Dda vs Bhairon Ji Mandir Samiti
2016 Latest Caselaw 1287 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

+            R.S.A. No.95/2009 & C.M. Nos.10320/2009, 8011/2015

                                          Decided on : 18th February, 2016

DDA                                                      ...... Appellant
                        Through:       Mr. Ajay Verma, Senior standing
                                       counsel with Ms. Kirti Parmar, Advocate.

                              Versus

BHAIRON JI MANDIR SAMITI                ...... Respondent
             Through: Ms. Kirti Kumar, proxy counsel.

                                        WITH

+            R.S.A. No.96/2009 & C.M. Nos.10325/2009, 8012/2015

DDA                                                      ...... Appellant
                        Through:       Mr. Ajay Verma, Senior standing
                                       counsel with Ms. Kirti Parmar, Advocate.

                              Versus

HARI CHAND PRAKASH WANTI CHARITABLE MEMORIAL
TRUST                                   ...... Respondent
             Through: Ms. Kirti Kumar, proxy counsel

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. The learned proxy counsel for the respondent has prayed for an adjournment. The request is disallowed in view of the fact that these appeals have been pending before this court since 2009. The Apex Court

in catena of cases has observed that while admitting the regular second appeal, even though, the appellant may not frame the substantial question of law but it is the responsibility of the court to formulate substantial question of law and then only proceed ahead with the matter. Reliance can be placed on Umer Khan vs. Bismillabi; (2011) 9 SCC 684 and Ashok Rangnath Nagar vs. Shrikanth Govindrao Sangvikar; 2015 (6) ABR. 490 wherein it was laid down that existence of substantial question of law is sine qua non for exercise of jurisdiction under Section 100 CPC.

2. Accordingly as early as on 10.3.2015, that is, almost a year ago, the following substantial question of law was formulated :-

"Whether the judgment of the first appellate court affirming the judgment of the civil court suffers from perversity in the light of the statutory bar with regard to he competence of the court and if so, to what effect?"

3. Relevance of the aforesaid question would be appreciated only if the brief background of the case is given. Both the appeals are filed by the appellant/DDA against the judgment dated 16.10.2008 passed by the learned Additional District Judge. It is not in dispute that Shri Bhairon Ji Mandir Samiti (Regd.) and Hari Chand Prakash Wanti Charitable Memorial Trust (Regd.) were given two different parcels of land. The first parcel of land is Plot No.1, East Patel Nagar, Institutional Area (near Kalindi College), New Delhi measuring about 600 square meters while as the second is 0.452 acres on property No.2, Siri Fort Institutional Area, New Delhi. In the first parcel of land, a statue of diety has been installed on the ground floor as has been noted in the record and on the first floor

there are allegations made by the appellant that the respondent is running a full-fledged hotel consisting about 35 air-conditioned rooms. So far as the other parcel of land is concerned, an idol of Sai Baba has been installed. Further, in the second parcel of land, a portion of the ground floor has been let out to IDBI Bank and on the first floor a banquet hall is being let out for marriage purposes. And the remaining part is being used as a hotel with 49 air conditioned rooms.

4. The respondents have disputed the commercial user of both these places and have claimed that the same are being used for dharamshala and other charitable purposes without any commercial consideration. As against this, the DDA had issued show cause notice to the respondents for violation of various terms and conditions of the perpetual lease on the basis of which these parcels of land were allotted on concessional rate and were allegedly being used for commercial purposes. Since the user was for the purpose other than the one for which it was leased, the officials of the DDA had conducted an inspection and on the basis of the same, notice came to be issued. The reply of the respondent having been found unsatisfactory, their leases were cancelled in respect of both these parcels of land and eviction of the respondents from both parcels of land was ordered by the Estate Officer appointed under Section 3 of the Public Premises (Eviction of Unauthorized Occupant) Act, 1971 (hereinafter referred to as 'the Act'). Admittedly, the respondents had filed reply before the Estate Officer and it was after a contest that eviction order was passed in respect of both these parcels of land against the respondent. It is not in dispute that so far as both these matters are concerned, the eviction

