Gopal Vs. Dda - Court Judgment

Excerpt:
- divorce by mutual consent personal presence of parties exempted power of attorney to dissolve the marriage the special power of attorney in favour of one mr. lal babu tiwari was executed by the petitioner (husband) to appear before the court and testify about the contents of the petition. the petitioner has signed the petition before indian consulate high commission of india in uk under section 3(2) of the diplomatic and consular officers (oaths and fees) act, 1947 under which the documents do not require any further evidence.[para 3] if both the parties, by way of affidavits or through counsel, state that they are married, and are able to produce proof of the marriage and that they have been living separately and have not been able to live together for the prescribed period, then there can be no reason as to why the court should not record its satisfaction as envisaged under section 13-b(2) of hindu marriage act, despite the fact that parties had not appeared in person and pass a decree for divorce.[para 6] where the parties are living far away from the jurisdiction of the court competent to dissolve the marriage, the parties after filing their affidavits can appoint attorneys to act on their behalf. attorney is competent to act on behalf of the principal on the basis of power of attorney executed by the principal. the courts have been allowing attorneys to file the petition, to withdraw the petition, to carry on proceedings in the court on behalf of their principal in all other cases. the attorney can also act in matrimonial cases as per instructions of their principle. the court can take necessary precautions to prevent frauds being perpetuated on it but unless the court smells some kind of fraud being played with it, the court should normally recognize the act of the attorneys. i therefore allow this petition. the order of the trial court insisting on the personal appearance of the parties is set aside.[para 8] - 3. the land owned by the petitioner was acquired in 1978-80 and on an application for alternative plot in lieu of the acquisition, the case of the petitioner was recommended on 27/11/1987 for said allotment of alternative plot in village bhorgarh, delhi of 250 sq. since the petitioner failed to deposit the amount within time, this allotment was cancelled but on representation of the petitioner, allotment was restored on 12/3/1997. the petitioner deposited the full amount on 8/8/1997 and submitted the requisite documents on 11/6/1997. the possession was yet to be handed-over. solanki could enjoy the property. solanki stated that his disputes with the petitioner had been resolved and that he would like to withdraw the letter dated 11/7/1997. the allotment in favor of the petitioner was cancelled on 7/10/1998. 7. i have considered the submissions advanced by learned counsel for the parties.sanjay kishan kaul, j.1. rule.2. with the consent of the learned counsel for the parties, the petition is taken up for final disposal.3. the land owned by the petitioner was acquired in 1978-80 and on an application for alternative plot in lieu of the acquisition, the case of the petitioner was recommended on 27/11/1987 for said allotment of alternative plot in village bhorgarh, delhi of 250 sq. yds. the allotment letter was issued by the dda on 14/1/1993 allotting plot no. 11, sector b-4, pocket-4, measuring 209 sq. metres in narela residential scheme. since the petitioner failed to deposit the amount within time, this allotment was cancelled but on representation of the petitioner, allotment was restored on 12/3/1997. the petitioner deposited the full amount on 8/8/1997 and submitted the requisite documents on 11/6/1997. the possession was yet to be handed-over.4. a letter was received by the respondent on 11/7/1997 from one dr. k.s. solanki, stating that the property had been sold by the petitioner on power of attorney basis to him and requested that the property should be expeditiously transferred in favor of the petitioner so that dr. solanki could enjoy the property. the respondent taking cognizance of the said letter, issued a show cause notice to the petitioner dated 1/10/1997, alleging that the petitioner had violated clause 4(v) of the allotment letter while seeking restoration. the said clause is as under:-'if it is discovered at any stage that you have secured allotment by suppression of any fact or any mis-statement, misrepresentation, fraud or incorrect information the allotment will be considered to be void ab initio and you shall not be entitled to any compensation whatsoever, nor to the return of an premium paid by you.'5. simultaneously, the respondent also called upon dr. solanki to appear before the dda. the petitioner filed reply dated 21/10/1997, refuting the allegations. however, the petitioner did not appear personally before the respondent as stated by the respondent. it may be noted that the said dr. solanki never appeared before the respondent despite repeated reminders.6. a final show cause notice dated 31/7/1998 was sent to the petitioner, calling upon the petitioner to attend the office of the respondent failing which action for cancellation of plot would be initiated. on 28/9/1998, the said dr. solanki stated that his disputes with the petitioner had been resolved and that he would like to withdraw the letter dated 11/7/1997. the allotment in favor of the petitioner was cancelled on 7/10/1998.7. i have considered the submissions advanced by learned counsel for the parties.8. it is not in dispute that after the restoration of allotment of the petitioner, the petitioner deposited he amount and completed the necessary formalities. the only reason why the plot of the petitioner has been cancelled is the complaint sent by one dr. solanki. no documents have been filed along with the counter affidavit submitted by dr. solanki. it appears that only letter dated 11/7/1997 has been acted upon. in view of the subsequent letter dated 28/8/1998 dr. solanki stated that disputes had been resolved but a view has been taken that there is violation of the terms of the compromise by the respondent.9. the clause sought to be relied in the terms of allotment only requires that the allotment should not be procured by any mis-statement, mis-representation, fraud or incorrect information. in my considered view, no allotment has been sought by violation of any terms of the allotment letter. in fact, the allotment was made in 1993 and was only restored in 1997. further, the said dr. solanki never even came forthwith before the respondent to substantiate his allegations but on the other hand, withdrew even the said letter. in my considered view, it would not be open to the respondent to act merely on such a letter when the same has been refuted by the petitioner in writing and the complaint has also been subsequently withdrawn by dr. solanki.10. interestingly, the complaint was only of alleged sale of the plot on power of attorney basis and the respondent itself has recognised such sales and has been converting properties into freehold at request of such attorney holders.11. a writ of mandamus is issued, quashing the order of cancellation dated 7/1/1998. the respondent is directed to hand-over possession of the plot allotted to the petitioner within a period of three weeks from today.12. taking into consideration the fact that the petitioner has been deprived of the enjoyment of the plot for the last five years despite having deposited the full amount, the petitioner shall be entitled to cost of rs. 15,000/-.