@JUDGMENTTAG-ORDER
Sunil Gaur
1. Apart from petitioners being in arrears of license fee, bonafide necessity/space crunch in President''s Estate, New Delhi, is the reason disclosed
by the contesting respondent in the eviction petition but in the Notice u/s 4 of Public Premises (Eviction of Unauthorised Occupants) Act, 1971
issued by the Estate Officer, the reason to seek petitioners'' eviction from the shops/residential premises allotted under License Agreements, is that
the petitioners are in arrears of license fee and upon expiry of notice period, their possession upon Shop Nos. 2 to 7, and Quarter Nos. 75 to 80,
in Block 13; Shop-cum-Quarter No. 96 to 98, G-Point; and Shop/Garage No. 12/4 and Quarter No. 12/6, in President''s Estate Market, New
Delhi, (hereinafter referred to as the subject premises), is unauthorized. Eviction proceedings were initiated against the petitioners in the year 2003,
in pursuance to Notice u/s 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 which culminated in passing of the Eviction
Orders by the Estate Officer in the year 2005-2006, as it was found that the petitioners except petitioner-Farid Qureshi had no subsisting right to
occupy the subject premises after the year 1991 and they were in arrears of the license fee and that respondent had required the subject premises
for bonafide use and commercial use of the subject premises was a high security risk and was affecting the tranquility in the area. The possession of
the petitioner-Farid Qureshi on his shop/residence in the subject premises was purportedly unauthorized after the year 1993.
2. The statutory appeal, preferred by the petitioners stands dismissed vide impugned order which is assailed by way of above captioned writ
petitions, in which the grounds of challenge to the impugned order are common one and therefore, with the consent of learned counsel for the
parties, these writ petitions were heard together and are being disposed of, by this common order.
3. It is beyond realm of controversy that after the year 1993, there was no subsisting right of the petitioners to remain in possession of the subject
premises, as the last Agreement between the parties, to permit the petitioners to remain in the subject premises came to an end by efflux of time in
the year 1993 itself. The impediment to further renewal of the License Agreements between the parties was the enhancement of the license fee
which was unsuccessfully challenged by the petitioners by way of W.P.(C) No. 2071/1992, titled as S.P. Goel vs. Union of India, which was
disposed of on 17th April, 2000. During the interregnum, Petitioners had been paying the license fee under the interim orders of the Court.
4. In the year 2003, ''notice to evict'' was served upon the Petitioners, as they were in arrears of the license fee and the ground of bonafide
necessity was also taken by the contesting respondent in the eviction petition. In reply to the eviction petition, the factum of Petitioners being in
arrears of license fee was contested but of there being bonafide necessity of the contesting respondent in respect of the subject premises was not
disputed and willingness to pay the dues subject to renewal of the License Agreements was expressed. However, ''notice to evict'' was contested
by the Petitioners on the plea that old license fee was payable upto December, 1999 and from January, 2000 onwards, revised license fee was
payable but the contesting Respondent had been illegally demanding the revised license fee from the year 1992 till May, 2002. Aforesaid plea was
negated by the Estate Officer and in appeal, the Eviction Order was contested on the ground that termination of the License Agreements by the
contesting Respondent was not by the authorised person and the Eviction Order on the ground other than the one mentioned in the Notice u/s 4 of
the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 stands vitiated.
5. Ms. Anjana Gosain, learned counsel for the Petitioners - Farid Qureshi and Sharwan Kumar, had vehemently contended that the Respondent''s
plea of bonafide requirement of the subject premises and of there being high security risk due to commercial use of the subject premises by the
Petitioners in the President''s Estate, New Delhi, which is accepted by the Estate Officer as well as the Appellate Authority, does not stand
established and was not the subject matter of the ''notice to evict'' u/s 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971
and on these twin grounds, the impugned order as well as Eviction Order are rendered unsustainable.
