Ms. Lily Thomas vs State Of Maharashtra And Ors. ...
2005 Latest Caselaw 666 Del

JUDGMENT

Manmohan Sarin, J.

1. By this common judgment, the above seven writ petitions are being decided as common factual and legal issues arise for consideration in these writ petitions. WP(C) 176/2004 i.e. Ms Lily Thomas Vs. State of Maharashtra and Ors is treated as the lead petition in which arguments were addressed by Ms. Lily Thomas, Advocate, who is the petitioner herself and also by the counsel for the petitioners in other writ petitions.

2. For facility of reference, the facts in detail in the lead case and the submissions made therein are being noticed. As regards other writ petitions, individual or peculiar facts as also particulars of the premises are noticed.

A. WP(C) 176/2004 (Ms. Lily Thomas Vs. State of Maharashtra and Ors.

(i) Petitioner, an Advocate by profession and resident of room No. D-148, Sirmur Plot, New Maharashtra Sadan, K.G Marg, New Delhi, by this writ petition seeks quashing of notice dated 24th September, 2003, issued by the Estate Officer and Deputy Special Commissioner, Maharashtra Sadan. Quashing of subsequent notice dated 13th October, 2003, is also sought. Petitioner also sought a direction to the respondent-State of Maharashtra and the Ministry of Urban Affairs to produce the title deed of the Sirmur plot stated to be belonging to the State of Maharashtra.

(ii). Before taking up the various pleas and grounds sought to be urged by the petitioner in challenging the eviction proceedings, it may be noted that the Sirmur plot on which working girls hostel existed had been handed over by the Central Government to the Government of Maharashtra on 10th May, 1999, pursuant to the decision taken by the Government of India, vide its letter dated 24th March, 1999. By way of background, it may be noted that the property originally had been allotted in 1920 to Sirmur Darbar by the then British Government. Subsequently, it was allotted to the Maharaja of Baroda in 1922. During the second world war, all vacant lands were requisitioned by the Government of India for construction of barracks. As per instrument of succession, all princely States merged into Union and Sirmur Plot became State property. The Baroda State came under the Bombay State and upon re-organisation, the property came under State of Maharashtra. Accordingly, Government of India vide its etters dated 29th December, 1998 and 24th March, 1999 admitted that the title of the property vested in the State of Maharashtra and possession of property was handed over to the State of Maharasthra on 10th May, 1999.

(iii). Notice in the writ petition was issued on 24th January, 2004, which was accepted in court itself by the respondents' counsel who stated that petitioner had already been dispossessed following the order of eviction. The court directed status quo to be maintained as of date. Pleadings were completed. Petitioner during the proceedings sought leave to amend the writ petition to include challenge to the notification under Section 17 the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as P.P. Act) which empowered and authorised the State Government to appoint an Estate Officer. Petitioner was also permitted to file additional grounds on 19th February, 2004 Repeated adjournments were taken by the petitioner to conclude the submissions. Petitioner also filed synopsis of submissions. Despite availing of several opportunities and conclusion of oral arguments, petitioner was again given opportunity to make additional submissions.

(iv). Petitioners assail the proceedings under the P.P Act by the Estate Officer of the State Government as without jurisdiction and being non-est. Petitioner's case is that it was only the Central Government which was authorised to appoint an Estate of ficer under Section 3 of the P.P. Act. During the course of proceedings, notification and authorisation under Section 17 empowering the State Government to appoint an Estate Officer was produced. Petitioner thereupon assailed the said notification as being illegal, the plea being that notification under Section 17 of the P.P. Act in relation to the Union Territory of Delhi could only have been issued by the Lt. Governor under Article 239 of the Constitution of India read with Section 3 sub-section (3)()(B)(II) of the General Clauses Act. Petitioner also claimed that possession of the land to the State Government had been given by the Central Government subject to re-location of occupants. Petitioner contended that cancellation of allotment on 13.6.1999, by the Director of Estates, Ministry of Urban Affairs of the Union was without any authority since the possession of property had been given to the State Government on 10.5.1999.

(v). In the counter-affidavit filed by respondents, it is averred that requisite notice was issued by the Executive Engineer on 14th August, 2003, requesting vacation of the premises within 30 days, failing which P.P. Act proceedings would be initiated. An application was duly filed before the Estate Officer on 17th September, 2003. Show cause notice was issued by the Estate Officer to the petitioner on 24th September, 2003, which was duly received by the petitioner. The queries raised by the petitioner were also answered vide letter dated 7th October, 2003, which confirms the receipt of service of show cause notice. Eviction order was passed in due course on 12th December, 2003. Petitioner refused to accept the same. Pursuant thereto after expiry of statutory period, possession of the premises was taken on 31st December, 2003. Respondents also refuted the various contentions raised by the petitioner which will be taken up while dealing with the pleas raised by the petitioner.

