TMI Blog2016 (4) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... e rent after 10.8.1968, in respect of property in question and after accepting certain sums in respect of the same, subsequently, for change of the property in question from leasehold to freehold are all irrelevant aspects for the reason that the same are contrary to the aforesaid provisions of the DD Act, the Nazul Land Rules applicable to the fact situation and the terms and conditions of the lease deed. Further, it is clear from the contents of the termination notice dated 01.09.1972 served upon the original lessee by the DDA that it has not only refused to renew the lease of the property but also asked the original lessee to hand over the possession of the property in question within 30 days, which is absolutely in consonance with Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The grant of perpetual injunction by the Trial Court in favour of original lessee, restraining the DDA from taking any action under the said termination notice dated 01.09.1972, on the ground that the termination notice dated 01.09.1972 being illegal, arbitrary and without jurisdiction and the affirmation of the same by both the first appellate court, i.e., by the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhatia For the Respondent : C. S. Vaidyanathan, Sr. Adv., Anuradha Mukherjee, Nikhil Nayyar, Shreya S., Dhananjay Baijal, N. Sai Vinod JUDGMENT V. Gopala Gowda, J. 1. Leave granted. 2. This appeal by special leave is directed against the impugned judgment and order dated 31.05.2011 passed by the High Court of Delhi at New Delhi in RSA No. 6 of 1983, wherein the High Court has dismissed the second appeal filed by the Appellant-Authority (hereinafter called DDA ) holding that acceptance of rent, in the instant case, by the DDA pursuant to a demand made by it amounts to a renewal of lease in respect of the property in question. 3. Brief facts are stated hereunder to appreciate the rival legal contentions urged on behalf of the parties: The Delhi Improvement Trust vide lease deed dated 06.01.1951 granted lease of plot No. 2, Jhandewalan, E Block, Delhi in favour of original lessee Balraj Virmani. After enactment of the Delhi Development Act, 1957, the DDA was constituted by notification of the Central Government and by virtue of Section 60 of the aforesaid Act, all properties, movable or immovable, vested in the Delhi Improvement Trust came to be vested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of Clause 1(xv)(c) of the lease deed. By the said notice, 15 days time was given to the original lessee to remedy the breaches as pointed out in the show cause notice. The original lessee replied to the said show cause notice through various communications dated 01.03.1968, 26.06.1968 and 01.07.1968. However, no further communication was issued by the DDA in this regard. 6. The DDA vide notice dated 01.09.1972 terminated the lease of the said land on account of non-observation of the terms and conditions contained in the lease deed. 7. Aggrieved by the decision of the DDA, the original lessee filed original suit for perpetual injunction bearing No. 47 of 1975 before the Sub-Judge, Delhi seeking restraining order against the DDA. The learned Sub-Judge vide judgment and order dated 07.03.1981 decreed the said suit in favour of the original lessee. The learned Sub-Judge has found notice dated 01.09.1972 of the DDA to be arbitrary, illegal and without jurisdiction. 8. Aggrieved by the decision of the learned Sub-Judge, the DDA preferred the First Appeal vide RCA No. 75 of 1982 before the Court of Additional District Judge (ADJ), Delhi. The learned ADJ vide judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the lease deed and thus, not entitled to the renewal of the same in his favour. 13. It was further contended by the learned Counsel that the High Court has erred in not appreciating that both the courts below have proceeded on wrong interpretation of Clause III (b) of the lease deed dated 06.01.1951 that the lease was unilaterally renewable at the option of the lessee in respect of the leased property in favour of the original lessee. 14. The learned Counsel further contended that after the admission of the breaches, in respect of terms and conditions set out in the lease deed referred to supra, by the original lessee as pointed out in the show cause notice dated 16.02.1968, the same was not condoned by the DDA. In such a situation it is not right on the part of the trial court, the first appellate court and the High Court to hold that there was automatic renewal of the lease of the property in question only for the reason that the rent was deposited by the lessee in the office of the DDA. 15. It was further contended by the learned Counsel that the High Court has failed to appreciate that the original lessee created an interest in the said property, in favour of third ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arises for consideration of this Court in exercise of its appellate jurisdiction. It was further submitted by him that in the instant case, the DDA issued show cause notice dated 16.02.1968 to the original lessee informing him of four breaches of terms and conditions contained in the lease deed allegedly committed by him. The original lessee made detailed replies to the said notice vide communications dated 01.03.1968, 26.06.1968 and 01.07.1968. The DDA after receiving the replies from the original lessee neither communicated nor took any action to take the possession of the property in question and therefore, the conclusion that the DDA was satisfied with the replies made by the original lessee can be safely arrived at. In fact, the demand of rent by the office of the DDA on 03.10.1969 was immediately acceded. It was further submitted that in view of the aforesaid it can be safely concluded that after the expiry of the first term of the lease and acquiescence of the DDA in letting the original lessee to continue in possession of the said property, the lessee became a tenant at will in respect of the said property. Therefore, the impugned judgment and order passed by the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng as provided under Clause III(b) of the lease deed, by virtue of payment of rent in the office of the DDA? 2. Whether the Respondent herein acquires any right in respect of property in question by getting substituted in place of the original lessee by virtue of a compromise decree, between the original lessee and the Respondent, based on a sale deed dated 14.10.1998 executed by the original lessee, by invoking Order 22 Rule 10 of the Code of Civil Procedure during the pendency of the appeal before the High Court? 