Delhi District Court
Shanti Devi vs State Bank Of India And Anothers on 31 May, 2024
IN THE COURT OF SH. VIRENDER KUMAR BANSAL
PRINCIPAL DISTRICT & SESSIONS JUDGE
NORTH WEST DISTRICT: ROHINI COURTS: DELHI
CNR No. DLNW01-002688-2020
PPA No. 17/20
Shanti Devi
W/o Suresh Kumar
R/o Flat No. C-3/26B,
Lawrence Road, Keshav Puram,
New Delhi ...Appellant
Versus
1. State Bank of India
Through Manager/Authorised Person
11, Parliament Street,
New Delhi-110001
2. Ld. Estate Officer
State Bank of India
Mr. Yashpal Matta
11, Parliament Street,
New Delhi-110001 ...Respondents
Date of filing of Appeal : 04.03.2020
Date of reserving for Order : 27.04.2024
Date of Order : 31.05.2024
Appearance:
Sh. Mohit Chaudhary, Adv. for the appellant.
Sh. Vivek Kadyan, Adv. for the respondents/SBI.
JUDGMENT
The present appeal u/s.9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (in short 'the Act') has been filed challenging the order dated 18.02.2020 Page 1 of 36 passed by Ld. Estate Officer of State Bank of India (in short SBI).
2. The brief facts giving rise to the present appeal are that Sh. Shyam Charan, by virtue of his employment in SBI, was allotted residential accommodation no. C-3/26B, Lawrence Road, Keshav Puram, New Delhi, on leave and license basis, which was duly accepted by him. As per the allotment letter, under the following circumstances, the flat has to be vacated within 30 days:
a) Resignation / termination / discharge / dismissal and retirement;
b) On permanent transfer from Delhi;
c) On promotion to a higher cadre from subordinate staff;
d) On construction of your house, either through private sources or Government Agency or through the Staff Co-operative Housing Society;
e) Using the flat for any purpose other than the purpose for which it has been given;
f) Acts of waste and committing nuisance;
g) Any breach of condition hereof."
3. Sh. Shyam Charan retired from the services of SBI on 31.12.1990. Even after the death of Sh. Shyam Charan, his daughter Smt. Shanti Devi and son Sh. Suresh Kumar are occupying the flat in question and did not vacate the allotted flat.
4. Notice was served by SBI asking them to vacate the flat. When the flat was not vacated, the proceedings were initiated under the Act.
5. The other facts relevant for deciding the present appeal are that SBI had purchased 132 flats at C-3, Lawrence Road, Page 2 of 36 Keshav Puram, New Delhi, from DDA in 1971, which were allotted to various employees of SBI. Initially, two Writ Petitions were filed bearing no. 779/1993 and 1151/1993 by the SBI Staff Residential Welfare Society against SBI claiming ownership of the flats allotted by the SBI to the members of the petitioner. Both the Writs were, however, withdrawn without any liberty to file afresh. The society again filed Writ petition no. 1509/2011 before the Hon'ble High Court of Delhi, which was decided in favour of the Society by a Single Bench. SBI preferred LPA No. 110/2015, which was allowed and the order of the Single Bench was set aside vide order dated 28.11.2018. SLP was preferred but the Hon'ble Supreme Court refused to entertain the SLP vide order dated 22.04.2019. Thereafter, the SBI moved petition before the Ld. Estate Officer. A show cause notice was issued to the appellants herein, who were not vacating the flat within the stipulated period after the original allottee has retired from the services and has also died. The appellant herein filed the reply to the showcause. Ld. Estate Officer framed the following issues in the matter:
"1. Whether the instant proceeding against the respondent are maintainable or not?
2. Whether this Forum has requisite jurisdiction to adjudicate upon the present matter?
3. Whether the present proceedings are barred by Limitation?
4. Whether the present proceedings are barred by principle of Res-Judicata?
5. Whether the respondents' occupation could be termed as unauthorized occupation in view of Section 2(g) of the Act?"
Ld. Estate Officer after considering the rival contentions passed the order of eviction, which is under challenge in the present appeal.
Page 3 of 366. Notice of the appeal was sent to the respondents. Respondents filed the reply to the appeal.
7. I have heard the arguments from Ld. Counsel for the appellant(s), Ld. Counsel for the respondents and perused the record.
8. Ld. Counsel for the appellant(s) submitted that the Estate Officer passed the impugned order without appreciating the cause, concerns and background of the dispute in haste and in a summary manner. The appellant(s) raised various issues before the Ld. Estate Officer and also moved application under section 8 of the Act for conducting proper inquiry on the issues raised and to record the evidence affording opportunity to the appellant(s) to cross-examine the witness, but the Ld. Estate Officer did not consider this application at all and passed the order on the dictates of the respondent. Ld. Counsel in support of his arguments relied upon the judgment cited as Sudhir Goel & Ors. v. Municipal Corporation of Delhi & Ors., 2004 (112) DLT 249 wherein it was held that:
"38. In these circumstances the writ petitions are allowed and the impugned Order of eviction passed by the Estate Officer and affirmed by the ADJ is set aside. This decision could have been arrived at without alluding to the proceedings under the PP Act, by simply exercising the extraordinary jurisdiction of this Court under Article 226 of the Constitution. However, it is necessary to record the opinion that wherever complicated questions arise, the Authorities should refrain from initiating proceedings under the PP Act and should instead take recourse to the ordinary civil proceedings. The MCL should have terminated the lease in accordance with law, since the petitioners possess the legal attributes of a tenant. The MCD cannot be a judge in its own cause and adjudicate upon the legality of the notice. Therefore, the filing of a civil suit is necessary. Even Page 4 of 36 if a notice to quit under Section 106 of the Transfer of Property Act is not necessary, the decision to eject the petitioners after such a long period must be taken after granting a meaningful opportunity to the petitioners of being fully heard. The decision which would follow should clearly disclose the reasons which have weighed in the mind of the authority in terminating the tenancy. Failure to adhere to the essentials of audi alteram partem render the decision to terminate the lease as legally unsustainable. The Estate Officer must assume that the lease of the petitioners has been legally terminated since he is precluded from adjudicating on this issue. Otherwise, he could not have come to the conclusion that the petitioners had become unauthorised occupants. He could also not have gone into this question for the reason that his jurisdiction commences and continues on the premise that the termination notice and the subsequent decisions were legally taken. On the showing of both the MCD as well as ASI the Red Fort had ceased to 'belong' to the MCD and came to 'belong' to ASI from the date of Notification. The Ancient Monuments Act does not make it imperative for the ejectment of all occupants. The said Act envisages the preservation of an ancient monument and, therefore, empowers the ASI to prescribe conditions which must be adhered to by the occupants. The occupants will render themselves liable to prosecution in case of their failure to comply with any of the conditions imposed by the ASI. Only in very extreme cases the ASI can take over the ownership of the monument. In the circumstances of the case even if the ASI were to have initiated and concluded the eviction proceedings it would have been non est and illegal. Furthermore, the Estate Officer as also the Learned ADJ ought to have granted sufficient opportunity to the petitioners to lead evidence to prove their defence. Article 14 has been seriously infracted for the reason that whilst the petitioners have been ordered to be evicted from the premises other persons such as the ITDC etc. have been encouraged and permitted to commence commercial activities in the Red Fort itself. The great haste of the respondents has brought about a grave miscarriage of justice."
