Delhi District Court
M/S Band Box Private Ltd vs The Estate Officer on 2 December, 2010
1
IN THE COURT OF SHRI S.P. GARG; DISTRICT JUDGEIV
NEW DELHI
ID 02403C1009192008
PPA No. 8/2008
M/s Band Box Private Ltd.
Through its Directorate18/19,
Connaught Circus,
New Delhi. ...... Appellant
versus
1. The Estate Officer,
Punjab & Sind Bank,
21, Rajendra Place,
New Delhi.
2. The General Manager,
Punjab & Sind Bank,
21, Rajendra Place,
New Delhi. ........ Respondents.
Date of institution of the appeal : 08.10.2008
Date when reserved for orders : 10.11.2010
Date of announcement of order : 02.12.2010
ORDER:
1. Present appeal u/s 9 of the Public Premises Act has Band Box 1 of 48 vs. Estate Officer 2 been preferred by the appellant against the order dated 23.09.2008 passed by learned Estate Officer by which the appellant was directed to vacate the premises in question.
2. Appeal was admitted for hearing. Notice of the appeal was given to the respondents. Record of the learned Estate Officer was summoned.
3. I have heard learned counsel for the parties and have gone through the file.
4. Plea of the appellant in the appeal is that the appellant is a bonafide tenant in the premises in question. The premises in question were leased to the appellant vide lease deed dated 26.3.1952. The premises in question are in bonafide occupation of the appellant for more than 50 years as genuine tenant. The appellant is carrying on its its legitimate business activities of dry cleaning clothes of its various customers in the premises in question since then. The respondents have claimed themselves to have become owner of the premises in question in the year 1978 after having purchased the same from the previous owner. The appellant under bonafide impression had been paying the rent Band Box 2 of 48 vs. Estate Officer 3 to respondent No.2 regularly. The parties were governed by Delhi Rent Control Act, 1957.
5. After the enactment of public Premises (Eviction of Unauthorized Occupants) Act, 1971 in addition to the Delhi Rent Control Act, powers to evict unauthorized occupants from its premises were conferred upon respondent No.2 as well. The Act was meant to evict unauthorized occupants like encroachers etc. This position in law was clarified by the Ministry of Urban Development, Government of India itself by issuing guidelines on 14.1.1992 wherein it was clearly laid down that resort to the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 should be made only in case of unauthorized occupants and not bonafide genuine tenants and for such bonafide, tenants, recourse should be taken under the Delhi Rent Control Act. Under Secretary, Banking Division, Ministry of Finance vide letter dated 14.7.1993 purported to issue a clarification by prefixing the word 'affluent' before the word 'tenant'. This clarification was apparently without jurisdiction as the original guidelines issued on 14.1.1992 had never mentioned the same. The position became clear after Band Box 3 of 48 vs. Estate Officer 4 fresh guidelines similar to the one issued in 1992 were issued again in 1994 for the implementation of the Act reiterating the original guidelines of the year 1992 by omitting the word 'affluent'.
6. Further case of the appellant in the appeal is that before issuance of these guidelines, the respondent No.2 issued first notice dated 19.12.1991 calling upon the appellant to vacate the premises on the alleged ground that the same were required for opening Regional Office of the respondent No.2. However, no action was initiated against the appellant for its eviction on the basis of the first notice dated 19.12.1991. Again respondent No.2 issued another notice dated 1.9.1992 on the same ground of requirement of the tenanted premises for opening a registered office but no legal proceedings whatsoever were initiated for eviction against the appellant.
7. Further case of the appellant is that the Board of Directors of the respondent No.2 in its meeting held on 29.1.1993 further decided to consider the guidelines dated 14.1.1992 before taking any action against the appellant. Despite that, respondent No.2 issued a third notice dated 26.2.1994 asking the respondent to Band Box 4 of 48 vs. Estate Officer 5 vacate the premises on a different ground for opening a Zonal Office. Again no legal proceedings were initiated against the appellant at that time. Issuance of various notices clearly demonstrated that there was malafide act on the part of respondent no.2 with a view to harass and blackmail the appellant who had remained in occupation of the premises in question as a bonafide tenant much prior to the respondent acquiring the premises in question. Respondent No.2 again vide its Board Resolution No.12254 dated 06.11.1998 proposed to adhere to the guidelines after deciding so in its Board Meeting of 17.10.1998.
8. Further case of the appellant is that ignoring the guidelines/resolution, the respondent No.2 issued another legal notice dated 15.11.1999 terminating its tenancy w.e.f. 31.12.1999 and calling upon it to vacate the premises in question for the alleged requirement of respondent No.2 for opening its registered office and for furthering the banking activities. Thereafter learned Estate Officer issued notice dated 18.12.2000 u/s 4 (1) of the PP Act upon the appellant calling him to show cause as to why an order of eviction should not be passed against it. The same was Band Box 5 of 48 vs. Estate Officer 6 followed by filing a petition for eviction of the appellant u/s 4 of the Public Premises (Eviction of Unauthorized Occupants) 1971.
9. Case of the appellant is that there was malafide on the part of respondent No.2 in initiating proceedings before the learned Estate Officer. Respondent No.2 itself had sent a draft proposal on 23.10.1998 for seeking eviction of the appellant to Reserve Bank of India for its permission. Reserve Bank of India directed respondent No.2 to frame a suitable policy in order to ensure with strict compliance of the Government instructions, guidelines in the matter including consideration of the grievance of the tenants. Respondent No.2 instead of framing a suitable policy as directed by Reserve Bank of India, filed bogus and frivolous eviction petition u/s 4 of the P P Act before the learned Estate Officer.
10. Further case of the appellant is that the appellant contested the eviction petition before the learned Estate Officer and filed a written statement.
11. It is further pleaded that Ministry of Urban Development, Government of India, issued another set of guidelines dated 30.5.2002 which were duly notified in the gazette issued by Govt.
Band Box 6 of 48
vs.
