Delhi District Court
Shri D.K. Bose vs The Office Of Estate Officer on 15 November, 2011
IN THE COURT OF MRS. SUNITA GUPTA
DISTRICT & SESSIONS JUDGE: DELHI
PPA No.15/2011
Unique ID No. 0240IC0244242011
Shri D.K. Bose,
S/o Sh. B.N. Bose,
r/o. 2-H, Minto Road (MSD Flats),
New Delhi -2
Also at
K-2099A (SF),
C.R. Park,
New Delhi -19.
.......Appellant
Versus
The Office of Estate Officer,
& Deputy Director Litigation,
Directorate of Estate,
Maulana Azad Road,
Nirman Bhawan, New Delhi.
..........
Respondent
Date of institution of appeal : 27.05.2011
Date on which final arguments were heard :11.11.2011
Date of pronouncement of judgment : 15.11.2011
JUDGEMENT :-
Appellate jurisdiction of this Court under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short "the PP Act") has been invoked by the appellants, feeling aggrieved by the order of the Estate officer dated 11-05-2011 in respect of public premises No.2-H Minto Road, New Delhi 2- Briefly stated the facts giving rise to the present appeal are that the appellant was allotted Flat No. 2-H Minto Road, New Delhi-2. On the basis of inspection report dated 3-3-2010 the Deputy Director of Estate vide order dated 1-4-2010 cancelled the allotment of the Flat. The appeal preferred by the Appellant was dismissed (PPA Appeal No.15/11) - (Page 1 of 10) vide order dated 6-7-2010. Thereafter a notice dated 16-12-10 was received by the appellant whereby eviction proceedings under the PP Act were initiated against him. Vide impugned order dated 11-5-2011, eviction order was passed by the respondent. The said eviction order has been challenged by filing this appeal. 3- Notice of the appeal was given to the respondent. Record of Estate Officer was called.
4- I have heard Shri Ajit Nair, Advocate for the Appellant and Shri J.N. Vasisht, Advocate for the respondent and have carefully perused the record. 5- It was submitted by the learned counsel for the Appellant that the impugned order is bad in law inasmuch as the respondent has relied upon the inspection report for alleging that the premises have been sublet by the appellant. However, the inspection is alleged to have been carried out in the presence of two persons namely Dashrath and one Chowkidar. But column 16 of the Inspection Form is lying blank, wherein the inspection team was required to report in case the premises was found sublet. The fact that this column was lying blank shows that there was no subletting. Moreover, merely on the basis of premises having been found locked, no inference could have been drawn that the premises has been sublet by the appellant. When the proceedings were initiated before the Estate Officer, neither inspection report was proved nor the persons in whose presence the inspection was alleged to have been carried out, were examined. In fact, no evidence was led by the respondent before the Estate Officer. On the other hand, the appellant examined himself and also filed documentary evidence in order to prove that he is still in occupation of the premises. The appellant (PPA Appeal No.15/11) - (Page 2 of 10) promotes football and therefore he allowed two Nigerian visitors to stay in the house for few days and it was not a case of subletting. The testimony of the appellant and two witnesses examined by him had gone unrebutted and unchllanged, inasmuch as the respondent did not choose to cross examine any of the witnesses. In view of the unrebutted and unchllanged testimony coupled with documentary evidence led by him, it stands proved that he was in occupation of the premises, yet without assigning any reason the eviction order has been passed, which is in violation of principles of natural justice. The eviction order, under the circumstances, is absolutely devoid of merits and deserves to be set aside. Reliance was placed on New India Assurance Co. Ltd. vs. Nusli Wadia and another, AIR 1988 SC
876. 6- Per contra, it was submitted by learned Counsel for the respondent that on the basis of inspection report, the Inspecting Team formed an opinion that premises has been sublet by the appellant. Moreover, show cause notice was given to the appellant who submitted a reply before the Director of Estates. The appellant admitted that on the date of inspection, premises was found locked and he had allowed two Nigerian Visitors to stay in the premises. Therefore, from the admission on the part of the appellant, it was proved that it was a case of subletting. Moreover, no such document was filed by the appellant before the Director of Estates and subsequent documents filed before the Estate Officer are manipulated one. There was no violation of principle of natural justice as full opportunity of hearing was given to him. The witnesses who were present at the time of inspection may not have been examined due (PPA Appeal No.15/11) - (Page 3 of 10) to non availability but that does not vitiate the eviction proceedings, inasmuch as from the admission of the appellant, the case of the respondent stand proved. Under the circumstances, it was submitted that the impugned order does not suffer from any infirmity and as such appeal is liable to be dismissed. Reliance was placed on M/s Safari Airways Vs. The Estate Officer and others, AIR 1983 Delhi 347 and Ramesh Chand Lodha & others Vs. UOI & others, (order dated 2-12-1999 passed by DB of Delhi High Court in CM Nos. 3444-45/99 and LPA No.496/99.
