Delhi District Court
Sh. J.S Chadha vs The Estate Officer on 4 December, 2019
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IN THE COURT OF MS. POONAM A. BAMBA
DISTRICT & SESSIONS JUDGE (SOUTH DISTRICT)
SAKET: NEW DELHI
CISPPA022018
CNRDLST010005082018
Sh. J.S Chadha
Prop. Vatika Restaurant & Banquets
Inside Deer Park
Hauz Khas Village
New Delhi. .....Appellant.
Versus
1. The Estate Officer
South West Zone,
Delhi Development Authority,
Vikas Sadan, INA, New Delhi.
2. Delhi Development Authority,
Vikas Sadan, INA, New Delhi,
to be served through its
Vice Chairman ......Respondents.
Date of Institution : 23.01.2018.
Judgment reserved on : 03.12.2019
Judgment pronounced on : 04.12.2019
APPEAL UNDER SECTION 9(2)(c) OF PUBLIC
PREMISES (EVICTION OF UNAUTHORIZED
OCCUPANTS) ACT, 1971 AGAINST THE
ORDER EVICTION DATED 15.01.2018
CISPPA022018 JS Chadha vs DDA Page No. 1 of 53
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JUDGMENT
1.0 Vide this appeal, the appellant Shri J.S Chadha has challenged the order of eviction dated 15.01.2018 ("impugned order" in short) under Section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 ("P.P. Act" in short) passed by the Estate Officer with respect to property Vatika Restaurant & Banquets, Inside Deer Park, Hauz Khas Village, New Delhi ("suit premises" in short).
1.1 For the purpose of convenience, the respondent no. 2 DDA shall be referred to as "the respondent".
2.0 The appellant has submitted that no one was ready to take the suit premises to run a restaurant in view of its location and condition. In view of which, a letter of invitation was sent to the appellant by the DDA / respondent bearing no. 56/Hort.IV, 9596 dated 16.03.1995 to participate in the tender for running a restaurant, as the appellant is well established in hospitality trade. The appellant agreed to take the suit premises / deserted site on assurance of DDA / CISPPA022018 JS Chadha vs DDA Page No. 2 of 53 :: 3 ::
respondent that he shall be given the suit premises for a longer period as a huge investment was required to be made in development of the same. It was assured that though initially the suit premises would be given for five years, further extensions would be given to the appellant. On the basis of said assurance, the appellant agreed to take the suit premises.
2.1 The appellant has further submitted that a huge amount of more than Rs.40,00,000/ was spent by him towards development of the suit premises and in arranging equipment and the furniture etc. to make it fit for running the restaurant. It came to be known as one of the best restaurants not only in India but also abroad. It even received awards for about five years consecutively from Ministry of Tourism, Government of India.
2.2 The appellant has also submitted that although, no further agreement was executed, the extensions were automatically given in view of the understanding between the appellant and the DDA / respondent . However, taking advantage of non execution of further agreement, DDA / CISPPA022018 JS Chadha vs DDA Page No. 3 of 53 :: 4 ::
respondent initiated against him, the proceedings for eviction and recovery of damages under the P.P Act. The said proceedings culminated in passing of eviction order by the Estate Officer. The same was however, set aside by the Ld. District & Sessions Judge (as his Lordship then was) in the appellant's appeal and the matter was remanded back to the Estate Officer for readjudication by giving an opportunity of hearing to the appellant.
2.3 It is submitted that after remand back, again the order of eviction was passed, which was challenged by the appellant; and the matter was again remanded back to the Estate Officer. After the remand back, the Estate Officer vide order dated 16.01.2015 closed the case at his end and remanded the matter back to Dy. Director (Horticulture IV) for consideration of the appellant's request for parity with KIC Food Product (P) Ltd., which was similarly placed and several extensions were given to it.
2.4 It is further submitted by the appellant that the said order dated 16.01.2015 was challenged by the DDA / respondent by way of the appeal bearing no. PPA 13/16.
CISPPA022018 JS Chadha vs DDA Page No. 4 of 53 :: 5 ::
However, during the said proceedings, the appeal was withdrawn and was accordingly dismissed by Ld. District & Sessions Judge vide order dated 13.07.2017 . But the said issue of considering the appellant's case on parity with the aforesaid concern, remained undecided and has not been decided till date; and fresh proceedings for eviction under P.P Act were initiated against the appellant leading to passing of the impugned order under challenge in this appeal.
3.0 The appellant has challenged the impugned order inter alia, on the grounds that:
(i) the Estate Officer has failed to follow the procedure laid down under P.P Act and did not provide proper opportunity of hearing to the appellant. Therefore, the impugned order is violative of principle of natural justice and needs to be set aside and placed reliance upon the judgment in UOI vs T.R. Verma;
(ii) the Estate Officer despite being an independent quasi judicial authority acted under the influence of DDA / respondent , being their CISPPA022018 JS Chadha vs DDA Page No. 5 of 53 :: 6 ::
official;
(iii) the Estate Officer passed the impugned order without application of judicial mind and without considering the submissions made by the appellant and without appreciating that despite order dated 16.01.2015 of the Estate Officer, Horticulture Department of the respondent had not decided the issue of parity till date;
(iv) the Estate Officer failed to appreciate that the suit premises was not given on licence but was leased to the appellant. If at all the term "licencee" used in the agreement is considered, the same was an irrecoverable licence, as the appellant had carried out construction of a permanent nature with the consent of the DDA/ the respondent; and the same is covered under Section 60(b) of Easement Act. Further, the appellant had been in exclusive possession of the property without any interference from the respondent since the date of initial allotment in CISPPA022018 JS Chadha vs DDA Page No. 6 of 53 :: 7 ::
the year 1995 and there has been no violation of any of the terms and condition for using the said premises by the appellant;
(v) the Estate Officer also failed to appreciate that if a lessee continues to be in possession of the property after determination of the lease and the lessor continues to accept the rent from the lessee, the lease shall continue to be in existence as per Section 106 of Transfer of Property Act, 1882 ( Hon'ble Supreme Court in 'VashuDeo Vs Bal Kishan). In the instant case, the appellant continues to be in occupation and has been regularly paying the rent;
(vi) the Estate Officer did not appreciate that the DDA/ the respondent could not have cancelled the agreement without serving a show cause notice and admittedly no such notice was ever issued to the appellant;
(vii) the Estate Officer mechanically dismissed CISPPA022018 JS Chadha vs DDA Page No. 7 of 53 :: 8 ::
the application of the appellant without appreciating its submissions and the law referred to/ relied upon by the appellant. He did not appreciate that the civil suit filed by the appellant raising similar contentions is pending before the civil court;
(viii) the Estate Officer has issued the order in a letter form and not in prescribed Form B and it has not been served upon the appellant as per Rule 3 of P.P Rules. Further, the impugned order dated 15.01.2018 was received/ notified to the appellant on 16.01.2018 and thus, the appellant was given only 13 days to vacate the suit premises as against the prescribed period of 15 days as per Form B.
