Delhi District Court
M/S Starlite Traders vs Delhi Development Authority on 26 February, 2021
IN THE COURT OF SURESH KUMAR GUPTA,
PRINCIPAL DISTRICT & SESSIONS JUDGE,
NORTH WEST DISTRICT, ROHINI COURTS, DELHI
PPA No. 10/16
M/s Starlite Traders
A partnership Firm
Through its Attorney,
Sh. Atma Ram,
R/o H.no. 2094, Ganesh Pura,
Tri Nagar, Delhi110035 .......... Appellant
Versus
1. Delhi Development Authority
Through its Vice Chairman
INA Market, Vikas Sadan,
New Delhi
2. The Estate Officer
LSCLU Market, Pitampura,
Delhi .......... Respondents
Instituted on : 30.04.2014
Argued on : 02.02.2021
Decided on : 26.02.2021
JUDGMENT
1. The appellant has impugned the order 15042014, passed by the Estate Officer vide which appellant and other PPA No. 10/16 Page 1 of 26 M/s Starlite Traders vs DDA & Ors.
occupants of the public premises bearing no.D29, SMA Cooperative Industrial Estate, GTK Road, Delhi are directed to vacate the same within 15 days from the date of order.
2. The appeal has been preferred on the grounds that appellant has been in occupation of the premises in question and eviction order has been passed by respondent no.2 without serving mandatory notice u/s 4 of Public Premises (Eviction of Unauthorized Occupant) Act, 1971 (hereinafter referred to as "the Act"). The respondent no.2 is not legally appointed under the Act. The premises in question is not a public premises under the Act. The lease has not been terminated in terms of the provisions of the law. Hon'ble Lt. Governor of NCT of Delhi is not competent to terminate the perpetual sub lease as appellant is not unauthorised occupant. The terms of perpetual sub lease says that only Arbitrator has the jurisdiction to hear and PPA No. 10/16 Page 2 of 26 M/s Starlite Traders vs DDA & Ors.
decide the matter. The appellant has not been given opportunity for hearing. The appellant is only a sub lessee whereas SMA Cooperative Industrial Estate is the lessee of the perpetual lease deed so no notice could have been served upon the appellant without serving any notice to SMA Cooperative Industrial Estate. The lease is still subsisting as same is not terminated by competent authority. The appellant has done an expenditure of more than 7 Lacs for the construction. The impugned order passed by respondent no.2 is not sustainable in the eyes of law. Hence, this appeal.
3. Notice of the appeal is given to the respondents.
4. The facts giving rise to present appeal are like this. A plot of land measuring 1214.9 sq. yards situated D 29, SMA Cooperative Industrial Estate, GT Karnal Road, PPA No. 10/16 Page 3 of 26 M/s Starlite Traders vs DDA & Ors.
Delhi (herein after referred to as premises in question) was allotted to the appellant for industrial purposes regarding which a perpetual sub lease deed has been executed in favour of the appellant on 21111979. The appellant has made alleged unauthorised construction on the rear set back of the premises in question and covered upto first floor level with RCC structure. The premises in question was also transferred without seeking permission from the lessor in violation of the terms of clause 2(6) a & b of sub lease. The opportunities were given through show cause notices dt.0411994, 02061994, 05101995 and 28081997 to remove the unauthorised construction but in vain. A proposal was put up before the Hon'ble Lt. Governor of NCT of Delhi for termination of the perpetual sub lease which was terminated vide order dt.16112001 and conveyed to the appellant on 13122001 with the direction to hand over the vacant and peaceful possession of premises in question PPA No. 10/16 Page 4 of 26 M/s Starlite Traders vs DDA & Ors.
along with super structure. On 28122001, AE vide his report dt.28122001 informed that no person has turned up to give the possession of the premises in question. On 24092002, the matter along with relevant documents was referred to Estate Officer (lands), DDA to initiate proceedings against the appellant under the Act. The Estate Officer has passed the eviction order dt.25032003 against the appellant and others and said order was challenged. Shri R.P. Pandey, the then ld. ADJ, has set aside the order dt.25 032003 vide order dt.24032004 with the direction to respondent no.2 to issue fresh notice in accordance with law.
