Delhi High Court
M/S Performance Motors Pvt Ltd vs M/S India Tourism Development ... on 17 February, 2022
$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 17 February, 2022
+ CM(M) 63/2020, CM APPL. 2540/2020(Stay)
M/S PERFORMANCE MOTORS PVT LTD ..... Petitioner
Through: Mr. Ravi Gupta, Sr. Adv. with Mr.
Vikas Goel, Mr. Sachin Jain, Mr.
Himansh Yadav & Mr. Vivek Gupta,
Advs.
versus
M/S INDIA TOURISM DEVELOPMENT CORPORATION LTD
..... Respondent
Through: Mr. Anish Chawla & Mr. Neeraj
Kumar, Advs.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
YASHWANT VARMA, J. (ORAL)
1. The petitioner challenges the order of 27 November 2019 passed by
the Additional District Judge on an appeal preferred by it under Section 9 of
the Public Premises (Eviction of Unauthorised Occupants) Act , 1971 1. In
terms of the impugned order, the Appellate Authority u nder t he Act h as
remanded the matter to the Estate Officer for deciding the issue of
unauthorised occupation afresh and in light of the observations made
therein. It becomes pertinent to note that the Estate Officer by it s order of
26 June 2018 had held the petitioner liable to pay damages in t erms of t h e
provisions made in Section 7 of the Act. The Appellate Authority, however,
found that the Estate Officer had proceeded on the in correct prem ise t hat
1 Act
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KARKI
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the petitioner had been held to be in unauthorised occupation in terms of the
order of 17 October 2013. This in view of the admitted fact t hat t he said
order had already been set aside in an earlier round of litigation which
ensued inter partes. The Appellate Authority consequently h eld t hat on ce
the finding of unauthorised occupation had ceased to exist or remain
operational in law, the imposition of damages would not sustain. It
accordingly and in terms of the impugned order set aside t he order of t h e
Estate Officer dated 26 June 2018 and remanded the matter for deciding the
issue of unauthorised occupation afresh noting that the question of damages
would abide by the finding that may be returned on that score. Before
proceeding to notice the rival contentions addressed on this petition, it
would be appropriate to briefly advert to the essential facts in the backdrop
of which the present petition came to be preferred.
2. The petitioner is stated to have been inducted in to t he premises in
terms of a license deed dated 30 May 2006. The initial period of the licen se
was stipulated to be from 01 February 2006 to 31 January 2009. It was t h e
case of the petitioner that despite the execution of that license deed,
possession was not handed over to it. The dispute between the parties
ultimately led to the filing of a petition by the respondents under the Act in
May 2009. The reliefs claimed in that petition read as follows: -
"a. Pass an order in favor of the claimant/petitioner and against the
respondent by directing the respondent to vacate the premises in question
with immediate effect and further handover the peaceful possession of
the premises in question to the claimant/petition.
b. Pass an order in favor of the claimant/petitioner and against the
respondent by allowing the damages @ Rs.20.00,00/- Only (Rupees
twenty lakh only) and other applicable charges per month for retaining
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the possession unauthorizingly w.e.f 1.2.2009 till handing over the
possession.
c. Pass such and further order as this Hon'ble Court may deem fit and
proper in the present facts and circumstances."
3. That petition came to be allowed by the Estate Officer by an order of
17 October 2013. In terms of that order, the Estate Officer came to hold that
the petitioner had become an unauthorised occupant after 31 January 2009.
It consequently held the petitioner liable to be evicted from the premises in
question as also to pay the admitted rent of Rs.2,82,000/- t ogether wit h
interest at the rate of 24% per annum. The prayer for damages as was raised
in the petition, however, was negatived with the Estate Officer n oting t hat
the respondents had failed to adduce any evidence to show that any loss had
been caused to the respondents on account of the unauthorised occupation
of the premises.
4. The said order of the Estate Officer came to be assailed by the
present petitioner by way of an appeal. The Appellate Authority by its
judgment of 15 September 2014 set aside the order of 17 October 2013 an d
remanded the matter back for the consideration of the Estate Officer. From
the record it transpires that during the pendency of the appeal, the
respondent instituted a petition under Section 7 of t h e Act on 20 Au gust
2014. This petition, as would be evident from the aforesaid recordal of
facts, came to be preferred just before the Appellate Authority had com e t o
allow the appeal on 15 September 2014 instituted at the behest of the
petitioner. The petition claiming damages thus evidently to be instituted at a
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time when the original order of eviction made on 17 October 2013 was
existing and in force.
