Triloki Nath Dhir vs N.D.M.C.&Anr.
2010 Latest Caselaw 3897 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI


                       W.P. (C) No. 65/2010
                            Judgment delivered on: 20.08.2010

Triloki Nath Dhir                                     ..... Appellant
                           Through: Mr. Mr.V.K. Malik with Mr. M.F.
                                     Khan, Advocates



                           Versus

N.D.M.C. & Anr.                      ..... Respondents
               Through: Mr.Manoj K. Singh with Mr. Nilava
                                Banerjee, Advocates

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?


KAILASH GAMBHIR, J. (Oral)

*

1. By this petition filed under Article 226 and 227 of the

Constitution of India, the petitioner seeks setting aside of the

eviction order dated 2nd November, 2007 passed by the Estate

Officer and the order dated 24th December, 2009 passed by the

learned District Judge upholding the order of eviction passed by

the Estate Officer .

2. Brief facts of the case relevant for deciding the present

petition are that a licence deed in respect of the property

bearing Shop No.31 South Market, Kidwai Nagar East, New

Delhi was executed in favour of the petitioner by the

respondents w.e.f 19.6.1997. A show cause notice dated

26.12.2006 was served by the Estate Officer on the petitioner

on the ground that some additions and alterations were

undertaken by the petitioner without the permission of the

respondents and consequently an eviction order dated

2.11.2007 was passed by the Estate Officer. Feeling aggrieved

with the said order, the petitioner preferred an appeal to the

ADJ which vide judgment and decree dated 24.12.2009 was

dismissed. Hence, feeling aggrieved with the above said two

orders, the petitioner has preferred the present petition.

3. Mr. V.K. Malik, counsel appearing for the petitioner

vehemently submits that the petitioner had removed all the

violations complained of by the respondents in their show

cause notice dated 26.12.2006 and after the removal of the

said breaches, the eviction order passed by the Estate Officer

cannot sustain. Counsel further submits that the respondents

have acted malafidely and discriminately against the petitioner

although similar violations have been committed by other

shopkeepers by erecting mezzanine floor and basement, etc.

Counsel further submits that the alleged violations carried out

by the petitioner were temporary in nature and the same were

immediately removed by the petitioner, therefore, with the

removal of the said breaches the respondents in fact should

have withdrawn the show cause notice dt. 26.12.2006. Counsel

further submits that in fact the petitioner had made a

representation dated 30th November, 2007 to the respondents

but the said representation of the petitioner has not yet been

decided. Counsel also submits that pursuant to the said

eviction order, the respondent has taken over the possession of

the said property from the petitioner. Counsel also submits that

the principles of natural justice have not been followed by the

Estate Officer as no proper opportunity was given to the

petitioner to defend his case.

4. Mr. Manoj K. Singh, counsel appearing for respondent No.

1, strenuously refutes the submissions made by counsel for the

petitioner. Mr. Manoj K. Singh submits that the petitioner did

not contest the proceedings before the Estate Officer, and

hence he, cannot complain of violation of principles of natural

justice. Counsel further submits that the licence of the

petitioner came to an end in the year 2002 and the same was

not renewed by the respondent. Counsel further submits that

the petitioner has carried out additions and alterations in the

said shop allotted to him and the same were not removed by

him despite the service of show cause notice and even during

the pendency of the proceedings before the Estate Officer.

Counsel further submits that in the reply submitted by the

petitioner himself before the Estate Officer, he admitted that

he had already removed mezzanine floor, wooden planks and

other unauthorized additions made by him and brought the

shop to its original shape, but even after filing of the said reply

it was found by the respondents on 30th June, 2007 that the

said unauthorized structures still remained on site and were

not removed by the petitioner. Counsel also submits that after

having taken over the possession of the said shop, the same

was put to auction and in the said auction the petitioner was a

successful bidder and consequently the petitioner alone is in

occupation of the said shop.

5. I have heard learned counsel for the parties at

considerable length and gone through the records.

6. Proceedings against the petitioner were initiated by the

respondent complaining raising of certain unuathorised

structures in the shop in question. An inspection of the

premises was carried out by the officials of the respondent on

19.12.2006 who found some violations committed by the

petitioner. These violations have been reproduced in the

order of the Estate Officer, which is as under:-

"A mezzanine floor was erected and the ground level of the shop was also lowered. A steel stair case was provided for mezzanine floor and verandahs were covered and 4 STD Booths were made."

