IN THE HIGH COURT OF DELHI RSA 12/2001 # Kanshi Ram (Deceased) ........ Appellant through his LR's. ! through: Ms.Kum Kum Jain, Adv. VERSUS $ Delhi Development Authority ........ Respondent ^ through: Ms.Sangeeta Chandra, Adv. RESERVED ON: 07.01.2008 % DATE OF DECISION: 18.01.2008 CORAM: * Hon'ble Mr.Justice Pradeep Nandrajog 1. Whether reporters of local papers may be allowed to see the judgment? Y 2. To be referred to the Reporter or not? Y 3. Whether judgment should be reported in Digest? Y : PRADEEP NANDRAJOG, J. 1. Following substantial question of law is framed for consideration in the present appeal:- “Whether on the pleadings of the parties and evidence on record the view taken by the Courts below is legal and valid?” 2. The present appeal is directed against the judgment and decree dated 3.11.2000 passed by the learned Additional District Judge whereby the judgment and decree dated 22.8.1996 passed by the learned Civil Judge dismissing the suit filed by the appellant was affirmed. 3. Very briefly, admitted facts as culled out from the RSA No.12/2001 Page No.1 of 34 impugned judgment as also from the records before this Court are that on 6.5.1961 appellant Kanshi Ram was admitted as a member of Panch Shila Cooperative House Building Society (hereinafter referred to as the Society), a Society registered under the Bombay Cooperative Societies Act, 1925 as extended to Delhi. 4. The Society acquired land in Village Shahpur Jat and developed the same into a residential colony 'Panch Shila Park'. A formal lease deed in respect of the said land was executed by the Delhi Development Authority (respondent herein) in favour of the Society. 5. On 19.7.1964 a draw of lots for the allotment of plots to the members of the Society was held. The appellant was declared successful for the allotment of the plot bearing municipal No.N-77, Panch Shila Park, Delhi (hereinafter referred to as the suit property). Intimation in said regard was sent by the Society to DDA. 6. On 3.12.1966 a perpetual sub-lease deed in respect of the suit property was executed by the DDA and the Society in favour of the appellant. Pursuant to the execution of said sub-lease possession of the suit property was handed over to the appellant. 7. After obtaining necessary sanctions from the authorities the appellant raised construction over the suit property. 8. On 31.1.1981 appellant received a letter, Ex.DW-1/4, dated 21.1.1981 issued by DDA informing him that the perpetual sub-lease deed dated 3.12.1966 executed in respect of the suit property has been cancelled. Said notice reads as under :- RSA No.12/2001 Page No.2 of 34 “To, Shri Kanshi Ram, C/o M/s. Jai Bharat Trading Co-Machinery Merchant, 4025, Naya Bazar, Delhi. Sub: Cancellation of sub-lease due to mis- statements to get plot No.N-77, Panch Shila C.H.B.Society. Sir, I am directed to inform you that the Lt. Governor (Lessor) has cancelled the sub-lease of the Plot No.N-77 in Panch Shila Coop. House Bldg. Society for breach under Clause III of the perpetual sub- lease deed. You are therefore requested to hand over the possession of the plot to our Asstt. Engineer on 30/1/1981 at 10.30 A.M. Yours faithfully, sd/- DY.DIRECTOR (CS) 9. Relevant portion of Clause-III of the perpetual sub-lease deed dated 3.12.1966 referred to in the letter Ex. DW1/4 dated 21.1.1981 reads as under :- “III. If the sum or sums payable towards the premium or the yearly rent hereby reserved or any part thereof shall at any time being arrear and unpaid for one calender month next after any of the days whereon the same shall have become due, whether the same shall have been demanded or not, or if it is discovered that this Sub-Lease has been obtained by suppression of any fact or by any mis-statement, misrepresentation or fraud or if there shall have been, in the opinion of the Lessee or the Lessor, and the decision of the Lessor shall be final, any breach by the Sub-Lessee or by any person claiming through or under him of any of the covenants or conditions contained herein and in the Lease and on his part to be observed or performed, then and in any such case, it shall be lawful for the Lessor or the Lessee with the prior RSA No.12/2001 Page No.3 of 34 consent in writing of the Lessor, notwithstanding the waiver of any previous cause or right of re- entry upon the residential plot hereby sub-leased and the buildings thereon, to re-enter upon and take possession of the residential plot and the buildings and fixtures thereon, and thereupon this Sub-Lease and everything herein contained shall cease and determine in respect of the residential plot so re-entered upon, and the Sub-Lessee shall not be entitled to any compensation whatsoever nor to the return of any premium paid by him.” 10. From a perusal of the letter Ex. DW1/4 it is apparent that the perpetual sub-lease deed dated 3.12.1966 was cancelled for the reason appellant allegedly made a mis-statement and thus committed a breach in terms of Clause-III of the Sub-lease deed. 11. Appellant thereafter filed a suit against the respondent DDA inter alia praying for :- A. A decree of declaration that the cancellation of perpetual sub-lease deed dated 3.12.1966 by DDA is null and void. B. A decree of permanent injunction restraining DDA from taking the possession of the suit property. 