3. What order? Answer to Point No. 1 23. After careful examination of the material facts and evidence on record it is clear that on the basis of the admitted facts, the lease of the property in question is not renewed by the DDA in favour of the original lessee, in accordance with Clause III(b) of the lease deed dated 06.01.1951. From a reading of the said lease deed it becomes very clear that the original lease period was initially for a period 20 years, which period expired on 10.08.1968 as the lease period commenced w.e.f. 11.08.1948. No doubt, the original lessee availed his option of the renewal of lease as provided in the lease deed by making a reques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absence of agreement to the contrary, for subsequent months where lessee continues to occupy lease premises cannot be said to be conduct signifying assent on its part. The relevant paras 18 and 19 of the case are extracted below: 18. We fully agree with the High Court and the first appellate court below that on expiry of period of lease, mere acceptance of rent for the subsequent months in which the lessee continued to occupy the lease premises cannot be said to be a conduct signifying assent to the continuance of the lease even after expiry of lease period. To the legal notice seeking renewal of lease, the lessor gave no reply. The agreement of renewal contained in Clause (7) read with Clause (9) required fulfilment of two conditions: first, the exercise of option of renewal by the lessee before the expiry of original period of lease and second, fixation of terms and conditions for the renewed period of lease by mutual consent and in absence thereof through the mediation of local mukhia or panchas of the village. The aforesaid renewal Clauses (7) and (9) in the agreement of lease clearly fell within the expression agreement to the contrary used in Section 116 of the Tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the event of termination of lease the practice followed by the courts is to permit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to the monthly rent payable by the tenant. It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there be any other evidence to prove or establish that the landlord so intended... (Emphasis supplied by this Court) 25. Further, in the case of Ashoka Marketing Ltd. and Anr. v. Punjab National Bank and Ors. (1990) 4 SCC 406, wherein the question for consideration was whether the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 overrides the provisions of Delhi Rent Control Act, 1958, the Constitution Bench of this Court after interpretation of the relevant provisions of both the Acts has clearly held that the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 must prevail over the Rent Control Act. The relevant paras 55 and 70 of the decision read thus: 55. The Rent Control Act makes a departure from the general law regulating the relationship of landlord and tenant contained in the Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by the landlord. Thus, in the light of the aforesaid case law, it can be concluded that the Transfer of Property Act, 1882 is not applicable in respect of the public premises. The property in question is public premises by virtue of Section 2(e) (3)(ii) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, which is reproduced hereunder: 2(e) public premises means- (3) in relation to the [National Capital Territory of Delhi]- (ii) any premises belonging to the Delhi Development Authority, whether such premises are in the possession of, or leased out by, the said Authority;.... Therefore, in the instant case, as per Clause III(b) of the lease deed and Sections 21 and 22 of the DD Act read with Rule 43 of the Nazul Land Rules and in the light of Shanti Prasad Devi, Sarup Singh Gupta and Ashoka Marketing Ltd. cases (supra), there cannot be an automatic renewal of lease in favour of the original lessee once it stands terminated by efflux of time and also by issuing notice terminating the lease. Merely accepting the amount towards the rent by the office of the DDA after expiry of the lease period shall not be construed as renewal of lease of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our of the original lessee. Therefore, the concurrent findings of the courts below on the contentious issue in the impugned judgment are not only erroneous but also error in law and hence, the same cannot be allowed to sustain in law and liable to be set aside. 28. From the above discussion, it is clear that in the absence of renewal of lease, the status of the original lessee, in relation to the property in question, is that of an unauthorised occupant as he had continued in occupation of the property in question as an 'unauthorized person' in terms of Section 2(g) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, which reads as under: 2(g) unauthorised occupation , in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. 29. In the absence of renewal of lease after 10.8.1968, the pleadings of the ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de of Civil Procedure for the reason of execution of sale deed dated 14.10.1998 by the original lessee in favour of the Respondent by entering into compromise between them in Suit No. 601 of 1984 is also bad in law. The sale of the property in question to give effect to the compromise decree in aforesaid suit is void ab initio in law for the reason that the original lessee, in the absence of renewal of lease in his favour himself had no right, title or interest, at the time of execution of sale deed, in respect of the property in question. It is well settled position of law that the person having no right, title or interest in the property cannot transfer the same by way of sale deed. Thus, in the instant case, the sale of the property in question by the original lessee in favour of the Respondent is not a valid assignment of his right in respect of the same. For the aforesaid reasons, the sale deed is not binding on the DDA. The High Court has failed to appreciate this important factual and legal aspect of the case. 33. The contention urged by the learned senior Counsel for the Respondent that it has deposited a sum of ₹ 96,41,982/- as conversion charges of the property i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar facts and circumstances of the case we have to allow this appeal of the DDA. Since we have answered the points framed in this appeal in favour of the Appellant-DDA, we further, direct the DDA to take possession of the property immediately without resorting to eviction proceedings, as the Respondent has been in unauthorised possession of the property in question, by virtue of erroneous judgments passed by the courts below. The Respondent has been unlawfully enjoying the public property which would amount to unlawful enrichment which is against the public interest. 35. For the aforesaid reasons this appeal is allowed, the impugned judgment and decree of the High Court affirming the judgments and decrees of the First Appellate Court and the Trial Court in RCA No. 75 of 1982 and OS No. 47 of 1975 respectively, is hereby set aside. Accordingly, We pass the following order- A. The DDA is allowed to take the possession of the property in question immediately and dispose of the same in accordance with the provisions of the DD Act read with the relevant Rules in favour of an eligible applicant by conducting public auction, if it intends to dispose of the property. B. The DDA is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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