IN THE COURT OF SHRI [ENTITY] : DISTRICT & SESSIONS JUDGE (EAST) : KARKARDOOMA COURTS, DELHI. [CASE NUMBER] Unique Case ID No.02402C0261352013 1. Smt. [ENTITY] W/o Lt.Sh. Rattan Singh R/o 199, Matawali Gali, Mandawali Fazal Pur, Delhi92. 2. [ENTITY] Through its Secretary, 325/84, Jheel Khuranja, Delhi110031. Appellants Versus [ENTITY] Through Vice Chairman Vikas Sadan, INA Market, New Delhi110014 Respondent Date of Institution : 21.08.2013 Date of arguments : 23.09.2013 Date of order : 01.10.2013 [CASE NUMBER] Smt. [ENTITY] & Anr. Vs. DDA Page 1 of 21 O R D E R
The appellants Smt. [ENTITY]( here in after referred to as the appellant No.1) and [ENTITY] (here in after referred to as the appellant No.2) have filed present appeal under [SECTION] of the [ACT] (here in after referred to as "the [ACT]"), against the eviction order dated 02.08.2013 passed by the Estate OfficerII.
2 I have heard learned counsels for the parties and have carefully gone through the entire material on record. 3 Facts emerging out from the present appeal are that 7938 Bigha 12 Biswa of land belonging to the Delhi Improvement Trust was allotted to the appellant No.2 vide resolution No.103 dated 25.05.1950 in village Jheel Khuranja and Chiragaha South. 2660 bigha 14 biswa of land belonging to UP Irrigation Department which was under the management of the Delhi Improvement Trust was also alloted to the appellant No.2. On 20.04.1962, possession of 2660 bigha 14 biswa was surrendered to the UP Irrigation Department and thereafter only 4380 bigha land remained with the appellant No.2. The appellant No.2 alloted the aforesaid land to its members who were cultivating the same since its allotment. The appellant No.2 allotted 8 bigha of land situated in Khasra No.50 min, revenue estate of [ENTITY] to the appellant No.1 being its member. The appellant No.2 had been regularly paying land revenue. On 16.10.1967 two letters were issued by DDA to the Secretary of the appellant No.2 vide which the appellant No.2 was asked to hand over the possession of land and to deposit the arrears of rent amounting to Rs.2,71,957.48. Thereafter, the appellant No.2 filed a suit for declaration, mandatory and perpetual injunction for restraining the DDA to give effect to letter dated 16.10.1967 and to recover the arrears of rent amounting to Rs.2,71,957.48. The appellant No.2 Society gave up the relief of declaration and vide judgment and decree dated 24.05.1971, the said suit was dismissed while observing that the required notice under [SECTION] of the [ACT] was not served upon the DDA. Thereafter, the appellant No.2 filed an appeal before Hon'ble High Court bearing [CASE NUMBER] in which statement was made by counsel for the DDA on 26.07.1977 to the effect that the appellant would not be dispossessed and amount would not be recovered except under the provisions of the [ACT]. Accordingly, the said appeal was disposed off. On 20.07.1983, a notice was issued to the appellant No.2 by Ld. Estate Officer as to why an eviction order may not be passed. The Ld. Estate Officer dropped the eviction proceedings while observing that the appellant No.2 was no more in possession of land in Chiragaha South since [ENTITY]. Thereafter, DDA filed an eviction petition against the appellant no.2 Society and the Ld. Estate OfficerIV passed the eviction order dated 01.08.2007. The said eviction order was challenged by the appellant No.2 by filing an appeal before this Court. The Court vide judgment dated 1.9.2009 set aside the eviction order passed by Estate Officer while observing that the description of land was not mentioned therein and matter was remanded back to the Estate Officer with the directions to pass order afresh clearly specifying/showing the description of land for which the eviction order was passed. Thereafter, the appellants received show cause notice under [SECTION] of the [ACT] which was replied and proceedings were initiated. Before the Ld. Estate Officer, both the parties adduced evidence in support of their case. Thereafter, Ld. Estate Officer passed impugned order dated 02.08.2013 U/[SECTION] of the [ACT], declaring the appellants, as unauthorized occupants, which has been challenged by way of present appeal. 4 The impugned order has been challenged on the following grounds :
(a) No authorization/notification regarding appointment of Estate Officer;
(b) Invalidity of show cause notice;
(c) Nondetermination of tenancy/lease of the appellant No.2; and
(d) Denial of of fair opportunity.
