Delhi District Court
Shri P.P. Chaudhary vs Life Insurance Corporation Of India on 30 November, 2011
IN THE COURT OF MS. SUNITA GUPTA: DISTRICT &
SESSIONS JUDGE: DELHI.
I- PPA - APPEAL NO. 18/2011
Unique ID No. 0240ICO345652011
IN THE MATTER OF:
Shri P.P. Chaudhary,
S/o Shri M.L. Chaudhary,
15/16, Sterling House,
Darya Ganj, New Delhi-2.
..... Appellant.
Versus
1- Life Insurance Corporation of India,
having its Northern Zonal Office at:
Jeevan Bharti Building, Tower-II,
124, Connaught Circus,
New Delhi - 110 001.
2- The Estate Officer,
Under the Public Premises
(Eviction of unauthorised occupants)
Act, 1971), Northern Zone,
Jeevan Prakash Bldg.,
2nd Floor, (Mezzanine),
25, Kasturba Gandhi Marg,
New Delhi - 110 001.
....... Respondents.
AND
II- PPA - APPAL NO. 19/11
Unique ID No. 0240ICO345702011
IN THE MATTER OF:
(PPA - 18 & 19 of 2011) (Page 1 of 24)
Shri P.P. Chaudhary,
S/o Shri M.L. Chaudhary,
15/16, Sterling House,
Darya Ganj, New Delhi-2. .......... Appellant.
Versus
1- Life Insurance Corporation of India,
having its Northern Zonal Office at:
Jeevan Bharti Building, Tower-II,
124, Connaught Circus,
New Delhi - 110 001.
2- The Estate Officer,
Under the Public Premises
(Eviction of unauthorised occupants)
Act, 1971), Northern Zone,
Jeevan Prakash Bldg.,
2nd Floor, (Mezzanine),
25, Kasturba Gandhi Marg,
New Delhi - 110 001. ....... Respondents.
Date of institution of both appeals :01.08.11.
Date on which judgment was reserved :18.11.11
Date of pronouncement of judgment : 30.11.11.
JUDGMENT:
By this common judgment I propose to dispose of two appeals under Section 9(2)(a) and (b) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (in short "the Act"). Appeal No. 18/2011 was filed against the order of damages dated 04.07.2011 and Appeal No. 19/2011 has been filed against the impugned order of eviction dated 04.07.2011.
2- Briefly stated the facts giving rise to the present appeals are as follows:
(PPA - 18 & 19 of 2011) (Page 2 of 24) 3- According to the appellant, the suit premises
namely 15/16, Sterling House, Daryaganj, New Delhi-2 was purchased as built-up property on an area of about 500 Sq. Yards, by Life Insurance Corporation of India (for short, the LIC). It was originally let out to the appellant's father Shri Mohan Lal Chaudhary, way back in the year, 1954 @ Rs. 117/- per month and thereafter, it was let out to the appellant @ Rs.650/- per month. The lease continued to be renewed on enhanced rate of rent from time-to-time and at present the rate of rent of the suit premises is Rs.2835/- per month. In terms of the lease deed, the suit premises were let out at the rate of Rs.2835/- per month w.e.f. 01.09.2011 to 31.08.2006 and as per clause 6(a) of the lease deed, the lessee could get the lease renewed in case the lessor was interested to lease out the premises for further period. The Appellant applied for renewal of the lease deed with the Rent Fixation Committee of respondent No.1. When the matter was pending, the appellant received a show-cause notice from the Estate Officer wherefrom it transpired that respondent No.1 has terminated the tenancy of the appellant vide notice dated 30.06.2009. Notice was purported to be under Section 106 of the Transfer of Property Act (for short, the TP Act). The notice was, however, never served upon the appellant. Moreover, the ground of termination of tenancy is `non-est and dehors the provisions of Delhi Rent Control Act (for short, the DRC Act). Learned Estate Officer proceeded with the matter without deciding that the Appellant is an unauthorised occupant. Unless the occupant is first adjudicated as an unauthorised (PPA - 18 & 19 of 2011) (Page 3 of 24) occupant, his eviction and question of damages does not arise. The learned Estate Officer did not followed the guidelines of Government of India through the Ministry of Urban Development and Poverty Alleviation (Directorate of Estates), passed vide Resolution dated 30.05.2002. The guidelines were to prevent arbitrary use of genuine powers to evict genuine tenants from the public premises under the control of Public Sector Undertakings/ Financial Institutions. The guidelines are binding on LIC. However, the same were not followed. The Order of the Estate Officer is bad in law in as much as the statutory ground enacted in Section 14 of DRC Act was not considered by the Estate Officer. In Appeal No.18/2011, the order of the Estate Officer was challenged substantially on the same ground as in Appeal No. 19/2011. 4- Notice of the appeal was given to the respondent. Records of the Estate Officer was requisitioned. 5- I have heard Shri O.P. Sharma, Advocate for the Appellant, Shri K.L. Bhendwal, Advocate for the Respondent and have perused the record.
