Delhi District Court
(2)Shri Lal S. Ghanshani vs (1)New Delhi Municipal Committee on 31 October, 2014
IN THE COURT OF SH. PRASHANT SHARMA : Ld. ACJARCCCJ:
PATIALA HOUSE COURTS: NEW DELHI
SUIT NO. S6/09/92
UID NO. 02403C0002621992
(1)Society of Servants of God,
through its Secretary
Shri Lal S. Ghanshani
(A Society registered under the
Societies Registration Act)
Yashwant Place, Chanakya Puri,
New Delhi.
(2)Shri Lal S. Ghanshani
Secretary
Society of Servants of God
Yashwant Place, Chanakya Puri,
New Delhi
.....................Plaintiffs
Versus
(1)New Delhi Municipal Committee,
Palika Kendra,
Parliament Street,
New Delhi110001.
(2)The Administrator
New Delhi Municipal Committee,
Palika Kendra,
Parliament Street,
New Delhi110001.
SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 1
(3)Shri G.S. Chaturvedi,
Director(Estate)
New Delhi Municipal Committee
Palika Kendra,
Parliament Street,
New Delhi110001.
(4)Shri Ashoka Ahuja,
22A/6, Shakti Nagar
Delhi110007.
(5)Shri. Lakpa Tsering,
C703, Curzon Road Apartments,
Kasturba Gandhi Marg,
New Delhi110001.
(6)Shri Sonam Wangali
C703, Curzon Road Apartments,
Kasturba Gandhi Marg,
New Delhi110001.
.....................Defendants
SUIT FOR RESTORATION OF POSSESSION, RECOVERY OF
DAMAGES FOR USE AND OCCUPATION AND MESNE PROFITS &
INJUNCTION.
Date of institution of suit : 21.04.1992
Date of hearing of final arguments : 15.10.2014
Date of final judgment : 31.10.2014
Case referred:
1) State of Rajasthan Vs. Rao Raja Kalyan Singh(dead by his LR's) (1972) 4 SCC 165.
2) Cantonment Board, Sikandarabad Vs. G. Venkatram Reddy & Ors(1995) 4 SCC 561.
3) Man Kaur(dead) by LR's Vs. Hartar Singh Sangha(2010) 10 SCC 512.
4) Asha Sehgal & Ors. Vs. State & Ors. 2008 (102) DRJ 172.
5)Tinku Ram Vs. State 2012 (1) JCC 136.
SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 2
JUDGMENT
1. Present suit for restoration of possession (U/s. 6 of Specific Relief Act), for recovery of damages for use and occupation and mesne profits and injunction was filed by Society of servants of God(hereinafter 'society') through its Secretary and authorized representative namely Lal S. Ghanshani against NDMC(hereinafter defendant no.1), Administrator, NDMC(hereinafter defendant no. 2), G.S. Chaturvedi, Director, Estate NDMC(hereinafter defendant no.3), Ashok Ahuja(hereinafter defendant no. 4), Lakpa Tsering(hereinafter defendant no. 5) and Sonam Wangali(hereinafter defendant no. 6).
2. During recording of evidence, witnesses of society deposed in sync with the contentions made in the plaint, by relying on documents, already referred in the plaint. Therefore documents exhibited/marked during evidence are mentioned so, in my subsequent paragraphs, while narrating facts of this case.
Brief facts of the case.
3. That Society was a Charitable Institution, having its objects to work for the welfare and upliftment of mankind, by spreading knowledge of God through meditation, prayers, bhajans etc. That on 11.05.1973, Society entered a license agreement Ex.PW1/7, with defendant for a period of 15 years vide which, it got the license to exclusively use and occupy 9 flats bearing no. 7, 9 to 16, in Yashwant Place, Chanakyapuri, New Delhi along with 9 garages and SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 3 9 servant quarters(hereinafter 'premises in question'). As per terms of the said license, it could be renewed subject to mutual agreement between society and defendant NDMC. Initially society had to pay license fees of Rs. 800/ for flat no. 7 and a consolidated license fees of Rs. 6000/ in respect of flat no. 9 to 16, in addition to other terms and conditions, as mentioned in the said license deed. The said deed also provided that the society could carry out additions and alterations/repair in the said premises, subject to the satisfaction of defendant NDMC, at the cost of defendant NDMC, which included the provision of construction dividing wall on the terrace to the paraphet height for making the premises in question, at terrace, within exclusive use of society. The said deed also provided the condition that defendant NDMC shall be responsible for the day to day services and also for the maintenance of the said premises. In 1976, defendant NDMC started constructing additional three floors on the aforesaid building, without intimating society. The said construction as per society was in utter disregard to the building rules and regulations and also violated the right of society to exclusively use and occupy the said premises. Despite various requests made by society, defendant NDMC did not stop its work of construction and finally it was completed. As the privacy, safety and exclusive use of the said licensed premises was lost, due to the said construction, society had to put a door in the gap on the terrace so as to prevent any one from entering licensed premises occupied by him.
4. Society vide its letter dated 24.06.1986, Ex.PW1/8 exercised its option for renewal of license deed and requested NDMC to renew the same for SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 4 another 15 years. NDMC vide its letter dated 07.08.1986, Mark A apprised society that the said license would be renewed for a further period of 15 years at enhanced rate, as per the policy of NDMC though other terms and conditions will remain the same. Said letter of NDMC was duly received by society, which in turn sent its letter dated 09.09.1986 Ex.PW1/9 regarding the said acknowledgment. Vide Ex.PW1/9 society requested NDMC to not enhance the license fees as society was a charitable institution working for the cause of humanity and nation. Defendant NDMC on the other hand vide its letter dated 06.01.1986, Mark B renewed the license deed for a further period of 5 years. Defendant NDMC enhanced the rate of license fees at the rate of 11288/ per month w.e.f. 01.01.1988 till 31.12.1992. Society subsequently sent its letter dated 21.03.1988 Ex.PW1/10 in which it agreed to the enhanced license fees but requested that the said license must be renewed for further period of 15 years instead of 5 years, as referred by defendant NDMC vide its letter dated 07.08.1986 Mark A. Defendant NDMC on the other hand did not entertain the said request of society and vide its letter dated 05.04.1988, Mark C and 07.06.1991 Mark D stuck to his version for renewal of license deed in question for five years only. That society started paying the enhanced license fees at the rate of Rs. 11288/ and is paying the same till date. In the meantime, society received a letter dated 15.09.1987 from defendant NDMC, in which it was stated that the nominated authority appointed under the Delhi fire Prevention and Fire Safety Act 1986 had served a notice U/s. 4(1) r/w. Rule 7(2) of the Rules framed under the said Act, calling upon the defendant SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 5 to undertake the fire prevention and safety measures in the building in question, for which an amount of Rs. 400550/ was quoted as the requisite cost. Society disputed its liability to pay the said amount, by alleging that it was for the defendant NDMC to maintain the building in question including license premises. Defendant NDMC in its letter dated 05.04.1988 reiterated its claim against society, which was replied by the society vide letter dated 25.05.1988. Subsequently defendant NDMC issued letter dated 14.09.1988, in which it claim Rs. 400550/ as estimated proportionate cost for providing fire prevention and fire safety measures in the building in question. Same was followed by another letter dated 16.10.1989, issued by defendant NDMC in which defendant NDMC called society to deposit proportionate amount of Rs. 517765/ towards the cost for aforesaid purpose, after assessing the total estimated cost for whole building, amounting to Rs. 1545824/. Society repudiated the said liability on its part and explained that the liability to pay the amount rested on the owner of the building in question and not on its tenants/licensees. Society challenged the basis of claiming such huge amount. Defendant NDMC vide its letter dated 24.01.1991, called upon society to pay aforesaid amount and gave him last opportunity to pay the said amount within seven days failing which allotment of premises in question to society would be cancelled. The said letter was replied in detail by society. Subsequently on 07.06.1991, defendant NDMC apprised society that license of the society was cancelled by the Administrator on 13.04.1991 and also requested to pay proportionate charges of Fire Preventive and Fire safety measures of Rs. 517765/. That society vide its letter dated 20.07.1991 repudiated its liability to SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 6 pay the said amount and also challenged the order of cancellation license by the Administrator of defendant NDMC. In the meanwhile society was regularly