Delhi District Court
M/S Chawla Hotel vs Delhi Development Authority on 13 August, 2021
IN THE COURT OF MS. SWARANA KANTA SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE, NORTH DISTRICT
ROHINI COURTS : DELHI
CNR No. : DLNT010024902020
PPA No. 06/2020
M/s Chawla Hotel
through Sh. Vinod Chawla
1341, Dr. Mukherjee Nagar
Delhi. ............Appellant
Vs.
1. Delhi Development Authority
through its Chairman
Vikas Sadan, INA
New Delhi.
2. Estate Officer
North Zone, DDA
LSC, LU Block
Pitampura, Delhi.
3. Dy. Director, DDA
Old Scheme Branch
INA Market, Vikas Sadan
New Delhi. ..............Respondent
Date of Institution - 17.03.2021
Date of hearing arguments - 09.08.2021
Date of Judgment - 13.08.2021
Appearance :
Sh. Uttam Singh Negi, learned Counsel for the appellant.
Ms. Ravi Prabha, learned Counsel for the respondents.
PPA No. 06/2020 Page no. 1/19
JUDGMENT (Through video conferencing)
1. By this judgment, I shall dispose of the present appeal filed by the appellant under provisions of 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, against the Order bearing no. EV/EO/LM/NZ/01/2018/219, dated 03.03.2020 whereby the learned Estate Officer, North Zone, DDA, LSC, LU Block, Pitam Pura, Delhi, has passed eviction order in respect of property bearing no. 1341, Mukherjee Nagar, Delhi-110009, thereby directing the appellant herein and other occupants to vacate the said premises within a period of 15 days from the date of order.
2. In brief, the facts of the case are that the above said property was allotted by the respondents/DDA on 12.10.1992 in the name of late Sh. Sant Ram for residential purpose and Sh. Sant Ram had got the said plot built up from Sh. Rama Shanker Khanna s/o Sh. Narayan Dass and after the built up, the ground floor of the said plot had fallen into the share of the said developer who had sold the ground floor portion wise to various persons including the appellant herein. However, due to some complaints received in DDA that the said residential plot was being used for commercial activities, the site inspection was carried out and it was found that a mini shop of size 20'-10' in the name and style of Chawla Fast Flood was running besides there were six other shops running in the premises. Apart from the misuse, the property was PPA No. 06/2020 Page no. 2/19 reported to have been sold out by the lessee to different persons/possessors. Accordingly, show cause notices were issued to the lessee by the respondent/DDA on 17.11.2000, 26.04.2000 and 12.06.2001 which were received back undelievered with remarks 'shifted'. Final show cause notice dated 14.09.2001 was also sent through process server who reported that Smt. Ram Pyari had sold out the property long back. The three storied building was constructed and sold out floor wise & there were 7 shops running in the premises. As the lease was determined by the lesser i.e. Hon'ble LG, DDA cancelled the allotment on 18.01.2002 for violation of Clause-II(3), 5(a) and (13) & (14) thereof on account of misuse/commercial use as the unauthorized occupant of Public Premises on Government Land and commercial use in the form of shops. As per the terms of the policy, rules and regulations the lessee was not entitled to use or permit to be carried on, the residential plot or any building thereon, any trade or business whatsoever or use the same or permit the same to be used for any purpose other than that of residential or do or suffer to be done thereon any act or thing whatsoever which in the opinion of the lessor may be a nuisance, annoyance or disturbance to the lessor and persons living in the neighbourhood.