4.0 Respondent/ DDA made oral submissions and subsequently also filed written arguments. It is submitted by the respondent that as per the appellant himself no extension for occupation of the suit premises was given to the appellant after the initial agreement. The appellant therefore, has CISPPA022018 JS Chadha vs DDA Page No. 8 of 53 :: 9 ::
failed to show his authority to occupy the suit premises after 31.12.2010; the appellant automatically came under the purview of Section 2 (g) of the PP Act, which defines 'unauthorized occupant'. Thus, the appellant had no right to occupy the suit premises thereafter and has been in unauthorized occupation. It is also submitted that the onus was on the appellant to show his authority to occupy the suit premises. Despite repeated opportunities given by the Estate Officer, the appellant failed to prove the same.
4.1 It is further submitted by the respondent/ DDA that the appellant has raised contradictory pleas. On one hand, it is submitted that the suit premises was given on lease and not on licence basis and on the other hand, it is submitted that it was an irrevocable licence. Further, these pleas are also contrary to the appellant's own admission in his representations dated 05.02.2014, 27.08.2014 and 04.02.2015 wherein it is admitted that the suit premises was given on licence basis. Therefore, the Estate Officer rightly held that the appellant is a licensee of the suit premises, which belongs to the respondent /DDA and the licence stood expired by efflux of time; and the appellant is in unauthorised CISPPA022018 JS Chadha vs DDA Page No. 9 of 53 :: 10 ::
occupation of the suit premises.
4.2 It is also submitted by DDA/ the respondent that the appellant's contention that he could not be evicted as he had made huge investment, is also untenable. Moreso, as the appellant has not challenged the terms and conditions of the licence whereby the suit premises was allotted to the appellant for a fixed period. Even otherwise, similar contention raised by the appellant in judgments in CS(OS) 651/2013, titled as 'Indian Hotels Company Limited Vs NDMC' decided on 05.09.2016, (2007) 8 SCC 75 'Aggarwal & Modi Enterprises (P) Ltd. Vs NDMC, CS(OS)No.618/2015, titled as 'Ms Aresko Restaurant Pvt.
Ltd. & Anr. Vs New Delhi Municipal Corporation & Anr. and 'DDA Vs M/s Anant Raj Agencies Pvt. Ltd.' were rejected by the Hon'ble High Court and Apex Court. Even the plea as raised by the appellant that in view of Section 60(b) of Easement Act he could not have been evicted from the suit premises, was rejected in those cases.
4.3 It is further submitted by the respondent that the appellant has levelled baseless allegations against the Estate CISPPA022018 JS Chadha vs DDA Page No. 10 of 53 :: 11 ::
Officer, a quasijudicial authority, only for the sake of making out his case, which has no basis.
4.4. The respondent / DDA has also submitted that in view of these facts, as the appellant failed to show his authority to occupy the suit premises after 31.12.2010, the respondent no.1 / Estate Officer has rightly passed the impugned order after duly considering the facts and going through the records / documents. The appeal therefore, calls for dismissal.
5.0 I have heard Sh. P.K. Rawal, Ld. Counsel for the appellant, Sh. Dhanesh Relan, Ld. Counsel for the respondents and have also perused the record carefully.
6.0 Let me at the outset mention that this matter had a chequered history. For the purposes of clarity, the background of the matter is briefly given hereunder:
(i) Admittedly, the suit premises was allotted to the appellant vide Agreement dated 03.07.1995 which was entered into CISPPA022018 JS Chadha vs DDA Page No. 11 of 53 :: 12 ::
between the appellant/ M/s Vatika Restaurant & Banquet, Pragati Maidan, Near Hall No. 7, New Delhi 110001 (referred to as Contractor) and DDA/ the respondent.
Vide said Agreement, the appellant was given the suit premises for an initial period of 11 months at a licence fee of Rs.
3,13,000/ per annum; and the same was to be renewed upto five years subject to payment of annual licence fee in advance and subject to terms and conditions as indicated in the contract and letter dated 29.06.1995;
(ii) Admittedly, no further Agreement was entered into with the appellant. The appellant continued to be in possession of the suit premises and is in occupation of the same, even at present;
(iii) On 09.10.2000, the appellant filed a Suit for Permanent Injunction bearing Suit No. 348/2000 CISPPA022018 JS Chadha vs DDA Page No. 12 of 53 :: 13 ::
seeking Permanent Injunction against DDA/ the respondent from dispossessing the appellant from the said premises. The said suit is stated to be still pending before the court of Sh. Bharat Aggarwal, Ld. Sr. Civil Judge, Tis Hazari and is now fixed on 05.12.2019. In the said suit, the Ld. Civil Judge vide order dated 24.10.2000 allowed the appellant's application under Order 39 rules 1 & 2 CPC directing the DDA /the respondent herein not to dispossess the appellant from the suit premises except by due process of law; and with further directions that the appellant shall abide by any terms and condition imposed by the DDA on him and shall not flout any term and condition of the allotment. DDA had preferred an appeal against the said order (dated 24.10.2010) by way of MCA No. 196/2000. The same was dismissed by Ld. ADJ (as her Lordship then was) vide order dated 14.12.2000;
(iv) the respondent/ DDA meanwhile, initiated proceedings for eviction against the appellant CISPPA022018 JS Chadha vs DDA Page No. 13 of 53 :: 14 ::
herein under PP Act. Notice u/S 4 PP Act dated 11.12.2002 was issued to the appellant. The said proceedings culminated into passing of order of eviction under Section 5 P.P Act on 29.04.2003 by the Estate Officer;
(v) the aforesaid order of the Estate Officer dated 29.04.2003 was challenged by the appellant by way of appeal bearing PPA No.115/03. In the said appeal, Ld. ADJ, Delhi (as his Lordship then was) vide order dated 09.03.2004 remanded the matter back to the Estate Officer observing that the appellant's application under Order 9 rule 7 CPC (praying for setting aside order vide which the appellant was proceeded ex parte by the Estate Officer) was not disposed of. The Estate Officer was directed "to first dispose of application of the appellant u/o 9 Rule 7 CPC and thereafter to decide the eviction proceedings as per law". The parties were directed to appear before the Estate Officer on 29.03.2004. After remand back, the Estate Officer after hearing the appellant, CISPPA022018 JS Chadha vs DDA Page No. 14 of 53 :: 15 ::
passed an order of eviction u/S 5 of P.P Act dated 01.09.2004;
(vi) meanwhile, notice under Section 7 of P.P. Act with respect to damages was issued to the appellant on 22.06.2004. In the said proceedings an order of recovery of damages u/S 7(3) of PP Act was passed on 22.06.2005 directing the appellant to pay the damages w.e.f. 01.10.2002 to
30.03.2004;
(vii) both the above orders i.e. order of eviction dated 01.09.2004 and order of recovery of damages dated 22.06.2005 were challenged by way of two separate appeals bearing PPA nos. 13/2008(old no. 195/04) and PPA no. 12/2008 (old no.126/05), respectively. Both the said appeals were allowed vide common judgment dated 04.11.2011 by the Ld. District & Sessions Judge, South (as his Lordship then was) and the matter was remanded back to the Estate Officer with following observations /directions:
CISPPA022018 JS Chadha vs DDA Page No. 15 of 53 :: 16 ::
"...11. The appellant has placed on record letter dated 08.12.2009 of Deputy Director Horticulture, DDA, interalia, indicating that the licence in respect of the public premises in question which was earlier validated upto 30.09.2000, has been further extended by the competent authority, subject to certain conditions. The conditions include payment of past arrears at certain rate specified in the communication along with compounded interest. It is fairly conceded by the counsel for the DDA that pursuant to the said communication, the appellant has deposited, and DDA has accepted, part payment to the tune of Rs.72.50 lacs approximately. In this view of subsequently developments, there is indeed substance in the additional submissions made today that the validity/enforceability of the order of eviction seems to have been rendered doubtful with the concerned department having suo motu decided to extend the licence for period after eviction order even while the appeal) challenging the same is pending. Further, damages having been demanded and partly paid/received the effect of order under Section 7 of Public Premises Act is also brought under cloud. But then, these aspects will need to be considered at length, interalia, in light of full and effective compliance of the conditions on which allotment is being extended by the DDA, by the Estate Officer in the remanded proceedings.