5. The original proceedings which had been initiated by the
respondents, as was noted above, had culminated in the passing of an order
of eviction on 17 October 2013. That order was ultimately set aside by t h e
Appellate Authority on 15 September 2014. When that petition upon
remand was taken up by the Estate Officer on 06 July 2015, the respondents
disclosed that they had been able to obtain possession of the premises on 20
June 2015 and that in view thereof, they chose not to proceed with the
aforesaid case and that, accordingly, the same may be permitted to be
withdrawn. The Estate Officer accepting the prayer as made proceeded t o
close the aforesaid case on 06 July 2015. It is only thereafter that the
petition preferred under Section 7 of the Act was taken up for consideration
by the Estate Officer and ultimately came to be allowed on 26 Ju n e 2018.
The Estate Officer in terms of that order proceeded to quantify the damages
that were payable. However, and as was noticed h ereinabove, t he Estate
Officer had proceeded on the mistaken premise that the order of 17 October
2013 still remained in vogue and committed the manifest error of ign orin g
the fact that the same had in the meantime come to be set aside by the
Appellate Authority in terms of its order of 15 Septem ber 2014. It was in
the aforesaid backdrop that the Appellate Authority in t erms of t h e order
impugned in the present writ petition had proceeded to set aside the
aforesaid order and remand the matter for fresh consideration by the Est ate
Officer.
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KARKI
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6. The Appellate Authority while dealing with the impact of the
withdrawal of the earlier case by the respondents has in paragraph 18 of th e
order impugned made the following observations:
"18. Heard both the sides and gone through the record. The
initial claim which was filed by respondent before Estate officer, as
tile of petition reads, is under Section 4 and 5 of PPA. Though it is
correct that there is a relief claimed for damages also but the said
claim was never decided on merits. The order by way of which it
was decided in 2013 has already been set aside and the matter was
remanded back. Hence, the Section 4 and 5 claim petition filed
before Estate officer was never decided on merits. Further only
because damages are claimed in the prayer clause, it cannot be said
that it was a petition under Section 7 also because it was never
decided on merits. Further the fact that before withdrawal of claim
on 06.07.2015, a Section 7 claim under PPA was already f iled by
respondent clearly shows that their intention was only to wi thdraw
their claim under Section 4 and 5 of the PPA. By resorting to
technical issues, if any, it cannot be said that respondent had
withdrawn its claim under Section 7 also while the matter of the
fact that Section 7 was already pending on the date of withdrawal of
petition under Section 4 & 5 of PPA. Hence the section 7 petition
before Estate Officer is maintainable."
7. When this Court heard preliminary submissions as addressed by
respective counsels for parties, it had formulated the two principal
questions which appeared to arise for consideration. This would be evident
from the order of 15 December 2021 passed in these proceedings and is
extracted hereinbelow: -
"1 Having heard learned counsels for parties at some length, the
Court notes that the following two principal questions would merit
consideration: -
a. Whether the respondents could have maintained the petition under
Section 7 of the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 after having withdrawn the earlier petition which
was composite in character and sought not just eviction but also damages
from the petitioner.
b. Whether a petition under Section 7 of the Act would be
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maintainable in the absence of any finding in respect of unauthorised
occupation having been recorded in proceedings under Section 4 of the
Act. a petition for damages simpliciter under Section 7 of the Act would
be maintainable.
2. According to learned Senior Counsel appearing in support of the
petition, a petition for damages simpliciter would not be maintainable
unless a prior finding in respect of unauthorised occupation has come to
be rendered in proceedings under Section 4 of the Act."
8. Mr. Gupta, learned Senior Counsel appearing for the pet itioner, h as
vehemently contended that once the respondents chose to withdraw the first
petition which had been remanded for further consideration of t h e Est a te
Officer in terms of the order of Appellate Authority of 15 September 2014,
the petition under Section 7 of the Act was clearly n ot m aintainable. Mr.
Gupta has drawn the attention of the Court to the reliefs as claim ed in t hat
petition to submit that it is evident that the said petition was com posite in
character since it sought the twin reliefs of evict ion as well as dam ages.
