Vikas Jain vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 951 Del

JUDGMENT

Vikramajit Sen, J.

1. Rule.

2. Final opportunity to file Counter Affidavits within the time permitted by the Court has not been availed of. The factual matrix raises no controversy. The petition is taken up for final disposal.

3. One of the questions that has arisen in this Writ Petition has already received the attention of several Single Judges of this Court as well as the Hon'ble Division Bench in Union of India v. Vinay Kumar Agarwal . I have also allowed various writ petitions on this question viz. WP(C) No. 7751/2005 titled Garden View Meadows Private Limited v. Land and Development Officer decided on 11.11.2005, WP(C) No. 6837/2005 titled Anu Mehra v. Union of India decided on 2.8.2005, WP(C) No. 3566/2002 titled M.C. Gupta v. Union of India decided on 5.12.2005 and WP(C) No. 7990-92/2005 titled Brij Goel v. Union of India decided on 9.12.2005. Thereafter, a batch of petitions titled Bal Kishore Chhabra v. Union of India, 127(2006) DLT 460 were allowed by Judgment dated 30th January, 2006. It has been contended that a Special Leave Petition (SLP) has been admitted against the Judgment of the Division Bench in Vinay Kumar Agarwal's case, but the Apex Court has not stayed the operation of the Judgment. A Single Bench must honour and follow this detailed Judgment even though another Division Bench may have stayed the operation of an Order passed by a Single Bench which implemented Vinay Kumar Agarwal, on the sole ground that the aforementioned SLP is still pending. In those cases the L and DO had not converted the properties from Leasehold to Freehold because of alleged misuse and/or existence of unauthorised construction. The view of the Division Bench is that these aspects must be left to the Municipal Authorities, and even assuming their existence, the conversion should not be withheld. This approach should be traversed a fortiori, since the plea of the Petitioners is only for their substitution/mutation.

4. The facts of the case are that the subject land was leased out to the predecessor-in-interest of the petitioner by means of a ninety-nine year lease executed on 12.10.1962. Simultaneously, a Deed of Conveyance of the built-up superstructure was also executed. Therefore, all the parties were mindful of the facts that whilst the land continued to vest in the ownership of the Respondent - L and DO, the built-up property in question was in the absolute ownership of the petitioner. It has been asseverated that in June, 2000 the erstwhile owners had applied to the Municipal Corporation of Delhi to accord sanction to proposed Building Plans and thereafter, on receipt of the sanction, construction was carried out. On the completion of the construction the Petitioner purchased the Upper Ground Floor as well as entire First Floor by a duly registered Sale Deed dated 1.12.2000.

5. Upon the petitioners applying for substitution of their names in the records of L and DO on the strength of Sale Deeds executed in December, 2000, the L and DO had issued a 'Breach Notice' dated 13.10.2005 alleging misuse and unauthorized construction. On 28.10.2005 a Show Cause notice came to be issued conveying the intent of the L and DO to re-enter upon the property. The property has been notionally re-entered on 17.11.2005.

6. Proceedings have commenced before the Estate Officer, Land and Development Office which has issued the impugned notice dated 9.1.2006 to the occupants including the Petitioner herein. Since the subject eviction proceedings have been initiated under the PP Act the definition of 'public premises' and of 'unauthorised occupants' in Section 2 thereof requires to be reproduced, since the meaning to be given to these phrases is central to the determination of the present controversy:

2.Definitions.- In this Act, unless the context otherwise requires,-

(e) public premises' means-

(1) any premises belonging to, or taken on lease or requisitioned by, or on behalf of, the Central Government, and includes any such premises which have been placed by that Government, whether before or after the commencement of the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1980, under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat;

(2) any premises belonging to, or taken on lease by, or on behalf of,-

(i) any company as defined in Section 3 of the Companies Act, 1956, in which not less than fifty-one per cent, of the paid up share capital is held by the Central Government or any company which is a subsidiary (within the meaning of that Act) of the first-mentioned company.

(ii) any corporation (not being a company as company as defined in Section 3 of the Companies Act, 1956 or a local authority) established by or under a Central Act and owned or controlled by the Central Government.

(iii) any University established or incorporated by any Central Act.

(iv) any Institute incorporated by the Institute of Technology Act, 1961.

(v) any Board of Trustee constituted under the Major Port Trusts Act 1963.

(vi) the Bharkha Management Board constituted under Section 79 of the Punjab Reorganisation Act, 1966 and that Board as and when re-named as the Bhakra-Beas Management Board under Sub-section (6) of Section 80 of that Act;

(vii) any State Government or the Government of any Union Territory situated in the National Capital Territory of Delhi or in any other Union Territory.

