Uoi & Anr vs Mohinder Pratap Soni & Ors
2016 Latest Caselaw 3232 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                              Date of decision: 4th May, 2016
+                                   CM(M) No.635/2008
       UOI & ANR.                                             ..... Petitioner
                             Through:        Mr. Anil Soni, CGSC

                                          Versus

       MOHINDER PRATAP SONI & ORS.             ..... Respondents

Through: Mr. Shekhar, Adv. for LR of R-1 along with Rajender Pratap Soni, LR of R-1.

                           AND
+                        CM(M) No. 636/2008
       UOI & NAR                               ..... Petitioner
                   Through: Mr. Anil Soni, CGSC
                           Versus
    RANA PRATAP SONI & ORS.                ..... Respondents
                  Through: Mr. M.M. Kumar, Adv.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. These petitions, both under Article 227 of the Constitution of India,

impugn the common order dated 14th February, 2007 of the Court of

Additional District Judge (ADJ), Delhi exercising jurisdiction as an

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

Unauthorised Occupants) Act, 1971 (PP Act) allowing PPA No.188/2005

and PPA No.189/2005, filed by the respondent in CM(M) No.635/2008 and

CM (M) No.636/2008 respectively, thereby setting aside the order dated 3rd

October, 2005 of the Estate Officer of the petitioner Land & Development

Officer (L&DO) of eviction of the respondent in both the petitions from the

premises measuring 3255 sq. ft. situated at Plot No.1, Block No.124, known

as 12 Partap Singh Building, Janpath Lane, Janpath, New Delhi.

2. Notice of both the petitions was issued and vide orders dated 8 th April,

2009, the petitions admitted for hearing. The petitions are being listed

together since entail the same facts and emanate from the common order of

the Estate Officer and of the ADJ. The respondent in both petitions died

during the pendency of the petitions and their legal heirs were substituted.

On 28th August, 2015, when the petitions came up before this Court, the

counsels stated that they were not ready to address arguments and as such

the petitions were adjourned to 29th October, 2015 and the petitioner L&DO

was directed to produce the record of the Estate Officer before this Court.

On 29th October, 2015 the counsel for the petitioner L&DO was heard;

however the counsels for both the respondents again expressed inability to

argue and sought adjournment. Finding the conduct of the respondents to be

dilatory and vexatious orders were reserved in the petitions and liberty given

to the counsels for the respondents to file written arguments. The petitioner

having not produced the record of the Estate Officer, fresh directions for

production thereof were issued. The counsels for respondents in both the

petitions have filed their written arguments. The counsel for the petitioner

L&DO has also produced the record of the Estate Officer. I have perused

the records and considered the contentions of the counsel for the petitioner

L&DO and the written arguments of the counsels for the respondent in both

the petitions.

3. As per the order dated 3rd October, 2005 of the Estate Officer,

(i) Plot No.1, Block No.124 known as 12 Janpath Lane, New Delhi

was leased out to Sh. Rana Partap and Sh. Mohinder Partap i.e.

the respondent in each of the petitions;

(ii) the premises were inspected on 12th May, 1971 and 30th July,

1971 when breach of the terms and conditions of the perpetual

lease of the land in the form of misuse of whole of the ground

floor as a lodging place for hippies on commercial basis and

unauthorized construction of a pucca kitchen measuring about 9

ft.-¾‟ x 10 ft.-½‟ and unauthorized pucca bathroom constructed

in the back open courtyard measuring 5ft. x 6ft.-3‟ were found;

(iii) the breaches aforesaid were in violation of Clauses (v) and (vi)

of the lease deed;

(iv) a breach notice was issued on 7th July, 1972;

(v) the respondent in each of the petitions requested for charges

recoverable in respect of the breaches;

(vi) the charges were conveyed to the respondent in each of the

petitions on 5th March, 1973;

(vii) the respondent in each of the petitions requested to allow to

make payment in installments;

(viii) the respondent in each of the petitions failed to get the breaches

removed / regularized;

(ix) the premises were re-entered upon by the petitioner L&DO on

14th November, 1973;

