Ocean Investment And Finance (p) Ltd. And Others v. Union Of India And Others

P.N. Nag, J.

(1) In this application under Older 39 Rules I & 2 read with Section 151 of the CPC 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 & 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 & 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 u/s 269UC (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 basement 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 vocative 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 & 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 favor 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 lease. "The original sanction taken from Dda was obtained by the defendant No. 4 without disclosing the execution of the agreement to sell and by giving the impression that defendant No. 4 himself will carry out the construction.

(6) Further more the plan was sanctioned with the specific condition that defendant No. 4 should leave a set back of five feet wide by the side of plot No. J-1907. However the mandatory set up for five feet has not been adhered to and the property of. the neighbour, Mr. S. N. Mondal, may be damaged in the process. As there is clear contravention of the mandatory requirement of the sanctioned plan. the Dda is within its right to see that construction is carried out according to the sanctioned plan and no damages caused to the neighbouring building. In these circumstances the Dda has to cancel the sanctioned plan.

(7) Mr. Arun Mohan, learned counsel for the plaintiffs, during the course of arguments in order to demonstrate that he has a prima fade case in his favor vehemently contended that both the grounds taken by the Dda vide letter dated 1st May, 1989 cannot be sustained in the eyes of law. The first ground that Mr. S. M. Roy had sold the plot .without taking permission from the lessee, L&DO, Ministry of Urban Development, New Delhi is apparently untenable as the agreement to sell does not amount to sale nor does itself create any interest or charge on the plot. The second ground that there has been violation of sanctioned building plan during construction at site is also not sustainable for the reason that in fact there has been no violation and at any rate this controversy no longer survives as the building has already come to the ground floor level. At this stage it is suffice to point out that the plaintiff has no locus standi to challenge the cancellation of the sanctioned building plans by the Dda and in case anybody was aggrieved against such cancellation, it was defendant No. 4 alone who could have challenged the same and who has elected not to do so as will be discussed hereinafter.

(8) It Was next contended by Mr. Arun Mohan. counsel for the plaintiffs, that no doubt the plaintiff No. I is the intended purchaser of the property and no sale deed has yet been executed in its favor and a title still vests in the original owner, S. M. Roy. defendant No. 4. but the possession of the plot which has been given to the plaintiffs on the basis of agreement to sell is legal possession. Further, Mr. Jugal Kishore Malhan. the Director, has been given power of attorney and, Therefore, the plaintiffs have every right to hold the possession of the plot and raise construction thereon on behalf of defendant No.4. I am afraid such a contention cannot be upheld. As already referred to. the agreement to sell does itself not create any interest or charge on the land/ plot and does not amount to sale. It may he relevant to highlight at this stage that the colony of Chittaranjan Park was established, to. rehabilitate the displaced persons from East Pakistan by the Government as a matter of policy With this end in view the lease deed dated 24th July 1974 was executed in favor, of defendant No. 4. like other similarly situated persons with the President of India and restrictions were placed on the leases ,that they cannot alienate or part with the possession of the property except with the permission of the President of India. Defendant No. 4 has however, violated the terms of the lease deed particularly Clause l(viii). Defendant No. 4 accordingly not only cannot sell the property without specific permission of the President but also cannot part with the possession of the plot. In order to substantiate that the possession has rightly been delivered by defendant No. 4 to the plaintiff No. I as permission has been granted to defendant No. 4 io sell the property by Government of India under Chapter Xxc of the Income Tax Act is wholly fallacious on the face of it as permission is a pie-requisite to ensure that the price fixed is fair so as to prevent evasion of capital gains tax and the stamp duty and has no relevance to the requirement of the sanction of the President of India as stipulated in the lease deed. The agreement to sell entered into between plaintiff No. I and defendant No. 4 and parting with possession of the land by defendant No. 4 in favor of the plaintiffs on the basis of power of attorney not only contravenes the terms of the lease deed referred to above but is against the public policy. Therefore, the delivery of possession of the plot by defendant No. 4 to the plaintiff No. I on the basis of agreement to sell and carrying on construction thereon as an attorney of defendant No. 4 by the Director is not legally permissible as the very transaction is void being vocative of the terms and conditions of the lease deed and public policy. As such the court by allowing construction on the plot cannot put a premium on the illegal acts of the plaintiffs. Furthermore the Dda has come with a specific stand in. this connection that the mandatory set back of 5 has not been adhered to and thereby the property of the neighbour. Shri S. N. Mondal of J-1907 may be damaged in the process and, Therefore, the Dda is duty bound to cancel the sanctioned building plan as the construction has been made in breach of the aforementioned plan.