6- It was submitted by the learned Counsel for the Appellant that since the inception of tenancy, the appellant never defaulted in payment of agreed rent. He is a genuine tenant in the suit premises. The respondent sought to increase the rent of the suit premises by 531 times of the original letting and the eviction of the suit premises was sought with a commercial motive to increase the rent which is unreasonable, unjust and unfair. The issuance of notice of termination of tenancy is in contravention of guidelines-2 (iii) issued by (PPA - 18 & 19 of 2011) (Page 4 of 24) Central Government in exercise of power under Section 21 of LIC Act 1956 (Act No.31 of 1956). The guidelines are binding on the LIC by the mandate of Section 21 of the LIC Act, 1956, and the directions and decisions of Central Government shall be final. It was further submitted that the respondent seeks to relegate the appellant as an unauthorised occupant merely on the basis of termination of tenancy. The notice of termination of tenancy was never served upon the appellant. The issuance of the notice is otherwise in contravention of guidelines. Moreover, the tenancy of the appellant being less than Rs.3,500/- per month, as such the appellant was protected under the DRC Act read with guidelines of 2002. Moreover, there was a binding contract between the parties and as per the lease deed, the appellant had inherited the right of renewal. The appellant applied for renewal of tenancy before the Rent Fixation Committee of respondent No.1 and also offered to increase the rent by 30% of the existing rent. No reason has been spell out in the notice. Moreover, the notice is motivated for commercial construction. Reliance was placed on Persis Kothawalla v. Life Insurance Corporation of India, 2004 BCR-4-610 and Damayanti Verma (deceased) through LRs. v. LIC & Anr, W.P.(C) No.4342/07 decided on 25.07.2011 for submitting that the guidelines are binding on LIC and it was incumbent upon the LIC to follow the same. Reliance was also placed on Sangrila Food Products Ltd. v. LIC of India, IV-1997(1) 414 for submitting that unless occupant is first adjudged an unauthorised occupant, his liability to pay damages does not arise. Reliance was also (PPA - 18 & 19 of 2011) (Page 5 of 24) placed on Daewoo Anchor Electronics Ltd. v. S.L. Bhalla & Ors., 95 (2002) DLT 66 for submitting that where notice terminating tenancy is neither in terms of law nor in terms of agreement, no cause of action exists.