The original allottee as well as the said developers had applied before the respondents/DDA to get the said property converted from leasehold to freehold. However, in the year 2003, the proceedings under Public Premises Act were initiated by the respondents/DDA in respect of the said PPA No. 06/2020 Page no. 3/19 property on the ground of misuser from residential to commercial. Sh. Sant Ram had expired on 22.11.1995 and after his death, on the basis of documents, the mutation was allowed in the name of his wife Smt. Ram Pyari vide letter dated 18.06.1998 and Smt. Ram Pyari had moved an application dated 10.09.2008 before the respondents/DDA for abetting of ejectment proceedings and for conversion of the property from leasehold to freehold. So far as receiving of summons of ejectment proceedings are concerned, the appellant herein and the other occupants had received notices and were accordingly appeared before the learned Estate Officer, respondents/DDA. After some time, learned Estate Officer had passed eviction order dated 04.01.2016 in respect of the said property thereby directing the appellant herein and other occupants to vacate the same. The appellant herein along with other occupants, had preferred an appeal against the said eviction order dated 04.01.2016 and the said eviction order dated 04.01.2016 was quashed and set aside by the learned ADJ vide Order dated 02.07.2018 due to non-issuance of show cause notices to the occupiers. Thereafter, the respondents/DDA started the fresh eviction proceedings in respect of the said property and accordingly, the learned Estate Officer again passed the eviction order dated 03.03.2020 against Sh. Satish Kumar, M/s Tip Top Mans Parlour, Sh. Vinod Chawla, M/s Chawla Hotel & 1st floor, Sh. Ram Lottan M/s Milan Chhole Bhature, Sh. Prince Mohan M/s Mohan Properties, Sh. Gurdeep Singh M/s Kohli Properties, Sh. Surender Kumar M/s Bittu Dairy & Sh. Ashok Madan i.e. the appellant herein, 2nd & 3rd floors of the said property PPA No. 06/2020 Page no. 4/19 thereby directing the above mentioned occupants to vacate the property within 15 days from the date of the order. It was held by the learned Estate that :
"I have gone through the case and after taking into account all the facts and circumstances of the case, the ground of determination of lease, the views of the Old Scheme Branch, DDA, the contention and statement of the occupiers of the said property, the documents available on record and in view of the fact that more than 18 years have since elapsed after cancellation of lease, which is more than sufficient time for the occupants for getting the lease restored, I am fully satisfied that the lease was never restored. After cancellation of the lease of the plot in question, the occupants or whosoever is in unauthorized use and occupation of the said premises is liable to be evicted".
3. Aggrieved from the impugned order dated 03.03.2020 passed by the learned Estate Officer/North Zone/DDA, the appellant herein has preferred the present appeal on the following grounds contending inter alia :
(a) that the learned Estate Officer has failed to disclose any cause of action for initiating fresh eviction proceedings in respect of the property in question as there was no allegation/report of misuse by the appellant herein;
(b) that the learned Estate Officer has not taken into consideration the fact that the allegation of misuse by the appellant herein pertains to Pre-
Notification Period (prior to 15.09.2006) and that as per the own record of respondents/DDA, the misuse was stopped by the appellant herein and the appellant is paying conversion charges to the MCD till date. Hence, there was no cause of action before the learned Estate Officer to initiate fresh eviction proceedings against the appellant herein as there is no PPA No. 06/2020 Page no. 5/19 misuse at all in the property in question after Notification;
(c) that the learned Estate Officer has not taken into consideration the pendency of the application dated 07.03.2002 moved by the original allottee for restoration of the lease deed;
(d) that the learned Estate Officer has not taken into consideration the fact that the appellant herein had also moved an application on 10.08.2018 for restoration of the lease deed before the respondents/DDA as well as before the Hon'ble LG, but nothing has been done till date;
(e) that the learned Estate Officer has not taken into consideration the pendency of the application moved by the original allottee to the extent of abetment of ejectment proceedings as well as for conversion of the property from leasehold to freehold;
(f) that the learned Estate Officer has passed the impugned order on the basis of original lease deed ignoring the fact that the property in question has already been notified as commercial as per Building Bye Laws and the appellant herein is paying conversion charges to the North, MCD from the year 2008 till date without any delay;
(g) that the learned Estate Officer has not taken into consideration that the respondents/DDA has laid down a process for restoration of determined lease deed vide Public Notice published in daily newspaper "Hindustan Times" dated 09.03.2019 and that appellant herein has duly applied vide application dated 15.04.2019 to avail the benefit of the said scheme and has already completed all the formalities as required by the respondents/DDA, but the said application is also pending;
(g) that the learned Estate Officer/DDA did not issue any notice for stoppage of alleged misuse after issuing of Notification of change of land use;
(h) that the learned Estate Officer has further not taken into consideration the report dated 22.08.2008 submitted by the field staff of the DDA PPA No. 06/2020 Page no. 6/19 admitting therein that the misuse has been stopped by the appellant herein, but despite that the lease deed has not been restored since the year 2002;
(i) that the learned Estate Officer has passed the impugned order despite the fact that the applications of the appellant for restoration of the lease deed is still pending;
4. Learned Counsel for the respondent/DDA did not choose to file any reply to the present appeal and straightaway argued the same.
5. I have heard arguments addressed on behalf of both the parties and have also gone through the entire record carefully.
6. It is argued by the learned Counsel for the appellant that as per the record of the respondents/DDA, the misuse of the property in question was stopped by the appellant herein in the year 2008 and thereafter, the said area was notified as "commercial use" subject to payment of conversion charges. It is further argued that the area where the property in question is situated has already been declared as commercial area as per Delhi Building Bye Laws and the appellant herein including other occupants were allowed to carry out commercial activities therein subject to payment of conversion charges and accordingly, the appellant herein has been paying the conversion charges since the year 2008 as per law.
