Delhi High Court
International Building & ... vs Life Insurance Corporation Of ... on 18 July, 2012
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 18th July, 2012
+ LPA No. 512/2012
% INTERNATIONAL BUILDING & FURNISHING CO.
PVT. LTD. ....Petitioner
Through: Mr. Bahar U. Barqui, Adv.
Versus
LIFE INSURANCE CORPORATION OF INDIA.... Respondents
Through: Mr. Kamal Mehta with Mr. Sudeep
Singh, Advs. for R-1.
Ms. Sweety Manchanda, CGSC for
R-2&3.
AND
LPA No. 513/2012
% INTERNATIONAL BUILDING & FURNISHING CO.
PVT. LTD. ....Petitioner
Through: [
Mr. Bahar U. Barqui, Adv.
Versus
LIFE INSURANCE CORPORATION OF INDIA.... Respondents
Through: Mr. Kamal Mehta with Mr. Sudeep
Singh, Advs. for R-1.
Ms. Sweety Manchanda, CGSC for
R-2&3.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
RAJIV SAHAI ENDLAW, J.
1. These two Intra-Court appeals impugn the common order dated 1 st
May, 2012 of the learned Single Judge dismissing W.P.(C) No.1116/2012
and W.P.(C) No.1200/2012 preferred by the appellant. The said writ
LPA No. 512-13 /2012
petitions were preferred with respect to the two premises, one ad-measuring
801 sq. ft. on the first floor and the other ad-measuring 891 sq. ft. on the
fifth floor, of Jeevan Bharti Building, 24, Connaught Circus, New Delhi of
the respondent LIC in occupation of the appellant and impugning the notices
served by the respondent LIC on the appellant of termination of tenancy of
the appellant of the said two premises.
2. The challenge by the appellant to the notices of termination of its
tenancy of the two premises was predicated on the following grounds:-
(i) that the notices of termination of tenancy, with a threat,
on non-compliance thereof, of proceedings for eviction
and for recovery of damages for use and occupation
before the Estate Officer of the respondent under the
provisions of The Public Premises (Eviction of
Unauthorized Occupants) Act, 1971 are in contravention
of the Guidelines notified on 30 th May, 2002.
(ii) that the notices are bad in the face of the offer of
appellant to increase the rent by as much as 100% of the
last paid rent. Reliance in this regard was placed on the
judgment of the Bombay High Court in Parsis
Kothawala v. LIC 2004 BCR 4 614, SLP
No.22904/2004 whereagainst was dismissed by the
Supreme Court, Nusli Neville Wadia v New India
Assurance Co. Ltd. 2006 (3) MhLj 713 upheld by the
Supreme Court in New India Assurance Co. Ltd. v.
Nusli Neville Wadia (2008) 3 SCC 279.
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3. The learned Single Judge dismissed the writ petitions holding -
(a) that as far as the Guidelines notified on 30 th May, 2002
are concerned, the same vide judgment dated 23 rd March,
2012 of the Division Bench of this Court in Life
Insurance Corporation of India v. Damyanti Verma
have been held to be not of binding nature;
(b) that it is even otherwise open to the appellant to take all
defences available to it in the proceedings under the PP
Act.
4. We, besides in Damyanti Verma supra, have also had an occasion to
exhaustively deal with the subject in our judgment dated 11 th May, 2012 in
LPA No.9/2012 titled Indian Institute of Public Opinion Pvt. Ltd. v. Life
Insurance Corporation of India and in other connected matters, one of
which was of the counsel for the appellant herein. In view thereof need is
not felt to burden this judgment with the same matter. Suffice it is to state
that clarification to the Guidelines also carves out an exception in favour of
affluent tenants and in which category the appellant definitely falls.
5. The counsel for the appellant contends that Special Leave Petitions to
the Supreme Court have been preferred against our judgment in Damyanti
Verma (supra) and vide interim order in which SLPs, dispossession has
been stayed. He contends that the present appeals be entertained to await the
outcome of the decision of the Supreme Court and in the meanwhile the
respondent LIC be restrained from proceeding against the appellant before
the Estate Officer.
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6. We are unable to agree. As far as this Court is concerned, the matter
is no longer res integra in view of the judgments supra in Damyanti Verma
and Indian Institute of Public Opinion Pvt. Ltd. Mere preferring of SLPs
and issuance of notice therein does not change the position. Significantly,
the interim order of the Supreme Court does not stay the operation of the
said judgments. Moreover experience has shown that such occupants of
public premises are able to keep the proceedings even before the Estate
Officer pending for several years and for this reason also the contention of
the counsel for the appellant cannot be accepted.
