Delhi High Court

Naseeruddin vs State Of Andhra Pradesh & Anr. on 5 August, 2010

Author: Kailash Gambhir

IN THE HIGH COURT OF DELHI AT NEW DELHI
            W.P(C) No. 4152/2007
                         Judgment delivered on: 5th August,2010

Naseeruddin                             ..... Petitioner
                            Through: Ms. Shobhna Takiyar, Adv.

                            Versus

State of Andhra Pradesh & Anr.  ..... Respondents
                     Through: Mr.Vinod Wadhwa, Adv.

                        W.P(C) No. 4164/2007


Shaffique Ahmed                     ..... Petitioner
                            Through: Ms. Shobhna Takiyar, Adv.

                            Versus

State of Andhra Pradesh & Anr.  ..... Respondents
                     Through: Mr.Vinod Wadhwa, Adv.

                        W.P(C) No. 4166/2007


Rajinder Singh                 ..... Petitioner
                            Through: Ms. Shobhna Takiyar, Adv.

                            Versus

State of Andhra Pradesh & Anr.    ..... Respondents
                     Through: Mr.Vinod Wadhwa, Adv.
                W.P(C) No. 4160/2007


Satpal Monga                        ..... Petitioner
                            Through: Ms. Shobhna Takiyar, Adv.
W.P.(C) No. 4152/2007                                 Page 1 of 20
                             Versus

State of Andhra Pradesh & Anr.  ..... Respondents
                     Through: Mr.Vinod Wadhwa, Adv.

                        W.P(C) No. 4153/2007


Raja Ram Kamra                      ..... Petitioner
                            Through: Ms. Shobhna Takiyar, Adv.

                            Versus

State of Andhra Pradesh & Anr.  ..... Respondents
                     Through: Mr.Vinod Wadhwa, Adv.

                            And

                        W.P(C) No. 4163/2007
Ansar Ahmed                    ..... Petitioner
                            Through: Ms. Shobhna Takiyar, Adv.

                            Versus

State of Andhra Pradesh & Anr.  ..... Respondents
                     Through: Mr.Vinod Wadhwa, Adv.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1. Whether the Reporters of local papers may        Yes
   be allowed to see the judgment?

2. To be referred to Reporter or not?               Yes

3. Whether the judgment should be reported          Yes
   in the Digest?


W.P.(C) No. 4152/2007                               Page 2 of 20
 KAILASH GAMBHIR, J.

1. This order shall dispose of a batch of six writ

petitions bearing Nos. W.P.(C) 4152/2007, 4153/2007,

4160/2007, 4163/2007, 4164/2007 & 4166/2007.

2. In these petitions filed under Article 226 of the

Constitution of India, the petitioners seek quashing of the

common order dated 9.5.2007 passed by the learned ADJ in

PPA No. 87/2005 in exercise of appellate jurisdiction

conferred under Section 9 of the Public Premises (Eviction of

Unauthorized Occupants) Act 1971. The petitioners also

seek quashing of the common eviction order dated 25th April,

2005 passed by the learned Estate Officer in respect of the

premises under the occupation of the present petitioners.

3. Brief facts relevant for deciding the present

petitions are that in 1947 the petitioners were allotted their

respective shops on rent by the Nizam of Hyderabad for

running different trades like meat shop, barber shop,

tailoring shop, fair price shop, grocery shop, etc. On

2.3.1994, a termination notice was served on the petitioners

on the ground that the said premises were being used for

commercial purposes whereas they were allotted for

residential purpose. The petitioners had filed a suit for

permanent injunction bearing no 240/1994 which was

disposed of with the direction of restraining the respondents

from taking possession except in accordance with law.

Thereafter a notice dated 23.9.2000 under section 4 of the

Public Premises (Eviction of Unauthorized Occupants) Act,

1971 was served on the petitioners and consequently an

eviction order dated 25.4.2005 was passed by the Estate

Officer. The petitioners preferred an appeal against the order

of the Estate Officer whereby vide judgment dated 9.5.2007,

the learned ADJ upheld the order of the Estate officer.