9. Ld. Counsel submitted that the Ld. Estate Officer was not having jurisdiction to decide the disputed question of fact and law about termination of lease as held in para 38 of the judgment in case Sudhir Goel (supra) and hence liable to be set-
Page 5 of 36aside.
10. Ld. Counsel for the respondent submitted that the judgment delivered in the case Sudhir Goel (supra) is no more a good law as held by a Division Bench of High Court of Delhi in the case titled Cement Corporation of India Ltd. v Life Insurance Corporation of India Ltd., 2014 (8) AD (Delhi) 326 wherein it was held as follows:
"9. Relying on para 38 of the judgement in Sudhir Goel v M.C.D., AIR 2005 Delhi 7, it is also contended that the Estate Officer could not have decided the disputed questions of fact and law as were arising and the order of eviction of the appellant is liable to be set aside on this ground also.
xxxxxxx
15. As far as Sudhir Goel cited by the senior counsel for the appellant herein is concerned, "the complicated question of fact" entailed therein and which was held to be not capable of decision by the Estate Officer was relating to determination of lease only. The said view can no longer be said to be good law in view of Ashoka Marketing Ltd. v Punjab National Bank, (1990) 4 SCC 406."
11. Ld. Counsel submitted that in view of this judgment the submissions made by the Ld. Counsel for the appellant(s) that the Estate Officer passed the order without jurisdiction as the Estate Officer can not decide the disputed question of Fact and Law about termination of lease has no force.
12. Keeping in view the submissions of the Ld. Counsels and the facts of the case that admittedly Sh. Shyam Charan was given possession of the property in dispute on licence basis by virtue of his employment with the respondent and that Sh. Shyam Charan has retired from the services of the respondent on Page 6 of 36 31.12.1990 and expired soon thereafter. The appellant(s) herein are continuing in possession of the suit property even thereafter. Therefore, I do not find any force in the argument that Estate Officer was not having jurisdiction to decide the issue of eviction of unauthorised occupant. As pointed out by the Ld. Counsel for the respondent even the judgment relied upon by the Ld. Counsel for the appellant(s) no more holds good in view of the decision by Division Bench in case Cement Corporation of India Ltd. v Life Insurance Corporation of India Ltd., 2014 (8) AD (Delhi)
326.
13. Ld. Counsel for the appellant(s) further submitted that Delhi Development Authority commenced housing projects in the year 1967 and constructed flats for Low and Middle-income groups on no-profit and no-loss basis. In the year 1968, Delhi Development Authority (Management and Disposal of housing Estate) Regulations, 1968 were notified. The Regulation 7 of these regulations reads as follows:
"5. Eligibility of Allotment - A dwelling unit or flat in the Housing Estates of the Authority shall be allotted only to such person who or his wife/husband or any of his/her dependent relations including unmarried children do not own in full or in part on free hold or lease hold basis a residential plot or house in the urban area of Delhi, New Delhi and Delhi Cantonment."
14. Chapter III of the regulations deal with the procedure for disposal of property and the steps to be taken in this regard. It provides that:
CHAPTER III Procedure for Disposal of Property
21. Issue of Public Notice - The Vice-Chairman or the officer authorised by him in this behalf shall cause a public Page 7 of 36 notice to be issued, in the manner prescribed under Section 44 of the Act, inviting applications for the allotment of property.
22. Form of Application - The application shall be made in the prescribed form.
23. Entry of Application in Register - All applications as received shall be entered serially in the application register.
24. Application to be Acknowledged - The person receiving the application shall give an acknowledgement of the application.
25. Rejection of invalid Applications - Any application which is incomplete in any respect is liable to be rejected as invalid.
26. Construction of Property Allotment Committee - The Authority shall for the purpose of allotment of property under these regulations constitute a committee to be called the Property Allotment Committee (hereinafter called the committee) consisting of not more than 5 persons including the Vice-Chairman who shall be the presiding officer of the Committee.
27. Scrutiny of Applications - The Committee shall determine which of the applicants are eligible for allotment and the decision of the Committee in this regard shall be final.
28. Draw of Lots - The allotment of property to eligible applicants shall be made by draw of lots under the supervision of the committee. Where the number of eligible applicants exceeds the number of properties, lots shall be drawn to the extent of the number of properties available plus 25 per cent thereof serve as a waiting list.
29. Formation of Groups of Allottees - The committee shall thereafter prepare a final list of allottees/hirers and shall place them in such group or groups as may be desired expedient for the purpose of constituting a Registered Agency.
30. Entry of Final List of Allottees in a Register - On the basis of final list of allottees/hirers drawn by the Committee, an allotment register shall be prepared in which names and other particulars of allottees/hirers shall be entered. The names of the persons on the waiting list shall be entered in a separate section of the same register in the order in which their name appears in the draw of lots.Page 8 of 36
31. Intimation about Allotment - Intimation about allotment shall be sent to all persons selected for allotment whose names have been entered in the allotment register.
32. Allotment from Waiting List - In the event of a person or persons not accepting an offer of allotment, the property shall be allotted to the person or persons on the waiting list in the order specified in such list.
33. Intimation about Grouping of Allottees/Hirers - Intimation about allotment mentioned in Regulation Nos. 31 and 32 shall include the grouping of allottees/hirers for the purpose of formation of Registered Agency as determined by the Committee.
34. Powers to Decide Representations - The Committee shall have full powers to decide representations, if any, in regard to the selection of applicants for allotment of property.
35. Execution of Agreements -
(1) Each one of the hirers forming a Registered Agency shall execute a hire-purchase Agreement in such form as may be prescribed by the Authority. The Registered Agency of which such hirer is a member shall also execute an agreement in such form as may be prescribed by the Authority in regard to common portions and common services.
(2) Every hirer shall before executing the said agreement pay to the Authority the installment of the price as provided in Regulation 11.
15. Ld. Counsel for the appellant(s) submitted that in accordance with the regulations of 1968 DDA advertised an offer of dwelling units for the citizens in the category of low and middle-income groups on no-profit and no-loss basis on 06.10.1971. However, there were not too much applicants, therefore, DDA allotted such flats to various state-controlled organisations (PSUs), who in turn were to allot the same to their IVth grade employees on ownership basis. These allotments to the state-run organisations were only to facilitate that the flats must reach to the deserving category in terms of regulation 7.