Estate Officer
7
of India dated 8.6.2002 , thus giving it a force of law wherein the contents of the original guidelines of 1992 were reiterated. These guidelines in addition to mandating recourse to Public Premises Act only in case of unauthorized occupants clearly provided that in case of eviction of the tenants, the recourse should be taken only under the provisions of Delhi Rent Control Act. It further provided mandatory review by the concerned authorities including respondent No.2 in respect of all pending eviction cases before the learned Estate Officers to withdraw those cases in which there were violation of the said guidelines. The appellant filed an application dated 24.8.2002 before the learned Estate Officer with the prayer that the proceedings pending before him were unwarranted being against the said guidelines and those proceedings ought to be dropped/adjourned sine die. The learned Estate Officer dismissed the said application vide order dated 12.9.2003. The appellant again filed an application dated 13.10.2003 before the learned Estate Officer for review of the said order as it suffered from an error apparent on record. The said application was also dismissed by the learned Estate Officer vide Band Box 7 of 48 vs. Estate Officer 8 order dated 12.3.2004 without considering the contentions raised by the appellant in the said application.
12. Further case of the appellant is that the appellant thereafter filed Writ Petition No.1507/2007 in the Hon'ble High Court. The same was dismissed by the Hon'ble High Court vide judgment dated 12.5.2008. The appellant thereafter filed LPA No.509/2008 before the Hon'ble High Court. The same came up for hearing before a division bench on 2.9.2008. However, the same was not pressed in view of the statement made by learned counsel for the appellant that he would raise contentions on merits of the matter including lack of material before the learned Estate Officer. Hon'ble High Court directed that those contentions might be considered by the learned Estate Officer in accordance with law. The appeal was accordingly dismissed as withdrawn with the said observations.
13. Further case of the appellant is that thereafter the respondent No.2 even without waiting for the certified copy of the said order dated 2.9.2008 passed by Hon'ble High Court, hurried up with the matter without giving an opportunity to the learned Band Box 8 of 48 vs. Estate Officer 9 counsel for the appellant for arguments. The learned Estate Officer insisted on written arguments and proceeded to pass the final order dated 23.9.2008 whereby the eviction petition filed by respondent No.2 was allowed and he directed the appellant to vacate the premises in question within 15 days.
14. Contention of learned counsel for the appellant in the appeal is that the impugned order dated 23.9.2008 can't be sustained as on the face of it, it is illegal, without jurisdiction, arbitrary and is liable to be set aside. The impugned order passed by the learned Estate Officer was without jurisdiction and contrary to the stand of the Government. It was also contrary to the stand of respondent No.1 itself as it failed to take into consideration the contention raised in the application dated 13.10.2003 and review application dated 12.9.2003. The learned Estate Officer nowhere discussed about the evidence led by the appellant to show that it was not an 'affluent' company. The learned Estate Officer on one hand relied on the clarification dated 14.7.1993 but on the other hand failed to follow the guidelines dated 30.8.2002 which were duly gazetted and wherein the word Band Box 9 of 48 vs. Estate Officer 10 'affluent' was conspicuous by its absence. The learned Estate Officer ignored the vital evidence placed by the appellant in the record including the balance sheets of the appellant for the year 1997 to 2007 which showed that in most of the years the appellant had incurred losses. Respondent No.2 did not have any material before it at the time of initiation of proceedings to show that the appellant was an 'affluent' tenant by any stretch of imagination nor it did bother to ask the appellant to furnish profit and loss accounts or the balance sheet. The word 'affluent' was undefined and unspecified as used in the clarificatory letter dated 14.7.93. Respondent No.2 did not lead any evidence whatsoever to rebut the evidence led by the appellant regarding it to be 'affluent'. The learned Estate Officer being in employment of Respondent No.2 acted with a biased mind and the same is duly reflected in the impugned order which suffered from various legal infirmities.
15. Further plea of the appellant in the appeal is that respondent No.1 ignored other vital evidence i.e. photographs filed by the appellant showing vast spaces lying vacant and un Band Box 10 of 48 vs. Estate Officer 11 utilized by respondent No.2 in respect of various premises held by it in various places i.e. Siddhartha Enclave, Nehru Place. The learned Estate Officer also ignored the order dated 2.9.2008 passed by Division Bench of Hon'ble High Court wherein the appellant was permitted to raise contentions before the learned Estate Officer to be considered in accordance with law. The learned Estate Officer failed to consider the that the eviction proceedings initiated by R2 was prematured as even by its own stand as contained in the resolution dated 6.11.1998 a suitable policy was yet to be framed before taking any proceedings under the P.P. Act.
16. It is further pleaded that the learned Estate Officer Sh.P.S.Bhatia was not qualified to be appointed as Estate Officer. As per notification issued u/s 3 of the P P Act,it was only the Assistant General Manager, General Administration,Punjab & Sind Bank who was to be appointed as the Estate Officer under the Act. In the present case the proceedings were conducted by Sh.P.S.Bhatia who was only Chief Manager of the Bank.
