Delhi District Court
Davender Kumar vs Union Of India Through on 27 October, 2022
IN THE COURT OF SHRI GIRISH KATHPALIA,
PRINCIPAL DISTRICT & SESSIONS JUDGE (HQs)
TIS HAZARI COURTS, DELHI
PPA No. 05/2017
DLCT010037182017
DAVENDER KUMAR
R/o BLOCK DS, QUARTER No. 947
TIMARPUR, DELHI
.....APPELLANT
VERSUS
1. UNION OF INDIA THROUGH
THE SECRETARY
MINISTRY OF URBAN DEVELOPMENT &
POVERTY ALLEVIATION, NIRMAN BHAWAN
NEW DELHI 110011
2. DIRECTORATE OF ESTATES
MINISTRY OF URBAN DEVELOPMENT &
POVERTY ALLEVIATION, NIRMAN BHAWAN
NEW DELHI 110011
3. THE ASSISTANT DIRECTOR OF ESTATE (E)
DIRECTORATE OF ESTATES
MINISTRY OF URBAN DEVELOPMENT &
POVERTY ALLEVIATION, NIRMAN BHAWAN
NEW DELHI 110011
4. THE ESTATE OFFICER, DIRECTORATE OF ESTATES
MINISTRY OF URBAN DEVELOPMENT &
POVERTY ALLEVIATION, NIRMAN BHAWAN
NEW DELHI 110011
....RESPONDENTS
PPA No. 05/2017 Davender Kumar vs Union of India Page 1 of 10 pages
Digitally signed
by GIRISH
GIRISH KATHPALIA
KATHPALIA Date:
2022.10.27
13:25:04 +0530
Date of filing : 06.03.2017
First date before this court : 22.07.2019
Arguments concluded on : 19.10.2022
Date of Decision : 27.10.2022
Appearance : Appellant in person
Shri Aparbal Singh, counsel for respondents
JUDGMENT
1. This appeal brought under the provisions of Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act assails order dated 17.02.2017 of the Estate Officer passed under Section 5 of the Act. Upon service of notice of appeal, respondents entered appearance through counsel. I heard learned counsel for both sides and perused the original record of proceedings conducted by the Estate Officer. I also perused the written arguments.
2. Briefly stated, the factual matrix relevant for present purposes, as pleaded by the appellant is as follows.
2.1 The appellant, working as Senior Auditor in the office of Director, P&T, Audit Office was alloted government accommodation bearing Quarter No. 947(DS) Timarpur (TypeC), Delhi (hereinafter referred to as 'the subject premises') and he with his family started residing there some time in the year 2011.
2.2 Since several thefts and burglary cases were being reported in the area around the subject premises and the appellant with his family had to visit his native place in Faridabad, Haryana for 23 days, he PPA No. 05/2017 Davender Kumar vs Union of India Page 2 of 10 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:
2022.10.27 13:27:20 +0530 requested one of his family friend Shri Rajiv Nayan, a resident of Yamuna Vihar, Delhi to stay in the subject premises for 23 days and look after the same.
2.3 Thereafter, the appellant received a notice regarding the alleged subletting of the subject premises by him, to which he sent representations with necessary documents, but without considering the same, allotment of the subject premises in his name was canceled by the Directorate of Estates vide order dated 11.09.2014. Appeal filed by the appellant was dismissed by the Appellate Authority by nonspeaking order dated 29.03.2016.
2.4 Thereafter, upon receipt of notice from the present respondent no. 4 (the Estate Officer), the appellant joined the proceedings and submitted application for providing documents relied upon by the department. But despite repeated directions of the Estate Officer, the documents were not provided to him. The appellant submitted his reply with documents including an affidavit of Shri Rajiv Nayan before the Estate Officer. But the Estate Officer arbitrarily passed the impugned eviction order dated 17.02.2017 without any material on record.
2.5 Hence, the present appeal.
3. In reply to the memo of appeal, the respondents pleaded that a complaint dated 20.02.2014 regarding subletting of the subject PPA No. 05/2017 Davender Kumar vs Union of India Page 3 of 10 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:
2022.10.27 13:27:10 +0530 property was received, so on 12.07.2014 at 10:50 am an inspection was carried out during which neither the appellant nor any of his family members was found in the subject property and rather one Smt. Pushpa Sharma wife of Shri Rajiv Nayan, stated to be brother in law of the appellant alongwith her mother, brother and two children were found there; that during the said inspection the occupants of the subject premises were unable to show their Voter Cards and Aadhar Cards; that the occupants of the subject property informed the inspecting team that the appellant is staying in Bhajanpura, so a subletting of the government accommodation was suspected; that despite cancellation of allotment, the appellant failed to vacate the subject premises, so proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act were initiated, which culminated into impugned eviction order.
