Dr. Vijay Kumar Gupta vs Delhi Development Authority
2008 Latest Caselaw 1892 Del

                 IN THE HIGH COURT OF DELHI

              Writ Petition (Civil) No.16830/2006

                           Date of decision: October 24 , 2008

DR. VIJAY KUMAR GUPTA                           ... Petitioner
                    through: Mr. Sanjay Sharawat, Advocate
                             with Mr. Sunil Verma, Advocate
                             & Petitioner in person.

                                VERSUS

DELHI DEVELOPMENT AUTHORITY
& ANOTHER                                 ....Respondents

through: Mr. Yeeshu Jain, Advocate for the Respondent No.1.

Mr. O.P. Arya, Advocate with Mr. Y. Sharma, Advocate for the Respondent No.2.

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL

1.Whether reporters of local papers may be allowed to see the Judgment? Yes

2.To be referred to the Reporter or not? Yes

3.Whether the judgment should be reported in the Digest? Yes

GITA MITTAL, J

1. By this judgment, I propose to decide this writ petition filed by

the petitioner wherein the following relief has been sought:-

"(a) Pass an appropriate writ, order or direction in the nature of Mandamus directing the Respondent no.1 to allot an alternative plot to the petitioner in lieu of the plot bearing No.36, Pocket - 2, Block - B, Sector - 16, Rohini, Delhi admeasuring 60 Sq. mtrs. as per the terms and conditions of the original allotment and in the same sector or in any other similarly developed sector and location; and

(b) Pass an appropriate writ, order or direction in the nature of Mandamus directing the respondent

no.1 to pay to the petitioner a compensatory damages quantified as Rs.20,00,000/- (Rupees twenty lakhs only) for violation of the fundamental right by non delivery of the plot in question till date despite allotment being made in 1985 and possession delivered in 1988."

2. There is no material dispute by the respondents to the facts

placed by the petitioner before this court. It is an admitted position

that the Delhi Development Authority, respondent no.1 herein,

announced a scheme for allotment of plots in 1981 in new project

which was named as "Rohini Residential Scheme" in the North-West

part of Delhi.

3. The petitioner applied for allotment of a plot of 60 sq. meters

size on 25th March, 1981 and also deposited Rs.5,000/- as earnest

money as required by receipt no.02683 of this date with the

respondent no.1. In a computerised draw of lots held on 25th March,

1985 by the DDA, the petitioner was successful in drawing a plot

bearing no.36, Pocket II, Block B, Sector 16, Rohini admeasuring 60

sq. meters (hereinafter referred to as the `plot'). The demand-cum-

allotment letter issued by the respondent no.1 to the petitioner

required him to make payment of the balance amount of Rs.5,702/- as

per schedule by the 31st May, 1985 while the total cost of the plot was

fixed at Rs.12,011/-. The petitioner remitted the requisite amount of

Rs.5,702/- vide a demand draft admittedly received by the DDA on 3rd

August, 1985.

4. The petitioner made applications dated 14th October, 1987 and

15th October, 1987 to the DDA to hand over the possession of the plot

along with the requisite documents. By a communication of 31st

October, 1988, the DDA informed the petitioner of its intention of

handing over possession of the plot and he was required to appear for

this purpose at the site office. The petitioner reached the site office

of the respondent no.1 on 8th December, 1988 as required where

physical possession of the plot was handed over to him. The DDA

also issued the possession letter along with the lay out plan of the

plot to the petitioner.

5. On the 2nd of July, 1996, the respondent no1 required the

petitioner to furnish additional documents including the ration card,

photographs etc. for preparation of a lease deed. These documents

were furnished by the petitioner to the DDA on the 12th May, 1997.

6. The petitioner has claimed that he submitted all the required

documents to the DDA on 12th May, 1997 and thereafter kept awaiting

receipt of the lease deed papers and information with regard to the

time and date for execution of the lease deed at Mandsaur, M.P.

where he was permanently residing. Despite passage of of about one

and a half years, no information was received by the petitioner from

the DDA. The petitioner states that he came to Delhi on 11th

February, 1999 to meet his relatives and on 15th February, 1999 went

to see his plot. To his shock, a double storey building had been

raised on the plot and the name plate of Mr. S.N. Swami, respondent

no.2 herein, was affixed on the entrance gate. The respondent no.2

did not give any satisfactory responses to the petitioner and only

informed him that he had bought the plot from its owners.

7. The petitioner immediately submitted a complaint to the Deputy

Commissioner of Police of the Crime Branch, ITO, Delhi on 16th

February, 1999. The petitioner also approached the DDA by

complaints made on 15th March, 1999 and 29th April, 1999 requesting

the DDA for removal of the unauthorised construction carried out on

the plot in question. It was requested that a criminal case be got

registered against the culprits who had forged and manipulated the

allotment of the plot in favour of the respondent no.2. The petitioner

was so asserting title to plot as he was the allottee of the plot and had

paid the entire amount towards the cost thereof and possession had

been handed over to him, while only the lease deed remained to be

executed. As no action was taken by the DDA, the petitioner

approach the Lt. Governor, Delhi with a complaint on 15th June, 1999.

It was only thereafter that a criminal case was registered bearing FIR

No.205/1999 dated 15th June, 1999 under Sections 420, 448, 468, 471

& 120-B of the Indian Penal Code at the Police Station Prashant Vihar,

Delhi.

8. The petitioner has stated that the DDA informed him on 1st July,

1999 that further action in the matter would be taken on receipt of a

report from the Delhi Police and he was required to await the outcome

of the investigation. It was the investigation by the police which

revealed to the petitioner that by fraud, forgery and impersonation, a

registered lease deed of the plot had been executed on 28th

November, 1996 and registered on 2nd December, 1996.

9. On investigation by the police, one of the persons investigated,

Shri Brij Kishore, had stated that the file of the plot no.36, Pocket II,

Block B, Sector 16, Rohini was obtained from the dealing clerk Shri

L.K. Jha because the real owner of the said plot had never visited the

DDA office. It was in evidence that Shri L.K. Jha, a UDC with the DDA

had planned the sale of this plot. This Shri L.K. Jha, was arrested by

the police on 21st July, 1999. Apart from the UDC of the DDA, its

superintendent Shri Prem Lal and the lease officer Shri Indira Singh

(LAO) were also investigated with regard to the execution of the lease

deed.

