Delhi District Court
In Re vs Delhi Tourism & Transportation ... on 3 September, 2020
IN THE COURT OF MR. DHARMESH SHARMA
DISTRICT & SESSIONS JUDGE: WEST DISTRICT
TIS HAZARI COURTS: DELHI
PPA No. 12/2019
CNR No. DLWT01-009043-2019
In re:
Bharat Petroleum Corp. Ltd.
Rgd. Office 4 And 6 Currimbhoy Road
Ballard Estate. Mumbai-38
Through
Mr. Kshitij Midha
Territory Manager (Retail)
Bharat Petroleum Corp. Ltd.
Bijwasan Installation Bijwasan, Delhi. . . . . . . Appellant
Versus
1. Delhi Tourism & Transportation Development Corporation Ltd.
(DTTDC)
Office of the Sr. Chief Manager (Legal)
DTTDC, Delhi Haat, INA
Aurobindo Marg, New Delhi - 110023.
2. Mr. B. L. Agarwala
Senior Chief Legal Manager/Ld. Estate Officer
Office of the Sr. Chief Manager (Legal)
DTTDC, Delhi Haat, INA
Aurobindo Marg, New Delhi - 110023.
3. M/s. Vijay Agro
Azad Hind Gram, Tikri Kalan
NH-10, Tikri Kalan, Delhi-110041. .....Respondents
Date of filing of the appeal : 07.11.2019
Date of arguments advanced
through Video Conferencing : 19.08.2020/27.8.2020
Date of judgment : 03.09.2020
PPA Nos. 12/2019 & 13/2019 Page 1 of 32
AND
PPA No. 13/2019
CNR No. DLWT01-009033-2019
In re:
Bharat Petroleum Corp. Ltd.
Rgd. Office 4 And 6 Currimbhoy Road
Ballard Estate. Mumbai-38
Through
Mr. Kshitij Midha
Territory Manager (Retail)
Bharat Petroleum Corp. Ltd.
Bijwasan Installation
Bijwasan, Delhi. . . . . . . Appellant
Versus
1. Delhi Tourism & Transportation Development Corporation Ltd.
(DTTDC)
Office of the Sr. Chief Manager (Legal)
DTTDC, Delhi Haat, INA
Aurobindo Marg
New Delhi - 110023.
2. Mr. B. L. Agarwala
Senior Chief Legal Manager/Ld. Estate Officer
Office of the Sr. Chief Manager (Legal)
DTTDC, Delhi Haat, INA
Aurobindo Marg
New Delhi - 110023.
3. M/s. Vijay Agro
Azad Hind Gram, Tikri Kalan
NH-10, Tikri Kalan
Delhi-110041. .....Respondents
Date of filing of the appeal : 07.11.2019
Date of arguments advanced
through Video Conferencing : 19.08.2020/27.8.2020
Date of judgment : 03.09.2020
PPA Nos. 12/2019 & 13/2019 Page 2 of 32
Appearances:
Mr. Anil Kumar Batra and Mr. Manan Lohani, Advocates for the
appellant alongwith Mr. Deepak Nirwal, Manager (Legal).
Ms. Bandana, Advocate for the respondents no.1 and 2.
Mr. Rajeev Rathee, Advocate for the respondent no.3.
ORDER
1. This common order shall decide the above noted two appeals that have been preferred under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as the 'PP Act') which appeals raise common question of law and facts, arising out of order dated 22.10.2019 passed by respondent no.2/Ld. Estate Officer for respondent no.1 Delhi Tourism & Transportation Development Corporation Limited (hereinafter referred to as the 'DTTDC'), whereby the two petitions under Section 4 and 7 of the PP Act in petitions No. 05/2018 and 06/2018 respectively filed by the respondent no.1/DTTDC, which was a petitioner before the Ld. Estate Officer have been allowed, resulting in an eviction order as also an order for payment of damages for wrongful occupation and possession of the subject property.
FACTUAL BACKGROUND
2. Briefly stated, the appellant is stated to be a Public Sector Maharatna undertaking under the administrative control of the Ministry of Petroleum and Natural Gas, a Union of India Undertaking, engaged in refining, distribution and selling petroleum products such as Motor Spirit (M. S. Petrol), H. S. D. (High Speed Diesel), Kerosene and LPG, etc., which are essential commodities under the Essential Commodities PPA Nos. 12/2019 & 13/2019 Page 3 of 32 Act. Admittedly, the appellant-Bharat Petroleum Corporation Limited (hereinafter referred to as the 'BPCL') entered into a standard Lease Agreement dated 27.01.2000 (Annexure A-2) with the respondent no.1/DTTDC whereby it was leased out an open plot of land at Azad Hind Gram, Tikri Kalan at NH-10, New Delhi (hereinafter referred to as the 'subject property') for a period of 30 years w.e.f. 23.07.1999 for running a petrol pump at an annual rental of Rs.2.30 lakhs with annual increase @ 3.5%, for each subsequent years. It is stated that the appellant/BPCL applied for requisite approvals for construction of superstructure and the relevant NOCs were obtained for running of a petrol pump. It is the case of the appellant/BPCL that respondent no.3- M/s.Vijay Agro was appointed as their licensee dealer vide Dispensing Pump and Selling License (hereinafter referred to as the 'DPSL') dated 01.10.2002 (Annexure A-4) and the retail outlet was commissioned on 01.10.2002 and since then, respondent no.3-M/s. Vijay Agro has been continuously running the retail outlet as its "licensee".
3. The dispute arose when the appellant BPCL received a notice dated 10.04.2018 (Annexure A-5) for termination of lease agreement dated 27.01.2000 alleging that :-
a. BPCL had sub-let/sub-lease the property to M/s. Vijay Agro and the same is breach of clause (6) of the l ease agreement;
b. BPCL have carried out certain alteration/modification in the existing structure of the subject property and the same is breach of clause (7) the lease agreement;
4. Due to aforesaid breaches the lease was terminated as per clause (11) of the lease agreement, and the appellant/BPCL was PPA Nos. 12/2019 & 13/2019 Page 4 of 32 directed to handover the subject property to the lessor (DTTDC) within 30 days of the receipt of such notice. It is the case of the appellant/BPCL that a reply was given by the appellant/BPCL dated 23.04.2018 (Annexure A-6), the gist of which is under :-
a. That BPCL had not sub-let/sub-lease the property to M/s.
