Ocean Plastics & Fibres (P) ... vs Delhi Development Authority & Anr
2012 Latest Caselaw 865 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision:    8th February, 2012

+                         WP(C) NO.11374/2006

OCEAN PLASTICS & FIBRES (P) LIMITED              ..... Petitioner
                 Through: Ms. Sonali Malhotra and
                            Mr. Amit Sanduja, Advocates

                                    Versus

DELHI DEVELOPMENT AUTHORITY & ANR         ..... Respondents
                Through: Ms.Sangeeta Chandra, Advocate for
                         DDA.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

                                JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. The short point in controversy in this petition is as to whether a writ

impugning the order of determination of perpetual lease is not maintainable

for the reason of it being open to the affected person to impugn such

determination in proceedings under the Public Premises (Eviction of

Unauthorized Occupants) Act, 1971 (PP Act).

2. This writ petition has been filed impugning the notice dated 21st

November, 2005 of the respondent no.1 DDA determining the perpetual

lease with respect to the plot No. A-22 Mangolpuri Industrial Area, Phase II,

New Delhi as well as the notice dated 5th May, 2006 subsequently issued by

the respondent no.2 Estate Officer, DDA under Section 4 of the PP Act.

Notice of the writ petition was issued and vide order dated 19 th July, 2006

the Estate Officer was restrained from passing any final order pursuant to the

notice (supra) under Section 4 of the PP Act issued to the petitioner.

Pleadings have been completed and counsels have been heard.

3. The petitioner was granted perpetual lease of the aforesaid plot of land

vide indenture dated 20th April, 1992. The respondent DDA vide notice

dated 10th May, 2000 to the petitioner averred, that the building over the said

plot of land was being used for commercial purpose as Anukumpa Banquet

Hall; that the construction was not as per the sanctioned plan as the

basement had been extended into the front, rear and side setbacks; that the

mezzanine floor had been converted into a working hall; all this was averred

to be in breach of the terms and conditions of the perpetual lease deed; the

petitioner was asked to stop and remove the breaches and failing which the

petitioner was warned that action for cancellation of the lease will be

initiated. The petitioner vide its reply dated 25 th May, 2000 denied that any

banquet hall was functioning on the property and stated that the electricity

supply to the property had been disconnected because of the Central

Pollution Control Board and the basement was lying closed on account of

water seepage; the violations in the setbacks were stated to have been

removed.

4. No further action was taken by the DDA till 21 st November, 2005 vide

notice (supra) of which date it was averred, that show cause notices dated 7th

May, 1996, 4th March, 1998, 23rd June, 1999, 10th May, 2000, 31st March,

2001, 4th December, 2002 and 22nd September, 2005 had been issued

regarding running of banquet hall on the property and which breach had not

been stopped by the petitioner; that the respondent DDA vide the said notice

dated 21st November, 2005 determined the perpetual lease deed and called

upon the petitioner to remove itself from the plot of land and deliver

possession thereof. The petitioner sent a representation dated 5 th December,

2005 denying receipt of notices other than notice dated 10 th May, 2000

(supra) and even otherwise denied any breach of the perpetual lease deed

conditions. The respondent DDA was thus requested to withdraw the notice

of determination of lease. The Estate Officer of the respondent DDA

however issued the notice dated 5th May, 2006 (supra) under Section 4 of the

PP Act and whereafter this writ petition was filed.

5. The counsel for the petitioner during the hearing has urged that the

order of determination of lease is after five years of the notice dated 10 th

May, 2000; that inspite of denial by the petitioner of use of the premises as a

banquet hall, no further reason/finding to this effect has been given in the

order of determination of lease. She has also argued that under Clause IV

(a) of the perpetual lease deed, forfeiture of lease and re-entry could not be

effected without specifying the particular breach complained of and without

requiring the lessee i.e. the petitioner to remedy the same. It is contended

that determination of lease is violative of the said provision also.

6. The respondent DDA in its counter affidavit has reiterated its case of

banquet hall being run on the property in contravention of the perpetual

lease conditions. Reliance is placed on judgment dated 21 st February, 2006

of the Division Bench of this Court in LPA 976/2004 titled DDA Vs.

Ambitious Gold Nib Manufacturing Co. (P) Ltd to contend that the pleas as

raised by the petitioner in this petition are to be adjudicated by the Estate

Officer and the writ petition is not maintainable. Needless to say that the

petitioner in its rejoinder to the counter affidavit has reiterated its case.

7. The counsel for the respondent DDA has argued that the clause IV(a)

was complied with in the notice dated 10 th May, 2000 receipt whereof is

admitted by the petitioner also; besides Ambitious Gold Nib (supra),

attention is also invited to Escorts Heart Institute & Research Centre Ltd.

Vs. DDA 143(2007) DLT 472 (DB) to contend that the principle laid

down in Ambitious Gold Nib was followed therein also.

8. The counsel for the petitioner in rejoinder has referred to DDA Vs.

Professor Ram Prakash 2008(103) DRJ 57 (DB) in support of her

contention that no action after delay of five years could have been taken.

