Dharambir Singh Saini and Anr v. Delhi Development Authority

JUSTICE VIPIN SANGHI HON'BLE MS.

JUSTICE DEEPA SHARMA JUDGivrENT DEEPASHABMd/T

1. We propose to dispose ofthese 36 appeals and 5-writ petitions vide this common ordersince in all these matters, the issues raised are identical. •2. The lands in dispute were leased out to two-different Societies. namely,;heel lOjuranja Cooperative Milk Producei-s Society Limited and Delhi Peasants Cooperative Multipurpose Society Limited. AH the matters relatmg to land allotted to.Iheel Khuranja Cooperative Milk Producers Society Limited are grouped in Group "A" and the matters relatmg to land allotted to Delhi Peasants Cooperative Multipurpose Society Limited are grouped in Group'B'. Brieffacts in Group 'A'

3. An Agreement was executed by the Government ofIndia in favour of le Delhi Impiovement Irust (hereinafter referred to tis "the DIT") on 31.03,1937 with regard to administration of certain properties, which were LPA No.479/2013 and connectedmattars' Page ') of38 Ly^S-.TTT.n.Tgr.'SI placed at the disposal of DIT, ^nd was termed as the Nazul Estate. On 14.03.1950, Government of India, Ministry of Rehabilitation conveyed its decision to the effect that all the plots in Jhil Khuranjia, which were • previously occupied by Muslim Ghosis and which were then lying vacant or' were unauthorisedly occupied, would be allotted by the DIT to the Jhil Khuranjia Milk Producers Co-operative Society Ltd., for being allotted to. displaced persons who are milk producers and who had enrolled memselves as Members of the Society and those who agree to abide by the • conditions specified in the said communication. The terms of allotments of plots to the Jhil Khuranjia Milk Producers Co-operative Society, inter aha, provided that the plots would be'given only for alease for aperiod of 90 years. The Society had to pay to DIT an existent rent ofRs. 2/- per annum, subject to the enhancement. It also provided that the period of lease for all Nazul 'grazing land' under the trust be leased for grazing &fodder; the first instance would be 5years with an option to the Society to renew the lease for afurther period of 10 years each. Subsequently, on 22.03.1950, the DIT was called upon to take immediate necessary action with regard to allotment of all vacant plots of land in Jhil ICliuranjia to the Jhil IChuranjia Milk Producers Co-operative Society Ltd. on the terms and conditions contained in letter dated 14.03.1950. Request was also made to lease out Nazul grazing land undei the Trust (DIT) in and near Jhil Khuranjia, including, land belonging to U.P., Canal Department so long as its management is with DIT.

5. The DIT passed the resolution on the subject of"Allotment ofLand in Jhil Kiuranjia to Jhil IChuranjia Milk Producers Co-operative Society Ltd." LPA No.479/2013 andconnected matters Page 10of3S on 25.05.1950. This resolution contained tiie terms of allotment as were contained in Government Notification datecll[4].03.1950,

6. The Naziiiqand measuring 7938 Bigha 12 Biswa in Jheel Khuranja and Chiragaha South was given on lease to Jheel Khuranja Cooperative Milk Producers Society Limited by the DIT vide.-Resolution' No.-l03 dated 25.05.1950. Land measuring 2660 Bigha 14 Biswa belonging to U.P. Iirigation Department, was also allotted to the Society. On 20.04.1962, possession of2660 Bigha 14 Biswa was surrendered to the U.P. Irrigation Department and, thereafter, only an area ofaland comprising,of4380 Bigha remained with the Society. This land was leased out to the Society for its •members, mcludmg the appellants and the writ petitioners. After the Delhi Development Act,.1957 (hereinafter referred to as "the DD Act") came into force, the land under the management ofthe DIT came to vest in the Delhi Development Authority (hereinafter referred to as "the DDA") by virtue of Section 60(2)(d) ofthe DD Act and by virtue ofSection 22 ofthe DD Act, the Nazul lands, which were property of the Central' Government, were placed at the disposal ofDDA for the purpose ofdevelopment. DDA issued two letters on 16.10.1967 to the Society, for handover the possession of the land and also to deposit the arrears of land revenue' amounting to' Rs.2,71,957.48. The Society filed a Suit No.326/1970 for declaration, mandatory and perpetual injunction thereby seeking declaration that termination of the. lease was illegal, and also seeking injunction to restrain the DDA from evicting it and claim arrears of rent. On 24.05.1971, the Society gave up.its relief of declaration and confined itself to the relief of injunction. The suit was dismissed on the ground that the suit for injunction LPA No.479/2013 and connected matters Page II 0/38 alone was not maintainable after the relief for declaration was abandoned, since the relief for injunction had emanated from the relief of declaration. • Against this order, the Society preferred an appeal which was registered as RFA No.250/r971. During the hearing of the appeal, the DDA on 26.07.1977 gave an undertaking to the Court that it would not dispossess the, Society, except under the provisions of the Public Premises (Eviction ot Unauthorised Occupants) Act, 1971 (hereinafter referred to as ^the PP Act').. •iriis undertaking was accepted by the Society and the appeal was disposed of on those terms.

7. Thereafter, DDA proceeded to take action under the PP Act against the Society. Notices under Sections 4and 7ofthe PP Act in the year 1983- • 84 were issued to the Society for vacation of the land. However, the proceedings were dropped by DDA against the Society, when informed that the Society was not in possession ofthe land.

