Delhi High Court
Government Of Nct Of Delhi vs Premwati And Ors on 4 October, 2018
Equivalent citations: AIRONLINE 2018 DEL 2937
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 4th October, 2018.
+ W.P.(C) 7075/2015 & CM No.12966/2015 (for stay)
GOVERNMENT OF NCT OF DELHI ..... Petitioner
Through: Mr. Zahid Hanif and Ms. Sana
Naseem, Adv. for Mr. Naushad
Ahmed Khan, Adv.
Versus
PREMWATI AND ORS ..... Respondents
Through: Mr. Himanshu Gautam, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This petition under Article 227 of the Constitution of India impugns
the judgment [dated 21st November, 2014 in PPA No.01/14/2007 of the
Additional District Judge (West) acting as the Appellate Officer under
Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act,
1971 (PP Act)] allowing the appeal preferred by the predecessor of the
respondents no.1 to 3 namely, Smt. Premwati, Rakesh Kumar and Mukesh
Kumar against the order [bearing No.F.6/SDM/VV/2005/8209-11 dated 27th
December, 2006 of the respondent no.4-Estate Officer] of eviction of the
predecessor of respondents no. 1 to 3 from Khasra No.485 (0-4) bigha in
Village Mahipalpur, New Delhi.
2. Notice of the petition was issued vide order dated 18 th August, 2015,
observing that prima facie both the reasons given by the learned Additional
District Judge for allowing the appeal appeared to be erroneous. Vide the
same order, records also were requisitioned.
W.P.(C) 7075/2015 Page 1 of 15
3. The counsel for the respondents no. 1 to 3 has been appearing and
hearing of this petition has been adjourned from time to time.
4. The counsel for the petitioner and the counsel for the respondents no.
1 to 3 were heard on 13th August, 2018 and part order also dictated in Court,
to be completed in Chamber in the course of the day. However on going
through the records in Chamber, it was found (i) that the respondents had
already been dispossessed from the premises; (ii) that the appeal under
Section 9 of the PP Act was withdrawn but after several years restored and
thereafter allowed as aforesaid, and on which aspects, counsels had not
addressed. It was further found that the record of the Additional District
Judge requisitioned in this Court contained only the order of restoration of
appeal but no application, purportedly filed for restoration or reply thereto or
orders passed thereon were found on the requisitioned record. The counsels
were thus called to the Chamber, apprised of aforesaid and the Registry also
directed to enquire about the separate record if any with respect to the
application for restoration of appeal. The matter has thus been got listed
today for further hearing.
5. The Estate Officer ordered eviction of the predecessor of respondents
No.1 to 3 recording, (i) that the Weights and Measures Department was
accorded permission vide letter dated 12th August, 2005 issued by Block
Development Officer (BDO) (South West) to set up a Zonal Office in the
Old Patwarghar of Village Mahipalpur; (ii) that vide letter dated 26th August,
2005, the BDO (South West) requested the Tehsildar (Vasant Vihar) to hand
over physical vacant possession of Old Patwarghar of Village Mahipalpur to
the Zonal Officer of Weights and Measures Department; (iii) however
W.P.(C) 7075/2015 Page 2 of 15
possession of Patwarghar of Village Mahipalpur could not be handed over
due to unauthorised occupation of the same by some private person; (iv) that
a notice dated 16th January, 2006 was given to the unauthorised occupant i.e.