5. The proceedings were again initiated by respondent no.2. The notices were issued to the appellant, Shri Pradeep Jindal, Shri Suresh Gupta and M/s Puran Chand Packaging Industries Pvt. Ltd. On 30.11.2017 an PPA No. 10/16 Page 5 of 26 M/s Starlite Traders vs DDA & Ors.
eviction order was passed.
6. The appellant has preferred the appeal against the order dt.30102017 in the court of ld. District Judge, South District, Saket, New Delhi and the impugned order was set aside and case was remanded back to respondent no.2 vide order dt.12072011 to proceed further after issuing notice to the appellant.
7. The respondent no.2 has issued notices to the appellant, Smt. Sona Devi, Shri Mahender Pal (husband of deceased Bimla Devi), Shri Joginder Singh, Smt. Tripat Sikka, Shri Gurdial Singh, Shri Suresh Gupta, M/s Pradeep Industries and all other occupants of the premises in question. Respondent no.2 after perusing the record has passed an eviction order dt.15042014 against all of them and other occupants to hand over the vacant possession of PPA No. 10/16 Page 6 of 26 M/s Starlite Traders vs DDA & Ors.
the premises in question within 15 days.
8. Ld. Counsel for the appellant submitted that no notice has been served upon the appellant. He further submitted that no notice has been served upon SMA Cooperative Industrial Society. He further submitted that Hon'ble Lt. Governor of NCT of Delhi has no power to terminate the perpetual sub lease. He further submitted that premises in question is not a public premises under the Act. He further submitted that respondent no.2 has no authority to pass any eviction order as he was no appointed by any authority. He further submitted that the terms of the perpetual sub lease show that all the disputes shall be referred to the Arbitrator so Arbitrator has power to decide the dispute, if any. He further submitted that Smt. Bimla Devi was not alive on 25042013 who has expired on 20 032013. He further submitted that there was no PPA No. 10/16 Page 7 of 26 M/s Starlite Traders vs DDA & Ors.
unauthorised construction or violation of terms and conditions of the perpetual sub lease.
9. Ld. Counsel for the respondent submitted that the appellant is bound by the terms and conditions of the perpetual sub lease. She further submitted that appellant is sub lessee and successor in interest of the lessee so the appellant is under an obligation to perform all the obligations under the perpetual sub lease. She further submitted that the premises in question belongs to the government so it comes within the ambit of "public premises". She further submitted that appellant cannot draw benefit out of the arbitration clause when the jurisdiction has been casted upon on the particular authority to decide the matter. She has placed reliance upon ITPO Vs. International Amusement Ltd. 142 (2007) DLT
342. She further submitted that appellant has violated the PPA No. 10/16 Page 8 of 26 M/s Starlite Traders vs DDA & Ors.
terms and conditions of the perpetual sub lease by way of transferring the premises in question and also by way of raising unauthorised construction. She further submitted that notice u/s 4 of the Act was duly served upon the appellant and attorney has even put his appearance with counsel before respondent no.2. She further submitted that impugned order has been passed in accordance with the entire facts and circumstances of the case.
