Delhi District Court
Monica Kamra vs Estate Officer on 7 September, 2015
IN THE COURT OF MS. RAVINDER KAUR,
DISTRICT & SESSIONS JUDGE : SOUTH WEST
DISTRICT DWARKA COURTS : NEW DELHI.
Unique Case ID : 02405C0002872015
PPA No. 01/2015
MONICA KAMRA
Wife of Shri Sanjay Kamra,
D/o Shri Deepak Sood,
R/o 78, Salaria Officers' Enclave,
Sector 21, Dwarka,
New Delhi-110075 ......... Appellant
Versus
1 ESTATE OFFICER
Ministry of Defence,
O/o the JS(T) &CAO
Room No. 152, 'E' Block Hutments
Dalhausie Road, DHQ PO New Delhi-11,
2 Wg. Cdr. SANJAY KAMRA
Son of Late Sh. H L Kamra,
R/o A-45, Hauz Khas,
New Delhi-110016. .... Respondents.
PPA No. 01/2015 Monica Kamra
Vs.
Estate Officer & Anrs Page no.1/19
Date of Institution : 09-01-2015
Date of Decision : 07-09-2015
JUDGMENT
1. By this Judgment, I shall dispose of the appeal u/s. 9 of the Public Premises Act (Eviction of Unauhorised Occupation) Act, 1971 ( hereinafter referred as the Act) filed by appellant Monica Kamra against eviction order dated: 18-12-2014 passed by the Estate Officer.
2. Notice of the appeal was issued to both the respondents ie respondent no. l Estate Officer and respondent no. 2 Wg. Cdr. Sanjay Kamra.
3. The respondent no. 1 has filed reply to the appeal supported by an affidavit and copy was supplied to the appellant and respondent no. 2.
4. No reply has been filed to the appeal by respondent no. 2.
PPA No. 01/2015 Monica Kamra
Vs.
Estate Officer & Anrs Page no.2/19
5. The record from the Estate Office was
received and perused.
6. I have arguments addressed by Sh Sunil
Mittal, counsel for the appellant, Sh. Arvind Saraswat,
counsel for respondent no. 1 and Sh. A. K. Vashistha,
counsel for respondent no. 2 at length and have gone through the material available on record as well as the relevant provisions of law.
7. Brief facts necessary for disposal of the present appeal are that the appellant is the wife of respondent no. 2. They got married on 18-10-96. From the wedlock they have two daughters namely Sanjana and Saumya. The allegations are that respondent no. 2 inflicted domestic violence on the appellant and also deserted her and his family on 22-04-14. Further that respondent no. 2 is employed as Wing Commander with the Indian Airforce and was allotted family accommodation for himself and his family members, referred above, at 78 Salaria Officers' Enclave, Sec. 21, Dwarka, New Delhi from MoD Pool accn. No. 78 on 27-02-12 for his tenure at IHQ of MoD while posted as PPA No. 01/2015 Monica Kamra Vs. Estate Officer & Anrs Page no.3/19 Joint Director (F&B), JCES, HQ IDS, MoD. The respondent no. 2 was transferred to AFS Palam Delhi Cantt., and applied for retention of MoD Pool accn., on Non- Availability Certificate ( NAC Grounds).
8. The respondent no. 2 on being posted out from IHQ of MoD was eligible to retain the MoD Pool accn. No. 78 Dwarka, New Delhi for a period of 02 months ie upto 18-10-14 on NAC basis in terms of letter No. 0203/K-1219/ CAO/ E-1(B) dated: 20-08-2014. Since the respondent no. 2 did not vacate the premises after 18-10-14, show -cause notice dated: 28-11-14 was issued to him by the Quartering Officer, CAO Office of JS (Trg) and CAO Ministry of Defence, New Delhi, as to why an eviction order should not be made against him. Thereafter on 18-12-14 the eviction order was passed in respect of the property in question by the Quartering Officer directing the respondent no. 2 and all persons who may be in occupation of the premises in question or any part thereof to vacate the same by 10th January 2015. It is the said impugned order which has been challenged by the appellant vide present appeal.
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Vs.
