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Judgment
Sudhir Agarwal, J.—Sri K.R. Singh, Advocate, has put in appearance on behalf of Gorakhpur Development Authority (hereinafter referred to as "GDA") and Sri Satyendra Kumar Singh has put in appearance on behalf of appellants in appeal of defendants second set and Sri J.S. Pandey, Advocate, has put in appearance on behalf of plaintiff respondents in both appeals.
These two appeals have come up under Section 96 of Civil Procedure Code (hereinafter referred to as "CPC") arising from common judgment and decree dated 29.05.2009 and 30.05.2009 respectively, passed by Sri J.K. Tiwari, Additional District Judge, Court no. 9, Gorakhpur in Original Suit no. 292 of 1994. Since both have arisen from a common judgment, hence have been heard together and are being decided by this judgment.
In First Appeal no. 531 of 2009, paper book has been filed by parties but in First Appeal no. 587 of 2009 paper book has not been filed. Learned counsel for appellant GDA stated that he may be permitted to address the Court on the basis of paper book of First Appeal no. 531 of 2009 of respective parties and documents which are on record in his appeal i.e. 587 of 2009. With consent of all the parties, we permitted him and proceed accordingly.
Original Suit no. 292 of 1994 was instituted by plaintiff K.N. Verma (now deceased and substituted by his legal heirs) in the Court of Civil Judge, Gorakhpur impleading GDA as defendant 1, Smt. Kamla Rai as defendant 2, Arem Chaudhary, Smt. Nishat Chaudhary and Saba Chaudhary as defendants 3, 4 and 5.
Plaintiff prayed for a decree of declaration and against defendants regarding allotment of disputed land made in favour of defendants 2 to 5 and to declare sale deed dated 12.06.1997 executed by defendant 1 in favour of defendants 2 to 5 registered on 12.06.1997 as illegal, ineffective and void. He also prayed for a decree of injunction against defendants restraining them from cancelling allotment made in favour of plaintiff and raising any construction over disputed land. He further also sought a decree for delivery of possession of disputed land to the plaintiff. Details of disputed land are given in Schedule-A at the bottom of plaint as under:
Schedule - A
Plot no. 1 area 360.35 sq. meter situated at Rapti Nagar Ist, Phase Moh. Basaratpur, Teh. Sadar, District Gorakhpur Bounded at below.
East Medical College Road
West Land of GDA
North Open Land
South Road 24 Meterwide.
The plaint case set up was that disputed land measuring 700.09 sq. metre was allotted to plaintiff by GDA, vide letter dated 09.03.1994, for commercial purpose. Land is situated at Raptinagar Residential Colony, Gorakhpur. The consideration was at the rate of Rs. 854.37 per sq. feet. Pursuant to the said allotment, plaintiff K.N. Verma deposited Rs. 60,000/i. e. Rs. 5000/along with application and Rs. 55,000/on 29.03.1994. Thereafter plaintiff prayed GDA authorities to grant indulgence for payment of balance amount in instalment, Secretary, GDA directed plaintiff to deposit Rs. 1,47,000/so that total deposited amount comes to 35 percent and assured that balance amount will be allowed to be deposited in 36 equal monthly instalments and possession was also assured to be delivered on payment of 35 percent of total amount. Consequently, plaintiff, vide Cheque no. 961095 dated 04.05.1994, drawn on State Bank of India, Railway Colony Branch, Gorakhpur, deposited Rs. 1,47,000/. Thereafter Secretary, GDA, informed K.N. Verma to contact Vice Chairman or Chairman for delivery of land and permission for payment in instalments. Plaintiff was surprised and enquired reason but he was directed to contact senior officials. Commissioner, Gorakhpur who is also Chairman GDA, on 06.05.1994, directed GDA to permit balance payment in instalment and also deliver possession. However, when plaintiff met Vice Chairman he demanded illegal gratification which plaintiff could not accede to, since he was a retired person and it was not possible for him to bribe. On his refusal, Vice Chairman threatened to cancel allotment. Plaintiff requested Vice Chairman to comply with the direction of Chairman but of no avail.
Plaintiff on 30.05.1994 came to know that Vice Chairman is intending to cancel allotment made in favour of plaintiff and to raise construction over the said land. Plaintiff met him but he was adamant. Hence suit was filed.
During pendency of suit, plaintiff K.N. Verma died leaving widow and three sons who have all joined in the suit.
Further during pendency of suit, defendant 1 allotted disputed land to defendants 2 to 5 and sale deed was also executed on 12.06.1997. Hence by impleadment/impleadment in the plaint a declaration has been prayed and defendants 2 to 5 are also impleaded.
