Delhi District Court
Sh. Manohar Bhatia vs Estate Officer (Sez) on 1 April, 2017
1
In the Court of Ms. Poonam A. Bamba, District & Sessions Judge
South East : Saket Court, New Delhi.
PPA No.09/15
Sh. Manohar Bhatia
Through Sh. Narender Anand S/o Late Sh. Gian Chand
R/o C202, Defence Colony, New Delhi110 044.
......Appellant
Versus
1. Estate Officer (SEZ)
C1/6, Vikas Sadan, INA, New Delhi
2. Deputy Director (Industrial)
Land Sales Branch (Industrial)
Delhi Development Authority
BlockA, Vikas Sadan, INA, New Delhi.
3. Vice Chairman, Delhi Development Authority
Vikas Sadan, INA, New Delhi. ......Respondents
APPEAL UNDER SECTION 9 OF THE
PUBLIC PREMISES (EVICTION OF
UNAUTHORIZED OCCUPANTS) ACT, 1971
ON BEHALF OF THE APPELLANT
AGAINST THE ORDER DATED 22.05.2015
Date of filing : 25.06.2015
Arguments concluded on : 01.04.2017
Date of judgment : 01.04.2017
J U D G M E N T
1.0 Vide this judgment, I shall dispose of the appeal of the
appellant Sh. Manohar Bhatia under section 9 of the Public Premises
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(Eviction of Unauthorized Occupants) Act, 1971 ("the PP Act" in short)
against the order of eviction under Section 5 of the PP Act dated
22.05.2015 ("the impugned order" in short) passed by the Estate
Officer with respect to the property bearing plot no. A38, Mohan Co
operative Industrial Area, New Delhi. ("the said premises" in short).
The said order was corrected vide order dated 08.06.2015, recording that
the name of the unauthorised occupant be read as "Manohar Lal Bhatia"
instead of "M/s Supreme Auto Works" in the relevant paras.
2.0 Brief facts of the case are that a perpetual sublease with
respect to an industrial plot admeasuring 2925 sq. yards in the Mohan
Cooperative Industrial Estate, New Delhi/the said premises was executed
in favour of Sh. Manohar Bhatia on 16.07.1971. Sublessee Sh. Manohar
Bhatia transferred the leasehold rights to Classic Motor Pvt. Ltd. The
sublease of the said premises was determined on 06.10.2006 on account
of certain violations. As despite determination of lease, the vacant
possession of the said premises was not handed over by the exlessee
Sh.Manohar Bhatia, the proceedings for eviction under PP Act were
initiated against him. The said proceedings culminated into order of
eviction dated 22.05.2015 corrected vide order dated 08.06.2015, under
challenge in this appeal.
3.0 The appellant has submitted that for the construction of the
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building on the said premises, the building plan was sanctioned by the
MCD on 02.12.1983 and the completion certificate was also issued by the
MCD on 04.05.1984. It is further stated that the appellant vide his letter
dated 24.07.1984 informed his intention to transfer the leasehold rights in
the said premises in favour of the then M/s Competent Motors (later
known as M/s Classic Motors Pvt. Ltd.) and requested the DDA to
inform the charges for said transfer. The appellant entered into an
agreement to sell dated 14.06.1983 with M/s Competent Builders.
Although, there was no violation of any of the terms and conditions of
the lease deed or otherwise, DDA cancelled the sublease vide order
dated 06.10.2006. Thereafter, the proceedings for eviction under PP Act
were initiated against the appellant and the impugned order of eviction
was passed without any basis.
3.1 It is further submitted by the appellant that as per DDA's
circular no. F.26(1)07/Coordn(LD)/67 dated 09.04.2008, if the lease has
been determined and allotment has been cancelled on account of
unauthorized construction and the misuse, DDA is under an obligation to
restore the lease on payment of penal charges; and the lease will be
restored without insisting on removal of breaches and conversion will be
allowed subject to payment of all penal charges. The same will also
applicable to the cases wherein GPA and Agreement to sell have been
executed after determination of lease deed or cancellation of allotment.
