Smt. Aisha Jalal vs Lt. Governor And Ors.
2003 Latest Caselaw 8 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioner claimed to be occupier/owner of property No.T-235, Id Gah Road, Qadam Sharif Estate, Delhi since 11.3.1986 on transfer of interest by Shri Jagat Ram in her favor. It is stated that Shri Jagat Ram was a displaced person from West Pakistan who occupied the property in question measuring 166 square yards and constructed a double storey building which was subsequently transferred to the petitioner.

2. It may be noticed that no documents of title have been filed and the claim is based on the basis of payment of damages. In fact learned counsel for the petitioner does not dispute that there is no title to the property in question but that Shri Jagat Ram was paying damages earlier and thereafter the petitioner has been paying damages, some of the receipts of which have been filed on record. It is further stated that the property stand mutated in the name of the petitioner by the MCD though the same is for the purpose of house tax.

3. The genus of the dispute started from the receipt of a show cause notice by the petitioner from respondent No.3 vide letter dated 31.7.1987 calling upon the petitioner to pay a sum of Rs.29,882/- towards damages which was replied to by the petitioner. The petitioner disputed the quantum of damages and claimed that a uniform policy in respect of damages should be implemented qua all the occupants of the area in question.

4. Respondent No.3 thereafter issued a notice dated 29.2.1988 under the Public Premises (Removal of Unauthorised Occupants) Act, 1971, (hereinafter referred to as the said Act) calling upon the petitioner to show cause as to why the petitioner should not be evicted from the premises in question. The petitioner was represented before respondent No.3, Estate Officer on 14.3.1988 through a duly constituted attorney being her husband. At a request being made the matter was adjourned for filing written objections to 28.3.1988 and again at request adjourned to 14.4.1988. It is claimed that the petitioner's husband wrongly noted the date as 19.4.1988 and when he was informed that there was no date of 19.4.1988 the petitioner claims to have received another letter dated 18.4.1988 on 28.4.1988 intimating the date of hearing as 2.5.1988 which was not attended to by anybody ostensibly on the ground that the petitioner was in the midst of ramzan rozas. It is further stated that there was continued lawyers strike. An eviction order was passed on 31.5.1988 under Section 5(1) of the said Act. The petitioner moved an application on 15.6.1988 for review of the said order. The petitioner claims that she and her husband were informed that the eviction order had been recalled and placed on record a letter dated 27.6.88 being a call letter for proceedings fixed thereafter. However, on 2.7.1988, pending the said application, a demolition squad carried out the demolition of the second floor/barsati floor of the property in question and a part of the 1st floor. The petitioner filed an appeal against the order of eviction and further demolition was stayed by the learned Additional District Judge. It is further claimed in para 16 of the writ petition that on inspection of the file of the Estate Officer the application of the petitioner dated 15.6.1988, the further call letter as also the order for setting aside the eviction order was not found in the file.

5. A reading of the order passed by the Estate Officer shows that the said Estate Officer has taken note of the absence of the petitioner despite opportunity being granted and the failure to file written objections. Evidence was adduced on behalf of the department which went unrebutted. The evidence show that a double storyed building was constructed unauthorisedly and that the property was being used for commercial purpose. The property in question was public premises being government land. A statement has been further made that the land is required by the respondent DDA for development purpose.

6. The impugned order of the learned Additional District Judge passed on the appeal filed by the petitioner under Section 9 of the said Act has considered the material placed before the Estate Officer and the grounds urged on behalf of the petitioner. The finding of the tribunal is also that the petitioner failed to appear/filed any written objections or adduced evidence in her favor despite opportunity being granted. The claim of the petitioner that the lawyers were on strike was found to be untrue in view of the fact that lawyers strike had been called of on 25.4.1988.

7. In so far as the plea of the petitioner relating to discrimination is concerned, the tribunal found that there has to be a proper forum for the same and the same could not be the basis for setting aside the order of the Estate officer. As far as the plea of the application for review dated 15.6.1988 is concerned, the tribunal came to conclusion that there was no power to review order of the Estate Officer since no such remedy was provided by the legislature in the Act or rules. It s further noted that even in the application dated 15.6.1988 no reasons had been given for non appearance on 2.5.1988 or not filing of written objections on the previous occasions. The appeal was accordingly dismissed but the petitioner was granted two months time for removal of unauthorised structure and for handing over vacant and peaceful possession in respect of the government land.

