Sushil Mohan Saini vs Delhi Development Authority & Ors
2009 Latest Caselaw 2510 Del

        THE HIGH COURT OF DELHI AT NEW DELHI
%                                Judgment delivered on: 07.07.2009

+      WP (C) 1334/1989


SUSHIL MOHAN SAINI                                         ...   Petitioner


                                   - Versus -


DELHI DEVELOPMENT AUTHORITY & ORS                          ...   Respondents

Advocates who appeared in this case:-

For the Petitioner               : Mr Jasmeet Singh
For the Respondent No.1/DDA:     : Ms Anusuya Salwan
For the Respondent No.4          : Mr Ramesh Chandra, Sr Advocate with
                                   Ms Geeta Mehrotra

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MS JUSTICE VEENA BIRBAL

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

BADAR DURREZ AHMED, J (ORAL)

1. This writ petition is directed against the letters dated 03.01.1989

and 10.04.1989 which have been issued by the DDA (Respondent

No.1). By virtue of the letter dated 03.01.1989, the respondent No.1

decided to:-

1) Cancel the allotment of plot Nos. 101 and 144 made in the

names of Mr Yogesh Chander Gupta (Respondent No.4)

and Mr Sushil Mohan Saini (Petitioner) respectively;

2) Allot plot No.144 in favour of Mr Yogesh Chander Gupta

(Respondent No.4).

By virtue of the said letter dated 03.01.1989, the DDA (Respondent

No.1) also directed the Saini Co-operative House Building Society Ltd.

(Respondent No.5), to submit the sub-lease deed papers in respect of

plot No.144 in the name of Mr Yogesh Chander Gupta duly stamped

for necessary execution. It was further indicated in the said letter that

Mr Sushil Mohan Saini (the petitioner herein) may, however, be asked

to exercise his option for allotment of plot No.101 and forward his

option in original to the respondent No.1 for necessary action.

2. This was followed by the other impugned letter dated 10.04.1989

whereby the respondent No.1 once again requested the society to

submit the sub-lease deed papers and get it executed by 20.04.1989.

3. The petitioner is aggrieved because the petitioner had earlier been

allotted the said plot No.144 in the said Saini Co-operative House

Building Society. The learned counsel for the petitioner has drawn our

attention to a letter dated 03.08.1982 issued by the respondent No.1 to

the Saini Co-operative House Building Society with regard to the

confirmation of draw of lots held on 12.07.1982. As per the said letter,

the draw of lots of 15 members of the society was held on 12.07.1982

in the office of the respondent No.1. The respondent No.1 conveyed its

approval of the draw as per the result-sheet which was enclosed with

the letter. It was also directed that the society should get the sub-lease

deeds executed within a period of three months from the date of

issuance of the said letter, i.e., the letter dated 03.08.1982. The result-

sheet which was annexed alongwith the said letter reads as under:-

"Result of draw of Saini Co-operative House Building Society held on 12/7/82 in the Office of Dy. Director (CS) DDA.

      S.No.     NAME OF ALLOTTEE            PLOT NO. AREA IN REMAR
                                            ALLOTTED SQ. YDS. KS
      1.        Dr. Chander Mohan S/o       190      355.50
                Sh. Shanti Sarup
      2.        Sh. Ram Narain Saini S/o    177      267.50
                Sh. Hukam Chand Saini
      3.        Sh. Sushil Mohan Saini S/o 144       225.7
                Sh. Shanti Sarup Saini
      4.        Sh. Banwari Lal Saini S/o   157      224.3
                Sh. Hari Chand
      5.        Sh. Karam Singh S/o Sh.     134      228.87
                Narain Singh
      6.        Sh. Jai Chand Saini S/o Sh. 137      228.87
                Jhuthar Mal
      7.        Sh. Sansar Singh S/o Sh.    133      228.87
                Ghoni Singh
      8.        Smt. Chander Kanta Saini    68       179.7
                W/o Sh. Om Prakash Saini
      9.        Smt. Krishna Saini W/o      80       183.2
                Sh. Ram Singh Saini
      10.       Sh. J.K. Bansal S/o Sh.     143      138.88
                Dewan Chand
      11.       Sh. Suraj Prakash Saini S/o 99       134.5
                Sh. Bhagwan Sahai Saini
      12.       Sh. Sohan Lal Saini S/o Sh. 46       134.5
                Devi Sahai
      13.       Sh. Arvind Kumar Jain S/o   38       134.8
                Sh. D.C. Jain
      14.       Sh. Sewa Ram Saini S/o      94       134.5
                Sh. Daulat Singh Saini



       15.       Sh. Krishan Kumar Saini   39          134.8
                S/o Sh. Mohinder Singh
                Saini


                                                                   Sd/-
                                                              12/7/82.
                                                      Dy. Director(CS)
                                          Delhi Development Authority,
                                                          New Delhi."

