Delhi District Court
M/S Radhey Mohan Club (Atchison Club) ( ... vs North Delhi Municipal Corporation on 15 September, 2023
IN THE COURT OF PRINCIPAL DISTRICT & SESSION JUDGE
WEST DISTRICT, TIS HAZARI COURTS, DELHI
PPA No.4/2022
CNR No. DLWT010103162022
M/s Radhey Mohan Club (ATCHISON CLUB)
Through Its President /Authorized Officer
Mr. Vijay Kumar Wahee
2769, Queens Garden, SPM Marg,
Opposite Old Delhi Railway Station
Delhi110006. .....Appellant
Versus
North Delhi Municipal Corporation
Through its Commissioner,
7th Floor, SPM Civic Centre,
New Delhi.
(Now Municipal Corporation of Delhi) .....Respondent
Date of institution : 01.10.2021
Date of conclusion of arguments : 15.09.2023
Date of judgment : 15.09.2023
JUDGMENT
1. This is an appeal under Section 9 of The Public Premises (Eviction of Unauthorized Occupants) Act 1971 (in short, 'PP Act'), against the impugned order dated 16.09.2021 (received by appellant on 18.09.2021) passed by Smt. Sangeeta Bansal, Estate Officer, Public PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 1 of 33 Premises Department, North Delhi Municipal Corporation, Civic Center, New Delhi, whereby petition filed by the respondent under Section 4, 5, 7 & 14 of the PP Act was allowed and an eviction order was passed in respect of premises No. 2769, Queens Garden having an area measuring 2699.25 sq. yds. Delhi along with recovery of damages amounting to Rs. 19,06,41,891/ was passed.
2. Notice of appeal was issued to respondent i.e. North Delhi Municipal Corporation (now Municipal Corporation of Delhi). The respondent filed reply and contested the appeal. Trial court record was summoned.
Petition of Municipal Corporation of Delhi Before Estate Officer
3. Perusal of the trial court record shows that North Delhi Municipal Corporation (respondent herein) filed a petition before the Estate Officer under Section 4, 5, & 7 of The Public Premises (Eviction of Unauthorized Occupants) Act, 1971 for eviction of Radhey Mohan Club (ATCHISON CLUB) (in short, 'Club') from the public premises in question.
4. In para 1 of the petition, it is stated that the North MCD is the owner of the property bearing No. 2769, Queens Garden SPM Marg, PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 2 of 33 Opposite Old Delhi Railway Station, admeasuring 2699.25 sq. yds. In support of this claim, MCD relied upon the Immovable Property Register (in short, 'IP Register') showing the ownership of the demised premises in favour of the Municipal Corporation of Delhi (in short, 'MCD').
5. In para 2 of the petition, it is stated that the demised premises earlier belonged to the erstwhile Municipal Corporation of Delhi and after trifurcation in the year 2012, now belongs to the petitioner herein, who has the sole and exclusive jurisdiction upon the area wherein which the demised premises is situated.
6. In para 3 of the petition, it is stated that as per the records available with the Land and Estate Department of MCD, annual temporary permissions for using the demised premises as a Tennis Club by its member was granted by the erstwhile MCD subject to submission of the information regarding the members of the club and the deposition of the requisite permission fee.
7. In para 4 of the petition, it is stated that the demised premises was earlier known as "ATCHISON CLUB" now known as Radhey Mohan Club. In para 5 of the petition, it is stated that after initial PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 3 of 33 grant of permission, no application for the grant of said temporary annual permission has been filed by the Club nor any permission fees has been got deposited.
8. In para 6 of the petition, it is stated that further, huge unauthorized construction has been raised or carried out in the demised premises by the Club apart from misusing the same for various commercial activities like holding social functions, marriages etc.
9. In para 7 of the petition, it is stated that despite issuing various communication dated 12.10.2018 to respondent, seeking present status of club, constitution of Managing Committee, details of activities, receipt of payment of rent etc. and permission upto date, no document/information was supplied to petitioner.
10. In para 8 of the petition, it is stated that respondent filed a reply dated 20.10.2018 but no satisfactory reply was given.
11. In para 9 and 10 of the petition, it is stated that the demised premises is a public premises and respondent is in unauthorised occupation of the same.
PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 4 of 33
12. In para 11 of the petition, it is stated that the demised premises is required by the Project and Maintenance Division of City S. P. Zone of North DMC in coordination with the PWD, GNCTD and SRDC for developing the demised premises as an underground bus terminal to be connected to old Delhi Railway Station, so as to ease and decongest the entire area from heavy traffic.
