Delhi District Court
Mahabir Prasad vs South Delhi Municipal Corporation on 22 January, 2020
IN THE COURT OF MR. DHARMESH SHARMA
DISTRICT & SESSIONS JUDGE : WEST DISTRICT
TIS HAZARI COURTS : DELHI
PPA No. 10/2016
CNR No. DLWT01-001442-2016
Mahabir Prasad
S/o Late Goverdhan Singh
R/o 2/95, Ground Floor
Subhash Nagar
New Delhi-110027. . . . . . . Appellant
Versus
1. South Delhi Municipal Corporation
Through its Commissioner,
9th Floor, Shyama Prasad Mukherjee Civic Centre
Jawahar Lal Nehru Marg
New Delhi - 110027.
2. The Estate Officer
South Delhi Municipal Corporation
West Zone, Rajouri Garden
New Delhi - 110027. . . . . . . Respondents
Date of Institution : 13.01.2016
Date of hearing arguments : 10.01.2020
Date of Judgment : 22.01.2020
Appearances:
Sh. B. L. Chawla, Advocate for appellant.
Ms. Manjusha Jha, Advocate for the respondents.
JUDGMENT
1. This appeal under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to PPA No. 10/16 Mahabir Prasad. Vs. SDMC & Anr. Page 1 of 10 as 'the PP Act') has been filed by the appellant aggrieved of the sealing of his shop No. WZ-14, Raja Garden, New Delhi on 30.09.2015 by the respondent/SDMC.
FACTUAL BACKGROUND OF THE CASE
2. Briefly stated, it is the case of the appellant that he has been a tenant in respect of the aforesaid shop at the ground floor of the property under Sh. Atma Ram Kumar, who allegedly gifted the said property to the erstwhile MCD vide Gift Deed dated 27.04.1971; and that on the basis of such Gift Deed, the MCD initiated proceedings against him under the PP Act on the ground that he was an unauthorized occupant and was imposed with not only damages to the tune of Rs. 18,750/- but also visited with an Eviction order dated 31.05.1980 passed by the Estate Officer, MCD.
3. It is further stated that the said Eviction order was challenged before the Ld. Appellate Tribunal i.e. the then Ld. District Judge, Delhi and Sh. P. L. Singla, the then Ld. ADJ, Delhi allowed the appeal filed vide order dated 09.01.1981 setting aside the impugned Eviction order dated 31.05.1980 and remanded back the matter to the Estate Officer for proving the execution and registration of the Gift Deed.
4. The case of the appellant is that after such remand, the MCD or the respondent did not initiate any further proceedings and all of a sudden on 30.09.2015, his premises was sealed by its officials on PPA No. 10/16 Mahabir Prasad. Vs. SDMC & Anr. Page 2 of 10 the ground that an Eviction order has been passed against him by the Estate Officer.
GROUNDS OF APPEAL
5. The said act on the part of the Estate Officer is assailed on the grounds that no show cause notice and/or hearing was accorded to him before passing any Eviction order; and that even after sealing of his property on 30.09.2015, no order of Eviction has been communicated to him despite service of legal notice dated 12.10.2015. It is reiterated that the appellant was never in unauthorized occupation of the premises and rather he was tenant under Mr. Atma Ram Kumar paying rent to him @ Rs. 55/- per month since the year 1963, which was later on increased to Rs. 60/- per month.
REPLY BY SDMC
6. The respondent SDMC has filed a reply and has stated that the Estate Officer, MCD passed an Eviction order and awarded damages to the appellant in terms of order dated 31.05.1980. It is stated that the order that had been set aside on an appeal by Sh. P. L Singla, the then Ld. ADJ, Delhi on 09.01.1981, was preferred by the other tenant, namely Ram Prakash Narula in PPA No. 12/80 titled Ram Prakash Narula vs. MCD and not the present appellant (underlined emphasized); and that the order dated 09.01.1981 by the Ld. ADJ, Delhi was challenged in CWP No. 1967/1981 titled MCD vs. Ram Prakash Narula and the Hon'ble High Court of Delhi vide order dated 28.02.2003 allowed the appeal of the MCD and restored the order of the Estate Officer dated 31.05.1980.
PPA No. 10/16 Mahabir Prasad. Vs. SDMC & Anr. Page 3 of 10LEGAL SUBMISSIONS
7. Mr. Chawla, ld. Counsel for the appellant has vehemently urged that the respondent SDMC has miserably failed to prove that any Gift Deed dated 27.04.1971 was executed by Sh. Atma Ram Kumar and/or registered as per law; and that even otherwise as the appellant was a tenant prior to the execution of the alleged Gift Deed, no proceedings could have been initiated against him under the PP Act. In his submissions, Mr. Chawla relied on the decision in Band Box Private Limited v. Estate Officer, Punjab and Sind Bank & Anr., (2014) 16 SCC 321; and Central Bank of India v. Dr. (M) Preeti R. Bhatt decided by the Hon'ble Bombay High Court vide decision dated 20.07.2017.