Page 9 of 3616. Ld. Counsel submitted that State - Controlled Organisations were given the flats in trust for the benefit of their employees. Ld. Counsel submitted that apart from the present respondent, the other organisations like FCI, BSNL, MMTC, LIC etc. were also given flats, which these organisations passed on to their deserving employees.
17. Ld. Counsel submitted that on 08.12.1971 Financial Advisor (Housing) of DDA also made a note referring to the letter dated 10.11.1971 of the Respondent that:
"We may have no objection to the allotment of 132 flats at Lawrence Road area to the State Bank of India. DDA would sell the flats to the corporation on cash down basis and the latter may dispose them off to its employees subject to the condition that the latter fulfill the normal conditions of the allotment of the flats viz, (a) being residents in Delhi for the last 5 years, (b) falling in the low - income group i.e. income upto Rs. 7200/- per annum; and (c) not owning any plot or flat in his or his wife's or dependent child's name in the urban areas of Delhi, New Delhi and Delhi Cantt."
18. Ld. Counsel for appellant(s) submitted that respondent instead of allotting the flats on ownership basis to its employees, converted these flats into its own property. Due to this conduct of the respondent certain communications were sent by DDA. Ld. Counsel has referred to the letter dated 01.09.1989 sent by Commissioner (Housing) DDA to Jt. Secretary, PM's Office stating that:
"It has been decided to regularize the allotment in favour of the individual employees of SBI who are in possession of these flats. We are informing the Court separately."
19. Joint Director of DDA has also written a letter to SBI Staff Resident Welfare Association Society mentioning as under:
Page 10 of 36"With reference to your representation dated 25.07.89, I am to inform that the V.C. DDA has accepted the request of the association and has agreed to make allotment of the afore - mentioned flats in the name of the individual employees. Necessary action in the matter is being initiated."
20. Director (Housing), DDA has also written a letter dated 09.02.2007 mentioning that:
"The allotment of flats in bulk made to State Bank of India and other Public Sector Undertakings was subject to the conditions that these would be further allotted in the name of individual employees on ownership basis as per their eligibility at that time. It is clear that the flats allotted in bulk to State Bank of India and other Public Sector Undertakings were meant for further allotment to their employees, on Cash Down or on Hire-purchase basis, as per their convenience and were not to be used as Staff Quarters. It is also stated that organisations like LIC, FCI etc. have already transferred/allotted the flats individually in the name of their employees on ownership basis"
21. Ld. Counsel submitted that under the circumstances as these flats were to be allotted to the employee i.e. Sh. Shyam Charan on ownership basis and were not to be treated as staff quarters, the Estate Officer should have conducted an inquiry under Section 8 of the Act, which has not been conducted. The Estate Officer should have summoned the entire records from DDA to appreciate the policy under which the allotment was made, the fact that the allottee was put in possession by DDA and not by SBI. The procedure as contemplated under Section 8 of the Act has not been followed. The impugned order has been passed without deciding the basic issues raised on the dictates of the Management of the respondent and therefore, liable to be set- aside. Ld. Counsel in support of his arguments relied upon the judgment cited as M/s KIC Food Products Private Limited v. Delhi Development Authority, 2018 (9) AD (Delhi) 158 , Page 11 of 36 wherein it was held that:
"6. Upon hearing and on perusal of impugned orders, material on record and decisions cited, I find that the first issue framed by the concerned Estate Officer puts the burden of proving this issue upon petitioner and to prove this issue, petitioner needs to controvert the stand taken by respondent in its evidence regarding a decision being taken by Lieutenant Governor in August, 1993 for renewal of license in question for a period of ten years. Whether there was any renewal of license after December, 2010 or not, is a question of fact. Petitioner seeks to confront respondent's witness with some file notings of 14th January, 2015 and 12th February, 2016 regarding extension of license in question for a period of nine years. Whether these notings have legal sanctity or not and if in face of these nothings heavy damages can be imposed upon petitioner or not, are the important facets on which respondent's witness needs to be cross examined. Whether the license in question was impliedly extended or not, is also a question of fact, which can be established after respondent's witness is cross- examined.
7. In Damayanti Verma (Supra), it has been said that lawful tenant or lessee cannot be treated at par with unlawful occupant or the licensee. There is no dispute with this proposition of law but it needs to be determined as to whether petitioner is unauthorised occupant or not. This determination can take place only after an opportunity of cross examination is granted to petitioner. The doctrine of fairness requires that respondent's witness is cross- examined by petitioner to determine the lis between the parties.
8. Supreme Court in Nusli Neville Wadia (Supra) had granted right of cross-examination to the parties. No doubt, the proceedings under The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 are summary proceedings but in the peculiarity of this case, petitioner is granted right to cross-examine respondent's witness and for this purpose, the concerned Estate Officer shall grant one effective opportunity to petitioner to do so.
9. In view of aforesaid, interim orders of 23rd November, 2016 and 8th December, 2016 are set aside so far as they close petitioner's right to cross-examine respondent's witness. To ensure expeditious conclusion of proceedings, let parties through their counsel appear before the Estate Officer on 9th October, 2018 at 11:00 AM, who shall fix a date for cross examination of respondent's witness within a period of four weeks from 9th October, 2018 and ensure that respondent's witness is present for cross-examination Page 12 of 36 on the date so fixed."
22. Ld. Counsel submitted that in view of the law as settled by the Hon'ble High Court of Delhi in the above case and as in this case also the application under section 8 of the Act was moved by the appellant(s) herein the Estate Officer should have summoned the witnesses and allowed the appellant(s) herein to cross-examine them, which he has failed to do resulting in to miscarriage of justice. It is prayed that on this ground itself the order of the Ld. Estate Officer is liable to be set-aside.
23. Ld. Counsel has also relied upon the judgment cited as Surinder Kumar & Ors. v. Delhi Development Authority & Ors, 1989 (16) DRJ 90, wherein it was held that:
"It is an admitted fact that at least some of the petitioners had registered themselves for allotment of flats in their individual capacity with the respondent Authority Having been found successful in the draw of lots, they have cancelled that registration since under the rules of Delhi Development Authority, they were no longer eligible to have a second flat. It is also an admitted fact that after the draw of lots, the petitioners were required by Food Corporation of India to pay certain amounts and a part of the salary was also deducted towards payment of the price of the flats and that deduction is continuing till date. Thus huge amounts have been paid by the petitioner towards the price of the flats. As far as Delhi Development Authority is concerned, it has realized the full value of the flats as far back as in 1981. In categorical terms, the stand of Delhi Development Authority has been that the flats could be allotted to the individual employees and not to the Corporation. For reasons best known to Authority, this stand was changed in 1986 and an additional amount of Rs. 66,90,465.00 was demanded. Such an action cannot be considered to be a bona fide action on the part of the Authority which is a "State" and not a commercial organisation.
