Delhi High Court
Delhi Development Authority vs Veer Singh on 18 December, 2015
Author: Vipin Sanghi
$~22.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 18.12.2015
% RSA 415/2015
DELHI DEVELOPMENT AUTHORITY ..... Appellant
Through: Ms. Mrinmoi Chatterjee, Advocate.
versus
VEER SINGH ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
C.M. No.29103/2015
1. Exemption allowed subject to all just exceptions.
2. The application stands disposed of.
RSA 415/2015 and C.M. Nos.29101-102/2015
3. By the aforesaid application being C.M. No.29101/2015, the appellant
seeks condonation of 199 days delay in filing the present second appeal. I
have heard learned counsel for the appellant on the said application as well
as on merits. Since I am not inclined to issue notice in the second appeal,
there would be no purpose in directing issuance of notice in the delay
RSA 415/2015 Page 1 of 6
application, even if the said delay is considered to be justified. Accordingly,
I proceed to dispose of the present appeal.
4. The appellant/ DDA has filed the present second appeal to assail the
judgment & decree passed by the First Appellate Court, namely the learned
Additional District Judge-05, Central District, Tis Hazari Courts, Delhi in
RCA No.13/2013 preferred by the appellant/ defendant. The First Appellate
Court has dismissed the said first appeal and affirmed the judgment &
decree dated 17.01.2013 passed by the learned Trial Court, namely the Court
of the learned Civil Judge (West), Tis Hazari Courts, Delhi in Suit
No.240/2008 titled Sh. Veer Singh Vs. Delhi Development Authority &
Another.
5. The respondent/ plaintiff had filed the said suit to seek relief of
mandatory & permanent injunction on the premise that he is the son and
nominee of late Smt. Dhanno Devi, who was inhabitant of Ashoka Pahari,
Faiz Road, Karol Bagh, New Delhi. She was one of the settlers, who
occupied a piece of land in Karol Bagh, New Delhi known as Ashoka
Pahari. He stated that the defendant formulated a plan for re-development of
Ashoka Pahari area on 17.11.1998. The inhabitants of Ashoka Pahari area
were evicted after conducting survey in July 2001. The evictees under the
rehabilitation policy of the appellant/ defendant were entitled to residential
and commercial units within the re-developed area of Ashoka Pahari. The
name of the plaintiff's mother Smt. Dhanno Devi was mentioned at serial
No.175 in the survey list. The plaintiff's mother was shown at T-2360,
residential area. The mother of the plaintiff filed the option application for
allotment of LIG/MIG flat at Ashoka Pahari area, which was accepted by the
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DDA with the requisite amount for registration by the office of Dy. Director
(LM) NZ, Pitampura. The plaintiff's mother Smt. Dhanno Devi died on
10.09.2002.
6. Since the DDA was not implementing the aforesaid policy, a writ
petition was preferred before this Court by the Weaker Section Welfare and
Rehabilitation Society representing the evictees of Ashoka Pahari area,
being W.P. No. 17785/2004. In those proceedings, on 29.08.2005, the Court
directed initiation of construction work of the flats and shops and for
allotment within three years. Despite the said direction, initially the action
was not taken. On 01.09.2006, the Director (LM) of DDA submitted a
detailed report to the Director (R) stating that the mother of the plaintiff was
not entitled to allotment of flat. The claim of the petitioner was rejected on
21.04.2003. The rejection was premised on the ground that Smt. Dhanno
Devi had sold the Government land to one Sh. Avtar Singh, and
consequently, both the seller and the purchaser were not entitled to claim
allotment of flat.
7. Aggrieved by the same, initially the plaintiff represented to the
defendant on 23.11.2006 - denying that his mother had sold the land bearing
No.T-2360, Ashoka Pahari, Karol Bagh, New Delhi to Sh. Avtar Singh.