13. In para 12 of the petition, it is averred by MCD that a show cause notice cum eviction notice dated 16.08.2019 was issued to the Club seeking its reply along with necessary documentary evidence. The copy of the show cause notice cum eviction notice dated 16.08.2019 is AnnexureC.
14. In para 13 of the petition, it is stated that pursuant to show cause notice dated 16.08.2019, a reply dated 20.09.2019 was received wherein no plausible / cogent reasons were set out by the Club apart from contending that the Club is functional for the last more than 100 years being permitted by the Britisher to form an association for the local residents to foster brotherly feelings, healthy recreation and cultural activities. The copy of the reply dated 20.09.2019 is annexed with the petition.
PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 5 of 33
15. In para 14 of the petition, it is stated that the bare reading of the said reply would show that the Club has not put forth any cogent reason not has placed any documentary evidence on record to show that the Club is being run in the premises under any valid subsisting permission.
16. In para 15 of the petition, it is stated that it is amply clear from the records as well as from the reply dated. 20.09.2019 that the Club has failed to get the annual temporary permission in respect of the demised premises renewed since long. No documentary evidence was filed along with the reply nor any payment receipt of the payment of annual rent was filed. No details of the constitutions of the managing committee was filed. No detail of any sports activity being undertaken and performed by the Club has been put forth by the Club.
17. In para 16 of the petition, it is stated that the competent authority passed a detailed speaking order dated 13.02.2020, directing the Club to hand over the physical possession of the demised premises to the MCD and payment of an amount of Rs.19,06,41,891/ to the MCD for illegally occupying and misusing the demised premises. The copy of the speaking order along with the calculation sheet of the charges amounting to Rs.19,06,41,891/ being the market rent is PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 6 of 33 annexed as AnnexureE (Colly).
18. In para 17 of the petition, it is stated that the chronology of the above facts and circumstances as well as the record so maintained by the MCD would dhow that ample opportunity has been granted to the Club and after following the due process of law the speaking order dated. 13.02.2020 directing the Club to hand over the possession of the demised premises and payment of the above detailed amount being the market rent has been passed.
19. In para 18 of the petition, it is stated that the Club has neither handed over the possession of the premises in terms of the speaking order dated. 13.02.2020 nor has paid even a single penny towards the market rent misuse amount, as such, the present proceedings under the PP Act are being initiated after obtaining the order of the competent authority of the MCD to resort the proceedings under PP Act.
20. It was prayed in the petition that the orders for eviction may be passed against Club in respect of Public Premises i.e. premises bearing number 2769, Queens Garden SPM Marg, Opposite Old Delhi Railway Station, admeasuring 2699.25 sq. yds. along with the damages for use PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 7 of 33 and occupation of the said public premises in accordance with law and that the cost of the petition may be awarded to the petitioner against the respondent.
Written Statement filed by the Club Before Estate Officer
21. The Club filed written statement before the Estate Officer in which it was denied that North Delhi Municipal Corporation are the owners of the property in question. In para 1 of the written statement, it is submitted that under the scheme of the Transfer of the Property Act, the immovable property can be transferred by Sale, by assignment, by lease by mortgage by gift and by Exchange. In the present case as per AnnexureA referred to by the MCD in the paragraph under reply, it is clearly stated that subject property was transferred to the petitioner by Government Order namely Wilson Survey No. 101/115 only to manage and look after it, that too, on certain terms and conditions contained in the above said Wilson Survey No. 101/115. The MCD has not filed the Wilson Survey no. 101/115 purposely in order to conceal the terms and conditions contained in the order on the basis of which the subject property was transferred. It is submitted that when the subject property was transferred to the Club, the Club was already a Tenant / Lessee in perpetuity. It is further submitted that at the time of transfer of PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 8 of 33 subject property, it was / is having an area measuring 3100 sq. yds.
22. The Club denied the contents of para 2 of the petition and submitted that the property bearing no. 2769 having an area 3100 sq. yds. situated at SPM Marg as per column 6 of AnnexureA filed by the petitioner was transferred to the Municipal Corporation vide Government order subject to the terms and condition contained in the Wilson Survey No. 101/115 only for management of the lease property. It is requested that MCD be directed to file the Wilson Survey No. 101/115 along with the terms and conditions on the basis of which the subject property was transferred and also the transfer orders on the basis of which the MCD is claiming ownership. The Club reserved its right to file the reply as and when the above said Wilson Survey No. 101/115 and the Government order is produced by the MCD. The Club did not deny that there is trifurcation of Municipal Corporation of Delhi in the year 2012.
