Delhi District Court
North Delhi Municipal Corporation vs The Estate Officer on 29 November, 2019
IN THE COURT OF SHRI GIRISH KATHPALIA,
DISTRICT & SESSIONS JUDGE (HQs)
TIS HAZARI COURTS, DELHI.
PPA No. 30131/2016
NORTH DELHI MUNICIPAL CORPORATION
THROUGH ITS COMMISSIONER
Dr. S.P. MUKHERJEE CIVIC CENTRE
J.L. NEHRU MARG, NEW DELHI 110002
....APPELLANT
VERSUS
1. THE ESTATE OFFICER
NDMC, 21st FLOOR
Dr. S.P. MUKHERJEE CIVIC CENTRE
J.L. NEHRU MARG, NEW DELHI 110002
2. SHRI JITENDER NATH
M/s VASTRLOK, BENEATH TOWN HALL
DISPENSARY, OPP. TOWN HALL
CHANDNI CHOWK, DELHI 110006
3. SHRI KEWLA DEVI
WIDOW OF SHRI JAGAN NATH DUBEY
SATISH KUMAR DUBEY PAN SHOP
BENEATH TOWN HALL DISPENSARY
OPP. TOWN HALL, CHANDNI CHOWK,
DELHI 110006
PPA No. 30131/2016
North Delhi Municipal Corporation vs The Estate officer Page 1 of 18 pages
3. SHRI VINOD KUMAR, COLD DRINKS
BENEATH TOWN HALL DISPENSARY,
OPP. TOWN HALL, CHANDNI CHOWK,
DELHI 110006
5. SHRI RADHEY SHYAM
LAXMI PAN SHOP
BENEATH TOWN HALL DISPENSARY,
OPP. TOWN HALL
CHANDNI CHOWK, DELHI 110006
6. Smt. PREMWATI SHARMA
WIDOW OF SHRI GAJENDER,
WATCH COMPANY, BENEATH TOWN HALL
DISPENSARY, OPP. TOWN HALL
CHANDNI CHOWK, DELHI 110006
7. DMC COPERATIVE STORE LTD.
THROUGH ITS MANAGER
PREVIOUSLY BENEATH TOWN HALL DISPENSARY,
OPP. TOWN HALL
CHANDNI CHOWK, DELHI 110006
(CURRENT ADDRESS NOT KNOWN)
... ..RESPONDENTS
Date of filing : 22.05.2013
First date before this court : 06.08.2019
Arguments finally concluded on : 27.11.2019
Date of Decision : 29.11.2019
Appearance : Shri Ashutosh Gupta, counsel for appellant
Shri Dalip Rastogi, counsel for respondent no. 26
PPA No. 30131/2016
North Delhi Municipal Corporation vs The Estate officer Page 2 of 18 pages
JUDGMENT
1. The North Delhi Municipal Corporation has brought this appeal under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act to assail order dated 25.03.2013 of the Estate Officer respondent no. 1 whereby application of the present private respondents for rejection of eviction petition was allowed. Respondents no. 26 are the persons in occupation of the subject premises. Respondent no. 7 is a cooperative store and vide order dated 09.08.2016, my learned predecessor dismissed the present appeal as against respondent no. 7, which order, having not been challenged, has attained finality. But no amended memo of parties after deleting respondent no. 7 was filed. I heard learned counsel for appellant and counsel for respondents no. 26, and perused original records of the Estate Officer.
2. Briefly stated, circumstances leading to the present appeal are as under.
2.1 The predecessor of the appellant, being the erstwhile Municipal Committee, leased out Western Wing of Town Hall to respondent no. 7 for the purpose of running a restaurant with effect from 01.04.1955. According to appellant, some portion of the subject premises PPA No. 30131/2016 North Delhi Municipal Corporation vs The Estate officer Page 3 of 18 pages were sublet by respondent no. 7 to Shri T.N. Garg, proprietor M/s Vastralok, the predecessor in interest of respondents no. 26. The predecessor of the appellant decided to convert the subject premises into a model restaurant and called upon respondent no. 7 to vacate but the latter opted not to comply.
