Saraswati Marketing Co. Ltd. vs Life Insurance Corporation of India and Another

Shiv Narayan Dhingra, J.—This petition under Article 227 has been filed challenging the validity of orders dated 30th April, 1998 and 12th March, 2003 passed by Estate Officer and ADJ respectively holding the petitioner to be an unauthorized occupant of property bearing No. 3A/16, Saraswati Insurance Building, Asafali Road, New Delhi and passing an eviction order and order of damages against the petitioner in respect of the premises.

The petitioner was in occupation of the premises belonging to LIC measuring 875 square feet at a monthly rent of Rs. 250/- exclusive of electricity and water charges. The tenancy of petitioner got terminated vide notice dated 30th April, 1996 and petitioner was called upon to hand over the vacant possession. However, since the petitioner failed to hand over the possession of the premises, a notice was issued by Estate Officer stating that premises were needed by LIC for its office purpose. During the pendency of proceedings before the Estate Officer, the petitioner made all attempts to prolong and protect the proceedings. The pleadings were complete on 20th December, 1996 and trial started. The petitioner thereafter sought adjournment on 22.8.1997 on the ground of elections in the Bar. On 10.10.1997, an adjournment was sought by proxy counsel on the ground of busyness of main counsel. On 24.12.1997, none appeared for the petitioner and Estate Officer adjourned the case for 9.1.1998. On 9.1.1998, again proxy counsel appeared for the petitioner and sought an adjournment which was granted. Same was the story on 6.2.1998. Again on 27.3.1998, none appeared for the petitioner and Estate Officer of his own adjourned the matter to 17.4.1998. However, proxy counsel for the petitioner later appeared and noted the date of 17.4.98. Again none appeared for the petitioner and matter was adjourned to 27.4.1998. On 27.4.1998, none appeared for the petitioner and the matter was listed for arguments on 29.4.1998. On 29.4.1998, none appeared for the petitioner and the matter was adjourned for 30.4.98. The petitioner did not cross examine PW-1, despite the case having been adjourned not on one hearing but several hearings and ultimately the cross examination was closed.

The Estate Officer vide order dated 30.4.1998 held the petitioner to be an unauthorized occupant awarded damages to the tune of Rs. 5,34,244/- and also passed an eviction order. The petitioner preferred an appeal against the order of the Estate Officer before the ADJ. This appeal was dismissed by the learned ADJ vide his order dated 12th March, 2003. The learned ADJ observed that the plea taken by the petitioner that premises was not a public premises has been laid at rest by the Supreme Court by its decision in Jain Ink Manufacturing Company Vs. Life Insurance Corporation of India and Another, . The plea of the appellant that the appellant was not afforded sufficient opportunity of being heard by the Estate Officer was found factually incorrect, in view of the record of the Estate Office. The Appellate Court found that the order of the Estate Officer was correct and justified.

In this petition, the petitioner has taken the ground that the order of the Appellate Court as well as Estate Officer was based on surmises and conjectures and the respondent has failed to prove that the premises was bona fidely required by respondent No. 1. It is also contented that the premises was not covered under Public Premises (Eviction of Unauthorized Occupants) Act 1971 but was covered under the provisions of Delhi Rent Control Act and the Courts below failed to apply their judicial mind. The other plea taken was that the LIC after the termination notice had accepted rent therefore notice stood waived.

During the pendency of this petition, learned Counsel for the petitioner on 14th October, 2006 made a statement that he does not want to press the plea of premises not being public premises within the meaning of the aforesaid act. It was stated that an application of the petitioner under Order 9 Rule 13 read with Section 151 CPC was still pending before the Estate Officer. The non-appearance of the counsel before the Estate Officer was because the petitioner did not note the correct date of hearing and the petition should be allowed to the extent that the application of the petitioner under Order 9 Rule 13 should be decided.

This plea raised during the pendency of this petition is also a frivolous plea. Once an appeal is preferred against an ex party decree, no application under Order 9 Rule 13 lies before the first Court who passed the decree. Even if the application has been made by the petitioner before Estate Officer, that application has become redundant since the appeal filed by the petitioner was disposed of by the ADJ. Order 9 Rule 13 CPC explanation reads ad under :

Explanation.- Where there has been an appeal against a decree passed ex party under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex party decree.

