Delhi Development Authority vs Dalip Kumar
2017 Latest Caselaw 5151 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No. 52/2017

%                                                 18th September, 2017

DELHI DEVELOPMENT AUTHORITY                ..... Appellant
                Through: Mr. Sanjeev Sagar, Advocate.

                          versus

DALIP KUMAR                                             ..... Respondent

                          Through:       Mr. Jasbir Singh, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

RSA No. 52/2017 and C.M. Appl. No. 5549/2017 (for stay)

This second appeal though categorized as Regular Second Appeal,

since however the challenge is to the orders passed by the court below

in execution proceedings, this matter be designated as Execution

Second Appeal and the Registry of this Court is directed accoedingly.

1. This Regular Second Appeal under Section 100 of the

Code of Civil Procedure, 1908 (CPC) has been filed by the Delhi

Development Authority (DDA) against the concurrent orders of the

first appellate court and the original executing court dated 23.9.2016

and 4.3.2013 respectively, passed in the execution proceedings filed

by the respondent/decree holder and who is the son of the original

plaintiff/decree holder. By the impugned orders, the appellant/DDA

has been directed to allot a plot No.F-1-U/11, Pitampura, New Delhi

admeasuring 162.44 sq. yards to the decree holder being the

respondent herein.

2. The initials of Delhi Development Authority are DDA.

DDA also is referred to as Don't Do Anything. Appellant/DDA has in

the facts of the present case crossed all sensibilities and civilities

required for the common citizens of this country, and there cannot be

better angst expressed against the appellant/DDA than what is

observed in the first para of the impugned judgment of the first

appellate court and this para reads as under:-

"The proverbial excesses of the mighty State comes to the fore in the present case where one instrumentality of the State, a statutory authority i.e Delhi Development Authority, leaves no stone unturned in shamelessly making mockery of the entire legal system in its attempt to deny the fruits of a decree to a hapless common man and in the process, proving to be Orwellian "Big Brother" to the hilt. A plot of land measuring 200 sq. yards was allotted to the plaintiff in the year 1975, possession of which is yet to be obtained by him, leave aside its peaceful enjoyment. Instead plaintiff was entangled in the web of multiple litigations to such an extent that despite having a decree in his favour, which has been upheld lastly by the Hon'ble Supreme Court, he is desperate to negotiate and be contended with a plot at the mercy of the Authority. The present is a classic case where the State has surpassed all limits to step into the shoes of chronic litigant in order to cover up the mistakes committed by its officials instead of taking stern action against them."

3. In the present case, there have been various earlier

proceedings between the parties, in terms of the suit filed by the father

of the present respondent/plaintiff/decree holder and which was

decreed right till the Supreme Court, and also the decree being passed

in the subject suit which has resulted in the present execution

proceedings, and which decree in the subject suit in favour of the

decree holder has been again confirmed right till the Supreme Court.

The first appellate court has very exhaustively referred to these

litigations in para 6 of its impugned judgment, and since I can do no

better, I would like to reproduce para 6 of the impugned judgment of

the first appellate court, and which para reads as under:-

"6. As per record, the facts of the case are that in 1969, one shop no.B- 216 in New Subzi Mandi, Azadpur, Delhi was allotted to M/s Bhullan Singh & Company by the defendant/DDA. Shri Bhullan Singh had applied vide application dated 18.08.1975 for allotment of plot under the special scheme of DDA formulated for the allotment of residential plot to the allotees of shop/plot in New Subzi Mandi, Azadpur, Delhi and consequently, the plot no. BJ-47 admeasuring 200 sq. yards in Shalimar Bagh, Delhi was allotted vide an allotment-cum-demand-letter dated 30.09.1975 in lieu of surrender/restoration of Shop No.B-216, New Subzi Mandi, Azadpur, Delhi. Subsequently, vide letter dated 26.06.1987, the allotment of Shalimar Bagh plot was cancelled as the allotment of Shop No.B-216, New Subzi Mandi, Azadpur, Delhi was cancelled and accordingly, the same could not be restored in lieu of which, the said residential plot was allotted. Shri Bhullan Singh filed a suit no.145/1979 challenging the cancellation of allotment of his afore-said shop, which was decreed vide judgment dated 23.04.1982. The defendant/DDA filed an appeal against the said judgment, however, the appeal was dismissed vide order 07.02.1987. The defendant/DDA preferred a second appeal before the Hon'ble High Court of Delhi, which was also dismissed vide order dated 20.01.1988. The defendant/DDA, therefore, restored the allotment of Shop No.B-216, New Subzi Mandi, Azadpur, Delhi and thereafter, Shri Bhullan Singh applied for