23. The Club denied the contents of para 3 of the petition and submitted that the Club was established in the year 1886 which was duly registered under Societies Registration Act XXI of 60 and a perpetual lease was granted by the predecessors of the MCD at a monthly rent of Rs.10/ which facts are well reflected in the columns 9 PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 9 of 33 and 10 of Register of Immovable Property filed by MCD as Annexure A. It is further submitted that the MCD is deliberately not producing the Wilson Survey Report, Government order as well as the copy of lease between the predecessors of MCD and the Club and is withholding a vital document containing the terms and conditions of the lease between the predecessors of the parties. The Club stated that it is paying rents as per perpetual lease agreed between the predecessor in interest of the parties as per clause 9 of AnnexureA.
24. In reply to para 4 of the petition, it is submitted that the Club is in occupation of the premises since day one of the perpetual lease granted by the petitioners predecessors in interest.
25. The Club denied the contents of para 5 of the petition and submitted that as per AnnexureA filed by the MCD, the possession of the Club in column 10 is shown as "perpetual lease" as well as in the plan annexed to the AnnexureA which is duly verified by the predecessor of the MCD. Therefore, MCD now cannot say that the Club was inducted in premises on temporarily annual permission basis and also in view of Section 115 of the Indian Evidence Act. It is submitted that the Club had deposited the rents time to time as and when demanded by the MCD at the rate of Rs.10/ per month as PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 10 of 33 promised by the Club and agreed by the predecessor of the MCD. It is further submitted that the MCD is accepting rents from the Club without any objection with regard to the possession and the activity carrying out by the Club.
26. The Club denied the contents of para 6 of the petition and denied any unauthorized construction. It is submitted that no commercial activity of any type is/was running at the leased premises by the Club.
27. The Club denied the contents of para 7 of the petition and submitted that the averment set out in the letter dated 12.10.2018 by MCD are vague. The Club through its the then Secretary had provided the constitution as well as other documents to the predecessor of the MCD at the time of leasing out the premises to the Club and the same are lying in the file of Wilson Survey No. 101/115. MCD is intentionally not filing the documents lying in file of Wilson Survey. As far as the lease rent is concerned, Club is ready to pay up to date lease rent, the MCD had never demanded lease rents from the Club.
It is submitted that the Club had already filed its constitution, etc. on 16.05.2016, which is filed by the Club alongwith the written statement as Annexure D1 (Colly).
PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 11 of 33 It is further submitted that there is no correspondence from North MCD or their predecessor during the period 1988 to 2015.
28. The Club denied the contents of para 8 of the petition but admitted filing of letter dated 20.10.2018.
29. The Club denied the contents of para 910 of the petition and alleged that premises was let out to the Club in perpetuity by the predecessor of MCD and the premises was transferred by a Government Order to MCD for managing the property as per Wilson Survey no. 101/115. It is submitted that the Club is not an unauthorized occupant. Therefore, PP Act is not applicable. It is submitted that a perpetual lease was executed by predecessor of MCD and thereafter Club's possession was confirmed by the survey conducted by Mr. A. J. Wilson as lessee. Therefore, it cannot be said that the possession of the Club is unauthorized.
30. The Club denied the contents of para 11 of the petition and it is denied that the premises is required for the project and maintenance division of city S. P. Zone of North DMC in Coordination with PWD, GNCTD and SRDC for developing the demised premises as an underground bus terminal to be connected to Old Delhi Railway PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 12 of 33 Station so as to ease and de congest the entire area from heavy traffic. No survey or plans of underground bus terminal was filed along with the petition. It is submitted that the demised premises does not come under so called underground Bus Terminal. The Club is not situated opposite to either entry gate or in front of exit gate of Old Delhi Railway Station. It is submitted that in case the demised premises falls within the project of Bus Terminal, in that event the Club is ready to fully cooperate in the construction of underground bus terminal only and the MCD should not obstruct the Club from running their activities from the ground floor as exists today in view of provisions under Section 14(1) of Delhi Rent Control Act.
31. In reply to paragraph 12 of the petition, it is submitted that the Club had received the alleged notice dated 16.08.2019. The said notice is illegal, arbitrary, contrary to Master Plan and the same is not under Section 14(1) of the Delhi Rent Control Act. It is submitted that the said notice was given to the Club in order to evict the Club. As per the Master Plan, the area falls in green zone wherein no construction activities are permitted or allowed. It was quite evident from the meeting on 18th March 2020, with the Asst. Deputy Commissioner of Land & Estate Department of North Delhi Municipal Corporation (Mrs. Akriti Sagar) that they wish to evict the Club unlawfully from the PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 13 of 33 demised premises and lease out the same to new prospective Lessee for similar purpose at significantly higher rates. This is the same modus operandi that had adopted on Gandhi Maidan ground. After constructing the parking, they have constructed a Mall under the name of Omaxe Chowk. The photocopy of the brochures published by the Omaxe are annexed as Annexure D2.