B. WP(C) 9673/2003 (Ms. Urmila Punera Vs. State of Maharashtra and Ors.) Petitioner claims to be allottee of room No. C-99, New Maharashtra Sadan and seeks quashing of the notice dated 24th September, 2003. Production of title deed of Sirmur plot by the respondent-State of Maharashtra is also sought. Interim stay on notice dated 24th September, 2003 was granted. Petitioner assails the notice on similar grounds regarding lack of jurisdiction and authority of the Estate Officer. Action of the respondents is said to be contrary to the Presidential sanction. Cancellation by the Directorate of Estate vide letter ated 16.6.1999 w.e.f 2nd July, 1999 is also challenged as without any locus or authority. At the time of filing of the petition on 19th December, 2003, it was claimed that eviction order dated 12th December, 2003 had not been served. Hence writ petition was filed on threatened eviction.

C. WP(C) 8405/2004 (Ms. Urmila Punera Vs. State of Maharashtra and Ors.) Petitioner filed this writ petition, when the earlier writ petition was already pending. Petitioner sought a writ of prohibition against the respondents from evicting the petitioner and others, before giving suitable accommodation in relocation. The main plank of petitioner's submission in this writ petition is that transfer in favor of respondent-State of Maharashtra was on As is where is basis which meant that the State Government received the property with petitioner and other noticees as authorised occupants and they were entitled to continue and in any case to relocation in terms of Presidential sanction.

D. WP(C) 12756/2004 (Ms. Prema Mandi Vs. State of Maharashtra and Ors.) Petitioner is a resident of room No. D-167, Sirmur plot, New Maharashtra Sadan. Petitioner in this petition assails the eviction notice and proceedings on the same grounds as in WP(C) 176/2004 with emphasis on the transfer by the Central Government to the State Government, being made clandestinely and contrary to the Presidential sanction regarding relocation. It is claimed that transfer constitutes flagrant violation and contempt of the terms of the Presidential sanction. Petitioner also assails the respondents' action in only relocating residents, who were Central Government employees, leaving other residents like the petitioners who were self-employed, employees of Delhi Government, employees of private sector etc., in distress. Petitioner had not responded to the show cause notice give despite several opportunities given on 13th October, 2003, 18.10.2003, 20.1.2004, 23.1.2004 and 16.2.2004 Petitioner was unable to produce her allotment letter or any other evidence in respect of her claim Petitioner was given further opportunities to defend her case on 23.2.2005, 2.4.2005 and 19.4.2005. Opportunity had again been given on the ground of sickness on 26th April, 2004 She did not appear and hence was declared as an unauthorised occupant. Reference may be invited to eviction order dated 3rd July, 2004 Petitioner in fact prayed in the proceedings for being permitted to stay for few years or being allotted some alternate accommodation.

E. WP(C) 3919/2004 (Ms. Louisa Antony Vs. State of Maharashtra and Ors.) Petitioner claims to be resident of room No. D-171, new Maharashtra Sadan. She claims to be an authorised occupant staying in the premises for several years. On the basis of being an authorised occupant, petitioner claims that she is entitled to relocation in terms of Presidential Sanction. Petitioner relies on writ petition filed by her counsel being WP(C) 176/2004 challenging the eviction notice and states that same grounds are available to her and relies on them. The jurisdiction of the Estate Officer is similarly questioned. Petitioner additionally complains of restriction imposed on returning to the premises after 8 P.M., thereby causing harassment. Petitioner similarly prays for quashing of notice dated 24th September, 2003 and the proceedings pursuant thereto.

