Delhi High Court
Sh Harlal vs Delhi Development Authority Through ... on 23 July, 2024
Author: Tushar Rao Gedela
Bench: Tushar Rao Gedela
$~108
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 337/2024 & C.M. APPL. 24411/2024, C.M. APPL.
24413/2024
SH HARLAL ....Appellant
Through: Mr. Nalin Kohli, Advocate with
Ms. Harshita Gulati, Mr. Anshul
Malik and Mr. Aprit Singh,
Advocates.
versus
DELHI DEVELOPMENT AUTHORITY THROUGH ITS VICE
CHAIRMAN & ORS .....Respondents
Through: Mr. Arun Birbal and Mr. Varun
Gupta, Advocates for DDA.
% Date of Decision: 23rd July, 2024.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
MANMOHAN, ACJ : (ORAL)
1. Appellant has filed an application under Section 151 of CPC, 1908
seeking grant of interim protection/stay of the operation of the order
dated 30th May, 2019 passed by the Estate Officer (D-II), Delhi
Development Authority and order/judgment dated 08th September, 2021,
passed by the Appellate Authority i.e., the District & Sessions Judge,
North District, Rohini Courts, till the pendency of the present appeal.
2. In the said application, we have noted that there are certain
remarks attributed to the Bench which are not correct. We have brought
these incorrect statements to the notice of Mr. Nalin Kohli, learned
counsel appearing for the applicant/appellant. The counsel on record for
the applicant/appellant on such observations has tendered his
unconditional apology by way of an affidavit dated 23rd July, 2024. The
said affidavit has been handed over to the Bench. Considering the
remorse expressed by the young counsel, we accept the unconditional
apology tendered by way of an affidavit and the said affidavit is taken on
record.
3. Keeping in view the acceptance of the aforesaid apology, the
incorrect remarks in paras 5 & 7 of the CM APPL. 41221/2024 stand
withdrawn by the learned counsel.
4. Since the main appeal was listed for hearing on 29th July, 2024 the
aforesaid application seeking stay having been posted for hearing today,
we are of the considered opinion that the main appeal itself may be taken
up for final disposal.
5. Thus, with consent of the learned counsel for the parties, we
proceed to hear and dispose of the main appeal itself along with pending
applications.
6. Present appeal has been preferred under Clause X of the Letters
Patent Act, 1866, assailing the judgment dated 15th March, 2024, passed
by the learned Single Judge of this Court dismissing the W.P.(C)
11420/2022 titled "Sh Harlal Saini Through His LRs Sh Surender
Kumar Saini v. Delhi Development Authority & Ors" filed by the
appellant holding that there is no infirmity in the impugned orders
assailed therein, dated 30th May, 2019 and 8th August, 2021, as also the
demolition order dated 2nd August, 2022.
7. The facts germane to the present appeal, shorn of unnecessary
details and culled out from the appeal, are as under:
a) It is the case of the appellant that he had entered into a lease
agreement for the premises located at Khasra No.407 min.
admeasuring 160 sq.yds. (recorded as 200 sq.yds in the order of
the respondent no.2/Estate Officer) at Chowki No.4, GT Karnal
Road, within the revenue estate of Village Malikpur Chawani,
Delhi, with the recorded owner, one Sh. Raja Ram prior to the
year 1960. The appellant claims to have been paying rent
regularly in terms of the said lease agreement. The appellant
claims to be in uninterrupted possession of the subject premises
since then.
b) The appellant claims that though the respondent no.1/DDA had
acquired the said property sometime in the year 1963, under the
large scale land acquisition proceedings, he continued to pay rent
to the said Sh. Raja Ram till the year 1978. He states that he
gained the knowledge of said acquisition only sometime in the
year 1978. He also claims that even thereafter, he continued to
pay rent/license fee to the respondent no.1/DDA, to which the
respondent no.1/DDA never objected and accepted such fee/rent.