10. Heard and perused the record.
11. The definition of public premises under the Act is as follows: "Public premises" means :
"(1) any premises belonging to, or taken on lease or requisitioned by, or on behalf of the Central Government, and includes any such premises which have been placed by PPA No. 10/16 Page 9 of 26 M/s Starlite Traders vs DDA & Ors.
that Government, whether before or after the commencement of the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1980 (61 of 1980) under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat;
(2) any premises belonging to, or taken on lease by, or on behalf of, 3
(i) any company as defined in section 3of the [the Companies Act, 2013 (18 of 2013)], in which not less than fiftyone per cent. of the paidup share capital is held by the Central Government or any company which is a subsidiary (within the meaning of that Act) of the firstmentioned company;
(ii) any corporation (not being a company as defined in 3 section 3 of the [the Companies Act, 2013 (18 of 2013)], or a local authority) established by or under a Central Act and owned or controlled by the Central Government;
(iii) any company as defined in clause (20) of section 2 of the Companies Act, 2013 (18 of 2013) in which not less than fiftyone per cent. of the paid up capital is held partly by the Central Government and partly by one or more State Governments and includes a company which is a subsidiary (within the meaning of that Act) of the firstmentioned company and which carries on the business of public transport including metro railway.
Explanation.For the purposes of this item, "metro railway"
shall have the same meaning as assigned to it in clause (i) of subsection (1) of section 2 of the Metro Railway (Operation and Maintenance) Act, 2002 (60 of 2002); (iiia) any University established or incorporated by any Central Act,];PPA No. 10/16 Page 10 of 26
M/s Starlite Traders vs DDA & Ors.
(iv) any Institute incorporated by the Institutes of Technology Act, 1961 (59 of 1961);
(v) any Board of Trustees or any successor company constituted under or referred to in the Major Port Trusts Act, 1963 (38 of 1963);
(vi) the Bhakra Management Board constituted under section 79 of the Punjab Reorganisation Act, 1966 (31 of 1966), and that Board as and when renamed as the BhakraBeas Management Board under subsection(6) of section 80 of that Act.
(vii) any State Government or the Government of any Union territory situated in the National Capital Territory of Delhi or in any other Union territory,
(viii) any Cantonment Board constituted under the Cantonments Act, 1924 (2 of 1924); and] 8 (3) in relation to the [National Capital Territory of Delhi], 9
(i) any premises belonging to the [Council as defined in clause (9) of section 2 of the New Delhi Municipal Council Act, 1994 (44 of 1994) or Corporation or Corporations notified under subsection (1) of section 3 of the Delhi Municipal Corporation Act, 1957 (66 of 1957),] of Delhi, or any Municipal Committee or notified area committee,
(ii) any premises belonging to the Delhi Development Authority, whether such premises are in the possession of, or leased out by, the said Authority; [and],
(iii) any premises belonging to, or taken on lease or requisitioned by, or on behalf of any State Government or the Government of any Union Territory,
(iv) any premises belonging to, 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 (18 of 2013).
Explanation.For the purposes of this clause, the expression "State Government" occurring in clause (45) of the said PPA No. 10/16 Page 11 of 26 M/s Starlite Traders vs DDA & Ors.
section shall mean the Government of the National Capital Territory of Delhi;
(4) any premises of the enemy property as defined in clause (c) of section 2 of the Enemy Property Act, 1968 (34 of 1968). "
12. The premises in question belongs to DDA qua which perpetual sub lease was executed between Hon'ble President of India (Lessor) and SMA Cooperative Industrial Estate (Lessee) and Starlite Traders (Sub Lessee). In view of this fact and definition, the premises in question is governed under the definition of Public Premises. The argument of ld. Counsel for the appellant does not hold water.
13. The perpetual sub lease has been executed on 21.11.1979. The arbitration clause is incorporated in Clause 8 of the perpetual sub lease. The appellant cannot draw any support out of this clause. Section 15 read with Section 5 & 7 of the Act confers exclusive jurisdiction on the Estate Officer appointed u/s 3 of the Act to deal with the PPA No. 10/16 Page 12 of 26 M/s Starlite Traders vs DDA & Ors.
application u/s 5 & 7 of the Act. Section 15 of the Act bars and prohibits any court from entertaining any suit or proceeding from eviction etc. The Act also prescribes a procedure for filing an appeal by a person aggrieved by an order passed by the Estate officer u/s 9 of the Act. The Act is a complete code in itself. The proceedings u/s 5 & 7 of the Act cannot be made subject matter of arbitration as sole and exclusive jurisdiction to decide the applications has been conferred upon Estate Officer. The statutory provision cannot be waived off. Such kind of matters are not arbitrable. Support is drawn from Indian Trade Promotion Organization vs. International Amusement Ltd., (supra). The argument of ld. Counsel for the appellant is without any merits.