7- Refuting the submissions of the learned Counsel for the Appellant, it was submitted by the learned Counsel for the respondent that the Appellant has urged no other ground in the grounds of appeal except the guidelines issued by Government of India. In this regard, it was submitted that the guidelines were not agitated or pleaded before the Estate Officer. As such, appellant gave no opportunity to the Estate Officer to opine on those guidelines. Even otherwise, in various judgments of Hon'ble High Courts as well as Hon'ble Supreme Court, it has been held that in view of the statutory provisions, the guidelines have no force and are not binding on the Estate Officer. In 1(2008) SLT 442, New India Assurance Co.Ltd. v. Nusli Neville Wadia & Anr., it was held that issuance of guidelines are not controlled by the statutory provisions - the effect thereof is Advisory in character and thereby no legal right conferred upon the tenant. Reliance was also placed on Hira Midha & Anr. v. Indian Tourism Corporation, 2008 (VII) AD (Delhi) 251 where substantially, similar view was taken. As regards reliance placed by the learned Counsel for Appellant in Persis Kothawalla (supra), it was submitted that this judgment was not followed by the Hon'ble Supreme Court. Moreover, the Bombay High Court's judgment was in respect to challenging raising of rent about 200 times and it did not deal with the eviction of tenant. The (PPA - 18 & 19 of 2011) (Page 6 of 24) only question raised in that judgment was the reasonability of increase of rent which is not the issue in the present case. Even as regards Damyanti Verma (supra), it was submitted that facts of that case are different. Moreover, respondent has filed LPA against that judgment which has been admitted and is fixed for hearing. It was further submitted that the Single Bench judgment cannot prevail over the judgment pronounced by the Hon'ble Supreme Court in view of Article 141 of the Constitution of India. As regards the service of notice, it was submitted that the notice was sent through Registered A/D post, UPC as well as it was pasted at the conspicuous place of the premises in question in the presence of the witnesses. Reliance was placed on Ajay Ahuja v. Subhiksha Trading, 2011 RLR (Note) 6 for submitting that if summons sent to tenant or party to suit at his residential or official address is not served due to house locked etc., then it was for tenant to have informed landlord that he would be away or he should have informed postal authorities that his letters should be delivered at his another address and if he omits to do so then if letter is correctly addressed, presumption of service arises under Section 27 of the General Clauses Act.
8- As regards the applicability of DRC Act is concerned, it was submitted that since the premises is a public premises, therefore, DRC Act is not applicable and reliance was placed on Jain Ink Manufacturing Company v. Life Insurance Corporation of India & Ors., 1980 Delhi Rent Judgment, page 82. Regarding guidelines, it was submitted that the question of applicability of guidelines has been settled (PPA - 18 & 19 of 2011) (Page 7 of 24) by Hon'ble High Court as well as Hon'ble Supreme Court of India in New India Assurance Company v. Nusli Neville Wadia & Another, 1 (2008) SLT 442.
9- As regards the damages, it was submitted that although the respondent claimed damages @ Rs.75/- per square ft. per month, however, learned Estate Officer allowed Rs.55/- per square ft. per month, only keeping in view the prevalent rate of rent in the market and in view of the lease deed, filed by respondent executed by the parties. Even the premises are situated in posh commercial area and damages allowed by the Estate Officer are just and proper. It was submitted that appeal is unsustainable in law and is liable to be dismissed.
10- I have given my considerable thoughts to the respective submission of the learned Counsel for the parties and have carefully perused the records.
11- The challenge by the Appellant to the impugned order is basically on the following grounds:
a) Service of notice and its validity.
b) Applicability of provisions of Rent Control Act.
c) The Guidelines.
I shall deal with each of these submissions one by one.
SERVICE OF NOTICE: -
12- Much stress has been laid by the learned Counsel for the Appellant that the notice was not served upon the Appellant and he is not liable to be evicted from the suit premises. The case of the respondent, on the other hand, is (PPA - 18 & 19 of 2011) (Page 8 of 24) that the notice was sent through Registered A/D post, UPC as well as copy of the same was pasted at the conspicuous place of the premises in presence of the witnesses. The notice sent by registered cover was returned with the postal remark "attempt was made to serve the appellant on 7th, 8th & 9th July, 2009, but the shop was found locked". In M/s. Madan & Company v. Wazir Jaivir Chand, AIR 1989 SC 630, it was held that when a letter is returned due to non-availability of address, there is no responsibility of the sender or the postman to arrange that the notice is served. Similarly, in Ajay Ahuja (supra) it was held by the Hon'ble High Court that if summons are sent to the tenant at his residential or official address and the same is not served due to premises found locked, then it is for the tenant to have informed the landlord that he would be away or he can give the information to the postal authority that his letter should be delivered at his another address and if he omits to do so, then if the letter is correctly addressed, presumption of service arises under Section 27 of the General Clause Act.
