Yogender Kumar Sharma and Others vs Delhi Development Authority and Another

Gita Mittal, J.—The petitioners have raised a limited question with regard to maintainability of proceedings filed against them under the

Public Premises (Eviction of Unauthorised Occupants) Act, 1971 during the pendency of a suit for declaration and injunction filed by their

predecessor in interest against the land owning agency. The writ petition is premised on the submissions that the erstwhile Delhi Improvement Trust

had granted a lease of land in different parts of Delhi to the Delhi Peasants Cooperative Multipurpose Society for agricultural production. This

society is claimed to have allotted about 99 bighas of land located in Khasra No. 172/38, 182/38 to 199/38 and 222/200 in Village Chirag

Shumali, G.T. - 1 Road, Shahdara, Delhi by a special lease to Pandit Chintamani Sharma (predecessor in interest of the petitioners) who claimed

to have been a member of the society. The Delhi Improvement Trust was taken over by the Delhi Development Authority (''DDA'' for brevity

hereafter). The DDA is alleged to have attempted to forcibly evict Pandit Sharma from this land. Such attempt was resisted and petitioners are

stated to have filed a civil suit bearing Suit No. 496/1963 praying for grant of perpetual injunction restraining the DDA from dispossessing him from

3.58 acres of land located in Khasra No. 222/200 in Village Chirag Shumali, G.T. Road, Shahdara, Delhi.

Suit No. 496/1963 was decreed in favour of the plaintiff by a judgment and decree dated 21st December, 1964. In para 10 of this judgment,

the trial court noted that the lease in favour of the society was for a fixed period which stood determined in the year 1956. However, possession of

the land was not taken by the DDA. Rather as per the defence witnesses, it was admitted that from 1956 to 1963, lease money had been received

from the society. The court held that the mere fact that the lease was for a fixed period would not mean that the society ceased to be lessee after

1956 when the lease money of the land had been accepted by the DDA since 1956. Reliance was placed on Section 116 of the Transfer of

Property Act by the court and it was concluded that there was no evidence that the new lease had been determined by the DDA.

The DDA assailed this judgment by way of RCA No. 52/65 before the Senior Sub-Judge which was dismissed by a judgment dated 20th July,

1965 - 2 on the principle of holding over by the tenant on expiry of the lease.

The petitioners have contended that in the meantime, land was sought for the establishment of Shyam Lal College and an area of 3.5 acres was

taken away from Pandit Sharma for this purpose.

For the reason that efforts were again made to dispossess Pandit Sharma from the subject land, he was constrained to file a second suit bearing

Civil Suit No. 270/1968 in the court of Sub-Judge First Class, Delhi along with an application for interim injunction. In this suit also, a prayer was

made for stay of dispossession from the above land and injunction against demolition of the plaintiffs installations. An ex parte order of injunction

was granted on 21st March, 1968 which was partly confirmed by a detailed judgment passed on 15th June, 1998.

It is noteworthy that in this suit, Pandit Sharma had sought injunction not only against the DDA and the MCD but also against one M/s. Ugarsain

& Sons (arrayed as defendant no. 1 in the plaint) who were dealers of ESSO Standards (which was arrayed as defendant no. 2 in the plaint).

Certain facts noted in the order dated 15th June, 1968 have a bearing on the present case. The DDA had taken a stand that the lease granted to

the Delhi Peasants Cooperative Multipurpose Society stood determined in view of the surrender by the said society since 15th July, 1965. The

DDA had also taken a stand that possession was taken of the land on 15th July, 1965 and handed over to the Land and Development office on

16th July, 1965 and consequently, the plaintiff was a mere trespasser on the subject land.

By the order dated 15th June, 1968, the trial court held that no physical possession of the land stood taken from the society or the - 3 plaintiff

although the issue as to whether they were in possession as a sub-lessee or trespassers was not decided.

The order also notes that the petitioner was placing reliance on certain receipts of rent which were paid by him to the Delhi Peasants Cooperative

Multipurpose Society upto 31st May, 1967.

The court also noted the claim of allotment of a portion of the subject land to M/s. ESSO Standard, defendant no. 2 for the purposes of resitement

of a Petrol Filling-cum-Service Station for which it had paid amounts to the Land and Development Office. In view of the above facts, the court

vacated the ex parte injunction granted to the plaintiff relating to the portion of land and site which stood allotted to the ESSO Standard and

confirmed the order of status quo with regard to the remaining land.

It appears that in August, 1976, demolition action was taken by the DDA on the land occupied by Pandit Chintamani Sharma. He complained

of violation of the order dated 15th June, 1968 in their favour thereby and sent a legal notice to the DDA threatening to initiate proceedings under

the Contempt of Courts Act against its official. A copy of the legal advice dated 19th May, 1979 given to the DDA by the then Chief Legal

Advisor has been relied upon by the present petitioners to contend that officials of the DDA had rendered them liable for appropriate action under

the provisions of the Contempt of Courts Act and it was advised to settle the dispute with Pandit Chintamani Sharma, the predecessor-in-interest

of the petitioners. It is noteworthy that the legal advice refers to possession of the land having been handed over to the PWD on 24th June, 1977 in

anticipation of the approval of the Delhi Development Authority being a work of urgent nature for construction of road No. 65 from the Marginal

Bund to the G.T. Ghaziabad Road.

Reliance has also been placed on a noting from files of the DDA bearing no. PA/VC/78/315-N dated 11th May, 1978 of Mr. M.N. Buch the

then Vice-Chairman. This noting refers to a decision reached after discussion with Pandit Chintamani Sharma that within the disputed land, 22

bighas would be given on lease to him and that he would surrender the balance land. The pending cases would stand terminated. The noting

records the suggestion of Pandit Chintamani Sharma that 22 bighas of land be given on annual rent and in addition thereto, land in Jhilmil as desired

by him be allotted to him on the reserved rate. The DDA had agreed to this request and the Vice-Chairman directed action on the same be taken

immediately.

Based on the proposed settlement and direction by the Vice-Chairman, the parties entered into an agreement dated 30th November, 1979

which records the entire background and the rival claims. It also records the nature of the litigation which was pending. It also notices the intention

of the DDA to commence proceedings for assessment of damages and recovery of damages against Pandit Chintamani Sharma based on its claim

that he was in unauthorised occupation of the subject land. The agreement records that as a rehabilitation measure and to put an end to the long

drawn litigation between the parties, they had agreed that Pandit Chitnamani Sharma shall hand over the entire piece of land measuring 81 bighas

17 biswas of land located in the Khasra No. 222/200 Min. 172/38, 182/38 to 199/38 in Chiragha Shumali, Revenue Estate, G.T. Karnal Road,

Shahdara, Delhi within three days from the date of the agreement and shall not claim any compensation with regard to structure, crops etc. located

therein. It was agreed that the DDA shall grant a lease for a period of 10 years from 14th January, 1980 to 13th January, 1990, exclusively for

cultivation purposes in respect of the land measuring 22 bighas within the above land and further that the DDA shall not charge any premium for the

grant of lease to the other side. The lease was granted on a yearly rent of Rs. 20/- per bigha.

