Rajendra Jain vs D.D.A. & Anr
2016 Latest Caselaw 1826 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Date of decision: 8th March, 2016

+                                    RFA No.382/2005

       RAJENDRA JAIN                                             ..... Appellant
                   Through:               Mr. Rajesh Aggarwal, Adv.

                                       Versus

       D.D.A. & ANR                                            ..... Respondents

                           Through:       Mr. Nikhil Bhardwaj, Adv for DDA.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This first appeal under Section 96 of the Code of Civil Procedure, 1908

(CPC) impugns the judgment and decree dated 7th January, 2005 of the Court

of Shri Vimal Kumar Yadav, Additional District Judge, Delhi of dismissal of

Suit No.283/2004 (instituted on 24th February, 1994) filed by the appellant for

the relief (i) of declaration that the cancellation by the respondent/defendant

Delhi Development Authority (DDA) of the lease of plot of land bearing

No.G-2, Kalkaji Shopping Centre, New Delhi is void and of no legal

consequence; and, (ii) of permanent injunction restraining the

respondent/defendant DDA from dispossessing the appellant/plaintiff from the

said property.

2. Before coming to the course chartered by this appeal, it is expedient to

notice the course which the suit from which this appeal arises took.

3. The appellant, in the auction held by the respondent DDA on 30 th July,

1984, was the highest bidder for leasehold rights in respect of commercial Plot

No.G-2, Kalkaji Shopping Centre, New Delhi; plans for raising construction

on the said plot of land were sanctioned by the respondent DDA on 21 st

December, 1984 and a perpetual lease deed executed in favour of the

petitioner on 15th February, 1985. The petitioner, on completion of

construction, was granted Completion Certificate dated 21st November, 1986.

4. The respondent DDA issued a notice dated 3rd May, 1989 to the

appellant to show cause why the perpetual lease should not be determined on

the ground of the appellant having raised unauthorized construction in the

form of 13 stalls / shops in place of one shop hall sanctioned on the ground

floor and having opened two shops unauthorizedly. Though the said show

cause notice was replied to by the appellant but the respondent DDA vide

communication dated 27th July, 1989 informed the appellant of the perpetual

lease having been determined on 18th July, 1989; the appellant was

accordingly directed to hand over possession to the respondent DDA.

5. The appellant preferred Civil Writ Petition No.2240/1989 in this Court

impugning the determination of perpetual lease but which writ petition was

dismissed vide order dated 27th March, 1990. The appellant preferred a

Special Leave Petition (SLP) to the Supreme Court and which was disposed of

vide order dated 25th July, 1990 by directing the respondent DDA to, after

hearing the appellant, pass a fresh order, without being influenced by the

earlier determination.