12. For the forgoing reasons, the impugned orders are set aside. The matters arising out of notices under Section 4 and 7 of Public Premises Act are remanded for further proceedings in accordance with law to the Estate Officer. It has been fairly conceded by the counsel for the appellant that he CISPPA022018 JS Chadha vs DDA Page No. 16 of 53 :: 17 ::
shall not raise any further objection to the validity of notice for show cause under Section 4 of the Public Premises Act on the ground of deficient description of the public premises.
.....14. The parties shall appear before the Estate Officer on 01.12.2011 at 02.30 PM."
(ix) After remand back, the Estate Officer passed order dated 16.01.2015. Vide said order, he closed the DDA's case at his end and remanded the matter back to the Dy. Director (Hort.)IV for consideration of the appellant's request for continuing in possession in parity with another licencee namely, KIC Food Product (P) Ltd.
". . . . .
"I myself have conducted hearing and after thorough enquiry I myself of the view that the present case has not been dealt in parity with the other leased out property such as KIC of Kwality which is continuing for 30 years comprising of 4 restaurants plus Banquets. It has been given 6 th extension with 25% increase....."
"...Further in view to settle long dispute between DDA and the agency; considering the request of the agency and also in the interest of providing established/insuring good catering service during the Commonwealth Games 2010, the Hon'ble Lt.Governor of Delhi vide orders dated 10.07.2009 granted the extension CISPPA022018 JS Chadha vs DDA Page No. 17 of 53 :: 18 ::
upto 31.12.2010, its show the high reputation and caliber of the agency in the market.
Though there is highest bid of Rs.3,31,000/ P.M. for a fully operative world class restaurant....."
"...In the interest of justice considering the comprehensive issues raised in the judgment lying pending for above 10 years, I hereby close the case at my end and remanded back the case to Dy. Director (Horticulture) IV for consideration of the request of the respondent for adopting the principles of parity and same system of enhancement of License fees and extension of license similar to other persons/ agencies given on license basis for long period with several extensions as in the case of KIC Food Product (P) Ltd. Further the matter is already pending before the trial court hence the decision of the Hon'ble court should be acceptable to both the parties".
(x) Aggrieved by the aforesaid order dated 16.01.2015, the respondent DDA preferred an appeal bearing PPA No. 13/16. But the said appeal was later withdrawn and was dismissed as withdrawn vide order dated 13.07.2017, in view of the statement made by Ld. Counsel for the DDA to the effect that :
"13.07.2017 Statement of Sh. Dhanesh Relan, Enrolment No.D777/97R, Advocate CISPPA022018 JS Chadha vs DDA Page No. 18 of 53 :: 19 ::
for DDA.
Without oath The appeal as filed by DDA be allowed to be withdrawn without prejudice to the rights and contentions of DDA as fresh eviction notices have already been issued to the respondent, pleadings in which eviction notices are complete and the matter is listed before the Estate Officer for final arguments on 14.07.2017.
RO&AC District & Sessions Judge, South."
(xi) the aforesaid eviction proceedings initiated vide notice under Section 4 P.P. Act dated 19/ 20.12.2016 culminated in passing of the impugned order dated 05.01.2018, which is under challenge in the present appeal.
7.0 In view of the above, admittedly the suit premises was given to the appellant vide Agreement dated 03.07.1995. The said Agreement mentions that the terms and conditions contained in the contract attached to the tender and affixed to the said deed/ Agreement and the letter dated 29.06.1995 of acceptance of tender shall be binding on the parties. With respect to period of allotment of suit premises, the terms and conditions for allotment of Restaurant / suit premises as per agreement dated 03.07.1995, read as under: CISPPA022018 JS Chadha vs DDA Page No. 19 of 53 :: 20 ::
"1. The allotment shall be for a specific period of 5 years.
2. ......
11. The tenderer will maintain the building in a habitable condition and do the routine annual/periodical maintenance at his own cost. DDA will not bear any expenses on this account......"
7.1 Further, the relevant portion of letter dated 29.06.1995 (of acceptance of tender), containing terms and conditions of allotment, reads as under: "1. The allotment is on licence Fee Basis for 11 (eleven) months on a licence fee of Rs.3,13,000/ (Rs. three lacs thirteen thousands only) per annum to be paid in advance, to be renewed upto five years, subject to receipt of annual Licence fee in advance....
2. ....
3. No right, title or interest in the and / structure shall accrue in favour of licensee / 2nd party on a/c of grant of the licence.
4. .....
7. The licence can be cancelled by the Director (Hort.) DDA without assigning any reason but after giving a notice to licensee (30 day's notice). Decision of the Director (Hort.) DDA shall be final and binding and shall not be questioned before any forum/Court, in respect of violation of terms and conditions.........
9. On completion of period of contract on CISPPA022018 JS Chadha vs DDA Page No. 20 of 53 :: 21 ::
sooner determinations thereof, the licensee shall peacefully remove his material and handover the possession of the site back to DDA.
10. The licensee shall not claim any amount on a/c of loss or profit or damages for earlier determination of the contract......
12. The authorised officer of the DDA can inspect the site and premises during the business hours to check that no terms / conditions are being violated and the licensee shall not raise any objection. ...........
16. The tenderer / licencee will not allowed to make any additions on the outside of the structure. However, you are permitted to make suitable Wooden Compartment / partitions within the allotted area...........
20. In case of any dispute arising out of the said allotment of any claim of the tenderer, the decision of V.C. DDA shall be final and binding".
7.2 From the plain reading of the above Agreement and letter dated 29.06.1995, it is evident that the suit premises was allotted to the appellant on licence basis. Further, terms and conditions categorically mention that the allotment shall be for eleven months to be renewed for a period upto five years. Such renewal (upto five years) was inter alia made subject to regular payment of licence fee in CISPPA022018 JS Chadha vs DDA Page No. 21 of 53 :: 22 ::
advance every year and compliance of other terms and conditions.
7.3 Undisputedly, the five year period expired on 30.06.2000 / 03.07.2000. As per clause 9 of the terms and conditions contained in letter dated 29.06.1995 (reproduced above), on completion of the period of contract, the appellant was required to peacefully remove all his material and handover the vacant possession of the suit premises back to DDA.
