Delhi State Industrial Development … vs K.C. Bothra And Ors. on 14 November 2003

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Delhi High Court
Delhi State Industrial Development … vs K.C. Bothra And Ors. on 14 November, 2003
Equivalent citations: 2004(72)DRJ244, 2004 A I H C 145, (2004) 72 DRJ 244, (2004) 16 ALLINDCAS 344 (DEL), (2003) 108 DLT 447, (2004) 1 RENCR 293, (2004) 1 RENTLR 713
Author: R.C. Jain
Bench: R.C. Jain
JUDGMENT

R.C. Jain, J.

1. Is a lessee of Public Premises who continues in possession after the expiry of lease by efflux of time must necessarily be served with a notice under Section 106 of the Transfer of Property Act, 1882, before initiating the proceedings for his eviction and recovery of damages under the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971? is the important question which arises for consideration in this batch of matters.

2. The common order passed by Sh. Raghubir Singh, learned Additional District Judge, Delhi dated 14th February, 2002 thereby disposing of several appeals under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the ‘Act’) against the orders of eviction and recovery of damages passed by the Estate Officer under Section 5 and under Section 7 of the Act, are the subject matter of Civil Miscellaneous (Main), Petitions under Article 227 of the Constitution of India filed by the petitioners-allottees of different industrial sheds. The composite and common order passed by Sh. S.N. Aggarwal, Additional District Judge, Delhi dated 16th November, 1996 disposing of certain earlier appeals of similar nature but taking a contrary view are the subject matter of Civil Revisions filed by the Delhi State Industrial Development Corporation (for short ‘DSIDC’). As identical facts and common questions of law are involved in these cases, it is proposed to dispose them of through this common order.

3. The germane facts which may be noticed for deciding these petitions are that around the year 1975-76, the Government sponsored a scheme known as “Half Million Employment Programme For Young Unemployed Entrepreneurs”. In 1977, the DSIDC built up certain industrial sheds in different localities of Delhi for allotment to the unemployed engineering degree and diploma holders. The DSIDC allotted the sheds to various entrepreneurs to begin with on lease basis at a monthly rent of Rs. 1310/- per month for a period of three years from the date of execution of the lease deed. In some cases the lease deeds were duly executed and registered with Sub-Registrar, while in most of the cases only a draft lease agreement/performa was prepared and signed only by one side i.e. the entrepreneur and not by anyone on behalf of the Lesser DSIDC. Though initially the monthly rent of the sheds was fixed at Rs. 1310/- per month but vide a circular dated 27.1.79 rent was reduced from Rs. 1310/- to Rs. 525/-per month. The entrepreneurs continued to pay the rent though irregularly at the reduced rates. Later, DSIDC floated another scheme for transfer of the industrial sheds to the entrepreneurs on hire purchase basis conferring the ownership rights on them subject to payment of the determined price in lump sum or on deferred basis and accordingly made the offers to the entrepreneurs in that behalf. The entrepreneurs did not accept the said offers as they felt that the price so fixed was arbitrary and on a higher side. Dispute arose between the DSIDC and allottees over the price of sheds and the allottees made several representations to the DSIDC and Delhi Government and also challenged the price of the sheds as fixed by the DSIDC through various writ petitions filed in this Court. They also filed certain civil suits for declaration, that the prices of the sheds as fixed by the DSIDC was arbitrary and not binding on them. Threatened with the dispossession from the allotted sheds due to non-acceptance of the offers made by the DSIDC and not making the payment of the price as asked for by the DSIDC, the Association of Entrepreneurs and several allottees like R. Sehgal, Chander Prakash filed writ petitions in this Court and this Court disposed of the same with various directions. In another writ filed by one of the allottees of the shed namely Ms. Pushpa Lata reported in (1996) (1) Apex Decision, Delhi, this Court granted the entrepreneur one last opportunity to make the payment in terms of letter of DSIDC dated 28.9.94.

4. It is not disputed that despite last opportunity granted by this Court, most of the entrepreneurs have failed to accept the offer of DSIDC and make the payment of the price through either of the mode prescribed by the DSIDC. A stalemate was thus created and DSIDC invoked the provisions of the Act, for the eviction of such allottees of the sheds as also for recovery of damages which according to them had accumulated to the extent of several lacs. The Estate Officer seizened of the matter issued notices as envisaged by Sections 4 and 7 of the Act for the eviction of the allottees from the sheds in question and also for recovery of damages as he found that the occupation of the allottees after the expiry of the term of lease i.e. three years, had become ‘unauthorised occupation’ within the meaning of Section 2(g) of the Act and they had rendered themselves liable for eviction from the sheds in question which were public premises within the meaning of Section 2(e) of the Act. Allottees filed their replies/objections to the notices and contested the eviction proceedings inter alia on the ground that the sheds in question were not ‘public premises’ within the meaning of Section 2(e) of the Act; the allottees had become the owner of the sheds after hire purchase offer was made to them; the proceedings before the Estate Officer were hit by Section 10 CPC, in view of the pendency of the suits filed by them challenging the fixation of price of the sheds etc. The said pleas and contentions did not find favor with the Estate Officer who held that the sheds being the property of the DSIDC, a Government Corporation within the meaning of the Indian Companies Act was public premises and after the expiry of the lease term the allottees had become unauthorised occupants of the public premises and rendered themselves liable to eviction and were also liable to pay the requisite damages as claimed by the DSIDC for use and occupation of the sheds ever since they became unauthorised occupants.

5. Aggrieved by the said orders of the Estate Officer, the allottees of the sheds filed appeals under Section 9 of the Act, challenging the orders of eviction and for recovery of damages. One set of such appeals was disposed of by Shri S.N. Aggarwal, Additional District Judge, Delhi, vide a common order dated 16.11.1996. In those appeals, the appellants had assailed the impugned orders of the Estate Officer inter alia on the grounds that once the appellants had become lessee of the sheds, their occupation was that of a tenant holding over under the doctrine of holding over as envisaged by Section 116 of the Transfer of Property Act 1882 and their tenancy had not been determined by serving a quit notice under Section 106 of the Transfer of Property Act, so the Estate Officer had no jurisdiction to initiate the proceedings for their eviction under the Act. It was also pleaded that show cause notices served by the Estate Officer under Sections 4 and 7 upon the allottees were invalid. The appellate authority (Mr. S.N. Aggarwal, A.D.J.) found merits in both these challenges and held that the notices under Section 4(1) and under Section 7(3) of the Act served on the appellants were quite vague and not inconformity with the provisions of the Act and the Rules framed there under and so held them invalid and the proceedings before the Estate Officer were vitiated on that count. The appellate authority also found that the DSIDC having accepted the rent from the appellants after the expiry of the lease period, the status of the appellant was that of tenants by holding offer as provided in Section 116 of the Transfer of Property Act and the proceedings for their eviction and recovery of damages could not be initiated unless their lease was determined by quit notice as envisaged by Section 106 of the Transfer of Property Act. The DSIDC was however, given a liberty to initiate further proceedings against the said order of the appellate authority is the subject matter of the Civil Revisions filed by the DSIDC.