Vijay Agro as apparent from the DPSL;
b. That the structure built at the property by BPCL is as per approved drawing by CCOE/PESO (chief controller of explosives). Also that no additional structure has been built at the site without due approvals from competent authority;
c. That accordingly, BPCL had not breached any clauses of lease and further requested for withdrawal of letter dated 10.04.2018 which was unilateral and against principal of natural justice.
5. It is stated that the appellant/BPCL received a notice for termination of Lease Agreement dated 12.06.2018 (Annexure A-7) inter alia intimating that their reply dated 23.04.2018 was found unsatisfactory and devoid of merits; and it was reiterated that the Lease Agreement already stood terminated vide its notice dated 10.04.2018; and that the appellant BPCL again submitted reply dated 21.06.2018 (Annexure A-8) reiterating that it had not sub-let/sub-lease the subject property to M/s. Vijay Agro and has not violated any terms of the Lease Agreement. The appellant BPCL then received a notice dated 05.10.2018 (Annexure A-9) under Section 4 of the PP Act from respondent no.2 stating that they had reasons to believe that BPCL was in unauthorized occupation of the public premises described under Schedule-I of the said notice and the appellant was asked to Show Cause as to why it be not evicted from the subject property described PPA Nos. 12/2019 & 13/2019 Page 5 of 32 as "Allotted area at Azad Hind Gram in Village Tikri Kalan on National Highway-10 before Bahadurgarh Border (Schedule-I). Further, a notice under Section 7 of the PP Act dated 05.10.2018 was served upon the appellant / BPCL for recovery of damages for wrongful occupation of the subject property after termination of the lease dated 27.01.2000. In response, the appellant submitted a reply dated 15.10.2018 (Anneuxre A-10), in which, the following objections were taken :-
"2. The land in question was leased out for running of a Petrol Pump Through the Lease Deed was signed in the year 2000. The possession of the land was handed over in 1999 for the purpose of setting up of a Petrol Pump which is evident from the following documents :-
(i) Letter dated NIL of BPCL to DTTDC informing it that construction of petrol pump is going on and requesting it to provide electricity connection;
(ii) Letter dated 19.07.1999 from DTTDC asking for rentals of Rs. 2.30 lakhs;
(iii) Copy of payment receipt dated 23.07.1999;
(iv) Letter dated 15.12.1999 of BPCL to DTTDC informing it about advance stage of engineering activities.
Copies of the said documents are collectively annexed herewith as Annexure R-1/2 (Colly).
3. BPCL submits that the structure that was set up by it and existed at the site at the time of execution of the Lease Deed has not been altered. Apart from the plant and machinery including under-ground oil Storage Tanks, dispensing pumps, there is a Pota cabin, which is being used as an office and a portable canopy fastened on nuts and bolts. The black and white copies photographs and photocopy of site plan allegedly annexed with the agreement are not at all legible. BPCL reserves the right to respond to the said documents as and when the legible copies are supplied to it. It is submitted that no details of the alleged structural changes made by the BPCL have been given and the said allegation being vague cannot be effectively responded to, by the BPCL.
4. M/s. Bharat Petroleum Corp. Ltd. (BPCL) submits that this Hon'ble Forum does not have jurisdiction to entertain and adjudicate the disputes between the parties, as the site at which PPA Nos. 12/2019 & 13/2019 Page 6 of 32 the Petrol Pump in question exists, is not a Public Premises, under the Public Premises Act. It is an admitted case of the parties that the petrol pump on the land in question was built by the Lessee. The disputes between the Parties hereto involves complicated questions regarding interpretation of the terms of the lease and as per the law laid down by the Hon'ble Supreme Court in "Express Newspaper Private Limited and Others vs. Union of India" (AIR 1986 SC 872), the Petrol Pump in question is not a Public Premises, under the Public Premises Act. The relevant paras of the Express Newspaper case reads as follows :
87. The Express Buildings constructed by Express Newspapers Private Limited with the sanction of the lessor i.e. the Union of India, Ministry of Works & Housing on Plots No.9 and 10, Bahadurgarh Zafar Marg demised on perpetual lease by registered lease-deed dated March 17, 1958 can, by no process of reasoning, be regarded as public premises belonging to the Central Government under S.2(e). That being so, there is no question of the lessor applying for eviction of the Express Newspaper Pvt. Lrd. Under S.5(1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 nor has the Estate Officer any authority or jurisdiction to direct their eviction under sub-s.(2) thereof by summary process. Due process of law in a case like the present necessarily implies the filing of suit by the lessor i.e. the Union of India, Ministry of Works and Housing for the enforcement of the alleged right of re-entry, if any, upon forfeiture of lease due to breach of the terms of the lease.
88. Nothing stated here should be construed to mean that the Government has not the power to take recourse to the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 where admittedly there is unauthorized construction by a lessee or by any other person on Government land which is public premises within the meaning of S. 2(e) and such person is in unauthorized occupation thereof."
5. In view of the above Authority, BPCL submits that the disputes between the parties cannot be summarily decided and it would require the Parties to lead evidence, which can be done in proceedings before the Civil Court.
6. BPCL denies that it has sublet/subleased or parted with the possession of the site in question at any given point of time. It is stated that M/s. Vijay Agro Centre was appointed as a licensee/dealer vide dealership agreement dated 01.10.2002, commonly known as DPSL for the sole purpose of selling PPA Nos. 12/2019 & 13/2019 Page 7 of 32 petroleum products of BPCL from BPCL petrol pump, solely on commission basis. A copy of the said DPSL agreement is being annexed herewith as Annexure R-1/3. A perusal of which would show that there is no subletting and license had been granted only for selling petroleum products of BPCL from the BPCL retail outlet. It is pertinent to note that all three major Oil Companies in India enter into similar agreements with their respective dealers for the sale of their products across country. A perusal of letter dated 01.12.2006 of DTTDC vide which they had asked BPCL to submit details of revenue sharing between BPCL and Vijay Agro shows that they were aware of the fact in 2006 itself, that Vijay Agro was selling the petroleum products as a licensee purely on commission basis. A copy of the said Letter is annexed herewith as Annexure R-1/4.
7. The DTTDC claim that the Lease stands terminated vide notice dated 10.04.2018 is erroneous. The Notice dated 10.04.18, was replied to by BPCL vide reply dated 23.04.18, inter-alia pointing out that there was no subletting and that the site is as per the approved drawing of Chief Controller of explosives. A copy of the said letter is annexed herewith as Annexure R-1/5. The reply dated 21.06.18 to the letter dated 12.06.18 is annexed herewith as Annexure R-1/6. It is submitted that the lease still subsists and continues. BPCL continues to be a tenant in respect of the site in question as DTTDC has purported to terminate the Lease in violation of the principles of natural justice, without giving hearing to BPCL."