5. The question whether the petitioners could be allotted the flats is also not in dispute since admittedly the respondent Authority has allotted flats to the employees of Page 13 of 36 other Corporations particularly to Indian Oil Corporation and to Bharat Heavy Electrical Limited and possession of the flats has already been given to the employees of those Corporation. The delay caused by the Corporation in asking for allotment in favour of the Corporation has not in any way prejudiced the Authority in as much as the Authority had realised the full amount of Rs. 32,00,000.00 as far back as in June, 1981 and the amount has remained with them. Ordinarily I would have directed the Authority to pay interest to the petitioners on the said amount but considering the fact that the Corporation had requested for allotment in favour of the Corporation at least till 1984 and again in 1986. I would refrain from directing the Authority to pay any interest. However, the Authority is bound to allot the flats in terms of the letter sent by the Corporation after the draw of lots."
24. Ld. Counsel submitted that the flat in question is also one such flat out of the 132 flats which DDA allotted to SBI for transfer of flats to its subordinate staff on ownership or hire- purchase basis. The SBI has instead of allotting the flats to its employees on ownership or hire-purchase basis, converted the same to its staff quarters and allotted on leave and licence basis in contravention of the policy and the conditions of allotment. Ld. Counsel submitted that in view of the decision of the Hon'ble High Court of Delhi in the above-mentioned case the action of SBI in converting the flats as its staff quarters and allotting the same to its employees on leave and licence basis is not sustainable and is liable to be set-aside and consequently the order of the Ld. Estate Officer directing the appellant(s) herein to vacate the flat in question.
25. Ld. Counsel for the appellant(s) further submitted that the Estate Officer has failed to appreciate that the appellant(s) are in adverse and hostile possession of the suit property since 1993 as also known to the respondent herein when the first writ Page 14 of 36 petition was filed. Therefore, the cause of action, to seek eviction is barred to be pressed against the appellant(s) herein in the year 2019 in terms of Article 65.
26. Ld. Counsel submitted that the cause of action which starts to run cannot be ceased in the manner as held by the Estate Officer and therefore, once 12 years have passed, no action would lie against the appellant(s). Ld. Counsel in support of his arguments relied upon the judgment cited as S.M. Karim v. Mst. Bibi Sakina, AIR 1964 SC 1254, wherein it was held that:
"5. As an alternative, it was contended before us that the title of Hakir Alam was extinguished by long and uninterrupted adverse possession of Syed Aulad Ali and after him of the plaintiff. The High Court did not accept this case. Such a case is, of course, open to a plaintiff to make if his possession is disturbed. If the possession of the real owner ripens into title under the Limitation Act and he is dispossessed, he can sue to obtain possession, for he does not then rely on the benami nature of the transaction. But the alternative claim must be clearly made and proved. The High Court held that the plea of adverse possession was not raised in the suit and reversed the decision of the two courts below. The plea of adverse possession is raised here. Reliance is placed before us on Sukhan Das v. Krishnanand, ILR 32 Patna 353 and Sri Bhagwan Singh v. Ram Basi Kuer, AIR 1957 Patna 157 to submit that such a plea is not necessary and alternatively, that if a plea is required, what can be considered a proper plea. But these two cases can hardly help the appellant. No doubt, the plaint sets out the fact that after the purchase by Syed Aulad Ali, benami in the name of his son-in-law Hakir Alam, Syed Aulad Ali continued in possession of the property but it does not say that this possession was at any time adverse to that of the certified purchaser. Hakir Alam was the son-in-law of Syed Aulad Ali and was living with him. There is no suggestion that Syed Aulad Ali ever asserted any hostile title against him or that a dispute with regard to ownership and possession had ever arisen. Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for " several 12 years"Page 15 of 36
or that the plaintiff had acquired " an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. The cited cases need hardly be considered because each case must be determined upon the allegations in the plaint in that case. It is sufficient to point out that in Bishun Dayal v. Kesho Prasad, AIR 1940 Privy Council 202 the Judicial Committee did not accept an alternative case based on possession after purchase without a proper plea."
Ld. counsel has referred to only that portion of para which is italicized and underlined.
27. Ld. Counsel has also relied upon the judgment cited as Saroop Singh v. Banto & Ors., (2005) 8 SCC 330, wherein it was held that:
"27. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, plaintiff- respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant- Appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred.
28. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date defendant's possession becomes adverse. [See Vasantiben Prahladji Nayak and Others v. Somnath Muljibhai Nayak and Others, (2004)3 SCC 376].
29. 'Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the Appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. [See Md. Mohammad Ali (Dead) By Page 16 of 36 LRs. v. Jagdish Kalita and Others, (2004)1 SCC 271, para 21].
30. Yet again in Karnataka Board of Wakf v. Government of India and Others, 2004(2) RCR (Civil) 702 (SC) :
[(2004)10 SCC 779], it was observed :
"....Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show : (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
In view of our findings aforementioned, we are of the opinion that there is no merit in this appeal, which is accordingly dismissed. No costs."
28. Ld. Counsel submitted that in view of the fact that the Ld. Estate Officer was not having jurisdiction, he has not appreciated the case and concern of the appellant(s) herein, no inquiry was conducted as contemplated under section 8 of the Act and the fact that the appellant(s) have become owner by virtue of uninterrupted and continuous adverse possession for the last more than 12 years, the order passed by the Ld. Estate Officer is not sustainable under law. It is prayed that the order of the Ld. Estate Officer be set-aside and the appeal be allowed.
29. Ld. Counsel for the respondent submitted that flat in question was part of the scheme of Delhi Development Authority Page 17 of 36 to construct flats for the weaker section of the society. Since a large number of such flats could not be sold by DDA, the same were offered in bulk to public sector undertakings, including the respondent herein. Respondent purchased 132 flats in total from DDA. There is nothing in the allotment letter or the conveyance deed executed between DDA and the respondent that the flats be given to the employees of the respondent on ownership or hire- purchase basis or otherwise. Nonetheless the respondent allotted the flats to its subordinate staff on 'leave and licence' basis to be vacated on their quitting the job, transfer or superannuation.
30. Ld. Counsel submitted that the flat in question was also allotted to the predecessor of the appellant(s), namely Sh. Shyam Charan, with the explicit condition that:
" 10. You will vacate the flat within 30 days on the happening of any of the following:
a) Resignation / termination / discharge / dismissal and retirement;
b) On permanent transfer from Delhi;
c) On promotion to a higher cadre from subordinate staff;
d) On construction of your house, either through private sources or Government Agency or through the Staff Co-operative Housing Society;
e) Using the flat for any purpose other than the purpose for which it has been given;
f) Acts of waste and committing nuisance;
g) Any breach of condition hereof."
