Delhi District Court
Shri Bhairon Ji Mandir Samiti (Regd.) vs Union Of India on 8 March, 2007
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IN THE COURT OF SHRI SANATAN PRASAD
SR. CIVIL JUDGE: DELHI
In re:
Suits Nos. (1) 1135/06/98 (Old no.429/98)
(2) 1146/06/98 (old no.424/98)
In the matter of: - Suit No.1135/06
Shri Bhairon Ji Mandir Samiti (Regd.),
Through its President
Shri Dharam Bir Khattar,
S/o Shri Hari Chand,
Plot no.1, East Patel Nagar Insitutional Area,
New Delhi-110008.
...Plaintiff
Versus
1. Union of India,
Through its Secretary,
Govt. of India,
Ministry of Urban Development Affairs,
Nirman Bhawan, New Delhi.
2. Lt. Governor,
2
Vice-Chairman
Delhi Development Authority,
Raj Niwas,
Delhi.
3. Delhi Development Authority,
Through Its Secretary,
Vikas Sadan, INA,
New Delhi.
4. Mrs. Asma Manzir,
Joint Director (Inst)
Delhi Development Authority,
Vikas Sadan, INA,
New Delhi.
...Defendants
Date of Institution : 07.09.1998
Date of Decision : 08.03.2007
AND ALSO;
In the matter of: Suit no.1146/06
Hari Chand Prakash Wanti Charitable
Memorial Trust (Regd.)
through its secretary,
Shri Devraj Khattar S/o Shri Hari Chand
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2, Siri Fort Institutional Area, New Delhi ... Plaintiff
Versus
1. Union of India,
Through its Secretary,
Govt. of India,
Ministry of Urban Development Affairs,
Nirman Bhawan, New Delhi.
2. Lt. Governor,
Vice-Chairman,
Delhi Development Authority,
Raj Niwas,
Delhi.
3. Delhi Development Authority,
Through Its Secretary,
Vikas Sadan, INA,
New Delhi.
4. Mrs. Asma Manzir,
Joint Director (Inst)
Delhi Development Authority,
Vikas Sadan, INA,
New Delhi.
...Defendants
Date of Institution : 04.09.1998
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Date of Decision : 08.03.2007
Suit for declaration that the lease in respect of the plaintiff's plot
no.1, East Patel Nagar Institutional Area, New Delhi-110008,
subsists and that the cancellation order of the lessor conveyed
through Joint Director (Inst.) DDA vide her letter dated
02.09.1998 is absolutely illegal and perpetual injunction
restraining the defendants from taking over forcible possession of
the above mentioned property without due process of law and the
mandatory injunction directing the defendants not to interfere in
any manner in the enjoyment of the said property by the plaintiff,
in Suit No.1135/98/06.
AND ALSO:
Suit for declaration that the lease in respect of the plaintiff's
property no.2, Siri Fort Institutional Area, subsists and that the
cancellation order of the lessor conveyed through Joint Director
(Inst.) DDA, vide her letter dated 02.09.98 is absolutely illegal,
and perpetual injunction restraining the defendants from taking
over forcible possession of the above mentioned property without
due process of law, and the mandatory injunction directing the
defendants not to interfere in any manner in the enjoyment of the
said property by the plaintiff, in suit no.1146/06/98
Present: Shri N.N. Aggarwal counsel for the plaintiffs
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Shri K.D. Sharma counsel for defendants no.2 to 4 in Suit
No.1135/06/98
Ms. Githa A. Kumar counsel for defendants in suit
No.1146/06/98
JUDGMENT
By this common judgment, two suits bearing no.1135/06/98, titled as Shri Bhairon Ji Mandir Samiti (Regd.) Vs. Union of India and others and suit no.1146/06/98 titled, as Hari Chand Prakash Wanti Charitable Memorial Trust (Regd.) Vs. Union of India and others are being disposed of as the facts and circumstances of these two cases are more or less similar, except some minor variations here and there and disposal of them by a common judgment is not only desirable but also necessary as both these suits are time bound cases under the orders of the Hon'ble High Court, dated 01.09.2006, and the facts of both the cases are so similar that decision in one case has revealing effect about 6 the other case and therefore, it is also proper that both the cases are decided by one common judgment only, which is at the same time, convenient and time saving also.
Briefly stated, the facts of these two suits are that the plaintiffs, being the charitable trusts/mandir/temples/religious bodies, registered under the Societies Registration Act, 1960, were allotted vacant pieces/plots of lands for the purposes of raising construction and running temples/mandir/dharamshalas/religious institutions, under a scheme, promulgated by the President of India, known as the scheme of Large Scale Acquisition, Development and Disposal of Lands in Delhi, and the facts and circumstances of both the suits are similar to a large extent, except for the minor variations, as being herein specified, and so far suit no.1135/06 is concerned the case of the plaintiff is that it was allotted a plot bearing no.1, East Patel Nagar, 7 Institutional Area, (near Kalindi College), New Delhi-110008, measuring about 600Sq.Mts. for a consideration of Rs.1,18,606.40p., vide registered perpetual lease deed dated 17.01.1986, under the Government's Grant Act, (Act XV of 1895), as per clause 9 of the lease deed and the plaintiff constructed building thereon, and installed idols of Shri Bhairon Baba as the presiding deity and also of Ram-Sita, with Shri Hanumanji. It is also pleaded that the construction was raised in accordance with the approved/sanctioned building plan and the plaintiff was using the above mentioned plot for the purpose of running temple and dharamsala and there was no nuisance or disturbance to any of the residents/neighbours of the area by the plaintiff's construction of temple and dharamshala and the plaintiff was not at all misuser of the property in suit, in contravention of any of the terms of the lease, similarly in suit no.1146/06, the vacant piece of land allotted to the plaintiff is property no.2, Siri Fort, Institutional 8 Area, measuring about 0.452 acres, for a consideration of Rs.2,71,500/- to the DDA, vide perpetual lease deed dated 05.10.1984 for constructing a building thereupon and to run it to for and further religious purposes and after getting the building plan sanctioned from DDA, with the approval of Delhi Urban Art Commissioner, the plaintiff constructed a building thereon for the purposes of temple and dharamshala as provided in the perpetual lease and since 1st June, 1998, idol of Sai Baba, as the presiding deity was installed therein. It has also been pleaded that a notice dated 17.06.1998, purported to be the ''final show cause notice'' was served on the plaintiffs in both the suits, which was issued by the defendant no.4 and prior to the above said notice, no notice was either issued or served upon the plaintiff, however, the said notice in suit no.1135/06 contained allegation regarding misuser of the land in question and it was alleged that it was found at the time of inspection of the said land by the concerned 9 officer, on 11.06.1998, that the plaintiff was running a hotel, having 35 rooms with the facilities of AC, TV and attached toilets, contrary to the terms and conditions of the lease and it was also stated that by virtue of the covenants of the perpetual lease deed in question the plaintiff could not run, without the written consent of the lessor, or carry or permit to be carried on any trade or business whatsoever or use the same or permit the same to be used for any purpose other than that of temple or otherwise do or suffer to be done thereon any act or whatsoever, which in the opinion of the lessor might be nuisance or disturbance to the lessor or persons living in the neighbourhood and the plaintiffs, in both the suits, were directed to show cause within seven days from the date of receipt of the notice, failing which the allotment was to be cancelled alongwith determination of the lease under the relevant clauses of the conditions of the lease deeds and the possession of the land, building and fixtures thereon will be taken 10 without any compensation whatsoever, besides, forfeiture of the premium deposited for the plot. The number of rooms are stated to be 49 in case of suit no.1146/06 and it is also alleged in the notice dated 17.06.1998, in this case, that a big banquet hall was also being run by the plaintiff at the property constructed at 2, Siri Fort Institutional Area, and at the front of the hotel sufficient place has been rented to the IDBI and that too, in contravention of the terms and conditions of the lease.
