Delhi High Court
Satish Kapoor And Anr vs Km. Ishwari Assudani And Ors on 15 February, 2012
Author: Sunil Gaur
* HIGH COURT OF DELHI : NEW DELHI
Reserved on: January 24, 2012
Pronounced on: February 15, 2012
+ W.P.(C) 3756/2011
&
CM No. 7861/2011
SATISH KAPOOR AND ANR. ..... Petitioners
Through: Mr. Avinash Chander Bhasin and Mr. Amit Bhasin,
Advocates
versus
KM. ISHWARI ASSUDANI AND ORS. ..... Respondents
Through: Mr. Anil Sharma and Mr. Vinod Kumar,
Advocates for respondent No. 1 and 2.
Mr. Pradeep Kumar and Mr. Eram Khan,
Advocates for UOI
Ms. Manpreet Kaur, Advocate for
Mr. Mukesh Gupta, Advocate for MCD
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
%
ORDER
15.02.2012
1. Eviction of the petitioners from premises No. M-4A, Malviya Nagar,
New Delhi of respondent- Municipal Corporation of Delhi (hereinafter
referred to as the 'respondent- MCD') by recourse to The Public Premises
(Eviction of Unauthorised Occupants) Act, 1971 has been upheld by the
Appellate Authority vide order of 4th May, 2011, which is under challenge
by way of this writ petition, in which a direction is also sought to
respondent - MCD to de-seal the premises in question and to restore its
possession to the petitioners.
W.P.(C) No.3756/2011 Page 1
2. Undisputedly, in the year 1962 the first two respondents had leased
out the subject premises to respondent- MCD for the purpose of residence
of its employees, on monthly license fee and in the year 1974, the subject
premises was officially provided to Smt. Raj Kumari i.e. mother of the
petitioners for her residence, as she was employed with respondent- MCD.
Since Smt. Raj Kumari died in the year 1989 and so retention of the
premises in question after July, 1981 became unauthorized.
3. Representation of the petitioners was considered by the respondent
and vide order of 13th February, 2008, it was decided to remit the
outstanding rent payable to respondent - Ms. Assudani by MCD and to
hand over the possession of the subject premises to aforesaid respondent-
Ms. Assudani by MCD after getting it vacated from the petitioners herein.
Thus, proceedings under The Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 were initiated against the petitioners, whose stand
was that late Mrs. Raj Kumari in her life time had purchased the subject
premises from its owner i.e. Ms. Assudani vide Agreement to Sell of 19th
January, 1982.
4. As per the petitioners, Specific Performance of the aforesaid
Agreement was sought by the petitioners and what was the fate of the said
litigation stands noted in the impugned order. Petitioners' suit as well as
appeal stood dismissed and the finding of the civil court which has attained
finality, stands reproduced in the impugned order.
5. Appellate Authority in the impugned order has adverted to the
evidence on record and has repelled petitioners' plea of doctrine of part
performance in respect of the subject premises. The plea of adverse
possession also stands repelled by the Appellate Authority by relying upon
decision in 'Jagdish Prasad & Ors Vs. Delhi Development Authority &
Ors.' 2007 V AD (Delhi) 82.
W.P.(C) No.3756/2011 Page 2
6. The contention of counsel for the petitioners that the subject
premises do not qualify to be the 'public premises' under The Public
Premises (Eviction of Unauthorised Occupants) Act, 1971 has been
negated in the impugned order by relying upon decision in 'Salahuddin
Qureshi Vs. NDMC' 2008 (106) DRJ 627 .
7. When this petition was heard, it was vehemently urged by learned
counsel for petitioners that they were in settled possession of the subject
premises since the year 1982 and they had been illegally dispossessed after
the eviction order of 20th August, 2009 (Annexure P-17) of the Estate
Officer and that the premises in question do not come within the purview
of the 'public premises', as defined in clause- (e) of Section 2 of The
Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The
endeavour of learned counsel for petitioners was to stress that the
relationship of the owners of the subject premises i.e. first two respondents
and the MCD had snapped, as no rent or lease money was paid by MCD to
the owners of the subject premises and belatedly in the year 2008, the rent/
lease money has been paid by MCD to the first two respondents i.e. the
owners of the subject premises. Reliance was placed by learned counsel for
petitioners upon decision in 'Inder Kumar Kapur & Ors. Vs. United India
Inurance Co. Ltd.' 1999 I AD (Delhi) 262 to contend that the relationship
of the Government when it is a Lessee qua the owner of a premises is that
of a tenant and landlord. Thus, it was contended by learned counsel for
petitioners that the provisions of The Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 would have no application and the
remedy with the respondent- MCD is to file a civil suit for possession of
the subject premises.