restoration of allotment of the plot No.BJ-47 at Shalimar Bagh earlier allotted to him, which was refused by the defendant/DDA. Again, Shri Bhullan Singh filed suit bearing no.552/1990 for declaration, possession and mandatory injunction for the Shalimar Bagh plot. During the course of proceedings, Shri Bhullan Singh expired and Shri Dalip Kumar, his sole legal representative was brought on record. The suit bearing no.552/1990 was decreed vide order dated 15.03.2002 by the Ld. Civil Judge, Delhi thereby declaring the cancellation of allotment of residential plot in Shalimar Bagh as illegal and null & void. Defendant/DDA was directed to restore the possession of the Shalimar Bagh plot to the plaintiff. The defendant/DDA then preferred a first appeal before the court of Ld. ADJ vide RCA No.06/2006 (Old No.01/2002) against the judgment and decree dated 15.03.2002, which was allowed by the Ld. ADJ, Delhi and the suit of the plaintiff was dismissed. Thereafter, the plaintiff filed regular second appeal bearing RSA No.188/2008 before the Hon'ble High Court, which was allowed vide order dated 19.05.2011 thereby decreeing the suit. The Special Leave Petition bearing no.19156/2011 preferred by the defendant/DDA before the Hon'ble Supreme Court of India was dismissed vide order dated 16.11.2011. The judgment and decree dated 15.03.2002 passed by the Ld. Civil Judge, Delhi decreeing the suit of the plaintiff, therefore, attained finality.

Meanwhile, the decree holder (DH)/plaintiff had filed an execution application before the Ld. Civil Judge, Delhi wherein for the first time, the judgment debtor (JD)/defendant disclosed to the Ld. Executing Court by filing the objections that the Shalimar Bagh plot was already allotted to one Shri Lakhmi Chand Jain even prior to the filing of the suit. The afore-said objections of the JD/defendant were dismissed by the Ld. Executing Court vide order dated 07.02.2003 observing that the JD/defendant was trying to set up a new case, which was not taken by it for the last thirty years nor any documents of such allotment in the name of Shri Lakhmi Chand Jain were filed on record. The other pleas of JD/defendant regarding entitlement of Shri Bhullan Singh for the allotment were also declined by the Ld. Executing Court.

During the course of execution proceedings, the JD/defendant considered the name of the DH/plaintiff for allotment of available plot measuring 200 sq. yards in similar and adjoining locality and held a computerized mini draw on 14.02.2012, specially and only for the DH/plaintiff in his presence, wherein he was declared successful in respect of plot no.190, Pocket A-3, Sector-34, Rohini Residential Scheme. The DH/plaintiff filed objection against the afore-said allotment in Rohini area alleging that the allotted plot is situated in an undeveloped area and is at a distance of 22 kilometers away from Shalimar Bagh. Vide order dated 28.08.2012, the objections of the DH/plaintiff were disposed off directing the JD/defendant to allot plot no.BJ-47, Shalimar Bagh and if the same had already been allotted to some third person, the record of the same was to be filed. In that eventuality, the defendant was also directed to allot plot measuring 189.63 sq. mtr in Janak

Puri, which was earlier attached by the Ld. Executing Court on 16.01.2004 under Order 21 Rule 54 CPC.

Subsequently, on 04.01.2013, it was explained to the Ld. Executing Court that after the suit of the plaintiff was dismissed in RCA No.06/2006 by the Ld. ADJ in the year 2008, the Janak Puri plot was allotted in 2009 to one Shri Nikhil Anand and Smt. Vibhuti Anand in compliance of order dated 19.04.2006 of the Hon'ble High Court and that is why the Janak Puri plot was not available to the allotted to the DH/plaintiff.

Thereafter, the DH/plaintiff filed two applications, one for attachment of the properties mentioned in the list of vacant plots and issuance of warrants of arrest of Vice Chairman/DDA and another application under Section 151 read with Order 39 Rule 1 & 2 CPC for restraining the JD/defendant to dispose off the plot in the auction to be held on 13.03.2013 and 14.03.2013. Both the afore-said applications were disposed off by the Ld. Executing Court by way of impugned order whereby the defendant was directed to withdraw Plot no.F-1-U/11, Pitam Pura, Delhi admeasuring 162.44 sq. yards from the auction and allot the same to the DH/plaintiff and to complete the necessary documentation on or before 11.03.2013. The afore-said plot was also attached until it is handed over to the DH/plaintiff. Feeling aggrieved, the JD/defendant once again, preferred the present appeal against the impugned order."

