Delhi District Court
M/S The Pharmacy A Unit Of M/S South Delhi ... vs Estate Officer on 30 January, 2021
THE COURT OF SHRI YASHWANT KUMAR:
PRINCIPAL DISTRICT & SESSIONS JUDGE, SHAHDARA,
KARKARDOOMA COURTS, DELHI
PPA -01/20
M/s The Pharmacy a unit of M/s South Delhi Distributors
through its Prop. Sh. Tanuj Garg
Shop No.1, Shopping Complex
near Casualty Area
Guru Teg Bahadur Hospital
Dilshad Garden, Delhi-110095
...... Appellant
Versus
1. Estate Officer
Room No. 321, Third Floor
Guru Teg Bahadur Hospital
Dilshad Garden, Delhi-110095
2. NCT of Delhi through its Chief Secretary
5, Shamnath Marg, New Delhi
3. The Medical Superintendent
Guru Teg Bahadur Hospital
Dilshad Garden, Delhi-110095
..... Respondents
Date of institution : 11.05.2020
Date of Arguments : 15.01.2021
Date of Judgment : 30.01.2021
JUDGMENT
1. The present appeal was taken up for hearing and for disposal through virtual hearing on Cisco WebEx as well as physical hearing in pursuance of the directions issued by the Hon'ble High Court of Delhi due to pandemic of Covid-19.
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2. Appeal U/s 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, hereafter referred to (hereinafter referred to as 'the said Act') is preferred against the order dated 01.05.2020 passed by Estate Officer, Guru Teg Bahadur Hospital, Dilshad Garden, Delhi, (hereafter referred to as 'the impugned order'), in respect of the portion of shop No. 1, GTBH Shopping Complex, near Casualty Area, Guru Teg Bahadur Hospital, Dilshad Garden, Delhi-110095, (hereafter referred to as 'the premises in question'), whereby the Estate Officer held that the firm / appellant-herein is liable to pay damages for the unauthorized use and occupation of the public premises in question w.e.f. 11.03.2020 upto the date of handing over of its clear, vacant and unencumbered possession to E & G (E-IV) Branch, Room No.326, 3rd floor, Administrative Block, Guru Teg Bahadur Hospital, Dilshad Garden, Delhi and further directed the appellant-herein to vacate the premises within 15 days of the publication of the impugned order dt.01.05.2020.
3. Briefly stated, the facts relevant for the disposal of the appeal are that a license deed was executed on 20.02.2008 between President of India acting through respondent No.3 and the appellant- herein through its proprietor Sh. Tanuj Garg for running a chemist shop at premises in question for a period of three years from 11.03.2008 to 10.03.2011. As per clause 26 of the said license deed, the term of the said license can be renewed for maximum three consecutive terms i.e. from 2011 to 2014, 2014 to 2017 and 2017 to 2020 on similar terms and conditions. The third and final extendable term came to an end on PPA01/20 M/s The Pharmacy, a Unit of M/s SDD Vs. Estate Officer & Ors Page No. 2 of 16 10.03.2020. The appellant submitted a request on 09.01.2020 for further term of three years w.e.f. 11.03.2020 to 10.03.2023, which was denied by the competent authority, GTB Hospital vide letter F. No. 7(8)/1480/E&G/GTBH/2018/6104-6108 dated 09.03.2020. Accordingly, on expiry of the third and final extendable term and rejection of said request for extension of term w.e.f. 11.03.2020 to 10.03.2023, notice under Sub-section (1) and clause (b)(ii) of sub- section (2) of Section 4 of the said Act dt.19.03.2020 was served upon the appellant-herein. Upon the application of the appellant, the Estate Officer granted time upto 16.04.2020 till 04.00 pm, which was further extended upto 27.04.2020 till 03.00 pm with a warning that no further extension of time to file reply shall be granted. The appellant remained unable to file proper reply and the respondent No.1 without hearing the appellant-herein, passed the impugned order dt.01.05.2020.