7.3.1 It is not in dispute that no further agreement was executed in favour of the appellant. However, from the letter dated 08.12.2009 of Dy. Director Horticulture DDA on record, it is apparent that as the appellant continued to be in occupation of the suit premises, his occupation was later regularised vide said letter. As per said letter dated 08.12.2009, the licence in respect of the suit premises was earlier validated upto 30.09.2000; and vide said letter, it was further extended by the Competent Authority upto 31.12.2010.
CISPPA022018 JS Chadha vs DDA Page No. 22 of 53 :: 23 ::
7.4 Further, as per the aforesaid letter dated 08.12.2009, the extension/ regularisation was subject to certain terms & conditions contained therein. Relevant portion of said letter reads as under: "No.F.5(18)05/HDIV/DDA/Part I/4468 dated 08.12.09 To.
M/s Vatika Restaurant & Banquet, Deer Park, Haus Khas, New Delhi.
Sub: Running of Restaurant at Hauz Khas, Dear Park area on License Fee basis .
Sir, The restaurant of Dear Park at Hauz Khas was allotted to you on license fee basis on 3.7.95 for a period of five years subject to renewal of license fee after 11 months. The license fee was fixed for Rs.3,13,000/ per annum in 1995 by the Competent Authority. As per terms and conditions of the allotment, the license expired on 30.06.2000 which was then extended upto 30.09.2000.
To regularize the past period, subject to payment the realistic amount of license fee to the department on year to year basis and also have to clear the arrears for all these years together with 12% compound interest.
The reserve price based on L&DO land rates worked out to Rs.1,13,650/ per month and reserve price payable to be increased by 10% every year, license fee payable for the year 200910 has been worked out to Rs.2,69,000/ per month.
The Competent Authority has granted extension upto 31.12.2010 subject to the following conditions.
i) You have to withdraw the Court Case.
ii) You have to furnish an undertaking to the effect that you will have no claim for extension of license period after 31.12.2010 CISPPA022018 JS Chadha vs DDA Page No. 23 of 53 :: 24 ::
and you will vacate the premises without any hindrance. You will also undertake that the premises will be handed over to DDA in good condition; however, you can bid next time also.
iii)The past arrears as per rate with compound interest @12% amounts to Rs.2,42,34,662/(Rupees two crore forty two laces thirty four thousand six hundred sixty two only)may be deposited within 30 days after the receipt of this letter.
iv) Documentary proof of payment of license fee & interest if any for the period prior to 1.10.2000 may also be furnished.
Deputy Director(Hort.) Horticulture Division IV Copy to:
1. PS to Vice Chairman, DDA for kind information please.
2. PS to Finance Member, DDA for kind information please.
3. PS to Commissioner (LD), DDA for kind information please.
4. Directors (CL), DDA for information please.
5. Directors (Hort.) South, DDA for information please.
Deputy Director(Hort.) Horticulture Division IV"
7.4.1 From the above letter, it is apparent that the extension of occupation granted to the appellant upto 31.12.2010 was subject to the terms and conditions inter alia, that the appellant shall withdraw the court case filed by him. Admittedly, the said court case (Civil Suit No.348/2000) is still pending. Ld. Counsel for the appellant himself submitted that the said suit is pending before the CISPPA022018 JS Chadha vs DDA Page No. 24 of 53 :: 25 ::
court of Sh. Bharat Aggarwal, Ld. Sr. Civil Judge, Tis Hazari and is now fixed for 05.12.2019.
7.4.2 The aforesaid letter dated 08.12.2009 also made it clear that the appellant shall not claim extension of licence after 31.12.2010 and shall vacate the suit premises without any hindrance. The appellant was even required vide said letter, to furnish an undertaking to that effect.
The appellant admittedly has not handed over the vacant possession and still continues to be in occupation. Ld. Counsel for the respondent submitted that the appellant did not even furnish the undertaking, as required. Same has not been disputed by the appellant.
7.4.3 Further, as per clause (iii) of the terms and conditions, the appellant was required to deposit Rs.2,42,34,662/ within 30 days of receipt of the said letter dated 08.12.2009. Ld. Counsel for the respondent submitted that the said amount has not been deposited by the appellant. Same has remained unrefuted.
CISPPA022018 JS Chadha vs DDA Page No. 25 of 53 :: 26 ::
7.5 In view of the above, it is more than evident that the appellant was allowed to occupy the suit premises upto 31.12.10 and that too subject to certain terms and conditions, which have not been complied with. The appellant has failed to demonstrate his authority to occupy the suit premises after 31.12.2010. Rather, the appellant's own letters seeking extension of licence show that admittedly, the licence had expired/ his authority to occupy had come to an end on 31.12.2010. In UOI Vs. S.M. Aggarwal, 1995 II AD (Delhi) 293, and in Bhisham Dev Vs Estate Officer 107 (2003) DLT 560, the Hon'ble Delhi High Court held that once the licence stands terminated, it is for the occupier to show that he is not an unauthorized occupant. Therefore, the onus was upon the appellant to show his authority to continue to occupy the suit premises.
8.0 Let me now examine whether the appellant has been able to discharge that onus. The appellant has contended that although, the agreement was for five years but the suit premises was given to him with the understanding that it shall remain with him for a longer period in view of the investment, which was required to be made in development CISPPA022018 JS Chadha vs DDA Page No. 26 of 53 :: 27 ::
of the same. Further, the suit premises was given to him on lease and not on licence basis. It was further pleaded that even if the term "licence" as mentioned in the Agreement is considered, it was an irrevocable licence as the appellant had made huge investments/ carried out construction of permanent nature with the consent of respondent/ DDA and the same is covered under Section 60(b) Easement Act and placed reliance upon the Judgment in Ram Sarup Gupta (dead) by LRs vs Bishun Narain Inter College and others, AIR 1987 SC 1242. It was also argued that in view of Section 106 of Transfer of Property Act, the appellant could not have been termed as an unauthorised occupant in view of the fact that he has continued to be in possession of the suit premises and the respondent/ DDA has been continuously accepting the rent from him.
8.1 On the other hand, Ld. Counsel for the respondent submitted that the appellant was governed by the written agreement, which categorically mentioned that the licence was to be continued for a period of five years that too subject to certain terms and conditions. No such understanding as pleaded was there; more so, in the light of CISPPA022018 JS Chadha vs DDA Page No. 27 of 53 :: 28 ::
written agreement. Though, further retention was later regularised by letter dated 08.12.2009 upto 30.12.2010, same was subject to certain terms and conditions, which also were not complied with by the appellant. Even the appellant's contentions that the suit premises was given on lease and that with the acceptance of rent by the respondent, the lease continues till date are also frivolous and false to the appellant's knowledge. Same is clear from the appellant's own letters dated 26.04.2000, August 2000, 27.08.2014, 05.12.2014 and 04.02.2015 whereby, the appellant has admitted that the suit premises was given on licence and he had been seeking extension of licence thus, admitting its expiry.