13- In the case in hand, besides sending the notice vide registered A/D post, the respondent took extra precaution by sending notice through UPC also. It was not disputed by the Appellant during his cross-examination that the address mentioned on UPC was not his correct address. When a letter is sent under postal service with correct address of the addressee and is not received back by the sender, there is a presumption that it has been received by the addressee and it is for the addressee to rebut this presumption by leading (PPA - 18 & 19 of 2011) (Page 9 of 24) sufficient and convincing evidence. The basic law of presumption of service of notice is provided under Section 27 of the General Clauses Act and also under Section 114 of the Evidence Act. The earliest case on the issue of drawing presumption of service under such circumstances, is probably the case of Harihar Banerjee v. Ram Shashi Roy, 1918 Privy Council 102, where it was held that if a letter, properly addressed containing the clause to quit, is proved to have been put in the post office, it is presumed that the letter reaches its destination at the proper time according to the regular course of business at the post office and was received by the person to whom it was addressed and that presumption would apply with still great force to letters which the sender has taken precaution to registry. Similar view was taken in Jain Associates and others v. Deepak Chaudhary & Company, 1999 DLT 654 , where it was held that whenever notice is sent under UPC, it is to be presumed under illustration "b", Section 114 of the Evidence Act that the common course of business have been followed and accordingly such a notice has been duly served in due course unless and until it is proved that the postal communication was disputed in any manner. In view of this legal preposition, coupled with the fact that it was not disputed by the Appellant that the notice sent by UPC was on correct address and therefore, presumption arises that it reached to him and the onus shifted upon him to rebut the presumption which he has failed to rebut.
14- Besides adopting the recourse of sending notice by (PPA - 18 & 19 of 2011) (Page 10 of 24)
registered post as well as by UPC, the notice was also affixed at the site and PW1 was a witness to the affixation and despite cross- examination, nothing material could be elicited to discredit his testimony that the notice was not affixed at the site. Under the circumstances, keeping in view the fact that it is not the case of appellant the address mentioned in the notice or the UPC was incorrect or that anything could have affected the normal course of business of the postal authorities to distrupt their service report and notice was also pasted through affixation, so presumption under Section 27 of the General Clauses Act 1897 of due service of notice would arise in favour of the respondent. it was duly proved that the notice has been duly served on the respondent. 15- The validity of the notice has also been challenged by the Appellant on the ground that merely by sending the notice, the tenancy could not have been terminated. Section 107 of Transfer of Property Act, 1882 provides "how leases are made". Relevant portion of this section reads as under:
"107. Leases how made. -- A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.
All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession."
16- Section 111 of the TP Act provides for determination of lease and the relevant portion reads as under:
"A lease of immovable property determines --
(PPA - 18 & 19 of 2011) (Page 11 of 24)
(a) by efflux of the time limited thereby."
17- It may be mentioned that as per the case of appellant himself, the premises were let out by virtue of lease deed, at the rate of Rs.2835/- per month w.e.f. 01.09.2001 to 31.08.2006. The material clause as extract from lease deed, reads as under:
"6(a). It is hereby further agreed and declared between the parties hereto that the lessee shall pay monthly rent @ Rs.2835/- per month w.e.f. 1.9.2001 to 31.8.2006. After that the lessee shall on giving to the lessor 3 months notice thereof before the expiry of the above term shall have negotiations with lessor to finalize the terms and conditions for further renewal of lease deed in case the lessor is interested to leased out the premises for further period."
