Delhi High Court
Yogender Kumar Sharma & Ors. vs Delhi Development Authority & ... on 12 November, 2009
Author: Gita Mittal
IN THE HIGH COURT OF DELHI
Writ Petition (Civil) No. 7664/2009 & CM Nos.3845/2009,
10682/2009, 11811/2009 & 11812/2009
Reserved on 29th October, 2009
Date of decision: 12th November, 2009
YOGENDER KUMAR SHARMA & ORS. ... Petitioners
through: Mr. Sandeep Sethi, Sr. Advocate with
Mr. Rishi Dewan, Adv.
VERSUS
DELHI DEVELOPMENT AUTHORITY & ANR. ....Respondents
through: Ms. Sangeeta Chandra, Standing
Counsel for the DDA.
Mr. Sanjay Poddar, Standing Counsel for the
PWD.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
1.Whether reporters of local papers may be allowed to see
the Judgment? Yes
2.To be referred to the Reporter or not? Yes
3.Whether the judgment should be reported in the
Digest? Yes
GITA MITTAL, J
1. The petitioners have raised a limited question with regard to
maintainability of proceedings filed against them under the Public
Premises (Eviction of Unauthorised Occupants) Act, 1971 during the
pendency of a suit for declaration and injunction filed by their predecessor
in interest against the land owning agency. The writ petition is premised
on the submissions that the erstwhile Delhi Improvement Trust had
granted a lease of land in different parts of Delhi to the Delhi Peasants
Cooperative Multipurpose Society for agricultural production. This society
is claimed to have allotted about 99 bighas of land located in Khasra
No.172/38, 182/38 to 199/38 and 222/200 in Village Chirag Shumali, G.T.
-1-
Road, Shahdara, Delhi by a special lease to Pandit Chintamani Sharma
(predecessor in interest of the petitioners) who claimed to have been a
member of the society.
2. The Delhi Improvement Trust was taken over by the Delhi
Development Authority (`DDA' for brevity hereafter). The DDA is alleged
to have attempted to forcibly evict Pandit Sharma from this land. Such
attempt was resisted and petitioners are stated to have filed a civil suit
bearing Suit No.496/1963 praying for grant of perpetual injunction
restraining the DDA from dispossessing him from 3.58 acres of land
located in Khasra No.222/200 in Village Chirag Shumali, G.T. Road,
Shahdara, Delhi.
3. Suit No.496/1963 was decreed in favour of the plaintiff by a
judgment and decree dated 21st December, 1964. In para 10 of this
judgment, the trial court noted that the lease in favour of the society was
for a fixed period which stood determined in the year 1956. However,
possession of the land was not taken by the DDA. Rather as per the
defence witnesses, it was admitted that from 1956 to 1963, lease money
had been received from the society. The court held that the mere fact
that the lease was for a fixed period would not mean that the society
ceased to be lessee after 1956 when the lease money of the land had
been accepted by the DDA since 1956. Reliance was placed on Section
116 of the Transfer of Property Act by the court and it was concluded that
there was no evidence that the new lease had been determined by the
DDA.
4. The DDA assailed this judgment by way of RCA No.52/65 before the
Senior Sub-Judge which was dismissed by a judgment dated 20th July, 1965
-2-
on the principle of holding over by the tenant on expiry of the lease.
5. The petitioners have contended that in the meantime, land was
sought for the establishment of Shyam Lal College and an area of 3.5
acres was taken away from Pandit Sharma for this purpose.
6. For the reason that efforts were again made to dispossess Pandit
Sharma from the subject land, he was constrained to file a second suit
bearing Civil Suit No.270/1968 in the court of Sub-Judge First Class, Delhi
along with an application for interim injunction. In this suit also, a prayer
was made for stay of dispossession from the above land and injunction
against demolition of the plaintiff's installations. An ex parte order of
injunction was granted on 21st March, 1968 which was partly confirmed by
a detailed judgment passed on 15th June, 1998.
7. It is noteworthy that in this suit, Pandit Sharma had sought injunction
not only against the DDA and the MCD but also against one M/s Ugarsain
& Sons (arrayed as defendant no.1 in the plaint) who were dealers of
ESSO Standards (which was arrayed as defendant no.2 in the plaint).
8. Certain facts noted in the order dated 15th June, 1968 have a bearing
on the present case. The DDA had taken a stand that the lease granted to
the Delhi Peasants Cooperative Multipurpose Society stood determined in
view of the surrender by the said society since 15th July, 1965. The DDA
had also taken a stand that possession was taken of the land on 15 th July,
1965 and handed over to the Land and Development office on 16th July,
1965 and consequently, the plaintiff was a mere trespasser on the subject
land.
9. By the order dated 15th June, 1968, the trial court held that no
physical possession of the land stood taken from the society or the
-3-
plaintiff although the issue as to whether they were in possession as a
sub-lessee or trespassers was not decided.
The order also notes that the petitioner was placing reliance on
certain receipts of rent which were paid by him to the Delhi Peasants
Cooperative Multipurpose Society upto 31st May, 1967.
The court also noted the claim of allotment of a portion of the
subject land to M/s ESSO Standard, defendant no.2 for the purposes of
resitement of a Petrol Filling-cum-Service Station for which it had paid
amounts to the Land and Development Office. In view of the above facts,
the court vacated the ex parte injunction granted to the plaintiff relating
to the portion of land and site which stood allotted to the ESSO Standard
and confirmed the order of status quo with regard to the remaining land.
10. It appears that in August, 1976, demolition action was taken by the
DDA on the land occupied by Pandit Chintamani Sharma. He complained
of violation of the order dated 15th June, 1968 in their favour thereby and
sent a legal notice to the DDA threatening to initiate proceedings under
the Contempt of Courts Act against its official. A copy of the legal advice
dated 19th May, 1979 given to the DDA by the then Chief Legal Advisor
has been relied upon by the present petitioners to contend that officials of
the DDA had rendered them liable for appropriate action under the
provisions of the Contempt of Courts Act and it was advised to settle the
dispute with Pandit Chintamani Sharma, the predecessor-in-interest of the
petitioners.
It is noteworthy that the legal advice refers to possession of the land
having been handed over to the PWD on 24th June, 1977 in anticipation of
the approval of the Delhi Development Authority being a work of urgent
-4-
nature for construction of road No. 65 from the Marginal Bund to the G.T.
Ghaziabad Road.
11. Reliance has also been placed on a noting from files of the DDA
bearing no.PA/VC/78/315-N dated 11th May, 1978 of Mr. M.N. Buch the
then Vice-Chairman. This noting refers to a decision reached after
discussion with Pandit Chintamani Sharma that within the disputed land,
22 bighas would be given on lease to him and that he would surrender the
balance land. The pending cases would stand terminated. The noting
records the suggestion of Pandit Chintamani Sharma that 22 bighas of
land be given on annual rent and in addition thereto, land in Jhilmil as
desired by him be allotted to him on the reserved rate. The DDA had
agreed to this request and the Vice-Chairman directed action on the same
be taken immediately.