6. So far as the ground of Petitioners being in arrears of license fee is concerned, with much vehemence, it was urged by Ms.Anjana Gosain,
learned counsel for the Petitioners that during the litigation period in respect of enhancement of the license fee, Petitioners were paying the arrears
of license fee in installment of Rs.10,000/- per month and thereafter, a consensus was arrived at between the parties that for the period prior to the
December, 1999, Petitioners would be paying the license fee at the old rate and from January, 2000, they would be paying the license fee at the
revised rates but suddenly vide communication of 17th July, 2002 the contesting Respondent had called upon the Petitioners to pay the license fee
from the year 1992 till the year 2002 at the revised rates, which is clearly arbitrary.
7. Adopting the arguments advanced by Ms.Anjana Gosain, learned counsel for the Petitioner - Farid Qureshi and Sharwan Kumar, Mr. Ajay
Kumar Jha, learned counsel for the remaining Petitioners, had asserted that the very initiation of the Eviction proceedings against the Petitioners on
the basis of the ''notice to evict'' in question being the third one, is hit by principles of res-judicata and acceptance of the rent/license fee after the
termination notice amounts to waiver and since the ground of bonafide requirement is not specified in the ''notice to evict'' u/s 4 of Public Premises
(Eviction of Unauthorised Occupants) Act, 1971 therefore, eviction of the Petitioners on the said ground stands vitiated in view of the decisions in
Ex. Havaldar Kailash Singh and Sons Vs. Union of India (UOI) and Another, Premlata Bhatia Vs. Union of India (UOI) and Others, ; and Sudhir
Goel Vs. M.C.D., State of U.P. Vs. Nawab Hussain, and Workmen of Cochin Port Trust Vs. Board of Trustees of The Cochin Port Trust and
Another,
8. It was also asserted by Mr. Jha, learned counsel for the Petitioners that on account of factual inaccuracies in the termination notice and on
account of the same being in contravention of the Guidelines to Prevent Arbitrary Use of Powers to Evict Genuine Tenants from Public Premises
under the Control of Public Section Undertaking/Financial Institutions of the year 2002, impugned order as well as Eviction Order deserves to be
set aside. Legal bias alleged against the Estate Officer by Mr. Jha, learned counsel for the Petitioners is that on the application of the Petitioners,
Estate Officer had carried out inconsequential corrections in the cross-examination of Respondent''s witness but material corrections were
deliberately left out and thereby violating the principles of natural justice as the irregularities committed by the Estate Officer while conducting the
eviction proceedings adversely affected the Petitioners and on this score as well, the impugned order is rendered illegal and liable to be set aside.
9. Ms. Shobhna Takiar, learned counsel for the Respondents, in support of the impugned order, had vociferously contended that upon expiry of
the License Agreements in question, proceedings u/s 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 were validly
initiated in view of the decisions in Sushila Verma vs. Union of India 2002 (65) DRJ 795; Delhi State Industrial Development Corporation Ltd. Vs.
K.C. Bothra and Others, ; and Jiwan Dass Vs. Life Insurance Corporation of India and Another, and so, question of termination of the License
Agreements in question by Competent Authority pale into insignificance.
10. It was contended by respondent''s counsel that there was no question of refusal on the part of the contesting Respondent to accept the license
fee as the same had to be accepted towards damages without prejudice to the rights of the Respondents as the Petitioners had no authority to
remain in the subject premises upon non-renewal of the License Agreements and that in any case, mere acceptance of license fee does not amount
to acquiescence. It was also contended that the plea of malafide and the alleged irregularities in the conduct of eviction proceedings, raised by the
Petitioners remains unsubstantiated and that the fact of Petitioners being in arrears of license fee and of bonafide necessity of the Respondents
stands firmly established and therefore, these petitions deserve rejection.