8. Thereafter, notices under Section 4 of the PP Act were issued to. vi^rious occupants of the land. The Estate Officer issued the show-cause notices to the occupants. The eviction orders were passed. The said eviction • orders dated 29.01.2002 were-.challenged before this Court in CWP No.3364/2002 and the Court vide order dated 19.11.2004 directed the DDA to implead the.Society as a party to the eviction proceedings. After impleadment of the Society, the Estate Officer passed the eviction orders dated 01.08.2007 against the Society. It was challenged by way of an appeal before the District and Sessions,,Judge. The learned District and Sessions. Judge vide order dated 01.09.2009 set aside the order passed by the Estate Page 12 of[3].S LPA No.479/2013 and connectedmatters-. Officer on the ground that the description ofland was not mentioned in the order.

9. The Estate Officers thereafter again passed the eviction orders dated 17.12,2012, 07.01.2013, 28.01.2013. 17,01.2013,_18.12.2012, 14,01 2013 in all the cases subject matter ofthe above Letter Patent Appeals (LPA's) of Group 'A'. The said orders were upheld by the District and Sessions Judge on 23.02.2013, 07.03.2013, 23.03.2013 and 25.02.2013. These orders were Challenged before the learned S.ngle.ludge in tl,e writ petitions bearing W.P.(C) 1959/2013, W,P,(C) 1928/2013. W.P.(C) 251.8/2013, W P (C) -1969/2013, W:P,(C) 1945/2013, W.P.(C) 2517/2013., W.P.(C) 2516/2013^ •.(C) 1979/2013, W.P.(C) 1948/2013, W.P.(C) 2519/2013, WP(C) 30.5/2«3, W.P.(C) 2792/2013. W.P.(C) 2953/2013. W.P,(C) 2965/2013; •.( ) 3577/2013. W.P.{C) 8665/2014, W,P.(C)1598/2016. W.P.(C) 1637/2016, W.P.(C)1597/2016 and W.P,(C) 1758/2016. All the writ pet.t.ons were dismissed by the learned Single Judge by acomtnon orders ated24.05.20,3,..6.02.2016and 29.02.2016. Thesaidordersare intpugned oie us in these LPA s. In the writ petition bearing W.P..(C) 5041/2014 the order ofDistrict Judge dated 07.03.2013, whereby the learned District J ge has upheld the order of the Estate Officer, is under challenge. In W.P.(C) 5790/2016, W.P.(C) 5805/2016, W.P.(C) 5806/2016 and W.P (C) 5808/2016, the writpetitioners have directly come before this Court against tie order ofEstate Officer dated 17.01,2013, without availing oftheir right to appeal beforetheDistrictJudge under Section 9ofthe PP Act, LPA No.479/2013 and connectedmatters Page 13 ofJS Brief Facts in Group 'B' Cases

10. In Group 'B' category of cases, the Government land in dispute was allotted to Delhi Peasants Cooperative Multipurpose Society Limited by- the DIT.

11. The brief common facts as- disclosed by the appellants in these cases, that in 1949, the Society was allotted agricultural land measuring 13,344bighas in village Patparganj Shamspur, Jatwara Kalan South, Gaonwala, Mohammad Khan Wala, Jhilnmil Tahirpur South, Jhilmil Tahipur North and • Murgi Kliana (hereinafter referred to as "the land"), on leasehold basis foi a period of 5years by the DIT vide the lease executed between the Society • and the DIT.. The Society allotted the said land to its members lor cultivation. The lease was extended in the year 1956 and again in 1961. In respect of certain bighas of land, DDA - who is the successor of DIT, sought cancellation of the lease deed on 06.10.1967 and 31.07.1967, and asked the Society to handover the possession of the land. Thereafter, a ^ solution N-0.[6] dated 30.04.1973 was passed by the DDA, whereby it proposed to execute the lease deeds in favour of individual cultivators. The Society was asked to clear its arrears and ademand letter to this effect was issued. Thereafter, the Society alleges to have cleared all the arrears. Notices under the PP Act were issued by the Estate Officer to the nidividual cultivators and the eviction orders were passed in the year 1991-1992. The orders were challenged in appeal before the District Judge. The matters were remanded back to the Estate.Officer. The eviction proceedings were again • started by the DDA in the year 2004, and eviction orders were passed on 01.08.2007 for vacation of the land. This order was challenged before the Page 14of 38 Appellate Court of District Judge. Tlie matter was again remanded back to the Estate Officer. Tlie final orders were passed by the- Estate Officer on 31.01.2014, 03.02.2014. 06.02.2014. 07.02.2014. 18.02.2014. 03.04.2014. 24.03.2014, 04.04.2014 and 24.06.2014 respectively. Tliose orders were challenged before the District Judge. The appeals were dismissed on 01.04.2014, 31.03.2014, 04.07.2014, 15.09.2014, 16.09.2014, 07.10.2014 and 14.10.2014. These orders ofthe District Judge were challenged before the learned Single Judge of this Court in W.P.(C) Nos.8307/2016, 9059/2016, 9063/2016, 9064/2016, 9065/2016. 9085/2016, 9086/2016, 9087/2016, 9105/2016, 9110/2016, 9111/2016, 9113/2016, 9117/2016. 9118/2016, 9n9/2016, 9121/2016, 9122/2016, 9137/2016, 9139/2016, 9140/2016, 9143/2016. Vide common impugned orderdated 21.10.2016, all the writ petitions were dismissed by the learned Single Judge. This mipugned order has been challenged by the appellants before us on various grounds.

