Sh. Mohd. Umar & Anr. vs The Estate Officer & Ors.
2009 Latest Caselaw 585 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+            W.P.(C) 5813/2008 & CM No.657/2009

                                        Date of decision : 18.02.2009
IN THE MATTER OF :

#SH. MOHD. UMAR & ANR.                       ...  Petitioners
!                      Through :Mr. Chander Shekhar, Adv.

                    versus

$ THE ESTATE OFFICER & ORS.                   ..... Respondents
^                       Through : Mr. R.V. Sinha, Adv. for R-1 & 2.
                                  Mr. Rajesh Mahajan, Adv. for R-
                                  3.


CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may be allowed to see the
        Judgment? No.

     2. To be referred to the Reporter or not?   No.

     3. Whether the judgment should be reported in the Digest?    No.


HIMA KOHLI, J. (ORAL)

1. The present writ petition is filed by the petitioner against

the order dated 15.11.2007 passed by the learned Additional District

Judge in an appeal preferred by the petitioner under Section 9 of the

Public Premises (Eviction of Unauthorised Occupants) Act, 1971

(hereinafter referred to as "the P.P. Act"). By the said order the

learned Additional District Judge upheld the order of eviction dated

4.3.2002 passed by the Estate Officer under Sub-Section (1) of

Section 5 of the P.P. Act, in respect of Shop No.1, New Central Market,

New Delhi.

2. The petitioners herein claimed to be in actual physical

possession of the said shop till 17.01.2008 when the

respondent/NDMC took over the physical possession thereof from the

petitioners, who filed the present petition only in July, 2008.

3. The petitioners have raised a twofold challenge to the

impugned order. The first ground taken by the petitioner to assail the

impugned order is that no notice under Section 4 of the P.P. Act was

served upon them. The other plea taken on behalf of the petitioners

is that even if it is assumed that the notice was deemed to have been

served upon them, the same falls short of the requirement under

Section 4 of the P.P. Act inasmuch as the said notice does not show

any application of mind on the part of the Estate Officer, which is a

mandatory requirement of the said provision. It is stated that a

proper show cause notice ought to have been issued to the petitioners

and the Estate Officer was not only wrong in holding that the

addressee was in unauthorized occupation of the public premises, but

also erred in arriving at the conclusion that they should be evicted. In

support of the aforesaid contentions, counsel for the petitioner relies

on the judgment rendered in the case of Minoo Framroze Balsara vs.

The Union of India & Ors., AIR 1992 Bombay 375 and New India

Assurance Company Ltd. vs. Nusli Neville Wadia & Anr., (2008) 3

SCC 279.

4. Briefly stated, the facts of the case are that the aforesaid

shop was allotted on 24.9.1956 to one Shri C.K. Kharbanda on a

licence basis. Vide letter dated 7.4.1981, an offer for grant of

ownership right/leasehold right was made to the licencee. In response

thereto, Shri C.L. Kharbanda, sent his consent and paid capitalized

cost on 9.4.1981. However, as per the records, conveyance deed and

lease deed were never executed in his favour. The stand of the

respondent/NDMC was that the conveyance deed/lease deed was not

executed in favour of the licencee on the ground that he had illegally

sublet/parted with the possession of the said shop in violation of the

terms and conditions of the leasehold/ownership rights, which fact was

established even on a subsequent inspection of the shop carried out on

3.12.1993. It is pertinent to note that Shri C.L. Kharbanda expired on

5.10.1984, whereafter there were three claimants to the same shop.

The first claimant was his son, Shri Vinod Kumar Kharbanda. The

second claimant was Shri K.L. Tandon, who claimed that Sh. C.L.

Kharbanda had executed a Will in his favour and transferred the shop

to him. The third claimants are the petitioners herein, who state that

they are in actual physical possession of the shop, which they

purchased by virtue of an Agreement to Sell, Will, Power of Attorney,

etc. from Shri Ajay Kumar and Shri Girish Kumar Jaggi, who in turn

had purchased the rights in the said shop from Shri C.L. Kharbanda on

24.12.1981.

5. As the vacant possession of the shop was not handed over

to the respondent/NDMC upon the demise of Shri C.L. Kharbanda on

5.10.1984, despite cancellation of allotment conveyed vide letter dated

4.8.1998, proceedings for eviction of the shop were initiated by the

respondent under the Act and the Estate Officer issued a notice dated

27.10.1998 to all persons concerned, in particular Shri Vinod Kumar

Kharbanda and Shri K.L. Tandon, informing them that they were in

unauthorized occupation of the public premises and ought to be

evicted therefrom and that they had continued to occupy the premises

in question after its allotment was cancelled w.e.f. 5.10.1984 by virtue

of the letter dated 4.8.1998 issued by the Department of Estate.