12. Based on the proposed settlement and direction by the Vice-
Chairman, the parties entered into an agreement dated 30th November,
1979 which records the entire background and the rival claims. It also
records the nature of the litigation which was pending. It also notices the
intention of the DDA to commence proceedings for assessment of
damages and recovery of damages against Pandit Chintamani Sharma
based on its claim that he was in unauthorised occupation of the subject
land. The agreement records that as a rehabilitation measure and to put
an end to the long drawn litigation between the parties, they had agreed
that Pandit Chitamani Sharma shall hand over the entire piece of land
measuring 81 bighas 17 biswas of land located in the Khasra No.222/200
Min. 172/38, 182/38 to 199/38 in Chiragha Shumali, Revenue Estate, G.T.
Karnal Road, Shahdara, Delhi within three days from the date of the
-5-
agreement and shall not claim any compensation with regard to structure,
crops etc. located therein. It was agreed that the DDA shall grant a lease
for a period of 10 years from 14th January, 1980 to 13th January, 1990,
exclusively for cultivation purposes in respect of the land measuring 22
bighas within the above land and further that the DDA shall not charge
any premium for the grant of lease to the other side. The lease was
granted on a yearly rent of Rs.20/- per bigha.
13. By virtue of clause 3 of the agreement, the DDA agreed that it shall
not proceed for eviction and assessment of damages against Pandit
Sharma in respect of the land in question. This document records that
Pandit Chintamani Sharma was however required to pay a sum of
Rs.9,321.05 only on account of use and occupation of the public premises
measuring 81 bigha 17 biswas of the said land.
14. The DDA has urged that agreement did not stop at grant of lease of
22 bigha alone. Clause 4 in this agreement reads as follows:-
"4. The second party will allot an industrial plot measuring
0.25 acres i.e. 1200 sq. yds. bearing No.10-22 in Jhilmil
Tahirpur Industrial area on pre-determined rates prevalent in
the year of allotment. The prevalent rate of the year 1978-
79 i.e. Rs.59/- per sq. mt. which amounts about to
Rs.60,000/- for the above mentioned Plot No.10-11 and
accordingly a sum of Rs.29195/- has been deposited with the
second party by the First Party towards the price of the
aforesaid plot (while the prevalent rate in the year 1968, the
relevant price was Rs.18 to 20 per sq. mt.)."
15. The settlement dated 30th November, 1970 was fully acted upon.
The parties executed a registered indenture dated 4th May, 1983 so far as
the 10 years lease in respect of the 22 bigha of land. This indenture
mentions that the lease was for a period of ten years from the 14 th
January, 1980 till 13th January, 1990 with the yearly rent payable in
-6-
advance at the rate of Rs.20 per bigha.
16. It is not disputed that Shri Chintamani Sharma was in possession of
the land measuring 22 bighas for agricultural purposes in terms of the
lease deed. There is no dispute also to the fact that DDA is the owner of
the subject land.
17. The petitioner places reliance on a representation dated 13th April,
1989 received by the DDA from Shri Chintamani Sharma requesting that
the lease of the land may be converted into a perpetual lease on the plea
that there was no breach of the earlier lease and that the land was being
used for agricultural purposes. This request was not acceded to by the
land owner.
18. By a communication dated 17th January, 1990, the DDA informed Shri
Chintamani Sharma about its decision to grant him a lease on the subject
land for a further period of only five years w.e.f. 14th January, 1990 subject
to the following conditions:-
"1. Revision of rate of rent.
2. That the land will be resumed if it is required for
planned development of Delhi.
3. The other terms and conditions will remain the same."
It was further informed that the form of the lease deed was being
drawn up and would be sent to the lessee for stamping and execution.
It is an undisputed position that no registered indenture of lease was
executed between the parties. The extended period of five years also
came to an end on or about the 13th of January, 1995.
19. The petitioners have placed reliance on a suit, being suit no.23/95
which was filed by Shri Chintamani Sharma on or about 13th January, 1995
-7-
before the Senior Civil Judge, Delhi contending that the agreement
between the DDA and Shri Chintamani Sharma on 11th May, 1978 was
intended to be "regular lease containing standard terms and conditions
i.e. a perpetual lease". It is averred by him that when this was pointed out
to the then Additional Secretary (LA) of the DDA, he had told the plaintiff
that while the lease was perpetual, it would be renewed on each interval
of ten years. Contending that the DDA had not responded favourably to
Shri Chintamani Sharma's request for renewal and grant of perpetual
lease despite assurances of the Commissioner (Lands), the plaintiff who
claimed entitlement to grant of a perpetual lease. It was his complaint
that on 7th January, 1995, despite pendency of the plaintiff's request for
execution of the perpetual lease deed in his favour, certain officials of the
defendant came to the spot and wanted to take forcible possession of the
land in question. On these pleas, the plaintiff made the following prayers:
"(a) a decree of permanent injunction in favour of plaintiff
and against the defendant thereby restraining the
defendant, its officials, agents, servants, etc. from forcibly
dispossessing the plaintiff from land comprising of Khasra
No.222/200 Min., 172/38, 182/38 to 199/38 in Chiragah
Shumali, G.T. Road, near Shyam Lal College, Shahdara, Delhi
- 32 (as shown red in the plan attached) and/or from
interfering into the said land in possession of the plaintiff
and/or from demolishing or sealing whole of the said
property or any part thereof or damaging any trees, plants or
crops standing thereon in any manner whatsoever;
(b) a decree for declaration that the plaintiff is entitled to
grant of perpetual lease deed in respect of the land
mentioned at Sl.No.(a) above;
(c) a decree of mandatory injunction against the defendant
to execute and register a perpetual lease deed in respect of
the land mentioned at Sl.No.(a) above in favour of the
plaintiff at the cost of the plaintiff."
20. In the suit, the plaintiff was granted an interim order dated 17th of
-8-
January, 1995 against the DDA restraining it from dispossessing the
plaintiff from the suit property except by "due process of law". The court
noted that the lease deed had not been determined by the DDA till date.
21. The DDA carried this order by way of an appeal to the learned
Additional District Judge. The appeal was dismissed by an order dated 7th
April, 2003 whereby the court prohibited the DDA from dispossessing or
demolishing the suit property "except by due process of law". It was
clearly observed that nothing in the order tantamounted to an expression
of opinion on the merits of the case.
22. The DDA assailed this order by way of a second appeal being MCA
No.66/2003. The appeal was barred by limitation and the DDA had filed
an application under Section 5 of the Limitation Act seeking condonation
of delay in filing the same. This application was rejected by the court by
an order passed on 12th May, 2004. As a consequence, the appeal was
also dismissed as being barred by time. DDA's challenge to the order
dated 12th May, 2004 by way of a petition under Section 227 of the
Constitution of India being CM (M) No.1259/2004 was dismissed by this
court by an order dated 25th of July, 2006.
23. During the pendency of the suit, the Estate Officer has issued a
notice dated 6th of February, 2009 to each of the petitioners who are the
sons of Shri Chintamani Sharma under Section 4 of the Public Premises
(Eviction of Unauthorised Occupants) Act, 1971. By such notice, the
Estate Officer informed the petitioners that they were in unauthorised
occupation of public premises and called upon them show cause as to why
an order of eviction should not be made against them.