17. Appeal was contested by the respondents. In the Band Box 11 of 48 vs. Estate Officer 12 reply to the appeal the respondents controverted the pleas taken by the appellant and emphasized that the appeal filed by the appellant is baseless and the learned Estate Officer rightly passed the impugned order. There is no ambiguity in the said order. The guidelines issued by Government of India on 14.1.1992 and 1994 and similarly guidelines issued on 30.5.2002 by Ministry of Urban Development, Govt. of India are not applicable to the appellant and it cannot take benefit of that. This issue has already been decided by Hon'ble Mr.Justice Ravindra Bhatt vide its order dated 12.5.2008. The appellant being an affluent tenant being one of the leading DryCleaners and Dyers in whole of India comes under the category of large business houses and as such these guidelines are not applicable on the appellant. The appellant even had sent representations to various Government Departments, Ministries claiming that he is one of the leading DryCleaners and Dyers in the whole of India. The appellant admitted in its evidence that they have got many franchise in whole of India. Filing of Balance Sheets has got no relevancy and the same are after thought. Tenancy of the Band Box 12 of 48 vs. Estate Officer 13 appellant was rightly determined and after termination of the tenancy, occupation of the appellant in the premises in question became that of an unauthorized occupant and the learned Estate Officer rightly passed the impugned order as the bank required the premises bonafide. The bank had already vacated many premises in Connaught Circus Area under various courts orders and has got no other alternative accommodation in the vicinity of Connaught place. The bank thus required the premises bonafide for its own use. The premises in question did not fall under the ambit of Delhi Rent Control Act. It is further stated that the respondent bank became owner of the premises in question in the year 1978. The appellant started paying rent to respondent No.2. The appellant also challenged the ownership of the bank by filing writ petition No.18811/2006 before the Hon'ble High Court. The said writ petition was dismissed by the Hon'ble High Court vide order dated 15.12.2006. Appellant did not make the payment of rent regularly since February 1994 and thereafter he became unauthorized occupant after termination of its tenancy through legal notice. There was no malafide on the part of the bank to Band Box 13 of 48 vs. Estate Officer 14 evict it as the premises in question are required by the bank for its bonafide use. The bank has rightly taken action against the appellant after receipt of permission from the Reserve Bank of India. There was no need to frame any policy as the bank has got only two tenants, one in the disputed premises and other in Paharganj property for which the bank has already filed eviction petition u/s 14 (1) (k) against the tenants. Other properties were either owned properties which were occupied by the bank itself and mostly properties were taken on rent and as such there was no need to frame any policy.
18. It is further pleaded that the appellant was given sufficient opportunities by the learned Estate Officer. Even written arguments have been filed by the appellant as well as the respondents. All the pleas raised by the appellant were considered by the learned Estate Officer. Only purpose of the appellant to file the present appeal is to delay the matter in one way or the other. There was sufficient material before the learned Estate Officer to observe the appellant to be an affluent tenant. There was no bias on the part of respondent No.1.
Band Box 14 of 48
vs.
Estate Officer
15
19. It is further pleaded that Sh.P.S.Bhatia was competent to act as Estate Officer as he was head of the General Administration during the relevant time and he was equivalent to a Gazetted Officer. While posting at the head Office, his rank was Chief Manager and with the same rank, as Chief Manager, if posted in the Region, he could be posted as a Regional Manager. Moreover, orders passed during his tenure, were challenged by the appellant before the Hon'ble High Court on 12.9.2003, 23.3.2004 and 8.12.2006. The appellant never challenged the jurisdiction of the learned Estate Officer at anytime.
20. I have heard the learned counsel for the parties and have gone through the file.
21. Contention of learned counsel for the appellant are that initiation of eviction proceedings after nearly 10 years against the appellant is malafide. Respondent No.2 had earlier issued various notices on different grounds to get the premises vacated, to the appellant in the year 1991, 1992, 1994 and 1999 but never proceeded against him for eviction at any time. No explanation has been given by the respondent bank as to why it took 10 years Band Box 15 of 48 vs. Estate Officer 16 to institute the proceedings under the Act. It shows that the premises in question are not required bonafide by the respondent No.2 and only motive of the respondent bank is to get the premises vacated by hook and crook.
22. It is further emphasized that the guidelines issued by Government of India in 1992, 1994 and lastly in 2002 are binding in nature and are not merely advisory. Guidelines dated 30.5.2002 have been duly gazetted and they are binding in nature. Hon'ble Supreme Court in number of judgments have held that guidelines/instructions/circulars framed to regulate the working of the statute are binding.
23. It is further argued that respondent No.2 cannot abrobate and reprobate. The appellant is in bonafide occupation of the premises in question much prior to the purchase of the same by respondent No.2 in 1978. The Government of India issued guidelines to regulate the functioning of P P Act primarily to treat unauthorized occupants differently than lawful tenants. Respondent No.2 was bound to accept those guidelines. It also th adopted the same vide resolution dated 6 November 1998 Band Box 16 of 48 vs. Estate Officer 17 passed by Board of Directors. However, respondent No.2 chose to file the eviction proceedings by invoking provisions of PP Act against the appellant and cannot be allowed to do so. Reliance on the clarificatory letter 1993 to initiate proceedings under P P Act is misconceived and against the letter and spirit of the clarification. It was never pleaded by respondent no.2 that the appellant was having means to make alternate arrangement by paying market rent. The test of financial viability of the appellant was never pleaded at any stage of the proceedings before the learned Estate Officer by the respondent bank. The burden to prove financial viability of the appellant was upon the respondent no.2. It failed to adduce any evidence before the learned Estate Officer to show that appellant was an affluent tenant. Contrary to that, appellant filed incometax assessment order, balance sheets, income from Franchisee/Royalty Income and statement of accounts to show that it did not have the financial capacity to pay market rent.
24. It is further argued that initiation of eviction proceedings based on PP Act without laying down a policy is bad Band Box 17 of 48 vs. Estate Officer 18 in law. Respondent No.2 did not lay down any suitable policy as per the directions of RBI vide resolution dated 6.11.1998 but tried to justify its lack of action of not framing a suitable policy on the plea that there were only two tenants. This plea of respondent no.2 was false as their own resolution dated 17.10.1998 showed names of atleast 8 tenants.
25. Learned counsel for appellant further stressed that action of respondent No.2 to initiate proceedings under P P Act against the appellant is violation of article 14 of the Constitution of India as admittedly in respect of some of its commercial tenants like Goel Industrial Corporation and General Transport Corporation, New Delhi, respondent No.2 took recourse to eviction proceedings under DRC Act. Respondent no.2 can't be permitted to adopt pick and choose policy. Respondent No.2 did not opt to initiate proceedings against Goel Industrial Corporation under P P Act though admittedly he was an affluent tenant whose land situated at Faridabad had market value of Rs.40 crores approximately at present and was at least Rs.5 crores in 1990 1991.
Band Box 18 of 48
vs.
