Shri Tek Chand vs Estate Officer, Delhi Jal Board ...
2010 Latest Caselaw 5534 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

               W.P.(C) No.10931/2009


                       Judgment delivered on: 06.12.2010

SHRI TEK CHAND                          ..... Petitioner
                   Through: Mr.Sunil Satyarthi and
                              Mr.Raman Gandhi, Advocates

                     Versus

ESTATE OFFICER, DELHI JAL BOARD
AND ANOTHER                        ..... Respondents

Through: Mr. Karunesh Tandon with Mr.Jitendra Kumar, Advocates with Mr.D.N.Singh, Director (A & P), Delhi Jal Board in person.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1. Whether the Reporters of local papers may be allowed to see the judgment? No

2. To be referred to Reporter or not? No

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

KAILASH GAMBHIR, J. Oral:

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

Constitution of India, the petitioner seeks directions to set

aside the order dated 04.05.2009 passed by the learned Addl.

District Judge, Delhi. The petitioner also seeks direction to

quash the office orders dated 19.11.2008 and 25.02.2009

passed by the respondent.

2. Learned counsel for the petitioner submits that the

petitioner had never raised any sort of unauthorized

construction in the Govt. quarter bearing No.C-34, Type-I,

Kilokari, New Delhi which was allotted in his favour on

account of his employment with the respondent. Counsel also

submits that the petitioner had not erected any ' jhuggi'

adjacent to his said govt. quarter, as many such ' jhuggies'

were raised by various unauthorized jhuggi dwellers

surrounding the govt. quarters. Counsel for the petitioner also

submits that in fact the land on which the jhuggies were

raised is not owned by the respondent, as in LCA

No.116/2001 the learned Labour Court held that the land in

question did not belong to the respondent but belonged to the

Slum and J.J department. Counsel also submits that the

petitioner was prevented from appearing before the Estate

Officer due to bonafide reasons. The petitioner, while on duty

on 12.04.2007, received serious injuries and part of his body

was burnt including his hands and fists. Counsel further

submits that it was only after the petitioner had recovered

from his injuries that he could contact his counsel

Mr.P.S.Tomar, but was told by his son that Mr.P.S.Tomar had

already expired on 13.03.2008. Counsel thus submits that

non-appearance of the petitioner and his counsel before the

Estate Officer was neither intentional nor deliberate but due

to above bonafide reasons. Counsel also submits that no

evidence was led by the respondent before the Estate Officer

to prove that the petitioner was an unauthorized occupant in

respect of the said govt. quarter. Counsel thus states that in

the absence of any material on record, the learned Estate

Officer wrongly passed the eviction order under sub Section

(1) of section 5 and order for recovery of damages under sub

Section (2) and (2A) of Section 7 of the Public Premises

(Eviction of Unauthorized Occupants) Act, 1971.

3. Refuting the said submissions of counsel for the

petitioner, counsel for the respondent submits that the

petitioner was served with a show cause notice dated

17.01.2002 on the ground that he had constructed a tin shed

over the courtyard of the said govt. quarter bearing No.C-34,

Type-I, Kilokari, New Delhi and also erection of four jhuggies

by the petitioner surrounding the said govt. quarter. Counsel

further submits that vide order dated 16.09.2008 the

allotment of the petitioner in respect of the said govt. quarter

was cancelled and the said cancellation order became final as

no challenge thereto was made by the petitioner. Counsel

further submits that even before the Estate Officer, the

petitioner did not choose to appear and, therefore, now before

the writ court the petitioner cannot be heard to say that he

was an authorized occupant of the said govt. quarter or his

allotment was illegally cancelled by the respondent. Counsel

for the respondent also submits that once the allotment of the

petitioner was cancelled by the respondent, the onus was

upon the petitioner to have proved before the learned Estate

Officer that he was an authorized occupant in respect of the

said govt. quarter. Counsel further submits that enough

material was placed on record by the respondent before the

Estate Officer and based on the said material only the Estate

Officer had passed the eviction order under Section 5 of the

Public Premises Act. Counsel for the respondent further

submits that the petitioner has failed to point out as to how

the orders passed by the courts below are illegal and

perverse.

4. I have heard learned counsel for the parties.

5. The petitioner was allotted the govt. quarter

bearing No.C-34 Type-I, Kilokari, New Delhi and he was in

possession of the said govt. quarter till 31.10.2008. Due to the

vacation of the said govt. quarter by the petitioner, so far the

eviction order passed by the Estate Officer is concerned, the

same is not in question any more. The petitioner in the

present petition is primarily concerned with the order passed

by the Estate Officer under sub Section (2) and (2A) of

Section 7 of the Public Premises Act directing recovery of an

amount of Rs.3,13,253/- from the petitioner for the period

w.e.f. 06.02.2004 to 31.10.2008. It is not in dispute between

the parties that a show cause notice dated 17.01.2002 was

served upon the petitioner before passing of the cancellation

order by the respondent. It is further not in dispute that the

said show cause notice dated 17.01.2002 was duly replied by

the petitioner vide his reply dated 19.02.2002. In the said

show cause notice, the respondent complained of two

violations on the part of the petitioner. The first violation

complained of by the respondent was that the petitioner had

covered the open courtyard from the front side with a tin shed

and the second violation attributed against the petitioner was

that he had erected four jhuggies of different sizes. In the

reply submitted by the petitioner, it was refuted by him that

any jhuggi was erected by him. With regard to the

unauthorized construction of tin shed, the petitioner took a

stand that open portion in the quarter was covered with tin

shed because of monkey menace.