4. Aggrieved thereof, the appellant has preferred the present appeal on the grounds among others that the respondent No.1/Estate Officer failed to exercise its judicial discretion on the facts and circumstances of the case and acted beyond his jurisdiction. The respondent No.1 has not cared the declared guidelines of lockdown. The respondent No.1 illegally declined to grant further time to file proper reply as well as deprived him from personal hearing causing irreparable loss and injury for no reason. The appellant is in continuous possession of the premises in question and providing 24 hours and 7 days essential services to the indoor and outdoor patients of the hospital along with public at large under the present circumstances PPA01/20 M/s The Pharmacy, a Unit of M/s SDD Vs. Estate Officer & Ors Page No. 3 of 16 when deadly pandemic Covid-19 is in its crucial stage. In the present appeal, the appellant has undertaken to vacate the premises in question within two days just after final allotment of this shop/premises in question is intimated to him by the concerned authorities of the hospital. In the similar circumstances, the Hon'ble High Court of Delhi has passed order accepting the undertaking with regard to shop No. 9, Shopping Complex, near Casualty Area Guru Teg Bahadur Hospital, Dilshad Garden, Delhi-110095. The impugned order is arbitrary decision of the respondent No.1 and causing unnecessary excessive loss of revenue directly to the Government of NCT of Delhi. The appellant has prayed to set aside the impugned order dt. 01.05.2020 and to allow the appellant to continue possession of the premises in question till the final allotment of this shop is intimated to the appellant by the concerned authorities of this hospital and further to accept the undertaking of the appellant to this effect to vacate the shop within two days just after intimated by the authorities of the hospital.
5. The respondent No.1 filed his affidavit to the appeal and denied the allegations of the appellant made in the appeal. The respondent No.1 in the said affidavit stated that after going through the documents/materials on record, he was prima facie of the view that ex licensee is in unauthorized occupation of the premises in question. The respondent No.2 after considering the replies dt.25.03.2020, 04.04.2020, 26.03.2020, 15.04.2020, 27.04.2020 and 30.04.2020 filed by the appellant as well as materials on record was satisfied that the appellant is an unauthorized occupant in view of Section 2(g) of the PPA01/20 M/s The Pharmacy, a Unit of M/s SDD Vs. Estate Officer & Ors Page No. 4 of 16 said Act and passed the impugned order dt.01.05.2020. In para wise reply to the grounds, the respondent No.1 stated that during lockdown period, only the physical movement of persons engaged in non essential services are restricted to maintain social distancing and appellant was also given the option to send his reply through e-mail but he preferred to file the replies in person through his authorized signatory. The appellant has concealed the fact that a Jan Aushadi Outlet (A Unit of Kendriya Bhandar) is located at shop No.8 and is functional at GTB Hospital, which is running under the scheme of PMJAY. The facts and circumstances of the case with regard to shop No.9, Shopping Complex, near Casualty Area, Guru Teg Bahadur Hospital, Dilshad Garden, Delhi-110095 were quite different and are not applicable in the instant case. The respondent No.1 prayed to dismiss the present appeal and not to grant interim relief to the appellant.
6. The appellant-herein filed rejoinder affidavit to the affidavit of the respondent No.1 wherein the appellant has reiterated the averments made in the appeal and denied the averments of the respondent No.1 made in the affidavit of the respondent No.1.
7. I have heard Ld. Counsel for the appellant and Ld. Counsel for respondents and also carefully gone the written arguments filed on behalf of the Ld. Counsel for the appellant and impugned order as well as the materials on record.
8. The Ld. Counsel for the appellant argued that the appellant is regularly paying the enhanced license fee with regard to the premises in question. Even the appellant is paying the highest license fee in PPA01/20 M/s The Pharmacy, a Unit of M/s SDD Vs. Estate Officer & Ors Page No. 5 of 16 comparison to other shops situated in the complex of the said Hospital having similar or more area. The appellant has taken proper legal steps for renewal of license deed within time. The appellant is running chemist shop with the facility/services to provide life saving medicines, injections, vaccines and other surgical and non-surgical items and preference should have been given to him especially during the deadly pandemic corona-19. The Ld. Cousnel for the appellant further argued that the Jan Aushdhi Outlet is not providing such services, which are being provided by the appellant shop. The said Jan Aushdhi Outlet only remains open between 09.00 am to 05.00 pm and also remained closed on gazetted holidays. Whereas, the appellant chemist shop is providing essential services to patients of GTB Hospital as well public at large 24 hours and 7 days without any break. The respondents have not given appropriate opportunity for personal hearing. Being the case of similar circumstances, the order dt.26.09.2019 passed by the Hon'ble High Court of Delhi in W.P. (C) 1037/2019 & CM Appl. 42756/2019 Ishwar Dayal Singh versus Estate Officer GTB Hospital is also applicable in the present case. The appellant also undertook to vacate the premises in question within two days just after final allotment of the said shop is intimated to him by the concerned authorities of the hospital.
