Delhi High Court
Rajendra Jain vs D.D.A. & Anr on 8 March, 2016
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 8th March, 2016
+ RFA No.382/2005
RAJENDRA JAIN ..... Appellant
Through: Mr. Rajesh Aggarwal, Adv.
Versus
D.D.A. & ANR ..... Respondents
Through: Mr. Nikhil Bhardwaj, Adv for DDA.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This first appeal under Section 96 of the Code of Civil Procedure, 1908
(CPC) impugns the judgment and decree dated 7th January, 2005 of the Court
of Shri Vimal Kumar Yadav, Additional District Judge, Delhi of dismissal of
Suit No.283/2004 (instituted on 24th February, 1994) filed by the appellant for
the relief (i) of declaration that the cancellation by the respondent/defendant
Delhi Development Authority (DDA) of the lease of plot of land bearing
No.G-2, Kalkaji Shopping Centre, New Delhi is void and of no legal
consequence; and, (ii) of permanent injunction restraining the
respondent/defendant DDA from dispossessing the appellant/plaintiff from the
said property.
RFA No.382/2005 Page 1 of 23
2. Before coming to the course chartered by this appeal, it is expedient to
notice the course which the suit from which this appeal arises took.
3. The appellant, in the auction held by the respondent DDA on 30 th July,
1984, was the highest bidder for leasehold rights in respect of commercial Plot
No.G-2, Kalkaji Shopping Centre, New Delhi; plans for raising construction
on the said plot of land were sanctioned by the respondent DDA on 21 st
December, 1984 and a perpetual lease deed executed in favour of the
petitioner on 15th February, 1985. The petitioner, on completion of
construction, was granted Completion Certificate dated 21st November, 1986.
4. The respondent DDA issued a notice dated 3rd May, 1989 to the
appellant to show cause why the perpetual lease should not be determined on
the ground of the appellant having raised unauthorized construction in the
form of 13 stalls / shops in place of one shop hall sanctioned on the ground
floor and having opened two shops unauthorizedly. Though the said show
cause notice was replied to by the appellant but the respondent DDA vide
communication dated 27th July, 1989 informed the appellant of the perpetual
lease having been determined on 18th July, 1989; the appellant was
accordingly directed to hand over possession to the respondent DDA.
RFA No.382/2005 Page 2 of 23
5. The appellant preferred Civil Writ Petition No.2240/1989 in this Court
impugning the determination of perpetual lease but which writ petition was
dismissed vide order dated 27th March, 1990. The appellant preferred a
Special Leave Petition (SLP) to the Supreme Court and which was disposed of
vide order dated 25th July, 1990 by directing the respondent DDA to, after
hearing the appellant, pass a fresh order, without being influenced by the
earlier determination.
6. The appellant on 24th February, 1994, as aforesaid, filed the suit from
which this appeal arises pleading, (i) that in accordance with the opportunity
granted by the Supreme Court, the appellant filed a representation dated 3 rd
August, 1990 with respect to the communication dated 27 th July, 1989 of
determination of perpetual lease; (ii) that though the appellant was vide
communication dated 12th September, 1990 of the respondent DDA called for
hearing but when the appellant went therefor, no hearing took place; (iii) that
the appellant vide communication dated 22nd October, 1990 of the respondent
DDA was informed that his representation dated 3 rd August, 1990 had been
rejected; (iv) that the appellant again sought appointment and submitted that
there was no violation of Building Bye-laws and that the determination of
lease was not in accordance with law but did not hear anything further from
RFA No.382/2005 Page 3 of 23
the respondent DDA; (v) that another show cause notice dated 8 th April, 1991
referring to the earlier show cause notice dated 12th May, 1989 was received
by the appellant and to which a reply dated 19 th April, 1991 was given by the
appellant; (vi) that though no hearing was given but after about three years a
communication dated 15th February, 1994 was received by the appellant from
the respondent DDA to the effect that the perpetual lease had been determined
by order dated 27th November, 1993 and again calling upon the appellant to
deliver possession; (vii) that in the interregnum proceedings under Section
30(1) and Section 31(A) of the Delhi Development Act, 1957 were also
initiated with respect to the alleged unauthorised construction and an order
dated 6th March, 1991 of demolition / removal of unauthorized construction
was passed; (viii) that the appellant preferred a statutory appeal thereagainst
which was allowed and the matter remanded; (ix) that on remand, again a
demolition order dated 29th January, 1993 was passed and which was again
challenged before the Appellate Tribunal; (x) that during the pendency of the
said appeal, a fresh order dated 5th March, 1993 was passed for sealing of the
property and which was also challenged before the Appellate Tribunal; (xi)
that the Appellate Tribunal vide order dated 26th March, 1993 set aside the
RFA No.382/2005 Page 4 of 23
order of sealing and the appeal against the demolition order was pending
consideration at the time of institution of the suit.
