Delhi District Court
M/S Young Mens Tennis Club ( 6.10.2021) vs Ndmc on 15 September, 2023
IN THE COURT OF PRINCIPAL DISTRICT & SESSION JUDGE
WEST DISTRICT, TIS HAZARI COURTS, DELHI
PPA No. 5/2022
CNR No. DLWT010103122022
M/s Young Men's Tennis Club
Through Its Secretary /Authorized Officer
2767, Queens Garden, SPM Marg,
Opposite Old Delhi Railway Station
Delhi110006. .....Appellant
Versus
North Delhi Municipal Corporation
Through its Commissioner,
7th Floor, SPM Civic Centre,
New Delhi.
(Now Municipal Corporation of Delhi) .....Respondent
Date of institution : 01.10.2021
Date of conclusion of arguments : 15.09.2023
Date of judgment : 15.09.2023
JUDGMENT
1. This is an appeal under Section 9 of The Public Premises (Eviction of Unauthorized Occupants) Act 1971 (in short, 'PP Act'), against the impugned order dated 16.09.2021 (received by appellant on 18.09.2021) passed by Smt. Sangeeta Bansal, Estate Officer, Public Premises Department, North Delhi Municipal Corporation, Civic Center, New Delhi, whereby petition filed by the respondent under PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 1 of 36 Section 4, 5, 7 & 14 of the PP Act was allowed and an eviction order was passed in respect of premises No. 2767, Queens Garden having an area measuring 2622.63 sq. yds. Delhi along with recovery of damages amounting to Rs.18,52,58,672/ was passed.
2. Notice of appeal was issued to respondent i.e. North Delhi Municipal Corporation (now Municipal Corporation of Delhi). The respondent filed reply and contested the appeal. Trial court record was summoned.
Petition Of Municipal Corporation Of Delhi Before Estate Officer
3. Perusal of the trial court record shows that North Delhi Municipal Corporation (respondent herein) filed a petition before the Estate Officer under Section 4, 5, & 7 of The Public Premises (Eviction of Unauthorized Occupants) Act, 1971 for eviction of Young Men's Tennis Club (in short, 'Club') from the public premises in question.
4. In para 1 of the petition, it is stated that the North MCD is the owner of the property bearing No. 2767, Queens Garden SPM Marg, Opposite Old Delhi Railway Station, admeasuring 2622.63 sq. yds. In support of this claim, MCD relied upon the Immovable Property Register (in short, 'IP Register') showing the ownership of the demised PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 2 of 36 premises in favour of the Municipal Corporation of Delhi (in short, 'MCD').
5. In para 2 of the petition, it is stated that the demised premises earlier belonged to the erstwhile Municipal Corporation of Delhi and after trifurcation in the year 2012, now belongs to the petitioner herein, who has the sole and exclusive jurisdiction upon the area wherein which the demised premises is situated.
6. In para 3 of the petition, it is stated that as per the records available with the Land and Estate Department of MCD, annual temporary permissions for using the demised premises as a Tennis Club by its member was granted by the erstwhile MCD subject to submission of the information regarding the members of the club and the deposition of the requisite permission fee.
7. In para 4 of the petition, it is stated that the demised premises is commonly known as "TENNIS CLUB" and in para 5 of the petition, it is stated that after initial grant of permission, no application for the grant of said temporary annual permission has been filed by the Club nor any permission fees has been got deposited.
PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 3 of 36
8. In para 6 of the petition, it is stated that further, huge unauthorized construction has been raised or carried out in the demised premises by the Club apart from misusing the same for various commercial activities like holding social functions, marriages etc.
9. In para 7 of the petition, it is stated that despite issuance of various communications including communication dated 04.04.2016, 10.05.2016 & 11.10.2018 seeking the present status of the Club, documents relating to the formation of the present managing committee with complete list of members from the date of inception of the club, details of the activities carried out in the club, receipt of payment of rent/license fees/permission upto date, no document / information has been supplied to the MCD. The copies of the communications dated 04.04.2016, 11.05.2016 & 11.10.2018 are annexed as AnnexureB (Colly.).
10. In para 8 of the petition, it is stated that pursuant to letter dated 11.10.2018, a letter dated 22.10.2018 was written to MCD by the Club contending that whole area opposite Old Delhi Railway Station right from Delhi Cloth Market to Hardayal Library has been kept as open area in the Delhi Master Plan and the 'land use' is to be maintained PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 4 of 36 accordingly and requested MCD to regularize the Club. However, no receipt of license/lease rent/annual permission etc. has been submitted by them. Further, the requisite/complete document/payment receipts have not been provided yet.
11. In para 9 of the petition, it is stated that the demised premises is a "public premises", as defined in Section 2(3) of The Public Premises Eviction of Unauthorized Occupant 1971.
12. In para 10 of the petition, it is stated that the Club is in unauthorized occupation/retention of the demised premises being a Public Premises.
