Delhi District Court
Dr. Surender Kumar Sayal vs Delhi Development Authority on 16 July, 2011
Suit No. 721/2006
IN THE COURT OF MS. SHEFALI SHARMA
CIVIL JUDGE (WEST): TIS HAZARI COURTS: DELHI
SUIT NO. 721/2006
Dr. Surender Kumar Sayal
S/o Sh. B. R. Sayal
through Sh. Vineet Kumar Chawla,
General Attorney,
R/o C1/49, MIG flats,
Ground Floor, Sector15, Rohini, Delhi.
.......PLAINTIFF
VERSUS
1. Delhi Development Authority
through its Commissioner
Vikas Sadan, I. N. A.
New Delhi.
2. Sh. Arvind Kumar Verma,
Dy. Director (H), (NP), DDA
Vikas Sadan, I.N.A.
New Delhi.
........DEFENDANTS
DATE OF INSTITUTION : 05.02.1996
DATE OF RESERVATION : 06.06.2011
DATE OF DECISION : 16.07.2011
JUDGMENT: This is a suit for declaration and permanent injunction filed by the plaintiff against the defendant. The brief facts as averred in the plaint are as follows:
1. That the defendant had floated a "Registration Scheme on New Pattern, 1979" for allotment of flats and the plaintiff got himself registered under the said scheme by Surender Kumar Sayal vs. DDA 1/18 Suit No. 721/2006 filling up the requisite form and depositing the initial registration money in the year 1979. That in month of April 1990 the DDA informed the plaintiff that his name has been drawn in the list for allotment of MIG flat, C1/49, Sector15, Rohini, Delhi in the Hire Purchase Category and the disposal cost of the said flat had been fixed Rs. 2,04,000/ and the DDA vide demand letter no. 24(909)90/RO/NP dated 23.04.1990 to 27.04.1990 directed the plaintiff Sh. Surinder Kumar Sayal to deposit Rs. 38,805.51 on or before 27.05.1990. That the plaintiff deposited the amount of Rs. 38,805.51 in the file no. M.O.24(909)90/RD/NP on 22.05.1990 with the demand Draft no. 000928 dated 14.05.1990 and thereafter the plaintiff deposited the monthly installments in the sum of Rs. 2456.48 paise as per the terms and conditions of the demand letter dated 23.04.1990. The plaintiff had already deposited about Rs. 1,50,000/ approx. out of the total disposal cost of the flat of Rs. 2,04,000/. Thereafter the plaintiff filled up the requisite proformas supplied by defendant/ DDA and submitted the same on 14.05.1990. That after completion of all the formalities the DDA issued a letter of allotment of MIG flat ground floor bearing no. C1/49, Sector15, Rohini, Delhi in favour of the plaintiff Dr. Surinder Kumar Sayal and further directed the Rohini Project, Division no. IV/ DDA to hand over the physical possession of the said Flat to the plaintiff. The physical possession of the said MIG Flat was handed over by the Asstt. Engineer II, Rohini Project Division no. IV, DDA to the plaintiff only on 15.03.1991 and that the plaintiff has been using the flat bearing no. C1/ 49, Sector15, Rohini, Delhi since 15.03.1991. However in the meantime, the matrimonial relations of the plaintiff with his wife Smt. Rita Sayal could not remain cordial and a divorce petition was filed by the plaintiff on 10.10.1990 and a counter divorce petition was Surender Kumar Sayal vs. DDA 2/18 Suit No. 721/2006 also filed by his wife. In the meantime, in January, 1981, the plaintiff had proceeded to USA as a Research Associate and returned into India in February 1982, thereafter he joined as a Senior Engineer in Cement Corporation of India in March, 1983 and later at Gujrat and remained there till 1987. Thereafter he was posted as Jodhpur, Rajasthan and remained there till 1989.