12. Material averments in the plaint filed by the appellant are being noted here-in-under:- “9. That on 31.1.1981, the plaintiff received a notice No.F.2(214)78/CB/DDA dated 21.1.1981 from the Deputy Director (CS) of Delhi Development Authority (Co.operative Societies Cell) intimating him that the Lt.Governor (Lessor) has cancelled the Sub-Lease of the plot No.N-77 in Panchsheela Co.operative House Building Society for breach under Clause III of the Perpetual Sub-Lease and further called upon the plaintiff to hand over the possession of the plot to the Asstt. Engineer on 30.1.1981 at 10.30 a.m. 10. The plaintiff submits that he has not RSA No.12/2001 Page No.4 of 34 committed any breach of the Perpetual Sub-Lease or of any Clause thereof and the defendant have no right or title to cancel the Sub-lease or to claim possession of the said plot from the plaintiff. 11. In any case, the plaintiff submits that according to Clause IV of the said Perpetual Sub- Lease, no forfeiture or re-entry shall be affected until the lessor or lessee have served on the Sub- lessee a notice in writing specifying the particular breach complained of and if the breach is capable of remedying requiring the sub-lessee to remedy the breach. 13. That no show cause Notice or notice cancelling the sub-lease was over served on the plaintiff as alleged by the DDA in the notice dated 21.1.1981. The plaintiff had not opportunity to put all the facts before the Officer concerned and no opportunity of being heard had been granted to him and no order of cancellation of Sub-Lease or forfeiture and re-entry thereof could be effected.” 13. Relevant portion of Clause-IV of the perpetual Sub-Lease Deed dated 3.12.1966 relied upon by the appellant reads as under :- “IV. No forfeiture or re-entry shall be effected until the Lessor or the Lessee has served on the Sub-Lessee a notice in writing (a) specifying the particular breach complained of, and (b) if the breach is capable of remedy, requiring the Sub-Lessee to remedy the breach, and the Sub-Lessee fails within such reasonable time as may be mentioned in the notice to remedy the breach if it is capable of remedy; and in the event of forfeiture or re-entry the Lessor in his discretion or the Lessee, with the prior consent in writing of the Lessor, may relieve against forfeiture on such terms and conditions as the Lessor thinks proper.” 14. Case thus projected by the appellant in the plaint was RSA No.12/2001 Page No.5 of 34 that the cancellation of the perpetual Sub-Lease Deed dated 3.12.1966 by the DDA is null and void because of the following 2 reasons:- A. Appellant has not committed any breach in terms of Clause-III of the perpetual Sub-Lease Deed or of any other clause. B. Clause-IV of the perpetual Sub-Lease Deed mandated that before determination of the Sub-Lease the lessor DDA must serve a show cause notice upon the sub-lessee i.e. the appellant. That no show cause notice as required under Clause-IV of the perpetual Sub-Lease Deed was served upon the appellant. 15. In response to the case set up by the appellant respondent DDA filed its written statement relevant averments whereof are being noted hereinbelow:- Preliminary Objections: 1. That the sub-lease in favour of the plaintiff was obtained on the basis of mis-representation of facts and so the sub lease has been cancelled after the serving of show cause notice on the plaintiff. Replies on Facts: 10. That para 10 of the plaint is denied. The plaintiff has committed the breach of the perpetual sub-lease deed. In fact the plaintiff has sworn an affidavit stating that “he does own either in full or in part any lease hold/free hold plot/ house in Delhi/New Delhi/Delhi Cantt nor that his wife including unmarried minor children and dependent relations own any plot/house/flat in Delhi/New Delhi/Delhi Cantt”. Subsequently it came to the notice to the defendant that the plaintiff owned a portion of plot no.25/41 in Punjabi Bagh. In this way he has sworn a falls affidavit on the basis of which he obtained the RSA No.12/2001 Page No.6 of 34 allotment of plot no.N-77 in Panch Shila Park. Besides the criminal action against the plaintiff for sworn falls affidavit plaintiff's sub lease became liable for cancellation and hence sub lease of the plot in dispute was rightly cancelled under clause III of the perpetual sub lease deed for mis- statement of the facts. 