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2008 DIGILAW 746 (DEL)

HARI PRAKASH EDN. WELFARE SOCIETY v. DDA

2008-08-07

SUNIL GAUR, T.S.THAKUR

body2008
T.S. THAKUR, J : 1. The issues that arise for consideration in this appeal and in theA connected writ petition between the same parties are inter related. The same shall, therefore, stand disposed of by this common order. The facts giving rise to the filing of the present appeal and the accompanying writ petition may be summarized as under: .2. The plaintiff-appellant society secured the allotment of a plot of land measuring 800 sq. mts. in Sector A, Pocket B of Vasant Kunj area of New Delhi. A perpetual lease dated 12th April, 1990 was, pursuant to the said allotment, executed in favour of the appellant. It is not in dispute that the society has, after obtaining the requisite permissions .raised construction necessary for running a nursery school in the name and style of Tender Hands Nursery School in the said plot of land. 3. By a show cause notice dated nil but received by the appellant- society on 16th April, 2003, the society was accused of using the property for an unauthorized purpose. The notice alleged that the premises in question was being used for purposes of running a girls hostel and an institute of vocational studies. The show cause notice, therefore, directed the plaintiff to stop the misuser within a period of 15 days and to submit a reply to the notice failing which the allotment/lease in its favour could be determined and the possession of the land and building taken over by the DDA. The Societys version is that on receipt of the above show cause notice, a reply denying the allegations of misuser and offering the premises for a joint inspection was sent to the respondent-DDA by speed post A.D on 30th April, 2003 which was duly received in the office of the DDA on 1st May, 2003. In addition, a copy of the said reply was delivered in the Receipt and Despatch cell of the DDA on 1st May, 2003. Without taking the reply filed by the appellant-society into consideration and without even inspecting the premises to verify whether the misuser has stopped as directed by the show cause notice, the DDA is alleged to have terminated the lease in terms of an order passed on the 2nd May, 2003. A copy of the said order of termination was not, however, served upon the Society. A copy of the said order of termination was not, however, served upon the Society. Instead a communication dated 14th May, 2003 served upon the society intimated the cancellation termination of the lease and directed the appellant-society to hand over the possession of the property along with the construction raised over the same to the DDA within 15 days failing which the intimation threatened further action in the matter. 4. Aggrieved by the termination and the threatened dispossession of the society from the premises in its occupation, the society filed OS No.654/04/03 for a declaration to the effect that the lease held by it was subsisting and the cancellation order referred to above legally invalid. A perpetual injunction restraining the defendants-respondents herein for taking over the forcible possession of the suit property without following the due process of law and for a mandatory injunction directing the respondents not to interfere in any manner with the peaceful enjoyment of the property by the appellant was also prayed for. The defendants-respondents appeared to contest the said suit and filed a written statement giving rise to the following issues: 1) Whether the present suit is not maintainable as the requisite notice u/s 53 (B) of the Delhi Development Act has not been given by the plaintiff society to the defendant OPD 2) Whether the present suit is barred under the provisions of the Section 10l and 15 of the Public Premises (Eviction of the unauthorized occupants) Act OPD 3) Whether the present suit has not been properly valued for the purpose of court fee and jurisdiction OPD 4) Whether the plaintiff is entitled to a decree of declaration, as prayed for OPP 5) Whether the plaintiff is entitled to a decree of perpetual injunction, as prayed for OPP 6) Whether the plaintiff is entitled to a decree of mandatory injunction, as prayed for OPP Relief .5. In support of its case the plaintiff examined PW-1 Sh. Kamal Khattar and PW-2 Sh. Ashok Khattar. The defendants also examined two witnesses, viz; DW-1 Sh. Kailash Chander and DW-2 Sh. L.N. Garg. By the judgment and decree impugned in this appeal, the trial Court held issues 1, 2 and 3 in favour of the plaintiff-society but issues 4, 5 and 6 .which were taken up together for discussions were answered in favour of the defendants-respondents in this appeal. Kailash Chander and DW-2 Sh. L.N. Garg. By the judgment and decree impugned in this appeal, the trial Court held issues 1, 2 and 3 in favour of the plaintiff-society but issues 4, 5 and 6 .which were taken up together for discussions were answered in favour of the defendants-respondents in this appeal. The net result was that the suit in question was dismissed by the Court below primarily on the finding that the misuser of the property by the plaintiff-appellant having been established and no written consent of the lessor having been obtained for using the property as a Girls Hostel or for running the Vocational Institute, termination of the lease was justified. 