F. WP(C) 734/2004 Ms. Prabha Bhardwaj Vs. State of Maharashtra and Ors.

Petitioner, a resident of room No. D-154, Maharashtra Sadan, has filed the writ petition seeking quashing of eviction order dated 9th January, 2004 under the P.P. Act. A direction is also sought to the respondent-State of Maharashtra and Ministry of Urban Affairs to relocate the petitioner in terms of mandatory requirement as per Presidential Sanction. Petitioner alleges discrimination in not being relocated in terms of Presidential Sanction, which is claimed to be a sine qua non for transfer of the property to the State Government. Petitioner assails the eviction order on grounds similar to those in WP(C) 176/2004 assailing the eviction notice. The authority and jurisdiction of the Estate Officer is also questioned. The cancellation by Director of Estate, Ministry of Urban Affairs is assailed as being without any legal authority or force since the property already stood transferred to the State Government. Petitioner also questions the title of the State Government to the property in question. Respondents have filed counter-affidavit wherein they object to the maintainability of the writ petition in view of available alternate remedy of appeal under Section 9 of the P.P. Act. Petitioner, it is stated, has failed to produce any allotment letter and hostel accommodation is always intended to be of short duration and temporary. The other grounds as alleged in WP(C) 176/2004 are also refuted. Respondents also rely on the subsequent letter issued by the Under Secretary, Ministry of Urban Affairs dated 24.3.1999, in continuation of earlier letter dated 29th December, 1998 wherein it is stated that Sirmur plot measuring area of 6 acres was to transferred on As is where is basis to the Government of Maharashtra. By the aforesaid letter stipulation regarding relocation in the letter of 29th December, 1998, was no longer insisted upon. Moreover, it is contended that stipulation regarding re-location could apply to authorised occupants and the benefit was not to be extended to unauthoried occupants, who were liable to be evicted. It is only those allottees eligible for allotment under GPRA Rules, 1963, who were considered for relocation.

G. WP(C) 178-179/2004 (Ms. Harish Kumari and Anr. Vs. State of Maharashtra and Ors.) Petitioner Nos. 1 and 2 are residents of room Nos. C-93 and D-168, Sirmur plot, New Maharashtra Sadan respectively. Petitioners in the above writ petition assail the eviction notice dated 24th September, 2003 and 13th October, 2003 and Eviction Case No. C-20/D-168, NMS No. 6813, issued under the P.P Act in Eviction Case No. C-14/C-93 NMS No. 6806. Petitioners also seek production of the title deed of the respondent-State of Maharashtra in respect of Sirmur plot. Petitioners claim that no order of eviction has been served on them, as required under the P.P. Act. Reference is invited by the petitioners to proceedings initiated against other residents by the Estate Officer and the notices issued and orders passed therein. Challenge in the writ petition is on the same grounds as in the lead case. Petitioners' main plank in the writ petition is regarding cancellation of allotment by the Director of Estate, Ministry of Urban Affairs, being of no avail after transfer of the property to the State of Maharashtra. Respondents have filed counter-affidavit claiming that petitioners have failed to produce any allotment letter. Petitioners are stated to be unauthorised occupants. Eviction order dated 9th January, 2004 was passed after due compliance with the provisions of the Act and served on petitioners. Eviction order dated 12th December, 2003 was also duly served on them. Respondents refute that the notice dated 16th August, 2003 was not duly served. An application was duly filed by the Estate Officer, pursuant to which show cause notice was issued. Time was sought by the petitioners on 6.10.2003, 13.10.2003, which was given and matter adjourned to 13th October, 2003. Again time was given on 18th December, 2003. Petitioners, it is claimed, then ought alternate accommodation.

3. Having noted the facts and legal pleas raised in the lead petition as also the facts of individual petition, let us examine the same:-

(i) The first submission of the Petitioner is that notices dated 24th September, 2003 and 13th October, 2003 purported to be issued under P.P Act are without any authority of law. It is contended that it is only the Central Government which is authorised to appoint an Estate Officer. Reliance is also placed on a stay granted in WP(C) 9673/2003 filed on similar grounds. Appointment of Dr. Anmol Kumar as Estate Officer by State Government is stated to be without any authority of law and claimed as no nest. It is contended that only the Central Government, which is authorised to appoint an Estate Officer under Section 3 of the Act. In response, respondents have produced on record notification issued under Section 17, empowering the State Government or Officer of the State Government to exercise the powers vested in the Central Government. Accordingly, the plea that the notices dated 24th September, 2003 and 13th October, 2003, were issued without any authority of law is devoid of merit in view of the appointment of the Estate Officer by the State Government by virtue of powers conferred by the notification under Section 17 of the P.P. Act.

