidence and heard Learned counsel for the parties. My issue wise findings are as under :
7. Findings on issue No.1 (framed on 08.03.07) : The onus to prove this issue is on the defendants. The suit is signed, verified and instituted by Sh. Harpreet Singh, Managing Director of the plaintiff. Order 29 rule 1 Suit No.62/08/89 Page 7 of 19 CPC says that in suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the Secretary or by any Director or other Principal Officer of the corporation who is able to depose to the facts of the case. In the instant case, the suit is signed, verified and instituted by Sh. Harpreet Singh, Managing Director of the plaintiff company. The Managing Director is the Principal Officer of the company who can depose about the facts of the case. There was correspondence of the defendants with the Managing Director of the plaintiff company as apparent from the record. Sh. Harpreet Singh, being Managing Director of the plaintiff company, is competent to sign, verify and institute the suit and to my mind suit is instituted by a competent person. Reliance is placed upon United Bank of India v. Naresh Kumar and others, 1996(6) SCC, 660. The issue is decided against the defendants.
8. Findings on issue No.2 (framed on 23.08.02 and issue No.2 (framed on 08.03.07) : It is pertinent to mention at the outset that the issue framed on 23.08.02 was inadvertently framed again on 08.03.07 by my Learned Predecessor as both these issues pertains to whether notice U/s 53(b) of DDA Act was given to defendants or not. Learned counsel for the defendants contended that suit is not maintainable for the want of notice U/s 53(b) of DDA Act and proviso to the section is of no help to the plaintiff as suit is not for the injunction but it is also for the declaration. Learned counsel for the plaintiff submitted that proviso to section 53(b) Suit No.62/08/89 Page 8 of 19 of DDA Act specifically provides for dispensing with the issuance of notice in case the relief claimed is for injunction. Heard and perused the record. The plaintiff has filed a suit for declaration and injunction. The proviso can be invoked in case urgent relief is required. The plaintiff has not claimed the relief of title of the suit property. The plaintiff has sought an injunction to restrain the defendant from giving effect to the demand letter dated 18.11.88 or from cancelling the allotment of the suit property. No notice is required in the suit for permanent injunction as held by their lordship in AIR 1961 Gujarat 85. There was an imminent threat from the defendants and issuance of notice would have defeated the purpose of filing the suit. Though the plaintiff has claimed the relief of declaration also yet in view of the given circumstances it remains a suit for the injunction and as such proviso to section 53 of the Act is attracted and there was no need to give notice to the defendants. The issue is decided against the defendants.
9. Findings on issues No.3 to 5 (framed on 23.08.02) : The onus to prove issues No.3&5 is upon the plaintiff whereas of issue No.4 is on the defendants. Both the parties have examined one witness each. PW1 B M Makhija has filed his own affidavit in the chief examination wherein he has repeated the version of the plaint and exhibited documents from Ex.P2 to P40. In the cross examination the suggestion is denied that no resolution was passed by the plaintiff company authorizing him to file an affidavit in the court. He has been working as an employee of the Suit No.62/08/89 Page 9 of 19 plaintiff company from the date of filing of suit. He was appointed as a Director from 31.07.03. He has not brought any document relating to his appointment as Director. The plans were sanctioned after giving possession of suit property. The suggestion is denied that their architect didn't visit the office on receipt of letter Ex.P12. Letter Ex.P13 was deposited in the office of DDA at Vikas Sadan. The suggestion is denied that a sum of Rs.32368/ was not paid to the defendants. It is correct that ground rent has to be paid as per terms and conditions of the allotment. The suggestion is denied that letter Ex.P29 was never given by them to DDA. They have lost the original file as such he cannot show that it bears the stamp of DDA. No report was lodged with the police. The suggestion is denied that demand letter Ex.P8 is legal and justified. The suggestion is denied that they didn't comply with letter dated 28.01.81 of DDA. He doesn't know whether reminders dated 04.07.81, 05.09.81 and 22.10.81 were received or not. It is correct that their plans were rejected and fresh plans were submitted on 08.03.82. It is correct that DDA wrote a letter dated 28.05.82 to them for submissions of fresh drawings alongwith rejected plans. It is correct that construction was raised before sanctioning of plan and DDA asked them to deposit a sum of Rs.10,193/. It is correct that DUAC has returned the plans.
