Kiran Kaur And Anr. vs Delhi Development Authority
2020 Latest Caselaw 2739 Del

$~A-38
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                                   Date of decision: 28.09.2020
+      W.P.(C) 13475/2019
       KIRAN KAUR AND ANR.                                       ..... Petitioners
                    Through                    Mr.Deepak Anand, Ms.Hemlata
                                               Rawat      and    Mr.Aayushmaan
                                               Vatsyayana, Advs.
                              versus

       DELHI DEVELOPMENT AUTHORITY           ..... Respondent

                    Through Mr.Mohammad          Yunus       and
                            Ms.Shahana Farah, Advs. for R-1/
                            DDA.
                            Mr.Manas Tripathi, Adv. for R-2

       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.(ORAL)

This hearing is conducted through video conferencing. CM APPL. No.23628/2020

1. This application has been filed by respondent No.1/DDA seeking recalling of the order of this court dated 26.02.2020 and for hearing of the writ petition on merits.

2. On 26.02.2020, this court disposed of the writ petition with the follow ing order:

"1. Ms. Shahana Farah, who, appears for the respondent no.1/ DDA says that pursuant to the last order passed by this Court on 20.12.2019, she has obtained instructions.

2. According to Ms. Shahana Farah, the excess amount available with the DDA is Rs. 39,82,000/-.

3. As noticed on the previous date, there was a possibility of one Mr. Vikas Shokeen claiming a right in the excess amount available with the DDA.

4. Accordingly, Mr. Vikas Shokeen was arrayed as a party to the present proceedings and notice was issued to him.

5. Today, Mr. Sumeet Prakash, Advocate has entered appearance on behalf of Mr. Vikas Shokeen.

6. Mr. Sumeet Prakash says that Mr. Vikas Shokeen will have no objection to the aforementioned excess amount being released by the DDA to the petitioners.

7. Given the aforesaid submissions advanced by counsel for parties, DDA is directed to remit Rs. 39,82,000/- to the petitioners in the following manner.

(i) Fifty percent (50%) of the amount will be released in favour of petitioner no. 1 while the balance amount will be released in favour of petitioner no. 2.

(ii) Payments will be made via bank drafts.

8. Insofar as the claim for interest is concerned, the petitioners will be at liberty to take recourse to an appropriate remedy, albeit, as per law. If any such action is filed, DDA will be free to take recourse to every possible defence available to it in law and/or on facts.

9. The writ petition, as prayed, is accordingly, closed.

10. DDA will ensure that the money is remitted to the petitioners as directed above within three weeks from the date of receipt of a copy of the order.

11. Renotify the matter for compliance on 21.04.2020.

12. I am informed by Mr. Sumeet Prakash that he filed his vakalatnama with the Registry of this Court on 26.02.2020 vide diary no. 295491/2020. A copy of the same has been handed over in the Court.

13. For the purposes of good order and record, the Registry is directed to scan and upload the same."

3. Hence, as per the aforesaid order, respondent No.1/DDA was directed to remit the sum of Rs.39,82,000/- to the petitioners in the stated manner. The said remittance was to be done within three weeks from the date of receipt of a copy of the order. The matter was fixed for compliance on 21.04.2020.

4. Respondent No.1/DDA failed to comply with the aforesaid directions of this court dated 26.02.2020. Hence, the petitioner filed an application being CM No.16341/2020 seeking early hearing of the matter and pointing out the conduct of DDA. This matter was listed before the court on 24.07.2020 when notice was issued to respondent No.1/DDA. On 14.08.2020, a statement was made by the learned counsel for respondent No.1/DDA that on studying of the files, respondent No.1/DDA, learnt of some fraud in the matter. Learned counsel for respondent No.1/DDA sought some time to file an appropriate application for modification of the order dated 26.02.2020. It was manifest that six months after the order dated 26.02.2020 when the matter was listed in court for non-compliance of the order, the plea of fraud was raised for the first time. In these facts and circumstances, notice was issued to the Principal Commissioner, Land Disposal, DDA as to why contempt proceedings be not initiated against him by the court.

5. On the last date of hearing, the present application being CM APPL. No.23628/2020 was filed by respondent No.1/DDA seeking recall of the order dated 26.02.2020.

6. It is clear that despite a direction by this court on 26.02.2020, respondent No.1/DDA failed to abide by the said directions. When an application was filed to point out the aforesaid act of respondent No.1/DDA, respondent No.1/DDA has suddenly woken up claiming that there is a fraud and hence the amount as directed by this court cannot be paid. Seven months after the order of this court dated 26.02.2020, respondent No.1/DDA has now woken up and has filed the present application seeking recalling of the order dated 26.02.2020. In my opinion, the conduct and delay on the part of respondent No.1/DDA in moving this application itself warrants dismissal of the application.

7. Be that as it may, as there are allegations being made against the petitioner, I have also gone into the merits of the submissions made in the present application.

