Surender Saini vs D.D.A. [Along With W.P. (C ) Nos. 802-03 … on 27 May 2004
Delhi High Court
Surender Saini vs D.D.A. [Along With W.P. (C ) Nos. 802-03, … on 27 May, 2004
Equivalent citations: AIR2004DELHI402, 111(2004)DLT791, 2004(75)DRJ13, AIR 2004 DELHI 402, (2004) 4 RECCIVR 45, (2004) 75 DRJ 13, (2004) 111 DLT 791
Author: Vikramajit Sen
Bench: Vikramajit Sen
JUDGMENT
Vikramajit Sen, J.
1. The Petitioners have prayed for the quashing of the impugned notices, inter alia that bearing Reference No. 32 (1177) 87/PV/NP/16020 dated 5.1.2004, in respect of immovable properties at Paschim Vihar, New Delhi and for restraining the Delhi Development Authority (DDA) from contemplating any action on the basis of these notices, presumably of their eviction.
2. Succinctly stated, the precursor of the events which have led to the filing of these petitions is the Order passed by my Learned Brother Sanjay Kishan Kaul, J. on 16.10.2003 whereby the DDA and the MCD had been directed to inspect the area in question, i.e., Paschim Vihar, New Delhi, and take action in accordance with law both in respect of unathorised construction and misuser. These Authorities had been enjoined to complete the action within three months and to file a Compliance Report within fifteen days thereafter. An inspection of the area was carried out and Show Cause notices were issued to the owners and/or occupants.
3. The impugned Show Cause Notice dated 5.1.2004 reads thus:
“DELHI DEVELOPMENT AUTHORITY (Lease Administration Branch) (Housing) `D’ Block, 3rd Floor, Vikas Sadan, New Delhi No.F. 32(1177)87/PV/NP/16020 Dated : 5.1.2004 From:
Asstt Director, LAB(H) D.D.A. To Sh/Smt. Janak Lakhman R/o 01 Flat GH14 /G17 Paschim Vihar New Delhi Subject : Cancellation of allotment of flat No.01 Pkt GH 14 Blk G 17 in Paschim Vihar Resd. Scheme under MIG Cat. WHEREAS by virtue of allotment letter dated 3.5.88 you are the allottee of flat No. 01 Pkt. GH 14 Blk G 17 in Pashchim Vihar Resdl Scheme under MIG Cat. AND WHEREAS under the terms and conditions as contained in the above allotment letter and further as stipulated in the brochure (DDA, Management and Disposal of Housing Estate), Regulations 1968 and an undertaking furnished by you at the time of allotment/possession to the effect that you will not make any alterations/additions/un-authorised construction/mis-use in the said flat without prior permission from the Authority. AND WHEREAS it has been noticed that you have/are misuse of Sweet Shop/Tyer Shop/Pan Shop which is contrary to the terms and conditions of the allotment. AND WHEREAS you were issued show cause notice and final notice for removal of the said breach of terms and conditions of allotment, but you have failed to do so. NOW THEREFORE the allotment of the flat under reference has been cancelled by the competent authority for violation of terms and conditions of the allotment. You are, therefore, hereby directed to hand over the vacant possession of the flat along with fittings and fixtures, if any, on 16.1.04 at 11:00 A.M. to the Executive Engineer WD-7 DDA.
Sd/-
Asstt Director (LAB(H) Copy forwarded for information and necessary action to:-
1. Executive Engineer WD 7 DDA to take over the possession of the flat with fittings and fixtures thereon, if any on the date and time mentioned above. In case the Ex-allottee does not turn up at site to hand over the possession of the flat, Ex-parte possession of the flat be taken and compliance report may be sent on the same day.
2. Spare Copy to A.E (Enf) for pasting at the site.
3. Account Officer W/Z/NP, DDA.
Sd/-
Asstt Director (LAB(H)”
4. Mr. Anil Sapra, learned counsel for the DDA, had been quick to clarify that the possession of the premises would not be taken in the manner indicated in the Show Cause notices, but only in accordance with law and by following due procedure. He had also stated, and in my view correctly so, that the statement or direction contained in the forwarding endorsement to the Executive Engineer WD 7, DDA of the Cancellation of Allotment letter dated 5.1.2004 should be read down to this extent. Had this statement not been made by learned counsel for the DDA, this Court may have been left with no option but to strike down the said cancellation letter since even the State, the DDA or any similar Authority cannot take law into their own hands. In view of the above statement of Mr. Sapra, which was made after instructions had been conveyed to him by the DDA, no orders are called for so far as the second relief in the writ petition is concerned.
5. Mr. Sapra has also informed the Court that prosecution under Section 29(2) read with Section 14 of the Delhi Development Authority Act has been initiated. He further contends that as the logical sequel to the above statement, the DDA proposes to take action by invoking the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as `the PP Act`). The Court refrains from making any orders or observations on the legal propriety of such a course being employed. The decision whether to proceed under the PP Act or the ordinary civil procedure will have to be taken by the DDA. Nothing further is called for beyond directing notice to the decision of this Court in W.P. (C ) No. 3717 of 2003 titled Sudhir Goel v. M.C.D. decided by this Court on 25th May, 2004.
6. The Petitioners have also prayed for the quashing of the impugned notices. In this regard Mr. Sapra has fervently and vociferously argued that the extraordinary jurisdiction of this Court ought not to be allowed to be invoked by a party who is itself guilty of violating and transgressing the law. In the present case the Petitioners have not denied that the premises are being used contrary to the Master Plan, and also to the terms contained in the Allotment. Learned counsel for the Petitioners have argued that since it is primarily the user of the premises which is objected to by the Authorities/DDA, no grounds are made out for cancellation of the allotments; such an action would not be justified or warranted since full consideration of the property has been paid and in some cases the flats have now been conveyed on Free Hold basis in accordance with the Conversion Policy, 1989.
7. I find considerable merit in the objection raised by Mr. Sapra and keeping in view the admitted position that the Petitioners have themselves violated the law in that the user is contrary to that envisaged in the Master Plan, and is in violation of the terms of the Allotment, the Petitioners have disentitled themselves from the protection of this Court under its extraordinary powers bestowed by Article 226 of the Constitution.
8. There is one question, however, which needs to be answered. The allotment letters did not envisage further transfer of the property by the Allottees without the permission of the DDA. Despite this embargo the property has changed hands several times over, and has also been sold in piecemeal and in truncated portions. So far as the issuance of notices, and initiation of prosecution under Section 29(2) read with Section 14 of the Delhi Development Authority Act is concerned, the Respondents have stated that notices have been issued to the actual occupants. In respect of the cancellation and the consequent resumption of possession the DDA relies on notices issued to the original/authorised allottees. In both categories the action of the DDA is not contrary to law.
9. The writ petitions are disposed of in these terms.
10. In view of the above, all the pending applications are also disposed of accordingly.