10. In the charge-sheet filed by it, the police has noted that

according to these officers, the concerned file of the plot in question

was missing. For this reason, no action could be taken against these

officers due to lack of complete evidence. In this background, the

police filed a charge-sheet dated 11th October, 1999 against seven

persons which includes Shri Lalit Kumar Jha, an employee of the DDA.

The petitioner has contended that the illegal acts were

conducted with the complicity and active involvement of the officials

of the DDA which is manifested from these facts.

11. In the counter affidavit which has been filed by the DDA before

this court, the DDA has admitted that when it came to know about the

execution of the lease deed of the plot in reference under forged

signatures in the name of the respondent no.2, it required the Crime

Branch of the Delhi Police to investigate the same. It has also been

further submitted that the DDA also initiated a departmental inquiry

against the dealing clerk/assistant in whose possession the file of the

plot in reference was entrusted and also placed the seven other

persons under suspension and initiated inquiry against them for their

suspected role in the incidents.

12. Interestingly, despite the passage of almost a decade, the

departmental inquiry has not been concluded and the DDA is unable

to inform the court about its fate.

13. Be that as it may, so far as the execution of the lease deed is

concerned, in the counter affidavit it is admitted that on "2nd

November, 1996, the lease deed with regard to the plot of land was

got executed by somebody impersonating as the petitioner and his

wife in the name of the respondent no.2".

It is thus admitted that the lease deed was executed under

forged signatures.

14. It is noteworthy that the DDA has also stated that vide a letter

dated 2nd July, 1996, four sets of lease deed papers were issued in the

names of the petitioner and his wife with the request to get it

stamped from the office of the Collector of Stamps which the

petitioner deposited on 12th May, 1997.

The DDA has not placed anything on record to show that these

papers were actually dispatched to or received by the petitioner.

The petitioner has disputed receipt of any such documents from

the DDA. The petitioner has also submitted that he has not paid the

stamp duty nor deposited these documents with the DDA.

Record from the dispatch section could have been produced by

the respondent if it existed. This is not done.

15. So far as the respondent no.2 Shri S.N. Swami is concerned, he

has contended that "the petitioner and his wife are strangers to him

as they are not the persons in whose favour the DDA executed the

lease deed in respect of the plot in question on 28th November, 1996

and got it registered on 2nd December, 1996". He has further

contended that he was a bona fide purchaser for good consideration

and has acted in good faith after purchasing the plot from the

ostensible owners, duly identified by the real owner, that is the DDA,

who had admittedly created/transfered the ownership in favour of the

transferrors. This respondent has also submitted that as per the plan

submitted by the transferrors and approved by the Delhi

Development Authority, he had constructed a two and a half storeyed

residential house spending an amount of Rs.8,00,000/- and that since

10th July, 1997 he is residing therein.

16. The respondent no.2 has also filed a civil suit bearing Suit

No.329/1999 against the DDA, Shri Vijay Kumar Gupta, the present

petitioner and his wife Smt. Maya Gupta as defendants, seeking

permanent injunction. It would be useful to examine the contentions

of the respondent no.2 in the plaint so far as execution of the

document is concerned in paras 1 to 4 & 9 of the plaint and the stand

of the DDA in its written statement:-

   Plaint  filed   by         the          Written   statement    of   the
   respondent no.2                         DDA
   "1. That      the     plaintiff         That the contents of para
   purchased      plot     no.36           No.1 of the plaint as stated
   admeasuring        60      sq.          by the plaintiff are not
   situated in block B, Pocket             correct    as    such     not
   2, Sector 16 in Rohini                  admitted.     The defendant
   Residential Scheme of the               nos.2 & 3 have never
   DDA      against       proper           transferred    their   rights
   consideration    from     two           regarding the said plot to
   persons pretending to be                any body and also not
   defendants nos.2 & 3                    received any consideration
   through a property dealer,              in any manner.
   namely      Shri    Subhash

Swami in Dec., 1996. 2. That the contents of para no.2 of the plaint as stated

2. That the perpetual by the plaintiff are not lease deed in respect of the correct as such not aforesaid plot was duly admitted. The said plot was executed in favour of the allotted in the name of same persons, pretending defendant no.2 by the Delhi to be defendants Nos.2 & 3 Development Authority and by defendant no.1 on possession of the said plot 28.11.1996 and was got was also handed over to the registered with their defendant no.2. Then after photographs before the Sub the defendant No.2 has Registrar VI, New Delhi in completed the entire the presence of the required formalities witnesses on 2.12.1996. according to the satisfaction of the DDA authorities for getting execution of the lease deed but the DDA authorities have not executed any lease deed in favour of defendant no.2 and afterwards it revealed that the plaintiff in collusion with certain other persons and also certain staff members of DDA got executed and registered the alleged forged leased deed by affixing photographs of certain other persons.

 3.    That the two persons             3. That the contents of the
in whose favour the lease              para no.3 of the plaint as
deed     was     registered,           stated by the plaintiff are
executed agreement to sell             entirely wrong and incorrect
and       other      various           as such not admitted. The
documents of sale/transfer             defendant nos.2 & 3 have
on the same day, i.e. On               never executed Agreement
02.12.1996.              The           to sell, General Power of
documents          executed            Attorney, Special Power of
include General Power of               Attorney and Will as alleged
Attorney, Special Power of             by the plaintiff in para no.3
Attorney and Will which                of the plaint were got
were also registered with              executed by the plaintiff in a
their photographs by the               planned way be entering
said Sub-Registrar.     True           into criminal conspiracy in
copies of the perpetual                collusion    with      certain
lease deed, GPA, SPA, Will,            offenders with intent to grab
Agreement to Sell and                  the plot as detailed at the
other documents are filed.             end of the plaint.


