Delhi High Court

Smt.Rajo Devi vs Delhi Development Authority on 10 August, 2010

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment Reserved on: 03.8.2010
                   Judgment Delivered on: 10.8.2010


+                         RSA No. 80/1995


SMT.RAJO DEVI                                   ...........Appellant
             Through:           Mr.S.C.Nigam, Advocate.

                    Versus

DELHI DEVELOPMENT AUTHORITY
                                                ..........Respondent
                    Through:    Mr.M.K.Singh and Mr.Rajesh
                                Mahajan, Advocates.


       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

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

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

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


INDERMEET KAUR, J.

1. This is a second appeal filed by the appellant/plaintiff.

2. (i) Plaintiff Rajo Devi had filed a suit for permanent and

mandatory injuction against the Delhi Development Authority

(DDA).

(ii) She had purchased a plot of land measuring 145 sq.

yards comprised in Khasra No.134/1,167 and 169 situated at

Village Jogabai Urban Area for a sum of Rs.1,000/- vide sale

deed 2.6.1969.

(iii) On 30.12.1972 this land was acquired by the Land and

Acquisition Department.

       (iv)    She was paid compensation on 29.9.1974.


       (v)     Vide letter dated 6.2.1979, the Land Sales Officer (R),

DDA was directed by the Land and Building Department,

Delhi Administration to allot a plot of land measuring 125 sq.

yards to the plaintiff under the scheme of "Large Scale

Acquisition Development and Disposal of the Land in Delhi"

as per the plaintiff's entitlement.

(vi) Accordingly plot no.71 in Block-E, Malviya Nagar, New

Delhi measuring 104.515 was allotted to the plaintiff.

(vii) Vide communication dated 31.5.1979, plaintiff was

directed to deposit a sum of Rs.9615.40 which she had

accordingly done.

(viii) Possession slip was given to the plaintiff on 8.8.1979.

(ix) On 28.3.1980 stamp duty with the Stamp Collector was

deposited by the plaintiff.

(x) On 26.5.1980 plaintiff deposited three copies of the

perpetual lease deed with the DDA.

(xi) On 8.5.1981 plaintiff received a letter dated 6.5.1981

from the Deputy Director, DDA informing her that the

allotment of the afore plot No.E-71, Malviya Nagar, New

Delhi stood cancelled. She was directed to handover the

possession of the plot to DDA.

(xii) This cancellation of her allotment was illegal, arbitrary

and without notice to the plaintiff.

(xiii) Injunction had been sought against the DDA from

dispossessing the plaintiff from the aforenoted suit property.

3. In the written statement, the DDA had contested the suit. A

preliminary objection had been taken that the allotment and the

cancellation had been done by the DDA only at the instance of the

Delhi Administration and as such the Union of India and the Delhi

Administration were necessary parties in the suit. On merits, it

was stated that pursuant to inter se communication dated

17.2.1981 between the DDA and the Delhi Administration the Delhi

Administration had informed the DDA that no such file qua the

allotment in favour Rajo Devi had been opened by the Department

and as such the question of their sending any recommendation

letter to the DDA did not arise. It was stated that the said letter

Ex.DW-1/1 dated 6.2.1979 recommending allotment in favour of

Rajo Devi appeared to be a forged document and a vigilance

enquiry had also been ordered against various such like

incumbents.

4. The Trial Court had framed four issues. Oral and

documentary evidence led before the Trial Court had been

examined; the contention of the plaintiff that her allotment had

been cancelled without any show cause notice had been upheld;

being violative of the principles of natural justice. Principle of

promissory estoppel invoked by the plaintiff was also held

applicable against the DDA. The so-called fraud alleged by the

DDA had not been detailed; this defence of the defendant was

rejected. The suit of the plaintiff had been decreed on 9.9.1993.

