Delhi High Court
Satya Narain Bansal vs Dda on 24 September, 2013
Author: Pratibha Rani
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA(OS) 23/1997
SATYA NARAIN BANSAL .....Appellant
Through: Mr.A.K.Singla, Senior
Advocate with Mr.Sushil
Jaiswal and Mr.Sheetesh
Khanna, Advocates.
versus
DDA ..... Respondent
Through: Mr.Pawan Mathur, Advocate.
% Date of Decision :24th September, 2013
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
HON'BLE MS. JUSTICE PRATIBHA RANI
PRATIBHA RANI, J
1. Late Sh.Satya Narain Bansal filed CS(OS) No.1841/1985
against DDA seeking a decree for specific performance to execute the
necessary perpetual lease deed in favour of the appellant in respect of
Plot No.216, Block No.B-4, Safdarjung Development Area, New
Delhi, measuring 200 sq.yds. approximately.
2. Vide impugned judgment, the learned Single Judge, on finding
that the Appellant (Plaintiff in the Civil Suit) failed to prove that he
was ready and willing to perform his part of the obligation, dismissed
the suit.
3. The facts, as pleaded in the Civil Suit, reveal that Sh.Satya
Narain Bansal, in his capacity as Chairman of Municipal Corporation
of Delhi applied to DDA on 02.08.1978 for allotment of a plot under
the policy No.18011(11)/66-UD dated 05.02.1970 framed by the
Government reserving 5% of the plots for sitting Members of
Parliament, Members of Metropolitan Councils and Delhi Municipal
Corporation as well as non-official members of the Cantonment Board
and NDMC.
4. Vide communication dated 09.02.1979, DDA informed the
decision to allot a plot to the Appellant measuring 200 sq.yds. in
Safdarjung Residential Scheme requiring him to intimate if it was
acceptable to him so that exact number of plot could be decided in
draw of lots. Further communication dated 04.04.1979 required him to
comply with the requirements specified therein, on or before
20.04.1979. In the draw of lots held on 10.09.1979, Plot No.B-4/216
was allotted to him in Safdarjung Development Area which was
subject to fulfilment of required conditions.
5. The Respondent DDA vide communication dated 23.04.1982
informed the Appellant that he would retain the Plot No.B-4/216 in
Safdarjung Development Area allotted to him through draw of lots
held on 10.09.1979 and other formalities required to be completed in
this regard would be intimated to him shortly. DDA failed to execute
the lease deed thereby compelling the Appellant to serve DDA with a
legal notice dated 08.04.1985 received by the Respondent on
10.04.1985. On failure of the Respondent DDA to execute the lease
deed in favour of the Appellant in respect of the plot allotted to him,
CS(OS) No.1841/1985 was filed for specific performance against
DDA for direction to execute the necessary perpetual lease deed in
favour of the appellant in respect of Plot No.216, Block No.B-4,
Safdarjung Development Area, New Delhi, measuring 200 sq.yds.
approximately.
6. Respondent DDA filed the written statement admitting the
decision to allot a plot No.B-4/216 measuring 200 sq.yds. in
Safdarjung Development Area to the Appellant but pleading that
allotment of plot in draw of lots does not confer any right on the
allottee unless the requisite pre-conditions regarding eligibility are
fulfilled. It was pleaded that Appellant filed the affidavit dated
12.04.1979 to satisfy the eligibility criteria that he did not own any
residential house in Delhi except a residential ancestral house at 2191,
Gali Hanuman Prasad, Dharampura, Delhi-110006. Since the
Appellant owned the property No.6479 at Katra Baryan, Delhi (250
Sq.yds.) but stating the same to be commercial, to determine the
eligibility of Appellant, efforts were made by the DDA to ascertain the
purpose for which the building plans were sanctioned at the time of
construction of above property i.e. for residential purpose or
commercial purpose. This became necessary as user of the property as
commercial in itself does not change the nature of the property for
which it was built.
7. On the pleadings of the parties, following issues were framed :-
'(i) Whether the suit for specific performance is not maintainable
as alleged in para 1 of the preliminary objections?
(ii Whether the allotment of plot in favour of the plaintiff was
against Rules, regulations and instructions in this behalf?
(iii) Whether the plaintiff has properly valued the suit for purposes
of court-fee and jurisdiction? If not what is the correct valuation thereof?
(iv) Whether the plaintiff is not owner and in possession of a
residential house in Delhi/New Delhi?
(v) Whether the plaintiff has been ready and willing to perform his
part of the contract throughout?
(vi) Whether the plaintiff is not entitled to specific performance of
the contract which has come into existence between the parties?
(vii) To what relief is the plaintiff entitled?
(viii) Relief.'
8. In order to prove his case, the Appellant examined himself as
PW-1. Initially DDA preferred not to lead any evidence but later on
filed an application seeking permission to place on record the
modified policy which came into force w.e.f. 02.01.1979 thereby
making the Appellant ineligible to be considered for allotment of plot
in his capacity as Chairman, Standing Committee MCD.
9. In view of the above fact being brought on record by DDA by
filing the affidavit and copy of the modified policy, additional
affidavit was filed by the Appellant.