The plaintiffs had sent reply dated 29.06.1998, denying the allegations of the defendant and it has also been pleaded that notice dated 17.06.1998 was received by the plaintiff only on 22.06.1998. It is also further pleaded that plaintiff had not put the premises in question to any use other than the use prescribed under the terms and conditions of the lease deed and the space was let out to IDBI, only 11 after obtaining written consent dated 07.05.1997 of the lessor/DDA and 25% of the monthly rent amounting to Rs.2,12,500/- was being deposited with the DDA. It has been further pleaded that plaintiff was not aware of any inspection carried on by the DDA on 11.06.1998, and the building was being used purely for the Dharamshala and tourists and pilgrims of Chardham and other holy places, besides, use by the local residents for their day today functions at a very cheaper rates, i.e. no profit no loss. It is also pleaded that no Banquet Hall was being run and further contended that provisions of ACs and TVs in Dharamshala was prevalent in other types of Dharamshalas/Temples, such as ISKON. It is further requested by the plaintiff/(s) that if such provisions were against any clause/provisions/rules etc. then the same could be intimated to the plaintiff/(s) who have pleaded, itself to be ready to remove the same to comply with such rules and again, if the defendants felt necessary, the plaintiffs were ready to get the building 12 re-inspected at the appointed day and time.
In suit no.1135/06, the plaintiff, vide its reply dated 29.06.1998, has pleaded that notice dated 17.06.1998 was received only on 21.06.1998. Further, similar pleas were taken, besides, claiming that the lease of building was for ''Religious purposes'' and the plaintiff had applied for allotment of the land for Mandir as well as Dharamshala and word ''Religious purposes'' could very well include a Dharamshala also in its ambit. It is also claimed that terms of the lease deed in the case did not prohibit running of Dharamshala or provisions of excellent facilities to the pilgrims or guest. It has been, further, pleaded that defendants, thereafter, issued orders dated 02.09.1998, thereby cancelling the leases which were absolutely illegal and against the terms and conditions of the lease deed. Thus, in both these suits, the plaintiffs have prayed for grant of decree of declaration to the 13 effect that show cause notices and cancellation orders in question issued by defendant no.4 are absolutely illegal and against the terms and conditions of the lease deed and that the plaintiffs continue to be the lawful owners of the properties in dispute; decrees of perpetual injunctions restraining, the defendants, their servants, agents, etc. to take over forcible possession of the suit properties and directing the defendants not to interfere in the enjoyment of the leasehold rights of the plaintiff in the above said properties by way of grants of decrees of mandatory injunctions in favour of the plaintiff/(s) and against the defendants is also prayed for in both the suits.
The defendants nos.2, 3 & 4 filed their written statement in suit no.1135/06, raising therein preliminary objections that the present suits were not maintainable as proceedings under Public Premises (Eviction of Unauthorised Occupants) Act, 1971, has already been 14 initiated against the plaintiff/(s); suit was liable to be dismissed as no notice u/s 53-B, DDA, Act was served upon the defendants and that the lease/(s) in respect of the plots in question were rightly cancelled, on account of misuser of the same by the plaintiff. On merits, it has been submitted that the buildings on the plots in question had not been constructed for the purposes of Temple and Dharamshala and instead the plaintiffs from the very beginning were determined to run commercial hotels by obtaining allotment of land at concessional rates. It has been denied that there was any temple on the suit land and any religious activities were taking place therein, nor there was any dharamshala and that the installation of idols Sain Baba or Bhaironji, Ram-Sita does not prove that the buildings were being used for the purposes for which the plots in question had been allotted to the plaintiffs by the defendants and there were rooms, provided with Acs and TVs facilities and also attached toilets, therewith and thus a 15 luxurious hotel was being run in the buildings.
It has been further submitted that a part of the suit property, in suit no.1146/06, i.e. plot no.2, Siri Fort Institutional Area, had been sub-let to IDBI Bank, with permission of defendants but the remaining part was being used as a hotel with 49 AC Rooms with other modern facilities and a Banquet Hall in the basement under the name of Hari Prakash, without obtaining any consent of the lessor and in contravention of the terms and conditions of the lease deed and that the defendants at the time of inspection of this premises had obtained the tariff card and menu card of the said hotel 'Hari Prakash'. The show-cause notices and cancellation orders in respect of the suit properties were legal and justified and after determination of the lease the plaintiff was required to handover the possession of the properties to the defendants as provided in the lease deeds but they failed to do 16 so. It has been denied that the defendants, at any time, had threatened to take forcible possession of the suit properties. Proceedings under Public Premises (Eviction of Unauthorised Occupants) Act, 1971, have already been initiated against them, as they have become unauthorised occupants in respect of the suit properties. The suits were false and frivolous and deserve to be dismissed with costs. However, it is to be noted that in the suit no.1146/06 the written statement has been filed only on behalf of the defendants no. 3 & 4 and not on behalf of defendant no.2.
The plaintiffs by filing the replications, reaffirmed their own pleadings and controverted the submissions made by the defendants.
On the pleadings of the parties, following issues were framed vide order dated 07.11.2006, in both the cases:-
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1. Whether the plaintiff is entitled for the relief of declaration as claimed in the prayer clause a) of the plaint? OPP
2. Whether the plaintiff is entitled for the decree of injunction in Public Premises Act as claimed in the prayer clause b) of the plaint?OPP
3. Whether the suit is bad for want of notice under section 53-b of the PP Act, if so, its effect?OPD
4. Whether the jurisdiction of this court is barred under the provisions of PP Act, 1971?OPD
5. Whether the suit is under valued for the purpose of court fees and jurisdiction?OPD
6. Relief The plaintiff in suit no.1146/06 examined its President Sh.
Rajesh Khattar as PW.1, by way of his affidavit, wherein he proved the 18 copy of registration certificate and memorandum of the plaintiff/society as Ex.PW.1/1 and PW.1/2 respectively, copy of the perpetual lease deed and site plan in respect of the suit property as Ex.PW.1/3 and Ex. PW1/4. He reiterated the entire facts as pleaded in the plaint. He deposed that after getting the building plan sanctioned from DDA, plaintiff constructed a building for purposes of Temple & Dharamshala as provided in the lease deed and DDA had also granted forms 'C' and 'D' under its building bye laws and issued occupancy certificate on 25.8.88. Since 1993, the idols of Shree Sai Baba and other gods and goddesses have been installed and the said building is being used only for the purpose of temple and dharamshala and that the plaintiff at no time contravened the terms of the lease. He further testified that plaintiff had got exemption u/s 80G, of Income Tax Act, vide various orders, copies of which have been proved on record as Ex.PW1/5 to Ex.PW1/7 and its balance sheets for different 19 years as Ex.PW1/8 and Ex.PW1/11 to Ex.PW1/17, the consent letter of DDA in respect of letting out of part of the premises to IDBI Bank has been proved on record as Ex.PW1/9, notice served upon the plaintiff by the defendants is Ex.PW1/10, reply and letter etc. sent by plaintiff to defendants are Ex.PW1/18, and Ex.PW1/19, copy of order of defendants as Ex.PW1/20 and photographs of the mandir on the suit premises have been placed on record as Ex.PW1/21 and Ex.PW1/22. He further stated that no inspection was ever carried out by the defendants of the suit premises and they had illegally and in violation of the settled law had commenced proceedings under the Public Premises Act, resulting in cancellation of the lease and against this order of the Estate Officer, the plaintiff had filed a CWP, no.7016/03 under article 226, of the Constitution of India in which, the order dt.06-08-2003 of the Estate Officer was stayed and premises in question were ordered to be de-sealed, vide order dt.04-11-2003 of 20 Hon'ble High Court. Certified copy of the said order is Ex.PW1/23. This witness was cross examined at length on behalf of defendants, wherein also he maintained that the suit premises were being used only for the prescribed purpose for which the lease was allotted and not for any other purpose whatsoever.
There is testimony of PW2 Shri Laxman Singh, UDC from Office of Registrar of Societies. He proved certified copy of the Registration Certificate and Memorandum of Rules and Regulations in respect of Bhaironji temple (plaintiff in suit no.1135/06).
PW3 Shri Vijaydutt Sharma proved certified copies of the newspaper (Times of India) cuttings pertaining to the suit property as Ex.PW3/1 and Ex.PW3/2.