10. DW1 Somnath, UDC with DDA filed his affidavit Ex.D1 wherein he has repeated the version of written statement in the affidavit and exhibited documents Ex.DW1/ to 1/13. In the cross examination he Suit No.62/08/89 Page 10 of 19 stated that the entire record except that of ground rent has been transferred to MCD. The ground rent has been charged from 05.08.80. The site plan was sanctioned on 20.08.83. The building byelaws were amended on 23.06.83.
11. Learned counsel for the plaintiff contended that plaintiff is liable to pay the ground rent from the date of start of construction after the sanctioning of building plan on 20.08.83. He further submitted that building byelaws were amended which came into force on 23.06.83 vide which a period of three years was allowed for the construction of multi storeyed building and benefit of this amendment should be granted to the plaintiff. He further submitted that there is no question of charging ground rent from the date of possession as delay in sanctioning the building plan is due to the fault of the defendant. Learned counsel for the defendants on the other hand urged to the contrary.
12. Heard and perused the record. It is admitted fact that on 05.08.80 suit property was put to an auction which was purchased by the plaintiff company against a total premium of Rs.5,06,00,000/ and said premium was paid to the defendants. It is admitted fact that on 08.05.81 the possession of the suit property was handed over to the plaintiff. It is admitted fact that the building plan was sanctioned on 20.08.83. It is admitted fact that building byelaws were amended which came into force on 23.06.83 vide which a period of three years was allowed for raising construction of the multi storeyed building.
Suit No.62/08/89 Page 11 of 19
13. Clause 3 of terms and conditions of the auction says that "in addition to the premium the intending purchaser of the lease hold rights in the plot shall have to pay a yearly ground rent. The ground rent will be @ Rs.1/ per plot per annum for the first two years allowed for construction purposes and thereafter will be at the annual rate of 2.5% of the amount of premium. Clause 4(2)(a) says that lessee shall have to erect within two years from the date of offer of possession of the plot, a building in accordance with the type, design and other architectural features prescribed by DDA after obtaining and in accordance with the sanction to the building plan with necessary design plans and specifications from the proper Municipal byelaws and the DDA. The lessee shall not start construction before the said plan, etc. are sanctioned by the Authorities aforesaid. The Building Byelaws, 1983 were amended which came into force on 23.06.83 wherein validity of the building permit was extended to three years in case of larger complexes and multi storeyed building. In the backdrop of this, the plea of the plaintiff has to be considered. A bare perusal of clause 3 shows that ground rent is different for different periods. It is Rs.1/ per plot per annum for the first two years allowed for construction. It is 2.5% thereafter on the amount of premium. The ground rent is enhanced after every 30 years provided as increase in the rent at each such time shall not exceed 100% of that immediately before the enhancement is due. The clause itself nowhere shows that ground rent is payable only after the start of construction by the purchaser. The Suit No.62/08/89 Page 12 of 19 construction is started once possession is handed over. The possession is admittedly handed over on 08.05.81. The rent is minimum for first two years due to the construction of the plot otherwise there is no reason to keep the amount at a minimum level. There is nothing in the clause itself which says that ground rent is payable from the date of the start of the construction. The plaintiff had applied for the sanction of plan of the building on 05.12.80. A letter Ex.P12 dated 28.01.81 was written by DDA to the plaintiff to depute the architect to fix the time and date with the Chief Architect in order to discuss the case. There is nothing on the record that plaintiff had fixed any date to discuss the case with the Chief Architect. The reminders dated 04.07.81, 05.08.81, 03.09.81 and 22.10.81 were allegedly given by the defendants to the plaintiff as apparent from the testimony of DW1. PW1 in the cross examination stated that he doesn't know whether reminders dated 