Dr. Shekhar Shah vs Government Of Maharashtra on 19 April, 2016

[Cites 11, Cited by 2]

Delhi High Court

Dr. Shekhar Shah vs Government Of Maharashtra on 19 April, 2016

Equivalent citations: 2016 AIR CC 1916 (DEL), (2016) 164 ALLINDCAS 583 (DEL), 2016 (3) ADR 694, (2016) 230 DLT 145, (2016) 2 RENTLR 449, (2017) 1 RENCR 166

Author: Rajiv Sahai Endlaw

Bench: Rajiv Sahai Endlaw

*IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 19th April, 2016

+ W.P.(C) No.4020/2014 & CM.No.8078/2014
DR. SHEKHAR SHAH ..... Petitioner
Through: Mr. Kamal Mehta, Adv.

Versus

GOVERNMENT OF MAHARASHTRA ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This petition under Article 226 of the Constitution of India impugns the

show cause notice dated 23rd June, 2014 of the respondent to the petitioner

under Section 4(2)(b)(ii) of the Public Premises (Eviction of Unauthorized

Occupants) Act, 1971 (PP Act) with respect to Kum Kum Bungalow and the

open portion of land appurtenant thereto at the north-east corner of Sirmur plot,

forming part of and within the boundaries of New Maharashtra Sadan,

Kasturba Gandhi Marg, 7, Faridkot House Lane, Copernicus Marg, New Delhi

and seeks quashing thereof.

2. Notice of the petition was issued and vide order dated 2nd July, 2014, the

impugned notice stayed. Counter affidavit was filed by the respondent; though

the petitioner availed of opportunity to file rejoinder but no rejoinder was filed.

W.P.(C) No.4020/2014 Page 1 of 21
None appeared for the respondent when the matter came up on 24 th August,

2015. However considering that ordinarily writ petitions at the show cause

notice stage are not entertained and that the petitioner was also enjoying stay of

proceedings pursuant to the show cause notice under PP Act, it was not

deemed appropriate to await the counsel for the respondent and the counsel for

the petitioner was heard and judgment reserved with liberty to the counsels to

file written arguments. Though the counsel for the petitioner has filed written

arguments also, the counsel for the respondent has not done so also.

Notwithstanding the anxiety shown by me on 24th August, 2015, on account of

remaining busy in other work, judgment remained to be pronounced.

3. It is the case of the petitioner i) that the property under dispute i.e. Kum

Kum Bungalow, 7 Faridkot House Lane, Copernicus Marg, New Delhi is

owned, occupied and possessed by the petitioner and has been in the ownership

and possession of predecessor in interest viz. Sh. Harin J. Shah of the petitioner

who occupied and possessed the same since 1940 through Maharaja

Pratapsinhrao Gaekwad, this being the Maharaja's personal property; ii) that

ownership of Late Sh. Harin Shah was recognized by the Maharaja and his

successors and the New Delhi Municipal Committee was also directed to

collect property tax from Late Sh. Harin J. Shah; iii) that the property tax,

W.P.(C) No.4020/2014 Page 2 of 21
water and electricity dues were accordingly raised in the name of Late Sh.

Harin Shah and continued to be so without interruption; iv) that there have

been unsuccessful legal claims for possession of the property by Union of India

(UOI) and the State of Gujarat, which claims were withdrawn on the ground of

non-clarity of title of UOI and the State of Gujarat; v) that liberty sought by the

UOI and the State of Gujarat from the Court to re-present the claim was never

availed; vi) that the UOI through the Ministry of Housing, Government of

India replied on the very floor of Parliament viz. Rajya Sabha, in reply to

unstarred question No.1296 on Wednesday, the 11th December, 1974, that the

disputed property / premises did not belong to the UOI; vii) that the matter

with regard to the same property is pending adjudication in CS(OS)

No.1193/2008 titled State of Maharashtra Vs. Harin Shah for the reliefs of

declaration of title, possession and damages and in which suit Issues had been

framed on 1st August, 1996; viii) that while the title to the property in question

is pending adjudication in the suit, it is totally and completely gross abuse of

the provisions of the PP Act to have issued notice thereunder; ix) that thus the

impugned notice is without jurisdiction; x) that by invoking PP Act, process of

law in the civil Court cannot be bypassed; xi) that the notice is without

jurisdiction since the premises are not public premises; and, xii) that the Estate

W.P.(C) No.4020/2014 Page 3 of 21
Officer is not competent to decide the issue of title which has not been

adjudicated by the Civil Court till now.

