Delhi High CourtFarid Qureshi vs Union Of India And Ors on 10 April, 2012Author:Sunil GaurBench:Sunil Gaur*                 HIGH COURT OF DELHI : NEW DELHI

                                                      Reserved on : March 26, 2012
                                                     Pronounced on : April 10, 2012
+ (i) W.P.(C)15014/2006

       FARID QURESHI                                              ..... Petitioner
                                Through:       Ms. Anjana Gosain, Advocate
                       versus

       UNION OF INDIA AND ORS.                     ..... Respondents
                       Through: Ms.Shobhana Takiar and Ms.Heena
                                Takiar, Advocates
+ (ii) W.P.(C)15015/2006

       SHARWAN KUMAR GOEL                      ..... Petitioner
                  Through: Ms. Anjana Gosain, Advocate

                       versus

       UNION OF INDIA AND ORS.                   ..... Respondents
                     Through: Ms.Shobhana Takiar and Ms.Heena
                               Takiar, Advocates

+ (iii) W.P.(C) 6848/2007

       S.P.GOEL AND ANR.                                        ..... Petitioners
                     Through:                  Mr. Ajay Kumar Jha, Advocate

                       versus

       UNION OF INDIA AND ANR.                   ..... Respondents
                     Through: Ms.Shobhana Takiar and Ms.Heena
                               Takiar, Advocates

+ (iv) W.P.(C) 6849/2007

       NARESH KUMAR AND ANR.                ..... Petitioners
                  Through: Mr. Ajay Kumar Jha, Advocate

                       versus

       UNION OF INDIA AND ANR.                   ..... Respondents
                     Through: Ms.Shobhana Takiar and Ms.Heena
                               Takiar, Advocates

W.P. (C) No.15014/2006, 15015/2006, 6848/2007, 6849/2007,
W.P. (C) No. 6850/2007, 6851/2007, 6852/2007, & 6853/2007.                      Page 1
 + (v) W.P.(C) 6850/2007
      PREM KUMAR AND ANR.                                        ..... Petitioners
                      Through:                 Mr. Ajay Kumar Jha, Advocate
                      versus

       UNION OF INDIA AND ANR.                    ..... Respondents
                       Through: Ms.Shobhana Takiar and Ms.Heena
                                Takiar, Advocates
+ (vi) W.P.(C) 6851/2007

       SANTOSH KUMAR AND ANR.                ..... Petitioners
                  Through: Mr. Ajay Kumar Jha, Advocate

                       versus

       UNION OF INDIA AND ANR.                    ..... Respondents
                       Through: Ms.Shobhana Takiar and Ms.Heena
                                Takiar, Advocates
+ (vii)W.P.(C) 6852/2007

       BALWANT RAI AND ANR.                    ..... Petitioners
                    Through: Mr. Ajay Kumar Jha, Advocate

                       versus

       UNION OF INDIA AND ANR.                     ..... Respondents
                        Through: Ms.Shobhana Takiar and Ms.Heena
                                 Takiar, Advocates
+ (viii)W.P.(C) 6853/2007

       YOGINDER LAL SOOD AND ANR.               ..... Petitioners
                      Through: Mr. Ajay Kumar Jha, Advocate
               versus

