Union Of India & Another vs Sunil Dutt
2010 Latest Caselaw 439 Del

*     IN   THE      HIGH   COURT        OF   DELHI   AT    NEW    DELHI

+     W.P.(C) 8850/2007

      UOI & ANR.                                       ..... Petitioner
                              Through        Mr. J.N. Vasisht, Advocate.

                     versus

      SUNIL DUTT                                      ..... Respondent
                              Through        Mr. S.C. Singhal, Advocate.

       CORAM:
       HON'BLE MR. JUSTICE SANJIV KHANNA

                                ORDER

% 27.01.2010

The petitioners, Union of India and Estate Officer have filed the

present writ petition against the order dated 20th March, 2007 passed by

the Additional District Judge allowing Mr. Sunil Dutt's, the respondent

herein, appeal filed under Section 9 of the Public Premises (Eviction of

Unauthorized Occupants) Act, 1971 (hereinafter referred to as Act).

2. Counsel appearing for the petitioners submits that the impugned

order passed by the learned Additional District Judge incorrectly records

that the there was no sub-letting of premises T-12/3(half), Uri Enclave,

Delhi Cantonment and the inspection report dated 24th February, 2000 was

duly proved when it was filed and placed on record before the Estate

Officer and the persons, who had conducted the inspection, were not

W.P.(C) 8850/2007 Page 1 required to be examined. He further submits that only mother of Mr. Sunil

Dutt, the respondent herein could reside in the premises and brothers of

the respondent had no right to reside.

3. The respondent's father was originally allotted the said

accommodation more than 45 years back. In 1986, the said

accommodation was allotted to the respondent before his father retired.

4. Learned Additional District Judge in the impugned order has

referred to previous proceedings under the Act, which were initiated

against the respondent, but were later on dropped. She has also referred

to the fact that the brother of the respondent herein is an active politician

and was an elected member of the Delhi Cantonment Board and had

contested election against one Smt. Veena Puri, whose husband was

working in MES.

5. The admitted position is that the members of the inspection team did not

enter into the witness box to substantiate the allegation that the petitioner had

sublet the premises. Even as per the inspection report dated 24th February, 2000,

the respondent, his wife and three children were found to be residing in the

premises. The allegation made against the respondent was that his mother aged

71 years, two brothers Ashwani Mitter and Anil Mitter along with their wives and

six children were also found in the premises at the time of inspection and this

W.P.(C) 8850/2007 Page 2 constituted subletting.

6. It is, therefore, appropriate here to note the findings of Brigadier

S.K. Uppal, the Estate Officer in his earlier order dated 30 th August, 2003,

which are as under:-

"A perusal of the aforesaid documents proves beyond doubt that apart from the Respondent and his family, the family of both his brothers Shri Ashwani Mittar and Shri Anil Mittar none of whom are dependent upon the Respondent were found to be in use/occupation of the said pubic (sic) premises on the day when the Surprise Check took place."

7. This order was set aside in appeal and the matter was remanded

back vide order dated 20th December, 2005, with a direction that the

additional documents filed by the respondent should be taken into

consideration. These documents were considered, but another eviction

order dated 9th November, 2006 was passed by the Estate Officer. This

order deals with the documents produced by the respondent and notes

that as per the electoral roll of year 1998, the brother of the respondent

herein Mr. Ashwini Mitter was residing at Lajwanti Garden, Nangal Raya.

However, these electoral rolls were rejected on the ground that names of

the brothers of the respondent also appeared in the electoral roll for Delhi

W.P.(C) 8850/2007 Page 3 Cantonment Board and the name of the father of the respondent, Mr.

Jagdish Mitter, who had expired was not deleted. The respondent had in

addition also filed electricity bills and telephone bill of the premises at

Nangal Raya. These bills were rejected on the ground that they do not

prove that the brothers of the respondent were in physical occupation of

the house in Nangal Raya. Pass book of SBI as well as Ration Card in the

name of the brothers of the respondents were rejected.