2. During the divorce proceedings, in another litigation between the plaintiff and his wife Smt. Rita Sayal, it was revealed to the plaintiff in the year 1993 that an application for registration of a residential plot in the Rohini, Residential Scheme was filed by Smt. Rita Sayal with the DDA. That physical possession of the plot No. C9/117, Sector7, Rohini, in the area of 60 sq. meter only was delivered by the DDA to Smt. Rita Sayal on 20.06.1986.
3. That it is pertinent to mention here that in the letter issued by the Lease Administrative Officer Smt. Rita Sayal and Surinder Kumar Sayal were directed to appear before the SubRegistrar, Delhi on 12.10.1989, while Smt. Rita Sayal got the lease deed executed from the Lease Administrative Officer, of the DDA before the Subregistrar, Delhi jointly in the name of Smt. Rita Sayal and Surinder Kumar Sayal on 22.09.1989 itself in respect of plot C9/117, Sector7, Rohini, Delhi. That it was further revealed to the plaintiff that in execution of the above said Lease deed, Smt. Rita Sayal filed a forged General Power of Attorney dated 01.10.1988 purported to be made by the plaintiff in favour of Smt. Rita Sayal, thus by committing fraud and forgery. That it was further revealed to the plaintiff that as it was the policy of the DDA to insert the name of other spouse in the Lease Deed, hence in these circumstances, Smt. Rita Sayal obtained the Lease Deed from the DDA in respect of the said plot from the Lease Administrative Surender Kumar Sayal vs. DDA 3/18 Suit No. 721/2006 Officer, DDA and got the said lease deed registered before the Subregistrar on 22.09.1989. That further in order to get deleted name of Surinder Kumar Sayal from the said Lease Deed dated 22.09.1989, Smt. Rita Sayal started making complaints to the Vicechairman, DDA claiming herself to be the exclusive owner of plot no. C 9/117, Sector7, Rohini, Delhi as she had got her name registered with DDA on 26.03.1981 and had paid a sum of Rs. 12,010/ cost of the plot to DDA and took possession of the same on 20.06.1986 and the plaintiff has no concerned whatsoever with the said plot as the plaintiff, Sh. Surender Kumar Sayal had already been alloted an MIG flat bearing no. C1/49, Sector15, Rohini, Delhi. With these representations, Smt. Rita Sayal had requested DDA to delete the name of the plaintiff from the lease deed dated 22.09.1989 with respect to plot no. C9/117, Sector7, Rohini.
That on the basis of these complaints made by Smt. Rita Sayal, the Office of Vicechairman, DDA directed the Dy. Director, Housing, DDA to make enquiry in the matter and to submit a report and accordingly, the Dy. Director, Housing/ defendant no. 2 issued a show cause notice dated 08.09.1995 to the plaintiff. The plaintiff was duly served with the said notice and he replied to the same through his attorney on 14.09.1995, however, the Deputy Director (Housing) of the defendant authority vide order dated 24.01.1996 asked the plaintiff to handover the possession of the flat to the Executive Engineer, Rohini on 08.02.1996 not finding the reply of the plaintiff as satisfactory. The relevant portion of the order of the Deputy Director is reproduced herein for the sake of ready reference: 'And whereas nothing has been heard from you, and also the reply dated 14.09.1995 submitted by Sh. Vineet Kumar Chawla, said to be your General Attorney Surender Kumar Sayal vs. DDA 4/18 Suit No. 721/2006 having not found satisfactory, the allotment of the said flat is hereby cancelled. You are, therefore, asked to kindly handover peaceful vacant possession of the above said flat to EE RPD5, Rohini, New Delhi on 08.02.1996 at 11:00 AM.'
4. It is the case of the plaintiff that the impugned order dated 24.01.1996 passed by the Deputy Director, Defendant no. 2 herein, is malafide and against the principles of natural justice and the same be set aside. The aforesaid factual matrix gave the cause of action to the plaintiff to file the present suit praying therein that the defendants, its agents, servants, employees, etc. be restrained by way of permanent injunction not to take possession and not to enter into flat no. C1/49, Ground Floor, MIG flat, Sector 15, Rohini, Delhi from the plaintiff and declare the impugned order dated 24.01.1996 of the defendant no. 2 is against the natural Principles of justice, illegal, unconstitutional, and void abinitio.