Ram Chander son of Prabhati, to vacate the premises by 31 st January, 2006;
(v) that a notice dated 30th January, 2006 under Section 80 of the Code of
Civil Procedure, 1908 (CPC) was received from the Advocate of Ram
Chander son of Prabhati and a reply dated 20th March, 2006 was given
thereto by the Sub-Divisional Magistrate (SDM) (Vasant Vihar); (vi) that the
matter was forwarded to the Estate Officer on 7th August, 2006 for eviction
of the unauthorised occupant Ram Chander son of Prabhati from the
government premises; (vii) that a notice dated 8th September, 2006 and
another notice dated 12th October, 2006 both under Section 4 of the PP Act
were issued to Ram Chander son of Prabhati and served through Revenue
Officials; (viii) Ram Chander son of Prabhati, vide reply dated 14th
November, 2006, stated that the notice did not give the municipal number of
the premises in his occupation and from which he was sought to be evicted
and also did not describe the boundaries of the said premises and that the
premises in his occupation were not public premises; (ix) though vide notice
dated 29th November, 2006 opportunity to hear was given to Ram Chander
son of Prabhati on 7th December, 2006 at 11.00 AM and he was also asked to
show the documents in support of his claim on Khasra No.485 measuring (0-
4) bigha in Village Mahipalpur, but he did not appear; (x) that the Halqa
Patwari, after inspection by the Revenue Officials, had submitted a report
dated 26th August, 2005 stating that Khasra No.485 measuring (0-4) bigha
was recorded in the name of "Sarkar Daulatmadar Makbuja PWD" and
which showed the property to be government premises; (xi) that in
W.P.(C) 7075/2015 Page 3 of 15
'Jamabandi' also, the said land was recorded in the name of the government;
(xii) that on the contrary Ram Chander son of Prabhati had failed to prove
that he had any title to the property or that the property was private property;
(xiii) that Ration Card and Election Identity Card of Ram Chander son of
Prabhati at the address of the said premises did not disclose title of Ram
Chander son of Prabhati to the said premises; the said documents merely
showed occupation of the said premises by Ram Chander son of Prabhati;
(xiv) that on the basis of the revenue record, it was established that the
premises were public premises. It was accordingly ordered that Ram
Chander son of Prabhati or any other person in occupation of the said
premises be evicted therefrom.
6. Ram Chander son of Prabhati preferred the appeal under Section 9 of
the PP Act, which was entertained. Interim stay of order of eviction though
sought during the pendency of appeal, was not granted.
7. The appeal was listed on 11th January, 2008, when the "son of the
appellant along with Sh. R.G. Bhasin, Advocate" appeared for the appellant
Ram Chander son of Prabhati and sought adjournment "as the main counsel
is busy in the High Court". Observing, that there was no ground for
adjournment, the counsel for respondents in the appeal was partly heard by
the Additional District Judge and the appeal posted for further arguments on
9th May, 2008.
8. On 9th May, 2008, the following order was passed:
"Present: Sh. Mukesh S/o appellant along with Sh. D.K.
Hira, Adv.
W.P.(C) 7075/2015 Page 4 of 15
Sh. R.K. Nagar, P/CI along with Sh. S.K. Gupta,
Inspector, Weights & Measures Deptt. GNCT,
Delhi for the respondent.
Counsel for the appellant has filed an application
for withdrawal of appeal.
Vide this application, it is submitted that during
the pendency of the proceedings, the appellant expired on
20.01.2008. It is further mentioned that even the
possession of the premises in question has been forcibly
taken over by the respondent during the pendency of this
appeal. Vide this application, it is prayed that as the
appeal is abated, they be allowed to withdraw this
appeal.
Sh. Mukesh S/o appellant who is present has made
a statement on oath that his father Sh. Ram Chander, the
appellant in this case has expired on 20.01.2008. He has
also filed copy of death certificate of his father, same is
Mark A and that they do not wish to proceed with this
appeal.
In view of the statement made by the appellant's
son and the above record, the appeal stands abated.
Appeal is therefore disposed as such.
Copy of this order along with the Estate Officer's
record be returned to the Estate Officer.
Appeal file be consigned to Record Room."
9. The file requisitioned from the Additional District Judge, thereafter
contained the order dated 23rd July, 2012, allowing an application of the
respondents herein as heirs of Ram Chander son of Prabhati, for setting aside
of the abatement and restoration of the appeal. However, the record neither
had any application nor reply thereto, nor the orders if any passed on the said
application prior to 23rd July, 2012. The same raised suspicion and the
attention of counsels was invited thereto as aforesaid.
W.P.(C) 7075/2015 Page 5 of 15
10. The counsel for the respondents, on enquiry today, whether he in his
own file has copies of the application filed after 9 th May, 2008 for setting
aside of the abatement and for restoration of the appeal before the Additional
District Judge, has from his own file shown a photocopy of the copy of the
application and reply thereto. The counsel has also handed over in the Court
certified copy of the orders dated 7th September, 2011 and 27th September,
2011 on the said application.
11. A perusal of the aforesaid certified copies of the orders shows that the
applications filed were registered as Mis.Appl. No.9/2010 and MCA
No.16/2010.
12. An official from the Record Room of the District Judge is also present
in Court and who, earlier on enquiry, had stated that there is no other record
of the appeal aforesaid except that which has already been sent to this Court.
He has now been shown the certified copies of the orders aforesaid and
asked to trace the files of Mis.Appl. No.9/2010 and MCA No.16/2010, if
consigned separately. He states that he will report by tomorrow evening.
13. The counsels for the parties have been heard again today with orders
to be dictated in Chamber awaiting additional file, if any from the Record
Room of the District Judge.
