Vijay Rehal vs Delhi Development Authority
2011 Latest Caselaw 5602 Del

               *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 21st November, 2011
+                                 LPA 965/2011

%        VIJAY REHAL                                        ..... Appellant
                            Through:     Mr. Pramod Ahuja, Adv.

                                  Versus

    DELHI DEVELOPMENT AUTHORITY            ..... Respondent
                 Through: Ms. Sangeeta Chandra, Adv.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                    JUDGMENT

RAJIV SAHAI ENDLAW, J.

CM No.21024/2011 (for exemption)

Allowed, subject to just exceptions.

LPA No.965/2011 & CM No.21025/2011 (for stay)

1. This appeal impugns the order dated 4 th November, 2011 of the

learned Single Judge dismissing in limine W.P.(C) No.7854/2011 preferred

by the appellant. The said writ petition was preferred by the appellant

impugning the order dated 3rd October, 2011 of the District Judge

dismissing the appeal preferred by the appellant against the order dated

16th June, 2008 of the Estate Officer, of eviction of the appellant from the

portion of Premises No.12-A/20, WEA, Karol Bagh, New Delhi.

2. The proceedings for eviction under Public Premises (Eviction of

Unauthorized Occupants) Act, 1971 with respect to the Premises No.12-

A/20, WEA, Karol Bagh, New Delhi were initiated after the determination

of the lease of the land underneath the said premises. The appellant herein

claims to have been a tenant (under the perpetual lessee of the plot of land

and owner of the said property) in the said property. The Estate Officer

held, that under the terms of perpetual lease, the property was to be used

for residential purposes only but was being misused for commercial

purposes and hence the lease of the land underneath the same had rightly

been determined and all occupants of the property including the appellant

were in unauthorized possession/occupation.

3. The District Judge vide order dated 26 th May, 2011 dismissed the

appeal preferred by the appellant holding, that after determination of the

perpetual lease, the premises were "public premises" and the Estate Officer

was empowered to pass an order of eviction with respect thereto; that the

protection of the Delhi Rent Control Act, 1958 was not available with

respect thereto; that the perpetual lease of the land underneath the property

was determined for the reason of misuse of the whole of the property by all

the occupants thereof and hence the plea of the appellant that commercial

use by him of the portion admeasuring 20 sq.m. in his occupation, was

within the permissible limit, had no merit.

4. Aggrieved therefrom the appellant earlier preferred W.P.(C)

No.4236/2011 and during the hearing whereof, the appellant confined the

challenge to non-consideration by the District Judge of

Circular/Notification dated 7th September, 2006. The said writ petition

was disposed of vide order dated 6th June, 2011 and the matter remanded to

the District Judge to consider the said plea of the appellant. Upon remand,

the District Judge vide order dated 3 rd October, 2011 held that since the

entire property was being misused, the Circular/Notification dated 7 th

September, 2006 did not come to the rescue of the appellant. Aggrieved

therefrom W.P.(C) No.7854/2011 was preferred and from the order of

dismissal whereof, this appeal arises.

5. The learned Single Judge has rightly held that the appellant, in the

earlier writ petition having confined the challenge on the basis of

Circular/Notification dated 7 th September, 2006, was precluded from

taking any other plea. The learned Single Judge has agreed with the

reasoning of the District Judge that the misuse being of the entire property,

the Circular/Notification permitting a small shop in a residence, was of no

help to the appellant. The learned Single Judge further held that the Apex

Court in M.C. Mehta Vs. Union of India (2006) 9 SCALE 634 having

directed action against misuse of residential properties, order in

contravention thereof could not be issued.

6. The counsel for the appellant has at the outset contended that the

learned Single Judge had erred in dismissing the writ petition in limine

when W.P.(C) No.4680/2011 preferred by another occupant of the

property namely M/s Udipi Restaurant was still pending consideration and

in which also the plea with respect to the Circular/Notification dated 7 th

September, 2006 had been taken. He contends that owing to the pendency

of the said writ petition with respect to the same property, the writ petition

ought not to have been dismissed in limine and ought to have been clubbed

along with other writ petition and eviction of the appellant ought to have

been stayed.

7. We are unable to agree; merely because another writ petition with

respect to the same property is pending, is no ground for entertaining the

writ petition filed by the appellant especially when the appellant had on an

earlier occasion confined the scope of challenge and when no merit was

found in the same. It cannot be lost sight of that the appellant is but an

assignee (tenant) of the perpetual lessee of the land and which lease stands

determined. On enquiry, we are told that the perpetual lessee of the land

has not even challenged the order of eviction. We entertain serious doubts

as to the locus of the appellant, as a tenant of the perpetual lessee and with

whom the superior lessor does not have any privity, to challenge the order

of eviction. It cannot also be lost sight of that the matter entails public

premises. It is not as if the other writ petition owing to the pendency

whereof, it is contended that the writ petition preferred by the appellant

ought to have been entertained, stood admitted. The same is merely at a

show cause stage. Merely because a notice has been issued in another

petition, cannot be the basis for interfering with the orders of eviction with

respect to the public premises especially in exercise of powers of judicial

review and when directions have been issued by the Supreme Court for

stopping misuser and when misuser is admitted.

8. Coming to the merits of the appeal, we are in agreement with the

reason which has prevailed with the District Judge as Appellate Authority

under the Public Premises Act and with the learned Single Judge. The

Circular/Notification dated 7th September, 2006 cannot be interpreted to

allow the entire property meant for residential purposes to be carved into

small shops. If the same were to be permitted, it would tantamount to

permitting the change of user of the entire property and which is not the

purport of the said Circular/Notification. The perpetual lease of the land

was determined for the reason of misuse of the entire property and not

misuse by the appellant alone.

9. There is thus no merit in the appeal which is accordingly dismissed.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE NOVEMBER 21, 2011 bs