8.2 Let me mention here that in view of the terms of Agreement dated 03.07.1995, letter dated 29.06.1995 and even letter dated 08.12.2009, there is no doubt that the suit premises was given to the appellant on licence basis. Further, in his letters dated 27.08.2014, 05.12.2014 and 04.02.2015, the appellant himself has referred to his occupation as licencee as he sought extension of the licence. Further, in his letters dated 05.02.2014, 27.08.2014 and 04.02.2015, the CISPPA022018 JS Chadha vs DDA Page No. 28 of 53 :: 29 ::
appellant himself has mentioned that the suit premises was allotted to him on licence fee basis. From the record, it is also evident that the licence stood expired on 30.06.2000; and even the regularised period also ended on 31.12.2010.
8.2.1 Further, as far the appellant's contention of an understanding between him and DDA is concerned, it may be mentioned that the appellant has failed to demonstrate from record, any such understanding between him and the respondent that the appellant shall be allowed to remain in possession for a longer period in view of huge investment to be made by him for development of the suit premises, as pleaded. It is noteworthy that rather, the Agreement dated 03.07.1995 specified that no right, title or interest in land and/ structure shall accrue in favour of licencee/ the appellant and that 'the tenderer/ licencee will not be allowed to make any additions on the outside of the structure. It further clarified that however, suitable wooden compartment / partitions within the allotted area was permitted to be made.
8.2.2 It would be pertinent to mention here that the appellant's own letters show that in view of expiry of licence CISPPA022018 JS Chadha vs DDA Page No. 29 of 53 :: 30 ::
to his knowledge (as per agreement), the appellant (prior to expiry of Agreement on 30.06.2000) wrote a letter dated 26.04.2000 to DDA/ the respondent and made a request for the extension of lease for "another 10 years at mutually agreed terms and conditions"; even after expiry of extended regularised period, the appellant vide his subsequent letters dated 27.08.2014, 05.12.2014 and 04.02.2015 sought extension of licence for a period of five years. The fact that the licence had expired and the appellat's authority to occupy the suit premises came to end is also evident from DDA's letters to the appellant dated 04.10.2000, 29.09.2000,
09.10.2000, 06.10.2000 and 12.10.2000. Thus, it is evident that the above contention is bereft of any merit and has been raised for the sake of argument. In view of these facts, even the appellant's contention that it became an irrevocable licence in terms of Section 60(b) Easement Act, in view of huge investment/ permanent construction raised by the appellant, is untenable.
8.3 As far as the appellant's contention that the Estate Officer could not have decided the issue whether the suit premises was given on lease or licence basis, as the said issue CISPPA022018 JS Chadha vs DDA Page No. 30 of 53 :: 31 ::
is subjudice before the Ld. Civil Judge in the appellant's suit is concerned, the respondent has submitted that vide said suit, the appellant has only prayed that the respondent/ DDA be injuncted from dispossessing the appellant from the suit premises; whether it is a lease or licence is not even an issue before the said court. Even otherwise, the suit is not maintainable in view of bar of jurisdiction of a civil court with respect to public premises in terms of Section 15 PP Act.
8.3.1 In view of the findings recorded in preceding para8.2 and its subparas, I find no substance in the appellant's contention. Rather, the appellant's own letters seeking extension of licence show that admittedly, the suit premises was given on licence basis; and that the licence had expired/ his authority to occupy had come to an end on 31.12.2010. Thus, the judgment of Hon'ble High Court in 'Satwir Kumar Vs Sh. Subhash Kukreja', 1997 III AD(DELHI)532 relied upon by the appellant in this regard is of no assistance in the instant case.
8.4 Even if the appellant's contention that there was CISPPA022018 JS Chadha vs DDA Page No. 31 of 53 :: 32 ::
an understanding with the respondent/ DDA that the appellant shall be allowed possession for a longer period is considered for a while, the same does not help the appellant in any manner. It is noteworthy that the licence expired on 30.06.2000 but the appellant continued to be in occupation of the suit premises for a further long period of almost 10 years;
his occupation was regularised upto 31.12.2010 vide letter dated 08.12.2009, that is for another ten years period after expiry of licence on 30.06.2000. Vide said letter, the appellant was duly informed that he shall not claim any further extension after 31.12.2010. Though, it was clarified that the appellant can bid for the suit premises, the next time. Thus, the appellant's occupation for a long period of about ten years despite expiry of licence in 2000, was allowed/ regularised; the said period also came to an end on 31.12.2010.
8.5 The appellant's contention that as he has been in continued possession and the DDA/ the respondent has been accepting rent, he could not have been termed as unauthorised occupant, is concerned, also holds no water in view of the decision of Full Bench of Hon'ble Delhi High CISPPA022018 JS Chadha vs DDA Page No. 32 of 53 :: 33 ::
Court in Chandu Lal Vs Delhi Municipality, AIR 1978 Del 174 (FB), wherein it was held that acceptance of license fee subsequent to the revocation does not amount to acquiescence of possession and the licensors' right to evict the licencee remains unaffected. Even in Aisha Jalal V. Lt.
Governor & Others, 2003 III AD (Delhi) 303, Hon'ble Delhi High Court held that mere acceptance of damages / payment for occupation of a public premises, does not create any right, title or interest in favour of the unauthorized occupant. Chandu Lal's case (supra) was also referred to in a recent case of Aresko Restaurant Pvt. Ltd. (supra), as relied upon by the respondent/ DDA. In that case, the Hon'ble High Court in para30 observed: "30. This court is also of the view that mere acceptance of the licence fee subsequent to revocation of licence would not mean that NDMC had extended the term of licence. It is well settled that merely on acceptance of licence fee after its determination would not amount to deemed extension. In Chandu Lal (supra) a Full Bench of this Court has held as under: "34. Shri Saigal next contended that on revocation of the licence, the petitioners possession of the Kiosks was that of trespasser and CISPPA022018 JS Chadha vs DDA Page No. 33 of 53 :: 34 ::
having accepted license fee subsequent to the revocation of the license, the Corporation acquiesced in the possession of the petitioners as tresspasers, in the circumstances the Corporation has no right to dispossess the petitioners by force. This submission is equally devoid of force ..."
8.5.1 This position of law also came to be reitereated by Hon'ble Supreme Court in Anant Raj Agency Pvt. Ltd.'s case (supra), (as relied upon by the respondent).
9.0 Ld. Counsel for the appellant also argued that setting aside of order of eviction dated 01.09.2004 by the Ld. District & Sessions Judge vide order dated 04.11.2011 and remand back of matter to the Estate Officer, automatically amounted to further extension. Further, after remand back, the Estate Officer vide order dated 16.01.2015 closed the respondent's case for eviction and remanded the matter back to Dy. Director (Hort.)IV for consideration of the appellant's request for extension in parity with other licencee namely, KIC Food Product Pvt. Ltd; the same was never considered and instead fresh eviction proceedings under P.P Act were illegally CISPPA022018 JS Chadha vs DDA Page No. 34 of 53 :: 35 ::
initiated vide fresh notice u/S 4 PP Act leading to the passing of the impugned order. Thus, the appellant's authority to occupy the suit premises has continued and still continues.
