Union Of India & Anr vs Gulab Singh
2016 Latest Caselaw 1425 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 23rd February, 2016

+              W.P.(C) 2531/2015 & CM No.4511/2015 (for stay)

       UNION OF INDIA & ANR.                     ..... Petitioner
                    Through: Mr. R.V. Sinha and Mr. A.S. Singh,
                             Advocates.

                                      Versus

       GULAB SINGH                                          ..... Respondent

                          Through:    Mr. S.S. Jain, Adv.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This petition under Article 226 of the Constitution of India impugns the

order dated 2nd July, 2014 of the District Judge (Hqs.) Delhi allowing the appeal

under Section 9 of the Public Premises (Eviction of Unauthorised

Occupants) Act, 1971 (PP Act) being PPA - 7/2013 (Unique Case ID

No.02401C0076392013) filed by the respondent by setting aside the order dated

6th February, 2013 of the Estate Officer under Section 5(1) of the Act of

eviction of the respondent from the premises comprising of two rooms, kitchen-

cum-godown, verandah, bathroom and toilet in Old Hostel (Hostel no.1) and

one room and kitchen in the New Hostel (Hostel no.2) of petitioner No.2

National Institute of Communicable Diseases now known as National Center

for Disease Control 22, Sham Nath Marg, Delhi and remanding the matter to

the Estate Officer for adjudication afresh.

2. Notice of the petition was issued and though an opportunity of filing

reply was sought by the respondent and granted but no reply was filed and the

opportunity to file reply/counter affidavit was closed. The matter was listed on

1st July, 2015 for hearing arguments, when adjournment was sought by the

counsel for the respondent and granted subject to payment of costs. The

respondent however did not pay the cost and thereafter when the matter was

posted on 14th July, 2015, the counsel for the respondent again sought

adjournment. In the circumstances judgment was reserved granting an

opportunity to the respondent to, subject to payment of costs, file written

submissions. No written submissions also have been filed. I have perused the

records.

3. The position which emerges is as under.

4. That the petitioner No.2 Institute is a subordinate office under the

Directorate General, Health Services, Ministry of Health and Family Welfare,

Government of India and has its campus at 22, Sham Nath Marg, Delhi with

two hostels therein for accommodating the participants in the various training

courses undertaken by the petitioner/Institute.

5. Shri Govind Singh Rawat father of the respondent was allowed to

provide food to the boarders of the said hostels and for the said purpose was

permitted to store his goods in one of the rooms in the hostel. It is the case of

the petitioner that the father of the respondent slowly encroached over certain

other portions of the hostel also and after his death in the year 2007, the

respondent as his son continued to occupy the same and render catering services

in the hostel.

6. That in or about the year 2008 the petitioner No.2 Institute invited tenders

to run the Mess in the hostel as well as Staff Welfare Cafeteria. The respondent,

fearing that thereby he will cease to provide catering services and would also be

required to vacate the premises in his occupation, filed a suit in the Court of

Civil Judge, Delhi for declaration that he is a tenant in the premises in his

occupation and to restrain the petitioner No.2 Institute from dispossessing him

therefrom and also for directing the petitioner No.2 Institute to recall the tender

invited. The petitioner No.2 Institute contested the said suit and the application

of the respondent for interim relief in the said suit was dismissed vide detailed

order dated 16th February, 2009.

7. That in or about the year 2009 the petitioner No.2 Institute, to modernise

its premises, decided to do away with the old structures / building including the

hostel buildings in a portion of which the respondent was in an unauthorized

occupation of and initiated proceedings under PP Act for eviction of the

respondent and the Estate Officer vide order dated 26th June, 2009 passed an

order of eviction of the respondent from the portion in his occupation.

8. The respondent preferred an appeal being PPA No.27/2009 under Section

9 of the PP Act against the order of his eviction and Shri A.K. Chawla, District

Judge, North vide order dated 11th May, 2012 allowed the said appeal observing

that the Estate Officer had proceeded to pass the order of eviction with a pre-

determined mind and without dealing with the contentions of the respondent

and remanded the matter back to the Estate Officer for decision afresh in

accordance with law.

9. A fresh notice dated 11th October, 2012 under Section 4(2) of the PP Act

was issued to the respondent and the Estate Officer after considering the reply

of the respondent and the material placed on record and hearing the parties, vide

order dated 6th February, 2013, passed an order of eviction of the respondent

reasoning (i) that there was no merit in the challenge to the appointment of the

person acting as the Estate Officer being the Estate Officer since he had been

notified so and thus had the power to act as the Estate Officer under the PP Act;

(ii) it stood established that the father of the respondent was permitted only to

store his goods, for the purposes of providing catering services in the hostels, in

a room in the hostel but had subsequently encroached over other portions; (iii)

that the respondent, in the suit filed by him had also not been able to even prima

facie establish that he was a tenant in the portion in his occupation; (iv) that the

pendency of the civil suit otherwise did not come in the way of proceedings

under the PP Act; (v) that neither the respondent nor his father were at any time

the employee of the petitioner No.2 Institute nor had the premises in their

occupation been ever allotted to them; (vi) that the respondent was in

unauthorized occupation of the premises; and, (vii) that the premises in

occupation of the respondent were required by the petitioner No.2 Institute.

