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Through : Sh. Harish Malhotra, Sr. Advocate with Ms. Shobhana Takiar, Advocate.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA MR. JUSTICE S. RAVINDRA BHAT %
1. In the present appeal, the judgment and order of 19.09.2012, dismissing CS 1085/1991, has been impugned.
2. The plaintiff - which has filed the present appeal (and is hereafter referred to as "DCM" or "the plaintiff" variously), claimed a declaration and decree for permanent injunction in respect of land situated at Baghraoji, Delhi. The DCM contended that some of its other lands were taken-over by the Delhi Improvement Trust as it was required for realignment of drain known as "Daryai Nala" and in exchange it was allotted the suit land. The plaintiff also stated that physical possession of the land allotted and made over to it was given sometime in 1942-1943 and ever since it was in RFA(OS)104/2012, C.M. NO.18873/2012 Page 1 continuous, exclusive and uninterrupted possession and enjoyment as the owner. The DDA initiated the proceeding under the Public Premises (Eviction of Unauthorised Occupants) Act, [hereafter referred to as "the 1971 Act"]. The notice under the 1971 Act was issued sometime in 1990 and proceedings were commenced by the DDA, the defendant thereafter.

The Estate Officer proceeded with the matter. During the pendency of those proceedings, the DCM filed CS 1085/1991 claiming declaration that it was the owner in possession and seeking a decree of declaration restraining the defendant DDA from dispossessing it. The DDA filed written statement urging various contentions. It also averred that the suit was not maintainable on the ground that notice in terms of Section 53A of the Delhi Development Authority Act had not been issued. The DDA objected to the maintainability of the suit, however, on the ground that it was barred by Section 15 of the Public Premises Act. The DDA filed an application, I.A. No. 11206/1992, in terms of the provisions of Order VII Rule 11 Code of Civil Procedure (CPC) for rejection of the suit, on the ground that notice under Section 53B had not been served. It also pleaded that DCM's argument that it was the owner and entitled to a declaration, was not made-out because of Section 15 and further that in the absence of any title document, such a plea was untenable.

5. In the meanwhile, during the pendency of the suit, the Estate Officer had proceeded to adjudicate upon the DCM's objections with regard to maintainability of proceedings under the 1971 Act and by order dated 30.03.2001, directed its eviction from the suit properties. By virtue of order of the Division Bench in RFA 17/1995, dated 25.08.1999, the Estate Officer (who had been restrained from issuing a final order in the eviction proceedings) was permitted to pass an order but also directed to send it to the Court in a sealed cover. In these circumstances, the matter was listed before the Single Judge on 21.08.2012. He was of the opinion that the order of the Estate Officer in favour of the defendant/DDA, directing the plaintiff's eviction would operate as res judicata and also operate as estoppel against the plaintiff DCM. In these circumstances, the matter was further listed for hearing on 19.09.2012. By the impugned judgment, the learned Single Judge dismissed the suit in terms of the decision of larger Constitution Bench of the Supreme Court in Ashoka Marketing Limited & Anr. v. Punjab National Bank and Ors 1990 (4) SCC 406. The learned Single Judge relied upon paras 33 to 35 of the said judgment in Ashoka Marketing (supra) to say that the contention with regard to maintainability of a suit that raises bona fide disputes or RFA(OS)104/2012, C.M. NO.18873/2012 Page 4 issues of fact relating to title of premises claimed to be public premises, has to be rejected. Learned Single Judge was of the opinion that since the Constitution Bench rejected that contention, the suits by which the lessees claim to be owners are not maintainable once the premises fall within the definition "public premises". He also relied exclusively upon paras 10 to 16 of the Estate Officer's order dated 30.03.2001. Thereafter, in the impugned judgment, the learned Single Judge proceeded to reject other contentions of the plaintiff/DCM in the following terms:

7. The appellant's counsel also relied on some of the documents, filed before the competent authority under the Public Premises Act, to say that the suit lands were the subject matter of legitimate exchange.

RFA(OS)104/2012, C.M. NO.18873/2012 Page 6 Since the erstwhile Board wished to align a canal, it took over DCM's property; the latter was offered land, evident from letters written on behalf of the Governor General of British India, contemporaneously in 1941-42, offering the suit lands in exchange. It was submitted that these letters were not produced by the DDA, but obtained from the official archives. These, and related documents established that DCM had been given the lands in exchange. Even though the Estate Officer did consider the matter, the fact remained that he could not have given a ruling in favour of the plaintiff, because of the limited nature of his mandate and jurisdiction, which was to decide whether the eviction notice had been issued in accordance with law. The question whether DDA or the government agency had title, or had acquired title or whether it continued with DCM, could not have been gone into by him. Counsel submitted that the learned single judge fell into error in giving primacy to Section 15 and holding that the determination by the Estate Officer constituted res judicata. That principle operated only when the decision is rendered by a competent court or tribunal; the Estate Officer could not be described as such.