Union Of India vs S.M. Aggarwal And 31 Ors.
1995 Latest Caselaw 347 Del

JUDGMENT

D.P. Wadhwa, J.

(1) This petition under Article 226 of the Constitution has been filed by the Union of India aggrieved by the order dated 29 June 1994 of the first respondent, Additional District Judge, Delhi, passed under section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short 'the Act'). By this order the first respondent remanded the matter back to the Estate Officer for fresh decision under section 5 of the Act. As a matter of fact, it is the second time that the first respondent remanded the matter back to the Estate Officer under the Act. Respondents 2 to 32 are shopkeepers admittedly occupying public premises in the lane leading to the Delhi High Court from the Wellesely Road (now Dr. Zakir Husssain Marg) and connecting the same to the Shershah Suri Marg. After proceedings were initiated under the Act against these shopkeepers, the Estate Officer passed an order on 30 November 1993 under sub-section (1) of section 5 of the Act directing them to vacate the public premises as provided therein. These shopkeepers appealed under section 9 of the Act. The first respondent by his brief order dated 18 January 1994 disposed of the appeals filed by the shopkeepers. He noted after examining the records that there were initially 16 shops which were given on license basis which licenses subsisted till 1980-81. He also noted the submission of the counsel of the Union of India that thereafter 16 shops were illegally bifurcated/trifurcated into 33 shops which were now in occupation of the present shopkeepers. Learned Additional District Judge noted that perusal of the record showed that "the appellants were denied justice not only by learned Estate Officer but by their own counsel who filed joint reply on behalf of 33 occupants without pleading any facts regarding the status of occupation of the appellants/shopkeepers". He also noted that the Estate Officer did not grant effective hearing to the appellants nor did he decide the controversy raised by the respondents. It was also noted that on one date of hearing the lawyers were on strike. On this basis the learned Additional District Judge passed the following order reminding the matter back to the Estate Officer :- "4.INview of the aforesaid I am of the considered opinion that the matter needs re- adjudication in the light of the submissions made by Shr Ramalingam and the record submitted by the department before the learned Estate Officer. I, therefore, accept the appeals and set aside the impugned orders and remand the case for fresh adjudication according to law by the learned Estate Officer. The appellants are directed to appear before the learned Estate Officer on 2.2.94. The appellants are afforded fresh opportunity to submit separate reply concerning their individual status in the premises in question. A copy of this judgment be sent to the learned Estate Officer. "

 (2) The matter was re-adjudicated by the Estate Officer who passed orders on 16 May 1994 again directing eviction of the shopkeepers, the respondents 2 to 32, under sub-section (1) of section 5 of the Act. The respondents appealed and by the impugned order dated 29 June 1994 the learned Additional District Judge remanded the matter back second time. This time he gave the following directions :-    "IN view of the aforesaid I accept all the aforesaid 31 appeals consolidated with P.P.A. No. 72/94 and set aside the impugned eviction orders passed against the appellants and remand these cases for fresh adjudication according to law in the light of the observations made herein before. The appellants are directed to appear before the learned Estate Officer on 15.7.94 at 2.30 pm and will file their replies to the show-cause notice under section 4 of the Act Along with the applications seeking production of certain records for effective cross-examination of the official witnesses on the dates fixed for evidence."  

 (3) Aggrieved from this order the Union of India has filed this petition.   

 (4) As noted above, there is no doubt that the premises in question are public premises within the meaning of clause (e) of section 2 of the Act. It was stated at the bar by Mr. Sengh, learned counsel for the Union of India, that no rent is being paid by any of the occupants since 1980-81 who had been allotted the shops earlier and none of them are occupants who were inducted in the shops either bifurcating and trifurcating the same. A person is in 'unauthorised occupation' of public premises, under clause (g) of section 2 of the Act, who is in occupation of the same without the authority for such occupation and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. Then under clause (f), 'rent' in relation to any public premises means the consideration payable periodically for the authorised occupation of the premises. Under 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 that they should be evicted, the estate officer shall issue a notice in writing calling upon all such persons concerned to show cause why an order of eviction should not be made. Sub-section (2) of section 4 provides as to what the notice should contain and it is as under :-    "(2)THEnotice 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 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."  

 Then as to how the Estate Officer is to proceed for eviction of unauthorised occupants, section 5 provides as under:-    "5.EVICTIONof unauthorised occupants. - (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 iun support of the same and after personal hearing, if any, given under clause (b) of sub-section (2) of Section 4, 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 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. "  

 (5) An appeal lies to the District Judge under section 9 of the Act. Under sub-section (4) of section 9, every appeal shall be disposed of by the appellate officer as expeditiously as possible. The Act and the Rules do not give clue to the powers of the appellate authority. Rule 9 of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971, give the procedure in appeals. When the law uses the expression that the "appeal shall be disposed of by the appellate authority" it would mean any of the methods as are understood in law when a District Judge decides a civil appeal which would include powers of remand as well.   