7. Learned Counsel for the appellant has further argued that there is PPA No. 06/2020 Page no. 7/19 only a noting dated 17.03.2020 by the Officer of the DDA and nowhere is mentioned in the said noting that the restoration application has been dismissed. It is further argued that the wife of the original allottee had applied for restoration of the lease deed in the year 2002 and that the appellant had moved an applications before the respondent/DDA for conversion of the property in question from residential to commercial as a policy matter of Government of India by allowing mix land use of the property in question and also for freehold of the property in question, but no action has been taken by the respondent/DDA. It is further argued that the appellant had again applied for restoration of the lease deed and he has filed on record documents showing that in the year 2008, the appellant was informed by the respondent/DDA that he had to pay about Rs. 33,000/- qua misuse charges for conversion. Therefore, such charges were deposited vide challan no. 10930808 on 02.09.2008. Learned Counsels for the appellant takes his stand that the application for restoration is still pending and the learned Estate Officer without going into the said arguments and evidence produced by the appellant before him and without giving any finding over the same, has passed the impugned order, therefore, the impugned order passed by the learned Estate Officer is bad in law and is liable to be set aside.
8. Learned Counsel for the appellant has further stated that from the Order dated 02.07.2018 passed by the learned ADJ while setting PPA No. 06/2020 Page no. 8/19 quashing and setting aside the earlier eviction order dated 04.01.2016 passed by the learned Estat Officer, it is clear that the fresh show cause notice were be issued as per law. It is further stated that, therefore, the show cause notice was again issued by the respondents/DDA on 09.08.2019 but the same was not in accordance with law as laid down in Section 4 Sub Clause (2) of the PPA Act Rules 1971. He has further stated that the learned Estate Officer was bound by law as per Rules discussed above to mention specifically the grounds in the show cause notice on which notice for eviction was being served upon the appellant. Learned Counsel for the appellant has drawn my attention towards Form A of the above mentioned Rules wherein it is specifically mentioned that the grounds of eviction are to be mentioned which is mandatory as the word used is 'shall'.
9. It is further argued by the learned Counsel for the appellant that no inspection was carried out in the property in question by the respondents/DDA after the year 2018. It is further argued that since mixed land use and use for commercial purpose of the land in question had been allowed in the area in question in the year 2006 as per the Notification of the respondents/DDA, therefore, the inspection was deliberately not carried out by the DDA. It is further stated by the learned Counsel for the appellant that the notice dated 09.01.2019 was never served upon the appellant.
PPA No. 06/2020 Page no. 9/1910. During the course of the arguments, learned Counsel for the appellant has referred to Section 8 of PPA Act, which reads as under :-
"Section 8 in The Public Premises (Eviction of Unauthorized Occupants) Act, 1971 :
8. Power of Estate Officers. --An Estate Officer shall, for the purpose of holding any inquiry under this Act, has the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 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.
11. It is accordingly stated by the learned Counsel for the appellant that the learned Estate Officer has failed to proceed as per Code of Civil Procedure in view of the above mentioned Section of the PPA Act as the learned Estate Officer before passing the impugned order dated 03.03.2020 did not ask the DDA as to whether any restoration application moved by the appellant herein is pending or not. It is further stated that when the application for restoration of the lease deed in respect of the property in quesiton is still pending how can the learned Estate Officer pass the eviction order in respect of the property in question. Learned Estate Officer should have asked the DDA first of all to decide the restoration application, but instead of the doing so, the learned Estate Officer passed the impugned order on the submissions of the officers of the DDA. It is further stated that clearly mentioned in the public notice issued by the DDA in daily newspaper PPA No. 06/2020 Page no. 10/19 "Hindustan Times" dated 09.03.2019 that camps are being organized at Nagrik Suvidha Kendra, DDA at Vikas Sadan, INA, New Delhi- 110023 on 27.03.2019, 05.04.2019 and 24.04.2019 to receive the applications from those who are eligible for restoration accompanied with the relevant documents as prescribed at the website of DDA (www.dda.org.in). It is accordingly stated that the appellant herein had duly applied vide application dated 15.04.2019 to avail the benefit of the said scheme and has already completed all the formalities as required by the respondents/DDA, but the said application is also pending.
12. It is further stated by the learned Counsel for the appellant that since the mixed land use was allowed by the DDA itself in the area where the property in question is situated, the appellant is now authorize to use the property in question commercially and, therefore, the appellant had applied for conversion of the property from residential to commercial and that the appellant had also started depositing the fee towards the same.