4.    That           physical          4.That the contents of para
possession of the above                no.4 of the plaint as stated
stated residential plot along          by      the     plaintiff  are
with    its   all     original         absolutely     incorrect   and
documents including the                false as such not admitted.
letter of allotment and                The      alleged    defendants
letter of possession was               nos.2 & 3 have never
handed over to the plaintiff           received any amount from
by the above said two                  any one regarding the plot
persons pretending to be               in dispute as such no
defendant nos. 2 and 3                 question arises to execute
through the said property              any document as alleged by
dealer after receipt of                the plaintiff. The defendant
consideration on the same              No.2 has never issued any
day i.e. 02.12.1996. As it             letter for extension of time
was settled between the                for         completion      of
parties the above said two             construction.     Actually the
persons and the property               defendant no.2 was waiting
dealer also got issued letter          for the execution of the
for extension of time for              lease deed. This is all a foul
completion of construction,            play of the plaintiff.     The
Form                                   plaintiff himself is the sole
                                       master





       B, D & E and the sanctioned               mind to chalk out this plan
      plan in respect of plot no.               and got prepared certain
      36 from defendant no. 1                   documents with intent to
      and handed over to the                    grab the said plot illegally.
      plaintiff after receipt of the            The plaintiff is in the legal
      remaining        consideration            profession and very well
      after two weeks.                          acquainted with the pros
                                                and cons.
      9.    That the plaintiff is a             9. That the contents of para
      bona fide purchaser and is                no.9 of the plaint as stated
      admittedly      in  peaceful              by the plaintiff are also not
      possession of plot no. 36                 correct and as such denied.
      having certainly a better                 The plaintiff is not a bona
      title on the strength of the              fide purchaser. The plaintiff
      documents including the                   is the main accused for the
      perpetual lease deed duly                 scam and has prepared all
      executed by the competent                 the    forged     documents
      officer of DDA and duly                   regarding    the    plot    in
      registered by the Sub                     dispute. The said plaintiff is
      Registrar and the registered              in the illegal occupation of
      GPA, SPA and Will in favour               the plot and as such liable to
      of the plaintiff."                        be evicted.

17. It is, therefore, apparent that the respondent no.2 herein has

claimed and drawn his rights including possession based on the

registered lease deed executed by the DDA in favour of the impostors

who have further transacted and transferred the property in question

in favour of the respondent no.2. In para 7 of the written statement

of the DDA in Suit No.329/1999, it has been categorically admitted

the involvement of some of its officials in executing the lease deed

and passing of the building plan on the forged signatures and fake

photographs. Therefore, It is an admitted position that the DDA,

though empowered to take action in respect of the illegalities brought

to its notice, has not taken any action at all despite the prohibitions

even in the lease deed of further transacting and transferring the

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property. It is also noteworthy that in the light of the facts placed on

record by the respondent no.2, the DDA was also a party to the

sanctioning of the building plans in favour of the impersonators and

that its officers have connived in the illegal acts done in respect of

and on the plot including the handing over of its possession to the

respondent no.2 and raising of construction thereon to the prejudice

of the petitioner.

18. In the instant case, I am informed that even file of cases is

missing from the office of the DDA.

19. A vehement plea has been raised by Mr.Yeeshu Jain, learned

counsel representing the DDA before this court that the petitioner had

filed a prior civil suit bearing Suit No.329/1999 and for this reason,

cannot maintain the present writ petition. It is necessary to notice

the prayers made by the petitioner in suit which was filed by him. In

the suit filed on 22nd November, 1999, the petitioner had sought the

following prayers:-

"(a) That decree for mandatory injunction be passed in favour of the plaintiffs and against the defendants to the effect that the defendants be directed by the Hon'ble Court to demolish the entire construction over the plot in dispute and after removal of the alleged construction, the vacant physical possession over the plot as detailed at the end of the plaint be restored to the plaintiffs in accordance with law within a specified period fixed by the Hon'ble Court and in case of default the demolition of the entire construction and thereafter its removal vacant physical possession be accordingly restored to the plaintiffs through the agency of the Hon'ble Court at the cost of defendants.

(b) That decree for declaration be passed in favour of the plaintiffs and against the defendants to the

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effect that the lease deed executed on 28.11.1996 and also got registered on 2.12.1996 as Document Registration No.8717 Book No.1 Volume No.215 Page No.82 to 87 at the office of Sub-registrar VI Delhi by fraud and impersonation and using forged signatures and fake photographs of the plaintiffs be declared null and void or cancelled and there after due information in this regard be also sent accordingly to the concerned Sub-Registrar office for the purpose to make entries in the concerning records.

(c) That decree for declaration be passed in favour of the plaintiffs and against the defendants to the effect that the alleged Special Power of Attorney dated 2.12.1996, General Power of Attorney dated 2.12.1996 purported to be executed by the name of Sh. Vijay Kumar Gupta and Deed of Will dated 1.12.1996 purported to be executed by the name of Smt. Maya Gupta, Receipt of Consideration, Agreement to Appoint Arbitrator, Construction Agreement, Indemnity Bond, Affidavit, Form B, D & E alongwith sanctioned plan and all other documents alleged or claimed by the defendant no.3 got to be executed or prepared regarding the said plot in dispute as detailed at the end of the plaint be declared null and void or cancelled.

(d) That decree for mandatory injunction be passed in favour of the plaintiffs against the defendants to the effect that the defendant no.2 be directed by the Hon'ble Court to execute perpetual lease deed regarding the plot as detailed at the end of the plaint in favour of the plaintiffs in accordance with law within a specified time as fixed by the Hon'ble Court.

(e) That decree for damages be passed in favour of the plaintiffs and against the defendants to pay Rupees 3000=00 (Three Thousands) per month as pendente lite and future damages for the illegal and unauthorized use and occupation from the date of the suit till the date of restoration of possession by the plaintiffs over the plot in dispute. The court fee in this regard shall be paid at the time of execution.

(f) That cost of the suit may be awarded to the plaintiffs."

