Masonic Club vs Land And Development Officer And ...
2003 Latest Caselaw 726 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. Despite opportunities being granted to the respondent, no reply has been filed in respect of CM.No. 9169/2002. This CM had been filed in respect of the order dated 19-7-2002 whereby this Court had required the petitioner to deposit a further sum of Rs. 5 lacs. The prayer in this application is for recalling of the said order dated 19.7.2002 and for confirming the stay without imposing the said conditions. In view of the allegations of the petitioner that the petitioner is not the owner of the premises in question but is merely a tenant under Jamuna lodge which is the owner of the premises in question, since no reply in the CM.No. 9169/2002 has been filed, it might have been appropriate for me to confirm the stay and allow the application till the writ petition is finally disposed of. However, it appears that the writ petition itself can be disposed of at this stage itself as would be indicated below.

2. The petitioner has alleged that it is a tenant in respect of the premises in question. The petitioner also alleges that it pays Rs. 15,000/- per month by way of rent to the owner of the premises i.e. Jamuna Lodge. Unfortunately, the Jamuna Lodge has not been made a party in the present writ petition. However, learned counsel appearing for the parties state and submit that Jamuna Lodge has now imp leaded itself as a party in the proceedings pending before the learned Additional District Judge. Those proceedings are Section 9 Appeal proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 preferred by the petitioner against the Estate Officer's order dated 17.7.2000. In paragraph 10 of the Estate Officer's order dated 17.7.2000, it is indicated that the petitioner herein had submitted that they were utilising the land in question as a tenant of Jamuna Lodge. It is further indicated that the petitioner had filed several rent receipts issued by the said lodge. However, the Estate Officer came to a finding that the said documents did not confirm that the lodge was the owner of the property. On the other hand, the Estate Officer found that the Land and Development Office was the owner of the property and as such the premises in question were public premises. The Estate Officer also held the petitioner liable to pay damages/charges amounting to Rs. 2,66,12,260/- in respect of the said premises holding the petitioner to be in unauthorised occupation thereof from 1958 till date. Being aggrieved by this finding, the petitioner has filed an appeal under Section 9 of the said Act which is pending before the learned Additional District Judge. During the pendency of the appeal, as a condition of stay for recovery of the said amount of Rs. 2,66,12,260/-, the learned Additional District Judge vide an order dated 28-7-2000 required the petitioner to deposit 10 per cent of the said amount as well as Rs. 75,000/- per month for each succeeding month during the pendency of the appeal. Being aggrieved by this direction and order, the petitioner preferred the present writ petition.

3. By an order dated 17.8.2000, this Court required the petitioner to deposit a sum of Rs. 5 lacs against the amount demanded and subject to such deposit, the stay of eviction and stay of recovery of damages was directed to continue. The petitioner had deposited the said amount of Rs. 5 lacs. It is only with respect to the second deposit of Rs. 5 lacs which was made vide order dated 19.7.2000 that the petitioner had filed the aforesaid CM.No. 9169/2002. Learned counsel for the petitioner informs that the Section 9 appeal pending before the Additional District Judge is fixed for hearing on 28.8.2003.

4. In view of these facts and circumstances, it appears that there would be no useful purpose of keeping the present writ petition pending before this Court. All the issues, particularly, the issue as to whether the petitioner is the owner of the premises in question at all and other related questions have to be decided on facts before the learned Additional District Judge in the pending Section 9 appeal. It would be appropriate that writ petition is disposed of with the direction that the appeal be heard and disposed of as expeditiously as possible and without requiring the petitioner to deposit any further sum during the pendency of the appeal as a condition for stay of eviction and of recovery of the purported damages.

5. With these directions the CM as well as the writ petition is disposed of.

6. It is made clear that this Court has not expressed its view on the merits of the matter in any respect and it shall be open to the parties to raise all issues before the learned Additional District Judge hearing the said appeal.