11. Para 11 of the plaint is denied. The plaintiff was sent a show cause notice on 26.3.80 requiring to show cause why the sub lease of the plot may not be determined. The show cause notice was received back undelivered with the remarks “refused to receive”. Since the plaintiff intentionally refused to receive the notice. For all intents and purposes the notice is legal and supposed to be served and action for determination of the sub lease taken is just legal and proper.” 16. In the written statement filed no particulars of false affidavit allegedly sworn by the appellant were specified. However, the false affidavit allegedly sworn by the appellant was filed on record. The said affidavit Ex. PW2/D1 is dated 11.6.1966 and reads as under :- AFFIDAVIT I, KANSHI RAM son of L. Badlu Ram aged 60 years, resident of C/o Jai Bharat Trading Co., Naya Bazar, Delhi and a member of the Panch Shila Cooperative House Building Society Ltd., New Delhi-17 do hereby affirm and declare as under :- 1. That neither I nor my wife nor any of my dependent relations (including unmarried children) is a member of any other house building Cooperative Society functioning in Delhi/New Delhi/Delhi Cantt. 2. That I do not own, either in full or in part, on leasehold or freehold basis, any plot of land or a house in Delhi/New Delhi/Delhi Cantt nor does my wife or any of my dependent relations including unmarried children, own either in full or in part on RSA No.12/2001 Page No.7 of 34 leasehold or free-hold basis, any plot of land or a house in Delhi/New Delhi/Delhi Cantt. 3. That I have noted the conditions in the bye laws of the house building Cooperative Society of which I am a member that I am required to inform the said society as well as the Chief Commissioner within one month if any plot of land or house is acquired by me or by my wife or my dependent relations, including unmarried children, during the period of my membership of the Society. 17. The show cause notice Ex. DW1/2 dated 26.3.1980 allegedly sent to the appellant reads as under :- SHOW CAUSE NOTICE To, Sh. Kanshi Ram, C/O M/s Jai Bharat Trading Co. Machinery Merchant, 4025, Naya Bazar, DELHI. WHEREAS you were allotted plot No.N-77 in Panch Shila Park Cooperative House Building Society, the sub lease of which was executed on 3.12.1966; AND whereas you had filed an affidavit to the effect that you did not own, either in full or in part on lease hold basis any plot of land or a house in Delhi/New Delhi/Delhi Cantt. nor does your wife or any of your dependent relations including unmarried children own either in full or part on lease hold/free hold basis any plot of land or a house in Delhi/New Delhi/Delhi Cantt. which was a pre-requisite condition for the allotment of a plot; AND whereas it has come to notice that you hold the ½ share in another property 25/41, Punjabi Bagh. THUS you obtained the allotment of plot No.N-77, Panch Shila Park Cooperative House Building Society after concealing the facts. You are hereby required to show cause within 30 days from the date of issue of this notice as to RSA No.12/2001 Page No.8 of 34 why the Sub-Lease of the plot in question may not be cancelled & possession be resumed for mis- statement of facts. sd/- Deputy Director (Coop.)” 18. From a cumulative reading of the letter Ex. DW1/4 dated 21.1.1981, show cause notice Ex.DW-1/2 dated 26.3.1980 issued by the DDA and the written statement filed by the DDA defence set up by DDA can be culled out as under:- A. Appellant has obtained allotment of the suit property and got executed the perpetual Sub-Lease Deed in respect of the suit property on basis of mis-representation of facts. That by making mis-representation of facts appellant has committed a breach in terms of Clause-III of the perpetual Sub-Lease Deed. B. Mis-representation of facts alleged to be made by the appellant was that the appellant has sworn a false affidavit by deposing that neither he, his wife or his dependents owned a residential plot/house/flat in Delhi. While an enquiry conducted by DDA revealed that he was co-owner of the plot bearing municipal No.25/41, Punjabi Bagh, Delhi. C. A show cause notice Ex. DW-1/2 dated 26.3.1980 was duly sent to the appellant and that the same was returned by the postal authorities with an endorsement 'refused to receive'. 