04.07.81, 05.09.81 and 22.10.81 were received. He has given an evasive reply. Managing Director of the plaintiff or any other Director working at that time has not stepped into witness box to admit or deny the receipt of all these reminders meaning thereby that receipt of these reminders are not in dispute. The plaintiff himself has not complied with the letter Ex.P12 which led to the rejection of plans on 28.12.81. PW1 has admitted that plans were rejected. It is apparent from the testimony of PW1 as well as DW1 that the plan submitted on 05.12.80 by the plaintiff was rejected due to his own fault and as such he cannot take advantage of his own Suit No.62/08/89 Page 13 of 19 wrong. PW1 has admitted that fresh plan was submitted on 08.03.82. A letter Ex.P16 dated 28.05.82 was written by the defendant to the plaintiff to submit fresh prints alongwith rejected plan at the first instance. The receipt of this letter is admitted by PW1. A letter Ex.P17 dated 03.06.82 was written by the plaintiff to the defendant with respect to the submissions of fresh prints. The letter further shows that they have preferred an appeal against the rejection order. The plaintiff instead of getting the plan sanctioned and complying with the directions contained in Ex.P16 preferred an appeal for the reasons best known to him. The defendants have written letter Ex.P18 to the plaintiff to deposit a copy of lease deed, certificate with respect to the size and capacity of lift, NOC from DESU, deposit of stacking charges of Rs.36743/, certificate from the experts regarding capacity and volume of UGWS etc. The stacking charges were deposited as apparent from letter Ex.P19. It appears from the letters plaintiff has himself not taken steps to get the plan sanctioned at the earliest rather plaintiff believed in correspondence for getting the plan sanctioned. The plans were later on submitted to Delhi Urban Arts Commission. Initially, the plan was not sanctioned for the want of parking facility as apparent from letter Ex.P25 dated 07.04.83. The defendants made for provision for the parking as apparent from letter Ex.P27 dated 07.05.07 to DUAC and accordingly the plan was sanctioned and intimated to the plaintiff. All this show that there was delay on the part of the plaintiff in getting the plan sanctioned. No fault can be found Suit No.62/08/89 Page 14 of 19 with the defendants for delay in getting the plan sanctioned as submitted by the plaintiff. It is admitted by the plaintiff that they had started the construction even before the sanctioning of the plan and even paid the penalty of Rs.10,193/ to DDA. There was default on the part of the plaintiff as such plaintiff cannot draw any support out of it and the argument that ground rent should be charged from the sanctioning of the plan doesn't hold water.
14. The argument that benefit of the amendment of building byelaws with effect from 22.06.83 be given to the plaintiff as construction period of three years was allowed in case of multi storeyed building and larger complexes. The argument doesn't hold water as plaintiff himself was at fault. The plaintiff was negligent as plaintiff didn't take any steps to fix the meeting of his Architect with the Chief Architect of the defendants. The reminders were issued but in vain which led to the rejection of the plan. The fresh plans were submitted on 25.03.82 by the plaintiff. The plaintiff himself preferred an appeal against the rejection of plan. There was unnecessarily delay by indulging into correspondence instead of getting the plan sanctioned by complying with the directions given by the defendants time to time to the plaintiff. A letter Ex.P3 dated 03.01.86 was written by the defendants to the plaintiff to the effect that construction was to be completed by 07.05.84. The construction has not completed. The period of construction can be condoned on the payment of composite charges but there is nothing on the record that composition Suit No.62/08/89 Page 15 of 19 charges were deposited by the plaintiff. The construction was not completed by 07.05.84. The composition charges were not deposited. The delay in sanctioning the building plan is attributed to the plaintiff. In these circumstances, the plaintiff is not entitled for the benefit of the amended byelaws vide which the validity period extended for the construction of larger complexes and multi storeyed building. The argument doesn't hold water.