2.2 Therefore, the appellant approached the Estate Officer on 17.10.1979 seeking to evict respondents no. 27. But the Estate Officer vide order dated 27.05.1986 observed that the predecessor in interest of respondents no. 26 had been paying rent to the present respondent no. 7 and the appellant; and that M/s Vastrlok was not an unauthorized occupant since its tenancy had not been terminated by the present respondent no. 7 or the appellant, and tenancy of the occupants has to be terminated prior to filing the eviction petition under the Public Premises (Eviction of Unauthorized Occupants) Act; however, the Estate Officer directed M/s Vastralok to pay rent/ license fee at a rate of Rs. 300/ per month to the present appellant after adjusting the amount already paid to the present respondent no. 7. In the operative part of order dated 27.05.1986, the Estate Officer held that the eviction petition was premature since the present appellant had been restrained by the civil court from dispossessing M/s Vastrlok.
PPA No. 30131/2016North Delhi Municipal Corporation vs The Estate officer Page 4 of 18 pages 2.3 The above order dated 27.05.1986 of the Estate Officer was challenged before the appellate court by way of four appeals. Two of those appeals were filed by the present respondent no. 7 while two appeals were filed by the present respondent no. 2 Shri Jitender Nath. By way of judgment dated 03.03.1989, the appellate court of Shri R.P. Gupta, Additional District Judge held that since the present appellant had failed to prove or even plead that lease or license granted to the present respondent no. 7 had been terminated, it could not be said that the present respondent no. 7 was unauthorized occupant, so appeal of the present respondent no. 7 was allowed and consequently, the appeals filed by Shri Jitender Nath were dismissed as infructuous. However, the learned appellate court also granted liberty to the present appellant to proceed afresh in accordance with law.
2.4 Accordingly, fresh eviction proceedings were initiated by the present appellant against M/s Vastralok. By way of order dated 29.06.1989, the Estate Officer dismissed the eviction petition, holding that M/s Vastrlok was not unauthorized occupant because a resolution of the appellant laid down that all the sublettees of the shops who were in actual occupation as on 15.08.1964 in the market of the corporation and controlled by the corporation be treated as regular tenants on the PPA No. 30131/2016 North Delhi Municipal Corporation vs The Estate officer Page 5 of 18 pages condition of payment of complete arrears. However, the Estate Officer directed enhancement of rent from Rs. 300/ to Rs. 375/ per month.
2.5 The appellant challenged order dated 29.06.1989 of the Estate Officer by way of appeal. By way of judgment dated 20.11.1992 of the court of Shri M.S. Rohilla, Additional District Judge, the said appeal was dismissed, holding that M/s Vastralok had ceased to be a subtenant and had admittedly become direct tenant/ licensee, whose lease/ license had not been canceled, so M/s Vastralok could not be held to be unauthorized occupant.
2.6 In the meanwhile, by way of communication dated 15.09.1989 tenancy of respondents no. 26 was terminated but they did not vacate the subject premises, so predecessor of the appellant filed eviction petition against respondents no. 27.
2.7 By way of order dated 04.03.1994, the Estate Officer remanded the matter to the appellant for reconsideration in the light of resolutions of the appellant, and obtain report of the liquidator qua respondent no. 7 whether it had been wound up by the office of Registrar, Cooperative Societies, Government of NCT of Delhi. In the operative part of order dated 04.03.1994, the Estate Officer held thus :
PPA No. 30131/2016North Delhi Municipal Corporation vs The Estate officer Page 6 of 18 pages "That in view of the above mentioned facts, I have no other alternative except to remand back the case to the department through the petitioner for reconsideration of the points envisaged for various resolutions of the statutory committees/bodies. It is therefore necessary to have a detailed report of the liquidator in respect of DMC Cooperatives Store etc and after obtaining the said report, the proceedings can be proceeded further". (emphasis supplied) 2.8 The appellant issued letters dated 22.06.2009 to respondents no. 26, calling them upon to submit documents related to their occupancy of the subject premises. The said respondents sent replies stating that they were occupying the subject premises on the basis of orders of the year 1986, 1989 and 1994 passed by the Estate Officer.
