Smt. Ganeshi Bai vs Union Of India (Uoi) And Ors.
2005 Latest Caselaw 1031 Del

JUDGMENT

Vikramajit Sen, J.

1. 'Be you never so high, the law is above you' is an acclaimed oft quoted aphorism of over three centuries vintage. In Regina vs. Woodley the Chief Justice had remarked that - "the law is for protection of the weak more than the strong 'Regretfully the manner in which the procedural protection and requirements have been scattered in the storm is reminiscent of Oliver Goldsmith words in the Traveller - 'Laws grind the poor, and rich men rule the law." The Petitioner is a Safai Karamchari who had to simultaneously suffer the death of her husband, and face eviction from her home without even an opportunity to present her defense. In little more than a fortnight she lost her husband and her home. The proceedings conducted by the Respondents betray a callousness which is seldom encountered.

2. The facts of the case are not in dispute. On 5.6.2003 officials of the Military Engineering Department visited the premises allotted and occupied by the Petitioner, who is employed as a Safai Karamchari in the Base Hospital. The allegation against her is that she was supplying electricity to the nearby jhuggi dwellers. She was asked to appear before the Authorities on the following day, that is, 6.6.2003. The Petitioner states that she received telephonic information from Bhopal, Madhya Pradesh to the effect that her husband was seriously unwell. On reaching Bhopal on that very day she learnt that her husband had succumbed to his illness. She remained in Bhopal from 6.6.2003 to 25.6.2003 along with her family consisting of two young daughters and one son for performing her husband's last rites. In her absence, and admittedly without affording her any opportunity of being heard, the following letter dated 13.6.2005 was addressed to the Estate Officer Court, Station Headquarters Delhi Cantt.

UNAUTHORISED OCCUPATION OF GOVT MARRIED ACCN NO 61/8 MH LINE, DELHI CANTT-10

1. Smt. Ganeshi Bai, S/W of Base Hosp, Delhi Cantt was allotted Govt. md accn No 61/8 MH Line (Type-I), Delhi Canntt on regular basis. On physical check of qr No 61/8 MH Line by Adm Comd and rep of Delhi Area Pro Unit on 02 Jun 03, it was found that Smt Ganeshi Bai, S/W was found to be supplying electricity to nearby JJ clusters from her house which is in contravention of Rule 17 of SRO 308/1978.

2. In view of the above, you are requested to try the lady for unauthorise occupation of qr No 61/8 M.H. Line wef 02 Jun 03 as per PP (EUO) Act 1971.

3. Photographs of the same are att.

Sd/-

(J Wangdi)

Maj

SSO(B)

For Stn Cdr

Encls. As above Copy to: Base Hosp Please intimate permt address of Delhi Cantt.-10 above named lady to this HQ by 25 JUN 03. An offr rep is required to present in the EO's Court on hearing.

GE (East) Delhi Cantt.-10

Smt. Ganeshi Bai S/W Allotment of qr No.61/8 MH Line Qr No. 61/8 MH Line is hereby cancelled wef 02 Jun Delhi Canntt-10.

03. Please vacate quarter immediately.

3. A Notice dated 14.6.2003 was thereafter issued from the Court of the Estate Officer, Delhi Station, Delhi Cantt which reads as follows:-

NOTICE UNDER SUB SECTION (1) AND CLAUSE (b) (ii) OF SUB SECTION (2) OF SECTION 4 OF THE PUBLIC PREMISES (EVICTION OF UNAUTHORISED OCCUPANTS) ACT, 1971

Whereas I the undersigned am of opinion on the grounds specified below that you are in unauthorized occupation of the public premises, mentioned in the schedule below and that you should be evicted from the suit premises : -

GROUNDS

The public premises, Govt Married Accn, House No. 61/8 (Type-I) MH Line, Delhi Canntt was allotted to you by the Department on regular basis. On physical check of said public premises by the Adm Comdt and the Rep of Delhi Area Pro Unit, Delhi Canntt on 02 Jun 2003, it was found that you were found to be supplying electricity to nearby JJ clusters from your house i.e. said public premises which is in contravention to the Rule 17 of SRO 308/78. Therefore, Department had cancelled the allotment of said public premises wef 02 Jun 2003 vide their letter No202/6/A/61/8/MH Line/Q4 dated 13 Jun 2003 and reported that you have been in unauthorized use/occupation of said public premises wef 02 Jun 2003 till date of vacation and liable to be evicted besides payment of damage rate of rent.