32. In reply to paragraph 13 of the petition it is submitted that the demised premises was taken on perpetual lease. The club exists since the inception of lease which is now more then 100 years old. The aim and object of the Club are to foster brotherly love and mutual help, to provide healthy recreation to provide faculties to the proper section of the society and the club is for the residents of old Delhi. Rest of the allegations contained in paragraph under reply are wrong and denied. It is further submitted that this is the only facility/club left in Shahjhanabad, providing multisports facilities as well as recreation activities since the regime of British Government.
33. Contents of paragraph 14 of the petition are not denied being matter of record.
PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 14 of 33
34. In reply to paragraph 15 of the petition, it is submitted that the Club is a lessee in the demised premises in perpetuity and is well reflected in AnnexureA filed by MCD and thus governed by Delhi Rent Control Act. The Club has filed the receipts which show that the petitioner had received rents upto 31.3.1988 calculated at the rate of Rs.10/ per month. The Club is also filing the documents in order to show that the clubs is also carrying out sports activity in the demised premises. The MCD has not filed any document to show that the premises was given annual temporary permission basis to the Club by the predecessor of the MCD. That the Club is functioning as per its constitution (Rules and Regulations), the management committee of the club is elected on regular basis during the annual general meeting. The respondent is filing the list of current Managing Committee alongwith this written statement and the same are annexed as Annexure D3 (Colly).
35. In reply to paragraph 16 of the petition, the Club has referred to policy / guidelines issued by Minister of Urban Development bearing No. 21011(7)90/POI.IV/H.11 dated 14.01.1992. In this circular, the PP Act provides for the eviction of unauthorized occupants from public premises by Estate Officers. This circular took note of a judgment in Ashoka Marketing Ltd. Vs. PNB and issued directions / framed PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 15 of 33 policies that the genuine tenant should be dealt with under the respective Rent Control Acts.
36. It is submitted that in view of the aforesaid guidelines, the MCD cannot ask the Club to pay a sum of Rs.19,06,41,891/. The MCD is only entitled to increase the rents in under Section 6A of Delhi Rent Control Act.
37. It is further submitted that since the Club is a lawful tenant/Lessee, MCD cannot claim damages. In view of Kalu Ram's judgement, the MCD is entitled to recover legally recoverable rents as the arrears are hit by law of limitation. The alleged calculations referred in AnnexureE (Colly.) are arbitrary illegal and the same are not tenable in the eyes of law. So far as the alleged speaking order is concerned in view of aforesaid lines the same is bad in law.
38. The Club denied the contents of para 17 of the petition and submitted that the so called speaking order dated 13.2.2020 bad in law and the same is liable to be set aside. No opportunity of personal hearing was given to the Club before passing this Speaking order and the same is liable to be set aside on this score alone.
PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 16 of 33
39. The Club denied the contents of para 18 of the petition.
Replication of MCD
40. MCD filed replication reiterating its stand.
Order of Estate Officer
41. After hearing the parties, the Estate Officer vide impugned order no. D887/E.O./P.P./NDMC PPA Case No. 1348/2020 dated 16.09.2021 directed eviction of the Club and payment of damages to the tune of Rs.19,06,41,891/. In default of the payment of said amount, the Club was directed to pay interest at the rate of Rs.15% per annum.
Present Appeal
42. Aggrieved by this order, the Club has filed the present appeal challenging it on various grounds. Reply to the appeal was filed and arguments were heard.
43. I take up the issues raised by appellant in this appeal point wise as under : Whether Delhi Rent Control Act, 1958 is Applicable to the Present Premises PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 17 of 33
44. Ld. counsel for the appellant has argued that the rent in the present case is Rs. 10/ per month as IP Register itself and therefore, the present case is covered under Delhi Rent Control Act, 1958 and the Estate Officer has no power to pass an eviction order in the present case.
45. I would like to refer to Preamble of the Delhi Rent Control Act, 1958, which is reproduced as under : "An Act to provide for the control of rents and evictions and of rates of hotels and lodging houses, and for the lease of vacant premises to Government, in certain areas in the Union territory of Delhi."