5. In the written statement filed on behalf of the defendant/ DDA, the allegations of the plaintiff in the plaint are denied and it is stated that no notice under Section 53B of DD Act, 1957 has been served upon the defendant/ DDA before filing the present suit. It is further submitted that the flat no. 49, PocketC/1, Sector15, Rohini was alloted to the plaintiff through draw of lots held on 13.03.1990 at the disposal cost of Rs. 2,04,000/ on hire purchase basis and the demand letter was issued. That the possession of the flat was also handed over to the plaintiff. It is submitted that the plot was alloted to Smt. Rita Sayal, w/o the plaintiff and the possession of the same was delivered and lease deed was executed. However, it is submitted that Smt. Rita Sayal filed special power of attorney in DDA, executed by the plaintiff through which he appointed Smt. Rita Sayal, his attorney for the purpose of taking over the possession Surender Kumar Sayal vs. DDA 5/18 Suit No. 721/2006 and to execute the lease deed in respect of the plot no. 117, Sector7, Pocket9, Block C, Rohini, duly attested by notary public. On the basis of the said power of attorney, lease deed was executed. It is further submitted that as per the Government of India instructions, the lease deed was to be executed in the joint names of husband and wife and therefore, in this case also, the lease deed was executed in the joint name of Smt. Rita Sayal and Sh. S. K. Sayal. That after receipt of complaint from Mrs. Rita Sayal, w/o Sh. S. K. Sayal, the facts of the case were investigated and it was noticed that the plaintiff was already having a Rohini plot bearing no. C9/117, SectorVII jointly with his wife Smt. Rita Sayal and lease deed was executed on 22.09.1989. At the time of taking over possession of flat, an affidavit dated 14.05.1990 was given wherein it was mentioned that the plaintiff or his wife or any other dependent relations or minor children do not have any plot or flat on lease hold/ freehold basis in the Urban Areas Delhi/ Delhi Cantt. Then a show cause notice was issued to the plaintiff as to why the allotment of flat no. 49, Sector XV, Pocket C1, Rohini may not be cancelled. After receipt and consideration of reply filed by the plaintiff, the allotment was cancelled and was conveyed vide letter dated 24.01.1996 vide which the plaintiff was also directed to evict the flat. It is further submitted that the orders are perfectly legal and valid and in accordance with the terms and conditions of brochure. Hence the suit of the plaintiff is liable to be dismissed.
6. The plaintiff had filed replication to the written statement of defendant wherein the plaintiff denied the averments made by the defendant in its written statement and reiterated and reaffirmed the contents of the plaint.
7. From the pleadings of the parties, following issues with respect to the main suit were Surender Kumar Sayal vs. DDA 6/18 Suit No. 721/2006 framed by my Ld. Predecessor on 08.08.2001:
1. Whether the suit is bad for want of notice under Section 53B of DD Act? OPD.
2. Whether the plaintiff is entitled for the relief of declaration as prayed for? OPP.
3. Whether the plaintiff is entitled for the relief of permanent injunction? OPP.
4. Relief.
8. In order to prove his case, plaintiff examined three witnesses. PW1 is one Sh. R. C. Khatri, UDC, L&B, DDA who had brought the summoned record i.e. File no. F12 (221)83/LAB/Rohini in respect of plot no. 39/117, Sector7, Rohini, Delhi. He testified that in their record, there is a letter no. F.12(221)/83/LAB/Rohini dated 27.12.1988. He further testified that the addressee of this letter were the plaintiff and his wife Smt. Rita Sayal. The said letter is Ex. PW1/1. He also relied upon the copy of the letter bearing no. F12(221)83/LAB/Rohini dated 26.09.1989 issued by the department to the plaintiff and Smt. Rita Sayal, Ex. PW1/2. He further testified that Smt. Rita Sayal had individually applied for registration of the plot bearing no. C 9/117, Sector7 and same was made freehold individually in the name of Smt. Rita Sayal on the order of the Chairman of DDA which was communicated vide orders dated 10.06.1996 passed upon the representation of Smt. Rita Sayal made to the department. The copy of the representation of Smt. Rita Sayal in the summoned file is Ex. PW1/6 and the copy of the order of Chairman, DDA is Ex. PW1/7. The extracts from the noting of the said representation in the file is Ex. PW1/8. During the cross examination, he also relied upon the SPA executed by the plaintiff in favour of Smt. Rita Sayal dated 01.10.1998 authorizing her to take over the possession and execution of the lease deed as Ex. PW1/D1.
Surender Kumar Sayal vs. DDA 7/18 Suit No. 721/2006 PW2 is the Power of Attorney of the plaintiff Sh. Vineet Chawla who testified on the lines of the plaint and relied upon the documents Ex. PW1/A to Ex. PW1/H. Ex. PW1/A is the certified copy of the Mutual Consent Petition, Ex. PW1/B is the affidavit of Smt. Rita Sayal in support of the petition, Ex. PW1/C is the affidavit of Dr. Surinder Kumar Sayal, Ex. PW1/D is the joint statement of Smt. Rita Sayal and Dr. Surinder Kumar Sayal before Ld. ADJ, Ex. PW1/E is the final decree passed by Dr. R. K. Yadav, Ld. ADJ and Ex. PW1/F is the certified copy of the order dated 20.08.1993.
PW3 is the plaintiff himself who also vide his affidavit Ex. P3 testified on the lines of the plaint.
9. In order to prove their case, defendant has examined four witness i.e. DW1, Sh. Ravinder Kumar, Assistant, MIG, DDA. He testified that the flat bearing no. C1/49, Sector15, Rohini was alloted to the plaintiff in draw of lots held on 13.03.1990 whereas a plot bearing no. C9/117, Sector7, Rohini had already been alloted to Smt. Rita Sayal vide allotment letter dated 25.11.1983. Possession was handed over to her on 20.06.1986. Lease/ plot was executed in the joint name i.e. Rita Sayal and S. K. Sayal (wife and husband). The plot no. 117 at Rohini was alloted earlier while the flat no. 49 at Rohini was alloted subsequently. As per guidelines, husband and wife cannot retain two properties. When it came to the notice of DDA that second allotment has been made in the name of Sh. S. K. Sayal who is already colessee of plot no. 117, Rohini when a show cause notice dated 08.09.1995 was issued before that a notice dated 01.06.1995 was also issued to Sh. S. K. Sayal. A reply to the notice Surender Kumar Sayal vs. DDA 8/18 Suit No. 721/2006 dated 08.09.1995 was received but the same was not found satisfactory. The allotment of this flat was cancelled and information about cancellation was sent vide letter dated 24.01.1996. The documents i.e. allotment letter is Ex. DW1/1, show cause notice dated 01.06.1995 and 08.09.1995 are Ex. DW1/2 and Ex. DW1/3. A show cause notice dated 06.07.1995 was also issued which is Ex. DW1/4. Cancellation letter dated 24.01.1996 is Ex. DW1/5.