4. The petitioner along with the writ petition, besides impugned notice, has

filed only copies of pleadings in the suit aforesaid.

5. The respondent in its counter affidavit, besides taking the plea as to the

maintainability of the writ petition against a show cause notice citing Special

Director Vs. Mohd. Ghulam Ghouse (2004) 3 SCC 440, Executive Engineer,

Bihar State Housing Board Vs. Ramesh Kumar Singh AIR 1996 SC 691, has

contended that the petition is also not maintainable because of the alternative

efficacious remedy of contesting the show cause notice and if remaining

aggrieved preferring appeal to the District Judge under Section 9 of the PP Act

being available and citing Harbans Lal Sahnia Vs. Indian Oil Corporation

Ltd. (2003) 2 SCC 107, denied the factual pleas in the petition.

6. The counsel for the petitioner though at the time of hearing did not cite

any case law, in the written arguments has relied on:

(a) DCM Ltd. Vs. Delhi Development Authority 2013 (136) DRJ 688

to contend that having regard to the limited nature of jurisdiction

of Estate Officer, bona fide title disputes cannot be gone into

under the PP Act;

W.P.(C) No.4020/2014 Page 4 of 21
(b) State of U.P. Vs. Amar Singh (1997) 1 SCC 734 to contend that

merely because the respondent State of Maharashtra had got the

property mutated in its name does not make it a public premises as

mutation does not confer title;

(2010) 9 SCC 437 to contend that 'malice-in-law' of the

respondent is evident from the respondent in its counter affidavit

having not disclosed how it has title to the property; and,

(d) Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai

(1998) 8 SCC 1 to contend that notwithstanding the availability of

alternate remedy, writ petition can be entertained.

7. I have considered the rival contentions.

8. Though the Constitution Bench of the Supreme Court in Ashoka

Marketing Ltd. Vs. Punjab National Bank (1990) 4 SCC 406 had held that

there being no requirement in the PP Act of the Estate Officer being a person

well versed in law cannot by itself be a ground for holding that the question

whether a lease had been determined or not involving complicated questions of

law could not be decided by the Estate Officer and I have on the basis thereof

in Ocean Plastics and Fibres (P) Ltd. Vs. Delhi Development Authority 187

W.P.(C) No.4020/2014 Page 5 of 21
(2012) DLT 359 LPA No.415/2012 whereagainst has been dismissed as

withdrawn on 28th May, 2012 interpreted the same as not excluding from the

purview of Estate Officer under the PP Act matters relating to validity of

determination of lease but the Division Bench of this Court in DCM Ltd. supra

held that mere issuance of a notice under Section 4 of the PP Act would not

divest a Civil Court from exercising its jurisdiction where the noticee seeks a

declaration of his title to the property. It was further held by the Division

Bench that the summary procedure available to the government under the PP

Act could not oust the jurisdiction of the Civil Court to examine questions

pertaining to title claimed by an unauthorized occupant in the Civil Court and

that the summary remedy of eviction under the PP Act can be resorted to by the

government only against the persons who are in unauthorized occupation of

any land which is the property of the government but if there is a bona fide

dispute regarding the title of the government to any property, the government

cannot take a unilateral decision in its own favour that the property belongs to

it and on the basis of such decision take recourse to the summary remedy

provided under the PP Act for evicting person who is in possession of the

property under a bona fide claim or title. It was further held that the summary

W.P.(C) No.4020/2014 Page 6 of 21
remedy under the PP Act is not the kind of legal process which is suited to an

adjudication of complicated question of title.