6. It is further the grievance of the appellant that they moved an application for supplying a copy of Notification issued by the Central Government under Section 3 of the PP Act on 28.11.2018 before the respondent no.2 but no order was passed; and that anyhow a copy of notification dated 23.10.2012 was obtained (Annexure A-11), which prima facie brought out that Senior Chief Manager (Legal) was not competent to be appointed and act as the Estate Officer in terms of section 3 of the PP Act since it was Chief Manager (Legal) of respondent no.1 alone who could act in such capacity; and that another application was moved by the appellant/BPCL for dropping PPA Nos. 12/2019 & 13/2019 Page 8 of 32 proceedings based on the memorandum No. E. No. 4(1)/2013- DPE(GM)/FTS-1835 dated 22.05.18 (Annexure A-13) that interalia provides for procedures for settlement of disputes between different Government departments. However, their objection came to be dismissed vide order dated 12.03.2019 (Annexure A-12). It is further grievance of the appellant / BPCL that they moved an application with respondent no.2 to frame issues but issues were not framed although they were allowed to lead evidence in terms of order dated 10.04.2019 (Annexure A-14) and as the events eventually unfolded, the impugned order dated 22.10.2019 was passed received by them on 25.10.2019. Needless to point out that respondent no. 3 M/s Vijay Agros has endorsed and supported the case of the appellant / BPCL.
THE CASE OF RESPONDENT NO.1/DTTDC
7. The respondent no.1/DTTDC admitted that the Lease Agreement dated 27.01.2000 was created in favour of the appellant BPCL to establish, set up and run a petrol pump at allotted land measuring 12355.60 sq. ft. or 992.80 sq. mts for a period of 30 years and BPCL committed violation of clause (6) of the agreement and sub- leased/sub-let the premises to M/s. Vijay Agro without its written consent as also committed breach of clause (7) of the Lease Agreement by carrying out structural changes in the premises without its permission. The respondent no.1. /DTTDC has also come up with a case that the appellant/BPCL was occupying more area than what was allotted to then under the agreement, and it was alleged that the BPCL allowed construction and running of shops for selling tea/coffee and PPA Nos. 12/2019 & 13/2019 Page 9 of 32 snacks without intimation to it or without its written consent, and therefore, it was stated that DTTDC was within its right to invoke clause (11) of the agreement and issued a notice dated 10.04.2018 bearing No. PA/DTTDC/AHG/2017-18/2098/18 R&I to the respondent no.1 thereby terminating the agreement dated 27.01.2000, and further requiring appellant/ BPCL to handover the peaceful physical possession of the subject property within 30 days thereof.
8. It is pertinent to mention here that in the petition No. 5/18, the petitioner/DTTDC claimed the following reliefs against BPCL and M/s. Vijay Agro arraigned in the proceedings before the Ld. Estate Officer as respondents no.1 and 2 :-
a. Initiate eviction proceedings against the respondents under Sub Section (1) and clause (B)(II) of Sub Section (2) of Section 4 of Public Premises (Eviction of Unauthorized Occupants) Act, 1971;
b. Order eviction and taking physical possession of the premises licensed to the respondents under the agreement dated 27.01.2000;
c. Direct the respondents to handover vacant physical possession of the premises;
d. Pass any further order or direction as the Ld. Estate Officer may deem fit and proper in the facts and circumstances of the present case.
9. Further in the petition No. 6/18 under Section 7 of the PP Act, the following reliefs were sought :-
a. Direct the respondent no.1 to pay the damages of Rs.5,56,854/- @ Rs.3778.08/- per day from 11.05.2018 till 30.09.2018 alongwith interest @ 18% per annum;
b. Direct the respondent no.1 to pay the future damages @ Rs.3778.08/- from 1.10.2018 till the date of handing over the PPA Nos. 12/2019 & 13/2019 Page 10 of 32 possession of the premises alongwith interest @ 18% per annum.
IMPUGNED ORDER
10. Mr. B. L. Agarwala, Ld. Estate Officer/respondent no.2 in the present appeal in its detailed order dated 22.10.2019 referred to the respective pleadings of the parties, which are not repeated herein for the sake of brevity but narrated hereinabove in this order, and he referred to the evidence of RW1 Mr. Ankit Kumar Goyal, Manager (Sales), BPCL examined on 16.05.2019, 04.07.2019, 11.07.2019 and also referred to the evidence recorded by RW2 Mr. Rohit Ratan Yadav, Executive Engineering for BPCL, who was examined on 17.07.2019, 22.07.2019 and lastly on 06.08.2019; and further after going through the terms and conditions of the Lease Agreement dated 27.01.2000 and the evidence brought on the record, respondent no.2/Ld. Estate Officer found that over a period of time, various DPSL agreement have been entered interse between the respondent no.1/BPCL and respondent no.2-M/s. Vijay Agro without any permission or subsequent intimation to DTTDC; and that it was found that although the Lease Agreement dated 27.01.2000 was silent as to whether respondent no.1 could enter into such DPSL agreement with any third party, neverthless the agreement under its clause (6) created a specific bar upon the BPCL refraining it from transferring or parting with any rights in the subject property without prior written consent of DTTDC, which in his opinion would also encompassed even possessory rights or right to possession of the premises. The Estate Officer further found that the management of the petrol pump as also its running has been solely PPA Nos. 12/2019 & 13/2019 Page 11 of 32 under the control of respondent no.2-M/s. Vijay Agro and the employees of M/s. Vijay Agro have been running the entire show; and that BPCL failed to prove its submission that DTTDC was aware of DPSL agreement all the time since 2006. The respondent no.2/Ld. Estate Officer further found evidence with regard to change in the constitution of the firm M/s. Vijay Agro over the years and thus concluded that BPCL has been in breach of clause (6) of the Lease Agreement dated 27.01.2000.
11. Respondent no.2/Ld. Estate Officer further went through the documents placed on the record including the photographs filed by the DTTDC during the cross-examination of the witnesses examined on behalf of BPCL, and observed that clause (7) of the Lease Agreement required prior approval of the petitioner/DTTDC in the event of any addition or alteration of any building/structure existing at the premises at the time of execution of agreement. Ld Estate Officer found that the site plan of the property existed at the time of agreement and as existing at the time of proceedings before him had substantial variations; and that no pollution check centre and / or the tyre puncture shop were shown in the original site plan, which have been set up without the written permission of the DTTDC. Likewise, it was found that tea/coffee and snacks stall were being run at the site without seeking any permission from the DTTDC and manifestly in violation of DPSL agreement with M/s. Vijay Agro.
