Delhi Development Authority vs M/S. Gian Chand Kedar Nath & Co. & ...
2011 Latest Caselaw 5609 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Order Reserved on: November 14, 2011
                         Order Pronounced on: November 21, 2011

+                        W.P.(C) No.1295/2001

       DELHI DEVELOPMENT AUTHORITY       ..... Petitioner
                    Through: Mr.Ajay Verma and Mr.Mukesh
                             Kumar, Advocates

                         versus

       M/S. GIAN CHAND KEDAR NATH
       & CO. & ANR.                       ..... Respondents
                     Through: Mr.Anil Airi and Mr.Ravi Krishan
                              Chandna, Advocates for
                              Respondent No. 1.
                              Ms.Zubeda Begum, Advocate for
                              Respondent No. 2.

       CORAM:
       HON'BLE MR. JUSTICE SUNIL GAUR

       1.        Whether the Reporters of local
                 papers may be allowed to see
                 the judgment?

       2.        To be referred to Reporter or         No.
                 not?
       3.        Whether the judgment should
                 be reported in the Digest?


       SUNIL GAUR, J.

1. Respondent - M/s. Rama Ice Factory through its proprietor was the lessee in Plot No.4-A, measuring 7695.60 sq.yds. in W.E.A., Pusa Road, New Delhi and the tenure of the said Lease stood expired on 31.5.1968 and upon its non-renewal, Respondent was ordered to be evicted

therefrom by the Estate Officer while exercising the powers under Section 5(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, (hereinafter referred to as P.P. Act).

2. The prime reason disclosed in the aforesaid order of 2nd May, 1991, of the Estate Officer is that the existence of Rama Ice Factory in W.E.A. was declared non-conforming use under the Master Plan and upon Delhi Development Act, and Public Premises (Eviction of Unauthorised Occupants) Act, 1971 coming into force. The order of the Estate Officer also discloses that petitioner was offered an alternate site in Patpar Ganj complex vide letter dated 16.12.1982 (Ex.PW-1/C) but it was not responded to by the Respondent and that as per the Master Plan the premises in question was earmarked for Higher Secondary/Primary School in the zonal plan of the area.

3. Dissatisfied with the aforesaid order of 2nd May, 1991 of the Estate Officer, respondent had challenged it by preferring a statutory appeal under Section 9(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and the said appeal was allowed vide impugned order of 19th October, 2000 holding the Respondent not to be an unauthorised occupant in the premises in question, while observing as under:-

"Therefore, when the lease deed does not stand determined by serving any notice, the terms of the said lease deed would have an overriding effect over the legal provisions which are

contrary to the tenor of the deed. As per clause iv(c) of Ex.PW-1/A, the lessor/respondent was bound to renew the lease for a further term of 20 years on the option exercised by the appellant. Further, if at all the Respondent/lessor required the premises in question for any public performance or for administrative performance, it was at liberty to take the possession after giving a due notice for the same as contemplated under Clause 2(11) of the Deed. Similarly, if there was any breach of the terms and conditions, the Respondent/lessor could have re-entered the premises that too by giving a due notice as contemplated under clause 3 of the deed. The lessor/Respondent also could have cancelled the lease that too by giving a due notice as contemplated under clause IV(b) of the Deed. The Respondent/lessor did not act in accordance with the terms of the lease deed Ex.PW-1/A.

Apart from this, it may be noted that lease of the land was granted in the year 1950 of course, with effect from 1948 much before the creation of the Master Plan, which in fact came into existence in 1962. Therefore, since, there was no change in the use of the premises in question, it would be difficult to hold that the premises in question were non-confirming. Even otherwise, under Section 14 of the D.D. Act, the

appellant was entitled to occupy the premises for the same purpose after the drafting of master plan."

4. In this writ petition, though the challenge to the impugned order is on various grounds but the ground urged by Mr.Ajay Verma, learned counsel for the petitioner is that the impugned order suffers from two patent infirmities, i.e., it has considered the documents furnished by the Respondent after the arguments were heard and without notice to the petitioner, the same have been relied upon and that there was no requirement of serving notice of termination of Lease as the Lease in question came to an end by efflux of time.

5. The contention of the Respondent's counsel is that the renewal was automatic and the documents which are referred to in the impugned order are the documents of the petitioner and so, on this account, petitioner suffers no prejudice and infact, Respondent had sought renewal of the Lease and without rejecting Respondent's application for renewal of the Lease, the Estate Officer's order evicting the Respondent from the premises in question is per se bad in law and the same has been rightly set aside by the appellate forum, by holding that the Respondent is not an unauthorised occupant therein. In the last, it was also urged on behalf of the Respondent that the Respondent had already sought perpetual Lease in the premises in question and in another proceedings, directions were issued to the petitioner to consider Respondent's case for grant of perpetual Lease and its rejection is being challenged by

filing a fresh petition and so this matter be heard thereafter. Since claim for grant of perpetual lease or change of land use are independent proceedings, so hearing in this matter cannot be deferred on this ground.