31. Ld. Counsel submitted that as per the terms of allotment of the flat, peaceful possession of the same was to be returned to the respondent by the allottee within 30 (thirty) days of the retirement of the allottee. Sh. Shyam Charan retired from service on 31.12.1990 and expired soon thereafter. However, the appellant(s) herein, in blatant contravention of the terms of Page 18 of 36 allotment, failed to handover the peaceful vacant possession of the flat in question within the stipulated period. Ld. Counsel submitted that as the appellant(s) have failed to deliver the vacant peaceful possession as stipulated hence they are unauthorised occupants as defined under section 2(g) of the Act.
32. Ld. Counsel further submitted that the appellant(s) seek to agitate the issues, which appellant(s) have already agitated before the Hon'ble High Court of Delhi. Two writ petitions bearing numbers 779/1993 and 1151/1993 were filed by the SBI Staff Resident Welfare Association Society (Society) against the respondent claiming the ownership of the flats allotted by the respondent to the members of the petitioner on identical terms as the allotment made to the predecessor of the appellant(s). Both the writ petitions were, however, withdrawn by the petitioner, without liberty to file afresh. Later on the Society again filed WP(C) 1509/2011, which was decided in favour of the petitioner society. The respondent challenged that order before the Division Bench in LPA No. 110/2015 and the order passed in WP(C) was set-aside vide order dated 28.11.2018. The Division Bench while setting aside the order observed that the issue between the parties stood crystallized back in 1990 itself, where both DDA as well as the answering respondent denied the existence of the any right of the allottees to claim ownership over the allotted flats. The operative part of the judgment dated 28.11.2018 reads as under:
"26. Now the second aspect is that whether the letter dated 9th February 2007 is a fresh cause of action or not? It is pertinent to note that in 1993 there has been a complete silence on the part of the Respondent Society. Perhaps the Respondent Society engaged with SBI and explored a possibility of resolving the disputes. The mediation Page 19 of 36 proceedings admittedly resulted in no settlement. With eviction orders having attained finality, the Respondent Society was faced with a difficult situation. The Respondent Society attempted to give another try. They approached this Court by way of a second writ petition and pleaded that a fresh cause of action has arisen in their favour to file the petition. This new cause of action is nothing but a communication between the DDA and SBI that is reproduced above. The said letter is written by an officer of DDA stating that the action of SBI of not allotting the flats on ownership basis is contrary to the scheme. This12 pt communication has to be appreciated in light of the terms of the allotment of flats by DDA to SBI. We have examined the conveyance deed as well as the perpetual lease and find no mention of any such stipulation as is having urged by the Respondent Society. Mr. Vikas Singh has rightly pointed out that DDA's allotment is subject to the condition that there shall not be any transferor allotment of the rights. The letter dated 9th February 2007 surely cannot be considered as a fresh cause of action. The cause of action for the Respondent Society and its members is the refusal on the part of SBI to fulfill its commitment. It is to be noted that refusal on the part of SBI to confer ownership to the allottees is a cause of action which had materialized way back in 1985 or certainly by 8th October 1990, when allegedly the Director DDA wrote as under:
I am directed to inform you that after consultation with our law Dept., Vice Chairman, DDA had decided not to execute conveyance deed in favour of any individual employee occupying these flats unless State Bank of India expressly requests us to do so and surrender the allotment already made in its favour."
27. The stand of the parties i.e. SBI and DDA was clear and it stood crystallized in 1990. DDA as well as SBI denied the Respondent Society's right to claim ownership over the flats. This cause of action cannot be extended or said to have arisen afresh by virtue of the communication dated 9 th February 2007. The subsequent communications averred in the writ petition are of similar nature and do not help the Respondent Society. Respondent Society cannot rely on the letter dated 9th February 2007 to revive the controversy that was laid to rest in 1993.
28. Now we proceed to examine the controversy from another aspect. Let us assume for the sake of argument that the letter dated 9th February 2007 is indeed a fresh cause of action and examine the question of maintainability yet again. If we look at the nature of reliefs in the second writ Page 20 of 36 petition, we would note that once again an attempt is being made by the Respondent Society and its members to seek ownership right of the flats. Respondent Society are praying for a writ of mandamus directing SBI to allot flats in the names of the members of the Respondent Society. Curiously in prayer (b), Respondent Society is seeking the allotment of flats in the name of the persons occupying the flats. This indicates that the original allottees have transferred possession of the flats. The Respondent Society is seeking a declaration that the lease deed of 1986 executed between SBI and DDA is null and void. Respondents also seek release of retirement benefits that have been retained by SBI. These disputed amounts arose on account of overstay of the members of the Respondent Society in the flats in question as unauthorised occupants. This dispute is interlinked with the eviction orders. There is no dispute that the allotment of the flats to the members of the Respondent Society is on leave and licence basis. The question as to whether the allotment of flats is contrary to the actual understanding of the parties is purely a disputed question of fact that cannot be examined in the writ petition. The reliefs sought in the first petition are essentially in the nature of re- writing the contract between the parties. Even if there is some law in favour of the Respondent Society to persuade the Court to grant the reliefs as prayed for, indisputably the remedy is not by way of writ petition. Thus, in sum and substance, this Court is being asked by way of the second writ petition to grant reliefs that are palpably beyond the scope of Article 226 of the Constitution of India."
33. Ld. Counsel submitted that the Supreme Court of India was pleased to refuse to entertain the Special Leave Petition filed by the Society vide order dated 22.04.2019 preferred by the Society and as such the order of the Division Bench of Hon'ble High Court of Delhi dated 28.11.2018 has attained finality.
34. Ld. Counsel further submitted that in view of this position the respondent moved petition no. 26B/19 before the Ld. Estate Officer under Section 4 of the Act. Ld. Estate Officer issued show cause notice dated 30.11.2019 to the appellant(s) under the provisions of Section 4 of the Act to show cause on or Page 21 of 36 before 16.12.2019 as to why the eviction order should not be made and appear before the Estate Officer on 16.12.2019 for personal hearing.
35. Ld. Counsel submitted that the Estate Officer received some identical representations in some matters and he after considering the same passed a reasoned order impugned in this appeal. Ld. Counsel submitted that admittedly the flat in question was allotted by DDA to SBI and conveyance deed in this regard has already been executed by DDA in favour of SBI. Admittedly, there is no stipulation either in the allotment letter or in the Perpetual Lease deed executed by DDA in favour of SBI that SBI would allot theses flats including the flat in dispute to its employees on ownership or hire-purchase basis. It is also admitted that the flat in dispute was allotted to Sh. Shyam Charan by virtue of his employment with SBI on leave and licence basis. As per the stipulation he was required to handover vacant peaceful possession the flat in dispute on certain situations including retirement within thirty days to the respondent herein. He has retired from the services of the respondent on 31.12.1990. He has also expired soon thereafter. Now the appellant herein i.e. the family members of the original allottee have failed to handover the vacant peaceful possession of the flat to the respondent. They are, therefore, unauthorised occupants as defined under section 2(g) of the Act. Ld. Counsel submitted that keeping in view all these facts the Ld. Estate Officer has rightly passed the eviction order. There is no merit in the appeal. It is prayed that the appeal be dismissed and the order of eviction be upheld.
