Mohd. Faheem vs State Of Andhra Pradesh
2010 Latest Caselaw 5561 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI


W.P.(C) No. 8172/2010 & CM No. 21059/2010



                       Judgment delivered on: 07.12.2010


Mohd. Faheem                                  ..... Petitioner.
                         Through:   Mr. Sudershan Rajan with
                                    Md. Qamar, Advs.

                      Versus


State of Andhra Pradesh                      ..... Respondent

Through: Nemo

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 Articles 226 and 227

of the Constitution of India, the petitioner seeks to

challenge the order dated 22.11.2010 passed by the

learned District Judge and the order dated 21.4.2006

passed by the learned Estate Officer.

2. Brief facts of the case relevant for deciding the

present petition are that the petitioner was in occupation of

premises at No.3, Ashoka Road Compound, New Delhi for a

long time. That on 23.9.2000 a show cause notice for

eviction under the Public Premises Act, 1971 was issued to

the petitioner and thereafter an eviction order dated

21.4.2006 was passed against him. Consequently, the

petitioner filed an appeal under Section 9 of the PP Act

which vide judgment dated 22.11.2010 was dismissed.

Feeling aggrieved with the abovesaid two orders, the

petitioner has preferred the present petition.

3. Assailing both the orders, Mr. Sudershan Rajan,

counsel for the petitioner, submits that the respondent has

not placed on record any document to show its ownership

in respect of the garage in question. Counsel thus states

that the respondent has no locus standi to invoke the

provisions of the Public Premises Act to seek eviction of the

petitioner from the said garage. Counsel further submits

that the petitioner has been in occupation of the said

garage since 1968 and he was enjoying his possession

uninterruptedly ,on payment of various taxes, with all the

facilities like telephone connection etc. Counsel also

submits that the learned Estate Officer had himself filed

an affidavit and then decided the eviction proceedings

himself and therefore, the learned Estate Officer became

judge in his own case. Counsel also submits that the case

of the petitioner is similar to the case of those occupants

whose petitions were allowed by this court vide order dated

5.8.2010. In support of his arguments, counsel has placed

reliance on the following judgments:-

(1) State of Uttar Pradesh Vs. Mohammad Nooh, [1958] 1SCR 595;

(2) Arjun Chaubey Vs. UOI & Ors. (1984) 2 SCC 578;

(3) Government of Andhra Pradesh Vs. Thummala Krishna Rao & Anr.

(1982) 2 SCC 134;

(4) Baldev Singh Vs. Manohar Singh AIR 2006 SC 2832

(5) Union of India & Ors. Vs. Taj Trading Co. (1982) 2 SCC 141;

(6) State of U.P. & Anr. Vs. Zia Khan (1998) 8 SCC 483;

(7) Dattatraya Vs. Rangnath Gopalrao Kawathekar 1971 SCC 2548

(8) Sushil Kumar Jain Vs. Manoj Kumar & Anr. (2009) 14 SCC 38

4. I have heard learned counsel for the petitioner

at considerable length and gone through the records.

5. The petitioner was declared unauthorized

occupant in respect of the said garage in question. The

respondent had served show cause notice dated 23.09.2000

under Section 1 of Clause b (ii) of sub-Section 2 of Section

4 of the Public Premises Act upon the petitioner. In reply

to the said show cause notice, the petitioner took a stand

that his father was owner in respect of the said garage but

the ownership papers were lost by him. An additional reply

was also submitted by the petitioner to the said show

cause notice and in the additional reply, the petitioner

sought to claim ownership of the said garage by adverse

possession. The learned Estate Officer after having gone

through all the issues raised by the petitioner vide detailed

order dated 21.04.2006 passed the eviction order against

the petitioner thereby giving him 15 days time to hand over

the peaceful and vacant possession of the said garage.

Feeling aggrieved with the said order, the petitioner

preferred an appeal under Section 9 of the Public Premises

Act. Vide order dated 22.11.2010 the said appeal was

dismissed by the learned District Judge. Before the

Appellate Court also the petitioner sought to challenge the

ownership of the respondent but did not succeed to

disprove the ownership of the respondent. After detailed

discussion on the question of ownership, the learned

District Judge upheld the view taken by the learned

Estate Officer on the alleged claim of ownership of the

petitioner over the said garage.