Estate Officer
19
26. Further plea of learned counsel for the appellant is that the impugned order passed by Sh.P.S.Bhatia is without jurisdiction as he was only Chief Manager in the bank and could not initiate any proceedings as Estate Officer. Plea of lack of jurisdiction can be raised at any stage of the proceedings as an order/proceeding without jurisdiction is a nullity.
27. It is further argued that the learned Estate Officer while passing the impugned order totally ignored directions of the nd Division Bench of Hon'ble High Court vide order dated 2 Sept. 2008 and respondent No.1 was under legal obligation to consider all the objections/contentions raised by the appellant. Learned Estate Officer despite the said direction which clearly superseded the judgment of the learned Single Judge dated 12.5.2008 failed to apply its mind and made the Single Judge's judgment the basis of the impugned order. Impugned order failed to rectify major mistake in the said order dated 12.5.2008 which completely changed the complexion of the case. Learned Estate Officer misdirected himself by putting the onus of Issue No.4 and 6 on the appellant. The burden to prove these issues regarding bonafide Band Box 19 of 48 vs. Estate Officer 20 requirement of respondent No.2 could not be put upon the appellant.
27. Reliance has been placed by learned counsel for the appellant on the authorities reported in AIR 1996 Supreme Court 2664; (1973) 2 Supreme Court Cases 474; (1993) 2 Supreme Court Cases 507; (2007 2 Supreme Court Cases 355; AIR 1999 Supreme Court 1791; (1975) 3 Supreme Court Cases 503; 1977 Rajdhani Law Reporter 227 (S.C) 227; AIR 1996 Supreme Court 2664; AIR 2004 Supreme Court 1815; AIR 2004 Supreme Court 2799; (2003) 7 Supreme Court Cases 1; All India Rent Control Journal 1982 (2) and (1993) 2 Supreme Court Cases
507.
28. On the other hand learned counsel for the respondents has controverted these arguments and has vehemently pleaded that all these contentions/submissions raised by learned counsel for the appellant have already been rejected by the Hon'ble High Court in its judgment dated 12.5.2008. Guidelines issued by Government of India are meant for genuine Band Box 20 of 48 vs. Estate Officer 21 and not affluent tenants and are not applicable to large business houses and commercial enterprises. Since the appellant is one of the leading DryCleaners and Dyers in the whole of India, it can't claim any benefit of the guidelines referred above. The appellant is one of the affluent tenants who has financial viability to make arrangement by paying market rent. The premises in question are required by respondent No.2 for bonafide needs as it has already vacated many premises taken on lease in the vicinity of Connaught Circus area in compliance of various court orders.
29. It is further argued that there was no need to frame any policy as the bank is owner of the disputed property and one in Paharganj, New Delhi area. Most of the properties were taken on lease by the Bank and as such there was no need to frame any policy. Appellant has wrongly stated that there were 8 tenants in the resolution dated 17.10.2008. There is no violation of article 14 of the Constitution. DDA had cancelled lease deed in respect of Paharganj premises as M/s Goel Industrial Corporation and General Transport Corporation were misusing the same in violation of the terms and conditions laid down in the lease deed.
Band Box 21 of 48
vs.
Estate Officer
22
The ground floor was meant for commercial purpose. First floor and above floors were meant for residential purposes. Due to misuse by them, the bank had to pay penalty to DDA. After paying the penalty and also giving an undertaking to DDA for taking steps against the misuse of the premises, the proceedings u/s 14 (1) (k) of DRC Act were initiated. The court had already passed the said order u/s 14 (1) (k) and the appeal filed by the said tenants is pending. The proceedings u/s 14 (11) of the DRC Act are also pending.
30. It is further argued that the respondent no.2 requires the premises in the vicinity of Connaught Place area and the premises in the occupation of those tenants can't be used for carrying out business activities and are not suitable for the bank.
31. It is further argued that the proceedings could not be initiated against the appellant earlier as the appellant had sent various representations to Government of India, RBI and other departments. The respondent No.2 was trying to settle the matter amicably. The appellant had also offered to vacate some portion but the said offer was not accepted by the bank. The Band Box 22 of 48 vs. Estate Officer 23 respondent bank had sought permission from RBI for initiating proceedings against the appellant and the letter was received in 1998 in which it was mentioned that no permission was required to initiate the proceedings against the appellant. The respondent Bank had already proved its bonafide need to occupy the premises in question. Shri P.S.Bhatia was competent to act as the Head of the respondent Bank, he was Chief Manager and was holding the gazetted post and when transferred to Region of the Bank, it was equal to Regional Manager. Appellant never raised any objection earlier at any stage. The appellant was given reasonable opportunity of being heard. Principles of natural justice were duly followed by the learned Estate Officer.
Reliance has been placed by learned counsel for the respondents on the authorities reported in AIR 1981 Supreme Court 670; 1995 (1) RCR page 530; 151 (2008)DLT 27; 118 (2005) DLT 128; 100 (2002) DLT 497 (DB); 2008 RLR 20 (SC); 151 (2008) DLT 479 and AIR 1991 Supreme Court 855.
32. I have considered the submissions of learned counsel Band Box 23 of 48 vs. Estate Officer 24 for the parties. I have also gone through the written synopsis filed on record by the parties and have scrutinized the record of the learned Estate Officer.