According to Mr. Gupta once this composite petition referable t o Sections
4, 5 & 7 of the Act came to be withdrawn, the respondents st ood den uded
of the right to claim damages by way of an independent petition purporting
to be under Section 7 of the Act. Referring to the order of 06 July 2015
itself, Mr. Gupta submitted that undisputedly and as would be ex-facie
evident, the respondents did not reserve any liberty t o either in stitute or
pursue proceedings under Section 7 of the Act. In view of the aforesaid, it
was the submission of learned Senior Counsel that in terms of the principles
enshrined in Order XXIII Rule 1 of the Civil Procedure Code2, the petition
for damages must be held to be clearly barred by law.
2 Code
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KARKI
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9. Mr. Gupta has further submitted that the petition for dam ages could
not have been presented unless a finding in respect of unauthorised
occupation of the premises by the petitioner had come to be recorded.
Referring to the scheme underlying Section 4, 5 & 7 of t h e Act , learn ed
Senior Counsel contends that unless there be a finding positively ret urned
and recorded with respect to unauthorised occupation, a claim for dam ages
would not be maintainable. The submission of learn ed sen ior cou nsel in
essence was that once the original petition seeking evict ion an d damages
came to be unconditionally withdrawn, the respondent lost the right to
assert that the petitioner was an unauthorised occupant an d con sequently
the claim for damages would not sustain.
10. It becomes pertinent to note that respective cou nsels on opposing
sides have placed reliance on the decision rendered by a learn ed Ju dge of
the Court in Dunlop India Ltd vs. Bank of Baroda & Anr. 3 as affirm ed
by the Division Bench of the Court in L.P.A. which h as sin ce come t o be
reported as MANU/DE/3536/20094.
11. Refuting the aforesaid submissions, Mr. Anish Chawla, learned
counsel for the respondent Corporation, has submitted that while the
original petition may have claimed the composite reliefs of evict ion an d
damages, as would be evident from the order of 17 October 2013 as also the
order of the Appellate Authority of 15 September 2014, the issue of
damages was neither considered nor adjudicated upon. Learned counsel has
3 2009 (108) DRJ 32
4 Dunlop II
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KARKI
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further sought to buttress that submission by pointing out that t he pet ition
as originally filed was styled and titled as one being under Section 5 of t h e
Act only. In light of the aforesaid, it was contended that the dismissal of the
said petition as withdrawn cannot be construed as denuding the respondent
of the right to claim damages independently and by way of the independent
petition which was ultimately filed.
12. Questioning the invocation of Order XXIII Rule 1 of the Code,
learned counsel has firstly submitted that the said provision can h ave n o
application to proceedings under the Act since the Code does not ipso fact o
have any application to summary proceedings wh ich are t ried u nder t he
Act. On a more fundamental plane, learned counsel con tends t hat even if
the provisions of Order XXIII were assumed to apply, the bar as con t ained
therein would not stand attracted in light of t h e fact t hat t he su bsequent
petition under Section 7 had already been instituted and was pending on the
date when the original petition was withdrawn.
13. Learned counsel reiterates the factual position as obtaining and which
is not disputed that the subsequent petition had come to be instituted on 20
August 2014 and was thus pending on the board of the Estate Officer by the
time the original petition came to be withdrawn on 06 July 2015. In view of
the aforesaid, it was submitted that the bar contained in Order XXIII wou ld
have no application. Learned counsel underlines the fact that t he st atutory
bar as engrafted in Order XXIII only applies to the filling of a fresh su it or
proceedings. Learned counsel seeks to u n derline t he fact t hat t he bar as
placed by the Order XXIII does not and cannot be int erpreted t o apply t o
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proceedings which are pending. In support of his submissions, Mr. Ch awla
placed reliance firstly upon the decision rendered by the Court in Man
Mohan Singh Bhalla vs. H.L. Mehra and Ors. 5 and more particularly t o
paragraphs 8, 9 & 10 of the report which are reproduced hereinbelow: -
"8. The first question for decision is whether the present petition is
barred under Order 23 Rule 1(4) of the Code of Civil Procedure. Order
23 Rule 1 of the Code of Civil Procedure reads as under:
"(1) At any time after the institution of a suit, the plaintiff may
as against all or any of the defendants abandon his suit or abandon
a part of his claim:
Provided that where the plaintiff is a minor or other person to
whom the provisions contained in rules 1 to 14 of Order XXXII
extend, neither the suit nor any part of the claim shall be
abandoned without the leave of the Court.