9.1 It is noteworthy that no such plea of automatic extension of licence in view of setting aside of eviction order and remand of the matter back to the Estate Officer was raised before the Estate Officer. Even otherwise, in the light of findings recorded in preceding paras, such a plea is absolutely frivolous on the face of it.
9.2 Now coming to appellant's plea that despite directions of the Estate Officer, his representation for parity with KIC Foods Product (P) Ltd. was not considered and rather, fresh proceedings for eviction were initiated. In this respect, Ld. Counsel for the respondent submitted that the appellant's representation was duly considered by the Dy.
Director (Hort.)IV and was rejected finding no merit in the same. There was no question of any parity, as no special treatment was ever given to M/s KIC Food Product Pvt. Ltd. Order of eviction had already been passed on 31.05.2015 against M/s KIC Food Product Pvt. Ltd. Rather, the Writ Petition filed by M/s KIC Food Product Pvt. Ltd. for stay CISPPA022018 JS Chadha vs DDA Page No. 35 of 53 :: 36 ::
against the eviction order was dismissed by the Hon'ble High Court directing Ld. District & Sessions Judge to dispose of its appeal in time bound manner. Ld. Counsel for the respondent placed on record, a copy of order/ report dated 14.12.2016 of Dy. Director (Hort.)IV disposing of the appellant's application for parity with KIC Foods Product Pvt. Ltd.
9.2.1 The relevant portion of the report of the Dy.
Director (Hort.)IV DDA, dated 14.12.2016, reads as under:
"DELHI DEVELOPMENT AUTHORITY Office of Director (HORT.), VIKAS MINAR, NEW DELHI REPORT ON COMPLIANCE OF THE ORDER PASSED BY ESTATE OFFICER (LM) SWZ, DDA No.F10(62)1314/HD4/DDA/1911 dated 14.12.2016 "......
......
I have perused the file and relevant order passed by the Estate Officer of the DDA and the Hon'ble Court from time to time. The undisputed facts which are matter of record are as follows:
......
9....
The Estate Officer in his order dated 16.01.15 sought to draw parity with KIC Food Products (P) Ltd. However, reliance on the KIC Food Products (P) Ltd is totally illfounded on account of the reason that the Estate Officer of the DDA has already passed an order dt.31.05.15 for eviction against M/s KIC Food Products (P)Ltd. The Court of Ld. District & Session Judge, Saket initially CISPPA022018 JS Chadha vs DDA Page No. 36 of 53 :: 37 ::
refused to grant any stay against the vacation and therefore, KIC Food Products (P) Ltd. approached the Hon'ble Delhi High Court. The Delhi High Court disposed the case of KIC Food Products (P) Ltd. With direction to Ld. District & Sessions Judge to dispose the appeal of KIC Food Products (P)Ltd. in a time bound manner.
The appeal of M/s KIC Food Product(P) Ltd.4/2015 has been decided and the case has been remanded back to the Estate Officer for reconsideration in accordance with natural justice and principle of law. Therefore, no special treatment was ever given to M/s KIC Foods Pvt. Ltd. The case of KIC is also not applicable to the case in hand as in the case of a Licensee, the powers to extend / renew the License lies only with the Authority and such extension has to be communicated to the party concerned. ... no extension beyond 31.12.2010 was ever approved by the Authority and thus there could never be any reason or occasion to communicate such an extension.] Even otherwise all steps have been taken by DDA to evict KIC Foods as per law. Thus, the facts of KIC do not help the cause of Mr. J.S Chadha and on the contrary are completely against Mr. J.S. Chadha and warrant the eviction of Mr. J.S Chadha from the premises in question.
...The facts remain that Mr. J.S Chadha has no authority to occupy public premises after expiry of his licence. Moreover, he himself has violated the terms & conditions of extension of time mentioned above after expiry of his licence. As per record a sum of Rs.5,36,60.730/ (Provisional) {Rupees five crores, thirty six lakhs, sixty thousand, seven hundred and thirty only} as communicated vide letter dt.13.07.2016 by Dy. Dir(LPC)to Mr. J.S. Chadha.
CISPPA022018 JS Chadha vs DDA Page No. 37 of 53 :: 38 ::
Therefore, the representation of Mr. J.S Chadha is hereby rejected without any merits and the Estate Officer is requested to initiate fresh proceedings for eviction as well as recovery of damages against Mr. J.S Chadha in a time bound manner.
(Jitendra Singh) Dy.Director(HortIV) Delhi Development Authority"
9.3 From the above, it is evident that the appellant's representation for parity with M/s KIC Food Products Pvt.
Ltd. was duly considered and rejected. Thus, the appellant's plea that the initiation of fresh eviction proceedings/ passing of the impugned order without deciding his representation for parity, also lacks merit.
9.4 In view of the above facts and circumstances and the findings recorded in preceding paras, the appellant has utterly failed to discharge the onus and show his authority to occupy the suit premises after 31.12.2010.
10.0 Ld. counsel for the appellant also argued that in view of the remand back of the matter, the respondent/ DDA could not have issued a fresh notice u/S 4 P.P. Act on 19/ 20.12.2016 because, the proceedings which began with CISPPA022018 JS Chadha vs DDA Page No. 38 of 53 :: 39 ::
issuance of notice dated 11.12.2002 continued. Thus, the said fresh notice is non est and the impugned order passed pursuant thereto cannot be sustained. In support, reliance was placed on the judgment of Hon'ble Delhi High Court in 'Inderjeet Singh vs MCD', 158(2009)DLT 46. From the complete background of this case as detailed in para6.0 (supra), it is clear that the respondent's case (application for eviction) was closed vide order dated 16.01.2015 of the Estate Officer and Dy. Director (Hort.) IV was directed to consider the appellant's representation seeking parity with KIC Food Products Pvt. Ltd. The same was then considered and only after rejection of the same, fresh proceedings under PP Act for eviction were initiated vide notice in question. In view of the same, there is hardly any merit in the appellant's contention.
11.0 Ld. counsel for the appellant further argued that notice u/S 4 PP Act dated 19/ 20.12.2016 was not as per law and therefore, the entire proceedings are rendered illegal. It was submitted that notice was signed on 19.12.2016 whereas, the date on the top of the notice is 20.12.2016. Secondly, the notice was not in prescribed Form A, which requires CISPPA022018 JS Chadha vs DDA Page No. 39 of 53 :: 40 ::
minimum 7 days' notice. Notice was issued on 20.12.2016 calling upon the appellant to appear before the Estate Officer on 23.12.2016. Thus, the appellant was given only 3 days' notice. Thirdly, the ground mentioned in the notice is only "unauthorized occupant/ encroacher of the Government Land/ public premises". No reason for/ background as to how the appellant was an unauthorized occupant is given; same is a concealment of fact and therefore, the impugned order passed by the Estate Officer tantamounts to fraud played on the appellant. Reliance in this respect was placed on judgments of Hon'ble High Court in cases of 'D.S.I.D.C vs. K.C Bothra & Others', 108 (2003) DLT 447 and 'Sudhir Goel vs. MCD 2004 IV AD (Delhi) 493'.