14. The appellant is sub lessee whereas SMA Cooperative Industrial Estate is lessee. Clause 7 of the PPA No. 10/16 Page 13 of 26 M/s Starlite Traders vs DDA & Ors.
perpetual lease deed says that sub lessee shall be the successor in interest of the lessee under the lease and all the rights and obligations of the lessee shall devolve upon sub lessee and sub lessee shall observe and perform the said obligations to the lessor. The sub lessee has to perform all the obligations which the lessee was to perform. To my mind, there was no need to issue any notice to SMA Cooperative Industrial Estate Ltd. in the eviction proceedings initiated by respondent no.2. The argument of ld. Counsel that eviction proceedings could have only been decided only on the issue of notice to SMA Cooperative Industrial Estate Ltd. does not hold water.
15. The appellant has challenged the eviction order dated 06.11.2007 u/s 5 of the Act by filing an appeal titled as M/s Starlite Traders vs DDA and Ors. before Ld. DJ cum ASJ, Incharge, South District, Saket, New Delhi. The said PPA No. 10/16 Page 14 of 26 M/s Starlite Traders vs DDA & Ors.
order was set aside vide order dated 12.07.2011 and matter was remanded back to the Estate Officer who was given liberty to proceed further, if so advised, only after issuing proper notice u/s 4 of the Act and serving the same on the appellant.
16. The perusal of the record of respondent no.2 shows that Sh. Joginder Singh, Sh. Gurdayal Singh and Smt Tirpat are partners of M/s Starlite Traders. They have executed a partnership deed dated 04.09.1984.
17. The agreement to sell and purchase dated 05.10.1984 shows that all the three partners of the appellant i.e. M/s Starlite Traders have sold the premises in question to Smt Bimla Devi and Smt Sona Devi wife of Atma Ram. The partnership deed dated 05.10.1984 was executed which shows that Joginder Singh, Gurdayal singh and Smt PPA No. 10/16 Page 15 of 26 M/s Starlite Traders vs DDA & Ors.
Tirpat are having 10% share and whereas Smt Bimla Devi and Sona Devi are having 90% share in M/s Starlite Traders. Form A issued by Registrar of Firms show their names.
18. The agreement dated 15.09.1997 was executed by Smt Bimla Devi and Smt Sona Devi in favour of Sh. Suresh Gupta whereby the premises in question was mortgaged for a sum of Rs. 12 lacs with Sh. Suresh Gupta. The agreement to sell dated 16.03.1998 shows that Smt Sona Devi and Smt Bimla Devi have sold the entire industrial property i.e. premises in question to Sh. Suresh Gupta.
19. The partnership deed cum dissolution deed dated 13.07.2000 shows that Smt Sona Devi and Smt Bimla Devi have retired from the partnership firm and Sh. Suresh Gupta has been inducted as a new partner. Form A issued PPA No. 10/16 Page 16 of 26 M/s Starlite Traders vs DDA & Ors.
by Registrar of Firms shows that Smt Sona Devi and Smt Bimla Devi have retired and Sh. Suresh Gupta has joined as a partner.
20. The affidavit dated 04.03.1996 of Smt Sona Devi and Smt Bimla Devi shows that they have sold 200 sq. yards i.e. one tinshed on the backside to Sh. Pradeep Kumar Jindal. The agreement to sell was also executed. The indemnity bond was also executed. Atma Ram has executed affidavit dated 04.03.1996 that Pradeep Kumar Jindal is his attorney qua the above stated plot. Atma Ram has also executed SPA dated 04.03.1996 in favour of Sh. Pradeep Jindal. Atma Ram has also executed GPA in favour of Sh. Pradeep Jindal qua the above stated plot.
