RAJIV SAHAI ENDLAW,J - (1.) THIS intra court appeal impugns the order dated 30 th October, 2012 of the learned Single Judge of dismissal of WP(C) 5011/2010 preferred by the appellant. The said writ petition was preferred impugning the legal notice dated 14th June, 2010 issued by the advocate for the respondent no.1 ITDC to the appellant of termination of the Lease Agreement of property No. C -119 Naraina Industrial Area, Phase 1, New Delhi with the petitioner and the consequent notice dated 1st July 2010 issued by the respondent No.2 being the Estate Officer of the respondent No.1 to the petitioner under Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (PP Act). The appellant by the said writ petition also sought to prohibit the respondents from evicting the appellant from the said property and further sought mandamus directing the respondents to allow the appellant to continue carrying on its business from the said property.
(2.) THE learned Single Judge did not agree with the contention of the appellant that the proceedings under the PP Act were not maintainable owing to the existence of an arbitration clause in the lease agreement between the appellant and the respondent No.1 ITDC and further held that once the jurisdictional barrier is removed, there is no justification to halt the PP Act proceedings at the very inception and thus dismissed the writ petition but nevertheless held that any observations made in the said order on the merits of the disputes raised except jurisdictional dispute will not come in the way of final adjudication of the issues raised. The factual controversy insofar as relevant for dealing with the contentions raised before us is as under: (i) the respondent No.1 ITDC is the perpetual lessee of the land underneath the aforesaid property at Naraina Industrial Area, Phase - 1 and has constructed a workshop thereon; (ii) the respondent No.1 ITDC sublet the property to the appellant in or about the year 1988; and (iii) that the sub -lease between the appellant and the respondent No.1 was extended from time to time, lastly by a registered sub -lease agreement dated 19th February, 2002 for a period of nine years w.e.f. 1 st February, 2002 and expiring on 31st January, 2011 and with the appellant being entitled to renewal of sub -lease for a further period of nine years from 1st February 2011 to 31st January, 2020. Clause 17 of the said sub lease was as under: 17. All disputes and differences arising out or in any way touching or concerning this sub -lease agreement except those the decision whereof its otherwise herein before expressly provided for or to which the Public Premises (Eviction of Unauthorised Occupants) Act and the Rules framed thereunder which are now in force or which may hereafter come in to force are applicable shall be referred to a tribunal of three arbitrators one to be appointed by the Lessee and the second by the sub -Lessee and third by both arbitrators in accordance with the provisions of the Arbitration and Conciliation Act, 1996 and any statutory modification or re -enactment thereof shall apply to such arbitration. The award of the Arbitrator so appointed shall be final and binding on both parties. The Arbitration and Conciliation Act, 1996 and the amendments made therein from time to time shall be applicable. The venue of Arbitration shall be at Delhi. The Rules and Procedures of Indian Council of Arbitration shall apply to the arbitration proceedings. The respondent No.1 ITDC vide legal notice dated 14th June, 2010 (iv) (supra) determined the sub -lease in favour of the appellant averring breaches/violations by the appellant in the form of making additions and additional construction in the property without the consent and authority of the respondent no.1 ITDC. (v) The appellant not only replied to the aforesaid notice controverting the contents thereof but also on 29th June, 2010 invoked the arbitration clause aforesaid in the sub -lease and nominated its arbitrator and called upon the respondent No.1 ITDC to nominate its arbitrator. (vi) The respondent No.1 ITDC however did not nominate any arbitrator and on the contrary the respondent No.2 Estate Officer of the respondent No.1 ITDC issued the impugned notice to the appellant under Section 4 of the P.P. Act. (vii) The appellant on the contrary, on the failure of the respondent No.1 ITDC to nominate its arbitrator, filed Arbitration Petition No. 33/2011 in this Court under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment by the Chief Justice of the nominated arbitrator on behalf of the respondent No.1 ITDC. (viii) It appears that the respondent No.1 failed to appear on 23rd May 2011 when the aforesaid arbitration petition was listed and in the absence of the respondent No.1 ITDC this Court disposed of the said petition appointing the arbitrator on behalf of the respondent No.1 ITDC. (ix) The respondent No.1 ITDC thereafter applied for setting aside of the order dated 23rd May, 2011 in the Arbitration Petition No. 33/2011 and the matter was reconsidered on merits and disposed of vide order dated 29 th September, 2011. (x) It was the contention of the respondent No.1 ITDC in opposition to the said Arbitration Petition that the issues for the determination of which arbitration was invoked were clearly beyond the jurisdiction of arbitration and they fell exclusively within the jurisdiction of the Estate Officer appointed under the PP Act. This Court in order dated 29th September, 2011 supra held that the issue (xi) which arose for determination was the validity of the lease termination notice dated 14th June, 2010; that to determine the said issue it would be necessary to determine whether the appellant had breached the terms of the sub -lease deed; the said issue could be determined only by the Estate Officer under the Act and by no other authority including by the Arbitral Tribunal. It was however held that the Estate Officer could not determine whether the respondent no.1 ITDC had violated the terms of the sub -lease deed dated 19th February, 2002 and the appellant had suffered loss and harassment due to the same and for which the respondent No.1 ITDC was liable to compensate the appellant and whether the appellant was entitled to enforce its rights to seek renewal of sub -lease. However it was observed that the decision on the said aspect would depend upon the determination of the issue whether or not the termination notice dated 14th June, 2010 was valid or not. Accordingly this Court held that the Arbitral Tribunal was presently only to determine whether the respondent no.1 ITDC had violated the terms and conditions of the sub -lease dated 19th February, 2002 and the appellant had suffered loss and harassment due to the same and for which the respondent No.1 ITDC was liable to compensate the appellant and that the aspect of specific performance could be determined only after the decision of the Estate Officer. (xii) The appellant has preferred SLP (Civil) No. 5373/2012 against the aforesaid order dated 29th September, 2011 of this Court in Arbitration Petition No.33/2011 and in which notice has been issued by the Supreme Court but there is no interim order.