9. Ld. Counsel for the respondent argued that the impugned order was not passed arbitrarily but it was passed after going through the documents/materials and all replies dt.25.03.2020, 04.04.2020, 26.03.2020, 15.04.2020, 27.04.2020 and 30.04.2020 filed by the appellant. The appellant was found in an unauthorized occupation in PPA01/20 M/s The Pharmacy, a Unit of M/s SDD Vs. Estate Officer & Ors Page No. 6 of 16 view of Section 2(g) of the said Act. Only the physical movement of persons engaged in non-essential services were restricted to maintain social distancing during lockdown and appellant was given the option to send his reply through e-mail and he chose to file the replies in person through his authorized signatory. A Jan Aushadi Outlet (A Unit of Kendriya Bhandar) is located at shop No.8 and is functional at GTB Hospital, which is running under the scheme of PMJAY. The facts and circumstances of the case with regard to shop No.9 in the same hospital are different and are not applicable in the present case. The appellant is occupying the premises in question for a long time. As per the license deed executed on 20.02.2008, the term of the license can be renewed for maximum three consecutive term and the third and final extendable term came to an end on 10.03.2020 and request of the appellant for further extension is against the terms and conditions of the said license deed. The said request of the appellant was also denied by the GTB Hospital vide letter dt.09.03.2020. The appellant is in unlawful possession of the premises in question and he wants to delay his eviction from the premises in question. Therefore, the appeal is not maintainable and the same may be dismissed.
10. Vide the impugned order dt. 01.05.2020, the Estate Officer was satisfied that the firm M/s The Pharmacy, a unit of M/s South Delhi Distributors (through its Proprietor Sh. Tanuj Garg) is in unauthorized occupation of the premises in question for the reason that on expiry of the third and final extendable term on 10.03.2020, the said firm (appellant-herein) is an unauthorized occupant in view of section 2(g) PPA01/20 M/s The Pharmacy, a Unit of M/s SDD Vs. Estate Officer & Ors Page No. 7 of 16 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. In spite of rejection of the request submitted by the appellant on 09.01.2020 and 15.04.2020 for further extension of the term w.e.f. 11.03.2020 to 10.03.2023 by the Competent Authority, Guru Teg Bahadur Hospital as conveyed vide letter F.No. 7 (S)/1480/E&G/GTBH/2018/6104-6108 dated 09.03.2020 and F.No. 7 (8)/1480/E&G/GTBH/2018/254-258 dated 29.04.2020 issued by AddI. MS (HS-II), GTBH, the firm is still in the continuous occupation of the public premises without authority for such occupation. The appellant failed and neglected to hand over the vacant possession of the public premises / premises in question after the expiry of the third and final extendable term on 10.03.2020 as well as pursuant to above letter dt.09.03.2020. In spite of giving reasonable and adequate opportunity to defend it vide communication dated 31.03.2020, 04.04.2020 & 20.04.2020, the said firm failed to submit any legal basis to justify its occupation of the public premises in question with respect to the cause shown in Notice (Form A) dated 19.03.2020. The Estate Officer further held that the said firm is liable to pay damages for the unauthorized use and occupation of the public premises in question w.e.f 11.03.2020 up to the date of handing over of its clear, vacant and unencumbered possession to E & G (E-IV) Branch, Room No. 326, 3rd Floor, Administrative Block. Guru Teg Bahodur Hospital, Dilshad Garden, Delhi. The Estate Officer in exercise of the powers conferred on him under sub-section (1) of section 5 of the said Act, ordered that the appellant and all other persons who may be in occupation of the said PPA01/20 M/s The Pharmacy, a Unit of M/s SDD Vs. Estate Officer & Ors Page No. 8 of 16 premises or any part thereof to vacate the premises within 15 days of the publication of the said order. In the event of refusal or failure to comply with this order within the period specified above, the said firm / appellant and all other persons, concerned would be liable to be evicted from the said premises, if need be, by use of such force as may be necessary.