2.9 After examining the said replies, instead of proceeding further before the Estate Officer in the eviction petition in which remand back order dated 04.03.1994 had been passed, the predecessor of appellant filed fresh petition for eviction and recovery of damages against respondents no. 27 under the Public Premises (Eviction of Unauthorized Occupants) Act in the year 2012. In the said eviction petition, notices were issued to respondents no. 27 but vide order dated 02.05.2012, the proceedings were adjourned sine die for want of PPA No. 30131/2016 North Delhi Municipal Corporation vs The Estate officer Page 7 of 18 pages requisite documents. The said order dated 02.05.2012 was passed by the Estate Officer on the application for directions to the present appellant to supply documents relied upon by the appellant but the said documents were reported to be not traceable and even the report of the liquidator was found to be not on record before the Estate Officer.
2.10 Thereafter, the appellant filed application dated 29.08.2012 on 06.09.2012 alongwith the requisite documents and sought revival of eviction proceedings.
2.11 The present respondents no. 26 filed application dated 05.03.2013 seeking rejection of the eviction petition. The Estate Officer vide order dated 25.03.2013 directed the respondent no. 7 and all other persons who may be in occupation of the subject premises except respondent no. 26 to vacate the subject premises within fifteen days of publication of the order. The Estate Officer also ordered that the appellant was entitled to damages from respondents no. 27 and the same be worked out and recovered.
2.12 In compliance of order dated 25.03.2013 of the Estate Officer, the appellant received vacant possession of the subject premises except to the extent of the portions occupied by respondents no. 26.PPA No. 30131/2016
North Delhi Municipal Corporation vs The Estate officer Page 8 of 18 pages 2.13 Hence, the present appeal, assailing order dated 25.03.2013 to the limited extent qua rejection of the eviction proceedings against respondents no. 26.
3. By way of impugned order, the Estate Officer rejected the eviction petition after recording the above narrative in details and held thus :
".... The stand of the MCD before this court is no different than the stand taken by the MCD in the earlier proceedings under the PP Act against respondent no. 1 to 5. I find force in the submissions of learned counsel for respondent no. 1 to 5 that the MCD filed an appeal in the court of Shri R.P. Gupta, ADJ, who has remanded back the matter to the Estate Officer vide order dated 03.03.1989. On reconsideration of the matter, in compliance to the order of ADJ dated
03.03.1989, the Estate Officer on the basis of Corporation Resolution No. 482 dated 22.02.1964 observed that the M/s Vastrlok does not come under the category of unauthorized person and dismissed the petition u/s 4,5 as not maintainable. More over, it is mentioned in para 8 and 9 of the petition that no remand proceedings vide order dated 04.03.1984 of the Estate Officer have commenced before the administrative order of the Commissioner MCD dated 23.03.2010 has been passed. Learned counsel for respondent have submitted that no opportunity of hearing was given to respondents no. 1 to 5. In the judgment dated 03.03.1989 and 04.03.1994, the same contentions of the MCD were rejected. There is no occasion of this court to take a different view than the view taken by the court while deciding earlier PP Act PPA No. 30131/2016 North Delhi Municipal Corporation vs The Estate officer Page 9 of 18 pages petitions. ..... Accordingly, the application of respondent no. 1 to 5 regarding rejection of the petition is allowed....
Now, therefore, in exercise of the powers conferred on me under subsection (1) of Section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, I hereby order that the said respondent no. 6 (the present respondent no. 7) and all other persons who may be in occupation of the said premises or any part thereof except the portion defined in the order in occupation of respondent no. 1 to 5 (present respondent no. 26) to vacate the said premises within 15 days of publication of this order". (emphasis supplied)
4. During final arguments, learned counsel for both sides took me through the above narrative with the help of the original records of the Estate Officer. Learned counsel for appellant argued that the Estate Officer erred in allowing rejection of the eviction petition, in so far as there was not bar to entertain and decide fresh petition since in the fresh petition, the appellant for the first time took a plea that respondents no. 26 have become unauthorized occupant after termination of tenancy, and this stand was not taken by the appellant earlier. On the other hand, learned counsel for respondent strongly opposed the appeal on the ground that the impugned order was rejection of eviction petition qua respondents no. 26 and not being an order in the exercise of Section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act, the PPA No. 30131/2016 North Delhi Municipal Corporation vs The Estate officer Page 10 of 18 pages appeal is not maintainable. It was argued by learned counsel for respondent that the rejection of petition is in the nature of an order passed under Order VII Rule 11 CPC and the same is not amenable to appellate jurisdiction under Section 9 of the Act. In response, learned counsel for appellant argued that heading of the impugned order clearly mentions that the same is an order passed under Section 4, 5, 7, and 14 of the Public Premises (Eviction of Unauthorized Occupants) Act and that the Act does not create any distinction between rejection of a petition and dismissal of the same. Learned counsel for respondent argued that instead of complying with the order dated 04.03.1994 of the Estate Officer or challenging the same by way of appropriate proceedings, the appellant filed fresh eviction proceedings, which was not permissible in law.