4. The second submission is that the notification appointing the Estate Officer having not been issued by the Lt. Governor for Union Territory of Delhi, as envisaged under Article 239 of the Constitution of India, read with Section 3 sub-section (3)(8)(B)(II) of the General Clauses Act, is again without merit. The Estate Officer has been duly appointed under Section 3 of the Act by virtue of powers delegated by the Government of India, to the State Government vide notification dated 28th November, 1997. It is not an appointment of an Estate Officer for the Union Territory of Delhi. The appointment by the State Government is of an Estate Officer to manage the properties of the State Government located in the Union Territory of Delhi. Accordingly, it was not necessary for appointment to be made by the Lt. Governor and it would not fall within the ambit of administration of Union Territory, for which notification by the Lt. Governor was necessary. The Estate Officer is appointed by the State Government to look after its properties in the Union Territory of Delhi and there is nothing, which would render such an appointment nugatory or invalid.

5. Petitioner claims that eviction proceedings against her are contrary to the presidential sanction granted for restoration of possession of Sirmur Plot of 6 acres to the Government of Maharashtra. Reliance is placed on the letter dated 29th December, 1998 issued by the Under Secretary, Ministry of Urban Development. Relevant extracts therein is reproduced for facility of reference:-

I am directed to say that the question of restoration of possession of plot of land known as Sirmur Plot at K.G. Marg, to Govt. of Maharashtra has been under the consideration of the Government.

Keeping in view that the property by law is vested in Govt. of Maharashtra, I am directed to convey the approval of the President of India for the restoration of possession of about 6 acres of land known as Sirmur Plot as shown in Land DO plan No. 163 at K.G. Marg to Govt. of Maharashtra.

The possession of the land will be handed over to Govt. of Maharashtra only after relocation of the occupants at the cost of State Govt. CPWD/Directorate/Estate will take all steps to evict all those, if necessary by relocating them elsewhere, who are under their control, or those whom Govt. has lot into use or possession.

6. Petitioner contends that possession of the land to the Government of Maharashtra was subject to re-location of the occupants at the cost of the State Government. Petitioner contends that property was transferred by the Ministry to the State Government and the State Government received the same on As is where is Basis i.e with petitioner and other residents as authorised occupants. Learned counsel for the respondent has disputed the interpretation sought to be advanced in respect of letter dated 29th December, 1998 by which possession of land was to be handed over to the Government of Maharashtra only after or subject to condition of relocation of the occupants. Reliance is placed by the respondents to the subsequent letter dated 24th March, 1999, issued by the Under Secretary, Ministry of Urban Affairs and Employment in continuation of letter dated 29th December, 1998. By the letter dated 24th March, 1999, it was ordained that Sirmur Plot admeasuring an area of 6 acres at Kasturba Gandhi Marg may be handed over on As is where is basis to the Government of Maharashtra. The relevant portion of the letter is reproduced for facility of reference:-

To,

The Director General (Works), Central Public Works Department, Nirman Bhavan, New Delhi.

Sub: Restoration of possession of 6 acres of land (known as Sirmur Plot) at Kasturba Gandhi Marg to Govt. of Maharashtra.

Sir,

In continuation of this Ministry's letter of even No. dated 29.12.98, I am directed to say that the Sirmur Plot measuring an area of about 6 acres at Kasturba Gandhi Marg may be handed over on As is where is basis to the Govt. of Maharashtra.

(R.N. Kirtania) Under Secretary (Lands-II)

7. Respondents contend that condition imposed vide letter dated 29th December, 1998 stood deleted/dropped by the subsequent letter whereby the transfer/handing over possession was required to be done on As is where is basis to the Government of Maharashtra. There is merit in this contention. Moreover the respondents rightly contend that even if the condition regarding possession being subject to relocation was to be given effect to. It could cover within its ambit only the authorised allottees or occupants. It could not take within its sweep say trespassers, unauthorised occupants or transferees who have illegally purchased without consent of the Lesser the rights of the allottees or come be in occupation unauthorisedly. The works used in the subsequent letter are providing for transfer on As is where is basis tend to negate the hypothesis of handing over possession being subject to re-location of allottees. The transfer of possession by the Central Government to State Government cannot legitimatize unauthorised occupation into an authorised one or confer the status of allottee.