paying enhanced license fees of Rs. 11288/ per month excluding electricity and water charges to defendant NDMC, which was duly accepted by defendant NDMC. That on 09.09.1991, at about 11 am, employees of defendant NDMC came to the licensed premises of society and threatened it to be forcibly evicted out of the said premises. They also threatened to disconnect electricity and water connections in the said premises without due process of law. Society resisted the said threats of employees of defendant NDMC who while leaving the licensed premises, threatened officials of society that defendant NDMC will allot the said licensed premises to some other person and after that will evict society from the said premises. Based on aforesaid facts, society filed a suit for permanent injunction and for declaration(viz. Suit no. 5/09/92). That after knowing that society had filed the said suit, defendants no. 1 to 3 forcibly dispossessed the society without its consent from one big hall, adjoining room, rear courtyard in ground floor and flat no. 7, servant quarter no. 7 and garage no. 7 in premises in question, otherwise then in due course of law. Consequently society preferred a writ petition which was dismissed as not maintainable our Hon'ble Delhi High Court vide its order dated 22.11.1991. Subsequently in suit no. 5/09/92, counsel for defendant NDMC made statement that officials of defendant NDMC will not dispossess the society from the remaining portion, other than the portion, already possessed by the NDMC. Aggrieved by the said acts of officials of defendant NDMC, society filed present suit alleging that the said acts of defendant NDMC regarding SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 7 dispossession was illegal and it had resulted in wrongful loss to the society. Hence it prayed that a decree for possession in respect of part of premises in question, from which society was dispossessed may be passed in its favour. It also prayed that a decree of sum of Rs. 192782/ as damages for use and occupation and mesne profits may also be passed in its favour and against defendants no. 1 to 3. A prayer for appointment of local commissioner for suggesting future mesne profits from the date of institution of the suit, till its realization was also made against defendant no. 1 to 3. A prayer for declaration, to the effect that cancellation of license deed Ex.PW1/7 vide order dated 13.04.1992 was illegal was also made. Lastly it was prayed that cost of the suit may also be given to the society.
5. After filing of the present suit, summons were issued to defendants. Defendants no. 4, 5 and 6, did not appear after getting served through summons and were proceeded ex parte on 05.02.1997. Defendants no. 1 to 3 after being served through summons, filed their written statement, in common and were the defendants, who contested present suit. In my subsequent paragraphs, defendant no. 1 to 3 are referred as "defendants".
6. In their written statement, defendants explained the manner in which premises in question were initially occupied by the society as licensee, the fact that society was requested to arrange Rs. 517765/, as the proportionate cost for providing fire safety measures in the premises in question which were not deposited by society, the fact that emergency exit was closed by society arbitrarily, the fact that on account of non renewal of license deed along with SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 8 non compliance of directions with regard to payment of Rs. 517765/ and opening of emergency exit in premises in question allotment of premises in question in favour of society was cancelled on 13.04.1991, the fact that society was called upon to vacate the premises in question and hand over peaceful possession to the defendants, the fact that on various inspections by officials of defendants part of premises in question were found being occupied by unauthorized persons and part of it lying abandoned, the fact that as a result of the attitude of society and in view of safety of the premises, part of the said premises were taken over by defendants on 11.09.1991 which were reallotted to defendant no. 6 and 7 and one person namely Ashok Ahuja and the fact that the approach of defendants in doing so, was to save the premises in question which were lying abandoned.
7. Apart from that, defendants raised following preliminary objections;
A: That suit of plaintiff was barred U/s. 10 CPC, as the matter in issue involved in this suit was directly and substantially in issue in another suit bearing no. 5/09/92.
B: That the action of defendants was in accordance with law. C: That suit was not maintainable for the reason that earlier writ petition, filed by society on similar ground was dismissed by Hon'ble Dehli High Court vide its order dated 22.11.1991.
D: That the suit was barred for the reason that society was already SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 9 dispossessed from premises in question on 11.09.1991 and suit was filed after expiry of six months from such dispossession.
E. That suit was not filed by competent person.
F. That suit was barred under order 2 Rule 2 CPC.
G. That suit was barred U/s. 49 Punjab Municipal Act.
H. That suit was barred for misjoinder of parties i.e. defendants no. 2 to 6.
8 Apart from aforesaid preliminary objections, defendants denied the version of society. It asserted that society had become illegal occupant in the premises in question after expiry of period mentioned in Ex.PW1/7, which was the sole license deed executed between the parties. Thus in the absence of any fresh license agreement, society had become unauthorized occupant U/s. 47 of Punjab Municipal Act 1911. It reasserted the explanation, given by it at the start of its reply. Same is not repeated here for the sake of brevity. Thus it prayed that suit of society must be dismissed with cost.
9. In response to the said version of defendants, society filed its replication, in which it reasserted its claim, as mentioned in the plaint and not repeated here for the sake of brevity. Further all the allegations of the defendants were refuted and it was against stressed that the acts of defendant were wrong.
SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 10
10. After a completion of pleadings following issues were settled:
(i) Issue No1 : Whether plaintiff is entitled for a decree of possession and damages against the defendants?OPP
(ii) Issue No. 2: Whether suit is barred Under Order 2 Rule 2 CPC?OPD
(iii)Issue No. 3: Whether suit is within time?OPP
(iv)Issue No. 4: Whether suit is not maintainable?OPD
(v) Issue No. 5: Whether suit is bad for misjoinder of parties?OPD
(vi)Issue No. 6: Whether suit is barred U/s. 49 of Punjab Municipal Act?
OPD.
(vii)Issue no. 7: Whether suit is to be stayed U/s. 10 CPC?OPD
(viii)Issue no. 8: Relief.
11. Subsequently matter was fixed for plaintiff's evidence.
12. During course of proceedings, Ld. Predecessor of this Court vide his order dated 27.04.2006, in suit no. 5/09/92, ordered that the said suit along with present suit between the same litigating parties will be consolidated and evidence will be led in both the suits, jointly. Said order was made with the consent of both the litigating parties.
13. The net result was evidence in this suit and in suit no. 5/09/92 was SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 11 recorded, in common. Evidence was substantially recorded in the present suit. Therefore copy of certified copy of evidence recorded in present suit, in part, was taken on record in the suit no. 5/09/92.
14. Society in order to prove its case examined two witnesses. PW1 Sunit Mutta, being attorney holder of Sh. Lal S. Ghanshani(Secretary of society) on the strength of his power of Attorney Ex.PW1/5 deposed in his testimony, facts regarding legal sanctity of society on the basis of certificate Ex.PW1/1, memorandum Ex.PW1/2, resolution Ex.PW1/3 and Ex.PW1/4. He reiterated the version of society as mentioned in the plaint on the strength of documents referred by me in my preceding paragraphs and not repeated here for the sake of brevity. In addition to that he placed on record site plan of premises in question Ex.PW1/12 and decree of estate officer dated 07.07.1998 Ex.PW1/13. He also placed on record notice issued by society to defendants through Advocate Ex.PW1/14, which was sent through post, regarding which receipts mark X and AD Card mark Y were placed by him. In addition to that society also examined PW2 Sh. Lal S. Ghanshani, who also deposed in the same line as deposed by PW1 by referring to documents, already referred by PW1. In addition to that he placed on record letter dated 06.01.1988 Ex.PW2/1 written by society to defendants and letter dated 11.05.1973 Ex.PW2/2. He confirmed the deposition of PW1 as correct. Subsequently plaintiff's evidence was closed.
