Cement Corporation Of India Ltd vs Life Insurance Corporation Of ...
2014 Latest Caselaw 4150 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 4th September, 2014

+                               LPA No. 1299/2007

       CEMENT CORPORATION OF INDIA LTD                        ..... Appellant
                          Through:      Mr. Rakesh Tiku, Sr. Adv with Mr.
                                        Prakash Gautam and Ms. Shabana
                                        Ahmed, Advs.

                                     Versus

       LIFE INSURANCE CORPORATION OF
       INDIA LTD. & ORS.                                   ..... Respondents
                          Through:      Mr. Kamal Mehta, Advs.

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 14th September, 2007

of the learned Single Judge of this Court of dismissal of W.P.(C) No. 637/2005

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

impugning the order dated 20th November, 2004 of the Additional District

Judge, Delhi, exercising the power as an Appellate Authority under the Public

Premises (Eviction of Unauthorised Occupants) Act, 1971 (PP Act), of

dismissal of the appeal preferred by the appellant against the order dated

25th September, 2003 of the Estate Officer of the respondent no.1

Life Insurance Corporation of India (LIC) of eviction of the appellant from the

first and second floors of property No.10, Darya Ganj, Delhi.

2. This appeal came up first on 1st November, 2007 when the counsel for

the respondent LIC appearing on advance notice informed that the possession

of the property from which the appellant had been ordered to be evicted, had

already been taken over by the LIC. This Court vide the order of the said date,

directed status quo as of that date to be maintained with regard to the

possession of the property. Vide subsequent order dated 3 rd March, 2009 the

appeal was admitted for hearing but the application for interim relief filed by

the appellant was dismissed. The order dated 29th April, 2013 in this appeal,

without noticing that vide order dated 3rd March, 2009 the application of the

appellant for interim relief had been dismissed, records that "the only question

which remains for consideration is whether the papers and almirahs belonging

to the appellant should be removed so that the respondent could utilise the

premises for any other purpose." The appellant was accordingly directed to

inform as to whether the papers and almirahs had been removed or not. The

appeal was, on 4th October, 2013, dismissed in default for non appearance of

the appellant but on subsequent application of the appellant was restored.

3. We have heard the senior counsel for the appellant and the counsel for

the respondents.

4. The counsel for the respondents informed that though the respondent LIC

in pursuance to the order of eviction has taken possession, but the appellant has

not removed its almirahs and the documents lying therein and thus the property

is lying unused.

5. It is not understandable as to why the officials of the respondent LIC,

inspite of dismissal on 3rd March, 2009 of the application for interim relief, not

remove the almirahs and other articles of the appellant from the premises and

so allowed the property to remain unused. It demonstrates a total lack of

concern for public assets, of which such officials are trustees. The respondent

LIC needs to introspect in this respect, to ensure that no such lapse occurs in

future. The Chairman of the LIC is requested to take note and appropriate

remedial measures.

6. The undisputed position is that one Asia Udyog Pvt. Ltd was the tenant

of the respondent LIC in the said property as well as in property No.8 Darya

Ganj, Delhi. However the said Asia Udyog Pvt. Ltd had sublet the property to

M/s Dalmia Dadri Cement Ltd. Subsequently the undertaking of M/s Dalmia

Dadri Cement Ltd. with assets, including possession of the said two properties,

was acquired by the appellant vide the Dalmia Dadri Cement Limited

(Acquisition and Transfer of Undertakings) Act, 1981. Though Asia Udyog

Pvt. Ltd was in the year 1978 ordered to be wound up and vide order dated 4th

March, 1996 of the Company Judge of this Court in Company Application

being C.A. No. 38/1995 in the winding up petition, the Official Liquidator was

directed to hand over the possession of the said properties to the respondent

LIC, save the portion in which the records of the Asia Udyog Pvt. Ltd. in

liquidation were lying but the respondent LIC could not so take possession

owing to the appellant being in occupation of the property.

