NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY vs RAVINDRA KUMAR SINGHVI (DEAD) THR. LRS.

NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY vs RAVINDRA KUMAR SINGHVI (DEAD) THR. LRS.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 382 OF 2012

NEW OKHLA INDUSTRIAL DEVELOPMENT

AUTHORITY .....APPELLANT(S)

VERSUS

RAVINDRA KUMAR SINGHVI (DEAD) THR.

LRS.

.....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1. The present appeal has been filed by the original defendant against

the judgment and decree passed by the High Court on 25.02.2010

upholding the findings of the first Appellate Court dated 19.12.1999

whereby the decree of the Trial Court was affirmed.

2. The plaintiff-respondent was allotted a residential plot No. D-49, Sector30, Noida1

 as a member of the Defence Services Cooperative Housing

Society on 06.10.1981. The possession of the plot was handed over to

him on 24.08.1991.

1 Hereinafter referred to as ‘Sector 30 Plot’

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3. However, prior to the allotment of the said plot, plot No. 84, Sector15A, Noida2

 was allotted to Smt. Amila Singhvi, wife of the plaintiff on

10.03.1981. As per the pleaded case of the plaintiff, there was an

uncertainty on account of litigation between the Society of which he

was a member with the appellant authority. Therefore, the plot at

Sector 15A was applied for, which was allotted to the plaintiff’s wife on

10.3.1981. It was pleaded that since the plaintiff was interested in

Sector 30 plot as member of the Society, therefore, the wife of the

plaintiff transferred the Sector 15A plot in favor of one Mrs. Kanta Modi

after obtaining permission from the appellant. Later, a transfer deed

was executed on 25.10.1990.

4. The plaintiff was served with a notice on 12.06.1996 that the Sector 30

plot had been obtained by him by submitting a false affidavit as Sector

15A plot was already allotted to his wife. The grievance of the plaintiff

was that since the Sector 15A plot has been sold after obtaining

permission from the appellant, therefore, the Sector 30 plot was the

only plot in possession of the plaintiff. With the said claim, the suit for

declaration was filed restraining the defendant from re-allocating the

Sector 30 plot and from dispossessing the plaintiff from the same. After

considering the reply, the plot was cancelled on 18.10.1996.

5. In the written statement filed by the appellant, it was asserted that

there was no litigation in respect of the Sector 15A plot and that the

2 Hereinafter referred to as ‘Sector 15A Plot’

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plaintiff was aware of the allotment of the Sector 15A plot when Sector

30 plot was allotted. However, the plaintiff intentionally concealed such

factum of allotment and filed a false affidavit for the Sector 30 plot. It

was also pleaded that the plaintiff was aware of the terms and

conditions of allotment that the plaintiff and his wife cannot retain both

the plots separately. The Sector 15A plot was sold only to conceal the

fact of obtaining double allotment. It was further contended that Sector

15A plot was allotted on 10.03.1981 and the wife of the plaintiff sworn

an affidavit on 04.03.1983 that the allotee, her spouse and dependent

children have not been allotted residential plot/house/flat in Noida,

Delhi or New Delhi. The plaintiff was allotted Sector 30 plot on

06.10.1981. The plaintiff had also filed an affidavit along with his letter

dated 1.12.1988 that he, his spouse and dependent children did not

own in full or part any residential plot/house/flat in Noida, Delhi and

New Delhi. The affidavit filed by the plaintiff reads thus:

“AFFIDAVIT

I, Ravindra Kumar Singhvi S/o Late Shri K.M. Singhvi R/o of E227, East of Kailash, New Delhi-110065, aged about 39 years do

hereby solemnly affirm and state on oath as under:-

1. That I have attained the age of majority on 26.01.1968.

2. That I am a bonafide and registered member of the

Defence Services Cooperative Housing Society (Regd.) in

my own name and right on May 1, 1976.

3. That I have deposited Rs.125/- as membership fee of the

above cooperative housing society on 18.07.1975.