8. Learned counsel for the petitioner contends that though the land may belong to the Government and is public premises, there are other people occupying the adjacent land of which illustrations have been given against which no eviction proceedings have been taken. It is further contended that there has to be uniform policy for imposition of damages and that the petitioner cannot be singled out on this account. As far as non appearance of the petitioner is concerned, learned counsel submits that the petitioner is a lady who is not educated and thus failed to realise the consequence of non appearance. Learned counsel has strongly relied on the factum of the application for review having been made and notice having been given for appearance which was not found in the record, as also the order claimed to have been passed on the application of the petitioner as a consequence of which demolition took place.

9. Learned counsel for the petitioner submits that in exercise of jurisdiction under Article 226 of the Constitution of India the powers of this Court are wide enough to do substantive justice between the parties and that the petitioner should not be singled out and penalised which issue has not been considered by the learned Additional District Judge.

10. Learned counsel for the respondents on the other hand contends that the order of the appellate authority is a well reasoned order which has considered all the pleas of the petitioner and does not call for any interference by this Court.

11. Insofar as the status of the petitioner is concerned, there is no dispute that there is no title in favor of the petitioner. It appears that one Jagat Ram who was a refugee occupied the land unauthorisedly and thereafter parted with possession in favor of the petitioner in 1986. The petitioner has paid damages and thus became the person in occupation of government land unauthorisedly who continued to occupy on the basis of payment of damages.

12. As stated above the initiation of proceedings against the petitioner arose on account of demand being made against the petitioner for payment of damages which was disputed by the petitioner. The claim of the petitioner was that no such damages were being imposed on the other persons at the same rates but no details of the same have been given. However, matter did not rest at this since subsequently notices were issued for proceedings of eviction.

13. A reading of the order of the Estate Officer and the appellate authority show that the petitioner was duly served with the notice and appeared through duly constituted attorney being the husband. Number of opportunities were granted to file written objections but the same were not filed. On 2.5.1988 the petitioner failed to put in appearance. In fact even thereafter there was no appearance till the order was passed by the Estate Officer on 31.5.1988. Thus the matter remained uncontested on behalf of the petitioner despite opportunities having been granted to the petitioner. The evidence produced before the Estate Officer by the Department was thus relied upon since it was unrebutted. The evidence show that a double storey house was constructed without any permission and that further construction was also carried out by the petitioner. The property was also used for commercial purposes. It is no doubt true that no material has been placed on record before the Estate Officer by the department insofar as the plea of the land being acquired for planned development is concerned. However, in my considered view the issue to be considered is whether there is any right of the petitioner to occupy the land in question which is a government land on payment of damages and whether the fact that other people are so occupying the land give rise to any rights in favor of the petitioner.

14. The charging of damages only implies that for the time period a person is unauthorisedly occupying the government property and the mere payment of damages does not create any right in favor of the occupant as in the present case being the petitioner.

15. Insofar as the plea of discrimination is concerned, the mere fact that other persons have occupied the government land unauthorisedly, in my considered view, cannot give rise to a right in favor of the petitioner. Encroachment and unauthorised occupation of the public land over a period of time has become a menace in Delhi. The fact that action cannot be taken simultaneously against all the persons is well established but an effort has to be made in this direction. Needless to say that if the land is required for planned development of Delhi, the respondents owes public duty to take action also against those other persons in adjacent area who are in unauthorised occupation of government land and this action should be taken in time bound frame.

16. The petitioner was granted adequate opportunity to defend herself and was represented through duly authorised attorney being the husband but choses to absent herself from the proceedings, failed to file any written objections despite opportunity granted, failed to produce any evidence with the result that the eviction order was passed. The eviction order is based on the testimony of the department which is unrebutted. In fact once the land is public land and is unauthorisedly encroached upon, the respondent have every right to proceed against the unauthorised construction as also against the unauthorised occupation of the government land.

17. In my considered view the appellate authority being the learned Additional District Judge has considered all the pleas of the petitioner except the issue of discrimination which has been dealt with in the present order. There would have been no occasion for the Estate Officer to have power to review his order and even the application filed dated 15.6.1988 on which reliance is being placed only refers to issue of damages and seeks the recall of the order without giving any explanation for non appearance of the petitioner or the non filing of objections.

18. In view of the aforesaid facts and circumstances, I am of the considered view that the order of the appellate authority does not call for any interference under Article 226 of the Constitution of India.

19. Dismissed.

20. In view of the fact that the matter has been pending for considerable time before this Court, the petitioner is granted a further period of two months from today to make the alternative arrangements of residence and to remove unauthorised structure built on the plot at her own costs and to hand over the vacant and peaceful possession in respect of government land measuring 166 square yards. This extension is subject to the condition that the petitioner shall file an undertaking before this court within a period of one week not to sell, assign, transfer or part with possession or

create any third party interest in respect of the land and the construction thereon.

21. dusty.