13. In para 11 of the petition, it is stated that the demised premises is required by the Project and Maintenance Division of City S. P. Zone of North DMC in coordination with the PWD, GNCTD and SRDC for developing the demised premises as an underground bus terminal to be connected to old Delhi Railway Station, so as to ease and decongest the entire area from heavy traffic.
14. In para 12 of the petition, it is averred by MCD that a show cause notice cum eviction notice dated 13.02.2020 was issued to the PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 5 of 36 Club seeking its reply along with necessary documentary evidence. The copy of the show cause notice cum eviction notice dated 13.02.2020 is AnnexureC.
15. In para 13 of the petition, it is stated that pursuant to show cause notice dated 13.02.2020, a reply dated 26.02.2020 accompanied with various documents viz. Copy of Memorandum of Association and Rules & Regulations of the Club, copy of property tax receipt dated 15.07.2019, copy of electricity and water bill dated 31.12.2019, the list of members of the club, the list of office bearers of the club, copy of letter dated 28.05.2007 addressed to Dy. Comm. (L&E), MCD regarding the payment of lease rent of Rs.5,664/, copy of letter dated 19.06.2007 issued by the Club requesting for renewal of alleged lease and copy of letter dated 03.04.2019 seeking regularization of the club on parity with another club namely National Club.
16. In para 14 of the petition, it is stated that a personal hearing opportunity was afforded to the Club on 18.03.2020, which was attended by its office bearers wherein they contended that club is situated in a green belt and the fees of the same has been paid till 2007. They further contended that no amount has been paid after 2007 and the lease has expired in or around the year 1995; and PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 6 of 36 further, property tax in respect of said club has been paid upto 2019 2020 and requested for further renewal of the lease.
17. In para 15 of the petition, it is stated that another hearing opportunity was afforded to the Club on 31.07.2020, which was also attended by the office bearers of the respondent, whereupon they requested to file some additional documents by 03.08.2020; on 03.08.2020, a letter of even dated along with certain documents viz., copy of letter dated 31.07.2020, copy of audited balance sheet for the year ending 31.07.2019, list of current members, copy of certificate of registration with Registrar of Societies, copy of last notice of AGM, copy of office bearers elected in the last AGM and list of members and nonmembers participating in lawn tennis at present. Copy of reply dated 26.02.2020 and 03.08.2020 are annexed as AnnexureD (Colly) alongwith petition.
18. In para 16 of the petition, it is stated that the replies and supporting documents so submitted by the respondent were thoroughly examined and upon examining the same, it is revealed that no plausible / cogent reasons were set out by the respondent apart from the contentions as mentioned in para no. 14 & 15 referred above.
PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 7 of 36
19. In para 17 of the petition, it is stated that the bare reading of the said reply would show that the Club has not put forth any cogent reason nor has placed any documentary evidence on record to show that the club is being run in the premises under any valid subsisting permission.
20. In para 18 of the petition, it is stated that it is amply clear from the records, as well as from the reply dated 26.02.2020, the Club has failed to get the Annual Temporary Permission in respect of the demised premises renewed since long. No documentary evidence was filed along with the reply nor any payment receipt of the payment of annual rent was filed. No details of the constitutions of the managing committed was filed. No detail of any sports activity being undertaken and performed by the Club has been put forth by the respondent.
21. In para 19 of the petition, it is stated that the competent authority passed a detailed speaking order dated 01.09.2020, directing the respondent to hand over the physical possession of the demised premises to the petitioner and payment of an amount of Rs.18,52,58,672/ to the petitioner for illegally occupying and misusing the demised premises. The copy of the speaking order along with the calculation sheet of the charges amounting to PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 8 of 36 Rs.18,52,58,672/ being the market rent is annexed herewith and marked as AnnexureE (Colly.).
22. It was prayed in the petition that the orders for eviction may be passed against Club in respect of Public Premises i.e. premises bearing number 2767, Queens Garden SPM Marg, Opposite Old Delhi Railway Station, admeasuring 2622.63 sq. yds. along with the damages for use and occupation of the said public premises in accordance with law and that the cost of the petition may be awarded to the petitioner against the respondent.
Written Statement Filed By The Club Before Estate Officer
23. The Club filed written statement before the Estate Officer in which it was denied that North Delhi Municipal Corporation are the owners of the property in question. In para 1 of the written statement, it is submitted that under the scheme of the Transfer of the Property Act, the immovable property can be transferred by Sale, by assignment, by lease by mortgage to by gift and by Exchange. In the present case as per AnnexureA referred to by the MCD in the paragraph under reply, it is clearly stated that subject property was transferred to the petitioner by Government Order namely Wilson Survey No. 115/101 only to manage and look after it, that too, on PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 9 of 36 certain terms and conditions contained in the above said Wilson Survey No. 115/101. The MCD has not filed the Wilson Survey no. 115/101 purposely in order to conceal the terms and conditions contained in the order on the basis of which the subject property was transferred. It is submitted that when the subject property was transferred to the Club, the Club was already a Tenant / Lessee in perpetuity. It is further submitted that at the time of transfer of the subject property, it was / is having an area measuring 3033 sq. yds.
