Delhi High Court
Ex. Havaldar Kailash Singh And Sons vs Union Of India (Uoi) And Anr. on 2 September, 2003
Equivalent citations: 2003VIAD(DELHI)357, 106(2003)DLT660, 2004 A I H C 201, (2004) 1 RENCR 312, (2003) 12 ALLINDCAS 821 (DEL), (2004) 1 RENTLR 734, (2003) 106 DLT 660
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed
JUDGMENT Badar Durrez Ahmed, J.
1. Rule.
2. With the consent of the parties, the matter is taken up for final disposal. The writ petition is directed against the judgment and/or order dated 02.12.2002 passed by the learned ADJ in appeal preferred u/s 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as 'the Act') by the petitioner against an order of eviction passed by the Estate Officer on 09.11.2002.
3. The premises in question, i.e. Shop No. 100/1, Shekhawati Lines, Delhi Cantt was allotted to the petitioner by virtue of a license agreement dated 01.09.1997 for running a general goods/vegetables and milk shop initially up to 31.08.1998. It is an admitted position that the license agreement was renewed from time to time and lastly a fresh license agreement was entered into for the period 01.06.2002 to 30.04.2003. Thereafter, a notice dated 15.06.2002 was issued to the petitioner by the respondent No. for vacation of the said premises. The notice read as under:-
''You are hereby advised to vacate the Qtr. No. 100/1, Shekhawati Lines, Delhi Cantt allotted to you by this unit by 30.06.2002 without fail.''
4. It is the respondents case that as the petitioner had not vacated the premises in question, a notice u/s 4 of the said Act was issued to the petitioner. The grounds specified in the notice which was issued on 08.10.2002 were as under :-
''The public premises, Shop No. 100/1, Shekhawati Lines, Delhi Cantt was allotted to you by department as per license agreement dated 01 Sep 1997 for running a General Goods, Vegetables and Milk Shop for a period of one year wef 01 Sep 1997 to 31 Aug 1998.
Allotment of said shop was cancelled by department owing to expiry of license agreement and you were asked to vacate the said shop by 30 Jun 2002 vide their letter No. 1550/P dated 15 Jun 2002. But you have failed to vacate the said shop and still occupying the same. Hence, department has alleged that you have been in unauthorised use/occupation of said shop and liable to be evicted besides payment of damage rate of rent for the period of unauthorised occupation of suit premises by you.''
5. The Estate Officer thereafter passed the eviction order on 09.11.2002 which was confirmed in Appeal before the learned ADJ by his impugned order dated 02.12.2002. It is the contention of the learned counsel for the petitioner that the grounds specified in the said notification u/s 4 are not the grounds on the basis of which the eviction has been ordered. He has pointedly raised the issue that the ground specified in the Section 4 notice clearly shows that the allotment of the said shop was cancelled by the department ''owing to'' expiry of the license agreement and that the petitioner had been asked to vacate the said shop by 30.06.2002 vide letter dated 15.06.2002. The learned counsel for the petitioner has submitted that this statement is ex facie rong inasmuch as the license had been extended from time to time and a fresh license had been entered into on 01.06.2002 for the period 01.06.2002 to 30.04.2003. That being the case, there is no question of allotment of the shop being cancelled by the department ''owing to expiry'' of the license agreement. Since the license agreement had not expired, there is no question of any cancellation order being passed thereon. The fact that the license agreement was valid and extended up to 30.04.2003 is an admitted and accepted fact as recorded in the Estate Officer's order as well as in the impugned order of learned ADJ. Learned counsel for the respondents, however, submits that the license agreement has given the right to the respondents to terminate the license and in exercise of that right the letter dated 15.06.2002 had been issued asking the petitioner to vacate the said premises. Accordingly, he submits, in whichever manner the case is looked at, the petitioner would be an unauthorised occupant.
6. I am in agreement with the contentions raised by the learned counsel for the petitioner and find myself unable to agree with those advanced by the learned counsel for the respondent. The reasons are clear. The ground stated in the Section 4 notice was that the allotment of the shop was cancelled by the department ''owing to expiry'' of the license agreement. This clearly demonstrates that the letter dated 15.06.2002 which could be deemed as a cancellation letter was issued on the faulty premise that he license agreement had expired. Unfortunately, for the respondents, this is not the correct state of affairs. The factual position was that the license agreement had not expired and, in fact, just 15 days prior to the issuance of cancellation letterated 15.06.2002, a fresh license had been entered into on 01.06.2002 for the period ending 30.04.2003. As such, the entire premise for the issuance of letter dated 15.06.2002 was non-existent. That being the case, there is no question of cancellation of the shop ''owing to expiry'' of license agreement. In any event, this is not the ground on which the Estate Officer has passed the eviction order which has been confirmed by the learned ADJ. It is clear that the grounds have to be categorically and clearly specified in the Section 4 notice to enable a party to take all objections that are available to it under the law. If the grounds specified under Section 4 are different from the grounds on which an eviction order is passed, the eviction order cannot be sustained. This is so for the simple reason that it could then be said that the petitioner has not been given a reasonable opportunity of meeting the grounds. The very purpose of Section 4 is to make a so-called unauthorised occupant aware of the grounds on which he is sought to be evicted from the public premises. In this view of the matter, the order of the learned ADJ cannot be sustained and is set aside and quashed. Since the order of the Estate Officer also merged with the order of the learned ADJ, the same would also go.
7. Before parting with this case, learned counsel for the respondents has requested that her statement be recorded that the petitioner would not, in any event, be entitled to continue with the premises in question in view of the clear and categorical policy statement made as per circular dated 04.01.2001 which was issued by the Ministry of defense and particularly in respect of para 3 (i) thereof. These are, however, grounds which were not mentioned in the notice under Section 4 which had been issued in the present case. It is open to the respondents to take action under the said circular or under any other provisions of law that may be available to them after following the procedure, particularly under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. It will also be open to the petitioner to take all grounds available to it to oppose the same.
8. Accordingly, the writ petition is allowed as indicated above. The impugned orders are quashed. There shall be no orders as to costs.