Delhi District Court
Ms. Payal Abdullah vs Estate Officer on 16 August, 2016
IN THE COURT OF SH.AMAR NATH, DISTRICT & SESSIONS JUDGE,NEW DELHI
PPA No. 273/2016
Ms. Payal Abdullah
W/o Sh. Omar Abdullah
R/o Bungalow No.7, Akbar Road
New Delhi. ........Appellant
Vs
Estate Officer
Resident Commission
Government of Jammu and Kashmir
Room No.11, 5 Prithviraj Road
New Delhi110011. ........Respondent
Date of Institution of Appeal : 13.07.2016 Judgment reserved on : 16.08.2016 Judgment announced on : 16.08.2016 J U D G M E N T This appeal u/s 9 of The Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter to be referred as "PP Act") is directed against the order dated 30.06.2016 (hereinafter to be referred as "Impugned Order") passed by the respondent in case No.KRC/E.O./1512/16 whereby the appellant was directed to vacate the quarter in question within a period of 15 days from the date of publication of this order and in the event of refusal or failure to comply with the order within the period specified, the appellant shall be evicted with force, if needed, praying therein; to set aside the impugned order.
PPA No. 273/16 Page No. 1 of 92. Notice of the appeal was given to the respondent who has resisted the grounds of appeal verbally. Trial Court record was requisitioned.
3. Brief facts of the case are that Sh. Omar Abdullah was allotted a bungalow bearing no.7, Akbar Road(TypeVIII), New Delhi by the Ministry of Urban Development, Government of India vide letter bearing no.1/114/99TS dated 22.11.1999 while he was holding the post of Union Minister of State, Commerce and Industry. He alongwith his family started residing in the said bungalow. The matrimonial relations between Sh. Omar Abdullah and his wife(appellant herein) became strained and resultantly, a petition for dissolution of marriage under the Foreign Marriage Act on the ground of desertion and cruelty was filed which is pending adjudication before the Ld. Principal Judge, Family Courts, Patiala House Court, New Delhi. The appellant being wife of the Union State Minister continued to occupy the premises in question till the date Sh. Omar Abdullah assumed charge as the Chief Minister for the State of J&K in January 2009. The subject premises was allotted to the Government of J&K by the Directorate of Estates, Ministry of Urban Development, Government of India, New Delhi and thus, the Directorate of Estates had undertaken to get vacant possession of the aforesaid premises. Since, the premises in question has been regularized and allotted to Government of J&K and is in their possession and as such, it is incumbent upon the Government of J&K to take steps for eviction of any unauthorized occupant. Since, the premises was not vacated by Sh. Omar Abdullah, former Chief Minister despite several reminders, the Estate Officer issued notice u/s 4 of the PP Act calling upon him to show cause as to why eviction order should not be passed against him. Pursuant to the second notice, Sh. Omar Abdullah, former Chief Minister intimated to the Office of the Estate Officer "since I am no longer in occupation of the premises mentioned in the notice, 7, Akbar Road, TypeVIII Bungalow, you are free to take whatever steps you consider necessary to take over the same. " As is apparent from the aforesaid reply of PPA No. 273/16 Page No. 2 of 9 Sh. Omar Abdullah that he is no longer in actual physical and legal possession of the subject premises and as such, the eviction order was not issued against him and hence, the proceedings u/s 5(1) of the PP Act were initiated as per law.
4. Feeling aggrieved, the appellant has challenged the impugned order mainly on the ground that
(a) The impugned order dated 30.06.2016 is wholly illegal and violative of basic principles of natural justice. No proper, effective and adequate opportunity of hearing was afforded to the appellant which vitiates the entire eviction proceedings itself and the same is liable to be set aside.
(b) There was no gazette notification with regard to the appointment of the Estate Officer and as such, he cannot initiate the eviction proceedings against the appellant with regard to the public premises and thus, the entire proceedings before him is bad in law and liable to be set aside.
(c) The impugned order passed by the alleged Estate Officer, Government of J&K is without jurisdiction and liable to be withdrawn on the ground of lack of jurisdiction.
5. I have heard the rival contentions advanced on behalf of both the sides who have taken me through the record.
6. First and foremost contention of the appellant is that Ld. Estate Officer could not have assumed jurisdiction to initiate eviction proceedings more particularly, when the Estate Officer is not a Secretary, Resident Commissioner, Government of J&K as contemplated in the notification dated 06.05.1996. Even otherwise, the respondent has no jurisdiction to initiate eviction proceedings against the appellant as PPA No. 273/16 Page No. 3 of 9 there is nothing in the impugned order as to how an ExOfficio Secretary can be equivalent to a Secretary as specified in the notification. He has also drawn the attention of this court by referring to the notification dated 06.05.1996 which is reproduced as under:
____________________________________________________________________ Ministry of Urban Affairs and Employment (Department of Urban Affairs & Poverty Alleviation) New Delhi, the 6th May,1996 S.O.1524In exercise of the powers conferred by section 3 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971(40 of 1971), the Central Government hereby appoints the officer mentioned in column 1 of the Table below being gazetted officer of the Government of Jammu and Kashmir to be estate officer for the purpose of the said Act who shall exercise the powers conferred and perform the duties imposed one Estate Officer by or under the said Act within the local limits of his jurisdiction in respect of the Public Premises specified in the corresponding entry in column 2 of the said Table:
TABLE _______________________________________________________________________ Designation of the Officer Category of Public Premises and local limits of jurisdiction ____________________________________________________________________
1. 2.