13. Learned Counsel for the appellant has relied upon "Hansraj Bateja vs. DDA, WP(C) No. 3631/2008" decided on 29.11.2009 passed by Hon'ble Delhi High Court - Para 28 and para 4 of para 29"
14. On the other hand, it is argued by the learned Counsel for the respondents/DDA that the lease deed of the said property was PPA No. 06/2020 Page no. 11/19 determined and communicated vide letter dated 18.01.2001 and that the Assistant Engineer of the DDA had reported that six shops have been constructed in the said property and the first, second and third floors are being used for residential purposes. Thereafter, Smt. Ram Pyari vide letter dated 08.03.2002 had requested the DDA for restoration of the lease deed and she had also applied for conversion of the said property but the same could not be processed as the said lease deed was already cancelled. It is further argued that as per field staff report dated 01.04.2014, misuse was found in the said property and hence, the case was referred to learned Estate Officer who passed an eviction order dated 04.01.2016 in respect of the said property. However, the said eviction order dated 04.01.2016 was set aside by the learned ADJ due to non-issuance of show cause notice to the occupiers.
15. It is further argued that as per approval of the competent authority, it was decided by the respondent/DDA to start the fresh eviction proceedings in respect of the said property and accordingly, the learned Estate Officer after complying with the orders of the learned ADJ, passed the impugned eviction order dated 03.03.2020 against Sh. Satish Kumar, M/s Tip Top Mans Parlour, Sh. Vinod Chawla, M/s Chawla Hotel & 1st floor, Sh. Ram Lottan M/s Milan Chhole Bhature, Sh. Prince Mohan M/s Mohan Properties, Sh. Gurdeep Singh M/s Kohli Properties, Sh. Surender Kumar M/s Bittu Dairy & Sh. Ashok Madan i.e. the appellant herein, 2 nd & 3rd floors of PPA No. 06/2020 Page no. 12/19 the said property thereby directing the above mentioned occupants to vacate the property within 15 days from the date of the order.
16. It is further argued that the notices were issued to all the occupants on 09.01.2019 for hearing on 30.01.2019 indicating the grounds for initiating eviction proceedings and accordingly, the appellant herein had appeared before the learned Estate Officer on 30.01.2019.
17. Learned Counsel for the respondent/DDA has further argued that there was sub division and misuse in the said property and due to this reason, the lease deed was determined by the respondent/DDA in the year 2002. It is not disputed by the learned Counsel for the respondent/DDA that, in fact, the restoration application was moved, but it is stated that even if the application has been moved by the appellant he is not authorized or competent to move such an application as he was not the original allottee of the property in question. On the other hand, learned Counsel for the appellant stated that the application for restoration of the lease deed was filed by the wife of the original allottee and, therefore, this argument of the learned Counsel for the respondent/DDA is incorrect even as per their own record.
18. Learned Counsel for the respondents/DDA has further stated PPA No. 06/2020 Page no. 13/19 that the notice dated 09.01.2019 was also issued to the appellant and accordingly, the appellant had appeared before the learned Estate Officer on 30.01.2019 on receiving the notice dated 09.01.2019 and the presence of the appellant is duly marked therein. It is further stated that if the appellant did not receive the said notice dated 09.01.2019, as stated by the learned Counsel for the appellant, then as to how he had appeared before the learned Estate Officer on 30.01.2019.
19. It is further stated by the learned Counsel for the respondents/DDA that, in fact, the first show cause notice, after setting aside the order dated 04.01.2016 by the learned ADJ, was issued on 09.01.2019 and whereas the learned Counsel for the appellant submits to the contrary and states that the appellant had never received notice dated 09.01.2019.
20. During course of the arguments, learned Counsel for the respondent/DDA was directed to file on record status report/outcome of the applications moved by the original allottee or by the appellant herein for restoration of the lease deed, but he was not able to produce on record any rejection letter of the restoration application which could show that the applications for conversion or restoration after mix use land was allowed or rejected by the respondent/DDA or not. Learned Counsel for the respondent/DDA, however, has sent on the official e- mail of the Court certain documents which only reveal that there was a PPA No. 06/2020 Page no. 14/19 noting dated 17.03.2020 of the Officer of the DDA regarding the proposal for either rejecting his application or asked him to deposit mix use charges after removing misuse. Learned Counsels for the respondent/DDA have not been able to produce any document to the effect that the applications of the appellant for conversion or restoration or freehold have been rejected or disallowed by the respondents/DDA. Further, it is not dispute by the learned Counsel for the respondent/DDA that the mixed land use has already been allowed by the DDA.