21. The agreement to sell dated 08.06.1994 was executed by Smt Bimla Devi and Smt Sona Devi in favour of PPA No. 10/16 Page 17 of 26 M/s Starlite Traders vs DDA & Ors.
Sh. Ram Rattan qua the sale of 200 sq. yards of the land out of entire premises in question. The receipt was also executed.
22. The perusal of the record received from the office of respondent no.2 shows that notice u/s 4 of the Act was issued to the occupants of the premises in question including appellant. The notice dated 09.05.2012 was received by Puran Chand Packaging Pvt. Ltd. The notice dated 08.06.2012 was again received by Puran Chand Packaging Pvt. Ltd. The endorsement on it shows that previous notices were delivered to Bimla Devi and Atma Ram. The notice was also issued to Sh. Suresh Gupta which was received by Sh. Mohit Gupta on behalf of the appellant. The notice dated 09.04.2013 was issued to Joginder Singh which was received by Parminder Singh. The notices were also issued to Bimla Devi and Sona Devi. The notices were PPA No. 10/16 Page 18 of 26 M/s Starlite Traders vs DDA & Ors.
also issued to the appellant. The notices were duly received by the occupants of the premises in question.
23. The perusal of the record of respondent no. 2 shows that on 12.09.2012, Sh. Suresh Gupta put his appearance on behalf of the appellant and stated that he is one of the partners of the appellant and closed the business around 15 years ago i.e. somewhere in 1997. The construction on the rear portion i.e. a tinshed measuring about 200 sq. yards was raised by previous partner of the firm and present tenant has constructed a pucca structure with RCC on the said side. On 03.04.2013, Sh. Mohit Gupta son of Sh. Suresh Gupta put his appearance and submitted that the premises in question was purchased somewhere in 1998 from Bimla Devi and Sona Devi who in turn purchased the same from Joginder Singh, Gurdayal Singh and Smt Tirpat i.e. partners of the appellant. M/s Pardeep Industries PPA No. 10/16 Page 19 of 26 M/s Starlite Traders vs DDA & Ors.
is running a business from the rear portion of the premises in question. The letters were issued to Gurdayal, Bimla Devi, Sona Devi, Pradeep Industries, Joginder Singh and Tirpat Sikka to appear on 17.04.2013. Gurdayal Singh was not served. On 08.05.2013 Sh. Ram Dhan, Advocate appeared on behalf of Sona Devi wife of Sh. Atma Ram. On 23.10.2013 Sh. Ram Dhan, Advocate appeared on behalf of Bimla Devi alongwith Atma Ram, husband of Sona Devi. They stated that they have no relation with the appellant. On 07.03.2014 Sh. Suresh Gupta has appeared and stated that he does not know the whereabouts of other partners of appellant. On 03.04.2014 Sh. Atma Ram and Sh. Mohit Gupta appeared. Mohit Gupta stated that his father is having 90% share in the appellant and other partners have 10% share. Sh. Atma Ram stated that he is GPA holder of the appellant vide attorney dated 05.10.1984. The backside portion measuring 200 sq. yards has been sold to Sh. PPA No. 10/16 Page 20 of 26 M/s Starlite Traders vs DDA & Ors.
Pradeep Jindal.
24. All this shows that Atma Ram is the attorney of the appellant i.e. Starlite Traders which was executed by three partners namely Gurdayal, Joginder and Smt Tirpat in his favour. He has put his appearance before respondent no.2. The notices were also served upon the other occupants i.e. Sona Devi, Bimla Devi, M/s Pradeep Industries and Sh. Suresh Gupta.