(2) An application for leave under the proviso to sub-rule (1)
shall be accompanied by an affidavit of the next friend and also, if
the minor or such other person is represented by a pleader, by a
certificate of the pleader to the effect that the abandonment
proposed is, in his opinion, for the benefit of the minor or such
other person.
(3) Where the Court is satisfied: -
(a) that a suit must fail by reason of some formal
defect, or
(b) that there are sufficient grounds for allowing the
plaintiff to institute a fresh suit for the subject
matter of a suit or part of a claim.
It may, on such terms as it thinks fit, grant the plaintiff permission
to withdraw from such suit or such part of the claim with liberty
to institute a fresh suit in respect of the subject matter of such suit
or such part of the claim.
(4) Where the plaintiff: -
(a) abandons any suit or part of claim under sub -rule
(1) or
(b) withdraws from a suit or part of a claim without
the permission referred to in sub-rule (3),
5 1986 SCC OnLine Del 302
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he shall be liable for such costs as the Court may award and shall
be precluded from instituting any fresh suit in respect of such
subject matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorise the Court
to permit one of several plaintiffs to abandon a suit or part
of a claim under sub-rule (1), or to withdraw, under sub -
rule (3) any suit or part of a claim without the consent of
the other plaintiffs."
9. Under sub-rule 4 of the Rule 1 of Order 23 of the Code, if the
plaintiff abandons the suit without permission of the Court, he is
precluded from instituting any fresh suit in respect of the same subject
matter. In other words, the bar under sub-rule 4 is for institution of fresh
suit on the same subject matter after the withdrawal of the earlier suit.
Sub-rule 4 of Rule 1 cannot be read so as to bar a suit which has already
been instituted before the other suit has been dismissed. The rule is clear
and can only be applied to a suit instituted after the withdrawal of the
previous suit. In the instant case it is admitted that the present petition
under Section 45 of the Act was filed on 22 nd September, 1986 while the
earlier petition was got dismissed as withdrawn on 25 th September,
1986.
10. In Mangi Lal and another v. Radha Mohan and Another, 1930
Lahore 599(2), it has been observed by the Division Bench that this rule
applies only to suits instituted after the withdrawal of the previous suit.
Nothing to the contrary has been brought to my notice. It is not
necessary to decide the other points raised by the learned counsel for the
appellant. I am of the definite view that Order 23 Rule 1(4) of the Code
of Civil Procedure is not applicable to the facts of the present case. The
Rent Control Tribunal and the Additional Rent Controller approached
the matter in a manner which is contrary by law. The present petition
under Section 45 of the Act is not barred under Order 2 3 Rule 1(4) of
the Code of Civil Procedure and is maintainable."
14. Learned counsel has then drawn t he at tention of t h e Court t o t he
judgement in Parma Nand vs. Mani Ram Aggarwal and Ors. 6 where t he
following principles with respect to Order XXIII were reiterated: -
6 2012 SCC OnLine Del 1855
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KARKI
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"7. The aforesaid facts show that it is not disputed that the present
suit was filed during the pendency of the earlier suit for injunction.
The earlier suit was withdrawn after filing of the subject/present suit.
In these circumstances, the issue is not of applicability of provision of
Order 2 Rule 2 CPC but of withdrawal of suit filed on one cause of
action without seeking permission to file the second/subsequent suit
on the same cause of action. Provision of Order 2 Rule 2 CPC would
have applied if the earlier suit was disposed of on merits and
thereafter on the cause of action in the earlier suit reliefs which were
not claimed were then claimed in the second suit and which b ecome
clear from the expression 'afterwards' in Order 2 Rule 2 CPC. A
similar view has been taken by a learned Single Judge of this Court in
the decision reported as Vakil Chand Jain v. Prakash Chand Jain,
2009 (8) AD (Delhi) 155. Para 26 of this judgment reads as under:-
"26. Order II Rule 2 CPC requires, however, the earlier suit to
include "the whole of the claim which the Plaintiff is entitled to
make in respect of the cause of action". The Plaintiff may
relinquish any portion of his claim in order to bring the suit within
the jurisdiction of any court. Under Order II Rule 2(2) CPC where
a Plaintiff omits to sue in respect of any portion of his claim, he
shall not afterwards sue in respect of the portion so omitted or
relinquished. In other words, the earlier suit filed had to have run
its full course. In such a suit the Plaintiff is expected to make all
the claims in respect of a cause of action. It does not envisage a
situation like the present one where the suit filed stands
withdrawn without the suit running its full course."