7- I have given my thoughtful consideration to the respective submissions of the parties counsel and have carefully perused the record.
8- Proceedings before learned Estate Officer were initiated on the basis of inspection report whereby it was reported that the appellant was allotted Flat No. 2-H Minto Road, New Delhi and at the time of inspection it was found that the premises was locked. 4-5 Negros were residing in the Flat and this fact was confirmed from a Chowkidar and one Dashrath. Thereafter allotment was cancelled on the ground of subletting to some unauthorised person. Proceedings were initiated before the Estate Officer. A perusal of the record goes to show that after reply was submitted by the appellant, parties were directed to adduce evidence. However, no evidence was led by the department. On the other hand, appellant examined himself and submitted affidavits of two other persons. However, the department chose not to cross examine the witnesses. The impugned order dated 11-5-2011 passed by the Estate Officer is very relevant and same being very short & sketchy, is reproduced herein below :-
(PPA Appeal No.15/11) - (Page 4 of 10) "All persons concerned and in particular 1 Shri D.K. Bose, 2-H, Minot Road (MS Flats), New Delhi.
2 Shri D.K. Bose, K-2099, CR Park, New Delhi.
Whereas, I the undersigned, am satisfied for the reasons recorded below that Shri D.K. Bose, is in unauthorized occupation of the public premises specified in the Schedule below:
Whereas, you are continuing to occupy public premises specified in the Schedule below even after the cancellation of allotment w.e.f. 8.4.2010 vide letter No. DE/8/3229/MRM/E/2010 dated 8.4.2010 issued by Directorate of Estates.
Whereas, you have failed to prove your authorized occupation in r/o the aforesaid premises.
Reasons Now, therefore, in exercise of the powers conferred on me Sub-Section (I) of Section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, I hereby order the said Shri D.K. Bose, and all persons, who may be in occupation of the said premises or any part thereof to vacate the said premises within 15 days from the date of publication of this order. In the event of refusal or failure to comply with this order within the period specified above, the said Shri D.K. Bose, and all other persons concerned are liable to be evicted from the said premises, if need be, by use of such force as may be necessary.
SCHEDULE 2-H, Minto Road (MS Flats), New Delhi.
Date: 11.5.2011 sd/-
(Signature & Seal of Estate Officer)
--------
9- It goes without saying that Estate Officer
performed quasi-judicial function and it is settled principle of law that even Quasi Judicial Authority is required to follow the principle of natural justice while (PPA Appeal No.15/11) - (Page 5 of 10) conducting the proceedings. This is precisely for the reason that justice should not only be done but same should also appears to have done. While defining the scope of principles of natural justice the Hon'ble High Court of Delhi in the case of J.T. (India) Exports Vs. Union of India & Another 94 (2001) (FB) has observed as under :-
"These Principles are well settled. The first and foremost principle is what is commonly known as audi-alteram partem rule. It says that none should be condemned unheard. Notice is the first limb of this principle. It must be precise and un-ambiguous. It should apprise the party determinately the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed against the person absentia becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play.
Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial authority while making an order affecting these rights. These rules are intended to prevent such authority from doing injustice."
In Jaspal Singh Jolly Vs. MCD 125 (2005) DLT 592, it was also held by the Hon'ble Justice Pradeep Nandrajog by relying upon the decision of Hon'ble Supreme Court titled as Erusia Equipment & Chemicals Ltd. Vs. State of (PPA Appeal No.15/11) - (Page 6 of 10) West Bengal, AIR 1975 SC 266 (at p. 269), 106 (2003) DLT 573, Mekaster Trading Corporation Vs. Union of India & Ors; and (1990) 4 SCC 594, S.N. Mukerjee Vs. Union of India, that :-
"The order which are subject to judicial review must be in compliance with the principles of natural justice, namely
(a) proper hearing, (b) decision by an unbiased mind; (c) taking into consideration all relevant factors and excluding the irrelevant factors; and (d) reason to be recorded. It was further observed that reasons enable the superior court to effectively exercise supervisory jurisdiction. Additionally, when reasons are stated, the person affected knows the mind against him. A decision may be right, but not sound.
Such decision leaves a grievance in the mind of the person affected that he was not told why the decision was taken."