25. The Lrs of deceased Smt Bimla Devi have also appeared before respondent no. 2 and filed an application that the request for reconsideration for restoration of lease is pending consideration before higher authorities. The application dated 22.10.2013 was placed on record. Lrs were represented by Sh. Ram Dhan, Advocate before respondent no.2 and even filed power of attorney on their PPA No. 10/16 Page 21 of 26 M/s Starlite Traders vs DDA & Ors.
behalf.
26. The application was also given by Smt Sona Devi for reconsideration qua cancellation of lease deed to Hon'ble LG of NCT of Delhi.
27. Sh. Atma Ram is husband of Smt Sona Devi. Atma Ram has filed the vakalatnama of Sh. Ram Dhan, Advocate before Sh. R.P. Dabral, Estate Officer, North Zone which also bears the signature of Smt Sona Devi. The appearance of Sh. Atma Ram is only possible when he has received the notice u/s 4 of the Act. This shows that notice u/s 4 of the Act has been served upon the appellant through Atma Ram.
28. The notice u/s 4 of the Act was duly served upon the appellant and other occupants. They have appeared PPA No. 10/16 Page 22 of 26 M/s Starlite Traders vs DDA & Ors.
before respondent no.2. There is nothing on record to show that respondent no. 2 has not served notices to the appellant or any other occupant. The argument does not hold water.
29. The unauthorised construction has been allegedly raised in the premises in question. This fact is evident from the letter dated 13.12.2001 of Deputy Director (Industrial), DDA. Smt Sona Devi has herself admitted in the application given to Hon'ble LG, NCT of Delhi for restoration of perpetual lease deed of the premises in question. The documents on the record also show that there is unauthorised construction in the premises in question. There is nothing on record that M/s Starlite Traders has been in operation in the premises in question. The appellant i.e. M/s Starlite Traders has not placed on record any document in the form of account statement or ITR that PPA No. 10/16 Page 23 of 26 M/s Starlite Traders vs DDA & Ors.
the firm is still in operation from the premises in question. The appellant has also parted with the possession of premises in question. The Clause 6 of Perpetual Sub lease says that sub lessee shall not sell, assign or otherwise part with the possession or whole or any part of the industrial plot in any manner. There is violation of the terms and conditions of clause 6 of the perpetual sub lease. The argument of ld. Counsel for the appellant that there was no unauthorised construction or violation of the terms and conditions of the perpetual sub lease does not hold water.
30. The premises in question belongs to DDA. Hon'ble LG, NCT of Delhi, being chairman of DDA, is competent to cancel the perpetual sub lease. The argument of ld. Counsel for the appellant does not hold water.
31. The appellant or any other occupant of the PPA No. 10/16 Page 24 of 26 M/s Starlite Traders vs DDA & Ors.
premises in question has not led any evidence that there was no violation of the terms and conditions of the perpetual sub lease. The documents filed on the record of respondent no. 2 by the appellant or other occupants rather corroborates the version of the respondent that there is violation of the terms and conditions of the perpetual sub lease.
32. The respondent no.2 has properly considered the facts and material on record while passing the impugned order dated 15.04.2014 on the basis of which order was issued to vacate the premises in question u/s 5 of the Act. I do not find any infirmity in the impugned order.
33. The appeal is without any merit and accordingly, the same is dismissed.
PPA No. 10/16 Page 25 of 26 M/s Starlite Traders vs DDA & Ors.
34. Copy of this judgment alongwith record be sent back to respondent no. 2.
35. Appeal file be consigned to record room.
ANNOUNCED IN THE OPEN COURT
IN PHYSICAL HEARING SURESH Digitally signed by
SURESH KUMAR
KUMAR GUPTA
ON 26TH FEBRUARY 2021 GUPTA
Date: 2021.03.04
15:21:28 +0530
(SURESH KUMAR GUPTA)
PRINCIPAL DISTRICT & SESSIONS JUDGE
NORTH WEST DISTRICT
ROHINI COURTS, DELHI
PPA No. 10/16 Page 26 of 26
M/s Starlite Traders vs DDA & Ors.