By virtue of clause 3 of the agreement, the DDA agreed that it shall not proceed for eviction and assessment of damages against Pandit

Sharma in respect of the land in question. This document records that Pandit Chintamani Sharma was however required to pay a sum of Rs.

9,321.05 only on account of use and occupation of the public premises measuring 81 bigha 17 biswas of the said land.

The DDA has urged that agreement did not stop at grant of lease of 22 bigha alone. Clause 4 in this agreement reads as follows:

The second party will allot an industrial plot measuring 0.25 acres i.e. 1200 sq. yds. bearing No. 10-22 in Jhilmil Tahirpur Industrial area on

pre-determined rates prevalent in the year of allotment. The prevalent rate of the year 197879 i.e. Rs. 59/- per sq. mt. which amounts about to Rs.

60,000/- for the above mentioned Plot No. 10-11 and accordingly a sum of Rs. 29195/- has been deposited with the second party by the First

Party towards the price of the aforesaid plot (while the prevalent rate in the year 1968, the relevant price was Rs. 18 to 20 per sq. mt.).

The settlement dated 30th November, 1970 was fully acted upon. The parties executed a registered indenture dated 4th May, 1983 so far as

the 10 years lease in respect of the 22 bigha of land. This indenture mentions that the lease was for a period of ten years from the 14th January,

1980 till 13th January, 1990 with the yearly rent payable in advance at the rate of Rs. 20 per bigha.

It is not disputed that Shri Chintamani Sharma was in possession of the land measuring 22 bighas for agricultural purposes in terms of the lease

deed. There is no dispute also to the fact that DDA is the owner of the subject land.

The petitioner places reliance on a representation dated 13th April, 1989 received by the DDA from Shri Chintamani Sharma requesting that

the lease of the land may be converted into a perpetual lease on the plea that there was no breach of the earlier lease and that the land was being

used for agricultural purposes. This request was not acceded to by the land owner.

By a communication dated 17th January, 1990, the DDA informed Shri Chintamani Sharma about its decision to grant him a lease on the

subject land for a further period of only five years w.e.f. 14th January, 1990 subject to the following conditions:

Revision of rate of rent.

That the land will be resumed if it is required for planned development of Delhi.

The other terms and conditions will remain the same.

It was further informed that the form of the lease deed was being drawn up and would be sent to the lessee for stamping and execution.

It is an undisputed position that no registered indenture of lease was executed between the parties. The extended period of five years also came to

an end on or about the 13th of January, 1995.

The petitioners have placed reliance on a suit, being suit no. 23/ 95 which was filed by Shri Chintamani Sharma on or about 13th January,

1995 before the Senior Civil Judge, Delhi contending that the agreement between the DDA and Shri Chintamani Sharma on 11th May, 1978 was

intended to be ""regular lease containing standard terms and conditions i.e. a perpetual lease"". It is averred by him that when this was pointed out to

the then Additional Secretary (LA) of the DDA, he had told the plaintiff that while the lease was perpetual, it would be renewed on each interval of

ten years. Contending that the DDA had not responded favourably to Shri Chintamani Sharma''s request for renewal and grant of perpetual lease

despite assurances of the Commissioner (Lands), the plaintiff who claimed entitlement to grant of a perpetual lease. It was his complaint that on 7th

January, 1995, despite pendency of the plaintiffs request for execution of the perpetual lease deed in his favour, certain officials of the defendant

came to the spot and wanted to take forcible possession of the land in question. On these pleas, the plaintiff made the following prayers:

(a) a decree of permanent injunction in favour of plaintiff and against the defendant thereby restraining the defendant, its officials, agents, servants,

etc. from forcibly dispossessing the plaintiff from land comprising of Khasra No. 222/200 Min., 172/ 38, 182/38 to 199/38 in Chiragah Shumali,

G.T. Road, near Shyam Lal College, Shahdara, Delhi- 32 (as shown red in the plan attached) and/or from interfering into the said land in

possession of the plaintiff and/or from demolishing or sealing whole of the said property or any part thereof or damaging any trees, plants or crops

standing thereon in any manner whatsoever;

(b) a decree for declaration that the plaintiff is entitled to grant of perpetual lease deed in respect of the land mentioned at Sl. No. (a) above;

(c) a decree of mandatory injunction against the defendant to execute and register a perpetual lease deed in respect of the land mentioned at Sl.

No. (a) above in favour of the plaintiff at the cost of the plaintiff.

In the suit, the plaintiff was granted an interim order dated 17th of January, 1995 against the DDA restraining it from dispossessing the plaintiff

from the suit property except by ""due process of law"". The court noted that the lease deed had not been determined by the DDA till date.

The DDA carried this order by way of an appeal to the learned Additional District Judge. The appeal was dismissed by an order dated 7th

April, 2003 whereby the court prohibited the DDA from dispossessing or demolishing the suit property ""except by due process of law"". It was

clearly observed that nothing in the order tantamounted to an expression of opinion on the merits of the case.

The DDA assailed this order by way of a second appeal being MCA No. 66/2003. The appeal was barred by limitation and the DDA had

filed an application u/s 5 of the Limitation Act seeking condonation of delay in filing the same. This application was rejected by the court by an

order passed on 12th May, 2004. As a consequence, the appeal was also dismissed as being barred by time. DDA''s challenge to the order dated

12th May, 2004 by way of a petition u/s 227 of the Constitution of India being CM (M) No. 1259/2004 was dismissed by this court by an order

dated 25th of July, 2006.

During the pendency of the suit, the Estate Officer has issued a notice dated 6th of February, 2009 to each of the petitioners who are the sons

of Shri Chintamani Sharma u/s 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. By such notice, the Estate Officer

informed the petitioners that they were in unauthorised occupation of public premises and called upon them show cause as to why an order of

eviction should not be made against them.

Aggrieved by the issuance of these notices, the present writ petition has been Tiled seeking the following prayers :

(a) a writ/order/direction in the nature of certiorari quashing the impugned notice dated 6.2.2009 issued by the respondent under P.P. Act and the

P.P. Act proceedings initiated there upon by them/respondents.

(b) a writ/order/direction in the nature of mandamus directing, commanding and requiring the respondent-DDA to consider the petitioners'' request

for grant of perpetual lease as per their policy of conversion of term lease into perpetual, as adopted for DLF Universal case.