(x) upon the request of the respondent in each of the petitions, the

petitioner L&DO on 25th April, 1974 intimated fresh terms of

compromise;

(xi) however the respondent in each of the petitions failed to

comply with the terms of the compromise;

(xii) the petitioner L&DO approached the Estate Officer under the

PP Act and the Estate Officer initiated the proceedings after

issue of show cause notice dated 21st July, 1975 under Section

4(1) of the PP Act;

(xiii) the respondent in CM(M) No.635/2008 vide his letter dated 6 th

October, 1975 again asked the petitioner L&DO to re-calculate

the charges payable and vide letter dated 29 th October, 1990

intimated that he had closed the business of guest house and

requested for easy installment for payment;

(xiv) the respondent in CM(M) No.636/2008 filed a detailed written

objection dated 9th August, 1991 a) denying having raised any

construction or having misused any portion of the property and

hence being not liable for payment of any charges; b)

contending that the misuse as well as unauthorized construction

was with respect to the ground floor only which was in

exclusive possession of the respondent in CM(M) No.635/2008

and who had also stopped the misuse after the letter dated 18 th

January, 1975; c) relying on the judgment of this Court in

Savitri Devi Amar Vs. A.M. Bose 1972 RCJ 815 to contend

that residential use includes hostels and boarding houses;

(xv) the respondent in CM (M) No.636/2008 also filed a reply dated

25th May, 2000 pleading that he had filed original suit

No.761/1993 titled Rana Partap Soni Vs. Mohinder Partap

Soni in this Court and in which suit the Ministry of Urban

Development and L&DO i.e. the petitioner herein were also

impleaded as defendants no.2&3 and in pursuance to the

interim order dated 18th October, 1995 in the said suit, he had

submitted bank guarantee in the sum of Rs.50,000/-;

(xvi) the Estate Officer vide order dated 1st September, 2003

enquired from the parties the status of the suit aforesaid before

this Court and whether the factum of pendency of proceedings

under the PP Act has been disclosed in the said suit;

(xvii) the aforesaid direction was reiterated by the Estate Office vide

order dated 23rd December, 2003;

(xviii) the Estate Officer on 29th March, 2004 was informed that the

suit aforesaid filed in the High Court had been transferred to the

lower Court but status thereof was not disclosed;

(xix) it was also the contention of the respondent in CM (M)

No.635/2008 that the area of the guest house was less than 500

sq. ft. and the breach of the lease condition was thus

condonable and clarification in this regard was sought from the

petitioner L&DO;

(xx) the petitioner L&DO on the next date clarified that the

condonation of breach was applicable only in the case of State

Guest House and there was no case pending in the Court;

(xxi) though the respondent in each of the petitions was given an

opportunity to file additional submissions if any but both stated

that no further submissions were required to be made;

(xxii) it was thus on record that the respondents admitted having

committed breaches and were very much prepared to pay the

charges; the respondents however thereafter changed their mind

and started challenging the breaches on account of misuse etc.;

(xxiii) the respondents had also not got regularized the unauthorized

construction / misuse nor paid the damages on account thereof;

(xxiv) thus the logical conclusion was that the respondents had

violated the terms of the lease deed and having failed to remedy

the same had become liable to be evicted under the provisions

of the PP Act; and,

(xxv) accordingly the respondents and all other occupants were

ordered to be evicted from the said premises.

4. Though there was one proceeding against the respondent in each of

the petitions before the Estate Officer but the respondent in each of the

petitions preferred separate appeal as aforesaid against the order of eviction

of the Estate Officer and which appeals were allowed as aforesaid by the

learned ADJ with a common order, finding/observing/holding:

(a) that the Secretary of State for India in Council had leased out a

plot measuring 0.81 mtrs. in favour of one Sh. Lakhbir Singh

on perpetual basis vide perpetual lease deed dated 13 th May,

1922;

(b) that on the death of Sh. Lakhbir Singh his widow Smt. Jamna

Devi and his son Sardar Mehraj Singh transferred the right, title

and interest in the said land to Sardar Partap Singh vide sale

deed registered on 28th September, 1930;

(c) that the said Partap Singh constructed a superstructure on the

plot of land;