46. The Preamble itself shows that Delhi Rent Control Act, 1958 is not applicable to the premises leased by Government. This aspect has been made more clear in Section 3(a) of the Delhi rent Control Act, 1958, the relevant portion of which is reproduced as under : "Act not to apply to certain premises. Nothing in this Act shall apply
(a) to any premises belonging to the Government;"
47. The aforesaid provisions makes it clear that where a land has been let out by Government, provisions of Delhi Rent Control Act would not be applicable.
PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 18 of 33
48. I would like to refer here Ashoka Marketing Private Ltd. vs. PNB, AIR 1991 SC 855, in which Hon'ble Supreme Court of India held as under : "It would thus appear that, while the Rent Control Act is intended to deal with the general relationship of landlords and tenants in respect of premises other than government premises, the Public Premises Act is intended to deal with speedy recovery of possession of premises of public nature, i.e. property belonging to the Central Government, or Companies in which the Central Government has substantial interest or Corporations owned or controlled by the Central Government and certain corporations, institutions, autonomous bodies and local authorities. The effect of giving overriding effect to the provisions of the Pubic Premises Act over the Rent Control Act, would be that buildings belonging to Companies Corporations and Autonomous bodies referred to in Section 2(e) of the Public Premises Act would be excluded from the ambit of the Rent Control Act in the same manner as properties belonging to the Central Government. The reason underlying the exclusion of property be longing to the Government from the ambit of the Rent Control Act, is that Government while dealing with the citizens in respect of property belonging to it would not act for its own purpose as a private landlord but would act in public interest. What can be said with regard to Government in relation to property belonging to it can also be said with regard to companies, corporations and other statutory bodies mentioned in Section 2(e) of the Public Premises Act. In our opinion, therefore, keeping in view the object and purpose underlying both the enactments viz., the Rent Control Act and the Public Premises Act, the provisions of the Public Premises Act have to be construed as overriding the provisions contained in the Rent Control Act."
PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 19 of 33
49. As per the IP Register and as per Club's own case, the land in question is a Government land leased out to the Club. The IP Register shows that the piece of land leased out to Club was owned by the erstwhile Municipal Committee, which was succeeded by Municipal Corporation of Delhi. It is not in dispute that the MCD was trifurcated and North MCD succeeded erstwhile MCD in respect of the area in question. Presently, all the three MCDs have been unified and presently, the property in question is owned by MCD. In view of aforesaid discussion, it is clear that The Delhi Rent Control Act, 1958 is not applicable to the present case and the Estate Officer is empowered to act and pass appropriate order under PP Act.
Policy / Guidelines issued by Ministry Of Urban Development Bearing No. 21011(7)90/Poi.Iv/H.11 Dated 14.01.1992
50. In reply to paragraph 16 of the petition, the Club has referred to policy / guidelines issued by Minister of Urban Development bearing No. 21011(7)90/POI.IV/H.11 dated 14.01.1992. Ld. Counsel for appellant argued that as per this circular, the appellant could have been evicted only through the procedure laid down in Delhi Rent Control Act, 1958 and therefore, the Estate Officer had no power to pass the impugned eviction order. I have perused the said circular. This circular took note of a judgment in Ashoka Marketing Ltd. Vs. PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 20 of 33 PNB, in which, Supreme Court of India observed that every activity of the Public Authority should be guided by public interest and that they were expected to deal with their tenants distinctly from private land lords. At the same time several representations against the eviction proceedings taken up under the amendment had been received in the Ministry and various Administrative Ministry, from individuals, organizations, legal experts and Members of Parliament urging the Government to issue guide lines so that the provision of PP Act are not indiscriminately used by statutory organization etc. to oust genuine tenants.
In this circular, it is further mentioned that the matter was discussed in detail in an interministerial meeting held on 20 th of August 1991. The consensus in this meeting was that the Public Sector Undertakings should not use the P.P.Act to evict genuine tenants, but use the Act primarily to evict those found to be sub letting the premises for commercial or residential purpose or illegal occupants or recalcitrant employees who have ceased to be in service of the Public Sector Undertakings.
