Nazeer Ahmad vs Nazar Mohammad
2011 Latest Caselaw 4358 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 06.9.2011


+                    CM(M) No.2103/2005


NAZEER AHMAD                                    ...........Petitioner
                          Through:   Mr.Sunil Ahuja, Advocate.

                     Versus

NAZAR MOHAMMAD                                   ..........Respondent
                          Through:   None.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

     2. To be referred to the Reporter or not?               Yes

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

INDERMEET KAUR, J. (Oral)

1. The order impugned before this Court is the order of the

Additional Rent Control Tribunal (ARCT) dated 01.7.2005 which

had reversed the finding of the Additional Rent Controller (ARC)

dated 19.10.2002. Vide order of the ARC dated 19.10.2002 the

eviction petition filed by the landlord namely Nazeer Ahmad had

been decreed under Section 14(1)(b), (d) and (h) of the Delhi Rent

Control Act (hereinafter referred to as "the DRCA"). The ARCT

had reversed this finding. The ARCT was of the view that the

disputed property is a government property having been declared

to be a evacuee property and under Section 3 of the DRCA it is

excluded from the purview of the DRCA; eviction petition had

been dismissed. This order is the subject matter of the present

petition.

2. Record shows that the present eviction petition has been

filed by landlord Bashir Ahmad son of Dost Mohd. Khan and father

of Nazeer Ahmad. Premises in dispute is a portion of house

No.2805, Gali Tehsildar Wali, Pahari Bhojla, Bazar Sita Ram,

Delhi; in the grounds of eviction it has been stated that the suit

premises had been sublet and assigned by the tenant Nazar Mohd.

in favour Mohd.Shahid; the tenant is not residing there since last

six years; moreover he had already acquired another vacant

possession of House No.2789, Gali Jot Wali, Pahari, Bhohla, Delhi;

eviction order under Section 14(1)(b), 14(1)(d) and 14(1)(h) of the

DRCA had been prayed for.

3. In the written statement the tenant had denied the status of

the petitioner as owner or landlord; it was specifically contended

that the suit property is owned and managed by the Rehabilitation

Department; contention was that Mohd. Shahid is in an

independent possession in respect of a separate and independent

property; further contention was that the property had been let

out for commercial purpose and the respondent was never

residing therein; in the written statement it has further been

contended that after the tenant had received a letter dated

12.10.1987 from the Rehabilitation Department, he had stopped

paying Rs.20/- per month which he was paying to the petitioner

earlier. He had categorically denied that any rent note was

executed by him on 04.10.1965 as has been alleged by the

landlord; contention was that this document was forged and

fabricated.

4. Oral and documentary evidence was led by the respective

parties. Petitioner Nazeer Mohd. had examined himself as AW-1;

he had proved Ex.AW-1/1; in his cross-examination he denied that

this document does not bears the signature of the respondent; he

denied that the disputed property has been declared to be a

custodian property; however he gave evasive replies to the

question as to whether his father and grandfather appeared

before the Custodian. The respondent in defence had produced

Mohd. Shahid the alleged sub-tenant; he had deposed that he was

a tenant in his individual capacity on the ground floor of the

property bearing No.2805, Gali Tehsildar and he had been paying

rent to the Custodian; letters received from the Custodian had

been proved by him as Ex.RW-1/2 and Ex,.RW-1/3; the order

passed by the Assistant Custodian qua the said property is dated

31.1.1956 and has been proved as Ex.RW-1/4. Perusal of this

order shows that proceedings under Section 7 read with section

2(d)(i) of the Administration of Evacuee Property Act 1950

(hereinafter referred to as "the said Act") Act 31 of 1950 had been

taken place qua the said property i.e.property No.IX/1745, Delhi;

these proceedings had noted that notice under Section 7of the

said Act had been issued to Dost Mohd.Khan (grandfather of the

petitioner); he had contested the proceedings but thereafter he

had chosen not to appear; vide this order dated 31.1.1956 this

property was held to be an evacuee property. Admittedly this

order has attained a finality. Learned counsel for the petitioner

has pointed out that he has filed an appeal against the said order

but the appeal is yet to be adjudicated upon. It was this document

which had weighed in the mind of the ARCT to upset the finding of

the ARC; the Tribunal had correctly noted that since this property

had been declared to be an evacuee property in terms of

Ex.RW-1/4, it is a government property and under Section 3 of the

DRCA its operation is excluded from the DRCA.

5. Section 3 of the DRCA reads as follows:

3.Act not to apply to certain premises- Nothing in this Act shall apply-

(a) to any premises belonging to the Government;

6. A plain reading of this section shows that all properties

which are government properties are excluded from the purview

of the DRCA. The order of the ARCT in no count suffers from any

infirmity.

7. Learned counsel for the petitioner further submitted that

the notification under Section 7 of the said Act had necessarily to

be passed before the property can be declared to be an evacuee

property. Admittedly the order which had been passed by the

Assistant Custodian on 31.1.1956 was after due notice to Dost

Mohd. Khan (grandfather of the petitioner); Dost Mohd. had

appeared and in fact contested the proceedings. There are two

stages in the process of a notification under Section 7 of the said

Act; i.e. before the property can be declared to be an evacuee

property; the first is in the issuance of the notice to the persons

interested and thereafter an inquiry is to be followed; proceedings

commence only after the issuance of the notice. In this case

Ex.RW-1/4 clearly shows that the notice had been issued to the

petitioner's grandfather namely Dost Mohd. Khan; the purpose of

this notice is to ensure that the principles of natural justice are

followed and the persons interested are given a hearing before the

property can be declared to be an evacuee property. This

procedure had been adhered to. This is evident from Ex.RW-1/4.

The Apex Court in AIR 1979(3) SCC 189 Sir Fazalbhoy

Currimbhoy Vs. Official Trustee of Maharashtra and in 1952 SC

319 Ebrahim Abookbakar Vs. Custodian General of Evacuee

Property have noted the two stages of Section 7 of the said Act;

both the stages had been completed; after the issuance of notice

the necessary inquiry had been conducted before the order was

passed on 31.1.1956 under Section 7 declaring the property to be

an evacuee property. The Tribunal had noted that no evidence

was forthcoming by either party as to whether the subsequent

notification had followed or not; however, in view of the twin

proceedings i.e. the proceedings of notice and the inquiry under

Section 7 of the said Act having been completed the property was

deemed to be an evacuee property. Order of the ARCT calls for no

interference. Interference under Article 227 of the Constitution of

India is warranted only if there is a patent illegality or a manifest

injustice has been caused. This is not one such case. This petition

has no merits.

8. Dismissed.

INDERMEET KAUR, J.

SEPTEMBER 06, 2011 nandan