8. To the contrary, is the assertion of learned counsel for the first two
respondents that there is no error of jurisdiction or law in the impugned
W.P.(C) No.3756/2011 Page 3
order, as not only the definition of 'public premises' in The Public
Premises (Eviction of Unauthorised Occupants) Act, 1971 but even
decision in Qureshi (Supra), makes it abundantly clear that any premises
belonging to Municipal Committee or taken on lease by it, would come
within the definition of 'public premises' under The Public Premises
(Eviction of Unauthorised Occupants) Act, 1971.
9. Attention of this Court was drawn by learned counsel for
respondents No. 1 & 2 to a decision of the Apex Court in 'M/S Jain Ink
Manufacturing Company Vs. Life Insurance Corporation of India' AIR
1981 SC 670, wherein premises in possession of Life Insurance
Corporation of India was held to be 'public premises' under The Public
Premises (Eviction of Unauthorised Occupants) Act, 1971 and the plea that
the provision of Delhi Rent Control Act, 1958 would apply, was negatived.
10. So far as the plea of part performance or of adverse possession raised
by the petitioners is concerned, it is pointed out by learned counsel for
respondents No. 1 & 2 that these pleas are required to be noted, only to be
rejected as the doctrine of res-judicata clearly applies, as the petitioners
have finally lost their suit for specific performance of the Agreement to
Sell etc., which cannot be a substitute to a Sale Deed, as sale of immovable
property can be by registered Sale Deed only as per dictum of a Division
Bench of this Court in 'M. L. Aggarwal Vs. Oriental Bank of Commerce
& Ors.' 128 (2006) DLT 407 (DB).
11. Upon hearing learned counsel for the parties and on perusal of the
impugned order, material on record and the decisions cited, I am of the
considered view that the contentions raised before this Court have been
dealt with in its proper perspective by the Appellate Authority. As regards
the decision in Inder Kumar (Supra,) is concerned, I find that this decision
does not take note of the decision of the Apex Court in Jain Ink (Supra),
W.P.(C) No.3756/2011 Page 4
and therefore, the decision in Inder Kumar (Supra), is per incurium. In
fact, upon plain reading of the definition of 'public premises' in The Public
Premises (Eviction of Unauthorised Occupants) Act, 1971, it becomes clear
that any premises taken on lease on behalf of the Government or the
Municipal Corporation etc. would come within the meaning of 'public
premises'. In this regard, sub-clause (1) and (3) of Clause- (e) of Section 2
of The Public Premises (Eviction of Unauthorised Occupants) Act, 1971
are required to be noted, which reads as under:-
'(1) any premises belonging to, or taken on lease or
requisitioned by, or on behalf of the Central Government,
and includes any such premises which have been placed
by that Government, whether before or after the
commencement of the Public Premises (Eviction of
Unauthorised Occupants) Amendment Act, 1980 (61 of
1980), under the control of the Secretariat of either House
of Parliament for providing residential accommodation to
any member of the staff of that secretariat;
(2) xxxxxx
(3) in relation to the [National Capital Territory of Delhi]-
(i) any premises belonging to the Municipal Corporation of
Delhi, or any Municipal Committee or notified area
committee;
(ii) any premises belonging to the Delhi Development
Authority, whether such premises are in possession of, or
leased out by, the said Authority;
(iii) any premises belonging to, or taken on lease or
requisitioned by, or on behalf of any State Government or
the Government of any Union Territory;'
12. Interpreting Section 2 (e) of The Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 a Coordinate Bench of this Court in
Qureshi (Supra), has clearly held that a premises in possession of
Municipal Corporation would come within the definition of 'public
premises' and I find myself to be in complete agreement with the dictum in
Qureshi (Supra).
W.P.(C) No.3756/2011 Page 5
13. Having concluded that the subject premises falls within the
definition of 'public premises' under The Public Premises (Eviction of
Unauthorised Occupants) Act, 1971, I do not find the necessity of dealing
with the plea of part performance or adverse possession raised by the
petitioners in these proceedings because such pleas are clearly hit by
doctrine of res-judicata, as petitioners claim for specific performance of
the Agreement to Sell etc. finally stands negated. Thus, finding no palpable
error in the impugned order, I dismiss this petition while leaving the parties
to bear their own costs. Pending application stand disposed of as
infructuous.
(SUNIL GAUR)
JUDGE
February 15, 2012
rs
W.P.(C) No.3756/2011 Page 6