10. On the issue of readiness and willingness of the Appellant to
perform his part of the obligation as well whether he satisfied the
eligibility criteria so as to be entitled to get a plot under the policy, the
learned Single Judge arrived at the following conclusion :-
'Issue No.5
.........It may be seen that the plaintiff has not stated that he has always
been ready and willing to perform the essential terms of the contract
which are to be performed by him. He merely stated that he is ready and
willing to perform his part of the agreement & has fulfilled the conditions
of allotment. The plaintiff in a suit for specific performance must aver and
prove that he has performed and has always been ready and willing to
perform the essential term of the contract. The requirement is mandatory.
If the plaintiff fails to aver and prove that he has always been ready and
willing to perform the contract, specific performance of the same cannot
be enforced. The provisions of Section 16(c) of the Specific Performance
Act in which the abovesaid requirement is laid down is very stringent. I
am supported in this view by a Division Bench Judgment of this Court in
Mrs.Gopal Devi vs. Mrs. Kanta Bhatia AIR 1994 Delhi 349. Besides there
are large number of authorities laying down that the condition precedent
to the enforcement of a contract by way of a suit for specific performance
is that the plaintiff must aver and prove that he has performed or has
always been ready and willing to perform the essential term of the
contract. It is however, not necessary to refer to them. The plaintiff in the
instant case is required to pay premium in accordance with the policy
decision of the Government of India dated 2nd May, 1961 regarding
acquisition, development and disposal of land in Delhi. The plaintiff has
not proved that he was ready and willing to perform his part of the
obligations at all points of time. That is to say that he has failed to state
that contract. Accordingly, the issue is decided against the plaintiff. (At
page 9 and 10 of the judgment).
'Issue no.2
..........As is apparent from the above, the concession in favour of MPs,
Members of Metropolitan Council and Municipal Corporation was
scrapped. Since the DDA and MCD were carrying out the policy of the
Government as contained in its letter dated February 5, 1970, there is no
reason whatsoever for not implementing any modification in such policy.
It needs to be noted that the land with regard to which the DDA was
empowered to make allotments is the land which came under the Scheme
of large scale acquisition, development and disposal. The land under the
large scale acquisition scheme has been made available to the DDA by the
Government of India and the land can be allotted only under that scheme.
It needs to be further highlighted that the concessions to the MPs,
Members of Metropolitan Council and Municipal Corporation were made
available at the behest of the Government of India. Once the Government
of India withdrew that concession, the Municipal Corporation or the DDA
had no authority to deal with the land in a manner which would be
violative of the directions of the Government of India even otherwise
reservation of the land in favour of MLAs and MPs would be violative of
Article 14 of the Constitution as being discriminatory. Learned counsel
for the plaintiff, however, relied upon the decision of this Court in
Joginder Nath Bhandari vs. Lt. Governor of Delhi, CWP No.1006/81
decided on March 30, 1989, in which it was held that letter dated January
2, 1979 was not given effect to by the DDA. Therefore, the cancellation of
allotment of land in favour of the petitioner in that case, who was a MLA,
was set aside. With great respect I do not agree with the above view. I
would have referred the matter on this question to a larger Bench for its
determination but it will not be necessary as the suit in any event is liable
to be dismissed in view of the findings on issue No.5.' (At pages 17, 18 and
19 of the judgment)
11. On behalf of Appellant, Mr.A.K.Singla, Senior Advocate
submitted that CS(OS) No.1841/1985 was dismissed in view of
findings on issue No.5. It is proved by Appellant that after draw of
lots held on 10.09.1979, vide communication dated 23.04.1982 DDA
informed the Appellant that he would retain the Plot No.B-4/216 in
Safdarjung Development Area allotted to him through draw of lots and
other formalities required to be completed in this regard would be
intimated to him shortly. He urged that surprisingly, thereafter there
was no communication from DDA calling upon the Appellant to
comply with further requirements. On failure of DDA to execute the
lease deed, legal notice was served and thereafter the Appellant was
constrained to file a civil suit seeking specific performance of the
agreement.
12. It has been further submitted by learned Senior Advocate for the
Appellant that the learned Single Judge, while answering issue No.5,
committed grave error while observing that the Appellant failed to
prove that he had been ready and willing to perform his part of the
contract. Learned Single Judge also failed to note that Gopal Devi vs.
Kanta Bhatia AIR 1994 Delhi 349 relied upon to conclude that the
Appellant has not proved that he was ready and willing to perform his
part of the obligations at all points of time, had no application to the
facts of the present case. Learned Single Judge also erred in arriving
at the conclusion that the Appellant failed to prove that he was ready
and willing to perform his part of the obligation at all points of time
for the reason that DDA had never raised any controversy on these
lines in the written statement. Further no evidence was led by the
DDA to bring on record that after the allotment of plot on 10.09.1979,
the Appellant failed to perform his part of the agreement.
13. Referring to change in the policy for allotment w.e.f.
02.01.1979, he submitted that it had no application to the case of the
Appellant who had applied prior to the date when this policy came
into force. Further the letter dated 02.01.1979 modifying the
reservation policy for sitting Members of Parliament, Members of
Metropolitan Councils and Delhi Municipal Corporation as well as
non-official members of the Cantonment Board and NDMC, was
never given effect to by the DDA as observed in C.W.P.No.1006/1981
titled as Shri Joginder Nath Bhandari vs. Lt. Governor of Delhi and
Ors. decided on 30.03.1989. Also the DDA never communicated the
Appellant his ineligibility to get a plot under 5% reservation scheme
due to change in policy.