9. The Division Bench of this Court in Ambitious Gold Nib undoubtedly

held that the correctness or otherwise of the allegations of the DDA on the

basis of which the determination of the lease has been effected is to be

decided by the authority under the PP Act. It was further observed that

whether the lessee had committed breach of the terms of the lease deed or

not and whether the determination of the lease was legal or not are matters to

be adjudicated by the concerned authority under the PP Act and cannot be

gone into in exercise of writ jurisdiction. However, as far as the reliance by

the petitioner on Escorts Heart Institute (supra) is concerned, the only

question for adjudication therein was whether after determination of lease,

proceedings for eviction before the Estate Officer are maintainable or

whether a civil suit for eviction is required to be instituted. The Division

Bench after adverting to the judgments of the Supreme Court in Express

Newspapers Pvt. Ltd Vs. Union of India (1986) 1 SCC 133 and Ashoka

Marketing Ltd. Vs Punjab National Bank (1990) 4 SCC 406 held that in

accordance with the judgment of the Constitution Bench in Ashoka

Marketing Ltd (supra) observations in Express Newspapers Pvt. Ltd that a

civil suit is required to be filed were not good law and the proceedings under

the PP Act were maintainable. Though Ambitious Gold Nib was cited

before the Division Bench but the Division Bench in para 9 of the judgment

expressly held that it was not faced with the question of jurisdiction of the

Estate Officer to decide whether there was any breach and whether there was

valid and justified determination of the lease or not. It thus cannot be said

that Escorts Heart Institute has also followed Ambitious Gold Nib on the

said aspect.

10. Though the judgment of the Division Bench of this Court in

Ambitious Gold Nib is sufficient for this Bench to dismiss this writ petition

but I may notice that it was submitted before the Apex Court in Ashoka

Marketing Ltd. also that the question, whether a lease has been determined

or not involves complicated questions of law and the Estate Officer who is

not required to be an officer well versed in law cannot be expected to decide

such questions and it must be thus held that the provisions of the PP Act

have no application to a case when the person sought to be evicted had

obtained possession of the premises as a lessee. However the said

submission was not accepted by the Apex Court and it was held that merely

because the Estate Officer was not required to be a person well versed in law

cannot be a ground for excluding from the ambit of the PP Act the premises

in unauthorized occupation of persons who had obtained possession as

lessee. The Apex Court held, that a combined reading of Section 4

(providing for issuance of a notice to show cause to the person in

unauthorized occupation), Section 5( providing for production of evidence in

support of the cause shown by the noticee and giving of a personal hearing

by the Estate Officer) and Section 8 (vesting in the Estate Officer for the

purposes of holding an inquiry the same powers as are vested in a Civil

Court) and Section 9 (conferring a right of appeal against an order of Estate

Officer and which appeal has to be heard by the District Judge) showed that

the final order that is passed in the proceedings under the PP Act is by a

Judicial Officer of the rank of a District Judge; the same also suggested that

the questions as to justification for determination of lease fall within the

jurisdiction of the Estate Officer.

11. Undoubtedly a two Judges Bench of the Supreme Court subsequently

in Anamallai Club Vs. Govt. of Tamil Nadu (1997) 3 SCC 169 and which

was not noticed in Ambitious Gold Nib, without referring to Ashoka

Marketing Ltd. did observe that the Estate Officer under the PP Act cannot

go into the correctness of the termination of the lease or adjudicate the same.

However, in the light of the judgment of the Constitution Bench in Ashoka

Marketing Ltd.and the judgment of the Division Bench of this Court in

Ambitious Gold Nib, this Bench has to ignore the observation in

Annamallai (supra). I may also mention that I have in judgment dated 28th

January, 2011 in CS(OS) No.1507A/2000 titled Airports Authority Of India

Vs. M/S Grover International Ltd also held that the invalidity of

termination has to be set up as a defence in proceedings under the PP Act

and cannot be subject matter of adjudication before any other fora.

Reference was made to the Division Bench of this Court in Fabiroo Gift

House v. ITDC 2003 (66) DRJ 243, also holding that such defences are

adjudicable before the Estate Officer.

12. Even otherwise, I am of the opinion that the disputed questions of fact

viz whether notices were served on the petitioner or not, whether the

petitioner has used the premises as a Banquet Hall or not and whether the

petitioner committed other breaches or not, cannot be adjudicated in writ

jurisdiction. Moreover, the petitioner as aforesaid has alternative suitable

remedy before the Estate Officer and which is already seized of the matter.

13. The petition thus fails and is dismissed. The final order before the

Estate Officer having remained stayed for long, the respondent no.2 Estate

Officer is now directed to pass the final order latest within three months of

today. The petitioner having pursued this petition notwithstanding the

reliance placed by the respondent No.1 DDA on the dicta of the Division

Bench in Ambitious Gold Nib, the petitioner is also burdened with costs of

`20,000/- payable to the respondent No.1 DDA within four weeks of today.

RAJIV SAHAI ENDLAW, J FEBRUARY 8, 2012 'M'.