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In suit no.1135/06, evidence of plaintiff's president Shri Ashok Khattar has been led by way of an affidavit Ex.PW1/A, wherein he made similar statement as pleaded in the plaint and proved the relevant documents as Ex.PW1/1 to Ex.PW1/33 and the purpose of building constructed is stated for religious purposes only.
On the contrary, defendants have examined Shri Kailash Chander, Assistant Director (IL) DDA by way of his affidavit whereby he has testified on the same footing as submitted in the WS. He deposed that the premises in question were being misused by the plaintiffs in violation of the terms and conditions of the lease deeds and were not being used for the purposes they were allotted for and thus, notices Ex.DW1/2, were issued to them and after considering the replies of the plaintiffs, the lease deeds were determined, vide cancellation orders dt.02-09-1998.
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I have carefully heard exhaustive arguments, addressed by the learned counsel for the parties and also perused the written arguments filed by the plaintiff and it appears that defendant has submitted a copy of decision/order, dated 25.01.2007, in suit no.654/04/03, passed by the learned court of Shri Paramjeet Singh, ADJ, Delhi, and Shri K.D. Sharma, learned counsel for defendants in suit no.1135/06 has contended that a similar matter was dismissed by the order of Shri Paramjeet Singh, Ld. ADJ, Delhi, which is under reference, however, that order can hardly be of any binding effect to this court and moreover, after a perusal of the decision, I am convinced that the facts and circumstances of that case were not similar or identical to the facts and circumstances of the present case/(s). Learned counsel for the plaintiff, has started the arguments on the premises that the proceedings pending before the Hon'ble High Court in the form of writ 23 petition is qua and against the proceedings initiated under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, and for a relief to be obtained by a ruling that provisions of Public Premises (Eviction of Unauthorised Occupants) Act,1971, are not applicable to the buildings involved in these two suits, on the other hand, the proceedings initiated before this court are for the grant of relief that the lease deeds in question were terminated wrongly and therefore, plaintiffs were entitled for a decree of declaration and permanent injunction as claimed in both the suits. Learned counsel has further, submitted that he would address exhaustive arguments to show that the defendant had no case either in law or on facts and for that he has contended that he would show that even the notices issued by the defendants were not in accordance with the provisions/covenants of the lease deed/(s) in question and further they were in contravention of the Government's Grants Act, (Act XV of 1895) and he has 24 submitted that there were two types of breaches provided for in the lease deed/(s) in question and in case of compoundable breaches or in case of waiver by the defendants, the harsh provisions of re-entry or forfeiture were not to be resorted and if the breach was capable of remedying, then the lessee was to be provided with reasonable time, as mentioned in the notice to remedy the breach and in the event of forfeiture or re-entry the lessee was still having a discretion to relieve the plaintiffs against forfeiture on such terms and conditions as deemed proper by the defendants, on the other hand, there were certain breaches, where the provisions had no relaxation and the defendants had absolute discretion of forfeiture and re-entry and learned counsel has made a very spacious submission that the lease deeds in question were cancelled at the instance of some very influential persons and to oblige them and to substantiate this contention he has submitted that just before the date/(s) when the 25 leases in question were cancelled, there were news items appearing in leading newspapers on 25.08.1998 and also on 02.09.1998 itself, regarding cancellation and this according to the plaintiff, goes to show the nexus between the defendants and such influential person/(s) keeping himself/themselves behind the curtain.
I have carefully considered this submission made by the learned counsel for the plaintiffs and to me it appears that there is nothing malacious in this regard, except that certain news items were published just immediately before the cancellation of the lease deed in question and given the widespread reach of media personnel in present scenario/now-a-days, it is usually a common thing happening around, on the other hand, learned counsels for the defendants in both the suits have started their arguments on the premise that a case of misuser is to be made out if the buildings in question are running with 26 a motive to earn profit and also if the very purpose of allotment of the land at concessional rate remains unjustified, in nutshell, it is contended that not only there should be an absence of profit motive but also the building/mandir/dharamshala/temple should be meant and accessible to the common people of the society and more particularly to the groups earning lesser income and those belonging to the lower strata of the society and in this scenario the provisions of excellent facilities of ACs and TVs etc. are luxurious items and obviously, their use go to show that the plaintiffs are running hotels under the cover of the avowed purposes of running temple or and dharamshala and it has been vehemently contended by the learned counsels for the defendants that the plaintiffs were always intending to misuse the buildings even from the very beginning itself to earn maximum profits and only for that aim they have constructed and maintained the temples/buildings so luxuriously, just as to throw out 27 the poor people and by making the accommodation unaffordable for them, whereas, by extending excellent facilities to the persons who were ready to pay the tariff chargeable in a hotel equivalent to prevalent rates of the hotels.
On the other hand, learned counsel for the plaintiffs, has further, stated that without giving any further opportunity for hearing to the plaintiffs, the defendants discarded their replies and issued cancellation orders in respect of the lease deed/(s) in question, which they were not competent to do as leases in respect of the properties in question were Government's grant under the provisions of Government's Grants Act, (Act XV of 1895) and these provisions were to be treated, as having the force of the law and have to be followed strictly like a law and any violation of the any of the terms of the Government's Grants Act, amounts to violation of law and by not 28 giving proper opportunity of hearing and also opportunity to remedy the breaches, (which are obviously compoundable in nature, in the present suits), they made the show cause notice dated 17.06.1998, defective and cancellation of the lease deeds, vide order dated 02.09.1998, in pursuant thereto was, therefore, null and void and this made the action bad in law and the same is sufficient to decree the suits of the plaintiffs.
I have carefully considered the relevant premises of arguments set up by the learned counsels for the parties and I am now proceeding to give my categorical findings on the issues framed in the case in the backdrop of the respective stances of arguments, set up by the parties, and it appears that there are as many as seven issues now, framed in identical terms in both the suits and issue no.7 is of relief therein, and it appears that issues nos. 1, 2 and now 3 are the main issues framed 29 in the suits, whereas, issues nos.4 to 6 are the issues with regard to question of jurisdiction, also service of legal notice and valuation of the suits and decisions on these three issues have certain revealing effects and they also go to decide if this court has jurisdiction to try and entertain the subject matter of the present suits. It is further to be noted that initially, vide order dated 07.11.2006, issues were framed in both the suits and while dictating my judgments in the matter, it came to my notice that there were certain typographical errors occurring in issue no.3, as framed and further an issue regarding claim in both the suits for the relief of mandatory injunction was not framed originally, though, already claimed by the plaintiff, and therefore, vide my order dated 28.02.07, in both the suits, the issues were recast and thus, there are now as many as seven issues in both the suits and learned counsels for the parties have given their assent in this regard, as already noted in my order dated 28.02.07 and accordingly, I 30 proceed to decide issues nos. 4 to 6 first and take up issue no.4 for my discussion as under:-
Issue no.4 This is an issue as to whether the suit is bad for the want of notice, u/s 53-B of Delhi Development Act, if so, its effect?OPD''; and burden of proof of this issue is placed on the defendants and Shri K.D. Sharma and Ms. Gitah A. Kumar, learned counsel for the defendants has fairly conceded that they waive this objection as a period of more than six months have already elapsed and therefore, the defendants can safely be attributed with sufficient notice of the matters and accordingly learned counsels for the defendants has not pressed this objection and as such this issue is decided in favour of the plaintiffs and against the defendants and it is held that suit is not bad for want 31 of notice u/s 53-B of Delhi Development Act.