Case of the appellant is being discussed as under:
33. It is not disputed that the premises in question are in occupation of the appellant since 1952 and were taken by it vide lease deed dated 26.3.1952. It is also not disputed that the respondent happened to purchase the property in question in the year 1978. The appellant thereafter started paying rent to respondent No.2. The appellant has not denied that it had challenged the ownership of the premises in question with respondent No.2 before the Hon'ble High Court in filing Writ Petition No.18811/2006 and the same was dismissed vide order dated 15.12.2006. Appellant has also not disputed that tenancy of the appellant was terminated by respondent No.2 vide legal notice dated 15.11.99 w.e.f. 31.12.99. Guidelines issued by the Government of India and Ministry of Urban Development in the year 1992, 1994, 1998 and 2002 are not in dispute. Respondent Band Box 24 of 48 vs. Estate Officer 25 No.2 has not denied issuance of various notices to the appellant to vacate the premises in question issued on 19.12.1991, 1.9.1992 and 26.2.1994 prior to the initiation of the proceedings u/s 4 of the Public premises Act. The appellant has not denied issuance of show cause notice u/s 4 (1) of the PP Act by the learned Estate Officer. The appellant duly contested the proceedings before the learned Estate Officer. It is also admitted that the appellant had moved application dated 24.8.2002 for dropping or adjourning sine die the proceedings initiated by respondent No.2. The said application was dismissed vide order dated 12.9.2003. Appellant filed review application dated 13.10.2003 for review of the said order and again it was dismissed by the learned Estate Officer vide order dated 12.3.2004. The appellant moved Hon'ble High Court in Writ Petition No.1507/07 and the said Writ Petition was also dismissed by Hon'ble High Court vide judgment dated 12.5.2008. The appellant thereafter filed LPA No.509/2008 before the Hon'ble High Court which came up for hearing before Division Bench on 2.9.2008. It is not disputed that the appellant opted to withdraw the said LPA. Learned counsel for the Band Box 25 of 48 vs. Estate Officer 26 appellant pleaded that he would raise contentions on merits of the matter including lack of material before the learned Estate Officer. Hon'ble High Court directed that those contentions might be considered by the learned Estate Officer in accordance with law. The said appeal was accordingly dismissed as withdrawn. It is also not in controversy that thereafter the parties contested the proceedings before the learned Estate Officer. They filed their written submissions. Subsequently the impugned order was passed by the learned Estate Officer.
34. Undisputedly, the appellant had moved an application before the learned Estate Officer for adjournment of proceedings sine die on the basis of resolution dated 30.5.2002 by the Central Government, Ministry of Urban Development and Poverty Alleviation which indicated guidelines to prevent arbitrary use of power to evict tenants from the public premises and to limit the use of powers of the Estate Officer. Review application of this order dated 12.9.2003 was also dismissed by the learned Estate Officer. The appellant challenged the orders of learned Estate Officer by filing Writ Petition No.1570/07 before the Hon'ble High Band Box 26 of 48 vs. Estate Officer 27 Court. This Writ Petitioin filed by the appellant against the said orders was dismissed with costs quantified at Rs.50,000/ vide order dated 12.5.2008. The appellant filed LPA No.509/08 before Division Bench of the Hon'ble High Court. On 2.9.2008 the learned senior counsel appearing for the appellant opted to withdraw the said appeal.
35. I do not subscribe to the plea of the learned senior counsel for appellant that the order of the Hon'ble High Court dated 2.9.2008 effaced the verdict of Single Bench of Hon'ble High Court dated 12.5.2008. In my considered view, withdrawal of LPA No.509/08 by the ld. senior counsel for the appellant against the judgment dated 12.5.2008 did not nullify the impact of the said findings/observations. Categorical findings recorded by Single Bench of Hon'ble High Court were not upset by Division Bench of Hon'ble High Court. Appellant was only permitted to raise contention on merits before the learned Estate Officer which he was bound to consider. It did not mean that the learned Estate Officer could give any findings in contravention to the findings recorded by the Hon'ble High Court in its order dated 12.5.2008.
Band Box 27 of 48
vs.
Estate Officer
28
Even this court can't go beyond the observations made applicable in the order dated 12.5.2008 by the Hon'ble High Court. After passing of the order dated 2.9.2008, there was no worthwhile legal evidence on record on facts prompting ld. Estate Officer to return findings contrary to the one recorded in the order dated 12.5.2008.
36. In the Writ Petition No.1570/07 the appellant had categorically submitted that once guidelines were framed for the use of the Act, the State agencies, which included the bank, had to conform to it and cannot use the provisions of the Act to arbitrarily evict the tenants in the lawful occupation of the premises for long period. Learned counsel for the appellant urged that with the issuance of circulars in 1992 and 1994 and the guidelines in 2002, subsequently published in the official Gazette, the bank had to confirm to them; it was denued of power to arbitrarily invoke provisions of the Act. He also urged that the appellant could not be called as affluent tenant since it was in the throes of financial difficulties. It was entitled to continue in the premises and the respondent could not exploit its dominant position as a State Band Box 28 of 48 vs. Estate Officer 29 agency/owner to seek to evict it in an arbitrary manner through summary proceedings. The guidelines and circulars of the Ministry of Urban Development required the respondent Bank not to take action by invoking the Act. The bank was estopped from doing so. The bank could not travel beyond the restrictions placed on the guidelines. In doing so, it violated the mandate of Article 14.
37. All these contentions raised by learned senior counsel for appellant before Hon'ble High Court were controverted by learned counsel for respondent bank. The Hon'ble High Court discussed all the relevant guidelines of 1992 and clarifications issued, leading upto the 2002 guidelines in the impugned order. The Hon'ble High Court raised a question whether the guidelines relied upon by the appellant could restrict application of the Act and whether further proceedings before the learned Estate Officer were barred in law or arbitrary. The Hon'ble High Court held in para No.22 as under: "Another important principle, in the exercise of statutory power is that its amplitude and Band Box 29 of 48 vs. Estate Officer 30 breadth is controlled by the express terms of the parent statute or by necessary intendment and that circulars or guidelines can only guide the exercise of such power, but not fetter it......"
38. It further observed that the guidelines could not supplant at least in this case, the power to invoke a speedy remedy to evict tenants whose arrangements ended over 16 years ago. It shows that Hon'ble High Court did not agree to the specific plea of the learned senior counsel for the appellant that in view of the guidelines referred above the learned Estate Officer had no jurisdiction to entertain and decide the eviction petition pending before it or that the respondent no.2 had no jurisdiction to initiate proceedings under the Act in view of the issuance of the guidelines. This controversy was set at rest by the Hon'ble High Court in its order dated 12.5.2008. The learned counsel for the appellant had no occasion again to address detailed arguments on this aspect or to challenge the authority of the respondent No.2 to initiate eviction proceedings against it under P P Act in view of the issuance of the guidelines from time Band Box 30 of 48 vs. Estate Officer 31 to time referred above.
