Arun Kumar Jain & Anr vs Dda
2012 Latest Caselaw 5024 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 27th August, 2012

+               LPA 302/2012 & CM No.6991/2012 (for stay)

       ARUN KUMAR JAIN & ANR                 ..... Appellants
                   Through: Mr. C. Mohan Rao, Adv.

                                    versus
       DDA                                               ..... Respondent

Through: Mr. Arun Birbal, Adv.

CORAM :-

HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW A.K. SIKRI, ACTING CHIEF JUSTICE.

1. The two appellants before us are husband and wife who got married on 27.11.1985. Before their marriage, both had applied for allotment of an LIG plot under the Rohini Residential Scheme, 1981. The allotment of plots, admeasuring 48 sq. mts. in favour of each of the appellants were made on 01.07.1985 and 29.12.1983 i.e. before they got married to each other on 27.11.1985. It appears that there was a long delay in handing over the possession of the aforesaid plots and the execution of the Lease Deeds. At the time of execution of the Lease Deeds on 5th May, 1998 & 27th January, 1994 and handing over of possession on 23rd April, 1990 and 12th May, 1989, both the appellants had given affidavits to the effect that neither he/she nor his/her spouse was having any allotment under the aforesaid Scheme. Construction was raised by the appellants on their respective plots.

2. When the appellants applied for freehold conversion, the respondent DDA issued a show cause notice dated 09.06.2004 to the appellant No.1 as to why his Lease Deed be not cancelled for obtaining the double allotment. Replies were submitted by the appellants, stating that at the time of allotment, they had no relation with each other as they married subsequently and therefore it was not a case of double allotment. However, vide order dated 16.09.2004, Lease Deed in favour of the appellant No.1 was determined. Thereafter proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 were initiated and in these proceedings, the Estate Officer passed the eviction order dated 18.07.2007. The appellants filed appeal before the District Judge which was also dismissed. Thereagainst, the appellants preferred W.P.(C) No.630/2011 and the said writ petition has also been dismissed by the learned Single Judge vide impugned judgment dated 01.03.2012. It is in these circumstances, the order of the learned Single Judge is challenged by filing the present intra-court appeal.

3. Perusal of the order of the learned Single Judge would disclose that there are two factors which had weighed not only with the learned Single Judge but even with the Authorities below, in upholding the cancellation orders passed by the respondent DDA. First ground is that the allotment of the plot in favour of the appellant No.1 was rightly cancelled as there was allotment of another plot under this Scheme in favour of appellant No.2. Second reason given is that the appellants had filed false / incorrect affidavits at the time of execution of the Lease Deed in respect of the two plots.

4. Insofar as first ground is concerned, from the facts disclosed above, it becomes clear that when the appellants had applied for allotment of plots under the Rohini Residential Scheme, 1981, they had not married with each other and there was no relation between them. At the time when they had filed the affidavits, they had stated that they did not own any residential premises / plots allotted by the DDA. It is not in dispute that this was the correct position at that time. This position prevailed even till the date of allotment of the plots in favour of the appellants as these allotments were made much before their marriage. The question of double allotment is to be considered in the aforesaid factual background. The answer has to be in the negative. It has been conclusively determined by this Court in the case of M.L. Aggarwal Vs. Delhi Development Authority 107 (2003) DLT 611. That was a judgment rendered by the learned Single Judge which was affirmed by the Division Bench in the case of Delhi Development Authority Vs. M.L. Aggarwal 127 (2006) DLT 572 and in Civil Appeal No.4362/2007 dated 26.11.2009 titled Delhi Development Authority Vs. M.L. Aggarwal the aforesaid judgments of this Court were also upheld by the Supreme Court. We are therefore of the opinion that the allotment could not be cancelled on the ground that it was a case of double allotment and that there was already an allotment in favour of the appellant No.2 when the appellant No.1 was given the allotment of the plot inasmuch as the allotment was of less than 65 sq. mtrs. If two persons are having allotment of plots in their favour and which allotment was valid on the date of allotment, merely because they subsequently marry each other, it cannot be treated as a case of double allotment and that is the ratio of M.L. Aggarwal (supra) and squarely applies to the facts of the present case as well.

5. In these circumstances, the only question would be as to whether any false / incorrect information was furnished in the form of affidavit at the time of execution of the Lease Deed and which could result in cancellation. It is not in dispute that when the Lease Deeds in respect of these plots were executed in the name of the respective appellants, they had already married. However, these facts were not stated and information given in the affidavits was as if, they were unmarried. This was admittedly a false / incorrect information. However, we are of the opinion that inspite thereof, this could not result in cancellation of the plot in favour of the appellant No.1. There are two reasons for taking this view, which are as under:

(i) Firstly, in the show cause notice, proposing the cancellation, the only ground given was that it was a case of double allotment viz. there was allotment of another plot under this Scheme in favour of the appellant No.2 and therefore appellant No.1 was not entitled to the allotment. When this was the only reason given in the show cause notice, the respondent DDA could prosecute the case before the Estate Officer on the basis of this reason alone and could not supplement it by any another reason but it was not the reason indicated in the show cause notice. This is well settled position in law, decided by the Supreme Court in Mohinder Singh Gill Vs. The Chief Election Commissioner (1978) 1 SCC 405.

(ii) Secondly, by giving incorrect information, the appellants were not going to gain any undue advantage inasmuch as even if the right information was disclosed, that would not have resulted in the non execution of the Lease Deed.

6. As pointed out in M.L. Aggarwal (supra), both the appellants are entitled to execution of the Lease Deeds as the allotments were made in their favour before their marriage and the same could not have been cancelled only on the ground that afterwards they married each other.

7. However at the same time, we are of the opinion that for giving false / incorrect information in the affidavits, some penalty must be imposed upon the appellants. Ends of justice would be met by imposing penalty of Rs.50,000/- which shall be paid by the appellants to the respondent DDA. Subject to aforesaid penalty, the impugned judgments of the learned Single Judge as well as the authorities below are set aside. The cancellation order dated 18.07.2007 shall also stand set aside.

No costs.

ACTING CHIEF JUSTICE

RAJIV SAHAI ENDLAW, J

AUGUST 27, 2012 gsr..