7. It was the contention of the appellant in the suit from which this appeal
arises:
(a) that the ground of determination of lease also being unauthorised
construction and with respect to the order of demolition of which appeal
was pending before the Appellate Tribunal, the determination of
perpetual lease could not have been effected;
(b) that the appellant vide communication dated 15th February, 1994
had only been informed of the order dated 27 th December, 1993 of
determination of lease but the said order was never served on the
appellant;
(c) that the determination of lease was not in accordance with the
procedure required to be followed for effecting the same;
(d) that the lease could have been determined only by the President
of India and the Lt. Governor of Delhi who had purported to determine
the lease was not authorised to do so;
RFA No.382/2005 Page 5 of 23
(e) that the appellant had not been given proper opportunity of being
heard;
(f) that the determination of perpetual lease is without application of
mind;
(g) that the determination of the lease was also in violation of the
order dated 25th July, 1990 supra of the Supreme Court;
(h) that there were no violations of Building Bye-laws;
(i) that even if there were any violation of Building Bye-laws, the
remedy thereagainst was of removal of unauthorised construction and
not of determination of lease;
(j) that the action of determination of lease could be taken only as a
last resort;
(k) that the appellant has always been ready and willing to remove
the unauthorised construction in the property.
8. The respondent DDA contested the suit by filing a written statement
pleading:
(I) that the appellant after obtaining Completion Certificate had
altered the building and unauthorisedly raised shops in the basement,
RFA No.382/2005 Page 6 of 23
first and second floors and also constructed one room on the terrace
floor;
(II) that as per the terms and conditions of auction, the use of the
basement is restricted to storage, plant, machinery and maximum of
10% of the basement area was allowed to be utilised for strong room
and locker room for having a bank in the building and the ground floor
should be used exclusively for retail shops and the first and second
floors for office and commercial purposes;
(III) that the appellant had also removed the facility area such as
staircase, toilet block and erected number of partitions which did not
conform to the Building Bye-laws;
(IV) that the show cause notices dated 3rd May, 1989 and 12th May,
1989 were issued, after inspection of the building on 28 th March, 1989
and the reply filed by the appellant was not found satisfactory;
(V) accordingly, Hon‟ble the Lt. Governor of Delhi vide order dated
18th July, 1989 determined the lease and communication whereof was
given to the appellant on 28th July, 1989;
(VI) that opportunity was given to the appellant in accordance with the
order of the Supreme Court and the representation made by the
RFA No.382/2005 Page 7 of 23
appellant was considered and rejected vide letter dated 22nd October,
1990 and final notice dated 8th April, 1991 issued to the appellant;
(VII) that no permission for partition of the basement had been
obtained and the same is contrary to the Building Bye-laws;
(VIII) that as per Building Bye-law 14.12.2(viii), the basement shall not
be partitioned and in case partition in basement are allowed, no
compartment is to be less than 500 sq. ft. in area and each compartment
shall have ventilation standards and conform to the norms laid down by
the Chief Fire Officer, Delhi;
(IX) that the appellant has constructed 14, 31, 16 and 22 cubicles in
the basement, ground, first and second floors without approval;
(X) that complaints were also received from "Tulsi Tower Users
Association, G-2, Shopping Complex, Kalkaji" regarding deviations in
the building, unauthorised construction of shops in the basement,
coverage of passage etc.;
(XI) that the order of determination of lease was passed upon the
failure of the appellant to remove the unauthorised construction inspite
of repeated opportunities;
RFA No.382/2005 Page 8 of 23
(XII) denying that determination of lease was not in accordance with
the law or without following the principles of natural justice.