9. It is thus not as if according to DCM Ltd. supra also, whenever a person

to whom a notice under Section 4 of the PP Act is issued disputes that the

premises are public premises or the title of the government or the public

authority thereto and sets up title in himself or in some other person that the

proceedings before the Estate Officer would not be maintainable. If such a

view were to be taken, the same would make the PP Act redundant inasmuch

as all noticees would raise such a dispute and upon mere raising whereof the

Estate Officer would be compelled to abandon the proceedings. It is only

where the dispute is found to be bona fide and requiring adjudication of

complicated questions of title, would the Estate Officer restrain himself from

adjudicating thereon and / or upon being approached the Court would

intervene.

10. Though from a mere filing of a civil suit for possession by the

respondent prior to the initiation of proceedings under the PP Act, it may

appear that the present case would fall in the category where this Court should

allow this petition by striking down the notice under the PP Act leaving the

question of title to be adjudicated in a already pending suit but on a reading of

W.P.(C) No.4020/2014 Page 7 of 21
the writ petition, the facts pleaded wherein have been succinctly set out in para

no.3 hereinabove, to me, it appears that there is no bona fides dispute raised by

the petitioner or any complicated question of title to be adjudicated. I thus

proceed to examine the pleadings in the pending suit which as aforesaid are

annexed to the petition.

11. It is the case of the respondent State of Maharashtra which is the

plaintiff in the suit:-

(i) that the Sirmur Plot on Kasturba Gandhi Marg, New Delhi

admeasuring about 6 acres belonged to the Government of India

and was originally allotted to the Sirmur Durbar but as the Sirmur

Durbar did not undertake the construction thereon within the

stipulated time, the allotment was cancelled and the plot was re-

allotted to Baroda Durbar in the year 1935; however even after re-

allotment to Baroda Durbar, the plot continued to be known as

Sirmur Plot;

(ii) that on the merger of Baroda State with the Dominion of India, the

aforesaid plot including the two buildings thereon vested in the

Dominion of India under the Baroda Merger Agreement dated 25 th

March, 1949 as the same was held to be State property;

W.P.(C) No.4020/2014 Page 8 of 21
(iii) that later, by virtue of the States Merger (Governors' Provinces)

Order, 1949 made under Section 290A of the Government of India

Act, 1935, the said property vested in the then Province of

Bombay and from the commencement of the Constitution of

India, it vested in the State of Bombay and on the enactment of

Bombay Re-organisation Act, 1960 became the property of the

State of Maharashtra;

(iv) that the petitioner is in occupation of the Staff Quarters measuring

420 sq. yds. situated on a portion of the aforesaid plot along with

open space surrounding the same and together which is called by

the petitioner as Kum Kum Bungalow, admeasuring 1100 sq. yds.

since before 1st May, 1960;

(v) that the State of Bombay which was the owner of the property

prior to 1st May, 1960 had not authorized the petitioner to occupy

the property; thus the possession of the petitioner on the property

has all along been unauthorized and wrongful;

(vi) that the petitioner started wrongfully asserting himself as the

owner;

W.P.(C) No.4020/2014 Page 9 of 21
(vii) that the Government of Maharashtra vide letter dated 28th April,

1978 asked the petitioner to vacate the property;

(viii) that accordingly the suit was filed for declaring the State of

Maharashtra as the owner of the property in possession of the

petitioner and for recovery of the possession of the said property

from the petitioner with mesne profits / damages for use and

occupation thereof;

12. The petitioner is contesting the said suit pleading:

(a) that the Sirmur Plot is the personal property of Maharaja

Pratapsinhrao Gaekwad and State of Maharashtra has no right

thereto;

(b) that no claim could be made or was made against the private

property of the Ruler under the Recognisation of States Act, 1956;

to be taken over by UOI;

(d) that the portion occupied by the petitioner is different from

Baroda House;

(e) that the petitioner is in continuous and uninterrupted occupation of

the said property from 1945;

W.P.(C) No.4020/2014 Page 10 of 21
(f) that the petitioner had obtained right, title and interest in the said

property which was the personal property of Maharaja

Pratapsinhrao Gaekwad from the Maharaja in consideration of

advice and services rendered and the petitioner was put in

possession of the property;

(g) that the Controller of Household of the Maharaja Pratapsinhrao

Gaekwad informed the New Delhi Municipal Committee to

collect house tax thereafter from the petitioner as owner;

(h) that the Ministry of States of the Government of India had not

even claimed the said property; and,

(i) that Sh. Fatehsinhrao vide letter dated 3rd April, 1973 to Sh. Harin

Shah, father of the petitioner had confirmed that the said property

was given to the father of the petitioner by Maharaja

Pratapsinhrao Gaekwad.

