Prem Nath Saroop vs D.D.A. And Anr.
2006 Latest Caselaw 712 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Challenge is to the impugned order dated 12.1.2004 determining lease of plot No. 157, Block B-5, Safdarjung Residential Scheme, New Delhi and the consequential notice dated 26.4.2005 issued by the Estate Officer under Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act 1971.

2. Petitioner is the husband of late Smt. Sharda Devi who was the perpetual lessee of a plot of land bearing municipal No. 157, Block B-5, Safdarjung Residential Scheme, New Delhi. Perpetual lease was executed by DDA. The perpetual lease hold rights were purchased by Sharda Devi at an open auction held on 29.11.1971. Her bid in sum of Rs. 39,600/-, being the highest was accepted. Perpetual lease was executed in her favor on 28.11.1973. She constructed a residential building thereon wherein she resided along with her husband and her children.

3. The perpetual lease has been cancelled on the ground that Sharda Devi was not eligible to participate in the auction conducted by DDA on 29.11.1971 inasmuch as it was a term of auction that to be eligible to participate in the auction the intending bidder should not own in full or part, whether as lease hold or as free hold tenure, a residential plot or a house in the urban areas of Delhi.

4. As per DDA, Sharda Devi owned a house bearing municipal No. 245, Arjun Nagar, New Delhi at the time she participated in the auction. Thus, the perpetual lease granted in her favor required to be cancelled.

5. Arjun Nagar came up as an unauthorized colony on the agricultural land of village Humayunpur. Property No. 245 owned by Sharda Devi was on a part of land comprised in Khasra No. 427/328.

6. Land comprised in Khasra No. 427/328 along with other lands of village Humayunpur were notified for acquisition by and under a notification issued under Section 4 of the L.A. Act 1894 in the year 1957. Declaration under Section 6 was issued in the year 1962. Award was pronounced in the year 1963. Whereas some lands could be taken possession of and utilized under residential schemes framed by the Government, some lands in Khasra No. 427/328, including the land on which house No. 245, Arjun Nagar stood erected was not taken possession of. Status of the said property was that of a house in an unauthorised colony on agricultural land.

7. Sharda Devi purchased plot No. 245, Arjun Nagar on 7.11.1966. During emergency, in the year 1975, certain parts of the unauthorized colony Arjun Nagar were demolished as according to the authorities they had come up on acquired lands and in respect whereof an award being award No. 1662 dated 13.12.1963 had been published.

8. After emergency was over, the successor Government thought that the previous Government had acted in excess of its authority. To those who owned property in Arjun Nagar, houses whereon were demolished during emergency and land resumed, alternative plots were allotted by the Government through DDA. Sharda Devi was allotted plot No. B-7/Extension/63 Safdarjung Enclave, New Delhi. This allotment was by way of a lease hold tenure in her favor.

9. Sharda Devi expired on 2.6.1988. On 3.1.1989, petitioner sought mutation in his favor as the successor-in-interest of Sharda Devi and sought mutation of the lease hold tenure in his favor qua plot No. 157, Block B-5, Safdarjung Residential Scheme.

10. Before DDA mutated name of petitioner as the successor-in-interest of late Smt. Sharda Devi, afore noted fact of Sharda Devi being the owner of a house in Arjun Nagar came to the notice of DDA and accordingly DDA issued a show cause notice to the petitioner on 30.5.1991 calling upon him to show cause as to why perpetual lease in respect of plot No. 157, Block B-5, Safdarjung Enclave, New Delhi be not revoked for the reason at the time Sharda Devi participated in the auction she owned a residential house bearing No. 245, Arjun Nagar in an urban area of Delhi.

11. Reply was submitted by the petitioner on 29.6.1991. In a nutshell he stated that a property in an unauthorized colony could not be treated as a lawful house. Being illegal, houses in unauthorized colonies were always under the threat of demolition. Indeed, during emergency the house was demolished. On 15.7.1991, another show cause notice was issued to the petitioner calling upon him to show cause as to why the lease be not determined. Gravement of the allegation in the second show cause notice was the same as the show cause notice dated 30.5.1991. Petitioner submitted a reply to the second show cause notice on 7.8.1991 reiterating the stand taken in the earlier reply.

