Dalip Kumar vs Delhi Development Authority & ...
2011 Latest Caselaw 2698 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 19.5.2011


+                  R.S.A.No.188/2008


DALIP KUMAR                               ...........Appellant
                         Through:    Mr.Vijay Kishan Jetly and
                                     Mr.Vikram Jetly, Advocate.

                   Versus


DELHI DEVELOPMENT AUTHORITY & ANR. ..........Respondents
                 Through: Mr.M.K.Singh, Advocate.


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. (Oral)

1. This appeal has impugned the judgment and decree dated

02.6.2008 which has reversed the finding of the trial judge dated

15.3.2002. Vide judgment and decree dated 15.3.2002 the suit

filed by the plaintiff Dalip Kumar seeking a declaration (to the

effect that the letter of cancellation dated 26.6.1987 issued by the

defendant/Delhi Development Authority (DDA) cancelling his plot

be declared null and void with a further prayer to restore the

residential plot to him) had been decreed in his favour. Impugned

judgment had reversed this finding; suit of the plaintiff stood

dismissed.

2 Plaintiff had applied for allotment of a residential plot under

a special scheme of DDA to allottees of shops/ plots in New Subzi

Mandi, Azadpur area; his application was dated 18.8.1975; initial

amount of `10,000/- was paid as earnest money. Pursuant to the

draw of lots, on 30.9.1975 the plaintiff was informed that he had

been allotted a residential plot No.J/47, Block No.B, measuring

200 sq. yards in Shalimar Bagh under the aforenoted scheme on

payment of a premium of `100/- per sq. yards. Plaintiff was called

upon to deposit a sum of `10,011/- on 15.10.1975; plaintiff paid

this amount on 09.10.1975 and the requisite documents were also

furnished by him, however, the possession of the plot could not be

delivered to him; on 26.6.1987 he had received cancellation letter

cancelling his plot.

3 All the aforenoted facts are undisputed.

4 The cancellation notice is Ex.DW-1/1. It inter alia reads as

follows:

"Sub: Cancellation of Plot No BJ (Poorvi) 47, Shalimar Bagh. Sir, With reference to your letter dated 5.6.87 presented in V.C's Public Hearing on 5.6.87 on the subject cited above, I am directed to inform you that the allotment of the said plot has been cancelled & earnest money forefeited as the shop in Azadpur has not so far been restored on the basis of which the residential plot was allotted. DDA has also taken a decision not to open the closed cases.

The excess amount deposited by you will be refunded in due course."

5 This document show that there were two reasons for the

cancellation of the plot; first reason was that the shop in Azadpur

in lieu of which this residential plot had been allotted has not so

far been restored; the second reason was that the DDA had taken

a decision not to open the closed cases. In the written statement

it was not disputed that the plaintiff had filed an earlier suit i.e.

the suit No.145 of 1979 wherein he had prayed that the allotment

of his shop (in lieu of which he has been allotted the present

residential plot) which has been cancelled is a wrong cancellation.

This suit had been decreed in favour of the plaintiff on 23.4.1982.

Appeal was dismissed on 07.2.1987. Second appeal was also

dismissed on 20.1.1988. This has been admitted by the DDA in

para 7 of its written statement. It is thus clear that the

cancellation of the allotment of the shop was a wrong

cancellation.

6 This is a second appeal. It has been admitted and on

21.12.2010 the following substantial question of law was framed:

"Whether the finding in the impugned judgment dated 02.6.2008 dismissing the suit of the plaintiff are perverse and if so its effect? 7 On behalf of the appellant it has been urged that the

impugned judgment had incorrectly dismissed the suit of the suit;

the two reasons for the cancellation of the plot in the cancellation

notice dated 26.6.1987 (Ex.DW-1/1) were clearly wrong and illegal

reasons.

8 The suit of the plaintiff holding that the cancellation of the

plot was a wrong cancellation had been decreed in his favour; as

such the DDA could not have cancelled the aforenoted plot for the

reasons that the said shop has not been restored; decree for the

wrong cancellation of the shop was already in favour of the

plaintiff. This fact is even otherwise not disputed.

9 The second reason for the cancellation of the plot in terms of

Ex.DW-1/1 was also a wrong reasoning. Ex.DW-1/3 was the policy

of the DDA whereby they had decided to close old cases. Para 4

and 5 clearly state that there is a category of cases where land

had been acquired by the government and the persons had been

allotted alternative plots; these cases of the year 1975 should be

deemed to be closed. Clearly the case of the appellant was not in

such category. He had not been allotted this aforenoted plot

because of acquisition of his land; his allotment was in lieu of his

shop at Azadpur Market, New Subzi Mandi. This is clear from

Ex.PW-1/5 which is the allotment letter dated 30.9.1975 issued to

the plaintiff wherein it is clearly stated that this was an scheme of

allotment of residential plots to the allottees of shops/plots held by

them in New Subzi Mandi near Azadpur under the aforenoted

special scheme.

10 It is thus clear that issuance of the cancellation notice was

for illegal and wrong reasons; this has been correctly appreciated

by the trial judge. The impugned judgment had reversed the

finding taking into consideration the pleas which were admittedly

not a part of the written statement. This has found mention in

paras 8 and 9 of the impugned judgment. The Court was of the

view that the written statement has not been happily worded but a

public body should not suffer for the wrong wordings in the

written statement. This was clearly an illegality; adverting to the

defence of the defendant without there being any such plea in the

written statement was an erroneous approach; it is deprecated.

11 Plaintiff had admittedly paid entire money for the allotment

in time. There is no quarrel to this fact. In 1994(30) DRJ Pratap

Singh Vs. MCD where the entire application money had been

received by the department/MCD the Court had noted that the

cancellation of the allotment on account of change of policy is not

permissible; the case of the appellant stand on a higher footing;

there is admittedly no change in the policy which is applicable to

the case of the petitioner. In view of the aforenoted discussion,

the substantial question of law is answered in favour of the

appellant and against the respondent. Appeal is allowed. Suit of

the plaintiff stands decreed.

INDERMEET KAUR, J.

MAY 19, 2011 nandan