____________________________________________________________________ Secretary, All premises belonging to or taken on Resident Commission, lease by Government of Jammu and Government of Jammu and Kashmir in the National Capital Kashmir, New Delhi. Territory of Delhi including accommodation quarters in the guest houses of Government of Jammu and Kashmir at 5, Prithvi Raj Road and Kautilya Marg, Chanakya Puri, New Delhi and the areas comprising the servant quarters behind Kashmir House Rajaji Marg, New Delhi.
___________________________________________________________________ (No.21012/1/96Pol.I) R. D. Sahay, Dy. Director of Estates PPA No. 273/16 Page No. 4 of 9 ____________________________________________________________________
7. Per contra, Ld. Counsel for the respondent has refuted the aforesaid line of arguments whilst contending that Mr. Mohd. Hussain Mir, KAS was designated as Additional Resident Commissioner(in short "ARC") and Ex Officio Secretary, Resident Commission, New Delhi vide Government Order No.169GAD of 2016 dated 29.02.2016. It was submitted that Gazetted Employees of the State Government being ARC can hold the post of Secretary to the Resident Commission, Government of J&K, New Delhi. There is no separate appointee to the post of Secretary and whosoever is the ARC, discharges the functions of the Secretary and hence, ARC is also known as the ExOfficio Secretary to the Office of the Resident Commissioner, Government of J&K, New Delhi and as such, ground raised by the appellant stands nullified.
8. Next contention of the appellant is that there is no whisper in the order to show that notification dated 06.05.1996 would be applicable to all the future properties of the State of J&K. A notification could not by any stretch of imagination cover a property, to be acquired, a right in favour of the State, after a gap of long time in future. It is further stated that the premises in question is neither the property of Government of J&K nor the said premises has been taken on lease by the Government of J&K and thus, the entire proceedings are sham and illegal.
9. Ld. Counsel for the respondent has contended that the notification as referred to above is powercentric and not propertycentric. If, the interpretation as alleged by Ld. Counsel for the appellant is accepted, then it would lead to an absurd and anomalous situation. Furthermore, controversy was put to rest after PPA No. 273/16 Page No. 5 of 9 letter dated 09.09.2015, issued by the Central Government to the State Government, that the suit property belongs to the State Government and the Estate Officer is competent person to initiate eviction proceedings.
10. The Directorate of Estates, Ministry of Urban Development, Government of India wrote two letters one dated 01.06.2015 and another dated 09.09.2015 to the Resident Commissioner, Government of J&K stating therein that the premises in question is placed at the disposal of the Government of J&K which would be deemed to be allotted to the State with the retrospective effect from 11.08.2009 and further action is required to be taken by it. Thus, it can be well said that the suit premises belongs to the Government of J&K.
11. Section 2(vii) of Public Premises Act "Any premises belonging to, or taken on lease by, or on behalf of , any State Government or the Government of any Union Territory situated in the National Capital Territory of Delhi or in any other Union Territory". The present premises belongs to the State Government and as such, the present premises is covered by the definition of Public Premises given in clause (vii) of Section 2 of the PP Act. The Secretary, Resident Commissioner, Government of J&K, New Delhi is an Estate Officer for the subject premises in view of the notification dated 06.05.1996 issued by the Central Government to Ministry of Urban Affairs & Employment u/s 3 of the PP Act. Undoubtedly, the court of Ld. Estate Officer has a special and exclusive jurisdiction to adjudicate upon the application under section 5 of the PP Act. The contention of the appellant that the premises does not belong to the State of J&K is totally misconceived and devoid on merit. The Estate Officer is required to determine the question as to whether the licensee had become an unauthorized occupant of the public premises after the expiry of the period. Accordingly, proceedings under the PP Act PPA No. 273/16 Page No. 6 of 9 were initiated and impugned order was passed.
12. The Legislation in its wisdom has enacted the Act to gave a summary remedy to the Government to evict the persons in occupation of the Public Premises in order to avoid long ordeal of trial in the Civil Court and as such, it cannot be accepted that the absolute right of the user even against the Government being its owner debars it to claim the property belonging to it. Furthermore, Ld. Estate Officer has elaborately discussed the aspect of the phrase "Belonging" which warrants no different view or interference.
