Full Text
HIGH COURT OF DELHI
Date of order: 4th November 2022
M/S EVEREADY INDUSTRIES INDIA LIMITED ..... Petitioner
Through: Mr. Mukul Gupta, Sr. Advocate (Through VC) with Mr. A. S. Mathur, Ms. Priya Singh, Mr. Sarvpriya and
Mr. Umang Katariya, Advocates
Through: Mr. Rajesh Rattan, Advocate
CHANDRA DHARI SINGH, J (Oral)
ORDER
1. The instant petition under Article 227 of the Constitution of India has been filed on behalf of the petitioner seeking the following reliefs:- “(a) set-aside the impugned judgment dated 17.05.2022 upholding the Order passed by the Estate Officer dated 1.07.2021 passed by the Estate Officer; and/or (b) Pass any such other and further orders in favour of the Petitioners as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.”
2. A perusal of the record reveals that the following course of events have culminated into the controversy before this Court in the instant petition: a. The respondent had filed an Application under Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter “PP Act”) seeking eviction of the petitioner from the premises in question situated at 5 Parliament Street, New Delhi-
110001. The respondent has its offices situated at the premises, a portion of which, i.e., second floor admeasuring 5471 sq. ft, was in the occupation of the petitioner. b. The respondent issued a notice of termination dated 25th May 2007 under Section 106 of the Transfer of Property Act, 1882, whereby it terminated the monthly tenancy of the petitioner with respect to the premises and sought its eviction on the ground that the premises was required by the respondent for its own banking use. The petitioner also furnished its reply to the notice on 18th August
2007. c. Thereafter, a Show Cause Notice was issued to the petitioner by the Estate Officer, UCO Bank, on 19th September 2008, under Section 4 of the PP Act asking the petitioner to show cause as to why an order of eviction should not be made against it. The petitioner replied to the Show Cause Notice on 17th November 2008 and sought the recalling of the Notice on inter alia the grounds that, the concerned Estate Officer had a direct and personal interest in the eviction of the petitioner from the premises since he was also the Deputy General Manager of the respondent Bank, the petitioner had been operating on the premises in question since 1958 and had been paying regular rent to the respondent, the termination notice and the Show Cause Notice suffered from infirmities. d. On 16th September 2013, the concerned Estate Officer passed a detailed and comprehensive order under Section 5 (1) of the PP Act declaring the petitioner as an unauthorised occupant of the premises in question, in pursuance of the terminated lease deed and nonvacation of the premises by the petitioner thereof. e. Assailing the order dated 16th September 2013, the petitioner approached the District and Sessions Judge, Patiala House Courts, New Delhi and vide order dated 22nd May 2014, the order dated 16th September 2013 was set aside with a direction to the Estate Officer to give opportunity to the parties to lead evidence qua the Power of Attorney given by the respondent to PW[2], Rajeev Kumar Khanna. f. Subsequently, the Estate Officer, on 1st July 2021, allowed the application on behalf of the respondent for eviction of the petitioner. Challenging the same, the petitioner filed an appeal bearing PPA NO. 5/2021 under Section 9 of the PP Act before the District and Sessions Judge, Patiala House, New Delhi. The said appeal came to be dismissed by the order dated 17th May 2022.
3. Aggrieved by the order of the Appellate Court, the petitioner is before this Court by way of filing the instant petition.
4. This matter was first listed before this Court on 1st June 2022 whereby the parties raised preliminary objections regarding the impugned order on merits and directions were accorded by this Court to complete the pleadings for the purposes of proper adjudication of the instant petition. On the said date, directions were given not to take any coercive steps against the petitioner till the subsequent date of listing. On the second date of hearing, i.e., 5th July 2022, the interim orders were continued since further time was sought on behalf of the petitioner to file rejoinder.
5. The matter then came up for hearing before this Court on 29th July 2022 and the senior counsel present before the Court argued the matter on merits submitting that the impugned order passed by the District Court as well as the eviction order passed by the Estate Officer were erroneous and not in accordance with law. The learned counsel for the respondent vehemently opposed the submissions made on behalf of the petitioner and submitted that the petition is liable to be dismissed for being devoid of merits. At that juncture, a suggestion followed by learned senior counsel appearing on behalf of the petitioner that the petitioner entity may be given a prescribed period of time to vacate the premises in question. He sought some time to file an undertaking in this regard on behalf of the petitioner. Again, the interim orders for no coercive action in favour of the petitioner were continued.