4. A reading of the aforesaid para of the impugned judgment

of the first appellate court makes it clear that decree in the first suit

bearing No.145/1979 setting aside cancellation of allotment of the

New Subzi Mandi shop of the father of the respondent/plaintiff/decree

holder, and passed on 23.4.1982, became final when the RSA under

Section 100 CPC filed by the appellant/DDA was dismissed in terms

of the judgment dated 20.1.1988. The decree dated 15.3.2002 passed

in the second Suit No. 552/1990 for direction to declare cancellation

of the plot in Shalimar Bagh, and which allotment was granted on

account of allotment of the shop in Subzi Mandi, as illegal and null

and void and to restore possession of the Shalimar Bagh plot also

achieved finality right till the Supreme Court on the Supreme Court

dismissing the SLP on 16.11.2011. Therefore the effect of the two

decrees dated 23.4.1982 in Suit No.145/1979 and dated 15.3.2002 in

Suit No.552/1990 was that the respondent/decree holder/his father

became entitled to the allotment of the shop no.B-216 in New Subzi

Mandi, Azadpur, Delhi and on allotment of this shop at Subzi Mandi

the decree holder also beame further entitled to allotment of a plot in

Shalimar Bagh, New Delhi. The finalities of these decrees therefore

cannot be questioned by the appellant in the execution proceedings

and the issue only remains of compliance of the judgment and decree

dated 15.3.2002 passed in Suit No.552/1990.

5. The issue arises with respect to compliance because in

execution proceedings the appellant mysteriously and for the first time

stated that the plot at Shalimar Bagh, New Delhi could not be allotted

to the respondent/decree holder/his father because that plot of

Shalimar Bagh was already allotted to some other allottee. Then

comes the issue that there was also prayed allotment of an alternative

plot instead of at Shalimar Bagh at near-by location to Shalimar Bagh

of Janakpuri, and to this argument appellant stated that as per its

record even the Janakpuri plot was allotted to someone else during the

pendency of the Suit No.552/1990. The appellant for compliance of

the judgment and decree dated 15.3.2002 sought to allot a plot which

is 22 kms away from Shalimar Bagh in Rohini Residential Scheme

and that too in an area which was not fully developed, and therefore

the respondent/decree holder desired that instead of allotting a plot 22

kms away in a yet to be fully developed colony, the respondent/decree

holder should be allotted a plot in around the area of Shalimar Bagh

and one such plot which was available was a plot which has been

attached by the executing court in the execution proceedings being

plot no.F-1-U/11, Pitampura, Delhi admeasuring 162.44 sq. yds.

Though allotment had to be of a 200 sq. yds. as the original plot to be

allotted at Shalimar Bagh was of 200 sq. yds., however the plot at

Pitampura was directed to be allotted to the respondent/decree holder

by the order of the executing court dated 4.3.2013 noting that the

respondent/decree holder was satisfied with the size of the plot at

Pitampura being only of 162 sq. yds. instead of 200 sq. yds. It may be

noted that this plot in Pitampura was attached by the executing court

in terms of the application for attachment which was filed by the

respondent/decree holder stating that this plot was available in

Pitampura area which is adjacent to Shalimar Bagh area and this plot

therefore be attached and be allotted to the respondent/decree holder in

satisfaction of the claim of the respondent/decree holder in terms of

the judgment dated 15.3.2002 in Suit No.552/1990. Also it may be

noted that there is no quarrel with the fact that the respondent/decree

holder has to be allotted an alternative plot inasmuch as appellant had

earlier admittedly sought to allot the alternative plot around 22 kms

away in Rohini Residential Scheme. Therefore there is absolutely no

illegality in the impugned orders directing that the respondent/decree

holder be allotted the plot no.F-1-U/11, Pitampura, New Delhi

admeasuring 162.44 sq. yds. in satisfaction of the decree dated

15.3.2002 in Suit No. 552/1990. The court below in this regards has

rightly relied upon Order XXI Rule 32 CPC.