24. The Club denied the contents of para 2 of the petition and submitted that the subject property as per column 6 of AnnexureA filed by the petitioner was transferred to the Municipal Corporation vide Government order subject to the terms and condition contained in the Wilson Survey No. 115/101 only for management of the lease property. It is requested that MCD be directed to file the Wilson Survey No. 115/101 along with the terms and conditions on the basis of which the subject property was transferred and also the transfer orders on the basis of which the MCD is claiming ownership. The Club reserved its right to file the reply as and when the above said Wilson Survey No. 115/101 and the Government order is produced by the MCD. The Club did not deny that there is trifurcation of Municipal Corporation of Delhi in the year 2012.
PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 10 of 36
25. The Club denied the contents of para 3 of the petition and submitted that the Club was established in the year 1897 which was duly registered under Societies Registration Act XXI of 60 and a perpetual lease was granted by the predecessors of the MCD at a monthly rent of Rs.11/ which facts are well reflected in the columns 9, 10 and 11 of Register of Immovable Property filed by MCD as AnnexureA. It is further submitted that the MCD is deliberately not producing the Wilson Survey Report, Government order as well as the copy of lease between the predecessors of MCD and the Club and is withholding a vital document containing the terms and conditions of the lease between the predecessors of the parties. The Club stated that it is paying rents as per perpetual lease agreed between the predecessor in interest of the parties as per clause 9 of AnnexureA.
26. In reply to para 4 of the petition, it is submitted that the Club is in occupation of the premises since day one of the perpetual lease granted by the petitioners predecessors in interest.
27. The Club denied the contents of para 5 of the petition and submitted that as per AnnexureA filed by the MCD, the possession of the Club in column 10 is shown as "perpetual lease" as well as in the plan annexed to the AnnexureA which is duly verified by the PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 11 of 36 predecessor of the MCD. Therefore, MCD now cannot say that the Club was inducted in premises on temporarily annual permission basis and also in view of Section 115 of the Indian Evidence Act. It is submitted that the Club had deposited the lease rent upto 31.3.2007 calculated at the rate of Rs.11/ per month. The Club referred to a receipt dated 31.3.2007 and the letter dated 28.5.2007 which are filed by it along with the list of documents. It is further submitted that the MCD is accepting rents from the Club without any objection and the possession of respondent has not been claimed by the MCD during the tenure of lease.
28. The Club denied the contents of para 6 of the petition and denied any unauthorized construction. It is submitted that no commercial activity of any type is/was running at the leased premises by the Club.
29. The Club denied the contents of para 7 of the petition and submitted that the averment set out in the letter dated 11.10.2018 by MCD are vague. The Club through its the then Secretary had provided the constitution as well as other documents to the predecessor of the MCD at the time of leasing out the premises to the Club and the same are lying in the file of Wilson Survey no. 115/101. MCD is PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 12 of 36 intentionally not filing the documents lying in file of Wilson Survey. As far as the lease rent is concerned Club had paid the ground rents upto 31.3.2007 along with covering letter dated 28.5.2007. The Club is again filing the aforesaid receipt and letter along with the written statement.
It is submitted that the Club had already filed its constitution, house tax receipts, electricity bills etc. on 27.2.2020, which were duly received by the officials of MCD on 18.3.2020.
It is further submitted that there is no correspondence from North MCD or their predecessor during the period 1988 to 2015.
30. The Club denied the contents of para 8 of the petition but admitted filing of letter dated 22.10.2018.
31. The Club denied the contents of para 910 of the petition and alleged that premises was let out to the Club in perpetuity by the predecessor of MCD and the premises was transferred by a Government Order to MCD for managing the property as per Wilson Survey no. 115/101. It is submitted that the Club is not an unauthorized occupant. Therefore, PP Act is not applicable. It is submitted that a perpetual lease was executed by predecessor of MCD and thereafter Club's possession was confirmed by the survey PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 13 of 36 conducted by Mr. A. J. Wilson as lessee. Therefore, it cannot be said that the possession of the Club is unauthorized.
32. The Club denied the contents of para 11 of the petition and it is denied that the premises is required for the project and maintenance division of city S. P. Zone of North DMC in Coordination with PWD, GNCTD and SRDC for developing the demised premises as an underground bus terminal to be connected to Old Delhi Railway Station so as to ease and de congest the entire area from heavy traffic. No survey or plans of underground bus terminal was filed along with the petition. It is submitted that the demised premises does not come under so called underground Bus Terminal. The Club is not situated opposite to either entry gate or in front of exit gate of Old Delhi Railway Station. It is submitted that in case, the demised premises falls within the project of Bus Terminal, in that event the Club is ready to fully cooperate in the construction of underground bus terminal only and the MCD should not obstruct the Club from running their activities from the ground floor as exists today in view of provisions under Section 14(1) of Delhi Rent Control Act.