6. On 15th September 2022, an undertaking, in terms of the order dated 29th July 2022, was filed on behalf of the petitioner, which is on record, wherein it was stated on affidavit that the petitioner shall vacate the premises in question within a period of 24 months from the date of disposal of the proceedings in the instant petition. However, the learned counsel appearing on behalf of the respondent vehemently opposed the time sought the time period undertaken by the petitioner to vacate the premises and therefore, pursuant to the strong opposition and as per the inclination and directions of this Court, on instructions, the learned senior counsel conceded at Bar that the petitioner shall vacate the premises within a period of 18 months and also sought time to take fresh instructions on the issue. For the successive two dates, i.e, on 12th October 2022 and 27th October 2022, request was made on behalf of the petitioner only to take further instructions and file an affidavit on behalf of the petitioner qua the vacation of the premises in question and the interim order has also been prayed to be continued solely on that pretext.
7. Today, Mr. Mukul Gupta, learned senior advocate appearing on behalf of the petitioner, once again sought time for taking instructions and file an affidavit on the aspect of vacation of the premises which has been vehemently opposed by the learned counsel appearing on behalf of the respondent who submitted that despite the arguments been concluded on merits, the petitioner has been seeking extension of the interim orders, only on the pretext of filing an affidavit afresh. It has also been submitted on behalf of the respondent that the pleadings have been completed since July 2022 and the matter had been argued by learned senior counsel at length on behalf of the petitioner on 29th July 2022, however, after arguing at length the request for filing an affidavit regarding vacation of premises was made. It is further submitted that at this stage since the pleadings are on record and arguments on merit stand concluded on an earlier occasion, the matter may be decided on merits.
8. This Court has carefully and thoroughly examined the record and evaluated the proceedings as well as the conduct of the parties. In the garb of seeking instructions and filing an affidavit, there is a clear and apparent attempt on part of the petitioner to evade the process of law and administration of justice. The time given to the petitioner for filing an affidavit regarding vacation of premises was an opportunity given by this Court to the petitioner to fairly partake in the present proceedings and which would have also shown its earnest and sincere efforts to have the matter adjudicated by presenting and placing all honest facts and circumstances before this Court and have the matter finally resolved after several years of litigation. However, not only has the petitioner failed to show his bona fide by furnishing an affidavit regarding the vacation of premises it has been held to be in authorised occupancy of, but it appears that the petitioner has also taken the authority of this Court for granted and has attempted to misuse and abuse the process of law. This Court can afford no bargain to a party which does not come with clean hands before this Court, attempts to mislead this Court and tries to seek positive orders in by presenting misrepresented facts and by concealing the true intentions of the party. The conduct of the petitioner for the past several dates is unjustified, deplorable, and condemnable.
9. However, since the counter affidavit and rejoinder are on record the pleadings have been completed and the arguments on merits had been concluded on a previous occasion, this Court shall examine the matter at hand on merits.
10. It has been argued on behalf of the petitioner that the impugned order dated 17th May 2022 has been passed without appreciating the fact that the concerned Estate Officer who had passed the order of eviction, being the Deputy General Manager of the respondent, had a personal interest in the matter and hence, was the judge of his own cause. He conducted the proceedings in the matter however he could not have been appointed as the Estate Officer as he was also the Zonal Manager of the North Zone and the Delhi office came directly under his day-to-day services. He was also a judge in his own cause as the Deputy General Manager, who is also the Zonal Manager, is directly overseeing in his personal capacity, the space available with UCO Bank in the entire zone. It is submitted that the principle was applicable at the time of issuing the Notice under Section 4 of the PP Act and therefore, the proceedings thereafter were void ab initio.
11. It is submitted that the Estate Officer erred in ignoring the crossexamination of PW-1, Jagdev Singh, whereby, he categorically stated that the respondent Bank failed to show by any document that there was insufficiency of space. There was no pleading or evidence to show the exact requirement in terms of the area required by the respondent. In fact, the requirement of space was met by the premises vacated by the Hindustan Petroleum Corporation Limited, who was also a tenant of the respondent.
