IN THE COURT OF SHRI [ENTITY] : DISTRICT & SESSIONS JUDGE (EAST) : KARKARDOOMA COURTS, DELHI. PPA No.30/2014 Unique Case ID No.02402C0061552014 Sh. [ENTITY] S/o Late Sh. Mohan Lal R/o H.No.51, Patpar Ganj, Delhi110091. Appellant Versus Estate Officer Delhi Development Authority INA, Vikas Sadan, New Delhi. Respondent Date of Institution : 24.02.2014 Date of arguments : 10.03.2014 Date of order : 01.04.2014 O R D E R
The appellant has filed present appeal under [SECTION] of the [ACT] (hereinafter referred to as "the [ACT]"), against the eviction order dated 31.01.2014 passed by the Estate Officer. 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 13344 Bigha of land belonging to the Delhi Improvement Trust was allotted to Delhi Peasants Cooperative Multipurpose Society Ltd. (hereinafter referred to as the Society) vide Resolution No.157 dated 29.06.1949 in villages Patparganj Shamspur, Jatwara Kalan South, Gaonwala, [ENTITY], Jhilmil Tahirpur South, Jhilmil Tahirpur North and [ENTITY]. The Society alloted the aforesaid land to its members who were cultivating the same since its allotment. The Society allotted 1 bigha 2 biswa of land situated in Khasra No.71 min., revenue estate of [ENTITY] to the appellant being its member. The Society had been regularly paying land revenue. On 31.07.1967, letter was issued by DDA to the Society vide which the Society was asked to hand over the possession of land not later than 05.08.1967. Thereafter, the Society filed a suit for restraining the DDA to give effect to letter dated 31.07.1967. The said suit filed by the Society was dismissed. Thereafter, the Society filed an appeal before Hon'ble High Court bearing [CASE NUMBER] in which statement was made by counsel for the DDA to the effect that the appellant would not be dispossessed without following the due process of law. Accordingly, the said appeal was disposed off. A notice was issued to the Society as to why an eviction order may not be passed. Thereafter, DDA filed an eviction petition against the Society and the Ld. Estate Officer passed the eviction order dated 01.08.2007. The said eviction order was challenged by the Society 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 appellant 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 31.01.2014 u/[SECTION] of the [ACT], declaring the appellant, as unauthorized occupant, 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 Society; and
(d) Denial of of fair opportunity.
5 Ld. Counsel for the appellant 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 was not mentioned therein. He has further argued that lease of the Society 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 the Society vide letter dated 31.07.1967. 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 Society was without any demand from the DDA. It has also been argued that as the appellant was 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 Society was validly determined by DDA vide letter dated 31.07.1967. He has further argued that appellant was served with show cause notice which was valid one as specification of land in his possession was mentioned. It has been argued that the tenancy of the appellant 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 appellant. The appellant 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 appellant before him, now the appellant can not take the ground that the Estate Officer had no authority and that too after passing of eviction order. This contention of the appellant 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 appellant is that the show cause notice did not contain the specification of the land in possession of the appellant, hence, same was defective. Perusal of the show cause notice shows that land measuring 1 bigha 2 biswa in Khasra No.71 min. was shown to be in possession of the appellant 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 was specifically mentioned. It is also mentioned therein that the land in question is required by the DDA for the development of Biodiversity park. Therefore, there is no force in this contention of the appellant 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 appellant is that the tenancy/ lease of the Society has not yet been determined and the letter dated 31.07.1967 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 Society vide resolution No.157 dated 29.06.1949. As per this resolution, the terms and conditions of the lease were finalized. As per lease deed, the period of lease at the instance was for 5 years. It is also matter of record that the Delhi Improvement Trust has been succeeded by the Delhi Development Authority. There is no dispute in this regard that ownership of land leased out to the Society 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 31.07.1967 vide which the lease/tenancy of the appellants was determined, reads as under : "Whereas the term of lease of Nazul land situated in Estates of Inderprastha, Bela, Chiragah North and Chiragah South given to the Delhi Peasants Co operative Multipurpose Society stands expired on 14.6.1966, you are, therefore, hereby required to hand over the possession of the land immediately but not later than 5th of August to the Tehsildar Nazul, Delhi Development Authority."
12 The abovequoted letter dated 31.07.1967 was issued to the Secretary of the Society 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 Society by 05.08.1967. In this letter, it was specifically mentioned that lease of the land granted to the Society ended in June, 1966 which clearly goes to prove that lease of the Society expired by efflux of time as no renewal of the lease was made by the DDA for the period beyond June, 1966. By issuance of this letter, the tenancy/lease of the Society was determined by the DDA.