6. Learned counsel for the appellant sought to argue that as

per the policy of alternative allotment, respondent/decree holder was

rightly allotted the plot in the Rohini Residential Scheme, and that in

fact he could not even have been under the allotment policy be allotted

a plot in the residential scheme, and which argument in my opinion

not only is wholly misconceived but a travesty of justice because this

very argument was taken up by the appellant before this Court in RSA

No. 188/2008 and which argument was rejected by a learned Single

Judge of this Court by allowing the RSA No. 188/2008 in favour of

the present respondent/decree holder in terms of the judgment dated

19.5.2011 and an SLP against which was dismissed by the Supreme

Court on 16.11.2011. This aspect has been rightly dealt with by the

first appellate court in its impugned order in para 8 and this para reads

as under:-

"8. The contentions of the JD/defendant regarding no allotment of alternative plot in developed areas were considered by the Ld. Executing court twice, firstly-vide order dated 04.03.2013 while dismissing the objections of the JD/defendant, holding that the policy of DDA in case of alternative plot, was wholly implicable to the case of the DH/plaintiff and secondly-by way of impugned order again holding that the case of the DH/plaintiff was not of an alternative allotment in lieu of some acquisition proceedings. Once again, this contention of the JD/defendant was rejected by the Hon'ble High Court vide order dated 19.05.2011 passed in RSA no.188/08, clearly laying down that the case of the DH/plaintiff was not falling within the policy of the DDA regarding allotment of alternative plots. The Hon'ble High Court categorically laid down that the DH/plaintiff was not allotted the plot because of acquisition of his land, but his allotment was in lieu of this shop at New Subzi Mandi, Azadpur, which was amply clear from the allotment letter dated 30.09.1975 (Ex.PW-1/5),wherein it was clearly stated that the same pertained to a scheme of allotment of residential plot to the allottees of shops/plots held by them in New Subzi Mandi, Azadpur under the special scheme. The SLP No. 19156/2011 preferred by the JD/defendant against the afore-said order of the Hon'ble High Court was dismissed by the Hon'ble Supreme Court."

7. I may note that the first appellate court while dismissing

the first appeal filed by the present appellant in terms of the impugned

judgment dated 23.9.2016 had imposed exemplary costs of Rs.5 lacs

in the facts of the present case against the appellant besides further

directing payment of Rs.50,000/- to the Delhi Legal Services

Authority. Appellant however is no wiser and insists on pursuing its

illegal stands to the detriment of the common citizen of this country as

if the Don't Do Anything/DDA has really nothing else to do but harass

the common man. I would also in fact further add that possibly there

is something more playing in the minds of certain officers of the DDA

and which intentions are not benign but only are for malafidely

denying benefit of the litigation to the decree holder, and which

litigation started in the year 1979 and today we are in the year 2017 i.e

around 39 years later.

8. This appeal is therefore dismissed with further costs of

Rs.1,00,000/- payable to the respondent/decree holder, and this costs

will be recovered by the appellant/DDA equally and proportionately

from each of its officers/employees who have ordered and directed

that objections and the appeals be filed and the respondent/decree

holder be not granted the plot being plot no.F-1-U/11, Pitampura,

Delhi and as has been directed as per the impugned order. Besides

costs of Rs.1,00,000/- to be proportionately recovered by the

appellant/DDA from its officers/employees for being paid to the

respondent/decree holder, the Vice Chairman of DDA is directed to

immediately set up a two persons enquiry committee within a period

of two weeks from today and in such enquiry committee to be

constituted of the senior most officers of the appellant/DDA, all those

employees of the appellant/DDA who have authorized filing of

objections to the execution proceedings of the respondent/decree

holder and thereafter the appeals so as to deny benefit of the judgment

and decree dated 15.3.2002 in Suit No. 552/1990, accountability of

such persons be fixed and Vice Chairman of the DDA is directed to

take strict departmental actions in accordance with the service rules of

the appellant/DDA which would require strict integrity, sincerity and

performance of duties by the officers/employees of the appellant/DDA

as public servants. If so required, and if it is found by the enquiry

committee that in fact besides wholly unjustified filing of objections in

the execution proceedings and the appeals, the concerned

officers/employees are possibly guilty of any offence under any laws

of this country, then, the enquiry committee can also make necessary

recommendations. The enquiry committee of the two of the highest

placed officers of the DDA are directed to ensure that they give their

report to the Vice Chairman of the DDA within a period of three

months from today and the Vice Chairman of the DDA will thereafter

take necessary consequential action.

9. I may note that this Court has received a series of cases

where the officers of the DDA are taking rank illegal actions. Another

recent judgment delivered by this Court is as recently as on 6.9.2017

in Ex.S.A. No.3/2017 titled as Delhi Development Authority Vs. M/s.

Trilok & Co. & Anr. There are also earlier judgments, and therefore,

it is high time that the Vice Chairman of the DDA should streamline

the legal decisions which are taken, in terms of a policy to be framed,

as to whether or not a court case should or should not be

filed/contested, especially in facts as existing in the present case and

as has been stated in Ex.S.A. No.3/2017 decided on 6.9.2017. This

Court is constrained to pass directions which have been issued in the

present judgment because it is quite clear that certain officers of the

appellant/DDA do not understand the difference between rule of law

and rule of autocrat coalescing into the rule of jungle.

10. List before this Court for complying of directions in

terms of the present judgment on 21st December, 2017.

SEPTEMBER 18, 2017                          VALMIKI J. MEHTA, J
Ne/ib/AK