orders were challenged by the respondents under Section 9 of the Act by way of a statutory appeal before the concerned District Judge in which they were unsuccessful. The respondents also filed writ petitions bearing Nos.134/2004 and 7016/2003 in which the order of the learned ADJ upholding the order of eviction dated 25.7.2003 was set aside. Curiously enough, the respondent at the time of filing an appeal against the order of eviction under the Public Premises Act passed by the Estate Officer had also chosen to file two separate suits in both these matters bearing Nos.1135/06/98 and 1146/06/98 seeking declaration and mandatory injunction against the DDA stating that the action of the DDA be declared null and void and they be declared to be the owners of the property and the DDA be also restrained permanently from taking any precipitative action of terminating their leases or take over forcible possession of the leased properties, etc. These suits were decided in favour of the respondents by the learned Single Judge on 8.3.2007 despite the written statement having been filed by the DDA and in which a specific objection was taken that the jurisdiction of the civil court was barred under Section 10 read with Section 15 of the Act. This legal objection of the present appellant was not considered by the civil court.

5. On having suffered an adverse order at the level of the civil judge, the DDA preferred the first appeal bearing RCA Nos.12/2007 and 15/2007 which came to be listed before Ms. Kamini Lau, ADJ, who dismissed the appeals vide impugned order dated 16.10.2008. The reasoning which has been given by the learned ADJ is that in case titled Hari Prakash Educational and Welfare Society vs. DDA & Anr.; 152 (2008) DLT 84, the

action of eviction and the consequent action of taking possession on the part of the DDA was set aside by the Division Bench in a writ jurisdiction on account of the fact that mere misuser could not result in cancellation of lease. It was also observed by the Division Bench that as breach which was alleged to be committed by the petitioner in the said case was condonable, therefore, without giving an opportunity to rectify the breach, the DDA could not take an action of cancellation of lease. Moreover, the Division Bench also observed that before issuing a notice, the DDA ought to have carried out another inspection.

6. It has been contended by Mr. Verma, the learned senior standing counsel on behalf of the DDA that reliance on the said case was totally inappropriate inasmuch as the facts of the two cases were totally different. In the case relied upon by the learned ADJ, the action of the DDA taken against the petitioner was challenged under the Act through the prescribed procedure, that is, an eviction order was passed by the Estate Officer and appeal was preferred which was decided against the petitioner and then the matter came before the Division Bench of the High Court on the writ side as against a case where there has been gross abuse of processes of law inasmuch as, in the instant case, where respondents have chosen two remedies, that is, not only a remedy available to them under Section 9 of the Act which they lost and preferred a writ petition which was also lost and yet a suit was filed individually in both the cases where a decree was passed in their favour. In these cases reply was not considered. Both the remedies as in other two cases were also considered. The point of

jurisdiction was taken in the first appeal before the High Court. Section 9 of the Act reads as under :-

"9. Appeals.--

(1) An appeal shall lie from every order of the estate officer made in respect of any public premises under [section 5 or section 5B] [or section 5C]] or section 7 to an appellate officer who shall be the district judge of the district in which the public premises are situate or such other judicial officer in that district of not less than ten years' standing as the district judge may designate in this behalf.

(2) An appeal under sub-section (1) shall be preferred,--

(a) in the case of an appeal from an order under section

5. [within twelve days] from the date of publication of the order under sub-section (1) of that section"

7. In the light of the aforesaid facts, substantial question of law which arises and which has been framed by this court hereinabove is essentially pertaining to the perversity of the judgment passed by the trial court on 16.10.2008 and upholding of the same by the learned ADJ on account of the statutory bar on jurisdiction of the Civil Court confirmed by Section 15 of the Act.