4. That I, my spouse and dependent children do not own in

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full or in part on lease hold or free hold basis any

residential plot or house in NOIDA and have not been

allotted any plot, or house on hire purchase basis in

NOIDA complex.”

6. The learned Trial Court decreed the suit inter alia on the ground that

the lease executed in favour of the plaintiff cannot be determined

merely by passing the subject order in terms of Section 111 (g) of the

Transfer of Property Act, 1887 as no notice for determination of lease

under the said section has been issued. Therefore, all rights in the

lease would survive. The first Appellate Court and the High Court

affirmed the findings recorded by the Trial Court. The High Court

further held that plaintiff and his wife had no ulterior motive to

perpetrate fraud on the appellants. It was noted that there was no

willful or dishonest intention on the part of the plaintiff and his wife.

7. Learned counsel for the appellant herein argued that the entire basis of

the decree passed by the Courts was erroneous and wholly untenable

in law. Lease was not cancelled for the reason that there was any

violation of the terms and conditions of the lease. The allotment was

cancelled as false affidavits were filed by the allotees of both the plots

which knocks down the very allotment since it was obtained by

concealing material facts. The appellant had a policy that a family

would not get more than one plot so as to provide housing to large

number of citizens.

8. Learned counsel for the appellant also referred to the letter of

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allotment of plot to the plaintiff dated 6.10.1981 along with the terms

and conditions for the sale of developed leasehold rights of residential

plots to the members of the Cooperative Housing Building Societies in

New Okhla Industrial Development Area (NOIDA). It was contended

that such terms and conditions were applicable to all the Cooperative

Housing Building Societies. The relevant conditions read thus:

“1. ELIGIBILITY:

 Any person who is competent to contract. A person himself

owning or in the case of his/her spouse or dependent children

owning a plot or house within municipal corporations of Delhi or

New Delhi or Noida Complex will not be eligible for allotment of a

plot in NOIDA.

2. NOTE MORE THAN ONE PLOT:

 An eligible person will be allotted not more than one residential

plot in the New Okhla Industrial Development Authority. Area

separately eligible for allotment of plot and for this purpose they

shall be treated as a single eligible person.

xxx xxx xxx

15. LEASE DEED AND OTHER CONDTIONS OF LEASE

xxx xxx xxx

(I) If the allotment of lease of the plot is obtained by any

misrepresentation misstatement or fraud or if there is any

breach of the conditions of the lease, the allotment or as the

case may be, the lease may be cancelled and the possession of

the plot and the building thereon may be taken over by the

Authority and the lessee will not be entitled to any

compensation.”

9. Thus, it was averred that the allotment was cancelled for the reason

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that the wife of the plaintiff was allotted a plot earlier in point of time

but still, the plaintiff filed an affidavit not disclosing the allotment of

such plot to his spouse. Thus, it was a violation of the terms and

conditions of the allotment.

10. On the other hand, Mr. P.S. Patwalia, learned senior counsel for the

plaintiff argued that the terms and conditions of the sale of developed

leasehold rights have not been produced on record. The plaintiff

became the member of the Cooperative Housing Society in the year

1976 but the disputes were pending for a long time. Therefore, the plot

at Sector 15A was sought, which was allotted to his wife.

Subsequently, after the settlement of the dispute, such plot was

allotted to the Society and as a member of the Society, he has been

allotted a residential plot.

11. It has been admitted by the plaintiff-respondent that on account of

dispute regarding the allotment, no construction has been raised over

the said plot.

12. It was further submitted that in terms of Section 14 of the Uttar

Pradesh Industrial Development Act, 1976, the Chief Executive Officer

can resume the site or building in case of non-payment of

consideration or any installment or breach of any condition of such

transfer or breach of any rule or regulation made. The judgment of this

Court reported as ITC Limited v. State of Uttar Pradesh & Ors.