12. Both the parties have argued the matter at length, and have also submitted their written submissions.. 13. Learned Counsels in Group 'A' and Group 'B' cases have confined their challenge-to the impugned orders on two legal g,-oimds and have not disputed the findings of fact returned by the Estate Officer, which were confirmed by the District Judge on their appeal, and subsequently by the learned Single Judge in the writ petitions. The first ground raised is that the learned Single Judges have failed to appreciate that appellants and the writ petitioners are the. tenants in respect of the portions of.the'lands in their occupation and possession and. secondly, that the DDA cannot evict them Page IS 0/38 under the PP Act which is applicable only to the unauthorized occupants, and they being tenants cannot be evicted under the PP Act wliich maizes the order of the Estate Officer void,, having been passed without any authority ' andjurisdiction.

14. It is argued that in Dr. Suhas H. Pophale V[5]. Oriental Insurance Co. Ltd and its Estate Officer, 2014 (2) SCALE 223, the Supreme Court has- _..jrly held that tlie occupants of public premises, who are in occupationprior to 16.09.1958, i.e. prior to tlie PP Act coming into force are notgoverned by the PP Act, since the Act has no retrospective effect. The• Supreme Court has further held that the right available to the appella^its under a State Statute before 16.-09.1958 (the date on which the PP Act was enforced) does not get extinguished on passing ofthe PP Act. Such persons. cannot be evicted under the PP Act. It is argued that at the time when lease was executed by the DIT, the provisions of Punjab Tenancy Act, 1887 and. Punjab Tenants (Security ofTenure) Act, 1950 were applicable to the lands in Delhi by virtue ofDelhi Laws Act, 1912, as amended in 1915. It is argued as per Section 4(5) of the; Punjab Tenancy Act, 1887 and Punjab- Tenants (Security of Tenure) Act, 1950, they are the tenants under those Acts and can be evicted only in terms of the said Acts and not under the PP Act. Reliance is placed on paras 59 and 64 of Dr. Shuhas H. Pophale (supra), which are reproduced as under:- "5P All those persons falling within the definition of a tenant occupying thepremisesprior thereto will not come under the ambit of the Public Premises Act and cannot therefore, be said to be persons in "unauthorized occupation". Whatever rights such prior tenants,,members oftheirfamilies or heirs of Page 16of 3.[8] tenants or all of those who fall within • ofatenant under the Bombay Rent Act have, are continued under the Maharashtra Rent Control Act 1999 if ^resoZTt f "• ^^'i^'ired, thai will have to be MI 1 » Bombay Rent Act or Maharashtra Rent Control Act. 1999 Ifperson concerned has come in qcQupaiion subsequent to such date, then ofcourse the - Public Premises Act, 1971 will apply

64. Asfar as the eviction ofunauthorisedoccupantsfrompublic P'^Lses IS concerned undoubtedly it is covered under the u ic Premises Act, but it is so coveredfrom 16-9-1958 or from the later date when thepremises concerned-become public premises by virtue of the premises concerned vesting into a government company or a corporation like LIC or the TeZfd'l rf' T companies like '^hT n ' '^''^^Sories of occupants of these public corporations who gefexcludedfrom the coverage f Zf wS occupationsinceprL 1 y: becoming applicable, are clearly^ outside the coverage of the Act Secondly those who come moccupation, thereafter, but prior to the date of the premises concerned belonging to agovernment corporation or acompany and are covered under aprotectiveprovision ofthe State Rent Act, like the appellant herein, also get excluded Until such date, the Bombay Rent Act and its successor Maharashtra Rent Control Act will continue to govern the ''^^"y^ship between the occupants ofsuchpremises on the one hand andsuch government companies and corporations on the ei. Hence, with respect to such occupants it will not be open to such companies or corporations to issue notices., and to pioceedagainst such occupants under the Public Premises Act andsuchproceedings Mill be void and illegal Similarly it will be open for such occupants of these premises to seek declaration of their status, and other rights.such: as ransmission-ofthe tenancy to the legal heirs, etc. under the Bombay Rent Act or its successor Maharashtra Rent Control ct, and also to seek protective reliefs in the nature of injunctions against unjustifiedactions or orders ofeviction ifso aaaaara-jirjLiuec LPA No.479/2013 andconnectedmatters Page I7ofJS Dossed by approaching theforum provided under the State Act which alone will have the jurisdiction to entertain such proceedings." '

15. It is further argued that in Rama Naml vs. State ofHaryana, AIR 1982, P&H 26. tlie Division Bench ofPunjab and Haryana High Court has'also clearly held that the rights of atenant created under Punjab Tenancy Act, 1887 and Punjab Tenants (Security of Tenui-e) Act, 1950 do not get...nguished on passing ofPunjab Public Premises and Land (Eviction and RentRecovei[7]) Act. 1959, the provisions ofwhich arepart materiawith the, PP Act. Itis argued thatthe sameprinciple applies here, and the DDA could not have sought eviction under the PP Act and eviction orders are thus nullity. It is submitted that the s^ne principles have been reiterated by the SupremeCourtinM/sBandBoxPrivateLimitedvs. Estate Officer, Punjab andSinclh Bank, 2014 (16) SCC 321.