12. It is submitted on behalf of the petitioner that the District Court failed to observe that PW-1 stated in his cross-examination that it was the Zonal Manager who takes decisions regarding eviction whereas PW-2 in his crossexamination stated that the Zonal Manager has no role to play in the decision of eviction. Moreover, the cross-examination of PW-1 was conducted in 2009 and the cross-examination of PW-2 was conducted in 2014, after the matter being remanded back to the Estate Officer after appellate proceedings and, in the meanwhile, PW-2 had an opportunity to improve his answers as regards the role of Zonal Manager in the eviction of the petitioner.
13. It is submitted that the District Court failed to observe that PW-2 neither signed the alleged Power of Attorney nor had the same been executed before him. The authority to institute the eviction proceedings against the petitioner cannot be proved by any other document than the Power of Attorney and the respondent failed to prove the issue of Power of Attorney, yet the District Court failed to appreciate the same. Moreover, the claim of PW-2 was erroneously given credence that he had the authority to sign, verify and institute eviction petition qua the petitioner.
14. It is further submitted that the District Court failed to observe that the Note dated 28th June 2005 which was examined as Ex. PW-2/D[1] was not authority enough to institute eviction proceedings against the petitioner and the respondent was required to discharge burden of proof under Section 101 of the Indian Evidence Act, 1872 to prove the Power of Attorney in favour of PW-2.
15. It is, therefore, submitted that the impugned order passed by the District Court is liable to be set aside.
16. Per Contra, learned counsel appearing on behalf of the respondent vehemently opposed the instant petition and submitted that the petitioner was occupying a portion situated on the premises in question since 1958, however, the tenancy stood terminated with effect from 25th May 2007.
17. It is submitted that the District Court rightly relied upon the judgment of Accountant and Secretariat Services Pvt. Ltd. & Anr. vs. Union of India & Ors., (1988) 4 SCC 324, and Crawford Bayley and Co. vs. Union of India, (2006) 6 SCC 25 to settle the issue regarding the principle of „judge of his own cause’. It is submitted that all the Estate Officers of UCO Bank are appointed in the name of Zonal Manager. The designation of Zonal Manager was appointed and authorized to act as an Estate Officer and he is conferred duties and powers to act in respect of the public premises belonging to or taken on lease by or on behalf of the UCO Bank situated in the NCR of Delhi. Since the public premises in question falls within the territory of New Delhi, therefore, the designation of Zonal Manager, UCO Bank is conferred the complete jurisdiction to act as an Estate Officer in respect of the said public premises. Therefore, it is evident that the Estate Officer acted and performed his quasi-judicial authority under the PP Act in terms of Notification dated 7th January 2007.
18. It is further submitted that the concerned Zonal Officer, S. Rajaram was appointed by the Respondent Bank as Zonal Manager in UCO Bank, New Delhi in terms of Office Notification dated 27th April 2008 as he was transferred as DGM/ Scale VI Officer from FCB, Kolkata, to Zonal Office, New Delhi as Zonal Head. S. Rajaram, was never posted in Delhi before and he was to report to a new place of posting as Zonal Manager, UCO Bank, New Delhi by 30th April 2008 and thus, decision to evict the petitioner was taken by the respondent in terms of the CMD approved Note on 28th June 2005, i.e almost 3 years before his joining the post of Zonal Manager at New Delhi and 1 year before his joining as Zonal Manager from the termination of monthly tenancy of petitioner vide notice to quit dated 25th May 2007.
