Balaji Enterprises vs Delhi Development Authority
2012 Latest Caselaw 7101 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of decision: 12th December, 2012

+                             LPA No.760/2012

      BALAJI ENTERPRISES                            ..... Appellant
                   Through:          Mr. S.K. Sharma & Mr. Rakesh
                                     Sharma, Advs.

                                 Versus

    DELHI DEVELOPMENT AUTHORITY              ..... Respondent

Through: Ms. Shobhana Takiar, Adv.

CORAM :-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This intra-court appeal impugns the judgment dated 17.09.2012 of the

learned Single Judge, of dismissal of W.P.(C) No.5118/2011 preferred by

the appellant. The said writ petition was preferred impugning the judgment

dated 26.05.2011 of the District Judge, exercising powers as an Appellate

Authority under Section 9 of the Public Premises (Eviction of unauthorized

Occupants) Act, 1971 (PP Act) dismissing the appeal preferred by the

appellant against the order dated 16.06.2008 of the Estate Officer of the

respondent DDA, of eviction of the appellant from a shop in his possession

in property bearing Plot No.20, Block 12-A, W.E.A., Bankim Chandra

Chatterjee Marg, Karol Bagh, New Delhi.

2. The lease granted of land underneath the aforesaid property bearing

Plot No.20, was determined by the DDA for violation of the lease

conditions; while the lease was granted for residential purposes, the property

constructed thereon was being misused for commercial purposes. Thereafter

proceedings under the PP Act were commenced. The appellant being the

tenant in one of the shops in the said property, under the lessee of the land

underneath the property, also contested the said proceedings.

3. The Estate Officer, in order dated 16.06.2008 supra:

(i) negatived the plea of non-maintainability of proceedings under

the PP Act and for which purpose reliance was placed on

Express Newspapers Pvt. Ltd. Vs. Union of India AIR 1986

SC 872 and held that the said judgment stood distinguished in

the subsequent judgment in Ashoka Marketing Ltd. Vs. Punjab

National Bank AIR 1991 SC 855;

(ii) negatived the plea, of the Estate Officer having not been

delegated the requisite powers. It was held that DDA had

authorized all its Zonal Deputy Directors of Land Management

Wing to act as Estate Officer; and,

(iii) negatived the plea of the appellant being protected under the

provisions of the Delhi Rent Control Act, 1958 and held PP Act

to be overriding the said Act,

and accordingly passed the order of eviction.

4. The learned District Judge dismissed the appeal preferred by the

appellant, further relying on judgment dated 21.02.2006 of a Division Bench

of this Court in LPA No.976/2004 titled Delhi Development Authority Vs.

Ambitious Gold Nib Manufacturing Company Pvt. Ltd. It was further

observed that the appellant had not even disputed the use of the premises in

contravention of the lease conditions. It was yet further held that the plea of

protection of the Rent Act had been rightly declined in view of Ambitious

Gold Nib Manufacturing Company Pvt. Ltd. supra. Before the District

Judge, the appellant also argued that vide subsequent decision, the

government had allowed commercial use of 20 sq. mtrs. The District Judge

however and in our opinion rightly, held that in the present case misuse was

of the entire property and that relaxation even if any granted subsequent to

the determination of lease could not revive the lease.

5. Before the learned Single Judge, the only contention raised by the

appellant was on the basis of order dated 09.07.2012 of this Court in

W.P.(C) No.2204/2006 titled Ashoka Builders & Promoters Vs. Union of

India. The Single Judge however rejected the aforesaid contention relying

on the judgment dated 21.11.2011 of the Division Bench of this Court in

LPA No.965/2011 titled Vijay Rehal Vs. Delhi Development Authority,

relating to the same property. Reliance in this regard was also placed on

Ambitious Gold Nib Manufacturing Company Pvt. Ltd. supra and Escorts

Heart Institute & Research Centre Ltd. Vs. Delhi Development Authority

AIR 2008 Delhi 70 (DB).

6. We heard the counsel for the appellant on 23.11.2012 when the appeal

came up first. The contention of the counsel for the appellant was that vide

Notification dated February, 2007, the street on which the premises in

question is situated was declared as a commercial street with commercial

activities being permissible in the properties situated thereon; that the ex-

lessee of the land underneath the property and / or his successors in interest

are misusing the provisions of the PP Act to evict from the property old

tenants in the property who are protected from eviction under the Rent Act,

with the intent to after the said tenants had been evicted, apply for

restoration of the lease on payment of requisite charges as is permissible

vide Circular dated 09.04.2008 of the DDA. It was further his contention

that since owing to the subsequent Notification the ground of misuse on

which lease had been determined did not persist, the order of eviction should

be set aside. It was yet further argued that the abuse of the process of the PP

Act is evident from the fact that though the Estate Officer had directed

eviction of all the occupants of the property including the ex-lessee from the

portion in his / her occupation but DDA was not enforcing the eviction order

against the ex-lessee and enforcing the same against the tenants of the ex-

lessee only. It was further contended that the Division Bench in Vijay Rehal

(supra) had failed to notice the conversion of the land use of the street in

which the property is situated.

7. No merit is found in any of the pleas aforesaid. The lease of the land

underneath the property was determined way back in 1998 i.e. much before

the date since when it is argued that commercial use is permitted. Moreover,

there is no plea of the DDA having changed the conditions on which the

lease was granted. The proceedings under the PP Act before the Estate

Officer were admittedly pending since the year 1999 i.e. again since before

the change of user pleaded. We concur with the learned Single Judge in

holding that such subsequent change of use even if effected, would not alter

the position.

8. However we were a little alarmed on that date by the argument of

abuse of the process of PP Act for evicting the tenants protected from

eviction under the Rent Act and accordingly we had asked the counsel for

DDA who was appearing on advance notice on that date to inform the action

taken against the other occupants of the property in question and whether the

ex-lessee of the plot in question can still apply for withdrawal of re-entry

and restoration of lease, after the tenants of the ex-lessee in the property had

been evicted under the provisions of the PP Act.

9. The counsel for the DDA has today categorically stated that

restoration of the lease is not permissible once eviction order under the PP

Act has been passed and the appeal thereagainst has been dismissed. She

further assures that action for enforcement of the order of the Estate Officer

against all the occupants of the property is being taken.

10. We, on the basis of the aforesaid submission are satisfied that there is

no possibility of abuse of the process of the provisions of the PP Act. We

bind the DDA to the submission aforesaid.

11. The appellant claims title to a portion of the property only as a tenant

under the ex-lessee and once the ex-lessee has been ordered to be evicted,

the appellant who was also independently issued a show cause notice by the

Estate Officer and was heard and has appealed against the order of the Estate

Officer would also be evicted from the premises. The Division Bench of

this Court in Vijay Rehal has already noted that ex-lessee has not even

challenged the order of eviction. The counsel for the DDA today also

affirms the said position. Doubts were expressed in Vijay Rehal as to the

very locus of a tenant of the ex-lessee with whom the superior lessor i.e. the

DDA does not even have any privity, to maintain a challenge to the order of

eviction. We may observe that the premises are public premises and it is the

duty of the Court to ensure eviction of unauthorized occupants therefrom.

12. We therefore do not find any merit in this appeal and dismiss the

same.

No costs.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE DECEMBER 12, 2012 'gsr'