15. Defendants examined two witnesses to prove its case. DW1 M.L. Dua reiterated the version of defendants, in his testimony. Before his cross SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 12 examination could have been concluded, he expired. Apart from him, DW2 Balbir Singh(inadvertently referred as DW1) was also examined by defendants, who in his testimony, referred to various letters written by occupants pertaining to second lift in premises in question Ex.DW1/1 to Ex.DW1/7. He deposed in his affidavit that lift in the premises in question was property of society but subsequently after discussion, it was decided that defendants will replace the society being the owner of the said lift as three floors above the fourth floor were constructed by defendants and occupiers from fifth to seventh floor had to be fed also. Therefore in a meeting dated 01.11.2000, attended by representatives of society, it was decided with the consent of members of society that old lift will be replaced by new lift, which had to be installed by defendants, which was subsequently installed. That all the equipment of the old lift after its dismantling was given to society who had not given any receipt of the same and had not raised any issue with regard to installation of new lift. He denied that defendants officials that threatened society with disconnection of electricity supply in the premises in question. Subsequently, after his examination, defendant's closed its evidence.
16. Matter was subsequently fixed for judgement, after final arguments were heard.
17. I am now appreciating each issue, in my subsequent paragraphs;
18. On the basis of arguments, putforth by the litigating parties, I find it proper to appreciate Issue No. 4, at the very outset.
SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 13 Issue No. 4: Whether suit is not maintainable?OPD
19. Defendants have argued that present suit was not maintainable, for the reason that NDMC is a local Government and therefore U/s. 6(2)(b), Specific Relief Act, no such suit can be brought by any party. Society on the other hand disputed the said argument, by arguing that firstly, it was never mooted during the trial and secondly NDMC is not a local Government. In my subsequent paragraphs, I will be appreciating, the said rival contentions.
20. So far as argument of society, to the effect that barred U/s. 6(2)(b) Specific Relief Act, was never raised during trial and therefore cannot be appreciated at this stage, was concerned. I found the said argument not tenable, for the reason that aforesaid issue with regard to maintainability of the suit, in itself engulfed the aspect, as to whether present suit was barred U/s. 6(2)(b) Specific Relief Act. Maintainability aspect, did not mean that the same had to be appreciated from a particular perspective only. It meant that present suit was maintainable, after it crossed all the legal and factual hurdles, laid down by the law which included limitation, jurisdiction, bar under any specific law, affixing necessary Court fees, existence of cause of action on the day of filing of suit, proper identification of parties from whom relief is sought and like wise. Therefore whether present suit was barred U/s. 6(2)(b) Specific Relief Act, was an issue, which needed appreciation and did not call for dismissal in a short shrift manner.
21. Onus of proving the said issue, rested on defendants. Record revealed SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 14 that there was no suggestion given by defendants to the witnesses of society, to the effect that present suit was barred U/s. 6(2)(b) Specific Relief Act. In fact no such suggestion was needed to be put to the witnesses of society, for the reason that such suggestion was based on a legal provision and both the witnesses of society, in the absence of any law education based background, were expected to know the provision U/s. 6(2)(b) Specific Relief Act and its fall out on the present case. That being a legal plea, which went to the root of the matter, can be appreciated at this stage, as there is no legal bar in doing so and for the reason that Hon'ble Apex Court in case State of Rajasthan Vs. Rao Raja Kalyan Singh(dead by his LR's) (1972) 4 SCC 165 had observed that "plea of maintainability of the suit is essentially a legal plea. If the suit on the face of it is not maintainable, the fact that no specific pleas were taken or no precise issues were framed, are of no consequence". Therefore, there is no legal embargo, in appreciating the aforesaid plea of suit being barred U/s. 6(2)(b) Specific Relief Act.
22. The sole aspect, which needed appreciation, was whether New Delhi Municipal Council, is a Government or not? If it is a Government, then present suit is hit by section 6(2)(b) Specific Relief Act, which bars filing of any suit under Specific Performance Act, against the Government.
23. At the time of filing of suit, New Delhi Municipal Council Act, 1994 was not present. At that time viz. in the year 1992, it was the Punjab Municipal Act, 1911, which was applicable to New Delhi and was being administered by the then New Delhi Municipal Committee. Due to increase in population and SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 15 more areas following in its jurisdiction, it was considered necessary to enact an act of parliament to form a municipal council for Delhi. Consequently New Delhi Municipal Council Act 1994 was passed by the parliament. So, it was the increase in population and coverage of more areas that Municipal Council for New Delhi, was formed under New Delhi Municipal Council Act. At the time of formulation of New Delhi Municipal Council Act 1994, legislature did not feel and realize that there was any need with regard to change in the provisions governing New Delhi under the Punjab Municipal Act 1911. Therefore the provisions, remained more or less same in New Delhi Municipal Council Act 1994, as compared to Punjab Municipal Act 1911. It was the transformation from "committee" to "council" which had taken place, in the functioning and constitution of body dealing with the area of New Delhi. Said transformation, was basically pertaining to the number of members in the body, governing New Delhi area.
24. The net result was that basic structure in Punjab Municipal Act 1911 and New Delhi Municipal Council Act 1994, remained the same, which was that both the said laws were related to New Delhi area, which was referred as a Municipal area by both the said acts. As per Oxford English Dictionary, "Municipal" is an adjective for the noun "Municipality", which in turn mean "a town or district with its own local government". Therefore, in common parlance, both the aforesaid Acts were formulated to recognize/form a body, which in this case was New Delhi Municipal Committee/Council, for dealing with the matters, arising in New Delhi area.
SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 16
25. Hon'ble Apex Court in the case of Cantonment Board, Sikandarabad Vs. G. Venkatram Reddy & Ors(1995) 4 SCC 561, had observed, while approving aforesaid meaning of Municipality, that "it is a body politic created by the incorporation of the people of a prescribed locality invested with the subordinate powers of legislation to assist in the civil government of the state and to regulate and administer local and internal affairs of the community", by referring to Black's Law Dictionary.
26. Article 243P Clause E defines Municipality as an institution of self government, constituted under article 243Q of the constitution. Article 243Q amongst other bodies recognized that there shall be a Municipal Council for smaller urban area. The said articles were incorporated in the constitution, in 2004 but by way of said incorporation, legislature recognized the fact that a Municipality has to be construed as a local self government.
27. Here, it is noteworthy to mention, short history of Punjab Municipal Act 1911, as noted by the renowned author Prem Dutt Modi in his book, which reads as under;
"before the introduction of provincial autonomy in India, the only represented government was the government of local bodies, which was therefore designated as local self government. Now the provincial government is also representative and hence self government cannot be used exclusively for local bodies, as before. The only characterize of local bodies is that they are local and hence they are denoted by the expression local government".SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 17
28. Aforesaid history, in itself entails the fact that local bodies, in the form of Municipal Committee/Council were never seen as private bodies, functioning under some private person. They were understood as government bodies, for governing the respective areas. Therefore by virtue of said reasoning, New Delhi Municipal Committee, which was earlier existing and which was later on transformed to New Delhi Municipal Council, has to be observed since its inception as a local governing body in tune with local government.
29. Provisions mentioned in New Delhi Municipal Council Act 1994, which were more or less similar to that of Punjab Municipal Act 1911, also show that New Delhi Municipal Council, has all the traits, similar to that of a local government, as it has provisions relating to constitution of council, functioning of council, procedure to be followed by council, revenue/expenditure related provisions, accounts/audit related provisions, taxation related provisions, property/contracts related provisions, water/electricity supply related provisions, drainage/sewerage related provisions, building related provisions, sanitation related provisions, public safety related provisions, markets related provisions and other ancillary provisions relating to over all functioning of the said council. All the said provisions, clearly indicate that legislature recognized the status of New Delhi Municipal Council, equivalent to that of a government, though at a local level.