c) The appellant submits that he received a notice under Section 4
of the Public Premises (Eviction of Unauthorised Occupants)
Act, 1971 (hereinafter referred to as "the PP Act"), from the
respondent no.1/DDA which asserted its ownership right and
simultaneously questioned the occupancy of the appellant of the
said premises. The appellant claims that according to the
respondent no.1/DDA, the occupancy of the appellant was
unauthorized. The appellant claims that the DDA accepted the
appellant's clarification regarding his occupation being lawful
under the lease agreement executed between the appellant and
the said Sh. Raja Ram. The appellant also claims that in
pursuance thereto, the respondent no.1/DDA permitted the
appellant to occupy the said premises on payment of license
fee/rent. The appellant states that in the month of March, 1978,
the MCD issued a notice regarding the attachment of rent on
account of original owner's non-payment of property tax. On this
basis, the appellant claims that even the Government of Delhi
recognized the status of the appellant as a lessee.
d) On the aforesaid basis, the appellant claims that the proceedings
initiated by the respondent no.1/DDA under the provisions of the
PP Act for eviction of the appellant and the consequent
demolition of the said premises is arbitrary, unlawful and
unconstitutional. The appellant also claims that since the Central
Government, after acquisition, never took physical possession of
the premises as mandated under Section 16 of the Land
Acquisition Act, 1984 (hereinafter referred to as "the LA Act"),
the transfer of the said property to respondent no.1/DDA is not
valid and as a consequence, the proceedings under the PP Act is
without jurisdiction.
e) The appellant also states that in the year 1986, the respondent
no.1/DDA yet again issued eviction notices claiming ownership
and offering the appellant the option to pay rent to respondent
no.1/DDA to avoid removal. The appellant claims to comply
with the notice and continued to pay fees as demanded.
f) The appellant also claims that in the year 1988, he undertook
permanent construction for a small scale industry which was
known to both respondent no.1/DDA and MCD. An industrial
survey is claimed to have identified the appellant's premises as
eligible for in situ Regularisation Policy for Industries. While
things stood thus, the DDA issued a notice dated 24th April,
2006, under Section 4(1) and 4(2)(b)(ii) of the PP Act calling
upon the appellant to show cause as to why an order of eviction
be not made against him. The respondent no.2/Estate Officer
passed an ex-parte eviction order against the appellant on 20th
June, 2006. The appellant challenged the same by way of an
appeal under Section 9 of the PP Act. Vide the judgment dated
13th December, 2006, the Appellate Authority i.e., the learned
Principal District & Sessions Judge remanded the matter granting
opportunity to the appellant to lead evidence. The appellant states
that the respondent no.2/Estate Officer vide the order dated 30th
May, 2019, rejected the plea/defence taken by the appellant and
directed his eviction.
g) The appellant states to have challenged the said order of the
respondent no.2/Estate Officer under Section 9 of the PP Act
before the Appellate Authority. The Appellate Authority is stated
to have dismissed the appeal of the appellant vide the judgment
dated 08th September, 2021. The appellant challenged the order
of the Appellate Authority by way of the underlying writ petition
bearing W.P.(C) No.10560/2022. The learned Single Judge of
this Court dismissed the writ petition by way of the impugned
judgment dated 15th March, 2024. Assailing the impugned
judgment of the learned Single Judge, the present appeal has
been filed.
8. Mr. Nalin Kohli, learned counsel appears for the appellant at the
outset, assails the order of the learned Single Judge on the ground that
the learned Single Judge did not consider that the entire proceedings
initiated by the respondent no.1/DDA under the provisions of the PP Act
was without jurisdiction. He submits that the PP Act was promulgated
prescribing a procedure for eviction of unauthorized occupants staying in
government bungalows and other similar premises. He states that the
premises under the occupation of the appellant did not fall within the
definition of 'Public Premises'. He predicates this submission on the
ground that the Central Government never took actual, physical
possession of the premises under the occupation of the appellant and
having failed to do so, the subject premises cannot be termed to be
Public Premises. He also urges that the Central Government having
failed to take actual, physical possession of the subject premises as
mandated under Section 16 of the Delhi Development Authority Act,
1957, (hereinafter referred to as "the DDA Act") the subject premises
could not have been transferred legally and validly onto the respondent
no.1/DDA. He submits that looking at the issue in this perspective, the
respondent no.1/DDA had no jurisdiction to proceed against the
appellant under the PP Act. Mr. Kohli submits, although without
admitting, that at the worst, the respondent no.1/DDA if at all, could
have possibly initiated some proceedings under the DDA Act. That
having not been done, he submits that the entire proceedings are vitiated.
According to him, the learned Single Judge did not consider this crucial
jurisdictional error and the impugned judgment ought to be set-aside.