39. Since there are categorical findings regarding non applicability of the guidelines in question between the parties returned by the Hon'ble High Court, no view contrary to that can be taken by this court . Since the guidelines referred by the learned counsel for the appellant were not mandatory and were advisory in nature, the question of determination of the appellant to be affluent or non affluent becomes immaterial.
40. Besides the judgment dated 12.5.2008 between the parties, there are other catena of judgments showing that the guidelines in question are not mandatory. In the latest case New India Assurance Co. Ltd. vs. Nusli Neville Wadia reported in (2008) 3 Supreme Court cases 279. The Hon'ble Supreme Court in para No.22 and 23 categorically held that issuance of such guidelines, however, is not being controlled by statutory provisions. The effect thereof is advisory in character and thereby no legal right is conferred upon the tenant.
41. Besides above, no cogent evidence has been Band Box 31 of 48 vs. Estate Officer 32 adduced on record by the appellant before the learned Estate Officer that the guidelines in question were not applicable to its case. Mere filing of income tax returns before the learned Estate Officer did not prove that the appellant was not in the category of affluent tenant. These are admissions by the appellant in his own favour and do not depict the clear picture. The appellant did not prove on record the books of accounts showing the magnitude of the business being carried by it since long taking him out of the category of affluent tenants.
42. I find thus no merit in the submission of the learned senior counsel for the appellant that the respondent bank had no jurisdiction to invoke the provisions of P P Act for its eviction in view of the issuance of the guidelines from time to time.
43. I find no substance in the plea of learned counsel for the appellant that the appellant does not require the premises in question bonafide or that he has initiated eviction proceedings under the P.P Act malafide to discriminate the appellant. I also find no merit in the submission of learned counsel for appellant that the appellant is entitled for protection against eviction under Band Box 32 of 48 vs. Estate Officer 33 Delhi Rent Control Act.
44. It is not in controversy that tenancy of the appellant was terminated vide legal notice Ex.PW1/13. The postal receipt proved on record is Ex.PW1/14 and A.D in this regard is Ex.PW1/15. These documents categorically show that the appellant was duly served with the legal notice terminating the tenancy of the appellant. In its testimony, the witness of the appellant did not controvert the termination of the tenancy vide impugned notice Ex.PW1/13. The appellant has failed to show as to how this notice Ex.PW1/13 is not valid to terminate its tenancy. In this notice dated 15.11.99 there is specific mention that the premises in question are required by the respondent bank for furtherance of its activities for proper functioning of the bank and its Regional Office and the bank required more space and additional accommodation. The learned counsel for the appellant has pleaded that earlier also the respondents had issued various notices from time to time on different grounds to seek eviction from the appellant which apparently show malafide on their part. Again I find no substance in this plea. The premises in question Band Box 33 of 48 vs. Estate Officer 34 were purchased by the respondent bank in 1978 and at no stage soon thereafter it insisted the appellant to vacate the premises in question. It never increased the rent being paid by the appellant. Only for the first time on 19.12.1991 the respondent bank issued registered notice to the appellant to vacate the premises in question as the bank required it for bonafide occupation. It was specifically mentioned in the notice dated 19.12.1991 that the respondent bank had shifted its regional office on the floors above the showroom in question after purchase of the property in 1978. The Offices of Regional Managers of the Bank for Delhi and New Delhi were functioning from the premises. Due to functioning of two offices of the Regional Managers, the bank was finding it difficult to operate from there because of shortage of space. It was further mentioned that the bank required the area on the ground floor bonafide for proper functioning of its business. The appellant failed to comply with the notice or to vacate the premises in question. Again another notice dated 1.9.1992 was served against the appellant again requiring the appellant to vacate the premises in question as the same was required bonafide. It was Band Box 34 of 48 vs. Estate Officer 35 mentioned therein that administrative offices of Regional Managers of both the Regions i.e. Delhi Region and new Delhi Region were functioning there. The premises were required for proper functioning of the offices of Regional Manager as also for other banking purposes. Again notice dated 26.2.1994 was served upon the appellant terminating its tenancy u/s 106 of T.P. Act. It was also specified that the premises in question required bonafidely for occupation for proper functioning of the Zonal Manager as well as other banking purpose. All these letters apparently show that from 1991 the respondent bank was insisting the appellant to vacate the premises in question to enable it to occupy the same for its bonafide purpose. In all these notices specific purpose was disclosed for which the premises in question were required by the respondent. Learned counsel for the respondent has explained that the eviction proceedings were not initiated against the appellant on the basis of these notices as efforts for settlement were going on between the parties. It has come on record that at one stage appellant had offered to surrender part of the property which was not acceded by the Band Box 35 of 48 vs. Estate Officer 36 respondent bank. This contention of the learned counsel for the respondent has not been controverted by the appellant. 45 The appellant adduced cogent evidence before the learned Estate Officer showing that it bonafidely required the premises in question. The testimony of Sh.Daljit Singh on this aspect has remained unchallenged and uncontroverted. PW Daljit Singh categorically testified that the bank required the premises bonafidely and genuinely for proper official functioning of the bank. The bank required the same for controlling of the bank offices situated at first and second floor of the premises in question. He further testified that various landlords where the branches/offices of the bank were running had already filed eviction petition and in some cases, had obtained eviction orders in the matter relating to premises No.H11, Connaught Circus , G 42 Connaught Place, New Delhi. He also proved on record judgments Ex.PW1/2 and Ex.PW1/3 in this regard. He also proved on record certified copies of eviction petitions Ex.PW1/4 and Ex.PW1/5 filed against the respondent bank for eviction relating to premises No.B45/47 Connaught Circus. It was also Band Box 36 of 48 vs. Estate Officer 37 brought on record that the matter pertaining to the portion relating to Atul Kapoor and others has since been decreed and the same was confirmed by Hon'ble High Court. Consequent to that the bank had vacated said premises. In the cross examination, the testimony of this witness on this aspect remained unchallenged. It shows that even after the initiation of the proceedings, the respondent bank had to vacate the premises in its possession on rent in pursuance of the order of the court. The requirement of the respondent for bonafide occupation for its banking activities thus can't be termed malafide.