8. The issue in this case is fully covered by the judgment of the
Supreme Court in the case of Vimlesh Kumari Kulshrestha v.
Sambhajirao (2008) 5 SCC 58. Paras 7 to 13 of the said judgment are
relevant and the same read as under:-
"7. It is not in dispute that OS No. 13-A of 1987 was filed d uring
pendency of OS No.228-A of 1986.
8. Order 23 Rule 1 CPC stricto sensu, therefore, was not
applicable, the relevant provision whereof reads thus:
"1. Withdrawal of suit or abandonment of part of claim. - (1)
At any time after the institution of a suit, the plaintif f may as
against all or any of the defendants abandon his suit or
abandon a part of his claim:
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(2) * * *
(3) Where the court is satisfied.-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to
institute a fresh suit for the subject-matter of a suit or part of a claim,
it may, on such terms as it thinks fit, grant the plaintiff permission to
withdraw from such suit or such part of the claim with liberty to
institute a fresh suit in respect of the subject-matter of such suit or
such part of the claim"
9. Admittedly, the second suit was filed before filing the application
of withdrawal of the first suit. The first suit was withdrawn as an
objection had been taken by the respondent in regard to payment of
proper court fee. We, therefore, are of the opinion that Order 23 Rule
1 of the Code was not applicable to the facts and circumstances of the
present case.
10. A somewhat similar question came up for consideration in Mangi
Lal v. Radha Mohan wherein it was held:
"Order 23 Rule 1, refers to permission to withdraw a suit with
liberty to institute a fresh suit after the first one has been
withdrawn. Order 23 Rule 1, cannot be read so as to bar a suit
which has already been instituted before the other suit has been
abandoned or dismissed. The rule is clear and can only be applied
to suits instituted after the withdrawal or abandonment of
previous suits."
In view of the above, it was submitted t hat t he order of rem and as
framed by the Appellate Authority merited no in terference by t he Cou rt.
The Court thus proceeds to deal with the rival submissions noted above.
15. Undisputedly, and as is manifest from a reading of the reliefs as
claimed in the original petition instituted by the respondent, t he sam e was
of a composite character claiming not ju st the evict ion of t h e petitioner
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from the premises but also the award of damages for wrongful occu pation.
While it is true that the petition was titled as being one under Section 5 of
the Act, that in the considered opinion of this Court clearly can n either be
determinative nor conclusive of the true nature and character of the petition.
The mere nomenclature of the petition would clearly not constitute a valid
ground to hold that the same stood restricted t o t he reliefs con templated
under Section 5 of the Act. The nature an d ext ent of t h e petition would
ultimately and necessarily have to be ascert ained an d u nderstood in t he
light of the reliefs which are sought in the petition. Undisputedly, t he Act
confers the power on the respondent to not just seek the eviction of an
unauthorised occupant but also to claim damages for the period during
which the public premises have been illegally occupied in accordance wit h
the provisions made in Section 7 of the Act. It was thus open to the
respondent to seek the twin reliefs of eviction and damages in one
comprehensive petition. This would also be in consonance with the
principles laid down by the Court in Dunlop and shall be referred to
hereinafter.
16. While on this issue, the Court is constrained to observe t hat it finds
itself unable to countenance the conclusion of the Appellate Authority when
it records that merely because damages had been claimed in the prayer
clause, the petition could not be construed as being one under Section 7 and
also because it was never decided on merits. For reason s aforenoted, t he
conclusion to the aforesaid effect as entered in the impugned order can not
possibly be sustained. As was noted hereinabove, not only was the petition
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composite in character, the issue of damages was also specifically dealt
with by the Estate Officer in its order of 17 October 2013. However,
notwithstanding the above and on an overall appreciation of the facts of this
case, the Court is of the considered view t h at t he im pugned order is n ot
liable to be interfered with for the following reasons.
17. Undisputedly, the subsequent petition under Section 7 of the Act h ad
come to be preferred on 20 August 2014. It becomes pertinent to recall t hat
at the time when this petition was instituted the original order of th e Est ate
Officer of 17 October 2013 held the field till it u ltimately cam e t o be set
aside on 15 September 2014. The subsequent petition under Sect ion 7 was
thus not a new proceeding instituted after 06 July 2015 wh en t he origin al
petition was withdrawn by the respondents. It is thus manifest that the
injunct as placed in Order XXIII of the Code did not apply and in an y case
did not debar the filing of the subsequent petition. This is also evident from
the principles enunciated by the Court in Man Mohan Singh Bhalla an d
Parma Nand which have lucidly explained the scope of Order XXIII.