Now, therefore, in pursuance of Sub Section (1) of Section 4, I also call upon you to Show Cause on or before the 21 Jun 2003 why such an order of eviction should not be made.

And in pursuance of Cl. (ii) of sub section (2) of Section 4, I also call upon you to appear before me in person or through duly authorized representative capable to answer all material questions connected with the matter along with the evidence which you intend to produce in support of the cause shown on 21 Jun 2003 at 1030 hrs for personal hearing. In case you fail to appear on the said date and time, the case may be decided ex-parte.

SCHEDULE

Public Premises : House No 61/8 (Type-I) MH Line, Delhi Cantt.

Sd/-

( SK Uppal)

Brig

Estate Officer

4. In the course of arguments, after reference to the records of the case, learned counsel for the Respondent has stated that the said Notice 'was served' on 16.6.2003, for the hearing before the Estate Officer scheduled for 21.6.2003. Assuming for the present that service was legally effected on 16.6.2003, seven clear days had not been made available to the Petitioner for preparing her defense since the hearing was scheduled for 21.6.2003. However, there can be no room for possible controversy that the service was not legally effected, since it has not been contested that the Petitioner was out of station and in Bhopal for carrying out the last rites of her husband who had passed away on 6.6.2003. Although, theoretically the Estate Officer should be an independent forum, the extraordinary expedition with which the case has been concluded, without any semblance of adherence to natural justice, shows that the Estate Officer was but another visage of the Military Authority. Even a casual inquiry from the employer of the Petitioner who had been directed to be present in the EO's Court, all of whom are located within the Delhi Cantt., would have disclosed that the Petitioner was not attending her duties due to her husband's death. The callous, inhumane and uncaring attitude of the Estate Officer as well as the Military Authorities probably was because the Petitioner is at the lowest rung of society, being a safai karamchari. Law, however, recognises a total equality amongst all persons, a fundamental feature of which is often lost sight of when power takes control of the mental faculties of a person in higher authority.

5. The Estate Officer draws his power from the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Being a creature of that statute he must meticulously adhere and abide by all its mandates. In Nazir Ahmed vs. King Emperor as well as in Mohinder Singh Gill vs. The Chief Election Commissioner, New Delhi , the principle that has been enunciated is that statutory procedure has to be followed in letter and spirit on pain of the entire action being struck down. These two cases have been followed in Sudhir Goel vs. MCD . Section 4(2) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 prescribes that the notice calling upon all persons concerned to Show Cause why an Order of Eviction should not be made, should be for a date 'not earlier than seven days from the date of issue thereof'. In the present case, avowedly the Notice issued is dated 14.6.2003 calling upon the Petitioner to answer all material questions connected with the matter along with evidence which was intended to be produced in support of the cause shown by the Petitioner, exactly seven days from the date of issue thereof. When the statutory provision prescribes a minimum period it does not prohibit or preclude a larger period being granted. The intendment behind a provision of this nature is to afford the Noticee at least one week within which to engage legal assistance and prepare case against the intended action. The Respondent's case is that the Notice was served on 16.6.2003, giving only four days to the Petitioner for preparing her defense. It is well-established that the date on which a notice is received as well as the date on which appearance is to be made is to be excluded. A reading of Rule 4 of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971 makes it palpably obvious that efforts should be made to effect service of the Notice personally on the noticee or any adult member of the family. The alternate mode of service by `Registered Post Acknowledgment Due' cannot possibly be resorted to where the addressee is avowedly not available in the premises. Sub-rule(3) of Public Premises (Eviction of Unauthorised Occupants) Rules, 1971 lays down the parameters within which affixation of the Notice would be efficacious. None of these circumstances exist. There is no contest on the question that the Petitioner was in Bhopal due to her husband's death. The entire action of the Respondent stands legally vitiated and is rendered void ab initio since the action under the Act is predicated on the Notice itself.

