Dr. Shekhar Shah vs Government Of Maharashtra
2016 Latest Caselaw 5378 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                            Date of Decision :17th August, 2016
+      LPA 311/2016
       DR. SHEKHAR SHAH                                  ..... Appellant
                         Through:     Mr.Kapil Sibal, Sr.Adv. with Mr.Kamal
                         Mehta, Mr.Sudeep Singh, Mr.Bhavya Sethi, Adv.
                   Versus
       GOVERNMENT OF MAHARASHTRA                         ..... Respondent
                         Through:     Mr.D.N.Gobardhan, Adv. with Mr.Nishant
                         R.Katneshwarkar, Adv.
       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE JAYANT NATH
                                JUDGMENT

: Ms.G. ROHINI, CHIEF JUSTICE

1. The unsuccessful petitioner in W.P.(C) No.4020/2014 is the appellant before us.

2. The said writ petition, which was filed challenging the notice dated 23.06.2014 issued under Section 4(12) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short 'the PP Act') calling upon the petitioner/appellant herein to show cause as to why an order of eviction should not be made from the schedule property, was dismissed by the learned Single Judge by the order under appeal.

3. The schedule property was described as "Kumkum Bangla" and the open portion of land appurtenant thereto at North-East corner of Sirmur Plot forming part of and within the boundaries of new Maharashtra Sadan, Kasturba Gandhi Marg, 7, Faridkot House Lane, New Delhi,

4. As could be seen from the material available on record, the respondent herein/Government of Maharashtra filed a Civil Suit in the year

1978 on the Original Side of this Court seeking declaration of its title to the property in question and possession as well as recovery of damages for wrongful use and occupation of the said property. The said suit on transfer to the Court of the Additional District Judge, Patiala House Courts has been re-numbered as Suit No.297/2016 and is still pending. The suit claim is being contested by the defendant/writ petitioner/appellant herein and the matter appears to be at the trial stage.

5. While so, the impugned show cause notice under the PP Act came to be issued by the Estate Officer and Additional Resident Commissioner, Government of Maharashtra and the same was assailed in the writ petition primarily on the ground that the initiation of proceedings under the PP Act is without jurisdiction. The contention was that the Estate Officer is not competent to decide the issue of title in summary proceedings. It was also contended that the Government of Maharashtra respondent having themselves filed a suit for declaration of title cannot resort to the summary proceedings under the PP Act while the suit is still pending.

6. The learned Single Judge dismissed the writ petition with costs holding that the dispute of title to the property in question raised by the writ petitioner without disclosing any lawful title in his own favour is not bonafide. It was also held that the mere fact that the State of Maharashtra had instituted a suit for declaration of title and recovery of possession cannot be a ground for debarring it from taking action under the PP Act.

7. It is vehemently contended before us by Shri Kapil Sibal, the learned Senior Counsel appearing for the appellant/writ petitioner that the finding recorded by the learned Single Judge that the dispute raised by the petitioner is not bona fide is erroneous and unwarranted. While submitting that the

suit pending between the parties involves complicated questions of fact and law which can be decided only on appreciation of evidence, oral and documentary, it is contended by the learned Senior Counsel that the findings recorded by the learned Single Judge virtually amounted to deciding the title to the property, thus rendering the Civil Suit pending between the parties infructuous. In support of his submission that in the light of the dispute to the title raised by the appellant, the respondent cannot take recourse to the summary remedy for eviction provided under the PP Act, the learned senior counsel placed reliance upon Government of Andhra Pradesh v. Thummala Krishna Rao & Anr., (1982) 2 SCC 134.