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20. In the written statement filed by the DDA on 4th October, 2001,

the DDA had stated that the defendant no.3-Shri S.N. Swami

(respondent no.2 herein) had raised illegal and unauthorised

construction over the plot in question. It was also admitted in the

written statement that the lease deed was executed with the help of

forged signatures and fake photographs through the impersonation of

Shri Vijay Kumar Gupta and Smt. Maya Gupta on 12th May, 1997. The

respondent no.1-DDA in its written statement contended that:-

"(a) the suit of the petitioner (plaintiffs) is not maintainable and that there is no cause of action to file the present suit;

(b) the plot in question was allotted to the petitioner through computerized draw of lots and after issuance of possession letter and after handing over possession of the plot to the petitioner the lease deed papers were issued in the joint names of the petitioner and that thereafter the same were executed and registered by forged signatures and fake photographs and by impersonation as the petitioner;

(c) DDA cannot take any action till the outcome of the criminal case as well as the outcome of the case filed by the respondent no.2."

21. In the writ petition which has been filed by the petitioner, it has

been explained that despite the passage of several years since 1999

and the admitted fraud so far as the rights of the petitioner is

concerned, the DDA has not moved an inch. No action has been

taken against its officials or the persons responsible for the fraud. In

this background, the petitioner was left with no option but to file the

present writ petition seeking allotment of an alternative plot in lieu of

original plot in question and compensatory damages. There is no

dispute that in the suit, the petitioner had claimed entitlement over

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the plot which was originally allotted to him but was fraudulently

conveyed by DDA in favour of the impostor, who had occupied the

same and transacted in respect thereof in favour of the present

respondent no.2. All this was effected without following the

prescribed procedure of informing the allottee in writing against

recorded delivery of the allottee being required to complete the

formalities for registration of the conveyance deed. No steps for

verifying the identity of the allottee were taken. Despite these

admitted facts, the DDA has taken no action at all against the

impersonators for the admitted violations. The DDA has admittedly

taken no action even in respect of the missing records. The same

clearly point towards those who were involved in the transaction,

execution of the document handing over possession to impostors,

sanction of building plans, permitting construction thereon and

occupation.

22. The respondent no.2 has at the same time, set up an

independent claim placing reliance on the collusive acts of the

officials of the DDA. In this manner, the petitioner has been deprived

of immovable property for no faults of his.

23. So far as the prayers of the petitioner for directions for allotment

of an alternative plot and compensation are concerned, the DDA has

opposed the same on the specious plea that investigation is still

pending with the Crime Branch of the Delhi Police and that the report

was yet to come. The submission is that in the absence of the report

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of such investigation, it would be difficult to ascertain as to who is the

real culprit and without ascertaining the same, it would be unjust to

pass orders or directions for an alternative plot or compensation in

favour of the petitioner.

24. It is really unfortunate that such a stand is being taken despite

the admitted position that the lease deed in respect of the plot has

been executed by DDA in favour of impostors by fraud, forgery and

impersonation. The DDA has nowhere contended that the lease deed

has been executed in favour of the petitioner or attributed any

complicity to him. On the other hand, it has been categorically stated

that the lease deed bears forged signatures. It is also noteworthy

that in the letter dated 31st October, 1988, the DDA had required the

petitioner to submit a letter of undertaking to execute the lease deed

when called upon to do so. The petitioner never received any

intimation to execution of the lease deed.

25. It is trite that right, title and interest in immovable property can

pass only by a registered document. It is an admitted position by the

DDA that in the instant case, it has irrevocably passed right, title and

interest in the subject land in favour of the impostors who have

forged and fabricated signatures even though the allotment of the

plot was made rightfully in favour of the petitioner.

26. My attention has been drawn to the brochure which was issued

by the DDA in respect of the allotment of the plots in Rohini in the

scheme of 1981. The same included terms and conditions for sale by

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the DDA on behalf of the President of India of lease hold rights in the

residential plots under the Rohini scheme. The petitioner has placed

reliance on the "lease conditions" stipulated in Clause 8 wherein inter

alia it is provided thus:-

"8. Lease Conditions

xxx xxx xxx

(iv) The lessee will not be entitled to transfer the plot before or after the erection of the building without the prior permission of the Lessor. Such permission will not be given for a period of ten years from the commencement of the lesase unless in the opinion of the Lessor, exceptional circumstances exist for the grant of such permission.

However, a mortgage of the plot for the bone fide purpose of financing the construction may be allowed by the Lt. Governor, Delhi, if the mortgagee is the Government or an Insurance Co. or a Bank or Financial Institution or such other institution or such other institution approved by the Lt. Governor for this purpose. In the case of transfer, 50% of the unearned increase in the value (i.e. the value) of the plot at the time of transfer shall be paid to the Lessor.

xxx xxx xxx

(vii) If the lease of the plot is obtained by any mis- representation, mis-statement or fraud or if there is any breach of the conditions of the lease, the lease will be determined and the possession of the plot and the building thereon will be taken over by the Lessor on the lessee will not be entitled to any compensation."

27. It is also necessary to notice the stipulations contained in Clause

10 of the terms and conditions under the heading "Execution of the

lease deed" wherein it is stated thus:-

"10. Execution of Lease Deed

xxx xxx xxx

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(ii) The allottee will after receipt of lease deed papers from the DDA, be required to return the lease deed duly stamped from the Collector of Stamps within a period of six months failing which the penalty will be charged as decided by the Lessor and the allotment will be cancelled after one year. The allottee will be required to execute the lease deed on a date for which he will be informed in writing and penalty will be charged if he does not come for execution as decided by the lessor."

28. The DDA, which has been statutorily constituted and mandated

under the provisions of the Delhi Development Act, 1957, to act fairly

and to ensure the protection of the property. The DDA is enjoined

even under the terms and conditions of the conveyance deed to take

action where the lease of the plot is obtained by any mis-

representation, mis-statement or fraud. It is also bound to take action

if there is any breach on the condition of the lease.

29. Mr. Jain, learned counsel for the DDA, has set up a plea that

possession having been handed over to the petitioner, it was the

petitioner's duty to protect the same.

Such a plea has to be noticed only to be rejected.

DDA admits the fact that it was aware of the identity of the

petitioner yet the registered conveyance of this plot has been

admittedly executed by it in favour of the impostor thereby conveying

all rights, title and interest therein to them.

30. Further, the DDA has processed building plans thereon in favour

of an impostor and permitted construction to be raised by their

transferee, namely the respondent no.2. The petitioner who was

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admittedly a resident of Madhya Pradesh and was not in Delhi,

brought it to the notice of the DDA at the earliest in 1999.