8. Per contra, Ms. Manjusha Jha has urged that the order of the Estate Officer dated 31.05.1980 was impliedly restored on decision in the CWP No. 1967/1981 vide order dated 28.02.2003 and mere fact that belated proceedings were initiated by the SDMC for Eviction of the appellant from the premises in question cannot be faulted in law.
DECISION
9. I have given my thoughtful consideration to the rival submissions advanced at the Bar by the Ld. Counsel for the parties. I have perused the entire record of the case as well.
10. First thing first, the appeal under Section 9 of the PP Act has not been instituted within 12 days of the sealed of the property by the MCD on 30.09.2015. It is instituted on 13.01.2016 without any PPA No. 10/16 Mahabir Prasad. Vs. SDMC & Anr. Page 4 of 10 application for condonation of delay, and therefore, exfacie this appeal cannot be entertained in view of Section 9(2) (a) of the PP Act.
11. Any how, considering that more than 30 years have been taken by the respondent-SDMC in taking action against the appellant, in the peculiar facts and circumstances explained by the appellant, taking a liberal view I am satisfied that there were compelling reasons, which prevented him from filing the appeal. But than even on merits, the appellant has no cause. Admittedly, the appellant was issued Show Cause Notice dated 31.05.1980 under Section 4(1), 5 and Section 7(3) of the PP Act, whereby he was held to be "unauthorized occupant" in the premises and called upon to pay damages @ Rs. 18,150/- for the unauthorized use and occupation of the premises.
12. A bare perusal of the order dated 31.05.1980 passed by the Estate Officer, West Zone, MCD would show that appellant appeared during the proceedings and claimed that he had been tenant under the previous owner, namely Atma Ram Kumar in respect of the subject premises @ monthly rent of Rs. 55/- since 1962, which was later increased to Rs. 60/- per month.
13. Perusal of the file of the Estate Officer as also the impugned order dated 31.05.1980 would show that appellant despite affording opportunities did not cross-examine the four witness produced by the MCD and on his failure to appear in the proceedings, he had been proceeded exparte; and that ultimately the Estate Officer vide PPA No. 10/16 Mahabir Prasad. Vs. SDMC & Anr. Page 5 of 10 order dated 31.05.1980 came to the conclusion that the appellant had failed to substantiate that he was a tenant under the previous owner, and therefore, also passed an order under Section 5(1) of the PP Act directing him to vacate the subject premises within 30 days thereof, or in default he and all other persons to be forcefully vacated from it. Further, an order under Section 7(2) of the PP Act was passed, whereby the appellant was directed to pay or deposit an amount of Rs. 18,750/- as damages for wrongful occupation w.e.f. 1st day of 1972 upto 28.02.1979, failing which same was ordered to be recovered as arrears of land revenue. The appellant was further directed to pay market rent @ 250/- to the MCD w.e.f. 01.03.1979 till vaction of the premises by him.
14. It is pertinent to mention here that in the said order dated 31.05.1980 the Estate Officer inter alia also found that Gift Deed dated Ex.PW-1/B on production of its original had been proved by the department, whereby property in question had been gifted to the MCD, vide the said Deed dated 27.04.1971. It appears that another tenant in another part of the same premises, namely Ram Prakash Narula also faced an eviction order with liability to pay damages to the MCD vide order dated 13.05.1980, wherein issue of execution of the registered Gift Deed by the erstwhile owner, namely Atma Ram Kumar came into question, and it was challenged by the said occupant by filing the appeal under Section 9 of the PP Act, which came to be heard by Sh. P.L. Singla, the then Ld. ADJ, Delhi, whereby the appeal was accepted primarily on the ground that department failed to prove the execution of PPA No. 10/16 Mahabir Prasad. Vs. SDMC & Anr. Page 6 of 10 the Gift Deed, and therefore, the eviction order besides awarding of damages by the Estate Officer, vide order dated 13.05.1980 was set aside.
15. It is also then borne out from the record that MCD challenged the said order by the Ld. ADJ dated 09.01.1981 before Hon'ble High Court of Delhi and the Hon'ble Single Judge of the Hon'ble High Court of Delhi vide order dated 28.02.2003 allowed the appeal holding that the execution of the Gift Deed had not been assailed or challenged by the occupant in any civil proceedings and thus the department i.e. MCD had been able to prove the execution of the Gift Deed in their favour;. Accordingly, the order dated 31.05.1980 passed by the Estate Officer got revived. It may be noted that order dated 31.05.1980 in respect of the present appellant as also other occupant Ram Prakash Narula are mutatis mutandis which held that the occupants had failed to prove that they were lawful tenants under previous owner / donor and at the cost of repetition the MCD had been able to prove the execution of the registered Gift Deed dated 27.04.1971, whereby the property was gifted for running Charitable Dispensary Maternity and Child Welfare Center in the name of wife of the donor.