6. After the disposal of the said appeals and during the pendency of Civil Revisions some more orders under Sections 5 and 7 of the Act came to be passed by the Estate Officer in respect of different sheds in the year 2000 which orders were again challenged by the allottees in appeal under Section 9 of the Act. The said set of appeals was disposed of by Shri Raghubir Singh, Additional District Judge, Delhi vide common under dated 14.2.2002 thereby taking a contrary view to the view taken by Shri S. N. Aggarwal in his order dated 16.11.1996 and affirmed the orders passed by the Estate Officer and dismissed the appeals. Aggrieved by the said order of dismissal of their appeals the allottees have filed petitions under Article 227 which have been referred to as Civil Misc. Main petitions.

7. We have heard Mr. V.P. Chaudhary, learned Senior Advocate representing the allottees, Ms. Geeta Mittal and Ms. Anusuya Salwan, learned counsel representing the DSIDC in the C.M.(M) petitions and Civil Revisions respectively at great length and have given our thoughtful consideration to their respective submissions.

8. It may be noticed at the very outset that though before the Estate Officer an objection/plea was taken up by the allottees in regard to the industrial sheds being not public premises within the meaning of Section 2(e) of the Act which of course was negatived by the Estate Officer, no such plea or objection has been raised on behalf of the allottees before this Court in these proceedings. Admittedly, the industrial sheds in question are owned by DSIDC, a Corporation of which all the paid-up share capital except two shares is held by the Central Government and, therefore, by virtue of the definition of public premises appearing in the Act, there cannot be any manner of doubt that the sheds in question are public premises within the meaning of Section 2(e) of the Act. This has also been so held by this Court in the case of D.S.I.D.C. v. Chander Parkash and Anr., 1993 (4) Delhi Lawyer 418 (DB).

9. Before dealing with the controversial questions, we may notice that except in one or two cases, the lease deeds have not been validly executed and registered as required by Section 105 of the Transfer of Property Act, the lease being admittedly for industrial purpose and for a period of more than one year. In most of the cases, only draft lease deeds signed by the allottees alone are on record. No one on behalf of Lesser, i.e. the President of India has appended his signatures to the lease deeds. In absence of registration of the lease deeds, which were required to be compulsorily registered, the law is that their terms and conditions cannot be looked into and the deed can be looked into only for collateral purpose about deciding the nature of the possession of the occupier of the property and at best month to month tenancy is to be inferred from such an un-registered lease deed. There is no averment on the part of the DSIDC to the effect that before resorting to the proceedings for eviction and recovery of damages under the provisions of the Act, any quit notice as contemplated by Section 106 of the Transfer of Property Act was served by it on the allottees of the sheds after the expiry of three years term of their respective leases as their contention is that no such notice was necessary. It is also pertinent to notice that during the pendency of the lease or even subsequently, the DSIDC had offered to transfer the ownership rights of the sheds in favor of the allottees on hire purchase basis but the prices so fixed by the DSIDC were not acceptable to the allottees and they had challenged the same through writ petitions in this Court and through civil suits filed in the competent civil courts. It is informed that about 600 allottees have already availed of the hire purchase offers. However, several others like the present petitioners could not avail of the said offer and the DSIDC sought to recover possession of the sheds and the damages for their use and unauthorised occupation for the period after the expiry of the term of the lease. These facts we have noted as they would be relevant and germane and will help us to reach a fair decision on the legal questions which have been raised in these cases.

10. The first and foremost question raised by Mr. V.P. Chaudhary, learned counsel representing the allottees is about the invoking of the provisions of the Act for the purpose of evicting the allottees and recovery of damages without determination of the lease of the allottees by serving a notice under Section 106 of the Transfer of Property Act. In other words, the contention put forth on behalf of the allottees is that even after the expiry of the term of the lease, the allottees had not become ‘unauthorised occupants’ of the sheds in question and rather their status turned into that of the tenants ‘holding over’ in the sense that expression has been used in Section 116 of the Transfer of Property Act. On the other hand, it has been strongly urged on behalf of DSIDC that the occupation of the allottees of the sheds had become ‘unauthorised occupation’ within the meaning of Section 2(g) of the Act on the expiry of their lease. Expression ‘unauthorised occupation’ has been defined in Section 2(g) of the Act which reads as under:-

“authorised occupation”, in relation to any public premises, means 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. The question as to when a person becomes in ‘unauthorised occupation’ was considered by the Supreme Court in the case of Ashoka Marketing Ltd. and Anr. v Punjab National Bank and Ors., . Hon’ble Mr. Justice S.C. Aggarwal speaking for the Bench answered the question thus in para No. 30 of the judgment:-

“The definition of the expression ‘unauthorised occupation’ contained in Section 2(g) of the Public Premises Act is in two parts. In the first part the said expression has been defined to mean the occupation by any person of the public premises without authority for such occupation. It implies occupation by a person who has entered into occupation of any public premises without lawful authority as well as occupation which was permissible at the inception but has ceased to be so. The second part of the definition is inclusive in nature and it expressly covers continuance in occupation by any person of the pubic 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. This part covers a case where a person had entered into occupation legally under valid authority but who continues in occupation after the authority under which he was put in occupation has expired or has been determined. The words “whether by way of grant or any other mode of transfer” in this part of the definition are wide in amplitude and would cover a lease because lease is a mode of transfer under the Transfer of Property Act. The definition of unauthorised occupation contained in Section 2(g) of the Public Premises Act would, therefore, cover 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.”
12. Mr. V.P. Chaudhary, learned Senior counsel has urged with vehemence that the said case is distinguishable from the facts of the present case. He submitted that the observations of the Court in paras 30, 33 & 34 are apt in respect of a tenant-at-sufferance and not for a tenant ‘holding over’. It is also pointed out that in the case before the Supreme Court, both the tenants namely Ashoka Marketing Ltd. (Civil Appeal No. 2368/86) and M/s. Sahu Jain Services Ltd. (Civil Appeal No. 2369/86), notices dated 18th May, 1971 were issued under Section 106 of the Transfer of Property Act and the tenancy of both the tenants were terminated by the Lesser/Punjab National Bank with effect from November 13, 1971 and only thereafter proceedings for eviction were initiated against them. In Civil Appeal No. 3725/86 (referred to in para No. 3 of the judgment), the eviction proceedings were initiated against the tenant under the Public Premises Act soon after the expiry of his lease without determining his tenancy by issuing a notice under Section 106 of the Transfer of Property Act but no plea was taken by the tenant that he was holding over under Section 116 of the Transfer of Property Act and his lease has not been determined under Section 106 of the Transfer of Property Act.