Estate Officer & Anrs Page no.4/19
9. Ld. Counsel for the appellant has submitted that as per Section 4 of the Act, if the Estate Officer is of the opinion that any persons are in unauthorised occupation of any public premises and they are liable to be evicted, the Estate Officer is required to issue notice in the prescribed manner in writing calling upon all persons concerned to show-cause why an order of eviction should not be passed. Further, that as per Section 4 (2) show-cause notice must contain all the grounds on which the order of eviction is proposed to be made and it shall require all the persons concerned, those who are in occupation of or claim interest in the public premises to show-cause, if any, against the proposed order of eviction. Further that the show-cause notice is required u/s. 4(3) of the Act to be affixed on the outer door or some other conspicuous part of the public premises and in such other manner as may be prescribed and only then the notice shall be deemed to have been duly given to all persons concerned. It is submitted that in the present case, the show-cause notice dated:
28-11-2014 is addressed to respondent no. 2 only both at the residential as well as his office address. That though on the top of the notice, the mode of despatch is PPA No. 01/2015 Monica Kamra Vs. Estate Officer & Anrs Page no.5/19 mentioned as Registered AD but at the bottom of the same, it is mentioned that it was delivered to the respondent no. 2 at the office. The said show -cause notice was never sent at the residential address of respondent no. 2. That the respondent no. 1 in connivance with respondent no.2 did not issue any notice to show-cause to the appellant and her two daughters, in occupation of the public premises as to why an order of eviction should not be made. On account of non-service of show-cause notice upon the appellant and her children, they were not given an opportunity of being heard or to lead any evidence in support of cause, if any, to be shown by them before the concerned authority. It is submitted that the respondent no. 1 in connivance with respondent no. 2 did not issue any show-cause to the appellant and her children nor affixed the show-cause notice outside the public premises in question and instead delivered the same to respondent no. 2 by hand in the office. The appellant was taken by surprise when the order of eviction u/s. 5 of the Act was affixed on the outer door of the public premises and it is only then she came to know about the eviction order. Further, that for want of PPA No. 01/2015 Monica Kamra Vs. Estate Officer & Anrs Page no.6/19 show-cause notice u/s. 4 of the Act to appellant, the impugned eviction order is bad in law.
10. Counsel for the appellant has drawn the attention of the court to para 7 of the reply of the respondent no. 1, wherein it is mentioned that respondent no. 2 vide his letter dated: Nil, Oct.2014 had intimated respondent no. 1 that his wife ie the appellant was staying in the MoD Pool accn. and due to strained marital relationship with her, she had refused to vacate the accommodation and his willfully attributing to the defiance of Govt. Orders of vacating the said premises to harass him and further that it is respondent no. 2 who requested respondent no. 1 to immediately initiate eviction proceedings to vacate the Government accommodation against the unauthorised occupation by the appellant ie his wife Ms Monica Kamra. Further, that despite being aware of the fact that the appellant was in occupation of the public premises, the respondent no 1 did not serve any notice u/s. 4 of the Act upon her and it was so in collusion with respondent no. 2.
11. It is also the argument of the counsel for the PPA No. 01/2015 Monica Kamra Vs. Estate Officer & Anrs Page no.7/19 appellant that the public premises in question is a family accommodation and respondent no.2 left the house as well as the appellant deliberately. That the public premises is a shared household for the appellant and that respondent no. 2 under protection of woman for Domestic Violence Act is duly bound to provide residence to his wife and children and also that they are entitled to reside in the public premises in question irrespective of the fact as to who is the owner of the same. It is submitted that the order of eviction being bad in law and against the principles of nature justice is liable to be set aside.
12. The counsel for respondent no. 1 during the course of arguments has admitted that no show-cause notice was served upon the appellant and their daughters. He also conceded that no show-cause notice was affixed outside the public premises in question, in terms of Sec.4(3) of the Act.
13. The counsel for respondent no 2 has submitted that no notice u/s 4 of the Act was required to be served upon the appellant as the public premises in PPA No. 01/2015 Monica Kamra Vs. Estate Officer & Anrs Page no.8/19 question was allotted to respondent no. 2 and as such notice to show-cause why an order for eviction should not be made, was only required to be served upon respondent no. 2, the allottee. It is submitted that the appellant who is the wife of respondent no. 2 is only his agent and is residing in the property in this capacity, as such no notice u/s 4 of the Act was required to be served upon her. That once the eviction order has already been passed against respondent no. 2 u/s 5 of the Act, his family members residing therein are also required to be evicted therefrom on the basis of such eviction order. It is further submitted that vide the present appeal, the appellant is trying to harass the respondent no. 2 on account of their strained matrimonial relations. It is prayed that the appeal be dismissed and the appellant be directed to vacate the premises alongwith her children.