8. So far as the respondents are concerned, the learned proxy counsel has prayed for an adjournment, which request has been declined on account of the fact that question of law was framed almost a year back and number of adjournments have already been granted to the respondent to address the court on the aforesaid question. The appeals are also pending since 2009.

9. A perusal of Section 9 of the Public Premises (Eviction of Unauthorized Occupant) Act clearly shows that when an eviction order is passed against a party by the Estate Officer, the only remedy which is available to such a party is to file a statutory appeal provided under Section 9 of the Act which admittedly, in the instant case, was availed of by the respondent herein. Simultaneously, Section 15 of the Act specifically lays down that the jurisdiction of the civil court to entertain any matter pertaining to Act is barred. A conjoint reading of both these provisions will clearly show that the legislature was very clear in its intention of barring the jurisdiction of the civil court and making the order passed by the Estate Officer assailable only before the learned District Judge. Therefore, at the threshold itself, the learned Civil Judge ought not to have entertained the suit wherein a declaration was sought that the lease was wrongly terminated by the appellant. Even if it had been entertained and an order which was not sustainable in the eyes of law was passed at least the first appellate court should have taken into cognizance the statutory provision as well as the objection of the DDA and dealt with the same but the learned ADJ not only has ignored this point which is stated to have been urged before it but has also tried to rely on a judgment of the Apex Court in Express Newspapers Pvt. Ltd. vs. Union of India; AIR 1986 SC 872. The proposition of law which was involved in Express Newspaper's case (supra) was totally different than the one which was involved in the case in hand. In the said case, the lease of the Express Newspaper was terminated on account of unauthorized construction of basement. The question which arose was as to how the possession is to be

taken from the lessee. The DDA wanted to resort to the provisions under the Public Premises Act. It was in that background that the Apex Court had observed that the processes of law have to be followed and a civil suit for recovery ought to have been filed. While as in the instant case, so far as the possession is concerned, that was not sought to be taken and it was only in the first instance an eviction order which was passed against the respondent. Therefore, the factual matrix of the reported judgment and the case in hand was nowhere akin to each other. The Supreme Court in number of cases has held that while applying the principles of law to a case, the court must also correlate the facts of the two cases.

10. Similarly, the learned ADJ had fallen into an error by misplaced reliance on Ashok Marketing Limited vs. Punjab National Bank; AIR 1991 SC 855. The question which had arisen in Ashok Marketing's case (supra) was that various provisions of the Act were challenged in comparison to the provisions of rent legislation as being discriminatory. It was in this background that the Apex Court had observed that a person under Section 2 (e) of the Public Premises Act cannot claim protection of the Rent Control Act and can be evicted by following summary procedure prescribed under the Act. Similarly is the position with regard to the other judgments which have been sought to be relied by the learned ADJ dismissing the appeal of the appellant and upholding the order passed by the learned Civil Judge. I feel that both the judgments passed by the learned Civil Judge as well as the learned ADJ are against the provisions of law as enunciated under Section 15 of the Act which prohibits the jurisdiction of the civil court and therefore, cannot be sustained under law.

11. I, accordingly, set aside the judgment passed by the learned Civil Judge which has been upheld by the ADJ. However, the licensor, that is, the appellant shall take note of the fact that under Clause (iv) of the License Deed, it has been specifically laid down that the lease of a lessee need not be cancelled if the breach which is alleged against the licensee is of such a nature which is condonable. In the instant case, the breaches which are alleged against the respondents are of condonable nature inasmuch as the parcels of land have been allotted to the respondents for certain specified activities and in case, the respondents want to rectify the breaches then it will have to approach the appellant/DDA within four weeks for seeking such time as may be considered by them to be reasonable for rectifying the breaches. In case, such an application is made by the respondents, the same shall be dealt with by the appellant in accordance with law within two months of filing such an application.

12. With these directions, the regular second appeals are treated as

disposed of.

V.K. SHALI, J.

FEBRUARY 18, 2016 'AA'