14. On behalf of DDA, Mr.Pawan Mathur, Advocate has submitted
that the plots were being allotted by the DDA under the policy
No.18011(11)/66-UD dated 05.02.1970 of the Government which was
modified w.e.f. 02.01.1979 and communicated to DDA. As per
modified policy Ex.D1, all reservations in the matter of allotment of
plots and flats except the following stood abolished :-
(i) Widows of defence personnel killed in action. (1 per cent).
(ii) Ex-servicemen. (1 per cent)
(iii) Physically handicapped persons (1 per cent)
(iv) Scheduled Castes and Scheduled Tribes. (25 per cent)
15. Since the Appellant did not fall in the above categories, he was
not eligible to be allotted a plot, hence learned Single judge had
rightly declined to pass decree for specific performance in favour of
the Appellant.
16. The defence raised in this case by the DDA is that the Appellant
did not satisfy the eligibility criteria in getting the plot allotted under
the Scheme mainly for two reasons : (i) the property No.6479 at Karta
Baryan, Delhi, though put to commercial use, could not be established
to have been constructed for commercial purpose, and (ii) In view of
change in the Government Policy w.e.f. 02.01.1979, the reservation in
the matter of allotment of plots was restricted to only (a) Widows of
defence personnel killed in action, (b) Ex-servicemen, (c) Physically
handicapped persons, and (d) Scheduled Castes and Scheduled
Tribes. The entire process in respect of the Appellant being started
after necessary modifications in the policy, the allotment itself was
illegal and Vigilance inquiry was ordered in eight such cases which
included allotment in favour of the Appellant.
17. The entire case being based on documentary evidence, it is
necessary to refer to the vital documents to decide whether it was a
case where learned Single Judge should have ordered for specific
performance or it was a case where political clout was used to seek
favour from the officers holding responsible position in DDA who, by
giving go-by to the rules, favoured the politicians by making allotment
of plot without even looking at the contents of letter dated 02.08.1978
which formed basis of allotment of plot in Safdarjung Development
Area.
18. In our quest to ascertain the truth, we prefer to be guided by the
observation made by the Supreme Court in Maria Margarida
Sequeria Fernandes & Ors. vs. Erasmo Jack De Sequeria (Dead)
through LRs AIR 2012 SC 1727 in paras 33 to 36 of the report :
"33. The truth should be the guiding star in the entire judicial process.
Truth alone has to be the foundation of justice. The entire judicial system
has been created only to discern and find out the real truth. Judges at all
levels have to seriously engage themselves in the journey of discovering
the truth. That is their mandate, obligation and bounden duty. Justice
system will acquire credibility only when people will be convinced that
justice is based on the foundation of the truth.
34. In Mohanlal Shamji Soni v. Union of India 1991 Supp (1) SCC 271,
this Court observed that in such a situation a question that arises for
consideration is whether the presiding officer of a Court should simply sit
as a mere umpire at a contest between two parties and declare at the end
of the combat who has won and who has lost or is there not any legal duty
of his own, independent of the parties, to take an active role in the
proceedings in finding the truth and administering justice? It is a well
accepted and settled principle that a Court must discharge its statutory
functions-whether discretionary or obligatory-according to law in
dispensing justice because it is the duty of a Court not only to do justice
but also to ensure that justice is being done.
35. What people expect is that the Court should discharge its obligation
to find out where in fact the truth lies. Right from inception of the judicial
system it has been accepted that discovery, vindication and establishment
of truth are the main purposes underlying the existence of the courts of
justice.
36. In Ritesh Tewari and Anr. v. State of U.P. and Ors. (2010) 10 SCC 677
this Court reproduced often quoted quotation which reads as under:
'37. .......Every trial is voyage of discovery in which truth is the
quest.'
This Court observed that
'The power is to be exercised with an object to subserve the cause
of justice and public interest and for getting the evidence in aid of
a just decision and to uphold the truth'."
19. Finding more than two-and-a-half years gap and total
disconnect in allotment of Plot No.B-4/216, Safdarjung Development
Area on 10.09.1979 and communication/confirmation of allotment
after two-and-a-half years vide letter dated 23.04.1982, which was
claimed to be the basis of the plea that agreement stood concluded on
23.04.1982, specific performance of which was sought to be enforced,
and non-production of the application dated 02.08.1978 seeking
allotment under the scheme, led to an impression that the parties have
concealed more than what has been revealed. This necessitated listing
the matter for directions and to have a complete picture calling for the
allotment file of Plot No.B-4/216, Safdarjung Development Area.
20. We perused the File No. F.1(264)78/L&B(R) brought by the
DDA. The correspondence between the parties contained in DDA
Allotment File No.F.1(264)78/L&B(R) was put to learned Senior
Advocate for the Appellant at the time of re-hearing of the matter.
Learned Senior Advocate for the Appellant was also requested to look
into the record and satisfy us on following aspects :-
(i) We could not notice any application dated 02.08.1978 by the
Appellant requesting for allotment of plot under the scheme. Even in
the DDA file no such application was available. A letter dated 2nd
August written by Appellant and received in DDA on 04.08.1978 vide
diary No.6868-A is placed in the file. This is just to seek information
whether under the scheme, the Appellant Sh.Satya Narain Bansal
could be allotted a plot or not.
(ii) Vide letter dated 04.04.1979, the Appellant was informed about
the tentative decision to allot a plot to him by draw of lots. He was
also required to comply with the requirements specified therein by
20.04.1979 failing which it would be presumed that he was not
interested for a plot. The record reveals that the needful was not done
within specified time and the draft for earnest money was submitted
only in the end of May, 1979 processed by the DDA on 25.05.1979.
