Shri Rajinder Pal Chadha vs Union Of India & Anr.
2010 Latest Caselaw 5686 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                   W.P.(C) No. 3670/2006

                        Judgment delivered on: 14.12.2010

Shri Rajinder Pal Chadha                   ..... Petitioner.

                           Through: Ms. Sangeeta Jain, Adv.


                           Versus

Union of India & Anr.                          ..... Respondent

                           Through: Mr. Atul Nanda, Adv.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,

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


2. To be referred to Reporter or not?                            Yes

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

KAILASH GAMBHIR, J. Oral:
*

1. By this petition filed under Section 226 of the

Constitution of India, the petitioner seeks quashing of the

eviction order dated 6.9.2003, passed by the learned Estate

Officer and order dated 30.1.2006 passed by the Additional

District Judge, Delhi whereby the appeal filed by the

petitioner was dismissed.

2. Brief facts of the case relevant for deciding the

present petition are that by virtue of being an employee of the

Military Engineering Service, the petitioner was allotted a

government accommodation bearing Quarter No. 109/3,

(Type-III), Kabul lines, Delhi Cantt. That a surprise check was

carried on 9.4.2002 and on the basis of the report of the said

checking staff, a show cause notice under the Public Premises

Act dated 14.9.2002 was served upon the petitioner and

thereafter an eviction order dated 6.9.2003 was passed.

Thereafter the petitioner filed an appeal against the said

order which vide judgment and decree dated 30.1.2006 was

dismissed. Feeling aggrieved by the same, the petitioner has

preferred the present petition.

3. The main contention raised by the counsel for the

petitioner is that the learned Estate Officer did not grant any

opportunity to the petitioner to lead his evidence so as to

prove the fact that he was in authorized occupation of the

said Government accommodation and hence the cancellation

order passed by the respondent was per se illegal. Counsel

for the petitioner has drawn attention of this court to the

proceedings of the Estate officer from 2.11.2002 till 14.6.2003

to contend that on all these dates the Department had been

seeking time to submit copy of the surprise check report and

photographs of the site, but on none of these dates the said

documents were placed by the Department before the Estate

Officer. Counsel further submits that on 6.9.2009 the said

documents were placed on record by the Department and

based on the said documents, the Estate Officer in a great

haste had passed the eviction order dated 6.9.2003. Counsel

thus urges that neither the Department had adduced any

evidence nor even the petitioner was granted any opportunity

to rebut the evidence placed on record by the respondent in

the form of inspection report. Counsel also submits that the

allotment of the accommodation in occupation of the

petitioner was cancelled by the respondent on the ground

that he had raised the unauthorized construction of a small

room and also dumped kabari items in the said Government

accommodation in contravention of Rule 16 & 17 of SRO

308/78. The contention of the counsel is that the petitioner

was not given any opportunity to remove the said kabari

items prior to the cancellation of his allotment and so far the

allegation of unauthorized construction is concerned, the

Department failed to point out as where such unauthorized

construction of a small room was made by the petitioner.

Counsel thus states that the order of the Department to

cancel the allotment of the said Government accommodation

was illegal. Counsel also submits that even in the notice

served upon the petitioner under Section 4(1) & 4(2) (b) (ii) of

the Public Premises (Eviction of Unauthorized Occupants)

Act, 1971, the ground taken was that the petitioner had

dumped the kabari items and had also raised unauthorized

construction of a small room. Counsel thus states

that nowhere it was the case of the respondent that the

petitioner had sublet the premises in favour of some beauty

parlour in the name of Ruby New Look's. Counsel thus

submits that the learned Estate Officer had blatantly violated

the principles of natural justice. Counsel also submits that

the order of the appellate court is also illegal and perverse as

the appellate court did not take care to notice the glaring

illegalities committed by the Estate Officer. Counsel states

that the petitioner had never taken a stand that he had

committed a mistake and will not repeat it again and that the

petitioner never tendered any apology for carrying out any

unauthorized construction or dumping kabari items.

4. Opposing the present petition, Mr. Atul Nanda,

learned counsel for the respondent/UOI submits that the

Department had placed on record the inspection report

along with the photographs and in the photographs not only

kabari items are visible but even the respondent is seen

present. The counsel thus supports both the orders passed by

the learned courts below.