3

3 (2011) 7 SCC 493

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has been relied upon to submit that in case a lessee commits default in

paying either the premium or lease amount or commits breach of any

term of the lease, the Chief Executive Officer alone can resume the

plot. The Authority to resume implies and includes the Authority to

unilaterally cancel the lease as well.

13. It was also argued that the finding of fact recorded by the trial court

and affirmed by the First Appellate Court was not interfered with by the

High Court in the second appeal as no substantial question of law

arose for consideration. Learned counsel for the respondent also relied

upon judgments of this Court reported as Teri Oat Estates (P) Ltd. v.

U.T., Chandigarh & Ors.

4 and Managing Director, Haryana State

Industrial Development Corporation & Ors. v. Hari Om

Enterprises & Anr.

5

 to contend that determination of lease has to be

the last resort.

14. We have heard learned counsels for the parties and find that the

plaintiff had invoked the jurisdiction of the Civil Court even though he

had filed a false affidavit that his spouse or dependent children have

not been allotted any plot.

15. It is an admitted fact that the wife of the plaintiff was allotted Sector

15A plot on 10.3.1981. The wife sworn an affidavit on 4.3.1983 that

neither she nor her spouse owned any other plot in Noida. It was on

6.10.1981 that the plaintiff was informed about allotment of residential

4 (2004) 2 SCC 130

5 (2009) 16 SCC 208

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plot measuring 450 sq. yards in Sector 30. The allotment was said to

be subject to terms and conditions as enclosed. The relevant extract

from such terms and conditions have been reproduced above. Such

terms clearly show that a person himself owning, or in case of his

spouse or dependent children owning a plot within the Municipal

Corporation of Delhi or New Delhi or Noida complex, will not be eligible

for allotment of a plot in Noida. The affidavit of the wife of the plaintiff

was false as the plot measuring 450 sq. yards stood allotted to the

plaintiff on 6.10.1981. Therefore, on the date the wife of the plaintiff

had sworn the affidavit, the Sector 30 plot was already allotted to the

plaintiff. The argument that plot might have been allotted but the

possession was not with the wife of the plaintiff is incorrect. The

affidavit was to the effect that she has not been allotted any plot either

in her name or in the name of her husband. The affidavit was not that

the plot has been allotted but possession has not been delivered.

16. On the other hand, the plaintiff had sworn an affidavit, sent to the

appellant with his letter dated 1.12.1988 that he, his spouse and

dependent children do not own in full or in part on leasehold or

freehold basis any residential plot. Even this affidavit is in respect of

allotment of a plot not in respect of delivery of possession. It may be

stated that when in 1988, the plaintiff had sworn the affidavit, the

lease deed dated 31.1.1983 already stood executed in respect of

Sector 15A plot. Since the lease was executed, the wife of the plaintiff

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applied for permission to transfer which was granted and transfer deed

was executed on 25.10.1990. The permission was granted by the

appellant without having knowledge of the fact that the husband of the

allottee has already been allotted a separate plot. Once an affidavit

has been filed which is on the face of it false to the knowledge of the

executants, no benefit can be claimed on the ground that delivery of

possession was given.

17. In M. Veerabhadra Rao Vs. Tek Chand

6

, this Court was considering

an affidavit attested by an Advocate in terms of Section 3(2) of the

Oaths Act, 1969. The conduct of appellant to attest an affidavit without

oath and the attestation on the representation of the respondent that it

bears his signatures, came up for consideration. In these

circumstances, this Court held as under:

“17. The expression 'affidavit' has been commonly understood to

mean a sworn statement in writing made especially under oath or

on affirmation before an authorised Magistrate or officer. Affidavit

has been defined in sub-clause (3) of Section 3 of the General

Clauses Act, 1897 to include 'affirmation and declaration in the

case of person by law allowed to affirm or declare instead of

swearing.' The essential ingredients of an affidavit are that the

statements or declarations are made by the deponent relevant to

the subject matter and in order to add sanctity to it, he swears or

affirms the truth of the statements made in the presence of a

person who in law is authorised either to administer oath or to

accept the affirmation……”

18. Therefore, affidavits filed were not mere sheet of paper but a solemn

statement made before a person authorized to administer oath or to

6 1984(Supp) SCC 571

9

accept affirmation. The plaintiff had breached such solemn statement

made on oath.