Page 22 of 3636. After hearing arguments and going through the record, I find that the Act provides for the eviction of 'unauthorised occupants' from 'public premises' and for certain incidental matters Section 2(c) defined 'premises' to mean 'any land or any part of a building and to include garden, grounds and outhouses appurtenant to the building or fittings affixed hereto'. The expression 'public premises' has been defined in Section 2(e) of the Act. This definition is in three parts. Sub-clause (1) Clause
(e) takes in premises belonging to, or taken on lease or requisitioned by, or on behalf of, the Central Government, as well as premises placed by that Government under the control of either House of Parliament for providing residential accommodation to the members of the staff of the Secretariat of either House of Parliament. Sub-clause (3) of Clause (e) takes in premises belonging to certain local authorities in the Union Territory of Delhi. Sub-clause (2) of Clause (e) brings in premises belonging to or taken on lease by, or on behalf of, various kinds of bodies, such as, Universities, Institutes of Technology, Board of Trustees of Major Port Trusts and the Bhakra Management Board. It takes in any premises belonging to or taken on lease by, or on behalf of, a Government company or its subsidiary. It also takes in premises of "any corporation (not being a company as defined in Section 3 of the Companies Act, 1956 or a local authority) established by or under Central Act and owned or controlled by the Central Government". There is no dispute that the premises in question in the present appeal is "public premises" within the meaning of the Act.
Page 23 of 3637. It is well settled that this Act applies to the premises of the Bank i.e. State Bank of India as held by the Supreme Court of India in the case titled M/s. Crawford Bayley & Co. v. Union of India & Ors., (2006) 6 SCC 25.
38. Ld. Counsel for the appellant(s), time and again, submitted that the enquiry as per Section 8 of the Act has not been conducted by the Estate Officer. Section 8 of the Act reads as follows:
"8. Powers of estate officers.--
An Estate Officer shall, for the purpose of holding any inquiry under this Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters, namely:--
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) any other matter which may be prescribed."
39. From bare perusal of the Section, it is clear that Section 8 of the Act speaks about the powers of Estate Officer makes certain provisions of the Civil Procedure Code applicable in matters of summoning and enforcing attendance requiring the discovery and production of documents. It nowhere provides how an Estate Officer shall conduct an enquiry.
40. In view of the same, I do not find any merit in this contention that enquiry was to be conducted u/s.8 of the Act. Ld. Counsel for the appellant(s) have submitted that evidence should have been taken by the Estate Officer, which he has not conducted though the appellant(s) moved application u/s.8 of the Act. It is pertinent to mention here that after receiving an Page 24 of 36 application for eviction of an unauthorized applicant, a showcause notice is issued and then the noticee shows cause why he be not evicted and after considering the grounds taken, the Ld. Estate Officer has to pass the orders. Though Section 5 of the Act does not make any classification with respect to the occupants there may be the occupants, who may be trespassers or have breached the condition of tenancy or occupying the premises as a condition of service but continued to occupy the premises despite cessation of service. But, there may be other occupants, who are required to be evicted on some other grounds, which requires proof.
41. In the present case, the occupant was allotted the premises in dispute by virtue of his employment with the respondent. This is an admitted fact. It is also admitted that the original allottee have ceased to be in service due to superannuation and thereafter, he is continuing in the possession. After the death of the original allottee, the successors are continuing in the possession. Therefore, this is a case where all the facts are admitted and, therefore, no evidence is required. Ld. Counsel for the appellant(s) has relied upon the judgment cited as M/s KIC Food Products Pvt. Ltd. (Supra) , but keeping in view the facts of the present case, that judgment is not of any help to the appellant(s) herein. In that case, the issue was with respect to renewal of the license in question for a period of further 10 years after December 2010. It was alleged that it was extended and that there was also noting to that effect on the file. Therefore, the court held that there is requirement of evidence as to whether the license has been extended or not for a further Page 25 of 36 period of 10 year whereas in the present case, there is no such issue. Therefore, I do not find any merit in this contention of Ld. Counsel for the appellant(s) that the Estate Officer should have taken the evidence. In my opinion, particularly when all the facts are admitted that the allottee got the possession of the flat in dispute by virtue of his employment with the respondent and that he has now ceased to be in service. As per the terms of allotment, he was required to hand over the vacant peaceful possession of the flat to the respondent within 30 days after his retirement. Therefore, I do not find any merit in this contention. Reliance in this regard can be placed on the judgment cited as New India Assurance Company Ltd. v. Nusli Neville Wadia, (2008) 3 SCC 279, wherein it was held as follows:
"24. Where an application is filed for eviction of an unauthorized occupant it obligates the Estate Officer to apply his mind so as to enable him to form an opinion that the respondent is a person who has been in unauthorized occupation of the public premises and that he should be evicted. When a notice is issued in terms of Section 4 of the Act, the noticee may show cause. Section 5 of the Act postulates that an order of eviction must be passed only upon consideration of the show cause and any evidence produced by him in support of its case also upon giving him a personal hearing, if any, as provided under clause (ii) of sub-section 2 of Section 4 of the Act.
25. Although Section 5 ex-facie does not make any classification in regard to the two classes of tenancies but the same is evident from the decisions rendered by this Court as also by the different High Courts.
26. The occupants of public premises may be trespassers, or might have breached the conditions of tenancy, or have been occupying the premises as a condition of service, but were continuing to occupy the premises despite cessation of contract of service.
27. However, there may be another class of tenants who are required to be evicted not on any of the grounds mentioned hereinbefore but inter alia on the ground, which requires proof of the fairness and reasonableness on the part of the landlord which may include requirement for its own use and Page 26 of 36 occupation.
28. Furthermore a proceeding may be initiated under Section 4 simplicitor. A composite proceedings may also be initiated both under Sections 4 and 7 of the Act. In the latter category of cases the landlord would be required to establish not only the bona fide need on its part but also quantum of damages to which it may hold to be entitled to, in the event that an order is passed in favour of the establishment.
Xxxxxxxx
50. Except in the first category of cases, as has been noticed by us hereinbefore, Sections 4 and 5 of the Act, in our opinion, may have to be construed differently in view of the decisions rendered by this Court. If the landlord being a State within the meaning of Article 12 of the Constitution of India is required to prove fairness and reasonableness on its part in initiating a proceeding, it is for it to show how its prayer meets the constitutional requirements of Article 14 of the Constitution of India. For proper interpretation not only the basic principles of natural justice have to be borne in mind, but also principles of constitutionalism involved therein. With a view to read the provisions of the Act in a proper and effective manner, we are of the opinion that literal interpretation, if given, may give rise to an anomaly or absurdity which must be avoided. So as to enable a superior court to interpret a statute in a reasonable manner, the court must place itself in the chair of a reasonable legislator/author. So done, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act fulfilled; which in turn would lead the beneficiary under the statutory scheme to fulfill its constitutional obligations as held by the court inter alia in Ashoka Marketing Ltd (supra)."