As per the scheme of DDA, the appellant has already made an
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application to DDA to convert leasehold rights to freehold rights for the
said premises, along with conversion charges, additional surcharge and
processing fee amounting to Rs.92,97,663/ on 23.07.2007, which is
pending consideration. As per the provisions of the Scheme while
considering the application, DDA was under an obligation to restore
lease and even if reentry notice was issued, the same was to be
withdrawn. Accordingly, in the present case, at the time of consideration
of the appellant's conversion application, the lease was to be restored and
reentry notice was liable to be withdrawn.
3.1.1 It is also submitted that the fact that the appellant's request
is under consideration is evident from information provided to it under
RTI vide letter dated 22.10.2013. It is pleaded by the appellant that
pending consideration of his restoration/conversion application, no order
of eviction could have been passed by the Estate Officer, particularly in
view of the aforesaid Circular dated 09.04.2008; the said circular also
clearly mentions that where a show cause notice has been issued for
unauthorized sale/for committing breach of terms and conditions of the
lease deed and thereafter, conversion application has been received from
GPA, the show cause notice shall be deemed to be withdrawn and
conversion application be processed.
3.2 It is also submitted by the appellant that the said
premises/plot was eligible for commercial use as per MPD2021 and
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misuse charges were demanded by MCD. A sum of Rs.5,03,91,765/ has
already been paid to MCD with respect to the said premises in
installments as per office Order No. D/214/SE(B)HQ/09 dated
17.09.2009 over a period from 11.04.2011 to 07.10.2013.
3.3 The appellant has challenged the impugned order mainly on
the grounds that :
(i) the estate officer has erred in observing that no written
statement has been filed. This is despite the fact that not
only the written statement dated 08.05.2007 was filed on
behalf the appellant but also various communications were
made by the appellant;
(ii) the estate officer failed to consider any of the submissions
made by the appellant and even ignored the DDA's aforesaid
circular brought on record by him;
(iii) the estate officer has erred in noting "dormant behaviour on
the part of the appellant", totally ignoring the efforts made
by him for restoration of lease/its conversion and payment of
Rs.92,97,663/. Rather, the appellant had even been
expressing his willingness to pay all applicable charges for
conversion from leasehold to freehold;
(iv) the impugned order is unreasoned and non speaking order
and has been passed mechanically.
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4.0 On the other hand, the respondent/DDA has submitted that
in view of cancellation of sublease of the said premises on account of
misuser, the appellant has no authority to occupy the said premises. The
appellant is unauthorized occupant and therefore, the impugned order of
eviction has been rightly passed.
5.0 I have heard Sh. Narender Anand, Attorney of the appellant
and Ms. Promila Kapoor, Counsel for the respondents and have perused
the record carefully.
6.0 Perusal of the Estate Officer's record reveals that notice
under Section 4 PP Act was issued to the appellant/exlessee Manohar
Bhatia calling upon him to appear before the Estate Officer on
23.03.2007. It is seen that Sh. Narender Anand, introducing himself as
attorney of the appellant, appeared on the said date before the Estate
Officer; and thereafter, one advocate Sh. Sanjay Dua had been appearing
on behalf of the unauthorized occupant. On 08.05.2007, detailed
objections/reply dated 08.05.2007 were filed by Sh. Narender Anand,
CMD M/s Classic Motors Pvt. Ltd. as attorney of Manohar Bhatia on the
lines of the submission made in the present appeal. The said reply
mentioned that the sublessee of the said premises/the intending
purchaser has applied for permission to transfer the said premises and to
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ascertain the transfer charges. Thereafter, correspondence took place
between the appellant/the intending purchaser and DDA. A request was
also made for conversion of the said premises from leasehold to freehold
as per the policy of DDA. It also mentioned that pending such request,
the sublease of the said premises could not have been determined. The
appellant also placed on record before the Estate Officer, the copy of
DDA's Scheme of Conversion, Scheme of Grant of Temporary
Permission for Commercial Use in Industrial Plot and the
correspondence exchanged between the appellant and DDA. Vide their
subsequent application dated 26.07.2007 before the Estate Officer, the
appellant prayed for adjournment for two months, submitting that the
occupier has deposited a sum of Rs. 92,97,663/ towards conversion
charges, surcharge charges and processing fees for conversion etc; and
that the response to their representation was awaited. The appellant also
filed copies of his representation to Dy. Director (Industrial) and copies
of documents showing the payment made and other documents in this
respect. The appellant also placed on record before the Estate Officer,
further correspondence with DDA/Dy. Director (Industrial) made in this
respect vide letters dated 08.10.2007, 17.12.2007, 23.06.2008, 15.07.2008.