In order to appreciate the scope of the present consideration, it becomes necessary to consider the order recorded by this court on 23rd

March, 2009 when the present writ petition was listed for the first time and the petitioners abandoned the first prayer made in this writ petition. The

order dated 23rd of March, 2009 records as follows:

At the outset, counsel for the petitioner submits that the relief sought in the present writ petition is confined to prayer (a) and that he does not press

for relief (b) as a civil suit filed by the petitioner for the same relief is pending.

The present writ petition is filed by the petitioner seeking quashing of the notice dated 06.02.2009 issued by the respondent under the Public

Premises (Eviction of Unauthorised Occupants) Act, 1971, on the ground that the aforesaid proceeding is without jurisdiction inasmuch as the said

respondent cannot be permitted to invoke the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, for seeking

eviction of the petitioner under the garb of following the due process of law.

Counsel for the respondent, who appears on advance copy, submits that the aforesaid issue is purely legal in nature and she be permitted to

address arguments thereon, without filing the counter affidavit. However, she seeks leave to place on the record some documents which according

to her, are relevant for consideration. Needful shall be done by the respondent within one week, with an advance copy to the counsel for the

petitioner.

List on 8th April, 2009.

CM 3845/2009

Notice.

Counsel for the respondent accepts notice and seeks time to file reply. Needful shall be done within four weeks with advance copy to the counsel

for the petitioner, who may file rejoinder before the next date of hearing.

In the meantime, while the Estate Officer is permitted to conduct further proceedings, he shall not pass any final orders.

DASTI.

In view of the above, the consideration by this court is within a narrow compass. The writ petition stands confined to the issue as to whether

the respondents are legally entitled to invoke the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 to seek

eviction of the petitioners and nothing more.

I have heard learned counsel for the parties. It is contended by learned senior counsel for the petitioners that the DDA has taken no

proceedings from 1995 till 2005.

It is urged that in view of the pendency of the suit No. 23/95, the claim of the plaintiff being in issue,- the notices under sub-section (i) and

clause (b)(ii) of the sub-section 2 of Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 are unwarranted and

without jurisdiction.

In case the suit is decided in the petitioners'' favour, then the entire exercise shall be an exercise in futility.

My attention has been drawn by Shri Rishi Dewan, learned counsel for the petitioners to certain proceedings held by the Estate Officer in

February, 2009 to urge that the Estate Officer was initially proceeding in the matter with undue haste and impropriety. It is contended that on 16th

February, 2009, the petitioners had sought time from the Estate Officer to engage a counsel file objections and lead evidence thereafter. On that

date, the senior law officer appearing for the DDA had submitted that since the suit land was required in project of PWD and PWD had already

written to the DDA for making it available, the matter should be proceeded. For this reason, the Estate Officer proceeded to record the statement

of halka patwari of the DDA on 17th February, 1996 even though time was given to the petitioners to file their reply. It is, however, submitted that

thereafter the petitioners have been permitted to file their response and to lead their evidence and to cross-examine the witnesses who have been

produced on behalf of the DDA.

When the hearing in this writ petition was commenced, it was pointed out that the proceedings before the first Estate Officer are concerned,

the recording of evidence on both sides is over and the matter is pending for final consideration and passing of the final order. The further

proceedings by the Estate Officer stand interdicted by the order of this court dated 23rd of March, 2009 prohibiting passing of a final order.

In these facts, placing reliance upon the pronouncement of the Apex Court in Express Newspapers Pvt. Ltd. and Others Vs. Union of India

(UOI) and Others, & Delhi Development Authority Vs. Shri Raj Kumar, , it is urged by Mr. Sandeep Sethi, learned senior counsel that the

proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 are without jurisdiction and that the DDA had to take

recourse to filing of the civil suit for recovery of possession.

It is further urged by Mr. Sethi, learned senior counsel that so far as the question of entitlement under the policy of 1980 is concerned, the

same is not being agitated here for the reason that the petitioners'' claim for the same is pending in the civil suit.

It has been argued on behalf of the petitioners that in view of the order dated 7th April, 2003 passed by the learned Civil Judge in the

petitioner''s suit and the order dated 25th July, 2006 in CM (M) No. 1259/ 2004, the finding on the issue as to whether the DDA was required to

file a suit would operate as res judicata in the present proceedings and it is not open to the DDA to contest the finding.

It is noteworthy that by the order dated 7th of April, 2003, the trial court observed that in view of ""authoritative pronouncement"" of the

Hon''ble Supreme Court in Express Newspapers Pvt. Ltd. and Others Vs. Union of India (UOI) and Others, , the DDA cannot dispossess the

plaintiff ""without following the due process of law"". For this reason, the plaintiff''s application was allowed and the DDA was restrained from

dispossessing or demolishing the suit property ""except by due process of law"". The order dated 7th April, 2003 records that the order was passed

on a prima facie consideration and was not an order on merits of the case. The court was only concerned with the prayer for injunction against

forcible dispossession. On this issue as noted above, it was only held that due process is required to be followed. It is noteworthy that no issue

was raised before the trial court as to what would constitute ""due process of law"" or be the nature of proceedings by which the defendant DDA

could evict the petitioner. No finding was returned by the learned Judge to the effect that a civil suit is the only remedy to seek eviction of the

occupants which was permissible to the DDA.

Strong reliance has been placed on the observations of this court in the order dated 25th of July, 2006 while dismissing CM (M) No.

1259/2004, filed by the DDA. For this reason, it becomes necessary to notice the factual narration and the question was raised before the court

which was in the following terms:-

The contention of the petitioner is that the term of the lease has expired and thus the petitioner should be able to take possession of the suit

property. The petitioner has not filed any suit for possession in respect of this land which has been in continuous possession of the respondent for

more than 50 years. The aforesaid factual matrix has been discussed only to observe that the question arises as to whether the petitioner is entitled

to take forcible possession of the land from the respondent and can dispossess the respondent even where the respondent has been in

uninterrupted possession and legally so for a number of decades.

The court was of the view that there was no patent error or erroneous exercise of jurisdiction by the appellate court apart from the fact that the

impugned order of the first court itself was on merits, in accordance with law and is a reasoned order. There is no discussion at all on the question

as to what would constitute ''due process'' in this order.

It needs no elaboration that for applicability of principles of res judicata, such issue has to be strictly and substantially in issue in the prior

litigation. There must be an application of mind on the issue by the court and that there should be a final adjudication and determination of the issue

on merits. Unless there is such determination of the case on merits, it cannot operate as res judicata in the subsequent proceedings between the

parties.

Reference in this regard can be usefully made to the pronouncement of the Division Bench of this court reported at Smt. Harjeet Kaur Vs. DTC,

wherein this principle is discussed in the light of several authoritative pronouncements of the Apex Court.