42. Ld. Counsel for the appellant(s) has vehemently argued that the flats in question were, in fact, developed for the weaker sections of the society by the DDA. These flats were offered to the general public but as there were not many applicants, therefore, these flats were given to the corporations/ organizations like FCI, BSNL, MMTC, LIC & SBI. Ld. Counsel submitted that as per the regulations of 1968 of DDA, these Page 27 of 36 allotments were to be made to their employees by the organizations. FCI, BSNL, MMTC, LIC, etc. have allotted the flats to their employees but SBI, in flagrant violation of the terms of allotment, converted these flats with their staff quarters and allotted the same to their employees as staff quarters. Ld. Counsel submitted that it is in violation of the terms and condition of allotment to SBI and also in violation of the regulations 1968. Ld. Counsel submitted that DDA has written many letters to SBI and also informed the PM Office that they are required to do that, but still the SBI has not considered it.
43. Ld. Counsel has also relied upon the judgment of Surinder Kumar & Ors. (Supra). In my opinion, that judgment is of no help to the appellant(s) as in that case, the appellant(s) approached the authority for allotment being employees of FCI. DDA took the stand that these flats be transferred to FCI, but FCI was not ready for the same and pay further amount. On the other hand, DDA has already received the full payment and they were demanding an additional amount of Rs.66,90,465/- from FCI. Under the circumstances, the court directed that these flats be directly allotted to the employees as DDA has already realised the full amount. In the present case, the flats have already been allotted in the name of SBI but in the case of Surinder Kumar & Ors. (Supra), the flats were not allotted to FCI. In the LPA No. 110/2015 decided on 28.11.2018, it has already been held after considering all the facts observed by the Division Bench of Hon'ble High Court of Delhi as follows:
"26. Now the second aspect is that whether the letter dated 9 th February 2007 is a fresh cause of action or not? It is pertinent to note that in 1993 there has been a complete silence on the part of the Respondent Society. Perhaps the Respondent Society Page 28 of 36 engaged with SBI and explored a possibility of resolving the disputes. The mediation proceedings admittedly resulted in no settlement. With eviction orders having attained finality, the Respondent Society was faced with a difficult situation. The Respondent Society attempted to give another try. They approached this Court by way of a second writ petition and pleaded that a fresh cause of action has arisen in their favour to file the petition. This new cause of action is nothing but a communication between the DDA and SBI that is reproduced above. The said letter is written by an officer of DDA stating that the action of SBI of not allotting the flats on ownership basis is contrary to the scheme. This12 pt communication has to be appreciated in light of the terms of the allotment of flats by DDA to SBI. We have examined the conveyance deed as well as the perpetual lease and find no mention of any such stipulation as is having urged by the Respondent Society. Mr. Vikas Singh has rightly pointed out that DDA's allotment is subject to the condition that there shall not be any transferor allotment of the rights. The letter dated 9th February 2007 surely cannot be considered as a fresh cause of action. The cause of action for the Respondent Society and its members is the refusal on the part of SBI to fulfill its commitment. It is to be noted that refusal on the part of SBI to confer ownership to the allottees is a cause of action which had materialized way back in 1985 or certainly by 8th October 1990, when allegedly the Director DDA wrote as under:
I am directed to inform you that after consultation with our law Dept., Vice Chairman, DDA had decided not to execute conveyance deed in favour of any individual employee occupying these flats unless State Bank of India expressly requests us to do so and surrender the allotment already made in its favour."
44. From this, it is clear that the flats in question have already been allotted to SBI and in the case relied upon by the counsel for the appellant(s), the flats were yet to be allotted and FCI had approached the DDA that these be allotted in the names of their employees, which the DDA refused. The Division Bench has also observed that there is no such stipulation either in the Conveyance Deed or in the Perpetual Lease Deed that SBI would allot these flats to its employees on ownership or higher purchase basis. In fact, the Director, DDA has written a letter on Page 29 of 36 08.10.1999 that it has been decided not to execute the Conveyance Deed in favour of any individual employee occupying these flats unless State Bank of India expressly requests them and surrender the allotment already made in its favour. Keeping in view this judgment, I do not find any merit in this contention that SBI has converted the flats allotted to it for its own use as staff quarters instead of allotting the same to its employees of ownership or higher purchase basis. In fact, there was no such condition in the Conveyance Deed or the allotment letter issued in favour of the SBI i.e. the respondent herein. Ld. Counsel for the appellant(s) has also submitted that the flat in question was allotted by DDA and not by SBI but no such document has been placed on record. Under the circumstances, I do not find any force in this contention.
45. In view of the above discussion, I find that Ld. Estate Officer has rightly held that SBI is the allottee of the flats and that the applicant, who was allotted the flat, is ceased to be an employee and failed to hand over the possession, is, therefore, unauthorized occupant.
46. The Supreme Court in the case Suhas H. Pophale v. Oriental Insurance Co. Ltd., (2014) 4 SCC 657 while discussing the judgment in case of Ashoka Marketing Ltd. & Anr. v. Punjab National Bank & Ors. reported in 1990 (4) SCC 406, has held as follows:
"17. We may refer to the definition of "unauthorised occupation" as provided under Section 2(g) of the Public Premises Act at this stage. It reads as follows:-
"2. Definitions....
(g) "unauthorised occupation", in relation to any Page 30 of 36 public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the 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 reason whatsoever."
As can be seen from this definition, it consists of two parts. In paragraph 30 of the above judgment also, this Court noted that the definition of `unauthorized occupation' in Section 2(g) of the Public Premises Act, was in two parts. The first part of this definition deals with persons who are in occupation of the Public Premises `without authority for such occupation', and the second part deals with those in occupation of public premises, whose authority to occupy the premises `has expired or has been determined for any reason whatsoever'. As stated in paragraph 1 of the judgment, the Constitution Bench was concerned with the second part of the definition. As far as these two parts are concerned, the Court observed in paragraph 30 as follows:-
"30. The definition of the expression 'unauthorised occupation' contained in Section 2(g) of the Public Premises Act is in two parts. In the first part the said expression has been defined to mean the occupation by any person of the public premises without authority for such occupation. It implies occupation by a person who has entered into occupation of any public premises without lawful authority as well as occupation which was permissive at the inception but Kamlesh Tondon v SBI has ceased to be so. The second part of the definition is inclusive in nature and 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 reason whatsoever. This part covers a case where a person had entered into occupation legally under valid authority but who continues in occupation after the authority under which he was put in occupation has expired or has been determined. The words "whether by way of grant or any other mode of transfer" in this part of the definition are wide in amplitude and would cover a lease because lease is a mode of transfer under the Transfer of Property Act. The definition of unauthorised occupation contained in Section 2(g) of the Public Premises Act would therefore, cover a case where a person has entered into occupation of the Page 31 of 36 public premises legally as a tenant under a lease but whose tenancy has expired or has been determined in accordance with law."