8. Learned Additional District Judge in her detailed order dated 20 th

March, 2007 has examined the said aspects as the first appellate authority

on both on facts and law. She has considered the explanation and

response of the parties to the findings of the Estate Officer. The learned

Additional District Judge has recorded as follows:-

"4.2 Now coming to the documents placed on record before the Estate Officer by both the parties, in support of their respective claims. By the department, to show that appellant's other family members are residing in the said premises and by the appellant to show that they are living in their own residences, separately.

The appellant in support of his plea, has filed copy of electoral Roll of the year 1998, showing the name of Sh. Jagdish Mitter, i.e. father of the appellant alongwith his wife Soma Devi, Son, Anil Mitter, his wife Meenakshi and Ashwini

W.P.(C) 8850/2007 Page 4 Mitter and his wife Anjali, against the address of WZ-1391/31/3, Nangal Raya. Appellant also filed his brothers Anill Mitter's electricity bills of February, March and June, 1995 dated 01.12.1985 and 01.08.1996 and of June, August, 2000, and telephone bills (telephone No.5558250) in the name of Sh. Anil Kumar, of December 1995, August 1996 and April and December 1999, showing address of WZ-1391/31-3, Nangal Raya, Delhi, copy of MCD's letter dt. 24.11.2000 addressed to "Sh. Jagdish Mitter c/o Sh. Anil Mitter, WZ-1391/31, Nangal Raya", Ration Card of the Nangal Raya address including the name of Sh. Ashwini Mitter & family members Anil Mitter & his family members and the partents' name, copy of pass-book of Smt. Anjali Mitter w/o Sh. Ashwini Mitter, showing the address of Nangal Raya, Electoral Roll Special Summary Revision-2005, of Delhi Cantt. Showing address of WZ-1391/31 B, Nangal Raya, against the names of Anil Mitter and his wife and Ashwini Mitter and his wife.

The appellant has further stated that names of his brothers and their family members continued to exist in the Ration Card since all the members were living in the said premises along with their father at the time, when the said premises stood allotted in his father's name. These names continued to exist, although other family members were not residing with him. The appellant has also contended that it is not even humanly possible for 3 families consisting of about 10 members to live in a two room accommodation.

W.P.(C) 8850/2007 Page 5 On the other hand, the respondent filed Delhi Cantonment Board's electoral list for the years 1996 to 2000, showing the names of the appellant's brothers & their wives at the address of the said premises, a certificate of transfer of the telephone issued by SDO, Delhi Cantt. On 18.07.2002, to the effect that telephone number 5693750 was installed at the said premises in the name of Sh. Anil Mitter in July 1983, and was transferred on 09.05.2001, copy of appellant's rations card of the said premises, consisting of names of appellant, his wife and children as well as the Sh. Ashwini Mitter and his wife and children. The department has further stated that appellant's brother Sh. Anil Mitter, was an elected member of Delhi Cantonment Board w.e.f. 2.296 to 28.02.2003, indicating that Sh. Anil Mitter and his family was staying in the said premises, because only a resident Cantonment Board can apply and be a member of the said Board.

If, I were to accept the respondent's contention that appearance of appellant's brother and their wives name of Electoral Rolls, of Delhi Cantonment Board is proof of their residence in the said premises. Then (sic) would also have to accept the appellant's plea and the appearance of his brothers and their wives name s in Delhi Assembly Constituency Electoral Roll for the year 1998, showing their address as WZ-1391/31, Nangal Raya, is the proof of their residence at Nangal Raya. Similar would be case with the electricity bills of Nangal Raya premises in appellant's brother Sh. Anil Mitter's name.

W.P.(C) 8850/2007 Page 6 So far SDO's letter showing transfer of telephone in Anil Mitter's name (No.5693750) from the said premises of concerned. Same rather goes to support the appellant's contention that the said phone was installed in 1983, i.e. prior to allotment of the said premises to the appellant in 1986, when family members were staying with appellant's father. So far as appellant's ration card is concerned, it is seen that the same was issued on 24.04.1997 and has name of appelant's family members and that Ashwini Mitter, his wife and children. As per rules, these members' names should have been deleted, from the ration card, if they were not residing with the appellant.