(d) that one of the superstructure bearing Municipal Nos.6210-1

and 8393-12 known as flat No.1 and flat No.12, Pratap Singh

Mansion, Queensway Lane was sold to one Sh. Shiv Nath vide

sale deed dated 25th May, 1937;

(e) that thereafter the said flats No.1 and 12 changed number of

hands and were lastly purchased by the respondent in each of

the petitions vide sale deed dated 28th October, 1957;

(f) that the property comprising of flat No.1 on the ground floor

and flat No.12 above it along with leasehold rights in the land

underneath the flat No.1 was mutated in the joint names of the

respondent in each of the petitions in the records of the

petitioner L&DO;

(g) that it was the case of the respondent Rana Partap Soni in CM

(M) No.636/2008 that after purchase, he occupied the first floor

only i.e. flat No.12 in or about 1960 and which was in his

exclusive use and occupation and that his younger brother i.e.

the respondent in CM(M) No.635/2008 Mohinder Partap Soni

came into exclusive possession of the ground floor;

(h) that the two flats had separate entrances, separate water and

electricity meters and owing to which had nothing in common

as far as their use and occupation was concerned; property tax

payable in respect of the two flats had also been bifurcated by

the New Delhi Municipal Council (NDMC) by common

assessment order;

(i) that it was further the case of the respondent in CM(M)

No.636/2008 that since the alleged misuse and unauthorized

construction pertained to the ground floor flat no.1 only which

was in exclusive use and occupation of respondent in CM(M)

No.635/2008, the said respondent only sought regularization of

the breaches of the lease term;

(j) On the contrary, the respondent in CM(M) No.636/2008

represented that there was no misuse or unauthorized

construction in his flat no.12 and that thus he could not be

burdened with the regularization / damage charges and could

not be evicted on account of non-payment thereof;

(k) that the respondent in CM (M) No.635/2008 also intimated the

Estate Officer of the filing of the suit and the interim order

therein;

(l) that it was the contention of the respondent in CM(M)

No.636/2008 that notwithstanding the same, the Estate Officer

had passed the eviction order against him also - he could not be

penalized for the violations committed by his brother i.e. the

respondent in CM (M) No.635/2008 in his portion of the

property;

(m) that it was the contention of the respondent in CM(M)

No.635/2008 that besides the ground floor, he was also in use

of the second floor and no partition existed between the two

respondents and that he had not violated any term of the

perpetual lease and that the order of the Estate Officer was

violative of the interim order dated 18th October, 1995 in the

Civil Suit No. 861/1993 titled Rana Partap Soni Vs. Mahinder

Partap Soni filed by the respondent in CM(M) No.636/2008;

(n) that though the Estate Officer in his order has made reference to

the contentions of respondent in CM (M) No.636/2008 but

failed to consider the same and give findings thereon;

(o) that in view of the peculiar facts of the case, particularly as to

the quantum of damages and whose liability it was to pay,

which was under challenge and the same required leading of

evidence; it was also to be considered whether the respondent

in CM (M) No.636/2008 who was in occupation of the first

floor where there was no misuse / unauthorized construction,

could be evicted for violation of terms of the lease deed on the

ground floor, resorting to summary procedure under the PP Act;

(p) Supreme Court in Express Newspaper Pvt. Ltd. Vs. Union of

India AIR 1986 SC 872 had held that a leasehold property

cannot be termed as public premises within the meaning of

Section 2(e) of the PP Act by virtue of cancellation of perpetual

lease deed and re-entry of the property - for this reason also the

petitioner L&DO could not have been resorted to eviction

proceedings under the PP Act.

Accordingly, the appeals were allowed.

5. It would thus be seen that the learned ADJ has set aside the order of

the Estate Officer of eviction,

(i) relying upon Express Newspaper Pvt. Ltd. supra and holding

that PP Act could not be invoked for eviction from premises

lease whereof was granted by the public authority and even if

the lease had been terminated and the ex-lessee was in

unauthorized occupation thereof; and,

(ii) reasoning that invocation of proceedings under PP Act was not

appropriate because quantum of damages for regularization of

breaches, who i.e. which of the respondent was liable for

payment thereof and whether for breaches on the ground floor

eviction from the first floor also could be ordered, required

determination.