14. The file of MCA No.16/2010 has been received from the Record
Room of the District Judge and which shows (i) that the respondents herein,
on 9th April, 2010, filed application for setting aside of the abatement and for
restoration of the appeal along with an application under Section 5 of the
Limitation Act for condonation of delay in applying therefor and which
applications came up before the Additional District Judge on 9 th April, 2010
W.P.(C) 7075/2015 Page 6 of 15
when notice thereof was ordered to be issued; (ii) that replies were filed by
the petitioner herein to the said applications; (iii) that vide order dated 27 th
September, 2011, the application under Section 5 of the Limitation Act for
condonation of delay in filing the application for setting aside of the
abatement and for restoration of the appeal was allowed; and, (iv) that vide
order dated 23rd July, 2012, the application for setting aside of the abatement
and the order of withdrawal of the appeal were set aside and the appeal
revived.
15. The appeal, vide order dated 23rd July, 2012 was revived, reasoning
(a) that it was the case of the respondent No.3 Mukesh Kumar that he
harboured a misimpression to the effect that when he had contacted the
earlier counsel for the deceased appellant, an application was prepared and
filed for substitution of the respondents herein in place of the deceased
appellant; (b) that he gave the statement on oath also before the Court on 9 th
May, 2008 under the impression that the statement was only for the purposes
of substitution of the respondents in place of the deceased appellant Ram
Chander son of Prabhati; (c) that it was further the case of the respondent
No.3 Mukesh Kumar that when he did not hear about the matter from his
Advocate, he again contacted the counsel and then learnt that on 9th May,
2008 the appeal had been withdrawn and which was never his intention; (d)
that it was yet further the claim of the respondent No.3 Mukesh Kumar that
he and the respondents No.1&2 were deeply shocked on learning that the
appeal had been withdrawn; (e) that it was the contention of the respondents
that the appeal could not have abated as the cause of action was not of the
deceased appellant only but equally of the respondents who were also in
occupation of the property with respect to which order of eviction has been
W.P.(C) 7075/2015 Page 7 of 15
made and thus right to sue survived; (f) that it was the admitted position that
possession of the premises had been taken over on 21 st May, 2007; (g) that
the factum of the petitioner taking over possession on 21st May, 2007
amounted to outsmarting the process of law, inasmuch as on 21 st May, 2007,
the appeal under Section 9 of the PP Act as well as the application for
interim stay therein were still pending; (h) that the petitioner acted in haste in
getting the premises vacated on 21st May, 2007; (i) that the petitioner had
thereby abused the process of law; propriety demanded that as long as the
appeal was pending, the order of eviction should not have been enforced; (j)
that the conduct of the appeal by the counsel for the deceased appellant was
also found to be negligent; (k) that the deceased appellant as well as his heirs
belonged to illiterate class and were dependent upon their Advocate to take
appropriate steps; and, (l) that the entire facts and circumstances were
extremely unfortunate and compelled the Court to set aside the abatement
and to restore the appeal to its original position for decision in accordance
with law.
16. A perusal of the file which has been received now also shows that
after 23rd July, 2012, the appeal was adjourned from time to time and on 10 th
July, 2014 it was ordered that the file of MCA No.16/2010 be consigned to
Record Room and further proceedings be continued only in the file of the
appeal under Section 9 of the Act.
17. This explains why the applications made after 9th May, 2008 and
orders passed thereon were not found in the file of the appeal which was
requisitioned to this Court.
W.P.(C) 7075/2015 Page 8 of 15
18. The same learned Additional District Judge who vide order dated 27th
September, 2011 allowed the application under Section 5 of Limitation Act
and vide order dated 23rd July, 2012 set aside abatement and order of
withdrawal of appeal and restored the appeal, vide impugned order dated 21 st
November, 2014 has allowed the appeal reasoning, (a) that the description of
the property was not accurate, inasmuch as the Estate Officer ignored the
major difference in an area described as 0-4 biswas and an area described as
0-4 bighas as shown in the notice dated 16th January, 2006; the order of
eviction could not be sustained on this ground only; (b) that the order of
eviction was also liable to be set aside in terms of Bhagat Singh Vs. DDA
AIR 1988 Delhi 174; (c) that the record of proceedings before the Estate
Officer was not produced, inspite of opportunity; therefrom it was evident
that the order of eviction was passed by the Estate Officer in an arbitrary
manner; (d) that when Ram Chander son of Prabhati had informed the
authorities that he and his last three generations had been residing in Village
Mahipalpur and the said premises had been in their occupation for the last
100 years, he was not given an opportunity to produce the requisite material
to arrive at any finding; (e) that no opportunity of personal hearing was
given; (f) that no material was placed on record to show that the property
was a Patwarghar; (g) that the occupation of the property by Ram Chander
son of Prabhati was not disputed; (h) that the Estate Officer did not examine
the Tehsildar; and, (i) that the Estate Officer simply proceeded on the
presumption that the property was a government property, when there was
no such material on record.