PPA Nos. 12/2019 & 13/2019 Page 12 of 3212. Thus, on appreciation of oral and documentary evidence, it observed that BPCL failed to show that there had been no substantial change in the premises and rather it was admitted by the witnesses that temporary structure i.e. pota cabon and nuts and bolts have been shifted from its original place "A&B"/"G&H" to "C"/"I" that too without the permission of the petitioner/DTTDC. Thus, the Ld. Estate Officer concluded that there was a clear breach of clause (7) of the lease agreement. Accordingly, respondent no.2/Ld. Estate Officer upheld the termination of Lease Agreement by DTTDC vide letter dated 10.04.18 as valid and found BPCL and M/s. Vijay Agro to be in illegal or unauthorized occupation of the premises from 09.05.2018. Accordingly, the following orders were passed :-
"40. As far as the claim of the petitioner for damages is concerned, the same is also allowed as it is established that the Agreement has been validly terminated by the petitioner and the respondents are in illegal/unauthorized occupation of the premises. The petitioner herein is entitled to receive and the respondent no.1 herein is liable to pay damages to the petitioner @ Rs. 3778.08/- per day from 11.05.2018 till the date of handing over the actual, physical possession of the premises to the petitioner by the respondents. The petitioner is further entitled to receive and respondent no.1 is liable to pay interest on the aforesaid amount/damages at the rate of 9% p.e. from the 11.05.2018 till the date of actual payment of the damages. The respondents are further directed to vacate the premises and handover the peaceful vacant possession of the premises to the petitioner immediately.
41. It is hereby clarified that in the event of any amount being paid by the respondent mo.1/BPCL after termination of lease agreement on 10.04.2018 or during the pendency of the present petitions shall be adjusted towards the aforesaid awarded damages."PPA Nos. 12/2019 & 13/2019 Page 13 of 32
GROUNDS OF APPEAL
13. Needless to state that the grounds of appeal in the two appeals before us are common, which inter alia are as under :-
a. That respondent no.2 was not competent to exercise any jurisdiction under Section 3 of the PP Act in terms of notification dated 23.10.2012;
b. That the subject property is not a "public premises' within the meaning of the PP Act; and that since the super structure on the plot of land has been built by the appellant BPCL, the Ld. Estate Officer failed to follow the law laid down by the Hon'ble Supreme Court in Express Newspaper Private Limited & Ors. vs. Union of India, AIR 1986 SC 872;
c. That the impugned order is against the doctrine of nemo judex in causa sua as the Senior Chief Manager (Legal) was handing the legal affairs of respondent no. 1 DTTDC and he acted as a Estate Officer in violation of Principles of Natural Justice.
d. That the order dated 10.04.18 passed by the Ld. Estate Officer not calling the witnesses of the petitioner DTTDC first in the witness box was erroneous, and rather prejudicial to its interest as no material evidence was placed on the record with regard to alleged additions, alterations or structural changes or for occupying more area than allotted; and e. That the Ld. Estate Officer failed to appreciate that the tea/coffee and snacks stalls were located outside the subject PPA Nos. 12/2019 & 13/2019 Page 14 of 32 property and could not have been shown as a part and parcel of the subject property;
f. That the respondent no.2/Ld. Estate Officer erred in holding that there was any subletting or sublease and further failed to peruse the DPSL agreement that was placed on the record that would go to show that M/s. Vijay Agro was only "licensee" to sell petroleum products on commission basis and the possession and control of the same always remained with BPCL as per clause (1) and (4) of the DPSL;
g. That respondent no.1 erred in observing that pollution checking Centre was a permanent structure and it was submitted that it was a light weight porta cabin with wheels, which is movable around and germane to the running of business of selling petroleum products at the spot ;
h. That Ld. Estate Officer failed to appreciate that the whole proceedings against the BPCL had been motivated as it declined to increase the rental value of the property, and DTTDC ignored that it BPCL spent more than Rs. 1.36 Crores in installation of petrol pump, construction and seeking necessary permissions;
DECISION
14. I have given my thoughtful consideration to the submissions made by the Ld. Counsel for the parties. I have also perused the instant appeal files/records as also record of the proceedings conducted by the Ld. Estate Officer Record. I have also gone through the oral and documentary evidence on record. It is PPA Nos. 12/2019 & 13/2019 Page 15 of 32 pertinent to mention that the arguments was initially heard on 05.03.2020 and the matter was put up for orders on 20.03.2020 but the order could not be pronounced due to the lock down owing to the COVID-19 Pandemic. The arguments were again addressed through Video Conferencing when the Ld. Counsel for the parties joined on 19.08.2020. The matter was listed for orders on 27.08.2020 but THE parties belatedly filed their written submissions. I have also gone through the written submissions filed by the parties on the record.
JURISDICTIONAL ISSUES
15. First thing first, there is no merit in the plea by the ld. Counsel for the appellant BPCL that the premises in question is not a 'public premises' within the meaning of Section 2 (e) of the PPA Act. Section 2(e)(3)(iv) of the PPA Act clearly stipulates that in the National Capital Territory of Delhi, any premises belonging or taken on lease by or on behalf of any Government company as defined in Clause 45 of Section 2 of the Companies Act, 2013 shall constitute a 'public premises'. There is no denying the fact that respondent No.1 DTTDC is a Government Company and it was a lessor of the subject property that was leased out to the appellant BPCL vide Lease dated 27.01.2000. Secondly, the objection that the respondent No.2 Estate Officer was not duly appointed or that as per Notification dated 23.10.2012 he was not competent to assume, act or discharge his duties as the Estate Officer also holds no water. Indeed, notification dated 23.10.2012 (A-11) empowered the Chief Manager (Legal) DTTDC to act in the capacity of a Estate Officer, I find merit in the PPA Nos. 12/2019 & 13/2019 Page 16 of 32 submissions of Ms. Bandana Grover, ld. Counsel for respondent No. 1 & 2 that respondent No.2 was holding office as the Senior Chief Manager (Legal) and it is the seat of power and nature of official duties that determines jurisdiction and not its nomenclature. In view of the fact that respondent No.2 was the Senior Chief Manager (Legal) in the establishment of respondent No.1, there is no merit that there was no notification in his favour as per Section 3 of the PP Act.