6. Else, it was not disputed by the learned ADJ also that there were

breaches of the lease deed of the land underneath and on account whereof

the petitioner L&DO was entitled to terminate the lease and that the said

breaches though could have been got regularized had not been got

regularized.

7. Being of the view that the aforesaid reasoning of the learned ADJ was

not in consonance with the current law particularly in view of the judgment

of the Constitution Bench in Ashoka Marketing Ltd. Vs. Punjab National

Bank (1990) 4 SCC 406, attention of the counsels during the hearing was

drawn thereto as well as to the judgment dated 21st February, 2006 of the

Division Bench of this Court in LPA No.976/2004 titled Delhi Development

Authority Vs. Ambitious Gold Nib Manufacturing Co. Pvt. Ltd. dealt by

me in Ocean Plastics & Fibres (P) Limited Vs. Delhi Development

Authority 187 (2012) DLT 359 (against which LPA No.415/2012 was

dismissed as withdrawn).

8. The counsel for the petitioner L&DO during the hearing however

referred to Escorts Heart Institute and Research Centre Ltd. Vs. Delhi

Development Authority AIR 2008 Del 70 where the Division Bench of this

Court referring to Ashoka Marketing Ltd. and Ambitious Gold Nib

Manufacturing Co. Pvt. Ltd. supra held that Express Newspaper Pvt. Ltd.

supra does not lay down that the proceedings before the Estate Officer are

not maintainable for recovery of possession of the premises lease whereof

was earlier granted and had been terminated and all that was held therein

was that in the facts of that case PP Act could not be invoked.

9. The counsel for the respondent in CM(M) No.635/2008 in his written

submissions has contended:

(i) that the Estate Officer has not afforded opportunity and violated

the principles of natural justice;

(ii) that this Court also has not given opportunity of hearing to the

legal heirs of the respondent who had been brought on record

on the previous date only;

(iii) that the premises of which lease had been granted earlier and

had been terminated are not public premises within the ambit of

the PP Act and again relying on Express Newspaper Pvt. Ltd.

supra inspite of what had transpired in the hearing;

(iv) that breach of condition of lease is compoundable and as such

stringent order of eviction should not have been passed and

further efforts should have been made for regularization and

compounding of the breaches and for which the legal heirs of

the respondents are still willing;

(v) that no show cause notice was issued before cancellation of the

lease deed; and,

(vi) invocation of Article 227 of the Constitution of India in filing

this petition against the order of the learned ADJ is not proper.

10. The counsel for the respondent in CM(M) No.636/2008 in his written

argument has contended:

(a) that for breaches with respect to ground floor, eviction from the

first floor cannot be ordered;

(b) that the Division Bench of this Court in Ambitious Gold Nib

Manufacturing Co. Pvt. Ltd. supra has only distinguished

Express Newspaper Pvt. Ltd. supra and could not possibly have

overruled the Supreme Court and the law laid down by the

Supreme Court in Express Newspaper Pvt. Ltd. supra which is

in favour of the respondent would prevail;

(c) that since at the time of mutation by the petitioner L&DO in the

joint names of the respondent in each of the petitions, the land

had already been built upon, the liability with respect to the

ground floor could not be of the first floor;

(d) that the respondent in each of the petitions were in exclusive

possession of their respective floors;

(e) that the suit for partition which was filed in this Court and was

transferred to the District Court had been decided vide order

dated 13th August, 2010 by which the property had been

horizontally partitioned i.e. flat No.1 on the ground floor had

fallen to the share of Sh. Mohinder Partap Soni respondent in

CM(M) No.635/2008 and the flat no.12 above that had fallen to

the share of Sh. Rana Partap Soni respondent in CM(M)

No.636/2008 and the said judgment had attained finality and

the NDMC had also so mutated the flats;

(f) thus for all practical purposes the said two flats were

independent with no interconnection;

(g) that the re-entry of flat no.12 on the first floor was thus not

justified;