8. As per the said application, it is pleaded that on a close scrutiny of the matter and from the pleadings, respondent No.1/DDA learnt that the petitioners alongwith respondent No.2(Sh. Vikas Shokeen) had conspired to cheat and cause loss to the public exchequer and also played a fraud upon DDA. The petitioners and Sh. Vikas Shokeen entered into an agreement to sell on 10.08.2010 which was illegal and against the terms and conditions of allotment by DDA specifically clause 5(a) of the Perpetual Lease. The petitioner, it is pleaded, was not entitled to sell the plot to any person for a period of 10 years from the date of allotment without prior approval from the competent authority. Thereafter, the petitioners entered into a memorandum

of settlement with Sh. Vikas Shokeen on 03.08.2016. It is pleaded that all these facts were never brought to the notice of DDA and on the contrary the claim of the petitioner was that excess money was deposited by her due to some court case. It is only before this court that the petitioners disclosed that she had executed an agreement to sell after the allotment in her favour. Reliance is placed on documents executed by the petitioner to claim that the petitioner's case before DDA was that she was in possession and never sold the property to anyone.

9. It is further stated that the petitioner claims that Sh. Vikas Shokeen had deposited certain amounts with DDA without any contractual obligation. At the same time, the petitioner had also deposited the said amount. It is pleaded that there is no explanation as to why two payments have been made simultaneously. It is further pleaded that the amounts deposited by Sh. Vikas Shokeen is a device adopted by property dealers in active connivance with allottees to enable the allottees to wriggle out of the clause which prohibits allottees from selling the property for a certain period of time. Hence, it is pleaded that DDA now has to compute unearned increase in terms of the allotment as well as the perpetual lease as the petitioner had admitted that she had sold the property allotted to her in complete violation of the terms and conditions of allotment. It is pleaded that if this court were not to recall the order dated 26.02.2020, it would cause a huge loss to DDA and the public exchequer.

10. The petitioner has filed a reply to the affidavit that was filed by DDA in response to the show cause notice issued as to why contempt proceedings be not initiated against respondent No.1/DDA. The petitioner has adopted the said reply as response to the present application. The case of the

petitioner is that she was allotted the plot in question vide allotment letter dated 15-28.06.2010. The petitioner deposited the entire cost of the plot with DDA. Further respondent No.2 also deposited the entire cost of the plot i.e. Rs.39.82 lakhs with respondent No.1/DDA. Thereafter, respondent No.2 Sh. Vikas Shokeen filed an FIR No.423/2010 dated 01.11.2010 for the offence of cheating against the petitioners. Respondent No.2 also filed a suit being CS(OS) No.1892/2010 for specific performance of the alleged agreement to sell dated 10.08.2010 against the petitioners. It is stated by the petitioners that on account of the disputes, respondent No.1/DDA did not execute the perpetual lease deed and did not issue possession letter to the petitioners. It is only when the petitioners and respondent No.2 entered into a settlement vide MOU dated 03.08.2016 that things moved. The settlement was also filed in the suit which was pending in the court of Sh. Mohd. Farrukh, learned ADJ-V, Dwarka Courts. To complete the narration of facts, it is also pointed out that the petitioner had filed an application for anticipatory bail of petitioner No.2 which was declined by this court. The petitioner approached the Supreme Court and the Supreme Court was pleased to grant interim protection vide order dated 29.04.2011. Subsequently, on 05.08.2011 the Supreme Court allowed the anticipatory bail application of petitioner No.2. It is further stated that the petitioners entered into a settlement with respondent No.2. A settlement order dated 31.08.2016 was also passed by concerned court, namely the court of learned ADJ, Dwarka Court. All these documents, it is pleaded, were sent to respondent No.1/DDA to enable DDA to execute a perpetual lease deed and issue a possession letter and execute conveyance deed in favour of the petitioner. It is only after the settlement that in January, 2017 the petitioner received possession of the property and

the lease deed was executed in favour of the petitioner on 09.02.2017. The plot was converted into freehold and on 29.06.2017 a conveyance deed was executed in favour of the petitioner. Thereafter, on 28.05.2018 by a registered sale deed the petitioner is said to have sold the plot.

11. What follows from the above is that it is pleaded by the petitioner that he had duly informed respondent No.1/DDA about the settlement with respondent No.2 and the subsequent orders of the court passed pursuant to the settlement agreement with respondent No.2 i.e. 31.08.2016.

12. I need not go into the controversy as to whether the petitioner had filed the compromise documents before DDA. This is so as when the writ petition was filed by the petitioner all the documents have been placed on record by the petitioner and have been attached with the writ petition, i.e. a copy of the FIR as Annexure P-5 and a copy of the settlement agreement as Annexure P-6. It is manifest that when this court disposed of the writ petition and issued appropriate directions in favour of the petitioner to pay the excess amount of Rs.39.82 Lacs on 26.02.2020, the entire facts were available with the court and were also obviously available with DDA and learned counsel for respondent No.1/DDA. As the order of this court dated 26.02.2020 has been passed being fully aware of all these facts, in my opinion, there are no grounds made out to recall the order dated 26.02.2020.