16. Relying on the decision of the Supreme Court in the case of Dr. JagmUtar Sain Bhagat and Ors. v. Dir. Health Services, Haryana and |x., 2013 10 (SCC)136, particuiarly with reference to pai-a 9and 10 ofthe said judgment, it is argued that once it is found that the forum which had •passed an order had no jurisdiction, the decision becomes irrelevant and unenforceable/in-executable. Itisfurther ai'gued thatalegal plea challengmg tire jurisdiction ofthe authority to pass an order, can be raised at any stage and the learned Single Judges have erred in holding that the plea regarding non-applicability ofthe PP Act cannot be taken at alater stage. It is further argued that since the appellants and writ petitioners are challengmg the applicability" of the PP Act and, thus, challenging the jurisdiction and authority of the Estate Officer^to pass eviction orders under the PP Act, Page IS ofSS which purely alegal issue, the same could be raised at any stage. It is argued that in the case ofCantonmentBoard andAnr. vs. Church ofNorth India,. (2012) 12 SCO 573, the Supreme Court has clearly held that the lack of inherent jurisdiction is basic and fundamental, and the validity of an order can be challenged at any stage on the ground of lack ofinherent jurisdiction, even in execution or collateral proceedings. It is argued that the eviction orders being void-having been passed by an authority who had no jurisdiction over the matter, are liable to be setaside.

17. On the other hand, the learned counsel for the respondent/DDA submits that the PP Act deals with the eviction of unauthorized occupants from the properties belonging to the government.. The claim of the -appellants/writ petitioners that they are protected under the Punjab Acts is highly misplaced. The appellants and writ petitioners are not protected under any State Laws on expiry of leases by efflux of time. On expiiy of the said leases, the appellants and writ petitioners remained neither statutory, nor contractual tenants, thus, became unauthorized occupants.

18. Learned counsel submits that the Punjab Tenancy Act, 1887 has no application to the present case. The land in dispute - occupied by the appellants and writ petitioners is not governed by these Acts. The Punjab 1enancy Act, 1887, applies to the Union Territory ofDelhi as described in Schedule A ofthe Delhi Laws Act, 1912. As per this Schedule, the Unioi Ten-itory ofDelhi cmiprises that portion ofthe District ofDelhi, comprising the Tehsil of Delhi and the Police Station of Mehrauli. Further, vide Schedule -1 of the Delhi Laws Act, 1915, 65 territories were included in th(: Union Tenitory of Delhi. Learned counsel for the DDA draws our attentior LPA No.479/2013 andconnectedmatlers. Page 19 of[3] to the aspect that the land in question falls in the Nazul estate as described in the Nazul Agreement, and is not part of the 65 villages as described in Schedule - I of the Delhi Laws. Act, 1915. Thus, the Punjab Tenancy Act, 1887, does not apply to the Nazul estate. Learned counsel further submits that Section 4(5)(d) ofthe Act defines atenant as -aperson who holds landunder anotherperson, and is, or butfor aspecial contract would he, liable, jay rent for that land to that other person; but it does not include-: ~ (d) a person who takes from the [Government ] a lease ofunoccupied landfor the purpose ofsubletting if. Thus, in light of the said provision, the appellants and writ petitioners do not stand as tenants undei the Punjab Tenancy Act, 1887..

19. Learned counsel for the DDA further draws our attention to Section 3, ofthe Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959 wherein "Un-authorised occupation of public premises has been explained as under: "For the purposes ofthis Act -Aperson shall he deemed to be in unauthorized occupation ofany publicpremises. (a) where he has whether before or after the commencem.ent ofthis Act entered intopossession thereofothemise than under and inpursuance ofany allotment, lease or grant, (b) where he, being an allottee, lease or grantee, has, by reason of the determination or cancellation of his allotment, lease or grant in accordance with the terms in that behalf therein contained, ceased, whether before or after the commencement of this Act, to be entitled to occupy or hold suchpublicpremises. t^'^ZrVT"" "'"'Py publicpmnise, has, whether before or after the commencementofthis Act- '

(i) sublet in contwvention ofthe terms ofallotment, lease or grant, without thepermission ofthe State Government or of any other authority competent topermitsuch sub-letting the whole or anypart ofsuchpublic,premises;

(li) otherwise acted in contravention of any of the tenns express or implied, under which he is authorised to occupy such public premises. Explanation: For purposes of Clause (a), aperson shall no! ZZl ° ®^'Uottee, lessee or grantee."

20. By virtue ofArticle 254(1) oftlie Constitution ofthe India. 1950, the law made by Parliament on asubjectprevails overthe State laws. Thus, the PP Act would override any other state enactment made in respect of the lands ofthe Union ofIndia. Thus, the appellants and writ petitioners are unauthonzed.occupants within the meaning ofsection 2(g) ofthe PP Act on the said Union governmentland since 1965 i.e. since the expiry ofthe lease.