Issue no.5 This is an issue as to whether the jurisdiction of this court is barred under the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971, and burden of proof of this issue is placed on the defendants and learned counsels for the defendants have argued this issue upto a considerable length and their submission is that definition of public premises as provided in section 2 (e) means any premises belonging to Central Government and includes any premises belonging to, or taken on lease by, or on behalf of any joint stock company. Learned counsels have further drawn my attention to Section 2, Ss (3) (ii) of the Act which provides for ''any premises belonging to the Delhi Development Authority, where such premises are in possession of or leased out by,''..... said authority, and Shri 32 Sharma has further relied on a definition as provided for word ''Premises'' in Section 2 (c) of the Act, meaning, ''any land or any building are part of building...., his further submission is that eviction orders were also passed by the learned Estate Officer in the matter and as soon as eviction orders were passed, in respect of public premises, the occupants thereof become encroachers and their occupancy is rendered unauthorised and further, an appeal preferred by the present plaintiffs were also dismissed and the decisions in the appeals operate as resjudicata in the matter and for this reason also the jurisdiction of this court is barred, besides, under the provisions of section 10 & 15 of Public Premises (Eviction of Unauthorised Occupant) Act, 1971, and learned counsels have also relied on an authority, reported as AIR 1977 Delhi, page 179, which goes to rule that occupation by allottee after termination of his lease is ''unauthorised occupation'' of the premises and also cancellation of lease for non payment of rent and 33 arrears is not open to the judicial review and also if a person is not availing of opportunity of hearing then order can be passed without hearing, they have also relied on a decision of the Apex Court in the case of State of U.P. Vs Zahoor Ahmed and Anr., and the rule of law laid down by the Hon'ble Supreme Court, in this case is that the effect of section 2 of the Government's Grants Act, is that in the construction of an instrument governed by the Government's Grants Act the court shall construe such grant irrespective of the provisions of the Transfer of Property Act, and it does not mean that all the provisions of the Transfer of Property Act, are inapplicable, on the other hand, Shri N.N. Aggarwal, learned counsel for the plaintiffs has heavily relied on the decision of Hon'ble Supreme Court in the Express Newspaper's case, reported as AIR 1986 SC, page 872, and his submission is that the plaintiffs were allotted with vacant pieces of land and they have raised construction thereon, strictly in accordance with the approval of the 34 defendants and as per the site plan sanctioned by the defendants and admittedly, there is no dispute in this regard and once construction is so raised, the vacant piece of land is taken out from the definition of public premises, as provided by the Act, and he has also relied on a number of decisions reported as 1979 RLR, page 88; 1971 RLR, page 84; AIR 2001 Delhi, page 402; AIR 2003 Orissa, page 11; AIR 1971 SC, page 2355, DLT, 1972 Vol. 8; and also 97 (2002) DLT, page 573, to make a three fold contention, firstly to say that the appeal decided by the Appellate Authority under the Public Premises (Eviction of Unauthorised Occupant) Act, 1971, does not operate as resjudicata between the parties, secondly, the Appellate Authority is acting to hear the appeal under the Act, as a persona designata and not as a court and his orders are not subject to revision u/s 115, CPC, or Article 227 of the Constitution of India, thirdly, that the proceedings before the Appellate Authority are summary in nature and therefore, findings 35 reached in those proceedings does not operate as resjudicata in subsequent litigation. Further to this, it has also been contended that an erroneous decision of court relating to jurisdiction of court cannot be deemed to have finally determined the question of jurisdiction and therefore, such decision cannot operate as resjudicata in subsequent proceedings.
I have carefully considered the respective submissions made by the learned counsels for the parties and perused the authorities relied on by them and it appears that both the counsels present have submitted that the ratio of the Express Newspaper's case has the force and validity of precedent and it is a law declared by Supreme Court and therefore, law of land and by the sweep of this law, as laid down in the above case, the present buildings are taken out from the categories of public premises and decision lays down the rule of law to 36 the effect that once the building is constructed on a vacant piece of land, allotted by the Central Government/DDA then it loses character of public premises as defined in the Public Premises (Eviction of Unauthorised Occupants) Act of 1971, further, the decision/order passed by the Estate Officer is an order which has to be passed in the light of provision of Government's Grants Act, 1895 as the Act does not provide for consequences of the breach of any of the provision and therefore, the consequences of breach has to be seen in common law and further in case of a public premises, occupants, whereof have become unauthorised occupants, a civil suit is necessary to get back the possession of the premises governed under the Government's Grants Act, 1971, and for this the authority relied on by the plaintiffs, reported as 2004 (82) DRJ, page 685 of our own High Court is sufficient. Learned counsel for the plaintiffs has also relied on AIR 2003 Jharkhand, page 17, which has a persuasive value to say that 37 the question of consideration of public premises is complicated question of title involving determination of facts and the same has to be decided by Civil Court only, however, it is established on record that by application of the Express Newspaper's case the buildings in both the suits are not public premises and learned counsels for the defendants have agreed to this emerging proposition of law and facts after considerable arguments and therefore, this question has already lost its sheen. As far as, decision of the Appellate Authority is concerned the same does not have the effect of resjudicata as already seen in the light of decisions relied on by the learned counsel for the plaintiffs, as above, moreover, in case, when the proceedings before the Estate Officer are void and nonest in law, for want of jurisdiction to see if the rules of the Government's Grants Act is complied with, then it is the Civil Courts which have jurisdiction, for the reason that the leases were granted to the plaintiffs under the Government's 38 Grants Act, therefore, the decision of Appellate Authority confirming orders of Estate Officer cannot have any effect in the matter as the question of title and determination of lease cannot be decided by the Estate Officer for lack of jurisdiction and accordingly, decision in appeal against this order (though confirming the decision of the Estate Officer) will not have effect of resjudicata, as already discussed and as such this issue has to be decided in favour of the plaintiffs and against the defendants and it is held that the jurisdiction of this court is not barred under the provisions of public premises (Eviction of Unauthorised Occupant) Act, 1971, as the authority relied on by the learned counsels for the defendants and reported as AIR 1977 Delhi, page 189, is distinguishable on the facts and circumstances of the present case for the reasons that in that case the lease was cancelled for non payment of rent and there was an arrear accumulated and further the lease was not granted under the Government's Grants Act, 39 and as such it was rightly held therein that occupation by allottee after termination of lease is unauthorised occupation, however, in the present case the defendants had no option but to bring a civil suit to recover the possessions of the buildings in question and as such the proceedings before the Estate Officer were not warranted and it has no jurisdiction over the subject matter of eviction of the plaintiffs. Again, the other authority relied on in the State of U.P. Vs Zahoor Ahmed & Anr., though, correctly lays down the rule of interpretation with particular reference to Government's Grants Act, however, the effect of the decision goes against the defendants in case of leases made under the Government's Grants Act, and any contrary provision of law has to make way to the provision of expressed terms of the grant and accordingly it appears that only Civil Courts have jurisdiction to try the question of validity, or otherwise of the termination of leases in the present cases, and not the office of Estate Officer.
40Issue No.6 This is an issue as to whether the suit is under valued for the purposes of court fees and jurisdiction, and burden of proof of this issue is again placed on defendants and Ms. Gitah A. Kumar, learned counsel for the defendants had drawn my attention to para no.17 of the plaints in both the suits and she has contended that the plaintiffs were bound to value the suits on ad-valorem basis for the purposes of court fees and jurisdiction, to which learned counsel for plaintiffs has already conceded and it appears that plaintiffs have already furnished requisite court fees in the matter and therefore, this issue has also lost its sheen and question of imparting any specific finding on this aspect of the matter, now, is unnecessary and this issues is decided accordingly in the matter.