11.1 Ld. Counsel for the respondent in this respect submitted that the above argument cannot be considered, as no such pleas were raised before the Estate Officer. Even otherwise, from the appellant's own correspondence with DDA, it is evident that the appellant is well aware of expiry of, licence by efflux of time/ and of the regularisation of occupation coming to an end on 31.12.2010.
CISPPA022018 JS Chadha vs DDA Page No. 40 of 53 :: 41 ::
11.2 Perusal of the notice under Section 4 PP Act on record shows that the same has been issued in Form A as prescribed under the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971 ("PP Rules" in short). As far as the appellant's plea that he was given only 3 days' notice is concerned, suffice it to state that after amendment in PP Act in the year 2015 (w.e.f. 22.06.2015), Section 4(2)(b)(i) requires that notice for appearance be given of a date "not later than seven days". Thus, it only provides the outer limit (of 7 days) and not the minimum notice period. Whereas, prior to amendment, the Act provided for a notice of "not earlier than seven days from the date of notice". After amendment, Section 4(2)(b)(i) now reads as under: "4(2) The notice shall
(b)(i) to show cause, if any against the proposed order on or before such date as is specified in the notice, being a date not [later than] seven days from the date of issue thereof, and"
11.2.1 It is seen from the Estate Officer's record that even otherwise, on appearance before the Estate Officer, the appellant had sought 15 days' time to file reply, which was CISPPA022018 JS Chadha vs DDA Page No. 41 of 53 :: 42 ::
granted; even thereafter, the time as sought was allowed. Hence, the appellant anyway was given more than requisite time to show cause.
11.3 Now coming to the appellant's argument that under the head "ground", notice under Section 4 PP Act only mentioned that the appellant is unauthorised occupant; but it did not mention as to how he became an unauthorised occupant; and thus, the impugned order cannot be sustained. This argument is evidently frivolous to the appellant's own knowledge, in view of the facts and circumstances and findings recorded in preceding paras. It may be mentioned at the cost of repetition that thrice, the proceedings for eviction under PP Act have been conducted by the Estate Officer, in view of remand back of the matter by the court; and the appellant is well aware of the complete background of initiation of proceedings for eviction.
11.3.1 Be that as it may. Vide letter dated 29.09.2000, the appellant was called upon by the respondent/ DDA to hand over the vacant possession of the suit premises, categorically mentioning that the extension period was CISPPA022018 JS Chadha vs DDA Page No. 42 of 53 :: 43 ::
coming to an end on 30.09.2000. Further, even earlier, the appellant's own letters dated 26.04.2000, August, 2000, 11.08.2000, 21.08.2000, 24.08.2000, 01.10.2001, 04.06.2002, 25.08.2014, 05.12.2014, 04.02.2015 etc. to the respondent/ DDA seeking extension of licence and the response/ letters of DDA dated 12.06.2000, 26.09.2000, 06.10.2000 etc. clearly mentioning about the licence having come to an end on 30.06.2000/ 31.12.2010, clearly show that to the appellant's own knowledge, his authority to occupy the suit premises had come to an end on 30.06.2000; and even subsequent regularisation also ended on 31.12.2010; and that he was rendered an unauthorised occupant.
12.0 Ld. Counsel further argued that notice under Section 4 PP Act did not properly describe the suit premises; and on that ground alone, the impugned order needs to be set aside. In support, reliance was placed on judgments of Hon'ble High Court in Amulya Chandra Sutradhar & Anr. Vs. Estate Officer AIR 1964 Tripura 9, Sh. Bhagat Singh Vs DDA, AIR 1988 Delhi 174 and Minoo Framroze Balsara vs Union of India and others, AIR 1992 Bombay
375. CISPPA022018 JS Chadha vs DDA Page No. 43 of 53 :: 44 ::
12.1 Ld. Counsel for the respondent submitted that the appellant has been seeking extension of licence of the suit premises and had even been contesting the proceedings for his eviction before the Estate Officer from time to time. No such plea was ever taken. Same shows that the appellant is very well aware about the suit premises w.r.t. which the present notice under Section 4 PP Act was issued. Thus, it is evident that a frivolous plea has been raised before this court only for the sake of argument.
12.2 No doubt, the notice under Section 4 PP Act described the property as "Agreement No. 20/Hort.IV/9596 between DDA/ GM/ S Vatika Restaurant". But, from the above facts and circumstances and the record, it is evident that there has never been any confusion regarding the property, from which the appellant is sought to be evicted.
Rather, the appellant himself has stated before the Estate Officer that he has made huge investment in the suit premises and therefore, cannot be evicted from the same. Thus, he was well aware of the property referred to in the notice. It would also not be out of place to mention here that the appellant even pleaded before this court that the impugned order of CISPPA022018 JS Chadha vs DDA Page No. 44 of 53 :: 45 ::
eviction could not have been passed in view of pendency of his suit for permanent injunction against DDA not to dispossess him from the suit premises. It would be pertinent to mention here that Hon'ble High Court in Bhagat Singh's case (supra) (relied upon by the appellant himself), held that the minor discrepancy in the notice, which does not amount to misreading by the person on whom the notice is served, does not render the notice invalid. The Hon'ble Court in that case also referred to the judgment of Hon'ble Allahabad High Court in Abdul Rehman Vs. Savitri Devi 1971 RCJ 884 wherein, it was held: "... the test of its sufficiency is not what it (notice) would mean to a stranger ignorant of all the facts and circumstances touching the holding it purports to refer but what it would mean to tenant presumably conversant with all those facts and circumstances and further, that it is to be construed not with a desire to find faults which would render it defective but to be construed ut res magis valeat quam pereat. ..."
12.3 In view of the above facts and circumstances and settled position of law, there is hardly any merit in the appellant's contention. The judgments relied upon by the appellant to espouse his argument are hardly of any help to him.
CISPPA022018 JS Chadha vs DDA Page No. 45 of 53 :: 46 ::
13.0 The appellant has further contended that no notice of cancellation of licence was served on him. Hence, no proceedings for eviction u/S PP Act could have been initiated against him. Said contention also lacks merit.
Suffice it to state that the moment the licence comes to an end, occupation of such person becomes unauthorized. [DSIDC Ltd. Vs K.C Bothra & Ors., 108 (2003) DLT 447]. Further, in Sushila Verma & Ors. Vs. UOI & Anr. 2002 (65) DRJ, 795 (SN), the Hon'ble High Court held that no formal notice is required if license ends by efflux of time. Moreover, the appellant was duly called upon by the respondent/ DDA to handover the vacant possession of the suit premises, in view of licence coming to an end. Instead of vacating the premises, the appellant had been seeking extension of licence.
14.0 The appellant has also contended that the impugned order has been passed in violation of principles of natural justice; the appellant was not allowed to lead evidence and his application in this respect was dismissed without application of mind. On this ground itself, the impugned order needs to be set aside and has placed reliance CISPPA022018 JS Chadha vs DDA Page No. 46 of 53 :: 47 ::
upon judgments in 'Bhisham Dev Vs Estate OfficerIV DDA & Ors', 2004 I AD (Delhi) 352 and New India Insurance Assurance Co. Ltd. vs Nusli Neville Wadia, CA No.5879/2007 (2208) 3 SCC 279.