21. Learned counsel submits that Ashoka Marketing Ltd. &Am. v. Punjab National Bank &Ors., AIR 1991 SC 855, holds-that when a premises falls within the ambit of both -the PP Act and the Delhi Rent- Control Act (hereinafter referred to as DRC Act), the PP Act shall have overriding effect vis-4-vis the DRC Act. Thus, learned counsel submits that aperson inductedas atenant in respect ofapublic premise,'whose tenancy has expired, cannot invoke the protection of the State enactments viz. the Punjab Tenancy Act, 1887 and die Punjab Tenants Act, 1950. The PP Act LPA No.479/2013 andconnected mailers Page 21 of38 overrides the State Acts in relation to premises falling within the ambit of. both the enactments.

22. Learned counsel further submits that the pleathat the appellants and • the writ petitioners are the tenants under the Punjab Acts was not taken at any stage, and no evidence has been adduced by t-lie appellants and writ' petitioners to prove that the land in their occupation was governed by the ]' _]ab Acts. The said issue is amixed question of fact and law, and camiot be raised for the first time at this stage. The submission that the appellants/ petitioners were tenants under the Punjab Acts is thus afallacy.

23. Learned counsel for the DDA submits that the decision in Dr. Suhas

25. Itis further argued that in the Group 'B' cases, the appeal filed against; the eviction orders passed in respect of certain persons occupying the land allotted to Delhi Peasants Cooperative Multipurpose Society Limited, was dismissed in limine by a Division Bench of this Court vide ordei dated • 17.11.2015 in the case titled as BrijPal &Ors. V[5]. DDA, LPA No. 810/2015. It is submitted that these findings are binding on this Court on the principle • ( "^"iOnstructive res judicata, since they are relating to the same lease agreements, with the same Societies, through whom the appellants and the petitioner in those two cases were claiming their rights, and tkough whom, the appellants and the writ petitioners before this Court are claiming their rights.

26. It is further argued that the learned Single Judges have rightly dismissed the writ petitions of the appellants, whereby they had challenged the order ofthe District Court passed in appellate jurisdiction. AWrit Court certainly does not sit as an Appellate Court, and exercises a limited iurisdiction of judicial review while assessing the order of a Court below, l^iance is placed on Rohtash Kumar v. DDA &Ors, 2003 VI AD (Delhi) 245, in this regard.

27. It is argued that the present appeals and writ petitions have no merit, ajnd the impugned orders do not suffer from any illegality and the same are liable to be dismissed. Itis further submitted that the writ petitions - which have been filed against the order ofthe Estate Officer, without first availing the alternate remedy of filing an appeal, are also liable to the dismissed on these grounds as-well. ' • LPA No.479/20If and connectedmatters Page 24 of3'8 t

28. We have given our thoughtful consideration to the rival contentions and have perused the record and considered tlie decisions relied upon by the learned counsels.

29. As aforesaid, learned counsels for the appellants and the writ petitioners have confined their arguments only on two legal issues; firstly that the appellants and writ petitioners were tenants since the inception of the lease granted to the Societies by the DIT under the provisions ofPunjab Tenancy Act, 1887 and Punjab lenants (Security of Tenure) Act, 1950, ^ which were applicable ro the territories ofDelhi, and hence their rights are protected under these Acts and they cannot be evicted under the PP Act., Secondly, the PP Act has no retrospective application.

30. The admitted and undisputed facts are that the leases were created in favour ot the Societies for its members and, therefore, the appellants and writ petitioners can claim their right of occupation in respect of the land in their possession and occupation, only through the Societies'and. therefore, the appellants and writ petitioners in Group 'A' cases are bound by the ordejof this Court in Ri^A No.250/1971 which was disposed of'by this Court in teims of undertaking ofDDA to take action only as per the provisions ofthe PP Act. 'It IS pertinent that the Society agreed to the.undertaking ofDDA and,did not press its appeal. It cannot now turn around and.challenge the action of.DDA under the PP Act while earlier they did not oppose the undertaking ofDDA to resort to the provisions ofthe PP Act for getting them evicted trom the land in their occupation, Alterna.tively, since the appellants/ writ petitioners withdrew their RFA, and the original judgment was against them, Page 25 of3S they are bound by the same. -- However, since the appellants and writ petitioners have raised this plea, wepropose to deal with it on merits as well.'

31. It is an undisputed fact that the land in dispute was Government land when leased out to the Societies. The appellants and writ petitioners have reUed on Section 4(5) of Punjab Tenancy Act, 1887 and argued that the said ' Act applies to Government land as well. The relevant Section reads as' I iv:- "4. Definition -In this Act, unless there issomething repugnant in the subject or context- • (1) XXX XXX XXX (2) XXX XXX XXX. (3) XXX XXX XXX (4) XXX XXX XXX (5) "tenant" means a person M'ho holds land under another person, and is, or butfor a special contract wouldbe, liable to pay rent for that land to that other person: but it does not include- (a) XXX XXX XXX (b) XXX XXX XXX

(c) XXX XXX XXX

Yd) a person who takes from the ^fGovernm.entl a lease of unoccupied land for the purpose of siiblettim it": (emphasis supplied) LPA No.479/2013 and connected matters Page 26 of3S 2018:DHC:9112-DB. From reading theprovision ofSection 4(5)(d) oftire Punjab Tenancy Aot,.t.sapparentthatthisActisnotapplicabletotheleasesexecuted bythe Governnrent rejatitrg to Government unoccupied lands, where the san,e has een allotted fortheputpose ofsub-letting it. It is an undisputed &ct that the and m disputewas unoccupied land, leased outto the Societies lx,ruse ofits members and theSocietieswereprecluded from sub-lettingit.