The issue which was raised by the DDA in its challenge by way of CM (M) No. 1259/2004 related to dismissal of its appeal by the order of

the learned ADJ on 12th May, 2004 for reasons of limitation. Nothing has been pointed out to even remotely suggest that this court was called

upon to consider and decide the issue as to whether the proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971

or a civil suit was the appropriate remedy for re-possession by the DDA. There is nothing in the order dated 7th April, 2003 of the trial court or

the order passed by this court on the 25th July, 2006 to show that the issue as to what would be the appropriate remedy available to the DDA for

eviction of the occupants and what would constitute ""due process"" was raised or argued. A mere passing observation in the order does not

tantamount to adjudication. The observations of the learned trial Judge in the order dated 7th of April, 2003 and of this court in the order dated

25th of July, 2006 do not constitute a finding or adjudication that the only remedy available to the DDA is by way of a civil suit. The same

therefore do not bar consideration of the question by this court on principles of res-judicata.

In view of the primary contention of the petitioners to the effect that there is categorical finding by Apex Court with regard to the appropriate

remedy which a lessor could invoke in such facts and that the respondent had no option but to file a suit, it becomes necessary to consider the

observations of the Apex Court in Express Newspapers Pvt. Ltd. and Others Vs. Union of India (UOI) and Others, , This matter related to re-

entry into a plot of land on which the Express Newspapers Pvt. Ltd. had been permitted to raise construction. On allegations that there was

violation of the terms of the sanction, the lease in favour of the petitioners was determined by the lessor (respondents) and an order of reentry

passed. The proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 were initiated. In this background, in para

86, the Apex Court held that ""The Express Newspaper Private Limited having acted upon the grant of permission by the lessee, i.e. UOI, Ministry

of Work & Housing to construct the new Express Building with an increased FAR of 360 together with a double basement was clearly not an

unauthorised occupant within the meaning of S. 2(g) of the Act xxx"".

In para 87, it was further held that the Express buildings constructed by the Express Newspapers Private Limited with the sanction of the lessee on

the plot demised on perpetual lease could by no process of reasoning be regarded as public premises belonging to the Central Government u/s

2(e) and consequently there was no question of the lessee applying for the eviction of the Express Newspaper (P) Ltd. u/s 5(1) of the Public

Premises (Eviction of Unauthorised Occupants) Act, 1971 and the Estate Officer also did not have any authority or jurisdiction to direct their

eviction under sub section 2 thereof by summary procedure. It was therefore further held that ""due process of law in a case like the present

necessarily implies the filing of the suit by the lessor"" for the ""enforcement of the alleged right of re-entry, if any, upon forfeiture of the lease due to

the breach of the terms of the lease"".

The Apex Court had clarified this position in para 88 of the judgment which reads as follows:

Nothing stated here should be construed to mean that the Government has not the power to take recourse to the provisions of the Public

Premises (Eviction of Unauthorised Occupants) Act, 1971 where admittedly there is unauthorized construction by a lessee or by any other person

on Government land which is public premises within the meaning of S. 2(e) and such person is in unauthorized occupation thereof.

The judgment rendered in the Express Newspapers case (supra) was considered by a five Judge Bench of the Apex Court in Ashoka

Marketing Ltd. and another Vs. Punjab National Bank and others, The court rejected the submission that cases involving the relationship of lessor

and lessee felt outside the purview of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Paras 30 & 32 of this judgment which

deserve to be considered in extenso read as follows:

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

permissive 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 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. 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 xxxx

(Emphasis supplied)

So far as the decision in the Express Newspapers case (Supra) is concerned, the same was explained by the Constitution Bench thus:

Shri Ganguli has placed reliance on the decision of A.P. Sen, J. in Express Newspapers Pvt. Ltd. v. Union of India and has submitted that in

that case the learned Judge has held that cases involving relationship between the lessor and lessee fall outside the purview of the Public Premises

Act. We have carefully perused the said decision and we are unable to agree with Shri Ganguli. In that case A.P. Sen, J. has observed that the

new building had been constructed by the Express Newspapers Pvt. Ltd. after the grant of permission by the lessor, and, therefore, the Express

Newspapers Pvt. Ltd. was not in unauthorised occupation of the same within the meaning of Section 2(g) of the Public Premises Act. It was also

held by the learned Judge that the Express Building constructed by the Express Newspapers Ltd. with the sanction of lessor on plots Nos. 9 and

10 demised on perpetual lease can, by no process of reasoning, be regarded as public premises belonging to the Central Government u/s 2(e) of

the Public Premises Act, and therefore, there was no question of the lessor applying for eviction of the Express Newspapers Pvt. Ltd. under the

provisions of the Public Premises Act. The aforesaid observations indicate that the learned Judge did not proceed on the basis that cases involving

relationship of lessor and lessee fall outside the purview of the Public Premises Act. On the other hand the said observations show that the learned

Judge has held that the provisions of the Public Premises Act could not be invoked in the facts of that case.

Reference can usefully be made to yet another Division Bench pronouncement dated 21st February, 2006 in LPA No. 976/2004 entitled PDA

Vs. Ambitious Gold Nib Manufacturing Company Limited. This case related to the determination of a perpetual lease by the competent authority

of the DDA which was duly intimated to the writ petitioner. Eviction proceedings were initiated by the DDA by issuance of notice to show cause

under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. These were assailed by the lessee by way of writ proceedings.

Placing reliance on para 88 of the pronouncement of the Supreme Court in Express Newspapers case (supra), it was held that the Government has

power to take action under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 if there is unauthorised construction by a lessee

or by any other person on government land and such person is in unauthorised possession thereof.

The Division Bench also placed reliance on paras 30 & 32 of the judgment of the of the Bench of the Supreme Court reported at Ashoka

Marketing Ltd. and another Vs. Punjab National Bank and others, .

On consideration of the afore-noticed judicial precedents, in DDA Vs. Ambitious Gold Nib case, the Division Bench held as follows:

The learned Single Judge, however, allowed the writ petition on the basis of the decision of the Supreme Court in Express Newspapers Pvt.

Ltd. and Others Vs. Union of India (UOI) and Others, and has held that the DDA should have filed a civil suit.

We have carefully perused the judgment of the Supreme Court in Express Newspapers Pvt. Ltd. (supra).

The facts of Express Newspapers case are totally different from the facts of the present case. In Express Newspapers (supra) the facts were

that the Central Government had granted a lease to Express Newspapers with a larger FAR and Express Newspapers had constructed a building

on the larger FAR. Subsequently, the FAR was reduced and on the basis, proceedings under the Public Premises Act were sought to be taken

against them. On those facts, it was held that the proceedings under the Public Premises Act were not maintainable because the construction by

Express Newspapers had been raised after obtaining permission from the concerned authority and hence Express Newspapers was not an

unauthorized occupant xxx.

