Delhi High Court
Mcd vs Har Prasad And Anr. on 13 July, 2012
Author: Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: July 03, 2012
Pronounced on: July 13, 2012
+ W.P.(C) 333/2012
MCD ..... Petitioner
Through: Mr. Ajay Arora & Mr. Kapil Dutta,
Advocates
versus
HAR PRASAD AND ANR. ..... Respondents
Through: Mr. Ajay Kumar Gupta, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
Sunil Gaur, J.
1. In proceedings under Public Premises (Eviction of
Unauthorised Occupants) Act, 1971, petitioner has lost before both
the Forums on account of failure to controvert the respondent's stand
that they had never carried out any unauthorised construction in Pit
No. 6, Plot No. 289, Bagh Kare Khan, Delhi (hence forth referred to
as the 'subject site).
2. The findings returned by the Estate Officer in the order of 20 th
September, 2004 (Annexure P-4), are that respondents' are not in
unauthorised occupation of the subject property and they had carried
out necessary repairs just to maintain the subject site. Order
(Annexure P-4) solely relies upon the deposition of the two witnesses
of the respondents (which had remained unchallenged) and Patwari's
Report of 27th February, 2007 to the effect that there was no
superstructure on the second floor of the subject site. It stands noted
in the Order (Annexure P-4) that the petitioner herein had not placed
on record requisite documents despite sufficient opportunities given.
W.P.(C) No. 333/2012 Page 1
3. Aforesaid findings returned in the order (Annexure P-4) have
been affirmed in appeal vide order of 31st May, 2010 (Annexure P-6).
Since the impugned order (Annexure P-6) succinctly culls out the
factual matrix of this case, therefore, the same is not being reproduced
herein, for the reason that fervent plea made by petitioner's counsel at
the hearing, is to permit the petitioner to lead the evidence afresh as
due to connivance of the respondents with the officials of the
petitioner, the available evidence clearly depicting unauthorised
construction in the subject site, was not produced before the Estate
Officer. This is of course controverted by learned counsel for the
respondents who urges that the Patwari's Report of 27th February,
2007 relied upon by the authorities below clearly show that there was
no unauthorised construction and so, this petition is without substance
and merits rejection.
4. Upon hearing learned counsel for the parties and on perusal of
the impugned judgment as well as the order of the Estate Officer
(Annexure P-4) and the material on record, it transpires that solitary
evidence of the petitioner's witness - Sardar Singh regarding the
existence of the construction of two halls, three rooms, latrine,
bathroom on the ground floor, five rooms, two latrine, bathroom, on
the ground floor, five rooms, two latrine, two bathrooms, kitchen and
one store on the first floor and walls on the second floor in the subject
site is not disputed by the respondent in the Reply (Annexure P-2) to
the Show Cause Notice (Annexure P-1) vide which it was conveyed
to the respondent that the aforesaid construction is in violation of the
terms and conditions of the Damage Rules, that is to say is
'unauthorised'.
5. Pertinently, the stand of the respondent in the Reply (Annexure
P-2) was that the afore-noted construction was already there since
W.P.(C) No. 333/2012 Page 2
long. Strangely, the Estate Officer in its order (Annexure P-4) has
ignored that the Show Cause Notice (Annexure P-1) which was
preceded by an inspection of the subject site and without disputing
existence of construction as shown in the Show Cause Notice
(Annexure P-1), Estate Officer has relied upon a subsequent
Inspection Report of 27th February, 2007 of the Patwari to record a
finding that there was no super-structure on the second floor. It is
nobody's case that there was any superstructure on the second floor of
subject site. Infact, Show Cause Notice (Annexure P-1) discloses that
there were walls on the second floor of the subject site. Another
infirmity in the Estate Officer's order (Annexure P-4) is that it has
proceeded merely on the basis that the respondent's evidence
remained unrebutted. It is true that petitioner had led solitary evidence
in the eviction proceedings but when the existence of the documents
like the Show Cause Notice and the Reply thereto are not disputed,
then where is the need to lead elaborate evidence in respect thereof ?
6. Though the impugned order is detailed one but, it is erroneous
as it proceeds on the premise that the existing construction on the
subject site at the time of its transfer is not known and when alleged
unauthorised construction was done is also not known. Impugned
order proceeds on the basis of admission of petitioner's official
regarding respondent being not informed about the violation of a
particular Damage Rule. To my mind, there is hardly any justification
to negate the Show Cause Notice (Annexure P-1). Impugned order is
rendered unsustainable as it is based upon the finding that the ground
set up in the eviction petition is not substantiated, which is contrary to
the record as there is deposition of petitioner's witness - Sardar
Singh, which cannot be dubbed as unreliable on afore-noted irrelevant
premise by the appellate forum.
W.P.(C) No. 333/2012 Page 3
7. Interestingly, when the respondents are not disputing the
existence of the construction at the subject site in the Reply
(Annexure P-2) to the Show Cause Notice (Annexure P-1), then
where is the need to split the hairs to find fault in the Show Cause
Notice which is duly based upon an inspection of the subject site and
where is the justification to rely upon the subsequent Patwari's report
of the year 2007, which is much later in point of time in relation to
Show Cause Notice (Annexure P-2) of the year 1993? In any case,
Patwari's report of the year 2007, relied upon by the Estate Officer as
well as by the Appellate Authority is of no consequence as it is silent
about the unauthorised construction on the ground and first floor of
the subject site.
8. The fatal infirmity in the order impugned is that the solitary
deposition of Sardar Singh on behalf of the petitioner has been
discarded because he had not disclosed as to when the alleged
unauthorised construction had taken place and had expressed
ignorance about any inquiry being conducted by any official about the
alleged unauthorised construction. The aforesaid reasoning adopted in
the impugned order to discard the testimony of petitioner's witness -
Sardar Singh does not commend to reason as the specious reasoning
adopted in the impugned order is unacceptable because the Show
Cause Notice (Annexure P-1) clearly spells out the extent of
unauthorised construction at the subject site.
9. According to the respondents, the alleged unauthorised
construction was already in existence when they had purchased the
subject site. What is material is not when unauthorised construction
had taken place but as to whether the unauthorised construction is
compoundable or not. This material aspect has been ignored by the
Estate Officer as well as by the Appellate Authority, which persuades
W.P.(C) No. 333/2012 Page 4
this Court to quash the order (Annexure P-4) of the Estate Officer as
well as the impugned order and to remand this matter back to the
Estate Officer to take a decision afresh, after giving one effective
opportunity to the petitioner to produce the records and to lead
evidence within a period of three months or so. Decision afresh be
taken by the Estate Officer concerned with promptitude, that is to say,
within a period of six months or so.
10. With directions as aforesaid, this petition is disposed of.
(SUNIL GAUR)
JUDGE
JULY 13, 2012
rs/pkb
W.P.(C) No. 333/2012 Page 5