13. Learned Senior counsel for the petitioner in support of his contention that if a lessee of a public premises is allowed to remain in the premises after the expiry of the lease and the public authority concerned accepts the rent, his occupation continues to be that of authorised occupation and he becomes a tenant by holding over under Section 116 of the Transfer of Property Act, has heavily relied upon a decision of the Karnataka High Court in the case of The Indian Bank, Bangalore v. Blaze and Central (P) Ltd. and Ors., . Paras 11, 12, & 13 of the said judgment are relevant and they are in following terms:-

“11. It is true that the Act is applicable only for eviction of persons occupying public premises. But the provisions of the Act are applicable to eviction of persons whose occupation is unauthorised, i.e., who have no right to continue in the premises. According to the definition of unauthorised occupant given in Section 2(g) of the Act, a person is regarded as unauthorised occupant:
(i) If he had occupied a public premises without authority, or
(ii) If the authority pursuant to which he occupied, stood terminated.
The authority to occupy a public premises could be given either by way of permission of license or through lease. In a case where a person is authorised to occupy a public premises by the concerned public authority by way of license and not by lease, the moment the license is withdrawn or conies to an end, the occupation of such person becomes unauthorised and in the case of lease on the termination of the lease the occupation becomes unauthorised.

12. If a lessee of a public premises is allowed to remain in the premises after the expiry of the lease and the public authority concerned accepts the rent, as had happened in this case, his occupation becomes authorised occupation as he becomes a tenant holding over under Section 116 of the Transfer of Property Act. In such cases, it is only after a valid notice of termination of tenancy in terms of Section 106 of the Transfer of Property Act is issued by the owner, the occupation becomes unauthorised. Such a notice was issued in this case. Any law which provides for eviction of an unauthorised occupant cannot be held to be unreasonable or discriminatory.

13. As far as the procedure for eviction of an unauthorised occupant of a public premises is concerned, the Act prescribes a special procedure for eviction of unauthorised occupants from public premises instead of compelling public authorities to file a civil suit. Just as special provision is made under several enactments for recovery of public monies as arrears of land revenue, the Act provides a special remedy in the matter of eviction of unauthorised occupants from public premises. In such a case, there is nothing unusual to confer power on an officer of the same department or authority to pass an order of eviction. For instance, the power to inquire as to whether a person is in unauthorised occupation of Government land and to pass an order of eviction against an unauthorised occupant is conferred on the Deputy Commissioner, an officer of the Government to whom the land belongs, in the land revenue laws. To such cases the principle of ‘No person should be a judge in his own cause’ is hardly applicable. It is a statutory power to take action against a person who occupies a public premises without authority or having occupied the premises with authority refuses to vacate after the authority to occupy comes to an end. It cannot be said that it is unreasonable to confer such a power on an officer of the public authority concerned. We do not find any substance in the contention that the provision, in order to be reasonable should provide for the appointment of an officer outside the establishment of the public authority concerned. Of course, if the power conferred is arbitrary and without procedural safeguards, it would be a different matter. In Chagganlal’s case , the Supreme Court considered the constitutional validity of similar provision contained in Chap. VA of The Bombay Municipal Corporation Act. The power to pass an order evicting an unauthorised occupant of a premises belonging to Bombay Municipal Corporation was conferred on its Chief Executive Officer, namely, the Municipal Commissioner under the Act. The procedural safeguards prescribed under that Act were similar to those contained in the Act. An appeal to the city civil Court was provided for, against the order of the competent officer. Rejecting the contention that the provision was violative of Article 14, the Supreme Court said thus :

“18. …… On the whole, considering the object with which these special procedures were enacted by the legislature, we would not be prepared to hold that the difference between the two procedures is so unconscionable as to attract the vice of discrimination. After all, Article 14 does not demand a fanatical approach. We therefore hold that neither the provisions of Chap. VA of the Bombay Municipal Corporation Act nor the provisions of the Bombay Government Premises (Eviction) Act, 1955, are hit by Article 14 of the Constitution.
Under the Act also there are similar in-built safeguards. Section 3 requires that a gazetted officer or officer equal in rank alone could be appointed as Estate Officer. Section 4 requires the giving of not less than 10 days to show cause against eviction. Section 5 requires the Estate Officer to consider the cause shown, if any, against the notice and empowers him to pass an order if only he is satisfied after inquiry that the person concerned was in unauthorised occupation of the public premises. When an order of eviction is passed against a person found to be in unauthorised occupation of the public premises, thirty days’ time has to be given to him to comply with the order. Section 9 of the Act confers a right of appeal to the District Judge. Relevant part of the Section reads :
“9. Appeals – An appeal shall lie from every order of the estate officer made in respect of any public premises under Section 5 or Section 7 to an appellate officer who shall be the district judge of the district in which the public premises are situate or such other judicial officer in that district of not less than then years’ standing as the district judge may designate in this behalf.
XXX XXX XXX XXX (3) Where an appeal is preferred from an order of the estate officer, the appellate officer may stay the enforcement of that order for such period and on such conditions as he deems fit.”
The appeal is to a District Judge to a judicial officer, who has put in not less than 10 years of service. Power to grant stay of eviction is expressly conferred on the appellate authority. If an occupant is aggrieved by the appellate order, he can seek judicial review of that order under Article 226 or 227 of the Constitution.”

14. On the other hand, the contention of Ms. Geeta Mittal, learned counsel for the DSIDC is that the judgment of the Supreme Court unambiguously holds that the occupation of the public premises by a person whose tenancy has expired, becomes an unauthorised occupant and the Lesser is within its rights to invoke the provisions of the Act for eviction, and recovery of damages of such an unauthorised occupant without issuing any notice under Section 106 of the Transfer of Property Act. The question when a tenant is considered to be holding over or at sufferance after the expiry of the period of lease, has been considered by the Supreme Court in the case of R.V. Bhupal Prasad v. State of Andhra Pradesh and Ors., . The Supreme Court held as under in para No. 8 of the judgment:-

“Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, on who wrongfully continues in possession after the extinction of a lawful title. There is title difference between him and a trespasser. In Mulla’s Transfer of Property Act (7th Edn.) at page 633, the position of tenancy at sufferance has been stated thus : A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in, reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus : The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remaining in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression “holding over” is used in the sense of retaining possession. A distinction should be drawn between a tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord’s consent. The former is called a tenant by sufferance in the language of the English Law and the latter class of tenants is called a tenant holding over or a tenant at will. The lessee holding over with the consent of the Lesser is in a better position than a mere tenant at will. The tenancy on sufferance is converted into a tenancy at will by the assent of the landlord, but the relationship of the landlord and tenant is not established until the rent was paid and accepted. The assent of the landlord to the continuance of the tenancy after the determination of the tenancy would create a new tenancy. The possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical.”
15. The question was again considered by the Supreme Court in the case of Raptakos Brett & Co. Ltd. v. Ganesh Property, and the Court ruled as under:-