14.1 Ld. Counsel for the respondent submitted that the judgment of New India Insurance Ltd. (supra) relied upon by the appellant is of no help. Not every case calls for recording of evidence. In that case, the Hon'ble Supreme Court has drawn a distinction between different types of occupants of the public premises and one of them being an occupant who continues to occupy the premises even after cessation of contract. Such cases do not call for recording of any evidence.
14.2 As already mentioned above, the appellant was rendered an unauthorised occupant pursuant to expiry of licence on 30.06.2000; and even the regularisation period came to an end on 30.12.2000. The appellant has failed to point out before this Court, the evidence he intended to lead in order to show his authority to occupy the suit premises. In view of the same, there is hardly any merit in the appellant's CISPPA022018 JS Chadha vs DDA Page No. 47 of 53 :: 48 ::
contention and therefore, the judgments as relied upon by the appellant are of no assistance to him, though the law laid down therein, can hardly be contested.
15.0 The appellant has also contended that the impugned order is issued in a letter form and has not been issued in the prescribed Form B; and therefore, the impugned order needs to be set aside. Ld. Counsel for the respondent/ DDA submitted that the detailed order as well as short order in prescribed from were issued. However, he could not readily trace the same in the record. Be that as it may. Even if for a while, the appellant's contention is accepted, non issuance of order under Section 5 PP Act in Form B cannot be stated to be fatal, so as to render the impugned order invalid.
16.0 Ld. Counsel for the appellant also argued that the respondent's application for eviction was barred by Limitation in view of Section 3 read with Articles 66 & 67 Limitation Act, as per which an action for recovery of possession from a tenant has to be taken within 12 years of determination of tenancy. Cause of action against the appellant arose in September, 2000. Whereas, the present CISPPA022018 JS Chadha vs DDA Page No. 48 of 53 :: 49 ::
notice was issued on 20.12.16 i.e. after lapse of 12 years. It was also argued that the respondent/ DDA cannot claim to be the Central Govt. and cannot claim benefit of Article 112 Limitation Act. Thus, the impugned order needs to be set aside on this ground alone. Reliance in support is placed upon New Delhi Municipal Committee Vs Kalu Ram & Anr., AIR 1976 SC 1637, Ganpat Ram Sharma & Ors. Vs Smt. Gayatri Devi, 1987 AIR 2016 and Maheshwar Dayal (Deceased) Vs Shanti Devi & Others, 2012 III AD(Delhi)
123. 16.1 On the other hand, Ld. Counsel for the respondent submitted that eviction proceedings were duly initiated against the appellant vide notice dated 11.12.2002.
Thereafter, the proceedings have continued on account of remand back of the matter by the Ld. Court; and thereafter, the proceedings had to be reinitiated after consideration of the appellant's representation seeking parity with KIC Foods pvt. Ltd. as per the directions of the Estate Officer.
16.2 It is a matter of record that after expiry of licence on 30.06.2000, the respondent/ DDA had initiated CISPPA022018 JS Chadha vs DDA Page No. 49 of 53 :: 50 ::
proceedings for eviction under PP Act against the appellant vide notice under Section 4 PP Act dated 11.12.2002. The course of proceedings thereafter, has been discussed in detail in preceding paras particularly para6.0 (supra). Be that as it may. Even otherwise, there is no prescribed period of limitation for initiation of eviction proceedings w.r.t. public premises, though, no doubt the same should be initiated at the earliest. Judgment in Kalu Ram's case (supra), as relied upon by Ld. Counsel for the appellant is hardly applicable to the instant case, as the same talks about limitation period w.r.t. recovery of arrears of rent of public premises and not about eviction.
16.2.1 It would be pertinent to mention here that the Hon'ble Madhya Pradesh High Court in L.S. Nair Vs. Hindustan Steel Ltd. AIR 1980 MP 106 noted that Limitation Act has no applicability to the proceedings before the Estate Officer. While referring to Kalu Ram's case (supra), the Hon'ble Court even clarified the difference between recovery of arrears of rent and that of damages; and held that the limitation period applies only to recovery of arrears of rent and does not apply to recovery of damages CISPPA022018 JS Chadha vs DDA Page No. 50 of 53 :: 51 ::
under PP Act. The Hon'ble Court observed as under:
"10. ... It was also submitted that the recovery of damages for a period beyond 3 years was time barred. The Limitation Act has no application to proceedings before the Estate Officer who is not a Court. .... As the Limitation Act has no application to proceedings before the Estate Officer and as the jurisdiction of Civil Court is entirely barred in matters governed by the Public Premises Act, it is difficult to accept the argument that there is any period of limitation for recovery of damages. ... Further, Section 15 of the 1971 Act now bars a suit and the remedy under the Act is the only remedy which can be availed of. In such a situation, the Limitation Act cannot be inferentially applied to proceedings before the Estate Officer."
16.3 In view of the above, there is no substance in the appellant's contention. Other judgments relied upon in this respect by the appellant are thus, hardly of any assistance/ relevance to the present fact situation.
17.0 The appellant has also contended that the impugned order dated 15.01.2018 was received/ notified to him on 16.01.2018 and thus, he was given only 13 days' time to vacate the premises as against the prescribed period of 15 days as per Form B. No doubt, Form B (as prescribed under PP Rules) provides for 15 days' time for eviction. The impugned order was passed on 15.01.2018 calling upon the CISPPA022018 JS Chadha vs DDA Page No. 51 of 53 :: 52 ::
appellant to handover the vacant possession of the suit premises on or before 28.01.2018. No doubt, the order gave less than 15 days time to the appellant to vacate the suit premises. But, the fact remains that the appellant has not vacated the suit premises despite lapse of almost 2 years and is still in possession. Thus, even this contention is evidently made simply for the sake of argument.
18.0 The appellant has lastly contended that the Estate Officer being officer of DDA did not act independently despite being a quasi judicial authority under P. P Act.
18.1 The appellant has failed to show from record, any bias on the part of the Estate Officer in discharge of his duties. In absence of the same, the Estate Officer cannot be presumed to have acted in a bias manner merely because he is an officer of the DDA / respondent.
19.0 The appellant has also contended that the impugned order has been passed without application of mind and in violation of principles of natural justice. The perusal of the records shows that the appellant was duly heard and the Estate Officer has passed a reasoned order.
CISPPA022018 JS Chadha vs DDA Page No. 52 of 53 :: 53 ::
20.0 In view of the above facts and circumstances and findings recorded in preceding paras, I do not find any infirmity in the impugned order. Therefore, the same does not call for any interference. The appeal is accordingly, dismissed.
21.0 The record of the Estate Officer be returned alongwith copy of this judgment.
File be consigned to record room.
Announced in open Court today i.e. 04.12.2019 (POONAM A.BAMBA) District & Sessions Judge (South) Saket/New Delhi.
Digitally
signed by
POONAM POONAM A
BAMBA
A Date:
BAMBA 2019.12.07
12:53:38
+0530
CISPPA022018 JS Chadha vs DDA Page No. 53 of 53