While Mr. Chawla learned counsel for the respondent is correct in his
submission that the provisions of the Code h ave n o st rict application t o
proceedings under the Act, even if principles analogous to Order XXIII
were assumed to apply, the petition under Section 7 for reasons aforen oted
cannot be viewed as being barred in law.
18. That then takes the Court to the submission of Mr. Gupta who
contended that the petition under Section 7 of the Act was even otherwise
not maintainable since no finding with respect to unauthorised occu pancy
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had come to be entered against the petitioner. The tenor of th e su bmission
of Mr. Gupta essentially was that unless there be a preexisting finding with
respect to unauthorised occupancy in proceedings referrable to Section 4 &
5 of the Act, the petition for damages would not be maintainable. The Court
notes that an argument on similar lines came to be specifically repelled by
the Court in Dunlop. Originally, the learned Judge in Dunlop n oticed t he
contention of the petitioner there that a composite petition for evict ion an d
damages cannot be maintained. Repelling the said contention, t he learned
Judge held:
"28. The law permits the plaintiff to unite in the same suit several
causes of action against the same defendant (see order II Rule 3 C.P.C).
This rule is designed to prevent multiplicity of proceedings and also to
save the parties from suffering multiple sets of costs and avoid
unnecessary delays. Order II Rule 4 C.P.C specifically permits the
plaintiff, who is seeking recovery of immovable property to claim, in the
same suit, mesne profits or arrears of rent in respect of the property
claimed or any part thereof. Though the provisions of the Civil procedure
Code do not strictly apply to proceedings before the Estate Officer the
underlying principle would still be applicable since the real purpose
behind Order II Rule 3 and Rule 4 is to prevent multiplicity of
proceedings and achieve expeditious disposal of the lis between the same
set of parties.
29. When simultaneous petitions are preferred under Sections 4,5 &7
of the Act, the Estate Officer would first determine the preliminary issue
as to whether the occupant is an unauthorized occupant, or not and onl y
thereafter would he proceed to consider the issue as to whether the
occupant is liable to pay damages or not, and if so, at what rate and f or
what period. In case the Estate Officer were to conclude that the occupant
is not an unauthorized occupant, not only would he dismiss the petition
under Sections 4&5, but also the petition under Section 7 of the Act,
since the necessary ingredient for determination and levy of damages,
viz. the status of the occupant as an unauthorized occupant would be
missing. However, if he finds that the occupant is an unauthorized
occupant, he would determine the date on and from which the occupant
becomes an unauthorized occupant and from that date onwards by
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operation of law, the occupant would become liable to pay damages. The
Estate Officer would then determine the rate at which the damages are
payable for the period of unauthorized occupation, if any. Merely
because these two separate and distinct issues arise to be determined and
the decision on the subsequent issue, namely, the assessment of damages,
if any, is dependent on the determination of the first issue with regard to
the status of the occupant (i.e. whether he is an authorized occupant or an
unauthorized occupant), it does not mean that the Estate Officer cannot
proceed to issue notice on the proceedings under Section 7
simultaneously with the issuance of the notice under Sections 4&5 of the
Act. It also does not mean that the Estate Officer cannot record
comprehensive evidence on both the issues at the same time. Th e Estate
Officer would, however, proceed to determine the issue of damages, if
any, only after he has recorded his satisfaction to the effect that the
occupant is an unauthorized occupant. The Act has been enacted to
provide a speedy remedy in respect of public premises. The provisions of
the Act should be interpreted keeping in view this objective. It does not
stand to reason that the Claimant should first be expected to await a
finding of unauthorized occupation, in a proceeding under Sections 4&5
of the Act, before even initiating a proceeding under Section 7 to claim
damages for the period the occupant is claimed to be an unauthorized
occupant.
30. I, therefore, reject the submission of the petitioner that the
proceedings under Section 7 could not have been initiated o r proceeded
with simultaneously with the proceedings under Sections 4&5 of the Act,
and that the petitioner could not have been required to lead its evidenc e
on the respondents claim for damages under Section 7 simultaneously
with the evidence on the aspect whether the petitioner is an unauthoriz ed
occupant or not. I also reject the petitioner's submission that the Estate
Officer has no jurisdiction to proceed with the proceedings under Section
7 of the Act unless and until the proceeding under Sections 4&5
culminate with a finding of unauthorized occupation of the occupant
concerned. He may proceed with the said proceedings, however, before
deciding on the issues arising in those proceedings, he must decide on the
status of the occupant."