6. It is a settled legal position that for invoking the

writ jurisdiction of this Court under Article 226 of the

Constitution of India, the first prerequisite is that the

petitioner must disclose his clear legal right over the

property in question. Neither before the Estate Officer and

the Appellate Court and nor before this Court, the

petitioner has disclosed his legal right over the said

garage in question. Earlier in the reply dated 10.10.2000

to the show cause notice dated 23.09.2000 sent by the

Estate Officer, the petitioner took a stand that his father

was the owner of the garage in question and later in his

additional reply dated 03.11.2000 the petitioner took a

somersault to the stand that he became the owner by

adverse possession. Mere fact that the petitioner

remained in possession of the said garage for a

considerable period would not permit the petitioner to set

up a hostile title as against the owner. It is not the case of

the petitioner that before any authorities he ever claimed

his title over the said land adverse to the title of the

respondent or any other statutory authority. Merely

because the petitioner succeeded in getting the facility of

telephone connection or other municipal facilities the

same would not legitimize his possession. The petitioner is

thus clearly unauthorized occupant of the said garage and

he was rightly declared as unauthorized occupant by the

respondent. The petitioner has no legal right to retain

possession of the said garage and already he has been

enjoying the possession of the said garage in question

without payment of any damages to the respondent. The

existence of legal right is the foundation for invoking the

jurisdiction of the High Court under Article 226. The

present petition filed by the petitioner fails on this very

ground.

8. On the other pleas taken by the petitioner also,

this court does not find any merit. The petitioner has taken

the plea that the order of the Estate officer was a nullity as

a person cannot be a judge in his own case. But the

petitioner has failed to show how any prejudice or bias is

caused by the Estate Officer in rendering the said order of

eviction. The learned Estate Officer has passed the order in

his capacity as a quasi-judicial body and hence his role is of

adjudicatory nature. The maxim that no one shall be a

judge in his own case means that he should not have a

private interest in the case he is adjudicating. The Estate

officer acts as a Tribunal and has no private interest. Being

an Estate Officer he is discharging his public duties and is

not acting in his private capacity and thus is competent to

pass an order of eviction. Hence there is no violation of

principles of natural justice as the Estate Officer had no

personal interest in passing the said order of eviction.

9. The other pleas of the petitioner also do not stand on

a firm footing as it has been a case of shifting stands. In the

very first reply to the eviction notice he claimed to be the

owner and the next time in the additional reply he claimed

to be the owner by adverse possession. The status of a

person who is in occupation of any premises is either that

of a owner, landlord, tenant or licensee and even an owner

by adverse possession and it can be of an unauthorized

occupant or of a rank trespasser and thus it is for the

person in occupation to clearly disclose that in what

capacity he is in occupation of that particular premises. The

petitioner has failed to disclose that how he came into

occupation of the said garage, how his father was inducted

and with what right. The petitioner has failed to disclose

his legal right to remain in occupation of the said garage in

question, and simply because the petitioner succeeded in

obtaining the telephone connection or some other

municipal facilities would not strengthen his claim to

occupy the said garage as these municipal documents

cannot confer any legal right on a person over a property.

It is quite intriguing to find that the petitioner is in

possession of garage situated at such a prime place without

any right, title, interest and without paying any damages to

the respondent. As already discussed above, the existence

of a legal right is a condition precedent to invoke the

jurisdiction of this Court under Article 226 of the

Constitution of India and having failed to establish any

legal right over the said garage in question, the petitioner

is not entitled to invoke the writ jurisdiction of this Court

under Article 226 of the Constitution of India. The reliance

placed by the counsel for the petitioner on the aforesaid

judgments will be of no help to the petitioner in the facts of

the present case and the legal position discussed above.

10. So far the contention raised by the counsel for

petitioner that the respondent has not proved on record its

ownership over the garage in question is concerned, I find

the submission equally devoid of any merit. The learned

Estate Officer and the learned Appellate Court have gone

into the said issue much in detail and came to the

conclusion that based on the documents placed on record

by the respondent, it is the respondent alone who is the

owner of the said garage in question. I do not find any

infirmity in the said findings arrived at by both the Courts

below.

11. In the light of the above discussion, I do not find

any merit in the present petition and the same is hereby

dismissed.

December 07, 2010                   KAILASH GAMBHIR, J
mg/rkr