11. Perusal of record and also the proceedings of the Estate Officer in the present case reveals that vide letter dt.09.01.2020, the appellant-herein requested the respondent No.3-herein for renewal of the License Deed from 11.03.2020 to 10.03.2023 with regard to the premises in question. In response to the said letter dt.09.01.2020 of the appellant-herein, the A.M.S./H.S.-II from the office of Medical Director, Guru Teg Bahadur Hospital, Govt. of NCT of Delhi sent a letter bearing F.No.7(S)/1480/E&G/GTBH/2018/6104-6108 dated 09.03.2020 to the M/s The Pharmacy a unit of M/s South Delhi Distributors and its Proprietor Sh. Tanuj Garg mentioning that his request is misleading and untenable as the Arbitral Award dt.20.12.2017 allowed the extension to the appellant-herein only upto 10.03.2020, which is third and final extension. The request of the appellant was denied and the appellant was directed to vacate and hand over the possession of the premises in question to the authorities of GTB Hospital, Delhi. The appellant sent a letter / reply dt.26.03.2020 regarding notice Form A dt.19.03.2020 and sought four weeks time to file reply and personal hearing. Respondent No.1 sent a letter No.F.No.PA/Estate Officer/GTBH/2020/6626 dt. 31.03.2020 to the PPA01/20 M/s The Pharmacy, a Unit of M/s SDD Vs. Estate Officer & Ors Page No. 9 of 16 appellant mentioning that no reply or evidence was received and further gave five days time to the appellant to submit its representation. The said letter also contains the email address of the respondent No.2 for sending representation by the appellant. The appellant-herein sent a letter dt. 04.04.2020 to the Estate Officer/respondent No.1-herein and sought at least four weeks time period on the grounds of norms of lockdown and in the interest of justice and also the fact that the appellant is the only chemist shop providing 24 hours 7 days continuously service under the crucial circumstances of Pandemic of Covid-19. Again letter/notice dt.04.04.2020 was sent to the appellant by respondent No.1/Estate Officer mentioning that no reply or evidence was received and while taking lenient view, time was granted for show cause on or before 16.04.2020 till 04.00 pm. In the said letter dt.04.04.2020, email IDs of the Estate Officer / respondent No.2 was also provided and it was also clarified that no further extension of time to file the reply shall be granted.
12. Vide letter No.F(8)/15563/E&G/GTBH/2020/421 dt.07.04.2020 the AMS(HS-II/Estate) informed the Estate Officer/respondent No.1 that Ex-Licensee filed a CS No.342/2020 titled M/s South Delhi Distributors vs. Govt of NCT of Delhi & Ors. in the court of Ms. Aditi Garg, ASCJ, Karkardooma Courts, Delhi. Further, as enquired with the Ld. Govt. Counsel, Sh. Ashish Sharma who is defending the said case on behalf of the Government, there is no stay granted to the Petitioner. Vide letter No. No.F7/1480/E&G/GTBH/2018/34-37 dt.07.04.2020, the AMS(HS- PPA01/20 M/s The Pharmacy, a Unit of M/s SDD Vs. Estate Officer & Ors Page No. 10 of 16 II/Estate) also informed the appellant and its proprietor Mr. Tanuj Garg that there is no contract between both the parties after 10.03.2020(midnight) and requested to receive back / collect the demand draft bearing No.015848 dt.07.03.2020 drawn on Axis Bank Ltd. in original from the Estate Branch. The appellant sent a letter dt. 15.04.2020 to the Estate Officer/respondent No.1 stating that his counsel is out of station and stuck there due to lockdown and on the ground of lockdown and absence of counsel, requested to grant at least four weeks further period to file detailed reply and evidence. The respondent No.1/Estate Officer vide letter No.F.No.PA/Estate Officer/GTBH/2020/218 dt.20.04.2020 intimated the appellant-herein that non-availability of counsel is not a sufficient ground for seeking additional time. The said letter dt.20.04.2020 further mentions that "In your letter dated 25.03.2020, you had not mentioned that your Counsel is out of station. Further, it has been observed that your Ld. Counsel attended the court on 20.03.2020 with respect to civil Suit No. 342/2020 titled as M/s South