11. The contentions raised on behalf of the Petitioners to assail their eviction from the subject premises has to be considered in the light of the
averments made, decisions cited and the record. So far as the mandatory nature of the Guidelines to Prevent Arbitrary Use of Powers to Evict
Genuine Tenants from Public Premises under the Control of Public Section Undertaking/Financial Institutions of the year 2002 is concerned, a
Division Bench of this Court in a recent decision in LPA No. 977/2011, Life Insurance Corporation of India. vs. Damyanti Verma, (DECD)
Through Lrs., rendered on 23rd March, 2012 has endorsed the earlier dicta of larger bench of this Court holding these guidelines to be not
binding.
12. It is true that the issue of security concern was not there either in the notice u/s 4 of the Public Premises (Eviction of Unauthorised Occupants)
Act, 1971 or in the eviction petition filed by the Respondent but, the plea of contesting Respondent needing the subject premises for bonafide use
was certainly there in the Eviction petition, though it was not there in the notice u/s 4 of the Public Premises (Eviction of Unauthorised Occupants)
Act, 1971.
13. In the decisions relied upon by the Petitioners '' counsel to assail notice u/s 4 of the Public Premises (Eviction of Unauthorised Occupants) Act,
1971 regarding impermissibility of eviction being on a ground other than the one mentioned in the said notice, has been considered in the cited
decisions, in the perspective of the effected party having a reasonable opportunity to meet the ground upon which the Eviction Order is based. So,
the Eviction Order is required to be tested upon the touch stone of prejudice being suffered by the Petitioners on account of ground of bonafide
necessity being not there in the ''notice to evict'' u/s 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Apparently,
Petitioners do not suffer any prejudice on this account, as the ground of bonafide necessity is very much there in the eviction petition and the finding
returned against the Petitioners on the aspect of bonafide necessity remains unassailable as in the evidence, plea of bonafide necessity stands
substantiated with no worthwhile challenge to it in the cross-examination. In this view of the matter, it has to be held that on this score, the
impugned eviction of the Petitioners cannot be dented.
14. In WP (C) 391/2003, Sharvan Kumar Goel & Anr. vs. UOI & Ors., a coordinate Bench of this Court on 3rd August, 2004, while dealing
with aforesaid communication of 17th July, 2002 had passed the following order:-
After some hearing, it is agreed that in view of the Orders passed on 11.03.2003 by learned Single Judge of this Court in CWP 1834/2003 and
connected matters, benefit of the said judgment should also be made available to the petitioners in the present petition as the present petitioners are
also similarly situated.
In view of the aforesaid position, it is directed that case of the petitioners will be dealt with by the Estate Officer in terms of the directions passed
as aforesaid on 11.03.2003.
It is also agreed that the payments made by the petitioners in the meantime will be accepted by the respondent without prejudice to the rights and
contentions of the parties in respect of the proceedings before the Estate Officer.
The writ petition stands disposed of in the aforesaid terms.
15. Though, afore-referred order of W.P.(C) No. 1834/2003 has not been placed on record in the instant matter but it appears that in terms of the
aforesaid order the Petitioners had been paying installment of the arrears of license fee but even after the orders passed in the aforesaid writ, still
Petitioners were in arrears of the license fee when ''notice to evict'' was served upon them. Not only this, Petitioners had remained in arrears of the
license fee even at the time of passing the Eviction Order, with the exception of Petitioner-Farid Qureshi, who had cleared the outstanding arrears
of the license fee on 1st January, 2003. However, eviction of Petitioner - Farid Qureshi is sought to be justified by the Respondent''s counsel on
the plea of bonafide necessity of the Respondent.