(h) that the respondent in CM (M) No.635/2008 only had admitted

to the breaches and the said admission was not binding on the

respondent in CM (M) No.636/2008;

(i) that the action of the petitioner L&DO was belated; the

unauthorized construction was noted in 1971 and demand was

raised with respect thereto in 1972 and 1973 and could not be

enforced in the year 2015;

(j) that the terms of the lease also do not provide for recovery of

damages;

(k) that according to Section 40 read with Section 11 of the

Transfer of Property Act, 1882 also no restriction could be put

by the transferor on the transferee;

(l) that thus the eviction order can only be with respect to flat no.1

on the ground floor and cannot be with respect to flat no.12 on

the first floor;

(m) that the facts of the present case are distinguishable from the

facts of Ambitious Gold Nib Manufacturing Co. Pvt. Ltd.

supra.

11. It is unfortunate that inspite of the Constitution Bench in Ashoka

Marketing Ltd. supra and the judgments of the Division Bench of this Court

in Ambitious Gold Nib Manufacturing Co. Pvt. Ltd. and Escorts Heart

Institute and Research Centre Ltd. supra and inspite of the attention of the

counsels for the respondents having been drawn thereto, the counsel for the

respondents in their respective written submissions continue to harp upon

the Express Newspaper Pvt. Ltd. supra.

12. It is now settled law:

(i) that the correctness or otherwise of the allegations of public

authorities such as the petitioner L&DO or the Delhi

Development Authority (DDA) on the basis of which

determination of lease is effected is to be decided by the Estate

Officer under the PP Act.

(ii) that whether the lessee has committed breach of the terms of the

lease deed or not and whether the determination of the lease

was legal or not are matters to be adjudicated by the concerned

authority under the PP Act i.e. the Estate Officer and cannot be

gone into in exercise of writ jurisdiction and the public

authorities as the L&DO or the DDA cannot be asked to resort

to the civil suit instead of the PP Act for eviction of the

occupants even if an ex-lessee after the lease has been

determined;

(iii) that the observations of the Supreme Court in Express

Newspaper Pvt. Ltd. supra that the public authority as the

L&DO and the DDA is required to file a civil suit and the

proceedings under the PP Act are not maintainable is not good

law;

(iv) that merely because the Estate Officer under the PP Act is not

required to be a person well versed in law cannot be a ground

for excluding from the ambit of PP Act the premises in

unauthorized occupation of persons who had obtained

possession as lessee;

(v) that a combined reading of Sections 4,5,8 and 9 of the PP Act

shows that final order that is passed in the proceedings under

the PP Act is by the judicial officer of the rank of a District

Judge; the same also suggests that questions as to justification

for determination of lease fall within the jurisdiction of the

Estate Officer.

13. Though I am in the facts of the present petitions concerned only with

the question whether the adjudication of the validity of the grounds for

determination of lease is within the domain of the Estate Officer and in

which respect the law as aforesaid is well settled but I will be failing in my

duty if do not refer to another judgment of the Division Bench of this Court

in DCM Ltd. Vs. Delhi Development Authority (2013) 136 DRJ 688

holding that bona fide title disputes cannot be gone into under the PP Act. I

have recently in Dr. Shekhar Shah Vs. Government of Maharashtra

MANU/DE/0924/2016 dealt with the said aspect and in the light thereof

need to say anything more is not felt especially as I am here not concerned

with any title dispute but with a dispute as to validity of determination of

lease and on which the judgments in Ashoka Marketing Ltd. supra applied

by the Division Benches of this Court are final.

14. Thus the main reason given by the learned ADJ for allowing the

appeals of the respondents i.e. of the order of the Estate Officer being

contrary to Express Newspaper Pvt. Ltd. supra was in ignorance of the

subsequent Constitution Bench judgment in Ashoka Marketing Ltd. supra

and cannot be sustained and has to be set aside and the petition under Article

227 of the Constitution of India would be maintainable on this ground alone.