6. During the pendency of the suit before the court below proceedings for eviction of the appellant-society from the premises in question were initiated under the Public Premises (Eviction of Unauthorized Occupants) Act and an order of eviction passed by the Estate Officer. The validity of the said order was questioned by the appellant-society in an appeal before the District Judge who repelled the said challenge and upheld the order passed by the Estate Officer. W.P.(C) No.5438/2003 filed by the society challenges the validity of the said two orders. 7. When RFA No. 157/2007 came up for hearing before us on 10th July, 2008, learned counsel for the parties pointed out that W.P.(C) 5438/2003 challenging the order passed by the District Judge and pending before a single bench of this Court could also be directed to be listed together with the appeal for a final and effectual adjudication of all the issues that arose for consideration between the parties. That is precisely how W.P.(C)5438/2003 was also listed and heard by us for final disposal along with this appeal. What is noteworthy, however, is that in the said writ petition a Single Judge of this Court had by order dated 14th October, 2003 directed de-sealing of the premises in question and delivery of the possession thereof to the appellant-society. A review petition filed against the said order also failed and was dismissed on 14th May, 2004 By another order dated 11th November, 2003 the keys of the premises in question were directed to be deposited in the Court, which have ever since remained in deposit with the Court. 8. Appearing for the appellant-society in RFA 157/2007, Mr. A review petition filed against the said order also failed and was dismissed on 14th May, 2004 By another order dated 11th November, 2003 the keys of the premises in question were directed to be deposited in the Court, which have ever since remained in deposit with the Court. 8. Appearing for the appellant-society in RFA 157/2007, Mr. J.P. Sengh made a threefold submission to assail the impugned judgment and decree passed by the Court below. Firstly, he contended that the cancellation of the lease held by the appellant-society was unfair as the order of cancellation was passed without considering the reply which the appellant-society had submitted to the show cause notice served upon it. He drew our attention to the copy of the reply (marked exhibit PW-1/9), the acknowledgment/receipt issued by DDA acknowledging receipt of the reply on 1st May, 2003 (marked exhibit PW-1/10), the postal receipt (market exhibit PW-1/11) under which the reply sent to the DDA under speed post registered cover and the A.D. Receipt (marked exhibit PW- 1/12) under which the receipt of the reply was acknowledged by the DDA. It was contended that the delivery of the reply to the DDA having been established and even acknowledged by the DDA on 1st May, 2003, the same ought to have been considered before passing any order on the basis of the show cause notice. Inasmuch as the respondent-DDA had without, considering the said reply proceeded to cancel the lease in an arbitrary fashion, it committed an illegality which rendered the order of cancellation illegal. 9. It was secondly argued by Mr. Sengh that the cancellation of the lease was even otherwise unjustified having regard to the fact that there was no material before DDA to establish that there was any misuser of the property by the appellant-society. The alleged inspection report had not been produced before the Court below nor was the same properly proved. Even the inspection of the premises allegedly conducted was without any actual inspection of the premises and was based on hearsay. 10. Thirdly, he argued that before making any order of cancellation on the ground of misuser of the premises, the DDA was duty bound to direct a second inspection of the premises to verify whether the misuser of the same had indeed been stopped. It was, according to Mr. 10. Thirdly, he argued that before making any order of cancellation on the ground of misuser of the premises, the DDA was duty bound to direct a second inspection of the premises to verify whether the misuser of the same had indeed been stopped. It was, according to Mr. Sengh, only if the misuser had not stopped despite an opportunity granted for the purpose that the DDA could in terms of Clause IV of the lease agreement cancel the lease. An inspection after the service of a show cause notice directing stoppage of the misuser was, therefore, absolutely essential before the DDA could hold the misuser to be continuing and before the lease could be canceled on that ground. 11. On behalf of the respondent Ms. Chandra argued that the reply to the show cause notice had no doubt been received by the DDA on 1st May, 2003 but the same was according to the learned counsel beyond the stipulated period of 15 days allowed to the society to give its reply. Non-consideration of the reply could not, therefore, be faulted by the appellant, argued the learned counsel. It was also submitted that even if the reply had been taken into consideration there was nothing material or conclusive in the same which may have justified taking of a different view in the matter. The appellant had not, according to Ms. Chandra, furnished any material with the reply from which the charge of misuser could be said to have been effectively repelled. 