8. On the other hand, it is contended by Sh.D.N. Gobardhan, the learned counsel appearing for the respondent that the writ petition itself is premature since what is impugned in the writ petition is only a show cause notice. In support of the said submission, the learned counsel has relied upon Executive Engineer, Bihar State Housing Board, v. Ramesh Kumar Singh, AIR 1996 SC 691; Special Director & Anr. v. Mohd. Ghulam Ghouse & Anr., (2004) 3 SCC 440 and State of Orissa v. Mesco Steels Ltd. & Anr., (2013) 4 SCC 340. It is also contended by the learned counsel that the ratio laid down in Thummala Krishna Rao (Supra) which was decided while interpreting the provisions of A.P. Land Encroachment Act, 1905 is not applicable to the case on hand. It is also argued that in view of the later decision of the Constitution Bench in Ashoka Marketing Ltd. v. Punjab National Bank, (1990) 4 SCC 406, the decision in Thummala Krishna Rao (Supra) is no longer good law and therefore there is no substance in the contention on behalf of the appellant that the question of title to the property in question cannot be decided by the Estate Officer.

9. We have given our thoughtful consideration to the rival contentions advanced by both the parties.

10. In Thummala Krishna Rao (supra), the Supreme Court was dealing with the provisions of A.P. Land Encroachment Act, 1905 which are similar to the provisions of the PP Act and confer power of summary eviction on the Government. After analyzing the scope and object of the said provisions, the Supreme Court held:

"8. It seems to us clear from these provisions that the summary remedy for eviction which is provided for by Section 6 of the Act can be resorted to by the Government only against persons who are in unauthorised occupation of any land which is "the property of the Government". In regard to property described in sub-sections (1) and (2) of Section 2, there can be no doubt, difficulty or dispute as to the title of the Government and, therefore, in respect of such property, the Government would be free to take recourse to the summary remedy of eviction provided for in Section 6. A person who occupies a part of a public road, street, bridge, the bed of the sea and the like, is in unauthorised occupation of property which is declared by Section 2 to be the property of the Government and, therefore, it is in public interest to evict him expeditiously, which can only be done by resorting to the summary remedy provided by the Act. But Section 6(1) which confers the power of summary eviction on the Government limits that power to cases in which a person is in unauthorised occupation of a land "for which he is liable to pay assessment under Section 3". Section 3, in turn, refers to unauthorised occupation of any land "which is the property of the Government". If there is a bona fide dispute regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by Section 6 for evicting the person who is in possession of

the property under a bona fide claim or title. In the instant case, there is unquestionably a genuine dispute between the State Government and the respondents as to whether the three plots of land were the subject-matter of acquisition proceedings taken by the then Government of Hyderabad and whether the Osmania University, for whose benefit the plots are alleged to have been acquired, had lost title to the property by operation of the law of limitation. The suit filed by the University was dismissed on the ground of limitation, inter alia, since Nawab Habibuddin was found to have encroached on the property more than 12 years before the date of the suit and the University was not in possession of the property at any time within that period. Having failed in the suit, the University activated the Government to evict the Nawab and his transferees summarily, which seems to us impermissible. The respondents have a bona fide claim to litigate and they cannot be evicted save by the due process of law. The summary remedy prescribed by Section 6 is not the kind of legal process which is suited to an adjudication of complicated questions of title. That procedure is, therefore, not the due process of law for evicting the respondents."

(emphasis supplied)

11. In Ashoka Marketing Ltd. (Supra), the principal question that fell for consideration by the Constitution Bench was whether the provisions of the PP Act would override the provisions of the Delhi Rent Control Act, 1958 in relation to premises which fall within the ambit of both the enactments and it was held that while the Rent Control Act is intended to deal with the general relationship of land lords and tenants in respect of premises other than Government premises, the Public Premises Act is intended to deal with speedy recovery of possession of premises of public nature, i.e., property belonging to the Central Government or Companies in which the Central

Government has substantial interest. While holding that the provisions of the PP Act have to be construed as overriding the provisions contained in the Delhi Rent Control Act, it was observed:-

"63. .... This shows that the Public Premises Act has been enacted to deal with the mischief of rampant unauthorised occupation of public premises by providing a speedy machinery for the eviction of persons in unauthorised occupation. In order to secure this object the said Act prescribes the time period for the various steps which are enquired to be taken for securing eviction of the persons in unauthorised occupation. The object underlying the enactment is to safeguard public interest by making available for public use premises belonging to Central Government, companies in which the Central Government has substantial interest, corporations owned or controlled by the Central Government and certain autonomous bodies and to prevent misuse of such premises.