15. As far as the other reason given by the learned ADJ, of invocation of

PP Act by the petitioner L&DO being not appropriate for the reason of the

questions involved i.e. of computation of damages, which of the respondent

is liable therefor and whether for breach of lease conditions by the

occupant/owner of the ground floor, eviction from first floor can also be

ordered is concerned, in my view once it is law that the PP Act constitutes

Estate Officer as the exclusive fora to adjudicate whether a person is in

unauthorized occupation and what charges for unauthorized occupation

he/she is liable for and provides a complete machinery, including of appeal

therefor, the question of whether it was "appropriate" for the petitioner

L&DO to invoke PP Act does not and ought not to arise. Rather, the said

reason is fully covered by the judgments aforesaid of the Supreme Court and

this court and does not constitute a separate reason given by the learned ADJ

but is adjunct of the reason given, of the proceedings before the Estate

Officer being not maintainable for the reason of Express Newspaper Pvt.

Ltd.

16. Once the Constitution Bench in Ashoka Marketing Ltd. supra has

held that all questions as to the validity of determination of lease are in the

domain of the Estate Officer, axiomatically, the jurisdiction of the Civil

Court to adjudicate the same would be excluded. Interestingly, though the

respondents relied upon the interim order in the suit which was filed before

this Court and by which interim order it appears that the petitioner L&DO

was restrained from recovering damages (for breach of lease conditions)

from the respondents subject to the respondents furnishing bank guarantee

but though claim the suit to have been finally decided have not placed the

copy of the said judgment and have merely informed that a decree for

partition has been passed. It has not even been stated that any relief against

the petitioner L&DO has been granted in the said suit. The obvious

inference is that the claim even if any of the respondents in the said suit

against the petitioner L&DO has not been allowed. The interim order in the

suit relied upon, after the suit has been finally decided, would be of no avail.

17. I may even otherwise clarify that the Estate Officer had not been

called upon by the petitioner L&DO to determine the damages payable by

the respondents for breach of conditions of the lease of the land underneath.

It was the case of the petitioner L&DO before the Estate Officer that the

respondents, i) being the lessees of the land underneath the two flats had

breached the terms of the lease; ii) had failed to have the said breach

compounded and to remove the breach inspite of opportunity given; iii) for

this reason their lease had been determined; iv) after determination of lease

the respondents were unauthorized occupants and liable to be evicted. The

said claim of the petitioner L&DO, the Estate Officer was definitively

empowered to adjudicate. The respondent in CM(M) 636/2008 however it

appears in the partition suit filed by him against the respondent in

CM(M)635/2008 also impleaded petitioner L&DO as defendant and also

disputed the damages claimed by the petitioner L&DO for compounding the

breaches and in which respect an interim order was made. I may add that

neither on the record of Estate Officer nor of these petitions I find any

pleadings of the suit. Though the suit is claimed to have been decided but it

is not the case that there is any decision qua the quantum of the said

damages. The fact thus remains that there is no adjudication in the suit

thereon. The respondents, in the last over 40 years have not got the breaches

compounded and the determination of the lease of land underneath the flats

stands. Axiomatically the respondents are unauthorized occupants.

18. The argument of the respondent in CM(M) No.636/2008, that no

order of eviction from flat no.12 on the first floor could be passed for

breaches of the perpetual lease conditions on the ground floor is also without

any merit. It is not in dispute that both, the ground floor and the first floor

are constructed over land of which perpetual lease was mutated in the joint

names of the respondent in each of the petitions. As far as the petitioner

L&DO is concerned, the liability of the respondent in each of the petitions

under the perpetual lease deed is joint and several and the lease is one. I fail

to see as to how it can be urged that the eviction from the first floor

constructed over the same leasehold land of which admittedly breach of

lease terms has been committed can be saved for the reason of the breaches

being on the ground floor. The division / partition even if any between joint

lessees, it is the settled position in law, is of the superstructure only and not

of the lease deed. Reference in this regard can be made to Madan Lal Vs.

Kuldeep Kumar MANU/DE/4039/2013, M/s Pragun Buildtech (P) Ltd Vs.

Sarla Aggarwal 2014 SCC Online Del 34 [SLP(C)1967/2014 whereagainst

was dismissed on 23rd January, 2014], Surendra Pal Singh Vs. Ravindra

Pal Singh (2014) 210 DLT 386 (DB) and Satish Kumar Chojar Vs.

