Delhi High Court
Band Box Pvt. Ltd. vs Estate Officer Punjab & Sind Bank & ... on 13 July, 2012
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 13th July, 2012
+ LPA No.250/2012
% BAND BOX PVT. LTD. ....Appellant
Through: Mr. R.M. Bagai with Ms. Anu Bagai
& Ms. Damini Khaira, Advs.
Versus
ESTATE OFFICER PUNJAB &
SIND BANK & ANR. ..... Respondents
Through: Mr. P.S. Bindra & Ms. S. Aggarwal,
Advs.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
RAJIV SAHAI ENDLAW, J.
1. This Intra-Court appeal impugns the order dated 19th March, 2012 of
the learned Single Judge dismissing W.P.(C) No.8254/2010 preferred by the
appellant. The said writ petition was filed challenging the order dated 2 nd
December, 2010 of the learned District Judge exercising powers as the
Appellate Authority under Section 9 of the Public Premises (Eviction of
Unauthorized Occupants) Act, 1971 and dismissing the appeal preferred by
the appellant against the order dated 23rd September, 2008 of the Estate
Officer of the respondent Bank holding the appellant to be in unauthorized
occupation of the ground floor showroom-cum-shop ad-measuring 2222 sq.
ft. bearing no.18/90, Connaught Circus, New Delhi and directing the
eviction of the appellant therefrom.
2. The thrust of the argument of the counsel for the appellant is that the
proceedings for eviction before the Estate Officer were in contravention of
the guidelines dated 5th August, 1992 and guidelines of the year 2002 of the
Ministry of Urban Development, Govt. of India advising against the resort
to the provisions of the PP Act for evicting bonafide tenants whose tenancy
had expired or lapsed. It is also contended that the said guidelines were
accepted by the respondent Bank and notwithstanding the same, the
provisions of the PP Act have been resorted to against the appellant.
3. As far as the said argument is concerned, we have recently had an
occasion to deal with the same in our judgment dated 23 rd March, 2012 in
LPA No.977-80/2011titled Life Insurance Corporation of India v.
Damyanti Verma and in our judgment dated 11 th May, 2012 in LPA
No.9/20012 titled Indian Institute of Public Opinion Pvt. Ltd. v. Life
Insurance Corporation of India. We have held that the said guidelines do
not come in the way of resort to the provisions of the PP Act. Need is
therefore not felt to discuss the said aspect in detail and suffice it is to state
that we reiterate the view taken in the aforesaid two judgments.
4. As far as the argument of the acceptance of the said guidelines is
concerned, from the resolution of the Board of Directors of the respondent
Bank, it is found that the appellant was held to be a leading drycleaner of
the city enjoying the status of a large business house/commercial enterprise
and not found entitled to benefit of guidelines, in consonance with the
clarification issued by the Ministry qua the guidelines.
5. In this respect it may also be noticed that the appellant earlier also had
preferred W.P.(C) No. 1570/2007 impugning the proceedings before the
Estate Officer inter alia on the grounds of the guidelines aforesaid. The said
writ petition was dismissed vide detailed judgment dated 12 th May, 2008
holding that the said guidelines could not come in the way of the respondent
invoking the remedy under the PP Act for evicting the appellant. It was also
held that the appellant by its conduct had disentitled itself to any relief. Intra
Court appeal being LPA No.509/2008 preferred by the appellant was
permitted to be withdrawn on 2 nd September, 2008. We, for this reason also,
are of the opinion that the appellant is not entitled to make any challenge to
the eviction order on the basis of the said guidelines, the second time round.
6. The counsel for the appellant also raises a plea of discrimination. It is
contended that while against certain other tenants, the respondent Bank had
initiated proceedings under Section 14(1)(k) of the Delhi Rent Control Act,
1958, against the appellant the provisions of the PP Act have been resorted
to. It is argued that there is no policy of the respondent Bank in this regard
and the respondent Bank indulges in a policy of pick and choose in selecting
the forum, whether before the Rent Controller or Civil Court or the Estate
Officer for initiating proceedings against its tenants and of which the forum
of Civil Court and Rent Controller is advantageous to the tenants/occupants.
We are afraid, we do not find any merit in the said plea also. Once it is held
that the jurisdiction of the Estate Officer was validly invoked, the same
cannot be faulted with merely for the reason that the jurisdiction of the Civil
Court or of the Rent Controller is invoked against others. There is no
concept of negative equality in law. We may however notice that the
counsel for the respondent Bank has clarified that the proceedings against
another tenant before the Rent Controller, instance whereof is given, were
filed way back in the year 1986 when the law was not clear and avers that
since the time the law has been settled in Ashoka Marketing Ltd. Vs.
Punjab National Bank (1990) 4 SCC 406, the respondent Bank has not
invoked the jurisdiction of any fora other than that of the Estate Officer.
We, in our judgment in Indian Institute of Public Opinion Pvt. Ltd. supra
have also held that as per the dicta of the Constitution Bench in Ashoka
Marketing Ltd., the provisions of the PP Act override the provisions of the
Rent Act.
7. The only other contention of the counsel for the appellant before us is
that one of the Estate Officers who handled/dealt with the proceedings
against the appellant during the long spell of eight years the same remained
pending before the Estate Officer, was not validly appointed as an Estate
Officer. What we however find is that the appellant has not made out any
case of prejudice suffered therefrom. There is no challenge to the authority
of the Estate Officer who ultimately passed the order of eviction against the
appellant. Against the order of the Estate Officer whose authority is
challenged, the appellant had earlier preferred the writ petition and LPA
aforesaid which were dismissed and withdrawn respectively and for this
reason also no challenge to his authority can be made at this stage.
8. The counsel for the appellant has handed over copies of a large
number of judgments. Need is not felt to discuss those which have already
been dealt with in our two recent judgments cited above. Mention may
however be made of:-
a. Chandrika Misir v. Bhaiya Lal (1973) 2 SCC 474;
b. Sunder Dass v. Ram Parkash 1977 Rajdhani Law Reporter
(SC) 227; and
c. Master Mayank Vashishth v. Financial Commissioner 2004
VI AD (Delih) 546.
cited in support of the contention that jurisdiction cannot be conferred
by consent. However in view of what we have observed hereinabove, the
said question does not arise in the present case.
9. Moreover, it cannot be forgotten that this Bench is exercising
Appellate Jurisdiction over the discretionary jurisdiction under Article 226
of the Constitution invoked by the appellant. The appellant is not found
entitled to any relief also on the ground that though while issuing notice of
this appeal interim stay of the order of eviction was granted subject to the
appellant depositing the entire arrears but as per the counsel for the
respondent Bank the said condition has not been complied with. We may
also mention that there is no dispute that the tenancy of the appellant stands
determined. The appellant is in possession of the valuable property of the
respondent Bank, to the detriment of the respondent Bank and thereby
depriving the respondent Bank from earning the prevalent letting value of
the said premises which would be in excess of Rs.250/- per sq. ft. per month
and which are public monies. There is no justification whatsoever for
allowing the appellant to perpetuate its unauthorized occupation.
10. We therefore do not find any merit in this appeal and dismiss the
same with costs of Rs.25,000/- payable to the respondent Bank.
RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
JULY 13, 2012
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