DW2 is Mohd. Zamil, Assistant, LAB, Rohini. He has brought the summoned record with respect to the plot no. 9/117, Sector7, Rohini. He testified that Smt. Rita Sayal had filed the affidavit and she and her husband and minor children had own in full or in part on lease hold or free hold of higher purchase basis any residential plot of house or have been alloted in Delhi. It is further testified that Smt. Rita Sayal had also stated in her affidavit that she was applying for only one plot. The copy of the affidavit is Ex. DW2/1. Smt. Rita Sayal had also filed undertaking Ex. DW2/2. Mr. S. K. Sayal also filed an affidavit in respect of income proof Ex. DW2/3. On 03.03.1988, lease deed paper was issued on joint name of Smt. Rita Sayal and Sh. S. K. Sayal in respect of the plot no. C9/117, Sector7, Rohini, Delhi. Smt. Rita Sayal submitted a Power of Attorney on 01.10.1988 which was executed by Sh. S. K. Sayal by which she was authorized to take the possession of execution of the lease and registration of the same. The copy of Special Power of Attorney is already Ex. PW1/D1. The lease deed was executed in the joint name. Smt. Rita Sayal signed the lease deed on behalf of Sh. S. K. Sayal. Smt. Rita Sayal applied for reholding of plot. She had made the representation for reholding the plot in her name only on the basis Surender Kumar Sayal vs. DDA 9/18 Suit No. 721/2006 of which the competent authority i.e. Vice Chairman allowed to transfer to freehold vide orders dated 10.06.1996. The copy of noting portion is Ex. DW1/4. Copy of page no. 63 and 63 of noting portion is Ex. DW1/5 and Ex. PW1/6 respectively. On 22.05.1995 she has applied for freeholding the plot. Conveyance paper were issued on 11.07.1996 in her name which were received by her. On 16.10.1996 conveyance deed was executed in respect of plot. As per policy double allotment of plot and flat cannot be made in the name of person and family member. As per policy husband and wife is entitle to single plot or flat.
DW3 Sh. P. N. Gupta, UDC, Lease Admn. Branch, Rohini, DDA who testified on the lines of written statement vide affidavit Ex. DW3/A. However, inadvertently, Sh. Atal Singh, Asstt. Director is also numbered as DW3.
DW3 is Sh. Atal Singh, Asstt. Director, MIG, Housing Department, DDA, who testified on the lines of the written statement vide affidavit Ex. DW3/X and relied upon the documents already exhibited as Ex. DW1/1 to Ex. DW1/5.
DW4 is Sh. Veer Pal Singh, Assistant Director, LAP, Rohini, DDA, Delhi who vide his testimony Ex. DW4/X relied upon the document Ex. DW4/1 which is the copy of allotment letter.
10.I have heard the counsels for parties and carefully perused the material available on record.
11.My issuewise findings are as follows:
Issue No. 1: Whether the suit of the plaintiff is bad for want of notice under Section53B of DD Act? OPD.
Surender Kumar Sayal vs. DDA 10/18 Suit No. 721/2006 The onus to prove this issue was on defendant. However, no substantial evidence has been led on behalf of defendant to show that suit is bad for want of notice under Section 53B of DD Act.
After analysis of provisions of Section 53B, it is clear as per clause (3) of the section in a case of injunction, the mandate of statutory notice is not applicable. Thus, this issue is decided in favour of the plaintiff and against the defendant. Issue No. 2: Whether the plaintiff is entitled for the relief of declaration as prayed for? OPP.