(iii) The effect of not depositing the earnest money by 20.04.1979 as
well as failure to deposit interest on account of delayed payment
though communicated vide Ex.P3 dated 28.06.1979.
(iv) There had been a question mark about the eligibility of the
Appellant to get a plot under the policy framed by the Government
reserving 5% of the plots for sitting Members of Parliament, Members
of Metropolitan Councils and Delhi Municipal Corporation as well as
non-official members of the Cantonment Board and NDMC for the
reason that property measuring 250 sq.yds. at 6479, Katra Baryan,
Delhi was owned by the Appellant which was in addition to another
property bearing No.2191, Gali Hanuman Prasad, Dharampura, Delhi.
DDA was making all possible efforts to ascertain whether the plan
sanctioned for construction of property at Katra Baryan was for
residential purpose or commercial. Various correspondence appearing
in DDA file reveal that no effort was spared to ascertain whether the
building plan was sanctioned for residential purpose or commercial
purpose. While the Appellant who could be in possession of the
sanctioned plan of the property at Katra Baryan to establish the
purpose for which the building plan was sanctioned, did not produce
the necessary documents, MCD also did not confirm that the property
at Katra Baryan was constructed for commercial purpose. However,
in the file No.: DD/WE/APW/9148 regarding land use of property
No.6479, Katra Baryan, we have noting dated 10.05.1991 which is to
the effect that :-
'...........It clearly establishes that on the crucial date of allotment of plot
No.B-4/206, Safdarjung, the premises of Sh.Bansal, in Katra Baryan were
high density residential and not commercial as contended by him. This
is a disqualification for allotment of residential plot to him.'
(v) The Appellant was allotted Plot No.B-4/216 in Safdarjung
Development Area measuring 200 sq.yds. subject to fulfilment the
eligibility criteria on the date of allotment of the said plot. The
property at Katra Baryan though used for commercial purpose could
not be established to be a property constructed for commercial purpose
thereby disqualifying the Appellant for allotment of residential plot
under the scheme.
(vi) Undisputedly, the Plot No.B-4/216 in Safdarjung Development
Area was allotted in the draw of lots held on 10.09.1979 which was
duly communicated to the Appellant vide communication dated
06.10.1979 whereby he was specifically informed that the allotment
was subject to fulfilment of the requirements already intimated. The
requirements had never been met by the Appellant.
(vii) Effect of letter dated 17.03.1982 by the Appellant stating
therein that since the plot allotted to him was adjacent to the drain,
Shri Buch, the then Vice Chairman, conceded to his request and
alternate plot was allotted to him in a fresh draw of lot, so request was
made by him to handover the possession of the said plot.
21. Learned counsel for the Appellant has not disputed the
genuineness, authenticity or authorship of the documents placed in
DDA File No.F1(264)78/L&B(R) on which he was requested to
address us on the queries raised.
22. In response to the queries raised, Mr.A.K.Singh, learned Senior
Advocate for the Appellant submitted that DDA had admitted the
allotment of Plot No.B-4/216 in Safdarjung Development Area to the
Appellant. As DDA failed to communicate to the Appellant the
formalities required to be completed by him, this default on the part of
DDA should have resulted in decreeing the suit. Further it was not
necessary for PW-1 to depose in so many words that he was ready and
willing to perform his part of contract as the same was required to be
gathered from the conduct of parties. He also submitted that through
letter dated 17.03.1982, Appellant meant possession of the Plot no.B-
4/216, Safdarjung Development Area only.
23. The first limb of the contentions of DDA shall be dealt with in
later part of the judgment but the second limb of the arguments
regarding modification in the policy w.e.f. 02.01.1979 and its effect on
the case of the Appellant has to be rejected in view of the
communication dated 11.04.1991 from Ministry of Urban
Development to DDA placed in DDA file. The communication reads
as under :
'No.J-13037/81/83-DDIB/IIA
Govt. of India.
Ministry of Urban Development
S.C.Sagar, April 11, 1991
Under Secretary
Dear Shri Rakesh Bihari,
Please refer to the correspondence resting with Shri Ranbir Singh's
D.O. Letter No.F.1(78)79/LSB(R) dated 15th June, 1990 regarding
allotment of plots to eight ex-members of Municipal Corporation of Delhi
and Metropolitan Council.
2. As you know, this matter was discussed in a meeting taken by the
Prime Minister on the 28th March, 1991 which was attended by Shri
R.V.Pillai, Additional Secretary, Vide-Chairman, DDA, Chief Legal
Adviser, DDA and your self. After discussion, the Prime Minister felt that
allotment could be made to those of the eight ex-Members of the
Metropolitan Council/Municipal Corporation of Delhi who are still
eligible, in order not to discriminate between the cases of MPs who were
allotted land after 2.1.1979 and these cases. Accordingly, it has been
decided by the Minister of Urban Development that the plots may be
handed over to those of the eight persons who are still eligible.
3. This may please be treated as immediate and action taken in the
matter may be reported to the Government.'
(Underlining by us)
24. Thus, the modified policy dated 02.01.1979 did not create a bar
for the DDA to allot the plot to the Appellant. Rather the obstacle, if
any, in the way of allotment of plot under the modified scheme was
cleared. It was decided to allot the plots to those eight members who
were still eligible.
