Delhi District Court
Anju Makkar vs New Delhi Municipal Council on 31 August, 2020
IN THE COURT OF SH. DINESH KUMAR SHARMA
DISTRICT & SESSIONS JUDGE /
APPELLATE AUTHORITY,NEW DELHI
In the matter of :
PPA No. 36/2015
1. Anju Makkar
W/o Late Sh. Torloki Nath
R/o B146, Dayanand Colony
Lajpat NagarIV, New Delhi110024.
2. Om Prakash
S/o Late Sh. Pritam Das
R/o 115,/III, Vikram Vihar
Lajpat Nagar, New Delhi .....Appellants
Versus
New Delhi Municipal Council
Palika Kendra, New Delhi
Date of filing : 08.06.2015
Date of arguments : 22.08.2020
Date of judgment : 31.08.2020
JUDGMENT
1. This appeal u/S 9 of The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 ( "PP Act" in short) has PPA No. 36/2015 Anju Makkar & Anr. Vs. NDMC Page No. 1 of 18 been preferred against the impugned order dated 19.05.2015 vide which it was inter alia held that the appellants are occupying Platform No.8, Ring Road Market, Sarojini Nagar, New Delhi without any authority and were therefore, directed to hand over the physical vacant possession of the said stall to NDMC within the period of 15 days from the date of publication or receipt of the said order, failing which the said premises will be vacated in due course of law.
2. The facts which are not disputed are that the said platform was allotted to Late Sh.Pritam Dass Makkar in the year 1965. Sh.Pritam Dass Makkar expired on 12.09.1982 leaving behind his wife Smt.Mohan Devi and other LRs. Smt.Mohan Devi also expired on 30.06.2000 leaving behind two sons i.e. Sh.Tirloki Nath (since died) and Sh.Om Prakash. Initially, the department issued a show cause notice under subsection (1) and clause (b) of sub section (2) of Section 4 PP Act to all persons concerned: in particular Smt.Mohan Devi. Sh. Abhishek Makkar and Smt.Anju Makkar vide their reply dated 21.04.2003 sent a reply stating therein that Smt.Mohan Devi applied for regularization of allotment of the said platform in her name sometime in October 1982 and since no reply was received from the department, it was presumed that the allotment has been PPA No. 36/2015 Anju Makkar & Anr. Vs. NDMC Page No. 2 of 18 regularized in the name of Smt.Mohan Devi. In the reply, it was further submitted that after the death of Smt.Mohan Devi, the factum of her death was also brought to the notice of the Directorate of Estates. Pursuant to the letter No.DE/MKT/26(8)/64 dated 26/2/2002, the LRs submitted the requisite documents on 11.03.2002 vide Diary No.210; However, the department did not sent any reply to this communication; The LRs also cleared all the due license fee alongwith interest. Vide this letter, a request was made for regularization of the platform in the name of grandson of Late Smt.Mohan Devi. However, the department rejected the request for regularization of allotment of the above premises and thereafter, vide communication dated 24.07.2003, Sh.Tirloki Nath(since died) and Sh.Om Prakash made a fresh application for regularization and submitted that the notice issued may be withdrawn. The appellants kept on submitting the documents alongwith their communication to show their possession over the platform. While the matter was pending before the Estate Officer, Sh.Tirloki Nath expired on 30.10.2010. In the meanwhile, the inspection of the premises was also conducted by the department on 14.04.2006. Subsequent to the death of Sh.Tirloki Nath, a joint request for regularization in the name of Smt.Anju Makkar,widow of Sh.Tirloki Nath and PPA No. 36/2015 Anju Makkar & Anr. Vs. NDMC Page No. 3 of 18 Sh.Om Prakash was filed. It has been submitted that NOC of all the LRs were placed on record and up to date license fee had also been paid as per requirement of NDMC. However, the Estate Officer passed the impugned order mechanically, without any application of mind, which is erroneous both on law and fact. It has been submitted that the order was reserved on 03.06.2014 and thereafter, the Estate Officer who had heard the matter was transferred and matter came up for the first time before Sh.Y.V.V.Raj Asekhar on 19.05.2015 and Sh.Y.V.V.Raj Asekhar passed the impugned order in haste. It has also been submitted that since NDMC has been accepting the rent after the expiry of the lease, the occupation of the LRs of Smt. Mohan Devi becomes authorised and they become tenant u/S 116 of The Transfer of Property Act. The appellants submitted that they were not given any opportunity of being heard. It has also been submitted that the present proceedings are in violation of Rule 6 of The Public Premises (Eviction of Unauthorised Occupants) Rules, 1971( "PP Rules" in short). The appellants have further submitted that notice u/S 4(1)& (2)(b) PP Act dated 31.03.2003 is also illegal as it does not specify the grounds on which the order of eviction is proposed to be made. The Estate Officer did not take into account, the request being filed on behalf of appellants PPA No. 36/2015 Anju Makkar & Anr. Vs. NDMC Page No. 4 of 18 from time to time for the purpose of regularization of the said premises and caused a serious prejudice to them. It has also been submitted that the inspection report dated 15.02.2006 and 14.06.2006 are totally contrary to the record and facts of the case.