24. Aggrieved by the issuance of these notices, the present writ petition
-9-
has been filed seeking the following prayers :-
"(a) a writ/order/direction in the nature of certiorari
quashing the impugned notice dated 6.2.2009 issued by the
respondent under P.P. Act and the P.P. Act proceedings
initiated there upon by them/respondents.
(b) a writ/order/direction in the nature of mandamus
directing, commanding and requiring the respondent-DDA to
consider the petitioners' request for grant of perpetual lease
as per their policy of conversion of term lease into perpetual,
as adopted for DLF Universal case."
25. In order to appreciate the scope of the present consideration, it
becomes necessary to consider the order recorded by this court on 23rd
March, 2009 when the present writ petition was listed for the first time
and the petitioners abandoned the first prayer made in this writ petition.
The order dated 23rd of March, 2009 records as follows:-
"At the outset, counsel for the petitioner submits that the
relief sought in the present writ petition is confined to
prayer (a) and that he does not
press for relief (b) as a civil suit filed by the petitioner for
the same relief is pending.
The present writ petition is filed by the petitioner seeking
quashing of the notice dated 06.02.2009 issued by the
respondent under the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971, on the ground that the
aforesaid proceeding is without jurisdiction inasmuch as the
said respondent cannot be permitted to invoke the
provisions of the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971, for seeking eviction of
the petitioner under the garb of following the due process of
law.
Counsel for the respondent, who appears on advance copy,
submits that the aforesaid issue is purely legal in nature
and she be permitted to address arguments thereon,
without filing the counter affidavit. However, she seeks
leave to place on the record some documents which
according to her, are relevant
for consideration. Needful shall be done by the respondent
within one week,with an advance copy to the counsel for
the petitioner.
- 10 -
List on 8th April, 2009.
CM 3845/2009
Notice.
Counsel for the respondent accepts notice and seeks time
to file reply. Needful shall be done within four weeks with
advance copy to the counsel for the
petitioner, who may file rejoinder before the next date of
hearing.
In the meantime, while the Estate Officer is permitted to
conduct further proceedings, he shall not pass any final
orders.
DASTI."
26. In view of the above, the consideration by this court is within a
narrow compass. The writ petition stands confined to the issue as to
whether the respondents are legally entitled to invoke the provisions of
the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 to
seek eviction of the petitioners and nothing more.
27. I have heard learned counsel for the parties. It is contended by
learned senior counsel for the petitioners that the DDA has taken no
proceedings from 1995 till 2005.
28. It is urged that in view of the pendency of the suit No.23/95, the
claim of the plaintiff being in issue, the notices under sub-section (i) and
clause (b)(ii) of the sub-section 2 of Section 4 of the Public Premises
(Eviction of Unauthorised Occupants) Act, 1971 are unwarranted and
without jurisdiction.
In case the suit is decided in the petitioners' favour, then the entire
exercise shall be an exercise in futility.
29. My attention has been drawn by Shri Rishi Dewan, learned counsel
for the petitioners to certain proceedings held by the Estate Officer in
- 11 -
February, 2009 to urge that the Estate Officer was initially proceeding in
the matter with undue haste and impropriety. It is contended that on 16th
February, 2009, the petitioners had sought time from the Estate Officer to
engage a counsel file objections and lead evidence thereafter. On that
date, the senior law officer appearing for the DDA had submitted that
since the suit land was required in project of PWD and PWD had already
written to the DDA for making it available, the matter should be
proceeded. For this reason, the Estate Officer proceeded to record the
statement of halka patwari of the DDA on 17th February, 1996 even
though time was given to the petitioners to file their reply. It is, however,
submitted that thereafter the petitioners have been permitted to file their
response and to lead their evidence and to cross-examine the witnesses
who have been produced on behalf of the DDA.
30. When the hearing in this writ petition was commenced, it was
pointed out that the proceedings before the first Estate Officer are
concerned, the recording of evidence on both sides is over and the matter
is pending for final consideration and passing of the final order. The
further proceedings by the Estate Officer stand interdicted by the order of
this court dated 23rd of March, 2009 prohibiting passing of a final order.
31. In these facts, placing reliance upon the pronouncement of the Apex
Court in AIR 1986 SC 872 Express Newspapers Private Limited &
Ors. Vs. UOI & Ors. & (1999) IV AD (Delhi) 215 : 79 (1999) DLT
559 DDA Vs. Raj Kumar, it is urged by Mr. Sandeep Sethi, learned
senior counsel that the proceedings under the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 are without jurisdiction and that the
DDA had to take recourse to filing of the civil suit for recovery of
- 12 -
possession.
32. It is further urged by Mr. Sethi, learned senior counsel that so far as
the question of entitlement under the policy of 1980 is concerned, the
same is not being agitated here for the reason that the petitioners' claim
for the same is pending in the civil suit.
33. It has been argued on behalf of the petitioners that in view of the
order dated 7th April, 2003 passed by the learned Civil Judge in the
petitioner's suit and the order dated 25th July, 2006 in CM (M)
No.1259/2004, the finding on the issue as to whether the DDA was
required to file a suit would operate as res judicata in the present
proceedings and it is not open to the DDA to contest the finding.
34. It is noteworthy that by the order dated 7th of April, 2003, the trial
court observed that in view of "authoritative pronouncement" of the
Hon'ble Supreme Court in AIR 1986 SC 872 Express Newspapers
Private Limited & Ors. Vs. UOI & Ors., the DDA cannot dispossess the
plaintiff "without following the due process of law". For this reason, the
plaintiff's application was allowed and the DDA was restrained from
dispossessing or demolishing the suit property "except by due process of
law". The order dated 7th April, 2003 records that the order was passed on
a prima facie consideration and was not an order on merits of the case.
The court was only concerned with the prayer for injunction against
forcible dispossession. On this issue as noted above, it was only held that
due process is required to be followed. It is noteworthy that no issue was
raised before the trial court as to what would constitute "due process of
law" or be the nature of proceedings by which the defendant DDA could
evict the petitioner. No finding was returned by the learned Judge to the
- 13 -
effect that a civil suit is the only remedy to seek eviction of the occupants
which was permissible to the DDA.
35. Strong reliance has been placed on the observations of this court in
the order dated 25th of July, 2006 while dismissing CM (M) No.1259/2004,
filed by the DDA. For this reason, it becomes necessary to notice the
factual narration and the question was raised before the court which was
in the following terms:-
"The contention of the petitioner is that the term of the lease
has expired and thus the petitioner should be able to take
possession of the suit property. The petitioner has not filed
any suit for possession in respect of this land which has
been in continuous possession of the respondent for more
than 50 years. The aforesaid factual matrix has been
discussed only to observe that the question arises as to
whether the petitioner is entitled to take forcible possession
of the land from the respondent and can dispossess the
respondent even where the respondent has been in
uninterrupted possession and legally so for a number of
decades."