31. So far as the suit is concerned, on the 14th November, 2006

when writ petition came up for hearing, the petitioner had made a

statement that the suit would be withdrawn so that there is no

multiplicity of proceedings. The petitioner consequently filed an

application dated 15th November, 2006 under Order 23 Rule 1 of the

Code of Civil Procedure, praying for leave to withdraw the suit with

liberty to file a fresh suit subject to decision of the writ petition. The

suit was consequently permitted to be withdrawn by the learned trial

Judge on 16th November, 2006 with liberty as prayed for. In this

background, certainly, the filing of the suit would not prejudice the

claim of the petitioner in the instant case.

32. In the above noticed facts, there is no dispute that the plot

allotted to the petitioner has been transferred by the DDA in favour of

an impostor. There is also no dispute that the petitioner had

complied with the terms of his allotment. The allotment was effected

in favour of the petitioner in the draw of lots held on 25th March, 1985.

It is admitted by DDA that the petitioner has been deprived of this

plot in connivance with the officers of the DDA and it has taken no

action of any kind. No effective administrative or departmental action

has been taken in respect of the fraud.

33. To say the least, DDA has not proceeded even for tracing out

records or taking action for failure to maintain and protect its records.

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Therefore, irrespective and independent of the stand taken by

the respondent no.2, the petitioner cannot be deprived of his

admitted rights. Perhaps if the matter stopped at mere

dispossession, there may have been some difficulty. In the instant

case, DDA has executed and registered a conveyance in favour of an

impostor and sanctioned building plans in their favour, permitted

construction and occupancy.

34. Therefore, so far as the petitioner is concerned, he has been

reduced by these acts of DDA to the same position as an applicant to

whom no allotment has been made. That the petitioner's turn has

matured is evidenced by the allotment letter dated 25th March, 1985

admittedly written to him.

DDA's stand in the suit filed by the respondent no.2 is that this

respondent is a party to the fraud. Looked at from any angle, it is

DDA's admitted position that the petitioner is an innocent victim of a

fraud to which its officials are party. There can be no denial to the

fact that the petitioner is entitled to right, title and interest in an

unencumbered plot. The question is whether the petitioner can be

relegated to the position of having to wait for his a plot till

adjudication in the civil suit filed by the respondent no.2 and the

criminal trial. Such a stand in a case as the present is most

inequitable and unfair. To say the least, DDA has not even sought a

counter claim, let alone file any litigation based on its plea of fraud

and impersonation to begin legal steps towards recovery of land. Not

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even a bare notice under the lease terms noticed above has been

issued.

35. It is the petitioner's contention that he is presently aged about

68 years and is residing at the District Headquarters at Mandsaur

(Madhya Pradesh) since birth. He was in the field of education for 38

years and in September, 2002 retired from Government service from

the post of Principal of the Government PG College, Mandsaur (MP).

Between the period 1998 to 2001, the petitioner was serving as a

principal of the Government PG College, Neemuch (MP). His wife is

stated to be a housewife presently aged 60 years. The petitioner has

two daughters and a son while his daughters are married and residing

in Delhi and Gurgaon. The petitioner has explained his desire of

acquiring a property in Delhi. For the reason that his uncle, wife's

sister, other relatives and his children are all residing in Delhi, the

petitioner was of the intention of looking to settle in Delhi after his

retirement.

36. The petitioner's claim in this writ petition rests on the stand

taken by the DDA in Suit No.1045/1999 filed by him and the suit filed

by the respondent no.2. He has sought a prayer in lieu of the prayer

for the plot which stands conveyed to respondent no.2.

37. Almost eleven years have already passed since the 28th

November, 1996 when the conveyance deed was fraudulently

executed by DDA and 2nd December, 1996 when it was so registered.

Even if the suit filed by the respondent no.2 was ultimately dismissed,

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and DDA were to then commence recovery proceedings, keeping in view

the age factor, the possibility that the petitioner would be able to enjoy

property to which he is is admittedly legally entitled, is difficult.

38. In this background, it has to be held that the petitioner is entitled

to allotment of an alternative plot of the same size and in the same

colony in which he was allotted the plot on 28th March, 1985 on the same

terms and conditions.

39. Matters do not rest here. It has been pointed out that the

petitioner has been deprived of property to which he was legitimately

entitled for over 18 years and has expended the time, money and

energy on litigation apart from mental agony, pain and harassment on

account of the uncertainty created by the afore-noticed acts. The

petitioner has stated that his dreams of his living in his home

nurtured from more than 35 years ago when he applied for a plot

with DDA, were shattered and that he is living in rented

accommodation at Mandsaur Madhya Pradesh.

40. Apart from the relief for grant of an alternative plot, the

petitioner has prayed for a direction to the Delhi Development

Authority to pay compensatory damages quantified at Rs.20,00,000/-

for violation of the fundamental rights by non-delivery of the plot in

question despite the allotment made in 1985.

41. This prayer is opposed by the respondent on the ground that the

present proceedings would not be appropriate remedy for the same.

42. This very issue was raised before this court in WP(C)

Nos.4328/2001 Ram Kishore Vs. MCD; WP(C) No.6360/2002 Mohd.