7. We are also of the opinion that writ petitions even otherwise were not
maintainable. The respondent LIC has vide notices impugned only
determined the tenancy of the appellant. The appellant even otherwise
admits the term of the leases in its favour to have expired. It is not as if the
respondent LIC after expiry of the term of the lease or determination of the
tenancy is forcibly evicting the appellant. Resort is being taken to the
provisions of the PP Act which also provides for statutory appeal against the
order of the Estate Officer, if at all, against the appellant. We fail to see as to
how the appellant, instead of availing of the said procedure prescribed in
law can jump the gun and challenge the notices by filing the writ petitions
especially when the legal position as far as this Court is concerned stands
settled vide judgment Damyanti Verma and in Indian Institute of Public
Opinion Pvt. Ltd. It is not as if the appellant does not otherwise want to
contest the proceedings under the PP Act and is intending to challenge the
same on these grounds only. Entertaining a challenge at this stage to the
notice of termination when the appellant does not give up the right to
LPA No. 512-13 /2012
otherwise contest the proceedings before the Estate Officer would
tantamount to delaying the proceedings before the Estate Officer till the
decision on the said aspect.
8. The Supreme Court in D.P. Maheshwari v. Delhi Administration
(1983) 4 SCC 293 has deprecated the practice of, first entertaining the
challenge on preliminary objections and held that the High Courts in the
exercise of their jurisdiction under Article 226 of the Constitution of India
ought not to stop proceedings before the Tribunal so that a preliminary issue
may be decided by them. It was further held that the jurisdiction under
Article 226 of the Constitution of India ought not to be permitted to be so
exploited. Even prior to the said judgment of the Apex Court, this Court in
Shops and Commercial Workers Union v. Management of Ayurvedic and
Unani Tibbia College Board MANU/DE/0176/1979 had expressed anguish
at delay caused by entertaining such petitions. The Supreme Court again in
National Council for Cement & Building Materials v. State of Haryana
(1996) 3 SCC 206 commented upon the appalling situation created by
entertaining such petitions at interim stage and staying the proceedings
before the Tribunal. It was observed that there is no justification for a party
to the proceedings to stall the final adjudication of the dispute by raising
preliminary issues.
9. A Division Bench of this Court in Hindustan National Glass
Industries v. Union of India 132 (2006) DLT 454 held that statutory
proceedings pending at the stage of show cause notice ought not to be
interfered with in exercise of discretionary jurisdiction under Article 226 of
the Constitution and which proceedings ought not to be permitted to be
LPA No. 512-13 /2012
bypassed by resort to writ proceedings under Article 226. Another Division
bench in Pepsico Restaurants International (I) (P) Ltd. v. Municipal
Corporation of Delhi (1995) 35 DRJ 616 has also reiterated that the High
Court should not entertain a writ petition against a mere show cause notice
except in the case of patent lack of jurisdiction in the authority issuing the
notice or violation of principles of natural justice. It was held that the High
Court should leave such a hasty petitioner to pursue the remedy of showing
cause against the notice raising all his contentions for the consideration of
the statutory authority and then approach the High Court in the event of the
result going against him. The Supreme Court also in The Special Director v.
Mohd. Ghulam Ghouse (2004) 3 SCC 440 has deprecated entertaining the
petition challenging the show cause notices.
10. Notice may also be taken of Nopany Investments (P) Ltd.
v. Santokh Singh (HUF) (2008) 2 SCC 728 laying down that a notice to
quit under Section 106 of the Transfer of Property Act is not necessary in as
much as filing of an eviction proceedings under the general law itself is a
notice to quit upon the tenant. The said reasoning was followed by a
Division Bench of this Court in Shri Ram Pistons & Rings Ltd. v. C.B.
Agarwal Huf MANU/DE/2381/2008.
11. As far as the offer of the appellant to increase the rent by 100% is
concerned, the appellant is an old occupant of the premises at meager rent;
even doubling would not bring the rent anywhere close to prevalent market
rent. We have already in Indian Institute of Public Opinion Pvt. Ltd. held
that when the premises of respondent LIC can fetch a higher rent, there is no
reason for LIC to, to the advantage of a particular tenant and at its own loss,
LPA No. 512-13 /2012
accommodate such tenant.
12. Thus, whichever way we may look, no error can be found in the order
of the learned Single Judge. The appeal is without any merits and is
dismissed.
No costs.
RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
JULY 18, 2012
pp..
LPA No. 512-13 /2012