19. The file of the appeal which was received earlier also contains the
order dated 11th September, 2014 recording that the file of the Estate Officer
W.P.(C) 7075/2015 Page 9 of 15
had been produced. The same falsifies one of the reasons given by the
learned Additional District Judge, that the file of the Estate Officer had not
been produced and wherefrom in the impugned order, adverse inference was
drawn.
20. The counsel for the petitioner, in the hearing on 13th August, 2018,
drew attention to the following documents on the file of appeal earlier
received in this Court (i) the Khasra Girdawari for the year 2002-2003 of
village Mahipalpur showing the subject land to be recorded in the name of
"Sarkar Daulatmadar" i.e. the Government of the State; (ii) the notice dated
16th January, 2006 issued by SDM, Delhi Cant. and SDM, Vasant Vihar to
Sh. Ram Chander, predecessor of respondents no. 1 to 3, to vacate the
aforesaid property which was the property of the Government recorded as
Patwarghar and further informing him that if he did not so vacate the
property on or before 31st January, 2006, proceedings as per law shall be
initiated against him for eviction and for recovery of damages; (iii) legal
notice dated 30th January, 2006 got issued by the predecessor of the
respondents no. 1 to 3 to SDM, Vasant Vihar and SDM, Delhi Cant. under
Section 80 of the CPC, in response to the notice aforesaid asking him to
vacate the premises; in the said notice under Section 80, it was claimed that
the predecessor of the respondents no.1 to 3 and his earlier three generations
had been residing in the property for the last 100 years; (iv) the notice dated
8th September, 2006 under Section 4 of the Public Premises (Eviction of
Unauthorized Occupants) Act, 1971 informing the predecessor of the
respondents no. 1 to 3 that the respondent no.4, as the Estate Officer, was of
the opinion that the predecessor of the respondents no. 1 to 3 was an
unauthorized occupant of the said premises which was a public premises and
W.P.(C) 7075/2015 Page 10 of 15
asking him to give reply, if any, within 15 days; (v) notice dated 29th
November, 2006 of oral hearing granted to the predecessor of the
respondents no. 1 to 3 on 7th December, 2006; and, (vi) the order dated 27th
December, 2006 of the Estate Officer of eviction of the predecessor of the
respondents no. 1 to 3.
21. The learned Additional District Judge, in the impugned order, has
ignored all the aforesaid documents and has erred, in fact, in holding that
there was nothing before the Estate Officer for holding the property, with
respect to which order of eviction was made, to be public premises. The
learned Additional District Judge is further found to have erred in holding
that there was any discrepancy in the description of the property, forgetting
that no dispute was raised by the respondents No.1 to 3 or their predecessor
in this regard and further forgetting that there was no dispute as to the
identity of the property as was also evident from the notice under Section 80
of the CPC got issued by the predecessor of the respondents No.1 to 3. The
learned Additional District Judge also forgot that possession of the property
had already been recovered and it was not the case that possession had been
recovered of property different from that which was ordered by Estate
Officer to be vacated. A reading of the entire impugned order of the learned
Additional District Judge indicates as if reasons were being searched in
support of decision already taken to set aside the order of eviction.
22. In fact, filing of applications for setting aside of the abatement and for
restoration of the appeal and for condonation of delay in applying therefor
after nearly two years of withdrawal on 9th May, 2008 of the appeal on 9th
April, 2010, after the Presiding Judge had changed and the reasons given for
W.P.(C) 7075/2015 Page 11 of 15
condonation of delay and for setting aside of the abatement as well as the
order of withdrawal of appeal and restoration of the appeal, do not inspire
confidence.
23. The petitioner, though in the memorandum of this petition has
mentioned the factum of withdrawal of the appeal and subsequent restoration
thereof but has not challenged the order dated 27th September, 2011 allowing
the application for condonation of delay in applying for setting aside of the
abatement and the order of withdrawal of the appeal and for restoration of
the appeal and the order dated 23rd July, 2012 setting aside the abatement as
well as the order of withdrawal of appeal and restoring the appeal. However,
once this Court is approached in its supervisory jurisdiction, notwithstanding
the petitioner having not challenged the said orders, this Court would be
entitled to take into consideration the said orders also, while dealing with the
challenge to the order dated 21st November, 2014 ultimately allowing this
appeal.