16. Thirdly, the plea that the proceedings conducted by respondent No.2 Estate Officer resulted in violation of principles of natural justice as the Estate Officer was acting in dual capacity as Legal Advisor for DTTDC and also proceeded and adjudicated upon the reference, and thus such proceedings were hit by the principles of nemo judex in cause sua is also misconceived in law. This issue is no longer res integra and in a decided case titled Crawford Bayley & Co. v. Union of India, (2006) 6 SCC 25 at page 34, it was observed:
18. In this connection, a reference was made to Delhi Financial Corpn. v. Rajiv Anand[(2004) 11 SCC 625] with regard to personal bias i.e. an officer of the statutory authority has been appointed as an Estate Officer, therefore, they will carry their personal bias. However, this Court in the aforesaid case held that the doctrine "no man can be a judge in his own cause" can be applied only to cases where the person concerned has a personal interest or has himself already done some act or taken a decision in the matter concerned. Merely because an officer of a corporation is named to be the authority, does not by itself bring into operation the doctrine, "no man can be a judge in his own cause". For that doctrine to come into play it must be shown that the officer concerned has a personal bias or connection or a personal interest or has personally acted in the matter concerned and/or has already taken a decision one way or the other which he may be interested in supporting.PPA Nos. 12/2019 & 13/2019 Page 17 of 32
17. Incidentally, in the case of Delhi Financial Corpn. v. Rajiv Anand, (supra) at page 632, it was observed:
9. Faced with this authority, it was submitted that the observations made by the Constitution Bench are per incuriam inasmuch as this authority has not taken note of the judgment in Gullapalli Nageswara Rao case [1959 Supp (1) SCR 319 :
AIR 1959 SC 308] . We are unable to accept this submission. It is to be seen that there is a big difference in the facts of the two cases. The doctrine that "no man can be a judge in his own cause" can be applied only to cases where the person concerned has a personal interest or has himself already done some act or taken a decision in the matter concerned. Merely because an officer of a corporation is named to be the authority, does not by itself bring into operation the doctrine "no man can be a judge in his own cause". Of course, in individual cases bias may be shown against a particular officer but in the absence of any proof of personal bias or connection merely because officers of a particular corporation are named as the authority does not mean that those officers would be biased. As has been held by the Constitution Bench, a Managing Director is a high-ranking officer. He is not personally interested in the transaction. There is no question of any bias or conflict between his interest and his duty. In Gullapalli Nageswara Rao case [1959 Supp (1) SCR 319 : AIR 1959 SC 308] the Secretary who had framed the Scheme then proceeded to hear the objections and advise the Chief Minister. It is because of the personal involvement of the Secretary that the majority took the view. Even then two Judges held that it did not follow that he was an improper person to hear the objections.
14. Thus, the authorities disclose that mere appointment of an officer of the corporation does not by itself bring into play the doctrine that "no man can be a judge in his own cause". For that doctrine to come into play it must be shown that the officer concerned has a personal bias or a personal interest or has personally acted in the matter concerned and/or has already taken a decision one way or the other which he may be interested in supporting. This being the law it will have to be held that the decision of the Delhi High Court is erroneous and cannot be sustained and the view taken by the Punjab and Haryana High Court is correct. It will, therefore, have to be held that Managing Director of a financial corporation can be appointed as an authority under Section 32-G of the Act. "PPA Nos. 12/2019 & 13/2019 Page 18 of 32
18. In view of the said proposition of law, reverting back to the instant case, there is nothing in the proceedings recorded before the Estate Officer or otherwise before this Court that would suggest that respondent No.2 gave any kind of legal opinion to his department with regard to the present matter earlier to entering upon or commencing of the eviction proceedings in terms of Section 4 and 5 of the Act. There is no allegation that the Estate Officer had any personal interest or bias for that matter. As per section 4 of the PP Act, a notice to show cause against the unauthorised occupant of any public premises is required to be issued by the Estate Officer. As per Section 5 of the PP Act, after considering the cause shown and evidence if any produced by the alleged unauthorised occupant, the Estate Officer on being satisfied that the person was in unauthorized occupation of the public premises, an eviction order is required to be passed by the Estate Officer, requiring all persons to vacate the public premises. Unauthorized occupation as per section 2(g) of the Act means, the occupation by any person who has entered into occupation of any premises without lawful authority as well as occupation which was permissive without lawful authority as well as occupation which was permissive at the inception but has ceased to be so. A fortiori the Estate Officer proceeded under the second part that expressly covers continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any person whatsoever. This part covers a case where a person had entered into occupation legally under valid authority but, who continues PPA Nos. 12/2019 & 13/2019 Page 19 of 32 in occupation after the authority under which he was put in occupation has expired or has been determined. To my mind, there was no violation of the principles of natural justice merely because respondent No.2 Estate Officer proceeded first to record the evidence of officials of BPCL. Needless to state that the proceedings conducted by the Estate Officer were "summary in nature" that did not require him to frame formal issues and/or to record detailed evidence of the parties. There is nothing in the two appeals to suggest that appellant BPCL were denied of any opportunity to lead any oral or documentary evidence on the record.
NOTICE U/S 4 AND THE SUBSEQUENT PROCEEDINGS:
19. That being the case, coming to the impugned notice under Section 4 of the PP Act (A-9) dated 05.10.2018, it has to be addressed in two parts viz. first part calling upon the BPCL to show cause against sub-letting or sub-leasing or sub-licensing the subject property in favour of respondent No.3 M/s. Vijay Agro without consent of DTTDC and thereby violating Clause (6) of the Lease Agreement; and the second part of the notice is DTTDC objecting to the making of structural changes on the subject property without its consent and thereby finding the appellant violating Clause (7) of the lease agreement dated 27.01.2000.
20. Let us deal with the first part. Clause 6 & 7 of the lease agreement dated 27.01.2010 read as under:-
"Clause 6 : The lessee shall not, without the previous consent in writing of the Lessor, sell or mortgage or create any charge PPA Nos. 12/2019 & 13/2019 Page 20 of 32 upon or sub-let or otherwise transfer all or any of his rights under this lease, and every transfer or attempted transfer without consent shall be void as against the Lessor.
Clause 7(1) : The lessee may erect upon the land minimum temporary buildings or structure as may be approved by the lessor in manner hereinafter provided in that behalf, but not otherwise, and may similarly, and with the like approval, add to or alter any building or structure existing on the land at the date of the executing of the lease or erected subsequent.
(2) Before commencing to :
(a) Add to or alter any existing building or structure.