5 Ld. Counsel for the appellants has argued that the Estate Officer had no authority to initiate eviction proceedings and to pass eviction order as he was not appointed as per [SECTION] of the [ACT]. He has further argued that notice under [SECTION] of the [ACT] was not valid as the details of the exact land in occupation of the appellant No.1 was not mentioned therein. He has further argued that lease of the appellant No.2 has not been determined so far. He further argued that statement of counsel for DDA in [CASE NUMBER] has not been appreciated by the Estate Officer. It has been argued that the Estate Officer wrongly observed that DDA had terminated the lease of appellant No.2 vide letter dated 16.10.1967. He has further argued that land in question was allotted for agricultural purpose and lease could not be terminated before expiry of six months under [SECTION] of the [ACT]. The Estate Officer has wrongly observed that payment of lease money by the appellant No.2 was without any demand from the DDA. It has also been argued that as the appellants were not given opportunity to cross examine the witnesses of DDA, therefore, the principles of natural justice were flouted.
6 On the other hand, it has been argued by ld. Counsel for DDA that the Estate Officer was competent to adjudicate upon the present dispute as notification in this regard was published and same has been placed on record. It has been further argued that the lease of the appellant No.2 was validly determined by DDA vide letter dated 16.10.1967. He has further argued that appellants were served with show cause notice which was valid one as specification of land in their possession was mentioned. It has been argued that the tenancy of the appellant No.1 was not as per the provisions of [ACT].
7 To appreciate the rival contentions, I have gone through the material available on record. First contention is with regard to authority of the Estate Officer to adjudicate upon the dispute in the present case. Perusal of the record shows that no objection with regard to authority of the Estate Officer to adjudicate upon the present dispute was raised by the appellants. The appellants contested the eviction proceedings but no objection to the authority of the Estate Officer to conduct the proceedings was raised. Once the authority of the Estate Officer remained unchallenged and pleadings and evidence was filed by the appellants before him, now the appellants can not take the ground that the Estate Officer had no authority and that too after passing of eviction order. This contention of the appellants appears to be an afterthought and there is no force in it. Moreover, the copy of notification No.916 dated 18.07.2001 has been produced on record by the DDA which shows that the Estate Officer was authorized to conduct the proceedings. 8 Next contention raised by the appellants is that the show cause notice did not contain the specification of the land in possession of the appellant No.1, hence, same was defective. Perusal of the show cause notice shows that land measuring 8 bigha in Khasra No.50 min. was shown to be in possession of the appellant No.1 which was required to be evicted for the development of 'O' Zone/ channelization of Yamuna River (Biodiversity park) which was never in dispute during the proceedings. In the show cause notice, the description of land in possession of the appellant No.1 was specifically mentioned. It is also mentioned therein that the land in question is not required by the DDA for the development of Bio diversity park. Therefore, there is no force in this contention of the appellants in as much as in the show cause notice the description of land is clearly mentioned for which he was called upon to show cause. Therefore, it was a valid show cause notice. 9 Next contention of the appellants is that the tenancy/ lease of the appellant No.2 has not yet been determined and the letter dated 16.10.1967 can not be said to have been issued for determination/cancellation of lease deed. Perusal of record shows that the land including the land in question was placed at the disposal of the then Delhi Improvement Trust vide agreement dated 31.03.1937 entered into between the Trust and the Secretary of State of India in Council. It is also matter of record that the Trust leased out the land to the appellant No.2 vide resolution No. 103 dated 25.05.1950. As per this resolution, the terms and conditions of the lease were finalized. As per para 3 (ii) of the lease, the period of lease at the first instance was for 5 years which was renewable for a further period of 10 years each. It is also matter of record that the Delhi Improvement Trust has been succeeded by the [ENTITY]. There is no dispute in this regard that ownership of land leased out to the appellant No.2 stood transferred to the DDA. 10 It is pertinent to quote [SECTION] of the [ACT] which defines the terminology "unauthorized occupant", which reads as under :
"The occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever".