9. Though a replication is found to have been filed by the appellant but
the need to refer thereto is not felt.
10. On the pleadings of the parties, the following issues were framed in
the suit:
"1. Whether the suit is liable to be dismissed for want of
notice under Section 53-(B) of Delhi Development Act? OPD
2. Whether the suit is properly valued for the purposes of
court fee and jurisdiction?
3. Whether the defendants have ever communicated the
order dated December 27, 1993 to the plaintiff? OPD
4. Whether in the facts and circumstances of the case the
defendants could terminate the lease dated February 15, 1985?
OPD
5. Whether the defendants can take possession of the
premises as alleged in notice dated February 15, 1994? OPD
6. Whether the defendants can take any action against the
plaintiff under Public Premises (Eviction of Unauthorised
Occupants) Act, 1971? OPD
7. Whether the plaintiff is entitled to declaration, injunction
and mandatory injunction as prayed for? OPD
8. Relief."
RFA No.382/2005 Page 9 of 23
11. The appellant examined himself in evidence and the respondent DDA
examined two of its officers in evidence.
12. The learned Additional District Judge (ADJ) vide the impugned
judgment:
(A) has decided Issue Nos.1&2 supra in favour of the appellant and
against the respondent DDA;
(B) with respect to Issue No.3 has held that the order dated 27th
December, 1993 of determination of lease was not communicated to
the appellant but the factum thereof was communicated to the
appellant vide letter dated 15th February, 1994;
(C) has dealt with Issues No.4 to 6 together.
(D) has held that the respondent DDA had proved violation of
Building Bye-laws by the appellant of constructing 14 cubicles in the
basement, 31 cubicles on the ground floor, 16 cubicles on the first
floor and 22 cubicles on the second floor;
(E) has held that the appellant had admitted to the said deviations by
stating that he was willing to remove the same or to have the same
compounded;
RFA No.382/2005 Page 10 of 23
(F) has held that once it was established that the appellant had carried
out illegal development / construction in the property leased out by the
respondent DDA, the respondent DDA as per the terms of the perpetual
lease was entitled to determine the lease;
(G) has held that the Lt. Governor of Delhi was authorised to
determine the lease;
(H) has held that sufficient opportunity of hearing had been afforded
to the appellant;
(I) has held that the respondent DDA was left with no option but to
determine the lease;
(J) has held that determination of lease was within the rights of the
respondent DDA and upon such determination, the respondent DDA
had a right to recover possession of the property;
(K) has held that on determination of lease, the property would be
public premises within the meaning of Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 (PP Act);
(L) accordingly, has decided Issues No.4 to 6 against the appellant
and in favour of the respondent DDA;
RFA No.382/2005 Page 11 of 23
(M) held that the appellant was thus not entitled to the relief of
declaration and injunction.
13. This Court in appeal, while issuing notice thereof on 30th May, 2005
directed the appellant to remove all unauthorised constructions, additions and
alterations carried out in violation of the sanctioned building plan and ordered
a joint inspection; subject thereto the respondent DDA was restrained from re-
entering into the property.
14. The order dated 17th August, 2006 in the appeal notices that the
appellant avoided the joint inspection ordered and ultimately when the
inspection was carried out on 27th June, 2005, extensive unauthorised
constructions, additions and alterations were found in the property. However,
on the asking of the appellant, another joint inspection on 9 th September, 2006
was ordered.
15. Objections were filed to the report of such joint inspection and the order
dated 27th November, 2006 in this appeal, owing to the controversy persisting
as to whether the appellant had removed the unauthorised construction or not,
directed another inspection.
16. CM No.14806/2006 was filed in this appeal by Tulsi Tower Alaknanda
Traders Welfare Association claiming to be an association of purchasers from
RFA No.382/2005 Page 12 of 23
the appellant of different shops in the building on the subject land and seeking
impleadment in the appeal.
17. The order dated 24th September, 2007 in the appeal records the
statement of the Advocate for the said Association that the applicant
Association shall remove the partitions from the basement and inspection to
verify the same be carried out.