6. The appellant on 24th February, 1994, as aforesaid, filed the suit from

which this appeal arises pleading, (i) that in accordance with the opportunity

granted by the Supreme Court, the appellant filed a representation dated 3 rd

August, 1990 with respect to the communication dated 27 th July, 1989 of

determination of perpetual lease; (ii) that though the appellant was vide

communication dated 12th September, 1990 of the respondent DDA called for

hearing but when the appellant went therefor, no hearing took place; (iii) that

the appellant vide communication dated 22nd October, 1990 of the respondent

DDA was informed that his representation dated 3 rd August, 1990 had been

rejected; (iv) that the appellant again sought appointment and submitted that

there was no violation of Building Bye-laws and that the determination of

lease was not in accordance with law but did not hear anything further from

the respondent DDA; (v) that another show cause notice dated 8 th April, 1991

referring to the earlier show cause notice dated 12th May, 1989 was received

by the appellant and to which a reply dated 19 th April, 1991 was given by the

appellant; (vi) that though no hearing was given but after about three years a

communication dated 15th February, 1994 was received by the appellant from

the respondent DDA to the effect that the perpetual lease had been determined

by order dated 27th November, 1993 and again calling upon the appellant to

deliver possession; (vii) that in the interregnum proceedings under Section

30(1) and Section 31(A) of the Delhi Development Act, 1957 were also

initiated with respect to the alleged unauthorised construction and an order

dated 6th March, 1991 of demolition / removal of unauthorized construction

was passed; (viii) that the appellant preferred a statutory appeal thereagainst

which was allowed and the matter remanded; (ix) that on remand, again a

demolition order dated 29th January, 1993 was passed and which was again

challenged before the Appellate Tribunal; (x) that during the pendency of the

said appeal, a fresh order dated 5th March, 1993 was passed for sealing of the

property and which was also challenged before the Appellate Tribunal; (xi)

that the Appellate Tribunal vide order dated 26th March, 1993 set aside the

order of sealing and the appeal against the demolition order was pending

consideration at the time of institution of the suit.

7. It was the contention of the appellant in the suit from which this appeal

arises:

(a) that the ground of determination of lease also being unauthorised

construction and with respect to the order of demolition of which appeal

was pending before the Appellate Tribunal, the determination of

perpetual lease could not have been effected;

(b) that the appellant vide communication dated 15th February, 1994

had only been informed of the order dated 27 th December, 1993 of

determination of lease but the said order was never served on the

appellant;

(c) that the determination of lease was not in accordance with the

procedure required to be followed for effecting the same;

(d) that the lease could have been determined only by the President

of India and the Lt. Governor of Delhi who had purported to determine

the lease was not authorised to do so;

(e) that the appellant had not been given proper opportunity of being

heard;

(f) that the determination of perpetual lease is without application of

mind;

(g) that the determination of the lease was also in violation of the

order dated 25th July, 1990 supra of the Supreme Court;

(h) that there were no violations of Building Bye-laws;

(i) that even if there were any violation of Building Bye-laws, the

remedy thereagainst was of removal of unauthorised construction and

not of determination of lease;

(j) that the action of determination of lease could be taken only as a

last resort;

(k) that the appellant has always been ready and willing to remove

the unauthorised construction in the property.

8. The respondent DDA contested the suit by filing a written statement

pleading:

(I) that the appellant after obtaining Completion Certificate had

altered the building and unauthorisedly raised shops in the basement,

first and second floors and also constructed one room on the terrace

floor;

(II) that as per the terms and conditions of auction, the use of the

basement is restricted to storage, plant, machinery and maximum of

10% of the basement area was allowed to be utilised for strong room

and locker room for having a bank in the building and the ground floor

should be used exclusively for retail shops and the first and second

floors for office and commercial purposes;

(III) that the appellant had also removed the facility area such as

staircase, toilet block and erected number of partitions which did not

conform to the Building Bye-laws;

(IV) that the show cause notices dated 3rd May, 1989 and 12th May,

1989 were issued, after inspection of the building on 28 th March, 1989

and the reply filed by the appellant was not found satisfactory;

(V) accordingly, Hon‟ble the Lt. Governor of Delhi vide order dated

18th July, 1989 determined the lease and communication whereof was

given to the appellant on 28th July, 1989;

(VI) that opportunity was given to the appellant in accordance with the

order of the Supreme Court and the representation made by the

appellant was considered and rejected vide letter dated 22nd October,

1990 and final notice dated 8th April, 1991 issued to the appellant;

(VII) that no permission for partition of the basement had been

obtained and the same is contrary to the Building Bye-laws;

(VIII) that as per Building Bye-law 14.12.2(viii), the basement shall not

be partitioned and in case partition in basement are allowed, no

compartment is to be less than 500 sq. ft. in area and each compartment

shall have ventilation standards and conform to the norms laid down by

the Chief Fire Officer, Delhi;

(IX) that the appellant has constructed 14, 31, 16 and 22 cubicles in

the basement, ground, first and second floors without approval;

(X) that complaints were also received from "Tulsi Tower Users

Association, G-2, Shopping Complex, Kalkaji" regarding deviations in

the building, unauthorised construction of shops in the basement,

coverage of passage etc.;

(XI) that the order of determination of lease was passed upon the

failure of the appellant to remove the unauthorised construction inspite

of repeated opportunities;

(XII) denying that determination of lease was not in accordance with

the law or without following the principles of natural justice.