12. DDA did not pass any consequential orders pursuant to the show cause notice.

13. On 26.12.1999, petitioner applied for conversion of lease hold tenure to free hold tenure as the Union of India had formulated a conversion policy which was adopted by DDA.

14. On 12.1.2004, the letter, quashing whereof has been prayed for was posted by DDA to the petitioner informing that vide order dated 8.12.2003 issued pursuant to the show cause notice dated 30.5.1991 and 15.7.1991, the perpetual lease has been cancelled. Thereafter, on 26.4.2005, the Estate Officer DDA initiated proceedings under Section 4 of the P.P. Act 1971 for eviction of the petitioner treating him as an unauthorized occupant of the plot since perpetual lease was cancelled.

15. Shri Arvind Nigam, learned Counsel for the petitioner urged that the impugned order dated 12.1.2004 and proceedings initiated as a consequence thereof vide notice dated 26.4.2005 are vitiated in law on 3 counts. Firstly, counsel urged that the 2 show cause notices issued in the year 1991 were duly replied to in the year 1991 itself and after 12 years it was too late in the day to act under the show cause notices and pass an order on 8.12.2003. Secondly, the letter dated 12.1.2004 conveyed no reasons as to why reply(s) to the show cause notice(s) was not found satisfactory. Thirdly, it was urged that requirement of law was that a person participating in an auction to purchase lease hold rights under DDA should not own a house in an urban area, meaning thereby that the person should not own a legal and an authorized house. Counsel urged that if DDA's policy was understood to mean what was asserted by DDA virtually nobody would be entitled to a lease hold property in Delhi. Even a slum dweller who after trespassing on to Government land and having erected a tenement thereon would be ineligible.

16. Shri Anil Sapra, learned Counsel for DDA urged that Sharda Devi owned a house in Arjun Nagar and had a valid title thereto when she participated in the auction. Counsel urged that proof of valid title was the fact that after the house in Arjun Nagar was demolished and land possessed on account of the fact that the land was acquired in the year 1963, Sharda Devi was allotted lease hold rights in another plot of land being B-7/Extn./63 Safdarjung Enclave. On the issue of the delay in passing the order determining the lease in the year 2003 pursuant to the notices issued in the year 1991, Shri Anil Sapra submitted that there was no limitation prescribed within which a show cause notice has to be finalised in terms of a final order. On the issue of the impugned order not conveying the reasons as to why reply was found to be unsatisfactory, Counsel urged that it was implicit in the findings that the Lesser treated Sharda Devi as owner of a residential house when she participated in the auction in the year 1971.

17. It may be true that no period of limitation is prescribed within which DDA has to dispose of a show cause notice issued by it, but that would not mean that at any indeterminate period DDA can go about passing orders disposing of show cause notices issued by it. Law of property guides us that law abhors unnecessary restrictions on a property. Negative covenants to a property, save and except in exceptional cases, are not enforceable in law. (See Section 10 of the Transfer of Property Act, 1882). A show cause notice which threatens determination of a perpetual lease casts a cloud over the lease hold tenure held by the tenure holder. It shadows the right of the tenure holder to freely deal with the property. Where no period of limitation is prescribed would not mean that right can be exercised at any indefinite point of time. Where rights get clouded law would presume a reasonable limit within which action can be taken. As I understand the law, DDA must dispose of, by passing a final order proceedings initiated pursuant to a show cause notice within a reasonable period. What would be a reasonable period would depend upon the nature of the show cause notice and the defense. If some evidence has to recorded, length of time would have to be determined in said context. But where facts are not in dispute, either parties are at variance on the conclusions to be drawn there from or are at variance with each other on an issue of law or legal interpretation, length of time would have to be determined in said context. In the instant case only issue which needed determination was whether Sharda Devi could be treated as the owner of a residential house in an urban area in Delhi when she participated in the auction in the year 1971 inasmuch as she owned a residential house in an unauthorized colony Said issue did not require any appreciation of evidence, much less required any evidence to be led. Indeed, petitioner did not pray for leading any evidence. 6 months to a year would be a reasonable period, under the circumstances, to decide the show cause notice issued firstly in the month of May 1991 and repeated in the month of July 1991. By no stretch 12 years period can ever be conceived of as within which DDA could finalize the matter pursuant to the 2 show cause notices. The impugned orders required to be quashed on ground of inordinate delay, denuding DDA the power to pass any orders pursuant to the show cause notices.

