Delhi District Court
Satender Jha vs The Estate Officer on 29 November, 2019
IN THE COURT OF MS. TWINKLE WADHWA: LD. ADDITIONAL
DISTRICT JUDGE03:PATIALA HOUSE COURT:NEW DELHI
DISTRICT
PPA No. 39/18
Satender Jha
Prop. Avinash Marketing Co.
Health Care Dispenser
near Gate no.3, Dr. RML Hospital
New Delhi110001. .....Appellant
VERSUS
1. The Estate Officer
(Dr. Amita Sen)
Dr. RML Hospital
New Delhi110001
2. Sr. Ram Manohar Lohia Hospital
New Delhi 110001.
Through its
Medical Superintendent .....Respondents
Date of Institution : 06.08.2018
Date of Final Arguments : 21.11.2019
Date of Decision : 29.11.2019
Conclusion : Dismissed
JUDGMENT
Case of appellant
1. The present appeal under Section 9 of PPA is filed against PPA No. 39/18 Page 1 of 13 the impugned order dated 20.07.18 of Estate Officer in respect of a Kiosk measuring 2.32 Sq. Mtr, near gate no.3 Dr. RML Hospital New Delhi1, by way of which appellant was directed to vacate the said kiosk within 15 days from the date of issue of order.
2. Appellant entered into an agreement with one Hindustan Latex Family Planning Promotion Trust (HLFPPT) dated 05.03.2009 by way of which appellant was entrusted the responsibility to maintain and run Health Care Dispenser (Dispensing Contraceptives) installed at various hospitals including RML Hospital. Since 2009 appellant is running the Health Care Dispenser involved in the present case also. Further the said agreement dated 05.03.2009 which was initially for a period of one year was extended vide letter dated 27.07.2016.
3. It is further the case of appellant that a space near Gate No.3 was initially alloted to HLFPPT which is a non profit health service organisation in the year 2002. Further the allotment of said space was not for any limited period but for all times to come subject to payment of Rs.1,000/ per month to respondent no.2 towards the license fee. Thereafter before 2011 the said machines were relocated to OPD but it was found not suitable. Consequently, the machines were shifted between Gynecology OPD and CGHS PPA No. 39/18 Page 2 of 13 OPD. Thereafter, they were again shifted between gate no. 2 and 3 after which it was alloted to the present appellant by (HLFPPT vide agreement dated 05.03.2009).
4. It is further the case of appellant that pursuant to a judgment in civil appeal bearing MCA No. 62/15 titled as Medial Superintendent Dr. RML Hospital Vs. Rajinder Pal Singh & Anr. passed by the Court of Shri Surinder S. Rathi, the then ADJ, while deciding the appeal on merits, the then Ld. ADJ directed the Hospital administration of respondent no.2 to hold an enquiry to look into the circumstances under which the then respondent no.2 and people like him got access and possession of the kiosk situated in Dr. RML Hospital. Further copy of the judgment dated 17.12.2005 was sent to Chief Vigilance Officer, Ministry of Health and Family Welfare, Govt. of India to look into the matter.
5. It is submitted that the present appellant is running the said health care dispenser since 2009 without any hindrance. But in the month of May, 2018 he received a letter dated 10.05.2018 wherein it was mentioned that appellant has failed to pay the rent regularly and therefore a demand of Rs.2,24,487/ was raised upon him as arrears. Appellant immediately wrote a letter dated 14.05.2018 thereby mentioning that the rent was being paid regularly till March PPA No. 39/18 Page 3 of 13 2017. Also the remaining amount till May, 2018 was also paid by way of cheque sent along with the reply. Thereafter, appellant was served with a show cause notice dated 18.05.2018 issued by respondent no.1 under Section 4 of PPA 1971 whereby he was asked to show cause on or before 31.05.2018 why an order of eviction should not be passed against the appellant with regard to the said kiosk. In response to the said show cause notice, appellant appeared before respondent no.1 and sought time to file detailed reply.
6. Thereafter, no opportunity was given to the present appellant to file his reply or appoint a legal representative. Without verifying or cross checking the accounts with respect to rent due, evacuation order dated 20.07.2018 was passed under Section 5 of PPA by respondent no.1 against appellant thereby asking him to vacate the said kiosk in question within 15 days. Further appellant was also directed to deposit the outstanding dues before the last date of evacuation without informing the exact amount to be deposited.
7. Further the respondents have wrongly interpreted the judgment dated 17.12.2015 passed by Shri Surinder S Rathi, Ld. PPA No. 39/18 Page 4 of 13 ADJ, PHC. Further Estate Officer erred in concluding that the initial allotment for 2002 was for one year. Further respondent no.1 failed to appreciate that the area of space in possession of appellant is 6 X 4 Sq. ft. and not 2.32 Sq. meter as is alleged in the impugned order. Further said order is passed without giving reasonable opportunity to the appellant to put his defence or cross examining the witnesses. Further this order has the effect of evicting genuine tenants from public premises by resorting to proceedings under PPA. Hence, it is requested that the said order dated 20.07.2018 be quashed.