25. The eligibility of the Appellant for allotment of plot was in
question as he was owning the property at Katra Baryan measuring
250 sq.yds., no demand notice was sent by DDA to him to deposit the
amount pending determination of his eligibility.
26. To understand the respective case of the parties, we felt it
necessary to start looking into the documents from the initial stage
when the entire process started. The first document is letter dated 02nd
August on the letter head of the Appellant received on 04.08.1978
vide diary No.6868-A which has been treated by the parties as an
application seeking allotment of plot by the Appellant. It reads as
under :
'No.78 Dinak 2/8
Shriman Buch ji,
Saadar Namaste.
Sambhavtah apko smaran hoga maine ek bar apse doorbhaash par
baatcheet ki thi. Mera rihayshi makaan No.2191, Gali Hanuman Prasad,
Dharampura, lagbhag chaalis gaj ke plot par bana hua hai. Yeh makan
nagar ki galiyon mein hai jo ki sara ka sara slum kshetra ghoshit kiya hua
hai. Iske atirikt lagbhag 250 gaj ki vyavsayik building 6469, Katra
Baliyan, Delhi mein hai. Yeh bhi slum kshetra mein hai.
Kripya yeh jankari dene ka kasht kare ki kya sadasyon ke liye
surakshit quote mein mere ko Delhi Vikas Pradhikaran ka koi plot diya
ja sakta hai ya nahi.
Yogya sewa,
Bhavdiya,
Sd/-
(Satyanarain Bansal)'
27. The response to the above letter by the DDA was
communication dated 04.04.1979 Ex.P2. The response is shocking
and surprising for the reason that instead of answering the query about
the eligibility of the Appellant to have a plot from the DDA under the
reserved quota, DDA communicated the decision taken in this regard
as under :-
'From : A.R.Basu
Dy. Director (Res.).
To :Sh.Satyanarain Bansal, M-MCD,
Town Hall,
Delhi-6.
Sir,
With reference to your application dated 2.8.78 I am directed to say
that it has been tentatively decided to allot you a residential plot in
Delhi/New Delhi by draw of lots.
2. In order to enable us to process your case further, you are requested
kindly to furnish the following :
(i) An affidavit on a non-judicial paper of Rs.2/- duly sworn before Oath
Commissioner or a Notary Public (in the latter event a notorial stamp of
Rs.3/- should also be affixed thereupon) to the following effect -
(a) you or your spouse or your dependent children do not own
any house or plot in the Union Territory of Delhi; and
(b) you or your spouse or your dependent children have not
already been allotted any flat by the DDA nor is any application,
for allotment of flat, pending with the DDA.
If any application is pending, its number & date, may please be spelt out
and on undertaking may be given that you are filling an application with
the Housing Branch of the DDA withdrawing your application for
allotment of a flat.
3. A specimen form of the affidavit is enclosed for facility of reference
which should be duly attested by a Magistrate/Oath Commissioner/Notary
Public.
4. Details of your annual income for each of the three years 1975-76,
1976-77 & 1977-78 may please be furnished to enable us to determine
your eligibility for the LIG or MIG plot.
5. You are also requested to send us a bank draft of Rs. 5,000/- in
favour of DDA as earnest money on or before 20.4.79 failing which it
would be presumed that you are not interest for a plot.
Yours faithfully,
Sd/-
( A.R.Basu )
Deputy Director (Res).'
28. The Appellant sent the letter dated 18.04.1979, which is :
'No.1869 Dated 18.4.79
Priye Shri Basu Ji,
Saprem Namaste.
Apka patra kramank F(3)79LSB(P) Part-I dated 4.4.1979 prapat hua.
Main do rupye ke non-judicial paper par affidavit Rs.5000/- ka draft tatha
apna niji avem HUF, jiska main karta hoon, ke vigat teen varsho ke aay-
kar ke report ki pratilipi is patra ke saath lagakar apke paas bhej raha
hoon. Aasha hai aap yathashighr plot allot karne ka kasht karenge.
Bhavdiya
Sd/-
( Satyanarain Bansal)
Shri A.R.Basu Ji,
Deputy Director (Res.)
LS Branch (Res.)
Delhi Vikas Pradhikaran,
Vikas Minar, Nayi Delhi.'
29. The date of deposit of earnest money with DDA is not known.
However, the noting dated 25.05.1979 refers to the above letter with
bank draft of Rs.5000/- with a noting that the bank draft may be
accepted. The noting dated 29.05.1979 shows that the demand draft
had been entered in EM Register No.5F/76/5 and sent to Cash Branch
for collection. The forwarding memo for acceptance of cheque/draft
dated 29.05.1979 confirms this fact.
30. From the letter dated 28.06.1979 Ex.P3 by the DDA to the
Appellant, it can be gathered that earnest money was not deposited
within stipulated time as interest was asked on account of belated
payment of earnest money before holding a draw. The
communication is to the following effect :-
'No.F1(264) 78 L&B (R) 28.06.1979
From : A.P.Basu
Deputy Director (R).
To : Sh.Satya Narain Bansal,
Member-MCD,
H.No.2191, Gali Hanuman Parsad,
Dharampura, Delhi-6.
Subject : Allotment of a residential plot.
Sir/Madam,
With reference to your letter No.1869 dated 18-4-79 on the subject
noted above, I am to say that it has been decided to hold a draw of lots for
allotment of a residential plot on Saturday the 30th June, 1979 at 4 PM in
the room of the undersigned on the First Floor, Vikas Minar, I.P.Estate,
New Delhi.