12. It was also contended by Ms. Chandra that a second inspection may have been necessary when a reply was received by the DDA from the society but such a situation did not arise. A second inspection was therefore wholly unnecessary, according to the learned counsel, if there was no reply to the show cause notice, for in that case the DDA could draw an inference that the charge of misuser was not repudiated nor was there any offer to stop the same. .13. We have given our careful consideration to the submissions made at the bar and perused the record. Clause IV of the perpetual lease executed between the parties holds the key to the question whether the procedure adopted by DDA for terminating the lease was valid. It reads: IV. .13. We have given our careful consideration to the submissions made at the bar and perused the record. Clause IV of the perpetual lease executed between the parties holds the key to the question whether the procedure adopted by DDA for terminating the lease was valid. It reads: IV. No forfeiture or re-entry shall be effected until the Lessor has served on the Lessee a notice in writing. (a) Specifying the particular breach complained of, and (b) if the breach is capable of remedy requiring the Lessee to remedy the breach, and the Lessee fails within such reasonable time as may be mentioned in the notice to remedy the breach if it is capable of remedy and in the event of forfeiture or re-entry the Lessor may in his discretion relieve against forfeiture on such terms and conditions as he thinks proper. Nothing in this clause shall apply to forfeiture or re-entry. (a) for breach of covenants and conditions relating to sub-division or amalgamation erection completion the alteration of the size of the said land and transfer of the said land as mentioned in Clause II, or (b) In case this lease has been obtained by suppression of any fact, misstatement, misrepresentation, or fraud. 14. A simple reading of the above would show that forfeiture or re-entry by the lessor is forbidden until the lessor has served on the lessee a notice in writing specifying the particular breach complained of and if the breach is capable of remedy requiring the lessee to remedy the same. It is only if the lessee fails within such reasonable time as may be mentioned in the notice to remedy the breach that is capable of remedy that the lessor may be entitled to re-enter the premises held by the lessee. Clause IV, however, does not apply to situations where the breach involves sub-division or amalgamation, erection, completion or alteration of the size of the land and transfer of the land as mentioned in Clause II, or in cases where the lease itself has been obtained by suppression or misstatement of any fact or misrepresentation or fraud. The issue of show cause notice in terms of clause IV was, therefore, absolutely essential before the lease could be terminated and any steps by way of re-entry taken against the lessee. It is not in dispute that a show cause notice was issued to the appellant-society. The issue of show cause notice in terms of clause IV was, therefore, absolutely essential before the lease could be terminated and any steps by way of re-entry taken against the lessee. It is not in dispute that a show cause notice was issued to the appellant-society. It is also not in dispute that the appellant had sent a reply to the said show cause notice which was received by the DDA on the 1st May, 2003. The question, therefore, is whether the reply was submitted within the time stipulated for the purpose and whether the DDA should have taken the same into consideration before passing any order on the subject. 15. The show cause notice, it is common ground, was served upon the appellant-society on 16th April, 2003. Fifteen days time granted for the purposes of a reply to the same the date on which the notice was served shall have to be excluded on the general principles of law relating to limitation which, in our opinion, ought to be extended to cases like the one at hand especially when there is no contra-indication to the extension of those principles. Reckoned thus, the reply received by the DDA on 1st May, 2003 was definitely within the stipulated period of 15 days available to the appellant- society for submitting the same. 16. The second aspect of the case pertains to the non-consideration of the reply by the respondent-DDA which is admitted in the instant case. Since, however, the reply was, in our opinion, within the stipulated period the said non-consideration would render the order of cancellation unsustainable. We say so because the cancellation of a validly concluded perpetual lease is bound to visit the lessee with serious civil consequences particularly when the lessee has acted upon the lease altered its position and made investments by way of construction of super-structures as in the instant case. .17. Even assuming that there was a days delay as was argued by Ms. Chandra in the receipt of reply by the DDA, we are of the view that so long as the reply had been received before the order of cancellation was passed by the competent authority on 2nd May, 2003, the alleged delay should have made no difference. .17. Even assuming that there was a days delay as was argued by Ms. Chandra in the receipt of