33. In reply to paragraph 12 of the petition, it is submitted that the Club had received the notice dated 13.2.2020. The said notice is PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 14 of 36 illegal, arbitrary, contrary to Master Plan and the same is not under Section 14(1) of the Delhi Rent Control Act. It is submitted that the said notice was given to the Club in order to evict the Club. As per the Master Plan, the area falls in green zone wherein no construction activities are permitted or allowed. It was quite evident from the meeting on 18th March 2020, with the Asst. Deputy Commissioner of Land & Estate Department of North Delhi Municipal Corporation (Mrs.Akriti Sagar) that they wish to evict the Club unlawfully from the demised premises and lease out the same to new prospective Lessee for similar purpose at significantly higher rates. This is the same modus operandi that had adopted on Gandhi Maidan ground. After constructing the parking, they have constructed a Mall under the name of Omaxe Chowk. The photocopy of the brochures published by the Omaxe are filed along with the list of documents.
34. In reply to paragraph 13 of the petition it is submitted that the demised premises was taken on perpetual lease. The club exists since the inception of lease which is now more then 100 years old. The aim and object of the Club are to foster brotherly love and mutual help, to provide healthy recreation to provide faculties to the proper section of the society and the club is for the residents of old Delhi. Rest of the allegations contained in paragraph under reply are wrong and denied.
PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 15 of 36 It is further submitted that this is the only facility/club left in Shahjhanabad, providing multisports facilities as well as recreation activities since the regime of British Government.
35. Contents of paragraph 14 of the petition are not denied being matter of record.
36. In reply to paragraph 15 of the petition, it is submitted that the Club is a lessee in the demised premises in perpetuity and is well reflected in AnnexureA filed by MCD and thus governed by Delhi Rent Control Act. The Club has filed the receipts which show that the petitioner had received rents upto 31.3.2007 calculated at the rate of Rs.11/ per month. The Club is also filing the documents in order to show that the clubs is also carrying out sports activity in the demised premises. The MCD has not filed any document to show that the premises was given annual temporary permission basis to the Club by the predecessor of the MCD. That the Club is functioning as per its constitution (Rules and Regulations), the management committee of the club is elected on regular basis during the annual general meeting. The respondent had already filed the list of current Managing Committee along with its reply.
PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 16 of 36
37. In reply to paragraph 16 of the petition, the Club has referred to policy / guidelines issued by Minister of Urban Development bearing No. 21011(7)90/POI.IV/H.11 dated 14.01.1992. In this circular, the PP Act provides for the eviction of unauthorized occupants from public premises by Estate Officers. This circular took note of a judgment in Ashoka Marketing Ltd. Vs. PNB and issued directions / framed policies that the genuine tenant should be dealt with under the respective Rent Control Acts.
38. It is submitted that in view of the aforesaid guidelines, the MCD cannot ask the Club to pay a sum of Rs.18,52,58,672/. The MCD is only entitled to increase the rents in under Section 6A of Delhi Rent Control Act.
39. It is further submitted that since the Club is a lawful tenant/Lessee, MCD cannot claim damages. In view of Kalu Ram's judgment, the MCD is entitled to recover legally recoverable rents as the arrears are hit by law of limitation. The alleged calculations referred in AnnexureE (Colly.) are arbitrary illegal and the same are not tenable in the eyes of law. So far as the alleged speaking order is concerned in view of aforesaid lines the same is bad in law.
PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 17 of 36
40. The Club denied the contents of para 17 of the petition and submitted that the so called speaking order dated 13.2.2020 bad in law and the same is liable to be set aside. No opportunity of personal hearing was given to the Club before passing this Speaking order and the same is liable to be set aside on this score alone.
41. The Club denied the contents of para 18 of the petition and submitted that the Club is a lessee in respect of premises in question. The Club is filing some House Tax Receipt and lease rent receipts. Some of the lease rent receipts and House Tax Receipt has been eaten by white ants. The details of Managing Committee Members are already on the judicial file.
42. The Club denied the contents of para 19 of the petition and submitted that the alleged speaking order dated 1.9.2020 is not tenable in the eyes of law. The alleged amount of Rs.18,52,58,672/ is illegal and arbitrary. The calculation sheet filed by the is also wrong and hence denied.
43. The Club denied the contents of para 20 of the petition and hence denied the order dated 1.9.2020 is not tenable in eyes of law and the Estate Officer cannot direct to the Club to deposit on the basis PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 18 of 36 of market rent.
44. The Club denied the contents of para 21 of the petition and submitted that the alleged speaking order dated 1.9.2020 is incorrect and not according to the latest policy of Public Premises Act.
Replication of MCD
45. MCD filed replication reiterating its stand.
Order Of Estate Officer
46. After hearing the parties, the Estate Officer vide impugned order no. D885/E.O./P.P. dated 16.09.2021 directed eviction of the Club and payment of damages to the tune of Rs.18,52,58,672/. In default of the payment of said amount, the Club was directed to pay interest at the rate of Rs.15% per annum.