4. From the above extract of the result-sheet, it is apparent that the

petitioner‟s name appears at S.No.3 and he had been allotted plot

No.144 measuring 225.7 sq. yds. The learned counsel for the petitioner

pointed out that the entire amount has been paid in respect of the said

plot No.144 and he drew our attention to Annexure G-II, which is a

copy of a „No Dues Certificate‟ issued on 27.04.1989 by the society.

The said certificate indicates that the petitioner is a bona fide member

of the Saini Co-operative House Building Society and is an allottee of

plot No.144 in the layout plan of Saini Enclave, Delhi-110092. It is

also indicated that he had paid all his dues in time whenever asked for

by the society and at the time of allotment of the plot. It is also

certified that the account of Dr Sushil Mohan Saini is clear and that

nothing was due against him on the date on which the certificate was

issued.

5. The controversy that has arisen in the present petition is because

this allotment, which was made in favour of the petitioner, had

subsequently been cancelled by the respondent No.1 by virtue of the

said impugned letter dated 03.01.1989. The cancellation was

apparently at the instance of an application made by the respondent

No.4 pursuant to implementation of the award dated 16.02.1983. The

chronology of events insofar as the respondent No.4‟s claim was

concerned is that one Mr Shivram Gupta was an original member of the

said society. The said Mr Shivram Gupta was the respondent No.4‟s

grandfather. He had been registered as a member for a plot size of 250

sq. yds. Mr Shivram Gupta died and his heirs did not make the

payment as per the schedule. However, according to the learned

counsel for the respondent No.4, the default was on account of the fact

that no notice had been issued to them. Be that as it may, the society

reduced the plot allotment to 150 sq. yds. from the 250 sq. yds.

category insofar as the claim of the respondent No.4 was concerned.

Since there was a dispute with regard to this reduction in the category

of allotment from 250 sq. yds. to 150 sq. yds., the matter was referred

to arbitration under Section 60 of the Delhi Co-operative Societies Act,

1972. The reference was made on 24.10.1981. The arbitrator, after

considering the contentions of both the respondent No.4, on the one

hand, and respondent No. 2, on the other, made and published his

award on 16.02.1983. The operative portion of the award reads as

under:-

"The defendant-society aforementioned is directed to transfer to the plaintiff aforementioned by way of sub- lease a plot measuring not less than 250 Sq. Yards in the residential colony known as "Saini Enclave" developed by it, if necessary, by making adjustment in the list approved by the DDA vide its letter No.F-

13(2)76/CS/DDA/Saini dated the 3rd Aug., 1982 and to execute the sub-lease in favour of the plaintiff within one month on payment of due cost and charges by the plaintiff on demand to be made by the defendant society."

A plain reading of the said award makes it clear that the society was

directed to transfer to the respondent No.4 by way of a sub-lease "a

plot measuring not less than 250 sq. yards in the residential colony

known as "Saini Enclave", developed by it, if necessary, by making

adjustment in the list approved by the DDA vide its letter dated

03.08.1982 wherein the name of the petitioner appeared at S.No.3."

6. The society was aggrieved by this award and, therefore, preferred

an appeal before the Delhi Co-operative Tribunal. The said appeal was

numbered as Case No.44/1982-83 and was dismissed by a speaking

order dated 20.03.1985.

7. At this juncture, we may also make a note of two letters dated

11.04.1983 and 02.05.1983. These letters were written during the

period when the award had been made by the arbitrator and the appeal

was pending before the tribunal. The letter dated 11.04.1983 was

issued by the Respondent No.1 (DDA) to the Registrar, Co-operative

Societies, New Delhi. In that letter, a request was made to inform the

Respondent No.1 as to whether the Registrar upheld the award given by

the arbitrator and, if so, to specify whether Mr Yogesh Chander Gupta

is to be given preference in respect of those members, whose list was

finalized by the DDA‟s letter dated 03.08.1982 or whether Mr Yogesh

Chander Gupta has to be treated at the bottom of the list and the already

approved members are not to be disturbed. In response to this letter,

the Registrar, Co-operative Societies, Delhi vide his letter dated

02.05.1983 indicated that the society is to re-allot the plots to the

members of the society based on the accepted principles of seniority.