30. Viewed from all the aforesaid perspectives, I found that New Delhi Municipal Council, which was earlier New Delhi Municipal Committee, is and SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 18 was always observed as a local government by the statute.
31. This brings me to the counter arguments putforth by society.
32. Society argued that section 18 of Punjab Municipal Act 1911 defines committee as body corporate which is in sync with section 3 of New Delhi Municipal Council Act 1994, which defines New Delhi Municipal Council as body corporate. Therefore on the strength of said argument, society argued that NDMC was an entity having characteristics of a company over corporation. In this regard reference to section 46, 47 and 48 of Punjab Municipal Act 1911 was made. I did not find the said argument tenable, for the reason that in business law dictionary, "body corporate" is defined as a legal entity such as association, company, person, government, government agency or institution, identified by a particular name. Therefore New Delhi Municipal Committee which earlier existed, had a separate legal entity. Said entity was never construed as an association or a company or a person or an institution. All the provisions, already referred and appreciated above, present in Punjab Municipal Act 1911 indicated that the said committee was a government, by itself, as all the powers, which a government possess, were possessed by the said committee.
33. Society further argued that U/s. 2(17) of New Delhi Municipal Council Act 1994, "government" is defined as the government of NCT of Delhi and therefore NDMC Act itself does not recognized the council as the government. The said argument again was not tenable for the reasons mentioned by me in SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 19 my preceding paragraphs, not repeated here for the sake of brevity and for the reason that section 2 in itself provides that the definition mentioned in the said provision will mean the same, as mentioned in the said provision, "unless the context otherwise requires". In the case in hand, New Delhi Municipal Council, as already concluded by me is a local government and was so, since its inception. Therefore the context, in which New Delhi Municipal Council/Committee has to be seen, clearly indicated that it had to be understood as a local government. Even otherwise section 3 of New Delhi Municipal Council Act 1994 itself provides that there shall be a council charged with the municipal government of New Delhi to be known as the New Delhi Municipal council. Said provision removed all the maze, if any, with regard to how council under New Delhi Municipal Council Act 1994 has to be construed, as it clearly referred that the said council will be given the charge of that of a municipal government in New Delhi.
34. Society further argued that U/s. 3(23) of General Clauses Act, government included Central Government and State Government only. Therefore it did not include New Delhi Municipal Council, within its ambit, to be a government. Said argument again was a baseless argument as it is settled proposition of law that resort to General Clauses Act, has to be made, only if there is any ambiguity about the interpretation of Municipality. In the case in hand, I did not find any such ambiguity, resulting in any need to resort to General Clauses Act.
35. With regard to non application of constitutional amendment, pertaining SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 20 to Municipality aspect, was concerned, I did not find the said argument tenable, for the reason that the amendment in the constitution, was basically a recognition of status of a municipality which was always understood as a local government, in the Act itself and in common parlance also.
36. So far as argument of society to the effect that in case New Delhi Municipal Committee was a government then there would have been no need for legislature to provide section 49 in Punjab Municipal Act 1911 as the said provision laid down the requirement of giving prior notice to New Delhi Municipal Committee, prior to filing of a suit as section 80 of Code of Civil Procedure, took care of it, was concerned, I did not find said argument tenable for the reason that Punjab Municipal Act 1911 was special statute, which was formulated pertaining to government at the local level. As the said statute had to cater all the requirements of functioning of a government, though at a local level, therefore aforesaid provision U/s. 49 was incorporated. Even otherwise said argument, did not take away case from defendants, to the effect that New Delhi Municipal Committee, was a local government.
37. End result of aforesaid appreciation is that society was barred to file present suit U/s. 6(2)(b) Specific Relief Act 1963, as defendant no. 1 was a local government and other answering defendants were its representatives, who were sued in their official capacities. The said officers of defendant no. 1, could not have been sued in such like manner, when there is evident bar under section 6(2)(b) Specific Relief Act 1963.
SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 21
38. At this stage, I find that on one hand, I have concluded, that this suit is not maintainable so one way of appreciating will be that rest of the issues, become infructious. But at the same time under order 14 Rule 2 CPC, mandate of the law is that Court has to pronounce judgement on all issues. Therefore I am dealing with rest of the issues, in my subsequent paragraphs. Issue No1 : Whether plaintiff is entitled for a decree of possession and damages against the defendants?OPP
39. Again it was society who had asserted that defendant no. 1 to 6 and its agents/representatives had dispossessed it from rear courtyard in ground floor, flat no. 7, along with servant quarter no. 7 and garage no. 7 in premises in question. Therefore it prayed that it should be put in possession of the said portion. The said prayer was made by society as it asserted that it had legal right to remain in possession of the suit premises. The said legal right as per record, arose from license deed Ex.PW1/7. Society during course of arguments, argued that Ex.PW1/7 was a lease deed and not a license. Therefore in deciding aforesaid issue, it is relevant to appreciate, as to whether Ex.PW1/7 was a lease deed or a license.
Appreciation of Ex.PW1/7.
40. Before appreciating aforesaid document, one must know the difference between a lease and a license. Same is mentioned in my subsequent paragraphs.
SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 22
41. Evans and Smith state in The Law of Landlord and Tenant (4thEdn.) "A lease, because it confers an estate in land, is much more than a mere personal or contractual agreement for the occupation of a freeholder's land by a tenant. A lease, whether fixedterm or periodic, confers a right in property, enabling the tenant to exclude all third parties, including the landlord, from possession for the duration of the lease, in return for which a rent or periodical payment is reserved out of the land. A contractual license confers no more than a permission on the occupier to do some act on the owner's land which would otherwise constitute a trespass. If exclusive possession is not conferred by an agreement, it is a license.... The fundamental difference between a tenant and a licensee is that a tenant, who has exclusive possession, has an estate in land, as opposed to a personal permission to occupy. If, however, the owner of land proves that he never intended to accept the occupier as tenant, then the fact that the occupier pays regular sums for his occupation does not make the occupier a tenant."
42. In Hill and Redman : Law of Landlord an dTEnant (17th Edn. Vol. 1) a more detailed discussion also laying down the determinative tests, is to be found stated as follows:
"It is essential to the creation of a tenancy of a corporeal hereditament the tenant should be granted the right to the exclusive possession of the premises. A grant under which the grantee takes only the right to use the premises without being entitled to exclusive possession must operate as a licence and not as a lease. It was probably correct law at one time to say that the right of exclusive possession necessarily characterized the grant as that of a lease; but it is now possible for a licensee to have the right to exclusive possession. However the fact that exclusive possession is granted, though by no means decisive against the view that there is a mere licence, as distinct from a tenancy, is at all events a consideration of the first importance. Further, a grant of exclusive possession may be only a licence and not a lease where the grantor has no power to grant a lease. In deciding whether a grant amounts to a lease, or is only a licence, regard must be hand to the substance rather than the form of the agreement, for the relationship between the parties is determined by the law and not by the label which they choose to put on it. It SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 23 has been said that the law will not impute an intention to enter into the legal relation of landlord and tenant where circumstances and conduct negative that intention; but the fact that the agreement contains a clause that no tenancy is to be created will not, of itself, preclude the instrument from being a lease. If the effect of the instrument is to give the holder the exclusive right of occupation of the land, though subject to certain reservations, or to a restriction of the purposes for which it may be used, it is prima facie a lease; if the contract is merely for the use of the property in a certain way and on certain terms, while it remains in the possession and under the control of the owner, it is a license. To give exclusive possession there need not be express words to that effect; it is sufficient if the nature of the acts to be done by the grantee require that he should have exclusive possession. On the other hand, the employment of words appropriate to a lease such as 'rent' or 'rental' will not prevent the grant from being a mere license if from the whole document it appears that the possession of the property is to be retained by the grantor."