(viii) any Cantonment Board constituted under the Cantonments Act, 1924 (2 of 1924); and

(3) in relation to the National Capital Territory of Delhi,-

(i) any premises belonging to the Municipal Corporation of Delhi, or any municipal committee or notified area committee,

(ii) any premises belonging to the Delhi Development Authority, whether such premises are in the possession of, or leased out by, the said Authority;

(iii) any premises belonging to, or taken on lease or requisitioned by, or on behalf of any State Government or the Government of any Union Territory....

(g) 'unauthorised occupation', in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premise has expired or has been determined for any reason whatsoever.

7. Mr. Valmiki Mehta, learned Senior Counsel appearing on behalf of the Petitioner, has contended that the Estate Officer perforce has to proceed on the basis that the Petitioner is in illegal possession of the property. This is also the settled position of law. It is contended that since the Petitioner is the absolute owner of the superstructure, the dictum in Express Newspapers Pvt. Ltd. v. Union of India leaves no alternative to the Respondents but to seek the Petitioner's eviction/ejectment under the ordinary civil law, as is evident from the following paragraphs:

87. The Express Buildings constructed by Express Newspapers Pvt. Ltd., with the sanction of the Lesser i.e. the Union of India, Ministry of Works and Housing on Plots Nos.9 and 10, Bahadurshah Zafar Marg demised on perpetual lease by registered lease-deed dt. March 17, 1958 can, by no process of reasoning, be regarded as public premises belonging to the Central Government under S. 2(e). That being so, there is no question of the Lesser applying for eviction of the Express Newspapers Pvt. Ltd., under S. 5(1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 nor has the Estate Officer any authority or jurisdiction to direct their eviction under Sub-section (2) thereof by summary process. Due process of law in a case like the present necessarily implies the filing of suit by the Lesser i.e. the Union of India, Ministry of Works and Housing for the enforcement of the alleged right of re-entry, if any, upon forfeiture of lease due to breach of the terms of the lease.

88. Nothing stated here should be construed to mean that the Government has not the power to take recourse to the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 where admittedly there is unauthorized construction by a lessee or by any other person on Government land which is public premises within the meaning of S. 2(e) and such person is in unauthorized occupation thereof.

Justice A.P. Sen, who had delivered the leading Judgment quashed the impugned notices threatening re-entry and demolition of construction and raising a demand for conversion charges till the final determination of these demands by a statutory tribunal or by a Civil Court. His Lordship observed that due process of law in a case, like the present, necessarily implies the filing of a suit by the Lesser for enforcement of the alleged right of re-entry. Justice E.S. Venktaramiah (as the Learned Chief Justice then was) voiced the view that the impugned notices suffered from arbitrariness and non-application of mind in that the Central Government had functioned under the Lieutenant Governor of the Union Territory of Delhi. So far as the rights under the Lease Deed were concerned they were left open to be decided in appropriate proceedings i.e. other than under the PP Act. His Lordship Justice R.B. Misra (as the Learned Chief Justice then was) while concurring with these opinions also opined that the question of whether there was a breach of the contract of lease or of any statute 'can be properly decided by taking detailed evidence involving examination and cross- examination of witnesses'. The entire Bench had indicated in unison that matters of such import could not be properly decided in a summary manner.

8. This approach has also been followed by my learned Brother, Sanjay Kishan Kaul, J. in Suneja Towers Private Limited v. Delhi Development Authority, being CWP No. 542/2001, which was allowed by Orders dated September 15, 2003.

9. My attention has been drawn to the subsequent decision of the Hon'ble Supreme Court in Ashoka Marketing Ltd. v. Punjab National Bank but it does not advance the case of the Respondents. The question in that case was whether the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 would override the provisions of the Delhi Rent Control Act in relation to the premises which fall within the ambit of both the Enactments. There was avowedly a relationship of landlord and tenant between the parties, but the landlord Bank was also entitled to avail of the summary provisions of the Public Premises Act. It was in that context it was observed as follows:

30. The definition of the expression 'unauthorised occupation' contained in Section 2(g) of the Public Premises Act is in two parts. In the first part the said expression has been defined to mean the occupation by any person of the public premises without authority for such occupation. It implies occupation by a person who has entered into occupation of any public premises without lawful authority as well as occupation which was permissive at the inception but has ceased to be so. The second part of the definition is inclusive in nature and it expressly covers continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. This part covers a case where a person had entered into occupation legally under valid authority but who continues in occupation after the authority under which he was put in occupation has expired or has been determined. The words 'whether by way of grant or any other mode of transfer' in this part of the definition are wide in amplitude and would cover a lease because lease is a mode of transfer under the Transfer of Property Act. The definition of unauthorised occupation contained in Section 2(g) of the Public Premises Act would, therefore, cover a case where a person has entered into occupation of the public premises legally as a tenant under a lease but whose tenancy has expired or has been determined in accordance with law. ...