2. You are, therefore, requested please to make it convenient to attend
the draw on the date & time mentioned above. It may also be pointed out
that -
(i) Interest on account of belated payment of earnest money
will have to be paid by you before the formal allotment of the
plot.
(ii) The certificate of your income has to be in the form of a
photo stat copy of the income tax assessment order or a certificate
from the income tax officer to the effect that you have filed your
return but the assessment has not been made but in this certificate,
the figures of income return by you have to be specifically
mentioned.
(iii) In case you have furnished a certificate from your employer
regarding the salary disbursed by you, you will have to file an
affidavit on a non-judicial stamp paper of Rs.2/- that you have no
other source of income.
3. The formal allotment will be issued in your favour only after the
information on the above points have been furnished and it is found to
be in order.
Yours faithfully,
Sd/-
( A.R.Basu )
Deputy Director (R)'
31. Letter dated 05.09.1979 informing about the draw of lots to be
held on 10.09.1979 replied by the Appellant on 06.09.1979 that he
would not be able to attend the same. Though we don‟t find record
pertaining to draw of lots held on 10.09.1979 but from the
communication made in the month of September, 1979 (date not
legible), it can be discerned that final decision was yet to be taken in
the matter. The said communication reads as under :-
'F.1(264)/78-L&B(R)
Deputy Director (Res.)
Delhi Development Authority.
Shri Satya Narain Bansal,
Member, MCD, H.No.2191,
Gali Hanuman Parsad,
Dharampura,
Delhi-6.
Sub : Allotment of residential plot.
Sir,
With reference to your letter No.2363 dt. 29/6/79 on the subject noted
above, I am directed to request you to furnish the lease documents in
respect of your property bearing No.6479, Katra Baryan, Delhi in the first
instance before a final decision in regard to allotment of a residential
plot is taken.
Yours faithfully,
Sd/-
Deputy Director (Res.)
Delhi Development Authority'
32. Conditional allotment of plot No.B-4/216 in Safdarjung
Development Area was communicated vide letter dated 06.10.1979
which is to the following effect :-
'No.F.1(3)/79-L&B(R) 06.10.1979
From : A.R.Basu,
Dy. Director (R).
To :Sh.Satya Narain Bansal,
Member-MCD,
H.No.2191, Gali Hanuman Parsad,
Dharampura, Delhi-6.
Sub : Allotment of plot to Members Metropolitan Council & MCD in
Safdarjung Res. Scheme.
Sir,
In the draw held on 10/9/79, you have been found successful for plot
No.B-4/216 measuring 200 sq.yds. in Safdarjung Res.Scheme. The
allotment of this plot is subject to fulfilment of requirements already
intimated to you.
The rates of this plot is being calculated separately and would be
intimated to you in due course.
Yours faithfully,
Sd/-
( A.R.Basu )
Dy.Director (Res.)
DDA'
33. We also noticed in DDA file a letter dated 06.10.1979 from
Ravindra K.Bansal, S/o Shri Satya Narain Bansal (Appellant) handing
over the photostat copy of the certificate of sale deed dated 06.06.1963
in respect of property No.6479, Karta Baryan, Delhi. However, the
purpose could not be served as Sales Certificate did not contain the
user of the property.
34. Despite the allotment of Plot No.B-4/216 in Safdarjung
Development Area being intimated to the Appellant on 06.10.1979,
without disclosing the above communication, a concluded agreement
has been claimed on the basis of communication dated 23.04.1982
Ex.P5. The communication dated 23.04.1982 (In the copy of this
communication which is placed in Exhibited File, date „23.04.1982‟
has been changed to „27.04.1982‟ by making the digit „3‟ as „7‟ by
pen), reads as under :
'No.F.1(264)78-L&B(R) 23.4.1982
From : Dy.Director (R)
DDA.
To :Shri Satya Narain Bansal, Ex.M/MCD
Town Hall,
Delhi-110006
Sub : Allotment of Plot No.B4/216 in Safdarjung Development Area.
Sir,
I am directed to inform you that it has been decided that you will be
retaining the above said plot allotted to you through draw of lots held on
10.9.79. The other formalities required to be completed by you including
the payment of premium etc. will be intimated to you shortly.
Yours faithfully,
Sd/-
Dy.Director (R)'
35. We were finding it difficult to comprehend that the allotment of
plot in the draw of lots held on 10.09.1979 was intimated by DDA
writing that 'you will be retaining the above said plot'. We had to
check the context from the DDA file. We noticed that it was in
response to the letter dated 17.03.1982 by the Appellant to the
respondent which is extracted hereunder :-
'Shri V.S.Ailawadi Ji,
Dy. Chairman,
Delhi Development Authority,
New Delhi.
Dear Sir,
Re: Allotment of one plot of 200 sq.yds. approx. in Safdarjung
Development Area.
In this connection, it is submitted as under :
1. As Member of Municipal Corporation, Delhi I was allotted a plot of
200 sq. yds. Approx. In Safdarjung Development Area. Photostat copies
of Letter No.F1(3)79-LSB(R) Part-I dt. 4.4.79 by Shri A.R.Basu,
Dy.Director (Residence) is enclosed herewith.
2. Accordingly, I sent the Draft for the Earnest Money of Rs.5,000/- on
18.4.82, which was confirmed vide Receipt No.9134 dt. 30.06.79,
Photostat copy of which is enclosed herewith. All other formalities were
also completed.