6. The 'Order' dated 13.6.2002 has already been reproduced above. It has been contended by learned counsel for the Petitioner that in fact no decision has been taken to cancel the Petitioner's allotment. This has been countered by learned counsel for the Respondent by reference to the endorsement of that letter to the Petitioner against which the following sentence finds feature " 'Allotment of qr No 61/8 MH Line is hereby cancelled wef 02 Jun 03. Please vacate quarter immediately'. The so-called Order is legally unsound even on this short ground.

7. There may be urgency in ejecting persons from public premises but this urgency cannot ride rough shod over the very basic requirements of social dealings. No reasonable human being can expect a person who has lost his/her spouse one week earlier and has had to leave work and station, to defend a legal action calculated to eject that person from the residence. It is inhuman to follow such a path. To make the situation worse confounded the Respondents have taken the stand that the principles of natural justice have no role to play in the ejectment of licensee of public premises, in the context of Rule 17 of S.R.O. 308/78.

8. According to the Respondents a surprise check was carried out on that date in the course of which it was found that the Petitioner had been supplying electricity to the adjoining JJ clusters. The Petitioner asserts that she was summoned to appear on 6.6.2003 which appointment she could not keep because of the death of her husband on the intervening night. In the first place, the cancellation Order must be found in the impugned Order and not as a footnote to it. In any event, after the allotment stood cancelled on 2.6.2003 there is no possibility of any opportunity being granted to the Petitioner for being heard. This violates the principles of natural justice which must be read into every statute. I would have expected the learned counsel for the Respondent to submit that even if an SRO did not contemplate grant of an opportunity of being heard such requirement should be read into the Regulation. Paragraph 7 of the Counter Affidavit reads as follows:

7. That as regard the contention of the Petitioner that no show cause notice was issued before cancelling the allotment, it is respectfully submitted that the SRO 308/1978 dated 17.10.1978 contains rules regarding Allotment of residences to civilians in defense Services in respect of residences specifically constructed for them. There is no provision in the SRO 308/1978 dated 17.10.1978 for issuance of show cause against the cancellation of the allotment. As per Rule 17(3) of the said SRO, sixty days time is allowed for vacating the accommodation only in cases of unauthorised subletting and not in any other cases contained in Rule 17(1) of the said SRO. It is also submitted that there is no provision in the said SRO for allowing a period of 60 days in the case where allottee has tampered with the electric or water connection in the accommodation allotted to him/her as in the instant case. There is no provision for statutory appeal in the said SRO. The provision of SRO 308/1978 are self contained and rules followed by Directorate of Estates do not apply to civilians in defense services, which has been upheld by the Ld. ADJ. This Hon'ble, therefore, be pleased to dismiss the present petition as being baseless and devoid of any merit.

9. The Respondent has resolutely and obdurately contended that there is no need to adhere to the principles of natural justice. This would ordinarily leave no alternative but to strike down the Regulation as being offensive to Article 14 and the basic features of Constitution. However, I prefer to ignore the argument and save the Regulation from being struck down by directing the Respondent to ensure that the Notice is served on the persons concerned strictly in consonance with the Rules so as to enable them to avail of an effective and meaningful hearing. This is the approach which has been recommended by the Constitution Bench of the Supreme Court in Sunil Batra v. Delhi Administration, 1978 SC 1675 in these words:-

38. Constitutional deference to the Legislature and the democratic assumption that people's representative express the wisdom of the community lead courts into interpretation of statutes which preserves and sustains the validity of the provision. That is to say, courts must, with intelligent imagination, inform themselves of the values of the Constitution and, with functional flexibility, explore the meaning of meanings to adopt that construction which humanely constitutionalizes the statute in question. Plainly stated, we must endeavor to interpret the words in Ss. 30 and 56 of the Prisons Act and the paragraphs of the Prison Manual in such manner that while the words belong to the old order, the sense radiates the new order.