18. Order dated 12.1.2004 records the following satisfaction as not being sufficient response to the show cause notices:-

And whereas you did not show any sufficient/satisfactory cause in spite of opportunity given to you vide show cause notice dated 30.5.1991 and 15.7.1991.

19. DDA has not even bothered to strike out either of the 2 reasons mentioned while passing the order. The 2 reasons cannot co-exist. Either no reply to the show cause notice was received and therefore DDA treated that the petitioner had no cause to justify his case or alternatively the reply received was unsatisfactory. By recording that no reply was received and at the same time recording that the reply received was unsatisfactory one is left to guess as to what actually weighed in the mind of the decision making authority.

20. Petitioner has asserted in para 5 and 6 of the writ petition that he submitted replies to the 2 show cause notices received by him. Counter affidavit filed by DDA has not dealt with the assertions in the writ petition by way of para-wise reply. In the counter affidavit, DDA has given its version. It may be noted that while stating its version DDA has not denied receipt of a reply. On the contrary, in para 8 of the counter affidavit DDA has referred to the stand taken by the petitioner in the reply to the show cause notices, meaning thereby DDA has admitted receipt of reply. If that be so, assertion in the impugned order that reply was not received, being contrary to record of DDA, cancellation on ground of no reply being filed to the show cause notice is illegal.

21. Law is well settled that where an order has an adverse civil consequence against a person, the order must contain reasons. Necessity of giving reasons in an order are manifold but the 2 most fundamental are that reasons in an order show that the authority concerned has come to grips with the reply to the show cause notice and the second is that it affords the party affected an opportunity to understand why his defense has been accepted or rejected, needless to state it helps a superior Court or a Tribunal before which the legality or propriety of the order is questioned to adjudicate upon the order. (See , S.N. Mukherjee v. U.O.I.). Apart from bald statement of fact that the reply received was found to be unsatisfactory, impugned order does not record as to why the reply was found unsatisfactory. That, a reply is unsatisfactory, is not a reasoning. It is a conclusion. Reasoning would be the process of analyzing the reply and focusing on the law and indicating the mind which determines and arrives at the conclusion. So viewed, impugned order cannot stand the scrutiny of law.

22. A person owning a residential property in an urban area in Delhi was debarred from participating at the auction. Prima facie owning a residential property would mean owning a legal residential property. The city of Delhi has seen vast unauthorized colonies and slum clusters coming up on agricultural land and even non-agricultural land. They came up because government failed to bridge the gap between demand and supply of housing in the city of Delhi. If the policy has to be literally understood and applied it would mean that even a slum dweller would be debarred under DDA's policy to acquire a lease hold property.

23. To have a meaning and acceptability in the society, the Rule of Law must run close to the Rule of Life. Policies must be interpreted, insofar they are so capable of being interpret, to conform to the ground realities.

24. I read the requirement of law of debarring a person from acquiring lease hold rights under DDA when the person owns a residential property in Delhi to mean lawful and a legal residential property. Not one which is not recognised in law as legal and lawful property. To read the policy otherwise would virtually make everybody ineligible from acquiring lease hold rights under DDA.

25. Indeed, Sharda Devi lost possession of the house at Arjun Nagar when the same was demolished by the Government as being an illegal structure on acquired land. This shows that till as late as 1975 the Government did not accord status of legal and lawful property to the house at Arjun Nagar. That the Government gave another plot to Sharda Devi when it took over possession of the land at Arjun Nagar and demolished the house is neither here nor there for the reason Sharda Devi got another plot not as a matter of right but as a result of a policy framed by the successor Government which felt that during emergency when fundamental rights were suspended, the citizens of this country got a raw deal. In fact, if at all, it was the second allotment which one could have questioned. But the DDA did not do so. The first acquisition of lease hold tenure in the writ property cannot be questioned on any count.

26. The Rule is made absolute. Impugned order dated 12.1.2004 and the impugned show cause notice dated 26.4.2005 are accordingly quashed.

27. No costs.