Krishna Devi vs Estate Officer Iv & Ors.
2010 Latest Caselaw 4267 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                    W.P. (C ) No. 4288/2007
                             Judgment delivered on: 14.09.2010

Krishna Devi                                           ..... Petitioner
                           Through: Ms. Urmil Sharma, Advocate

                                 Versus

Estate Officer IV & Ors.                 ..... Respondents
                     Through: Mr. Yeeshu Jain, Advocate for
                                        the respondent/DDA.

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 of the

Constitution of India, the petitioner seeks to challenge the

impugned order dated 05.02.2007 passed by the Ld. Additional

District Judge thereby dismissing the appeal filed by the appellant

under Section 9 of the Public Premises (Eviction of Unauthorised

Occupants) Act, 1971.

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

petition are that the petitioner on 9.1.95 acquired the land bearing

no. T -222 Kala Pet, Malka Ganj Road, Sadar Bazar (North) Subzi

Mandi, Delhi from one Sh. Kalu Ram, through his son/attorney Sh.

Jagan Nath and was running one kiryana shop there. That a show

cause notice dated 19.6.02 was issued to the petitioner u/s 4(2)(1)

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

Act), 1971 and thereafter an eviction order dated 23.9.02 was

passed by the learned Estate Officer against the petitioner. Feeling

aggrieved with the said order, the petitioner preferred an appeal

u/s 9(2) (a) of the Public Premises Act which vide judgment dated

5.2.07 was dismissed by the learned Additional District Judge.

Thereafter a sealing order dated 7.5.07 was passed against the

petitioner. Feeling aggrieved with the same the petitioner has

preferred the present petition.

3. Counsel for the petitioner states that the principles of

natural justice have been violated by the Estate Officer as no

opportunity was given to the petitioner to represent himself. The

contention of counsel for the petitioner is that the son of the

petitioner had appeared before the Estate Officer on 11.7.2002, but

no date thereafter was communicated to him by the Estate Officer.

Counsel thus submits that the petitioner and her son remained

under the bona fide impression that the next date would be

communicated by the Estate Officer, therefore, he did not choose to

appear before the Estate Officer. Counsel also submits that the

petitioner had lawfully purchased the land in question from one

Jagan Nath S/o Late Shri Kalu Ram by legally and validly executing

the documents and, therefore, based on the said documents the

petitioner became an authorized occupant of the said premises.

Counsel further submits that the petitioner has been singled out by

the respondent for the purpose of initiating the proceedings under

the Public Premises Act. Counsel for the petitioner has placed

reliance on Section 8 of the Public Premises Act to contend that the

Estate Officer being a quasi judicial authority is expected to follow

the principles of natural justice. Counsel further submits that the

Estate Officer should have given a fresh notice after having

proceeded ex parte against the petitioner.

4. Counsel for the respondent, on the other hand, refutes

the submissions made by the counsel for the petitioner and submits

that the orders passed by both the courts below are well reasoned

orders and no illegality or perversity can be found in the same, thus

supporting the orders passed by both the courts below.

5. I have heard counsel for the parties at considerable

length and gone through the records.

6. The petitioner claims herself to be in lawful and

authorized occupation of the Government land in question but has

failed to disclose as to how and in what manner she can be treated

as an authorized occupant of the same. Admittedly, the petitioner

has claimed that she had purchased the shop in question through

Agreement to Sell, General Power of Attorney and Will dated

9.1.1995 duly executed by one Mr. Jagan Nath son of L. Sh. Kalu

Ram. Indisputably Jagan Nath himself was never the owner of the

said shop as he was merely power of attorney holder of one Mr.

Kalu Ram who again had purchased the said land in question from

one Late Sh. Jagdish son of L. Sh. Chunni Lal. Photocopy of the

power of attorney placed on record by the petitioner nowhere

discloses the competence of Sh. Kalu Ram to transfer or sell the

land in question in favour of the present petitioner. Merely

claiming to be an absolute owner of the said shop in such

documents by itself cannot give rise to any presumption in favour of

the executant that he was the true owner of the said land unless

complete details of how and in what manner the person has become

the owner are disclosed in the transfer documents. Even in the

agreement to sell nowhere the said Jagan Nath has disclosed his

title over the said shop in question. As per the case set up by the

respondent, the land in question is a government land and the same

is under the management and control of the DDA. The said land

was earlier used by one Mr. Yusuf against whom proceedings under

Section 4 of the Public Premises Act were initiated in the year 1978

and this Mr. Yusuf had alone sold the said land in favour of one Mr.