11 Letter dated 16.10.1967 vide which the lease/tenancy of the appellants was determined, reads as under : "Whereas the terms of lease of Nazul land situated in Estates of Inderpat and Chiragha South given to the Jheel Kuranja Cooperative Milk Producers' Society ltd., Delhi stands expired, you are,therefore, hereby required to hand over the possession of the land immediately but not later than the 23rd October, 1967 to the Tehsildar Nazul, [ENTITY]."
12 The abovequoted letter dated 16.10.1967 was issued to the Secretary of the appellant No.2 informing him that the lease stood expired by issuance of said letter and he was asked to hand over the possession of land leased out to the appellant No.2 by 23.10.1967. Another letter of even date was also issued by the DDA to the appellant No.2 to deposit the arrears of rent amounting to Rs. 2,71,957.48. In this letter, it was specifically mentioned that lease of the land granted to the appellant No.2 ended in June, 1961 which clearly goes to prove that lease of the appellant No.2 expired by efflux of time as no renewal of the lease was made by the DDA for the period beyond June, 1961. By issuance of these letters, the tenancy/lease of the appellant No.2 was determined by the DDA and arrears of rent were demanded from the appellant No.2 being occupation/user charges after June, 1961.
13 I have gone through the ratio of judgment in case of [PRECEDENT] in which the unauthorized occupant as defined in [SECTION] of the [ACT] has been elaborated. While dealing with this aspect, it was observed that the definition of unauthorized occupant covers a case where a person has entered into occupation of the Public Premises legally as a tenant under a lease but whose tenancy has expired or has been determined in accordance with law. The second part of the definition as contained in [SECTION] is inclusive in nature and it expressly covers continuance in occupation by any person of the Public Premises after the authority under which he was allowed to occupy the premises has expired or has been determined.
14 In the present case, it has been shown that the appellant No.2 obtained the possession of the premises in question under a lease from the respondent and then gave the premises to appellant No.1 for its use and occupation. The lease of the appellant No.2 was determined by the respondent vide letter dated 16.10.1967 and by issuing that letter which is a notice under [SECTION] of the [ACT], lease of the appellant No.2 stood terminated/ determined. After determination of lease by respondent, the appellant No.1 became unauthorized occupant as defined in [SECTION] of the [ACT] inasmuch as right to use the said land by appellant No.1 flows from the rights of appellant No.2.
15 Next contention raised by the appellant is that lease could not have been terminated by the DDA before expiry of six months as mandated in [SECTION] of the [ACT] in as much as the land in question is agricultural land. On the other hand, it has been contended by ld counsel for the DDA that [SECTION] of the [ACT] is not applicable in as much as there is a special statute under which lease of the appellant No.2 was determined.
16 The appellant No.1 was present during proceedings on 30.07.2013 and had stated that she agreed with the statement of Sh. [ENTITY], Manager of the appellant No.2 for evidence. [ENTITY], Manager of the appellant No.2 was examined and cross examined during proceedings. In his statement, [ENTITY] has categorically admitted that the appellant No.2 had received letter dated 16.10.1967 whereby the appellant No.2 was informed regarding cancellation/determination of lease and was asked to surrender the possession by 23.10.1967. Admittedly the rights of the occupant flow from the appellant No.2 which was asked to surrender the possession. 17 After going through the rival contentions of the parties on this point, I have gone through the ratio of judgment of the Apex Court in case of [PRECEDENT]. Facts of the said case were that lease deed between the parties was not a registered lease deed as was necessary under [SECTION] of the [ACT]. In the said case, there was 7 days notice of termination of lease. It was held by the Apex Court that provisions of [SECTION] and [SECTION] of the [ACT] could not be applied to the said case since the premises were covered under a special Act which will prevail as against a general enactment. It was also observed that the Division Bench of the High Court erred in insisting that a 15 days' notice was necessary.