5. The first Appellate Court vide judgment and decree dated

16.9.1995 reversed the finding of the Trial Judge. It held that the

Trial Court had fallen in grave error in ignoring the contention of

the defendant that the Union of India and the Delhi Administration

were necessary parties in the absence of whom the suit of the

plaintiff could not be decreed. On this proposition, the first

Appellate Court drew support from the communication dated

6.2.1979 (Ex.DW-1/1) addressed by the Under Secretary, Land and

Building Department, Delhi Administration to the DDA as also

another communication dated 21.3.1979 (Ex.DW-2/A). It was held

that these documents clearly evidenced that the DDA is not the

authority which can allot the land; it is the only Delhi

Administration which can make such allotments. As such the Delhi

Administration was a necessary and a proper party. Reliance upon

the amended provisions of Order 1 Rule 9 CPC and the proviso

contained therein was relied upon to non-suit the plaintiff, holding

that the Delhi Administration being a necessary party not having

been joined, the suit of the plaintiff was liable to be dismissed. The

appeal was accordingly allowed and the decree of the Trial Judge

was set aside.

6. This is a second appeal. On 22.9.1997 the substantial

question of law was formulated which inter alia reads as follows:

"Whether Delhi Administration/Union of India is a necessary party since the land in question has been put at the disposal of D.D.A. under Section 22 of the Act and the land having been dealt with for all purposes by the D.D.A.?"

7. In the course of the arguments, learned counsel for the

appellant has submitted that two more substantial questions of law

have in fact arisen which had not been formulated. The first

relates to the violation of the rules of natural justice, as admittedly

no show cause notice had been issued to the plaintiff before her

allotment was cancelled vide communication dated 6.5.1981. The

second substantial question of law relates to the principle of

promissory estoppel. The first Appellate Court should have taken

note of this principle as formulated in Section 115 of the Evidence

Act and in this view of the matter could not have reversed the

findings of the Trial Judge. Both these questions of law have to be

answered by this Court.

8. It is relevant to state that the first Appellate Court vide its

impugned judgment dated 16.9.1995 had non suited the plaintiff

and dismissed his suit only on one issue i.e. non-joinder of

necessary party. The violation of rules of natural justice, if any,

had not been gone into and neither had the question of promissory

estoppel been dealt with by the first Appellate Court. The Trial

Court had given a finding that the rules of natural justice had been

violated; further the principle of promissory estoppel will operate

against the DDA; the DDA had been estopped from cancelling the

allotment of the plaintiff. These issues were neither raised and nor

discussed by the first Appellate Court.

9. As already noted supra, the first Appellate Court had

dismissed the suit of the plaintiff only on the ground of non-joinder

of a necessary party. As such these additional grounds now raised

do not have to be gone into as no adverse finding on these

propositions have been given which go against the plaintiff. This

Court thus has only to answer the substantial question of law as

formulated by it on 22.9.1997.

10. Order 1 Rule 9 of the Code is the statutory provision for mis-

joinder and non-joinder of parties. It reads as follows:-

"No suit shall be defeated by reason of the misjoinder or non- joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:

Provided that nothing in this rule shall apply to non-joinder of a necessary party."

11. This provision mandates that no suit shall be defeated by

reason of mis-joinder and non-joinder of the parties. However the

proviso clarifies that nothing in this rule will apply to non-joinder of

a necessary party. Therefore, care must be taken to ensure that

the necessary party is before the Court, be it the plaintiff or the

defendant, otherwise, the suit or the proceedings will have to fail.

Necessary party is a party whose presence is necessary in order

that the decree if passed in the proceedings can become an

effective decree. Such a person should be bound by the result of

the action and the question to be settled and where such a question

in the action cannot be effectively and completely settled unless he

is a party; in such an eventuality the suit is liable to be dismissed.

However, the Court in a given case may permit the plaintiff to

amend the suit by impleading the necessary party.

12. Perusal of the record shows that the facts which emerge are

by and large undisputed.