41
Now, I would like to take up the remaining issues nos. 1, 2 & 3 as framed in both the suits together as all these issues are interlinked and a simultaneous finding on all these issues are necessary to facilitate an orderly discussion and decision on all these issues and the issue no.1, as framed, is as to whether the plaintiff is entitled for the relief of declaration as claimed in the prayer clause (a) of the plaint, whereas, issue no.2 is to the effect as to whether plaintiff is entitled for the decree of injunction as claimed in the prayer clause (b) of the plaint and third issue is as to whether the plaintiff is entitled for the decree of mandatory injunction as claimed in prayer clause (c) of the plaint and burden of proof of all these issues is placed on the plaintiffs and learned counsel for the plaintiffs has submitted a number of authorities regarding requirement of hearing, before cancellation of lease and effect of provisions of Government's Grants Act, which are reported as 118 2005 DLT, page 440, wherein it has been laid down 42 by our own High Court that in case to see use of part of Industrial Plot as godown, extent of such use in relation to entire property has to be seen and DDA is obliged not only to issue show cause notice but also grant hearing before passing of order of cancellation/determination of leasehold rights and if such requirement is not followed by the DDA then impugned order is liable to be set aside as unsustainable under the law; the next decision in this line is AIR 1989 Supreme Court, page 997, laying down that there was a requirement of adherence to the principles of natural justice and if there is a denial thereof in the proceedings culminating in the order of cancellation and the show cause notice itself is a 'inculpable congires of suspicious and peers', of relevant matter, as included some trivia on matter of importance, where the stakes are heavy for the lessees, claiming to have made large investments then such an order is required to be quashed. The third decision 1983 RLR, page 772, lays down that DDA has no right 43 to act arbitrarily and before contemplating adverse action against lessee it must give show cause notice, and the next decision in line AIR 1986 Supreme Court, page 872, is the decision in Express Newspaper's case which is, however, not of much relevance in the present/running context. The fifth decision, reported as JT 1989 (1) SC, page 118, goes to lay down that an opportunity of hearing and adherence to the principles of natural justice is required for forfeiture and cancellation of lease and statutory authority should afford and allow personal hearing to the lessees and further all actions of Government and Governmental authorities should have 'legal pedigree' and a lessee cannot be dispossessed otherwise than in due course of law and lastly in this category there is a decision reported as AIR 2004, page 389, which lays down that in case of Government's Grants Act, 1895, and in view of this provision of Section 2, 3 of the Act, the rights, principle and obligation of any grantee has to be 44 completely regulated by the terms of grant even if any such terms are inconsistent with the provisions of any other law.
Learned counsel for the plaintiffs has further relied on a number of decisions to contend that the subjective decision of a Government Authority, though subjective, has to be formed objectively and a Government Authority is not supposed to act arbitrarily or capriciously and in this line the first decision, reported as AIR 1989 SC, page 1594, is relied on to say that if the complete legal requirement is not fulfilled then the action was bound to be reversed; the next decision in this line, reported as 1994 (30) DRJ, is to say that issue of subjective satisfaction of the Government was not a justifiable one so as to substitute the opinion of the court for that of the Government, however, the court can take judicial notice of problem leading to urgency in a matter. The further decision, reported as, AIR 1995 45 Delhi, page 391, goes to rule that invoking of urgency clause without mentioning any urgency in notification is colourable exercise of power of statutory authority and the Government's orders publicaly made cannot be allowed to be added, amended or clarified subsequently and the order must stand as it is. The next decision, reported as AIR 1988 Delhi, page 101, is relied on to say that, though, courts cannot consider adequacy or otherwise of material whereupon, Government reaches its satisfaction, it can examine whether there was material at all before the Government to reach such satisfaction, and if it applied its mind to question of urgency and whether the satisfaction was based on relevant considerations and lastly a decision, reported as AIR 1979 SC, page 851, is relied on to say when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and the same cannot be supplemented by fresh reasons in the shape of affidavit or otherwise and so as that an order 46 bad in the beginning may, by the time it comes to the court on account of challenge gets validated by additional grounds, later brought out.
Learned counsel for the plaintiffs has further relied on a number of decision to contend that following of fair procedure and principle of natural justice in administrative proceedings was obligatory and incumbent on the statutory authority and first decision in this line is reported as (1990) 2 Supreme Court cases, page 48, which goes to rule that in a case where opportunity of pre-decisional hearing is not given then its particular prejudice as a result of want of the opportunity need not to be established, and not giving the opportunity, is itself a prejudice, the second decision, reported as DRJ 1992 (22), is to the effect that where the defendants act unfairly and unjustly then order complained of must be reversed, though, they cannot be stopped from taking appropriate action after hearing the 47 plaintiff. There is another decision, reported as 1919 (2005) DLT, page 444, which goes to lay down that reopening of a decision and seeking to unsettle, settled transaction is arbitrary, and the last decision in this line and reported as 2003 (7) Supreme Court cases, page 492, goes to lay down the requirements of a fair hearing by giving ample notice of the hearing to a party and allowing a reasonable opportunity to be present at the hearing together with his advisers and witnesses and to remain throughout the hearing and also giving opportunity to present evidence and arguments in respect of his case and further to test his opponent's case by cross-examining his witnesses, and also for presenting, rebutting such evidence and addressing oral arguments.
Learned counsel for the plaintiffs has further submitted before me that before starting appreciation of evidence led on behalf of the 48 parties in the matter, the court should have certain legal principles in its mind and for this he has relied on a decision, reported as AIR 1983 BBY, is to say that expression ''contents of a document'', is in reference to only contents and not the truth thereof and the Evidence Act requires, first the production of original document and if the original document is not available, secondary evidence may be given to prove what the document states and upon this the document becomes admissible except where it is signed or handwritten wholly or in part and in such a case, the second requirement under section 67 of the Act is that signature and handwriting must be proved, further, where the party tendering the document finds it necessary to prove the truth of its contents, he must do so in the matter he would prove a relevant fact. The second decision in this line reported as 1995 II AD (Delhi), page 189, is relied on to say that there is a distinction between 'filing', 'admission', 'proof' and mere admission of document in evidence does 49 not dispense with proof thereof and admission of document in evidence does not amount to its proof, further, endorsement of Exhibit no. on document has no relation with its proof. Neither marking of an Exhibit can be postponed till the document has been held proved, merely because it has been marked as an exhibit, the document can't be taken as proved. There is another decision, reported as AIR 1998 Delhi, page 345, to rule that evidence which is withheld by a party and which would throw light on issue in controversy shall warrant an adverse inference against it, notwithstanding, that onus of proof does not lie on him and lastly there is a decision, reported as AIR 1998 Delhi, page 345, which goes to rule that in a given case a fraud has to be pleaded and proved, however, it is not clear in what reference this very decision is helpful to the contention of the learned counsel for the plaintiffs, on the other hand, it appears that there was an objection taken by learned counsels for the defendants on the ground that some 50 of the documents referred in the evidentiary affidavit of PW Shri Ashok Khattar in suit no.1135/06 and PW Shri Rajesh Khattar in suit no.1146/06 have even been not filed and further there was an objection with regard to mode of proof and also to the filing of the documents on 28.11.2006, on which day plaintiffs also moved an application under order 7, rule 14, r/w sec. 151, CPC, and the same was opposed by the defendants on the ground that the application was an abuse of the process of law and filing of the documents at that stage was prejudicial to the case of the defendant.