 (6) When the matter came up before the Estate Officer after the first remand on 2 February 1994, on request of the counsel for the shopkeepers he directed that a copy of the notice issued earlier under section 4 of the Act be supplied to the shopkeepers. The Estate Officer granted time to the shopkeepers to file answer to show cause notice and adjourned the hearing to 24 February 1994. The shopkeepers did not file any reply. Their counsel also did not appear on 24 February 1994 on the plea that lawyers were on strike. The matter was again adjourned to 28 February 1994 to file reply to the show cause notice. Instead of filing any reply, an application was filed by the counsel for the respondents for discovery and inspection of certain records of proceedings taken against some of the respondents in the year 1975. For reply by the Union of India the application was adjourned to 2 March 1994 on which date the reply was filed. Counsel for the shopkeepers wanted time to argue the application and the case was, thus, adjourned to 7 March 1994. On this date the counsel did not appear. The shopkeepers were present. They were asked if they would like to submit anything with respect to the application to which they replied in the negative. The application was considered by the Estate Officer who rejected the same. Union of India had stated in the reply that records of the years 1973 and 1975 were not traceable and also that these were not relevant to the proceedings pending before the Estate Officer. The shopkeepers were again asked to submit their written statement and were given time up to 15 March 1994 for the purpose. On this date instead of filing any reply to the show cause notice yet another application was filed by counsel for the respondents for grant of leave to file replication to the reply submitted by the Union of India to the application of the shopkeepers for production of records which had been rejected earlier by the Estate Officer by order dated 7 March 1994. This request of the shopkeepers was, therefore, denied. The counsel for the shopkeepers was asked whether he would be filing any statement on behalf of the shopkeepers to the show cause notice and to which he replied in the negative and said he would require some more time to file written statement. The shopkeepers were also present. They were individually asked if they would like to file their respective written statements and to which they replied in negative. Yet the Estate Officer granted final opportunity and adjourned the hearing to 17 March 1994. The shopkeepers were told that in case no written statement was filed the case will be proceeded further on the basis of the records. Again the shopkeepers defaulted and no reply to the show cause notice was filed. Rather an application was filed by them "for providing effective opportunity to defend the case." The Estate Officer found this application to be without merit. The case was then adjourned to 21 March 1994 for oral arguments. On this date counsel for the shopkeepers then moved an application for summoning witnesses and calling the records. A copy of the application was given to the department and the case was adjourned to 24 March 1994. On this date, arguments were addressed by the department on the application of the shopkeepers filed on 21 March 1994. After hearing both the parties the request of the shopkeepers was denied. However, shopkeepers were given time to inspect the records which were available with the department and ten days' time was given to them for the purpose. The case was then adjourned to 5 April 1994 for oral arguments and production of evidence by the respondents. The shopkeepers were also asked individually if they wanted to submit any evidence in support of their occupation of the premises. Arguments were heard on behalf of the department and since the shopkeepers did not file any written reply to the show cause notice and did not make any oral submissions in spite of several opportunities the proceedings were concluded by the Estate Officer and the case was reserved for orders. The day after the case was concluded and the orders reserved, written arguments were received by the Estate Officer by post. These were placed on record in the interest of justice and considered as well. The Estate Officer observed as under :-    "IN spite of several opportunities given to the respondent to submit a written reply to the Show Cause Notice, no reply was given by the respondent concerning his individual status in the premises in question. No oral argument/evidence justifying his occupation of the premises was also submitted for consideration. The request of the learned counsel for the respondent for files pertaining to the proceedings carried out during 1973 and 1975 was sought to be based on the ground that proceedings once conducted under Section 4 of Public Premises (Eviction of Unauthorised Occupants) Act, 1971, a second proceedings could not be undertaken. The Learned Counsel also argued on behalf of the respondent that files pertaining to the proceedings held in 1973 and 1975 were relevant because they had records to show that proceedings were completed against the respondent at that time, but it was not given effect to because of "an understanding" reached on the directions of the "higher ups" that the applicant should not be dispossessed. Nothing was said on behalf of the respondent regarding his individual status in the premises in question. The respondent also was not able to respond to the argument given by the Deptt. that the respondent did not have a valid license to the premises at present, nor was he paying any license fee. The respondent was not able to produce any evidence of a subsisting license agreement for the premises or any receipt of recent payment of license fee. Besides, the Deptt stated that originally there were 16 licenses of shops in the Welleselly Road Hostel of whom only seven are in occupation of the shops either by themselves or through their heirs. The respondent is not one of the seven. He is one of the 26 respondents whose name does not figure in the records and was detected to be in unauthorised occupation during a site visit in 1992."  

