Suresh Chand Gupta vs Mcd And Ors
2013 Latest Caselaw 1177 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 8th March, 2013

+                              LPA 742/2012
       SURESH CHAND GUPTA                      ..... Appellant
                 Through: Mr. Vinay Garg with Mr. Lalit Gupta
                          & Mr. Deepak Agarwal, Advs.

                                 Versus
       MCD AND ORS                                     ..... Respondents

                 Through:          Ms. Mini Pushkarna & Mr. S. Tyagi,
                                   Advs. for R-1&2.
                                   Mr. Nand Lal Kedia, Respondent
                                   No.5 in person (also represents R-4).
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This intra-court appeal impugns the judgment dated 16th August, 012

of the learned Single Judge, of dismissal of W.P.(C) No.811/2002 preferred

by the appellant. The said writ petition was preferred impugning the order

dated 13th July, 2001 of the Additional District Judge exercising powers as

an Appellate Authority under Section 9 of the Public Premises (Eviction of

Unauthorized Occupants) Act, 1971 (PP Act) dismissing the appeal

preferred by the appellant against the order dated 22 nd August, 1991 of the

Estate Officer of the respondent MCD of eviction of the appellant from

property No.1629, Queens Road (First Floor), Delhi.

2. The counsel for the respondent MCD as well as respondent No.5 Mr.

Nand Lal Kedia in person, also claiming to represent respondent No.4, Mr.

Pawan Kumar Kedia appeared on advance notice (respondents No.2 & 3 are

proforma parties) and considering the nature of the controversy and the

challenge in the appeal, we, with consent, heard the counsels finally and

reserved judgment. We have also requisitioned the writ record.

3. The order dated 22 nd August, 1991 of the Estate Officer records, (i)

that the appellant was a tenant of the first floor of property No.1629, Queens

Road, Delhi for residential purpose under the respondent MCD; (ii) however

the respondent MCD noticed that the said premises were being misused by

the appellant for commercial purpose and a portion thereof had been sub-let

by the appellant to one Sh. Pawan Kumar Kedia (respondent No.4 herein);

(iii) that a show cause notice was issued by the Land & Estate Department of

MCD on 29th October, 1987 requiring the appellant to show cause as to why

the lease be not terminated; (iv) however no reply was given to the said

show cause notice; (v) that thereafter a final show cause notice dated 22 nd

July, 1988 was given; (vi) that the appellant in reply thereto stated that the

respondent No.4 was a distant relation of his father and was given a part of

the premises as a guest but had not removed his complete luggage from the

said portion; (vii) that the respondent MCD was not satisfied with the said

reply and on site inspection concluded that the sub-tenant still existed; (viii)

accordingly, the lease of the appellant was terminated vide order dated 12 th

September, 1988 and complaint filed with the Estate Officer; (ix) that a

notice dated 27th October, 1988 was issued by the Estate Officer requiring

the appellant to show cause as to why an order of eviction should not be

made; (x) another show cause notice qua damages was issued; (xi) no replies

were furnished to the said show cause notices - rather the factum of having

allowed the respondent No.4 to use part of the premises was admitted,

though as a guest; (xii) that it also transpired that the appellant had initiated

proceedings before the Civil Court against the respondent No.4 for recovery

of possession of the portion of the premises in occupation of the respondent

No.4; (xiii) that the case continued to languish for another three years; (xiv)

on 13th August, 1991 the appellant contended that the case could not be

decided without evidence; (xv) that though a representation had earlier been

made of stay of proceedings before the Estate Officer by the Civil Court but

it subsequently transpired that a wrong statement to the said effect had been

made.

The Estate Officer, in the aforesaid scenario held that since it was not

denied that the lease of the appellant had been terminated by the respondent

MCD and on which termination, the appellant had become an unauthorized

occupant, the appellant was liable to be evicted under Section 5 of the PP

Act. The Estate Officer accordingly passed the order of ejectment/eviction.

4. The appellant preferred the statutory appeal which was dismissed vide

order dated 13th July, 2001. The order of the Appellate Authority

additionally records, (a) that the said premises were earlier leased out to one

Sh. Dharam Dass Jain for residential purpose and whose daughter had

complained to the MCD that the appellant had got the lease thereof

transferred to his name by filing some forged and false affidavit and had

sought restoration of the said premises to her; (b) that the respondent No.4

herein Sh. Pawan Kumar Kedia also applied to the MCD claiming tenancy

rights in respect of the portion in his possession and tenancy rights of which

were indeed transferred from the name of the appellant to the name of the

respondent No.4 Sh. Pawan Kumar Kedia after inspection revealed that he

was in occupation of a portion of the property; (c) that the said inspection

also revealed that the appellant was using the remaining portion for

commercial purpose in violation of the terms and conditions of allotment;

accordingly the notices mentioned in the order of the Estate Officer were

issued.