43. The distinction between a lease and a licence is given as follows in Halsburry's Laws of England.
"It is essential to the certain of a tenancy of a corporeal hereditament that the tenant should have the right to the exclusive possession of the premises. A grant under which the grantee takes only the right to use the premises without exclusive possession operates as a licence, and not as a lease. In deciding whether a grant amounts to a lease, or is only a licence, regard must be had to the substance of the agreement. If the effect of the instrument is to give the holder the exclusive right of occupation of the land, though subject to certain reservations, or to restriction of the purposes for which it may be used it is a lease; if the contract is merely for the use of the property in a certain way and on certain terms, while it remains in the possession and control of the owner, it is a licence."
44. The net result is that one has to see the substance of a document, to ascertain, whether a document creates a license or a deed. Further intention of the parties in creating said documents has also to be seen. If the document SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 24 creates an interest in the property, it is a lease but if it only permits another to make use of the property of which the legal possession continues with the owner, it is a license. Further, if a document gives exclusive possession of the property to a person, then he becomes a tenant but in case of the contrary, he becomes a licensee.
45. Coming back to Ex.PW1/7, I found that both the litigating parties have referred the said document as license. In fact society was referred as licensee and defendant NDMC was referred as licensor in the said document. It gave permission to the society to use and occupy the premises in question. Any change in user or in the structure of premises in question, was not allowed, without the consent of defendant NDMC. Free access to pedestrians was given to the servant quarters and garages, which were part of premises in question and the said condition was not allowed to be changed by the society. Further, manner in which the said premises were to be used, was limited to the extent of charitable purpose only. Society was not allowed to use the said premises for the purpose of minting profits, by subletting or by using it in any manner otherwise then for meeting out the objects of society. Further maintenance of the said premises were within the domain of defendant NDMC. Open lawns and back courtyard was directed to be used as green only. It was for a period of 15 years and subsequently, to be renewed with the understanding of both the litigating parties. Defendant NDMC was given right over the terrace. The net result was by virtue of the said document, society was not given exclusive right to utilize the said property, in the manner it liked. Aforementioned terms SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 25 and conditions, clearly indicated that not only usage of the premises in question was limited rather defendants had every say in any change in the usage and occupation of the said premises. Therefore not only the intention of the parties, rather the substance of Ex.PW1/7, clearly indicated that it was out of the purview of being called a lease deed. Even otherwise, society did not give any suggestion to the defence witnesses, to the effect that Ex.PW1/7 was a lease deed or that parties had intended the said document to be interpreted as lease deed. In fact DW1 M.L. Dua, who appeared for defendants, in his testimony, had stated voluntarily that Ex.PW1/7 was a license deed only, in response to question put by society, wherein society referred Ex.PW1/7 as lease/license deed. Further in all the written communications between the litigating parties in question, Ex.PW1/7 was referred as license only, which indicated that they unanimously considered Ex.PW1/7 as license only. Net result of aforesaid appreciation was that Ex.PW1/7, was a license deed only.
46. On aforesaid premise, I have to see, whether society derived any legal right, in its favour against defendants, on the basis of evidence on record.
47. PW1 Sunit Mutta in his testimony admitted that Ex.PW1/7 expired on 31.12.1987 and further admitted that no subsequent license was issued by defendant NDMC in favour of society. All the written communications, referred by me in my preceding paragraphs, between the litigating parties, were of no consequence, once witness of the society itself admitted that there was no execution of fresh license deed after 31.12.1987. The net result was after 31.12.1987, society had no legal right to remain in possession of the SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 26 premises in question. His occupancy in the premises in question after 31.12.1987, was that of an illegal occupant. Acceptance of enhanced rent by defendant NDMC from society, made no difference, for the reason that there was no consensus adidem between the litigating parties with regard to the occupancy of society in the premises in question. The said acceptance of enhanced rent, seemed to be an acceptance under protest, by the defendants.
48. Therefore as on 21.04.1992, when present suit was filed by society, it had no legal right to enforce its possession in the premises in question. On 17.09.1991, in suit no. 5/09/92, defendant counsel made statement, to the effect that license Ex.PW1/7 was cancelled by defendants in writing on 13.04.1991. Though the said license was cancelled on 13.04.1991 in writing but in effect, the said license in the absence of any renewal, was already not effective since 31.12.1987. Be that as may, it was recorded on 17.09.1991 that defendants had taken possession of flat no. 7, one servants quarter, one garage and one big hall measuring about 2500 sq. yds. along with adjoining room and open courtyard, at the rear side, on 11.09.1991 and subsequently were alloted to different persons on the same day. On the said statement, at the request of society, one local commissioner was appointed, who in his report dated 19.09.1991, which is on record, noted that the aforesaid version of counsel of defendants with regard to possession of aforementioned part of premises in question, was proper. So far as rest of the portion in the premises in question was concerned, same was possessed by defendants. Further during pendency of this case, three ad interim injunction applications of the society were SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 27 dismissed. Therefore, it was clear that on one hand society had no legal right to stay in the premises in question, in the absence of any license deed and on other hand society was duly notified by letters mark C and mark D about its illegal occupation in the premises in question. Admittedly, there was dispute with regard to the terms and conditions of proposed renewed license deed, offered by the defendants, but fact of the matter remained that no fresh renewed license deed was executed. The net result was that alleged taking over of part of premises in question, by defendant NDMC on 11.09.1991, was not contrary to law, as society was duly notified about the said prospective steps, to be taken by defendants in the situation, which was existing then.
49. Issue with regard to whether aforesaid part of premises in question, was possessed by defendants on 11.09.1991 or 13.09.1991, had no consequence, as society itself in its plaint at para 15 had stated "whatever may be the date of dispossession, the defendants no. 1, 2 and 3 had not right to take law in their own hands". Fact of the matter remained that the said portion was possessed by defendants when there was no stay order, issued by the Court. Said issue cropped up, as in one of the suggestions given by defendants, it was noted that defendants had taken possession on 13.09.1991. Society, by arguing that there was discrepancy in the date of taking over of possession by defendants, was not able to raise a concrete case, in support of his version, that he was illegally dispossessed by defendants. Society did not give any reason, as to why its alleged dispossession should be seen as an illegal act on the part of defendants. There was no suggestion with regard to the same when defendant SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 28 witnesses were cross examined by it. In fact its own witnesses, did not depose, as to how dispossession of part of premises in question by defendants, can be seen as an legal act.
50. Society argued that defendants should have given notice to it, prior to cancellation of its license, on 13.04.1991. I failed to appreciate the same, for the reason, that same was not mandatory for the defendants. Even otherwise, society failed to reason the basis of its legal right over the premises in question, after 31.12.1987.
51. Here at the cost of repetition, I must mention that various written communications were time and again exchanged between the litigating parties, pertaining to renewal of license in question never materialized. In such situation accompanied with exchange of letters mark C and D, which mentioned about illegal occupancy of premises in question by society, I found that act of defendants were not illegal, as society was duly notified.
52. Aforesaid act of defendants was not illegal, for the reason that there was no evidence, on record which could have remotely indicated that the said portion in premises in question, was forcibly taken by the defendants. In fact society did not whisper about a minutest of article which was thrown or possessed or broken, during the alleged act of taking over of possession of part of premises in question. I failed to understand, as to how the said taking over of possession by defendants was forcible and against the knowledge and consent of society.
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53. Coupled with aforesaid aspect, I found that there was no evidence, to the effect that society was vibrant and functioning in full swing, at the time of filing of suit and/or during pendency of present suit. Though society disputed that the premises in question were not abandoned, but it failed to bring on record, any proof with regard to its functioning in the said premises. There remained bald allegations of premises in question, possessed by society, which did not help the cause of society.
Appreciation of testimony of PW1 Sunit Mutta.
