Iftikhar Kamil And Anr vs Dda And Anr
2011 Latest Caselaw 5500 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Decided on : 16.11.2011

+       W.P.(C) 8102/2011 & C.Ms. No.18221-22/2011


IN THE MATTER OF :


IFTIKHAR KAMIL AND ANR                          ..... Petitioners
                    Through : Mr. Ranjan K. Chourasia, Adv.



                    versus



DDA AND ANR                                         ..... Respondents
                         Through : Ms. Sangeeta Chandra, Adv. for DDA.

        CORAM
        HON'BLE MS.JUSTICE HIMA KOHLI


     1. Whether Reporters of Local papers may          Yes
        be allowed to see the Judgment?

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

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



HIMA KOHLI, J. (ORAL)

1. The present petition is filed by the petitioners praying inter alia,

amongst other reliefs, for quashing of public notices dated 15.10.2011

and 12.11.2011 issued by the respondent/DDA to auction plots No.C-32A,

and C-32B, situated at Friends Colony, Delhi as being bad in law. The

present case has a chequered history, relevant facts of which are taken

note of herein below before dealing with the submissions made by the

learned counsel for the petitioners.

2. It is the case of the petitioners that the properties of the father of

petitioner No.1 were acquired by the Government, vide notification dated

11.8.1972, and as per the then prevalent policy, he was entitled to

allotment of an alternative plot in lieu of the acquisition, which was not

allotted to him till the date of his death, i.e., 14.7.1976. On 15.4.1996,

petitioner No.1 submitted an application for allotment of an alternative

plot of land in lieu of the acquired properties of his father. On

31.5.1996, the petitioners were informed by the officials of the

respondent/DDA about the allotment of a plot measuring 800 sq. yards on

perpetual lease hold basis, being property bearing No.C-32, Friends

Colony East, New Delhi. On 14.6.1996, as required by the

respondent/DDA, the petitioners deposited a sum of `18,00,000/- with it.

On 17.7.1996, the Deputy Director (L.A.) Residential, DDA, issued a letter

to the petitioners informing them to take over possession of the plot after

the registration of lease deed and that a handing over and taking over

memo would be prepared on 26.07.1996 and given to the petitioners.

3. On 6.9.1996, the petitioners received a letter from the

respondent/DDA along with the proforma of a perpetual lease deed for

getting the same stamped. The petitioners submitted the said document

before the Collector of Stamps, Delhi and duly deposited a sum of

`1,02,019/- in the treasury on 25.9.1996. Thereafter, in January, 1997,

the petitioners appeared before the respondent/DDA for completion of

other requisite formalities and subsequently got the lease deed

registered. However, as physical possession of the subject plot was not

handed over to the petitioners despite repeated requests for the same,

they filed a writ petition registered as WP(C)No.2831/1999 praying inter

alia for directions to the respondent/DDA to handover physical possession

of the plot in question to them.

4. The aforesaid writ petition filed by the petitioners came to be

dismissed, vide order dated 2.3.2006 (Annexure P-7), wherein after

taking note of the stand of both the parties, it was observed by the

learned Single Judge that no relief in respect of the plot in question could

be granted to the petitioners as it was a case of total fraud. It was

further noted that in ordinary course, once DDA receives a

recommendation from the Govt. of NCT of Delhi (Land and Building

Deptt.) for allotment of an alternative residential plot, only then would the

allotment of a plot be made by the Director (Land), DDA. But in the

present case, the allotment was not made by the Director (Land), but by

an Assistant Accounts Officer, whose letter of allotment was relied upon

by the petitioners. With the aforesaid observations, the writ petition filed

by the petitioners was dismissed with further directions to the Vice

Chairman, DDA that he would consider refunding the amount deposited

by the petitioner, and that in case he is of the opinion that the petitioners

were a party to the fraud, the amount would not be refunded, but instead

be transmitted to the Prime Minister's Relief Fund.

5. Aggrieved by the aforesaid order dated 2.3.2006, the petitioners

preferred an intra court appeal registered as LPA No.662-663/2006,

which was dismissed by the Division Bench, vide order dated 17.5.2007.

Counsel for the petitioners states that an SLP was preferred by the

petitioners against the aforesaid judgment of the Division Bench dated

17.5.2007, which was dismissed at the stage of admission itself vide

order dated 7.12.2007. It is submitted by the counsel for the petitioners

that the learned Single Judge could not have gone into the question of

fraud in the earlier writ petition filed by the petitioners and such an issue

ought to have been left for adjudication in the criminal proceedings. He

further states that even though adverse orders were passed in the earlier

writ petitions preferred by the petitioners, the scope of the aforesaid writ

petition was limited to the grant of delivery of possession of the subject

plot and not with regard to the cancellation of the lease deed, which was

executed in favour of the petitioners and was a legal and valid document

that the respondent/DDA ought to have taken into consideration. He

further states that in view of the fact that the petitioners have remained

the lawful owners of the subject plot on the strength of the aforesaid

lease deed which has not been cancelled till date, any attempt on the

part of the respondent/DDA to auction the same is illegal, arbitrary and

without any authority of law.