10. A pedantic approach in the context of the language of Section 4 of the Act has been taken by the Respondents in the present case, since the Notice has been issued on 14.6.2003 for a hearing scheduled for 21.6.2003. This approach is incorrect. Could it be considered sufficient compliance with the statute if this notice was served one hour before the hearing. No Reasonable person would answer in the affirmative.

11. There is yet another startling feature of this case which disclosed the pre-meditated mindset of the Respondents. The Estate Officer is a creature of the statute and not a functionary or menial, or officer of the Military Authority concerned. He has a judicial function enjoining him to be completely non-partisan. Learned counsel for the Petitioner has submitted that in his experience the list of cases before the Estate Officer is prepared in accordance with the seniority of the persons who have to appear before the Estate Officer. Since the Petitioner is a safai karamchari her case would have been at the bottom of the List. Since the service was not effected on the Petitioner because she was out of station her employer had dispatched a telegram issued by her employer, Commandant Base Hospital, Delhi Cantt. dated 25.6.2003 to her in Bhopal. The telegram reads as under:

REFER TO TELEGRAM DT 20 JUN 03 AAA YOU ARE ADVISED TO ATTEND THE ESTATE OFFICER'S COURT C/O STATION HQ DELHI CANTT ON 28 JUN 2003 AT 1030 HRS FAILING WHICH THE CASE WILL BE DECIDED EX-PARTE AAA COMMANDANT BASE HOSPITAL DELHI CANTT-10

12. The Estate Officer must independently dispatch all notices emanating from its Office. It is crystal clear that no genuine opportunity was granted to the Petitioner to defend her eviction, as the Order of the Estate Officer was passed on the first date, that is, 28.6.2003, on which date the Petitioner was present. It purports to proceed on a confession made by the Petitioner, which she has denied. There is every possibility that the Order had already been prepared by 28.6.2003 and the formality of passing it in the presence of the Petitioner had been complied with. I do not find it necessary to go into the factual matrix of the case and delve into whether the Petitioner was guilty of the transgression with which she was charged, since it is incontrovertible that the procedural mandates have been completely thrown to the winds.

13. It is a further matter of regret that the Additional District Judge, in the impugned Judgment, has taken the view that there is no reason to disbelieve the Estate Officer's proceedings, when all factors pointed to the failure to comply with the statutory procedure are established. In this case the Petitioner was not granted a hearing before the Estate Officer who cancelled the allotment and she was also not given a proper and effective hearing by the Estate Officer. Instead of looking into the sequence of events vis-a-vis the cancellation, and the procedure followed by the Authorities below, the learned Additional District Judge has accepted the version of the Respondent in a routine manner. In the portals of every Court of law the meek and the humble stand on an equal footing with the high and the mighty. The former are entitled to procedural protection as well as the succor of the principles of natural justice. The Additional District Judge has failed to enquire the matter with the rigour expected in a First Appeal and has rendered nugatory the purpose of the Appeal provided by the statute.

14. The proceedings may commence de novo immediately prior to 13.6.2003 so far as any illegality committed by the Petitioner in respect of her occupation of Qr. No. 61/8, MH Line, New Delhi is concerned. The veracity of the charges levelled against the Petitioner have not been adjudicated in these proceedings.

15. The Writ Petition is allowed. The eviction of the Petitioner's accommodation at Qr. No.61/8. MH Line, New Delhi is held to be illegal. The possession of the said quarter must be restored to her forthwith, and not later than one week from today. In the event that the Quarter has been allotted to a third party, who is in possession thereof, the Respondent shall allot and handover possession of similar accommodation to the Petitioner within one week from today. Any penal claim or charge adjudicated or levied as on date is declared to be void. If payments have been made/received the Respondent shall refund them to her. In order to recompense the Petitioner for the injustice caused to her the Respondent shall pay nominal damages of Rs. 15,000/-. The Petitioner shall be entitled to costs of this Petition quantified at Rs. 10,000/-. These payments be made within two weeks.