54. PW1 Sunit Mutta, in his testimony admitted that he was not related to society, in any official capacity. If that be so, then it was incumbent on him to have proved, in what manner he attained personal knowledge, as alleged by him, regarding the present case. He did not do so. As a result of that, his testimony, became a testimony based on hearsay, for the reason that admittedly he had no first hand knowledge about the written communications between the litigating parties and for the reason that he had not witnessed the alleged act of possessing of part of premises in question, by defendants officials. He did not clarify in his examination in chief, as to on what basis society was claiming its right to remain in possession of the premises in question. He did not explain, as to how possession taken by defendants officials, was forceful. He did not reason, on what basis, he had deposed that the alleged act of defendants was illegal.
55. Even otherwise, as an attorney holder, he could not have deposed or SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 30 given evidence in place of his principal viz. Lal S. Ghanshani, for the acts done by the principal or transactions or dealings of the principal, of which principal alone had personal knowledge. For such acts done by the principal, of which the principal alone has the knowledge, it is the said principal, who is competent witness to depose, regarding the facts or transactions or dealings. Reliance in this regard is made on case law Man Kaur(dead) by LR's Vs. Hartar Singh Sangha(2010) 10 SCC 512. In the case in hand, admittedly PW1, did not do any act pertaining to the alleged act of dispossession by defendants officials. He had not witnessed the said alleged illegal act of defendants officials. Therefore he was not a competent person, who could have deposed about the chain of events, alleged by the society. The net result was that, his testimony was not able to clear obvious doubts regarding the rights of society. Therefore his testimony was untrustworthy and improbable. I discarded it. Appreciation of testimony of PW2 Lal S. Ghanshani.
56. PW2 Lal S. Ghanshani, was the secretary of the society. He was the person, who could have cleared the air about the legal rights of the society or about the manner in which officials of defendants had illegally dispossessed the society from part of premises in question. After considering his testimony, I found that he resorted to shortcut in deposing facts, as alleged by the society, for the reason that after referring to various written communications between the litigating parties and other related documents, he simply confirmed the testimony of PW1 Sunit Mutta. In his testimony he failed to mention the basis on which society was claiming its right to stay in the premises in question. SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 31 That did not help the cause of society. Further he did not explain, as to how and in what manner, society was functioning in full flow in the premises in question. In fact, there was no evidence, brought on record by the society, to the effect that society was functioning from the premises in question, during the relevant period or at any point, during pendency of this suit. He failed to prove that premises in question were not only possessed by effective members of society rather the said premises were properly maintained by the society. Aforesaid aspects were disputed by defendants, therefore onus of proving the same, rested on this witness, as he was part and partial of the society. Though, he had mentioned that Sh. Dharam Dutt, Administrator NDMC had visited the premises in question, on various occasions, but failed to give any specific date and occasion for such visits. Further, he had stated that he had voluminous evidence to show that Sh. Dharam Dutt, Administrator NDMC had attended functions of society, few months before dispossession. The said voluminous evidence, did not see the light of the day, till date, making his version vague and unbelievable. Apart from that, he admitted that he used to work from Mumbai based registered office of society, which indicated that there was every possibility, that he was not present at the premises in question, when the alleged act of taking over of the part of premises was done by defendants. Apart from all the aspects, mentioned above, this witness again had not seen the alleged illegal act of officials of defendants, regarding dispossessing society from part of premises in question. The net result was, his evidence was bereft of any specification and reasoning. Same was discarded by me, accordingly.
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57. Therefore, society failed to discharge the onus of proving its case, as per the mandate of Indian Evidence Act.
58. This brings me to the defence version.
Appreciation of testimony of DW1 M.L. Dua.
59. DW1 M.L. Dua was a Head Assistant, Estate Department, NDMC. Before his cross examination could have been completed, he expired. Therefore in terms of section 137 Indian Evidence Act, his evidence was not completed, as he was not subjected to complete cross examination and/or re examination, if any. At the same time his evidence, was not liable to be effaced from the record, for the reason that evidence of such like witnesses, was held to be a weak evidence by Hon'ble Delhi High Court in case titled as Asha Sehgal & Ors. Vs. State & Ors. 2008 (102) DRJ 172. Hon'ble Apex Court in case of Tinku Ram Vs. State 2012 (1) JCC 136, had held that while appreciating evidence of such like witnesses, cautious approach must be made by the Courts, while appreciating their evidence. It further observed that while appreciating testimony of such like witnesses, it had to be seen whether evidence of such witnesses had been substantially completed and whether absence of such witnesses was due to any genuine reasons or not?
60. Therefore testimony of DW1 M.L. Dua, was not supposed to be discarded, totally on the bedrock of non completion of his cross examination. It had to be appreciated, though with cautious approach. Same is done by me in my subsequent paragraphs.
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61. DW1 M.L. Dua, had deposed facts, narrating the version of defendants, in examination in chief. His veracity was tested, by society with regard to various aspects relating to proportionate cost towards fire fighting equipments, sought by defendants from the society, which became irrelevant, once defendants dropped its said claim from society. Apart from that he was questioned with regard to the manner in which defendants had taken possession of part of premises in question and with regard to the exact status of premises in question. Those aspects, again were not relevant, for the reason that this witness had acquired knowledge on the basis of documents of defendants and had admitted, in his testimony that he had no personal knowledge about the facts of the present case.
62. Though, he had stated in his testimony that in the absence of execution of license deed by NDMC, occupation of the occupant, would be seen as authorized but failed to give reason in subsequent questions, as to on what basis, it can be said that occupancy of premises in question w.e.f. 01.01.1988 to 10.04.1991 was authorized. The net result was, though in one breath, he had stated that society was authorized to occupy the premises in question, after expiry of license deed in question Ex.PW1/7 on 31.12.1987 but failed to give reason, as to why he had stated so. It indicated, that the first answer regarding authorized occupancy by society, was given by him, based on his whips and caprices, devoid of any rationality. What to ask for any rule/regulation, governing the said aspect. Therefore, his aforesaid answer regarding authorized occupancy of premises in question, after expiry of license deed SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 34 Ex.PW1/7, was found by me to be an improper, irrational and improbable answer, which I did not believe.
63. This witness was questioned at length, with regard to the date on which defendants had taken possession of part of premises in question. In his examination in chief, he had stated that the said date was 11.09.1991 but on the basis of record Ex.DW1/P1 the said date was 10.09.1991. The said discrepancy, was cleared by him, when he deposed that his statement was false and record was correct. Even otherwise, it was not the case of society, that the said portion of premises in question, was never possessed by defendants or that the same was possessed by defendants, after filing of present suit. There was no suggestion to that effect, given to this witness. In fact, he conceded, that the record which was available with him, on the date of his testimony, i.e. 05.05.2009, did not show that defendants had taken possession on 11.09.1991, which indicated that there was some error only with regard to proper mentioning of the date of taking over the said portion of premises in question. Therefore aforesaid appreciation, took care of the aspect regarding exact date when part of premises in question were taken by defendants.
64. Apart from aforesaid aspects, this witness was examined with regard to resolution no. 13 dated 02.01.1974, resolution no. 27 dated 28.04.1993, letters dated 13.08.1991 and 04.09.1991 by Sh. Ashok Ahuja, copy of approval of allotment of hall to Ashok Ahuja, copy of letter dated 11.09.1991 and another letter of the same date. All the said documents, were not challenged by the society. Therefore, by virtue of illustration E of Section 114 Indian Evidence SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 35 Act, I presumed that the said official acts were regularly performed, in ordinary course of the duties by the concerned staff of defendants. It further indicated that the action taking possession and reallotment to persons including Ashok Ahuja, was not arbitrary and done with some oblique motives, by defendants. In fact society did not give any suggestion to this witness with regard to some conspiracy in the department of defendant NDMC pertaining to receiving of letters from fresh allottees and their replies. Therefore evidence of aforesaid witness, though weak, but held its ground.
65. Further no suggestion to the effect that this witness had deposed falsely in order to shield any officer/official of NDMC was given to him. No question with regard to the basis of claim of society was put to him. He was not examined with regard to the legal right, asserted by society and with regard to the basis on which, one can say that act of defendants was illegal. Therefore this witness was not cross examined on merits of the case. His testimony, held its ground. I believed his testimony, which was indicative of wrongful approach of society and proper approach of defendants.
