Smt. Sukh Devi Jain & Ors. vs Shri Atul Gandhi
2014 Latest Caselaw 6868 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Date of Decision: December 16, 2014

+     RSA 115/2014
      SMT SUKH DEVI JAIN & ORS.               ..... Appellants
                   Through: Mr. Dinesh Garg & Ms. Rachna
                             Aggarwal, Advocates

                         versus

      SHRI DAVINDER SETHI                                ..... Respondent
                   Through:            Mr. M.B. Harikant, Advocate

+     RSA 117/2014
      SMT SUKH DEVI JAIN & ORS.               ..... Appellants
                   Through: Mr. Dinesh Garg & Ms. Rachna
                             Aggarwal, Advocates

                         versus

      SHRI ATUL GANDHI                                    ..... Respondent
                   Through:            Mr. M.B. Harikant, Advocate


      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR

                         JUDGMENT

% (ORAL)

Appellants' suit for possession and for recovery of arrears of rent, damages and injunction etc. has been dismissed at the threshold by suo moto invoking powers under Order VII Rule 11 of CPC. In the above captioned first appeal, the suit property is a shop, measuring about 1800

RSA NO. 115/2014 Page 1 RSA NO. 117/2014 sq. ft. approximately in Plot No. HR-22A, opposite Janta Park, near Rajasthan Colony, Baba Faridpuri, Hill Road, Anand Parbat Industrial Area, New Delhi, whereas in the above captioned second appeal, the suit property is another shop admeasuring 12X20' i.e. 240 sq.feet on Plot No. HR-22B, opposite Janta Park, near Rajasthan Colony, Baba Faridpuri, Hill Road, Anand Parbat Industrial Area, New Delhi.

Learned counsel for parties submit that both these appeals can be heard together, as these are on identical grounds and a common law point has been raised in these two appeals. With the consent of learned counsel for the parties, both these appeals have been heard together and are being disposed of by this common judgment.

It is already noted in the trial court's judgment that Ramjas Foundation, a registered society, is the owner of the suit property, which has been given on lease to appellants and respondents are the licensee of appellant at a rental @`2,000/- and `9,000/- per month respectively. Trial court has relied upon Section 3 of The Delhi Lands (Restrictions on Transfer) Act, 1972, which prohibits transfer of land acquired by Central and State Governments. Section 4 of the aforesaid enactment provides for regulation on transfer of lands. That is to say, with the previous permission of the competent authority, transfer or sale of such lands can take place. By relying upon a decision of a Full Bench of this Court in Meena Sahni Vs. UOI 89 (2001) DLT 484 (FB), trial court has held that transfer of the suit property by appellants to respondents without permission of the competent authority under Section 5 of the aforesaid enactment is impermissible and so, no cause of action is there with the appellants-plaintiffs to proceed with the suit for possession etc.

RSA NO. 115/2014 Page 2 RSA NO. 117/2014 The First Appellate Court, vide impugned judgment has affirmed the trial court judgment while noting that the Notification for the acquisition of land in question was issued by the Government of India on 13th November, 1959 and the transfer of subject land by appellants to respondents is forbidden by Section 4 of the aforesaid enactment.

At the hearing of these appeals, learned counsel for appellants had placed reliance upon decisions in Sheela Jawarlal Nagori & anr. Vs. Kantilal Nathmal Baldota & ors. 2014 (4) SCC 443; Jagjit Singh & ors. Vs. Union of India & ors. 211 (2014) DLT 15 (DB) & Ramjas Foundation Vs. Arun Kumar Pruthi, Bhairav Dutt Joshi 212 (2014) DLT 732 to submit that findings returned by the courts below are erroneous and against the dictum of Apex Court in Sheela Jawarlal (supra) wherein it has been categorically declared that the landlord can maintain a suit for eviction of his tenant even after an award is passed in respect of tenanted property, when possession is not taken by land acquiring authority.

It is contended by learned counsel for appellants that neither the possession of suit properties has been taken nor compensation has been paid and so, bar of Sections 3 & 4 of The Delhi Lands (Restrictions on Transfer) Act, 1972 would not apply.

Learned counsel for respondents submits that respondents are in actual physical possession of the suit properties but disputes that respondents are the tenants of appellants.

Upon hearing both the sides and on perusal of the judgment of the courts below and the decisions cited, this Court is of the considered opinion that both the courts below have failed to consider the vital aspect of physical possession of the suit property being taken or not, by resort to

RSA NO. 115/2014 Page 3 RSA NO. 117/2014 Section 16 of the Land Acquisition Act. Whether the suit property has been acquired or not and if so, then whether compensation has been paid or not, are the aspects which are required to be considered by the trial court and since both the courts below have not considered these vital aspects, therefore, impugned judgments are perverse and are hereby set aside. Both the suits of appellants are restored for hearing and for decision afresh in the light of dictum of Apex Court in Sheela Jawarlal (supra). In the facts of this case, parties are left to bear their own costs.

Learned counsel for respondents submits that respondents be permitted to appear before the trial court.

Let parties appear before the concerned District Judge on 6 th January, 2015 for assigning these suits to the court of competent jurisdiction. Registry is directed to remit back the records with copy of this judgment to the concerned court.

Both the appeals are accordingly disposed of.

                                                           (SUNIL GAUR)
                                                              JUDGE
DECEMBER 16, 2014
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RSA NO. 115/2014                                                         Page 4
RSA NO. 117/2014