13. What immediately stands highlighted on reading of the writ petition and

the written statement of the petitioner in the pending suit is that the petitioner

does not claim any registered document of title to the property in his favour.

Without any registered document, the right even if any created in favour of the

W.P.(C) No.4020/2014 Page 11 of 21
petitioner by the erstwhile Maharaja Pratapsinhrao Gaekwad with respect to

immovable property would be as a licensee and not as owner.

14. The mainstay of the case of the petitioner is that the said property was

the personal property of the Maharaja and thus did not become the property of

the UOI and of the State of Maharashtra. What the petitioner is disputing is the

title of the respondent to the property without disclosing any lawful title in his

own favour with respect to the property.

15. I have wondered the locus of the petitioner to dispute the title of the

respondent to the property or to claim the property to be not of State of

Maharashtra but of erstwhile ruler of Baroda State. The challenge if any to the

title claimed by the respondent to the property has to be by the heirs of

Maharaja Pratapsinhrao Gaekwad and cannot be by the petitioner.

16. From the aforesaid it becomes evident that the dispute raised by the

petitioner is not bona fide. This becomes further evident from the fact (i) that

the lease of the entire plot of land, of which a portion is in possession of the

petitioner, was granted by the Government of India first to the Sirmur Durbar

and thereafter to Baroda Durbar; (ii) on the major portion of the said plot of

land the New Maharashtra Sadan has been constructed and is in possession of

State of Maharashtra; (iii)it is obvious therefrom that Maharaja Pratapsinhrao

W.P.(C) No.4020/2014 Page 12 of 21
Gaekwad or his heirs have not claimed and /or are not claiming the subject plot

of land to be their personal property and have no dispute with the same being

the property of the State of Maharashtra; (iv) when Maharaja Pratapsinhrao

Gaekwad or his heirs have no claim to the property, the petitioner claiming

rights under them in a portion of the property that too by an unregistered

document, cannot dispute the title of the State of Maharashtra on the ground of

the same being the personal property of the Maharaja and having thus not

become State property and the dispute raised by the petitioner is a mere sham

and a facade to perpetuate his illegal possession of the property. In fact such

disputes with respect to the properties of erstwhile princely state and entailing

the question whether the properties were the State properties or the personal

Properties of Maharaja have been subject matter of several litigations the last

of which came up before the Supreme Court in State of Madhya Pradesh Vs.

Maharani Usha Devi (2015) 8 SCC 672 where also the claim of the property

being private property of the erstwhile ruler was negatived. The Supreme Court

in the said judgment has referred to a large number of earlier judgments on the

subject and in the light thereof also it cannot be said that there really is any

disputed question of law or fact remaining to be adjudicated.

W.P.(C) No.4020/2014 Page 13 of 21
17. I am therefore of the view that even if the law as laid down by the

Division Bench of this Court in DCM Limited supra and by which I am bound

were to be applied, the petitioner does not get any benefit thereof.

18. I may however mention that the Division Bench of this Court in DCM

Limited supra, notwithstanding the Constitution Bench in Ashoka Marketing

Ltd supra having held that the jurisdiction of the Estate Officer under the PP

Act cannot be ousted merely for the reason of complicated questions of law

and fact requiring to be adjudicated, on the basis of judgments of the Supreme

Court in Government Of Andhra Pradesh vs Thummala Krishna Rao (1982)

2 SCC 134 relating to Andhra Pradesh Land Encroachment Act, 1905 and

the State of Rajasthan Vs. Padmavati Devi 1995 Supp (2) SCC 290 pertaining

to the provisions of Rajasthan Land Revenue Act, 1956 held that the judgment

in Ashoka Marketing Ltd. supra has to be confined to complicated questions

of law relating to determination of lease and cannot be extended to complicated

questions of law relating to title to the property. A Division Bench of the High

Court of Bombay in Kaikhosrou (Chick) Kavasji Vs Union Of India

MANU/MH/0407/2009 is however found to have, after considering

Thummala Krishna Rao supra, held that the provisions of the Andhra Pradesh

Land Encroachment Act, 1905 were materially different from the provisions

W.P.(C) No.4020/2014 Page 14 of 21
of the PP Act and that the Estate Officer appointed under Section 3 of the PP