7. The appellant claims that it started paying rent to the respondent LIC.

The senior counsel for the appellant has drawn our attention to the letters dated

13th April, 1985, 21st September, 1989 and 1st September, 1994 exchanged by

the appellant with the respondent LIC and which show that the respondent LIC

had agreed to recognize the appellant as its direct tenant in the first and second

floor of the property in 10, Darya Ganj, Delhi inter alia subject to the appellant

surrendering possession of property No.8, Darya Ganj, Delhi and the

respondent LIC had also agreed to execute lease deed with respect to property

No.10, Darya Ganj, Delhi in favour of the appellant. The senior counsel for the

appellant has further drawn our attention to the document dated 6 th September,

1994 whereby the appellant delivered possession of property No.8, Darya Ganj,

Delhi to the respondent LIC and the respondent LIC accepted the same.

8. The only argument of the senior counsel for the appellant is that the

respondent LIC having so agreed and having made the appellant deliver the

possession of property No.8, Darya Ganj, Delhi to the respondent LIC, on the

assurance that the appellant will be accepted as a tenant with respect to property

No.10, Darya Ganj, Delhi, could not have, treating the appellant as an

unauthorized occupant, sought eviction of the appellant therefrom.

9. Relying on para 38 of the judgement in Sudhir Goel Vs. M.C.D. AIR

2005 Delhi 7 it is also contended that the Estate Officer could not have decided

the disputed questions of fact and law as were arising and the order of eviction

of the appellant is liable to be set aside on this ground also.

10. Per contra, the counsel for the respondents has placed reliance on

Ashoka Marketing Ltd. Vs. Punjab National Bank (1990) 4 SCC 406.

11. We had during the hearing enquired from the senior counsel for the

appellant whether the appellant, upon the respondent LIC not abiding by its

agreement to execute lease deed in favour of the appellant with respect to

property No.10, Darya Ganj, Delhi inspite of having made the appellant change

its position by surrendering the possession of property No.8, Darya Ganj, Delhi,

initiated any proceedings seeking specific performance of the agreement of

grant of lease and if such an action was not taken, whether not the limitation

prescribed for taking such action now stands lapsed. A mere agreement by the

respondent LIC to grant lease of property No.10, Darya Ganj, Delhi in favour

of the appellant would not create any right in favour of the appellant as a lessee.

One of us (Rajiv Sahai Endlaw, J.) in Sunil Kapoor Vs. Himmat Singh 167

(2010) DLT 806 held that a mere agreement to sell of immovable property does

not create any right in the property save the right to enforce the said agreement.

It was thus held that even if the landlord is found to have agreed to sell the

property to the tenant, the tenant would not get any right to occupy that

property as an agreement purchaser. Reliance was placed on Jiwan Das Vs.

Narain Dass AIR 1981 Delhi 291 laying down that in fact no rights enure to

the agreement purchaser, not even after the passing of a decree for specific

performance and till conveyance in accordance with law and in pursuance

thereto is executed. It was further held that the tenant had no right to remain in

occupation of the premises or to retain possession of the property merely

because of the agreement to sell in his favour. SLP(C) No.6010/2010 preferred

against the said judgment was dismissed on 12th March, 2010. The same view

has been followed by another learned Single Judge of this Court in Shri Kasturi

Lal Mehra Vs. M/s. Narshi Pharmaceutical & Surgical (P) Ltd.

MANU/DE/0443/2014. We are of the view that, what has been held in the

judgments aforesaid with respect to an agreement to sell is also applicable to an

agreement of grant of lease.

12. The senior counsel, while admitting that no action for specific

performance was taken and that the limitation for taking such an action has

expired, contended that the appellant could not have claimed the relief of

specific performance by way of counter claim before the Estate Officer and for

this reason only, the order of eviction of the appellant under the provisions of

the PP Act is bad. It is in the said context that reliance was placed on Sudhir

Goel (supra).

13. It is evident from the facts as narrated above that the possession of the

appellant of the subject property was unauthorized and the appellant had no

right to continue in possession. No doubt, the respondent LIC appears to have

agreed to accept the appellant as a tenant and to grant lease in favour of the

appellant. The fact however remains that, the respondent LIC inspite of so

agreeing, did not accept the appellant as a tenant and did not grant lease in

favour of the appellant. The appellant could have sued for specific

performance to enforce such an agreement on the respondent LIC, but did not.