19. In the replication filed to the written statement of the DDA appellant averred as under :- “Statements made in para 1 of the preliminary objections are not admitted. It is denied that the RSA No.12/2001 Page No.9 of 34 plaintiff made any mis representation of facts to obtain the sub lease as alleged. It is denied that the defendant can cancel the sub lease as alleged. Para 2 of the preliminary objections is not admitted. It is denied that the defendant can cancel the sub lease or that the action of the defendant is just, legal or proper as alleged or that the plaintiff has no cause of action to file this suit. Para 10 of the written statement in so far as it is inconsistent with para 10 of the plaint is traversed and para 10 of the plaint is reaffirmed. It is denied that the plaintiff committed any breach of the perpetual Sub-Lease as alleged. It is submitted that the defendant have not disclosed as to how the plaintiff has committed breach of the Perpetual Sub-Lease and of which clauses of the said Lease after its execution. It is further denied that the plaintiff sworn any affidavit after the execution of the Perpetual Sub-Lease which could amount to committing breach thereof. It is further denied that the Perpetual Sub-Lease was granted on the basis of any affidavit or any other representation which can amount to breach of the Perpetual Sub Lease and no mention of any such particular affidavit finds mention in the said Perpetual Sub Lease. The plaintiff further submits that at that time the Bye-Laws of the Panchsheela Co-operative House Building Society Ltd, did not contain restrictions on members to own any other land or house and on 3.12.1966 the Perpetual Sub Lease was executed in favour of the plaintiff. The plaintiff does not recollect execution of any affidavit. Several papers were got signed from him on and before the perpetual sub lease was executed but it is submitted that no such restrictions were conveyed to the plaintiff. It was only on 1969 when the Bye-Laws of the Society were amended as to incorporate clause (d) (e) & (f) to Clause (5) but it is submitted that the said clauses could not bind the plaintiff as the Perpetual Sub-lease in his favour had been executed on 3.12.1966. RSA No.12/2001 Page No.10 of 34 As regards the Punjabi Bagh Plot No.25/41, it is submitted that the same was in fact purchased in 1964 for the benefit of the five sons of the plaintiff ostensibly in the name of the plaintiff and his sons, Jagdish Rai Aggarwal and Shri Ved Perkash by Sale Deed dated 22.10.1964. Initially, the plaintiff became a member of that Society but subsequently, the membership/share was transferred by the plaintiff to the name of Shri Ved Perkash, one of the sons, on 24.12.1965, and the said property is now held by Shri Jagdish Rai Aggarwal and Shri Ved Perkash for themselves and their other brothers, who are all married with their families and are all independent. The plaintiff ceased to be a member in 1965 of the said Society.” 20. Perusal of the replication shows that the appellant reiterated the stand taken by him in his plaint and additionally stated that :- A. In the year 1966, i.e. at the time when the perpetual Sub-Lease was executed there were no restrictions on the members of the Society from holding any other property in Delhi apart from the plot allotted to them by the Society. B. He has never sworn a false affidavit as alleged by the DDA. C. He was a benami owner of the plot in Punjabi Bagh and in any case in the year 1965 he transferred the ownership of the said plot in favour of his son Ved Prakash i.e. before the execution of the perpetual Sub-Lease Deed dated 3.12.1966. 21. On the basis of pleadings of parties under-noted 5 issues were framed by the Trial Court:- “1. Whether the action of the defendant in RSA No.12/2001 Page No.11 of 34 cancelling the lease is illegal and ultra vires? OPP 2. Whether the suit is barred for want of notice u/s 53-B, DD Act? OPD 3. Whether the plaintiff has any right, title or interest in the suit property? OPP 4. Whether the plaintiff is entitled to the relief claimed? OPP 5. Relief.” 22. In support of his case appellant examined himself as PW- 2 and one Mr.A.B.Gupta, Office Assistant, Panch Shila Cooperative House Building Society as PW-1. 23. A.B.Gupta in his testimony as PW-1 deposed that on 6.5.1961 appellant was admitted as a member of the society. That on 19.7.1964 suit property was allotted to the appellant by the Society. In order to establish the membership of the appellant in the Society PW-1 duly proved application filed by the appellant for membership in the Society as PW-1/1, members register of the Society as Ex.PW-1/2, share allotment register of the Society as Ex. PW-1/3 and counter foil of the share certificates issued to the appellant by the Society as Ex.PW-1/4. 