The court was of the view that there was no patent error or
erroneous exercise of jurisdiction by the appellate court apart from the
fact that the impugned order of the first court itself was on merits, in
accordance with law and is a reasoned order. There is no discussion at all
on the question as to what would constitute 'due process' in this order.
36. It needs no elaboration that for applicability of principles of res
judicata, such issue has to be strictly and substantially in issue in the prior
litigation. There must be an application of mind on the issue by the court
and that there should be a final adjudication and determination of the
issue on merits. Unless there is such determination of the case on merits,
it cannot operate as res judicata in the subsequent proceedings between
- 14 -
the parties.
Reference in this regard can be usefully made to the pronouncement
of the Division Bench of this court reported at 2009 (160) DLT 360 :
2009 (6) AD (Delhi) 712 Harjeet Kaur Vs. DTC wherein this principle
is discussed in the light of several authoritative pronouncements of the
Apex Court.
37. The issue which was raised by the DDA in its challenge by way of CM
(M) No.1259/2004 related to dismissal of its appeal by the order of the
learned ADJ on 12th May, 2004 for reasons of limitation. Nothing has been
pointed out to even remotely suggest that this court was called upon to
consider and decide the issue as to whether the proceedings under the
Public Premises (Eviction of Unauthorised Occupants) Act, 1971 or a civil
suit was the appropriate remedy for re-possession by the DDA. There is
nothing in the order dated 7th April, 2003 of the trial court or the order
passed by this court on the 25th July, 2006 to show that the issue as to
what would be the appropriate remedy available to the DDA for eviction of
the occupants and what would constitute "due process" was raised or
argued. A mere passing observation in the order does not tantamount to
adjudication. The observations of the learned trial Judge in the order
dated 7th of April, 2003 and of this court in the order dated 25th of July,
2006 do not constitute a finding or adjudication that the only remedy
available to the DDA is by way of a civil suit. The same therefore do not
bar consideration of the question by this court on principles of res-
judicata.
38. In view of the primary contention of the petitioners to the effect that
there is categorical finding by Apex Court with regard to the appropriate
- 15 -
remedy which a lessor could invoke in such facts and that the respondent
had no option but to file a suit, it becomes necessary to consider the
observations of the Apex Court in AIR 1986 SC 872 Express
Newspapers Private Limited & Ors. vs UOI & Ors.. This matter
related to re-entry into a plot of land on which the Express Newspapers
Pvt. Ltd. had been permitted to raise construction. On allegations that
there was violation of the terms of the sanction, the lease in favour of the
petitioners was determined by the lessor (respondents) and an order of re-
entry passed. The proceedings under the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 were initiated. In this background, in
para 86, the Apex Court held that "The Express Newspaper Private Limited
having acted upon the grant of permission by the lessee, i.e. UOI, Ministry
of Work & Housing to construct the new Express Building with an
increased FAR of 360 together with a double basement was clearly not an
unauthorised occupant within the meaning of S.2(g) of the Act xxx".
In para 87, it was further held that the Express buildings constructed
by the Express Newspapers Private Limited with the sanction of the lessee
on the plot demised on perpetual lease could by no process of reasoning
be regarded as public premises belonging to the Central Government
under Section 2(e) and consequently there was no question of the lessee
applying for the eviction of the Express Newspaper (P) Ltd. under Section
5(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971
and the Estate Officer also did not have any authority or jurisdiction to
direct their eviction under sub section 2 thereof by summary procedure. It
was therefore further held that "due process of law in a case like the
present necessarily implies the filing of the suit by the lessor" for the
- 16 -
"enforcement of the alleged right of re-entry, if any, upon forfeiture of the
lease due to the breach of the terms of the lease".
39. The Apex Court had clarified this position in para 88 of the judgment
which reads as follows:-
"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 Unauthorised
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."
40. The judgment rendered in the Express Newspapers case (supra) was
considered by a five Judge Bench of the Apex Court in AIR 1991 SC 80
Ashoka Marketing Vs. Punjab National Bank & Ors. The court
rejected the submission that cases involving the relationship of lessor and
lessee fell outside the purview of the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971. Paras 30 & 32 of this judgment which
deserve to be considered in extenso read 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
- 17 -
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 xxxx"
(Emphasis supplied)
41. So far as the decision in the Express Newspapers case (Supra) is
concerned, the same was explained by the Constitution Bench thus:-
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 lessor 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 lessor, 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 lessor 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 lessor 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 lessor 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."
42. Reference can usefully be made to yet another Division Bench
pronouncement dated 21st February, 2006 in LPA No.976/2004 entitled
- 18 -
DDA Vs. Ambitious Gold Nib Manufacturing Company Limited. This
case related to the determination of a perpetual lease by the competent
authority of the DDA which was duly intimated to the writ petitioner.
Eviction proceedings were initiated by the DDA by issuance of notice to
show cause under the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971. These were assailed by the lessee by way of writ
proceedings. Placing reliance on para 88 of the pronouncement of the
Supreme Court in Express Newspapers case (supra), it was held that the
Government has power to take action under the Public Premises (Eviction
of Unauthorised Occupants) Act, 1971 if there is unauthorised construction
by a lessee or by any other person on government land and such person is
in unauthorised possession thereof.
The Division Bench also placed reliance on paras 30 & 32 of the
judgment of the of the Bench of the Supreme Court reported at AIR 1991
SC 80 Ashoka Marketing Vs. PNB.
43. On consideration of the afore-noticed judicial precedents, in DDA Vs.
Ambitious Gold Nib case, the Division Bench held as follows:
"7. The learned Single Judge, however, allowed the writ
petiton on the basis of the decision of the Supreme Court in
Express Newspapers Pvt. Ltd. & Ors. vs. Union of India &
Ors. AIR 1986 SC 872 and has held that the DDA should
have filed a civil suit.
8. We have carefully perused the judgment of the
Supreme Court in Express Newspapers Pvt. Ltd. (supra).
9. The facts of Express Newspapers case are totally
different from the facts of the present case. In Express
Newspapers (supra) the facts were that the Central
Government had granted a lease to Express Newspapers
with a larger FAR and Express Newspapers had constructed
a building on the larger FAR. Subsequently, the FAR was
reduced and on the basis, proceedings under the Public
Premises Act were sought to be taken against them. On
those facts, it was held that the proceedings under the
Public Premises Act were not maintainable because the
- 19 -
construction by Express Newspapers had been raised after
obtaining permission from the concerned authority and
hence Express Newspapers was not an unauthorized
occupant xxx".
The Division Bench had placed reliance on the observations made by
the Supreme Court in para 88 of Express Newspapers and held that
"13. Thus the Supreme Court has clearly observed that the
second part of the definition of unauthorized occupation in
Section 2(g) of the Public Premises Act expressly covers
continuance in occupation by any person of public premises
after the authority under which he was allowed to occupy the
premises had expired or has been determined for any reason
whatsoever."