3. Notice of the appeal was issued to the respondent/ Directorate of Estates. Since the interim protection was not granted by this court, the appellant approached the Hon'ble Delhi High Court in W.P.(C) 6390/2015 and in these proceedings, the Hon'ble Delhi High Court vide order dated 07.07.2015 interalia held that the appellants shall not be evicted in pursuant to the order dated 19.05.2015 from Platform No.8, Ring Road Market, Sarojini Nagar, New Delhi during the pendency of the appeal. Further, Hon'ble Delhi High Court was pleased to direct to the appellants to not to allow any other person to use the said place with a further direction that the appeal be disposed of on or before 30.09.2015. However, the appeal could not be disposed of by my Ld.Predecessors for one reason or the other and the matter came up before this court for effective hearing on 22.08.2020 for the first time, on which date the arguments were heard and matter was fixed for orders.
PPA No. 36/2015 Anju Makkar & Anr. Vs. NDMC Page No. 5 of 184. The respondent filed a detailed reply to the appeal and submitted that the present appeal is liable to be rejected. The NDMC denied that the up to date license fee has been paid as per the requirements of NDMC. It was submitted that the Estate Officer passed the order after careful examination of all the relevant records. The respondent also denied that the appellants come under the preview of Section 116 of The Transfer of Property Act. It was submitted that ample opportunity was given to the appellants and there is no violation of the principal of natural justice. The department submitted that infact during the inspection, Sh.Tirloki Nath was not present and somebody else signed impersonating him and thus, an act of forgery was committed. It has been submitted that this fact was admitted by Sh.Tirloki Nath during the proceedings that somebody else had signed impersonating as Tirloki Nath.
5. The appellants also filed a written synopsis submitting therein that the appellant is the widow and her only source of income is the Platform No.8, Ring Road Market, Sarojini Nagar, New Delhi. It has further been submitted that joint application for regularization is still pending before the Directorate of Estates and the Estate Officer has passed the impugned order without awaiting the decision of their application for regularization. It has PPA No. 36/2015 Anju Makkar & Anr. Vs. NDMC Page No. 6 of 18 further been submitted that the notice u/S 4 PP Act was never issued to Smt.Anju Makkar and Sh.Om Prakash and the impugned order passed against Smt.Mohan Devi is not binding on the appellants. It has further been submitted that the order passed by the Estate Officer is in utter violation of the principal of natural justice. The appellants submitted that all the requisite documents for regularization had already been filed and the Estate Officer passed the impugned order in haste without taking into account the facts of the case.