9. Though a replication is found to have been filed by the appellant but

the need to refer thereto is not felt.

10. On the pleadings of the parties, the following issues were framed in

the suit:

"1. Whether the suit is liable to be dismissed for want of notice under Section 53-(B) of Delhi Development Act? OPD

2. Whether the suit is properly valued for the purposes of court fee and jurisdiction?

3. Whether the defendants have ever communicated the order dated December 27, 1993 to the plaintiff? OPD

4. Whether in the facts and circumstances of the case the defendants could terminate the lease dated February 15, 1985? OPD

5. Whether the defendants can take possession of the premises as alleged in notice dated February 15, 1994? OPD

6. Whether the defendants can take any action against the plaintiff under Public Premises (Eviction of Unauthorised Occupants) Act, 1971? OPD

7. Whether the plaintiff is entitled to declaration, injunction and mandatory injunction as prayed for? OPD

8. Relief."

11. The appellant examined himself in evidence and the respondent DDA

examined two of its officers in evidence.

12. The learned Additional District Judge (ADJ) vide the impugned

judgment:

(A) has decided Issue Nos.1&2 supra in favour of the appellant and

against the respondent DDA;

(B) with respect to Issue No.3 has held that the order dated 27th

December, 1993 of determination of lease was not communicated to

the appellant but the factum thereof was communicated to the

appellant vide letter dated 15th February, 1994;

       (C)    has dealt with Issues No.4 to 6 together.


       (D)    has held that the respondent DDA had proved violation of

Building Bye-laws by the appellant of constructing 14 cubicles in the

basement, 31 cubicles on the ground floor, 16 cubicles on the first

floor and 22 cubicles on the second floor;

(E) has held that the appellant had admitted to the said deviations by

stating that he was willing to remove the same or to have the same

compounded;

(F) has held that once it was established that the appellant had carried

out illegal development / construction in the property leased out by the

respondent DDA, the respondent DDA as per the terms of the perpetual

lease was entitled to determine the lease;

(G) has held that the Lt. Governor of Delhi was authorised to

determine the lease;

(H) has held that sufficient opportunity of hearing had been afforded

to the appellant;

(I) has held that the respondent DDA was left with no option but to

determine the lease;

(J) has held that determination of lease was within the rights of the

respondent DDA and upon such determination, the respondent DDA

had a right to recover possession of the property;

(K) has held that on determination of lease, the property would be

public premises within the meaning of Public Premises (Eviction of

Unauthorised Occupants) Act, 1971 (PP Act);

(L) accordingly, has decided Issues No.4 to 6 against the appellant

and in favour of the respondent DDA;

(M) held that the appellant was thus not entitled to the relief of

declaration and injunction.

13. This Court in appeal, while issuing notice thereof on 30th May, 2005

directed the appellant to remove all unauthorised constructions, additions and

alterations carried out in violation of the sanctioned building plan and ordered

a joint inspection; subject thereto the respondent DDA was restrained from re-

entering into the property.

14. The order dated 17th August, 2006 in the appeal notices that the

appellant avoided the joint inspection ordered and ultimately when the

inspection was carried out on 27th June, 2005, extensive unauthorised

constructions, additions and alterations were found in the property. However,

on the asking of the appellant, another joint inspection on 9 th September, 2006

was ordered.

15. Objections were filed to the report of such joint inspection and the order

dated 27th November, 2006 in this appeal, owing to the controversy persisting

as to whether the appellant had removed the unauthorised construction or not,

directed another inspection.

16. CM No.14806/2006 was filed in this appeal by Tulsi Tower Alaknanda

Traders Welfare Association claiming to be an association of purchasers from

the appellant of different shops in the building on the subject land and seeking

impleadment in the appeal.