(b) Erect or construct, add or alter any new building or structure, the lessee shall apply for and obtain the permission in writing of the Delhi Tourism & Tpt. Development Corporation.
The lessee shall, in adding to or altering any building or structure at any time existing on the land, as well as in at any time erecting or constructing a new building or structure therein or upon, comply with and observe each and all of the instructions or directions (if any) given and of the conditions (If any) imposed by Delhi Tourism & Tpt. Development Corpn., as to the ground plan and superstructure thereof, the manner in which the site is to be located, the materials of which it is to be constructed, the plan design, dimension and style thereof, and the arrangement to be made for securing proper drainage in respect of the land or of any building or alters constructed or to be constructed therein or upon, and the maintenance of the land and premises in a proper sanitary state."
21. A bare perusal of the aforesaid Clause (6) would show that it is very strictly worded, putting an absolute embargo thereby refraining the Lessee BPCL from sale, mortgage, creation of any charge or sub- letting in respect of the subject property given on lease vide agreement dated 27.01.2000. It also prohibited "transfer of all or any of the rights under the lease" and even "transfer or attempted transfer" without previous consent of the lessor DTTDC. Now, much was argued at the Bar by the Sh. Anil Batra ld. Counsel for the appellant/BPCL that the Dispensing Permit & Sale License" (for short 'DPSL') agreement dated PPA Nos. 12/2019 & 13/2019 Page 21 of 32 01.10.2002 executed in favour of M/s. Vijay Agro was in the nature of license agreement and not in the nature of Lease. Sh. Anil Batra, Ld. Counsel for the appellant BPCL referred to Clause 2,4 and 5 of the DPSL Agreement (A-4) to canvass the point that the appellant/BPCL retained possession and control over the subject property and M/s. Vijay Agro was only a licensee for storage, sale and distribution of petroleum products. Before we proceed further, it would be expedient to refer to some of the relevant clauses in the DPSL agreement, which go as under:
"1. Subject to the conditions contained hereinafter the Company hereby grants License unto the Licensees for a period of 12 years 6 months from 15 th day October 2002 and during the continuance of this License to enter upon the said premises and to use the Motor Spirit and / or HSD Pumps, Storage Tanks, Pipes and Fittings and all other facilities erected and provided by the Company upon the said premises, and also any additional facilities at any time during the continuance of this License provided by the Company upon the said premises (all of which are hereinafter for brevity referred to as the "the said facilities") for the purpose of the sale of Motor Spirit and / or HSD, Motor Oils, Greases and other Motor accessories, as the Licensees of the Company. The Company expressly reserves to itself the right to take back the whole or any portion of the said premises or the said facilities or alter them at any time during the continuance of this License as its sole discretion.
2.(a) The Licensees shall pay to the company in respect of the License aforeaid a monthly License Fee of such sum as may be fixed by the Company which shall be payable in advance before the commencement of every month or as directed by the Company. The Company shall have the right to vary at any time this Fee payable by the Licensees upon giving to the licensees not less than thirty days notice in writing of its intention to do so.
(b) The licensees further agree to pay and discharge all rates, taxes, cesses duties and other impositions and outgoings levied or imposed by the Municipality, Government or any other public body upon or in respect of the said premises and/or the PPA Nos. 12/2019 & 13/2019 Page 22 of 32 said facilities, provided that the Company shall pay the actual license fees payable to the Government for any Motor Spirit/ HSD Storage license or licenses required in connection with the said facilities under the Petroleum Act, 1934 and the Rules thereunder.
4. The said premises and the said facilities shall at all times during the continuance of this License remain the absolute property and in sole possession of the Company and no part of the said facilities shall be removed by the Licensees nor shall the position of any constituent part thereof or of the said premises be changed or altered without the previous written consent of the Company.
8. The underground storage tanks shall be kept properly locked with padlocks provided by the licensees and the Licensees shall whenever so required by the Company deliver possession of the keys, the Company reserving to itself the right to retain the possession thereof.
22. It was further pointed out that Section 3 of the Petroleum Products Act, 1934 prohibits import, transport, storage or distribution of petroleum products by any outside agency except in terms of the Petroleum Rules 2002 vide Rules 4, 5, 14, 21, 22 and 29(1) for grant of license for the purposes of import, transportation, storage, distribution of petroleum products. Indeed, it is also shown on the record that subsequent to the execution of the lease deed, the appellant BPCL carried out some construction on the subject property for storage of petroleum products and the super structure over the subject property was built as per the approved drawings of the CCOE (Chief Controller of Explosives) and NOCs were obtained from Delhi Police.
23. Per contra, Ms. Bandana Grover, the ld. Counsel for the respondent Nos. 1 and 2 vehemently urged that Clause (6) of the PPA Nos. 12/2019 & 13/2019 Page 23 of 32 Lease Agreement dated 27.01.2000 was very specific, which even prohibited grant of any kind of licence by the lessee to any 3 rd party without previous consent. The case law is replete with the jurisprudential concept of 'lease' as distinguished from 'licence' with respect to use, occupation and possession of immovable properties. In the case of C.M. Beena v. P.N. Ramachandra Rao, (2004) 3 SCC 595 at page 599, its was observed:
8.The crucial issue for determination is as to whether there is a lease or licence existing between the parties. Though a deed of licence may have been executed it is open for the parties to the document to show that the relationship which was agreed upon by the parties and was really intended to be brought into existence was that of a landlord and tenant though it was outwardly styled as a deed of licence to act as a camouflage on the rent control legislation. "Lease" is defined in Section 105 of the Transfer of Property Act, 1882 while "licence" is defined in Section 52 of the Indian Easements Act, 1882. Generally speaking, the difference between a "lease" and "licence" is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances. Only a right to use the property in a particular way or under certain terms given to the occupant while the owner retains the control or possession over the premises results in a licence being created; for the owner retains legal possession while all that the licensee gets is a permission to use the premises for a particular purpose or in a particular manner and but for the permission so given the occupation would have been unlawful (see Associated Hotels of India Ltd. v.
R.N. Kapoor [AIR 1959 SC 1262] ). The decided cases on the point are legion. For our purpose it would suffice to refer to a recent decision of this Court in Corpn. of Calicut v K. Sreenivasan [(2002) 5 SCC 361] .
9. A few principles are well settled. User of the terms like "lease" or "licence", "lessor" or "licensor", "rent" or "licence fee" is not by itself decisive of the nature of the right created by the document. An effort should be made to find out whether the deed confers a right to possess exclusively coupled with transfer of a right to PPA Nos. 12/2019 & 13/2019 Page 24 of 32 enjoy the property or what has been parted with is merely a right to use the property while the possession is retained by the owner. The conduct of the parties before and after the creation of relationship is of relevance for finding out their intention.