44. Ms. Sangeeta Chandra, learned standing counsel for the Delhi
Development Authority has placed another binding pronouncement on the
issue with regard to propriety and permissibility of proceeding for eviction
of an occupant under the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 for repossession of the property demised by the
DDA. This specific issue had arisen for consideration before this court in
the judgment reported at 143 (2007) DLT 472 (DB) Escort Heart
Institute & Research Centre Limited Vs. DDA & Anr. which related to
a determination of the lease hold rights granted to the petitioner by the
DDA as lessor and the proceedings before the Estate Officer under the
Public Premises (Eviction of Unauthorised Occupants) Act, 1971 at the
instance of DDA, the lessor. The only question raised before this court
was that in view of the decision of the Apex Court in Express Newspapers
case (Supra), these proceedings were not maintainable and that only a
civil suit was maintainable. The Bench placed reliance on the judgments
of the Apex Court and the prior decision of the Division Bench in DDA Vs.
Ambitious Gold Nib Ltd. The decision on this issue may be usefully
- 20 -
adverted to and reads as follows:-
"9. A Division Bench of this Court in Ambitious Gold Nib
Manufacturing (P) Limited (supra) after examining judgments
in the cases of Express Newspapers and Ashoka Marketing
Limited (supra) has held that proceedings before the Estate
Officer are maintainable and cases like the present one
would fall in the second part of the definition of the
expression unauthorised occupation as defined in Section
2(g) of the Public Premises Act. The said decision being a
judgment of a Coordinate Bench of two Judges is binding on
us. We respectfully agree with the reasoning given and
follow the said judgment to the extent it has been held that
second part of Section 2(g) defining the expression
unauthorized occupation for the purpose of Public Premises
Act is applicable and recourse to civil proceedings for
recovery of possession is not required. The said judgment
cannot be ignored merely because a particular argument
was not raised or addressed...............xxx
10. Another contention raised by the appellant was that
the building constructed on the land is not public premises
under Section 2(c) of the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 because building was
never given on lease and has been constructed by the
lessee. In this connection, learned Counsel for the
respondent No.1 had drawn our attention to Clause 15 in the
perpetual lease deed, which stipulates that the lessee on
determination of the lease shall peacefully yield up the said
land and the buildings thereon to the lessor. In view of the
said clause, it cannot be said that the building constructed
on the land cannot be regarded as the public premises."
45. Learned counsel for the petitioner has also placed reliance on the
grounds of appeal on which judgment of the trial court was challenged
before the court of the Senior Civil Judge. It is urged that in ground 11,
the DDA had urged that the lower court had wrongly based its judgment
placing reliance upon the authority in AIR 1986 SC 872 Express
Newspapers Private Limited & Ors. vs. UOI & Ors.
Perusal of the ground taken by the DDA would show that the DDA
was assailing the observations of this court on the ground that there was
material difference in the facts of the two cases. The ground 11 states
- 21 -
that in the Express Newspaper Case (supra), the lease was cancelled
illegally and without due process of law and has stated the facts of the
instant case with regard to expiry of the lease by efflux of time. The
judgment was challenged on the ground that the respondents were bound
to hand over the lease property to the lessor after expiry of the period
which was fixed between the parties.
46. There is no dispute at all in the instant case that the premises are
owned by the Delhi Development Authority or that the terms of the lease
deed dated 4th May, 1983 as well as the five year extension by the letter
dated 17th January, 1990 stands expired. The petitioners are not
occupying the premises under any registered document or other sanction.
47. Ms. Sangeeta Chandra, learned counsel for the DDA has placed
reliance on a communication dated 2nd January, 1995 addressed to Shri
Chintamani Sharma whereby the Executive Officer (Lands) had informed
Shri Chintamani Sharma that an amount of Rs.2,461.76 was to be paid on
account of revision of rent upto 13th January, 1995. Shri Chintamani
Sharma was also informed that since the land is required by the DDA for
its development, it is not possible to extend the lease any further more
after 13th January, 1995. Shri Sharma was further informed that therefore
it had been decided to take back 22 bighas of land from Mr. Chintamani
Sharma. He was also informed to deposit the above said amount within
fifteen days from the date of issue of the letter and also arrange to
handover the vacant possession of the land to the revenue staff of the
DDA on 13th January, 1995.
48. Shri Chintamani Sharma has himself admitted that the premises are
public premises. He accepted the demise in his favour while settling the
- 22 -
matter on 30th of November, 1979 and execution of the registered lease
deed dated 4th of May, 1983 for the restricted period of ten years.
Sections 92 of the Evidence Act would bind the parties so far as the terms
on which the land was leased to him. No objection at all to the terms or
duration of the lease were raised during the pendency of the lease. On
the contrary, the requests of the late lessee for grant of perpetual lease
were not favourably considered by the DDA.
49. In this background, it certainly cannot be held that proceedings
under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971
are either illegal or without jurisdiction.
The challenge by the respondent to the maintainability of the
proceedings under the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 on the ground that DDA must file a civil suit for
eviction are misconceived and is hereby rejected. It is held that the
proceedings initiated before the Estate Officer are not barred by principles
of res judicata or prohibited for any other reason.
50. The second submission which has been urged by Mr. Sandeep Sethi,
learned senior counsel for the petitioners before this court is that the
proceedings in the suit are still pending. Issues have been framed by an
order passed on 5th October, 2007. The petitioners place reliance on issue
no.2 which reads as follows:-
"2. Whether the plaintiff is entitled to a decree of
declaration that he is entitled to a perpetual lease deed in
respect of the suit property".
51. Before me, it is submitted that the original plaintiff Pandit
Chintamani Sharma has expired. The suit is being continued by his sons
who are stated to be the petitioners in this writ petition. It is interesting
- 23 -
to note that the proceedings in the suit are pending for a period of almost
11 years and the petitioners continue in occupation of the public premises
for a period of eleven years admittedly without any demise or instrument
in their favour.
52. The absolute prohibition by way of an interim injunction against
dispossession which was sought by the plaintiff stands rejected by the trial
court. The respondents have been permitted by the order dated 7th of
April, 2003 to proceed for eviction following due process of law.
The respondents have been permitted to proceed for eviction
following due process of law. The petitioners did not assail the order
dated 7th of April, 2003 which has attained finality.
53. The DDA has filed CM No.10682/2009 urging that inasmuch as only a
legal issue relating to maintainability of the proceedings under the Public
Premises (Eviction of Unauthorised Occupants) Act, 1971 remains an issue
in this writ petition and the subject land is required urgently for a public
project, the interim order passed on 23rd March, 2009 be vacated.
54. PWD has filed CM No.11811/2007 under Order 1 Rule 10 of the CPC
seeking impleadment and necessary directions. The PWD has explained
the nature of the project in para 3 of the application in the following
terms:
"3. ...................It is submitted that the applicant has
undertaken construction work of Three level Grade Separator
to ease the traffic congestion at Shyam Lal Chowk and an
underpass from road No.57 to road No.65 towards Subhash
Park is one of the component of this scheme for which, a
part of the land in question is required. Other component is
flyover on G.T. Road and the construction work is at advance
stage and work of piles, pile cap and piers have already been
constructed on both side of Crossing and the land comes
between both the sides of the piers and the work is held up
- 24 -
because of the present litigation. It is submitted that the
applicant is required to construct 24 piers for flyover and out
of this 20 piers have already been constructed. The project
is required to be completed in a time bound manner before
the commencement of the Commonwealth Games, 2010.