Kalu Ram and then the notice under Section 4 of the Public

Premises Act was issued to Mr. Kalu Ram and after the death of

Sh. Kalu Ram the present petitioner was found to be in

unauthorized occupation of the said land. The petitioner has not

denied the fact that her son had appeared before the Estate Officer

in the said proceedings but did not choose to contest the said

proceedings and ultimately based on the evidence led by the

respondent, the Estate Officer vide order dated 23.9.02 passed the

eviction order against the petitioner. The contention raised by the

counsel for the petitioner that the Ld. Estate Officer should have

directed fresh notice upon the petitioner after proceeding ex-parte

against the petitioner is devoid of any merit as once the petitioner

had appeared before the Estate Officer through her son then it was

obligatory on the part of the petitioner to have contested the said

proceedings. It is correct that being a quasi judicial authority, the

Estate Officer must follow the principles of natural justice before

finally deciding any case under the Public Premises Act but it is

equally true that the violation of the principles of natural justice

cannot be complained of by the person who himself does not take

an opportunity of pressing his case or to contest the proceedings

before the Estate Officer. The Ld. Additional District Judge has

rightly placed reliance on the judgment of this court in Dr. K.R.K.

Talwar Vs. Union of India & Anr (AIR 1977 Delhi 189),

wherein this court took a view that the rule of audi alteram partem

does not mean that a person who himself does not avail the

opportunity, an order against him cannot be passed without hearing

him. Rules of natural justice are imperative to be followed for

assuring justice and fairness in action. Undoubtedly, they cannot be

given a go by in ordinary circumstances. But the caveat sounded by

Lord Denning, some four decades ago, that the rules of natural

justice must not be stretched too far and only too often the people

who have done wrong seek to invoke the rules of natural justice so

as to avoid the consequences, still rings true, especially in the

present circumstances. In the present case, the circumstances

clearly indicate that the rules of natural justice are being used as a

purely technical weapon to undo a decision which goes against the

interest of the petitioner. Had the petitioner been really aggrieved

by the non issuance of fresh notice by the Estate Officer, it would

have immediately taken steps to follow up the proceedings which

were initiated against her. In the present scenario, to quash the

impugned order on the ground that the petitioner was not given an

opportunity of being heard would amount to putting a premium on

the cavalier approach of the petitioner. Thus, the contention raised

by the counsel for the petitioner is fallacious and devoid of any

merit.

7. Coming to the second argument of the counsel for the

petitioner this court is not persuaded to accept that the petitioner

can be termed as an authorized occupant in respect of the shop in

question. Counsel for the petitioner has invited attention of this

court to the photocopies of the documents executed by one Mr.

Jagan Nath acting as a power of attorney holder of Mr. Kalu Ram in

favour of the petitioner. This document comprises of power of

attorney, agreement to sell, Will and receipt dated 09.01.1995. As

already discussed above, these documents nowhere disclose the

authority of Mr. Jagan Nath to sell out the said shop in question in

favour of the petitioner and therefore by virtue of these documents

the petitioner cannot be treated as an authorized occupant of the

shop in question. This court is of the view that the respondent has

succeeded in establishing its title and ownership over the said land

in question and the evidence led by the respondent before the

Estate Office remained unimpinched and unrebutted. It is a settled

legal position that the onus is upon the occupant to show that he is

not an unauthorized occupant over the land/property in his

occupation and the petitioner in the present case has failed to

satisfy this court as to how she claims herself to be an authorized

occupant of the said shop in question. Hence, in the light of the

above, this court does not find any infirmity or illegality in the

impugned order passed by the court below.

8. There is no merit in the present petition. The same is

hereby dismissed.

September 14, 2010                        KAILASH GAMBHIR, J
rkr/pkv