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Yasheen Vs. Lt. Governor & Ors.; WP (C) Nos.7390-91/2005 Bhagwan

& Anr. Vs. DDA decided by Muralidhar, J by a judgment dated

18.07.2007 laying down binding principles. Placing reliance on the

pronouncement of the Apex Court in 1993 (2) SCC 746 Neelbati

Behera Vs. State of Maharashtra at page 768, it was observed

that the relief of monetary compensation, as exemplary damages in

proceedings under Article 32 by the Apex Court or under Article 226

by the High Courts for established infringement of the indefeasible

right carried under Article 21 of the Constitution is the remedy

available in public law and is based on the strict liability for

contravention of guaranteed basic and indefeasible rights of the

citizens. The purpose of public law is not only to civilize public power

but also to assure the citizens that they live in a legal system which aims

to protect their interests and preserve their rights. The Apex Court held

that when the court moulds the relief by guaranteed "compensation" in

proceedings under Articles 32 or 226 of the Constitution, seeking

enforcement or protection of fundamental rights, it does so under the

public law by way of penalties on wrong doers and fixing the liability for

public wrong. The payment of compensation in such case is not to be

understood as it is generally understood in a civil action for damages

under the private law but in the broader sense of providing relief, by an

order of making a monetary amounts under the public law for the wrong

done due to breach of public duty for not protecting the fundamental

rights of the citizens. The compensation is in the nature of

"exemplary damages" awarded against the wrong doers for the

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breach of its public law duty and is independent of the rights available

to the aggrieved party to claim compensation under the private law in

an action based on tort through a suit instituted in a court of

competent jurisdiction or/and prosecute the offender under the penal

law. The court also cautioned that the exercise of this remedy is to

be tempered by judicial restraint to avoid circumvention by the

private law remedy when appropriate.

43. These principles were further explained in (1997) 1 SCC 416

D.K. Basu Vs. Union of India wherein it was explained that a claim

of a citizen for compensation of constitutional wrongs is based on the

principles of strict liability to which the defence of sovereign immunity

is not available and that the citizen must receive the amount of

compensation from the state which would have the right to be

indemnified of the action of the wrong doer.

44. Thus, constitutional jurisprudence has evolved recognising

payment of compensation for constitutional tort and public law

wrongs.

45. Following the principles laid down by the Apex Court,

compensation has been awarded in several cases by this court

including 1999 (79) DLT 432 Darshan Vs. Union of India wherein

a Division Bench of this court was dealing with a claim by the widow

and the minor children of o ne Skattar Singh, a bus driver, who had

fallen into an open manhole and died of drowning. The plea taken in

that case by the respondent that the writ petition was not

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maintainable since it involved disputed questions of fact, was rejected

by reference to the decisions in Nilabati Behara and D.K. Basu. The

other decisions of the court awarding compensation in the writ

jurisdiction include Raj Kumar Vs. Union of India (2005) 125 DLT

653 which was upheld in Delhi Jal Board Vs. Raj Kumar (2005) 8

AD (Delhi) 533, Chitra Chary Vs. DDA (2005) 1 AD (Del) 29,

Shri Chand Vs. Chief Secretary 2004 (112) DLT 37, Shobha Vs.

GNCTD (2003) IV AD (Delhi) 492, Shyama Devi Vs. GNCTD

(1999) 1 AD (Cr) Delhi 549, All India Lawyers' Union (Delhi

Unit) Vs. Union of India AIR 1999 Del 120 and B.L. Wali Vs.

Union of India (2004) VIII AD (Delhi) 341.

46. The earlier pronouncements of the Apex Court reported at

(1983) 3 SCR 508 Rudul Shah Vs. State of Bihar and 1984 (1)

SCR 904 Sebastian M. Hongray Vs. UOI, have also emphasized

the distinction between the public law and the private law actions and

the basis on which the compensation is to be awarded in such

proceedings. In Nilabati Behera (Supra) at page 768, the Apex

Court has observed that the purposes of the public law is not only to

civilize the public power but also to assure the citizens that they live

in a legal system which aims to protect their interests and preserves

their rights. It is well settled that the public law remedy would be an

exception having regard to the nature of inquiry undertaken by the

court in exercise of extraordinary writ jurisdiction.

47. Such public law remedy when invoked, raises an issue as to the

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determination of the existence and extent of liability of the

respondent and the consequent fastening of the liability on it. In

response to a defence by the respondent that the petition involved

disputed questions of facts, liability has been fastened on the

respondent either by ordering an inquiry into the facts as was done in

Nilabati Behera case (Supra). Where there is no dispute as to the

extent itself, the courts have invoked the principles of res ipsa

loquitur, thereby obviating any need for further inquiry into the facts.

48. In AIR 1966 SC 1750, Municipal Corporation of Delhi Vs.

Subhagwanti, the court was concerned with three suits for damages

at the instance of the legal heirs of three persons who had died as a

result of the collapse of the clock tower situated opposite the town

hall in the main bazar of the Chandni Chowk. The court held that:-

"The legal position is that there is a special obligation on the owner of adjoining premises for the safety of the structures which he keeps besides the highway. If these structures fall into disrepair so as to be of potential danger to the passers-by or to be a nuisance, the owner is liable to anyone using the highway who is injured by reason of the disrepair. In such a case it is no defense for the owner to prove that he neither knew nor ought to have known of the danger. In other words, the owner is legally responsible irrespective of whether the damage is caused by a patent or a latent defect."

49. It was further held that:-

"Applying the principle to the present case it is manifest that the appellant is guilty of negligence because of the potential danger of the Clock Tower maintained by it having not been subjected to a careful and systematic inspection which it was the duty of the appellant to carry out."

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50. Following the principles laid down herein, in (1974) 1 SCC 690,

Sham Sunder Vs. State of Rajasthan, it was held thus:-

"The plaintiff merely proves a result, not any particular act or omission producing the result. If the result, in the circumstances in which he proves it, makes it more probable than not that it was caused by the negligence of the defendant, the doctrine of rest ipsa loquitur is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability."

51. In this behalf, I find that in a case reported at (1999) 79 DLT

432 Darshan Vs. Union of India, the court held thus:-

"Compensation had also been awarded by this Court as well as by the Apex Court in writ jurisdiction in several cases of custodial deaths. Coming to instant case, it is one of rest ipsa loquitur, where the negligence of the instrumentalities of the State and dereliction of duty is writ large on the record in leaving the manhole uncovered. The dereliction of duty on their part in leaving a death trap on a public road led to the untimely death of Skattar Singh. It deprived him of his fundamental right under Article 21 of the Constitution of India. The scope and ambit of Article 21 is wide and far reaching. It would, undoubtedly, cover a case where the State or its instrumentality failed to discharge its duty of care cast upon it, resulting in deprivation of life or limb of a person. Accordingly, Article 21 of the Constitution is attracted and the petitioners are entitled to invoke Article 226 to claim monetary compensation as such a remedy is available in public law, based on strict liability for breach of fundamental rights."