Act as well as the Appellate Authority under Section 9 thereof have to

determine whether or not the premises are public premises and that the PP Act

provides complete due machinery (which was lacking in Andhra Pradesh

Land Encroachment Act, 1905) and that it is thus not necessary to go to the

Civil Courts to seek declaration of title and thereafter resort to the provisions of

the PP Act. Reliance in this regard was placed on M/s. Anamallai Club Vs.

Government of Tamil Nadu (1997) 3 SCC 169. Similarly, High Court of

Punjab and Haryana also in Hari Kishen Dass Vs. Union of India AIR 1961

Punjab and Haryana 98, with reference to the Public Premises (Eviction of

Unauthorized Occupants) Act, 1958 is found to have held that even a disputed

question of title can be determined by the Estate Officer when he issues notice

under Section 4 of the Act for action under Section 5 of the Act. It was

accordingly held that even if the person to whom notice is issued by the Estate

Officer claims that he owned the land of which he was stated to be in

unauthorized possession of, it was open to him to prove his claim before the

Estate Officer. It was reasoned that the right of appeal to the District Judge

ensured that even if a question of disputed title arises out of the issue of notice

under Section 4 by the Estate Officer, the said dispute can be properly

W.P.(C) No.4020/2014 Page 15 of 21
adjudicated within the framework of PP Act, before any final action under

Section 5 was taken. The same was the view taken by the Division Bench of

the High Court of Andhra Pradesh in Budan Khan Vs. Estate Officer,

Hyderabad AIR 1966 AP 336 and by the High Court of Calcutta in Birla

Corporation Limited Vs. Life Insurance Corporation of India 2001 SCC

Online Cal 95. I have, speaking for the Division Bench of this Court in

Cement Corporation of India Vs. Life Insurance Corporation of India Ltd.

MANU/DE/2068/2014, after noticing DCM Ltd. supra have however held that

even a claim for specific performance of agreement of renewal of lease could

have been made before the Estate Officer.

19. The above discussion is only to show that the view taken by the Division

Bench of this Court in DCM Limited supra is different from the view taken by

the other High Courts.

20. The petitioner having claimed lawful title to the property in his

possession through Maharaja Pratapsinhrao Gaekwad and/or his heirs cannot

simultaneously take the plea of adverse possession. It was so held in Mohan

Lal Vs. Mirza Abdul Gaffar (1996) 1 SCC 639; Karnataka Board of Wakf Vs.

Government of India (2004) 10 SCC 779; Annasaheb Bapusaheb Patil Vs.

Balwant @ Balasaheb Babusaheb Patil (1995) 2 SCC 543 and L.N.

W.P.(C) No.4020/2014 Page 16 of 21
Aswathama Vs. P. Prakash (2009) 13 SCC 229 that pleas based on title and

adverse possession are mutually destructive; adverse possession does not begin

to operate until title is renounced.

21. The petitioner even otherwise has not pleaded any necessary ingredients

of adverse possession. Supreme Court in Roop Singh Vs. Ram Singh (2000) 3

SCC 708 held that mere long possession does not create any rights in

immovable property. In fact, Supreme Court in Hemaji Waghaji Jat Vs.

Bhikhabhai Khengarbhai Harijan AIR 2009 SC 103 & State of Haryana Vs.

Mukesh Kumar (2011) 10 SCC 404 has gone to the extent of holding the law

of adverse possession which ousts an owner on the basis of inaction within

limitation, to be irrational, illegal and wholly disproportionate and is a highly

iniquitous plea and a person taking the said plea has no equity in his favour.

22. Issuance merely of House Tax, Electricity and Water Bills in the name

of petitioner would not amount to the petitioner publicly declaring himself as

the owner within the meaning as ascribed in Konda Lakshmana Bapuji Vs.