The appellant also filed before the Estate Officer, correspondence made
by it with Vice Chairman DDA regarding restoration/conversion vide
letters dated 03.11.2011, 19.12.2011 etc. requesting for calculation of
charges to be paid by the appellant.
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6.1 It is seen that even the order sheet dated 28.09.2007, in the
Estate Officer's record, mentions about the appellant's submission that
their application for restoration of lease and conversion to freehold was
pending consideration, as the misuse on the basis of which the allotment
was cancelled had been removed. The representative of DDA i.e.
Dealing Assistant, Indl. BranchDDA, confirmed that they have received
the said request and that the site report for misuse stoppage was being
taken. The relevant order sheets of the Estate Office's record are being
reproduced hereinunder :
"28.09.2007
1. Sh. Narender Anand, attorney of the unauthorised
occupant is present
2. Sh. A.K. Gupta, Jr. LO is present
3. Sh. A.K.P. Sahi, Dealing Asstt of LD department
is present
Sh. Anand stated that they have already applied
the DDA for restoration of lease and conversion into
freehold as the misuse on the basis of which the allotment
was cancelled has been removed and their case is under
process.
Sh. Sahi, Dealing Asstt. Of Indl. Branch DDA
has stated that the request referred to has been received
in the office and the site report for misuse stoppage is
being taken. He has been directed to submit the misuse
report and status report shall be submitted within 15 days.
The JE's site report shall also be filed within 15 days. The
case is adjourned for 16.10.2007.
....
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16.10.2007
1. Sh. Narender Anand, attorney of the unauthorised
occupant present
2. Sh. A.K. Gupta, Jr. LO (LD) present
3. Sh. A.K.P. Sahi, DA of LSB(I) present
Sh. A.K.P. Sahi, dealing assistant has
submitted the photocopy of the site inspection report
dated 27.08.2007 which reveals that the misuse from the
Bldg has been stopped and photocpies of MNL in the
name of Classic Motors Pvt. Ltd. A38, Mohan Coop. Indl.
Estate, South City Fort with head and receipt of property
tax bearing No. 0725388 dated 14.09.2007. all the
documents are kept opposite. The company has also
deposited the conversion charges of Rs.92,97,163/ vide
receipt no. 10811507 dated 23.07.2007.
Sh. A.K.P. Sahi also stated that the case is
being processed for restoration to LG, after examination
of all the aspect which will take time.
Sh. P.K. Sharma, JE stated that for
clarification of misuse, he seek time which is presently
exist or not in the Indl. Bldg. The JE will explain the
clarification on the next date of hearing. The case is
adjourned for 21.11.2007. Sh. Sahi and Sh. Sharma will
have to attend the court on the next date of hearing.
....
6.2 From the Estate Officer's record it is seen that thereafter, the
Estate Officer either remained busy in official work or was on leave and
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no proceedings in the matter took place. On 26.08.2008, the
representative of the department stated that the file was under
examination.
6.3 It is also seen that vide letter dated 25.03.2010 Dy. Director
(Industrial) DDA informed the status report of the said premises as
called for during the hearing held on 23.02.2010, to the Dy. Director
(SEZ), LM Branch/DDA/Estate Officer as under :
"In this connection, it is to inform you that the floor wise
area of the property has been obtained from the field staff to
decide the misuse. The case is being submitted to the
Competent Authority for approval and will be sent to
finance wing for calculation of the same. Thereafter, the
case will be put up for restoration of lease deed to the
Hon'ble LG/Delhi."
6.4 It is noted that on subsequent dates i.e. 06.09.2010 and
29.10.2010, the Department's representative informed the Estate Officer
that the appellant was ready to pay the misuse/subletting charges as well
as restoration charges and that the matter shall be submitted to Finance
Wing for calculation of the misuse and subletting data. Even thereafter,
the Department's representative informed the Estate Officer that the
restoration and conversion application of the said premises was under
process. The Department was directed to file a written submission in
this respect.