The society should have kept a plot of an appropriate size vacant in the

case of Mr Gupta in view of the arbitration case and directed that, if

required, the society should withhold the allotment / execution of a sub-

lease of a plot allotted to a junior most member of the society in order

to comply with the directions given in the award in favour of Mr

Yogesh Chander Gupta.

8. A few other facts need to be mentioned. The society, being

aggrieved by the order passed by the tribunal, filed a writ petition

before this court being CW 1316/1985 which was also dismissed by an

order dated 30.05.1985. Subsequent to the dismissal of this writ

petition, on 15.06.1985, the petitioner, apprehending cancellation of the

allotment of plot No.144 in his favour, filed a suit being Civil Suit

No.397/1985 before the Sub-Judge, Delhi and prayed for an injunction

against cancellation. In that suit, an interim order of status quo was

passed. However, that suit was dismissed on 07.10.1988 on default on

the part of the petitioner, who was the plaintiff therein. It is subsequent

to that that the present writ petition has been filed in view of the

subsequent letters dated 03.01.1989 and 10.04.1989 being issued which

resulted in the cancellation of the allotment of plot No.144 in favour of

the petitioner.

9. The grievance of the petitioner before this court is that,

independent of the rights of the respondent No.4, the petitioner had

certain rights and those rights could not be taken away without

affording him an opportunity of being heard and explaining his

position. The cancellation letter dated 03.01.1989, according to the

learned counsel for the petitioner, was issued without issuing any show

cause notice to the petitioner with regard to the proposed cancellation.

Thus, according to the learned counsel for the petitioner, no

opportunity of hearing was granted to the petitioner and yet his

allotment, which earlier stood approved by the respondent No.1 by

virtue of the letter dated 03.08.1982, was cancelled. This, according to

the learned counsel for the petitioner, was a gross violation of the

principles of natural justice and on this ground alone the letters dated

03.01.1989 and 10.04.1989 ought to be set aside.

10. The learned counsel for the respondent No.4 submitted that the

respondent No.4 had throughout contested the initial order passed,

whereby the plot size allotted to Respondent No.4 was reduced from

250 sq. yds to 150 sq. yds. and, as a result, that the dispute was referred

to arbitration. The award clearly indicated that the respondent No.4

was entitled to a plot of 250 sq. yds. The learned counsel for the

respondent No.4 submitted that the appeal against the award was

dismissed by the tribunal and so also the writ petition challenging the

order passed by the tribunal. It was, therefore, contended that the

respondent No.4 was clearly entitled to plot No.144 and the allotment

made by virtue of the impugned letters ought not to be disturbed. He

also submitted that in view of the fact that the petitioner had allowed

his suit to be dismissed, his writ petition is also not maintainable.

11. After having considered the arguments advanced by the counsel

for the parties and having examined the record, we are of the view that

the cancellation of the allotment of plot No.144 in favour of the

petitioner was done without giving an opportunity of hearing to the

petitioner. This is a clear violation of the principles of natural justice.

The petitioner had not only been allotted the said plot, but had also

obtained the approval of the DDA by virtue of the letter dated

03.08.1982. The petitioner had also paid the entire amount as indicated

by the „No Dues Certificate‟ referred to above. The learned counsel

appearing for the DDA was also unable to point out as to whether any

hearing at all was given to the petitioner prior to the cancellation. In

view of these circumstances, we set aside the letters dated 03.01.1989

and 10.04.1989 and direct the respondent No.1 to grant an opportunity

of hearing to the petitioner as well as to the respondent No.4 and, after

giving such an opportunity, to take a decision in the matter by a

speaking order. Since the matter has been going on for quite some

time, we direct the respondent No.1 to take a decision within three

months. The respondent No.1 shall issue appropriate notices giving the

dates of hearing to the petitioner and the respondent No.4 and any other

affected parties. The notices to the petitioner and the respondent No.4

may be sent through their respective counsel. This writ petition stands

disposed of in view of the directions given above. In case there is any

difficulty, the parties are at liberty to approach this court.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J July 07, 2009 dutt