The Division Bench had placed reliance on the observations made by the Supreme Court in para 88 of Express Newspapers and held that

Thus the Supreme Court has clearly observed that the second part of the definition of unauthorized occupation in Section 2(g) of the Public

Premises Act expressly covers continuance in occupation by any person of public premises after the authority under which he was allowed to

occupy the premises had expired or has been determined for any reason whatsoever.

Ms. Sangeeta Chandra, learned standing counsel for the Delhi Development Authority has placed another binding pronouncement on the issue

with regard to propriety and permissibility of proceeding for eviction of an occupant under the Public Premises (Eviction of Unauthorised

Occupants) Act, 1971 for repossession of the property demised by the DDA. This specific issue had arisen for consideration before this court in

the judgment reported at Escorts Heart Institute and Research Centre Ltd. Vs. D.D.A and Another, which related to a determination of the lease

hold rights granted to the petitioner by the DDA as lessor and the proceedings before the Estate Officer under the Public Premises (Eviction of

Unauthorised Occupants) Act, 1971 at the instance of DDA, the lessor. The only question raised before this court was that in view of the decision

of the Apex Court in Express Newspapers case (Supra), these proceedings were not maintainable and that only a civil suit was maintainable. The

Bench placed reliance on the judgments of the Apex Court and the prior decision of the Division Bench in DDA Vs. Ambitious Gold Nib Ltd. The

decision on this issue may be usefully adverted to and reads as follows:

A Division Bench of this Court in Ambitious Gold Nib Manufacturing (P) Limited (supra) after examining judgments in the cases of Express

Newspapers and Ashoka Marketing Limited (supra) has held that proceedings before the Estate Officer are maintainable and cases like the

present one would fall in the second part of the definition of the expression unauthorised occupation as defined in Section 2(g) of the Public

Premises Act. The said decision being a judgment of a Coordinate Bench of two Judges is binding on us. We respectfully agree with the reasoning

given and follow the said judgment to the extent it has been held that second part of Section 2(g) defining the expression unauthorized occupation

for the purpose of Public Premises Act is applicable and recourse to civil proceedings for recovery of possession is not required. The said

judgment cannot be ignored merely because a particular argument was not raised or addressed...............xxx

Another contention raised by the appellant was that the building constructed on the land is not public premises u/s 2(c) of the Public Premises

(Eviction of Unauthorised Occupants) Act, 1971 because building was never given on lease and has been constructed by the lessee. In this

connection, learned Counsel for the respondent No. 1 had drawn our attention to Clause 15 in the perpetual lease deed, which stipulates that the

lessee on determination of the lease shall peacefully yield up the said land and the buildings thereon to the lessor. In view of the said clause, it

cannot be said that the building constructed on the land cannot be regarded as the public premises.

Learned counsel for the petitioner has also placed reliance on the grounds of appeal on which judgment of the trial court was challenged before

the court of the Senior Civil Judge. It is urged that in ground 11, the DDA had urged that the lower court had wrongly based its judgment placing

reliance upon the authority in Express Newspapers Pvt. Ltd. and Others Vs. Union of India (UOI) and Others, Perusal of the ground taken by the

DDA would show that the DDA was assailing the observations of this court on the ground that there was material difference in the facts of the two

cases. The ground 11 states that in the Express Newspaper Case (supra), the lease was cancelled illegally and without due process of law and has

stated the facts of the instant case with regard to expiry of the lease by efflux of time. The judgment was challenged on the ground that the

respondents were bound to hand over the lease property to the lessor after expiry of the period which was fixed between the parties.

There is no dispute at all in the instant case that the premises are owned by the Delhi Development Authority or that the terms of the lease deed

dated 4th May, 1983 as well as the five year extension by the letter dated 17th January, 1990 stands expired. The petitioners are not occupying

the premises under any registered document or other sanction.

Ms. Sangeeta Chandra, learned counsel for the DDA has placed reliance on a communication dated 2nd January, 1995 addressed to Shri

Chintamani Sharma whereby the Executive Officer (Lands) had informed Shri Chintamani Sharma that an amount of Rs. 2,461.76 was to be paid

on account of revision of rent upto 13th January, 1995. Shri Chintamani Sharma was also informed that since the land is required by the DDA for

its development, it is not possible to extend the lease any further more after 13th January, 1995. Shri Sharma was further informed that therefore it

had been decided to take back 22 bighas of land from Mr. Chintamani Sharma. He was also informed to deposit the above said amount within

fifteen days from the date of issue of the letter and also arrange to handover the vacant possession of the land to the revenue staff of the DDA on

13th January, 1995.

Shri Chintamani Sharma has himself admitted that the premises are public premises. He accepted the demise in his favour while settling the

matter on 30th of November, 1979 and execution of the registered lease 4th deed dated of May, 1983 for the restricted period of ten years.

Sections 92 of the Evidence Act would bind the parties so far as the terms on which the land was leased to him. No objection at all to the terms or

duration of the lease were raised during the pendency of the lease. On the contrary, the requests of the late lessee for grant of perpetual lease were

not favourably considered by the DDA.

In this background, it certainly cannot be held that proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 are

either illegal or without jurisdiction. The challenge by the respondent to the maintainability of the proceedings under the Public Premises (Eviction of

Unauthorised Occupants) Act, 1971 on the ground that DDA must file a civil suit for eviction are misconceived and is hereby rejected. It is held

that the proceedings initiated before the Estate Officer are not barred by principles of res judicata or prohibited for any other reason.

The second submission which has been urged by Mr. Sandeep Sethi, learned senior counsel for the petitioners before this court is that the

proceedings in the suit are still pending. Issues have been framed by an order passed on 5th October, 2007. The petitioners place reliance on issue

no. 2 which reads as follows:

Whether the plaintiff is entitled to a decree of declaration that he is entitled to a perpetual lease deed in respect of the suit property.

Before me, it is submitted that the original plaintiff Pandit Chintamani Sharma has expired. The suit is being continued by his sons who are

stated to be the petitioners in this writ petition. It is interesting to note that the proceedings in the suit are pending for a period of almost 11 years

and the petitioners continue in occupation of the public premises for a period of eleven years admittedly without any demise or instrument in their

favour.

The absolute prohibition by way of an interim injunction against dispossession which was sought by the plaintiff stands rejected by the trial

court. The respondents have been permitted by the order dated 7th of April, 2003 to proceed for eviction following due process of law.

The respondents have been permitted to proceed for eviction following due process of law. The petitioners did not assail the order dated 7th of

April, 2003 which has attained finality.

The DDA has filed CM No. 10682/2009 urging that inasmuch as only a legal issue relating to maintainability of the proceedings under the

Public Premises (Eviction of Unauthorised Occupants) Act, 1971 remains an issue in this writ petition and the subject land is required urgently for a

public project, the interim order passed on 23rd March, 2009 be vacated.