13. It is not in dispute that Rajo Devi had purchased a plot

measuring 145 sq. yards of land in Khasra no.134/1,167, 169,

Village Jogabai which had been acquired in proceedings under the

Land Acquisition Act. It is also not in dispute that communication

dated 6.2.1979 Ex.DW-1/1 had been received by the DDA from the

Delhi Administration wherein the DDA had been requested to allot

a plot of 125 sq. yards land in favour of the plaintiff Rajo Devi; a

copy of which had also been endorsed to Rajo Devi. Thereafter the

consideration amount of Rs.9615.40 had been deposited by the

plaintiff pursuant to which a possession slip had been handed over

to her. Vide communication dated 6.5.1981 Ex.DW-1/3 without

notice to the plaintiff her aforenoted allotment was cancelled. The

reason for the cancellation is contained in the below noted relevant

extract which reads as follows:

"And whereas it has now been discovered by the lessor that the

Delhi Administration had never made any recommendation for allotment of a plot to you as none of your land had ever been acquired by that administration for purposes of planned development of Delhi and that you have obtained the allotment in respect of the plot mentioned herein above fraudulent manner, for none of your lands had ever been acquired by the Govt. and no recommendations, in fact, was ever made by the Land & Building Department, Delhi Admn., to the Delhi Development Authority to make allotment of a plot to you in lieu of your such acquired land.

14. Para 4 of the plaint is relevant. It has relied upon the letter

Ex.DW-1/1 dated 6.2.1979 sent by the Land and Building

Department, Delhi Administration to the DDA recommending the

allotment of an alternate plot of land measuring 125 sq. yards in

the name of Rajo Devi under the "Large Scale Acquisition

Development and Disposal of the Land in Delhi". In fact the whole

foundation of the case of the plaintiff has centered around this

letter. It was pursuant to this communication which was sent by

the Delhi Administration to the DDA that the DDA had initiated the

entire process of allotment of the 125 sq. yards of plot of land in

favour of the plaintiff i.e. the letter Ex. DW-2/1 dated 21.3.1979

informing the plaintiff of the proposed allotment. This

communication reserved the right of the DDA that in case wrong

particulars are furnished by the plaintiff the allotment is liable to

be cancelled. Thereafter as per the case of the DDA because of

certain concealment of facts which amounted to a fraud (as no

recommendation had in fact been made by the Delhi

Administration to the DDA recommending any allotment in favour

of the plaintiff) the said allotment stood cancelled on 6.5.1981

(Ex.DW-1/3). This allotment was cancelled pursuant to the inter se

communication between the DDA and Delhi Administration.

Ex.DW-1/2 dated 29.12.1980 sent by the DDA to the Delhi

Administration wherein the DDA had sought a clarification on this

recommendation of the allotment of a plot in favour of the plaintiff;

the answer to which was given by mark A dated 17.2.1981 sent by

the Joint Secretary, Delhi Administration informing the DDA that in

128 cases no files had been even opened by the Government which

included the name of the plaintiff Rajo Devi (Serial No.15 of the

annexure sent with the letter); in all these cases enquiry had been

initiated. It was pursuant thereto the allotment stood cancelled.

These documents are not in dispute.

15. The impugned judgment had non-suited the plaintiff only on

the ground that the Delhi Administration who was a necessary

party had not been joined. The DDA had admittedly not acquired

the land of the appellant; it was acquired by the Delhi

Administration; after the acquisition, there was a scheme of

alternate allotment of plots which was also promulgated by the

Delhi Administration. It is also the case of the plaintiff that she

was entitled to this allotment under this scheme promulgated by

the Delhi Administration. In fact the entire exercise of allotment

had been initiated by the DDA only on the so-called

recommendation of the Delhi Administration which itself was

disputed by the Government in its letter dated 17.2.1981 when it

was informed to the DDA that no such recommendation had been

made by the Government; letter dated 6.2.1979 appeared to be a

forged document; no file had ever been opened in the name of the

Rajo Devi, the plaintiff and in fact a vigilance enquiry was under

way.