The applicant has already commenced the work and
completed about 40% work of the project."
55. It is further explained that the technical committee of the DDA in its
meeting held on 3rd May, 2006 has decided to increase the width of the
road in master plan road No.65 from 30 mtrs. to 40 mtrs.
56. The PWD has further explained the fact that there is huge congestion
in the area and in order to ease out the same, construction of the under
pass and the fly over is urgently required for improvement of the whole
corridor from ISBT to UP Border, because at the main crossing i.e.
Seelampur and Shahdara where flyover is already constructed and also at
Apsara Border, the work of three level grade separator is being
constructed by PWD. It is submitted that the total estimated cost of the
project is Rs.93.82 crores out of which the applicant has spent
approximately Rs.30 crores. Undisputedly the flyover is under
construction. The project is being carried out by the applicant which is
related to Commonwealth Games 2010. Vide a letter dated 18th
September, 2008 the DDA has agreed to the transfer of land to the
applicant.
In order to explain this position, the PWD has placed three
dimensional photographs and extensive site plans on record.
57. Another application being CM No.11812/2009 seeking directions for
release of land measuring 2412 sq. mtrs. and 476 sq. sq. mtrs. has been
filed in these facts.
- 25 -
58. The petitioners have opposed these applications and contended that
so far as the road widening is concerned, the pleas relate to a road which
ends in an unauthorised colony as a dead end.
59. The PWD has filed an affidavit dated 29th October, 2009 in this
regard of Shri Bhupendra Kumar, Executive Engineer, PWD Fly over
project Division pointing out that road no.65 is a Master Plan Road joining
with Road No.66 and is about 1.2 KM in length from the GT road to Subash
Park Extension having a 45 meter wide right of way with the proposal of a
six lane carriage way. It is deposed that there is a missing link at Subhash
Park Extension of Master Plan road no.65 and road no.66; that the DDA in
its Technical Committee meeting held on 3rd May, 2006 approved the
construction of this missing link in Trans Yamuna area and further that the
PWD has been given the responsibility to complete the said project.
Pursuant thereto, the Government of NCT of Delhi has sanctioned an
amount of Rs.5,68,25,100.00 vide letter No.F.8(125)/PWD-III/2005-06
dated 15th July, 2005 for removal of the properties falling in this stretch of
missing link.
It is stated that this part of the project is required to be undertaken
by another Division namely PWD CRMD M-213, Shastri Park, Delhi. It is
explained that on account of the fact that this work is required to be
undertaken by another division, the same was not reflected in the
documents filed earlier by another division of the CPWD earlier.
60. So far as the land on which the unauthorised development has come
up, the PWD has explained that in order to provide the said missing link
from Road no.65 to Road No.66 the Government required an area
measuring 10-07 bigha of land. For this purpose acquisition proceedings
- 26 -
have already been initiated and culminated in award No.3/2009-10 dated
21.8.2009 announced under Section 11 of the Land Acquisition Act by the
Land Acquisition Collector who has assessed a total compensation of
Rs.661,65,255.00. A sum of Rs.2.50 crores have already been deposited
with the Land & Building Department GNCT of Delhi vide cheque no.C-
153242 dated 31st March, 2006 as part payment. Thus the steps for
providing missing link has already been initiated and the allegations that
the road ends in a dead end is wrong and baseless.
61. In the affidavit of Shri Bhupendra Kumar, Executive Engineer, PWD
Flyover Project Division, he has pointed out that the DDA Technical
Committee in its meeting held on 3rd May, 2006 decided to retain the
Right of Way of Master Plan Road No.65 as 45 mtrs. Keeping in view of
continuously increase in volume of traffic at this junction, the applicant is
also required to widen this road No.65 in this project. Thus, in all, the
applicant requires land measuring 2412 sq. mtrs. in the area shown in
Green and 476 sq. mtrs. in the area shown as Yellow in the site plan. It is
submitted that the applicant is also required to shift the exiting pipelines
to the area beyond the under pass and carriageway. The applicant has
already awarded the contract for the laying of the pipe line vide
agreement no.4/EE/Flyover Project Division F-122/07-08 dated 10th March,
2008 in favour of M/s Khukhrain Builders, 2300, Hudson Line, GTB Nagar,
Delhi with a tender value of Rs.5.04 crores. The said contractor has
already laid the pipeline up to the land in dispute. The applicant has
already paid the 3rd Running Account bills of the contractor for Rs.3.05
crores (appx.) on 15th July, 2009. Pipes for laying in the land in question
are stated to have also been procured and placed at this site. The work of
- 27 -
laying of pipe lines is held up due to non-transfer of some portion of this
disputed land. A copy of the award letter is enclosed herewith as
Annexure A-4. The adjoining land on GT Road towards Ghaziabad required
from Shyam Lal College has already been acquired and the boundary wall
of Shyam Lal College has already been shifted.
62. Extensive reliance has been placed on traffic survey of the area
dated 28th December, 2005 when it was found that the traffic volume at
the intersection was 2,51,970 passenger carrying unit per day and the
projected data for the year 2021 and the base year is stated to be as
follows:-
Name of the Road Base year Projected
traffic Vol. traffic Vol.
Data in PCUs in horizon
i.e. 2005 in PCU i.e.
in 2010
North - Road No.65 towards 51685 113248
Subhash Park
South - Swami Dayanand 64544 141424
Marg Road Road No.57
East - GT Road 56798 124451
West - Bhisham Pitamah Marg 78943 172973
(PCU - Passenger Carrying Unit)
Several other grounds of urgency have been explained in the
application.
63. Mr. Sethi, learned senior counsel for the petitioner has placed the
pronouncement of this court (1999) IV AD (Delhi) 215 : 79 (1999) DLT
559 DDA Vs. Raj Kumar to contend that the long pendency of the suit
which was filed by Shri Chintamani Sharma would itself disentitle the
respondent from proceeding under the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971. In this case, a perpetual sub-lease in
- 28 -
favour of the father of the respondent granted by DDA was determined by
the Lieutenant Governor on the basis of a complaint. The lessee Vidya
Sagar had in the meantime raised a building on the property. In view of
his demise, Raj Kumar his son filed a suit for declaration that the
proceedings for cancellation of the sub lease be declared null and void;
that DDA be directed to substitute the property in the name of the plaintiff
and DDA be restrained from entering upon or disturbing his possession of
the suit property. Two material reasons as to why the court granted
injunction deserves to be noted. The material facts which weighed with
the court in granting injunction was the fact that the lessee had paid the
entire premium for the suit property and had constructed a building
thereon. Despite determination of the perpetual sub-lease on 19th
December, 1978, the DDA had not taken any steps to re-possess the suit
property till March, 1988 when the suit was filed. In para 15 of the
judgment, the court had clearly observed that "it is not in every case of
possession that the Government as lessor is under an obligation to file a
suit. There are cases where the Government can legitimately invoke its
powers under the provisions of the Public Premises Act. As such, the
learned Additional District Judge erred in his appreciation of the views of
the Supreme Court in Express Newspaper (supra) and thereby erred in
concluding that the DDA "must file" a suit for possession. The conclusion
arrived at by the learned Additional District Judge, at an interlocutory
stage, foreclosed the right of the DDA to contend that the present case is
one where it could legitimately exercise powers under the provisions of
the Public Premises Act. Such a finding ought not to have been given by
the learned Additional District Judge at an interlocutory stage."