47. The Calcutta High Court in the case Javed Mondal v. Union of India, 2001 (2) Cal. L T 476, has held as follows:
"11. A comprehensive procedure has been prescribed under Public Premises (Eviction of Unauthorized Occupants) Act, 1971. Unauthorized occupant has been defined in section 2(g) of the said Act to mean occupation of public premises by any person without any authority and includes the continuance in occupation by any person of the public premises after the authority under which he was allowed to occupy the premises in question has expired. The Estate Officers are empowered to issue show cause notice to the unauthorized occupants as per the provision of section 4 of the said Act and after considering the reply and after personal hearing, if any, the Estate Officer is empowered to take possession of the public premises. He is further empowered to order for payment of rent or damages in respect of premises under the unauthorized occupation as per the provision of section 7 of the said Act."
Keeping in view the above discussion and the settled law, I do not find any reason to differ with the opinion of Ld. Estate Officer on this point.
48. Ld. Counsel has also raised the issue of res judicata during arguments. But, when I asked him as to when this issued was decided and attained finality, Ld. Counsel was not able to point out the same. Hence, I do not find any merit in this contention of the counsel.
49. Appellant(s) have taken the plea of adverse possession of the premises in dispute alleging that they are in adverse possession since 1993 when they filed the writ petition. It is Page 32 of 36 pertinent to mention here that admittedly the premises in dispute was allotted to Sh. Shyam Charan by virtue of his employment with the respondent herein on leave and license basis. This fact clearly shows that the possession of Sh. Shyam Charan was permissive possession. After the death of original allottee his successor is now in possession and his possession is also a permissive possession. There is nothing on record that the appellants or their predecessor in interest declared himself to be the owner to the knowledge of the actual owner that is the respondent herein. It is settled law that unless the person in possession asserts an adverse title to the property in possession that also to the knowledge of the actual owner for a continuous period of twelve years. There is no pleading made before the Estate Officer or before any other authority or in the Writ Petition by the Society that the members of the society have become owners by adverse possession. In fact, it has never been asserted that appellants or their predecessor in interest was in adverse possession except at the time of this appeal. In the absence of any such assertion and evidence brought on file their possession which was a permissive possession as also admitted the same cannot be converted in to adverse possession. Reliance in this regard can be placed on the judgment cited as A.S. Vidyasagar v. S. Karunanandam, (1995) Supp 4 SCC 570 wherein it was held that:
"5. Adverse possession is sought to be established on the supposition that Kanthimathi got possession of the premises as a licensee and on her death in 1948, the appellant who was 4 years of age, must be presumed to have become a trespasser. And if he had remained in trespass for 12 years, the title stood perfected and in any case, a suit to recovery of possession would by then be time-barred. We are unable to appreciate this line of reasoning for it appears to us that there is no occasion to Page 33 of 36 term the possession of Kanthimathi as that of a licensee. The possession was permissive in her hands and remained permissive in the hands of the appellant on his birth, as well as in the hands of his father living then with Kanthimathi. There was no occasion for any such licence to have been terminated. For the view we are taking there was no licence at all. Permissive possession of the appellant could rightfully be terminated at any moment by the rightful owners. The present contesting respondents thus had a right to institute the suit for possession against the appellant. No oral evidence has been referred to us which would go to support the plea of openness, hostility and notoriety which would go to establish adverse possession. On the contrary, the Municipal Tax receipts, Exts. B-39 and 40, even though suggestedly reflecting payment made by the appellant, were in the name of Kuppuswami, the rightful owner. This negates the assertion that at any stage did the appellant assert a hostile title. Even by examining the evidence, at our end, we come to the same view as that of the High Court. The plea of adverse possession thus also fails. As a result fails this appeal. Accordingly, we dismiss the appeal, but without any order as to costs."
50. Supreme Court of India in another case titled as State Bank of Travancore v. Arvindan Kunju Panicker, (1972) 4 SCC 274 has held as follows:
"9. Now coming to the question of adverse possession, there is conclusive evidence to show that the suit property was at all times in the possession of the tenants of the Tharwad referred to earlier. Krishnan Krishnan, Vellu and Kuruvilla at best could have only collected the rent. The evidence in this regard has been discussed in detail by the learned judge of the High Court. It is not necessary to deal with that evidence over again. We accept the conclusion of the learned judge that the suit property was all along in the possession of the tenants. Further as Krishnan Krishnan had only a lien over the property for the amount advanced by him his possession of the suit property which in this case is symbolical, must be held to be a permissive possession. The possession of Vellu and Kuruvilla for the same reason must be held to be permissive possession. A permissive possession cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of true owners for a period of twelve years or more. There is no evidence to show that either Krishnan Krishnan or Vellu or Kuruvilla asserted any hostile title to the suit property to the Page 34 of 36 knowledge of the true owners at any time before the present suit."
51. In view of the law as settled by the Apex Court of the land and the facts of the case as discussed above, I do not find any merit in the contention that the possession of the appellants herein is in adverse possession or that they have become the owners.
52. In view of the above discussion, in my opinion, the possession of the predecessor in interest of the appellant(s) and that of the appellant(s) herein was only permission possession and that permission has also expired as the original allottee has retired from the services of the respondent herein. It is pertinent to mention here that it is not disputed that the original allottee was allotted the premises in dispute by virtue of his employment with the respondent and that he has now superannuated and hence no more in service. As per the terms of the allotment, which were duly accepted he was required to hand over the vacant peaceful possession of the premises in dispute with in 30 (thirty) days from the date of superannuation, which he has not delivered. Therefore, his possession which was earlier permissive possession has now become unauthorized possession as per section 2(g) of the Act. Keeping in view all these facts in my opinion the Ld. Estate Officer was having the jurisdiction to adjudicate the issue and has also rightly passed the eviction order. I do not find any illegality or irregularity in the impugned order. There is no merit in the appeal, same is dismissed. Parties are left to bear their own cost.
Page 35 of 3653. Copy of order be sent to Ld. Estate Officer. Appeal file be consigned to Record Room.
Digitally
signed by
VIRENDER
Announced in the open court VIRENDER KUMAR
today i.e. 31st May, 2024 KUMAR BANSAL
BANSAL Date:
2024.05.31
17:15:59
+0530
(Virender Kumar Bansal)
Principal District & Sessions Judge (NW)
Rohini Courts, Delhi/sb
Page 36 of 36