Impugning the order dated 25.4.2005 and judgment dated

9.5.2007, the petitioners have preferred the present

petitions.

4. Ms. Takiyar, counsel for the petitioners, submits

that both the courts below i.e. Estate Officer as well as the

learned ADJ failed to consider the fact that the notice of

termination served by the respondent as well as show cause

notice issued by the Estate Officer under Section 4 of the

Public Premises Act itself are illegal and void as the only

ground disclosed in the legal notice for declaring the

petitioners as unauthorized occupants in respect of their

premises is that they were using their premises contrary to

the letting out purpose. The contention of the counsel for

the petitioners is that the premises were let out by the

predecessor of the respondent i.e. Nizam of Hyderabad for

running of various shops, small time trades, business etc. in

favour of the petitioners right from the inception of the

letting. Counsel further submits that in the rent receipts the

specific trades were duly disclosed. Inviting attention of this

court to some of the receipts filed in W.P.(C) 4152/2007 the

counsel point out that the letting purpose has been clearly

mentioned as running of a meat shop. Similarly in other

cases also, counsel submits that the letting purpose has

been disclosed indicating the name of the trade for which the

shops were let out in favour of the petitioners. Counsel

further submits that the petitioners had placed on record

these receipts before the Estate Officer as well as before the

Appellate Court and these receipts pertain to the period

from 1955 onwards but both the courts below have

overlooked the said receipts and wrongly held the letting

purpose as residential. Counsel further submits that once

the documentary evidence clearly indicating the letting

purpose was placed on record, the same could not have been

ignored by the courts below. Counsel further submits that no

documentary evidence was placed on record by the

respondent to contradict or rebut the said documentary

evidence placed by the petitioners in the shape of rent

receipts. In support of her arguments counsel for the

petitioners has placed reliance on the following judgments:

1. M/s. Jain Ink Manufacturing Co. Vs. LIC of India & Anr., AIR 1981 SC 670.

2. Ex. Havaldar Kailash Singh & Sons. Vs. UOI & Anr., 106(2003) DLT 660.

3. Pyare Lal Vs. Estate Officer & Anr.,2006 II AD (Delhi) 28.

4. Dr. Yash Paul gupta Vs. Dr. S. S. Anand & Ors. AIR 1980, Jammu & Kashmir

5. Mrs. S. Premlata Bhatia Vs. Union of India, 108 (2003) DLT 346.

5. Refuting the said submissions of the counsel for

the petitioners, counsel for the respondent submits that this

court while exercising writ jurisdiction under Article 226 of

the Constitution of India will not re-appreciate the findings of

facts arrived at by both the courts below. He further submits

that in the legal notice the letting purpose was clearly

spelled out which was residential and therefore, now the

petitioners cannot be heard to say that the letting purpose

was commercial. Counsel further submits that the petitioners

were admittedly grantees in respect of the shops in question

and therefore, their licenses were terminated on account of

the breach committed by them. During the course of his

arguments counsel has produced photo copy of one draft

lease deed and states that the same was executed between

Naseerudeen as lessee and the Nizam of Hyderabad as

lessor through one Mr. M. Edward. On being questioned as

to why this draft lease deed was not placed on record before

the Estate Officer and before the Appellate Authority, counsel

states that the same being very old, the officials of the

respondent with great difficulty could lay their hands on the

same. Counsel further submits that the petitioners were in

unauthorized occupation of the premises in question from 2nd

March, 1994 when the grant in their favour was revoked by

the respondent. Counsel further submits that the learned

Estate Officer has carefully gone into the question of letting

purpose but did not find merit in the pleas raised by the

petitioners. Counsel further submits that both the courts

below have gone in depth to deal with the contentions raised

by the petitioners and no illegality or perversity can be found

in the reasoning given by them.

