Delhi Development Authority vs Darshan Lal
2002 Latest Caselaw 574 Del

JUDGMENT

R.C. Jain, J.

1. This second appeal is directed against the judgment of the learned Additional District Judge, dated 7.8.1992, by which the first appeal filed by the respondent herein against the dismissal of his suit has been allowed and the matter has been remanded back to the board of the learned trial court for adjudication on merits.

2. Briefly stated the relevant facts leading to the present appeal are that the respondent herein had filed a suit against the petitioner-DDA for injunction for restraining them from issuing any demand/recovery of damages in respect of the suit premises bearing property No. 6127/2-3, Jhandewalan Road, Paharganj, New Delhi, on the averments that the said property was purchased by the father of the respondent some time in the year 1959 and after that he got his name mutated in the record of Municipal Corporation and let out the same to certain Satpal, proprietor/partner of property of Azad Hind Bag Factory. The petitioner-DDA started raising certain illegal and unauthorised demands by issuing notice under Section 7 of the Public premises (eviction of unauthorised occupants) Act 1971 (in short 'Act') which action of the DDA was illegal. The suit was defended by the petitioner-DDA inter-alia on the ground that the civil court has no jurisdiction as the subject matter of the suit was covered under the provision of Act more particularly under Section 10 and 15 of the said Act and the respondent-plaintiff ought to have joined the proceedings before the Estate officer and in case any grievance was left, he could file the appeal under the provisions of the said Act.

3. The learned trial court framed the following preliminary issue on the above aspect:

"Whether the suit is barred under Section 10 and 15 of Public Premises (Eviction of Unauthorised Occupants) Act 1971.

4. The learned trial court treating the issue as preliminary issue and without recording any evidence answered the issue in affirmative and against the plaintiff-respondent. In the appeal, the first appellate court took a different view by holing that the respondent-plaintiff ought to have been allowed an opportunity to prove his averments and allegations made in the plaint and the suit could not have been dismissed straight away on the ground that the said officer had assumed the jurisdiction and had passed certain orders.

5. I have heard the learned counsel for the parties and have given by thoughtful consideration to their respective submissions. Learned counsel appearing for the petitioner-DDA seeks to assail the order of the first appellate court mainly on the ground that the premises are covered by the provisions of the Act, which is a comprehensive legislation providing for all possible remedies including a remedy of appeal before a judicial authority against the orders of Estate officer. According to him the plaintiff-respondent was free to take all those objections in the proceedings before the said officer and if he was not satisfied, could have approached the judicial authority provided under the Act. In the opinion of this court, this contention has no merits. To invoke the provisions of the Act, it should be shown that the property in question falls within the term "Public Premises" as defined under the Act. and unless that is done the said officer cannot assume jurisdiction and proceed to make orders. In the case in hand on the face of the specific averments and allegations in the plaint about the plaintiff-respondent having acquired the suit property in an auction as back as in the year 1959 was, therefore, within his rights to maintain a suit in the civil court and to establish the above facts. However no such opportunity was granted to him as this aspect was not put to trial and the learned trial court had erred in deciding the preliminary issue mainly on the allegations and pleas taken up by the defendants DDA in the written statement that the Estate officer had already assumed jurisdiction and had started certain proceedings by issuing notice under Section 7 of the Act.

6. On the face of the facts and circumstances obtaining on record, the first appellate court was fully justified in setting aside the judgment and decree of the learned trial court and remanding back the matter to the learned trial court for deciding the suit in accordance with law. The finding is based on proper appreciation of the factual and legal position and cannot be faltered. This second appeal being devoid of any merits is accordingly dismissed.