Circular also considered that the amended P.P. Act so far as it affects the PSUs and corporations has already been upheld by the highest judicial authority, the Government has decided that the protection of the Public Premises Act enjoyed by the premises of PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 21 of 33 Government owned organizations should continue. At the same time, it has been decided to prescribe for the benefit of all these organizations a set of guidelines in order to prevent arbitrary use of the provisions of the P.P. Act to evict genuine tenants and to limit the use of the summery powers primarily to evict unauthorized occupants and retired employees of the enterprises. This will ensure compliance with the spirit underlying the protection extended by the Parliament to these premises and the observation of the Supreme Court while upholding the validity of the amended Act. The guidelines would set limits for the resort to P.P. Act by the PSUs and ensure that the interest of the genuine tenants are not jeopardized. Accordingly, this circular issued following agreed guidelines :
(i) The provisions of the P.P. Act should be used primarily to evict totally illegal occupants of the premises of public authorities or unauthorized sublettees, or employees who have ceased to be in their service and thus ineligible for occupation of the premises. The proceedings should be initiated in accordance with the provisions of the Act only in cases where the occupation becomes unauthorized on genuine grounds of law.
(ii) The provisions of the Act should not be restored to either with a commercial motive or to secure vacant possession of the premises in order to accommodate their own employees, where the premises were in occupation of the original tenants to whom the premises were let either by the public authorities or the persons from whom the premises were acquired.
(iii) A person in lawful occupation of any premises should not be treated or declared to be an unauthorized occupant merely on service of notice of termination of tenancy, nor should any contractual agreement be wound up by taking advantage of the provisions, of the Act. At the same ti,e it will be open to the public PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 22 of 33 authority to secure periodic revision of rent in terms of the provisions of the Rent Control Act in each State or to move under genuine grounds under the Rent Control Act for resuming posses on. In other words, the public authorities would have rights similar to private landlords under the Rent Control Act in dealing with genuine legal tenants.
(iv) It is necessary to give no room for allegations that evictions were selectively resorted to for the purpose of securing an unwarranted increase in rent or that a change in tenancy was permitted in order to benefit particular individual or institutions in order to avoid such imputations or abuses of discriminatory powers. The release of premises or change of tenancy should be decided to the level of Board of Directors of the Public Undertaking.
(v) All Public Undertakings should immediately re view all pending cases before Estate Officer or Courts with reference to these guidelines and withdraw eviction proceedings against genuine tenants on the grounds otherwise than as provided under these guidelines. The provisions under the P. P. Act should be use henceforth only in accordance with these guidelines.
I would request you to advice your officers to issue these guidelines to all the PSUs/Corporations under the administrative control of your Ministry/Department for strict enforcement. The guidelines may also be given wide publicity.
With kind regards.
Yours sincerely, (SHEILA KAUL)
51. Ld. Counsel for appellant has based his arguments on the directions which has been underlined by me as above. However, I am of the opinion that no circular can override the express provisions of law / Act. The Delhi Rent Control Act, 1958 as already discussed is not applicable to the piece of land in question. Hence, the above circular cannot be considered in the present proceedings.
PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 23 of 33 Whether the Plot tn Question was already sold in Public Auction as per Survey Sheet No. 151 for the Year 19101112.
52. One of the grounds challenging the impugning order is that MCD is not the owner of the plot because as per the aforesaid survey sheet the plot in question was sold in public auction. Alongwith the appeal, the appellant has filed the copy of the Survey alongwith its English translation annexed as document A7.
53. Ld. counsel for respondent / MCD submits that this survey sheet is No. 151 for the year 19101112 and is in respect of Kohan Road, Nahar Sa Adat Khan. However, there is no reference to the subject plot. There are four plots specified at page No.2 of this document. The plot numbers are 46/6, 47, 48 and 48/6 and therefore, it is of no benefit to the appellant.
54. Further, it is submitted by ld. Counsel for MCD that a copy of survey register of Delhi Municipality (Annexure A8) has been annexed by the appellant which shows Plot No. 2267 at Hamilton Road. Clearly it is not the number of the present plot. Further, there are plots No. 2269 and 2270 on the Queen's Road mentioned in this Survey Register of Delhi Municipality. It is further submitted by ld. Counsel for respondent/MCD that the premises number of the plot in PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 24 of 33 question is 2769. There is no reference of the present plot in the said Survey Register of the predecessor of MCD. It is not in dispute that Delhi Municipality was predecessor of MCD.