18. The appeal on 16th July, 2008 was admitted for hearing and ordered to
be taken up for hearing as per turn. It was further ordered that the application
of the Association aforesaid for impleadment would also be taken up at the
time of hearing of the appeal.
19. The appeal though thereafter was listed from time to time for hearing
but adjourned on request of either of the counsels.
20. The appeal on 12th October, 2009 was dismissed in default of
appearance of the parties. However, on application of the appellant, the same
was on 9th February, 2010 restored.
21. The order dated 1st December, 2014 records that the Director (CL) of
the respondent DDA had indicated that encroachment on the ground floor and
terrace except one antenna had been removed and the basement was also lying
RFA No.382/2005 Page 13 of 23
vacant and used for storage purpose but still certain partitions were existing at
the time of inspection. Again, inspection was ordered.
22. The appeal was taken up for hearing on 14 th July, 2015, when though
the counsel for the appellant and the counsel for the respondent DDA
appeared (none appeared for the applicant Association) but were not ready
with the arguments. Finding that the appeal was already ten years old,
judgment was reserved giving opportunity to the counsels to file written
submissions.
23. Written submissions have been filed by the counsel for the appellant
and the counsel for the respondent DDA. While the appellant in the written
submissions, besides reiterating the pleadings has contended that the action of
determination of lease on the ground of unauthorised construction is contrary
to the principle of proportionality and has relied on Teri Oat Estate Pvt. Ltd.
Vs. U.T. Chandigarh (2004) 2 SCC 130 and Devinder Singh Pannu Vs.
Chandigarh Administration (2004) 2 SCC 149 in this regard, the counsel for
the respondent DDA besides a summary of the pleadings of the Trail Court
has referred to the inspections carried out during the pendency of this appeal
on 9th September, 2006, 9th December, 2006 and 6th July, 20015 and contends
that during the last inspection on 6th July, 2015, the basement was found to be
RFA No.382/2005 Page 14 of 23
still in use for commercial activities i.e. small offices, a mobile repair shop
and a leather bag shop and unauthorised construction in the form of
partitioning of basement and creation of small cubicles therein was still found.
24. I have perused the Trial Court record and considered the controversy.
25. The perpetual lease of the land aforesaid proved as Ex-DW2/2 on the
Trial Court record is found to contain covenants:
(i) requiring the appellant as lessee to within one year, after
obtaining sanction to the building plan, with necessary designs, plans
and specifications from the proper municipal or other authority, at his
own expenses, erect upon the commercial plot and complete in a
substantial and workmanlike manner a commercial building strictly
based on the architectural control drawing in respect of the said plot
available with the office of the DDA and in accordance with the
sanctioned building plan to the satisfaction of the municipal or other
authorities;
(ii) enabling the appellant to with the previous consent in writing of
the DDA sell or transfer floor space constructed on the plot and vesting
the discretion in the DDA to allow the same on payment of Rs.100/- for
each sale or transfer and subject to such other terms and conditions as
RFA No.382/2005 Page 15 of 23
may be imposed by the DDA and further entitling the DDA to in its
discretion allow further sale or transfer after obtaining 50% unearned
increase on the proportionate land / floor space;
(iii) making the appellant as lessee liable for violation of terms and
conditions of the lease, notwithstanding having been permitted to sell
the floor space;
(iv) binding the appellant as lessee to in all respects comply with and
be bound by the building, drainage and other bye laws of the proper
municipal or other authorities;
(v) prohibiting the appellant as lessee from, without sanction or
permission in writing of the proper municipal or other authority,
erecting any building or making any alteration or addition to the
building on the subject plot of land;
(vi) prohibiting the appellant as lessee from, without the written
consent of the respondent DDA using the plot or permitting the same to
be used for any purpose other than that of office for business purposes
only;
RFA No.382/2005 Page 16 of 23
(vii) entitling the respondent DDA to allow the appellant as lessee
from using the building on the said plot for purposes other than shops or
offices on such conditions as the respondent DDA may deem proper;
(viii) Clauses III, IV, VI, VII, VIII, XI and XII are as under:
"III. if the sum or sums payable towards the premium or
the yearly rent hereby reserved or any part thereof shall
at any time be in arrears & unpaid for one calendar
month next after any of the days whereon the same shall
have become due, whether the same shall have been
demanded or not, or if it is discovered that this Lease has
been obtained by suppression of any fact or mis-
statement, mis-representation or fraud or if there shall
have been, in the opinion of the Lessor, whose decision
shall be final any breach by the Lessee or by any person
claiming through or under him of any of the covenants
or conditions contained herein and on his part to be
observed, or performed, then and in any such case, it
shall be lawful for the Lessor, notwithstanding the
waiver of any previous cause or right of re-entry upon
the Commercial plot hereby demised and the buildings
thereon, to re-enter upon and take possession of the
Commercial plot and the buildings and fixtures thereon
and thereupon this Lease and every thing herein
contained shall cease and determine and the Lessee
shall not be entitled to any compensation whatsoever
nor to the return of any premium paid by him.