19. It is submitted on behalf of the respondent that the eviction proceedings bearing Eviction Case No.03/2008 was filed by the respondent Bank before S. Rajaram, Zonal Manager, who acted as Estate Officer, UCO Bank, in terms of Government of India Notification dated 7th January 2007, on 18th September 2008 and Show Cause Notice dated 19th September 2008 under Section 4 of the PP Act was issued by him upon the petitioner. The petitioner moved an application under Section 3 of the PP Act dated 17th November 2008, before the Estate Officer, S. Rajaram, which was replied to by the respondent and the application was dismissed by him after hearing all the parties concerned. After initiation of the proceedings, the Eviction Case No.03/2008 was transferred out of Delhi and appointed as Secretary to the Board and Executive Secretary to CMD of the Bank at Kolkata, vide Office Notification No. 01/2009-10 dated 28th April 2009. Thus, the tenure of S. Rajaram, first Estate Officer, UCO Bank, which started from 27th April 2008 came to an end on 28th April 2009 and he was replaced by A.J. Patel, who was working as Zonal Head, Cuttack, Orissa, who was then transferred as Zonal Manager, New Delhi and he, as Estate Officer, continued with the proceedings of the eviction case. In this manner many Zonal Managers came to New Delhi from 2008 onwards and they either got transferred out of Delhi after one year of posting and replaced by another Zonal Manager and almost all the Estate Officers stand retired from respondent Bank‟s service from 2008 till Sujoy Dutta, who became the Estate Officer, of the Bank at New Delhi, w.e.f. 1st June 2020 and delivered the judgment in aforesaid Eviction Case No. 03/2008 on 1st July 2021. The Estate Officer passed the Eviction Order against the petitioner and now he is transferred from Delhi to Kolkata and new Estate Officer, UCO Bank, New Delhi, has assumed office. Therefore, whoever was appointed as a Zonal Manager, acted as an Estate Officer in UCO Bank, New Delhi, in terms of Government of India Notification dated 7th January 2007.
20. It is submitted that the in accordance with the Power of Attorney dated 20th April 1985 executed in the favour of PW-2, he was authorised to institute and sign the eviction case. The District Court rightly observed that the examination of PW-2 ratified the action of the respondent Bank in instituting the present eviction case through Rajeev Kumar Khanna and there was no defect or infirmity in his authority in doing so.
21. It is submitted that the provisions of Code of Civil Procedure, 1908 and Indian Evidence Act, 1872, are not applicable to eviction proceedings under the PP Act. It is further submitted that all principles of natural justice were duly afforded and the petitioner was given ample opportunity to explain his just cause to occupy the premises in question. The petitioner, in its reply to the Show Cause Notice, miserably failed to explain any cause to continue in the occupancy of the premises in question.
22. It is further submitted that the decision to terminate the monthly tenancy of the petitioner qua the public premises was taken at the CMD level of the Bank in terms of CMD Note dated 28th June 2005, which instructed the respondent to initiate eviction proceedings against the petitioner and other unauthorized occupants at the premises under the UCO Bank. All the eviction proceedings were duly initiated in terms of the provisions of the PP Act, under Section 4. It is submitted that the petitioner called upon the respondent to bring on record the said CMD Note, which was then produced by PW-2 and PW-2 had also categorically deposed that the Zonal Manager had no role to play in the matter of requirement of space in UCO Bank in the year 2008 and all discussions, decisions and utilization of space were taken at Head Office level in consultation with him as he was the AGM, Zonal Office. Moreover, the respondent has every right to terminate monthly tenancy of the petitioner under Section 106 of the Transfer of Property Act.
23. It is, therefore, submitted that there is no illegality, infirmity or perversity in the order passed by the District Court. It is further submitted that the petitioner is liable to vacate the premises in question that has been occupied by the petitioner unauthorizedly. The notices of termination and eviction were passed in accordance with the principles of natural justice as well as in accordance with law, therefore, the instant petition is liable to be dismissed for being devoid of merit.
24. Heard learned counsel for the parties and perused the record.
25. In pursuance of a Note of the dated 28th June 2005, the respondent issued the notice of termination of monthly tenancy of the petitioner and sought eviction of the petitioner from the premises in question, where the petitioner was occupying the second-floor admeasuring 5471 sq. ft. A Show Cause Notice was issued by the Estate Officer thereafter, asking the petitioner to show cause as to why he should not be evicted from the premises in question and the petitioner also furnished its reply to the said Show Cause taking several preliminary objections and pleading its case in its favour. It was after giving this opportunity to be heard and consideration of the record available that the Estate Officer passed the order evicting the petitioner after finding it an unauthorised occupant of the premises in question.