5. Vide order dated 6.11.1998, the addressees were called

upon to show cause as to why the order of eviction should not be

made. On 23.11.1998, Shri Vinod Kumar Kharbanda, Shir K.L. Tandon

and Shri Mohd. Umar, the petitioner No. 1 herein, presented

themselves before the Estate Officer and sought time to file reply.

6. A perusal of the original records of the proceedings before

the Estate Officer, produced by the counsel for the respondent shows

that on the said date, Shri Mohd. Umar, petitioner No.1 herein,

appeared and stated that he was in occupation and wanted to file a

reply to the notice. The Estate Officer observed that as the notice

under Section 4(1) of the Act was to all concerned, he may also file a

reply if he so wanted by the next date of hearing. A perusal of the

records demolishes the contention of the counsel for the petitioners

that no notice under Section 4 of the Act was served upon the

petitioners.

7. The very purpose of issuance of a notice is to let the

addressee know that he is required to appear before an authority and

is thereafter afforded an opportunity of hearing by the said authority

before any orders are passed in respect of the public premises. The

said requirement stood satisfied the moment the petitioner appeared

before the Estate Officer, pursuant to the show cause notice dated

6.11.1998, addressed to all the person concerned including Shri Vinod

Kumar Kharbanda and Shri K.L. Tandon. In the impugned order, the

learned Additional District Judge has particularly taken note of the fact

that the petitioners filed a reply dated 24.2.1999 through their

Advocate and thereafter submitted another reply dated 4.5.1999

stating inter alia that their possession in respect of the shop was lawful

and that Shri C.L. Kharbanda was entitled to the shop after deposit of

sale consideration by them with the Department. Hence, it was

observed that the petitioners took all the pleas on merits as available

to them before the Estate Officer.

8. The learned Additional District Judge has also observed in

para 4.7 of the impugned order that the petitioners were granted time

by the Estate Officer to file their reply on 23.11.1998 and further

adjournments were granted to them on 15.12.1998, 12.1.1999 and

2.2.1999 for filing a reply. They were also granted several

opportunities to adduce evidence before the Estate Officer, but they

failed to avail of the said opportunities.

9. The order of the Estate Officer was duly examined by the

appellate court in the impugned order dated 15.11.2007, wherein it

was reiterated that the petitioners had ample opportunity to be

represented as also to present their case before the Estate Officer in

the proceedings held under the Act. In these circumstances, the plea

of the petitioners that no notice under Section 4 of the Act was served

upon them is contrary to the record which reflects that sufficient

opportunity of hearing was granted to them by the Estate Officer

before the order dated 4.3.2002 came to be passed. Hence, the first

ground taken by the petitioners is turned down.

10. The second plea of the petitioners that the notice falls short

of the requirements of Section 4 of the Act as there was no application

of mind by the Estate Officer, has to be examined in the light of the

notice issued by the Estate Officer. A perusal of the original records

shows that in the aforesaid notice to show cause issued under Section

4(1) of the Act, the Estate Officer stated that the addressees were in

unauthorized occupation of the public premises and that they were

liable to be evicted from the said premises. The addressees were also

informed that they were continuing to occupy the public premises in

question even after the allotment stood cancelled on 5.10.1984, duly

communicated by the Department of Estate, vide letter dated

4.8.1998.

11. In these circumstances, the contention of the counsel for

the petitioner that the Estate Officer did not fulfill the requirements of

Section 4 of the Act by prima facie satisfying himself, is not

acceptable. The Estate Officer not only gave an opinion that the

addressees were in unauthorized occupation of the public premises,

but also specified that they were continuing to occupy the public

premises after the allotment stood cancelled on 05.10.1984, which fact

was communicated by an earlier letter dated 04.08.1998. Hence, the

plea of the petitioners to the effect that notice falls short of the

requirements of Section 4 of the Act or that the Estate Officer failed to

conduct a multilevel inquiry required to be undertaken by him in terms

of the provisions of the Act, are unacceptable. Neither of the

judgments relied on by the counsel for the petitioners, are therefore of

any assistance in the present case. The petitioners cannot say that

the notice issued by the Estate Officer under Section 4 of the Act

suffers from the vice of non-application of mind or that they could not

effectively show cause to the notice issued by the Estate Officer.

There is no other argument urged by the counsel for the petitioners.

12. In view of the aforesaid facts and circumstances, this Court

declines to interfere in the impugned order dated 15.11.2007 passed

by the learned Additional District Judge as the said order does not

suffer from any illegality, arbitrariness or jurisdictional error. The writ

petition is, therefore, rejected being devoid of merits, along with the

pending application.

HIMA KOHLI,J FEBRUARY 18, 2009

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