46. Moreover, law on this aspect is very clear as the Estate Officer is not supposed to decide the bonafide requirement of the respondent bank to occupy the premises in question in the proceedings pending before it u/s 4 and 5 of the P.P Act. The learned Estate Officer is only required to see if the possession of the premises in occupation of the appellant is unauthorized. Since the tenancy of the appellant was legally terminated u/s 106 of T.P. Act vide termination notice Ex.PW1/3 and the appellant had not vacated the same, possession of the appellant in the Band Box 37 of 48 vs. Estate Officer 38 premises in question had become unauthorized.
47. In the case of Jiwan Dass vs. Life Insurance Corporation of India and another reported in 1994 suppl. (3) SCC 694, The Hon'ble Supreme Court categorically held that P.P.Act has overriding effect over Rent Control Act. The consequence of giving overriding effect to the provisions of PP Act is that premises belonging to companies and statutory bodies referred to in Clauses (2) and (3) of Section 2 (e) of the PP Act would be exempted from the provisions of Rent Control Act. The actions of these companies and statutory bodies while dealing with their properties under the P P Act will not have to be judged by the standard that they would not act as private landlords and their actions would be informed by reason and guided by public interest. The Hon'ble Supreme Court further held that section 106 of the Transfer of Properties Act did not contemplate of giving any reason for terminating the tenancy. Equally the definition of the Public Premises 'unauthorized occupation' u/s 2 (g) of the Act postulates that the tenancy 'has been determined for any reason Band Box 38 of 48 vs. Estate Officer 39 whatsoever'. When the statute has advisedly given vide powers to the Public authorities under the Act to determine the tenancy, it is not permissible to cut down the width of the powers by reading into it the reasonable and justifiable grounds for initiating action for terminating the tenancy u/s 106 of T.P. Act. It it is so read section 106 of the T P Act and section 2 (g) of the Act would become ultra vires.
48. The Hon'ble Supreme Court further observed that a public authority is equally entitled to use the public property to the best advantage as a commercial venture.
49. The authority Jiwan Dass vs LIC of India (supra) is fully applicable to the facts and circumstances of this case.
50. In the case of Uttam Prakash Bansal & Ors. vs. LIC of India & Ors. 100 (2002) DLT 497 (DB), again the Hon'ble Supreme Court observed that once the Premises Act became a Special Act dealing with premises belonging to Central Government, Corporations and other statutory Bodies, the Rent Act stood superseded. After termination of tenancy u/s 106 T P Band Box 39 of 48 vs. Estate Officer 40 Act the status of the defendant became unauthorized and he did not enjoy the statutory tenancy after termination of the tenancy. The Hon'ble Supreme Court further observed that the guidelines in view of the clear statutory provisions, would not stand as a bar in initiation of the proceedings under the said Act.
51. The law laid down by the Hon'ble Supreme court in this case is fully applicable to the facts and circumstances of this case also.
52. Learned counsel for respondent bank has justified initiation of the proceedings under Delhi Rent Control Act against M/s Goel Industrial Corporation and M/s Goel Transport Corporation in Paharganj area.
53. Learned counsel for the respondent has explained that proceedings under Delhi Rent Control Act against M/s Goel Industrial Corporation and M/s Goel Transport Corporation were initiated as they were misusing the premises in violation of the lease deed and they were holding only residential portions and those portions could not be used for any other purpose. Respondent bank could not use those portions for carrying out Band Box 40 of 48 vs. Estate Officer 41 banking activities and it was not suitable for the bank as the bank required the premises in the vicinity of Connaught Place area. In the absence of any evidence to the contrary on record, there is nothing to disbelieve this explanation of the respondent bank for not initiating proceedings against M/s Goel Industrial Corporation and M/s Goel Transport Corporation under P.P Act.
54. The appellant has failed to adduce on record any material to infer malafide on the part of the respondent bank to initiate proceedings against it under P P Act. Rather it has come on record that despite issuance of earlier notices, the respondent bank did not initiate any proceedings for eviction against the appellant for about 10 years. The appellant never challenged the issuances of those notices for eviction issued prior to the termination of the tenancy in 1999. The appellant rather offered to vacate part portion of the tenanted premises which was not adhered to by respondent bank. On one stage or the other, the respondent bank was to initiate proceedings against the appellant for eviction and it was not expected from the respondent bank to permit the appellant to occupy the premises in question in Band Box 41 of 48 vs. Estate Officer 42 perpetuity.
55. Main contention of learned counsel for the appellant during arguments is that Sh.P.S.Bhatia learned Estate Officer was not competent to act as Estate Officer. U/s 3 of P.P Act, Notification was issued in the Gazette of India dated 31.12.1991 whereby Assistant General Manager, (General Administration) could be appointed as Estate Officer for the purpose of the said Act. Sh.P.S.Bhatia conducted proceedings from 2002 to 2007. Since he was Chief Manager of the Bank far below the post of Asstt. General Manager, the proceedings conducted by Sh.P.S.Bhatia are liable to be set aside. It was further argued by learned counsel for appellant that objection regarding jurisdiction can be raised at any stage and such a defect can't be cured. All the proceedings before Sh.P.S. Bhatia were null and void.
56. Learned counsel for the respondent bank has controverted these arguments and has pleaded that no such objection was ever raised by the appellant regarding competence of Sh.P.S.Bhatia to conduct proceedings before him.