13. Further from the facts as stated in this application, it appears that respondent No.1/DDA pleads that this court had passed an incorrect order on 26.02.2020 inasmuch as it is claimed by respondent No.1/DDA that the petitioner was entitled to no relief. In that eventuality, the remedy of respondent No.1/DDA was to have challenged the order as per law. Instead, respondent No.1/DDA has sat on the order of this court dated 26.02.2020 for

seven months in disobedience of the order of this court. Now when an explanation was sought from respondent No.1/DDA for their inaction, respondent No.1/DDA has chosen to move the present application after seven months from the order of this court dated 26.02.2020.

14. In any case, as noted above, it is not denied by respondent No.1/DDA that the cost of the plot in question namely Rs.39,31,291/- has been paid twice by both, namely, the petitioner and respondent No.2. As the amount of Rs.39.82 has been received by respondent No.1/DDA twice, this court on 26.02.2020 directed respondent No.1/DDA to refund to the petitioners the said amount of Rs.39.82. The consent of respondent No.2 who had entered appearance through counsel was also clearly noted.

15. I cannot help stating that the conduct of respondent No.1/DDA leaves much to be desired. It is only in July, 2020 when the matter came up as respondent No.1/DDA had failed to comply with the directions of the court dated 26.02.2020 that a plea to wriggle out or to be difficult appears to have been thought out and these pleas have been raised in the present application.

16. It is settled position of law that power to recall an order can be exercised by a court only where it has been obtained by a fraud practiced upon the court, or the court is mislead by a party or when a court itself committed a mistake which prejudices a party. In this context reference may be had to the judgment of the Supreme Court in the case of Budhia Swain & Ors. v. Gopinath Deb & Ors., (1999) 4 SCC 396. The Supreme Court in the said judgment noted as follows:

6. What is a power to recall? Inherent power to recall its own order vesting in tribunals or courts was noticed in Indian Bank v. Satyam Fibres (India) (P) Ltd. [(1996) 5 SCC 550]

Vide para 23, this Court has held that the courts have inherent power to recall and set aside an order

(i) obtained by fraud practised upon the court,

(ii) when the court is misled by a party, or

(iii) when the court itself commits a mistake which prejudices a party.

In A.R. Antulay v. R.S. Nayak [(1988) 2 SCC 602 : 1988 SCC (Cri) 372 : AIR 1988 SC 1531, para 130] (vide para 130), this Court has noticed motions to set aside judgments being permitted where

(i) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all and was shown as served or in ignorance of the fact that a necessary party had died and the estate was not represented,

(ii) a judgment was obtained by fraud,

(iii) a party has had no notice and a decree was made against him and such party approaches the court for setting aside the decision ex debito justitiae on proof of the fact that there was no service.

7. In Corpus Juris Secundum (Vol. XIX) under the chapter "Judgment --Opening and Vacating" (paras 265 to 284, at pp. 487-510) the law on the subject has been stated. The grounds on which the courts may open or vacate their judgments are generally matters which render the judgment void or which are specified in statutes authorising such actions. Invalidity of the judgment of such a nature as to render it void is a valid ground for vacating it at least if the invalidity is apparent on the face of the record. Fraud or collusion in obtaining a judgment is a sufficient ground for opening or vacating it. A judgment secured in violation of an agreement not to enter a judgment may be vacated on that ground. However, in general, a

judgment will not be opened or vacated on grounds which could have been pleaded in the original action. A motion to vacate will not be entered when the proper remedy is by some other proceedings, such as by appeal. The right to vacation of a judgment may be lost by waiver or estoppel. Where a party injured acquiesces in the rendition of the judgment or submits to it, waiver or estoppel results.

8. In our opinion a tribunal or a court may recall an order earlier made by it if

(i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent,

(ii) there exists fraud or collusion in obtaining the judgment,

(iii) there has been a mistake of the court prejudicing a party, or

(iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented.

The power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence.

9. A distinction has to be drawn between lack of jurisdiction and a mere error in exercise of jurisdiction. The former strikes at the very root of the exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity. A mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject to the law of limitation. In Hira Lal Patni v. Kali Nath [AIR 1962 SC 199] it was held:

"The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject- matter of the suit or over the parties to it."

As noted above, in the present case all the relevant facts were on record when this court passed its order dated 26.02.2020. It is not possible to conclude that there is a fraud or collusion in obtaining of the judgment or there is mistake made by the court prejudicing a party.

17. The present application is completely without any merit and the same is dismissed.

JAYANT NATH, J.

SEPTEMBER 28, 2020/v corrected & released on 05.10.2020