6. Vide order dated 18.06.2004, the allotment of the

petitioner was cancelled by the Office of the Assistant

Commissioner (Land and Building), as the petitioner failed to

remove the unauthorized construction from the court yard of

the said quarter and even the said unauthorized jhuggies.

Apprehending his eviction from the said govt. quarter after

the passing of the said cancellation order dated 18.06.2004,

the petitioner had filed a writ petition bearing W.P.(C)

No.12438-39/2006 before this Court to seek directions to

restrain the respondent from illegally evicting the petitioner

from the said quarter. The said writ petition of the petitioner

was dismissed by this Court vide order dated 04.08.2006 as

the respondent took a stand that they will take necessary

steps under the Public Premises Act to seek eviction of the

petitioner from the said quarter. Consequently, proceedings

were initiated by the respondent against the petitioner so as

to seek his eviction under Sub Section (1) of Section 5 of the

Public Premises Act. The respondent separately initiated

proceedings under Sub Section (2) and (2A) of Section 7 of

the Public Premises Act for recovery of damages. Vide order

dated 16.09.2008 eviction order under sub Section (1) of

Section 5 of the Public Premises Act was passed against the

petitioner and vide order dated 16.09.2008 the petitioner was

directed to pay a sum of Rs.1,63,509 for the period of

unauthorized occupation w.e.f. 06.02.2004 to 30.09.2006

along with interest @ 12% p.a. on this sum till realisation. The

petitioner was duly served in the said proceedings before the

learned Estate Officer and in fact the petitioner had appeared

before the Estate Officer. The petitioner, however, failed to

contest the said proceedings despite grant of numerous

opportunities in this regard. As per the order of the Estate

Officer, the petitioner failed to appear on 19.04.2007,

24.05.2007, 07.06.2007, 21.06.2007, 19.07.2007 and on

03.04.2008. The said two orders were challenged by the

petitioner by filing an appeal under Section 9 of the Public

Premises Act and vide order dated 04.05.2009, the learned

appellate court did not find any infirmity in the said two

orders passed by the Estate Officer and the same were

accordingly upheld by the Appellate Court. Although the

respondent failed to prove on record that the petitioner was

instrumental in the erection of four unauthorized jhuggies

adjacent to his govt. quarter, yet the other ground contained

in the show cause notice dated 17.01.2002 was still available

to the respondent as the petitioner in his reply dated

19.02.2002 had admitted the fact of raising of construction of

tin shed over the courtyard of the said govt. quarter. The

question as to whether the construction of tin shed in the

govt. quarter would afford a ground to the respondent to pass

cancellation order of the said govt. quarter or not was to be

determined before the Estate Officer. The petitioner was well

within his rights to challenge the validity and correctness of

the cancellation order dated 18.06.2004 and the same could

have been challenged by the petitioner only before the Estate

Officer. Despite grant of many opportunities by the Estate

Officer, the petitioner did not even choose to file any reply to

the show cause notice. The petitioner also did not seek any

remedy for setting aside of the ex parte orders passed by the

Estate Officer. Not only this, the petitioner also failed to

satisfy the Appellate Court that he was prevented to appear

before the Estate Officer on medical grounds as no such

ground was taken by the petitioner in the appeal preferred by

him before the learned Addl. District Judge.

7. It is a settled legal position that after the order of

cancellation is passed, the onus rests on the occupant to

establish the fact that his occupation in the govt. premises is

duly authorized. After the order of cancellation dated

18.06.2004 was passed by the respondent, the occupation of

the petitioner clearly became unauthorized. The petitioner

has not disputed the fact that he had raised unauthorized

construction of tin shed in the courtyard of the govt. quarter

which was one of the grounds contained in the show cause

notice dated 17.01.2002. The petitioner has nowhere pleaded

that the said unauthorized tin shed was removed by him

before the passing of cancellation order dated 18.06.2004

and, therefore, no illegality can be found in the said decision

of the respondent. The petitioner also failed to contest the

proceedings before the learned Estate Officer and no

explanation was furnished or disclosed by the petitioner in his

appeal for his non-appearance before the Estate Officer.

Number of opportunities were granted to the petitioner to

present his case, but having not done so, the petitioner cannot

now at this stage complain of violation of principles of natural

justice.

8. In the light of the above, this Court does not find

any infirmity or illegality in the impugned orders passed by

the courts below and the same are accordingly upheld.

9. There is no merit in the present petition and the

same is hereby dismissed.

December 06, 2010               KAILASH GAMBHIR, J
dc