21. After hearing arguments and going through the record of the case, I am of the considered view that the record of the Estate Officer shows that he has consolidated proceedings of various occupants of the property in question whom the show cause notices were served. However, learned Counsel for the appellant has submitted that the appellant has not been afforded due opportunity of hearing or leading the evidence in his support and that the impugned order dated 03.03.2020 does not disclose the proper application of mind as even the defence of the appellant has not been discussed and the order has been passed withiout opportunity of leading evidence.
22. It is an admitted case of the respondents/DDA that the mixed land use in the area where the property in question is situated, has been allowed and it is also not disputed that vide publicity has been given by PPA No. 06/2020 Page no. 15/19 the respondents/DDA for the said Notification dated 15.09.2006 and the general public was notified to move applications and to follow due procedure as suggested by the respondents/DDA for regularization. It is thus clear that the Government had come out with a scheme for regularization of residential area being used for mixed land use and for commercial purposes. In this regard, I have given my careful attention to the said Notification dated 15.09.2006 and application dated 10.09.2008 moved by Smt. Ram Pyari for conversion of the property in question into freehold and for restoration of the lease deed and deposit slip of conversion charges.
23. It is also not disputed by the respondents/DDA that the appellant had applied for conversion of the property in question from residential to commercial/mix land use. A perusal of the impugned order dated 03.03.2020 passed by the learned Estate Officer though mentions the plea taken by the appellant regarding his application being pending for regularlization and payment of damages/conversion charges, but it is merely stated in the order that it was intimated that there is no policy of restoration of lease cancelled for such kind of misuse of residential plot, which has been bifurcated into shops and sold out floor wise. It is also not disputed that the application for regularizartion in view of the Notification of the Government itself has not been rejected as yet as no order in this regard could either be placed on record or pointed out before the Court by the learned Counsel for PPA No. 06/2020 Page no. 16/19 the respondents/DDA despite opportunity given by this Court to place on record such orders. It is, therefore, clear from the record itself that the applications for restoration of the lease deed and conversion of the property in question are still pending before the respondents/DDA and the same have not been finally disposed of. A perusal of the impugned order dated 03.03.2020 passed by the learned Estate Officer further reveals that this submission of the appellant was not dealt with by the learned Estate Officer in detail.
24. A perusal of the record further reveals that the prescribed procedure has not been followed by the learned Estate Officer who was as Quasi Judicial Authority in adjudicating the claims of the parties. Though the opportunity of being heard had been granted to the appellant, the appellant should have been granted opportunity of leading evidence as well to show that he is covered under the regularization scheme/conversion scheme of the Government. The learned Estate Officer should not have acted in a routine manner but as a quasi judicial authority to adjudicate upon the claims of the appellant. The learned Estate Officer has passed the impugned order relying upon the oral submission of an Officer Smt. Indu Bala whose desigation is also not properly mentioned in the impugned order dated 03.03.2021 which reflects lack of independent application of mind by the learned Estate Officer. The impugned order dated 03.03.2020 has been passed without recording any evidence and that too when the applications for PPA No. 06/2020 Page no. 17/19 restoration of lease deed and conversion are still pending. In such circumstances, the Court is constrained to allow the present appeal and consequently, the impugned order dated 03.03.2020 is set aside and the matter is remanded back to the learned Estate Officer to hear the appellant, consider his reply and evidence, if any, and thereafter pass a reasoned order in accordance with law.
25. In view of the above facts, I consider appropriate to remand the present matter back to the learned Estate Officer to unable the appellant to make his submissions and to lead evidence with respect to his defence of being covered the scheme/Notification/publication issued by the Government and respondents/DDA. The appellant is directed to appear before the Estate Officer on 18.08.2021 at 2.00 pm.
26. No further notice shall be required to be issued by the learned Estate Officer to the appellant. The appellant shall also make submission and lead evidence before the learned Estate Officer with regard to his claim for regularisation/restoration of the lease deed on the date fixed. The Officers of the DDA meanwhile shall examine and submit before the learned Estate Officer as to whether the appellant is eligible for regularization as per law. The learned Estate Officer after considering the submissions made, shall endeavour to dispose of the matter preferably within three months. The appellant will not delay the proceedings in any manner.
PPA No. 06/2020 Page no. 18/1927. With these observations, the present appeal stands disposed of. The record of the learned Estate Officer be returned along with copy of this Judgment. Appeal file be consigned to the Record Room.
Digitally signed by SWARANA SWARANA KANTA
Announced through video KANTA SHARMA
Date: 2021.08.13
SHARMA 17:27:37 +0530
conferencing on 13.08.2021 (Swarana Kanta Sharma)
Principal District & Sessions Judge (North)
Rohini Courts, Delhi
PPA No. 06/2020 Page no. 19/19