Subhashni Chopra (2014) 213 DLT 24. Thus, notwithstanding the partition

of superstructure the lease of the land on which superstructure is constructed

remains joint and the consequences of breach of conditions thereof, even if

in one portion of the superstructure exclusively belonging to one of such

joint lessees invites determination of lease and eviction also from partitioned

portions of superstructure of other joint lessees who may not have

committed breach of lease condition vis-à-vis their portion. If the contention

as raised by the respondent in CM(M) No.636/2008 were to be accepted

then it would lead to an anomalous situation where the public authorities as

the L&DO and DDA would never be able to re-enter the land and would

only be able to re-enter portions of construction over the said land in which

breach has been committed and would tantamount to partition/division of

lease which also is not permissible under the terms thereof. The petitioner

L&DO is concerned with the land only and not with the superstructure.

19. Else, having perused the record of the Estate Officer, I am of the view

that there is no error in the order passed of eviction and I am constrained to

say that the interference by the learned ADJ therein was on the basis of law

which was no longer valid and in ignorance of the latest law.

20. As far as the contention of the respondents having not been given

opportunity of hearing by the Estate Officer or by this Court is concerned,

all that can be said and which would be a complete answer thereto, is that

more than 40 years have passed since the initiation of the proceedings before

the Estate Officer vide show cause notice dated 21 st July, 1975 and it does

not lie in the mouth of the respondents to contend that the said time was not

sufficient opportunity. The successive generations of the respondents cannot

ask fresh opportunities. It may also be mentioned that this was not even the

ground before the learned ADJ. The petitions before this Court also have

remained pending for eight years and the respondents vide order dated 28th

August, 2015 were sufficiently cautioned that the matter will be heard on

29th October, 2015 and even after respondents failed to argue on that date

opportunity was given to them to file written arguments and which have

been filed and have been considered by me hereinabove.

21. The other arguments vaguely urged and not even substantiated of, a)

the land, at the time of mutation in the names of respondents being already

built upon; b) the actions of petitioner L&DO being belated; c) of there

being no provision in the lease for recovery of damages; and, d)

determination of lease being contrary to the provisions of Transfer of

Property Act, also have no merit. It matters not that the land was built upon

at the time of mutation in the name of respondents; the respondents, by

becoming lessees of the land underneath the flats, are bound by the terms

and conditions of the lease. There was also no delay on the part of petitioner

L&DO. The breaches were detected in the inspections on 12th May, 1971

and 30th July, 1971, breach notice was issued on 7th July, 1972, charges for

compounding of breaches were conveyed on 5th March, 1973, the premises

were re-entered on 14th November, 1973 and notice by Estate Officer under

Section 4(1) of PP Act issued on 21st July, 1975. As far as the contention of

there being no provision in lease for compounding of breaches on payment

of damages is concerned, I fail to see how the same helps the respondents.

That means, that once the breach is committed and on account thereof lease

terminated, the ex-lessee has no recourse. I may also mention that though a

Single Judge of this Court in Jor Bagh Association (Regd.) Vs. Union of

India 112 (2004) DLT 690 held that L&DO cannot recover damages for

compounding the breaches but the said view was overruled in Union of

India Vs. Jor Bagh Association Regd. 188 (2012) DLT 25 (DB). The

argument, on the basis of provisions of Transfer of Property Act is also

misconceived. The lease is a government grant and as per Section 2 of the

Government Grants Act, 1895, the provisions of Transfer of Property Act

are not applicable thereto.

22. The petitions are thus allowed.

23. The common order dated 14th February, 2007 of the learned ADJ

impugned in these petitions is set aside. Resultantly, the order dated 3 rd

October, 2005 of the Estate Officer is restored.

24. Each of the respondents is also burdened with costs of Rs.50,000/- of

these proceedings payable to the petitioner L&DO within four weeks hereof.

25. The record of the Estate Officer requisitioned in this Court be returned

to the Estate Officer.

RAJIV SAHAI ENDLAW, J.

MAY 4, 2016 „gsr‟..