6. On the other hand, counsel for the respondent/DDA who appears on

advance copy vehemently opposes the present petition and terms it as a

gross abuse of the process of the Court. She states that the entire issue

raised by the petitioners in the present petition, was considered and

rejected by the Single Judge as also by the Division Bench and ultimately

by the Supreme Court and thus, it cannot be re-agitated by the

petitioners under the garb of the present petition. She particularly relies

on the observations made by the Division Bench in its order dated

17.05.2007 to state that the question of cancellation of the lease deed

does not arise as the said document is tainted with fraud and held to be a

fabricated document.

7. This Court has heard the counsels for the parties and has perused

the records and is quite convinced that the present petition is a gross

abuse of the process of the Court. In the teeth of the observations made

by the Division Bench in its order dated 17.5.2007 passed in LPA No.662-

663/2006 to the effect that the documents in question were fabricated

and that it was a case of total fraud, now for the petitioners to rely on the

very same document, namely, the perpetual lease deed to claim

entitlement to the subject premises, is impermissible. The observations

of the Division Bench are as follows:

"No particulars, when and how application for allotment of alternative land was made, was mentioned in the writ petition. No annexures were attached. The first letter filed is letter dated 15th April, 1996 purportedly written to Vice chairman, DDA for allotment of alternative plot of 1000 sq.yds, which resulted in response from DDA dated 31st May, 1996, allotting to the appellants a plot admeasuring 800 sq.yds in prime south Delhi Colony for `18 lakhs. It is alleged that lease deed dated 7th November, 1997 was also executed in favour of the appellants. The respondent DDA states that the letters purportedly written by officers of DDA are forged and fabricated and no such correspondence was addressed to the appellants.

Even the lease deed is also a fabricated document. Learned Single Judge has after examining the records, held that the documents relied upon by the appellants are fabricated and it is a case of total fraud. We agree with the reasoning and grounds given by the learned Single Judge.

The letter of allotment relied upon by the appellant emanates from the Assistant Accounts Officer, DDA, whereas letter of recommendation for allotment of a residential plot should emanate from the Govt. of NCT of Delhi and not the Accounts Officer, DDA. The documents on the basis of which claim is sought to be made and right and title is sought to be established being fabricated documents and obtained by way of fraud, no title would pass to the appellants on the basis of the said documents. We find no reason to interfere with the judgment and order passed by the learned single Judge. As far as refund of `18 lakhs is concerned, learned Single Judge has made observations in para 18 of the judgment. The appeal is devoid of any merit and the same is accordingly dismissed."

8. Further, it is pertinent to note that while dismissing their earlier writ

petition, the learned Single Judge had observed that it was open for the

petitioners to agitate their grievance against the Land & Building

Department, Govt. of NCT of Delhi with regard to the application stated to

have been filed by their predecessor-in-interest for alternative allotment

of a plot. On a pointed query addressed to the counsel for the petitioners

in this regard, it is stated by him that no steps have been taken by the

petitioners in that direction. The contention of the counsel for the

petitioners that as the issue of fraud is being examined in the criminal

proceedings initiated by the Economic Offences Wing and till the said

investigation is complete and proper findings returned, the

respondent/DDA ought to have stayed its hands is also devoid of merits.

No doubt in the criminal proceedings, the aspect of the complicity of the

petitioners to the fraud shall be decided and consequences thereof shall

follow. However, this cannot be a ground for the respondent/DDA to stay

its hands, particularly, when the claim of the petitioners to the subject

plot has been emphatically turned down in the earlier round of litigation

by holding that the documents relied upon by the petitioners were forged

and fabricated and no title would pass to them on the basis of the said

documents. The second argument of learned counsel for the petitioners

that the perpetual lease deed remains a legal and valid document till the

respondent/DDA initiates necessary steps to cancel the same is also

turned down for the very same reason. Merely because the

respondent/DDA has fixed dates for auction of the subject plot in the very

near future, that in itself does not give rise to a fresh cause of action in

favour of the petitioners. The petitioners have availed their legal remedy

in the earlier writ petition filed by them and having suffered an adverse

order, appealed before the Division Bench, which upheld the findings of

the Single Judge and then they approached the Supreme Court only to be

turned away. As a result, the findings of the Single Judge have attained

finality and the matter ought to rest there.

9. Lastly, counsel for the petitioners states that though public notices

have been issued by the respondent/DDA inviting objections from all

concerned parties against the proposed auction of the subject plots fixed

from 17.11.2011 and 18.11.2011, and the petitioners have submitted

their objections to respondent/DDA on 24.10.2011, it has not responded

thereto.

10. In response, counsel for the respondent/DDA states, on

instructions, that the objections filed by the petitioners have been duly

considered and a reply thereto has been dispatched to the petitioner only

today.

11. In view of the above, this Court does not find any justification to

quash the impugned public notices issued by the respondent/DDA. As a

result, the writ petition fails and is accordingly dismissed in limine, along

with the pending applications.

                                                       (HIMA KOHLI)
NOVEMBER 16, 2011                                          JUDGE
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