6. The respondent also filed the written submissions inter alia stating therein that infact the appeal has only been filed by Smt.Anju Makkar and appeal and other documents have not been signed by Sh.Om Prakash. It has been submitted that the alleged pendency of the regularization process is out of the preview of Directorate of Estates and the jurisdiction of Estate Officer is independent of the same. In regard to the notice u/S 4(1) PP Act, it has been submitted that notice has duly been issued to all the persons concerned in compliance of section 4(1) PP Act. It has further been submitted that there is no question of violation of the principal of natural justice of not being heard as the appellants have been communicating with the department since beginning and they were aware about the proceedings. It has further been PPA No. 36/2015 Anju Makkar & Anr. Vs. NDMC Page No. 7 of 18 submitted that on 03.06.2014 matter was heard in detail and even the submissions of appellants were duly recorded. On 19.05.2015, the Ld.Counsel for the appellants was present and therefore, it cannot be said that the order was passed at the back of the appellants. The department submitted that after the death of Sh.Pritam Dass Makkar, Smt.Mohan Devi applied for regularization but failed to complete the formalities and after her death, her two grandsons applied for regularization on 11.03.2003 and the same was also rejected. Subsequent thereafter Sh.Tirloki Nath husband of Smt.Anju Makkar and Sh.Om Prakash on 24.07.2003 applied for regularization but failed to complete the documents on record. It has further been submitted that infact none of the LRs of allottee were present at the premises and initially, the shop was found closed and therefore, show cause notice dated 31.03.2003 was affixed on the shutter of the shop. It has further been submitted that as per inspection report dated 12.05.2004, telephone no.24677943 was found installed in the name of Ms.Jaya and this fact was admitted by Sh.Tirloki Nath in communication dated 09.03.2005 to the department. The plea of the department is that the LR of Sh.Pritam Dass Makkar and Smt.Mohan Devi did not show any document of their occupation, from the date of death of original PPA No. 36/2015 Anju Makkar & Anr. Vs. NDMC Page No. 8 of 18 allottee. Infact they had been taking the benefit of the platform by subletting or by some other financial management and the documents which have been shown are predominantly after the period of 20052006.
7. Sh.Sanjeev Manchanda, Ld.Counsel for the appellant has argued in detail through video conferencing. It has been submitted that the Estate Officer has passed a mechanical order without any application of mind. It has been submitted that after the proceedings were recorded on 03.06.2014, the matter was taken up by Sh.Y.V.V.Raj Asekhar who had just joined on 19.05.2015 and without giving any opportunity of argument, passed the impugned order. It has been submitted that even as per the record of NDMC, which the appellants have received through RTI, even the NDMC was not given an opportunity of being heard. It has further been submitted here that notice u/S 4 PP Act has not been served in accordance with law. The notice should have been served to all the LRs of Late Sh.Pritam Dass Makkar and Late Smt.Mohan Devi, whereas the Estate Officer merely served the notice on Smt.Mohan Devi, whom the department knew that she had expired. It has further been submitted that after the transfer of the Estate Officer as per Rule 6 PP Rules, the proceedings should have been started afresh. It has been PPA No. 36/2015 Anju Makkar & Anr. Vs. NDMC Page No. 9 of 18 submitted that the present impugned order is liable to be set aside.
8. Per contra, Sh.Nilesh Sawhney, Ld.Counsel for the respondent has submitted that the appellants were given complete opportunity by the Estate Officer. The department also gave ample opportunities to the appellants to furnish the documents, which can show their occupancy/possession of the stall after the demise of the original allottee. It has been submitted that infact after the death of original allottee, the LRs were taking financial benefit out of the said platform being unauthorized occupant. It has been submitted that the Estate Officer has given complete opportunity to the appellants and there is no violation of the principal of natural justice.
9. I have heard the submissions and have perused the record carefully.
10. The PP Act has been enacted for eviction of unauthorized occupants from public premises and for certain incidental matters. The "unauthorised occupation" has been defined in Section 2(g) PP Act 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, PPA No. 36/2015 Anju Makkar & Anr. Vs. NDMC Page No. 10 of 18 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."
11. The bare perusal of this Section will indicate that a person allotted the public premises will fall into the category of unauthorized occupant only if either his allotment has been cancelled or has been determined for any reason whatsoever. A person would also deem to be unauthorized occupant in a public premises if he or she is in occupation without any authority for such occupation.
12. Section 4 PP Act provides issuance of show cause notice. Section 4 subsection (1) & (2) is relevant in this regard which reads as under: "4. Issue of notice to show cause against order of eviction. [(1) If the estate officer has information that any person is in unauthorized occupation of any public premises and that he should be evicted, the estate officer shall issue in the manner hereinafter provided a notice in writing within seven working days from the date of receipt of the information regarding the unauthorised occupation calling upon the person concerned to show cause why an order of eviction should not be made.] [(1A) If the estate officer knows or has reasons to believe that any person is in unauthorized occupation of the public premises, then, without prejudice to the provisions of sub section(1), he shall forthwith issue a notice in writing calling upon the person concerned to show cause why an order of PPA No. 36/2015 Anju Makkar & Anr. Vs. NDMC Page No. 11 of 18 eviction should not be made.] [(IB) Any delay in issuing a notice referred to hi subsections (1) and (1A) shall not vitiate the proceedings under this Act] (2) The notice shall
(a) specify the grounds on which the order of eviction is proposed to be made; and [(b)and require all persons concerned, that is to say, all persons who are, or may be, in occupation of, or claim interest in, the public premises,
(i) to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not [later than] seven days from the date of issue thereof; and
(ii) to appear before the estate officer on the date specified in the notice along with the evidence which they intend to produce in support of the cause shown, and also for personal hearing, if such hearing is desired.]"