Government of Andhra Pradesh (2002) 3 SCC 258. The petitioner being

admittedly in possession and use, for collecting and demanding the said

charges the bills necessarily have to be raised in the name of petitioner. The

lease of land has admittedly been granted by the Government of India. If the petitioner

W.P.(C) No.4020/2014 Page 17 of 21
claimed rights by adverse possession, he ought to have applied for and got

mutation of the lease of the portion of which he claims to have become owner,

in his own name. No such public declaration of intention of ownership has

been pleaded.

23. I have also considered the effect if any of the respondent, much prior to

the initiation of proceedings under the PP Act, having instituted the suit

aforesaid for declaration of title and for recovery of possession of the portion

of the property in possession of the petitioner and have wondered whether for

that reason alone the petitioner is debarred from now taking action under the

PP Act.

24. A Single Judge of this Court in Yogender Kumar Sharma Vs. DDA

MANU/DE/4963/2009 was concerned with the maintainability of proceedings

under the PP Act during the pendency of a suit for declaration and injunction

filed by the person against whom proceedings under the PP Act were initiated. On a

consideration of a host of case law, it was held that the proceedings under the PP Act could not

be said to be illegal or without jurisdiction or barred by principles of res judicata or prohibited

for any other reason. It was also noted that the proceedings in the suit had been pending for a

period of almost 11 years while the persons against whom proceedings under the PP Act

had been initiated continued in occupation of public premises. It was further reasoned

W.P.(C) No.4020/2014 Page 18 of 21
that the larger public interest has to be kept in mind while exercising power

under Article 226 of the Constitution of India and that the proceedings before

the Estate Officer cannot be prohibited for the mere reason that the suit

wherein the plaintiffs were claiming right to the property was pending. LPA

No.592/2009 preferred thereagainst was disposed of by the Division Bench

vide order dated 23rd November, 2009 with the direction that the persons

against whom proceedings under the PP Act had been initiated may prefer an

appeal against the order of ejectment of the Estate Officer.

25. Reference may also be made to Transcore Vs Union of India (2008) 1

SCC 125 laying down that the question of election does not arise in the case of

parallel remedies. In fact, Supreme Court in Mahavir Vs. Rural Institute,

Amravati (1995) 5 SCC 335 lamented on the State having filed a suit for

possession when they should have resorted to summary eviction under the PP

Act.

26. Thus in my view merely because the respondent initiated a misguided

action of instituting a suit for declaration of title and for recovery of possession

cannot be a ground for holding the State now when good sense has prevailed

and has seen reason, to be not entitled to resort to the PP Act.

W.P.(C) No.4020/2014 Page 19 of 21
27. Lastly, the remedy under Article 226 of the Constitution of India is an

equitable one and is to be used to promote justice and in public interest. Here,

it is not found that the petitioner without even any semblance of title to the

property has been occupying a prime valuable property in the heart of the city

at India Gate, obviously to the detriment of the public at large and is using the

process of the Court to perpetuate his illegal unauthorized possession. This

Court would not allow the writ jurisdiction to be further abused by the

petitioner.

28. There is thus no merit in the petition and the same is dismissed. It is

clarified that the interim order earlier granted stands vacated.

29. The petitioner having enjoyed the interim stay, this Court to balance the

equities now directs the Estate Officer to complete the proceedings initiated

under the PP Act within six months from the date of receipt of a copy of this

judgment.

30. The respondent State of Maharashtra having not only not contested this

petition diligently as aforesaid but having also allowed the petitioner to

continue in the premises for the last over half a century, without taking any

effective steps for recovery of public property, has otherwise also been

negligent. It is thus deemed appropriate to direct that a copy of this judgment

W.P.(C) No.4020/2014 Page 20 of 21
be forwarded to the Resident Commissioner in New Delhi of the State of

Maharashtra and to the Chief Secretary of the State of Maharashtra to take

remedial steps.

31. The petitioner is also burdened with costs of Rs.30,000/- of this petition

payable to the respondent on the next date of hearing before the Estate Officer.

RAJIV SAHAI ENDLAW, J.

APRIL 19, 2016 'gsr/M' W.P.(C) No.4020/2014 Page 21 of 21

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