(3.) THE Senior Counsels for the appellant have argued ­ A. that Section 3(b) of the PP Act requires categorization of Public Premises in respect of which the Estate Officers are to exercise power; B. that the Government of India has vide Resolution No.21013/2000 dated 30th May, 2002 published in Gazette of India on 8th June, 2002 issued guidelines to prevent arbitrary use of powers to evict genuine tenants from public premises under the control of Public Sector Undertaking / Financial Institutions and which guidelines prescribe that a contractual agreement shall not be wound up by taking advantage of the PP Act and the Public Authorities would have rights similar to private landlords under the Rent Control Act in dealing with the genuine legal tenants and the provisions of the PP Act should be used primarily to evict totally unauthorized occupants of premises of Public Authorities; thus invocation of the PP Act by the respondent against the appellant is contrary to the said guidelines; C. that the guidelines aforesaid are issued in exercise of powers under Section 3(b) of the PP Act and are thus statutory in nature; D. reliance is placed on para 6 of Syndicate Bank Vs. Ramachandran Pillai 2011 (1) SCALE 368 holding that the authorities concerned are bound to keep the said guidelines in view, to the extent possible; E. that the notice under Section 4 of the PP Act issued by the respondent no.2 Estate Officer is without application of mind and does not even give grounds required to be given statutorily; it is argued that though this ground was urged before the learned Single Judge but has not been considered; F. reliance is placed on New India Assurance Company Ltd Vs. Nulsi Neville Wadia (2008) 3 SCC 279 laying down in para 25 that the Estate Officer is obligated to apply his mind to form an opinion that the respondent is a person who has been in unauthorized occupation of the public premises and that he should be evicted; reliance is also placed on Minoo Framroze Balsara Vs. Union of India AIR 1992 Bombay 375 laying down in para 34 thereof that prima facie satisfaction of the Estate Officer is a sine qua non for the issuance of the show cause notice and the notice must set out the ground on which the order of eviction is proposed to be made and that addressee cannot effectively show cause unless he knows why the Estate Officer is of the opinion that he is in unauthorized occupation and why his eviction is proposed; G. reliance in this regard is also placed on Naseeruddin Vs. State of Andhra Pradesh but which merely follows Nulsi Neville Wadia (supra). H. that the question whether the validity of the termination notice dated 14th June, 2010 and the liability of the appellant to eviction thereunder is to be adjudicated by the respondent No.2 Estate Officer or by the Arbitral Tribunal is pending consideration before the Supreme Court and since the appellant at the stage of approaching the Supreme Court did not need to apply for any stay, no interim order was sought from the Supreme Court; I. that the learned Single Judge has not dealt with the aspect of the proceedings before the Estate Officer being not maintainable in view of the Guidelines aforesaid and the challenge to the validity of the notice under Section 4 of the PP Act for the reason of the same not furnishing the grounds statutorily required to be furnished; J. that the judgment of the Division Bench of this Court in Escorts Heart Institute and Research Centre Ltd. Vs. DDA AIR 2008 Delhi 70 relied upon by the learned Single Judge has been stayed by the Supreme Court; K. that wherever there is a Government grant, the PP Act cannot apply; L. that the respondent No.1 ITDC by its conduct, express and implied allowed the appellant to raise construction of a permanent nature on the property and the said construction raised by the appellant itself cannot be public premises - -such construction was raised after obtaining sanction from the DDA; M. that the learned Single Judge erred in observing that para 87 of the judgment of the Supreme Court in Express Newspapers Pvt. Ltd. Vs. Union of India AIR 1986 872 is per incuriam in view of the Division Bench decision of this Court in LPA 976/2004 titled DDA Vs. M/s Ambitious Gold Nib Mfg. Co. Pvt Ltd. rendered on 21st February, 2006. It is contended that the Single Judge could not have held the judgment of the Supreme Court to be per incuriam; N. that the action of the respondent No.1 are in breach of trust; O. reliance is placed on paras 14,15 and 19 of Whirlpool Corporation Vs. Registrar of Trade Marks (1998) 8 SCC 1 laying down that availability of alternative remedy is not a bar to exercise of jurisdiction under Article 226 of the Constitution of India where the proceedings are wholly without jurisdiction or ultra vires of an Act. ;