16. At this stage it would be relevant to examine the plaint. The

prayer in the plaint reads as follows :-

"It is, therefore, prayed that a decree for permanent injunction

restraining the defft. from dispossessing the plaintiff from Plot

No.E-71, Malviya Nagar, New Delhi, in favour of the plaintiff and

against the deft. and the deft. be further directed by a decree of

mandatory injunction to execute and register the lease/conveyance

deed of the suit Plot No.E-71, in favour of the plaintiff. The suit be

kindly decreed in favour of the plaintiff & against the deft. with

costs of the suit."

17. This prayer clause seeks a mandate against the defendant i.e.

the DDA to execute and register a lease/conveyance deed of the

aforenoted suit property in favour of the plaintiff. As already noted

supra the DDA had come into the picture only pursuant to the

recommendation made by the Delhi Administration. The very basis

and foundation of this allotment stood destroyed by the

communication dated 17.2.1981 when the Delhi Administration

informed the DDA that a fraud had been played and no such

recommendation had been made by the Delhi Administration. If

the recommendation of the allotment itself was under dispute on

which a vigilance enquiry was pending the question of the DDA

executing this lease deed in favour of the plaintiff pending this

enquiry did not arise. In these circumstances, when these facts

were in the explicit knowledge of the plaintiff, it was incumbent

upon the plaintiff to have arrayed the Delhi Administration as a

necessary party/defendant. The Delhi Administration was a

necessary party, as the clarification qua this issue, could have been

given only by the Delhi Administration; in the absence of the Delhi

Administration coming into the picture the prayer prayed for by the

plaintiff could not be effectively granted. No lease deed could have

been executed in favour of the plaintiff against whom fraud had

been alleged by the government agency. The clouds in this picture

could have been cleared only by the Delhi Administration.

18. Under the amended provision of Order 1 Rule 9 of the CPC a

necessary party not joined would lead to the dismissal of the suit as

in the absence of such a necessary party, the suit can neither be

effectively tried nor disposed of. In a judgment of this Court

reported in 152(2008) DLT 36 Bhim Singh & Ors. Vs. Sukhbir

Singh & Ors. the following observations of the Court are relevant.

"In the absence of any necessary party, no effective order or decree be passed. In view of the provisions of Order 1 Rule 9 it is clear that non-joinder of a necessary party would be fatal to the suit. This aspect of the matter has also to be borne in mind. The plaintiff has not been joined necessary parties and has taken the risk by not doing so. In the absence of necessary parties, no effective order or decree can be passed and the plaintiff must bear the consequences of his adventure. Non-joinder of necessary parties in a partition suit is fatal."

19. Section 22 of the Delhi Development Act, 1957 reads as

follows:

"22. Nazul lands.- (1) The Central Government may, by notification in the Official Gazette and upon such terms and conditions as may be agreed upon between that Government and the Authority, place at the disposal of the Authority all or any developed and undeveloped lands in Delhi vested in the Union (known and hereinafter referred to as "nazul lands") for the purpose of development in accordance with the provisions of this Act.

(2) No development of any nazul land shall be undertaken or carried out except by, or under the control and supervision of, the Authority after such land has been placed at the disposal of the Authority under sub-section (1).

(3) After any such nazul land has been developed by, or under the control and supervision of, the Authority, it shall be dealt with by the Authority in accordance with rules made and directions given by the Central Government in this behalf.

(4) If any nazul land placed at the disposal of the Authority under sub-section (1) is required to any time thereafter by the Central Government, the Authority shall, by notification in the Official Gazette, replace it at the disposal of that Government upon such

terms and conditions as may be agreed upon between that Government and the Authority."

20. This provision is not attracted as it relates to the nazul lands

which by an appropriate notification may be placed at the disposal

of the DDA by the Central Government.

21. The judgment relied upon by the learned counsel for the

appellant reported in WCP No.1526/1981 Mrs.Parkash Sharma Vs.

Delhi Development Authority & Ors. does not come to his aid.

Apart from the fact that in the said case the entire documentation

including execution of a duly registered perpetual lease deed had

been executed in favour of the petitioner, the plans were

sanctioned and thereafter the petitioner had also constructed a

house and only at that time when he had sought a completion

certification, notice was given to him cancelling his allotment. This