Appreciation of testimony of DW2 Balbir Singh
66. DW2 Balbir Singh had deposed in his examination in chief, that the lift which was initially installed in the premises in question, had become old and had started giving frequent trouble, resulting in inconvenience to the occupiers, from 5th to 7th floor in the premises in question and as a result of that, with the prior notice and consent of society, same was removed by SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 36 defendants and fresh lift was Installed. The old lift was maintained by the society but the new lift was maintained by the defendants, regarding which society had no issue.
67. After considering his testimony, I found that society was not able to cull out any material discrepancy in his deposition. In fact document Ex.DW1/P1 was brought on record, during cross examination, which elicited the fact that earlier lift was removed with the consent of society. Besides a bald suggestion of deposing false facts, which was refuted by this witness, there was nothing in his testimony, on which society could have harped, so that any relief could be given to it. I therefore believed his testimony to be truthful.
68. On the basis of aforesaid appreciation of aforesaid aspects and testimonies of the witnesses, I found that society was not entitled for any relief of permanent injunction, as sought by him in the plaint. Aforesaid issue, is therefore decided against the society.
Issue no.2 : Whether suit is barred Under Order 2 Rule 2 CPC?OPD
69. Defendants had stated in their written statement, based on which aforesaid issue was framed, that all the claims made in the present suit were barred as suit bearing no. 5/09/92, was pending then, pertaining to the same subject matter and therefore such claim mentioned in the present suit, need not to be agitated again. The said issue, became infructuous, as suit bearing no. 5/09/92, was not stayed by the Court and also for the reason that separate issues on the basis of pleadings, were settled by the Court in this case. As, SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 37 this suit along with suit bearing no. 5/09/92, referred by the society proceeded as per law and have reached the stage of judgement, so aforesaid issue had become meritless.
Issue No. 3: Whether suit is within time?OPP
70. Again the said issue has become infructuous, at this stage, when I have already concluded in my preceding paragraphs that this suit was not maintainable.
Issue No. 5: Whether suit is bad for misjoinder of parties?OPD
71. Defendants had asserted that suit was bad for misjoinder of parties as defendants no. 2 to 6 were wrongly joined by the society. Keeping in mind the relief sought by the society I found the said version of defendants tenable. There was no need for them to lead any evidence in this regard for the reason that neither society had asserted any specific plea with regard to the persons who had allegedly dispossessed it from part of premises in question, nor was there any evidence to that effect.
72. Here I must mention one noteworthy fact, which was that society in its plaint had stated that it was dispossessed from the portion referred above, in premises in question by defendants no. 1, 2 and 3 in para 15 but contrary to the same it had prayed in the prayer that defendants no. 4, 5 and 6 apart from defendants no. 1, 2 and 3 must be directed to give the possession of the said portion, back to society. There was neither any allegation that defendants no. SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 38 4, 5 and 6 had dispossessed the society in the plaint nor was there any evidence to that effect, brought on record by the society. Therefore I found that present suit was bad for misjoinder of parties as defendants no. 2 to 6 were wrongly implicated in this case. Aforesaid issue is decided in favour of defendants.
Issue No. 6: Whether the present suit is bad on account of non issuance of notice u/s. 49 of Punjab Municipal Act 1911?OPD
73. Onus of proving that present suit was bad on account of non issuance of notice U/s. 49 of Punjab Municipal Act 1911 rested on defendant. During cross examination of plaintiff's witnesses, defendant did not gave any suggestion to the effect that present suit was bad on account of non issuance of notice U/s. 49 of Punjab Municipal Act 1911. Further defence witnesses also did not depose, with regard to aforesaid aspect. Therefore defendant failed to prove aforesaid issue. Thus the said issue is decided against the defendant. Issue No. 7: Whether suit is to be stayed U/s. 10 CPC?OPD
74. Aforesaid issue, became infructuous for the reason that U/s. 10 CPC, no court shall proceed with the trial of any suit the matter in issue is also directly and substantially in issue in previously instituted suit between the parties, which was not the case in hand. In the present case, Court proceeded with this matter and also with another connected matter bearing no. 5/09/92. Both the matters, have now reached the stage of judgement.
SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 39 Issue no. 8: Relief.
75. In the light of appreciation and conclusion of issue no. 4 with regard to maintainability of the present suit, I find that society is not entitled for any relief, claimed by it in this case.
76. Before coming to the conclusion, I am appreciating certain aspects, raised by the society, during course of final arguments, in my subsequent paragraphs.
Act of taking possession of part of premises in question; how far justified?
77. Society was perturbed by the alleged act of taking possession of flat no. 7, one servants quarter, one garage and one big hall measuring about 2500 sq. yds. along with adjoining room and open courtyard, at the rear side, by the defendant. As per society, defendant could not have done so legally. It cushioned its argument, on the reasoning that society was a licensee and aforementioned portion in the premises in question, could not have been taken by the defendant, forcibly without order of the Court. Further it argued that even if position of society was deemed to be that of a trespasser, then also proper course for the defendant, was to move the Court. I did not agree with the said arguments, for the reason that in the absence of any valid license, society had no right to claim over the property in question. Deposition of enhanced fees with the defendant did not make any difference for the reason that same was never recognized as an act of recognizing society, a licensee. Therefore in the absence of any right, claim of society was that of an illegal SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 40 occupant. On that premise, evidence placed before me revealed that on one hand society was not able to give any proof, what to ask for a cogent one, regarding it running in the premises in question and on other hand by way of repeated inspections of defendant officials, not controverted by society, it was proved that Property in question was lying abandoned. In such scenario, when property of defendant, was neither used nor possessed by anybody whatsoever, act of taking possession of the same by the defendant was not improper and illegal, as one can always take possession of one's property, which is lying abandoned and unclaimed. Had there been the situation, that society was in possession of the property or part thereof, it would have shown by way of evidence that it had opposed the taking over of possession of the said part, in some particular manner. Society failed to allege and prove so. Apart from that there was no evidence to the effect that society officials had resisted the actions of officials of defendant in any manner whatsoever. There was no evidence to the effect that any article/goods/property of society was damaged in any manner whatsoever, by the alleged act of defendant. Therefore defendant officials did no wrong in taking part of property, which belong to defendant and which was lying abandoned. Apart from that various written communications, already referred by me in my preceding paragraphs, specifically mark C and D, indicated that society knew that in case license Ex.PW1/7 was not renewed afresh, officials of defendant reserved the right to enter upon the property in question. Therefore it was not the situation, where society was taken by surprise. That sums up about the legality of action of defendant officials.
SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 41 Approach of society in dealing with the disputes.
78. Ex.PW1/7 was the license, relied by both the litigating parties. Contents of the said document, were not disputed. Therefore both the litigating parties, were bound by it. In para 19 at page 8, of the said deed, it was noted that in case of dispute between the parties regarding interpretation or implementation of the terms of the said deed, the same shall be referred to sole arbitration of the Lt. Governor, Delhi of his nominee, whose decision shall be final and binding on both the parties. Therefore it was mutually agreed that so far as interpretation or implementation of the terms of said deeds were concerned, jurisdiction lied with Lt. Governor, Delhi or his nominee. Society had asserted that it had received a letter dated 15.09.1987, from defendant, in which defendant had called society to undertake to pay estimated cost of fire prevention and safety measures, to the tune of Rs. 400550/ to the concerned authority. That letter was evidently received by society prior to 31.12.1987, i.e. prior to expiry of license deed Ex.PW1/7. Society had refuted the said claim of defendant and therefore issue with regard to payment of the aforesaid amount arose, therein. By virtue of above mentioned provision in Ex.PW1/7, proper course for society was that it should have approached Lt. Governor or his nominee for arbitration, as the aforesaid issue regarding payment of Rs. 400550/, rested on the interpretation of terms of Ex.PW1/7, as society had claimed that under the terms of Ex.PW1/7, it was the responsibility of defendant to have paid the said amount. Society did not do so for reasons best known to it. For that matter society never approached SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 42 the Lt. Governor, be it the case of maintenance of lift in the premises in question or non raising of enhanced rate of license fees, in the garb of objects of society. Therefore approach of society, itself indicated that it never meant to follow the terms and conditions of license deed Ex.PW1/7. Existence of Society, as on date.