16. The factum of petitioners being in arrears of license fee on the day of issuance of ''notice to evict'', has to be seen in the light of the afore-noted
order of 3rd August, 2004 in W.P.(C) No. 391/2003, Sharvan Kumar Goel & Anr. vs. UOI & Ors., whereby liberty was granted to the
petitioners to urge on this aspect before the Estate Officer. The finding returned by the Estate Officer in the Eviction Order is of petitioners being in
arrears of license fee, to which there is no serious challenge in these petitions. Otherwise also, the Writ Court is not required to sit in appeal over
the factual finding returned in the Eviction Order as the same is not shown to be vitiated by any material procedural lapse. In this context, all that is
required to be said is that the so called procedural lapses in the conduct of eviction proceedings, pointed out by learned counsel for the petitioners
regarding material corrections not being carried out in the deposition of the witness, the assertion made in this regard is blissfully ambiguous, as it
was not specifically pointed out at the hearing as to what was the material corrections, which has been omitted. In any case, not much will depend
upon the factual aspect of petitioners being in arrears of license fee because this Court is inclined to sustain the impugned eviction of the petitioners
on the ground of bonafide necessity of the respondent, to which there is no worthwhile challenge.
17. As regards the plea of constructive res-judicata, legal bias, etc. raised on behalf of the petitioners to assail the impugned eviction is concerned,
I find that since liberty was granted to issue fresh notice u/s 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 therefore,
the plea of constructive res-judicata fails and the decisions relied upon in support of this plea are of no avail to the petitioners. The plea of legal bias
raised is required to be substantiated by tangible evidence. Having failed to do so, petitioners cannot succeed in assailing the impugned eviction on
the ground of the legal bias of the Estate Officer.
18. Even the plea of Mr. Ajay Kumar Jha, learned counsel for the petitioners of respondent failing to produce the License Agreements in question
is concerned, the same is noted to be rejected outrightly, as this plea is contrary to the averments made in the writ petition regarding License
Agreements being executed between the parties in the year 1990 as well as 1991. Though, no such agreements have been placed on record by
Mr. Ajay Kumar Jha, but the existence of these agreements is not in dispute and similar agreements are there in the petitions filed by petitioner -
Farid Qureshi and Sharwan Kumar, which indicate that these agreements are License Agreements.
19. During the course of hearing in these matters, issue of termination of the License by the contesting respondent in the year 2002 being not by
Competent Authority was raised with much vehemence by learned counsel for the petitioners, but in view of the decision in Jeewan Das (supra),
Sushila Verma (supra), this issue does not survive for consideration as the License Agreements in question had come to an end by efflux of time
way back in the year 1993 and so, question of termination of these agreements in the year 2002 is hardly of any consequence. It is so said because
in the period post the year 1993, the status of the petitioners in the subject premises was not authorised in the absence of non-renewal of the
License Agreements in question. Therefore, initiation of the eviction proceedings in the year 2003 in pursuance to notice u/s 4 of Public Premises
(Eviction of Unauthorised Occupants) Act, 1971 cannot be faulted with.
20. In Prem Grover and Others Vs. New Delhi Municipal Committee, upon failure to accept the renewal of license on increased license fee which
was ten times the original license fee, such licensees were held to be unauthorised occupants.
21. Petitioners'' plea of acquiescence does not cut any ice in view of the dictum of the Full Bench of this Court in Chandu Lal Vs. Municipal
Corporation of Delhi, holding that mere acceptance of the license fee merely extends the period of license but does not affect licensor''s right to
evict the licensee. Mere acceptance of payment from the petitioners during the period post termination of the License Agreements, would not
justify raising the plea of acquiescence and in W.P.(C) No. 391/2003, Sharwan Kumar Goel & Ors. Vs. Union of India & Ors., it was agreed by
the parties that the payments made in respect of the subject premises would be accepted by the respondent without prejudice to its rights. On the
strength of the evidence on record regarding bonafide necessity of the subject premises by the respondent, this Court is of the considered view that
the finding returned on this aspect being unassailable, justifies the eviction of the petitioners from the subject premises. Impugned eviction of the
petitioners from the subject premises does not suffer from any arbitrariness or material procedural lapse, warranting any interference in these writ
proceedings. Upon arriving at such a conclusion, I dismiss these petitions while leaving the parties to bear their own costs.