52. The above noted cases are based on the settled legal position

that in exercise of jurisdiction under Article 226 of the Constitution of

India, this court can grant relief of compensation based on the strict

liability principle in a situation where there is a breach of public duty.

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Liability of the state-respondent would lie. On the given facts of case

if the writ petitioner is able to show that the respondent has acted

negligently and or that the state or its instrumentality has failed to

discharge the duty of care cast upon it resulting in deprivation of life

or limb of a person. If the facts and circumstances so permit, while

discharging the burden of proving negligence on him the claimant

could urge, invocation of the doctrine of res ipsa loquitur.

53. It may also be noted that in all the afore-noticed cases, the

petitioners were seeking compensation on account of loss of life of

their relatives or injury from state's action or inaction.

54. The Apex Court has held in several judgments that the right to

shelter is a fundamental right available to every human being. In

(1996) 2 SCC 549 Chameli Singh Vs. State of U.P., a Bench of

three Judges of Supreme Court had considered and held that the right

to shelter is a fundamental right available to every citizen and it was

read into Article 21 of the Constitution of India as encompassing

within its ambit, the right to shelter to make the right to life more

meaningful. In para 8, it has been held thus:-

"In any organised society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. Right to live guaranteed in any Civilised society implies the right to food, water, decent environment education, medical care and shelter. These are basic human rights known to any civilised society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution

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of India cannot be exercised without these basic human rights."

Emphasizing further on the right to shelter, the court in this case

held that:-

"Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one's head but right to all the infrastructure necessary to enable them to live and develop as a human being. Right to shelter when used as an essential requisite to the right to live, should be deemed to have been guaranteed as a fundamental right. As is enjoined in the Directive Principles, the State should be deemed to be under an obligation to secure it for its citizens, of course subject to its economic budgeting. In a democratic society as a member of the organised civic community one should have permanent shelter so as to physically, mentally and intellectually equip to improve his excellence as a useful citizen as enjoined in the Fundamental Duties and to be useful citizen and equal participant in democracy. The ultimate object of making a man equipped with a right to dignity of person and equality of status is to enable him to develop himself into a cultured being. Want of decent residence, therefore, frustrates the very object of the Constitutional animation of right to equality, economic justice, fundamental right to residence, dignity of person and right to live itself."

55. Having regard to the disparate economic status of the citizens in

this country, in (1990) 1 SCC 520 : AIR 1990 SC 630 Shantistar

Builders Vs. Narayan Khimalal Totame, upholding the importance

of the right to a decent environment and a reasonable

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accommodation, the court held thus:-

"The right to life would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body, for a human being it has to be a suitable accommodation, which would allow him to grow in every aspect - physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well-built comfortable house but a reasonable home particularly for people in Indian can even be mud-built thatched house or a mud-built fireproof accommodation."

56. The observations of the Apex Court in the context of

dispensation of state largesse in relation to right to residence as

made in (1997) 11 SCC 121 Ahmedabad Municipal Nagarpalika

Vs. Nawabkhan Gulabkhan are useful and read as follows:-

"The right to life enshrined under Article 21 has been interpreted by this Court to include meaningful right to life and not merely animal existence as elaborated in several judgments of this Court including Hawkers' case, Olga Tellies case and the latest Chameli Singh's case and host of other decisions which need no reiteration. Suffice it to state that right to life would include right to live with human dignity. As held earlier, right to residence is one of the minimal human rights as fundamental right. Due to want of facilities and opportunities, the right to residence and settlement is an illusion to the rural and urban poor. Articles 38, 39 and 46 mandate the state, as its economic policy, to provide socio-economic justice to minimise inequalities in income and in opportunities and status. It positively charges the State to distribute its largess to the weaker sections of the society envisaged in Article 46 to make socio-economic justice a reality, meaningful and fruitful so as to make the life worth living with dignity of person and equality of status and to constantly improve excellence. Though no person has a right to encroach and erect structures or otherwise on footpaths, pavements or public streets or any other place reserved or earmarked for a public purpose, the State has the Constitutional duty to provide

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adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter over their heads to make the right to life meaningful, effecting and fruitful. Right to livelihood is meaningful because no one can live without means of his living, that is the means of livelihood. The deprivation of the right to life in that context would not only denude life of effective content and meaningfulness but it would make like miserable and impossible to live....."

".........Article 19(1)(e) accords right to residence and settlement in any part of India as a fundamental right. Right to life has been assured as a basic human right under Article 21 of the Constitution of India. Article 25(1) of the Universal Declaration of Human Rights declares that everyone has the right to standard of living adequate for the health and well-being of himself and his family; it includes food, clothing, housing, medical care and necessary social services. Article 11(1) of the International Covenant on Economic, Social and Cultural Rights lays down that State parties to the Covenant recognise that everyone has the right to standard of living for himself and his family including food, clothing, housing and to the continuous improvement of living conditions."

57. The DDA is concerned with development in Delhi. It is dealing

with large tracts of land acquired under the provisions of the Land

Acquisition Act for planned development, a public purpose. The duty

to act fairly and reasonably cast on DDA is thus even more onerous

which it has failed to discharge.

58. In the instant case, reliance is placed on the pronouncement of

the Apex Court in 2005 (10) SCC 309 Bangalore City

Corporation, Bangalore Vs. P.A. Kulkarni & Others to urge that

right to shelter forms an integral part of right to life constitutionally

guaranteed under Article 21 of the Constitution of India. The

petitioner has claimed that he has no other residence and has

proposed to shift to Delhi. It is not disputed that the petitioner was

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the applicant and the allotment letter was issued to him. It is also not

disputed that that the conveyance deed has been executed and

registered in the name of an impostor and building plans sanctioned

construction permitted to impostor.

59. The duty of the DDA in respect of the manner in which it has to

carry out its functions relating to development is undoubtedly

governed by the provisions under the Delhi Development Act, 1968.

60. The DDA admits that the petitioner has submitted all required

documents with it on 12th May, 1997 and was therefore in possession

copy of his ration card, photographs etc. The petitioner would have

clearly indicated his identity as well as the fact that he was residing in

Madhya Pradesh. Despite these admissions, the lease deed has been

registered by the DDA on 28th November, 1996 registered on 2nd

December, 1996 in favour of the impostor.