14. The relevant provisions of law to dispose of the present appeal are contained in Sec. 4 and Sec. 5 of the Act. The same are as under:
Sec. 4 of the Act-
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Estate Officer & Anrs Page no.9/19
"Issue of notice to show cause against order of eviction-(1) If the estate officer is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, the estate officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made.
(2) The notice shall-
(a) specify the grounds on which the order of eviction is proposed to be made; and [(b)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
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Estate Officer & Anrs Page no.10/19
proposed order on or before such date as is specified in the notice, being a date not earlier 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.] (3) The estate officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned."
Sec. 5 of the Act-
"Eviction of unauthorised occupants.-
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Estate Officer & Anrs Page no.11/19
(1) If, after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and [any evidence produced by him in support of the same and after personal hearing, if any given under clause (b) of sub-section (2) of Section4], the estate officer is satisfied that the public premises are in unauthorised occupation, the estate officer may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.
(2) If any person refuses or fails to comply with the order of eviction [on or before the date specified in the said order or within fifteen days of the date of its publication under sub-section(1), whichever is later,] the PPA No. 01/2015 Monica Kamra Vs. Estate Officer & Anrs Page no.12/19 estate officer or any other officer duly authorised by the estate officer in this behalf [may, after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person] from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary."
15. As per Sec. 4 of the Act, if the Estate Officer is of the opinion that any persons are in unauthorised occupation of a public premises and they are liable to be evicted, he is required to issue a notice in prescribed manner in writing calling upon all the persons concerned to show-cause as to why an order for eviction should not be made. It is mandatorily required that the notice must contain specifically the grounds on which the order of eviction is proposed to be made and it requires all the persons who may be in occupation of the public premises or claim interest therein to show-cause, if any, against the proposed order of eviction and to appear before the Estate Officer alongwith evidence which they intend to produce in support of the cause shown. If they desire, the Estate Officer shall also afford them an PPA No. 01/2015 Monica Kamra Vs. Estate Officer & Anrs Page no.13/19 opportunity of being heard in person.
16. It is the requirement of Sec. 4 ( 3) of the Act that the Estate Officer serves the show-cause notice by affixation on the outer door or some other conspicuous part of the public premises and in such other manner as may be prescribed, only then the notice shall be deemed to have been duly given to all persons concerned.
17. The contention of the Ld. Counsel for the respondent no. 2 that the show-cause notice was not required to be served upon the appellant being the wife / agent of respondent no. 2 as it is the respondent no.2 who was allottee of the public premises, is of no consequence, in view of provision of Sec. 4 of the Act. Had it been the intention of the legislature that the show- cause notice was required to be served only upon the allottee, it would have been so mentioned in Sec. 4 of the Act. However, to the contrary, in Sec. 4 of the Act, it is mentioned that the notice is required to be issued to all the persons concerned ie all the persons who are,may be in occupation of the public premises or claim interest therein. Admittedly, there is never a joint allotment of the public premises in the name of two or PPA No. 01/2015 Monica Kamra Vs. Estate Officer & Anrs Page no.14/19 more persons. There is only one allottee and the others can be the members of his family residing therein or the sub-tenant occupying the premises unauthorisedly. The language of Sec. 4 of the Act is not ambiguous but crystal clear and the provisions are required to be followed mandatorily by the Estate Officer. Before passing an order of eviction the Estate Officer is required to issue show-cause notice to all the persons in occupation of the public premises or claiming interest therein. The manner in which the show-cause notice is required to be served upon these persons is also prescribed in Sub Sec. 3 of Sec. 4 of the Act and it is mandatory that the show-cause notice must be affixed on the outer door or some other conspicuous part of the public premises.