8. It is further the case of appellant that there is no notification on record issued by the Govt. of India thereby appointing respondent no.1 as Estate Officer and hence, respondent no.1 had no authority to initiate eviction proceedings or to pass eviction order.
Case of Respondent
9. It is the case of respondent that the appeal filed is without any merits. The documents submitted by appellant were examined by the committee and committee was of the opinion that appellant failed to submit any valid document in support of his claim to occupy the said space continuously. Further the kiosk of appellant PPA No. 39/18 Page 5 of 13 was relocated in 2012. He is continuing commercial activities since 2012 in the kiosk within the premises of the hospital without any authority beyond the year of 2012 and hence his activities are totally unauthorised. Further appellant was given due opportunity to appear and present his case but he failed to establish his occupation of the said kiosk. It is admitted that the kiosk admeasuring 2.32 Sq. meter was initially allotted in 2002 to HLFPPT. The said contract was never extended thereafter either orally or in writing. Further appellant failed to produce any document to show that he is authorised to carry out any commercial activity from the said kiosk. It is stated that appellant failed to pay the dues against him. Proceedings before estate officer were correct and legal.
Reasons for Decision
10. I have heard both the sides and gone through the record.
11. As far as the first ground raised by appellant is concerned that he was not granted opportunity to present his case, it is the own case of appellant that he appeared before the relevant authority and sought time. Hence, he was given opportunity to appear and present his case but he did not file documents before the relevant authority in support of his case. File of the this case PPA No. 39/18 Page 6 of 13 has been placed before this Court. Even the minutes of the Committee are placed on record wherein it is specifically mentioned that none of the occupants including the present appellant was able to produce any document thereby authorising him to continue occupying the present kiosk. Hence, the averment made by the appellant that he was not given due opportunity to present his case is incorrect.
12. Further along with the appeal, appellant has failed to file any document thereby showing his authority to continue occupying the present kiosk. If he was allegedly not given opportunity to present his case, he could have placed the relevant documents before this Court for this Court to come to a conclusion inconsistent with that of Estate Officer. However, he has placed reliance on letter of 2002 issued in favour of Hindustan Latex Ltd. By way of which this kiosk was handed over to them at the service charge of Rs.1,000/ per month. However, it is mentioned in the said letter itself that medical Superintendent has all the rights to cancel the allotment in case of violation of terms and conditions mentioned therein. It is the case of appellant that since no time period is mentioned in the said letter, hence the kiosk was given for all the years to come. However a bare perusal of this document would show that it was a license which was given to the Hindustan Latex. A license can be PPA No. 39/18 Page 7 of 13 recalled any time by the licensor without assigning any reasons unless it falls in any of exceptions provided under Indian Easements Act or any other law, thereby giving licensee any specific and better rights as compared with the licensor.
13. However, appellant himself admits the letter by way of which he was asked to deposit the arrears of rent vide letter dated 10.05.2018. The said was replied by present appellant vide letter dated 14.05.2018, thereby submitting along with the letter the remaining rent for rest of the period from March 2017 till May, 2018. This itself shows that appellant had not cleared and made payment of license fee on time. Hence, show cause notice was given to him. Hence one of the grounds for evacuation was non payment of rent which is correct. The letter of 2002 itself specifies that in case of non compliance of any of the terms of the agreement , the license can be recalled by licensor. Hence on being failed to make payment of rent on time, the licensor issued notice which absolutely correct and valid. Further only because licensee is willing to deposit the rent now on time is not a ground to renew the license automatically.
14. It is further the case of appellant that show cause notice was given to him without any valid reasons. Nor does it mentions any PPA No. 39/18 Page 8 of 13 reasons for issuing of said show cause notice and on the basis of which evacuation order is passed. However, a perusal of the show cause notice dated 18.05.2018 would show that it is mentioned therein that they were alloted a kiosk in the year 2002 and while allotting the said kiosk, right were reserved by Medical Superintendent to cancel the allotment in case of violation. It is further mentioned that appellant was to pay license fee of Rs.1,000/ per month along with electricity and water charges. Further in the judgment dated 17.12.2015 passed in MCA No. 62/2015 by Ld. ADJ Shri Surinder S Rathi, it was observed that vendors were occupying premises in RML Hospital without any authorisation and vigilance enquiry was sought to be initiated against erring officials. Further it is mentioned that he was called upon by the Committee which was constituted under Chairmanship of Additional Medical Superintendent to ascertain the legality of occupancy of Hospital premises by the vendors. Further he was called in person on 19.12.2017 and given opportunity to submit documentary evidence which he failed to do. The Committee was of the view that appellant was occupying the premises without obtaining any extension. Hence, show cause notice was duly served upon him thereby mentioning reasons. Hence, the ground taken that the show cause notice was without any basis is not correct.