(9) The next argument advanced by counsel for the plaintiffs is that the sanction granted originally by the Dda attaches to the property and the land and not to the living persons. Anybody, may be a tenant or licensee contractor or attorney or intending purchasers or a purchaser under sale deed, is entitled to benefits of the sanction being the benefits attached. to the land. Therefore, since the plaintiffs are in possession of the land in dispute they have a right to challenge the cancellation of the sanction originally granted by the DDA. As already pointed out earlier, the delivery of possession by defendant No. 4 to the plaintiff No. I is in contravention of the terms of the lease deed and against the public policy and the person in possession of such land cannot be permitted in law to challenge the cancellation of the sanction originally granted by the Dda as it would put a imprimatur to the illegal acts of the plaintiff.

(10) Another contention of counsel for the plaintiffs that the cancellation of sanctioned building plan by Dda is discriminatory has also no force as no foundation has been laid down in the plaint for showing any indiscrimination nor any case has been made out for discrimination.

(11) This takes me now to the last contention of counsel for the plaintiffs that the plaintiffs may be allowed to raise construction on the basis of undertaking which is reproduced below:

"The plaintiffs will be carrying out the construction in terms of the plan sanctioned by the Dda and this construction, the plaintiffs shall carry out at their own risk and cost."

According to learned counsel, such a course will not cause prejudice" to anybody. In support of his submission he cited Salwan Education Trust v. Lt. Governor (1986 RLR 2. (1) Careful scrutiny of the facts of that case would reveal that case is distinguishable. In that case the issues of lack of locus standi and the lack of cause of action were not matters of consideration. Further the plaintiff in that case had got possession of the plot legally by allotment from Dda unlike in the present case. The question was whether the cancellation of allotment by Lt. Governor was correct. In these special circumstances the Supreme Court allowed construction at the risk of the plaintiff. There is no ratio applicable to Order 39 Rules 1 & 2 laid down in that case.

(12) For invoking jurisdiction of the court to seek temporary injunction, a Full Bench of this Court in Chandu Lal Vs. Municipal Corporation of Delhi, has laid down the following principles: Temporary injunction can be granted if the case is covered by the three principles, namely, (1) on making out a prima facie case, (2) on showing balance of convenience in petitioners favor, in that the refusal of the injunction would cause greater inconvenience to them and (3) whether on refusal of the injunction they would suffer irreparable loss. Granting an injunction is a matter of discretion and in its exercise the Court has to satisfy itself whether the petitioner have a triable case. Before invoking the jurisdiction of the Court to seek temporary injunction the petitioners are bound to show that they have a legal right and that there was an invasion of that right." In this case. as already referred to, the impugned action of Dda dated 1st May, 1989 cancelling the sanctioned building plan is directed against S. M. Roy, defendant No. 4 whose plan was sanctioned. Defendant No. 4 has not filed the present suit and who alone could possible have any grievance against the cancellation of the sanctioned building plan by the DDA. The plaintiffs no where come into the picture. No right, title or interest has been created in favor of the plaintiffs by any agreement to sell. Therefore, no prima fade case is made out in favor of the plaintiff. Furthermore. the balance of convenience also does not lie in favor of the plaintiffs as allowing the plaintiffs to raise construction on the land would be putting a premium on the illegal acts of the plaintiff and such a situation is against the public policy. There is no question of irreparable loss or injury being caused to the plaintiffs in case temporary injunction, as prayed for, is not granted to them.

(13) In the light of the above discussion, the application fails and is hereby dismissed.