17. The order dated 24th September, 2007 in the appeal records the

statement of the Advocate for the said Association that the applicant

Association shall remove the partitions from the basement and inspection to

verify the same be carried out.

18. The appeal on 16th July, 2008 was admitted for hearing and ordered to

be taken up for hearing as per turn. It was further ordered that the application

of the Association aforesaid for impleadment would also be taken up at the

time of hearing of the appeal.

19. The appeal though thereafter was listed from time to time for hearing

but adjourned on request of either of the counsels.

20. The appeal on 12th October, 2009 was dismissed in default of

appearance of the parties. However, on application of the appellant, the same

was on 9th February, 2010 restored.

21. The order dated 1st December, 2014 records that the Director (CL) of

the respondent DDA had indicated that encroachment on the ground floor and

terrace except one antenna had been removed and the basement was also lying

vacant and used for storage purpose but still certain partitions were existing at

the time of inspection. Again, inspection was ordered.

22. The appeal was taken up for hearing on 14 th July, 2015, when though

the counsel for the appellant and the counsel for the respondent DDA

appeared (none appeared for the applicant Association) but were not ready

with the arguments. Finding that the appeal was already ten years old,

judgment was reserved giving opportunity to the counsels to file written

submissions.

23. Written submissions have been filed by the counsel for the appellant

and the counsel for the respondent DDA. While the appellant in the written

submissions, besides reiterating the pleadings has contended that the action of

determination of lease on the ground of unauthorised construction is contrary

to the principle of proportionality and has relied on Teri Oat Estate Pvt. Ltd.

Vs. U.T. Chandigarh (2004) 2 SCC 130 and Devinder Singh Pannu Vs.

Chandigarh Administration (2004) 2 SCC 149 in this regard, the counsel for

the respondent DDA besides a summary of the pleadings of the Trail Court

has referred to the inspections carried out during the pendency of this appeal

on 9th September, 2006, 9th December, 2006 and 6th July, 20015 and contends

that during the last inspection on 6th July, 2015, the basement was found to be

still in use for commercial activities i.e. small offices, a mobile repair shop

and a leather bag shop and unauthorised construction in the form of

partitioning of basement and creation of small cubicles therein was still found.

24. I have perused the Trial Court record and considered the controversy.

25. The perpetual lease of the land aforesaid proved as Ex-DW2/2 on the

Trial Court record is found to contain covenants:

(i) requiring the appellant as lessee to within one year, after

obtaining sanction to the building plan, with necessary designs, plans

and specifications from the proper municipal or other authority, at his

own expenses, erect upon the commercial plot and complete in a

substantial and workmanlike manner a commercial building strictly

based on the architectural control drawing in respect of the said plot

available with the office of the DDA and in accordance with the

sanctioned building plan to the satisfaction of the municipal or other

authorities;

(ii) enabling the appellant to with the previous consent in writing of

the DDA sell or transfer floor space constructed on the plot and vesting

the discretion in the DDA to allow the same on payment of Rs.100/- for

each sale or transfer and subject to such other terms and conditions as

may be imposed by the DDA and further entitling the DDA to in its

discretion allow further sale or transfer after obtaining 50% unearned

increase on the proportionate land / floor space;

(iii) making the appellant as lessee liable for violation of terms and

conditions of the lease, notwithstanding having been permitted to sell

the floor space;

(iv) binding the appellant as lessee to in all respects comply with and

be bound by the building, drainage and other bye laws of the proper

municipal or other authorities;

(v) prohibiting the appellant as lessee from, without sanction or

permission in writing of the proper municipal or other authority,

erecting any building or making any alteration or addition to the

building on the subject plot of land;

(vi) prohibiting the appellant as lessee from, without the written

consent of the respondent DDA using the plot or permitting the same to

be used for any purpose other than that of office for business purposes

only;

(vii) entitling the respondent DDA to allow the appellant as lessee

from using the building on the said plot for purposes other than shops or

offices on such conditions as the respondent DDA may deem proper;

(viii) Clauses III, IV, VI, VII, VIII, XI and XII are as under:

"III. if the sum or sums payable towards the premium or the yearly rent hereby reserved or any part thereof shall at any time be in arrears & unpaid for one calendar month next after any of the days whereon the same shall have become due, whether the same shall have been demanded or not, or if it is discovered that this Lease has been obtained by suppression of any fact or mis- statement, mis-representation or fraud or if there shall have been, in the opinion of the Lessor, whose decision shall be final any breach by the Lessee or by any person claiming through or under him of any of the covenants or conditions contained herein and on his part to be observed, or performed, then and in any such case, it shall be lawful for the Lessor, notwithstanding the waiver of any previous cause or right of re-entry upon the Commercial plot hereby demised and the buildings thereon, to re-enter upon and take possession of the Commercial plot and the buildings and fixtures thereon and thereupon this Lease and every thing herein contained shall cease and determine and the Lessee shall not be entitled to any compensation whatsoever nor to the return of any premium paid by him.

Provided that, notwithstanding anything contained herein to the contrary the Lessor may without prejudice to his right of re-entry as aforesaid, and in his absolute discretion, vaive or condone breaches, temporarily or otherwise, on receipt of such amount and on such terms and conditions as may be determined by him and may also accept the payment of the rent which shall be in

arrear as aforesaid together with interest at the rate of ten percent per annum or as decided by the Lessor. IV. No forfeiture or re-entry shall be effected until the Lessor has served on the Lessee a notice in writing:

                       (a)     Specifying     the   particular   breach
                             complained of; and

(b) if the breach is capable of remedy requiring Lessee to remedy requiring Lessee to remedy the breach.

and the Lessee fails within such reasonable time as may be mentioned in the notice to remedy the breach, if it is capable of remedy; and in the event of forfeiture or re- entry, the Lessor may, in this direction, relieve against forfeiture on such terms and conditions as he thinks proper.

Nothing in this clause shall apply to forfeiture or re- entry:

(a) for breach of covenants and conditions relating to sub-division or amalgamation, erection and completion of building within the time provided and transfer of the commercial plot as mentioned in clause II or

(b) in case this Lease has been obtained by suppression of any fact, mis-statement, mis- representation or fraud.

......

VI. In the event of any question, dispute or difference, arising under these presents, or in connection therewith (except as to any matters the decision of which is specially provided by these presents), the same shall be referred to the sole arbitration of the Lieutenant Governor or any other person appointed by him. It will be of no-objection that the arbitrator is a Government servant and that he has to deal with the matters to which the Lease relates or that in the course of his duties as a Government servant he has expressed views on all or any

of the matters in dispute or difference. The award of the arbitrator shall be final and binding on the parties.

The arbitrator may, with the consent of the parties, enlarge the time, from time to time, for making and publishing the award.

Subject as aforesaid, the Arbitration Act, 1940, and the Rules thereunder and any modifications thereof for the time being in force shall be deemed to apply to the arbitration proceedings under this clause. VII. All notices, orders, directions, consents, or approvals to be given under this lease shall be in writing and shall be signed by such officer as may be authorised by the Lieutenant Governor and shall be considered as duly served upon the Lessee or any person claiming any right to the commercial plot, if the same shall have been affixed to any building or erection whether temporary or otherwise upon the commercial plot or shall have been delivered at or sent by post to the then residence, office or place of business or usual or last known residence, office or place of business of the Lessee or such person. VIII. (a) All powers exercisable by the Lessor under this Lease may be exercised by the Lieutenant Governor. The Lessor may also authorise any other officer or officers to exercise all or any of the powers exercisable by him under this Lease.

(b) The Lieutenant Governor may authorise any officer or officers to exercise all or any of the powers which he is empowered to exercise under this lease except the powers of the Lessor exercisable by him by virtue of sub-clause

(a) above.

.....

XI. This lease is granted under the Governments Grants Act, 1895 (Act XV of 1895).

XII. The provisions of the Delhi Development Authority (Disposal of Developed Nazul Land) Rules, 1981, shall,

mutatis mutandis also apply in respect of matters not herein expressly provided for."