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6.5 It is seen that even on 07.05.2014 and 08.07.2014, Sh. H.S.
Negi, Dealing Assistant on behalf of Industrial Branch of DDA informed
the Estate Officer that the appellant's application for conversion and
restoration was still under consideration. After recording the same, the
Estate Officer mentioned as under :
"...since the matter has been pending since 2007, the
undersigned has left with no option but decide the case on
merit.
Kept for final order.
Sd
8/7/014"
6.6 Thereafter, there are no proceedings on record. The record
only mentions letter issued on 22.05.2015.
6.7 It is noteworthy that in the impugned order, the Estate
Officer has not dealt with any of the submissions made/correspondence
placed on record by the appellant before the Estate Officer. Moreso, in
view of the information given by the Department/DDA that the
appellant's request for restoration shall be put up to competent authority
after ascertaining misuse/its charges. The Estate Officer rather noted
that "the exallottee has neither attended the court nor filed any written
submission. The relevant portions of the Estate Officer's observations
as made in the impugned order read as under:
"Sh. Surender Kumar, authorized representative of (ex
allottee) attended the proceedings on many dates but he
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did not file any written submission regarding this case.
However he intimating continuously since last 4 years
approximately that their restoration/conversion application
from lease hold to free hold is under process in the Industrial
Branch but final report in this regard has not been received
so far. This dormant behaviour of the respondent is
totally uncalled for....."
6.7.1 Thereafter, after reproducing the provisions of PP Act
running into two pages, the Estate Officer records that :
".......I have given my thoughtful consideration to relevant
provisions of law and records of this case, I am satisfied
from the report/reference sent by the Deputy Director
(Industrial), Delhi Development Authority, statement of
the dealing Asstt. Of Indl. Branch and considering the
fact that the exallotte has neither attended the court
nor filed any written submission, that M/s Supreme
Auto Works are in unauthorized occupation of the
public premises specified in the schedule below"
6.7.2 Subsequently, the Estate Officer issued a corrigendum dated
08.06.2015 that "M/s Supreme Auto Works" in the impugned order be
read as "Manohar Lal Bhatia".
6.8 From the above it is apparent that the Estate Officer
mechanically passed the impugned order. The observations of the Estate
Officer that no reply has been filed is contrary to his own record.
Further, the comment about the dormant behaviour of the appellant is
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also contrary to the record as it has come on record even vide
Department's/DDA's representative's submissions that the appellant had
already applied for restoration of lease and for conversion from leasehold
to freehold and the payment of Rs. 92,97,663/ had been made by the
appellant towards conversion charges, surcharge charges and processing
fees for conversion etc.
6.9 It is also significant to note that the DDA's own circular
dated 09.04.2008 as referred to by the appellant, laid down a policy of
restoration/conversion without insisting upon the removal of breaches
and that the conversion will be allowed subject to payment of all penal
charges. The relevant portion of the said circular reads as under :
"No. F.26(1)07/Coordn(LD)/67 dated 09.04.2008
CIRCULAR
In supersession of this office circular
No.26)1)07/Coordn(LD)/24 dated 31.03.2008, revised
circular is as follows:
....
(e) In the cases where allotment has been cancelled or lease has been determined on account of unauthorized sale, conversion will be allowed after obtaining approval of Competent Authority for restoration of allotment/lease deed and on recovery of Restoration Charges;
....
(f) If lease has been determined and allotment has been cancelled on account of unauthorized construction and misuse, the lease will be restored without insisting on removal of breaches and conversion will be allowed subject PPA No.09/15 Manohar Bhatia V. Estate Officer Ors. Page 13 of 17 14 to payment of all penal charges. This will also be applicable in the cases wherein GPA and Agreement to sell has been executed after determination of lease deed or cancellation of allotment (As modified vide circular no. F.26(1)07/Coord/LD/06 dated 9.2.2009). ....
(h) In the cases where lease have been determined or allotment have been cancelled after the date of GPA or Agreement to Sell, conversion may be allowed subject to recovery of restoration charges and other dues payable by the lessee.