18- A perusal of this clause itself goes to show that although the lessee was given an option to get the lease renewed, but it was subject to the condition that the lessor was interested to lease out the premises for further period. Therefore, even after the appellant applied for renewal of lease deed with the Rent Fixation Committee, it was an unilateral act of the appellant and that ipso facto does not tantamount to renewal of lease. It is not even his case that the lessor gave their consent for renewal of lease for further period. Under the circumstances, since the lease was for a specified period w.e.f. 1.9.2001 to 31.8.2006, and there was no renewal of lease deed, therefore, the lease came to an end by efflux of time. Thereafter, the legal notice Ex.PW1/3 was (PPA - 18 & 19 of 2011) (Page 12 of 24) served upon the Appellant, stating therein that the tenancy has expired on 31.08.2006 and thereafter, the tenancy has become monthly, commencing from 1st day of each English calender month and ending on the last date of the same month and since the respondent does not wish to keep the appellant as its tenant any more, therefore, the tenancy was terminated on the expiry of 31st July, 2009 and the Appellant was called upon to hand over the vacant and peaceful possession of the premises. That being so, since the tenancy came to an end by efflux of time as provided under Section 106 of Transfer of Property Act, the tenancy was terminated and the appellant was called upon to hand over the vacant and peaceful possession of the suit premises to the respondent. By doing so, it cannot be said that the notice is unsustainable in law. Therefore the authority Daewoo Anchor Electronics Ltd. (supra) relied upon by the learned Counsel for appellant has no application to the facts of the case in hand. Moreover, the Estate Officer was not required to probe the reason for satisfying itself before declaring the appellant as an unauthorized occupant in respect of the premises in dispute. In Jeevan Dass v. LIC, 1994 Supp.(3) SCC 694, Hon'ble Apex Court took a view that before issuing a notice, terminating the tenancy or revoking the licence, it is not necessary for the owner to assign any reasons to establish that it was just and germane for the purpose which could be tested on the touchstone of Article 14 of the Constitution of India. Relevant para of the said judgment is reproduced as under:-
"4. Section 106 of the T.P. Act does indicate that the landlord is entitled to terminate the (PPA - 18 & 19 of 2011) (Page 13 of 24) tenancy by giving 15 days' notice, if it is a premises occupied on monthly tenancy and by giving 6 months' notice and if the premises are occupied for agriculture or manufacturing purposes; and on expiry thereof proceedings could be initiated.
Section 106 of the T.P. Act does not contemplate of giving any reason for terminating the tenancy. Equally the definition of the public premises "unauthorised occupation' under Section 2(q) of the Act postulates that the tenancy "has been determined for any reason whatsoever". When the statute has advisedly given wide powers to the public-authorities under the Act to determine the tenancy, it is not permissible to cut down the width of the powers by reading into it the reasonable and justifiable grounds for initiating action for terminating the tenancy under Section 106 of the T.P. Act. If it is so read Section 106 of T.P. Act and Section 2(q) of the Act would become ultra vires. The statute advisedly empowered the authority to act in the public interest and determine the tenancy on leave or licence before taking action under Section 5 of the Act. If the contention of the appellant is given accepted he would be put on a higher pedestal than a statutory tenant under the Rent Act. Take for example that a premises is let out at a low rent years back like the present one. The rent is unrealistic. With a view to revise adequate market rent, tenant became liable to ejectment. The contention then is, action is violative of Article 21 offending right to livelihood. This contention too is devoid of any substance. An owner is entitled to deal with his property in his own way profitable in its use and occupation. A public authority is equally entitled to use the public property to the best advantage a commercial venture. As an (PPA - 18 & 19 of 2011) (Page 14 of 24) integral incidence, ejectment of a tenant/ licence is inevitable. So the doctrine of livelihood cannot discriminately be extended to the area of commercial operation."
19- In the case of Dr. KRK Talwar Vs. Union of India 1977(13) DLT 310, Hon'ble High Court took a view that the Estate Officer rightly held that he was not to sit in judgment over the sufficiency of administrative reasons for cancellation of allotment. The Court also took a view that it is not permissible in the course of judicial review to probe into the reasons for such an action. It was observed:
"Let us consider the validity of each of these orders and the scope of judicial review in respect of each of them (A) The definition of "unauthorised occupation" in section 2(e) of the Act is the occupation by any person of the public premises after the authority under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. The authority for the occupation of Dr. Talwar was the original allotment or lease granted to him. When this lease was terminated or allotment was cancelled, that authority disappeared and he became a person in unauthorised occupation of the premises. The non-payment of rent by the petitioner for a long time was an overwhelmingly sufficient reason for the termination of the lease and the cancellation of the allotment. The petitioner's counsel contented that the real reason for such action was the suspicion of the authorities that the premises had been sublet by Dr. Talwar to Shri Batra. The lesser or the allottor has an absolute right to terminate the lease or cancel the allotment. It is not permissible in the course of judicial review to probe into the reasons for such (PPA - 18 & 19 of 2011) (Page 15 of 24) action. The justifiability of such an action is not open to judicial review at all. Moreover, the non-payment of rent for a long time was a complete justification for such an action."