Delhi Distributors versus Govt. of NCT of Delhi. It therefore appears quite surprising that your Ld. Counsel left the station in such a situation when due to outbreak of Covid-19 the Government had issued instructions to follow social distancing and avoid unnecessary travel and now he could not be contacted by you". The said letter dt.20.04.2020 also mentions that the appellant had the option to send his reply at the given email of the Estate Officer/respondent No.1-herein. No stay order was granted by the Ld. Addl. Senior Civil Judge, KKD Courts, Delhi as per letter PPA01/20 M/s The Pharmacy, a Unit of M/s SDD Vs. Estate Officer & Ors Page No. 11 of 16 dt.07.04.2020 of the Additional Medical Superintendent (HS-II/Estate) GTB. The said letter dt.20.04.2020 further mentions that the appellant- herein had already been granted sufficient time to show any legal basis to justify the occupation of the shop in question. The appellant was granted final opportunity to show cause on or before 27.04.2020 till 03.00 pm why such an order of eviction should not be made. Email IDs of the respondent No.1/Estate Officer was also given to the appellant in the said letter dt.20.04.2020.
13. As per proceeding dt.23.04.2020 of the Estate Officer, placed at page No. 54/C in the Estate Officer file, it was informed that the court of Ld. Addl. Senior Civil Judge, Karkardooma Courts, Delhi has not granted stay to the petitioner in the civil suit and copy of the said petition was filed. The appellant-herein submitted reply dt.27.04.2020 with reference to notice dt.20.04.2020 wherein the appellant-herein stated that his counsel is out of station due to strict lockdown and the appellant chemist shop is the only chemist shop within the complex of Guru Teg Bahadur Hospital, Shahdara, Delhi providing 24 hours and 7 days continuously essential services to the indoor and outdoor patients of the hospital along with public at large under the crucial circumstances when Pandemic of Covid-19 is in its critical stage. Further, vide clause No. 32 of the earlier License Deed duly executed between the parties, Pharmacy unit of M/S South Delhi Distributors has preferential right to seek further renewal of the License Deed with regard to this shop from the Medical Superintendent. Vide Clause 33 of the earlier License Deed, if there is any dispute with PPA01/20 M/s The Pharmacy, a Unit of M/s SDD Vs. Estate Officer & Ors Page No. 12 of 16 regard to this shop, it shall be referred to Hon'ble Lt. Governor of NCT of Delhi for further necessary actions. Estate Officer solely is not empowered to overrule the rights of the aggrieved party to seek proper remedy under the provisions of The Arbitration and Conciliation Act. In the said reply dt.27.04.2020, the appellant-herein stated that a civil suit No. 342/20 titled as M/s South Delhi Distributors Versus Govt. of NCT of Delhi and another is pending before the court of Ms. Aditi Garg, Ld. Addl. Sr. Civil Judge, Karkardooma Courts, Delhi and the dispute regarding the said shop is sub-judice. However, the appellant- herein in the said reply dt.27.04.2020 prayed that on account of non- availability of his counsel due to strict lockdown, at least four weeks time may be granted to him to file detailed reply along with evidence. Thereafter, notice/letter dt.29.04.2020 was issued to the appellant intimating him that the appellant firm has already availed the opportunity for appointment of Arbitrator as provided in clause 33 of the license deed dated 20.02.2008 and in the arbitral award dated 20.12.2017, the Ld. Arbitrator had granted the appellant-firm the last & final term of the three years w.e.f. 11.03.2017 to 10.03.2020. It was also mentioned that in civil Suit No. 342/2020 titled as M/s South Delhi Distributors versus Govt. of NCT of Delhi, the Court did not pass prohibitory order restraining the Estate officer to proceed under the Public Premises (Eviction of unauthorized Occupants) Act, 1971. Vide the said letter/notice, the appellant was further intimated that no further extension of time can be granted to appellant to show cause on the grounds specified in notice (Form-A) dt.19.03.2020.