PWD has filed CM No. 11811/2007 under Order 1 Rule 10 of the CPC seeking impleadment and necessary directions. The PWD has

explained the nature of the project in para 3 of the application in the following terms:

3....................It is submitted that the applicant has undertaken construction work of Three level Grade Separator to ease the traffic congestion at

Shyam Lal Chowk and an underpass from road No. 57 to road No. 65 towards Subhash Park is one of the component of this scheme for which,

a part of the land in question is required. Other component is flyover on G.T. Road and the construction work is at advance stage and work of

piles, pile cap and piers have already been constructed on both side of Crossing and the land comes between both the sides of the piers and the

work is held up because of the present litigation. It is submitted that the applicant is required to construct 24 piers for flyover and out of this 20

piers have already been constructed. The project is required to be completed in a time bound manner before the commencement of the

Commonwealth Games, 2010. The applicant has already commenced the work and completed about 40% work of the project.

It is further explained that the technical committee of the DDA in its meeting held on 3rd May, 2006 has decided to increase the width of the

road in master plan road No. 65 from 30 mtrs. to 40 mtrs.

The PWD has further explained the fact that there is huge congestion in the area and in order to ease out the same, construction of the under

pass and the fly over is urgently required for improvement of the whole corridor from ISBT to UP Border, because at the main crossing i.e.

Seelampur and Shahdara where flyover is already constructed and also at Apsara Border, the work of three level grade separator is being

constructed by PWD. It is submitted that the total estimated cost of the project is Rs. 93.82 crores out of which the applicant has spent

approximately Rs. 30 crores. Undisputedly the flyover is under construction. The project is being carried out by the applicant which is related to

Commonwealth Games 2010. Vide a letter dated 18th September, 2008 the DDA has agreed to the transfer of land to the applicant. In order to

explain this position, the PWD has placed three dimensional photographs and extensive site plans on record.

Another application being CM No. 11812/2009 seeking directions for release of land measuring 2412 sq. mtrs. and 476 sq. sq. mtrs. has

been filed in these facts.

The petitioners have opposed these applications and contended that so far as the road widening is concerned, the pleas relate to a road which

ends in an unauthorised colony as a dead end.

The PWD has filed an affidavit dated 29th October, 2009 in this regard of Shri Bhupendra Kumar, Executive Engineer, PWD Fly over project

Division pointing out that road no. 65 is a Master Plan. Road joining with Road No. 66 and is about 1.2 KM in length from the GT road to Subash

Park Extension having a 45 meter wide right of way with the proposal of a six lane carriage way. It is deposed that there is a missing link at

Subhash Park Extension of Master Plan road no. 65 and road no. 66; that the DDA in 3rd its Technical Committee meeting held on May, 2006

approved the construction of this missing link in Trans Yamuna area and further that the PWD has been given the responsibility to complete the

said project Pursuant thereto, the Government of NCT of Delhi has sanctioned an amount of Rs. 5,68,25,100.00 vide letter No. F.8(125)/PWD-

111/2005-06 dated 15th July, 2005 for removal of the properties felling in this stretch of missing link.

It is stated that this part of the project is required to be undertaken by another Division namely PWD CRMD M-213, Shastri Park, Delhi. It is

explained that on account of the fact that this work is required to be undertaken by another division, the same was not reflected in the documents

filed earlier by another division of the CPWD earlier.

So far as the land on which the unauthorised development has come up, the PWD has explained that in order to provide the said missing link

from Road no. 65 to Road No. 66 the Government required an area measuring 10-07 bigha of land. For this purpose acquisition proceedings

have already been initiated and culminated in award No. 3/2009-10 dated 21.8.2009 announced u/s 11 of the Land Acquisition Act by the Land

Acquisition Collector who has assessed a total compensation of Rs. 661,65,255.00. A sum of Rs. 2.50 crores have already been deposited with

the Land & Building Department GNCT of Delhi vide cheque no. C153242 dated 31st March, 2006 as part payment. Thus the steps for

providing missing link has already been initiated and the allegations that the road ends in a dead end is wrong and baseless.

In the affidavit of Shri Bhupendra Kumar, Executive Engineer, PWD Flyover Project Division, he has pointed out that the DDA Technical 3rd

Committee in its meeting held on May, 2006 decided to retain the Right of Way of Master Plan Road No. 65 as 45 mtrs. Keeping in view of

continuously increase in volume of traffic at this junction, the applicant is also required to widen this road No. 65 in this project. Thus, in all, the

applicant requires land measuring 2412 sq. mtrs. in the area shown in Green and 476 sq. mtrs. in the area shown as Yellow in the site plan. It is

submitted that the applicant is also required to shift the exiting pipelines to the area beyond the under pass and carriageway. The applicant has

already awarded the contract for the laying of the pipe line vide agreement no. 4/EE/Flyover Project Division F-122/07-08 dated 10th March,

2008 in favour of M/s. Khukhrain Builders, 2300, Hudson Line, GTB Nagar, Delhi with a tender value of Rs. 5.04 crores. The said contractor has

already laid the pipeline up to the land in dispute. The applicant has already paid the 3rd Running Account bills of the contractor for Rs. 3.05

crores (appx.) on 15th July, 2009. Pipes for laying in the land in question are stated to have also been procured and placed at this site. The work

of laying of pipe lines is held up due to non-transfer of some portion of this disputed land. A copy of the award letter is enclosed herewith as

Annexure A-4. The adjoining land on GT Road towards Ghaziabad required from Shyam Lal College has already been acquired and the boundary

wall of Shyam Lal College has already been shifted.

Extensive reliance has been placed on traffic survey of the area dated 28th December, 2005 when it was found that the traffic volume at the

intersection was 2,51,970 passenger carrying unit per day and the projected data for the year 2021 and the base year is stated to be as follows:

Several other grounds of urgency have been explained in the application.