20- Under the circumstances, it was not imperative on the part of the Estate Officer to probe the reasons which led the respondent to issue the notice terminating the tenancy of the appellant and thereby declaring the appellant to be unauthorised occupant in respect of the premises in dispute. 21- Result of the aforesaid discussion is that tenancy of appellant came to an end by efflux of time. Same was therefore, terminated by sending a notice as contemplated under Section 106 of Transfer of Property Act which was duly served upon the appellant.
Applicability of provisions of DRC Act to the suit premises:
22- It the submission of Counsel for appellant that the appellant has the protection of Delhi Rent Control Act and that the provision of Public Premises Act cannot be invoked against appellant. In the celebrated pronouncement of the Constitution Bench of the Hon'ble Supreme Court in the case of Ashoka Marketing Ltd. & Anr. Vs. Punjab National Bank & Ors, AIR 1991 SC 855, Hon'ble Apex Court in depth examined the ambit and scope of two statutes i.e. Delhi Rent Control Act 1958 and the Public Premises Act 1971 in relation to the premises which fall within the ambit of both the Statutes. The Supreme Court also traced the Legislative history which led to the enactment of the Public Premises Act by the Parliament in 1971. After a detailed discussion on the provisions of both the statutes, the Hon'ble Supreme Court came to the (PPA - 18 & 19 of 2011) (Page 16 of 24) conclusion that the provisions contained in Public Premises Act cannot be applied to the premises which fall within the ambit of Rent Control Act. It was also held that the provisions of Public Premises Act, to the extent that they cover premises which are falling within the ambit of Rent Control Act override the provisions of Rent Control Act and a person in unauthorised occupation of the public premises as defined under Section 2(e) of the PP Act, cannot invoke the provisions of Rent Control Act. Substantially, similar view was taken in M/s. Jain Ink Manufacturing Company v. Life Insurance Corporation of India & Another, 1980 DRJ 82, where it was held that PP Act is a Special Act dealing with the premises belonging to the Government and supersedes the Rent Act. Thus, since it is not disputed that the suit premises is covered under the PP Act, therefore, the Appellant cannot invoke the protection under the DRC Act.
Guidelines:-
23- The main stress of the learned Counsel for the Appellant is that certain guidelines were issued by the Government of India whereby the public sectors, banks and public sector undertakings were directed to resort to the provisions of the PP Act only to evict totally illegal occupants of the premises and a person in lawful occupation of any premises was not to be treated or declared to be unauthorised merely on service of notice of termination of tenancy. It has been urged that under Section 21 of the Life Insurance Corporation Act, 1956, the Corporation is to be guided by the directions issued by the Central Government in writing in the (PPA - 18 & 19 of 2011) (Page 17 of 24) matter of policy involving to be interested. 24- The value to be attached to the administrative guide lines came up for consideration before the Delhi High Court in L.D. Nayyar & Sons Vs. Punjab National Bank & Others 151(2008) DLT 27 and in New India Assurance Co. Ltd. Vs. Nasli Neville Wadia & Another 1(2008) SLT 442. After referring to Uttam Prakash Bansal and Others Vs. LIC of India, 100 (2002) DLT 487 (DB), it was held in the case of LD Nayyar & Sons (supra) as under:-
"..... It is well settled that administrative guidelines cannot supplant the power to invoke a speedy remedy to evict tenants whose arrangements ended almost two decades ago. To hold otherwise would not only be fettering statutory power on patently insubstantial grounds, but placing unwarranted disabilities on a plain misreading of the guidelines, upon the bank's powers and prohibiting it from attempting to secure its premises within the legitimate bounds of law."