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14. As per clause 26 of the said license deed, in case the licensee seeks further extension of the license after the expiry of term of this license, it shall be renewed further upon the similar terms and conditions but not more than three consecutive terms. The appellant sought time for defending his case before the Estate Officer. The Email IDs of the respondent No.1/Estate Officer was also provided to the appellant for filing his reply through email during lockdown period but he opted to file the replies in person through his authorized signatory. However, on the request of the appellant, several opportunities were already availed by the appellant before the Estate Officer for defending his case but he failed to justify occupation of the premises in question. Finally, the impugned order dt.01.05.2020 to evict the appellant for unauthorized occupation of the premises in question by the appellant was passed by the Estate Officer. The appellant sent a reply dt.27.04.2020 with reference to notice dt.20.04.2020 wherein he took the defence / objections regarding clause No. 32 and 33 of the earlier license deed and that dispute regarding the premises in question is sub- judice and also sought four weeks time period considering the lockdown guidelines. The said reply was considered by the Estate Officer in the letter dt.29.04.2020, placed at page No.86/C of Estate Officer proceedings and thereafter the impugned order dt.01.05.2020 was passed by the Estate Officer. Meaning thereby, the appellant was given sufficient opportunities to defend his case before the Estate Officer but he failed to prove his case before the Estate Officer. The appellant has also filed an application for accepting his undertaking in PPA01/20 M/s The Pharmacy, a Unit of M/s SDD Vs. Estate Officer & Ors Page No. 14 of 16 terms of the order dt. 26.09.2019 in WP(C) 10357/2019 & CM Appl.42756/2019 titled Ishwar Dayal Singh Versus Estate Officer GTB Hospital and another. It is pertinent to mention here that the order passed by Hon'ble High Court of Delhi with regard to shop No.9, Shopping Cmoplex, near Casualty Area, Guru Teg Bahadur Hospital, Dilshad Garde, Delhi, relates to some other case and it is not applicable to the facts and circumstances of the present case. Ld. Counsel for the parties have also stated that there is no stay order to the proceedings of this case by the Hon'ble High Court of Delhi.
15. In view of the above facts & circumstances of the case and discussion made above, I am of the considered opinion that there is no dispute regarding execution of said license deed for running a chemist shop at premises in question. The appellant requested to extend the term of three years w.e.f. 11.03.2020 to 10.03.2023. As per clause 4 of the said license deed, the Medical Superintendent will have the absolute power to terminate the license of the shop without assigning any reasons whatsoever. The plea of humanitarian ground taken by the appellant is not tenable since the respondents have followed and taken the steps as per due process of law. As per the terms and conditions of the license deed, extension of three consecutive period is already over. No legal basis produced / shown before the Estate Officer for occupation of the premises in question by the appellant even after the extension of time and period given by the respondent. The respondent No.1/Estate Officer has already exercised its judicial discretion within his jurisdiction. The appellant is in continuous unauthorized possession PPA01/20 M/s The Pharmacy, a Unit of M/s SDD Vs. Estate Officer & Ors Page No. 15 of 16 of the premises in question. The appellant has not been allowed to give undertaking by the respondent as per the terms and conditions of the last license deed and also the rules and procedure to vacate the premises in question within two days just after final allotment of this shop/premises in question is intimated to him by the concerned authorities of the hospital. The appellant is not supposed to take justification of only chemist shop in the said Hospital. The appellant has to go by the terms and conditions of the license deed, which have already been considered and the appellant has already taken the extension of time as discussed above. Therefore, I do not find any infirmity or illegality in the impugned order dt. 01.05.2020 passed by the Estate Officer qua the unauthorized occupation. Accordingly, this appeal is dismissed. The Estate Officer record along with the copy of this order be sent back to the Estate Officer and thereafter the present appeal file be consigned to record room.
Digitally signed by YASHWANT YASHWANT KUMAR
KUMAR Date: 2021.01.30
Announced through 20:08:12 +0530
virtual hearing during (YASHWANT KUMAR)
pandemic of Covid-19 Principal District & Sessions Judge
on 30th day of January 2021 Shahdara, KKD Courts, Delhi
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