5. This appeal involves two questions :
(i) Whether the impugned order to the extent of rejection of eviction petition is amenable to the appellate jurisdiction of this court under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act?
(ii) Whether it was open to the appellant to abandon the previously instituted eviction proceedings after remand back order dated 04.03.1994 and initiate fresh eviction proceedings?
PPA No. 30131/2016North Delhi Municipal Corporation vs The Estate officer Page 11 of 18 pages QUESTION No. (i)
6. There is no dispute to the legal proposition that an appeal under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act can be filed to assail the orders of only the specified nature, viz. Section 5 or Section 5B or Section 5C or Section 7. Also admittedly, this court while exercising appellate powers under Section 9 of the Act, acts as a creature of the statute and not a civil court. An order which does not fall in any of the specified nature of orders cannot be assailed by way of appeal under Section 9 of the Act. The question is as to whether the impugned order in the present case was an order passed under Section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act or it was simply a procedural order passed prior to culmination of eviction proceedings.
7. No doubt the title of the impugned order of the Estate Officer is : "ORDER UNDER SECTIONS 4, 5, 7 AND 14 OF THE PUBLIC PREMISES (EVICTION OF UNAUTHORIZED OCCUPANTS) ACT, 1971", but it is the content of the order which has to be examined in order to ascertain as to whether the impugned order is an order passed under Section 5 of the Act. Provisions of law cited in PPA No. 30131/2016 North Delhi Municipal Corporation vs The Estate officer Page 12 of 18 pages the title of the order must pale into insignificance if the overall reading of the order conveys otherwise.
8. In the case of Archana Dey and another vs South Eastern Coalfields Ltd. & Ors., AIR 1997 Madhya Pradesh 103, the Hon'ble Madhya Pradesh High Court held that mere wrong reference of provision of law in the notice or the order does not invalidate the notice or the order. In the light of specific facts of the said case, the Hon'ble High Court held that in the said case, the facts required for exercise of power under Section 5A and 5B of the Act did exist, so orders of the Estate Officer could not be faulted on the ground that in the notice, only Section 5A of the Act was referred.
9. In case of Hukumchand Mills Ltd. vs The State of Madhya Pradesh & Anr., AIR 1964 Supreme Court 1329 (V 51 C 172), the Hon'ble Supreme Court of India reiterated that merely a wrong reference to the power under which certain actions are taken by the government would not per se vitiate the actions done if they can be justified under some other power under which the government could lawfully do those acts, therefore, mere mistake in the opening part of the notification in reciting wrong source of power does not affect the validity thereof.
PPA No. 30131/2016North Delhi Municipal Corporation vs The Estate officer Page 13 of 18 pages
10. As quoted above, the operative part of the impugned order was : "Accordingly, the application of respondent no. 1 to 5 regarding rejection of the petition is allowed", and after that statement, the impugned order went ahead to direct the present respondent no. 7 and persons claiming under it to vacate the premises. Thus, primarily the impugned order qua respondents no. 26 was rejection of the eviction petition and not dismissal of the eviction proceedings.
11. It also must be noted that as just reflected from the emphasis portion of quoted impugned order, not just at the back of his mind, but even in his explicit expression, the Estate Officer was absolutely clear that power under Section 5 of the Act being exercised by him was qua only respondent no. 7 and not others.