33. Punjab Tenancy Act, 1887 applies to that part ofthe Union Territory ofDelh. which-has been specified in Schedule-A ofDelhi Laws Act 19P whtch were TehsilofDelhi andpolicestation ofMehrauli andsubsequently 65 more villages were added to this list. No evidence is produced to show.that lands m question formed part of the Tehsil ofDelhi, or was part of pohce station of Mehrauli. or were part of 65 villages which were subsequently added to the list in Schedule-I by aproclamadon issued in

1915. During arguments also our attention was not drawn by the appellants and the writ petitioners to any document to show that lands in question which was property ofUnion Government, was brought into the ambit of provisions of Punjab Tenancy Act, 1887 and Punjab Tenants (Security of Tenui-e) Act, 1950. The operation ofthis Act was extended to that part of land ofthe Union Territory ofDelhi which is mentioned inSchedule-A of the Delh, Laws Act, 1912. Therefore, it is apparent that only the land which was part ofSchedule-A, was governed by the provisions ofPunjab Tenancy Act, 1887 and Punjab Tenants (Security of Tenure) Act. 1950. The appellants and writ petitioners have failed to establish the- fact that the provisions ofPunjabTenancyAct, 1887was extended to the land in dispute, which indisputably belongs to Government ofIndia. The said issue being a mixed question offact and law could, and should have been agitated at the LPA No.479/2013 andconnected maUers Page 27 of38 original stage of the proceedings, which the appellants/ writ petitioners failed to do. It is too late in the day for them to raise the same at this stageandthey cannotbe permitted to do so. The factual groundwork has not been laid by the appellants/petitioners for them to urge that the lands in question are covered by the aforesaid Punjab'Act.

34. Turning to the applicability of the Punjab Tenants (Security of."^-"'lure) Act, 1950 (referred to as Punjab Tenants (ST) Act), we find that even the said Act has no relevance to the present case. As per Section 1(3) ofthe Punjab Tenants (ST) Act, it applies to ''entire land held in Delhi by a landowner except-

(i) the land held byan occupancytenant;

(ii) the land reservedunder theprovisions ofthis Act; or

(iii) if such land, excluding the land held by an occupancy tenant, in aggregate area, does not exceed thepermissible limit'". The expression "landowner" as defined in Section 2(1) of Punjab I tenants (ST)-Act ''means a person defined as such in the Punjab Land Revenue Act, 1887, as applicable to Delhi. " The Punjab Land Revenue Act defines "landowner'' in Section 3(2) as: "landowner does not include a tenant or an assignee of land revenue, but does not include a person to whom a holding has been transferred or an estate or holding has been let in farm., under this Actfor the recovery ofan arrear of land revenue or a sum recoverable as such an arrear and every other person not herein before this clause mentioned M>ho is in possession of an estate or any share orportion thereof or in the enjoyment of anypart oftheprofits ofan estate. " LPA No.479/2013 and connected matters Page 28 of3S /

36. Since the subject land belonging to the Government was leased out to Societies indisputably, the'Societies as per the said definition cannol: be termed as land owners ofthe subject property and the appellants and the writ petitioners cannot betermed as tenants under Punjab Tenants'(ST) Act. j[7]. a perusal ofthe Punjab Land Revenue Act shows that the same is a legislation which primarily seeks to provide for the making and maintenance ol record-of-rights in land, the assessment and collection 'of land revenue and other matters relating to land and the liabilities incident thereto.

38. Section 48 of the Punjab Land Revenue Act, 1887 is the charging provision in respect ofland revenue. The same provides-that: • All land, to whatever purpose applied andwherever situate is liable to the payment ofland-revenue ofthe Government except such land as has been wholly exemptedfrom, that liaMWy by special contract with the Government or by the provisions of any lawfor the time being inforce andsuch landas is included in the village site. Explanation—For the purposes of this sub-section the expression •Village site' shall have the same meaning as is assigned to the expression 'site ofa village' insection 4. (1-A) Notwithstanding anything in subsection (1) land held by any person weather as a sole landowner or as a colandowner in one or more holdings, or as a sole landowner and as a co-landowner in one or more holdings in any estate shall be exemptedfrom the liability to the paym.ent ofland revenue, if- " 39, Land revenue is payable to the Government. It is payable by a land owner. There would be no question olthe Government paying land revenue on its own land, tojtself. Section 48 and other provisions ofthe Act leave LPA /Vo.479/2013 and connectednuitlers ' P(i<^e 29 of38 no manner of doubt that the Government cannot be considered as a land owner for the puiposes of the Punjab Land Revenue Act, 1887. Consequently, the Government cannot be considered as a land owner tor the purposes ofthe Punjab Tenants Act. Pertinently, the definition ofthe "land owner" contained in the Punjab Land Revenue Act excludes a tenant. The appellants/ writ petitioners, at- the highest, are claiming themselves to be • ants since, admittedly, they are not the land owners. Thus, even otherwise, they cannot be treated as land owners within the definition ofthe said expression contained in Section 3(2) ofthe Punjab Land Revenue Act-. It is not even the case oftheappellants/ writ petitioners that they were either subjected to land revenue or that they every paid any land revenue. Thus; the submission ofthe appellants/ writ petitioners that they are covered by the Punjab Tenants (ST) Act has absolutely no merit. It is also pertinent to notethat the protection granted in respect ofthe tenancies covered by Section 5 ofthe Punjab Tenants (ST) Act is not available to a tenant, who fails to pay rent regularly without sufficient cause. As aforesaid, no material has been ced on record by the appellants/ writ petitioners to show as to what was the rent that they were obliged topay as tenants; whether they paid the same,' and; if so, when and how much; Thus, reliance placed by the appellants/ writ petitioners on the Punjab Tenants (ST) Act is misplaced and rejected.