19. Affirming the aforesaid, the Division Bench of the Court in Dunlop
II observed thus: -
"12. The principal contention of the appellant is that only af ter eviction
proceedings initiated under Section 4 and 5 are finally concluded and the
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Estate Officer returns the findings that the occupant is an unauthorized
occupant, that the Estate Officer gets jurisdiction to proceed to issue
notice under Section 7(2) of the Act, to determine the liability of the
occupant to pay damages under Section 7(3) of the Act. In support of this
submission, the appellant relies upon the language used in the provisions
of Section 4 and Section 7 and upon the language in the forms under the
Act and the Rules. In this respect the respondent invited our attention to
the decision of the Supreme Court in New India Assurance Co. Ltd. v.
Nusli Neville Wadia and Anr. reported as MANU/SC/0166/2008: (2008)
3 SCC 279. In this case the Supreme Court whilst dealing with the
procedure to be followed in relation to adduction of evidence in an
eviction proceeding under the Act observed as follows:
29. Furthermore a proceeding may be initiated under Section 4
simpliciter. A composite proceedings may also be initiated both
under Sections 4 and 7 of the Act. In the latter category of cases
the landlord would be required to establish not only the bona f ide
need on its part but also quantum of damages to which it may held
to be entitled to, in the event that an order is passed in f avour of
the establishment.
13. In this regard, the learned Single Judge held that the law permits a
party to unite in the same proceeding several causes of action against the
same defendant in order to prevent multiplicity of proceedings and also to
save parties from suffering multiple set of costs and avoid unnecessary
delays. He further held that though these provisions of the Civil
Procedure Code do not strictly apply to the proceedings before the Estate
Officer, the underlying principle would still be applicable. It was also
observed that when simultaneous petitions are preferred under Sections 4,
5 and 7 of the Act, the Estate Officer would first determine the
preliminary issue as to whether the occupant is an unauthorized occupant
or not and only thereafter would he proceed to consider the issue as to
whether occupant is liable to pay damages or not, and if so, at what rate
and for what period. Accordingly, the learned Single Judge rejected the
submissions of the appellant that the proceedings under Section 7 could
not have been initiated or proceeded with simultaneously with the
proceedings under Sections 4 and 5 of the Act.
14. With regard to this contention we observe that, in the event of a
composite proceedings being initiated under Sections 4, 5 and 7 of the
Act, the Estate Officer would first be obliged to determine the status of
the occupant as to whether he is an unauthorized occupant or not, and if
so, from which date. It is only upon arriving at a finding that the occupant
is an unauthorized occupant would the Estate Officer proceed to
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determine the liability of the occupant, if any, towards damages f or the
period of his unauthorized occupation. Therefore, the Estate Officer
would first have to determine the preliminary issue as to whether the
occupant is an unauthorized occupant or not and only thereafter would
the Estate Officer proceed to consider the issue as to whether the
occupant is liable to pay damages or not, and if so, at what rate and f or
what period. If the Estate Officer were to come to the conclusion that the
occupant was not an unauthorized one, in that event not on ly would he
reject the petition under Section 4 and 5 of the Act but also the petition
under Section 7 of the Act, since the necessary concomitants for
determination and levy of damages both liquidated and unliquidated
would be rendered infructuous. However, if the Estate Officer were to
come to the conclusion that the occupant is an unauthorized occupant he
would proceed to determine the date on and from which the occupant
became unauthorized occupant and would hold the occupant liable to pay
damages from the date that he is adjudged to be an unauthorized
occupant. There is, therefore, no substance in the submission made on
behalf of the appellant that only because two separate and distinct issues
are to be determined it would render the simultaneous proceedings under
Sections 4 and 5 and Section 7 of the Act mutually exclusive.
15. Further, it is relevant to note that the Supreme Court in the decision
of New India Assurance Company Ltd. (Supra), observed that a
composite proceeding may be initiated both under Sections 4 and 7 of the
Act. Also we are conscious of the circumstance that in this category of
cases the landlord would be required to establish by leading evidence
simultaneously of not only the bona fide need on its part, but also
quantum of damages to which it may be held to be entitled to, in the
event that an order is passed in favour of the establishment. Therefore,
since the proceedings under the Act are contemplated to be in the nature
of summary proceedings, it would be in the fitness of things to enable the
landlord to lead his evidence on both these issues simultaneously in order
to eschew delay. The issues cannot be adjudicated upon in piecemeal.