3. In a draw of lots held on 10.09.79, Plot No.216 in Block B4/SDA was
allotted to me.
4. I was informed that the said plot is adjacent to the drain, and Shri
Buch, the then Vice Chairman, very kindly conceded to my request and
alternate plot was allotted to me in a fresh draw of lot.
Now I request you to please order that the possession of the said plot
be given to me at the earliest, since a period over 2 years has already
lapsed.
Thanking you and awaiting for your early reply.
Yours faithfully,
(Satya Narain Bansal)'
36. We note that except placing on record the policy dated
02.01.1979 under which the Appellant became ineligible to get a plot,
DDA preferred not to lead any evidence. In a suit for specific
performance, it is for the Court to thoroughly examine the evidence in
order to arrive at the conclusion whether a decree for specific
performance must be granted even if there is no serious contest in the
written statement or lack of evidence by the defendant. In the case of
Balraj Taneja and Anr. vs. Sunil Madan and Anr. (1999) 8 SCC
396, it was held as under :
'Even if there is no defence of the defendant, if the plaint itself discloses
such averments which show existence of disputed questions of facts, the
Court has to examine the facts and evidence led in the case thoroughly
and thereafter pass a detailed judgment dealing with the issues which
require to be decided for deciding the suit. Even though there is no
defence, the Court is still bound to decide whether the plaintiff has
succeeded in proving the case as made out.'
37. In the case of J.P.Builders and Anr. Vs. A.Ramadas Rao and
Anr. (2011) 1 SCC 429, the Supreme Court has held that :
'8. Section 16(c) of the Specific Relief Act, 1963 provides for personal
bars to relief. This provision states that specific performance of a contract
cannot be enforced in favour of a person,
a) who would not be entitled to recover compensation for its breach; or
b) who has become incapable of performing, or violates any essential term
of, the contract that on his part remains to be performed, or acts in fraud
of the contract, or wilfully acts at variance with, or in subversion of, the
relation intended to be established by the contract; or
c) who fails to aver and prove that he has performed or has always been
ready and willing to perform the essential terms of the contract which are
to be performed by him, other than terms the performance of which has
been prevented or waived by the defendant.'
38. Before referring to the conduct of the parties to determine the
readiness and willingness to perform their respective part or who
could be blamed for breach, we would like to enumerate the legal
position laid down in this regard in Satya Jain (D) Thr. L.Rs. and
Ors. vs. Anis Ahmed Rushdie (D) Thr. L.Rs. and Ors. AIR 2013 SC
434, which is extracted hereunder :
'25. The principles of law on the basis of which the readiness and
willingness of the Plaintiff in a suit for specific performance is to be
judged finds an elaborate enumeration in a recent decision of this Court in
J.P. Builders and Anr. v. A. Ramadas Rao and Anr. MANU/SC/0977/2010
: (2011) 1 SCC 429. In the said decision several earlier cases i.e. in R.C.
Chandiok v. Chuni Lal Sabharwal MANU/SC/0033/1970 : (1970) 3 SCC
140, N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao MANU/SC/0025/1996
: (1995) 5 SCC 115 and P.D' Souza v. Shondrilo Naidu
MANU/SC/0561/2004 : (2004) 6 SCC 649 have been noticed. To sum up,
no straitjacket formula can be laid down and the test of readiness and
willingness of the Plaintiff would depend on his overall conduct i.e. prior
and subsequent to the filing of the suit which has also to be viewed in the
light of the conduct of the Defendant. Having considered the matter in the
above perspective we are left with no doubt whatsoever that in the present
case the Plaintiff No. 1 was, at all times, ready and willing to perform his
part of the contract. On the contrary it is the Defendant who had defaulted
in the execution of the sale document. The insistence of the Defendant on
further payments by the Plaintiff directly to him and not to the Income Tax
authorities as agreed upon was not at all justified and no blame can be
attributed to the Plaintiff for not complying with the said demand(s) of the
Defendant.'
39. While agreeing with learned counsel for the Appellant that
readiness and willingness to perform part of the obligation has to be
inferred from the conduct of the parties, we may add that any self
serving statement in this regard is not sufficient to establish the
readiness and willingness on the part of the party seeking specific
performance of the agreement. The Appellant claimed that another
plot has been allotted to him in another draw of lots and sought
possession of that plot, number of which was not specified. Here we
may add that in a suit for specific performance, the suit property also
must be certain and identified. The letter dated 17.03.1982 refers to
allotment of alternate plot in a draw of lots held on undisclosed date
and without any description of the plot allotted to him in a fresh draw
of lots. Thus, there never was a concluded agreement in respect of
allotment of Plot No.B-4/216 in Safdarjung Development Area of
which specific performance could be enforced.
40. The contention of the Appellant that vide communication dated
23.04.1982 the Appellant was informed that he would be retaining the
above said plot allotted to him in the draw of lots held on 10.09.1979,
infact is a response from DDA to his letter dated 17.03.1982. Thus,
the submission of the Appellant that DDA failed to inform the
Appellant about the amount payable by him after communication
dated 23.04.1982 is neither here nor there. In the entire file
maintained by the DDA we find the correspondence exchanged by
DDA with MCD to confirm the purpose for which the building plan
was sanctioned for the property at Katra Baryan. Ultimately, it has
been revealed from the noting dated 13.05.1991 that as per MPD-62,
the land use of the property in question is „Residential‟. Thus, he was
not eligible to get the plot under the said scheme.