12. Section 5(1) of the Public Premises (Eviction of Unauthorized Occupants) Act stipulates passing of the eviction order only if "after considering the cause" if any shown by a person served with notice under Section 4 of the Act, and "any evidence" produced by such person in support of his cause, and "after personal hearing", the Estate Officer is "satisfied" that the public premises are in unauthorized occupation. In other words, the cause shown by the respondent of PPA No. 30131/2016 North Delhi Municipal Corporation vs The Estate officer Page 14 of 18 pages eviction proceedings, evidence produced by him, personal hearing afforded to him and satisfaction of the Estate Officer qua unauthorized occupation are precursor to passing an eviction order under Section 5 of the Act. Where proceedings are throttled midway by rejection of the eviction petition, the order in question cannot be termed as an eviction order passed under Section 5 of the Act.
13. The question as to whether the Estate Officer could have validly throttled the eviction proceedings midway in the present case cannot be examined by this court, because such an exercise would be sitting in appeal over an order which does not fall within the nature of orders specified under Section 9 of the Act.
14. There is another aspect. Assuming the present appeal was to be allowed, what would be the operative part of appellate judgment. The operative part would be holding that rejection of the eviction petition was bad in law, and nothing further. Such an order holding that rejection of the eviction petition was bad in law is not contemplated by Section 9 of the Act.
15. In view of above discussion, I have no hesitation to answer question no. 1 by holding that the impugned order is not an eviction PPA No. 30131/2016 North Delhi Municipal Corporation vs The Estate officer Page 15 of 18 pages order as stipulated by Section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act and consequently, the impugned order is not amenable to challenge under the appellate jurisdiction of this court under Section 9 of the Act.
QUESTION No. (ii)
16. Despite having held that the impugned order is not amenable to appellate jurisdiction of this court under Section 9 of the Act, question no. (ii) framed above is being ventured into since both sides advanced arguments. According to respondent, in the backdrop of order dated 04.03.1994 of the Estate Officer, the appellant could not have filed fresh eviction petition, therefore, rejection of the eviction petition was valid in law. According to appellant, fresh eviction petition could have been filed taking a fresh plea that after termination of tenancy the respondents no. 26 became unauthorized occupants.
17. By way of order dated 04.03.1994, the Estate Officer had not dismissed the eviction petition but had remanded back the matter as quoted above, directing the appellant to reconsider in the light of resolutions of the appellant and obtain report of the liquidator qua respondent no. 7. As the operative part of order dated 04.03.1994 PPA No. 30131/2016 North Delhi Municipal Corporation vs The Estate officer Page 16 of 18 pages quoted above clearly shows, the proceedings were left open to be continued further. Those eviction proceedings could not be left abandoned in limbo by the appellant in order to prefer fresh proceedings.
18. Coming to the argument of learned counsel for appellant that earlier the proceedings were being conducted on the premise that respondents no. 26 were rank trespassers while the subsequent proceedings were initiated on the premise that respondents no. 26 were originally tenants but after termination of tenancy they became unauthorized occupants. The argument fails to reason. For, no such plea was raised in the subsequently filed eviction petition or even in the present appeal. Secondly, nothing prevented the appellant from seeking withdrawal of the previously filed petition with leave to file fresh eviction petition on the fresh premise, but the same was not done. Thirdly and most importantly, the eviction petition on which the Estate Officer passed remand back order dated 04.03.1994 was filed on 10.04.1990 as reflected from that order; tenancy of respondents no.26 having been terminated on 15.09.1989, the appellant could not have pleaded in eviction petition dated 10.04.1990 the earlier pleaded case of respondents no. 26 being rank trespassers and consequently, there was no change of circumstances as rightly observed by the Estate Officer to bring fresh petition, abandoning the eviction petition dated 10.04.1990.
PPA No. 30131/2016North Delhi Municipal Corporation vs The Estate officer Page 17 of 18 pages
19. In view of above discussion, I am unable to find any infirmity in the impugned order dated 25.03.2013 of the Estate Officer, so the same is upheld. The appeal is dismissed.
20. A copy of this judgment be sent to the Estate Officer and appeal file be consigned to records, leaving the parties bear their own costs.
Announced in the open court on
this 29th day of November 2019 (GIRISH KATHPALIA)
District & Sessions Judge(HQs)
Tis Hazari Courts, Central
Digitally signed
by GIRISH Delhi 29.11.2019 (a)
KATHPALIA
GIRISH
Date:
KATHPALIA 2019.12.02
14:38:28
+0530
PPA No. 30131/2016
North Delhi Municipal Corporation vs The Estate officer Page 18 of 18 pages