8. Respondents have averred in their counter-affidavit that all the authorised and eligible allottees in the premises had been given alternate accommodation by the Government of India. It is only the unauthorised occupants or those, who have retired from service or are no longer in service being ineligible have not been considered for relocation. The plea of petitioners' seeking to assail these proceedings on the ground of the same being in violation of Presidential sanction of transfer in favor of the State Government is mis-conceived and without merit. A perusal of the letter dated 29th December, 1998 itself shows that the Central Government recognised that the property vested in the State of Maharashtra and the purport of the said letter is only the restoration of possession to the State Government. The Presidential sanction is for the said purpose. While giving so, the Ministry of Urban Development has provided for relocation of those under the control of the Government or who were let into use by the Government. This would mean the allottees or those who have been granted the license and permitted to use. Respondents have rightly urge that without prejudice to their contention that the letter of 24th March, 1999, providing for handing over of possession on As is Where is basis has done away with the requirement of relocation, they have taken steps for relocation of eligible allottees under the GPRA Rules, 1963. Accordingly, the petitioners would have no enforceable right to even seek relocate on this ground.

9. Petitioners assail the cancellation of licenses/ allotment vide letter dated 16th June, 1999 by Director of Estates, Ministry of Urban Affairs on the ground that transfer of the property had already been effected in favor of the State Government on 16th May, 1999. Accordingly, the Director of Estates, Ministry of Urban Affairs ceased to be the Licensor and the purported cancellation vide notice dated 16th June, 1999 by the Director of Estates, who is functionary of the Ministry, was thus without any authority. The said submission over-looks the fact that if the petitioners wish to plead that the Central Government, the grantor of the license, ceases to have any authority or any title or right in the property, then the license in their favor would automatically stand terminated. Even otherwise the submission is untenable. Where an allotment letter had been issued by the functionary of the Central Government, the termination was also resorted to through the Competent Authority of the Central Government. In other cases, since the occupation by various petitioners was during the period when the property was under the control and administration of the Central Government, cancellation was done through the functionary of Central Government. The matter can be looked at in another perspective. The property had vested by operation of law in the State of Maharashtra and by virtue of letter of 29th December, 1998, followed by the letter of 26th March, 1999, only restoration of possession was being done to the state Government of Maharashtra. The action taken by the administering authority i.e., Director of Estates can well be adopted and followed through by the State Government. In any case, the State Government itself having issued the notice dated 14th August, 2003 by its Executive Engineer, Presidency Division, Mumbai, seeking vacation of the premises within 30 days, failing which proceedings under the P.P. Act would be initiated, renders the objection sought to be raised as being without any force. The application filed before the Estate Officer by the State Government also refers to the notice of 14th August, 2003.

10. At this stage, it may also be noticed that the pleas raised by petitioners of violation of principles of natural justice are without any factual foundation. Show cause notice issued to the petitioners, for instance, have even been responded to by the petitioners raising queries, which were answered. Eviction orders sent have been refused and in which case the authorities had no alternative but to adopt substituted means of service, including pasting etc. Petitioner in WP(C)176/2004 subsequently sought to justify the refusal to accept the eviction order on the ground that it was incomplete and filed an affidavit to this effect.

11. Petitioner also claims that State of Maharashtra had earlier issued eviction notice dated 2nd November, 2002 and 27th December, 2002. This had been challenged by the respondents in WP(C) 8431/2002. The respondent-State of Maharashtra withdrew the notice, as recorded vide order dated 4th August, 2003 in the writ petition. Petitioner seeks to draw an inference that the same tantamounts to acceptance of petitioners' status as allottees. The above submission is wholly devoid of merit. The said proceedings against the petitioners had been erroneously initiated under the Bombay Government Eviction Act, 1955. Respondents recognising that the said Act was not applicable to the properties of the State Government, situated in Delhi, withdrew the same. The orders passed in WP(C). No. 8431/2002 dated 4th August, 2003 itself records that the respondents were withdrawing the notices and proceedings against the petitioners for initiation of proceedings in accordance with law. It is idle, therefore, for the petitioners to contend that the present proceedings are not maintainable on account of withdrawal of earlier proceedings or to seek to draw an inference that the said withdrawal tantamounts to acceptance of petitioners' status as authorised allottees.

12. The question of being an allottee was relevant for the purposes to determine only the eligibility for being considered for relocation. It would not, in any manner, come in the way of cancellation/termination of license and thereupon the petitioners being proceeded for eviction as an unauthorised occupant in accordance with law. The plea of there being violation of principles of natural justice, as noticed earlier, cannot be supported on the basis of pleadings and documents, as produced in the writ petitions. Petitioners have also failed to avail of the statutory remedy of appeal. In any case, in the present writ petitions, the material submissions, as urged, have been considered on merits.

In view of the foregoing discussion, writ petitions are found to be devoid of merit and not maintainable and are liable to be dismissed and are dismissed. All pending applications, seeking interim reliefs and the interim order, as granted, stand vacated.