GDA contested the suit by filing written statement wherein allotment of commercial land, area 700.09 sq. metre, vide letter dated 09.03.1994 was admitted. Despite information plaintiff did not made entire payment. Reminder for payment sent on 23.03.1994 directing to pay the entire amount on 28.03.1994 i.e. Rs. 6,57,949.50/. Plaintiff however made partial payment of Rs. 2,07,000/which was contrary to the term of allotment. Sympathetically matter was considered vide letter dated 29.04.1994 and one more opportunity was granted to plaintiff to pay entire amount within a week failing which his application shall stand rejected. Plaintiff still failed to make payment hence by order dated 05.05.199, Vice Chairman cancelled allotment letter. The amount deposited by plaintiff was sought to be refunded along with cheque but plaintiff did not receive the same. He was also informed that after depositing original challans in GDA plaintiff may receive the amount he has deposited but plaintiff did not come forward. Subsequently on 11.05.1994, defendants 2 to 5 made full payment and land was allotted to them. Possession memo was issued on 24.05.1994 and actual possession was handed over on 26.05.1994. Before plaintiff filed suit, land was already allotted to defendants 2 to 5 and possession was also handed over. The allegations of bribe etc. were denied.
A separate written statement was filed by defendants 3 to 5 wherein also averments in the plaint, generally, are denied. In additional plea, it is said that they have been allotted land in dispute on entire payment made to GDA in accordance with rules. They also stated that out of total area, 360.35 sq. metre land was allotted to defendants 3 to 5 and rest was allotted to defendant 2. They have also paid entire amount. Plaintiff''s allotment was cancelled by GDA in terms of allotment hence suit is liable to be dismissed.
Trial Court formulated following issues:
1- D;k fookfnr Hkw[k.M okn i= esa fn;s x;s dFkukuqlkj izfroknh }kjk oknh ds i{k esa vkoafVr gS\\ ;fn gkWa rks izHkko\\
Whether the disputed plot if alloted in the favour of the plaintiff by the respondent as stated in the plaint? If yes, its effect?
2- D;k nkok oknh iks"k.kh; gS\\
Whether the claim of the plaintiff is maintainable?
3- D;k nkok oknh focU/ku o ekSu lgefr ds fl)kUr ls ckf/kr gS\\
Whether claim of the plaintiff is barred by the doctrine of estoppel and silent consent?
4- D;k nkok oknh /kkjk 34 vkczhVs~''ku ,DV ls ckf/kr gS\\
Whether the claim of the plaintiff is barred by Section 34 of the Arbitration Act?
5- D;k nkok oknh esa vko'';d i{kdkjksa ds vla;kstu dk nks"k gS\\
Whether the claim of the plaintiff is vitiated by the non-joinder of necessary parties?
6- D;k oknh okafNr vuqrks"k izkIr djus dk vf/kdkjh gS\\
Whether plaintiff is entitled to get the relief prayed for?
Oral evidence adduced by parties included deposition of Ram Kumari Devi as PW1, Santosh Kumar Verma as PW2 and Heera Lal as PW3 while on behalf of defendants Satyendra Kumar Singh deposed as DW1. Both parties also filed documentary evidence which we shall refer during course of discussion.
Issue 1 was answered in favour of plaintiff. Issue 2 was not pressed by defendants. Issue 3 was also not supported by defendants and in respect to Issue 4 defendant could not produce any arbitration clause. Hence issues 2, 3 and 4 were answered against defendants. With regard to Issue 5, Trial Court found that all the necessary parties were impleaded hence it was also answered in negative and in view of its findings on issue no. 1 it decreed suit and held that transfer of disputed land in favour of defendants 2 to 5 is barred by Section 52 of Transfer of Property Act, 1882 (hereinafter referred to as "Act 1882") therefore, sale deed executed in favour of defendants 2 to 5 is neither valid nor operative and is void ab initio.
The points for determination which have arisen in this appeal are:
(i) Whether there was any breach of condition on the part of plaintiff respondent in respect to land in dispute;
(ii) Whether defendant first set appellant i.e. GDA was justified in treating that land allotted to plaintiff stand cancelled.
(iii) Whether land was validly allotted to defendants 2 to 5 and sale deed executed in their favour is valid or not;
All these points are interconnected. Hence we propose to deal the same together.
Letter dated 09.03.1994 admittedly was issued by GDA. However, according to GDA, this letter did not result or communicate allotment of land to plaintiff respondent. It was only a proposal for allotment subject to payment of entire amount demanded by GDA. First sentence of this letter dated 09.03.1994 i.e. Paper no. 232Ga/6 shows that it communicated plaintiff about allotment of land measuring 700.09 sq.metre at the rate of 854.37 per sq. feet. We reproduce the relevant extract as under:
d`i;k vkius izkFkZuk i= fnukad 01-03-1994 dk lUnHkZ xzg.k djsa] mDr ds laca/k esa fopkj fd;k x;k] fopkjksijkUr vki ds i{k esa :0 854&37 izfr oxZQqV dh nj ls 700-09 oxZehVj Hkwfe vkoafVr fd;k tkrk gSA
"Kindly take reference of your application dated 01.03.94. The same has been considered and after consideration, 700.09 square meter land is alloted in your favour at the rate of Rs. 854.37 per square foot."
(emphasis added)
(English translation by Court)
Letter further says that plaintiff should deposit Rs. 5,98,135.89 towards consideration of land and Rs. 59,913.60 towards lease rent so that further action in relation to allotment may be done. There is no doubt about the fact that said letter communicated equivocally and unambiguously allotment of land to plaintiff and otherwise stand taken by GDA is contrary to record.