9. Learned counsel also submits that the respondent no.1/DDA itself
had permitted the appellant to continue to occupy the subject premises
on payment of license fee. He submits that the respondent no.1/DDA
acknowledged the fact that the appellant was in occupation of the subject
premises by virtue of a lease agreement executed with the erstwhile
owner one Sh. Raja Ram, even prior to the acquisition of the lands. Thus,
the respondent no.1/DDA could not have termed the occupancy of the
appellant as "unauthorized" when it fully well knew that the appellant
was in lawful occupation on account of a lease agreement with the
erstwhile owner of the land. On that basis too, learned counsel submits
that the respondent no.1/DDA could not have initiated any proceedings
at all under the PP Act, which are ex-facie without jurisdiction and void
ab-initio.
10. As an alternate argument, learned counsel submits that the
appellant has been in long, continuous, hostile and uninterrupted
possession of the subject premises and as such, has perfected his title by
doctrine of adverse possession. He submits that even on that score, the
respondent no.1/DDA has no jurisdiction to have initiated proceedings
under the PP Act and could, at best, file a suit for recovery of possession,
if at all against the appellant. Since the respondent no.1/DDA has not
taken any steps to assert its ownership rights qua the subject premises, it
could not have taken recourse to remedies under the PP Act. He prays
that the orders of the lower authorities including that of the learned
Single Judge be quashed and set-aside. He also submits that since the
appellant has been able to demonstrate prima facie, strong case in his
favour, an order of restraint from eviction and consequent demolition
may also be passed simultaneously.
11. Per Contra, Mr. Arun Birbal, learned counsel for the respondent
no.1/DDA reiterates that submissions made before the learned Single
Judge and supports that observations and analysis contained in the
impugned judgment.
12. Learned counsel for the respondent no.1/DDA submits that the
submission of the appellant regarding lack of jurisdiction of the DDA to
initiate proceedings under the PP Act is legally and factually unfounded.
He submits that the appellant never questioned the initiation of the
eviction proceedings under the PP Act, either before the respondent
no.2/Estate Officer or before the Appellate Authority i.e., the Principal
District & Sessions Judge, Delhi. In fact, learned counsel submits that
the appellant was proceeded ex-parte in the initial round of eviction
proceedings which culminated in an ex-parte eviction order by the
respondent no.2/Estate Officer. He submits that this order was
challenged by the appellant and the Appellate Authority had set-aside the
ex-parte eviction order and remanded the matter for recording of
evidence of the appellant and for a fresh order to be passed by the
respondent no.1/Estate Officer. He states that, all this while, uptill the
matter reached the learned Single Judge, the appellant never raised the
issue of lack of jurisdiction of the respondent no.1/DDA in initiating the
proceedings under the PP Act. According to learned counsel, the
appellant is therefore, bound by the orders passed by the Authorities
under the PP Act and the said orders have rightly been upheld by the
learned Single Judge.
13. Learned counsel for respondent No.1/DDA also submits that once
the subject premises were acquired in accordance with the procedure
prescribed under the LA Act by the Central Government, there is no
question of the said premises not being Public Premises. He submits that
the Central Government had taken possession of the subject premises in
accordance with the provisions of the LA Act and handed over the same
to the respondent no.1/DDA for further development. He submits that
the subject premises having been acquired for public purpose, i.e., the
industrial development within that area, would then automatically be
defined as Public Premises. He thus, submits that the action undertaken
by the respondent no.1/DDA under the PP Act was in consonance with
the provisions of not only the LA Act but also the PP Act. He states that
no separate proceedings need to have been initiated by the respondent
no.1/DDA under the DDA Act separately. He prays that the appeal be
dismissed with costs.
14. We have heard the learned counsel for the parties, perused the
documents on record and considered the impugned judgment passed by
the learned Single Judge.
15. We find from the perusal of the records that the submission in
respect of the eviction proceedings having been initiated under the PP
Act being wholly without jurisdiction is untenable and unavailable to the
appellant since no such legal ground was raised specifically by the
appellant before the learned Single Judge in the underlying writ petition.
Though, it is trite that a question of law can be raised even at the
appellate stage uptill the stage of the Supreme Court, however, it is also
well settled that the same cannot be countenanced in the absence of
foundational facts.