79. During course of final arguments, defendant disputed the fact that society is still functioning, as on date. The said argument, went to the root of the matter as in case of non functioning of society, there will remain no cause of action and right to sue in favour of society, as on date, and in that situation, this suit will become infructous. Society refuted the said allegation. Consequently, U/s. 165 Indian Evidence Act, I had asked the society to place before me document/s, showing prima facie that the said society is functioning still, within the rigors of Societies Registration Act 1860. In response to the same, society furnished a certificate issued by a chartered accountant, which was objected by the defendant, on the ground that said certificate was pertaining to a trust and not to society. The said issue was reserved by me at that stage. I am now deciding the same in my subsequent paragraph.
80. Documents furnished by the society in support of its contention that the same is functioning, as on date are two in number. For the sake of convenience, one is marked as mark AA and other is marked as mark BB. Mark AA, is a certificate issued by Chief Executive Officer of THE NEEDS OF LIFE CO.OP.BANK LIMITED(hereinafter bank), HAVING ITS OFFICE SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 43 AT MUMBAI. The said document certify that it was issued in favour of society certifying that on 26.08.2014, parent body of the bank had received a Email from the office of society at Mumbai. It further certified that society of Servants of God along with two trusts, is a promoter of the bank since 1962 ad the said bank is functioning under the relevant acts. Further society of Servant of God is functioning as parent trust to achieve its objectives and is maintaining savings bank account in the bank for last three decades. Mark BB, is a certificate issued by Lakhi Kalani, Proprietor of L.N. Kalani & Company, Chartered Accountants. The said document certifies that society of Servants of God is a trust registered under Bombay Public Charitable Trust, 1950 having its registered address at Mumbai and its account are audited up to 201213 and accounts for the financial year 201314 are under audit.
81. Both the aforesaid documents, at the very outset suggest that society of servants of God, is a trust and not a society. This fact is clearly against the version of society, wherein it is stated that plaintiff is a society. Secondly, both the said documents nowhere mention that plaintiff's society is functioning with full vigour in the part of premises, occupied by it, as on date. In fact the said documents did not whisper, as to whether plaintiff's society is functioning as on date. Therefore I had my doubts with regard to the legality of status of plaintiff's society, as on date. I have my doubts with regard to whether right to sue, exists as on date, in favour of plaintiff's society. The said doubts were not clarified by society, much to its own disadvantage.
82. As per society, defendant should have obtained the consent of society SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 44 while taking possession of portion of premises in question. As defendant did not take any such consent or gave prior notice or institute in suit for taking possession of the part of premises in question was the act of defendant was illegal. Said argument was not tenable for the reason that on one hand it had come on record that there was no evidence to the effect that society was functioning in the relevant part in premises in question on the relevant day when possession was taken by defendant and on other hand I have concluded in my preceding paragraphs that property in question was lying abandoned. As per Oxford English reference dictionary second edition, revised, word "abandon" means to give up completely. Therefore if society had given up its claim completely, by abandoning the premises in question, then in such situation I failed to understand as to from whom permission of taking possession the said portion in premises in question was expected from defendant officials. Therefore act of defendant officials was not illegal if viewed from the said perspective.
Written submissions by society.
83. In the written submissions, filed by the society, at the stage of final arguments, various issues were raised which I am dealing in my subsequent paragraphs.
84. At the very outset, society had mentioned in para 1 and 2 in its written submissions, facts regarding the manner in which said society was found and what were its objectives. Same were not relevant for the decision of fact in SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 45 issues in this case and therefore discarded by me.
85. Para 3, 4, 5, 6 and 7, society had narrated the facts of this case which are again not relevant as the same are already appreciated by me in my preceding paragraphs.
86. In para 8, it was stated that notice U/s. 106 Transfer of Property Act(in short TP Act) was supposed to be served on society, which was not done, prior to taking possession of the part of premises in question. Said argument was not tenable, for the reason that section 106 TP Act, is applicable where the issue is with regard to the manner in which a lease, has to be terminated. Same is not the case here, as I have already concluded that the agreement between society and defendant was a license and not a lease. Therefore for determination of the license in question, section 106 TP Act is not applicable. Besides that, I find that society was sufficiently notified by virtue of letters, referred in my preceding paragraphs. Apart from that, I have already concluded in my preceding paragraphs that property in question was lying abandoned and was not possessed by the society. Therefore, viewed from the said angle also, there was no need for serving society with notice U/s. 106 Transfer of Property Act.
87. Para 9, 10 and 11, mentioned the reasons as to why taking over of part of premises in question by defendant was illegal and why said portion should not have been restored back to society. Again I have already appreciated the said aspects in my preceding paragraphs.
SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 46
88. Para 12 is irrelevant for the reason that cause of action pertaining to charges of fire fighting equipments in the premises in question, no more exists in the wake of statement of counsel for defendant dated 19.08.2014.
89. Para 13 to para 20 are related to aspects, already appreciated by me and the same are not repeated here for the sake of brevity.
90. Para 21 is not relevant for the reason that said para relates to section 6 of Specific Relief Act, which is not the fact in issue in this case. Similarly para no. 22 pertains to interpretation of section 6 of Specific Relief Act, which is not relevant in this case.
91. By virtue of Para 23, society emphasized the law relating to the manner in which a document has to be interpreted i.e. whether it is a lease of license. I have already dealt with the said aspect in my preceding paragraphs and the same are not repeated here for the sake of brevity.
92. Judgements viz. (2001) 7 SCC 69, 1998 (4) AD Delhi 57, 1969 (3) SCC 415, as mentioned in para 24 and 25 are distinguishable on facts from the present case and therefore are not applicable on the present case.
93. With regard to prayer of restoration of part of premises in question, mentioned in para 26, neither there was any evidence nor society had prayed so in black and white, in its plaint. So said version of society was not tenable. Similarly was the case with para no. 27, wherein society had sought damages for use and occupation and mean profits @ Rs. 33340/ per month from the SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 47 date of dispossession i.e. from 13.09.1991 to 29.02.1992.
94. The net result was that society was not able to prove its case and therefore, present suit stands dismissed.
95. File be consigned to record room.
Announced in the open court
on 31.10.2014 (PRASHANT SHARMA)
ARC/ACJ/CCJ: New Delhi
Patiala House Courts/31.10.2014
SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 48
Society of Servants of God & Anr. Vs. NDMC & Anr.
S NO. 6/09/92
31.10.2014.
Present : Proxy counsel for plaintiff.
Sh. Aushotosh Lohia Counsel for defendants no. 1, 2 and 3. Defendants no. 4, 5 and 6 are Exparte.
Vide my order of even date application for the plaintiff U/s 165 Indian Evidence Act R/w Order 11 Rule 14 CPC is dismissed. Further keeping in mind the fact that evidence of M. L. Dua is appreciated by this Court, application of defendant NDMC U/s 151 CPC filed on 30.11.2012 for dispensing with the appearance of M. L. Dua , becomes infructuous. Vide my Judgement of even date present suit of plaintiff stands dismissed.
File be consigned to record room after necessary compliance.
(PRASHANT SHARMA) ARC/ACJ/CCJ: New Delhi Patiala House Courts/31.10.2014 SUIT NO. S6/09/92 Society of Servants of God & Anr. Vs. NDMC & ors. Page No. 49