6. In support of his arguments, counsel for the

respondent placed reliance on the following judgments :

1. The Indian Bank Vs. M/s. Blaze and Central (P) Ltd.

& Ors. AIR 1986 Karnataka 258.

2. New India Assurance Co.Ltd.Vs. KLM Engineering Co.Pvt. Ltd. & Ors., AIR 2008 SC 876.

3. Hardwari Lal Verma Vs. The Estate Officer & Ors., AIR 1977 Delhi 268.

4. Ruby Advertisers Vs. Delhi Development Authority, 105(2003)DLT 92.

5. Rajvaidya Gune's Shahu Aryoushadi Karnataka Ltd. & Anr. Vs. The Collector of Kolhapur, JT 1996(9) SC 437.

7. I have heard learned counsel for the parties at

considerable length and given my thoughtful consideration to

the pleas raised by them.

8. Vide legal notice dated 2nd March, 1994 the

Government of Andhra Pradesh, successor-in-interest of the

Nizam of Hyderabad called upon these petitioners to hand

over the vacant possession of the premises under their

occupation within a month's time, whereafter they will be

deemed to be considered as trespassers/unauthorized

occupants in the premises under their occupation. The main

ground for termination of the said lease was that these

petitioners have been using the premises under their

occupation for running their respective trades although as

per the grant/lease, these premises were let out to them for

residential purpose only. It would be appropriate to

reproduce below the following paragraphs taken from one of

the legal notice here:-

"1. By virtue of a lease deed, a quarter behind Dhobi Ghat in the premises of Hyderabad House has been leased out for your own residence on monthly

rental and on such terms and conditions as contained in the said Deed of Lease.

2. xx xx

3. xx xx

4. xx xx

5. xx xx

6. In spite of the fact that the said grant/lease was for your residential purposes only, you had been using the said quarter for running the Meat Shop, in clear violation of the terms of the grant. In spite of the notice earlier issued to you, you have not desisted from using the quarter for running the Meat shop.

7. In terms of the said grant/lease, the Lessor, the Government of Andhra Pradesh shall not wish to allow you to continue in the said quarter."

9. Pursuant to the said legal notice, the Estate Officer

issued a show cause notice under Sub-Section (1) and Clause

(b)(ii) of Sub-Section (2) of Section 4 of the Public Premises

(Eviction of Unauthorized Occupants) Act, 1971. The ground

given in one of such notices is reproduced as under:-

1. The grant/lease/licence/permission granted to Shri Naseeruddin to occupy and use the premises mentioned in the Schedule below has been revoked/terminated by the State of Andhra Pradesh; and your present occupation of the said premises is an unauthorized occupation within the meaning of the said Act.

2. Proceeding against you for evicting you from the said premises "by due process of law" is permissible and warranted in law."

10. All these petitioners contested the proceedings before

the Estate Officer and vide order dated 25.4.2005, the Estate

Officer found all these petitioners to be in unauthorized and

illegal occupation of the premises. Accordingly they were

directed to hand over peaceful vacant possession of the

premises to the respondent within a period of 15 days.

Aggrieved with the said order, the petitioners preferred an

appeal before the learned Additional District Judge under

Section 9 of the Public Premises Act and vide order dated

9.5.2007 the learned ADJ did not find any merit in the said

appeals and consequently dismissed the same.

11. The principal contention raised by the counsel for the

petitioners is that both the Courts below failed to appreciate

that the ground for declaring the petitioners as unauthorized

occupants itself was non-existent as the respective premises

in favour of the petitioners were let out to them for

commercial purposes and, therefore, there was no question

of any kind of breach on the part of the petitioners so far the

letting purpose of the same was concerned. Counsel for both

the parties did not raise any other controversy, but confined

their arguments to the said limited issue as to whether the

show cause notice served by the Estate Officer was itself

illegal and void as the petitioners could not have been

declared unauthorized occupants in respect of the premises

under their occupation within the meaning of Section 2 (g) of

the Public Premises Act.