24. As recorded in the order dated 9th May, 2008, reproduced above, of the
learned Additional District Judge, the statement of respondent No.3 Mukesh
Kumar as under was also recorded:
"Statement of Sh. Mukesh Kumar S/o Late Sh. Ram Chander
Aged about 21 years R/o H. No.1369, Road No.6, Mata Wali,
Near First Flight Courier Office, Village Mahipal Pur, New
Delhi - 37.
On S.A.
I am son of Late Sh. Ram Chander, the appellant in this
case. My father expired on 20.01.2008. I have filed copy of
death certificate of my father, same is Mark A.
W.P.(C) 7075/2015 Page 12 of 15
As the appeal has already been abated, I do not wish to
proceed with this appeal."
25. The aforesaid statement is signed by respondent No.3 Mukesh Kumar
in English language. Similarly, the applications filed for restoration of the
appeal were also signed by respondent No.3 Mukesh Kumar as well as by
the respondent No.2 Rakesh Kumar in English language. The respondent
No.3 Mukesh Kumar, on 9th May,2008, was accompanied by an Advocate.
It was not the case of the respondents in the application for restoration of the
appeal that they were illiterate. It was also not the case in the application
that the respondents were misled by the Advocate who drafted the
application for withdrawal of the appeal and/or who appeared with the
respondent No.3 Mukesh Kumar before the Additional District Judge on 9 th
May, 2008. It was also not the case that any action had been taken by them
against the said Advocate.
26. If actions which are voluntarily withdrawn, are permitted to be
restored in such casual manner, there would be no finality of any rights,
which would remain in abeyance and in a state of flux, in perpetuity and
which is contrary to public interest. Moreover, as aforesaid, the reasons
given for condoning the delay for setting aside of the abatement and setting
aside of the order of withdrawal of appeal and for restoring the appeal as
well as for allowing the appeal, seen in totality do not inspire confidence.
Once in the appeal, no order granting interim protection or staying
dispossession had been made, the learned Additional District Judge erred in
reasoning that the petitioner abused the process of law by executing the order
of eviction. Either the Court, if finds a case therefor, should grant interim
W.P.(C) 7075/2015 Page 13 of 15
order or should not castigate the litigant for changing the status quo. If, in
law, mere pendency of a lis was a bar to changing the status quo as existing,
there would have been no need to make statutory provisions for grant of
interim relief.
27. The counsel for the respondents, during hearing on 13th August, 2018,
had referred to Government of Andhra Pradesh Vs. Thummala Krishna
Rao (1982) 2 SCC 134, Shekhar Shah Vs. Government of Maharashtra
233 (2016) DLT 32 and Bhagat Singh Vs. Delhi Development Authority
AIR 1988 Delhi 174 but in the facts aforesaid, the said judgments are of no
relevance.
28. Another factum which is of significance is that the predecessor of the
respondents admittedly lost possession of the premises, from which they
were ordered to be evicted by the Estate Officer, as far back as on 21 st May,
2007. Neither during the pendency of the appeal, till it was withdrawn on 9th
May, 2008 nor at the time of applying for restoration of appeal nor after the
appeal was restored, did the predecessor of the respondents and/or the
respondents at any time applied for restoration of possession. More than
eleven years have now elapsed. The same is also indicative of the fact that
this petition is being defended, only since it has been filed and else the
respondents have no interest in the property and have accepted the order of
the Estate Officer.
29. For all the aforesaid reasons, the petition is allowed. The orders dated
27th September, 2011, 23rd July, 2012 and 21st November, 2014 of the
learned Additional District Judge are set aside. Resultantly, the appeal
preferred by the predecessor of the respondents No.1 to 3 and withdrawn by
W.P.(C) 7075/2015 Page 14 of 15
the respondents, stands withdrawn. Alternatively, the order allowing the
appeal is set aside. The order of eviction of the Estate Officer is restored.
30. The petition is disposed of.
31. I am refraining myself from imposing costs on the respondents.
32. Both the requisitioned files be returned and be tagged for being
consigned to the Record Room of the District Judge.
RAJIV SAHAI ENDLAW, J.
OCTOBER 04, 2018 ak/bs W.P.(C) 7075/2015 Page 15 of 15