10. The respondent again preferred an appeal under Section 9 of the PP Act

against the order of eviction passed by the Estate Officer and the same has

again been allowed by Shri A.K. Chawla, District Judge (Hqs.) vide the

impugned order dated 2nd July, 2014 reasoning (i) that it was admitted by the

petitioner No.2 Institute in the written statement filed in the civil suit aforesaid

filed by the respondent that the father of the respondent had been inducted as a

tenant in the premises and was paying rent therefor; (ii) that the plea of the

respondent of being a tenant in the premises could be adjudicated only after

both parties had led evidence and could not have been decided without

evidence; (iii) the Estate Officer had not afforded any opportunity to the

respondent to substantiate his plea of being a tenant in the premises; (iv) the

Estate Officer had decided merely on the basis of the notice issued to the

respondent and the reply of the respondent thereto; (v) though a counter reply

had been filed by the petitioner No.2 Institute but the same was not even signed

by anyone on behalf of the petitioner No.2 Institute; (vi) thus the finding of the

Estate Officer of the respondent being in unauthorized occupation of the

premises could not be sustained; (vii) that there was a difference in the notice

issued first on 27th January, 2009 and the notice dated 11th October, 2012

subsequently issued pursuant to the earlier remand of proceedings; that while

the basis of the notice dated 27th January, 2009 was that the respondent had not

vacated the premises inspite of notice, the basis of the subsequent notice dated

11th October, 2012 was of the respondent having been in occupation of the

premises without valid authority; and, (ix) merely on the premise that the

premises in occupation of the respondent are public premises, adjudication of

all the disputed questions of fact arising could not be obviated.

11. Accordingly Shri A.K. Chawla, District Judge (Hqrs) again remanded the

matter to the Estate Officer for framing issues and to thereafter grant

opportunity to lead evidence and decide afresh after hearing the parties.

12. To say the least, not only the impugned order dated 2nd July, 2014 but

also the earlier order dated 11th may, 2012 of the same learned District Judge, of

allowing the appeal under Section 9 of the PP Act surprised me. Thereby the

possession of the respondent of the premises has been perpetuated for over five

years and at the cost of an important public project, construction whereof must

have been held up / delayed owing to unauthorized occupation of the

respondent.

13. Let us examine the reasons for which the learned District Judge has this

time around vide order dated 2nd July, 2014 set aside the order of eviction

passed by the Estate Officer.

14. One of the reasons given is that the plea of the respondent of being a

tenant in the premises required adjudication by adducing evidence.

15. The learned District Judge in reasoning so has shown total disregard to

the well established law that PP Act being a special law, prevails over the Delhi

Rent Control Act, 1958. Reference if any required in this regard can be made to

judgment of the Constitution Bench of in Ashoka Marketing Ltd. Vs. Punjab

National Bank (1990) 4 SCC 406 also laying down that PP Act has been

enacted to provide for speedy eviction of unauthorized occupants from

government property. Thus, even if it were to be held that the respondent was a

tenant in the premises, he was not protected from eviction. It is not the case of

the respondent that there is any registered Lease Deed in his favour. Supreme

Court in Nopany Investment (P) Ltd. Vs. Santokh Singh (HUF) (2008) 2 SCC

728 has held that institution of proceedings for eviction itself acts as

determination of tenancy. Thus, it cannot also be said that there was any need

for determination of tenancy if any of the respondent before initiating

proceedings under the PP Act. It cannot also be forgotten that this was the

second round before the learned District Judge with the District Judge, having

set aside the earlier order of eviction by remanding the matter.

16. I fail to fathom that in this state of law, what evidence the learned District

Judge expected to be led and wherefrom it could be said that the respondent has

a right to continue in the premises.

17. The only other reason given by the District Judge is of the difference in

phraseology of the notices dated 27th January, 2009 and 11th October, 2012

under Section 4(1) of the PP Act. Again, I fail to understand what difference it

makes. The learned District Judge also admits that the premises are public

premises. Once that is so and the law is that the respondent even if having any

tenancy rights in the premises becomes an unauthorized occupant upon his

tenancy being determined, the phraseology does not make a difference.

18. The counsel for the petitioner No.2 Institute has also referred to Jafar

Saddique Vs. Delhi Development Authority 2003 (105) DLT 263 and to my

judgment speaking for the Division Bench in Suresh Chand Gupta Vs.

Municipal Corporation of Delhi 2013 (4) AD (Delhi) 84 and to the judgment

dated 15th September, 2005 of this Court in W.P.(C) No.7317/2002 titled

Rawail Singh Vs. UOI.

19. The order dated 2nd July, 2014 of the learned District Judge is thus found

to be perverse and vitiated and is set aside. The whole purpose and policy

behind enactment of PP Act appears to have been given a go-bye, by requiring

the Estate Officer to follow the procedure as of a suit. The petition is allowed.

The order of eviction of the respondent is reinstated and the petitioner shall

have liberty to immediately evict the respondent in accordance therewith.

20. The respondent is further burdened with costs of Rs.10,000/- besides the

costs earlier imposed of Rs.10,000/- as costs of these proceedings.

RAJIV SAHAI ENDLAW, J.

FEBRUARY 23, 2016 'pp'