6. Upon consideration of the submissions advanced and upon perusal of the record of this case, I find that the Respondent was granted 20 years Lease for installation of the Ice Plant in the premises in question on 13.1.1950. As per clause IV(c) of the aforesaid Lease one time extension by another 20 years was permitted upon payment of enhanced rental upto 50% of the original rent. Clause IV(c) of the lease reads as under:-

"(c) At the expiry of the said terms of 20 years, the Lessee shall be allowed on option to renew the lease for a further period of 20 years provided further that if the lease is extended for a further term of 20 years the lessor shall have the right to enhance the rental upto 50% of the original rent."

7. Impugned order fairly records that some copies of the correspondence were also filed by the appellant, of course, after the arguments and before the pronouncement of judgment. In such an eventuality, the appellate forum was bound to give an opportunity to the appellant - DDA who was the respondent before the appellate forum to have responded to the aforesaid correspondence, which was copy of letter dated 15.1.1968 by the respondent herein to the appellant seeking extension of the lease in question. The other correspondence which has been taken into consideration in the impugned order is another letter of 4th

June, 1971 making a similar prayer. In all fairness, evidence had to be led in respect of aforesaid communication if the appellant herein had chosen to dispute the said correspondence. On the short ground alone, the impugned order is liable to be set aside.

8. Petitioner has averred in this petition that the Respondent's request for extension of Lease was turned down and the cheques sent by Respondent towards payment of the enhanced rental were returned as the rent was not revised or enhanced in terms of clause IV(C) of the Lease (Annexure A) to this petition. In the counter affidavit filed by the Respondent, there is no denial of the aforesaid averments.

9. Another ground on which the impugned order cannot be sustained is, that the appellate forum has misdirected itself in law in holding that there was requirement of service of notice of termination, more so, when it was not in dispute that the lease in question came to an end by efflux of time, and admittedly, there was no renewal of the same. In this view of the matter, there is no option except to set aside the impugned order.

10. The question of extension of lease for another 20 years, after the year 1968 becomes academic as the contemplated extension would have come to an end in the year 1988. No further extension is contemplated in the lease in question. Therefore, petitioner - DDA had rightly initiated the eviction proceedings on 19.10.1987 and strangely, the impugned order finds fault with it by holding that initiation of the proceedings under the P.P. Act in the year 1987 by the petitioner - DDA is after 19 years of the

expiry of initial term of lease. How could the appellate forum draw an adverse inference against petitioner - DDA for not initiating the eviction proceedings earlier? Since it has been so done, therefore the impugned order suffers from patent perversity.

11. The stand taken by the Respondent in the counter affidavit precisely is that under the MPD-2001, the land use of the area in question is institutional and residential but the petitioner had allowed conversion of similar Ice factory from industrial use to commercial use upon payment of conversion charges and Respondent has a Banquet Hall in the premises in question which is permissible even in a residential area on plot of more than 400 sq.yds. and the Respondent had been ever willing to pay the conversion charges but the petitioner had arbitrarily not accepted it. To say the least, this aspect cannot be gone into in these proceedings as independent legal action is contemplated by the respondents in respect to it.

12. The finding returned in the impugned order is that since there is no change in the use of the premises in question, it would be difficult to hold that the premises in question were non-confirming. This finding is apparently unsustainable as in the counter filed by the respondent it stands admitted that in the premises in question a banquet hall is being run by the respondent, though it is not disclosed since when? However, it becomes apparent from the counter affidavit of the respondent that upon change of the land use under the MPD-2001, the land use of the premises in question was changed by the respondent.

13. So far as the question of discrimination raised by the respondent regarding similarly placed Ice Factories being permitted the land use upon payment of conversion charges is concerned, this is an aspect which is not required to be gone into these proceedings, lest it may prejudice the respondent in the proceeding seeking perpetual lease of these premises.

14. In view of the aforegoing narration, the impugned order of 19th October, 2000 is declared to be patently illegal and unsustainable as it sets aside the well reasoned order of 2nd May, 1991 passed by the Estate Officer evicting the Respondents from the premises in question. Resultantly, this petition is allowed while setting aside the impugned order and restoring the order of 2nd May, 1991 of the Estate Officer.

15. Since respondent's claim for grant of perpetual lease or for change of land use in the premises in question has been recently negated by the petitioner, which is being challenged by the respondents raising question of discrimination etc., therefore, purely as an interim measure, respondents are granted twelve weeks time to vacate the premises in question.

16. With aforesaid observations, this petition is disposed of.

17. No costs.

(SUNIL GAUR) JUDGE November 21, 2011 pkb