4.1 During final arguments, the appellant reiterated the above described factual matrix and contended that the impugned eviction order was passed arbitrarily and is liable to be set aside. It was argued that despite repeated directions, the documents relied upon by the respondents were not supplied to the appellant and the impugned eviction order is based on absolutely no material.
4.2 On the other hand, learned counsel for respondents contended that the appeal has become infructuous since during pendency of the appeal possession of the subject premises has been surrendered by the appellant. Learned counsel for respondents reiterated the contents of their reply, emphasizing that the appellant is guilty of having sublet the PPA No. 05/2017 Davender Kumar vs Union of India Page 4 of 10 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:
2022.10.27 13:26:57 +0530 government accommodation, so allotment of the same was rightly canceled leading to the impugned eviction order.
5. Against the above mentioned rival factual matrix, I examined the original record of proceedings conducted before the Estate Officer leading to the impugned eviction order. It would be interesting to refer to the same briefly.
5.1 On 06.04.2016, the Estate Officer recorded having examined the letter dated 11.09.2014 qua cancellation of allotment of the subject premises and directed issuance of notice under Section 4(1) of the Public Premises (Eviction of Unauthorized Occupants) Act to the appellant, posting the matter to 21.04.2016, on which date a fresh notice was directed.
5.2 On the next date 10.05.2016, the authorized representative of the appellant appeared before the Estate Officer.
5.3 Thereafter, the proceedings before the Estate Officer were take up on as many as eight dates, on each of which, the appellant and/or his authorized representative remained present but none appeared ever on behalf of respondents.
5.4 No inquiry proceedings at all were conducted before the Estate Officer. What to say of inquiry proceedings, despite repeated directions of the Estate Officer, even the documents relied upon by the PPA No. 05/2017 Davender Kumar vs Union of India Page 5 of 10 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:
2022.10.27 13:26:44 +0530 respondents were not supplied to the appellant. However, the appellant filed reply alongwith the documents relied upon by him.
5.5 It is at that stage, the Estate Officer in his wisdom abruptly closed the proceedings and passed the impugned eviction order. Even the appeal against cancellation of allotment was dismissed by way of a sketchy and completely baseless order.
5.6 Most importantly, the original inspection report/complaint dated 12.07.2014, on the basis whereof the proceedings were initiated, has not seen light of the day till this moment.
6. At this stage, it would be apposite to briefly traverse through the legal position.
6.1 It is the crux of Article 14 of the Constitution of India that every State action, in order to survive, must be phlegm to the vice of arbitrariness. This principle is basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law.
Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim parity with a private individual even in the field of contract. Non arbitrariness being a necessary concomitant of the rule of law, it is imperative that all actions of every public functionary in whatever sphere, must be guided by reason and not humour, whim, caprice or personal predilections of the persons entrusted with the task on behalf of the State and exercise of all PPA No. 05/2017 Davender Kumar vs Union of India Page 6 of 10 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.10.27 13:26:32 +0530 powers must be for public good instead of being an abuse of power.
6.2 In the case of New India Assurance Co. Limited vs Nusli Neville Wadia, AIR 2008 SC 876, the Hon'ble Supreme Court observed thus:
"24. Where an application is filed for eviction of an unauthorised occupant, it obligates the Estate Officer to apply his mind so as to enable him to form an opinion that the respondent is a person who has been in unauthorised occupation of the public premises and that he should be evicted. When a notice is issued in terms of Section 4 of the Act, the noticee may show cause. Section 5 of the Act postulates that an order of eviction must be passed only upon consideration of the show cause and any evidence produced by him in support of his case also upon giving him a personal hearing, if any, as provided under clause (ii) of Sub Section (2) of Section 4 of the Act.
....
33. The Estate Officer with a view to determine the lis between the parties must record summary of the evidence. Summary of the evidence and the documents shall also form part of the record of the proceedings.
34. Procedure laid down for recording evidence is stated in the Rules. The Estate Officer being a creature of the statute must comply the same. When a notice is issued, the occupant of the public premises would not only the entitled to show cause but would also be entitled to produce evidence in support of the cause shown.