19. The terms and conditions of allotment conveyed to the plaintiff on

1.12.1988 have a specific clause that if allotment is obtained by any

misrepresentation or misstatement or fraud, the lease may be

cancelled and the possession of the plot and the building thereon may

be taken by the Authority. Therefore, cancellation of allotment of plot

obtained after filing false affidavit is a legitimate ground of cancellation

of lease. Fraud vitiates all actions as laid down by this Court in S.P.

Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) by

LRs. & Ors.

7

 wherein it was held as under:

“5. The High Court, in our view, fell into patent error. The short

question before the High Court was whether in the facts and

circumstances of this case, Jagannath obtained the preliminary

decree by playing fraud on the court. The High Court, however,

went haywire and made observations which are wholly perverse.

We do not agree with the High Court that “there is no legal duty

cast upon the plaintiff to come to court with a true case and

prove it by true evidence”. The principle of “finality of litigation”

cannot be pressed to the extent of such an absurdity that it

becomes an engine of fraud in the hands of dishonest litigants.

The courts of law are meant for imparting justice between the

parties. One who comes to the court, must come with clean

hands. We are constrained to say that more often than not,

process of the court is being abused. Property-grabbers, taxevaders, bank-loan-dodgers and other unscrupulous persons

from all walks of life find the court-process a convenient lever to

retain the illegal gains indefinitely. We have no hesitation to say

that a person, who's case is based on falsehood, has no right to

approach the court. He can be summarily thrown out at any

stage of the litigation.”

7 (1994) 1 SCC 1

10

20. The argument that the lease was required to be determined by the

Chief Executive Officer is not tenable. The determination of lease by

the Chief Executive Officer would arise if in case there was any

violation of the terms of lease. If the condition precedent for grant of

lease itself was fraudulent, the cancellation of lease was not required

to be preceeded by permission of the Chief Executive Officer. Still

further, the Chief Executive Officer has granted permission on

13.9.1998, though the cancellation order was passed on 18.10.1996.

Thus, it is a case of irregularity at best which stands removed with the

permission of the Chief Executive Officer. The argument that if the

statute prescribes a power to do a certain thing in a certain way, such

thing must be done in that way and other modes of performance are

necessarily forbidden is not applicable in the present case. Firstly, for

the reason that admittedly, false affidavits were filed by the plaintiff as

well as by his wife. The filing of a false affidavit disentitles the plaintiff

for any equitable relief. Secondly, any irregularity in the process of

cancellation stands cured with Chief Executive Officer granting

permission on 13.9.1998.

21. The judgment in ITC Limited as relied upon by the respondent is on

altogether different facts. In that case, the allotment made in favour of

ITC Limited was subject matter of challenge in Public Interest Litigation

in writ petitions filed before the Allahabad High Court. The issue was in

respect of cancellation of lease on account of violation of the terms,

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not based upon fraud in obtaining the lease.

22. The judgments of this Court in Teri Oat Estates and Hari Om

Enterprises are also on different facts wherein the Doctrine of

Proportionality was applied.

23. The fact is that the second plot allotted to the plaintiff had been

allotted against the express terms of allotment. Therefore, there is

neither equity nor any law in favor of the plaintiff. A person who

misleads the Authority in obtaining allotment of a plot is not entitled to

any relief.

24. Consequently, the appeal is allowed. The judgment and decree of the

courts below are set aside and the suit is thus dismissed.

.............................................J.

(HEMANT GUPTA)

.............................................J.

(V. RAMASUBRAMANIAN)

NEW DELHI;

FEBRUARY 15, 2022.

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