“On the expiry of the period of lease, the erstwhile lessee continues in possession because of the law of the land, namely that the original landlord cannot physically throw out such an erstwhile tenant by force. He must get his claim for possession adjudicated by a competent court as per the relevant provisions of law. The status of an erstwhile tenant has to be treated as a tenant at sufferance akin to a trespasser having no independent right to continue in possession. In a suit by landlord against the erstwhile tenant the claim for possession by itself has nothing to do with the contract of tenancy which had already come to and end. For such claim there is no question of the source of right to possession being its erstwhile contract which is dead and gone. It cannot necessarily be the foundation of the cause of action unless the plaint itself refers to such a cause of action arising out of the terms of the conditions of the erstwhile contract which according to the plaint are still subsisting on the date of the suit. Thus, it cannot be generalised that in every case when on the expiry of period of lease the landlord seeks to recover possession from the erstwhile tenant such a suit must necessarily be said to be one for enforcement of right arising from the contract of tenancy with third party ex-tenant.”
16. The legal proposition which flows from the above authorities of the Supreme Court is that Section 116 contemplates a bilateral contract between the erstwhile landlord and the erstwhile tenant. On one side, there should be an offer of taking a new lease evidenced by the lessee remaining in possession of the demised land after his term was over. On the other side, there must be express or implied consent of the landlord to the continuing of the tenancy by the Lesser expressed by acceptance of the rent or otherwise. The assent of the Lesser cannot be inferred merely from acceptance of rent by its officers. If an individual chooses to adopt a remedy at the back of the real owner/landlord by depositing the rent in a bank unilaterally styling himself as a tenant under a particular person, the relationship of tenant holding over cannot be created. Besides, it is well settled that a plea of holding over as contemplated by Section 116, which is based on an implied agreement must be taken in the pleadings by the defendants. A tenant cannot fall back upon such a plea before a second or third forum as is sought to be done by the allottees in the present case.

17. On the face of facts and circumstances of the cases in hand, the moot question is whether the allottees of the sheds are to be deemed unauthorised occupants within the meaning of Section 2(g) of the Act or tenants holding over under Section 116 of the Transfer of Property Act, 1882? A belated attempt has been made on the part of the petitioner to show that they have been regularly paying the rent at the original rate or revised rate even after the expiry of the term of lease and the said rent has been accepted by the DSIDC without any protest. Besides, it is also pointed out that for years the question of price of the sheds to be paid by the allottees on hire purchase basis could not be decided by the DSIDC and, therefore, the DSIDC itself is to be blamed and the possession of the allottees of the sheds would not become unauthorised occupation until and unless their lease has been determined by serving a notice under Section 106 of the Transfer of Property Act. As against this, Ms. Geeta Mittal and Ms. Anusuya Salwan, learned counsel representing the DSIDC have vehemently urged that the occupation of the petitioner had become unauthorised within the meaning of Section 2(g) of the Act immediately after their lease came to an end by ‘efflux of time’ and it were the allottees of the sheds who failed to accept the offer of hire purchase basis and entered into litigation with DSIDC through several petitions. In this regard, attention of this Court has been invited to a Division Bench judgment of this Court in the case of D.S.I.D.C. v. Chander Parkash and Anr., 1993 (4) Delhi Lawyer 418 (DB). In that case, this Court was examining the correctness of a judgment of an Additional District Judge passed in an appeal under Section 9 of the Act thereby holding that the sheds allotted to the Entrepreneurs on lease hold basis, ceased to be ‘public premises’ within the meaning of the Act once the offer of transfer of the sheds on ownership basis was given to them by the DSIDC and setting aside the eviction orders passed by the Estate Officer on that premises. In that case, this Court had more fully considered various facets of the case and dealt with almost every possible argument raised far the Entrepreneurs and against them. After examining the scheme relating to the allotment of sheds, various stages through which the matter has passed and taken note of the correspondence exchanged between the DSIDC and the Entrepreneurs, the Court noted as under:-

“12. It seems that the above concession were not sufficient to motivate all the entrepreneurs to either pay the rent or to opt for hire purchase agreement. The reason obviously seems to be that the Association of Entrepreneurs had filed a writ petition being C.W. 2874/87 challenging the amounts which were sought to be charged by the petitioner towards the cost of the sheds. In a forlorn hope to lure the entrepreneurs to accept the scheme, further concessions were announced by the petitioner by issuance of a fourth revised offer of allotment in April, 1989. The additional concessions which were offered to the allottees were as follows:
“(i) The allottees/entrepreneurs who accept the present offer in time as stipulated, shall be permitted to put up additional constructions as per relaxed FAR standards.
(ii) The allottees/entrepreneurs shall be entitled to a rebate of 15% on the up-to-date cost of the shed excluding the impact of property tax, if they accept the offer.
(iii) MCD shall be asked to levy the property tax from the individual entrepreneurs from the deemed date of their ownership i.e. 1.3.1977 and accordingly work out its demand afresh after taking the individual to be owner w.e.f. 1.3.1977.
iv) For taking over the common services of these industrial estates, the amount retired as per deficiencies estimates would be provided by the government out of plan funds.
v) The industries department wold assist the entrepreneur in getting SSI registration if applied for and in securing assistance from financial institutions for, additional construction, additional power load etc.”
13. The said offer informed the entrepreneurs about the amount of rebate and the property taxes and it was again stipulated that the said offer was valid for a period of 30 days within which time the allottees were not only to accept the hire purchase offer but were also expected to make payment as stipulated in the terms of offer. For the first time the allottees were informed about the consequence of their not accepting the offer in the following words:

“The allottee/entrepreneur, who does not accept the offer within the specified period, shall revert back to his status as lessee/licensee in accordance with the terms of the agreement and under the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971. As the period of license/lease has already expired and that you have committed breaches, you are hereby notified that your license shall stand terminated automatically on expiry of the period of this offer and as such you would be treated as an unauthorised occupant. The Corporation shall take all steps for recovery of the dues and if necessary, for eviction under the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and other relevant laws in force.”
14. Yet another offer was made in November, 1989 and the fresh concession offered to the hesitant allottees was that no rent would be charged from the allottees for the period prior to 1st March, 1977 and with interest of 15% maintenance charges would be included in the costing of the sheds on the basis of the investments of DSIDC on year to year basis. It was again repeated that this was a final offer and was valid for a period of 30 days from the date of issue or the date of publication in the newspaper whichever is late and failure to accept the same Along with payment would deem the offer to be withdrawn.

16. Some of the entrepreneurs apparently believed in the maxim “eating their cake and having it too”. They neither paid the rent nor the hire purchase Installments but continued to retain the sheds and used them for the purpose of their business, they having frustrated the efforts of the petitioner, with the help of stay orders when the petitioner wanted to recover the hire purchase money. The petitioner commenced proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act against such defaulters, including the respondent. The respondent in the present case, after order of eviction had been passed by the Estate Officer, filed an appeal before the Addl. Distt. Judge, Delhi. Vide judgment dated 12th August, 1992 Shri M.S. Rohilla, ADJ, Delhi came to the conclusion that the premises in question were not public premises. The reason for the ADJ coming to the conclusion was, according to him, “having made the offer for hire purchase and having received some amount or even to ask the appellant to pay the amount, as per the hire agreement, the shed which ceased to be the property of the respondent corporation for the purposes of Section 2 of the Public Premises Act.” The ADJ also came to the conclusion that even if the premises were regarded as public premises the ratio of the decision of the Supreme Court in the Express Newspapers case, AIR 1986 SC 873 applies and the right of re-entry could be exercised only by filing a proper suit for possession. The ADJ, therefore, concluded that no action could be taken against the respondent under the provisions of the Public Premises Act. The challenge in the present writ petition is to the aforesaid decision of the ADJ.