- 29 -
Based on this discussion, this court set aside the conclusion of the
learned Additional Judge that the suit was the only remedy.
64. It was purely in the facts of the case that the court granted the
injunction against dispossession to the plaintiff. The second material fact
which weighed with the court is the fact noted in para 2 wherein the court
noted that the DDA had not been able to make out any cogent reason for
dispossessing the respondent from the suit property at this stage. It is not
so in the present case.
65. Certain material facts which have bearing on the issues raised in
present case can be usefully culled out hereafter:-
(i) In the instant case, the petitioner's prayer for an absolute injunction
against dispossession was not granted by the order dated 17th January,
1990 which stands confirmed upto this court. Thus petitioner has not
been given an order of restraint against the DDA from dispossession from
the suit property. The only injunction in favour of the petitioners is that
the DDA will not dispossess them except by due process of law. This
order has not been varied on appeal by order dated 12th May, 2004 or by
this court by its order dated 25th July, 2006.
(ii) After the grant of the interim orders, by the order dated 23rd March,
2009, the DDA has invoked its remedy under the Public Premises
(Eviction of Unauthorised Occupants) Act, 1971 and is not attempting to
take forcible possession of the subject property, but following due process
of law.
(iii) After the passing of the order dated 23rd March, 2009, the DDA has
filed a reply in the present proceedings on 8th April, 2009 contending that
after the determination of the lease dated 13th January, 1995, the
- 30 -
possession of the legal heirs of Shri Chintamani Sharma including the
petitioner amounted to unauthorised occupation of public premises, was
without lawful authority and that the petitioners are acting in breach of
the terms of the demise in favour of Shri Chintamani Sharma for the
reason that the land is not being used for agricultural purpose.
(iv) It has been explained by the DDA that part of the land in question is
urgently required for "construction of road/fly over for the Common
Wealth Games 2010 and urgent correspondence has been received from
the PWD for transfer of the land for completion of the project" that rest of
the land is required for other public purposes as per the lay out plan being
primary school, higher secondary school etc. Thus, the entire land is
required for urgent development as per the plan for public projects.
66. So far as the requirement of land is concerned, in the writ petition
which has been filed, the petitioner has urged in this regard thus:
"XVII. The entire precipitated action by the DDA of
initiating the PP Act proceeding and carrying of the same in a
haste is at the behest of PWD, as the said department (PWD)
requires a small portion of suit land for their flyover peoject.
The petitioners, though at a loss, have already offer the PWD
that they (petitioners) would be responsible in their approach
and would not come in the way of a public project."
67. In support of the applications filed by the PWD, Mr. Sanjay Poddar,
learned standing counsel has further contended that in any case, the land
in question is noted as public land and is needed for public purpose. It has
been vehemently contended that the petitioners have no right to occupy
the same, let alone any legal right which can be protected. Reference
has been made to the pronouncement of the Apex Court in 1997 (1) SCC
134 Ramnik Lal Butta & Anr. Vs. State of Maharashtra wherein the
- 31 -
court held as follows:-
"10. Whatever may have been the practices in the past, a
time has come where the courts should keep the larger
public interest in mind while exercising their power of
granting stay/injunction. The power under Article 226 is
discretionary. It will be exercised only in furtherance of
interests of justice and not merely on the making out of a
legal point. And in the matter of land acquisition for public
purposes, the interests of justice and the public interest
coalesce. They are very often one and the same. Even in a
civil suit, granting of injunction or other similar orders, more
particularly of an interlocutory nature, is equally
discretionary. The courts have to weigh the public interest
vis-a-vis the private interest while exercising the power
under Article 226 indeed any of their discretionary powers."
(Emphasis supplied)
68. My attention has also been drawn to para 14 of 1995 (3) SCC 33
Mahadeo Savlaram Shelke & Ors. Vs. Pune Municipal Corporation
& Anr., it is urged that the delay in the present matter is working undue
loss to public interest. The observations of the Apex Court so far as the
grant of injunction against public authority from execution of projects of
public utility deserves to be considered and reads as follows:-
"14. It would thus be clear that in a suit for perpetual
injunction, the court would enquire on affidavit evidence
and other material placed before the court to find strong
prima facie case and balance of convenience in favour of
granting injunction otherwise irreparable damage or
damage 511 would ensure to the plaintiff The Court should
also find whether the plaintiff would adequately be
compensated by damages if injunction is not granted. It is
common experience that injunction normally is asked for
and granted to prevent the public authorities or the
respondents to proceed with execution of or implementing
scheme of public utility or granted contracts for execution
thereof Public interest is, therefore, one of the material and
relevant considerations in either exercising or refusing to
grant ad interim injunction."
In this case, the court held that in fact, for the damage which
results on account of the delay in the public project on account of
- 32 -
interim orders, the defendants deserve to be adequately protected. In
this regard, the court observed as follows:-
"While exercising the power of discretion, the court should
also adopt the procedure of calling upon the plaintiff to file
a bond to the satisfaction of the court that in the event of
his failing in the suit to obtain the relief asked for in the
plaint, he would adequately compensate the defendant for
the loss en- sued due to the order of injunction granted in
favour of the plaintiff. Even otherwise the court while
exercising its equity jurisdiction in granting injunction as
also jurisdiction and power to grant adequate compensation
to mitigate the damages caused to the defendant by grant
of injunction restraining to proceed with the execution of
the work etc. which is retrained by an order of injunction
made by the court. The pecuniary award of damages is
consequential to the adjudication of the dispute and the
result therein is incidental to the determination of the case
by the court. The pecuniary jurisdiction of the court of first
instance should not impede nor a bar to award damages
beyond its pecuniary jurisdiction. In this behalf, the grant or
refusal of damages is not founded upon the original cause
of action but the consequences of the adjudication by the
con- duct of the parties, the court gets inherent jurisdiction
in doing ex debito justicae mitigating the damage suffered
by the defendant by the act of the court in granting
injunction restraining the defendant from proceeding with
the action complained of in the suit. It is common
knowledge that injunction is invariable sought for in laying
the suit in a court of lowest pecuniary jurisdiction even
when the claims are much larger than the pecuniary
jurisdiction of the court of first instance, may be, for diverse
reasons, Therefore, the pecuniary jurisdiction is not and
should not stand -an impediment for the court of first
instance in determining damages as the part of the
adjudication and pass a decree in that behalf without
relegating the parties to a further suit for damages. This
procedure would act as a check on abuse of the process of
the court and adequately compensate the damages or
injury suffered by the defendant by act of court at the
behest of the plaintiff."