Mr. Sethi, learned senior counsel for the petitioner has placed the pronouncement of this court Delhi Development Authority Vs. Shri Raj

Kumar, to contend that the long pendency of the suit which was filed by Shri Chintamani Sharma would itself disentitle the respondent from

proceeding under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. In this case, a perpetual sub-lease in favour of the father

of the respondent granted by DDA was determined by the Lieutenant Governor on the basis of a complaint. The lessee Vidya Sagar had in the

meantime raised a building on the property. In view of his demise, Raj Kumar his son filed a suit for declaration that the proceedings for

cancellation of the sub lease be declared null and void; that DDA be directed to substitute the property in the name of the plaintiff and DDA be

restrained from entering upon or disturbing his possession of the suit property. Two material reasons as to why the court granted injunction

deserves to be noted. The material facts which weighed with the court in granting injunction was the fact that the lessee had paid the entire premium

for the suit property and had constructed a building thereon. Despite determination of the perpetual sub-lease on 19th December, 1978, the DDA

had not taken any steps to re-possess the suit property till March, 1988 when the suit was filed. In para 15 of the judgment, the court had clearly

observed that ""it is not in every case of possession that the Government as lessor is under an obligation to file a suit. There are cases where the

Government can legitimately invoke its powers under the provisions of the Public Premises Act. As such, the learned Additional District Judge

erred in his appreciation of the views of the Supreme Court in Express Newspaper (supra) and thereby erred in concluding that the DDA ""must

file"" a suit for possession. The conclusion arrived at by the learned Additional District Judge, at an interlocutory stage, foreclosed the right of the

DDA to contend that the present case is one where it could legitimately exercise powers under the provisions of the Public Premises Act. Such a

finding ought not to have been given by the learned Additional District Judge at an interlocutory stage."" Based on this discussion, this court set

aside the conclusion of the learned Additional Judge that the suit was the only remedy.

It was purely in the facts of the case that the court granted the injunction against dispossession to the plaintiff. The second material fact which

weighed with the court is the fact noted in para 2 wherein the court noted that the DDA had not been able to make out any cogent reason for

dispossessing the respondent from the suit property at this stage. It is not so in the present case.

Certain material facts which have bearing on the issues raised in present case can be usefully culled out hereafter:

(i) In the instant case, the petitioner''s prayer for an absolute injunction against dispossession was not granted by the order dated 17th January,

1990 which stands confirmed upto this court. Thus petitioner has not been given an order of restraint against the DDA from dispossession from the

suit property. The only injunction in favour of the petitioners is that the DDA will not dispossess them except by due process of law. This order has

not been varied on appeal by order dated 12th May, 2004 or by this court by its order dated 25th July, 2006.

(ii) After the grant of the interim orders, by the order dated 23rd March, 2009, the DDA has invoked its remedy under the Public Premises

(Eviction of Unauthorised Occupants) Act, 1971 and is not attempting to take forcible possession of the subject property, but following due

process of law.

(iii) After the passing of the order dated 23rd March, 2009, the DDA has filed a reply in the present proceedings on 8th April, 2009 contending

that after the determination of the lease dated 13th January, 1995, the possession of the legal heirs of Shri Chintamani Sharma including the

petitioner amounted to unauthorised occupation of public premises, was without lawful authority and that the petitioners are acting in breach of the

terms of the demise in favour of Shri Chintamani Sharma for the reason that the land is not being used for agricultural purpose.

(iv) It has been explained by the DDA that part of the land in question is urgently required for ""construction of road/fly over for the Common

Wealth Games 2010 and urgent correspondence has been received from the PWD for transfer of the land for completion of the project"" that rest

of the land is required for other public purposes as per the lay out plan being primary school, higher secondary school etc. Thus, the entire land is

required for urgent development as per the plan for public projects.

So far as the requirement of land is concerned, in the writ petition which has been filed, the petitioner has urged in this regard thus:

XVII. The entire precipitated action by the DDA of initiating the PP Act proceeding and carrying of the same in a haste is at the behest of PWD,

as the said department (PWD) requires a small portion of suit land for their flyover project. The petitioners, though at a loss, have already offer the

PWD that they (petitioners) would be responsible in their approach and would not come in the way of a public project.

In support of the applications filed by the PWD, Mr. Sanjay Poddar, learned standing counsel has further contended that in any case, the land

in question is noted as public land and is needed for public purpose. It has been vehemently contended that the petitioners have no right to occupy

the same, let alone any legal right which can be protected. Reference has been made to the pronouncement of the Apex Court in Ramniklal N.

Bhutta and another Vs. State of Maharashtra and others, wherein the court held as follows:

Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while

exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests

of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the

public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly

of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-a-vis the private interest while exercising the

power under Article 226 indeed any of their discretionary powers.

(Emphasis supplied)

My attention has also been drawn to para 14 of Mahadeo Savlaram Shelke and Others Vs. Puna Municipal Corporation and Another, , it is

urged that the delay in the present matter is working undue loss to public interest. The observations of the Apex Court so far as the grant of

injunction against public authority from execution of projects of public utility deserves to be considered and reads as follows:

It would thus be clear that in a suit for perpetual injunction, the court would enquire on affidavit evidence and other material placed before the

court to find strong prima facie case and balance of convenience in favour of granting injunction otherwise irreparable damage or damage 511

would ensure to the plaintiff The Court should also find whether the plaintiff would adequately be compensated by damages if injunction is not

granted. It is common experience that injunction normally is asked for and granted to prevent the public authorities or the respondents to proceed

with execution of or implementing scheme of public utility or granted contracts for execution thereof Public interest is, therefore, one of the material

and relevant considerations in either exercising or refusing to grant ad interim injunction.

In this case, the court held that in fact, for the damage which results on account of the delay in the public project on account of interim orders, the

defendants deserve to be adequately protected. In this regard, the court observed as follows:

While exercising the power of discretion, the court should also adopt the procedure of calling upon the plaintiff to file a bond to the satisfaction of

the court that in the event of his failing in the suit to obtain the relief asked for in the plaint, he would adequately compensate the defendant for the

loss en-sued due to the order of injunction granted in favour of the plaintiff. Even otherwise the court while exercising its equity jurisdiction in

granting injunction as also jurisdiction and power to grant adequate compensation to mitigate the damages caused to the defendant by grant of

injunction restraining to proceed with the execution of the work etc. which is retrained by an order of injunction made by the court. The pecuniary

award of damages is consequential to the adjudication of the dispute and the result therein is incidental to the determination of the case by the

court. The pecuniary jurisdiction of the court of first instance should not impede nor a bar to award damages beyond its pecuniary jurisdiction. In

this behalf, the grant or refusal of damages is not founded upon the original cause of action but the consequences of the adjudication by the conduct

of the parties, the court gets inherent jurisdiction in doing ex debito justicae mitigating the damage suffered by the defendant by the act of the court

in granting injunction restraining the defendant from proceeding with the action complained of in the suit. It is common knowledge that injunction is

invariable sought for in laying the suit in a court of lowest pecuniary jurisdiction even when the claims are much larger than the pecuniary jurisdiction

of the court of first instance, may be, for diverse reasons, Therefore, the pecuniary jurisdiction is not and should not stand-an impediment for the

court of first instance in determining damages as the part of the adjudication and pass a decree in that behalf without relegating the parties to a

further suit for damages. This procedure would act as a check on abuse of the process of the court and adequately compensate the damages or

injury suffered by the defendant by act of court at the behest of the plaintiff.

