2000 Supreme(Del) 686

High Court Of Delhi
GIRDHARI LAL TEWARI - Appellant
Versus
UNION OF INDIA - Respondent
CIV.WRIT PETITION 3830 of 1996
Decided On : 08/21/2000

Headnote:Constitution of India, 1950 - Article 226 — Writ — Demolition of unauthorised constructions — Unauthorised transfer of land and constructions thereon — Entire deal shrouded by fraud and misrepresentation — Builders neither have any title nor any ownership right over the said land made constructions on the land unauthorisedly — Forgery and fabrication of documents — Public interest demands strict action in such matters in order to protect public land and clean environment, direction to dismantling and demolition of the entire construction.

       Held:

       The builders namely respondents 5 to 10 who neither have any title nor any ownership right over the said land made constructions on the land unauthorisedly. No sympathetic consideration could be shown to such persons where the entire deal is shrouded by fraud and mis-representation. Purchase was made by them without making proper enquiry of the Revenue Records and the connected registers. Forgery and fabrication of documents stare on the face of the records and such a murky deal should not receive any sympathetic consideration from the court. Any sympathetic consideration would definitely encourage such builders to violate law and acquire more public land through underhand and illegal means. Public interest demands strict action in such Matters in order to protect public land and clean environment. thereforee, we have no hesitation in our mind in directing for dismantling and demolition of the entire construction made on the aforesaid land by respondents 5 to 10 and the entire land should be restored to its original condition which we hereby order. The Delhi Development Authority is directed to maintain the said area as green in terms of the notification issued by the Government of India dated 12.7.1974. It is also held that neither Rati Ram nor his legal heirs or the successive purchasers including the respondents 5 to 10 as also the flat buyers derived any right, title or interest either in the land measuring 17 Bighas 14 bids was or in the superstructure built by respondents 5 to 10 on a part of the said land and by this order they are divested of all their alleged rights in the said land and superstructures. Restoration of the greenery in the area shall be completed by DDA within a period of 12 months from today and a report to that effect shall be filed in the Registry of this Court Possession of the property in question is restored to Delhi Development Authority and no obstruction or hindrance shall be caused to Delhi Development Authority by anyone in discharge of its functions in terms of the present order.

       Transfer of Property Act, 1882 - Section 41, 51 — Applicability — Unauthorised transfer, of land and unauthorised constructions — Demolition — Forgery and fabrication of documents — Contention that respondents having purchased the land without notice of fraud and being

       bona fide purchasers and having acted in good faith entitled to protection under Section 41 of the Act — Union of India and the Delhi Development Authority not responsible for permitting or creating any ownership in favor of the transferee, thereforee, such protection under Section 41 not available to the respondents.

       Counsel for respondents 5 to 10 during the course of his arguments submitted that the said respondents having purchased the land without notice of fraud and being bona fide purchaser and having acted in good-faith are entitled to protection under Section 41 of the Transfer of Property Act. The said section forms as exception to the general rule that no one can convey a better title than he himself has in the property. In a Privy Council case in Ram Coomar v. Mcqueen 11 BLR 46 the provisions of Section 41 were considered and interpreted. It was held in the said decision that it is a principle of natural equity, which must be universally applicable that where one man allows another to hold himself out as the owner of an estate, and a third person purchases it for value from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out, shall not be permitted to recover upon his secret title unless he can overthrow that of the purchaser by showing that either he (the purchaser) had a direct notice, or something which amounted to constructive notice of the real title, or that there existed circumstances which ought to have put him upon an inquiry which, if prosecuted, would have led to a discovery of it. To the similar effect is the decision of Seshumull M. Shah v. Sayed Addul Rashid and Ors.,on which the counsel for the respondents 5 to 10 placed reliance. It is needless to point out that in order to make out a case the transferee must further prove two things namely - that he made bona fide enquiries to ascertain that the transferor had power to make the transfer, and in addition the transferee must have acted in good faith. In our considered opinion the provisions of Section 41 cannot be said to be applicable to the facts of the present case, No consent either express or implied of the real owner is proved in the instant case. Neither the Union of India nor the Delhi Development Authority on whom the land in question vested had at any point of time expressed their consent either expressly or impliedly projecting the transferors as the ostensible owners of the property. Thus the Union of India and the Delhi Development Authority were not responsible for permitting or creating any ownership in favor of the transferee and thereforee, such protection is not available to the respondents No. 5 to 10. Similar would be the position as against the claim against Municipal Corporation of Delhi. The Corporation never claimed itself as the real owner of the property rather it had taken a stand that the land belonged to Union of India and now on the Delhi Development Authority by vesting. There is also no evidence on record that the Municipal Corporation had ever permitted or given consent, either expressly or impliedly for creating any ownership in favor of the transferee. The further two conditions for application of Section 41 T.P. Act as set out above are also not satisfied in the present case, for in the present case the predecessor-in-interest of respondents 5 to 10 namely -the 17 persons including Ashok Arora and/or the heirs of Rati Ram did not have the power to transfer the land and none of them could be said to be the ostensible owner with the consent of the real owner whether express or implied. It also cannot be said that the said respondents 5 to 10 made bonafide enquiry regarding the status of the land. In the facts and circumstances of the present case we are firmly of the opinion that the provisions of Section 41 are not attracted and the same are not applicable.