Even otherwise, the provisions of the Act do not permit us to read the
provisions and the procedure prescribed therein in the manner as is
suggested by the appellant. Consequently, there is no merit in the
contention made on behalf of the appellant that the proceedings under
Section 7 of the Act cannot proceed simultaneously along with
proceedings under Sections 4 and 5 of the Act."
20. The aforesaid two decisions are thus authoritative pronouncements
on the jurisdiction of the Estate Officer to deal with the issue of
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unauthorised occupancy and damages raised in a com prehensive pet ition
that may be preferred before it. These two decisions enunciate the
obligation of the Estate Officer to arrive at a principled and preliminary
finding with respect to unauthorised occupancy before the question of
damages is taken up for consideration. It is in the aforesaid backdrop t hat
the Court in Dunlop underlined the obligation of the Estate Officer to
firstly determine the status of the occupant and only upon arriving at a
finding that the occupant is in unauthorised occupation to proceed to
determine the liability of the occupant t owards damages. However, t his
exercise need not be undertaken by the Estate Officer on a separate petition
nor is it necessary for the Estate Officer to pass independent orders on t he
two issues aforenoted. Bearing in mind the scheme of Sect ions 4,5 & 7 of
the Act as well as the principles enunciated by the Court in Dunlop as
affirmed in Dunlop II, it is evident that the Estate Officer would be
sufficiently empowered to rule on the twin issues of unauthorised
occupancy and damages by a common judgement or order also. All that t he
law obligates the Estate Officer to do is to record a definitive fin ding wit h
respect to unauthorised occupancy and only, thereafter, to rule on the
question of damages.
21. The Court while finding against the petitioner here also bears in mind
the express language of Section 7 and more particularly sub section (2)
thereof which reads as follows: -
"(2) Where any person is, or has at any time been, in unauthorised
occupation of any public premises, the estate officer may, having regard
to such principles of assessment of damages as may be prescribed, assess
the damages on account of the use and occupation of such premises and
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may, by order, require that person to pay the damages within such time
and in such instalments as may be specified in the order."
22. The aforesaid provision in explicit terms empowers the Estate Officer
to assess damages that may be payable both in a situation where a person is
or has been in unauthorised occupation of pu blic premises. This is clear
from the usage of the expression "or has at any time been". Su b-Section
(2) of Section 7 thus makes provision for the dual contingency of wh ere a
person continues to remain in occupation of pu blic prem ises as also on e
where the public premises are no longer occupied.
23. The Court cannot be oblivious to a situation where pu blic premises
which had been unauthorizedly occupied are rid of such occupation by t h e
time the question of quantification of damages is taken up for consideration
by the Estate Officer. There may also be a situation where the public
premises may have been either abandoned or are no lon ger occu pied by a
person by the time the issue of damages is taken up. Th at can not absolve
the occupant to answer a charge of damages for the period during which the
premises were unauthorisedly occupied. It is thus evident t hat su b section
(2) has been structured in order to take care of the above contingencies also
and empowers the Estate Officer to assess and quantify damages even in a
situation where public premises do not remain to be in unauthorised
occupation of a person. It is this facet of sub-section (2) which stands
attracted in the facts of the present case also.
24. As was noted hereinabove, the petitioner no longer remained in t he
occupation of the public premises by the time the original petition came t o
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be dismissed as withdrawn on 06 July 2015. That order records that
possession fell to respondents in June 2015. However, merely because t he
petitioner had ceased to be in unauthorised occupation of the public
premises by the time of issue of damages was taken up for con sideration,
that cannot possibly be construed as absolving it from facing the liability of
damages.
25. Accordingly, and for all the aforesaid reasons, the Court finds no
merit in the challenge raised to the order impugned. Wh ile closing t hese
proceedings it may only be observed that the Estate Officer wou ld n ow be
obliged to proceed in the matter bearing in mind the terms of remand as laid
down by the Estate Officer as well as the principles laid down by this Court
in Dunlop and Dunlop II.
26. The writ petition consequently fails and shall stand dismissed.
27. Pending application also stands disposed of.
YASHWANT VARMA, J.
FEBRUARY 17, 2022/neha
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KARKI
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