 (7) The Estate Officer, therefore, held that in view of the submission made by the department before him, the shopkeepers having failed to establish their lawful claim to be in possession of the premises and in spite of opportunities having been given, they could not lead any satisfactory evidence to substantiate their (authorised) occupation of the respective shops. The Estate Officer, thus, came to the conclusion that these shopkeepers were in unauthorised occupation of the public premises and declared them unauthorised occupants and accordingly passed the orders under sub-section (1) of section 5 of the Act for vacation of the public premises.   

 (8) When the matter came up before the Additional District Judge in various appeals numbering 31, by a common judgment he disposed of the same. He observed that perusal of the record showed that the learned Estate Officer almost decided the case ex parte when the shopkeepers failed to file their replies to the show cause notice already served on them which they did not file for the reasons that their repeated prayers seeking production of files of previous eviction proceedings allegedly held in 1973 and 1975 went unheeded. The learned Additional District Judge further observed that it seemed to him that the Estate Officer again failed to do justice to the individual cases of the "appellants" not only by failing to secure the production of the files of earlier cases but also by not recording the evidence of the department showing as to which appellant was in alleged unauthorised occupation of allegedly bifurcated/trifurcated and/or originally intact shops. He, therefore, was of the opinion that the eviction orders could not be sustained in law.   

(9) We feel these observations of the learned Additional District Judge are quite uncharitable to the Estate Officer and against the provisions of law as contained in the Act. As noted above, in spite of various opportunities granted to the shopkeepers by the Estate Officer they failed to file written statement and in fact the entire proceedings show that their whole attempt was to delay the proceedings. There was no question of any departmental official being examined beforehand. What section 4 of the Act required was that if the Estate Officer was of the opinion that any person was in unauthorised occupation of any public premises he is to give him a notice to show cause as to why an order of eviction should not be made. It is, therefore, for the occupant to show that he is not in unauthorised occupation of public premises. In spite of various opportunities no record of any nature was produced by the shopkeepers and they did not even file any answer to the show cause notice. If it was a case tried in a civil court then the judge would have straightaway struck out the defense of the shopkeepers for having failed to file written statement in spite of adjournments having been granted for the purpose. To be over-zealous to do justice is one thing, but that should not in any way cause injustice to the other party. A public authority as much requires justice to be done to it as any private individual. Perusal of the record by the learned Additional District Judge to come to the conclusion that the Estate Officer decided the cases ex parte is superficial and in fact contrary to the record. No fault has been found in the notice issued under sub-section (1) of section 4 of the Act. No cause thereto has been shown by the shopkeepers in spite of various opportunities having been granted to them for the purpose. That being so, there was no question of recording any evidence of the department or for production of the files of earlier cases without there being any answer to show cause notice by the shopkeepers on record. We have not been told as to what record was to show in the absence of any plea of the individual occupation of shops by the shopkeepers. The Additional District Judge said that in his earlier order of remand he had noticed the submission of the Senior Administrative Officer (Law) of the department that initially there were only 16 shops which were given on license basis which had remained in subsistance till 1980-81 and that some of the shops were bifurcated and trifurcated making 33 shops in place of original 16 shops and it were these 33 shops which were alleged to be in unauthorised occupation of 31 shopkeepers before him and two others. We are of the view that the Estate Officer by his order dated 16 May 1994 had fully followed the directions issued by the learned Additional District Judge in his first remand order and afforded full and complete opportunity to the shopkeepers to state and prove their respective cases.

(10) It is submitted by Mr. Hussain, learned counsel for the shopkeepers, that the impugned order was a consent order and, therefore, this writ petition did not lie. We cannot agree with such a submission. The Additional District Judge held that the eviction orders passed by the Estate Officer could not be sustained in law. It is only then that the counsel for the department made concession as regards hearing of the matter by the Estate Officer on the second remand. It, therefore, cannot be said that the impugned order was a consent order.

(11) The procedure followed by the learned Additional District Judge was not what is contemplated by the Act. His order has resulted in miscarriage of justice and is against the provisions of law. It is not for the Central Government to lead evidence and to subject its witnesses to cross- examination, and that too without the shopkeepers having shown any cause as to why the order of eviction should not be made against them. We, therefore, find that the impugned order of the Additional District Judge is wholly without jurisdiction and has to be set aside. We order accordingly. We, therefore, send the matter back to the learned Additional District Judge to decide the appeals pending before him in accordance with the provisions of the Act. In the circumstances of the present case, we direct the District Judge to assign these appeals to some other Additional District Judge for disposal. The parties shall appear before the District Judge on 1 May 1995 for the purpose. Petition is allowed with costs. Counsel fee Rs.2,000.00 .