reply by the DDA, we are of the view that so long as the reply had been received before the order of cancellation was passed by the competent authority on 2nd May, 2003, the alleged delay should have made no difference. If a reply had been received and was available at the time the competent authority applied its mind to the question of cancellation of the lease it would be too hyper-technical a view to ignore the version of the lessee just because in the opinion of the authority competent to direct cancellation, there was a days delay. Principles of Equity, Justice and Good Conscience .demanded that the reply submitted by the appellant was considered by the competent authority even if there was a delay. That is not what happened in the instant case as already seen earlier. .18. That brings us to the question whether there was any basis for the DDA to cancel the allotment. The trial Court has recorded a finding that an inspection of the premises was carried out by the officers of the DDA who had submitted a report based on the same. That finding was assailed before us as being without any evidence whatsoever. Learned counsel for the respondent, however, made a valiant attempt to support the finding by reference to a xerox copy of the inspection report marked exhibit DW 2/1 and the deposition of DW-2 Sh. L.N. Garg who was posted as J.E.(Civil) with the DDA during the relevant period. In his deposition Sh. Garg states that he had inspected the said premises on 10th April, 2003 on the basis of an administrative order issued in that regard although the locality in which the premises is situated did not fall within his jurisdiction. The inspection was to be carried out by A.E.(IL) who did not accompany the inspection team. He states that the report submitted by him was based on a local inquiry made from the workers and employees of the Japanese School situated in front of the premises and other persons who were standing there. These workers, employees and other persons had not, however, disclosed their names nor were their signatures obtained on the report. He states that the report submitted by him was based on a local inquiry made from the workers and employees of the Japanese School situated in front of the premises and other persons who were standing there. These workers, employees and other persons had not, however, disclosed their names nor were their signatures obtained on the report. The witness goes on to state that there was a signboard of Tender Hands at the gate of the premises. He also states that while there was a signboard of H.P. Institute of Vocational Studies, there was no board of girls hostel. According to the witness, the inspecting team could not enter the suit premises. He denied the allegation that no local inquiry was conducted or that exhibit DW 2/1 is a manipulated and fabricated document. The deposition of this witness is by far the only evidence adduced by the defendant to support its version that the premises was being used for unauthorized purposes, viz; a girls hostel and an institute for vocational studies. The alleged inspection, however, is wholly unsatisfactory to say the least. In the first place, the original inspection report has not been placed on record nor is there any explanation forthcoming for the failure of the defendant to do so. In the absence of the original document the plaintiff was justified in objecting to the proof and marking of a copy of the said report by the defendant. That apart, the conclusions drawn in the report were based not on an actual inspection of the premises but on the basis of some inquiry which was superficially conducted outside the premises gate. The witness has clearly admitted that he had not entered the premises to verify whether the same was being used for running a girls hostel or vocational training institute. The conclusion that there was a misuse of the premises was drawn based on the version of some persons found standing in front of the Japanese school perhaps situated across the road. Who were the persons from whom this information was collected is not known nor were their names and particulars noted. It is also not the case of the defendant-respondent herein that the management of the appellant-society had declined permission to them to enter or to carry out a detailed inspection of the premises for purposes of verifying whether there was any misuse. It is also not the case of the defendant-respondent herein that the management of the appellant-society had declined permission to them to enter or to carry out a detailed inspection of the premises for purposes of verifying whether there was any misuse. Such being the position, there was really no reliable evidence based on which the DDA or the authority competent could draw a conclusion that misuse of the property had been established. That is particularly so when the reply submitted by the Society had offered the joint inspection of the premises to the DDA and its officers for verifying the true facts. If the competent authority had looked .into the said reply and applied its mind to the nature of the inspection and verified the basis of the adverse conclusion drawn in the same he would have been in all probability directed a joint inspection to be conducted before actually passing any order of cancellation. In as much as the authority acted upon a report which was unsatisfactory for all the reasons stated above the order of cancellation passed by it was unsustainable. 