5. It was the contention of the counsel for the appellant before the

Appellate Authority that no sufficient opportunity of being heard had been

given to the appellant before terminating the lease and that the respondent

No.4 Sh. Pawan Kumar Kedia was in possession of the portion in his

occupation even prior to the lease in favour of the appellant.

6. The Appellate Authority found that the appellant was given a show

cause notice before cancellation of the lease and it did not lie in the mouth of

the appellant to say that he was not heard before passing of the order of

termination of lease. It was further held that the job of the Estate Officer was

limited to only see that the person sought to be evicted was an unauthorized

occupant and the Estate Officer was not to go behind the order of

termination. It was yet further held that the order of termination had not even

been challenged by the appellant. The Appellate Authority accordingly held

the order of the Estate Officer of eviction to be justified and dismissed the

appeal.

7. The appellant being not satisfied, filed the writ petition from the order

wherein this appeal arises. The learned Single Judge has dismissed the writ

petition observing, (i) that the appellant had applied to the MCD to get the

name of the respondent No.4 Sh. Pawan Kumar Kedia removed from the

MCD records and had thereafter also instituted civil proceedings for

recovery of possession of the said portion and in which he had succeeded in

the year 2006; and, (ii) that the material on record reveals that besides the

portion in occupation of the respondent No.4, the appellant was putting the

remaining portion of the premises to commercial use. The learned Single

Judge further held that the cancellation of lease was approved after the

Inspection Report and the appellant cannot be heard to challenge the same. It

has further been observed that it was not a worthwhile challenge to the

inspection report.

8. On the plea of the appellant that no opportunity to lead evidence

before the Estate Officer had been given, the learned Single Judge held that

there was nothing to show that any such opportunity was sought and thus the

petitioner could not be heard to make any grievance on the said ground. It

has further been observed that no prejudice was shown to have been suffered

by the petitioner on this ground.

9. Before we deal with the contentions of the counsel for the appellant, it

would be worthwhile to refer some relevant facts.

10. The said premises were let out to Sh. Dharam Dass Jain for residential

purpose at a rent of Rs.31.25 per month. The appellant claims that the MCD

transferred the said lease to his name in the year 1979 at the same rate of

rent. The rent at the time of commencement of the eviction proceedings was

Rs.62.50 per month and the Estate Officer awarded damages @ Rs.312.50

per month.

11. The premises are situated in a prime locality of Central Delhi,

property values wherein are still very high. Judicial notice can be taken of

the fact that the rent of the premises today would be at least a hundred times

the rate at which damages have been awarded, if not more. Judicial notice

can also be taken of the fact that the rent of the premises even in the year

1979 was much more than Rs.31.25 or Rs.62.50 and the appellant was

legally not entitled to have the lease transferred in his name from the name

of Sh. Dharam Dass Jain and the same appears to have been got done in

collusion with some officials of the MCD.

12. The record of the Estate Officer was requisitioned before the learned

Single Judge but was not found. A vigilance enquiry conducted, also proved

to be of no avail.

13. We are however not concerned with the said facts and are not

returning any findings thereon and have stated the same only to support our

decision, of the appellant being not entitled to the exercise of discretion,

implicit in a proceeding under Article 226 of the Constitution of India, in his

favour.

14. The Division Bench of this Court in judgment dated 11th May 2012 in

LPA No. 9/2012 titled Indian Institute of Public Opinion Pvt. Ltd. Vs. Life

Insurance Corporation of India has held that the tenants of statutory

corporations/local authorities, as the MCD is, are entitled to continue in the

premises only if agreed to by such corporation/authority and the statutory

corporation/authority cannot be compelled to continue with the tenants

paying rents much below the market rent and which would amount to giving

a benefit to a certain class of tenants at the cost of the public exchequer.

Relying on Centre for Public Interest Litigation Vs. Union of India (2012)

3 SCC 1 it was further held that distribution of state resources is to be guided

by doctrine of equality, larger public good and rational, transparent

procedures designed to fetch maximum value for enrichment of the public at

large and to allow old tenants of statutory corporations/authorities to

continue at old rates would amount to giving monetary benefit for all times

to come to those who may on first-come basis have come into occupation of

such properties and at the cost and prejudice of others. Mention may also be

made of Jiwan Dass Vs. Life Insurance Corporation of India (1994) Supp

(3) SCC 694 laying down that Section 106 of the Transfer of Property Act

having empowered the public authorities to act in public interest and

determine the tenancy, it is not permissible to cut down the width of the

power by reading into it the reasonable and justifiable grounds for initiating

action of terminating the tenancy.

15. It is well settled law that the provisions of the PP Act supersede the

provisions of the Rent Act (see Ashoka Marketing Vs. Punjab Natinal

Bank (1990) 4 SCC 406). The tenancy of the appellant even though at a rent

of less than Rs.3500/- per month, is thus not protected. It is not the case of

the appellant that there is any registered lease in his favour whereunder he is

entitled to continue as a tenant in the premises. The tenancy of the appellant

was at best a month to month tenancy and there is no reason for the State, as

the respondent MCD, to not terminate the said tenancy and to evict the

appellant under the provisions of the PP Act and to earn maximum possible

rent therefrom.