In order to show that in the matter of allotment and cancellation etc., Vice Chairman, GDA is the final authority, a copy of brochure of Rapti Nagar Awasiya Yojna 1987, Phase-I, has been filed as Paper no. 31C but there is nothing to show that this very brochure was applicable to the land in dispute of which allotment was made in 1984. It is also admitted that plaintiff deposited Rs. 5000/in cash on 25.03.1994 and two cheques of Rs. 25,000/and 30,000/dated 24.03.1994 along with application dated 25.03.1994 in GDA. Paper no. 282 Ga, is a copy of receipt issued by GDA of Rs. 55,000/.
In the allotment letter dated 09.03.1994 no time was given within which plaintiff was supposed to deposit amount demanded therein. Though GDA pleaded that plaintiff was informed to deposit amount by letter dated 23.03.1994 but we do not find any such letter available on paper book.
In the affidavit of Satyendra Kumar Singh, DW1, it has been said that vide letter dated 23.03.1994 plaintiff was required to deposit entire amount by 28.03.1994. He has further said that vide letter dated 29.04.1994 another opportunity was given to plaintiff, directing to deposit entire balance amount within one week failing which allotment shall be cancelled. This letter of 29.04.1994 is also not part of paper book. Even if we assume that said letter was issued by GDA on 29.04.1994, requiring plaintiff to deposit balance amount within one week, we find that one week period would have expired on 06.05.1994. Therefore, question of cancellation of allotment on 05.05.1994 could not have arisen at all on the ground that plaintiff did not comply letter dated 29.04.1994.
Further with regard to service of letter dated 29.04.1994, there is a serious dispute. Plaintiff-respondents have said that it has been fraudulently sought to be served on Payal Verma on 03.05.1994 and that too mentioned in others writing but for the sake of testing correctness of action of GDA, even if we assume that alleged letter dated 29.04.1994 was served upon a plaintiff''s family, member on 03.05.1994, then also there could not have been any occasion to cancel allotment on 05.05.1994 when one week period has not yet to expire. From the date of service, one week period would have expired on 10.05.1994. This fact also shows that everything done by Vice Chairman, GDA was patently illegal and for reasons other than bona fide. Not only this, on the plaintiffs letter dated 06.05.1994, Commissioner/Chairman, GDA passed an order that it appears to be a genuine case and he may be allowed to pay amount in instalments but that order has completely been ignored by Vice Chairman, GDA. The defence is that since allotment was already cancelled on 05.05.1994, therefore, there was no occasion to look into order of Commissioner/Chairman. On the contrary, we find that this allotment also appears to have made with the knowledge. If that be so has to avoid compliance of Commissioner''s order dated 06.05.1994 and in this process Vice Chairman, GDA committed a blunder, forgetting that the time allowed to plaintiff to deposit balance amount i.e. one week is yet to expire. Hence there was no question of cancellation on 05.05.1994.
The further issue that plaintiff violated conditions of allotment by not depositing amount within time is also contrary to record inasmuch as in the allotment letter dated 09.03.1994 no time has been given within which amount demanded therein was to be deposited by plaintiff respondent. The brochure which has been placed on record which shows that only 10 percent amount used to be demanded from the allottee at the time of allotment and rest amount is permitted to be paid in four equal quarterly instalment. There was no reason to have a different condition in the case in hand and it neither case set up by GDA says so nor any material has been placed on record in this regard.
Learned counsel for GDA, contended that Section 52 of Act 1882 has no application in the case in hand inasmuch as suit property was already transferred before filing of suit and therefore, declaration of sale deed as void with reference to Section 52 is illegal. It is submitted that allotment was made to defendants 2 to 5 on 11.05.1994 and possession was handed over on 24.05.1994 and 26.05.1994. Sale deed actually have been executed in favour of defendants 2 to 5 on 12.06.1997 and so far as alleged possession memo is concerned, it is evident from record that GDA has not acted in a bona fide manner and there is a valid reason to draw an inference that it has made papers in back date. Even claim for possession of disputed land was handed over on 24/26.05.1994 is not acceptable particularly in view of fact that sale deed was executed on 12.06.1997 i.e. after filing of suit which was filed on 31.05.1994.
Copy of sale deed dated 12.06.1997 executed in favour of appellants (defendants second set) is available on record as Paper no. 232C/ 11. It shows that there is only reference of allotment of land in favour of defendants 3 to 5 and there is no averment that possession was already handed over to them. Therefore, his contention that Section 52 is not applicable in the case in hand is not accepted.
In view of above discussion we answer all the three questions in favour of plaintiff respondent and against appellants, in the following manner:
In respect to point for determination of question 1, we hold that appellants failed to show any breach of condition on the part of plaintiff respondent in respect of land in dispute; in respect of second question we hold that GDA was unjustified and acted illegally in treating land allotted to plaintiff as cancelled and third question is answered by observing that since allotment of land to plaintiff respondent has been illegally cancelled, hence in law there was no cancellation of allotment, therefore, the allotment of land to defendant second set appellants and execution of sale deed is also void and inoperative.
In the result, both appeals are dismissed with costs throughout.