55. I have considered the rival submissions. It is necessary to mention here that Public Premises (Eviction of Unauthorised Occupants) Act, 1971 provides a quick and summary procedure for eviction of the unauthorised occupants, it is enough for Estate Officer to rely upon the Government records in order to determine as to whether if a particular property is a public premises or not. In the present case, the IP Register contains the description of the properties belonging to MCD and the subject property has been described as the property of MCD in IP Register. This is sufficient for Estate Officer to proceed on the basis of the said Register. It is necessary to mention here that an Estate Officer under the Public Premises (Eviction of Unauthorised Occupants) Act is not expected to step into the shoes of a Civil Court, only which has been assigned an exalted and exclusive authority of passing a decree of declaration of ownership of a property. The Estate Officer does not have an authority to go into the question of ownership of a property if such property has been reflected as a Government property in Government records. If appellant wants to challenge the entry in IP Register showing the said property as PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 25 of 33 belonging to MCD, he can only approach a Civil Court. Moreover, these documents / survey report do not show as to how appellant is in occupation of the subject property. Now, it is the case of appellant that it was or had paid rent / licence fee to a person other than MCD. Therefore, the documents produced by the appellant are of no benefit to him. I may clarify here that ld. Counsel for appellant had argued that a specific issue of ownership of property should be framed and the case should be remanded back to Estate Officer with a direction that parties should be allowed to lead their respective evidence on such issue. I am of the opinion that framing of such an issue is beyond the scope of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. therefore, this request is declined. The Estate Officer has to act within a very narrow jurisdiction. He is to see as to whether the property in question is a Government property as per the Government records and if so, whether, as per information received, the occupant in question is unauthorised or not.
56. As per Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, on receiving of such an information, Estate Officer has to issue a notice to show cause as to why an order of eviction should not be made. Therefore, the entire responsibility is PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 26 of 33 upon the noticee to show to the Estate Officer as to how he is authorised to stay on the public premises.
Nature of Lease
57. The appellant has heavily relied upon the relevant entry in the "Register of Immovable Property" of Municipal Corporation of Delhi. The register contains 19 columns but I would refer to only relevant columns as under :
(i) In column no.3, it is written in Hindi that the land is given to the Club on lease.
(ii) Column no.6 is in respect of "number and date of Government order transferring the management to the Municipal Corporation of Delhi". In this column there is reference of Wilson Survey No. 115101.
(iii) Column no.8 refers to "number and date of order authorizing such occupation and the authority by whom ordered." Under this column also there is reference of Wilson Survey No.115101, Resolution No.1, Garden Committee dated 11.11.1942. OM 18.11.1942.
(iv) Column No.9 refers to "name of tenant, lessee, if any, and term of lease". Under this column, Secretary of this Club has been mentioned at the rate of Rs.10/ per month.
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(v) Column No.10 refers to the "date of termination of lease". In this column, it is written in Hindi "अससममत".
(vi) Column no. 19 refers to "file no. 266/अ०स०/68".
58. Ld. counsel for appellant argued that the file No. 266 referred to in column No. 19 must be containing the terms and conditions of the lease. It is submitted that the respondent / MCD is concealing this file. Further, it is submitted that the duration of lease has been mentioned in Column 10 as "अससममत", which means that it was a perpetual lease in favour of appellant.
59. I have considered rival submissions on this important issue.
60. Section 105 of the Transfer of Property Act, 1882 defines "lease"
and specifies that a lease of immovable property can be for a certain time duration as well as "in perpetuity". The Hindi version of Transfer of Property Act translates these words as "शशशवत कशल कक ललए". The IP Register does not mention that lease is for "शशशवत कशल", rather it simply used the word "अससममत", which may mean "unspecified period" and may also mean "in perpetuity". Even if the word "अससममत" means "perpetuity", in that situation such lease deed must be registered as per Section 107 of The Transfer of Property Act, 1882.
PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 28 of 33 Where such lease is not registered, it has to be presumed to be a lease for month to month terminable on part of either lessor or lessee by 15 days' notice as per Section 106 of The Transfer of Property Act, 1882.
61. It must be kept in mind that the registered lease deed is a public document and if its copy is not available with the appellant, he could have inspected the records with SubRegistrar and could have placed the same before Estate Officer as well as before this Court. As appellant has not done so, lease of property in favour of appellant for perpetuity cannot be presumed. Therefore, status of appellant was at the best that of a lessee on month to month basis and appellant cannot be held to be a lessee in "perpetuity".
Whether Eviction Petition could not be decided without bringing resolution no.1 passed by Garden Committee on 11.11.1942 and confirmed by original Minutes on 18.11.1942?
62. Ld. Counsel for appellant argued that the Garden Committee had passed a resolution requiring that gardens and sports premises should be maintained and they should not be used for any other purpose. It is submitted that MCD Act was passed in the year 1957 and therefore, MCD is bound to owner the aforesaid resolution no.1 of Garden Committee.
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63. I may mention here that no resolution of any Garden Committee and original minutes dated 18.11.1942 have been placed on record by appellant. Even if, some guidelines or instructions were passed by a Committee, the same cannot change the character of the premises in question. As already stated, the subject property is a public premises and the Estate Officer is empowered as per law to pass eviction order.