41. We record here that the letter dated 17.03.1982 placed in DDA
file, which was neither pleaded nor proved, has played a major role in
decision of this appeal. Apart from the reasons given by learned
Single Judge in arriving at the conclusion that the Appellant was not
ready and willing to perform his part of obligation, we go a step ahead
by recording that the Appellant rejected the offer in respect of Plot
No.B-4/216 in Safdarjung Development Area. Rather the contents of
the letter dated 17.03.1982 reveal that he persuaded the then Vice
Chairman, DDA for change of Plot No.B-4/216, Safdarjung
Development Area as it was adjacent to the drain. Further the
Appellant also claimed that his request for change of plot had been
conceded to and alternate plot was allotted to him in a fresh draw
of lots. Thus, through letter dated 17.03.1982, the Appellant was
seeking possession of the alternate plot allotted to him in a fresh draw
of lots. In the legal notice dated 08.04.1985 Ex.PW1/7, no such fact
was incorporated.
42. Learned senior counsel for the Appellant tried to explain the
words "possession of the said plot" written in the above said letter to
be the plot bearing No.B-4/216, Safdarjung Development Area. In
view of the clear unambiguous contents of the letter dated 17.03.1982
we are unable to accept this interpretation.
43. From the above referred documents, the inescapable conclusion
is that DDA was hell bent upon handing over the possession of a plot
to the Appellant, but the only hurdle in the way was that the Appellant
owned a property bearing No.6479 measuring 250 sq.yds. in Karta
Baryan, Delhi. Faced with the situation that to determine the
eligibility criteria of the Appellant, the commercial use of the property
or its assessment as commercial property was not material and only
the building plan sanctioned for construction of the property could
have determined the user to be residential or commercial, DDA
entered into correspondence with MCD which started in the year 1980
and continued till 1991 but the requisite information remained elusive.
We note that as per MPD-1962, the land use of the property in
question was „Residential‟ as recorded in the noting dated 10.05.1991.
If it was so, then the Appellant did not satisfy even the basic eligibility
criteria for allotment of a plot under the Scheme. It is undisputed that
after purchasing the property in the year 1963, the Appellant got it
reconstructed. The sanction plan could have been in the power and
possession of the Appellant which could not be produced by him.
44. In DDA file, we noticed various communications by DDA to
MCD to ascertain the purpose for which the building plan was
sanctioned for construction on plot No.6479, Katra Baryan as well the
communications by the MCD to DDA as response to the
communications received and also certain communications by DDA
(Director Lands) to DDA (Director - DC&P). The list of such
communications is :-
Sl.No. Date From To
1. 29.01.80 Dy.Director(R), DDA Executive Engineer
(Bldg), MCD
2. 29.01.1980 Dy.Director (R), DDA Assessor & Collector
MCD
3. Undated DDA Executive Engineer
(Bldg), MCD
4. 24.06.82 Dy.Director(R), DDA Executive Engineer
(Bldg), MCD
5. Undated DDA Assessor & Collector
MCD
6. 30.04.82 Dy.Director (R), DDA Executive Engineer
(Bldg), MCD
7. 24.08.82 Asstt.Assessor & Collector, Dy.Director(R), DDA
S.P.Zone, MCD
8. Undated DDA Executive Engineer
(Bldg), MCD
9. 08.11.82 Dy.Director(R), DDA Executive Engineer
(Bldg), MCD
10. Undated Dy.Director(R),DDA Executive Engineer
(Bldg), MCD
11. 08.09.83 Executive Engineer (Bldg), Dy.Director (R), DDA
MCD
12. 20.09.83 Town Planner Executive Engineer
(Bldg), MCD
13. Undated Dy.Director(R), DDA Executive Engineer
(Bldg), MCD
14. 17.11.83 Dy.Director(R), DDA Executive Engineer
(Blets), MCD
15. Undated DDA Executive Engineer
(Blets), MCD
16. 06.07.84 Dy.Director(R), DDA Executive Engineer
(Blets), MCD
17. Undated DDA Executive Engineer
(Bldg), MCD
18. Undated Dy.Director, DDA Executive Engineer
(Bldg), MCD
19. 16.01.90 Dy.Director(LA), DDA Executive Engineer
(Bldg), MCD
20. 19.04.91 Director (Lands), DDA Director (DC&P), DDA
21. 06.05.91 Director (Lands), DDA Director (DC&P), DDA
45. Various communications by DDA to the office of MCD leads to
inescapable conclusion that without there being even an application
for allotment of plot (we have already noted the contents of letter
dated 02.08.1978 which was only to seek information about the
eligibility under the Scheme) right from the outset, that is, w.e.f.
04.04.1979 till the filing of the suit, DDA was willing to perform its
part of the obligation. It was the Appellant who not only failed to
prove that he was ready and willing to fulfil the obligation but also
failed to satisfy the test of eligibility criteria. Learned Single Judge
rightly arrived at the conclusion that it was not a case where the
Appellant/Plaintiff should succeed in having a decree for specific
performance. Resultantly, the appeal must fail.
46. The appeal is hereby dismissed with costs. DDA File bearing
No. F.1(264)78/L&B(R) be returned to learned counsel for the DDA.
(PRATIBHA RANI)
JUDGE
(REVA KHETRAPAL)
JUDGE
September 24, 2013
'st'