The DDA has admittedly received the demanded amounts.

61. The staff of the DDA was entrusted with the task of ensuring

allotment and execution of conveyance deed of property in favour of

applicants who were successful in allotment of plots. In the instant

case, its officials have admittedly colluded with the impostors. Even

when the correct facts have brought to the notice of the DDA, no

action at all has been taken by the DDA. The petitioner is being made

to run from pillar to post for all these years.

62. The DDA has taken a stand that it would await action in the case

filed by the respondent no.2 and the criminal proceedings. Certainly,

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neither of these is concerned with tracing out the record of the

property in question which is missing. Even otherwise, the DDA does

not stand prohibited from identifying the person who is responsible for

the illegal acts and taking action as well as taking appropriate steps

under the terms of the lease deed.

63. In view of the position in law, it is evident that the statutory duty

was cast on the DDA to act as per prescribed procedure. The DDA

has also public law obligation to ensure that it protects the rights of

the persons as well as the properties for which it has been statutorily

created. There can be no manner of doubt that the DDA has

miserably failed to do so in the instant case and a lease deed has

been executed in favour of impostor without following the prescribed

procedure.

In fact, not even bare minimal care appears to have been

exercised.

64. No outsider has access to the office of the DDA and entry is

permitted only after a proper record is maintained in respect thereof.

There is no allegation of any illegality against the petitioner.

The DDA has permitted the record to be lost. Its fault is writ

large on the record.

65. The instant case is not even a case of negligence but a case

where it is an admitted position that the DDA officials have connived

and conspired to cause loss to the petitioner.

It is trite that the rights in immovable property flow from a

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registered title deed. The respondent no.2 is claiming right, title and

interest in the property based on a registered document executed by

the DDA in favour of an impostor.

66. Interestingly none informed the petitioner on 12th May, 1997

when he has submitted the documents with it that the lease deed

stood registered in his favour as back as on 2nd December, 1996.

Therefore, in any case, the petitioner deserves to be compensated for

the deprivation of his property w.e.f. 28th November, 1996 when the

fraudulent conveyance deed was executed by or on behalf of the DDA

in favour of the impostor and then it was registered and the

petitioners rights in the subject property were illegally conveyed by

the DDA in favour of the impostor. Apart from deprivation of his

rights in the property, the costs of construction are stated to have

also increased considerably between 1996 till date.

67. It is an admitted position that the petitioner filed the suit as back

as in the year 1999 which remains pending in view of the defence

taken by the DDA. It was stated therein that the DDA cannot take any

action till the outcome of the criminal case as well as the outcome of

the case filed by the respondent no.2.

68. So far as the criminal case is concerned, the same would

determine the criminal liability on the part of the persons whose

conduct was being tried therein. So far as the case of the respondent

no.2 is concerned, the same would determine the claim of the

respondent no.2 who has claimed to be a bona fide purchaser without

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knowledge of the rights of the petitioner. It is the DDA's case that the

lease deed was executed by it in favour of an impostor. The failure

and refusal of the DDA to take action to ensure availability of the plot

to the petitioner is not justifiable. Certainly, adjudication on the claim

of respondent no.2 would not impact the rights of the petitioner who

certainly cannot be deprived of property to which he is admittedly

entitled on account of illegal acts of the officials of the DDA who have

caused lease deed to be registered in favour of the impostor till the

date of handing over possession of a plot in terms of the present

judgment.

69. In this background, it has to be held that in addition to property,

the petitioner is entitled to compensation for the deprivation of

residence to the petitioner on account of DDA's failure to discharge its

statutory duties and public law obligations resulting in violation of

valuable rights of the petitioner.

70. So far as the date from which the compensation is to be

assessed, I find that the DDA has stated that the petitioner had been

given possession of the plot.

71. The petitioner has prayed for a lumpsum award of compensatory

damages of Rs.20,00,000/-. There is, however, no basis or

explanation for the same.

72. The only issue which, therefore, remains to be decided is as to

what would be a fair compensation for deprivation of property. In

Bangalore City Corporation case (Supra), relied upon by the

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petitioner the Apex Court has held that where factual controversies

are involved, a writ may not issue.

73. Needless to say, it may not be possible to undertake the

exercise of arriving at a fair and reasonable compensation for

deprivation of the plot for all these years in these proceedings. The

same would require to be based on mesne profit; market rentals of

immovable property; the rental or other expenses which may have

been incurred by the petitioner in arranging alternative

accommodation; increase in the cost of construction, loss of rent,

harassment & mental agony. Each of these is a factual matter

requiring evidence which may be oral and/or documentary for the

purposes of ascertaining a fair and reasonable compensation.

74. In view of the above, this writ petition is allowed to the extent

that the DDA is directed to consider the petitioner for allotment of a

plot in the similar colony and on the same terms and conditions as the

plot bearing no.36, Pocket II, Block B, Sector 16, Rohini admeasuring

60 sq. meters allotted to him, within a period of eight weeks from

today. In case there is no such plot available in Pocket 11, Block `B',

Sector 16, Rohini, Delhi, the DDA shall ensure that a nearest plot in

the immediate vicinity, is allotted which is similar in value and

location. The allotment will be at the rate at which the petitioner was

allotted the aforesaid plot no.36.

75. In view of the above discussion, it is further held that the

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petitioner would be entitled to be compensated for deprivation of his

right, title and interest in the property allotted to him with effect from

the date of execution of the conveyance deed on 28th of November,

1996 in favour of an impostor by the DDA.

It is further held that the writ petition to the extent that it makes

the prayer for award of compensation is not maintainable. It shall

therefore be open for the respondent to file a suit or appropriate

proceedings in respect thereof.

Inasmuch as the entitlement of the petitioner in respect of the

compensation has been determined by this judgment, the limitation

for filing a suit for compensation shall commence from the date of the

present judgment.

76. The petitioner shall, however, be entitled to costs of the present

petition which are assessed at Rs.55,000/-. Costs shall be paid to the

petitioner within four weeks.

(GITA MITTAL) JUDGE October 24, 2008 aa

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