10. Given the facts and circumstances of a case, particularly when there is a written document executed between the parties, question arises as to what are the tests which would enable pronouncing upon the nature of relationship between the parties. Evans & Smith state in The Law of Landlord and Tenant (4th Edn.)--
"A lease, because it confers an estate in land, is much more than a mere personal or contractual agreement for the occupation of a freeholder's land by a tenant. A lease, whether fixed-term or periodic, confers a right in property, enabling the tenant to exclude all third parties, including the landlord, from possession, for the duration of the lease, in return for which a rent or periodical payment is reserved out of the land. A contractual licence confers no more than a permission on the occupier to do some act on the owner's land which would otherwise constitute a trespass. If exclusive possession is not conferred by an agreement, it is a licence. ... [T]he fundamental difference between a tenant and a licensee is that a tenant, who has exclusive possession, has an estate in land, as opposed to a personal permission to occupy. If, however, the owner of land proves that he never intended to accept the occupier as tenant, then the fact that the occupier pays regular sums for his occupation does not make the occupier a tenant." (at p. 33)
11. In Hill & Redman: Law of Landlord and Tenant (17th Edn., Vol. 1) a more detailed discussion also laying down the determinative tests, is to be found stated as follows:
"It is essential to the creation of a tenancy of a corporeal hereditament that the tenant should be granted the right to the exclusive possession of the premises. A grant under which the grantee takes only the right to use the premises without being entitled to exclusive possession must operate as a licence and not as a lease. It was probably correct law at one time to say that the right of exclusive possession necessarily characterized the grant as that of a lease; but it is now possible for a licensee to have the right to exclusive possession. However, the fact that exclusive possession is granted, though by no means decisive against the view that there is a mere licence, as distinct from a tenancy, is at all events a consideration of the first importance. Further, a grant of exclusive possession may be only a licence PPA Nos. 12/2019 & 13/2019 Page 25 of 32 and not a lease where the grantor has no power to grant a lease. In deciding whether a grant amounts to a lease, or is only a licence, regard must be had to the substance rather than the form of the agreement, for the relationship between the parties is determined by the law and not by the label which they choose to put on it. It has been said that the law will not impute an intention to enter into the legal relation of landlord and tenant where circumstances and conduct negative that intention; but the fact that the agreement contains a clause that no tenancy is to be created will not, of itself, preclude the instrument from being a lease. If the effect of the instrument is to give the holder the exclusive right of occupation of the land, though subject to certain reservations, or to a restriction of the purposes for which it may be used, it is prima facie a lease; if the contract is merely for the use of the property in a certain way and on certain terms, while it remains in the possession and under the control of the owner, it is a licence. To give exclusive possession there need not be express words to that effect; it is sufficient if the nature of the acts to be done by the grantee require that he should have exclusive possession. On the other hand, the employment of words appropriate to a lease such as 'rent' or 'rental' will not prevent the grant from being a mere licence if from the whole document it appears that the possession of the property is to be retained by the grantor." (at pp. 14-15)
24. To my mind, irrespective of such academic discussion, whether or not there was a 'lease agreement' as between the appellant BPCL and respondent No.3 M/s. Vijay Agro; or even if assuming for the sake of convenience, it was a 'license' by virtue of the DPSL agreement dated 01.10.2002, the foremost thing is that in the lease deed dated 27.01.2000, as conceded by RW-1, there was no clause whatsoever enabling the appellant BPCL to execute any license agreement with respect to M/s. Vijay Agro or any other third party. It is also in the evidence of RW-1 that initially DPSL agreement was for a period of 12 years and 6 months and subsequent agreements had been executed between the appellant BPCL and respondent No.3 on 29.04.2011, 31.03.2015, 28.02.2018 and lastly on 23.03.2019. RW-2 in his cross-PPA Nos. 12/2019 & 13/2019 Page 26 of 32
examination infact acknowledged that he had no knowledge if any prior intimation or written consent was taken by BPCL from respondent No.1 DTTDC to enter DPSL agreement with M/s. Vijay Agro initially and/or on subsequent occasions. It is also matter of evidence that there had been change in constitution of M/s. Vijay Agro over the years as some of the partners came and others left, and even such changes were never intimated to respondent No.1 DTTDC. It is also in evidence of RW-1 and RW-2 recorded before respondent No.2 Estate Officer that M/s. Vijay Agro was in complete occupation and possession of subject property employing about 9-10 persons at the site, who have been on the pay-rolls of respondent No.3 M/s. Vijay Agro. The term "licence" is defined under Section 52 of the Easement Act as: where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.
25. Even assuming that the original DPCL agreement as also those entered after 1st October, 2002 were in the nature of a mere licence agreements, clause (6) of the lease agreement clearly stipulated that no 3rd party rights could be created with regard to the subject property without previous consent of the lessor. At the cost of repetition, no evidence is brought before the respondent No.2 Estate Officer that any intimation prior or subsequent to execution of DPSL agreement was sent to DTTDC nor any written consent was obtained PPA Nos. 12/2019 & 13/2019 Page 27 of 32 from the lessor/DTTDC. I find myself in agreement with the plea of Ms. Bandana Grover, ld. Counsel for respondent Nos. 1 and 2 that Clause (6) was wide enough to cover creation of any 3 rd party right in favour of any person including grant of license. Ex facie even a grant of licence creates valuable legal and enforceable rights in favour of the parties to the licence. The appellant/BPCL could not have done something indirectly that was directly prohibited. In short, the execution of DPSL agreement in favour of respondent No.3 M/s. Vijay Agro for such a long time was a camouflage and ostensibly in the nature of a licence.
26. In the case of Rahee Industries Ltd. v. Export Credit Guarantee Corpn. of India Ltd., (2009) 1 SCC 138, in the context of interpretation of a contract for insurance, it was observed that:
15. In this case the entire controversy revolves around the interpretation of Clause 16 of the Policy. It is a well-settled rule of construction that words in a contract (the Policy herein) are to be understood in their ordinary meaning. However, this ordinary meaning will not prevail in two cases, namely, where a word has technical or legal meaning and secondly, where the context requires otherwise.
27. In another case titled Export Credit Guarantee Corpn. of India Ltd. v. Garg Sons International, (2014) 1 SCC 686, it was observed:
10. It is a settled legal proposition that:
"26. ... [while] construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, its terms have to be strictly construed [in order] to determine the extent of the liability of the insurer."