16. That brings us to the very first argument of the counsel for the

appellant, that the termination of the lease is not proper. It is contended that

the show cause notices do not terminate the lease and there is no termination

of lease within the meaning of Section 106 of the Transfer of Property Act,

1882.

17. We are afraid the aforesaid contention at this stage, after nearly 25

years of initiation of proceedings under the PP Act, cannot be entertained.

Attention of the counsel during the hearing was invited to the judgment of

the Division Bench of this Court in Shriram Pistons & Rings Vs. C.B.

Agarwal MANU/DE/2381/2008, where, relying on Nopany Investments (P)

Ltd. Vs. Santokh Singh HUF (2008) 2 SCC 728, it was held that filing of an

eviction suit under general law is itself a notice to quit upon the tenant and

that no notice to quit is necessary under Section 106 of the Transfer of

Property Act in order to pass a decree for eviction.

18. The appellant as aforesaid, has been contesting the proceedings for the

last 25 years and cannot be said to have suffered any prejudice from the

notice in the prescribed form having not been given to him, the purpose of

which is only to notify a tenant of the intent of the landlord not to continue

the relationship of landlord and tenant.

19. The counsel for the appellant has also urged the aspect of opportunity

of evidence having not been given. Reliance in this regard is placed on New

India Assurance Company Ltd. Vs. Nusli Neville Wadia (2008) 3 SCC 279.

20. Though, undoubtedly no evidence was recorded before the Estate

Officer but it cannot be lost sight of that the appellant, for more than three

years when the proceedings were pending before the Estate Officer, did not

seek any opportunity to lead evidence and on the contrary continued to

represent that there was a stay from the Civil Court of the proceedings

before the Estate Officer and only when his said bluff was caught, sought an

opportunity for leading evidence and which was denied by the Estate Officer

in view of the report of inspection before him. The Appellate Authority also

held that no prejudice was suffered by the appellant from non-grant of

opportunity to lead evidence and the learned Single Judge refused to

interfere with the said decision of the Appellant Authority.

21. In view of the aforesaid facts, we, in exercise of appellate jurisdiction

under Article 226 of the Constitution of India, do not deem it appropriate to

entertain the said argument. It cannot be lost sight of that the PP Act was

enacted to provide summary eviction of unauthorized occupants of public

premises and the Estate Officers appointed thereunder are not bound by the

provisions of Civil Procedure Code, 1908 and the Evidence Act, 1872. It is

also not as if there is no material whatsoever before the Estate Officer to

come to the conclusion of the respondent MCD being justified in terminating

the tenancy of the appellant for the reason of sub-letting and misuser. As far

as sub-letting is concerned, the appellant also does not dispute that suit for

possession was filed against the respondent No.4 herein. In fact, the

respondent No.4 continued to pursue the proceedings till before the learned

Single Judge also, asserting his own right in the premises and his brother

respondent No.5 was present before us also. As far as the plea of misuser is

concerned, plethora of documents on the record of the writ petition show the

appellant to be a resident of A-334, Derawal Nagar, Delhi and not of the

subject premises. The appellant in the memo of parties in this appeal also

has given his alternate address as that of Derawal Nagar, Delhi only. The

counsel for the appellant also during the hearing could not deny the

residence of the appellant at Derawal Nagar, Delhi. It is thus quite obvious

that the appellant has no need of the subject premises for the purpose of his

residence and we fail to see as to how a residential accommodation of the

State can be allowed to be retained by a person who already has other

residential accommodation and thus has no need therefor.

22. Moreover, the grounds of termination of tenancy are not even relevant

as aforesaid. The MCD, as owner/landlord of the premises was/is entitled to

terminate the tenancy, which as aforesaid, was a month to month, without

even citing any ground/reason therefor and once the tenancy is determined

and which can also be by initiation of eviction/ejection proceedings, the

possession becomes unauthorized. The Estate Officer thus, cannot be said to

have done any wrong in passing the order of eviction. The legislature has

provided statutory remedy of one appeal only against the order of the Estate

Officer and no further appeals have been provided. The jurisdiction under

Article 226 of the Constitution of India cannot partake the character of a

second appeal and is intended to only oversee that no injustice is committed.

In this case as aforesaid, there is no justification for the appellant to continue

in the premises, to the prejudice of the MCD, as MCD is being deprived of

earning prevalent rent of the premises.

23. We therefore do not find any merit in this appeal, which is dismissed.

Finding the filing of the appeal to be frivolous and vexatious, the appellant is

also burdened with costs of Rs.10,000/- payable to the respondent MCD

within four weeks hereof.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE MARCH 08, 2013 'gsr/bs'