Ramesh Massand vs Director Of Estates & Ors.
2009 Latest Caselaw 3741 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) 2384/2002

                                           Date of decision : 14.09.2009
IN THE MATTER OF :

RAMESH MASSAND                                        ..... Petitioner
                         Through: Mr. R.K. Saini, Advocate with
                         petitioner in person.


                    versus


DIRECTOR OF ESTATES & ORS.                    ..... Respondents
                   Through: Mr. Abhishek Aggarwal, Advocate for
                   Mr. Jatan Singh, Advocate



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 directed against the order dated

18.03.2002 passed by the learned ADJ 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 Act'), against the

order dated 26.07.2001 passed by the Estate Officer, holding the petitioner

to be an unauthorized occupant and directing him to vacate the premises in

question. By the impugned order, the learned ADJ dismissed the appeal of

the petitioner and upheld the order of the Estate Officer. Aggrieved by the

aforesaid dismissal order, the petitioner has preferred the present writ

petition.

2. Briefly stated, the facts of the case are that on 18.05.1985, the

petitioner, being a Government servant, was allotted a flat on the ground

floor, bearing No. D-I/7, Lodhi Colony, New Delhi. It is the case of the

petitioner that besides the main residential premises, a servant quarter was

also allotted to the petitioner. In this regard, reliance is placed upon the

occupation report of the Central Public Works Department (CPWD), enclosed

as Annexure P-2 to the writ petition, which refers not only to the main

house, but also to a servant quarter, handed over to the petitioner. In the

year 2000, a notice dated 30.08.2000 was issued by respondent No. 1 to the

petitioner calling upon him to hand over the vacant portion of the servant

quarter, on the ground that the same was in his possession unauthorisedly.

The petitioner replied to the aforesaid notice vide letter dated 21.09.2000,

intimating respondent No.1 that the servant quarter in question was

attached to the main residential premises and was allotted to him from the

very beginning. However, the respondent No.1 was not satisfied with the

reply of the petitioner and issued him a notice dated 27.09.2000, cancelling

the allotment of not only the servant quarter, but the residential premises as

well, w.e.f. 15.09.2000. Thereafter, the respondent No.1 filed a petition

before respondent No.2, for eviction of the public premises. A notice under

Section 4 of the Act was issued to the petitioner by respondent No. 2/Estate

Officer on 29.09.2000. The petitioner replied to the said notice and

contested the petition, preferred by respondent No. 1. After permitting the

parties to adduce evidence, arguments were addressed before the Estate

Officer, who passed an eviction order dated 26.07.2001, holding the

petitioner to be an unauthorized occupant and calling upon him to vacate the

public premises within 15 days from the date of publication of the order.

3. Aggrieved by the aforesaid order, the petitioner preferred an

appeal under Section 9 of the Act before the Appellate Authority, which was

dismissed by the impugned order dated 18.03.2002, thus compelling the

petitioner to file the present writ petition. Vide order dated 16.04.2002,

notice was issued in the writ petition and dispossession of the petitioner

from the premises in question was stayed. The said order was made

absolute on 01.11.2002 when Rule was issued in the writ petition.

4. Counsel for the petitioner submits that while passing the

impugned order dated 18.03.2002, the learned ADJ erred in observing that

the petitioner had "somehow" taken possession of the servant quarter

claiming it to be attached with the quarter allotted to him. The petitioner is

also aggrieved by the findings in the impugned order to the effect that it was

disputed by the respondents that the servant quarter was allotted alongwith

the main residential premises to the petitioner. Counsel for the petitioner

states that the aforesaid findings are contrary to the evidence on the record.

He draws the attention of this Court to the order of the Estate Officer,

wherein the deposition made by Shri S.B. Shukla, AE, CPWD, was taken note

of and it was recorded that the aforesaid witness had stated that the servant

quarter was allotted to the respondent (petitioner herein).

5. A perusal of the order of the Estate Officer dated 26.07.2001

bears out the aforesaid contention of the counsel for the petitioner. In fact,

the order dated 26.07.2001 reveals that the aforesaid witness, who

appeared on behalf of the respondent No.1, had produced the relevant

records before the Estate Officer to establish that the servant quarter was

allotted to the petitioner. Therefore, the observation made in the impugned

order dated 18.03.2002 to the effect that the petitioner had "somehow"

taken possession of the servant quarter is contrary to the records produced

before the Estate Officer. Similarly, the observation made in the appellate

order to the effect that it was disputed by the respondent No.1 that the

servant quarter was allotted alongwith the main residential premises to the

petitioner, is contrary to the aforesaid observations made by the Estate

Officer in his order dated 26.07.2001.

6. The other contention raised on behalf of the petitioner is that

without admitting that the petitioner had unauthorisedly occupied the

servant quarter in question, at best, the respondent could have initiated

action against the petitioner to evict him from the servant quarter in

question but not from the residential quarter, which was legally allotted to

the petitioner and was being occupied by him with the permission of the

respondents. He states that the notice dated 29.09.2000 issued by the

Estate Officer in respect of the entire premises in question was therefore

illegal and was liable to be set aside on account non-application of mind and

for the reason that the respondent No. 1 had at no point of time held the

petitioner to be in unauthorized occupation of the entire premises. It is,

therefore, stated that even the notice of cancellation of the premises in

question dated 27.09.2000, issued by respondent No. 1, was bad in law as it

was not the case of the respondent No.1 while issuing the notice dated

30.08.2000, that the petitioner was in „unauthorized occupation‟ of the

residential premises in question.

7. The aforesaid submission of the counsel for the petitioner is

borne out by a perusal of the notice dated 30.08.2000 issued by respondent

No. 1 to the petitioner. The subject matter of the said notice refers to

"unauthorized occupation of servant quarter meant for Type IV Quarter in

D1 Block, Lodhi Colony". The respondent could not have expanded the

scope of the proceedings under the Act to include the entire residential

premises in question allotted to the petitioner, when there was no challenge

to the occupation thereof by the petitioner. At best, the respondent could

have initiated action against the petitioner limited to his occupation of the

servant quarter which as per respondent No.1, was unauthorized. Even

then, the case for unauthorized occupation of the servant quarter is not

established against the petitioner in the light of the evidence on the record,

particularly, the deposition of Shri S.B. Shukla, AE, CPWD, as also the

Occupation Report dated 18.05.1985 (Annexure P-2), which has remained

uncontested by the respondents.

8. The aforesaid position as brought out from the documents on the

record as also the observation of the Estate Officer in his order dated

26.7.2001, is not denied on behalf of the respondents. Counsel for the

respondents has not been able to point out any document on the record to

establish a case to the contrary, or to establish the fact that while occupying

the residential quarter allotted to him by the CPWD, the petitioner forcibly

took possession of the servant quarter in question.

9. In view of the aforesaid facts and circumstances and the

evidence on the record, the impugned order dated 18.03.2002 cannot be

sustained. As a result, the writ petition is allowed and the eviction order

dated 26.07.2001 and the appellate order dated 18.03.2002 are set aside.

HIMA KOHLI,J

SEPTEMBER 14, 2009 rkb