40. The argument of the appellants and writ petitioners, that since the Societies had" sub-leased the property to its members, therefore, they were the tenants ofthe Societies and-their tenancy rights were protected under the State law governing the tenancy rights, has no merit. From the facts on record, it is apparent that the land was allotted to the Societies foi its LPA No.479/2013 and connected matters -, A V members. Ifthe rights ofthe Societies in questionwerenotprotected by the.a.d two Punjab,ACS. the sub-lessees thereunder could obviously not claim ahigher or greater protection. The appellants/ writ petitioners derived their rights only from the two Societies, and thus, their rights.are subject to the limitations which bound the said Societies. Pertinently, tlie appellants and wnt petrtioners have even failed to produce any evidences on record at the appiopnate forum to prove that tliey were paying rent to the Societies or thatthey werethetenants ofthe Societies. Ourattention ishotdrawn to any document which was proved on record to sustain their contention that. md,v.dual tenancy rights were created in favour ofthe appellants and writ petmoners by the DDA. The appellants and writ petitioners have foiled in theirattempttoprovethattheywere tenants onthe landin question.

41. Even the State law which protects the rights ofthe tenants, i.e.. tlie DRC am does notgiveprotection io them, since ittoo excludes government properties, and does not, in any event, apply to open land. •

42. Section 3(a) ofthe DRC Act. 1958 which cat™ into force with effect from 09.02.1959 exempts from its operation the premises belonging to the Government. The same is reproduced as under.shallapllX'•« thisAct (a) to anypremises belongingto the Government <b)to(d)_ XXX XXX XXX"

43. Although the appellants and the writ petitioners have failed to establish their contention that they were the tenants, it is argued ftat in the LPA No. 479/2013 andconnected matters Page 3! of3S case ofDr. Suhas H. Pophale (supra), the Supreme Court has held that the tenancy rights of a person protected under the State Law before the PP Act was passed by the Parliament, do not get extinguished on passing ofthe PP Act. It is also the argument ofthe appellants and writ petitioners that since they were tenants, and not unauthorized occupants on 16.09.1958 when Parliament enforced the PP Act, their rights as. tenants do not get extinguished and any action by the DDA under the said Act is illegal and wiuiout jurisdiction.

44. Learned counsel for the DDA has countered the submission of the appellants/ writ petitioners by placing reliance on Ashoka Marketing (supra), wherein it has been held that in respect ofGovernment properties, the DRC Act has no application and the PP Act has overriding effect.

45. After DD Act came into 'force on 30.12.1957, all the properties belonging to DIT, by virtue of Section 60 of DD Act, came to vest and • governed by the DDA. Therefore, in the year 1957 when the DD Act came force, the-lands in question came to vest in DDA and the property ouminued to be the Government property. As aforesaid. Section 3(a) ofDRC' Act clearly exempts from the operation ofDRC Act any property belonging to the Government.

46. Section 2(e) of the PP Act defines the 'public premises' which reads as under:- "2. Definitions.—In this Act, unless the context otherwise requires— (e) "publicpremises " means— LPA No.479/2013 ami connected matters Page 32 ofSS fo (1) XXX XXX XXX (2) XXX XXX- XXX (3) inrelationtotm[NaUonalCapitalTerritoryofDelhi].-

(i) XXX xxx XXX

Authority, Z be""'"'"'' Goven™e„,,prope,tyfrom the. Obeg,„„:ng..a, evenatthetimewhentheleasewas ereated. ThePPAct became operative with effect from 16 09 195S Ti-. ^ ^958. It empowers the owner ofthe niiseb to get the '\inauthorized oecupants" of the pubhc p.em,ses evtoted through the special meohani™ devised under the PP Act' Secon2(g)ofthePPActdefines '•unauthorised oecupa,ion •as under, prefnises without authority' for such ^ ' the, continmnoe „ occZatL M premises, after the authority'(wheieZyZaZ/ Other mode oftransfer) vnLr.11; ^ ^ ofgrant or any the premises has exDirednrh i f allowed to occupy wh^soexJ. ^ ^'^'-minedforanyreJon

48. On Ifieterihination of the lease nf n..i Government property, all of those who^;^c^ingitbecomeunauthorisedoccr^ants. ^eslpreme oocZIj TT occupatwi] used ipjPP Act and held as under;- LPA No.4^dp andconirectedmatters =S5«2!!£3H^SSSS4SSjax==tea^ ) i; Pr/ffe 33 of38 parts. In the first part the said expression has been defined to mean the occupation by any person of the Public premises without authorityfor 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 M'as permissive a.t 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 determinedfor 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 ofgrant or any other mode oftransfer" in this part ofthe 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." ~(emphasis supplied)

49. Thus, the definition of unauthorized occupants includes any person who had entered into the public premises under an authority given to him; but the said authority either has expired or has been determined.