There can be no manner of doubt that a delay in a public project which is under execution, for any reason, would result in tremendous financial

loss to the public exchequer. There is also a huge element of direct delay to the interest of the public at large having regard to the volume of the

traffic and the nature of components in the project. Additionally, the DDA has put forth the requirement of land for the purposes of setting of

schools. The requirement of land in public interest is not only essential, but imperative.

I have found above that the respondents are not prohibited on grounds of res judicata or on any other ground from proceeding with the

process initiated by them under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Unlike the facts in the judgment reported at

(1999) IV AD Delhi 214 PDA VS. Rai Kumar, the public authorities have made out a strong case as to why the land is needed. Even in this

pronouncement, the court has held that the proceedings for eviction under this statute are maintainable. According to DDA, the 2nd petitioner

stood notified of the requirement by the letter dated January, 1995 of the land.

So far as the pendency of this suit and equitable considerations in favour of the plaintiffs, if any, are concerned, it is evident from the settlement

dated 30th November, 1979 that a 10 year lease of 22 bighas agriculture land at the rate of Rs. 20 per year per bigha granted. It is urged by Ms.

Chandra, learned standing counsel for the DDA that allotment of the industrial plot measuring 120 sq. yrs. bearing no. 10 & 11 on rates prevalent

in the year 1968 which was almost half of the rates prevalent in the year 1978-79 was granted. Shri Sharma and the petitioners have continued in

occupation of the 22 bighas of land. Shri Sharma additionally was able to also avoid the claim of damages for the past period by the DDA. He was

required to pay only Rs. 9,321/- for rental 81 bighas 17 biswas of land as per the agreement dated 30th November, 1979. The petitioner had

agreed to withdraw the suits and the other proceedings initiated by him against the officials of the DDA in view of this settlement.

Mr. Rishi Dewan, learned counsel for the petitioner has submitted that no favour was shown by the DDA in allotment of the industrial plot for

the reason that Pandit Chintamani Sharma was entitled to the same on account of relocation of his factory being run in the name of ""Shahdara

Cottage Industry"" in a non-conforming area. It is contended that all industries in the area were required to be shifted from the non-conforming area

to the approved industrial zone of Jhilmil, Tahirpur. Based on the scheme of the Government, Shri Chintamani Sharma allotted an industrial plot of

0.25 acres equivalent to 1200 sq. yards in the industrial area based on an assessment of the area under his occupation and that no undue favour

was shown. Reliance is placed on an affidavit of the petitioners filed on record in this behalf.

Mr. Sandeep Sethi, learned senior counsel appearing for the petitioner has drawn my attention to a resolution dated 22nd September, 1980 of

the DDA whereby the DDA considered the question of granting perpetual lease to plot holders of expired temporary leases. It is contended that in

view thereof, the petitioner is entitled to a perpetual lease.

Mr. Sanjay Poddar, learned standing counsel for PWD and Ms. Sangeeta Chandra, learned standing counsel for DDA have vehemently

contended that perusal of the policy dated 22nd September, 1980 relates to consideration of renewal of specific 1214 temporary leases which had

expired when the policy was announced. The scheme further restricts its application to ex lessees where building, substantial or temporary had

come up in fully developed areas ""if these did not conflict with any scheme in hand or expected to be in future"". Reference is made to specific

leases in this policy. There was no universal policy regarding grant of perpetual lease in regard to all properties. The policy also draws an exception

with regard to land needed for public projects.

The petitioners have placed reliance on a decision dated 11th May, 1978 of the Vice-Chairman of the DDA and filed the same on record. This

decision records that Pandit Chintamani Sharma had suggested that the land be given on ""varshik rent"" (i.e. annual rent) only.

In any case, Shri Chintamani Sharma entered into the settlement with DDA after the policy. He also accepted the demise by virtue of the lease

deed dated 4th May, 1983 for agricultural purposes without any objection. He also accepted its determination on expiry of ten years period.

Pandit Chintamani Sharma unconditionally accepted the DDA''s decision to grant the lease for five years by the letter dated 17th January, 1990 for

a further period of five years, w.e.f. 14th January, 1990. No objections to the same when it was granted or during its currency have been pointed

out. His subsequent requests for grant of perpetual rights had not been considered favourably.

Mr. Sandeep Sethi, learned senior counsel has placed reliance on an order passed in the case of Plot No. 1, Block No. E, Jhandewalan

Extension, New Delhi in favour of M/s. DLF Limited and urged that the petitioners are entitled to a similar consideration. The documents relied

upon and placed on record by the petitioners suggest that the lease with DLF contained a term of renewal and power was exercised by the DDA

in terms thereof. Originally a 20 years lease of the land for use as a cold storage plant was granted which was renewed for a further 20 years w.e.f.

1968. A cold storage plant was set up and subsequently the lessor permitted a cinema building also to be developed. The Government of India

had taken a view that the lessee had put up a permanent structure such as a cold storage, cinema building complex etc. Therefore, it would be

virtually impossible for the DDA to determine the lease and take possession of the property. The clause 3(b) of the lease agreement for the period

1968-88 provided that the lessor may after expiration of the 20 years lease term, grant further renewal for such period and on such terms and

conditions as may be decided by it. On these considerations the Government appears to have taken the view that it would be prudent on the part

of the DDA to make an offer to the lessee for fresh renewal of the lease. The present case is materially different from the facts noticed above.

It is also to be noted that the policy dated 22nd September, 1980 relied upon by the petitioners also refers to a resolution no. 294 dated 9th

June, 1958 whereby the DDA had decided ""to grant perpetual lease to ex lessees where building (substantial or temporary) had come up in fully

developed areas, if these did not conflict with any scheme in hand or expected to be taken in future"". The letter dated 17th January, 1990 granting

the further lease of five years to Shri Chintamani Sharma also clearly notified him that the land would be resumed if it is required for planned

development of Delhi. The DDA as well as Public Works Department have placed extensive material with regard to the huge projects which are

underway and also contemplated on and around the subject land.

In view of the above discussion, the proceedings before the Estate Officer cannot be prohibited for the mere reason that the suit is pending wherein

the plaintiffs are claiming under a policy of the respondent.

So far as the pendency of the suit is concerned, the issue as to whether the petitioners have any enforceable right in the subject land based on the

said policy would be considered on the basis of evidence placed before the trial court. In case the petitioners are held to be having any enforceable

right, relief can be appropriately moulded in their favour in accordance with well settled legal principles.

This writ petition and CM No. 3845/2009 are therefore devoid of legal merit and is hereby dismissed.

The interim order dated 23rd March, 2009 would therefore stand vacated. As a result, CM Nos. 10682/2009, 11811/2009 & 11812/2009 are

rendered infructuous and disposed of as such.

The respondent shall be entitled to costs which are quantified at rupees twenty five thousand to be paid within four weeks.