24. Appellant in his testimony as PW-2 deposed on the lines of the pleadings filed by him. 25. As regards affidavit Ex.PW2/D1 dated 11.6.1966 allegedly executed by him appellant deposed as under:- “I do not know English and cannot read and write. I can only sign in English. Several lease deeds wee presented for registration on that day and the RSA No.12/2001 Page No.12 of 34 person representing the society asked me to sign as a witness in the perpetual sub-leases of other members. I signed as a witness in several perpetual sub-lease. I do not know what was written on the papers which I signed...........I have seen paper mark-X, I cannot say who got the same typed. I cannot read its contents. I never went to any Oath Commissioner. I do not know if this is the affidavit claimed by DDA to be executed by me. I never violated any terms and conditions of the bye-laws of Punchsheel Housing Society. XXXXXX by Shri A.K. Goel for DDA Ex. PW2/D1 bears my signatures. I did not file this to DDA. DDA never asked me to submit any affidavit to the effect that I have no other property. (Vol. There was no such rule in 1964 when the plot was alloted to me). There was no occasion for me to file the copy of sale deed of Punjabi Bagh plot with DDA. It is correct that lease of plot no.77 was sought to be cancelled by DDA..........It is incorrect that I filed Ex.PW2/D1 with DDA.” 26. As regards ownership of the plot in Punjabi Bagh appellant deposed as under:- “My son Shri Ved Parkash is the member of Punjabi Bagh Refugee Housing Society. He purchased plot No.25 Punjabi Bagh colony, Rohtak Road from Shri Sarabjit Singh. He got the sale deed executed in favour of himself, my other son Shri Jagdish Rai Aggarwal and myself. The sale deed was executed on 22.10.64 and was presented for registration on 23.10.64. The plot in Punchsheel had already been alloted to me on 19.7.1964. There was not restriction on my part to become a member of the said society or to the allotment of the plot in my favour Ex.P-2 is the certified copy of the sale deed of the Punjabi Bagh Society. On a part of the said plot NO.25, Punjabi Bagh, I and my sons jointly constructed the small house. My elder son and the other son have filed a suit against me and the two sons mentioned in the sale deed claiming ownership of the said land and property on the ground that it belongs to HUF. The said suit is still pending in the Court of Ms. Rekha RSA No.12/2001 Page No.13 of 34 Rani CJ, Delhi.........My sons were not dependent on me. They use to carry on their own business and have their independent income.” 27. It is relevant to note that in his examination-in-chief appellant has not deposed to the effect he had transferred ownership of the plot in Punjabi Bagh in favour of his son Ved Prakash before the execution of the perpetual sub-lease deed Ex.DW1/1 whereas in the replication appellant has emphatically averred to said effect. 28. As regards show cause notice Ex.DW1/2 dated 26.3.1980 allegedly served upon him appellant deposed as under:- “I cannot say whether I received letter date 26.3.80 from DDA. The address on the notice dated 26.3.80 has been correctly mentioned. (Vol. This firm was closed about 15-16 years ago). I do not remember the date when it was closed. No letter was received by me at the address of the shop during the period is lying closed.” 29. On behalf of DDA Durga Dass, Superintendent, CS Cell, DDA was examined as DW-1. DW-1 proved the perpetual Sub-Lease Deed dated 3.12.1966 as Ex.DW1/1, show cause notice dated 26.3.1980 allegedly served upon the appellant as Ex. DW1/2, envelope bearing endorsement 'refused to receive' as Ex.DW-1/3 and cancellation letter dated 21.1.1981 as Ex.DW-1/4. 30. After noting the provisions of Clause-III of the perpetual Sub-Lease Deed dated 3.12.1966 learned Trial Court has held that the appellant obtained allotment of the suit property and got executed perpetual Sub-Lease Deed dated 3.12.1966 in respect of the suit property on the basis of mis-representation of facts and thus RSA No.12/2001 Page No.14 of 34 committed a breach in terms of Clause-III of the perpetual Sub- Lease. In this regard decision of the Trial Court reads as under :- “11. .........Ex.P-1 was the copy of the perpetual sub-lease executed between the defendant, Punchsheel Coop. House Bldg. Society and the plaintiff dated 3rd December, 1966 in respect of plot