9. Learned Additional District Judge specifically referred to the

inspection report and held that the said report was not proved as the

persons, who had conducted the said inspection or the independent

witnesses were not produced. The reasons recorded by the learned

Additional District Judge are as under:-

"4.1 From the above record, it is evident that the very basis of the entire proceedings leading to the passing of the impugned order is the Inspection Report.

Thus, it needs to be seen whether the said Inspection report has been proved by the department. It is intriguing to note that neither the department's witnesses nor the independent witness to the said report, was examined by the department before the Estate Officer. Nor did the department

W.P.(C) 8850/2007 Page 7 examine any of the members of the Inspection Team except that one of the members of the Inspection Team Sh. S.D. Kamble, who was summoned by the department all the way from Siliguri, but was not examined. Rather, one public person/neighbor Ms. Veena Puri, who was not even a witness to the Inspection, was examined by the department, for reasons best known to them. It is significant to note that even the Ld. Predecessor Court, while remanding the matter back against the earlier order dated 30.08.2003 with regard to witness Sh. Kamble, observed at page no.6 and 7 of his judgment that:-

".........The question which arises for consideration is that why the statement of this witness was not discussed by the Ld. E.O.? It also requires to be seen as to why the statement of this witness was not recorded by Ld. E.O.?

Let me now peruse the said notes. The first page of the same does not reveal that it pertains to the witness Shri Kamble, who had come to depose from Siliguri. The second and third pages of that proceedings also do not reveal anything about the examination of the witness.

....that statement of this witness was not recorded in detail by the E.O. for the reasons best known to him. It is also strange that opportunity of cross-examination of this witness was also not granted to the appellant's counsel......"

Further, the only witness i.e. Smt. Veena Puri, who was examined, stated before the Estate Officer that appellant's both brothers along with their family

W.P.(C) 8850/2007 Page 8 members and his mother are living in the said premises, whereas in writ petition bearing no.CWP 4384/1996, before the Hon'ble High Court, challenging the election of the appellant's brother, states in her objections, that Sh. Anil Mitter is not residing in the said premises. Thus, Smt. Veena Puri made contradictory statements before the Estate Officer and before the Hon'ble High Court. The Ld. Predecessor Court in his above said judgment, therefore, rightly concluded that this witness is not worthy of reliance.

In view of the above, I find that the department has failed to prove the inspection report."

10. It is not possible to accept the contention of the counsel for the

petitioner that mere filing of the inspection report on record and the fact

that it bears the signatures of Mr. Ashwini Mitter, proves the said report

and contents thereof. Signatures of Mr. Ashwini Mitter establishes only

that he was present at that time but not whether there was subletting and

what was the nature of occupation at that time. Allotment does not bar or

prohibit presence of visitors. Presence of another related person when the

original allottee is also present does not establish and prove subletting.

The inspection report does not state whether effects of brother's family

were found in the premises. As noticed by the Additional District Judge,

Mr. S.D. Kamble, one of the members of the inspection team was

W.P.(C) 8850/2007 Page 9 summoned by the department from Siliguri, but was not examined.

Surprisingly, a third party Ms. Veena Puri, who was not a member of the

inspection team was examined by the petitioner. Learned Additional

District Judge has referred to the earlier observations made by the

Additional District Judge while remanding the matter back.

11. Mere presence of some of the family members of the respondent at

the time of inspection does not establish and prove subletting, which is a

very serious charge and allegation. As noticed, the respondent himself

along with his family consisting wife and three children were also present

at that time. The accommodation consists of two rooms and if the

inspection report is to be believed, the respondent, his wife and three

children were residing and at the same time the property was sublet to

Mr. Ashwini Mitter, Mr. Anil Mitter, their wives, six children and mother of

the respondent.

12. In view of the aforesaid discussion, I do not find any merit in the

writ petition and the same is dismissed with costs of Rs.10,000/-.

SANJIV KHANNA, J.

      JANUARY 27, 2010
      NA




W.P.(C) 8850/2007                                                    Page 10