(emphasis added)

26. It thus follows that as per the perpetual lease deed, which is a

government grant which, as per the law applicable thereto has to be

constrained strictly as per its own terms, the appellant as lessee was required

to raise construction on the land in accordance with the sanctioned building

plan and to from time to time comply with the building bye-laws and

prohibited from making any addition / alteration and that the respondent DDA

as lessor upon non compliance by the appellant was / is entitled to determine

the lease after issuing a notice to the appellant and upon the appellant failing

to remove the unauthorized construction.

27. It is not in dispute that the respondent DDA being of the view that the

appellant had carried out / permitted to be carried out unauthorized

construction, contrary to the sanctioned building plan, issued notice to the

appellant. As would be obvious from the narrative aforesaid and as has been

factually found by the learned ADJ on the evidence led and which conclusion

I find on a re-appreciation of the evidence to have been rightly reached and as

is also evident from the inspections got carried out during the pendency of the

appeal before this Court, the appellant notwithstanding the notice failed to

remove the unauthorized construction and which persists till date. There is

thus no room for doubt that the respondent DDA has/had a power to determine

the lease upon deviations from sanctioned building plan being made and that

such deviations have been made. It thus cannot be said that the said power has

been exercised in violation of the terms of the perpetual lease. The appellant

has been given abundant opportunity. The lease was cancelled way back on

18th July, 1989 and the challenge by the appellant thereto by way of filing a

writ petition failed. However, Supreme Court without going into the merits

granted another opportunity of hearing to the appellant. Though lease was

again determined on 27th December, 1993 and more than 20 years has lapsed

but the respondent DDA has been unable to repossess the property owing to

the appellant having kept the respondent DDA embroiled in litigation.

Needless to state that in the interregnum the appellant has continued to benefit

from the unauthorized construction in the form of creation of slum like

conditions inside the building by dividing the sanctioned spaces into small

cubicles to earn maximum amount therefrom and has continued to profiteer.

28. Though the appellant at the time of institution of the suit on 24 th

February, 1994 from which this appeal arises had stated that an appeal against

the order of demolition was pending in the Appellate Tribunal but at the time

of filing his affidavit by way of examination-in-chief on 20th November, 2002

i.e. after about eight years also maintained the same stand. It is thus obvious

that the power of demolition exercised by the respondent DDA under

provisions of the law have also not met with any success. The counsel for the

appellant in his written submissions also has not disclosed the outcome of the

appeal. Even otherwise, once the government grant as per its terms entitled

the grantor i.e. the DDA to, upon unauthorised construction being carried out

and failure to remove the same, determine the lease, such determination

cannot be found fault with and term of government grant negated by

contending that instead, action for demolition / removal of unauthorised

construction should be taken. The powers of removal / demolition of

unauthorised construction and of determination of lease are independent of

each other and one cannot defeat the other. It is not the case of appellant that

the construction has been held to be not unauthorised by the Appellate

Tribunal.

29. As far as the argument of the appellant of proportionality is concerned,

the same in my view would have no applicability to a government grant which

has to be construed strictly as per its terms and to which the provisions of

Transfer of Property Act, 1881 also do not apply.

30. Moreover, from the application for impleadment of Association of

Occupiers it appears that the appellant is today not even left with any right,

title or interest in any part of the building constructed over the said land,

having sold different portions thereof. For this reason also, the appellant is not

found entitled to the relief.

31. There is thus no merit in the appeal and the same is liable to be

dismissed.

32. As far as the application for impleadment by the Association is

concerned, not only has the same not been pursued but it is not the case that

any of the occupiers / purchasers have acquired rights by complying with the

terms of the lease in this regard. They even otherwise cannot have any better

rights than the appellant.

33. The appeal is accordingly dismissed with costs of Rs.15,000/- to the

respondent DDA.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

MARCH 08, 2016 „pp/bs/gsr‟..