7. The show cause notice was served upon the petitioner

thereby calling upon the petitioner to remove the above said

breaches and in the reply thereto the petitioner took a stand

that he had already removed the said breaches. However, on

inspection by the respondent it was found that the petitioner

took a false stand in the reply and in fact the breaches were

not removed by the petitioner. Finally on 23rd July, 2007 the

allotment of the shop of the petitioner was cancelled and

proceedings against the petitioner were initiated by the Estate

Officer under Sections 5, 5-A, 5-B & 5-C of the Public Premises

Act. Referring to clause 13 of the license agreement signed

between the parties, the Estate officer found that a condition

was imposed on the licensee not to construct any additional

structure in the shop and the petitioner will not raise any

construction which could alter the shape of the basic unit given

to him on license basis. It is not in dispute that the petitioner

had filed his reply before the Estate officer, but failed to

contest the said proceedings, resulting into passing of the said

eviction order by the Estate officer. After the said eviction

order, the petitioner had filed a representation before the

respondent and in the meanwhile the petitioner had also

challenged the order of the Estate Officer before the learned

District Judge. The appeal filed by the petitioner was also

dismissed in default on 12th August, 2009 and the said appeal

was restored by the learned District Judge vide order dated 20th

November, 2009. However, in the meanwhile, the possession of

the said shop was taken over from the petitioner by the

respondent. A consistent stand was taken by the petitioner that

he has removed the unauthorized structure and the same was

temporary in nature. The license of the petitioner had also

expired in the year 2002 itself and the same was not renewed

by the respondent. Since no fresh license deed was executed

by the respondent in favour of the petitioner so the petitioner

became unauthorized occupant in respect of the said shop. The

said notice was served on the petitioner after the expiry of the

license when it was also complained that the petitioner had

carried out certain additions and alterations in the said shop

thereby violating the terms and conditions of the license deed.

The petitioner failed to remove those additions and alterations

despite having taken a stand in his reply that he has removed

the said additions and alterations. After having perused the

proceedings taken place before the learned Estate officer, the

learned District Judge found that the petitioner was given

reasonable opportunity to contest the said proceedings, but the

petitioner failed to contest the same. The petitioner even did

not take steps to seek setting aside of the ex parte order of the

learned Estate Officer. The learned District Judge also placed

reliance on the reply filed by the petitioner before the Estate

officer wherein he categorically stated that he had removed

the unauthorized additions and alterations in the said shop.

The learned District Judge thus found that with such a stand

taken by the appellant it was quite apparent that the appellant

had admitted the fact that he had carried out the unauthorized

additions and alternations in the said premises. When the said

stand was taken by the petitioner, a fresh inspection was

carried out by the respondent on 13th June, 2007 and it was

found by the respondent that the petitioner did not remove the

unauthorized additions and alterations and the same still

existed. Clause 11 of the license agreement executed between

the parties clearly prohibits the licensee to carry out any

additions and alterations in the licensed shop unless a request

to this effect in advance is made by the licensee to the

licensor. The license deed further provides that if the licensee

commits breach of any of the terms and conditions of the

license then the said license can be revoked by the licensor.

License of the petitioner had expired in the year 2002 itself and

there was no fresh license deed executed by the respondent in

favour of the petitioner. The petitioner was also found to have

breached the terms of the license deed by carrying out the said

additions and alterations.

8. I do not find any merit in the argument of the counsel for

the petitioner that certain other occupants had also raised

additional structures in their shops which were not objected to

by the respondents. In the notice served by the respondent the

violation inter alia comprises of digging ground level

approximate 1 foot, erection of mezzanine floor, erection steel

stair for mezzanine floor, covering verandah by making 04 STD

Booths (wooden cabin), putting counter in front of shop in

corner and refrigerator also, and, therefore, it was not merely

the construction of the mezzanine floor alone, but there were

other breaches also made by the petitioner. The Estate Officer

also found that the petitioner made a false statement by taking

a stand that he had already removed the breaches by restoring

the shop to its original position. The petitioner had filed the

reply, but thereafter absented himself before the Estate officer

and, therefore, the petitioner cannot be heard to complain that

principles of natural justice were not followed by the Estate

Officer.

9. In the light of the above, I do not find any illegality or

perversity in the order passed by the learned District Judge or

by the Estate Officer. There is no merit in the present petition

and the same is hereby dismissed.

KAILASH GAMBHIR, J August 20, 2010 rkr