16. In the present case, we find that the appellant had assailed the ex-
parte order of eviction dated 20th June, 2006, passed by the respondent
no.2/Estate Officer under the PP Act, 1971. This order was set-aside by
the Appellate Authority in an appeal filed under Section 9 of the PP Act,
directing the respondent no.2/Estate Officer to permit the appellant to
lead evidence in respect of his submission that the subject premises were
regularized in his favour by the respondent no.1/DDA. We also find
from the record that despite numerous opportunities from the year 2006
to the year 2019 when the respondent no.2/Estate Officer had passed the
eviction order on 30th May, 2019, the appellant had failed to produce any
document whatsoever in proof of such submission. Moreover, the
appellant again challenged the eviction order dated 30th May, 2019,
under the provisions of Section 9 of the PP Act by way of an appeal
before the Appellate Authority. The appellant did not challenge any of
such proceedings before a Court of competent jurisdiction questioning
the jurisdiction or applicability of the PP Act to the subject premises.
Thus, having acquiesced and subjugated himself to the proceedings
under the PP Act, the appellant cannot be heard to question the
proceedings under the PP Act.
17. It is also relevant to note that even in the writ petition filed before
this Court, not even a single ground laying a challenge to the initiation of
eviction proceedings under the PP Act was taken. Thus, having failed to
aver foundational facts as also legal challenge before the lower
authorities or the learned Single Judge in the writ petition, the
submission in regard thereto raised for the first time before this Court,
cannot be considered by us and accordingly stands rejected.
18. Apart from that, the appellant has failed to demonstrate his lawful
occupation over the subject premises even prior to the land acquisition
proceedings. No lease agreement stated to have been executed between
the appellant and the said Sh. Raja Ram has ever been placed before any
of the lower authorities or the learned Single Judge or even in the present
appeal. It appears that the appellant has filed the purported rent receipts
only before this Court in the appeal which have not been tested for their
evidentiary value by the Court of competent jurisdiction and as such,
cannot be considered by us in appellate proceedings. The other set of
documents filed by the appellant are the receipt for recovery of damages
issued by the respondent no.1/DDA. It is intriguing to note that though
on one hand, learned counsel for the appellant argues that the appellant
was paying license fee to the respondent no.1/DDA, yet on the other, the
said receipt indicates that the damage charges were being levied from the
appellant on account of unauthorized occupation of the subject premises.
It is relevant to note that the said receipts were issued under the orders
passed by the respondent no.2/Estate Officer, DDA, under Section 7 (2)
of the PP Act. This itself makes it amply clear that even the appellant
was under no misconception that the subject premises were in fact,
'public premises', falling within the definition contained in the PP Act.
This relevant fact would completely demolish the case set up by the
appellant in his appeal.
19. The aforesaid analysis also propels us to conclude that the DDA
had all the right, authority or jurisdiction to initiate eviction proceedings
under the PP Act on the premise that the appellant was an unauthorized
occupant paying damage charges under the provisions of the PP Act. It
goes without saying that unless the premises were the public premises,
the appellant would, in our opinion, not have paid the damage charges or
atleast would have protested against the same. We find no document
worth its salt nor any submission on record to demonstrate that the
appellant had ever protested against the said levy. It is clear that the
appellant had subjugated himself to the authority of PP Act and as such,
cannot now commit volte face and submit to the contrary. We thus, reject
the submission of the appellant on this score too.
20. The submission of the appellant regarding acquiring ownership by
way of prescription in the nature of adverse possession was projected in
a half hearted manner. It is settled law that the issue of adverse
possession is absolutely factual and can only be settled by filing of a suit
in the Court of competent jurisdiction. Such foundational facts, though
not pleaded in the classical sense, can only be proved by way of
evidence which cannot be a subject matter of either the petition under
Article 226 of the Constitution of India or the appeal under the Letters
Patent Act, 1866 whereby the High Courts exercise their extraordinary
original and appellate civil jurisdiction. Thus, the said argument is noted
only to be rejected.
21. In view of the aforesaid analysis and findings, we find no reason,
much less any cogent reason to interfere with the impugned judgment
passed by the learned Single Judge. Resultantly, the present appeal is
dismissed without any order as to costs.
22. Pending applications also stand disposed of.
ACTING CHIEF JUSTICE
TUSHAR RAO GEDELA, J.
JULY 23, 2024/kct