Provided that, notwithstanding anything contained
herein to the contrary the Lessor may without prejudice
to his right of re-entry as aforesaid, and in his absolute
discretion, vaive or condone breaches, temporarily or
otherwise, on receipt of such amount and on such terms
and conditions as may be determined by him and may
also accept the payment of the rent which shall be in
RFA No.382/2005 Page 17 of 23
arrear as aforesaid together with interest at the rate of
ten percent per annum or as decided by the Lessor.
IV. No forfeiture or re-entry shall be effected until the
Lessor has served on the Lessee a notice in writing:
(a) Specifying the particular breach
complained of; and
(b) if the breach is capable of remedy requiring
Lessee to remedy requiring Lessee to remedy
the breach.
and the Lessee fails within such reasonable time as may
be mentioned in the notice to remedy the breach, if it is
capable of remedy; and in the event of forfeiture or re-
entry, the Lessor may, in this direction, relieve against
forfeiture on such terms and conditions as he thinks
proper.
Nothing in this clause shall apply to forfeiture or re-
entry:
(a) for breach of covenants and conditions relating to
sub-division or amalgamation, erection and completion of
building within the time provided and transfer of the
commercial plot as mentioned in clause II or
(b) in case this Lease has been obtained by
suppression of any fact, mis-statement, mis-
representation or fraud.
......
VI. In the event of any question, dispute or difference,
arising under these presents, or in connection therewith
(except as to any matters the decision of which is
specially provided by these presents), the same shall be
referred to the sole arbitration of the Lieutenant
Governor or any other person appointed by him. It will
be of no-objection that the arbitrator is a Government
servant and that he has to deal with the matters to which
the Lease relates or that in the course of his duties as a
Government servant he has expressed views on all or any
RFA No.382/2005 Page 18 of 23
of the matters in dispute or difference. The award of the
arbitrator shall be final and binding on the parties.
The arbitrator may, with the consent of the parties,
enlarge the time, from time to time, for making and
publishing the award.
Subject as aforesaid, the Arbitration Act, 1940, and
the Rules thereunder and any modifications thereof for
the time being in force shall be deemed to apply to the
arbitration proceedings under this clause.
VII. All notices, orders, directions, consents, or
approvals to be given under this lease shall be in writing
and shall be signed by such officer as may be authorised
by the Lieutenant Governor and shall be considered as
duly served upon the Lessee or any person claiming any
right to the commercial plot, if the same shall have been
affixed to any building or erection whether temporary or
otherwise upon the commercial plot or shall have been
delivered at or sent by post to the then residence, office or
place of business or usual or last known residence, office
or place of business of the Lessee or such person.
VIII. (a) All powers exercisable by the Lessor under
this Lease may be exercised by the Lieutenant Governor.
The Lessor may also authorise any other officer or
officers to exercise all or any of the powers exercisable
by him under this Lease.
(b) The Lieutenant Governor may authorise any officer
or officers to exercise all or any of the powers which he is
empowered to exercise under this lease except the powers
of the Lessor exercisable by him by virtue of sub-clause
(a) above.
.....
XI. This lease is granted under the Governments
Grants Act, 1895 (Act XV of 1895).
XII. The provisions of the Delhi Development Authority
(Disposal of Developed Nazul Land) Rules, 1981, shall,
RFA No.382/2005 Page 19 of 23
mutatis mutandis also apply in respect of matters not
herein expressly provided for."