....
47. It is axiomatic that when in support of his case the landlord intends to rely upon a document which is to be taken on record, it would be obligatory on the part of the Estate Officer to allow inspection thereof to the noticee. Denial of such inspection of documents PPA No. 05/2017 Davender Kumar vs Union of India Page 7 of 10 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:
2022.10.27 13:26:19 +0530 shall be violative of the principle of natural justice. It would run counter to the doctrine of fairness in the matter of determination of a lis between parties"
(emphasis supplied).
6.3 In the case of Ex Havaldar Kailash Singh vs Union of India, 106 (2003) DLT 660, the Hon'ble Delhi High Court held that grounds have to be categorically and clearly specified in the notice under Section 4 of the Act in order to enable the noticee to take all objections that are available to him under law and where grounds specified under Section 4 of the Act are different from the grounds mentioned in the eviction order, the eviction order cannot be sustained since it could not be said then that the noticee had reasonable opportunity of meeting the grounds. The very purpose of Section 4 is to make a socalled unauthorized occupant aware of the grounds on which he is sought to be evicted from the public premises. In the present case, the notice dated 06.04.2016 (pages 1517 of Estate Officer record) under Section 4 of the Act is totally silent and makes not even a whisper of the alleged illegal subletting as a ground of eviction.
7. Admittedly, in the present case, there is nothing on record to suggest that the appellant was given copy of the alleged inspection report at the time of issuing notice under Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act or ever subsequently. The alleged inspection report consisted of only two pages, so it is also nobody's case that the record being voluminous, only inspection thereof could be permitted to the appellant. Failure to provide PPA No. 05/2017 Davender Kumar vs Union of India Page 8 of 10 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:
2022.10.27 13:26:04 +0530 a copy of the alleged inspection report to the appellant seriously prejudiced his right to effectively defend himself in the proceedings before the Estate Officer. Therefore, the proceedings before the Estate Officer got vitiated by the vice of abrogation of jus naturale and consequently, the impugned eviction order cannot be sustained.
8. No doubt, the eviction proceedings before the Estate Officer do not require a lengthy hearing or lengthy testimony of witnesses. But in view of specific denial of the present appellant, the least the Estate Officer should have done was to summon and examine Shri Rajiv Nayan and/or any of the inspecting officers. What to say of examining the witnesses, the Estate Officer did not even bother to summon the original inspection report; and even after perusal of photocopy thereof did not apply mind on the anomalies described above. This lends credence to the stand of the appellant that inspection report was fabricated at some subsequent point of time.
9. In the case of Union of India vs Sunil Dutt, 2010 SCC OnLine Del 314, the Hon'ble Delhi High Court rejected the contention of Union of India that mere filing of the inspection report proves the contents thereof. It was also held by the Hon'ble Delhi High Court that mere presence of some family member or friend or relative of the government servant in the government accommodation at the time of inspection is not sufficient to draw inference of subletting of the government accommodation. In the case of Estate Officer vs Beena Rani, WP(c) 10492/16 decided by the Hon'ble Delhi High Court on PPA No. 05/2017 Davender Kumar vs Union of India Page 9 of 10 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:
2022.10.27 13:25:42 +0530 31.10.2017 and in the case of Sunil Dutt (supra), it was held that the inspection report ought to have been proved before the Estate Officer in the course of eviction proceedings but the same was not done, so the impugned order is not sustainable.
10. As mentioned above, in the present case also, neither any inquiry was conducted by the Estate Officer despite denial of the allegations of subletting by the appellant nor even the original alleged inspection report has seen light of the day till this moment nor any documents were supplied to the appellant; and rather on behalf of respondent none ever appeared before the Estate Officer. Despite that, the impugned eviction order was passed.
11. In view of above discussion, the impugned order is held not sustainable in the eyes of law, so the same is set aside. Accordingly, the appeal is allowed.
12. Original records of Estate Officer alongwith copy of this judgment be sent back and appeal file be consigned to records.
Digitally signed by GIRISH GIRISH KATHPALIA
Announced in the open court on KATHPALIA Date:
2022.10.27
this 27th day of October, 2022 13:25:24 +0530
(GIRISH KATHPALIA)
Principal District & Sessions Judge (HQs)
Tis Hazari Courts, Delhi
PPA No. 05/2017 Davender Kumar vs Union of India Page 10 of 10 pages