I have carefully considered the effects of the above cited authorities and the rule of law and a common thread emerging therefrom, on a combined and meaningful reading is to the effect that an administrative action of statutory authority has to be objective and as far as possible it should be in conformity with the principles of 51 natural justice and depending on a particular case, sufficient opportunity of hearing (audi altrem partem), which means that no one should be condemned unheard, should be provided and it should not be a colourable exercise of administrative discretion and again the decision arrived at should not be based on any extraneous or irrelevant consideration, however, what would constitute sufficient amount of hearing, would differ on a case to case basis and particularly depending on the facts and circumstances of a given case, further, the relevant rules of evidence with regard to proof of documents/its contents has to be followed and in this scenario of the case it appears that the objections by the learned counsels for the defendants are not tenable in view of the amendments brought to the provisions of CPC, by Amendment Act of 2002 in order 18, rule 4, which now (as it stands after amendment) provides for the cases, where documents are filed and the proviso to order 18, rule 4, sub- 52 rule (1) states that where documents are filed and parties relied upon the documents, the proof and admissibility of such documents which are filed alongwith affidavit shall be subject to the orders of the court and it is to be noted that rule 4 of order 18, CPC, states that in every case, examination-in-chief of a witness shall be on affidavit and copy thereof shall be supplied to the opposite party, by the party who calls him for evidence and it is to be noted that on 28.11.2006 the cross- examination of PW Shri Ashok Khattar and also Rajesh Khattar was to begin when the counsel for the plaintiffs moved the application under order 7, rule 14, CPC, and in view of the amended provisions of order 18, rule 4 and proviso thereof, there was no need to move any separate application and the documents referred in the affidavits could have been filed alongwith affidavits itself, so moving of such an application was unnecessary, of course, the admissibility and proof of such documents are subject to the orders of this court and therefore, 53 the objection raised by the learned counsels for the defendants does not hold good in view of the amended provisions of CPC, and as such I have to proceed to decide the above three issues on merits. Learned counsel for the plaintiffs has submitted that in suit no.1135/06 the land was leased for religious purposes and the case of the plaintiff in the suit is its running of a small Temple and Dharamshala in the premises and it has been submitted by the plaintiff/(s) that for making a temple even presence of an idol is not a must, as in case of Lotus Temple and for this he has relied on an authority, reported as AIR 1989 Madras, page 60. Learned counsel for the plaintiff has further relied on a decision of Chancery Division in re- Ward Public Trustee Vs Ward, to contend that religious purposes are wide enough to embrace purposes, which were not charitable within the meaning of the word and a trust for religious purpose is a trust for charitable purpose, unless the contrary is shown and religious service can only be said to 54 be charitable if they tend directly or indirectly towards the instruction or edification of the public, his further reliance is on a decision, reported as AIR 1999 SC, page 964, which goes to lay down that a charitable purpose includes religious purpose within the meaning of Ss 1,20 of Societies Registration Act and it has, further, been contended that to see, what is the religious purpose under the Hindu Law, it must be determined according to Hindu notions. Under the Hindu law, religious or charitable purpose are not confined to purpose which are productive actually or of assumed public benefit and the last decision relied on by the plaintiff in this line, AIR 1953 SC, page 491, which goes to lay down as to what are the religious purpose and what religious purpose will be charitable must be decided according to Hindu Law and Hindu notions, similarly, it is contended by the learned counsel for the plaintiffs that the lease in suit no.1146/06 was granted for the purpose of Temple and Dharamshala and he has relied 55 on the text given in Tagore's Law Lectures by the learned author Shri B.K. Mukhija which defines Dharamshala as under:-
''Dharmasalas- Dharmasalas, rest houses, and satras which are known by the name of 'pratishray' occupy a position analogous to that of mutts, and they are generally dedicated for the benefit of travellers and ascetics. The Bahni Puran thus describes the dedication of 'pratishraygrah': ''Halving caused to be made an auspicious and spacious asylum of burnt bricks, with strong pillars, and large compound, accompanied with distinctive mark, covered with plaster, guarded, equipped with comfortable apartments, and conferring endless religious merit - should dedicate to the Saiva and the Vaishnava ascetics. And having caused to be made an auspicious, spacious and beautiful house, furnished with good food, and equipped with pure drinking water, 56 and possessed of an auspicious gate should dedicate it for the benefit of the poor and helpless and travellers.'' All these are intended for the benefit of public or certain sections of the public and there is no specific done by whom the gift is to be accepted.'' and also Temples as under:-
''Temples- There are elaborate rituals prescribed by Smriti writers which have got to be observed when a donor wants to consecrate a temple and establish a deity in it. I may refer to some of these rituals in a subsequent chapter. It is enough to say here that according to Pratistha Mayukha the Sankalpa in case of establishment of an idol is of two kinds: one is for the accomplishment of a particular object which the founder may have in view; the other is simply for the love of God. It is pointed out by Mandalik that Pratistha 57 Mayukha there is no Utsarga in case of consecration of temple except in special cases, and this means that there is no renunciation of the ownership of the founder as in other types of endowments. Other books on rituals however expressly lay down that before removing the image into the temple the building itself should formally be given away to the deity for whom it is intended. The Sankalpa or formula of resolve makes the deity itself the recipient of the gift and the usual formalities fo gift are followed in this case also, and the gift is made by the donor taking in his hand water sesamum, kusagrass etc. According to Pandit Pran Nath Saraswati this is the ceremony which divests the proprietorship of the temple from the donor and vests it in the idol.'' 58 He has also submitted that as per Delhi Building Bye-Laws, Dharamshala and its equivalent means a premises providing temporary accommodation for short duration on no profit basis, whereas, the permitted activities in the use of Dharamshala is of personnel service, shops of barber, laundry, soft drink and snack bar (upto 15 Sq. mtr.) He has also relied on Master Plan for Development of Delhi, 2021 and in Col. No.16, it is provided that Dharamshala and its equivalent means a Dharamshala providing temporary accommodation for short duration on no profit basis and they can provide for personnel service shops of barber, launderer, soft drink and snack bar (upto 15 Sq. Mtr..) Learned counsel for the plaintiff has further relied on an authority, reported as AIR 1932 Lahore, page 268, according to which Dharamshala means a place of rest and has subsidiary meanings which connote both the Hindu place of worship and Sikh place of worship, another decision, reported as AIR 1974 SC, 59 page 521, is relied on to contend that exemption benefit is available in case choultry which is an ancient institution and principally made for lodging of pilgrims and travelers.
It is in this backdrop of legal/judicial broad contours that I have to understand respective contention/arguments advanced by learned counsels for the parties and also appreciate evidence available on record as led on by them and it appears that in the suit no.1146/06, there are certain documents, which have been placed on record by the defendants and they are Ex.DW1/5, which is a copy of some insignia/imprint, bearing 3 telephone numbers, one fax number, one monogram and also name Hari Prakash, the address given below this name after the division by a marginal line is IDBI Bank Bldg. 2, Khel Gaon Marg, Opposite Siri Fort Auditorium, New Delhi. It is to be noted that the address of the suit plot which is mentioned in the lease deed 60 is Siri Fort Institutional Area, Plot No.2, and further the address of the plaintiff which is mentioned in the head of the plaint is 2, Siri Fort Institutional Area, New Delhi, and address of the plaintiff in various documents filed on behalf of the plaintiff is 2, Siri Fort Institutional Area, New Delhi, and plaintiff has referred 2, Siri Fort Institutional Area, as address of the present Trust in various correspondence also and the same address is mentioned in the Address Form furnished by the plaintiff and therefore, it appears in a prima facie way that the address given on the insignia/imprint is not that of the plaintiff institution, however, on a closer examination it appears that the words ''IDBI Bank Bldg., 2, Khel Gaon Marg, Opposite Siri Fort Auditorium, New Delhi'', as address mentioned of 'Hari Prakash' are a claver ploy as it is clear from the fact that the case of the plaintiff is also that a branch of IDBI Bank is also opened in the plot which is known as 2, Siri Fort Institutional Area, New Delhi, and I am sure that this Siri Fort 61 Institutional Area is also known as Khel Gaon Marg, popularly and therefore, this insignia/imprint relates to no other but the building/plot occupied by the plaintiff Trust. There is also Ex.D1/PW1 which is a copy of some rate of tariff and on this copy the name of the Trust as Hari Chand Prakash Wanti Trust (Regd.) is clearly mentioned and this is with regard to rate of tariff, which reads as under:-
Tariff Economy Plan and then rates of rooms are mentioned for various occupancy and further, there is mentioning of liability for payment of taxes and then check out time 12 noon is also mentioned and after that there are a good details of facilities available in such trust. It is to be noted that these documents are only photocopies but after amendment brought to the Civil Procedure (Amendment) Act, 2002, it has been left to the wisdom of the court to go through the entire record and then to rely 62 upon the documents which are filed alongwith affidavit, subjecting them to the orders as passed by the court and I have already passed an order just above, whereby all the documents placed on record by the plaintiffs/parties were allowed to be filed and they are treated as admitted and now I am going to consider their effects in case the documents which are not proved obviously or documents which are only photocopies or the documents which are otherwise having questionable contour in the matter and accordingly I have found even these copies of documents reliable as there is no reason to warrant to conclusion that these documents are fabricated one and if they are at all, why should the defendants, which are Governmental agencies, should manufacture them and place them on record and accordingly it appears that plaintiff is running a guest house also in the above premises and charging tariff for them and is also providing amenities for occupancy of various types of rooms, which are single rooms, the 63 rate of tariff thereof is Rs.1800/-, and further there is double rooms, the rate of tariff thereof is Rs.2500/- and again there is suite, the rate of tariff thereof is Rs.3750/- and Rs.400/- is chargeable for extra bed/person and there is provision of levying of taxes @10% as service charge on room rent and food, there is further provision of levying sales tax on food @ 7% and it is also provided that any other taxes as and when levied by the Government will be extra and it is also advertised/publicised that all the rooms have modern amenities like airconditioning, attached bath showers, 24 hour hot and cold water, telephone with STD/ISD facilities CC TV with in house movies, Mini Refrigerator in each room, Laundry service, free car parking, Doctor on call, Business Centre etc. and it is also mentioned that food/ beverage is also available and there is round the clock room service available with a facility of conference hall.64
Learned counsel for the defendants has vehemently contended that the term of the lease deed, in this case, was that the premises/building/plot was to be utilized for running a Temple and Dharamshala and this is a classic case of running a good/star hotel, by the plaintiff and it was a case of a temple, merely having a meek corner in a hotel and not that of a case of a temple having lodging facilities of/for pilgrims/devotees and even good rates chargeable clearly go to show that these rooms/facilities are not to be availed/afforded by the poors/person of lower strata of the society and as such they were put beyond the reach of ordinary/common citizens and now the learned counsel for the defendants has put forward his most forceful arguments that if the building/plot was to be so utilized then what was the fun to allow and allot the plot/land at a concessional rate and the plaintiff had full liberty to purchase the land on market rate and utilize it for the purposes whatsoever they desire, 65 on the other hand, learned counsel for the plaintiff had tried to contend that keeping in view the definition of Dharamshala, as given, no one can contend that only poor amenities are to be provided in a Dharamshala and if the plaintiff does not charge anything then how the Dharamshala is to run at all, his further contention is that the court should see only the absence of profit motive and whatever surpluses of funds are being generated by the plaintiffs, they are re- employed and further infused for the betterment of the Dharamshala, and facilities therein provided, and being run by the plaintiffs.