(emphasis added)
26. It thus follows that as per the perpetual lease deed, which is a
government grant which, as per the law applicable thereto has to be
constrained strictly as per its own terms, the appellant as lessee was required
to raise construction on the land in accordance with the sanctioned building
plan and to from time to time comply with the building bye-laws and
prohibited from making any addition / alteration and that the respondent DDA
as lessor upon non compliance by the appellant was / is entitled to determine
the lease after issuing a notice to the appellant and upon the appellant failing
to remove the unauthorized construction.
27. It is not in dispute that the respondent DDA being of the view that the
appellant had carried out / permitted to be carried out unauthorized
construction, contrary to the sanctioned building plan, issued notice to the
appellant. As would be obvious from the narrative aforesaid and as has been
factually found by the learned ADJ on the evidence led and which conclusion
I find on a re-appreciation of the evidence to have been rightly reached and as
is also evident from the inspections got carried out during the pendency of the
appeal before this Court, the appellant notwithstanding the notice failed to
RFA No.382/2005 Page 20 of 23
remove the unauthorized construction and which persists till date. There is
thus no room for doubt that the respondent DDA has/had a power to determine
the lease upon deviations from sanctioned building plan being made and that
such deviations have been made. It thus cannot be said that the said power has
been exercised in violation of the terms of the perpetual lease. The appellant
has been given abundant opportunity. The lease was cancelled way back on
18th July, 1989 and the challenge by the appellant thereto by way of filing a
writ petition failed. However, Supreme Court without going into the merits
granted another opportunity of hearing to the appellant. Though lease was
again determined on 27th December, 1993 and more than 20 years has lapsed
but the respondent DDA has been unable to repossess the property owing to
the appellant having kept the respondent DDA embroiled in litigation.
Needless to state that in the interregnum the appellant has continued to benefit
from the unauthorized construction in the form of creation of slum like
conditions inside the building by dividing the sanctioned spaces into small
cubicles to earn maximum amount therefrom and has continued to profiteer.
28. Though the appellant at the time of institution of the suit on 24 th
February, 1994 from which this appeal arises had stated that an appeal against
the order of demolition was pending in the Appellate Tribunal but at the time
RFA No.382/2005 Page 21 of 23
of filing his affidavit by way of examination-in-chief on 20th November, 2002
i.e. after about eight years also maintained the same stand. It is thus obvious
that the power of demolition exercised by the respondent DDA under
provisions of the law have also not met with any success. The counsel for the
appellant in his written submissions also has not disclosed the outcome of the
appeal. Even otherwise, once the government grant as per its terms entitled
the grantor i.e. the DDA to, upon unauthorised construction being carried out
and failure to remove the same, determine the lease, such determination
cannot be found fault with and term of government grant negated by
contending that instead, action for demolition / removal of unauthorised
construction should be taken. The powers of removal / demolition of
unauthorised construction and of determination of lease are independent of
each other and one cannot defeat the other. It is not the case of appellant that
the construction has been held to be not unauthorised by the Appellate
Tribunal.
29. As far as the argument of the appellant of proportionality is concerned,
the same in my view would have no applicability to a government grant which
has to be construed strictly as per its terms and to which the provisions of
Transfer of Property Act, 1881 also do not apply.
RFA No.382/2005 Page 22 of 23
30. Moreover, from the application for impleadment of Association of
Occupiers it appears that the appellant is today not even left with any right,
title or interest in any part of the building constructed over the said land,
having sold different portions thereof. For this reason also, the appellant is not
found entitled to the relief.
31. There is thus no merit in the appeal and the same is liable to be
dismissed.
32. As far as the application for impleadment by the Association is
concerned, not only has the same not been pursued but it is not the case that
any of the occupiers / purchasers have acquired rights by complying with the
terms of the lease in this regard. They even otherwise cannot have any better
rights than the appellant.
33. The appeal is accordingly dismissed with costs of Rs.15,000/- to the
respondent DDA.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
MARCH 08, 2016 „pp/bs/gsr‟..
RFA No.382/2005 Page 23 of 23