In view of the above statutory provision, the plea taken by the petitioner during pendency of this petition is not tenable. The ground that premises was not covered by public premises (Eviction of Unauthorized Occupants) Act 1971 has been given up. The only other ground to be considered is whether this petition under Article 227 is maintainable in view of the settled legal position. This Court in N.P. Beryy v. DTC 1979 (15) DLT 108 observed that the Additional District Judge hearing appeal u/s 9 of Public Premises Act, 1971 was designated in the section as ''Appellate Officer'' and such authority was persona designata and not a Court within the meaning of Article 227 of Constitution of India. Such an order passed by him acting as an Appellate Officer cannot be challenged in the High Court under the Article 227 of the Constitution. This Court also observed that there was nothing unlawful or irregular in the legislature appointing a person to perform functions of a quasi-judicial nature and the mere fact that the business entrusted to such a person may involve the consideration and decision of juristic rights would not give the appointed person status of a Civil Court, a Senior Subordinate Judge, a District Judge may be entrusted with duties of the judicial or quasi-judicial nature and yet while performing these duties he does not act as a Court. This Court also observed that jurisdiction under Article 227 was equitable and is to be exercised only in extraordinary circumstances.

It is evident that in the present case, the efforts of the petitioner had been to see that the case of the respondent for eviction was dragged. The tenancy was terminated in 1996, we are now in 2008. Twelve years have already passed and despite passing of an eviction order by the Estate Officer, the petitioner is still in occupation of the premises as an unauthorized occupant. The petitioner made all efforts to see that the case before Estate Officer is not decided, the appeal is delayed and now this petition is also pending for last about 5 years. The equity does not lie in favour of the petitioner neither this Court considers that it is a case where jurisdiction under Article 227 should be exercised by this Court.

This Court in Sadhan Kumar Acharya Vs. Reserve Bank of India and Another, in a petition under Article 226 had occasion to consider the issue about giving fair and proper opportunity and observed that this Court does not sit as a Court of Appeal in writ jurisdiction and it has only to ascertain whether principle of natural justice has been followed, i.e., a fair and proper opportunity was given and whether the authority below has not exceeded its jurisdiction.

The Court gives a fair opportunity to the other party by asking the other party to cross examine the witness present. The Court cannot force a party to cross examine the witness. If a party shows an adamant attitude and does not cross examine the witness or the counsel does not appear on the date when case is fixed for cross examination, court is justified in closing the cross examination. In the present case, conduct of the petitioner shows that the petitioner was adamant upon not cross examining the witness at the opportunity given and sought adjournment after adjournment and did not appear thrice in the Court before the Estate Officer. Under these circumstances, it cannot said a fair opportunity was not given to the petitioner. In fact more than fair opportunity was given to the petitioner. Estate Officer should have closed the cross examination after one adjournment. It was not necessary for Estate Officer to keep on adjourning the case on such a flimsy grounds as were put to him. The Court must deprecate the practice of entertaining such fake excuses of noting wrong date. The plea of the petitioner that petitioner was not given adequate opportunity is baseless.

As far as bonafide requirements of LIC is concerned, I consider that there is no such condition in the Public Premises act that an unauthorized occupant can be asked to vacate the premises only if the premises are required bonafidely. In Jiwan Dass Vs. Life Insurance Corporation of India and Another, Supreme Court observed that Public Premises (Eviction of Unauthorized Occupants) Act, 1971 Section 2(g), the Act postulates that tenancy can be determined for any reason whatever. The Act gives wide powers to the public authorities to determine the tenancy and it is not permissible to cut down the width of the powers by reading into it the reasonable and justifiable grounds. There was no requirements that tenancy can be terminated for bonafide necessities. A public authority is entitled to use the public premises to the best of its advantage, as a commercial venture. The doctrine of livelihood cannot be extended to the area of the commercial operation. The tenancy can be terminated even if the premises are let out at lower rent long back and the rent is unrealistic and the public authority want to revise adequate market rent.

There is no force in the plea taken by the petitioner that since the rent was continued to be accepted by the respondent even after termination, the tenancy continued. In Naveen Chand and Another Vs. Nagarjuna Travels and Hotels Pvt. Ltd., , Supreme Court observed that the tenant cannot assume unilateral right of renewal without actual settlement of terms and conditions between the parties. Mere acceptance of rents after expiry of lease does not mean that lease has been renewed.

The petition has no force and in view of my above observation, the petition is hereby dismissed.