25. Admittedly the entrepreneurs had been allotted sheds as per the terms of allotment. A monthly lease deed was executed between the parties which stipulated payment of monthly rent to the petitioner. In the offer of hire purchase which had been made it was contemplated that the hire money paid would be adjusted against the Installments which were due. Hire purchase agreement not having been entered into between the parties because the offer was not accepted in toto, and an agreement concluded, the liability of the entrepreneurs to pay the lease money in terms of the lease deed could not and did not come to and end. In other words the lease deed was not superseded by any other document. The rights and liabilities inter se were clearly governed by the terms of the said lease. This made it obligatory on the lessee to pay the monthly rent in the manner stipulated in the lease deed. Non-payment of rent for two consecutive months after the execution of the lease entitled the Lesser to terminate the lease and re-enter and resume the same. This is precisely what has been done by the petitioner herein when in the letter of April, 1989 it was stated that if the offer of hire purchase was not accepted by the entrepreneurs then the said lessee shall revert back to his status as lessee/licensee. By this letter the lessee was also informed that as the period of the license deed/lease had already expired and breaches had been committed by the lessee the said license stood automatically terminated on the expiry of period of the offer contained in the letter and the lessee was to be treated as an unauthorised occupant. The entrepreneurs were also put to notice that the Corporation would take all steps for the recovery of dues and, if necessary, for eviction under the provisions of the Public Premises Act.”

18. The said findings and observations are quite apt to the cases in hand as the facts and circumstances of the cases in hand are no different. The submission of the learned counsel for the petitioner that the said judgment cannot be relied and acted upon for determining the status of the allottees, in the opinion of this Court, is not tenable. The Court has expressed its anguish and made scathing remarks about the conduct of Entrepreneurs in neither paying the rent nor accepting the offer of DSIDC for transfer of the sheds on hire purchase basis. On the other hand, the DSIDC by issuing various communications and time bound notices, has made it amply clear to the allottees of the sheds that in case they failed to accept the offer of transfer of the sheds on hire purchase basis, their occupation would be treated as unauthorised occupation in view of the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and other relating law in force shall be invoked for their eviction. Having regard to the conduct of the parties, more particularly that of the allottees as has been noticed in the above judgment, it is almost impossible to infer any intention on the part of the DSIDC that they consented to the continuance of unauthorised occupation of the allottees. The time lag between the initiation of eviction proceedings and the expiry of lease was mainly due to litigation started by the allottees in regard to the hire purchase price in various Courts. On the face of this factual matrix of the cases, can it be said that there was any bilateral agreement between the DSIDC and the Entrepreneurs for renewal of lease or creation of fresh lease thereby conferring them a notional status of tenants holding over. In the opinion of this Court, the answer is plainly in the negative because looked at the matter from any angle, the irresistible conclusion is that after the expiry of the term of lease, the Entrepreneurs had become unauthorised occupants of the sheds in question firstly due to the efflux of time and secondly on their committing various breaches of the terms of the lease e.g. by not paying the rent regularly and fully etc. and committing defaults. The DSIDC has pointed out that the Entrepreneurs are in huge arrears of rent which has accumulated to the extent of Rs. 20 lacs or more in respect of each of them.

19. Even if it is assumed that the amount(s) reflected in the chart has been paid by the allottees of the sheds to the DSIDC, it is not clear how much of this amount was paid by them to the DSIDC after the expiry of the period of their lease. Even if some amount(s) remitted by them are after the expiry of the lease, the same will be deemed to have been accepted on account and without prejudice to the rights and contentions of the DSIDC or towards the damages because of the controversy raised by the Entrepreneurs in regard to the price of sheds on which the DSIDC has offered to transfer the sheds to the allottees on hire purchase basis. It is also pertinent to note that in some cases payments of amounts either towards rent or damages were made pursuant to the orders passed by this Court in various proceedings during the relevant period. Besides, the effect of payments made by the allottees after the commencement of the proceedings for their eviction and recovery of damages under the Act is also to be considered. Therefore, the payments if at all made and accepted would be on account of the damages and not on account of rent. Acceptance of such payments by the DSIDC cannot amount to waiver of the rights of the DSIDC flowing from the provisions of the Public Premises Act so far as it related to the eviction of the unauthorised occupants and recovery of damages was concerned.

20. It is a settled principle of law that no person can be permitted to approbate or reprobate at the same time. The petitioner cannot be permitted to contend that by accepting the payments on account, the DSIDC has waived its rights and claims and have acquired in illegal and unauthorised occupation by the allottees. The allottees are bound by their pleas raised before the Estate Officer, the Appellate Authority and in various previous proceedings before this Court where they had claimed that they had made payments towards the charges of the sheds on hire purchase basis. The pleas with regard to the payment of rent after the expiry of the lease, are totally inconsistent with the said plea set up in those proceedings. Moreover, such a plea was not taken up by the allottees in the grounds of appeal filed before the first Appellate Authority.

21. Learned counsel for the DSIDC has pointed out that 14 allottees out of the present allottees had filed a writ petition being C.W. NO. 2874/87 through their Association which was dismissed by a judgment reported as 1994 III AD (Delhi) 135 entitled Delhi State Entrepreneurs Association v. D.S.I.D.C. Against the dismissal of the said writ petition, the petitioner Association filed a Letters Patent Appeal, decision of which is reported as 1995 I AD (Delhi) 1201. The plea of the allottees of the said sheds that they have tendered any amount towards rental is belied by the offers made on behalf of the petitioners which are noted by the Court in para No. 9 of the judgment which reads as under:-

“It was stated before us by the appellants’ counsel that the appellants were prepared to pay at the rate of Rs. 175 per sq. ft. but not at Rs. 378.45 per sq. ft. as demanded. Appellants’ counsel brought demand drafts for a few lakhs of Rupees and said that the amount should be directed to be received. So far as the suits said to have been filed against the DSIDC as referred in to the counter/Judgment, it was said that for Rohtak Road constructions, the suits were by State Bank of India and Punjab & Sind Bank. In some cases, suits filed by the allottees were pending. After interim order dated 18.10.1989 by a Division Bench, some petitioners paid, while some did not.”
22. A consideration of the observations made in the above judgment will unambiguously show that the Entrepreneurs were rank defaulters who have neither paid rent nor any amount towards the hire purchase charges but still wanted the relief from the Court. Reference may also be invited to para No. 6 of the judgment in the case of Pushpa Lata v. D.S.I.D.C., 1996 (37) DRJ 43. In view of these observations, the arguments sought to be raised on behalf of the allottees are wholly untenable and cannot be permitted to be raised in the present proceedings.