5. I have heard learned counsel for the parties.

6. The petitioner was an employee of Military

Engineering Service (MES) as a key personnel and by virtue

of his appointment with the said Department, he was

allotted Government accommodation bearing House No.

109/3, Type-III, Kabul Lines, Delhi Cantt. The allotment was

cancelled by the respondent vide cancellation order dated

6.9.2003 and the said cancellation was made by the

respondent on the allegation that on a surprise check carried

out by respondent no.1 on 9.4.2002, it was found that the

petitioner had dumped the kabari items in the said quarter

and had also raised unauthorized construction of a small room

which as per the Department was in contravention of Rule 16

& 17 of SRO 308/78. Based on the said cancellation order,

the Estate Officer had issued notice under Section 4(1) & 4(2)

(b) (ii) of the Public Premises (Eviction of Unauthorized

Occupants) Act, 1971, thereby calling upon the petitioner to

show cause as to why an order of eviction should not be

made against him.

7. It is a settled legal position that the Estate Officer,

while exercising jurisdiction, acts as a quasi judicial authority

and not as an administrative functionary. Before passing an

order of eviction under Section 5 of the Public Premises Act,

the Estate Officer has to take into consideration the evidence

adduced by both the parties and the materials placed on

record and after granting personal hearing, if the Estate

Officer is satisfied that the premises are under the

unauthorized occupation of such a person, then an order

under Section 5 of Public Premises Act shall be made by the

Estate Officer. For better appreciation of facts, Section 5 of

the Public Premises (Eviction of Unauthorized Occupant) Act

is reproduced as under:

"5. Eviction of unauthorized occupants.

(1) If, after considering the cause, if any, shown by any person in pursuance of a notice under section 4 and 3[ any evidence produced by him in support of the same and after personal hearing, if any, given under clause (b) of sub- section (2) of section 4], the estate officer is satisfied that the public premises are in unauthorised occupation, the estate officer may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.

(2) If any person refuses or fails to comply with the order of eviction 2[ on or before the date specified in the said order or within fifteen days of the date of its publication under sub- section (1), whichever is later,] the estate officer or any other officer duly authorised by the estate officer in this behalf 2[ may, after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person] from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary."

8. From the perusal of the proceedings of the Estate

Officer, it is evident that the Estate Officer had blatantly

violated the principles of natural justice as no opportunity of

hearing was given to the petitioner to lead evidence so as to

disprove the case of the respondent. The respondent had

been seeking adjournments time and again to produce the

inspection report and the photographs and the matter was

being adjourned by the Estate Officer for the said purpose.

However on one fine day i.e. on 6.9.2003, the respondent had

placed on record the inspection report and the photographs

and based on the same in great haste, the said eviction

order was passed by the Estate Officer against the petitioner.

Neither any evidence was adduced by the Department nor

any opportunity of hearing was given by the Estate Officer to

the petitioner. It is not the case of the respondent that due

opportunity was given to the petitioner and the same was not

availed by the petitioner. In fact perusal of the record shows

that not even a single opportunity was given by the Estate

Officer to the petitioner to adduce evidence to show that his

occupation in the said quarter was legal and authorized.

9. The rules of the Civil Procedure Code and the

Evidence Act are strictly not applicable to the proceedings

before the Estate officer and hence it becomes all the more

imperative that the rules of natural justice, especially the rule

of audi alteram partem, are abided by the Estate Officer. The

Estate Officer is a creation of the statute and has to act within

the confines of the law and not in a routine and obscure

manner. The right to fair trial is the foundation of our justice

delivery system and every person has the right to put his case

before any adverse order is passed against him. It is also

disheartening to note that the learned Appellate Court below

has also upheld the order of the Estate Officer without looking

into the illegalities committed by the Estate Officer. If the

courts are unable to enquire with the rigour expected in an

appeal, the right to appeal is rendered nugatory. There may

be urgency in evicting the persons occupying public premises

illegally but that cannot take away the succour of rules of

natural justice from any proceedings.

10. In view of the above position, this court finds that

the order of the Estate Officer and that of the appellate court

cannot sustain in the eyes of law. Consequently, both the

orders passed by the courts below are set aside.

11. The present petition is allowed accordingly.

December 14, 2010                KAILASH GAMBHIR, J
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