13. The bare perusal of this section would also indicate that the notice u/S 4 PP Act shall require all persons concerned who are or may be in occupation of or claim interest in, the public premises. The perusal of this provision also makes it clear that notice u/S 4(1) is to be issued to the person concerned. The interpretation of the provision cannot be construed in a manner that the notice is required to be issued to the unauthorized occupants also. The department would deal only with the allottee or his/her known legal representative.
14. Similarly, Section 4 subsection 2(ii) PP Act provides that the person to whom the show cause notice is issued shall PPA No. 36/2015 Anju Makkar & Anr. Vs. NDMC Page No. 12 of 18 appear before the estate officer on the date specified in the notice along with the evidence which he intends to produce in support of the cause shown, and also for personal hearing, if such hearing is desired.
15. Section 8 PP Act deals with the powers of the Estate Officers which reads as under: "8.Power of estate officers.An estate officer shall, for the purpose of holding any inquiry under this Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the following matters, namely:--
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) any other matter which may be prescribed."
16. A conjoint reading of Section 4(2)(ii) and Section 8 PPAct would indicate that the Estate Officer is required to take the entire evidence on record alongwith the documents and even the Estate Officer has been given powers to summon and enforce the attendance of any person and examine him on oath besides discovery and production of documents. It is also pertinent to mention here that the proceedings conducted by the Estate Officer are quasi judicial in nature as has been held in M/s Blaze PPA No. 36/2015 Anju Makkar & Anr. Vs. NDMC Page No. 13 of 18 and Central (P) Ltd. Vs. Union of India and others, AIR 1980 Karnataka 186, wherein it was held as under :
" 13 ..................... The Estate Officer must hold an enquiry as required under S. 4 of the Act, read with the Public Premises (Eviction of Unauthorized Occupants) Rules 1971. R. 5 of the Rules provides that the Estate Officer shall record the summary of the evidence tendered before him and the summary of such evidence and any relevant documents filed before him shall form part of the record of the proceedings. Exercise of the power under the Act is undoubtedly quasijudicial. The petitioner has a right to be heard before the Estate Officer and if the right to be heard is to be a real right which is worth anything, it must carry with it a right to know the evidence of the opposite side. The petitioner must therefore be told what evidence has been given or what statements have been made by the opposite side. In other words, to put it shortly, the petitioner must be given a fair opportunity to correct or contradict the statements recorded or the evidence ......................................"
17. Thus, the Estate Officer cannot summarily pass an order without taking into the account the documents placed by the employee. In an enquiry conducted by Estate Officer, the principle of natural justice has to be followed.
18. Rule 6 PP Rules reads as under:
6. Transfer of pending proceedings.--(1) On the application of any person to whom a notice under the Act has been served and after hearing him, if he desires to be heard, or of its or his own motion, the Central Government or any Gazetted officer especially authorised by the Central Government in this behalf by notification in the Official Gazette may at any stage PPA No. 36/2015 Anju Makkar & Anr. Vs. NDMC Page No. 14 of 18 transfer any proceeding before an estate officer for disposal of the same.
(2) Where any proceeding has been transferred under subrule (1), the estate officer who thereafter is in charge of such proceeding may, subject to any special directions in the order of transfer, either restart it or proceed from the point at which it was transferred.