15. The defendants have raised the demand for the ground rent in accordance with the terms and conditions of the auction as reflected in Ex.P10. The demand for the payment of ground rent alongwith interest was raised time to time by the defendants as apparent from the letters Ex.DW1/1 to 1/8. Ex.P3 and Ex.DW1/1 are the same letters with respect to the demand raised for the deposit of ground rent alongwith interest charges. The plaintiff wrote a letter Ex.P4 in response to letter Ex.DW1/7 that period of three years from 20.08.83 be granted for the construction in accordance with the amended byelaws and ground rent be charged from 29.08.86. A letter Ex.P6 dated 05.08.84 was written by the defendants to the plaintiff to deposit the ground rent, submit a list of Directors / Shareholders and list of flat buyers failing which action will be taken in accordance with the terms and conditions of the auction. The plaintiff also wrote a letter Ex.P5 to the Vice Chairman of DDA to this effect in response to Ex.P6. The letter Ex.P7 dated 22.06.88 was written by the defendants to the plaintiff to comply with the letter Ex.P6 failing Suit No.62/08/89 Page 16 of 19 which action will be taken. Letter Ex.P8 dated 18.11.88 was received by the plaintiff from Asstt. Collector Gr.I of the defendants to deposit a sum of Rs.6710629/ as arrears of land revenue. The demand was raised by the defendants in accordance with the terms and conditions of the auction. There is nothing on the record that demand is beyond the terms and conditions of the auction. The plans submitted by the plaintiff were rejected due to the fault of the plaintiff. The plaintiff cannot take benefit of the amended byelaws because plaintiff himself was at fault for getting the building plan rejected. Mere writing a letter to the Central Govt. by the plaintiff U/s 41 of the Act doesn't absolve the plaintiff from paying the ground rent because plaintiff has to pay the ground rent. To my mind, the demand raised by the defendants is in accordance with the terms and conditions of the auction and arguments of the Learned counsel for the plaintiff do not hold water. Hence, issues No.3&5 are decided against the plaintiff and issue No.4 is decided in favour of the defendants.
16. Findings on issue No.1 : The onus to prove this issue is on the defendants. Learned counsel for the defendants submitted that suit should have been valued on the demand of Rs.6710629/ raised by the defendants and suit is not accordingly valued for the purpose of court fee and jurisdiction by the plaintiff. He has placed reliance on Rampur Distillery and Chemicals Co. Ltd. v. UOI, 57(1995) DLT 642. Learned counsel for the plaintiff, on the other hand, contended that the demand of ground rent raised by the defendants is without any justification and Suit No.62/08/89 Page 17 of 19 accordingly suit is filed to the effect that demand raised be declared illegal and he further submitted that suit is accordingly valued for the purpose of court fee and jurisdiction. Heard and perused the record. The defendants have raised the demand for the payment of ground rent alongwith interest from time to time and accordingly issued a letter Ex.P8 to get it recovered as an arrears of land revenue U/s 68 of Punjab Land Revenue Act. The assertion of the plaintiff is that possession of the suit property was given on 08.05.81. On 23.06.83 the amended building byelaws came into force and period of construction was increased from two to three years in case of multi storeyed building from the date of sanction of the plan. The building plan was sanctioned on 20.08.83 so a period of three years should be reckoned from August, 1986 whereas defendants have charged the ground rent from 08.05.81 to 07.05.83 @ Rs.1/ and thereafter at the annual rate of 2.5% of the premium paid for the period subsequent alongwith interest. The representations have been rejected by the defendants. The suit has been filed for declaring the demand as illegal and not to charge the ground rent from 08.05.81. In these circumstances, even if, the plaintiff is seeking the relief of declaration but the suit essentially remains a suit for injunction i.e. defendant be restrained from giving effect to notice Ex.P8 as plaintiff has not disputed the payment of ground rent but has disputed the date from which it is payable. The case law referred to by Learned counsel for the defendant is not applicable to the present facts of the case and hence the Suit No.62/08/89 Page 18 of 19 suit is properly valued for the purpose of court fee and jurisdiction. The issue is decided against the defendants.
17. Relief : In view of my findings on the issues discussed above, the suit of the plaintiff for declaration and permanent injunction against the defendants is dismissed. There is no order as to the cost. Decree sheet be prepared. File after completion be consigned to record room. Announced in the open Court on 18.01.2011 (Suresh Kumar Gupta) Additional District Judge03 (East), Karkardooma Court, Delhi / 18.01.2011 Suit No.62/08/89 Page 19 of 19