The onus to prove this issue was upon the plaintiff. The plaintiff vide his affidavit Ex. P3, testified that the defendant had floated a "Registration Scheme on New Pattern, 1979" for allotment of flats and the plaintiff got himself registered under the said scheme by filling up the requisite form and depositing the initial registration money in the year 1979. The plaintiff had already deposited about Rs. 1,50,000/ approx. out of the total disposal cost of the flat of Rs. 2,04,000/. Thereafter the plaintiff filled up the requisite proformas supplied by defendant/ DDA and submitted the same on 14.05.1990. That after completion of all the formalities the DDA issued a letter of allotment of MIG flat ground floor bearing no. C1/49, Sector15, Rohini, Delhi in favour of the plaintiff Dr. Surinder Kumar Sayal and further directed the Rohini Project, Division no. IV/ DDA to hand over the physical possession of the said Flat to the plaintiff. The physical possession of the said MIG Flat was handed over by the Asstt. Engineer II, Rohini Project Division no. IV, DDA to the plaintiff only on 15.03.1991 and that the plaintiff has been using the flat bearing no. C1/ 49, Sector15, Rohini, Delhi since 15.03.1991. However in the meantime, the matrimonial relations of the plaintiff with his wife Smt. Rita Sayal Surender Kumar Sayal vs. DDA 11/18 Suit No. 721/2006 could not remain cordial and a divorce petition was filed by the plaintiff on 10.10.1990 and a counter divorce petition was also filed by his wife. In the meantime, in January, 1981, the plaintiff had proceeded to USA as a Research Associate and returned into India in February 1982, thereafter he joined as a Senior Engineer in Cement Corporation of India in March, 1983 and later at Gujrat and remained there till 1987. Thereafter he was posted as Jodhpur, Rajasthan and remained there till 1989. Smt. Rita Sayal got the lease deed executed from the Lease Administrative Officer, of the DDA before the Sub registrar, Delhi jointly in the name of Smt. Rita Sayal and Surinder Kumar Sayal on 22.09.1989 itself in respect of plot C9/117, Sector7, Rohini, Delhi. That it was further revealed to the plaintiff that in execution of the above said Lease deed, Smt. Rita Sayal filed a forged General Power of Attorney dated 01.10.1988 purported to be made by the plaintiff in favour of Smt. Rita Sayal. That on the basis of these complaints made by Smt. Rita Sayal, the Office of Vicechairman, DDA directed the Dy. Director, Housing, DDA to make enquiry in the matter and to submit a report and accordingly, the Dy.
Director, Housing/ defendant no. 2 issued a show cause notice dated 08.09.1995 to the plaintiff. The plaintiff was duly served with the said notice and he replied to the same through his attorney on 14.09.1995, however, the Deputy Director (Housing) of the defendant authority vide order dated 24.01.1996 asked the plaintiff to handover the possession of the flat to the Executive Engineer, Rohini on 08.02.1996 not finding the reply of the plaintiff as satisfactory. He relied upon two more witness viz. PW1 and PW2.
PW1 has categorically testified that the lease deed with respect to property no. C9/117, Sector7, Rohini was executed in the joint names of Smt. Rita Sayal and the Surender Kumar Sayal vs. DDA 12/18 Suit No. 721/2006 plaintiff on 22.09.1989. He has further testified that Smt. Rita Sayal had individually applied for registration on 20.02.1981 and the possession of the plot was exclusively taken over by Smt. Rita Sayal on 20.06.1986 from DDA. The plot in question thereafter was made freehold exclusively in the name of Smt. Rita Sayal on the order of the Chairman of DDA upon representation made by Smt. Rita Sayal which is proved as Ex. PW1/6 and the extracts of the noting in the file as Ex. PW1/8. In his crossexamination, PW1 has categorically admitted that Sh. S. K. Sayal, the plaintiff herein, had executed a Power of Attorney in favour of Smt. Rita Sayal authorizing her for taking over the possession and execution of lease deed. The said Power of Attorney is proved as Ex. PW1/D1.
PW2 in his crossexamination has categorically admitted that flat no. C 1/49, Sector15, Rohini was alloted to the plaintiff in the month of April, 1990 and the plot no. C9/117, Sector7, Rohini was alloted to Smt. Rita Sayal in the year 1986. Thus, it is apparently clear that the allotment in favour of Smt. Rita Sayal was prior in time. It is further admitted that at the time of allotment of the plot to Smt. Rita Sayal, she was the legally wedded wife of the plaintiff. It is further admitted that an affidavit was given by the plaintiff to DDA wherein it was mentioned that the plaintiff and his wife and children do not have any plot or flat on leasehold or freehold basis in Delhi. Thus, when the allotment of plot was admittedly already made in favour of Smt. Rita Sayal, who was the wife of the plaintiff then the said affidavit given by the plaintiff was apparently false.