PPA No. 39/18 Page 9 of 1315. Further as per the own case of appellant Latex India was alloted a small kiosk in 2002 on license basis. Once a licencee is always as licencee. He can be asked to vacate any time by the licensor as possession of licensor is permissive. Further Indian Easement Act does not provide for issuing notice to licensee before asking him to vacate. Hence, a licensor may revoke license anytime unless it is covered in any of the exceptions provided under law. Further by way of letter of 21.11.2017, respondents have recalled the letter dated 20.07.2017 by way of which Hindustan laxtex Ltd. Was allowed to run kiosk for a period of three years which is filed on record. Hence, licensor had expressed his intention by way of serving show cause notice that he was no longer willing to continue with the license and it is mandatory for the licensee to vacate. It is pertinent to quote here judgment of Nirmal Singh Rana Vs. Estate Officer & Anr. W P (C) 8872/2018 dated 07.09.2018 wherein hon'ble court has observed that
21. I have even otherwise again asked the counsel for the petitioner that when the petitioner once admits to be a licencee, whether not is liable to vacate once the Hospital as licensor does not want the petitioner to continue. Attention of the counsel for the petitioner in this regard has also been drawn to Gesture Hotels & Food Pvt. Ltd. Vs. The New Delhi Municipal Council AIR 2014 Del 143 where it has been reiterated that even if licence is for a fixed period even then the claim of the licensee can only PPA No. 39/18 Page 10 of 13 be for damages. Here, it is not the case of the petitioner that the licence of the petitioner is for any period longer than that when show cause notice was issued and order of eviction was passed.
28. As far as the first of the aforesaid contentions is concerned, though as aforesaid there has been sufficient termination of licence but even if it were to be held that there was no termination of licence, it cannot be lost sight of that the Indian Easements Act, 1882 does not prescribe any format for termination of a licence, as distinct from Transfer of Property Act, 1882 which provides for format of a notice for termination of lease. With respect to Transfer of Property Act also, Supreme Court in Nopany Investment (P) Ltd. Vs. Santokh Singh (HUF) (2008) 2 SCC 728 has held that once a suit for eviction is instituted and has remained pending for 15 days, being the period prescribed for notice of termination of lease, even if prior to the institution of the suit no notice of termination has been served, the institution of the suit itself is termination of licence. The same would apply to the notice to show cause admittedly served on the petitioner on 18th May, 2018.
16. Appellant has also claimed himself to be tenant and the word being used by him is "rent". However perusal of the allotment documents and along with other documents on record as well as show cause notice would reveal that suit property was alloted on license basis only. There is no renewal of his license since 2002. Further a licensee is always a licensee unless it is proved by way PPA No. 39/18 Page 11 of 13 of cogent evidence that licensee has acquired better title to the property than licensor. Even if the license is for a specified term even then if license is revoked by licensor, licensee can only claim damages. Once license is terminated, licensee is only entitled to claim a reasonable time to vacate the premises. The legal possession in license continues with licensor, owner retains possession for all purposes while limited rights are given to licensee to use and operate as is in the present case. Further perusal of the letters on record would show that RML Hospital had specified the terms of use as wellv iz, permission for installation of cold drink vending machines which was later on recalled, that no banned contraceptive items shall be dispensed through these machines , the place where these machines would be installed, these places were shifted several times etc. Further it is immaterial how the area was specified i.e. 4 by 6 or 2.32 mtr . As long as Kiosk of petitioner was properly identified, it is immaterial how the area of Kiosk was specified.
17. Further from a perusal of show cause notice as well as order of eviction would show that he was duly informed of the reasons to vacate. However, he failed to file any documents on record to substantiate his claim. Nor he has filed any document before this court on the basis of which it could be held that he has any authority to continue occupying the kiosk in his possession.
PPA No. 39/18 Page 12 of 13Hence, it cannot be said that the order of eviction is not a reasoned order or is illegal order. The reason for his eviction was non payment of license fee, non extension of license and consequently he became unauthorised occupant. Hence he was directed to vacate.
18. The impugned order of Estate Officer does not suffer from any infirmity and the present appeal is hereby dismissed.
File be consigned to record room. TWINKLE Digitally signed by TWINKLE WADHWA WADHWA Date: 2019.11.29 14:13:46 +0530 Announced in an open Court
On 29th day of November, 2019. (Twinkle Wadhwa) ADJ03/PHC/NEW DELHI 29.11.2019 PPA No. 39/18 Page 13 of 13