12. Before proceeding in the matter further it would be apt

to reproduce Section 4 of the Public Premises Act as under:-

"4. Issue of notice to show cause against order of eviction. - (1) If the estate officer is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, the Estate Officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made.

(2) The notice shall-

(a) specify the grounds on which the order of eviction is proposed to be made; and

(b) require all persons concerned, that is to say, all persons who are, or may be in occupation of, or claim interest in, the public premises,-

(i) to show cause, if any, against the proposed order on before such date as is specified in the notice, being a date not earlier than seven days form the date of issue thereof, and

(ii) to appear before the Estate Officer on the date specified in the notice along with the evidence which they intend to produce in support of the cause shown, and also for personal hearing, if such hearing is desired.]

(3) The Estate Officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in such other manner as may be prescribed, whereupon the notice shall be deemed to have duly given to all persons concerned."

The aforesaid provision clearly envisages that in a case

where the Estate Officer was of the opinion that any persons

are in unauthorized occupation of any public premises and

they deserve to be evicted then the Estate Officer shall issue

notice in writing calling upon such persons to show cause as

to why an order of eviction shall not be made against them.

The clear mandate of the above provision is that such a

notice should specify the grounds based on which the order

of eviction is proposed to be made. In the case in hand, the

ground given in the notice as reproduced above is that the

grant/lease/permission granted in favour of these petitioners

have been revoked/terminated by the State of Andhra

Pradesh and, therefore, their occupation of the premises in

question became unauthorized within the meaning of the

above provision. Clearly no specific ground on which the

order of eviction was proposed by the Estate Officer has

been mentioned in the said notice. It appears that the

formation of such an opinion on the part of the Estate Officer

is based upon the legal notice dated 2nd March, 1994 sent by

the respondent to the petitioners. Although the notice of

show cause issued by the Estate Officer should have clearly

spelt out the ground of eviction, but since this issue has not

been addressed by the counsel, therefore, this Court is

proceeding in the matter taking the said formation of opinion

by the Estate Officer based on the legal notice dated 2nd

March, 1994 wherein the reason for declaring the petitioners

as unauthorized occupants was that they were using the

premises contrary to the terms of the grant/lease. As per the

legal notice, the premises in favour of the petitioners were

let out for their own residence but they started using the

premises for commercial purposes in breach of the terms of

the lease. It is not in dispute that the respondent did not

place on record any lease deed or any other document to

show the purpose of letting being residential. In the legal

notice also, it was vaguely mentioned that by virtue of the

lease deed, the premises were let out for residential

purposes. No date or particulars of such lease deed have

been given by the respondent in the legal notice. No such

lease deed was also placed on record by the respondent

before Estate Officer or the Appellate Court and not even

before this Court. It is only during the course of arguments

that counsel for the respondent sought to produce a

photocopy of the draft lease agreement which too does not

inspire any confidence in the absence of any proper details of

the premises etc. given in the draft lease deed. The

petitioners on the other hand have placed on record the rent

receipts wherein the predecessor of the respondent i.e.

Nizam of Hyderabad has clearly indicated the purpose for

which the premises were let out to the petitioners. For

example, in the case of Naseeruddin, petitioner in W.P. (C)

No. 4152/2007, in the rent receipts issued in his favour the

purpose spelt out has been for running a meat shop.

Likewise, in the case of petitioner Rajinder Singh in W.P. (C)

No. 4166/2007 the purpose of letting has been disclosed as

running of a tailoring shop. These receipts are old receipts

pertaining to the period from 1955 onwards and, therefore,

in the absence of any other documentary evidence to the

contrary there is no reason to disbelieve these receipts. Even

the respondent has not denied the said receipts or to raise

any plea contrary to the letting purpose disclosed in the said

receipts. It is a settled legal position that in the teeth of

documentary evidence, oral evidence contradicting such

documentary evidence cannot be looked into unless the

party setting up oral evidence successfully proves any

novation of the contract between the parties. Once the said

documentary evidence was placed on record by the

petitioners right from the stage of the proceedings before the

Estate Officer, the oral stand of the respondents pleading

execution of some lease deed wherein the purpose of letting

was disclosed as 'residential' deserves outright rejection.