28. Therefore, the endeavour of the court should always be to interpret the words used in the contract in the manner that will best PPA Nos. 12/2019 & 13/2019 Page 28 of 32 express the intention of the parties. It was thus concluded that it is not permissible for the court to substitute the terms of the contract itself, under the garb of construing terms incorporated in the agreement of insurance. No exceptions can be made on the ground of equity. The liberal attitude adopted by the court, by way of which it interferes in the terms of an insurance agreement, is not permitted. The same must certainly not be extended to the extent of substituting words that were never intended to form a part of the agreement.
29. In the case of State of Bihar v. TISCO Ltd., (2019) 7 SCC 99, it was observed that:
14. The well-known rule of interpretation of contracts is that the deed ought to be read as a whole in order to ascertain the true meaning of its several clauses and a word of each clause should be so interpreted as to bring it into harmony with the other provisions of the deed, if that interpretation does no violence to the meaning of which they are naturally susceptible.
15. Lord Hope speaking for the Supreme Court of the United Kingdom stated the principles of interpretation as follows [Multi-
Link Leisure Developments Ltd. v. North Lanarkshire Council, 2010 UKSC 47] :
"The court's task is to ascertain the intention of the parties by examining the words they used and giving them their ordinary meaning in their contractual context. It must start with what it is given by the parties themselves when it is conducting this exercise. Effect is to be given to every word, so far as possible, in the order in which they appear in the clauses in question. Words should not be added which are not there, and words which are there should not be changed, taken out or moved from the place in the clause where they have been put by the parties. It may be necessary to do some of these things at a later stage to make sense of the language. But this should not be done until it has become clear that the language the parties actually used creates an ambiguity which cannot be solved otherwise."PPA Nos. 12/2019 & 13/2019 Page 29 of 32
30. In view of the aforesaid proposition of law, reverting back to the instant case, I have no hesitation in holding that the appellant / BPCL was not empowered to create any third party legal right even in the nature of 'licensee' with regard to use, occupation and possession of the subject property without previous consent in writing of respondent DTTDC. In forming such opinion, I am not oblivious of perhaps the common business practices adopted by the BPCL to enter into DPSL agreement with private parties for storage, distribution, sale and marketing of petroleum products on commission basis. However, it is also a common that BPCL itself runs various outlets without entering into such agency agreements and the reading of entire lease agreement dated 27.01.2000 would amply demonstrate that it no where allowed or empowered the appellant BPCL to enter into a DPSL agreement with a private party to run its petrol / diesel outlet. To my mind, the DTTDC being a Government Company entered into the lease agreement for the sole benefit of the appellant/ BPCL, another public sector undertaking in "public interest" and for that reason the lease agreement read as a whole leave no scope for a different interpretation to the terms and conditions of the lease agreement dated 27.01.2020. Since the period of lease was in existence till the initial notice dated 16.04.2018 was given, there is no question of any waiver or acquiescence by the respondent no. 1 DTTDC with respect to transfer of rights by virtue of the DPSL agreement executed between the appellant BPCL to respondent No.3 M/s. Vijay Agro. It is not possible for this Court to read into clause (6) stipulating for grant of license by the appellant BPCL with regard to the subject property, expressly or impliedly.
PPA Nos. 12/2019 & 13/2019 Page 30 of 32PART II OF THE NOTICE U/S 4 OF THE PP ACT
31. In so far as the second part of the notice, Section 4 of the PP Act dated 05.10.2018 is concerned, at the outset, I find that it was absolutely vague and ambiguous as it did not spell out or supply detail as to the nature of the structural changes, addition or alterations in the existing structure without written consent of the DTTDC; or for that matter not even specific about the extent of encroachment if any committed by the appellant BPCL. No site plan was attached with the notice dated 15.10.2018 and it would bear repetition that it did not specify any area allegedly encroached upon and / or addition or super structure made on the subject property. It appears that it was only during the proceedings before the respondent No.2 that the two witnesses for the appellant BPCL were confronted about certain super structure i.e. a porta cabin for pollution check and a shop dealing with Tyre puncture & repairs besides the existence of Tea / Coffee and snack shops. No such facts were mentioned in the impugned notice. In the case of Bhagat Singh vs DDA, AIR 1988 Delhi 174, it was observed that it is mandatory requirement of the law that a proper and valid notice under Section 4 of the Act must be served that must contain the description of the property. Such a notice cannot be waived and any apparent illegality in a notice issued under Section 4 of the Act can be highlighted by the aggrieved party at any stage of the proceedings. FINAL ORDER:
32. In view of the aforesaid discussion, I find that there was no illegality, impropriety or incorrect approach adopted by the respondent No.2 Estate Officer in passing the impugned eviction order dated PPA Nos. 12/2019 & 13/2019 Page 31 of 32 22.10.2019 in so far as it found that the appellant BPCL has violated of clause (6) of the lease agreement dated 27.01.2000. However, findings given by the respondent No.2 Estate Officer in the impugned order with regard to contravention of Clause (7) of the Lease Agreement cannot be sustained in law. Eviction of the appellant BPCL from the subject property in terms of order dated 22.10.2019 is sustained in so far as violation of Clause (6) of the Agreement is concerned since such violation is an independent cause and severable from the second part with regard to clause (7) of the Lease Agreement.
33. Accordingly, the appeals bearing Nos. 12/2009 and 13/2009 are partly allowed. At the same time, the impugned order dated 22.10.2019 passed by respondent no. 2 Ld. Estate Officer in so far as violation of Clause (6) of the Lease Agreement dated 27.01.2000 is concerned, the same is sustained and accordingly, the respondent no. 1 DTTDC shall be at liberty to take appropriate action for recovery of possession of subject property and also for recovery of damages awarded against the appellant / BPCL in terms of order dated 22.10.2019. The Record of the Estate Officer be sent back forthwith along-with a copy of this Judgment, Copy of this Judgment be sent to the ld. Counsel for the parties through their e-mail address for their information. A signed copy of this Judgment be kept in each of the file. Both the appeal files be consigned to Record Room.
DHARMESH Digitally signed by
DHARMESH SHARMA
SHARMA Date: 2020.09.04 16:14:22
+0530
Announced in the open Court (DHARMESH SHARMA)
on 3rd September, 2020 District & Sessions Judge(West)
Tis Hazari Courts: Delhi
PPA Nos. 12/2019 & 13/2019 Page 32 of 32