13. I am coming to another plea of the appellant that no proceedings could have been initiated under The Public Premises (Eviction of Unauthorized Occupants), Act, 1971 as she is never an unauthorised occupant in the suit premises and in the absence of determination of the status as an unauthorised occupant, she cannot be classified as an unauthorized occupant even in the terms of the PP Act. The public premises was never used as the official residence of the Chief Minister of J&K. Furthermore, she cannot be evicted from the suit premises in view of the "Z" category security given to her and "Z" plus category security given to her sons.
14. On the other hand, Ld. Counsel for the respondent has vehemently argued that she is an unauthorized occupant as provided u/s 2(g) of the PP Act and thus, she has no legal right or entitlement to occupy the suit premises. It is further stated that the suit premises was in occupation of Sh. Omar Abdullah from 1999 till 2002 in his capacity as Union Minister and from 2002 till 2008, he resided in the suit premises as a Member of Parliament. He occupied the premises in question from 2009 by virtue of his being the Chief Minister of Jammu & Kashmir which is apparent from the letter dated 09.09.2015 issued by the Government of PPA No. 273/16 Page No. 7 of 9 India stated therein that the suit premises stands allotted to the State of J&K w.e.f.11.08.2009.
15. It is an admitted fact that the relations of the appellant with Sh.
Omar Abdullah, an original allottee became strained. A petition for dissolution of marriage u/s 18 of the Foreign Marriage Act r/w section 27(1)(B) & (D) of the Special Marriage Act, 1955 has been filed by Sh. Omar Abdullah against the present appellant on the ground of desertion and cruelty which is pending adjudication before the Ld. Principal Judge, Family Courts, Patiala House Court, New Delhi. It is not out of fact to mention here that Sh. Omar Abdullah vide letter dated 04.06.2016 has himself intimated the respondent that he is no longer in occupation of the suit premises and the respondent may take steps in accordance with law to take over the same. Undoubtedly, the premises in question was allotted to Sh. Omar Abdullah during his tenure as Union Minister and a Member of Parliament and thereafter, this premises was allotted to the State of J&K to be occupied by the Chief Minister of the State. He has already left the premises by writing a letter dated 04.06.2016 to the State of J&K. Thus, it can be well said that the premises is no longer in occupation of the original allottee. The appellant is neither an allottee nor has any locus standi to occupy the public premises and her status has become unauthorised and thus, she is liable to be evicted from the said premises under the PP Act.
16. In "Thomas Cook (India) Ltd. vs Hotel Imperial & Ors.", 2006 (127) DLT 431, their Lordships were pleased to observe in paragraphs 25 to 28 that "the nature of occupancy of licensee is permissive which does not create any interest in the property." Their Lordships were pleased to observe further that "once permission granted to the licensee ceases then, its possession becomes to be PPA No. 273/16 Page No. 8 of 9 unauthorized." The full Bench of our own Hon'ble High Court in the matter of "Chandu Lal vs MCD" , AIR 1978 (174) Delhi, have expressed a similar view and the same is relied upon. I have no hesitation to state that the possession of Sh. Omar Abdullah was permissive who has already intimated to the respondent in writing that he is no longer in possession of the suit premises and thus, the occupation of the appellant cannot be said to be legal.
17. In so far as the security aspect of the appellant is concerned, I am to state that Ld. Estate Officer has already dealt with the security point by mentioning that Government accommodation is to be provided to the private persons, if they are under the protective cover of Special Protection Group(SPG). Nothing contrary is either shown or produced by the appellant which makes her eligible to retain the possession of the suit premises. Thus, I find no substance in the merit of the appeal. On the basis of reappreciation of the material including the documents on record, I do not find any infirmity in the impugned order dated 30.06.2016 and hence, the same is upheld and confirmed. Appeal stands dismissed. TCR be sent back alongwith the copy of this judgment and thereafter, the appeal file be consigned to record room.
Announced in the open court on this 16th Day of August 2016.
(AMAR NATH) District & Sessions Judge New Delhi PPA No. 273/16 Page No. 9 of 9 IN THE COURT OF SH.AMAR NATH, DISTRICT & SESSIONS JUDGE,NEW DELHI PPA No. 273/16 Ms. Payal Abdullah vs Estate Officer 16.08.2016 Present: Sh. Rishi Sehgal proxy counsel for the appellant.
Sh. Deepak Pathak, Ld. Counsel for the respondent.
Additionl written arguments has been filed on behalf of the respondent on 11.08.2016. Copy thereof already supplied.
Put up at 3pm for order.
(AMAR NATH) District & Sessions Judge New Delhi/16.08.2016 At 3pm 16.08.2016 Present: Sh. Rishi Sehgal proxy counsel for the appellant.
Sh.Sunil Fernandese, Ld. Standing Counsel and Sh.Deepak Pathak, Ld. Counsel for the respondent.
Vide separate judgment of even date, appeal stands dismissed. TCR be sent back alongwith the copy of this judgment and thereafter, the appeal file be consigned to record room.
(AMAR NATH) District & Sessions Judge New Delhi/16.08.2016 PPA No. 273/16 Page No. 10 of 9