32. Shri Ganguli has placed reliance on the decision of A.P. Sen, J. in Express Newspapers Pvt. Ltd. v. Union of India and has submitted that in that case the learned Judge has held that cases involving relationship between the Lesser and lessee fall outside the purview of the Public Premises Act. We have carefully perused the said decision and we are unable to agree with Shri Ganguli. In that case A.P. Sen, J. has observed that the new building had been constructed by the Express Newspapers Pvt. Ltd. after the grant of permission by the Lesser, and, therefore, the Express Newspapers Pvt. Ltd. was not in unauthorised occupation of the same within the meaning of Section 2(g) of the Public Premises Act. It was also held by the learned Judge that the Express Building constructed by the Express Newspapers Ltd. with the sanction of Lesser on plots Nos.9 and 10 demised on perpetual lease can, by no process of reasoning, be regarded as public premises belonging to the Central Government under Section 2(e) of the Public Premises Act, and therefore, there was no question of the Lesser applying for eviction of the Express Newspapers Pvt. Ltd. under the provisions of the Public Premises Act. The aforesaid observations indicate that the learned Judge did not proceed on the basis that cases involving relationship of Lesser and lessee fall outside the purview of the Public Premises Act. On the other hand the said observations show that the learned Judge has held that the provisions of the Public Premises Act could not be invoked in the facts of that case.

33. Another submission that has been urged by Shri Ganguli is that the question whether a lease has been determined or not involves complicated questions of law and the estate officer, who is not required to be an officer well versed in law, cannot be expected to decide such questions and, therefore, it must be held that the provisions of the Public Premises Act have no application to a case when the person sought to be evicted had obtained possession of the premises as a lessee. It is true that there is no requirement in the Public Premises Act that the estate officer must be a person well versed in law. But, that, by itself, cannot be a ground for excluding from the ambit of the said Act premises in unauthorised occupation of persons who obtained possession of the said premises under a lease. Section 4 of the Public Premises Act requires issuing of a notice to the person in unauthorised occupation of any public premises requiring him to show cause why an order of eviction should not be made. Section 5 makes provisions for production of evidence in support of the cause shown by the person who has been served with a notice under Section 4 and giving of a personal hearing by the estate officer. Section 8 provides that an Estate Officer, shall, for the purpose of holding any enquiry under the said Act have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the matters specified therein namely:

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring discovery and production of documents; and

(c) any other matters which may be prescribed...

64. It would thus appear that, while the Rent Control Act is intended to deal with the general relationship of landlords and tenants in respect of premises other than Government premises, the Public Premises Act is intended to deal with speedy recovery of possession of premises of public nature i.e. property belonging to the Central Government, or Companies in which the Central Government has substantial interest or Corporation owned or controlled by the Central Government and certain corporations, institutions, autonomous bodies and local authorities. The effect of giving overriding effect to the provisions of the Public Premises Act over the Rent Control Act, would be that buildings belonging to Companies, Corporations and autonomous bodies referred to in S. 2(e) of the Public Premises Act would be excluded from the ambit of the Rent Control Act in the same manner as properties belonging to the Central Government. The reason underlying the exclusion of property belonging to the Government from the ambit of the Rent Control Act, is that the government while dealing with the citizens in respect of property belonging to it would not act for its own purpose as a private landlord but would act in public interest. What can be said with regard to Government in relation to property belonging to it can also be said with regard to companies, corporations and other statutory bodies mentioned in S. 2(e) of the Public Premises Act. In our opinion, therefore, keeping in view the object and purpose underlying both the enactments viz., the Rent Control Act and the Public Premises Act, the provisions of the Public Premises Act have to be construed as overriding the provisions contained in the Rent Control Act.

10. In the present case it has already been noted that the land in question had been demised on a ninety-nine year lease, whereas the superstructure constructed thereon had been conveyed absolutely. The Express Newspaper case would, therefore, apply on all fours. If the Respondents are desirous of terminating the Lease, the question which would immediately arise is whether the absolute rights conveyed over the superstructure would be automatically annihilated. This would depend upon the terms of the Lease Deed and the law applicable on point. These are not the questions which the Estate Officer is competent to adjudicate upon and decide. As has already been mentioned, the Estate Officer must proceed on the basis that the Petitioners are unauthorised occupants.

11. In the writ petition it has been prayed that the re-entry Order dated 17.11.2005 and the proceedings initiated by the Estate Officer, Land and Development Office by Notice dated 9.1.2006 be quashed. In the conspectus of facts and law discussed above, it is manifest that the Petition is well-founded. The Estate Officer is not competent to decide these complex issues which are essentially civil in nature. This will, however, not preclude the L and DO from initiating appropriate proceedings for the ejectment of the Petitioner and also from recovery of misuse charges. It shall also not preclude the MCD from taking appropriate action including the demolition of the unauthorised and non- compoundable portions of the existing immoveable structure.

12. The proceedings before the Estate Officer are without jurisdiction and are quashed.

13. Parties to bear their respective costs.