18 In the present case, lease of the appellant No.2 was determined/terminated by the DDA vide letter dated 16.10.1967 whereby calling upon it to hand over the possession by 23.10.1967. As per the law of land in Cantonment Board's case(supra), since the land in question is covered under special Act i.e. [ACT], the general enactment i.e. [SECTION] of the [ACT] will not be applicable in the present case. So, there was no necessity to give notice under [SECTION] of the [ACT] by giving six months time to the appellants to hand over the possession. Even otherwise, the tenancy/lease of the land in question was in favour of the Society , the appellant No.2, and there was no transfer of land in question as per the [ACT] in favour of the appellant No. 1 by the appellant No.2. The possession of land in favour of the appellant No.1 was the internal matter as he was alloted the land being member of the Society i.e. the appellant No.2. There is force in the contention of the ld. Counsel for DDA that the tenancy/lease in favour of the appellant No.1 was not as per law. It has been shown on record that the lease/ tenancy of the appellant No.2 was determined by DDA vide letter dated 16.10.1967 and it was asked to hand over the possession of leased out land by 23.10.1967. Since the lease/tenancy of the Society was not extended, the appellant become unauthorized occupant of the land in question.
19 I have gone through the ratio of judgment in case of Syndicate Bank Vs. Ramachandran Pillai and Ors. 2011(1) Scale
368. Facts of the case were that the appellant bank was the owner of a shop and one [ENTITY] was the tenant in occupation of the said premises till 1997. In the year 1998, appellant bank issued a notice terminating the tenancy and called upon [ENTITY] to vacate the premises. As he failed to vacate, action was taken against him under the [ACT]. The Supreme Court upheld the eviction order of the Estate Officer by declaring his legal representatives as unauthorized occupants.
20 In the present case also, the Society i.e. the appellant No.2 which was alloted the land in question was declared as an unauthorized occupant vide letter dated 19.10.1967 and then the Ld. Estate Officer passed the eviction order dated 02.08.2013. 21 Next contention raised by the appellants is that they were not given opportunity to cross examine the witnesses of the DDA. Perusal of record shows that on 30.07.2013, statements of Smt. [ENTITY], Sh. [ENTITY] and Sh. [ENTITY] on behalf of DDA were recorded. On the same day, statement of Sh. [ENTITY], Manager of the appellant No.2 was also recorded. The appellant No.1 has made the statement that she was agreed with the statement of Sh. [ENTITY] for evidence. This shows that both the parties were given due opportunity to adduce their evidence which they availed. No submission was made by the appellants to cross examine the witnesses of the DDA. No application seeking permission was moved by the appellants requesting the Estate Officer to cross examine the witnesses of DDA. After conclusion of evidence, the Estate Officer heard arguments of both sides and then passed the impugned order of eviction. The appellants have failed to demonstrate from the record that principles of natural justice were not adhered to by the Estate Officer.
22 The appellants have also raised the contention that the Ld. Estate Officer has not appreciated the statements of counsel for DDA made in [CASE NUMBER]. Perusal of statement made by the counsel for DDA in [CASE NUMBER] shows that he made the statement that the appellants would not be dispossessed and amount would not be recovered except under the provisions of the [ACT]. It is a matter of record that thereafter proceedings were initiated against the appellants by the DDA under the provisions of the [ACT] for which a notice to show cause under [SECTION] and [SECTION] of the [ACT] was issued to the appellant No.1 and thereafter eviction proceedings followed. So, DDA has adopted due procedure for eviction of the appellant No.1 as per the provisions of the [ACT].
23 In the present case, the lease was given to the Society i.e. the appellant No.2 for the period of 5 years renewable for the period of 10 years. As per condition of the lease, the land could have been sublet to members of the Society but rights of the members were restricted to rights of the Society i.e. the appellant No.2. In the present case, the lease was not extended by the Competent Authority and the appellant No.2 was asked to surrender the possession of land vide letter dated 23.10.1967. The appellant No.2 could not have any right to continue in possession thereafter what to say about rights of the appellant No.1 who had just entered into the shoes of the appellant No.2 for the limited purpose. There was no tenancy agreement between the appellant No.1 and the appellant No.2 and the land in possession of the appellant No.1 was alloted to him being member of appellant No.2. Moreover, case of the appellant No.1 is that he agreed with the statement of Sh. [ENTITY], Manager of the Society, the appellant No.2.