64. .... The effect of giving overriding effect to the provisions of the Pubic Premises Act over the Rent Control Act, would be that buildings belonging to companies, corporations and autonomous bodies referred to in Section 2(e) of the Public Premises Act would be excluded from the ambit of the Rent Control Act in the same manner as properties belonging to the Central Government. The reason underlying the exclusion of property belonging to the Government from the ambit of the Rent Control Act, is that Government while dealing with the citizens in respect of property belonging to it would not act for its own purpose as a private landlord but would act in public interest."

12. As we could see, the Constitution Bench in Ashoka Marketing Ltd.

(Supra) did not deal with the nature of jurisdiction of the Estate Officer under the PP Act, particularly, where the dispute involves complicated questions of title. Though it was reiterated that the object of the PP Act is to

evict unauthorised persons within a time frame is to safeguard public interest, the question whether the Estate Officer can adjudicate a dispute of title between the Government and the occupant was not considered in the said decision. No other decision has been brought to our notice where a different view has been taken by the Apex Court from the one taken in Thummala Krishna Rao (supra). Therefore, we are unable to agree with the contention of the learned counsel for the respondent that the decision in Thummala Krishna Rao (supra) does not hold the field. This view of ours is supported by the decision of another co-ordinate Bench of this Court in DCM Ltd. v. Delhi Development Authority, (2013) 136 DRJ 688 (DB).

13. In the light of the settled legal position noticed above, the only question that requires consideration by us is whether the learned Single Judge is justified in distinguishing DCM Ltd. Vs. DDA (supra) and dismissing the writ petition.

14. The learned Single Judge, while rejecting the plea of the writ petitioner that the matter involves questions of fact and law regarding the title to the property in question, observed :

"13. What immediately stands highlighted on reading of the writ petition and the written statement of the petitioner in the pending suit is that the petitioner does not claim any registered document of title to the property in his favour. Without any registered document, the right even if any created in favour of the petitioner by the erstwhile Maharaja Pratapsinhrao Gaekwad with respect to immovable property would be as a licensee and not as owner.

14. The mainstay of the case of the petitioner is that the said property was the personal property of the Maharaja and thus did not become the property of the UOI and of the State of Maharashtra. What the petitioner is disputing is the title of

the respondent to the property without disclosing any lawful title in his own favour with respect to the property.

15. I have wondered the locus of the petitioner to dispute the title of the respondent to the property or to claim the property to be not of State of Maharashtra but of erstwhile ruler of Baroda State. The challenge if any to the title claimed by the respondent to the property has to be by the heirs of Maharaja Pratapsinhrao Gaekwad and cannot be by the petitioner.

16. From the aforesaid it becomes evident that the dispute raised by the petitioner is not bona fide. This becomes further evident from the fact (i) that the lease of the entire plot of land, of which a portion is in possession of the petitioner, was granted by the Government of India first to the Sirmur Durbar and thereafter to Baroda Durbar; (ii) on the major portion of the said plot of land the New Maharashtra Sadan has been constructed and is in possession of State of Maharashtra; (iii)it is obvious therefrom that Maharaja Pratapsinhrao Gaekwad or his heirs have not claimed and /or are not claiming the subject plot of land to be their personal property and have no dispute with the same being the property of the State of Maharashtra; (iv) when Maharaja Pratapsinhrao Gaekwad or his heirs have no claim to the property, the petitioner claiming rights under them in a portion of the property that too by an unregistered document, cannot dispute the title of the State of Maharashtra on the ground of the same being the personal property of the Maharaja and having thus not become State property and the dispute raised by the petitioner is a mere sham and a facade to perpetuate his illegal possession of the property. In fact such disputes with respect to the properties of erstwhile princely state and entailing the question whether the properties were the State properties or the personal Properties of Maharaja have been subject matter of several litigations the last of which came up before the Supreme Court in State of Madhya Pradesh Vs. Maharani Usha Devi (2015) 8 SCC 672 where also the claim of the property being private property of the erstwhile ruler was negatived. The