Moreover, the defendant vide the testimony of DW1 to DW3 has proved that after receipt of complaint from Mrs. Rita Sayal, w/o Sh. S. K. Sayal, the facts of the case were investigated and it was noticed that the plaintiff was already having a Rohini Surender Kumar Sayal vs. DDA 13/18 Suit No. 721/2006 plot bearing no. C9/117, SectorVII jointly with his wife Smt. Rita Sayal and lease deed was executed on 22.09.1989. At the time of taking over possession of flat, an affidavit dated 14.05.1990 was given wherein it was mentioned that the plaintiff or his wife or any other dependent relations or minor children do not have any plot or flat on lease hold/ freehold basis in the Urban Areas Delhi/ Delhi Cantt. Then a show cause notice was issued to the plaintiff as to why the allotment of flat no. 49, Sector XV, Pocket C1, Rohini may not be cancelled. After receipt and consideration of reply filed by the plaintiff, the allotment was cancelled and was conveyed vide letter dated 24.01.1996 vide which the plaintiff was also directed to evict the flat. It is further submitted that the orders are perfectly legal and valid and in accordance with the terms and conditions of brochure.
Thus from the evidence adduced on behalf of both the parties, it has been revealed that the plot no. C9/117, Sector7, Rohini was alloted to Smt. Rita Sayal, through allotment letter dated 25.11.1983 prior in time than the plot no. C1/49, Sector 15, Rohini alloted to the plaintiff. Since as per policy, the lease deed cannot be made individually in the name of the wife, therefore, a lease deed dated 03.03.1988 was executed jointly in the names of the husband (plaintiff) and wife with respect to property no. C9/117, Sector7, Rohini. Further on the basis of Power of Attorney dated 01.10.1988 which is exhibited as Ex. PW1/D1 executed by the plaintiff in favour of his wife, possession of the flat no. C9/117, Sector7, Rohini was exclusively handed over to Smt. Rita Sayal. However since the matrimonial relation between the plaintiff and Smt. Rita Siyal did not remain cordial, she made representation to the Chairman DDA which is proved vide Ex. PW1/6 to Ex. PW1/8 and consequently, the property was made freehold Surender Kumar Sayal vs. DDA 14/18 Suit No. 721/2006 and a conveyance deed dated 16.10.1996 was eventually drawn exclusively in the name of Smt. Rita Sayal after making due enquiries. A show cause notice was also issued to the plaintiff on 30.09.1995 after the decision of the LG to delete the name of the plaintiff from the allotment of the plot and making the allotment exclusively in the name of Smt. Rita Sayal.
The plaintiff has taken two pleas, first that the show cause notices were never served upon him and therefore, the decision of the chairman, DDA to delete his name and rather canceling the allotment of the subsequent plot i.e. C1/49, Sector15 in his favour, is arbitrary and secondly, that the signatures adduced on the Power of Attorney Ex. PW1/D1 hald been forged by his wife. Not an iota of any documentary or oral evidence has been adduced on behalf of the plaintiff to show that the signatures on the Power of Attorney had been forged by his wife Smt. Rita Sayal. Admittedly, the plaintiff has never even lodged any complaint against his wife in this regard.
I have carefully gone through the policy and the affidavit/ undertaking required to be filled by the applicant at the time of allotment of a plot or flat. ClauseI of the said affidavit categorically states as under:
1. I, or my wife/ husband or any of my dependent relations including minor children do not own in full or in part of freehold or leasehold basis, any residential plot or house in the urban area of Delhi, New Delhi or Delhi Cantt.
Thus as per policy, it has been duly proved by defendant/ DDA that Smt. Rita Sayal had filed the said affidavit which is proved as Ex. DW2/1 as well as an undertaking which is proved as Ex. DW2/2. Further the defendant/ DDA has also proved that the plaintiff has also filed an affidavit with respect to his income which is Ex.
