Delhi District Court
Jagat Singh vs Directorate Of Estates on 31 January, 2019
IN THE COURT OF SHRI GIRISH KATHPALIA,
DISTRICT & SESSIONS JUDGE
SOUTH EAST : SAKET COURT, NEW DELHI.
PPA No. 39/2017
JAGAT SINGH
S/o LATE SHRI RAM SINGH
R/o QUARTER NO. I110, KASTURBA NAGAR
NEW DELHI
..... APPELLANT
VERSUS
DIRECTORATE OF ESTATES
NIRMAN BHAWAN,
NEW DELHI 110001
...RESPONDENT
Date of filing : 09.11.2017
First date before this court : 10.11.2017
Arguments concluded on : 22.01.2019
Date of Decision : 31.01.2019
Appearance: Shri Anuj Chaturvedi, counsel for appellant
Shri Ram Kumar, counsel for respondent
JUDGMENT
1. Appellant has challenged eviction order dated 16.10.2017 (hereinafter referred to as "the impugned eviction order"), passed by the Estate Officer under the provisions of Section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. Upon service of notice of this appeal under Section 9 of the Act, respondent appeared through counsel and filed the original record of the proceedings conducted before PPA No. 39/2017 Jagat Singh vs Director of Estates Page 1 of 12 pages the Estate Officer. Respondent also filed reply, opposing the appeal. I have heard learned counsel for both sides, who took me through the Estate Officer records.
2. By way of the impugned eviction order, the Estate Officer invoked powers under Section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act, thereby directing the present appellant and all those who may be in occupation of quarter no. I/110, Kasturba Nagar(TypeI), New Delhi (hereinafter referred to as "the said premises") to vacate the same within fifteen days, failing which they would be liable to be evicted with use of force.
3. According to respondent, upon receiving complaints of subletting of the said premises, which had been alloted to the appellant, an inspecting team visited the said premises on 22.11.2016 and found that the appellant or his family members were not present there and in their absence, another family was found engaged in commercial activity from the said premises which established subletting of the government accommodation. Therefore, vide order dated 11.07.2017, allotment of the said premises in the name of appellant was canceled but appellant did not vacate the said premises so proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act were carried out which culminated into the impugned eviction order.
PPA No. 39/2017 Jagat Singh vs Director of Estates Page 2 of 12 pages
4. According to the respondent, at the time of inspection of the said premises on 22.11.2016, a caterer namely Ramji was found to be in occupation of the said premises but he failed to produce any document reflecting any relationship with the appellant, so the inspection team held it to be a case of subletting.
5. Appellant was issued show cause notice dated 20.04.2017, in the hearing whereof on 01.06.2017, the appellant stated before the concerned authority that Ramji is his friend and was taking care of the house to prevent any theft since appellant was staying alone in the said premises. After going through the documents of Ramji, the concerned authority held Ramji to be not a family member of the appellant and canceled the allotment vide order dated 11.07.2017. Since the appellant did not vacate the said premises within 30 days of cancellation order, the matter was referred to the Estate Officer.
6. Show cause notice dated 15.09.2017 under Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act was issued to the appellant, calling him upon to appear before the Estate Officer on 09.10.2017. Since the appellant did not produce any material to show that he was not an unauthorized occupant of the said premises, the Estate Officer passed the impugned eviction order under Section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act.
PPA No. 39/2017 Jagat Singh vs Director of Estates Page 3 of 12 pages
7. According to the appellant, he did not sublet the said premises and the inspection report was false and unfounded. Appellant contended that his family is not residing with him in the said premises, as they are residing in Faridabad and Ramji was a friend of appellant who would take care of day to day cleaning and other household chores of the said premises. As per appellant, Ramji was not a tenant in the said premises under him.
8. On the very first hearing of this appeal, it was contended on behalf of the appellant that appellant was not granted any opportunity to crossexamine the witnesses of the alleged inspection exercise and going by that submission, operation of the impugned eviction order was stayed till next date. The stay order against the impugned eviction order continued on date to date basis till 01.11.2018, when after examining the original record of eviction proceedings, operation of the impugned eviction order was stayed till disposal of this appeal.
9. In this backdrop I have heard learned counsel for both sides, who also took me through the original records of the eviction proceedings.
10. On behalf of appellant, it was argued that the impugned eviction order suffers with total non application of mind and is based on absolutely no evidence. Learned counsel for appellant argued that PPA No. 39/2017 Jagat Singh vs Director of Estates Page 4 of 12 pages without recording evidence as regards the alleged inspection, the impugned eviction order could not be passed by simply placing reliance on the inspection report. It was also argued that even note sheets of the eviction proceedings are not truthful. On the other hand, learned counsel for respondent supported the impugned eviction order and explained that evictions were done en mass on the basis of number of complaints of subletting. Learned counsel for respondent argued that there is no need for the Estate Officer to record separate evidence of subletting in the light of inspection report of responsible officers.