Supreme Court in the said judgment has referred to a large number of earlier judgments on the subject and in the light thereof also it cannot be said that there really is any disputed question of law or fact remaining to be adjudicated.

xxx xxx xxx

27. Lastly, the remedy under Article 226 of the Constitution of India is an equitable one and is to be used to promote justice and in public interest. Here, it is not found that the petitioner without even any semblance of title to the property has been occupying a prime valuable property in the heart of the city at India Gate, obviously to the detriment of the public at large and is using the process of the Court to perpetuate his illegal unauthorized possession. This Court would not allow the writ jurisdiction to be further abused by the petitioner."

15. We are unable to agree with the above conclusions for the following reasons.

16. A perusal of the plaint in the suit pending between the parties shows that the respondent/Government of Maharashtra has been claiming that the property in question belongs to the Government of India and that by virtue of the State's Merger (Governor's Provinces) Order, 1949 made under Section 290-A of the Government of India Act, 1935, the said property vested in the province of Bombay on 27.07.1949 and later it became the property of the State of Maharashtra in accordance with the provisions of Section 47(1)(b) of The Bombay Reorganization Act, 1960. As is evident, while claiming that the Government of Maharashtra has become the owner of the property in question with effect from 01.09.1960, it was alleged in the suit that the occupation of the defendant is unauthorized and wrongful.

17. The defendant, i.e., the writ petitioner/appellant herein contested the suit claim contending that the property in question was the personal property

of Maharaja Pratapsinghrao Gaekwad and was given away to his predecessor in title as an owner much before the alleged claim of either the Union of India or the State of Maharashtra. The appellant has also claimed title based on adverse possession and an issue to that effect has also been framed.

18. As per the settled principles of law noticed above, recourse to the summary remedy provided under a statute is not permissible if there is a bona fide dispute to the title claimed by the Government. It is apparent from the pleadings that the title to the property claimed by the Government of Maharashtra is seriously in dispute. Moreover, the writ petitioner/his predecessors in title have been in possession of the property in question for a long time.

19. That being the case, we are unable to hold that the dispute to the title raised by the petitioner is not bona fide. The conclusion of the learned Single Judge that the petitioner cannot dispute the title of the respondent to the property in question without disclosing any lawful title in his favour and therefore, the dispute raised by the petitioner is not bona fide, according to us cannot be accepted since such a finding can be arrived only on appreciation of the evidence, that may be adduced by the parties. It also appears to us that no finding can be recorded by this Court while exercising the writ jurisdiction that the petitioner failed to show even any semblance of title to the property.

20. We are also of the view that for deciding the question whether the dispute to the title is bona fide or not it may not be appropriate to go into the issues relating to the legality of the title claimed but what is needed at that

stage is to consider whether the dispute raised is sincere and whether the same has been raised in good faith.

21. Admittedly, the respondent herein filed a civil suit long back in the year 1978. It is brought to our notice by the learned counsel for both the parties that the suit is now coming up for the evidence of the parties. We therefore, direct that the suit shall be disposed of on or before 30.10.2016 without fail. Both the parties shall adduce the evidence on the dates fixed and conclude the arguments within a time frame. In case of default/non- cooperation on the part of either of the parties, it is open to the learned Additional District Judge on whose file the suit is pending, to proceed further and dispose of the suit within the time fixed above following due process of law.

22. Accordingly, the order under appeal as well as the show cause notice dated 23.06.2014 impugned in the writ petition are hereby set aside. The further notice dated 02.05.2016 issued after the dismissal of the writ petition by the learned Single Judge is also hereby set aside.

23. The appeal is accordingly allowed with the above direction to dispose of the suit on or before 30.10.2016.

24. No costs.

                                                    CHIEF JUSTICE



AUGUST 17, 2016/pk                                  JAYANT NATH, J.