13. As already discussed above, the only ground for

declaring these petitioners unauthorized occupants is that

these petitioners were using the premises for commercial

purposes in breach of the terms of their lease, but since no

such lease was placed on record or any other documentary

evidence to substantiate the said plea was produced on

record by the respondent, therefore, the legal notice dated

2nd March, 1994 and the show cause notice served by the

Estate Officer under Section 4 of the PP Act becomes illegal,

void and without jurisdiction. It is quite surprising that

neither the Estate Officer nor the Appellate Court have taken

any pain to look at these receipts and at least to discuss the

import and effect of these receipts on the controversy

involved. It would be pertinent to refer to the judgment in

the case of New India Assurance Co. Ltd. Vs. Nusli

Neville Wadia (2008)3SCC 279 where the Apex Court has

held that:

"Where an application is filed for eviction of an unauthorised occupant it obligates the Estate Officer to apply his mind so as to enable him to form an opinion that the respondent is a person who has been in unauthorised occupation of the public premises and that

he should be evicted. When a notice is issued in terms of Section 4 of the Act, the noticee may show cause. Section 5 of the Act postulates that an order of eviction must be passed only upon consideration of the show cause and any evidence produced by him in support of its case also upon giving him a personal hearing, if any, as provided under Clause (ii) of sub-section (2) of Section 4 of the Act.

...........................

The Estate Officer with a view to determine the lis between the parties must record summary of the evidence. Summary of the evidence and the documents shall also form part of the record of the proceedings. Procedure laid down for recording evidence is stated in the Rules. The Estate Officer being a creature of the statute must comply with the same. When a notice is issued, the occupant of the public premises would not only be entitled to show cause but would also be entitled to produce evidence in support of the cause shown.

The procedural aspect as to who should lead evidence first, thus may have to be determined on the basis of the issues arising in the matter. When we say so, we do not mean that the procedure involved being a summary one, the issues are required to be specifically framed but that which is the principal issue(s) between the parties must be known to the Estate Officer. Thus under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 the occasion would arise for multi-level inquiry: primary inquiry will be to arrive at a conclusion on "unauthorised occupant", and intermediate inquiry would be as to the eviction of "unauthorised occupant".

The question has been succinctly dealt with by a Division Bench of the Bombay High Court in Minoo Framroze Balsara v. Union of India6 wherein Bharucha, J. (as the learned Chief Justice then was) opined: (AIR p. 389, para 36) "36. ... the government company or corporation must so act not only when terminating the authority of an occupant of public premises of its

ownership to occupy the same but also when, thereafter, it seeks his eviction therefrom."

The statute, although, does not require a lengthy hearing or a lengthy cross-examination but the noticee should be given an opportunity to file an effective show- cause. An effective show-cause can be filed when eviction is sought for a specified ground and the occupants must know the particulars in relation thereto. For the said purpose, Sections 4 and 5 of the Act must be read together. Even the Rules which are validly framed must be read along with the statutory provisions."

14. Another contention of the counsel for the respondent

was that the High Court in exercise of its writ jurisdiction

would not interfere with the findings of facts arrived at by

Courts below. It is a settled legal position that in a

proceeding under Articles 226 and 227 of the Constitution of

India the High Court cannot sit in appeal over the findings

recorded by the competent authority or courts below.

Undoubtedly the jurisdiction of the High Court, therefore, is

supervisory and not appellate. But it is also a settled law that

if on a mere perusal of the order of an inferior court if the

High Court comes to a conclusion that such a court has

committed manifest error by misconstruing certain