Present Appeal
47. Aggrieved by this order, the Club has filed the present appeal challenging it on various grounds. Reply to the appeal was filed and arguments were heard.
PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 19 of 36
48. I take up the issues raised by appellant in this appeal point wise as under : Whether Delhi Rent Control Act, 1958 is Applicable to the Present Premises
49. Ld. counsel for the appellant has argued that the rent in the present case is Rs. 11/ per month as IP Register itself and therefore, the present case is covered under Delhi Rent Control Act, 1958 and the Estate Officer has no power to pass an eviction order in the present case.
50. I would like to refer to Preamble of the Delhi Rent Control Act, 1958, which is reproduced as under : "An Act to provide for the control of rents and evictions and of rates of hotels and lodging houses, and for the lease of vacant premises to Government, in certain areas in the Union territory of Delhi."
51. The Preamble itself shows that Delhi Rent Control Act, 1958 is not applicable to the premises leased by Government. This aspect has been made more clear in Section 3(a) of the Delhi rent Control Act, 1958, the relevant portion of which is reproduced as under : "Act not to apply to certain premises. Nothing in this Act shall apply
(a) to any premises belonging to the Government;"
PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 20 of 36
52. The aforesaid provisions makes it clear that where a land has been let out by Government, provisions of Delhi Rent Control Act, would not be applicable.
53. I would like to refer here Ashoka Marketing Private Ltd. vs. PNB, AIR 1991 SC 855, in which Hon'ble Supreme Court of India held as under : "It would thus appear that, while the Rent Control Act is intended to deal with the general relationship of landlords and tenants in respect of premises other than government premises, the Public Premises Act is intended to deal with speedy recovery of possession of premises of public nature, i.e. property belonging to the Central Government, or Companies in which the Central Government has substantial interest or Corporations owned or controlled by the Central Government and certain corporations, institutions, autonomous bodies and local authorities. The effect of giving overriding effect to the provisions of the Pubic Premises Act over the Rent Control Act, would be that buildings belonging to Companies Corporations and Autonomous bodies referred to in Section 2(e) of the Public Premises Act would be excluded from the ambit of the Rent Control Act in the same manner as properties belonging to the Central Government. The reason underlying the exclusion of property be longing to the Government from the ambit of the Rent Control Act, is that Government while dealing with the citizens in respect of property belonging to it would not act for its own purpose as a private landlord but would act in public interest. What can be said with regard to Government in relation to property belonging to it can also be said with regard to companies, corporations and other statutory bodies mentioned in Section 2(e) of the Public Premises Act. In our opinion, therefore, keeping in view the object and purpose underlying both the enactments viz., the Rent Control Act and PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 21 of 36 the Public Premises Act, the provisions of the Public Premises Act have to be construed as overriding the provisions contained in the Rent Control Act."
54. As per the Immovable Property Register (in short IP Register) and as per Club's own case, the land in question is a Government land leased out to the Club. The IP Register shows that the piece of land leased out to Club was owned by the erstwhile Municipal Committee, which was succeeded by Municipal Corporation of Delhi. It is not in dispute that the MCD was trifurcated and North MCD succeeded erstwhile MCD in respect of the area in question. Presently, all the three MCDs have been unified and presently, the property in question is owned by MCD. In view of aforesaid discussion, it is clear that The Delhi Rent Control Act, 1958 is not applicable to the present case and the Estate Officer is empowered to act and pass appropriate order under PP Act.
Policy / Guidelines issued by Ministry of Urban Development Bearing No. 21011(7)90/Poi.Iv/H.11 Dated 14.01.1992
55. In reply to paragraph 16 of the petition, the Club has referred to policy / guidelines issued by Minister of Urban Development bearing No. 21011(7)90/POI.IV/H.11 dated 14.01.1992. Copy of this circular has been placed on record. The MCD has not objected to its authenticity. Ld. Counsel for appellant argued that as per this circular, PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 22 of 36 the appellant could have been evicted only through the procedure laid down in Delhi Rent Control Act, 1958 and therefore, the Estate Officer had no power to pass the impugned eviction order. I have perused the said circular. This circular took note of a judgment in Ashoka Marketing Ltd. Vs. PNB, in which, Supreme Court of India observed that every activity of the Public Authority should be guided by public interest and that they were expected to deal with their tenants distinctly from private land lords. At the same time several representations against the eviction proceedings taken up under the amendment had been received in the Ministry and various Administrative Ministry, from individuals, organizations, legal experts and Members of Parliament urging the Government to issue guide lines so that the provision of PP Act are not indiscriminately used by statutory organization etc. to oust genuine tenants.
In this circular, it is further mentioned that the matter was discussed in detail in an interministerial meeting held on 20 th of August 1991. The consensus in this meeting was that the Public Sector Undertakings should not use the P.P.Act to evict genuine tenants, but use the Act primarily to evict those found to be sub letting the premises for commercial or residential purpose or illegal occupants or recalcitrant employees who have ceased to be in service of the Public Sector Undertakings.
PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 23 of 36 Circular also considered that the amended P.P. Act so far as it affects the PSUs and corporations has already been upheld by the highest judicial authority, the Government has decided that the protection of the Public Premises Act enjoyed by the premises of Government owned organizations should continue. At the same time, it has been decided to prescribe for the benefit of all these organizations a set of guidelines in order to prevent arbitrary use of the provisions of the P.P. Act to evict genuine tenants and to limit the use of the summery powers primarily to evict unauthorized occupants and retired employees of the enterprises. This will ensure compliance with the spirit underlying the protection extended by the Parliament to these premises and the observation of the Supreme Court while upholding the validity of the amended Act. The guidelines would set limits for the resort to P.P. Act by the PSUs and ensure that the interest of the genuine tenants are not jeopardized. Accordingly, this circular issued following agreed guidelines :
(i) The provisions of the P.P. Act should be used primarily to evict totally illegal occupants of the premises of public authorities or unauthorized sublettees, or employees who have ceased to be in their service and thus ineligible for occupation of the premises. The proceedings should be initiated in accordance with the provisions of the Act only in cases where the occupation becomes unauthorized on genuine grounds of law.
(ii) The provisions of the Act should not be restored to either with a commercial motive or to secure vacant possession of the premises in order to accommodate their own employees, where the premises were in occupation of the original tenants to whom the PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 24 of 36 premises were let either by the public authorities or the persons from whom the premises were acquired.
(iii) A person in lawful occupation of any premises should not be treated or declared to be an unauthorized occupant merely on service of notice of termination of tenancy, nor should any contractual agreement be wound up by taking advantage of the provisions, of the Act. At the same ti,e it will be open to the public authority to secure periodic revision of rent in terms of the provisions of the Rent Control Act in each State or to move under genuine grounds under the Rent Control Act for resuming posses on. In other words, the public authorities would have rights similar to private landlords under the Rent Control Act in dealing with genuine legal tenants.
(iv) It is necessary to give no room for allegations that evictions were selectively resorted to for the purpose of securing an unwarranted increase in rent or that a change in tenancy was permitted in order to benefit particular individual or institutions in order to avoid such imputations or abuses of discriminatory powers. The release of premises or change of tenancy should be decided to the level of Board of Directors of the Public Undertaking.
(v) All Public Undertakings should immediately re view all pending cases before Estate Officer or Courts with reference to these guidelines and withdraw eviction proceedings against genuine tenants on the grounds otherwise than as provided under these guidelines. The provisions under the P. P. Act should be use henceforth only in accordance with these guidelines.
I would request you to advice your officers to issue these guidelines to all the PSUs/Corporations under the administrative control of your Ministry/Department for strict enforcement. The guidelines may also be given wide publicity.
With kind regards.
Yours sincerely, (SHEILA KAUL)
56. Ld. Counsel for appellant has based his arguments on the directions which has been underlined by me as above. However, I am PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 25 of 36 of the opinion that no circular can override the express provisions of law / Act. The Delhi Rent Control Act, 1958 as already discussed is not applicable to the piece of land in question. Hence, the above circular cannot be considered in the present proceedings.
Whether the Plot in Question was already sold in Public Auction as per Survey Sheet No. 151 for the Year 19101112
57. One of the grounds challenging the impugning order is that MCD is not the owner of the plot because as per the aforesaid survey sheet the plot in question was sold in public auction. Alongwith the appeal, the appellant has filed the copy of the Survey alongwith its English translation annexed as document A7.
58. Ld. counsel for respondent / MCD submits that this survey sheet is No. 151 for the year 19101112 and is in respect of Kohan Road, Nahar Sa Adat Khan. However, there is no reference to the subject plot. There are four plots specified at page No.2 of this document. The plot numbers are 46/6, 47, 48 and 48/6 and therefore, it is of no benefit to the appellant. Further, it is submitted by ld. Counsel for MCD that a copy of survey register of Delhi Municipality (Annexure A
8) has been annexed by the appellant which shows Plot No. 2267 at Hamilton Road. Clearly it is not the number of the present plot. Further, there are plots No. 2269 and 2270 on the Queen's Road PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 26 of 36 mentioned in this Survey Register of Delhi Municipality. It is further submitted by ld. Counsel for respondent/MCD that the premises number of the plot in question is 2767. There is no reference of the present plot in the said Survey Register of the predecessor of MCD. It is not in dispute that Delhi Municipality was predecessor of MCD.