Whether as per Clause 12.4.3. of Master Plan of Delhi, the Government is not empowered to take open areas for development of parking etc.
64. It is argued by Ld. Counsel for appellant that the MCD wants this land as underground bus terminal to be connected to Old Delhi Railway Station. It is submitted that it is in violation of the Master Plan.
65. I have considered this submission. The issues before the Estate Officer were threefold. (1) Whether the subject property is a public premises, (2) Whether the appellant is unauthorised occupant and (3) Calculation of market rent. The Estate Officer cannot travel beyond the above said three issues and therefore, it is not within his jurisdiction to pass any order as to whether the subject premises is being acquired in violation of Master Plan.
PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 30 of 33 Whether the MCD cannot recover the time barred arrears
66. It is argued by ld. Counsel for the appellant that the respondent / MCD calculated the arrears which were time barred. Ld. Counsel for the appellant has referred to New Delhi Municipal Committee vs. Kalu Ram & Anr., 1976 AIR 1637, in which, Hon'ble Supreme Court of India has held as under : "Does Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 create a right to realise arrears of rent without any limitation of time ? Under section 7 the Estate Officer may order any person who is in arrears of rent 'payable' in respect of any public premises to pay the same within such time and in such instalments as he may specify in the order. Before however the order is made, a notice must issue calling upon the defaulter to show cause way such order should not he made and, if he raised any objection, the Estate Officer must consider the same and the evidence produced in support of it. Thus the Estate Officer has to determine upon hearing the objection the amount of rent in arrears which is 'payable.' The word 'payable' is somewhat indefinite in import and its meaning must he gathered from the context in which it occurs. 'Payable' generally means that which should be paid. If the person in arrears raises a dispute as to the amount, the Estate Officer in determining the amount payable cannot ignore the existing laws. If the recovery of any amount is barred by the law of limitation, it is difficult to hold that the Estate Officer could still insist that the said amount was payable. When a duty is cast on an authority to determine the arrears of rent, the determination must be in accordance with law. Section 7 only provides a special procedure for the realisation of rent in arrears and does not constitute a source or foundation of a right to claim a debt otherwise timebarred. Construing the expression "any money due" in Section 186 of the Indian Companies Act, 1913 the Privy Council held in Hans Raj Gupta and others v. Official Liquidators of the Dehradun Mussorie Electric Tramway Company Ltd.(1) that this meant moneys due and recoverable in suit by the company, and observed: "it is a section which creates a special procedure for obtaining payment of moneys; it is not a section which purports to create a foundation upon which to base a claim for payment. It creates no new rights." We are clear that the word "payable" in Section 7, in the context in which its occurs, means "legally PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 31 of 33 recoverable." Admittedly a suit to recover the arrears instituted on the day the order under Section 7 was made would have been barred by limitation. The amount in question was therefore irrecoverable."
67. I may mention here that in written Statement before Estate Officer, the appellant had specifically referred to the aforesaid judgment but the Estate Officer has not referred to the aforesaid judgment. Alongwith the petition before Estate Officer, MCD had annexed an order dated 13.02.2020, vide which, the appellant was directed to vacate the property and to pay market rent for the municipal property which was calculated as per a calculation sheet. Perusal of the same shows that the market rent has been calculated from the year 1966. It is clear that MCD is demanding the arrears of market rate even for the period which is time barred. Therefore, the order demanding the market rent is set aside with direction to Estate Officer to exclude the period which is time barred by limitation and then, calculate the market rent/damages. The Estate Officer shall hear the parties on this point and pass a fresh order on the question of market rent/damages in view of New Delhi Municipal Committee vs. Kalu Ram & Anr., 1976 AIR 1637 (supra).
68. Consequently, I find no illegality in the impugned order so far as the question of eviction is concerned. However, the finding of the Estate Officer, vide which damages have been calculated by MCD, is PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 32 of 33 hereby set aside with directions to hear the parties afresh and pass a reasoned order as directed above.
69. The appeal is allowed partly.
70. Records of Estate Officer be returned back alongwith the copy of this judgment for compliance of directions contained therein. Parties shall appear before the Estate Officer on 21.9.2023.
71. Appeal file be consigned to Record Room.
Announced in the open court on 15.09.2023.
(Vinod Kumar) Principal District & Sessions Judge West District, Tis Hazari Courts, Delhi PPA No.4/2022 M/s Radhey Mohan Club (Atchison Club) Vs. NDMC Page No. 33 of 33