23. It is also pertinent to note that in absence of registered lease deed, the tenancy of the allottees was to be treated as month to month tenants and, therefore, on committing any default in the payment of rent month by month as stated in the show cause notices under Section 4 of the Act, the allottees will be deemed to have committed breach of the terms and conditions of the lease thereby making themselves liable for eviction and damages under the provisions of the Act. Thus, looking at the matter from any angle, the irresistible conclusion is that the allottees of the land were not tenants holding over in the sense the expression has been used under Section 116 of the Transfer of Property Act and their status was only that of unauthorised occupants within the meaning of Section 2(g) of the Act.

24. There is yet another angle for looking at the matter to reach the same conclusion. The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 has been enacted to provide for speedy and summary eviction of unauthorised occupants from the premises of the Central Governments, Companies in which not less than 51% paid-up share capital is held by the Central Government and Corporations (other than local authorities) established by or under Central Acts and owned or controlled by the Central Acts. Admittedly, the Delhi State Industrial Development Corporation is a Corporation established under a Central Act and there is no dispute that the leased premises in the case in hand are public premises within the meaning of Section 2(e) of the Act. It is a special Act and a complete Code in itself.

25. The question whether the Public Premises Act has an over-riding effect over the The Delhi Rent Control Act, various Rent Control Legislations, The Slum Improvement Act, has been considered by the Supreme Court in a series of decisions. To begin with is the case of Jain Ink. Manufacturing Company v. Life Insurance Corporation of India and Anr., . In the said authority, the Supreme Court held as under:-

“There can be no doubt that the Premises Act as compared to the Rent Act, which has a very broad spectrum, is a special Act and overrides the provisions of the Rent Act.
The Premises Act was passed in 1971 and came into force on the 23rd of August, 1971, that is to say, long after the Rent Act was passed in 1959. The mere fact that by virtue of a fiction the Premises Act was given retrospective effect from 1958 will not alter the date when the Premises Act was actually passed, that is to say August 23, 1971. In these circumstances, therefore, the Premises Act being subsequent to the Rent Act would naturally prevail over and override the provisions of the Rent Act.
It is true that in both the Acts there is a non obstante clause but the question to be determined is whether the non obstante clauses operate in the same field or have two different spheres though there may be some amount of overlapping. Both the scope and the object of the Premises Act is quite different from that of the Rent Act. The Rent Act is of much wider application than the Premises Act inasmuch as it applies to all private premises which do not fall within the limited exceptions indicated in Section 2 of the Premises Act. The object of the Rent Act is to afford special protection to all the tenants or private landlords or landlords who are neither a Corporation nor Government or Corporate Bodies. Even under the Rent Act, by virtue of an amendment a special category has been carved out under Section 25B which provides for special procedure for eviction to landlords who require premises for their personal necessity. Thus, Section 25B itself becomes a special law within the Rent Act.
Section 3(a) of the Rent Act is of no avail because once the Premises Act becomes a special Act dealing with premises belonging to Central Government, Corporations and other statutory Bodies, the Rent Act stands supersededThe Slums Act was passed as far back as 1956 and the Premises Act was subsequent to the Slums Act and would, therefore, prevail over the Slums Act.
Section 19 of the Slums Act clearly shows that it is in direct conflict with the Premises Act which expressly provides for the forum for evicting persons in unauthorised occupation of premises which fell in Section 2 of the Premises Act. The Premises Act being subsequent to the Slums Act, as amended in 1964, and again being a Special Act having a very limited sphere, must necessarily override the Slums Act.”
26. The second case relied upon from both the sides is Ashoka Marketing Ltd. and Anr. v. Punjab National Bank and Ors., . In that case, the Court considered the question if the provisions of Public Premises Act over-rides the inconsistent provisions of Delhi Rent Control Act and held as under:-

“As regards rent control legislation enacted by the State Legislatures the position is well settled that such legislation fall within the ambit of Entries 6, 7 and 13 of List III of the Seventh Schedule to the Constitution. The Delhi Rent Control Act has been enacted by Parliament in relation to the Union Territory of Delhi in exercise of the legislative power conferred under Article 246(4) of the Constitution. The Public Premises Act deals with Government property as well as property belonging to other legal entities mentioned in Clauses (2) and (3) of Section 2(e) of the Public Premises Act. In so far as it relates to eviction of unauthorised occupants from premises belonging to or taken on lease or requisitioned by or on behalf of the Central Government, the Public Premises Act would fall within Entry 32 of List I of Schedule 7 being law with respect to a property of the Union. The property belonging to the various legal entities mentioned in Clauses (2) and (3) of Section 2(e) of the Public Premises Act cannot be regarded as property of the Union and the Public Premises Act cannot be held to have been enacted under Entry 32 of List I in respect of the said properties. The Public Premises Act insofar as it deals with a lessee or licensee of premises other than premises belonging to the Central Government has been enacted in exercise of the legislative powers in respect of matters enumerated in the Concurrent List. Thus both the statutes, viz. the Public Premises Act and the Rent Control Act, have been enacted by the same legislature, Parliament, in exercise of the legislative powers in respect of the matters enumerated in the Concurrent List. It cannot therefore be said that the Public Premises Act, having been enacted by Parliament in exercise of legislative powers in respect or matter enumerated in the Union List would ipso facto override the provisions of the Delhi Rent Control Act enacted in exercise of the legislative powers in respect of matters enumerated in the Concurrent List.
The provisions of the Public Premises Act, to the extent they cover premises falling within the ambit of the Delhi Rent Control Act, override the provisions of the Rent Control Act, and a person is unauthorised occupation of public premises under Section 2(e) of the Act cannot invoke the protection of the Rent Control Act. One of the principles of statutory interpretation which is applied to resolve conflict in laws is contained in the latin maxim : leges posteriores priores conterarias abrogant (later laws abrogate earlier contrary laws). This principle is subject to the exception embodied in the maxim : generalia specialibus non derogant (a general provision does not derogate from a special one). The Public Premises Act is a later enactment, having been enacted on 23rd August, 1971, whereas the Rent Control Act was enacted on 31st December, 1958. It represents the later will of Parliament and should prevail over the Rent Control Act unless it can be said that the Public Premises Act, is a general enactment, whereas the Rent Control Act is a special enactment and being a special enactment the Rent Control Act should prevail over the Public Premises Act. The Rent Control Act makes a departure from the general law regulating the relationship of landlord and tenant contained in the Transfer of Property Act inasmuch as it makes provision for determination of standard rent, it specifies the grounds on which a landlord can seek the eviction of a tenant, it prescribes the forum for adjudication of disputes between landlords and tenants and the procedure which has to be followed in such proceedings. The Rent Control Act can, therefore, be said to be a special statute regulating the relationship of landlord and tenant in the Union Territory of Delhi. The Public Premises Act makes provision for a speedy machinery to secure eviction of unauthorised occupants from public premises. As opposed to the general law which provides for filing of a regular suit for recovery of possession of property in a competent Court and for trial of such a suit in accordance with the procedure laid down in the Civil P.C. The Public Premises Act confers the power to pass an order for eviction of an unauthorised occupant in a public premises on a designated officer and prescribes the procedure to be followed by the said officer before passing such an order. Therefore, the Public Premises Act is also a special statute relating to eviction of unauthorised occupants from public premises. Both the enactments, namely, the Rent Control Act and the Public Premises Act, are therefore special statutes in relation to the matters dealt with therein. Since, the Public Premises Act is a special statute and not a general enactment the exception contained in the principle that a subsequent general law cannot derogate from an earlier special law cannot be invoked and in accordance with the principle that the later laws abrogate earlier contrary laws, the Public Premises Act must prevail over the Rent Control Act.”
27. The question was also considered by this Court in the case of Indo Imex Agencies (Pvt.) Limited v. Life Insurance Corporation of India etc., AIR 1983 Delhi 409 and it was held that an occupant of Public Premises cannot claim the protection of Rent Act. On the strength of Section 15 of the Public Premises Act, the Court took the view that the application of Rent Act is entirely excluded for seeking the eviction of a lessee or recovery of rent.