25- Similarly in New India Assurance Company v. Nusli Neville Wadia & Another (Supra) the Hon'ble Supreme Court held that the issuance of guide lines are not being controlled by statutory provisions. They are simply advisory in character and no legal right is conferred upon tenant. In Hira Midha & Another v. Indian Tourism Corporation 2008 (VII) AD (Delhi) 251, it was held as under:
"41. The Supreme Court has ruled in some decisions that guidelines and administrative instructions can supplement, not supplant the law and statutory provisions (State of U.P. & Ors. Appellant Vs. Daulat (PPA - 18 & 19 of 2011) (Page 18 of 24) Ram Gupta, 2002 III AD (SC) 476= 2002(4)SSC 98; Dr. S.K. Kacker Vs. All India Institute of Medical Sciences 1996 (10) SCC 734; and the Constitution Bench judgment of the Supreme Court in Managing Director, ECIl, Hyderabad Vs. B. Karunakar 1993(4) SCC 727. In Daulat Ram Gupta (supra) the Supreme Court held that the power to issue guidelines cannot control the manner of the use of statutory power or its discretion. This view has been adopted by a division Bench of this Court, in Uttam Prakash Bansal & ors. Vs. Life Insurance Corporation Delhi & Ors. Vs. Life Insurance Corporation of Delhi & Ors. 100(2002) DLT 497. The Court dealt with applicability of the same, 2002 guidelines to eviction proceedings, under the Act, and ruled that such guidelines or instructions could be issued only if there is no statute or statutory rules. The Court relied on Paluru Ramakrishna & Ors. Vs. R.D. Degaonka & Ors. AIR 1990 SC 166. One well known principle of administrative law also is that guidelines can only assist in the exercise of statutory power, but cannot fetter discretion lawfully vested with the authority (Ref. Indian Aluminum Co. Ltd. Kerala State Electricity Board 1975 (2) SCC 414)."
43- The guidelines of 2002, no doubt are meant to channelize use of provisions of the Act. They were issued by the Ministry of Urban Development. No doubt, they generally deal with the procedure to be adopted to evict tenants. Yet, it would not be possible for this court to conclude, as the petitioners suggest, that such general guidelines are applicable to all situations. So read, the purpose of enacting special provisions to deal with public premises would be rendered redundant and virtually the court would be decreeing its repeal. The guidelines cannot be read as (PPA - 18 & 19 of 2011) (Page 19 of 24) undermining the powers enacted by Parliament, and the consequences enjoined by the definition of "unauthorized occupant"
under the Act. In this case, the ITDC had undeniably given the spaces for commercial use which clearly fall withing the sweep of the Act, according to the holding in Ashoka Marketing (supra). The licensing of such commercial space is an integral and essential part of the hospitality and Hotel Business with the ITDC engages itself in. Therefore, it is not as if the letting was an incidental or isolated activity, it is and continues to be a part of the business of ITDC. Inferring that the guidelines bind the ITDC to not evict its licensees, would be to undermine its activities and perhaps even existence. Being in the hotel and hospitality business, the ITDC can be placed under no additional burden than any other organization or entirely carrying on its activity. Any other conclusion would erode the viability of ITDC.
44- In these circumstances, it is held that the guidelines of 2002 do not apply to the ITDC in cases like the present one, where letting or licensing premises is an essential part of its activity. This finding is in line with the decisions of the Supreme Court in Jiwan Dass (supra) and Ashoka Marketing. The Court cannot read into the statute any additional fetter, by the interpretive process suggested on behalf of the petitioners..
26- Learned Counsel for appellant relied upon Persis Kothawala (supra). In that case, the LIC had raised rent by 200 times of the earlier rent while it was shown by the tenant that the rent in the adjacent building was quite less prior to the demand of the LIC. It was in this context that it was held (PPA - 18 & 19 of 2011) (Page 20 of 24) that the government undertakings can not act with a motive of profiteering when the rent of the private places was far less. In the instant case nothing has been placed on record that the action of the respondent/LIC was malafide or arbitrary. 27- Appellant has also relied upon Damayanti Verma's case. It was submitted by the learned Counsel for respondent that LPA has been filed against this judgment which has been admitted. Even otherwise, in this case, Hon'ble High Court referred to the Order of the Hon'ble Supreme Court in New India Assurance Company Ltd. v. Nulsi Neville Wadia & Another (supra). The Hon'ble High Court also referred to an earlier decision, reported as Kamla Bhargawa & Anr. v. LIC of India, WP(C) No. 12718/2009, decided on 20.01.2011 and after placing reliance upon the observations made in Nulsi Neville Wadia (supra) it was held as under: -
"15. Indisputably, the above guidelines issued by the Central Government under the Public Premises Act in the matter of eviction of tenants cannot override the statutory provisions as they are advisory in nature, the same, however, would not mean that these guidelines should be ignored blatantly by the Government or Government Corporations. In New India Assurance Company (supra), the Apex Court has clearly held that action of the State in terms of the Act should not be arbitrary, unreasonable or mala fide."
