Delhi High Court
Balaji Enterprises vs Delhi Development Authority on 17 September, 2012
Author: Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: August 30, 2012
Pronounced on: September 17, 2012
+ W.P.(C) No. 5118/2011
&
C.M.No. 10377/2011
BALAJI ENTERPRISES ..... Petitioner
Through: Mr. J. R.Bajaj & Mr. D. R. Bhatia,
Advocates
versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Ms. Manika Tripathy Pandey and Mr.
Ashutosh Kaushik, Advocates for
respondent - DDA
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGEMENT
1. Petitioner is the sub-lessee of Sohinder Singh who had taken
plot no. 20 in Block 12-A, WEA, Karol Bagh, Delhi (henceforth
referred to as „subject premises‟) on lease from respondent for
residential purpose but had created sub-lease of shop no. 3 in the
aforesaid subject premises in favour of petitioner for commercial use,
which led to the cancellation of the lease deed and the initiation of the
proceedings under the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 resulting in eviction of petitioner from the
subject premises.
2. Petitioner had preferred a statutory appeal against eviction order
of 16th June, 2008, which stands dismissed vide detailed impugned
order of 26th May, 2011 holding that the so-called conflict between the
Apex Court decision in Express Newspapers Private Ltd. Vs. Union of
India AIR 1986 SC 872 and later decision of the Apex Court rendered
by the Constitution Bench in Ashoka Marketing Ltd & Anr. Vs. Punjab
National Bank & Ors. reported in AIR 1991 SC 855 stands explained
by Division Bench of this Court in LPA No. 976/2004 DDA Vs.
Ambitious Gold Nib Mfg Co. Pvt. Ltd. rendered on 21st February, 2006
and so there was no scope for contending that the decision in Express
Newspapers (supra) bars resort to the provisions of the Public
Premises (Eviction of Unauthorised Occupants) Act, 1971 to seek
eviction from the leased out land on which building was constructed
by the lessee.
3. At the hearing, learned counsel for petitioner had placed
implicit reliance upon an order of 9th July, 2012 of this Court in
WP(C) No. 2204/2006 M/S Ashoka Builders & Promoters Vs. UOI &
Ors. to contend that where building is constructed by lessee on the
land leased out by respondent, the remedy is to invoke the jurisdiction
of the Civil Court to seek eviction and not to resort to the provisions of
the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
Thus, quashing of the impugned order confirming the eviction of the
petitioner from the subject premises is sought.
4. To rebut afore-noted solitary contention advanced on behalf of
petitioner, learned counsel for respondent had placed reliance upon a
Division Bench decision of 21st November, 2011 in LPA No. 965/2011
titled as Vijay Rehal Vs. Delhi Development Authority upholding the
eviction order passed under the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 against a similar sub-lessee from
another premises in plot no. 20 in question, while questioning locus of
the sub-lessee, when the perpetual lessee of land/premises had not
even challenged the eviction order. So, it was contended on behalf of
respondent that impugned eviction of petitioner from the subject
premises does not suffer from any jurisdictional error and this petition
ought to be dismissed.
5. Although, both the sides have referred to the precedents to
buttress their submissions but it would be worthwhile to first test the
challenge laid on behalf of petitioner to the resort to provisions of the
Public Premises (Eviction of Unauthorised Occupants) Act, 1971, by
referring to the definition of „premises‟ in the Public Premises
(Eviction of Unauthorised Occupants) Act, 1971. The term „premises‟
has been defined in Section 2 (C) of the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 as under:
"(c) "premises" means any land or any building or
part of a building and includes-
(i) the garden, grounds and out houses, if
any, appertaining to such building or
part of a building, and
(ii) any fittings affixed to such building or
part of a building for the more
beneficial enjoyment thereof;"
6. A bare perusal of the afore-noted definition of „premises‟ in the
Public Premises (Eviction of Unauthorised Occupants) Act, 1971
makes it abundantly clear that respondent's leased out land comes
within definition of „premises‟ in the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971, to which there is no challenge
and so the decision of this Court in M/S Ashoka Builders (supra)
which relies upon another single Bench decision of this Court in Vikas
Jain Vs. Union of India & Ors. 2006 V AD (Delhi) 479 following the
Apex Court decision in Express Newspapers (supra) is rendered per
incuriam in view of the Division Bench decision of this Court in
Ambitious Gold Nib (supra) followed by a later Division Bench of this
Court in Escorts Heart Institute & Research Centre Ltd. Vs. DDA &
Anr reported in AIR 2008 Delhi 70, which also takes into
consideration the Apex Court decision in Express Newspapers
(Supra).
7. Pertinently, a Division Bench of this Court in Escorts Heart
Institute (supra) has considered both the decisions of the Apex Court
in Express Newspapers (supra) as well as Ashoka Marketing (Supra)
and has maintained the eviction order passed under the Public
Premises (Eviction of Unauthorised Occupants) Act, 1971. No
decision to the contrary has been cited. In view of the ratio of decision
of the Division Bench in Ambitious Gold Nib (supra), followed in
Escorts Heart Institute (supra), I hold that upon determination of lease
of the land by respondent, the remedy to seek eviction therefrom,
would be to resort to provisions of the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 and respondent cannot be asked
to seek its remedy before the Civil Court.
8. Upon perusal of decision of the Division Bench of this Court in
Vijay Rehal (supra), it becomes quite evident that there is a striking
similarity between the aforesaid decision and the case in hand as not
only the shops of petitioner as well as of Vijay Rehal were located on
one plot of land but even their status in the premises/shops on the
subject land is identical i.e. both are sub-lessees of the original lessee
who has not come forward to defend cancellation of the lease of plot
no:20 in question and, therefore, reasoning of the Division Bench in
Vijay Rehal (supra) on this aspect, assumes importance. It reads as
under:-
"We entertain serious doubts as to the locus of the
appellant, as a tenant of the perpetual lessee and
with whom the superior lessor does not have any
privity, to challenge the order of eviction. It
cannot also be lost sight of that the matter entails
public premises."
10. Afore-noted observations in Vijay Rehal (supra) aptly apply to
the instant case. The finding returned in impugned order regarding the
impact of Circular/Notification of 7th September, 2006 was not
assailed before me at the hearing of this petition. However, I find that
the impugned order is not only well reasoned on facts but is also
sound in law and deserves to be upheld. The challenge to impugned
eviction on the strength of aforesaid Circular/Notification of 7 th
September, 2006 stand repelled by Division Bench of this Court in
Vijay Rehal (supra) wherein the eviction of similarly placed sub-lessee
( as the petitioner herein) under the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 already stands affirmed.
11. It is indeed difficult to distinguish case of petitioner from the
aforesaid case of Vijay Rehal whose eviction from the plot in question
already stands affirmed by the Division Bench of this Court in Vijay
Rehal (supra). In the ultimate analysis, finding no palpable error in
the impugned order, the eviction of petitioner from the subject
premises stands affirmed. Resultantly, this petition and pending
application are dismissed with no order as to costs.
(SUNIL GAUR)
JUDGE
September 17, 2012
ss