Surender Kumar Sayal vs. DDA 15/18 Suit No. 721/2006 DW2/3. As is discussed above, the plaintiff has failed to adduce any evidence that his signatures on the documents had been forged by his wife. It is further not disputed by the plaintiff that he and Smt. Rita Sayal were legally divorced on 08.07.2000 and till then they were the legally wedded husband and wife. The divorce decree and judgment is proved as Ex. PW1/8. As per ClauseIII of the Eligibility Criteria of the Registration Scheme on New Pattern, 1979, the husband and wife cannot retain two properties in Delhi in their name. The said clause is being reproduced for the sake of ready reference:
3. The applicant must not own any residential house or plot in full or in part on lease hold or free hold basis in the Union Territory of Delhi, either in his/ her own name or in the name of his/her wife/ husband or any of his/ her minor and or dependent children or dependent parents or dependent minor sisters and brothers. If, however, individual share of the applicant in the jointly owned plot or land under the residential house is less than 75 sq. yards; an application for allotment of flat can be entertained. In the event of allotment, the flat shall be used by the allottee for his/ her own residence. Persons who own a house or plot alloted by Delhi Development Authority on an area of even less than 75 sq. yards shall not, however, be eligible for registration.
As is already discussed above, the witness produced on behalf of plaintiff himself admitted that the plot C9/117, Sector7 was alloted to Smt. Rita Siyal in 1986 and the plot C1/49, Sector15 was alloted to the plaintiff in April, 1990 i.e. subsequent to the allotment made in the favour of his wife. In such a scenario, as per the policy, the subsequent allotment made in favour of the plaintiff was cancelled and he was asked to handover the possession of the plot C1/49, Sector15, Rohini. It has no where being Surender Kumar Sayal vs. DDA 16/18 Suit No. 721/2006 disputed by the plaintiff that this allotment was subsequent. His only grudge remained that no show cause notice was issued to him at the time of deleting of his name from the joint lease deed executed with reference to the plot no. C9/117, Sector7, Rohini. The defendant has proved that show cause notices dated 01.06.1995, 08.09.1995, 06.07.1996 which are proved as Ex. DW1/2, Ex. DW1/3 and Ex. DW1/4 had been issued to the plaintiff. Even if for the sake of arguments, the stand of the plaintiff that he never received such notices is accepted even then it is nowhere denied by the plaintiff that the allotment of the flat C9/117, Sector7 was alloted to Smt. Rita Siyal in 1986 and the plot C1/49, Sector15 was alloted to the plaintiff in April, 1990 i.e. subsequent to the allotment made in the favour of his wife. Further the plaintiff has failed to prove that his signatures were forged on the relevant documents by his wife as is already discussed above. Thus, it appears that upon the representation made by the wife, the name of the plaintiff was deleted by the defendant no. 2 upon the orders of the Chairman of DDA and conversion from leasehold to freehold of the property was exclusively made in the name of Smt. Rita Sayal. There is no arbitrariness which has been broughtforth by the plaintiff in passing of the order dated 24.01.1996 passed by defendant no. 2.
Further the relief of declaration and the relief of permanent injunction which has been sought for by the plaintiff shall have a direct bearing upon the rights of Smt. Rita Sayal, however, Smt. Rita Sayal has not been made a party in the present case by the plaintiff. Thus, the present suit is as such bad for nonjoinder of necessary parties.
In view of my aforesaid findings, this issue is decided against the plaintiff and in favour of the defendants.
Issue No. 3: Whether the plaintiff is entitled to the relief of permanent injunction as Surender Kumar Sayal vs. DDA 17/18 Suit No. 721/2006 prayed for? OPP.
It is settled law that consequential relief is one which flows directly from the main relief, the two reliefs are indivisible and if the court, in exercise of its judicial discretion, refuses to pass a declaratory decree, the consequential relief also falls with it. Accordingly, this issue is decided against the plaintiff and in favour of the defendant. Relief In view of the aforesaid discussions, the suit of the plaintiff is hereby dismissed. No order as to cost. Decree sheet be prepared accordingly. File be consigned to record room.
Pronounced in the open court today on 16.07.2011.
(SHEFALI SHARMA)
CIVIL JUDGE (WEST)
THC, DELHI/ 16.07.2011
Surender Kumar Sayal vs. DDA 18/18