19. PP Act has been enacted to provide a speedy machinery for the eviction of unauthorized occupants. Section 2 sub section (e) PP Act defines public premises. The public premises in relation to National Capital Territory of Delhi has been defined as any premises belonging to the NDMC or Corporation or Corporations notified under Delhi Municipal Corporation Act. The notice u/S 4(1) & (2) (b) PP Act in this case was initially issued by the Office of the Estate Officer and Deputy/Asstt.Director of Estates(Litigation), Directorate of Estates, Maulana Azad Road, Nirman Bhavan, New Delhi on 31.03.2003. Perusal of the record indicates that on 12.04.2005, the case was transferred to the new Estate Officer under Rule 6 PP Act and on that day Sh.Tirloki Nath had taken part in the proceedings and filed reply. Perusal of the record indicates that at no point thereafter, Sh.Tirloki Nath or the present appellants had taken any objection under Rule 6 PP Rules. Subsequently, in July 2006 vide notification dated 21.07.2006, the case relating to PPA No. 36/2015 Anju Makkar & Anr. Vs. NDMC Page No. 15 of 18 Sarojini Nagar Market were transferred to MCD/NDMC. Thereafter, the matter was taken up on 22.12.2008 by Sh.Anurag Goyal, Estate Officer. The Estate Officer subsequently passed a note that with reference to the present notification dated 21.07.2006, the above noted public premises has been transferred to NDMC. Thereafter, the proceedings of the eviction were conducted against the appellants by the E.O.NDMC and thereafter, an opportunity of hearing was accorded to all the concerned parties and notice was issued for 29.12.2008. On 29.12.2008, authorised representative of Sh.Tirloki Nath had duly appeared. The perusal of this note indicate that upon transfer of the pending proceedings, the new Estate Officer was to either restart the proceedings or proceed from the point at which it was transferred. In this case, there was a transfer of the Estate Officer initially on 12.04.2005 and on that point, the appellants had not taken any objection. Thereafter also when the matter was transferred to NDMC, the notice was given to all the parties and an opportunity of being heard was given and thereafter, the appellants appeared before the Estate Officer and on that point also no objection was raised. Thereafter, the matter continued before the Estate Officer and it seems that there was a change in the Estate Officer when the case was to be finally disposed off.
PPA No. 36/2015 Anju Makkar & Anr. Vs. NDMC Page No. 16 of 18Rule 6 PP Rules is infact a codification of the principal of natural justice. The Estate Officer has to ensure that nobody should be condemned unheard. In the present case, at no point it seems that the appellants were not given an opportunity of being heard. The order sheet would indicate that appellants have been given ample opportunities to put up their case. The sufficient opportunities of being heard does not mean unlimited opportunity. It is pertinent to mention here that even on 19.05.2015, Ld.Counsel for the appellant was present before the Estate Officer. There has to be an end to the proceedings and no proceedings can be allowed in continuity forever. The impugned order indicates that the Estate Officer has taken into account the entire facts and only thereafter, reached to the conclusion that the persons on behalf of Smt.Mohan Devi are unauthorisedly occupying the premises in place of original allottee. The allotment of public premises, as in the present case is meant to help the allottee under some scheme. Such allotments are generally public welfare and, therefore, the successive generation cannot be allowed to take financial advantage out of it, unless they are totally dependent on the earning out of this. Such allotments must pass on to the next deserving persons.
PPA No. 36/2015 Anju Makkar & Anr. Vs. NDMC Page No. 17 of 1820. As far as the request for regularization is concerned, I find a document dated 15.06.2012 (page 170 TCR) signed by Joint Director. In the said documents, it has interalia been stated as under "In view of the above facts, DOE observed that this is clear case of forgery and Shri Triloki Nath has misled the Dte. of Estates and thus reject the request of Shri Triloki Nath for regularization of said platform in the joint names of S/Shri Om Parkash & Triloki Nath and request Estate Officer of pass eviction order against the unauthorised occupants of said platforms."
21. In view of the above discussion, I find no illegality or infirmity in the impugned order dated 19.05.2015 of the Estate Officer. Hence, the appeal is dismissed.
22. Estate Officer's record be sent back alongwith copy of this judgment.
23. Appeal file be consigned to Record Room.
Digitally signed by DINESH DINESH KUMAR
KUMAR SHARMA
Date: 2020.08.31
SHARMA 16:55:51 +0530
Announced through (DINESH KUMAR SHARMA)
electronic mode on 31.08.2020. District & Sessions Judge/ Appellate Authority New Delhi PPA No. 36/2015 Anju Makkar & Anr. Vs. NDMC Page No. 18 of 18