8. The plaintiff then filed the suit clearly stating that it was only the
Malba of a small room, which was sold by Smt. Dhanno Devi to
Sh.Hardarshan S/o Sh. Avtar Singh, and Sh. Avtar Singh had even given a
clarificatory letter to the defendant on 15.11.2006 stating that his son had
never purchased any Government land bearing No.T-2360, Ashoka Pahari,
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Karol Bagh, New Delhi from Smt. Dhanno Devi. He stated that his son had
only purchased the Malba of one room 13 ft. × 8 ft. of the property bearing
T-2360. It was further stated that Government land could not be transferred,
nor could it be sold or purchased by anybody. The plaintiff, consequently,
sought a mandatory injunction against the appellant/ DDA to seek a
direction that the DDA considers the case of the respondent/ plaintiff for
allotment and for restoration of the entitlement of the plaintiff. In the
written statement, the appellant reiterated its decision that Smt. Dhanno
Devi had sold her entitlement in respect of T-2360 to Sh. Hardarshan.
9. The Trial Court framed the issues; one of the primary issues being
whether the plaintiff is entitled to the decree of mandatory injunction, as
prayed for. The plaintiff led his evidence. In his evidence, he, inter alia,
proved the clarification letter from Sh. Avtar Singh as Exhibit PW-1/7. He
also produced Sh. Avtar Singh as PW-2, who deposed that his son had not
purchased any land from Smt. Dhanno Devi and that he had only purchased
the Malba. The defendant/ DDA in its evidence produced the policy sought
to be relied upon, which was marked as Mark B. The defendant's witness
DW-1- the Field Investigator of the DDA, admitted that Smt. Dhanno Devi
was in possession at the time of demolition. He also admitted that policy
Mark B was not notified at the time of rejection of claim of Smt. Dhanno
Devi. The Trial Court returned finding in favour of the plaintiff that Smt.
Dhanno Devi was not disentitled to allotment, as there was no merit in the
defendant's claims that she had sold her right of allotment to Sh. Hardarshan
Singh. Pertinently, the so-called agreement, whereby Smt. Dhanno Devi
allegedly sold her right in T-2360 to Sh. Hardarshan Singh was not even
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exhibited before the Trial Court. Consequently, the Trial Court directed the
defendant to consider the case for allotment of flat to the plaintiff and his
name was restored at serial No.61 of the survey list.
10. The appellant has placed on record the agreement to sell stated to
have been executed between Smt. Dhanno Devi and Sh. Hadarshan Singh
along with the present appeal. However, the same has not been duly proved
before the Court, and is of no avail. In any event, a perusal of the same
shows that the same pertains to the Malba situated at T-2360. It does not
pertain to the property as such.
11. The First Appellate Court has concurred with the said finding of the
Trial Court.
12. The submission of learned counsel for the appellant is that a perusal
of the agreement to sell dated 10.09.1998 between Smt. Dhanno Devi and
Sh. Hardarshan Singh would show that the same pertained to the super
structure at property No. T-2360, and not to the Malba. She submits that
under the rehabilitation scheme, allotment could not be made to a person,
who either sells or transfers his right of allotment to any other person, or to
the person who acquires such a right. Since the scheme was formulated for
rehabilitation of the encroachers, who had no vested right in the land
encroached upon by them, the right conferred upon the encroacher was not
transferable.
13. Having heard learned counsel and perused the judgments of the
Courts below, I am of the view that there is absolutely no merit in the
present second appeal. The policy relied upon, admittedly, came in the year
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2004, whereas the cancellation took place in the year 2003. The so-called
agreement to sell is dated 10.09.1998. Even if the same were to be
considered, the said policy could not have been given retrospective effect.
Moreover, the agreement to sell only pertains to the Malba. Pertinently,
Sh.Avtar Singh, father of Sh.Hardarshan Singh was produced as a witness of
the plaintiff, who also testified that only the Malba had been purchased by
his son. The defendant's witness admitted during his cross-examination that
at the time of demolition, Smt. Dhanno Devi was in possession of the super
structure. Learned counsel for the appellant on a query by the Court states
that no other person - including Sh. Hardarshan, had staked a claim for
allotment in respect of the claim arising out of occupation of Smt. Dhanno
Devi, under the rehabilitation scheme.
14. The two Courts below have returned concurrent findings of fact and
the appellant has not been able to point out any perversity in the impugned
judgment calling for interference by this Court. The appeal is, accordingly,
dismissed.
VIPIN SANGHI, J.
DECEMBER 18, 2015
B.S. Rohella