I have very carefully considered the thrust of this argument and to me, it appears that plaintiff is running a well equipped guest house in the premises and also charging exorbitant rates. It is further to be noted that these photocopies have been placed on record of case file alongwith list of documents dated 02.08.2002 and therefore, it can 66 safely be taken on record that they are available to the defendant at least, on any time, prior to 02.08.2002 and in those year, keeping in view the rate of inflation, they cannot be said to be at lower side and as such I find that it is established on record that the some facility resembling to a well equipped guest house was also being run from the premises in question and as such it appears that objectionable activity, in this very form, was being carried out from the premises somewhere, during the period, after the construction of building over the suit plot and till 02.08.2002. The final show cause notice in this case bears the date of 17.06.1998 and as such it can also safely be assumed that these materials were available with the defendants on that day which is also the case of the defendants, on the other hand, there is evidence, available on record, that the plaintiff Trust was granted exemption u/s 80, (g) of the Income-tax Act, 1961, vide letter dated 14.05.1999, and again it is renewed, vide letter dated 67 18.05.2001 and therefore, it is also clear that some charitable activities were also being undertaken by the plaintiff Trust as there are materials to show that the trust was also carrying out certain charitable activities and receiving donation and was also paying luxury taxes which is clear from the copies of the income and expenditure accounts placed on record for the years ending 31.03.1992, 1994, 1995, 1996, 1998, 1999 and further generating surpluses for considerable amount and they are being carried forward by way of excess of income over expenditure for the consecutive years and therefore, they amount to sizable sum in this regard and if the present Trust is treated to be a closely held Trust then such surpluses, even if, accumulated or otherwise utilized in accommodation/betterment of the facilities then also it may be seen that it is with a profit motive and over all increasing/enhancing the rate of tariff, also the level of comfort and the amount of consideration to be paid by the 68 pilgrims/devotees/tourists for staying there and therefore, the argument put forward by the learned counsel for the plaintiff is found to be a week one, however, even in this scenario the charitable purpose cannot altogether be ruled out as there are material to show that there is dispensary running over the suit premises, though, there is little justification for grant of land on concessional rate to the plaintiff, yet, this is a policy matter of the Government and this court has no competence to interfere in the policy of the Government, nor otherwise it has any competence to lay down law for which it otherwise does not have a legal basis/strength/force and this court is competent only to identify and apply the law as it is found and it does not have competency like superior courts to lay down a new rule of law or otherwise to exercise the power of laying down laws as in case of Hon'ble Supreme Court/High Courts and at this stage learned counsel for the plaintiffs has contended that the court can take judicial 69 notice of the certain facts and for this he has relied on a decision, reported as AIR 1968 BBY, page 229, which lays down that it is well established that the court is entitled to take judicial notice of facts which are of general knowledge. Some such facts are (1) land values differ very materially in different towns in which Municipalities are established (2) that different types of mills and factories require different types of buildings and that their relative values do not vary according to this floor areas and that (3) buildings of mills and factories are of different age and the value of a building decreases with its age, however, it is not clear as to what particular inference can be drawn by the aid of this particular authority and, if so, in what manner it would go in favour of the plaintiff and therefore, nothing further can be commented in the matter in this regard. Learned counsel for the plaintiff has further relied on a decision, reported as AIR 1976, SC, page 133, which rules that ''if two construction are possible upon the 70 language of the statute, the court must choose the one which is consistent with good sense and fairness, and eschew the other which makes its operation unduly oppressive, unjust or unreasonable, or which would lead to strange, inconsistent results or otherwise introduce an element of bewildering uncertainty and practical inconvenience in the working of the statute. Another decision, reported as AIR 1991 SC, page 1289, is also relied on to say that the statutes entailing panel consequences are to be construed strictly and the context in which the words are used is important and further legislative purpose must be noted and the statute must be read as a whole and after a careful consideration of this submission, made by the learned counsel for the plaintiff, I am of the view that the legislative purpose in granting land on concessional rate can be two fold, (1) Development of land/certain amenities to be provided to the citizens, residing nearby or in the area in question; (2) Promote 71 availability of certain facilities to public at large at cheaper rate and for these purposes only concession can be given, however, providing the rate of tariff at very higher rate would automatically put away the people who are not able to afford those rates from availing those facilities and therefore, the purpose referred certainly shall be defeated, yet, if the rates are so high that they are comparable to the prevalent market rate of the facilities or thus are at higher side of the prevalent market rate then the facilities even provided on the land on concession would dilute their usability to some extent as they have to compete with the market forces also. It is clear on record that there are no exclusion of any section of people and nor any instrument is applied to prohibit them from availing these facilities except the rates of tariff and if the plaintiff is catering to the needs of the persons belonging to the higher strata of the society then also the avowed purpose of Temple/Dharamshala do not get defeated necessarily in 72 every case and therefore, the plaintiff appears to be entitled for a beneficial interpretation in this regard, however, there would be little justification to provide the land at concessional rate in such a case and therefore, a shift in this Governmental policy would be required to avoid losses to the Government/Public Exchequer/Public money/public at large, occurring by such concessional allotment.