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 Society obtained the possession of the premises in question under a lease from the respondent and then gave the premises to appellant for its use and occupation. The lease of the Society was determined by the respondent vide letter dated 31.07.1967 and by issuing that letter which is a notice under [SECTION] of the [ACT], lease of the Society stood terminated/determined. After determination of lease by respondent, the appellant became unauthorized occupant as defined in [SECTION] of the [ACT] inasmuch as right to use the said land by appellant flows from the rights of the Society.
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 Society was determined.
16 The appellant was present during proceedings on 15.05.2013 and had stated that he would act as per advice of the Society and the statement of [ENTITY], General Secretary of the Society was recorded on 14.10.2013. In his statement, [ENTITY] has stated that he was not aware whether the Society had received letter dated 31.07.1967 whereby the Society was informed regarding cancellation/determination of lease and was asked to surrender the possession by 05.08.1967. Admittedly the rights of the occupant flow from the Society 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 Society was determined/terminated by the DDA vide letter dated 31.07.1967 whereby calling upon it to hand over the possession by 05.08.1967. 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 appellant to hand over the possession. Even otherwise, the tenancy/lease of the land in question was in favour of the Society and there was no transfer of land in question as per the [ACT] in favour of the appellant by the Society. The possession of land in favour of the appellant was the internal matter as he was alloted the land being member of the Society. There is force in the contention of the ld. Counsel for DDA that the tenancy/ lease in favour of the appellant was not as per law. It has been shown on record that the lease/tenancy of the Society was determined by DDA vide letter dated 31.07.1967 and it was asked to hand over the possession of leased out land by 05.08.1967. 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 which was alloted the land in question was declared as an unauthorized occupant vide letter dated 31.07.1967 and then the Ld. Estate Officer passed the eviction order dated 31.01.2014.
21 Next contention raised by the appellant is that he was not given opportunity to cross examine the witnesses of the DDA. Perusal of record shows that on 15.05.2013, statements of Smt. [ENTITY], Sh. [ENTITY] and Sh. [ENTITY] on behalf of DDA were recorded. On 14.10.2013, statement of Sh. [ENTITY], General Secretary of the Society was recorded. The appellant had made the statement that he would act as per advice of the Society. This shows that both the parties were given due opportunity to adduce their evidence which they availed. The witnesses of DDA were cross examined by the counsel for the Society. After conclusion of evidence, the Estate Officer heard arguments of both sides and then passed the impugned order of eviction. The appellant has failed to demonstrate from the record that principles of natural justice were not adhered to by the Estate Officer.
22 The appellant has 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 appellant 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 appellant 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 and thereafter eviction proceedings followed. So, DDA has adopted due procedure for eviction of the appellant as per the provisions of the [ACT].
23 In the present case, the lease was given to the Society for the period of 5 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. In the present case, the lease was not extended by the Competent Authority and the Society was asked to surrender the possession of land vide letter dated 31.07.1967. The Society could not have any right to continue in possession thereafter what to say about rights of the appellant who had just entered into the shoes of the Society for the limited purpose. There was no tenancy agreement between the appellant and the Society and the land in possession of the appellant was alloted to him being member of the Society. Moreover, case of the appellant is that he agreed with the statement of Sh. [ENTITY], General Secretary of the Society.
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 appellant 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, 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 Society vide letter dated 31.07.1967 in which it was asked to hand over the possession of the land in question to the DDA. The lease of the Society was terminated by the DDA vide letter dated 31.07.1967 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 Society initially for a period of five years. The land was leased out with the condition that the Society may sublet the land to its members but the rights of the members were restricted to the rights of the Society. The DDA vide letter dated 31.07.1967 determined the lease of the Society 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. Delhi Development Authority 2013 VII AD (Delhi) 16 has 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 is unauthorized occupant of the government land which was leased out to the Society 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 appellant. The period of authorization of the appellant to occupy the premises in question was determined vide letter dated 31.07.1967 and after determination of the lease, appellant was in unauthorized occupation under [SECTION] of the [ACT]. The appellant has failed to make out any ground in support of his appeal. The eviction order passed by the Estate Officer dated 31.01.2014 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: 01.04.2014 District & Sessions Judge (East) Karkardooma Courts : Delhi