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High Court Of Delhi
OCEAN INVESTMENT AND FINANCE PRIVATE LIMITED - Appellant
Versus
UNION OF INDIA - Respondent
Interim Application 3739 of 1989
Decided On : 09/21/1989
CHITTARANJAN PARK COLONY - LEASE DEED - CLAUSE 1(VIII) - AGREEMENT TO SELL - POSSESSION OF PLOT - PUBLIC POLICY - DDA SANCTIONED BUILDING PLAN - CANCELLATION - LOCUS STANDI - TEMPORARY INJUNCTION - PRIMA FACIE CASE - BALANCE OF CONVENIENCE - IRREPARABLE LOSS - DISMISSAL OF APPLICATION: 1. An agreement to sell does not create any interest or charge on the land/plot and does not amount to sale. 2. A lessee cannot alienate or part with the possession of the property except with the permission of the President of India as stipulated in the lease deed. 3. Delivery of possession of the plot by the lessee to the intending purchaser on the basis of an agreement to sell and carrying on construction thereon as an attorney of the lessee is not legally permissible as the transaction is void being violative of the terms and conditions of the lease deed and public policy. 4. The DDA is duty bound to cancel the sanctioned building plan if the construction has been made in breach of the mandatory setback requirement. 5. A person in possession of land in contravention of the terms of the lease deed and against public policy cannot be permitted in law to challenge the cancellation of the sanction originally granted by the DDA. 6. Temporary injunction cannot be granted unless the petitioner makes out a prima facie case, shows balance of convenience in his favor, and demonstrates that refusal of the injunction would cause irreparable loss.
Fact of the Case:
The plaintiffs, intending purchasers of a plot in Chittaranjan Park Colony, New Delhi, filed a suit for perpetual injunction to restrain the defendants from interfering with the construction being carried out by them on the plot. The DDA had revoked the sanction for the construction on the ground that the lessee had sold the plot without permission and that there had been a violation of the sanctioned building plan during construction. The plaintiffs contended that the agreement to sell did not amount to a sale and that the DDA's order was violative of principles of natural justice and discriminatory.
Finding of the Court:
The court held that the plaintiffs had no locus standi to challenge the cancellation of the sanctioned building plans by the DDA and that the DDA was within its right to cancel the plans as the construction had been made in breach of the mandatory setback requirement. The court also held that the plaintiffs' possession of the plot was illegal as it was in contravention of the terms of the lease deed and against public policy.
Issues: 1. Whether the plaintiffs had locus standi to challenge the cancellation of the sanctioned building plans by the DDA? 2. Whether the DDA was within its right to cancel the plans as the construction had been made in breach of the mandatory setback requirement? 3. Whether the plaintiffs' possession of the plot was illegal?
Ratio Decidendi: 1. The court held that the plaintiffs had no locus standi to challenge the cancellation of the sanctioned building plans by the DDA because they were not the owners of the plot and had no legal interest in it. 2. The court held that the DDA was within its right to cancel the plans as the construction had been made in breach of the mandatory setback requirement, which was a violation of the sanctioned building plan. 3. The court held that the plaintiffs' possession of the plot was illegal because it was in contravention of the terms of the lease deed, which prohibited the lessee from alienating or parting with the possession of the property without the permission of the President of India.
Final Decision: The court dismissed the plaintiffs' application for a temporary injunction.
( 1 ) IN this application under Older 39 Rules I and 2 read with Section 151 of the Code of Civil Procedure in a suit for perpetual injunction the plaintiffs have prayed to restrain the defendants from interfering with or obstructing the construction being carried out by the plaintiffs on plot No. J-1906, Chittaranjan Park, New Delhi, in terms of the plans already sanctioned by the Delhi Development Authority (for short, the DDA ).
( 2 ) THE relevant facts which emerge out of the plaint are that Mr. S, M. Roy, defendant No. 4, who is a displaced person from East Pakistan, was granted the lessen rights of and plot of land measuring 371. 2 sq. metres (444 sq. yards) bearing No. J-1906 in the colony known as Chittaranjan Park. This colony was planned by the then Ministry of Worirs and Housing in consultation with the Ministry of Rehabilitation as a public policy in order to rehabilitate the persons who migrated from East Pakistan (now Bangladesh ).
( 3 ) IN 1971, Mr. S. M. Roy, defendant No. 4, after obtaining sanction carried out construction of a single storeyed residential house. It appears that defendant No. 4 was desirous of selling the aforementioned plot and he accordingly entered into an agreement to sell dated 31-8-1988 with the plaintiff No. 1. A statement under Section 269 UC (in form 37-1) of the Income Tax Act was also filed before the authorities and no objection certificate was granted. Thereafter the balance money was stated to have been paid to the defendant No. 4 by the plaintiffs. The fourth defendant also after having undertaken to sell the property to plaintiff No. 1. appointed the Director of the plaintiff No. I Mr. Tugal Kishore Malhan (hereinafter referred to as the Director ), as attorney. Thereafter the plan was submitted for sanction to DDA and on. 8th December. 1988 the DDA granted sanction for the construction. It appears that thereafter the plaintiffs started construction on the riot after demolishing the building already constructed by defendant No. 4. Defendant No. 5. Mr. S. N. Mandal, who is a plaintiffs neighbour, filed a suit in the Subordinate Court and sot an ad-interim injunction order restraining the plaintiffs (defendants therein) from digging hasement and from removing the wall adjoining plot No. J-1907 without taking adequate measures. Since at the relevant time, the basement had already been due and no further digging was required, the wall adjoining plot No. J-1907 was raised without any demolition of the old wall so as to comply with the orders of the Court. It appears that Mr. Mandal approached the DDA and disclosed the fact of agreement to sell by defendant No. 4 to the plaintiff No. 1. The DDA revoked the sanction of the plans vide letter dated 1st May, 1989 (Annexure G to the plaint ).
( 4 ) THIS suit has been filed for perpetual injunction against the order dated 1st May, 1989 of the DDA revoking the original sanctioned plans of the building on various grounds, inter alia, that agreement to sell does not amount to an "instrument of sale" and on this account the plans cannot be revoked. Further the order is violative of principles of natural justice and is discriminatory and furthermore they have violated the sanctioned building plan during construction at site as alleged.
( 5 ) DEFENDANT No. 3, in its written statement, has taken various objections inasmuch as the plaintiffs have no right. title or interest in the property in question; there is no privity of contract between the plaintiffs, defendants 1 and 2 and them and the suit is, therefore, liable to be dismissed. Further the plaintiffs and defendant No. 4 are contravening the terms of the original lease deed dated 24th July, 1974 executed in favour of defendant No. 4. According to defendant No. 3, defendant No. 4 not only cannot sell the property without the specific permission of the President, but also cannot part with possession of the property in question, in contravention of the terms of the perpetual le
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