Now, I have to revert to the evidence available in the case file of suit no.1135/06 and it appears that there are no such documents, similar to the insignia/imprint/tariff card/monogram and it is to be noted that a photocopy of the inspection report dated 11.06.1998, is already placed on record of this case and this is a document which finds its origin/creation/execution by the officials acting on behalf of the defendants only and in this way the defendants cannot find any fault with the findings given in this document, though, learned 73 counsels for the plaintiff has objected that the alleged inspection was not carried out in the presence of the officials of the Mandir and the same was, if at all carried out, it was on their back and therefore, it should not get any evidentiary value, however, I am to just brush aside this objection as when the inspection has been carried out legitimately and it is also not clear when the inspection has been conducted and certain findings are recorded with regard to the activities going on in the plaintiff's Mandir, then how its officials can plead to be absent at that time and the findings of the inspection report, so far as is relevant, goes to state as under:-
''.......which were given by the Samiti. Basement was found vacant and at GF and a small mandir has been constructed and Kirtan/Bhajan activities were found at the time of inspection. The reception counter also exist on this floor. On the other floor of the building well furnished AC rooms has been constructed and on the 74 date of inspection some pilgrims from Gujarat were stayed in two rooms on SF and all other rooms were found locked. A board of samiti exist on front side of the building and no board of hotel etc. exit at site. The samiti gave me photocopy of some papers which are enclosed for further N/A please. Submitted please.''; And then there are remarks made by certain other official which goes to state as under:
''Inspected the site. This GF of building is used as reception counter, ktchen, office and hall used as Kirtan etc. and upper floors are of AC rooms. Submitted for information. JE has also as stated in his report also''; And to my mind, in this suit this report is of utmost important and that alone can be termed as material available on record to form an opinion regarding the allegations of running a hotel having 35 rooms with the facilities of AC, TV and attached toilets, which are contrary to the terms and conditions of the lease and said to be in contravention of the contents of the lease deed 75 in question, being run by the plaintiff without the consent/approval of the defendants in the matter, however, the material relevant in this regard, which is the above said inspection report itself, belies the case of the defendants in this case as from the inspection report it is clear that no hotel was found to be running in the building, nor there was any signboard in this respect, rather, kirtan activities were going on at the time of inspection and a reception counter was also found, which the learned counsel for the plaintiffs has contended, is necessary even for running of a Dharamshala and as such the case made out for cancellation/determination of lease deed in suit no.1135/06, was wholly illegal even on the facts. It is further to be noted that DW Shri Kailash Chander, Asstt. Director in both the suits has categorically stated that DW never inspected the suit property, he had not seen the hotel being run from the suit premises or the size of the temple in the suit premises, nor he was able to tell as to on whose complaint and on 76 which information, the DDA officials inspected the suit premises and as per the statement the JE and AE comprised the inspecting team which was held on 09.06.1998. The DW is further unable to tell the respective names of the concerned/referred JE and AE or in what manner the inspection was carried out as he was not part of the inspecting team, the DW, has, however, denied the suggestion as wrong that no inspection was ever carried out by the DDA but he has clearly stated that no inspection was carried out after 09.06.1998 and till the time of the cancellation of the leases. He has further accepted that the plaintiff had replied to the show cause notice, vide reply dated 29.06.1998, but the same was not in time in both the suits. He has further submitted that one show cause notice was given on 17.06.1998. He has further admitted that no opportunity of personal hearing was given to the plaintiffs in pursuance to the show cause notice dated 17.06.1998, the DW has, however, volunteered that the 77 plaintiff appeared before the Estate Officer in the eviction proceedings and he has further denied the suggestion as wrong that the eviction proceedings were held wrongly and illegally under the Public Premises (Eviction of Unauthorised Occupant) Act, 1971. It is significant to note that this DW has categorically admitted in both the suits that before cancelling the lease, the DDA, provides two opportunities to the lessee to remedy the breaches, admittedly, there is no opportunity, even contended, to have been given to the plaintiffs in both the suits to remedy the breach and therefore, the action brought out by DDA smacks of vindictiveness in the present cases, there is no explanation coming forward that when the notice dated 17.06.1998 was issued and reply was called upon by the plaintiffs within a week then why it was not considered by DDA and it appears in the suit no.1135/06, the reply was filed in time, whereas, in suit no.1146/06 the reply was filed after a delay of one day and even after that lease deeds in both the 78 cases were terminated, only vide order dated 02.09.1998 and as such there was a period of more than two months during the time when the plaintiffs filed their replies and final orders for cancellation of leases were passed in the matter and the defendants could have easily granted some reasonable time to the plaintiffs to remedy the breaches which was/had been found existing in the case of Suit No. 1146/06, and it is established on record that the plaintiff in that case was running a well equipped luxurious guest house on some higher rate of tariff and therefore, there was little justification for allowing them to continue with their's this activity, though, the purpose of the lease was still for running Temple and Dharamshala but there was little justification for stopping the defendants from recovering differences between the market rate and concessional rate of the land in the matter. It is also to be noted that in their replies, dated 29.06.1998, in both the suits, the plaintiffs have asked for intimation of relevant rules 79 of provisioning with regard to rooms/ACs/TVs/attached toilets etc. and if they were not allowable then what was the position which could have been allowed for running a temple/mandir/dharamshala/institution for religious purposes and as such it appears that contention of the learned counsel for the plaintiffs has substantial force that non-compliance with the terms of the lease deeds in both the cases, render the notices dated 17.06.1998 invalid and consequently the order of the cancellation dated 02.09.1998 also suffered from the same vice and as such it appears that the plaintiffs have succeeded in proving the issue no.1 in their favour and accordingly this issue is decided in favour of the plaintiffs and against the defendants and it is held that the plaintiffs are entitled for the decree of declaration, in both the suits, as prayed for by them.
Issue No.2 80 Now, it is to be noted that the issue no.2 is with regard to the relief of permanent injunction and in the terms as to whether the plaintiff is entitled for the relief of permanent injunction as claimed in the prayer clause (b) of the plaint and burden of proof of this issue is again placed on the plaintiffs and in view of my findings on issue no.1, as above, this issue has also to be decided in faovur of the plaintiffs and against the defendants, as it is merely consequential in nature, in both the suits, and accordingly it is held that the plaintiffs are entitled for a decree of perpetual injunction, thereby restraining the defendants, their servants, agents, workman or contractors to takeover the forcible possession of property no. 1, East Patel Nagar Institutional Area, New Delhi, in suit no.1135/06 and property no.2, Siri Fort Institutional Area, New Delhi, in suit no.1146/06.
It is further to be noted that there is issue no.3, which is as to 81 whether the plaintiff is entitled for the relief of mandatory injunction and burden of proof of this issue is again placed on the plaintiff and this issue has been framed for grant of relief for issuance of a direction to the defendants not to interfere in the enjoyment of leasehold rights by the plaintiff and persons claiming through him of the suit properties in both the suits and buildings constructed thereon in any manner whatsoever, however, it is again to be noted that this relief of mandatory injunction cannot be allowed in absolute terms, even if the plaintiffs are found entitled in view of my findings on issue no.1 & 2, as above, and no mandatory injunction can be issued to the defendants having effect of prohibiting them from proceeding in the matter in accordance with law and therefore, this relief of mandatory injunction has to be suitably moulded, keeping in view the facts and circumstances of a particular case to meet out the end of justice and also fair play and accordingly a relief of mandatory injunction is 82 granted to the plaintiffs in limited and to the extent of restraining the defendants not to interfere in the enjoyment of the leasehold rights by the plaintiff and persons claiming through him of the above mentioned plots and buildings, in both the suits, while acting on notice dated 17.06.1998 and cancellation order dated 02.09.1998 in both the suits, needless to say here that the defendants would be well within their legal rights if they decide to act and initiate action in view of fresh materials and they, therefore, have every liberty to act in accordance with law if it is warranted in this regard.
Relief In view of my findings on issues nos. 1, 2 & 3, as above, I hereby pass a decree of declaration, in favour of the plaintiffs and against the defendants, to the effect that the show cause notice dated 17.06.1998 and the subsequent order dated 02.09.1998 passed by the defendant 83 no.4 are absolutely illegal, against the terms and conditions of the lease deed and the plaintiff continues to be lawful owner of property no. 1, East Patel Nagar Institutional Area, New Delhi, in suit no.1135/06, and a similar decree is also passed in respect of property no.2, Siri Fort Institutional Area, New Delhi, in suit no.1146/06. A further decree of perpetual injunction, restraining the defendants, their servants, agents, workman or contractors to takeover the forcible possession of property no. 1, East Patel Nagar Institutional Area, New Delhi, is also hereby passed in favour of the plaintiffs and against the defendants in suit no.1135/06, alongwith a similar decree in respect of property no.2, Siri Fort Institutional Area, New Delhi, in suit no.1146/06, and also a decree of mandatory injunction is hereby passed in both the suits, restraining the defendants/agents etc. not to interfere in the enjoyment of the leasehold rights by the plaintiffs and persons claiming through him in respect of both the above properties 84 on the basis of show cause notice dated 17.06.1998 and the subsequent order dated 02.09.1998, passed in both the suits. There is no order as to cost. Decree sheet be prepared accordingly in both the cases separately and a copy of the order be placed on the other file also. File be consigned to record room.
Announced in open court (SANATAN PRASAD) on this 8th day of March 2007 Sr. Civil Judge, Delhi (Spare three copies attached)