11. The original record of eviction proceedings reflects that after issuance of show cause notice, matter was taken up by the Estate Officer for the first time on 09.10.2017. In the note sheet dated 09.10.2017 the Estate Officer recorded that according to the present appellant, the said Ramji was his friend. Not only this, in note sheet dated 09.10.2017 the Estate Officer also recorded that the present appellant did not want to file anything in this matter, so the matter was reserved for orders. Immediately thereafter on 16.10.2017, the Estate Officer observed in the note sheet that no document has been filed, so eviction order is liable to be passed.
12. I find difficult to believe that on the very first day when an allottee appears in response to show cause notice under Section 4 of the PPA No. 39/2017 Jagat Singh vs Director of Estates Page 5 of 12 pages Public Premises (Eviction of Unauthorized Occupants) Act, he would explicitly submit that he did not want to file any document or reply etc. As reflected from order dated 07.07.2017 (page 9 of original eviction proceedings record) before the Deputy Director (H&E), in the proceedings for cancellation of allotment, detailed proceedings took place in which statements and documents were also recorded and produced and that being so, it does not appear believable that appellant would have stated before the Estate Officer that he did not want to submit anything. Fair opportunity was certainly not granted to the appellant by the Estate Officer.
13. Then comes the inspection report, which is the very foundation of the impugned eviction order. The said inspection report in original was never placed before the Estate Officer. The original inspection report was produced before this court only after specific directions in that regard. It would be important to take a note of the said inspection report. The column of date and time of inspection mentions only the date (22.11.2016) but not the time of inspection. Most of the columns of the inspection report were left blank. As per column C of the inspection report, some signed statement of the occupant Ramji was taken by the inspecting team but the said signed statement has never seen light of the day. The inspection report is accompanied with two photographs purportedly depicting the said premises but except number I110, no other particular is depicted in the photographs and it cannot be PPA No. 39/2017 Jagat Singh vs Director of Estates Page 6 of 12 pages said that the same are of the said premises only. Even the person depicted in the said two photographs are different persons. Neither any neighbor of the appellant nor any CPWD official of the complex was examined by the inspection team in the process of the alleged inspection.
14. In the light of such inspection report, it was incumbent upon the Estate Officer to record some independent evidence of the alleged inspection exercise. Even otherwise, without recording evidence of the alleged subletting, the Estate Officer could not have arrived at finding to that effect. It is the duty of the Estate Officer to independently examine the allegations instead of blindly concurring with the report of the alleged inspection team.
15. 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 the 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.
16. It is trite that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is to be crux of the PPA No. 39/2017 Jagat Singh vs Director of Estates Page 7 of 12 pages Article 14 of the Constitution and 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 powers must be for public good instead of being an abuse of power.
17. 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 PPA No. 39/2017 Jagat Singh vs Director of Estates Page 8 of 12 pages 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 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).
18. 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.
PPA No. 39/2017 Jagat Singh vs Director of Estates Page 9 of 12 pages
19. 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 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.
20. There is also a sound reason to suspect the alleged inspection report, which report is the solitary basis in support of allegation of subletting. Along with the reply to the appeal, respondent filed a copy of notice dated 08.05.2017 issued to the present appellant by the Assistant Director of Estate, whereby the appellant was called upon to show cause why the allotment of the said premises in his name be not canceled. In the said show cause notice, it was mentioned thus: "As a result of enquiries made, it has been reported that you have not been residing in government residence no. 110, Sector..... Block/Road I, Kasturba Nagar, New Delhi allotted to you and have completely/partially sublet the same to some unauthorised persons....".
PPA No. 39/2017 Jagat Singh vs Director of Estates Page 10 of 12 pages Had an inspection been truly carried out on 22.11.2016, the said notice dated 08.05.2017 would have specifically named Ramji and the same would have specifically alleged partial subletting instead of vague and general expressions "completely/ partially" and "some unauthorized persons". Such a notice not only deprived the appellant an opportunity of effectively defending himself but also creates reasonable suspicion that no such inspection report was in existence and the same was fabricated subsequently.
21. 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 Ramji or any of the inspecting officers. What to say of examining the witnesses, the Estate Officer did not even peruse 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 no such inspection as alleged ever took place and the entire proceedings were fabricated.
22. Thence, the impugned eviction order is based on no reliable evidence and the same was passed in grave abrogation of jus naturale and also suffers vice of non application of mind, therefore the same is not sustainable in the eyes of law.
PPA No. 39/2017 Jagat Singh vs Director of Estates Page 11 of 12 pages
23. Consequently, the impugned eviction order dated 16.10.2017 passed against the appellant by the Estate Officer is set aside and the present appeal is allowed.
24. A copy of this judgment be sent to the Estate Officer along with original records of the Estate Office and appeal file be consigned to records.
Announced in the open court on
this 31st day of January, 2019 (GIRISH KATHPALIA)
District & Sessions Judge
Digitally signed South East, Saket Courts
by GIRISH
KATHPALIA New Delhi 31.01.2019 (a)
GIRISH
Date:
KATHPALIA 2019.02.01
16:02:02
+0530
PPA No. 39/2017 Jagat Singh vs Director of Estates Page 12 of 12 pages