26. The definition of an unauthorised occupant has been laid out under Section 2 (g) of the PP Act and reads as follows:-
The definition clearly stipulates two conditions. One, where an occupation has been taken of public premises without any authority and the second, where although an authority to occupy the premises existed in the past but the same has expired and ceased to exist yet the occupant is enjoying the occupation. In the instant matter, it is an admitted case that the premises in question and the portion in the occupancy of the petitioner was let out to the petitioner by the respondent on monthly basis. The part of public premises was not allotted to the petitioner under any Scheme/Programme or otherwise by the concerned Government and only on the basis of tenancy extended on a monthly term, as per the arrangement in accordance with the will and wishes of the respondent, the petitioner continued to hold the occupancy of the premises in question. Accordingly, when the requirement for space arose with the respondent, a notice of termination of monthly tenancy was issued to the petitioner on 25th May 2007 when a requirement of the area occupied by it in the premises in question was realised. In the said notice the respondent categorically stated that the petitioner shall have a period of 15 days to vacate the premises. However, the petitioner failed to do the needful within the stipulated time, whereafter the application for eviction on behalf of the respondents was moved and a Show Cause Notice thereof was also issued. A perusal of the record shows that there is no document on record which suggests that the termination of the monthly tenancy was ever challenged by the petitioner at the stage of issuing the eviction notice as well as after declaring them an unauthorised occupant. The challenge was subsequently brought about only after eviction of the petitioner was sought. Therefore, the petitioner had conceded to the termination notice till the filing of the eviction proceedings and even thereafter. Hence, without there being any challenge in operation to the order of termination of monthly tenancy, the petitioner was legally required to vacate the premises in accordance with law in pursuance of the order. After the passing of the termination order, the petitioner was no longer in legal, lawful, valid, and authorised occupancy of the premises in question and was henceforth, bound to vacate the premises as per the order of eviction passed after considering its reply to the Show Cause Notice, which was found to be unsatisfactory.
27. A principal issue that has been raised before this Court as well as the Court below is the applicability of the principle of „judge of his own cause‟ on the Zonal Manager who acted as the Estate Officer in the proceedings of the parties before this Court. Admittedly, there were more than one Estate Officers who entertained and concluded the proceedings that continued for several years. As per the Government Notification dated 7th January 2007, the Zonal Manager of the respondent bank had the powers to examine the issues pertaining to the premises belonging to the respondent Bank regarding lease by or on behalf of the respondent Bank. Further, the appointment of the Zonal Manager, on the basis of the Notification issued by the Government, appointed the post/designation of the Zonal Manager as the Estate Officer and not any individual person holding the said post/designation. The post of Zonal Manager was found to be the post competent to make decisions in the matters allotted to it and also, act as the Estate Officer in not only the matter between the instant parties but also in other disputes arising regarding the instant subject matter in the area falling under the scope and extent of its powers. Further, the position of law has been settled by the Hon‟ble Supreme Court that the principle of „judge of his own cause‟ would not be applicable to a high ranking and competent officer being appointed as Estate Officer. The concerned Estate Officer while passing the orders and taking decisions, duly followed the process of law and the entire record, including the operative, reasoned and comprehensive orders passed by the Estate Officer in the dispute between the parties before this Court does not reflect any instance to show that there was a prejudice or personal interest of Estate Officer in the matter.
28. While challenging the impugned proceedings, and ultimately, the impugned order, the petitioner has challenged the legality and validity of the Power of Attorney holder, Rajeev Kumar Khanna, examined as PW-2. The concerned person acted on behalf of the respondent, and the CMD of the respondent, when he initiated the proceedings under the PP Act, not only against the petitioner but also against the other unauthorised occupants. In this regard, the document examined as PW-2/1, the General Power of Attorney as well as the PW-2/D-1, i.e., the Office Note instructing the respondent to initiate eviction proceedings, were examined by the Court below and were found to be correct, valid and legal documents, duly signed and authorised, verifying the role of the PW-2 in acting on behalf of the respondent. PW-2, being duly authorised to act on behalf of the respondent, was made a part of the meetings held and discussions concluded qua the unauthorised occupants/tenants of the premises falling with the respondent. He was also the AGM of the respondent and thus had the necessary information closely with respect to the facts and circumstances. Therefore, PW-2 had the knowledge and competency to not only initiate the proceedings but also to follow up and carry out the necessary eviction. His role as the AGM and the Zonal Manager, did not prejudice the case in favour of the respondent, but had the greater implications vis-à-vis the material available on record as well as his personal knowledge in the matter and for the due and proper adjudication of the facts to determine the status of the unauthorised occupants and to carry out their eviction in accordance with law. The petitioner has vehemently argued that the Power of Attorney was not in accordance with the provisions of Indian Evidence Act, 1872, however, the District Court has rightly observed in this regard that the rules under the Indian Evidence Act, 1872 are not to be made applicable on eviction proceedings. Moreover, the requirement was also not found necessary to adhere to in light of the fact that PW-2 was recalled upon and examined to testify on behalf of the respondent expressly. Therefore, this Court finds force in the argument advanced on behalf of the respondents that the authority of PW-2 was rectified as well as ratified by the respondent Bank.