The appellant thus remained an unauthorized occupant of the property.

14. We are unable to agree that the Estate Officer had no jurisdiction

owing to the facts aforesaid. One of us (Rajiv Sahai Endlaw, J.) in Ocean

Plastics & Fibres (P) Ltd. Vs. Delhi Development Authority 187 (2012)

DLT 359, on a conspectus of the case law in this respect and particularly

relying on Ashoka Marketing Ltd. (supra) held that a writ petition

impugning the order of determination of perpetual lease is not maintainable

for the reason of it being open to the affected person to impugn such

determination in proceedings under the PP Act. LPA No.415/2012 preferred

thereagainst was dismissed as withdrawn on 28th May, 2012. Another

learned Single Judge of this Court in Ishmali Devi Vs. DDA

MANU/DE/5242/2012 also held that though there is no requirement in the

PP Act that the Estate Officer must be a person well-versed in law but that

by itself cannot be a ground for excluding from the ambit of the said Act,

disputes involving complicated questions of law and fact. We may however

mention that the same learned Single Judge in DCM Limited Vs. Delhi

Development Authority MANU/DE/5127/2012 rejected the plaint in a suit,

filed after the initiation of PP Act proceedings, for the relief of declaration of

ownership, also holding that the said question could be raised before the

Estate Officer. However, the said judgment was set aside in an appeal being

RFA(OS) No.104/2012 decided on 19th March, 2013. The Division Bench

though noticed Ashoka Marketing Ltd. (supra) but held that the dispute and

complicated question in Ashoka Marketing Ltd. was whether the lease has

been determined or not and in that context the Supreme Court had held that

the Estate Officer was competent to adjudicate the same. The Division

Bench further held that the same could not be a precedent where the person

alleged to be in unauthorized possession was setting up a rival title in

himself and had sought the declaration therefor. It was held that such a suit

was maintainable and was not barred by the provisions of the PP Act.

15. As far as Sudhir Goel cited by the senior counsel for the appellant

herein is concerned, "the complicated question of fact" entailed therein and

which was held to be not capable of decision by the Estate Officer was

relating to determination of lease only. The said view can no longer be said

to be good law in view of Ashoka Marketing Ltd. (supra).

16. What follows from the judgment of the Division Bench of this Court

in the appeal against DCM Limited (supra) is that the appellant could have

very well filed the suit for specific performance of the agreement of grant of

lease and which the appellant did not do. However, the same did not come

in the way of the respondent LIC in instituting proceedings under the PP

Act. The appellant having not availed its right, if any, has now missed the

bus and cannot challenge the order of eviction under the PP Act on this

ground.

17. Moreover, we may note that the findings of the Estate Officer have

been upheld by the Appellate Authority i.e. the Additional District Judge as

well as by the learned Single Judge. No ground for interference is made out.

18. We may record that the counsel for the appellant, much after we had

reserved the order, has without any permission also filed copy of the judgment

of the Supreme Court in Delhi Administration Vs. Gurdip Singh Uban 2000

Supp. (2) SCR 496. No reference thereto was made during the hearing. The

counsel for the appellant has also not chosen to mention the matter to inform on

which aspect reliance thereon is placed. We therefore ignore the same.

19. We are constrained to observe that the present appeal demonstrates a sad

state of affairs. The appellant and the respondent both of which are Public

Sector Undertakings have been litigating before this Court and continue to

litigate even after the Prime Minister of the nation recently issued a statement

against continuance of such litigations. Not only so, the continuance of this

appeal for a period of nearly seven years, with neither of the two parties having

been able to reap benefits from the use of the property, is most unfortunate.

20. Resultantly, while dismissing the appeal we impose cost of Rs. 20,000/-

on the appellant, payable to the respondent.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE SEPTEMBER 4, 2014 „M/bs‟