10- In view of the authoritative pronouncements, it was incumbent upon the Estate Officer to have given a reasoned judgement which is absolutely lacking in the instant case. The order reproduced above does not assign any reason as to on what basis the Estate Officer came to the conclusion that the appellant had unauthorisedly sublet the premises. However, on the record of Estate Officer, one order is available. A perusal of this order goes to show that only basis for forming an opinion that the cancellation of allotment has been rightly done, is because of the reason that some Football players were residing in the premises which fact was admitted to by the appellant himself before the Competent Authority. It was observed that the appellant is actually residing at CR Park New Delhi and not in the premises in question. He is a Govt. employee and therefore, it is difficult to (PPA Appeal No.15/11) - (Page 7 of 10) believe that he will keep the allotted public premises vacant and loose 30 per cent HRA. This reasoning arrived at by the Estate Officer is based on conjectures, inasmuch as, as stated above, initial onus to prove the fact that appellant had sublet the premises to some other person was upon the department. However, except for placing on record Inspection Report which was also not proved, no evidence was led by the department. No effort was made to prove the Inspection Report or the persons who informed the Inspecting Team that some Negros were residing in the Flat in question. On the other hand, the appellant examined himself and filed his affidavit, stating therein that the allotted Flat is in his use and occupation. In order to substantiate this plea, he placed on record his CGHS card Ex.OPW1/A, electricity bills Ex.OPW1/D and OPW1/E. He further averred that during Durga Pooja, Kaali Pooja and other holidays, he stays at allotted flat and in order to prove the same, he placed on record the document issued by the Managing Committee as Ex.OPW1/B. It is further his case that he is associated with Hindustan Football Club and at times his guests and football players stays in the premises. Mere stay of some guest on occasional visits does not tantamount to subletting the premises. Besides his own affidavit, he also filed affidavits of neighbourers namely Kulbeer Singh and Mohit, both of whom have sworn on oath that the appellant is in occupation of the Flat and they never found any tenant at the allotted Flat. Despite opportunity available to the department, they did not choose either to cross examine the appellant or his witnesses examined by him, with the result that affidavits submitted by them had gone unrebutted and (PPA Appeal No.15/11) - (Page 8 of 10) unchallenged. There is no reason to disbelieve the unchallenged and unrebutted testimony of the appellant and his witnesses. On the other hand, except for placing on record the Inspection Report, absolutely no evidence worth-the-name has been filed by the department to show that the premises have been sublet by the department. The evidence led by the appellant has not at all been considered by the Estate Officer, while arriving at the conclusion that the cancellation of allotment was done in right perspective. In fact, the Estate Officer has not even touched the testimony of appellant and his witnesses and only on the basis of surmises and conjectures, it was observed that it is difficult to believe that a Govt. Servant will keep the public premises vacant for his passion and loose 30 % HRA.
11- I have carefully gone through the authorities relied upon by the learned Counsel for the Respondent. With due respect , none of these authorities help the respondent, inasmuch as M/s Safari Airways (supra) was a case where it was held by the Hon'ble High Court that validity of a notice under Section 4(1) of the PP Act issued by the Estate Officer can be questioned in an appeal under Section 9 of the Act before the District Judge. This is precisely what has been done by the Appellant by filing the present appeal. Therefore, instead of helping the respondent, this authority helps the appellant.
12- Similarly, reliance placed on the order passed by Hon'ble High Court dated 2-12-1999 in CM Nos.3444-45/99 and LPA Nos.496/99 (titled as Ramesh Chand Ladha Vs. UOI & others) does not help the respondent. In that case, the appellant approached the (PPA Appeal No.15/11) - (Page 9 of 10) Hon'ble High Court for restraining the respondent from demolishing or taking forcible possession of the property. However, it was observed that appellant had no right, title or interest in the property and he had unauthorisedly occupied the Govt. land and therefore, the writ petition was dismissed. Things are substantially different in the instant case, inasmuch as it is undisputed case of the parties that suit premises had been allotted to the appellant. However, his eviction was sought on the ground that he had unauthorisedly sublet the premises to some other person, which fact the respondent had utterly failed to establish. However, without considering the evidence led by the appellant, Estate Officer passed the impugned order which is bereft of any reason and does not stand to any logic.
13- The result of aforesaid discussion is that the impugned order is set aside and the appeal is accordingly allowed.
Let a copy of this order be sent to the Estate Officer while returning the records.
Appeal file be consigned to record room.
Announced in open court ( SUNITA GUPTA ) 15th Nov,2011 DISTRICT & SESSIONS JUDGE:
Delhi.
(PPA Appeal No.15/11) - (Page 10 of 10)