....
Sd/ (Asma Manzar) Commissioner (LD)"
6.9.1 Ld. Counsel for the appellant contended that even vide DDA's subsequent circular dated 18.09.2008, it was directed to expedite the conversion cases pending with the department. In support, copy of the said circular was placed on record by the appellant. The said circular is not disputed by the Ld. Counsel for the respondent/DDA. The relevant portion of the said circular reads as under :
"DELHI DEVELOPMENT AUTHORITY OFFICE OF THE COMMISSIONER (LD) & COMMISSIONER (HOUSING) No.F.4(10)08/AD/Coord/LD/64 dated 18th September 2008 CIRCULAR It has been observed that a number of conversion cases are pending in both Land Department and Housing Department wherein the applications were filed more than PPA No.09/15 Manohar Bhatia V. Estate Officer Ors. Page 14 of 17 15 six months earlier. Though Citizen Charter provides finalization of conversion cases within three months but this time frame is not being adhered in most of the cases. Complaints are being received in public hearing regarding undue delay in conversions cases. In order to further streamline the process of conversion from leasehold to freehold, it has been decided that:
1. All conversion cases where conversion application is pending for more than six months will be decided by 30.09.2008. All undecided cases as on 1.10.2008 or applications received after 1.10.2008, which could not be decided within a maximum period of 6 months will have to be placed before Commissioner (LD)/Commissioner (Housing) listing reasons for the delay and the expected time by which the case is likely to be finalized. In case it is observed by the competent authority that the delay has been due to unnecessary queries, raising piecemeal objections or due to any other unjustifiable reason then responsibility for the same will be fixed and disciplinary proceedings will be initiated.
2. Conversions cases pending either due to nonresponse from applicant or failure to complete deficiencies/outstanding dues need not be kept pending in view of previous instructions issued in this regard. Such cases will be rejected if there is no response from the applicant even after issue of fresh and final show cause notice. Such rejected cases will be restored by the concerned competent authority only on removal of the deficiencies/payment of dues and payment of conversion charges at current rate (conversion charges already paid will have to be adjusted). These cases however will not be PPA No.09/15 Manohar Bhatia V. Estate Officer Ors. Page 15 of 17 16 equated with the cases where applicants are disputing dues/deficiencies.
.....
In case the concerned Competent Authority differs with the recommendations and decides to take a different view then the file will be put up to the respective HOD for taking final decision along with justification etc.
4. Any unjustified delay in either deciding a conversion case or in placing it before committee or in taking final decision after recommendations of the Committee will be viewed seriously. sd (Asma Manzar) Commissioner (LD)"
7.0 From the above, it is more than evident that as per DDA's own policy, the restoration was permissible subject to the terms and conditions laid down therein. It was not the case of the respondent/Department that the appellant's request for conversion/restoration was pending due to nonresponse from him or on account of any failure to meet the deficiencies/outstanding dues on the appellant's part. Rather, the Department's representative's submitted before the Estate Officer that the appellant's request for conversion/restoration of lease was pending consideration. But, the Estate Officer despite noting the appellant's submissions in the proceedings and calling for the Department's/DDA's response, abruptly PPA No.09/15 Manohar Bhatia V. Estate Officer Ors. Page 16 of 17 17 proceeded to pass the impugned order mechanically.
7.1 It is paradoxical that on one hand, one department of the DDA is considering the restoration of the lease deed/conversion from leasehold to freehold and on the other hand, its other wing/the Estate Officer has passed the order of eviction on the ground of cancellation of lease deed.
8.0 For the aforesaid reasons, the impugned order cannot be sustained. Appeal is therefore, allowed. However, DDA shall be at liberty to initiate fresh eviction proceedings, if called for in future, as per law.
9.0 Copy of this judgment along with the Estate Officer's record be returned to the Estate Officer.
10.0 Appeal File be consigned to the Record Room Announced in the open court on this day of 01st April, 2017 (Poonam A. Bamba) District & Sessions Judge South East, Saket Courts New Delhi 01.04.2017 (s) PPA No.09/15 Manohar Bhatia V. Estate Officer Ors. Page 17 of 17