50. Thus, on determination of the lease by efflux of time, or otherwise, the appellants and writ petitioners became unauthorized occupants occupying the Government land. The Supreme Court Ashoka Marketing: case (supra) even went to the extent of holding thafPP Aet has overriding PClgC 34 Of3H' LPA No.479/2013 mulconnected matters effect in respect of Government lands over State laws dealing with tenancy rights, such as the DRC Act.

51. Reliance placed by the appellants and writ petitioners on Dr. Suhas

Supreme Courttook note ofthe fact that the tenancy, at its inception, was created by aprivate person in respect ofprivate property; which property was subsequently acquired by the Government. However, fects of these cases show that subject properties were Government properties irom the inception, i.e. at the time ofgrant oflease to the Societies, and continued to remain so. Dr. Suhas H. Pophale (supra) is, therefore, not relevant for this reason.

52. There is no dispute to the fact that the lease in favour ofthe Societies stood determined in the year 1967. The claim of the appellant's and the writ petitioner's-^that they were tenants of the Societies, and were paying rent to them was also rejected. The appellants and writ petitioners have also failed to bring to the notice of this Court any evidence to prove their contention that they were tenants under the Societies.. The facts show that the lease was created in favour of the Societies for the use'of its members only and, therefore, on determination of the lease, the Societies as well as the peisons claiming through the Societies became unauthorized occupants of land.

53. The decision in the case Cantonment Board and Anr. (supra.) also does not help the-appellants and writ petitioners. The Supreme Court in this case has clearly held that the provisions of Section 106 and 107 of the LPA No.479/2013 and connected nuuters Page ^5 of IS Transfer ofProperty Act are not applicable in the cases where the premises are covered under the Special Act. The PP Act is Special Act.

54. The appellants and the writ petitioners have also relied on the decision inithe case ofRama Nancl (supra).havepursued the decision in the said case. The question before the Court in that case was, whether the tenant in respect of agricultural land, which was subsequently acquired by the State commentafter 01.02.1955. shall begoverned by theprovisions ofPunjab Security of Land Tenures Act,.1953, and can claim protection by virtue of • Section 16 read with Section 9of the said Act and can avoid ejectment under the provisions of Punjab Tenancy Act, 1887. The Division Bench of Punjab and liaryana High Court, on the facts of that case, held that the • rights ofpetitioners as tenants thereon would not be affected by virtue of. Section 16 ofthe Act The Court had noted Section 16 ofPunjab Security of •' Land Tenures Act, 1953 which was asaving clause, and reads as under "16. Saving oftenanciesfrom effect ofmalafide transfer. Sctve in the case of land acquired by the State Government under any law for the time being in force or by an heir by inheritance, no transfer or other disposition of land effected after the f February. 1955, shallaffect the rights ofthe tenant thereon under this Act. " It was on account of the saving clause, i.e. Section 16 of Punjab • Security of Land Tenures Act, 1953 — which protects the tenants, whose, tenancy was created before 01.02.1955, that the Court gave its decision. The • appellants and writ petitioners have failed to establish their rights as tenant, under the Punjab Security ofLand Tenures Act, 1953. The subject property was always Government property and the appellants/ writ petitioners are ' LPA No.479/2013 andconnected mailers Page36of38 (!'>.1. "T"••"••»«• •«•> IX """"""• •"- 56,^ Admittediy. the eviction orders ofEstate Officers under tlie PP Act agmnst some of the occupants of public premises claiming dieir r.ghts I'ougi Jheei IChuranja Cooperative Miil< Producers Society Limited were up^^edbythe CoordinateBench ofthis Court inS.,, DHan Kaur (supra). m y, tie eviction orders passed under the PP Act by'Estate Officers against some of the occupants of public premises, claiming their rights ougi elhi Peasants Cooperative Multipurpose Society Lim.ted, vver. uphe by the Coordinate Benchofthis Court inBrljPal(supra) inLPA NO. 81 OlS, decided on,7.n.20I[5]. These two orders ofCoordinate Benches 0 his Court-m respect ofproperty allotted toJheel Khuranja Cooperative Y roducers Society Limited and Delhi Peasants Cooperative Multipurpose socles Limited relate to the same properties which were alotted under the same agreements to these Societies, though were in oecupation of some other members of these Societies (other than the appellants and the writ petitioners before us), are binding on us on the pnncples of constructive resJud.cata and also on the principle that the similarlyplaced persons should be treated alike. The appellants and the wr.t petitioners before us are similarly placed persons and the earlier findings given in respect ofsimilarlyplaced persons are also binding onthem LPA No.479/20l[3] aml connected mattars Page 37 of3S •e

57. Thus, we find no illegahty or infirmity in the impugned orders. The appeals and the writ petitions have no merit and are hereby dismissed along with the pending applications with no order as to costs.

58. Interim orders dated 23d[2].2013 and 03.01.2017 stand vacated. The. appellants and the writ petitioners and any person claiming through them are hereby directed to vacate the land in their occupation and deliver possession ^ji^in aperiod oftwo weeks from today. Ifthey fail to do so, they can beevicted by the respondents thereafter by resort to coercive methods.

JANUARY 31, 2018 DEEPA SHARMA (JUDGE)

VIPIN SANGHI (JUDGE) Page 38 of3S