29. The petitioner has relied upon the Guidelines to prevent arbitrary use of powers to evict genuine tenants from public premises under the control of public sector undertaking/ financial institutions, issued by the Ministry of Urban Development and Poverty Alleviation, which stated that a person in occupation of any premises should not be treated as unauthorised occupant merely on service of the notice of termination of tenancy. These words are followed by „but the fact of unauthorised occupation shall be decided by following the due procedure of law’. There is no dispute to the fact that the due procedure of law was followed while holding the petitioner to be in unauthorised occupancy of the premises in question. A notice was issued informing the petitioner about the decision of termination of the monthly tenancy, an application was made under Section 4 of the PP Act on behalf of the respondent to initiate eviction proceedings, a Show Cause Notice was issued to the petitioner with a time period prescribed for furnishing its reply and then the comprehensive reply of the petitioner to the contents of the Show Cause Notice was duly considered before passing the order declaring the petitioner an unauthorised occupant. Therefore, a due and timely intimation was given to the petitioner and moreover, an opportunity of a fair and reasonable hearing was afforded to it, which were the requirements for carrying out the due procedure of law in declaring the petitioner an unauthorised occupant.
30. In view of all the objections raised before this Court, which were also raised before the Court below, the District Court made the following final observations:-
31. The District Court, while adjudicating the dispute between the instant parties, carefully examined all the evidence before it, afforded opportunity to the parties to be heard, made observations with respect to all objections raised on behalf of the parties and then passed a detailed and reasoned order dismissing the appeal filed on behalf of the petitioner herein. This is not a case where the principles of natural justice have been violated or that there was any illegality, perversity, or infirmity which was overlooked by the District Court. The monthly tenancy in favour of the petitioner stands terminated since 2007 and yet the petitioner has failed to vacate the premises. They have been held to be in its unauthorised occupancy by the different authority including the District Court at multiple occasions and yet there has been no bona fide attempt to vacate the public premises in question for more than 15 years.
32. In view of the above made observations, keeping in view the contentions raised and submissions made in the petition and the arguments advanced on behalf of the parties as well as upon perusing the contents of the impugned order, this Court does not find that the order impugned dated 17th May 2022 suffers from any gross illegality, error apparent on record, or any perversity which warrants the interference of this Court.
33. Accordingly, for the reason of not finding any cogent reason to interfere in the operation of the impugned order and not finding any merit in the challenge raised by the petitioner qua the impugned order, the instant petition is dismissed.
34. The impugned order dated 17th May 2022 passed by the District and Sessions Judge, New Delhi District, Patiala House Courts, New Delhi in PPA No. 05/2021 shall remain in operation and the directions made as under shall be given effect forthwith:- “The appellant company and all its employees, workers, agents, successors, occupants, claimants and all other persons who may be in occupation of the Public Premises i.e. portion of the UCO Bank Building, on the second floor, measuring 5471 Sq. Feet situated at 5, Parliament Street, New Delhi-110001 or any part thereof, are directed to vacate the said premises within 15 days of the date of this order, failing which the Estate Officer shall be entitled to apply coercive measures, as may be necessary or warranted in law, to get the public premises vacated from the appellant company.”
35. The concerned officials of the respondent shall take all necessary steps to have the premises vacated within 15 days of receipt of this order and, if required, shall take necessary steps, including use of force, to evict the petitioner from premises in question, i.e., Second Floor, 5 Parliament Street, New Delhi- 110001.
36. The petition stands dismissed with the aforesaid directions.
37. Pending applications if any also stand dismissed.
38. The order be uploaded on the website forthwith.
JUDGE NOVEMBER 4, 2022 gs/ms