       UNION OF INDIA AND ANR.                   ..... Respondents
                     Through: Ms.Shobhana Takiar and Ms.Heena
                               Takiar, Advocates
       CORAM:
       HON'BLE MR. JUSTICE SUNIL GAUR
       %
                             ORDER10.04.20121.      Apart from petitioners being in arrears of license fee, bonafide
       necessity/space crunch in President's Estate, New Delhi, is the reason
W.P. (C) No.15014/2006, 15015/2006, 6848/2007, 6849/2007,
W.P. (C) No. 6850/2007, 6851/2007, 6852/2007, & 6853/2007.                      Page 2
        disclosed by the contesting respondent in the eviction petition but in
       the Notice underSection 4of 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.2.      Eviction proceedings were initiated against the petitioners in
       the year 2003, in pursuance to Notice underSection 4of 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 1993.3.      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.W.P. (C) No.15014/2006, 15015/2006, 6848/2007, 6849/2007,
W.P. (C) No. 6850/2007, 6851/2007, 6852/2007, & 6853/2007.              Page 34.      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 asS.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.5.      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 underSection 4of the Public Premises (Eviction of
       Unauthorised Occupants) Act, 1971 stands vitiated.
W.P. (C) No.15014/2006, 15015/2006, 6848/2007, 6849/2007,
W.P. (C) No. 6850/2007, 6851/2007, 6852/2007, & 6853/2007.                 Page 46.      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' underSection 4of 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.7.      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.8.      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
W.P. (C) No.15014/2006, 15015/2006, 6848/2007, 6849/2007,
W.P. (C) No. 6850/2007, 6851/2007, 6852/2007, & 6853/2007.                    Page 5
        to waiver and since the ground of bonafide requirement is not
       specified in the 'notice to evict' underSection 4of Public Premises
       (Eviction of Unauthorised Occupants) Act, 1971 therefore, eviction
       of the Petitioners on the said ground stands vitiated in view of the
       decisions inEx.Hawaldar Kailash Singh vs. Union of India, 106
       (2003) DLT 660;Mrs.Premlata Bhatia vs. Union of India & Ors.,
       108(2003)DLT 346; andSudhir Goel and Ors vs. M.C.D. & Ors.,
       2004 (75) DRJ 195; State of U.P. vs.Nawab Hussain, (1977) 2 SCC
       806; andWorkmen of Cochin Fort Trust vs. Board of Trustees of
       the Cochin Port Trust and Anr., (1978) 3 SCC 119.9.      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.10.     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 underSection 4of the Public Premises (Eviction of Unauthorised
W.P. (C) No.15014/2006, 15015/2006, 6848/2007, 6849/2007,
W.P. (C) No. 6850/2007, 6851/2007, 6852/2007, & 6853/2007.                 Page 6
        Occupants) Act, 1971 were validly initiated in view of the decisions
       inSushila Verma vs. Union of India, 2002 (65) DRJ 795;Delhi
       State Industrial Development Corporation Ltd. vs. K.C. Bothra &
       Ors., 108(2003) DLT 447; and Jeewan Das vs. Life Insurance
       Corporation of India & Anr., 1994 Suppl. (3) SCC 694 and so,
       question of termination of the License Agreements in question by
       Competent Authority pale into insignificance.11.     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.12.     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.W.P. (C) No.15014/2006, 15015/2006, 6848/2007, 6849/2007,
W.P. (C) No. 6850/2007, 6851/2007, 6852/2007, & 6853/2007.                Page 713.     It is true that the issue of security concern was not there either
       in the notice underSection 4of 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 underSection 4of the
       Public Premises (Eviction of Unauthorised Occupants) Act, 1971.14.     In the decisions relied upon by the Petitioners ' counsel to assail
       notice underSection 4of 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' underSection 4of 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.15.     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:-W.P. (C) No.15014/2006, 15015/2006, 6848/2007, 6849/2007,
W.P. (C) No. 6850/2007, 6851/2007, 6852/2007, & 6853/2007.                   Page 8
                ""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.16.     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.17.     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

W.P. (C) No.15014/2006, 15015/2006, 6848/2007, 6849/2007,
W.P. (C) No. 6850/2007, 6851/2007, 6852/2007, & 6853/2007.                   Page 9
        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.18.     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
       underSection 4of 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.19.     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
W.P. (C) No.15014/2006, 15015/2006, 6848/2007, 6849/2007,
W.P. (C) No. 6850/2007, 6851/2007, 6852/2007, & 6853/2007.                 Page 10
        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.20.     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 underSection 4of Public Premises (Eviction of Unauthorised Occupants) Act, 1971
       cannot be faulted with.21.InPrem Grover & Ors. vs. New Delhi Municipal Committee,
       1999 (48) DRJ (DB) 419, 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.22.     Petitioners' plea of acquiescence does not cut any ice in view
       of the dictum of the Full Bench of this Court inChandu Lal vs.
       Municipal Corporation of Delhi, AIR 1978 Delhi 174, holding that
       mere acceptance of the license fee merely extends the period of
W.P. (C) No.15014/2006, 15015/2006, 6848/2007, 6849/2007,
W.P. (C) No. 6850/2007, 6851/2007, 6852/2007, & 6853/2007.                Page 11
        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.23.     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.(SUNIL GAUR)
                                                                JUDGE
       April 10, 2012
       pkb




W.P. (C) No.15014/2006, 15015/2006, 6848/2007, 6849/2007,
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