69. There can be no manner of doubt that a delay in a public project
which is under execution, for any reason, would result in tremendous
financial loss to the public exchequer. There is also a huge element of
- 33 -
direct delay to the interest of the public at large having regard to the
volume of the traffic and the nature of components in the project.
Additionally, the DDA has put forth the requirement of land for the
purposes of setting of schools. The requirement of land in public interest is
not only essential, but imperative.
70. I have found above that the respondents are not prohibited on
grounds of res judicata or on any other ground from proceeding with the
process initiated by them under the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971. Unlike the facts in the judgment
reported at (1999) IV AD Delhi 214 DDA VS. Raj Kumar, the public
authorities have made out a strong case as to why the land is needed.
Even in this pronouncement, the court has held that the proceedings for
eviction under this statute are maintainable. According to DDA, the
petitioner stood notified of the requirement by the letter dated 2 nd
January, 1995 of the land.
71. So far as the pendency of this suit and equitable considerations in
favour of the plaintiffs, if any, are concerned, it is evident from the
settlement dated 30th November, 1979 that a 10 year lease of 22 bighas
agriculture land at the rate of Rs.20 per year per bigha granted. It is
urged by Ms. Chandra, learned standing counsel for the DDA that
allotment of the industrial plot measuring 120 sq. yrs. bearing no.10 & 11
on rates prevalent in the year 1968 which was almost half of the rates
prevalent in the year 1978-79 was granted. Shri Sharma and the
petitioners have continued in occupation of the 22 bighas of land. Shri
Sharma additionally was able to also avoid the claim of damages for the
past period by the DDA. He was required to pay only Rs.9,321/- for rental
- 34 -
81 bighas 17 biswas of land as per the agreement dated 30th November,
1979. The petitioner had agreed to withdraw the suits and the other
proceedings initiated by him against the officials of the DDA in view of this
settlement.
72. Mr. Rishi Dewan, learned counsel for the petitioner has submitted
that no favour was shown by the DDA in allotment of the industrial plot for
the reason that Pandit Chintamani Sharma was entitled to the same on
account of relocation of his factory being run in the name of "Shahdara
Cottage Industry" in a non-conforming area. It is contended that all
industries in the area were required to be shifted from the non-conforming
area to the approved industrial zone of Jhilmil, Tahirpur. Based on the
scheme of the Government, Shri Chintamani Sharma allotted an industrial
plot of 0.25 acres equivalent to 1200 sq. yards in the industrial area based
on an assessment of the area under his occupation and that no undue
favour was shown. Reliance is placed on an affidavit of the petitioners
filed on record in this behalf.
73. Mr. Sandeep Sethi, learned senior counsel appearing for the
petitioner has drawn my attention to a resolution dated 22nd September,
1980 of the DDA whereby the DDA considered the question of granting
perpetual lease to plot holders of expired temporary leases. It is
contended that in view thereof, the petitioner is entitled to a perpetual
lease.
Mr. Sanjay Poddar, learned standing counsel for PWD and Ms.
Sangeeta Chandra, learned standing counsel for DDA have vehemently
contended that perusal of the policy dated 22nd September, 1980 relates
to consideration of renewal of specific 1214 temporary leases which had
- 35 -
expired when the policy was announced. The scheme further restricts its
application to ex lessees where building, substantial or temporary had
come up in fully developed areas "if these did not conflict with any
scheme in hand or expected to be in future". Reference is made to
specific leases in this policy. There was no universal policy regarding
grant of perpetual lease in regard to all properties. The policy also draws
an exception with regard to land needed for public projects.
74. The petitioners have placed reliance on a decision dated 11th May,
1978 of the Vice-Chairman of the DDA and filed the same on record. This
decision records that Pandit Chintamani Sharma had suggested that the
land be given on "varshik rent" (i.e. annual rent) only.
75. In any case, Shri Chintamani Sharma entered into the settlement
with DDA after the policy. He also accepted the demise by virtue of the
lease deed dated 4th May, 1983 for agricultural purposes without any
objection. He also accepted its determination on expiry of ten years
period. Pandit Chintamani Sharma unconditionally accepted the DDA's
decision to grant the lease for five years by the letter dated 17th January,
1990 for a further period of five years. w.e.f. 14th January, 1990. No
objections to the same when it was granted or during its currency have
been pointed out. His subsequent requests for grant of perpetual rights
had not been considered favourably.
76. Mr. Sandeep Sethi, learned senior counsel has placed reliance on an
order passed in the case of Plot No.1, Block No.E, Jhandewalan Extension,
New Delhi in favour of M/s DLF Limited and urged that the petitioners are
entitled to a similar consideration. The documents relied upon and placed
on record by the petitioners suggest that the lease with DLF contained a
- 36 -
term of renewal and power was exercised by the DDA in terms thereof.
Originally a 20 years lease of the land for use as a cold storage plant was
granted which was renewed for a further 20 years w.e.f. 1968. A cold
storage plant was set up and subsequently the lessor permitted a cinema
building also to be developed. The Government of India had taken a
view that the lessee had put up a permanent structure such as a cold
storage, cinema building complex etc. Therefore, it would be virtually
impossible for the DDA to determine the lease and take possession of the
property. The clause 3(b) of the lease agreement for the period 1968-88
provided that the lessor may after expiration of the 20 years lease term,
grant further renewal for such period and on such terms and conditions as
may be decided by it. On these considerations the Government appears
to have taken the view that it would be prudent on the part of the DDA to
make an offer to the lessee for fresh renewal of the lease.
The present case is materially different from the facts noticed above.
77. It is also to be noted that the policy dated 22nd September, 1980
relied upon by the petitioners also refers to a resolution no.294 dated 9th
June, 1958 whereby the DDA had decided "to grant perpetual lease to ex
lessees where building (substantial or temporary) had come up in fully
developed areas, if these did not conflict with any scheme in hand or
expected to be taken in future". The letter dated 17 th January, 1990
granting the further lease of five years to Shri Chintamani Sharma also
clearly notified him that the land would be resumed if it is required for
planned development of Delhi. The DDA as well as Public Works
Department have placed extensive material with regard to the huge
projects which are underway and also contemplated on and around the
- 37 -
subject land.
In view of the above discussion, the proceedings before the Estate
Officer cannot be prohibitted for the mere reason that the suit is pending
wherein the plaintiffs are claiming under a policy of the respondent.
78. So far as the pendency of the suit is concerned, the issue as to
whether the petitioners have any enforceable right in the subject land
based on the said policy would be considered on the basis of evidence
placed before the trial court. In case the petitioners are held to be having
any enforceable right, relief can be appropriately moulded in their favour
in accordance with well settled legal principles.
This writ petition and CM No.3845/2009 are therefore devoid of legal
merit and is hereby dismissed.
The interim order dated 23rd March, 2009 would therefore stand
vacated. As a result, CM Nos.10682/2009, 11811/2009 & 11812/2009 are
rendered infructuous and disposed of as such.
The respondent shall be entitled to costs which are quantified at
rupees twenty five thousand to be paid within four weeks.
(GITA MITTAL)
JUDGE
November 12, 2009
aa
- 38 -