59. I have considered the rival submissions. It is necessary to mention here that Public Premises (Eviction of Unauthorised Occupants) Act, 1971 provides a quick and summary procedure for eviction of the unauthorised occupants, it is enough for Estate Officer to rely upon the Government records in order to determine as to whether a particular property is a public premises or not. In the present case, the IP Register contains the description of the properties belonging to MCD and the subject property has been described as the property of MCD in IP Register. This is sufficient for Estate Officer to proceed on the basis of the said Register. It is necessary to mention here that an Estate Officer under the Public Premises (Eviction of Unauthorised Occupants) Act is not expected to step into the shoes of a Civil Court, only which has been assigned an exalted and exclusive authority of passing a decree of declaration of ownership of a property. The Estate Officer does not have an authority to go into the question of ownership of a property if such property has been reflected PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 27 of 36 as a Government property in Government records. If appellant wants to challenge the entry in IP Register showing the said property as belonging to MCD, he can only approach a Civil Court. Moreover, these documents / survey report do not show as to how appellant is in occupation of the subject property. It is not the case of appellant that it had paid rent / licence fee to a person other than MCD. Therefore, the documents produced by the appellant are of no benefit to it. I may clarify here that ld. Counsel for appellant had argued that a specific issue of ownership of property should be framed and the case should be remanded back to Estate Officer with a direction that parties should be allowed to lead their respective evidence on such issue. I am of the opinion that framing of such an issue is beyond the scope of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Therefore, this request is declined. The Estate Officer has to act within a very narrow jurisdiction. He is to see as to whether the property in question is a Government property as per the Government records and if so, whether, as per information received, the occupant in question is unauthorised or not.
60. As per Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, on receiving of such an information, Estate Officer has to issue a notice to show cause as to why an order of PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 28 of 36 eviction should not be made. Therefore, the entire responsibility is upon the noticee to show to the Estate Officer as to how he is authorised to stay on the public premises.
Nature of Lease
61. The appellant has heavily relied upon the relevant entry in the "Register of Immovable Property" of Municipal Corporation of Delhi. The register contains 19 columns but I would refer to only relevant columns as under :
(i) In column no.3, it is written in Hindi that the land is given to the Club on lease.
(ii) Column no.6 is in respect of "number and date of Government order transferring the management to the Municipal Corporation of Delhi". In this column there is reference of Wilson Survey No. 115101.
(iii) Column no.8 refers to "number and date of order authorizing such occupation and the authority by whom ordered." Under this column also there is reference of Wilson Survey No.115101, Resolution No.1, Garden Committee dated 11.11.1942. OM 18.11.1942.
(iv) Column No.9 refers to "name of tenant, lessee, if any, and term of lease". Under this column, Secretary of this Club has PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 29 of 36 been mentioned at the rate of Rs.11/ per month.
(v) Column No.10 refers to the "date of termination of lease". In this column, it is written in Hindi "अससममत".
(vi) Column no. 19 refers to "file no. 267/अ०स०/68".
62. Ld. counsel for appellant argued that the file No. 267 referred to in column No. 19 must be containing the terms and conditions of the lease. It is submitted that the respondent / MCD is concealing this file. Further, it is submitted that the duration of lease has been mentioned in Column 10 as "अससममत", which means that it was a perpetual lease in favour of appellant. Ld. Counsel for respondent / MCD has drawn my attention to a letter dated 31.07.2020 of appellant addressed to Assistant Commissioner (Land and Estate Department), North Delhi Municipal Corporation, in which, the appellant had stated the the Club had started in 1896 on 96 years lease. Therefore, it is submitted by ld. Counsel for respondent / MCD that it was not a perpetual lease as per appellant's own admission in the said letter. It is submitted that despite several letters by MCD, the appellant did not produce any lease deed.
63. I have considered rival submissions on this important issue.
PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 30 of 36
64. Section 105 of the Transfer of Property Act, 1882 defines "lease"
and specifies that a lease of immovable property can be for a certain time duration as well as "in perpetuity". The Hindi version of Transfer of Property Act translates these words as "शशशवत कशल कक ललए". The IP Register does not mention that lease is for "शशशवत कशल", rather it simply used the word "अससममत", which may mean "unspecified period" and may also mean "in perpetuity". Even if the word "अससममत" means "perpetuity", in that situation such lease deed must be registered as per Section 107 of The Transfer of Property Act, 1882. Where such lease is not registered, it has to be presumed to be a lease for month to month terminable on part of either lessor or lessee by 15 days' notice as per Section 106 of The Transfer of Property Act, 1882.
65. It must be kept in mind that the registered lease deed is a public document and if its copy is not available with the appellant, he could have inspected the records with SubRegistrar and could have placed the same before Estate Officer as well as before this Court. As appellant has not done so, lease of property in favour of appellant for perpetuity cannot be presumed. Therefore, status of appellant was at the best that of a lessee on month to month basis and appellant cannot be held to be a lessee in "perpetuity". Even if his stand in the aforesaid letter that the land was given on lease for 96 years is PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 31 of 36 accepted, the appellant was an unauthorised occupant since 1992.
Whether Eviction Petition could not be decided without bringing Resolution no.1 passed by Garden Committee on 11.11.1942 and confirmed by original Minutes on 18.11.1942?
