The Supreme Court while stressing on the importance of 'affidavit' as a document has upheld the cancellation of allotment of a plot by NOIDA authority on the ground of 'falsification.'
The Division Bench comprising of Justice Hemant Gupta and Justice V Ramasubramanian noted that the Authority's decision was in line with the law as filing of fake affidavit is not permissible in law and the same cannot be sustained as affidavits filed are not mere sheet of paper but a solemn statement made before a person authorized to administer oath or to accept affirmation.
"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."
The petitioner had assailed the impugned judgment of the High Court uphelding the findings of the first Appellate Court wherein Trial Court's decree was affirmed.
The plaintiff-respondent was was allotted a residential plot no. 49 in Sector 30 by New Okhla Industrial Development Authority (NOIDA) as a member of the Defence Services Cooperative Housing Society.
Prior to allotment of sector 30 plot, plot No 84 was allotted to the plaintiff's wife on March 10, 1981. As per plaintiff's case 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 March 10, 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 Mrs. Kanta Modi after obtaining appellant's permission.
Later, a transfer deed was executed on October 25, 1990. On June 12, 1996 the plaintiff was served with a notice wherein it was mentioned that he had obtained Sector 30 plot by submitting a false affidavit as Sector 15A plot was already allotted to his wife. Plaintiff's grievance was that since the Sector 15A plot had been sold after obtaining permission from the appellant, therefore, the Sector 30 plot was the only plot in plaintiff's possession. With this claim, he filed a suit for declaration restraining the defendant-appellant from re-allocating the Sector 30 plot and from dispossessing him from the same.
However the plot was cancelled on 18.10.1996 after considering his reply. In the written statement so filed, it was asserted that there was no litigation in respect of the Sector 15A plot and that the 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 declaring 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 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.
Arguements
Learned Counsel for the appellant 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."
He referred to the the terms and conditions for the sale of developed leasehold rights of residential plots to the members of the Cooperative Housing Building Societies in NOIDA and averred that the allotment was cancelled for the reason 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.
On the other hand, 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.
Stating that 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, 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.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.
Supreme Court Observation
The Court at the outset noted 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.
It added that the allotment was said to be subject to terms and conditions as enclosed and the same 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."
The Court pointed out that even the second affidavit which the plaintiff sent to the appellant with his letter dated 1.12.1988 was in respect of allotment of a plot not in respect of delivery of possession as it stated that he, his spouse and dependent children do not own in full or in part on leasehold or freehold basis any residential plot.
"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 applied for permission to transfer which was granted and transfer deed was executed on 25.10.1990"
Remarking that 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, the Court highlighted that 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.
Attestation of an affidavit without oath
The Court mentioned M. Veerabhadra Rao Vs. Tek Chand, 1984 Latest Caselaw 195 SC wherein the SC looked into the case of conduct of appellant to attest an affidavit without oath and the attestation on the representation of the respondent that it bears his signatures had observed the below:“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……”
In view of the above, the Court therefore remarked:
"affidavits filed were not mere sheet of paper but a solemn statement made before a person authorized to administer oath or to accept affirmation. The plaintiff had breached such solemn statement made on oath."
It thus stated that 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.
The Court therefore concluded that cancellation of allotment of plot obtained after filing false affidavit is a legitimate ground of cancellation of lease.
It additionally remarked that 'Fraud vitiates all actions' and cited S.P Chengalvaraya Naidu Vs. Jagannath, 1993 Latest Caselaw 451 SC.
The appeal was accordingly allowed and the impugned judgements were set aside.
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