28. It is otherwise a well settled legal position that a special Statute has the over-riding effect over the general Statute and a Central Legislation enacted by the Parliament over-rides the inconsistent provisions of any Statute enacted by the State Legislature on the subject under the State List or Concurrent List of Constitution. The 1971 Act was enacted by the Parliament with the sole object of expediting the eviction of unauthorised occupants of public premises in a summary manner as it was felt that the existing law (The Transfer of Property Act) was not adequate and expedient to deal with such matters. The scheme of the Act shows that it deals with all the facets relating to the eviction of unauthorised occupants and recovery of rent or damages in respect of public premises. It has the effect of curtailing the rights and obligations of Lesser(s) and lessee(s) as contained in Section 108 of the Transfer of Property Act. It seems to be incongruous to take a view that an occupant of public premises within the meaning of 1971 Act would be entitled to any rights as a lessee within the meaning of Transfer of Property Act after the determination of his lease. The Parliament has enacted this law consciously knowing fully well that a general law dealing with the rights and obligations of the lessee and Lesser and various facets relating to the lease of immovable property already existed. It could never be the intention of the Legislature that an occupant of the public premises could also insist on the compliance of the various provisions of the Transfer of Property Act. This Court has, therefore, no hesitation to hold that the provisions of 1971 Act have an over-riding effect over the provisions of Transfer of Property Act and a lessee of the public premises cannot be allowed to have recourse to the provisions of Transfer of Property Act after the expiry of his lease.

29. In the above view of the matter, the contention raised by Mr. V.P. Chaudhary, learned Senior Advocate representing the Entrepreneurs that the Entrepreneurs were entitled to a notice to quit under Section 106 of the Transfer of Property Act for determination of their lease or that the Entrepreneurs have become tenants by holding over within the meaning of Section 116 of the Transfer of Property Act after the lease having allegedly expired due to efflux of time, holds no water. Taking a different view would render the provisions of the Act nugatory and frustrate the very object with which the Act was enacted by the Parliament.

30. The next submission put forth on behalf of the allottees is in regard to the validity of the notices issued by the Estate Officer under Section 4(1) & 7(3) and about their service upon the allottees. Before we proceed to deal with the submissions of the learned counsel for the allottees in this behalf, it would be appropriate to look into the contents of the two notices issued to the allottees. The notice under Section 4(1) is in the following terms:-

“FORM “A”
Notice under Sub-section (1) and Clause (b) (ii) of the Sub-section (2) of Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.

To Whereas I, the undersigned, am of the opinion, on the grounds specified below that you are in unauthorised occupation of the public premises mentioned in the schedule below and that you should be evicted from the said premises :

GROUNDS
1. Breach of terms and conditions of license/Lease deed.
2. Unauthorised Occupation of the public premises after expiry of license/Lease on 18.4.1978.
3. Non-payment of Rent/license fee and damages.
Now, therefore, in pursuance of Sub-section (1) of section 4 of the Act, I hereby call upon you to show cause on or before the 20.8.1990 (date) at 3.00 PM why such an order of eviction should not be made. And in pursuance of Clause (b)(ii) of Sub-section (2) of section 4, I also call upon you to appear before me in person or through a duly authorised representative capable to answer all material questions connected with the matter Along with the evidence which you intend to produce in support of the cause shown, on 20.8.1990 at 3.00 PM fixed for hearing. In case, you fail to appear on the said date and time, the case will be decided ex-parte.

SCHEDULE Shed No. 101, DSIDC, Wazirpur Indl. Complex, Delhi.”

31. Notice under Section 7(3) is in the following terms:-

“FORM “D”
Notice under Sub-section (3) of Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.

To Whereas I, the undersigned, am satisfied that you are/were in occupation of the Public Premises described in the Schedule below :

And whereas in exercise of the powers conferred on me by Sub-section (1) of Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, I consider that a sum of Rs. 50,883-59 (Rupees Fifty thousand eight hundred eighty three & paise fifty nine) being arrears of rent/license fee, damages, interest etc. from ………….(date)………… up to 26-8-1980 (date) (Both days inclusive) in respect of the said premises is due and payable by you to the Delhi State Industrial Development Corporation Limited.
And whereas in exercise of the powers conferred on me by Sub-section (2-A) of Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. I consider that you are also liable to pay simple interest to the petitioner (DSIDC) on the said arrears at the rate determined by the undersigned till its final payment. Now, therefore in pursuance of Sub-section (3) of Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, I hereby call upon you to show cause on or before the 18.12.90 (date) why an order requiring you to pay the said arrears of rent together with simple interest should not be made.
SCHEDULE 89, NOIC, Phase-II, New Delhi.”
32. Mr. “V.P. Chaudhary, learned counsel representing the petitioner has vehemently urged that the show cause notices served by the Estate Officer on the allottees were quite vague and not in conformity with the provisions of the Act and the rules framed there under and the impugned orders passed by the Estate Officer in pursuance of such notices were vitiated as violative of the principles of natural justice. However, this Court on a consideration of the contents of the said show cause notices and the entire background of the case preceding the notices, is of the considered opinion that the notices cannot be said to be vague in any manner as they contain the material particulars and information. No objection was raised about the validity of such notices by the allottees before the Estate Officer. The main ground on which they contested the notice was that the premises were not public premises within the meaning of the Act and their occupation was not unauthorised. Since grounds of eviction, e.g. the factum of expiry of lease of the allottees from a particular date and that they were in arrears of rent/damages and amount of damages, were duly notified to the allottees by means of these show cause notices and the eviction order and order of recovery of damages were based only on those grounds, no fault can be found with the notices issued under Section 4(1) & 7(3) of the Act.