18. In the present case, the provisions of Sec. 4 of the Act have not been complied with. Admittedly, respondent no. 1 the Estate Office was aware of the fact that the appellant and the two daughters of the appellant and respondent no. 2 are residing in the public premises but despite that no show-cause notice in terms of Sec. 4 (1) & (2) of the Act was served upon them, so PPA No. 01/2015 Monica Kamra Vs. Estate Officer & Anrs Page no.15/19 as to give them opportunity to show-cause notice, if any, against the proposed order of eviction and to produce any evidence or to seek personal hearing before the Estate Officer. The principles of nature justice have been violated in the present case apparently by the respondent no 1 in connivance with respondent no.2. It is admitted case of respondent no.1 that even show-cause notice issued to respondent no. 2 was also not affixed at the outer door or some other any conspicuous part of the public premises in question in terms of Sec. 4 (3) of the Act. Consequently, the appellant was caught unaware when the eviction order dated:18-12-14 passed by the respondent no. 1 u/s. 5 of the Act was affixed on the public premises in question.
19. I have perused the record produced by respondent no. 1 the Estate Office. The show-cause notice dated: 28-11-14 issued in the present case u/s. 4 of the Act reveals that it is addressed to respondent no. 2 at his both the addresses ie H. No. 78, Dwarka, New Delhi, which is the public premises in question and his office address ie 3 Wing, AFS, Palam, Delhi Cantt. On the top of the notice on its right hand, it is mentioned PPA No. 01/2015 Monica Kamra Vs. Estate Officer & Anrs Page no.16/19 "Registered". At the bottom of the same, there is receiving of the notice on the same date ie 28-11-14 by the respondent no.2 as confirmed by the counsel for the respondent no. 1 as well as by respondent no. 2. This itself shows that the show cause notice was neither sent vide registered post nor the same was affixed on the public premises. The show-cause notice was served upon the respondent no.1 in the office itself and these facts are not disputed by both by the respondent no 1 and the respondent no. 2. This fact cannot be ignored that the respondent no 1 at the time of issuance of show-cause notice dated: 28-11-14 was already aware of the fact that the respondent no 2 and his wife were having strained relations as this fact was communicated in writing by the respondent no. 2 vide his undated letter written in the month of Oct. 2014 to Dy CAO (Quartering) New Delhi. This fact is admitted by the respondent no.2 in para 7 of his reply to the appeal that both the respondent no 2 and appellant, his wife were having strained relation and due to this she had refused to vacate the accommodation. Despite knowing all these facts, the respondent no. 1 flouted the provisions of law and did not serve show-cause notice to PPA No. 01/2015 Monica Kamra Vs. Estate Officer & Anrs Page no.17/19 the appellant and her children of the proposed order of eviction, resulting into miscarriage of justice and harassment to the appellant and her children.
20. As it is observed above that the mandatory provisions of Sec. 4(3) of the act was not complied with by affixing the show-cause notice on the outer door or some other conspicuous part of the public premises, even in the case of respondent no.2, however, since the respondent no. 2 had not preferred any appeal against the eviction order, as such the same is of no consequence qua him. However, the eviction order passed against respondent no. 2 cannot be executed against the appellant and her children, occupying the public premises in question for want of show-cause notice to them.
21. At the same time, it is observed that since the eviction order dated: 18-12-14 passed by the respondent no. 1 is only against the respondent no.2, therefore the same cannot be set aside in the present appeal since the appellant was not party to those proceedings. The respondent no.2 has not challenged PPA No. 01/2015 Monica Kamra Vs. Estate Officer & Anrs Page no.18/19 the eviction order, referred above, as such the same has become final qua him. However, the same cannot be executed against the appellant or any other person in occupation of the public premises in question or claiming interest therein.
22. In these circumstances, the appeal is hereby dismissed. However, as it is the case of the respondent that the appellant is in occupation of the public premises in question unauthorisedly, it would be open to the concerned authority to initiate appropriate action against her, to evict her from the said premises, by following the appropriate procedures established by law.
Record of Estate Office be sent back alongwith copy of this judgment.
Appeal file be consigned to the Record Room.
Announced in open court on the 7th September, 2015.
(Ravinder Kaur)
District & Sessions Judge,
South West District
Dwarka Courts/Delhi
PPA No. 01/2015 Monica Kamra
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Estate Officer & Anrs Page no.19/19