19. That leaves us with the only other argument advanced by Mr. J.P. Sengh in support of the appeal. It was contended that a cancellation order could be passed only if the competent authority came to the conclusion that the misuse of the property had not been stopped by the lessee despite the grant of a reasonable opportunity to do so. It was argued by Mr. Sengh and in our opinion rightly so that mere misuser could not result in a cancellation order in cases where the misuse was capable of being remedied. The lessee had to be given a reasonable opportunity to remedy the same. This would imply that not only had there to be a finding that there is misuse but there had to be an opportunity to rectify the same and a clear finding thereafter to the effect that the misuser had not stopped. Even assuming that the first part of the requirement was satisfied by the show cause notice itself inasmuch as it recorded a finding no matter even before the lessee could submit a reply that there was misuse, a second inspection was necessary to verify whether or not the alleged misuser had stopped. Even assuming that the first part of the requirement was satisfied by the show cause notice itself inasmuch as it recorded a finding no matter even before the lessee could submit a reply that there was misuse, a second inspection was necessary to verify whether or not the alleged misuser had stopped. There may be situations where a lessee receives a show cause notice and stops the misuse as required but fails to submit a reply. The failure to submit a reply would not by itself expose him to suffer an order of termination of the lease. We say so, because even if there is no reply the lessee could stop the misuser and thereby avoid an order of termination. In the instant case not only was there a reply which denied the misuser, there was no inspection after the said denial to verify whether or not the premises was indeed being misused even after the society had been given reasonable notice to stop the same. The contention urged by Ms. Chandra that a second inspection would have been necessary only if there was a reply received from the lessee has not commended itself to us. So also the contention that the non-consideration of the reply did not make any material difference in the instant case because it did not contain any material that could have led the authority to a conclusion different from the one it has arrived at. We hardly need to emphasize that if consideration of the reply was essential as indeed it was, in our opinion, non- consideration would be sufficient to vitiate the order. A court of law would not uphold a termination order for the specious reason that the reply of the affected party was in any case of no significance. It is always for the authority who is required to consider the reply to determine the effect of the reply and not for the court examining the validity of the order of termination. In the circumstances and for the reasons stated by us above the order of the termination of the lease was not legally sustainable, the dismissal of the suit by the trial Court was not, therefore, justified. .20. The next question then is whether and if so what order can be passed in regard to delivery of possession of the premises in question to the appellant-society. .20. The next question then is whether and if so what order can be passed in regard to delivery of possession of the premises in question to the appellant-society. As already noticed earlier the possession of the premises which was sealed by the DDA is with the Court where the keys of the premises are lying in deposit. We need not, however, go into the question whether or not the order of eviction passed by the Estate Officer was justified having regard to the law declared by the Supreme Court in Express Newspapers .Private Limited Vs. Union of India and Ors. (1986) 1 SCC 133 , for we are of the view that once the order of termination of the lease is set aside, any order of eviction passed on the basis of such a termination must also be set aside as a consequence. That position, we must say in fairness to Ms. Chandra, was not disputed by her. 21. In the result, we allow RFA 157/2007 set aside the impugned judgment and decree passed by the trial Court and pass a decree for declaration to the effect that the order of cancellation of the plaintiff-appellants perpetual lease in respect of the premises in question was legally bad. We also allow W.P.(C)5438/2003 and set aside the orders of eviction passed by the Estate Officer and that passed by the District Judge, Delhi in appeal. We further direct that the keys of the premises lying in deposit with this Court shall be delivered to the appellant-petitioner-society who shall not be evicted from the said premises otherwise than in accordance with the procedure established by law. 22. It is made clear that this order shall not prevent the DDA from inspecting the premises again and initiating proceedings for cancellation of the lease and eviction of the society in accordance with law if it is found that the premises is being used for a purpose which is unauthorized or for any other reason that can call for such cancellation. 23. The parties are left to bear their own costs.