28- The Hon'ble High Court also took the view that the guidelines cannot override the statutory provisions and same was advisory in nature. However, it was further observed that (PPA - 18 & 19 of 2011) (Page 21 of 24) guidelines should not be ignored blatantly by the Government or Government Corporation. In that case, notice sent by the respondent under Section 106 of the TP Act failed to spell out their alleged bonafide needs and therefore, it was held that action of the respondent in seeking eviction of the petitioner, did not meet the constitutional mandate of Article 14 of the Constitution of India. Hon'ble High Court had distinguished the cases of lawful tenant and unlawful occupants by observing that a tenancy can be terminated under Section 106 of the TP Act and once such tenancy is terminated then the lawful tenant also become unauthorised occupant in terms of Section 106 of the PP Act. The case of lawful tenant or lessee cannot be treated at per with unlawful occupant or the licencee whose licence comes to an end on the expiry of licence period or an employee overstaying in the public premises after his service has come to an end or in case of his transfer. In the latter category of case, once declared as an unauthorised occupant by the Estate Officer, then the tenant has to satisfy and prove before the Estate Officer that the decision of formation of such an opinion by the Estate Officer is wrong and illegal and his status is of authorised occupant. However, if they failed to satisfy the Estate Officer then they have no option but to face the eviction proceedings under Section 5 of the PP Act. In that case, the tenant was a lawful tenant and the tenancy was terminated on the alleged bonafide need of the respondent LIC which they had failed to prove. However, in the instant case the lease was for a specified period and after the expiry of the lease deed, it came (PPA - 18 & 19 of 2011) (Page 22 of 24) to an end by efflux of time and therefore, the tenancy was terminated after serving the notice as contemplated under Section 106 of the TP Act. Thereafter the status of appellant became as unauthorised occupant. Therefore, even otherwise, it cannot be said that the action of the respondent was in violation of the guidelines.
DAMAGES:
29- As regards damages is concerned, findings of Estate Officer were not challenged during the course of arguments. Even otherwise, a perusal of impugned order goes to show that appellant did not place on record any evidence regarding market rate of rent in the area where suit premises was situated, as against claim of respondent. Moreover, respondent -Corporation had filed the lease deed executed between LIC and Naina Kapoor. Keeping in view the prevalent rate of rent in the market and relying upon the lease deed executed between respondent and Ms. Naina Kapoor and the fact that the premises are situated in commercial area, instead of awarding damages @ Rs.75/- sq.ft. per month, the damages @ Rs.55/- per sq. ft. per month were awarded, which cannot be said to be unreasonable. 30- In view of the foregoing discussions, I do not find any illegality or infirmity in the impugned order whereby order of eviction has been passed and damages @ Rs.55/- per sq.ft. per month w.e.f. 01.08.2009 till vacation and peaceful possession is handed over to LIC of India was awarded. The appeal is without merit. Same is hereby dismissed.
(PPA - 18 & 19 of 2011) (Page 23 of 24) Let a copy of this judgment be placed with connected file. A copy of the judgment be sent to the Estate Officer while returning the records of Estate Office.
Appeal file be consigned to record room.
ANNOUNCED IN OPEN (SUNITA GUPTA)
COURT ON 30.11.2011 DISTRICT & SESSIONS JUDGE:
DELHI
(PPA - 18 & 19 of 2011) (Page 24 of 24)