24 In view of discussion made above, I am of the considered opinion that there were sufficient grounds with the DDA to proceed for the eviction of the appellants which do not have any right to continue in possession of land being without any authorization. The Estate Officer was duly authorized to conduct the eviction proceedings as per the notification No.916 dated 18.07.2001. In the show cause notice issued to the appellant No.1, description of land in his possession has specifically been mentioned. It is also mentioned in the show cause notice that the land is now required by the DDA for the development of Biodiversity park. The DDA determined/ terminated the lease of the appellant No.2 vide letter dated 16.10.1967 in which it was asked to hand over the possession of the land in question to the DDA. Vide letter of the even date, the appellant No.2 was also asked to pay the arrears of rent being unauthorized occupant of the same. The lease of the Society was terminated by the DDA vide letter dated 16.10.1967 and as per the judgment in case of Cantonment Board (supra), there was no need to give six months' advance notice. It has come on record that initially lease of the land in question was given to the appellant No.2 Society initially for a period of five years. The land was leased out with the condition that the appellant No.2 may sublet the land to its members but the rights of the members were restricted to the rights of the appellant No.2. The DDA vide letter dated 16.10.1967 determined the lease of the appellant No.2 and by the efflux of time also, the lease stood expired. The Ld. Estate Officer has also followed the principles of natural justice as he had given both the parties opportunity to adduce evidence, which they duly availed.
25 It is pertinent to mention that [ACT] has been enacted by the Parliament being a Special Act which is intended to deal with speedy recovery of possession of premises of public nature i.e. property belonging to the Central Government or Companies in which the Central Governments has substantial interest or Corporations owned or controlled by the Central Government and certain corporations, institutions, autonomous bodies and local authorities.
26 It is pertinent to mention that similar appeal titled [ENTITY] vs. DDA was dismissed by this Court vide order dated 07.03.2013. Thereafter, the appellant preferred writ petition against the dismissal of appeal by this Court. Hon'ble High Court while deciding writ petition, in [ENTITY] and Anr. vs. [ENTITY] 2013 VII AD(Delhi) 16 has held that where petitioners did not claim either before Estate Officer or before District Judge that Society had been given option for renewal of lease and it had been exercising said option from time to time, they can not be allowed to raise such plea for first time in writ petition because this question is question of fact which requires recording of evidence and on which no finding can be rendered by writ court. It was further held that lease was granted to the society only for five years. After expiry of five years, DDA asked the petitioners to vacate aforesaid land vide letter written to the society. There was no implied extension of lease and that possession of the petitioners after that letter was that of unauthorized occupants within the meaning of [SECTION] and Estate Officer was justified in directing their eviction from the said land.
27 The judgment of [ENTITY]'s case (supra) is squarely covered in the present case. Consequently, in my considered opinion, the Ld. Estate Officer was competent to pass eviction order. He has followed the principles of natural justice while conducting the proceedings and then passed the eviction order. It has been established that the appellant No.1 is an unauthorized occupant of the government land which was leased out to the appellant No.2 and the eviction order was passed as per [SECTION] of the [ACT]. This being the position, there is no substance in the grounds taken by the appellants. The period of authorization of the appellant No.1 to occupy the premises in question was determined vide letter dated 16.10.1967 and after determination of the lease, appellant No.1 was in unauthorized occupation under [SECTION] of the [ACT]. The appellants have failed to make out any ground in support of their appeal. The eviction order passed by the Estate Officer dated 02.08.2013 is hereby upheld. Appeal is accordingly dismissed. 28 The record of the Estate Officer be returned with a copy of the order. Appeal file be consigned to record room.
Announced in the open Court ( [ENTITY] ) Dated: 01.10.2013 District & Sessions Judge (East) Karkardooma Courts : Delhi