66. Ld. Counsel for appellant argued that the Garden Committee had passed a resolution requiring that gardens and sports premises should be maintained and they should not be used for any other purpose. It is submitted that MCD Act was passed in the year 1957 and therefore, MCD is bound to owner the aforesaid resolution no.1 of Garden Committee.
67. I may mention here that no resolution of any Garden Committee and original minutes dated 18.11.1942 have been placed on record by appellant. Even if, some guidelines or instructions were passed by a Committee, the same cannot change the character of the premises in question. As already stated, the subject property is a public premises and the Estate Officer is empowered as per law to pass eviction order.
Whether as per Clause 12.4.3. of Master Plan of Delhi, the Government is not empowered to take open areas for development of parking etc.
68. It is argued by Ld. Counsel for appellant that the MCD wants this PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 32 of 36 land as underground bus terminal to be connected to Old Delhi Railway Station. It is submitted that it is in violation of the Master Plan.
69. I have considered this submission. The issues before the Estate Officer were threefold. (1) Whether the subject property is a public premises, (2) Whether the appellant is unauthorised occupant and (3) Calculation of market rent. The Estate Officer cannot travel beyond the above said three issues and therefore, it is not within his jurisdiction to pass any order as to whether the subject premises is being acquired in violation of Master Plan.
Whether the MCD cannot recover the time barred arrears
70. It is argued by ld. Counsel for the appellant that the respondent / MCD calculated the arrears which were time barred. Ld. Counsel for the appellant has referred to New Delhi Municipal Committee vs. Kalu Ram & Anr., 1976 AIR 1637, in which, Hon'ble Supreme Court of India has held as under : "Does Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 create a right to realise arrears of rent without any limitation of time ? Under section 7 the Estate Officer may order any person who is in arrears of rent 'payable' in respect of any public premises to pay the same within such time and in such instalments as he may specify in the order. Before however the order is made, a notice must issue calling upon the defaulter to show cause way such order should not he made and, if he raised any objection, PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 33 of 36 the Estate Officer must consider the same and the evidence produced in support of it. Thus the Estate Officer has to determine upon hearing the objection the amount of rent in arrears which is 'payable.' The word 'payable' is somewhat indefinite in import and its meaning must he gathered from the context in which it occurs. 'Payable' generally means that which should be paid. If the person in arrears raises a dispute as to the amount, the Estate Officer in determining the amount payable cannot ignore the existing laws. If the recovery of any amount is barred by the law of limitation, it is difficult to hold that the Estate Officer could still insist that the said amount was payable. When a duty is cast on an authority to determine the arrears of rent, the determination must be in accordance with law. Section 7 only provides a special procedure for the realisation of rent in arrears and does not constitute a source or foundation of a right to claim a debt otherwise timebarred. Construing the expression "any money due" in Section 186 of the Indian Companies Act, 1913 the Privy Council held in Hans Raj Gupta and others v. Official Liquidators of the Dehradun Mussorie Electric Tramway Company Ltd.(1) that this meant moneys due and recoverable in suit by the company, and observed: "it is a section which creates a special procedure for obtaining payment of moneys; it is not a section which purports to create a foundation upon which to base a claim for payment. It creates no new rights." We are clear that the word "payable" in Section 7, in the context in which its occurs, means "legally recoverable." Admittedly a suit to recover the arrears instituted on the day the order under Section 7 was made would have been barred by limitation. The amount in question was therefore irrecoverable."
71. I may mention here that in written Statement before Estate Officer, the appellant had specifically referred to the aforesaid judgment but the Estate Officer has not referred to the aforesaid judgment. Alongwith the petition before Estate Officer, MCD had annexed an order dated 01.09.2020, vide which, the appellant was directed to vacate the property and to pay market rent for the PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 34 of 36 municipal property which was calculated as per a calculation sheet. Perusal of the same shows that the market rent has been calculated from the year 1965. It is clear that MCD is demanding the arrears of market rate even for the period which is time barred. Therefore, the order demanding the market rent is set aside with direction to Estate Officer to exclude the period which is time barred by limitation and then, calculate the market rent/damages. The Estate Officer shall hear the parties on this point and pass a fresh order on the question of market rent/damages in view of New Delhi Municipal Committee vs. Kalu Ram & Anr., 1976 AIR 1637 (supra).
72. Consequently, I find no illegality in the impugned order so far as the question of eviction is concerned. However, the finding of the Estate Officer, vide which damages have been calculated by MCD, is hereby set aside with directions to hear the parties afresh and pass a reasoned order as directed above.
73. The appeal is allowed partly.
74. Records of Estate Officer be returned back alongwith the copy of this judgment for compliance of directions contained therein. Parties shall appear before the Estate Officer on 21.9.2023.
PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 35 of 36
75. Appeal file be consigned to Record Room.
Announced in the open court on 15.09.2023.
(Vinod Kumar) Principal District & Sessions Judge West District, Tis Hazari Courts, Delhi PPA No.5/2022 M/s. Young Men's Tennis Club Vs. NDMC Page No. 36 of 36