57. On considering the rival contentions of the parties Band Box 42 of 48 vs. Estate Officer 43 on this aspect, I am of the view that the proceedings conducted by Sh.P.S.Bhatia being Chief Manager can't be termed null and void. It has come on record that proceedings u/s 4 and 5 of the Public Premises Act were initiated against the appellant before another Estate Officer who had issued show cause notice u/s 4 of the Public Premises Act to the appellant in the year 2000. The said learned Estate Officer recorded proceedings before him till 28.8.2002 and thereafter he adjourned the proceedings for 13.9.2002. On 13.9.2002 in the proceedings it was recorded that the Presiding Officer had superannuated. The new learned Estate Officer Sh.P.S.Bhatia took over the proceedings after 15.11.2002. Perusal of the proceedings before the learned Estate Officer reveals that the parties had filed their pleadings before the earlier learned Estate Officer and he had also framed relevant issues. At the time of filing the written statement on 24.3.2001 the appellant had taken objection in the written statement about the competence of the then learned Estate Officer to act as Estate Officer. Learned counsel for the appellant has failed to show as to how the earlier Estate Officer who had conducted the proceedings before Band Box 43 of 48 vs. Estate Officer 44 the same were taken over by Sh.P.S.Bhatia somewhere in December 2002 was not competent to act as Estate Officer or as to how he was not having jurisdiction to deal with the proceedings. When Sh.P.S.Bhatia Chief Manager took over the proceedings after superannuation of the earlier learned Estate Officer, no fresh objection whatsoever was taken by the appellant challenging his appointment as Estate Officer on the ground that he was Chief Manager. The appellant rather continued to join the proceedings before Sh.P.S.Bhatia and never challenged his appointment or jurisdiction. During this period, Sh.P.S.Bhatia passed orders dated 12.9.2003 and 13.10.2003 which were challenged by the appellant before the Hon'ble High Court. In the proceedings before the Hon'ble High Court the appellant never challenged the appointment of Sh.P.S.Bhatia as Estate Officer. Another order passed by Sh.P.S.Bhatia regarding ownership of the respondent was also challenged by the appellant before the Hon'ble High Court. Again no such objection challenging his appointment was taken. Learned counsel for appellant has not shown if any prejudice whatsoever has been caused to the appellant for Band Box 44 of 48 vs. Estate Officer 45 proceedings conducted by him as Estate Officer till another Estate Officer took over the proceedings somewhere in 2007 from Sh.P.S.Bhatia. Subsequent proceedings and impugned order were passed by learned Estate Officer other than Sh.P.S.Bhatia and the appellant never challenged his appointment and competence to record the proceedings and pass the impugned orders. The appellant failed to show if any prejudice was caused to him whatsoever for the proceedings conducted by Sh.P.S.Bhatia in between 2002 to 2007 which vitiated the impugned order.
58. It has further been explained that Sh.P.S.Bhatia was designated as Chief Manager being posted in Head Office. Had he been posted in the Region of the Bank, his rank was equal to Regional Manager. Sh.P.S.Bhatia was a Gazetted Officer. Simply because his rank differed in different location, it did not divest him of his jurisdiction to record the proceedings as Estate Officer particularly when no objection to his appointment as Estate Officer was ever taken during the proceedings conducted by him and also the appellant never challenged his appointment in the Band Box 45 of 48 vs. Estate Officer 46 proceedings before the Hon'ble High Court at the time of challenging the orders passed by him. The impugned order was passed by Sh.Daljit Singh whose competence and jurisdiction has not been challenged by the appellant.
59. Learned counsel for the appellant further argued that there was nonapplication of mind by the learned Estate Officer and he put blind reliance on the judgment dated 12.5.2008. The impugned order failed to rectify a major mistake in the said order which completely changed the complexion of the case. Learned Estate Officer while passing the impugned order failed to take notice of the fact that Hon'ble High Court in its judgment dated 12.5.2008 ignored the law laid down by the Hon'ble Supreme Court of India in various judgments holding that the guidelines were completely binding.
60. I find no force in these submissions of the learned counsel for the appellant. At no stage the alleged omission in the judgment of the Hon'ble High Court was pointed out by the appellant before the said court to get it rectified/reviewed . The learned Estate Officer and even this court has no jurisdiction to Band Box 46 of 48 vs. Estate Officer 47 comment upon the judgment passed by Hon'ble High Court on merits in detail. The alleged omission in the judgment in my view, did not alter the complexion of the judgment as argued by learned counsel for the appellant.
61. The impugned order passed by the learned Estate Officer is in detail. All the relevant contentions including the written submissions placed on record have been taken into consideration by the learned Estate Officer. The appellant was given reasonable opportunity of being heard. It was rather the appellant who dragged the litigation by filing various applications at one stage or the other during the proceedings and thereafter challenging the orders of the learned Estate Officer before the Hon'ble High Court. The appellant contested the proceedings before the learned Estate Officer as if it were a regular civil court. It is well settled that provisions of CPC and Evidence Act as such are not applicable before the proceedings before learned Estate Officer. Principles of natural justice are required to be complied with by the learned Estate Officer. His duty is to apply his mind, record summary evidence and comply with procedure laid down Band Box 47 of 48 vs. Estate Officer 48 in the rules concerned for recording evidence. The object of the Act is to provide speedy remedy. The learned Estate Officer is expected to arrive at a decision as expeditiously as possible. The proceedings before the learned Estate Officer are summary in nature. The appellant converted proceedings before the learned Estate Officer into full fledged civil trial. The proceedings remained pending before the learned Estate Officer for more than 7 years.
62. Conduct of the petitioner was commented upon by the Hon'ble High Court in its judgment dated 12.5.2008 and his Writ Petition was dismissed with costs quantified at Rs.50,000/.
63. In view of my above discussion, I find no merit in the appeal preferred by the appellant against the impugned order and the same is dismissed.
64. Record of Estate Officer be sent back along with copy of this order and appeal file be consigned to record room.
Announced in open court
on dated 02.12.2010 ( S.P. GARG )
DISTRICT JUDGEIV/NEW DELHI
Band Box 48 of 48
vs.
Estate Officer
49
Band Box 49 of 48
vs.
Estate Officer