33. Mr. V.P. Chaudhary, learned counsel for the allottees has next submitted that the DSIDC has failed to discharge its duty by ignoring the Office Memorandum No. 2(6)/92-DPE(WC) dated 19th February, 1992 issued by the Ministry of Industry, Department of Public Enterprises and guidelines contained in the Resolution of the Ministry of Urban, Development dated 30th May, 2002 which was notified in the Official Gazette in regard to the initiation of proceedings under the Act for eviction of unauthorised occupants. On the strength of these documents, learned counsel submitted that the DSIDC was not within its rights to invoke the provisions of the Act for eviction of the allottees of the sheds as the same is violative of the said guidelines of the Government itself. It is also pointed out that as per clause 5 of the Resolution dated 30th May, 2002, the DSIDC is bound to review all pending cases with reference to the said guidelines on grounds otherwise than mentioned in the said guidelines. During the pendency of the proceedings, the DSIDC was asked if they were prepared to review the cases in terms of the said guidelines but we are informed by the learned counsel representing the DSIDC that no review of the present cases was called for as according to the DSIDC, the cases were not covered under the said guidelines and the action of eviction of the allottees of the sheds was not in violation of the said guidelines. In any case, this Court in exercise of its jurisdiction either under Article 227 of the Constitution or under Section 115 CPC would not like to dwell on this aspect of the matter. This could perhaps be a matter for consideration in a appropriate writ under Article 226 of the Constitution.

34. Now coming to the civil revision petitions filed by the DSIDC against the orders dated 23rd September, 1996 and 16th November, 1996 passed by Sh. S.N. Aggarwal, Additional District Judge, Delhi allowing the appeals under Section 9 of the act are concerned, Mr. Chaudhary, learned counsel for the petitioner/allottees has vehemently urged that the order passed by the appellate authority in appeal under Section 9 of the Act has become final and cannot be called in question by means of civil revision petition. This contention is based on the plea that a civil revision petition under Section 115 is an application within the meaning of Section 10 of the Act and since a period of 90 days is prescribed under Article 227 under the Limitation Act for filing an application for which a period of limitation has been prescribed such an application is barred by the provisions of Section 10 of the Public Premises Act. In this connection reference is also invited to the provisions of Sub-section 8 of Section 25(B) of the Delhi Rent Control Act 1958 and Section 43 of the said Act in order to show that the wordings of Section 10 are different than the wording of Section 43 of the Delhi Rent Control Act. He has pointed out that the expression “final” prima facie connotes that an order passed on an appeal under the Act is conclusive and no further appeal or revision lies against it. It is also urged that civil revision is provided under the Code of Civil Procedure which is applicable to the proceedings under the Public Premises Act only to a limited extent as mentioned in Section 8 of the Act (by conferring powers on the Estate Officer of a Civil Court is the Code for the purposes mentioned therein) and therefore, the other provisions of the CPC cannot govern any proceedings under the said Act. In other words the contention is that since the remedy of civil revision flows from the Code and the Code is not applicable as such to the proceedings under the Act, the remedy of civil revision is also not available.

35. In support of his contention, the learned counsel has placed heavy reliance on the Supreme Court decision in the case of South Asia Industries (P) Ltd. v. S.B. Sarup Singh and Ors., wherein the Court examined the question whether an appeal lies under Clause 10 of the Letters Patent for the High Court of Lahore, to a Division Bench of the Punjab High Court against a judgment passed by a Single Judge under Section 39 of the Delhi Rent Control Act and answered the same in negative. In the opinion of this Court, the said judgment does not support the contention of the allottees in any way.

36. On the other hand, learned counsel for the DSIDC has placed reliance on a Division Bench decision of this Court in the case of Municipal Corporation of Delhi v. R.P. Khaitan and Anr., wherein the Court considered a direct question in regard to the maintainability of a civil revision before the High Court against the order passed by the Appellate Authority under Section 171 of the Delhi Municipal Corporation Act, 1958 and after examining the provisions of the said Act, the Court held as under:-

“Writ or supervisory jurisdiction of the High Court cannot be permitted to be invoked so long as remedy under Section 115 CPC is available to the petitioners merely because they feel that the revisional jurisdiction of the High Court is limited in its nature then compared to the jurisdiction under Article 226 and/or 227 of the Constitution. This we say for two reasons. Firstly, the scheme of the legislative provisions contained in the DMC Act Chapter VIII suggests that the remedy which has to be availed against levy or assessment of tax is by an appeal to the Distt. Judge, subject to revisional jurisdiction of the High Court. Secondly, the revisional jurisdiction under Section 115 CPC is most appropriate to be invoked by the person aggrieved. It would invariably be against a case decided as the appellate order of the Distt. Judge would invariably be so. The contentions which are covered by Clauses (a), (b) and (c) of Sub-Section 1 of Section 115 CPC would take care of all the grievances which can appropriately be raised and deserve to be entertained in respect of or arising out of the levy or assessment of tax. As to such of the contentions which do not fall within the purview of Clause (a), (b) & (c) above said finality must attach to the proceedings of assessment subject to the order in appeal by the Distt. Judge. In a sense the jurisdiction under Section 115 CPC is wider as it would permit passing of such order as may be appropriate by the High Court itself and the High Court would not be constrained to sit back merely by quashing and remand the orders/proceedings impugned.
Remedy of revision under Section 115 CPC as against an appellate order passed by the Court of District Judge under Section 169 of DMC Act is an appropriate and equally efficacious alternate remedy available to the person aggrieved. The High Court would not ordinarily entertain a petition under Article 226 or 227 of Constitution filed against such appellate order by passing the remedy of revision.”
37. Mr. Chaudhary, learned counsel for the petitioner states that the said authority has no application to the instant case as there exists no provision in Section 171 of the DMC Act as it exists under Section 10 of the Public Premises Act specifically excluding the right of revision. In this connection he has largely relied on the observations appearing in para 9 of the said judgment where it is stated “In other words it is held that a Court is subordinate to the High Court its orders are subject to revision by the High Court unless there be a statutory provision excluding such right of revision”. It is also pointed out by virtue of Section 141 of the DMC Act the provisions of the Code of Civil Procedure have been made applicable to the disposal of the appeals or reference that may be made to the Court of District Judge and clearly it could be held that revision petition under Section 115 would lie against any order passed by the Additional District Judge in appeal. According to him a writ petition under Article 227 of the Constitution of India is the only proper remedy available to a party who seeks to challenge the order of the appellate authority passed by him under Section 9 of the Act.

38. However, on the basis of the above authority which is applicable to the present case, this Court has no hesitation in holding that civil revisions against the impugned order is maintainable. Even if for the sake of arguments it is assumed that a petition under Article 227 of the Constitution of India and not a civil revision was a proper remedy, Ms. Anusuya Salwan, learned counsel appearing for the DSIDC has made a prayer that the civil revisions may be treated as Civil Misc. (Main) Petitions under Article 227 of the Constitution of India and be disposed of as such. There cannot possibly be any objection in treating these civil revisions as petitions under Article 227 of the Constitution of India, once the Court for the reasons as stated above is convinced about the merits of these petitions.

39. This Court having considered the matter in its entirety and for, the above stated reason, is of the opinion that the Petitions filed by the DSIDC deserve to be allowed and the orders of the Appellate Authority dated 23rd September, 1996 and 16th November, 1996 are liable to be set aside and those passed by the Estate Officer should be upheld. The Petitions filed by the allottees of the sheds have no merits and deserve to be dismissed and the order of Estate Officer under Section 5 & 7 of the Act and that of the Appellate Authority deserve to be upheld. Ordered accordingly.

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