16. It appears that the appellant assailed the order dated 31.05.1980 passed by the Estate Officer and the same was set aside by Sh. Jaspal Singh, the then ld. ADJ (as his Lordship was then). Teh copy of the said order is not available in the record of the Estate Officer PPA No. 10/16 Mahabir Prasad. Vs. SDMC & Anr. Page 7 of 10 nor available with the parties. Thereafter the department initiated fresh proceedings on the issue and ultimately eviction order was passed under Section 5 of the PP Act vide order dated 04.08.1995, which was challenged by the appellant in PPA Appeal NO. 527/1995 and the Court of Sh. S.N. Aggarwal, the then ld. ADJ (as his Lordship was then) vide Judgment dated 25.05.1998 quashed the eviction order dated 04.08.1995 primarily on the ground that department MCD had failed to prove its ownership of the subject premises on the basis of Gift Deed dated 27.04.1971 alleged to have been executed by Sh. Atma Ram Kumar and thus thereby failing to prove that the premises in question was "public premises within the meaning of Section 2(e)". The case was then remanded back to the Estate Officer for giving an opportunity to the MCD to prove its ownership on the basis of Gift Deed dated 27.04.1971 on the basis of proper legal evidence. Needless to state that the Estate Officer was directed to afford an opportunity of hearing to both the parties. It was further directed that since it taken more than 14 years by the SDMC to take action in respect of the said premises, a decision be taken preferably within three months to be computed from 16.06.1998.
17. Mr. B.L. Chawla, the learned Counsel for the appellant has vehemently urged that the order by the Hon'ble Single Judge dated 28.02.2003 has no binding effect in so far as the subject premises is concerned. I am afraid the said plea cannot be sustained since the order of the Hon'ble Single Judge of the High Court of Delhi dated 28.02.2003 was specific that the department i.e. the MCD had been PPA No. 10/16 Mahabir Prasad. Vs. SDMC & Anr. Page 8 of 10 able to prove the execution of the Gift Deed in its favour and, therefore, had became owner of the premises. The said order resulted in not only quashing of order of the ld. ADJ dated 19.01.1981 but also impliedly set aside in subsequent order dated 25.05.1998 in so far as present premises is concerned. In other words, the issue that Gift Deed had been validly executed in favour of the department i.e. the MCD was clinched which resulted in constructive overruling of the order dated 25.05.1998, thereby setting clock back in time and revived earlier order dated 31.05.1980 passed by the Estate Officer with regard to the subject premises in this case. The only fault in such action taken by the respondent-MCD now SDMC seems to be that even after passing of order dated 28.02.2003, the department kept sitting over the matter for which no reasons have been advanced and belated action was initiated pursuant to order dated 31.05.1980, as agitated on 13.09.2015. Since the Estate Officer is a quasi judicial authority, it is not subject to the provisions of Limitation Act and the PP Act is a self contained Code in itself. No period of limitation is prescribed for execution of an order under Section 5 of the PP Act as it stood at the relevant time, nor after is amendment in 1980 and thereafter in 2015.
18. In so far as decision in Band Box Private Limited v. Estate Officer, Punjab and Sind Bank & Anr., (Supra) and the case of Dr. Preeti Bhatt v. Central Bank of India (Supra), the proposition of law that is culled out is that the PP Act as well as State Rent Control Laws are referable to entries in the the concurrent list and operate in their own field. It is only in the event of repugnancy that PP Act prevails PPA No. 10/16 Mahabir Prasad. Vs. SDMC & Anr. Page 9 of 10 over the State Rent Laws for eviction of unauthorized tenants and for collection of arrears of rent. However, where unauthorized occupants is shown to be a tenant prior to coming into force of the PP Act, the only course available for his eviction is under the State Rent Law. The plea by Mr. Chawla, ld. Counsel for the appellant that his client has been a tenant under the erstwhile owner prior to the coming in force of the PP Act falls flat on the ground when it is seen that no adverse finding was given by the Ld. Appellate Court vide order dated 19.01.1981 or for that matter order dated 25.05.1998 under PP Act with regard to the rejection of the claim of the appellant that he was a tenant under erstwhile owner. In other words, the findings given by the Estate Officer vide order dated 31.05.1680 that appellant failed to prove that he was a tenant occupying premises since 1962 remained undisturbed. The only issue that appear to have have been canvassed at the relevant time was execution of Gift Deed upon which, at the cost of repetition, a clear finding was given by the Hon'ble Single Judge of the Hon'ble High Court of Delhi in his order dated 28.02.2003 RESULT
19. In view of the aforesaid discussion, I find no merit in the appeal and same is accordingly dismissed. Interim order, if any stands vacated. A copy of this order be sent to the Estate Officer along-with its record. The appeal file be consigned to Record Room.
Announced in the open Court (DHARMESH SHARMA)
on 22th January, 2020 District & Sessions Judge (West)
Tis Hazari Courts: Delhi
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