Government Of Nct Of Delhi vs Premwati And Ors
2018 Latest Caselaw 6024 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 4th October, 2018.

+              W.P.(C) 7075/2015 & CM No.12966/2015 (for stay)

       GOVERNMENT OF NCT OF DELHI            ..... Petitioner
                  Through: Mr. Zahid Hanif and Ms. Sana
                           Naseem, Adv. for Mr. Naushad
                           Ahmed Khan, Adv.

                                 Versus

    PREMWATI AND ORS                        ..... Respondents

Through: Mr. Himanshu Gautam, Adv.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This petition under Article 227 of the Constitution of India impugns the judgment [dated 21st November, 2014 in PPA No.01/14/2007 of the Additional District Judge (West) acting as the Appellate Officer under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (PP Act)] allowing the appeal preferred by the predecessor of the respondents no.1 to 3 namely, Smt. Premwati, Rakesh Kumar and Mukesh Kumar against the order [bearing No.F.6/SDM/VV/2005/8209-11 dated 27th December, 2006 of the respondent no.4-Estate Officer] of eviction of the predecessor of respondents no. 1 to 3 from Khasra No.485 (0-4) bigha in Village Mahipalpur, New Delhi.

2. Notice of the petition was issued vide order dated 18 th August, 2015, observing that prima facie both the reasons given by the learned Additional District Judge for allowing the appeal appeared to be erroneous. Vide the same order, records also were requisitioned.

3. The counsel for the respondents no. 1 to 3 has been appearing and hearing of this petition has been adjourned from time to time.

4. The counsel for the petitioner and the counsel for the respondents no. 1 to 3 were heard on 13th August, 2018 and part order also dictated in Court, to be completed in Chamber in the course of the day. However on going through the records in Chamber, it was found (i) that the respondents had already been dispossessed from the premises; (ii) that the appeal under Section 9 of the PP Act was withdrawn but after several years restored and thereafter allowed as aforesaid, and on which aspects, counsels had not addressed. It was further found that the record of the Additional District Judge requisitioned in this Court contained only the order of restoration of appeal but no application, purportedly filed for restoration or reply thereto or orders passed thereon were found on the requisitioned record. The counsels were thus called to the Chamber, apprised of aforesaid and the Registry also directed to enquire about the separate record if any with respect to the application for restoration of appeal. The matter has thus been got listed today for further hearing.

5. The Estate Officer ordered eviction of the predecessor of respondents No.1 to 3 recording, (i) that the Weights and Measures Department was accorded permission vide letter dated 12th August, 2005 issued by Block Development Officer (BDO) (South West) to set up a Zonal Office in the Old Patwarghar of Village Mahipalpur; (ii) that vide letter dated 26th August, 2005, the BDO (South West) requested the Tehsildar (Vasant Vihar) to hand over physical vacant possession of Old Patwarghar of Village Mahipalpur to the Zonal Officer of Weights and Measures Department; (iii) however

possession of Patwarghar of Village Mahipalpur could not be handed over due to unauthorised occupation of the same by some private person; (iv) that a notice dated 16th January, 2006 was given to the unauthorised occupant i.e. Ram Chander son of Prabhati, to vacate the premises by 31 st January, 2006;

(v) that a notice dated 30th January, 2006 under Section 80 of the Code of Civil Procedure, 1908 (CPC) was received from the Advocate of Ram Chander son of Prabhati and a reply dated 20th March, 2006 was given thereto by the Sub-Divisional Magistrate (SDM) (Vasant Vihar); (vi) that the matter was forwarded to the Estate Officer on 7th August, 2006 for eviction of the unauthorised occupant Ram Chander son of Prabhati from the government premises; (vii) that a notice dated 8th September, 2006 and another notice dated 12th October, 2006 both under Section 4 of the PP Act were issued to Ram Chander son of Prabhati and served through Revenue Officials; (viii) Ram Chander son of Prabhati, vide reply dated 14th November, 2006, stated that the notice did not give the municipal number of the premises in his occupation and from which he was sought to be evicted and also did not describe the boundaries of the said premises and that the premises in his occupation were not public premises; (ix) though vide notice dated 29th November, 2006 opportunity to hear was given to Ram Chander son of Prabhati on 7th December, 2006 at 11.00 AM and he was also asked to show the documents in support of his claim on Khasra No.485 measuring (0-

4) bigha in Village Mahipalpur, but he did not appear; (x) that the Halqa Patwari, after inspection by the Revenue Officials, had submitted a report dated 26th August, 2005 stating that Khasra No.485 measuring (0-4) bigha was recorded in the name of "Sarkar Daulatmadar Makbuja PWD" and which showed the property to be government premises; (xi) that in

'Jamabandi' also, the said land was recorded in the name of the government;

(xii) that on the contrary Ram Chander son of Prabhati had failed to prove that he had any title to the property or that the property was private property;

(xiii) that Ration Card and Election Identity Card of Ram Chander son of Prabhati at the address of the said premises did not disclose title of Ram Chander son of Prabhati to the said premises; the said documents merely showed occupation of the said premises by Ram Chander son of Prabhati;

(xiv) that on the basis of the revenue record, it was established that the premises were public premises. It was accordingly ordered that Ram Chander son of Prabhati or any other person in occupation of the said premises be evicted therefrom.

6. Ram Chander son of Prabhati preferred the appeal under Section 9 of the PP Act, which was entertained. Interim stay of order of eviction though sought during the pendency of appeal, was not granted.

7. The appeal was listed on 11th January, 2008, when the "son of the appellant along with Sh. R.G. Bhasin, Advocate" appeared for the appellant Ram Chander son of Prabhati and sought adjournment "as the main counsel is busy in the High Court". Observing, that there was no ground for adjournment, the counsel for respondents in the appeal was partly heard by the Additional District Judge and the appeal posted for further arguments on 9th May, 2008.

8. On 9th May, 2008, the following order was passed:

"Present: Sh. Mukesh S/o appellant along with Sh. D.K.

Hira, Adv.

Sh. R.K. Nagar, P/CI along with Sh. S.K. Gupta, Inspector, Weights & Measures Deptt. GNCT, Delhi for the respondent.

Counsel for the appellant has filed an application for withdrawal of appeal.

Vide this application, it is submitted that during the pendency of the proceedings, the appellant expired on 20.01.2008. It is further mentioned that even the possession of the premises in question has been forcibly taken over by the respondent during the pendency of this appeal. Vide this application, it is prayed that as the appeal is abated, they be allowed to withdraw this appeal.

Sh. Mukesh S/o appellant who is present has made a statement on oath that his father Sh. Ram Chander, the appellant in this case has expired on 20.01.2008. He has also filed copy of death certificate of his father, same is Mark A and that they do not wish to proceed with this appeal.

In view of the statement made by the appellant's son and the above record, the appeal stands abated. Appeal is therefore disposed as such.

Copy of this order along with the Estate Officer's record be returned to the Estate Officer.

Appeal file be consigned to Record Room."

9. The file requisitioned from the Additional District Judge, thereafter contained the order dated 23rd July, 2012, allowing an application of the respondents herein as heirs of Ram Chander son of Prabhati, for setting aside of the abatement and restoration of the appeal. However, the record neither had any application nor reply thereto, nor the orders if any passed on the said application prior to 23rd July, 2012. The same raised suspicion and the attention of counsels was invited thereto as aforesaid.

10. The counsel for the respondents, on enquiry today, whether he in his own file has copies of the application filed after 9 th May, 2008 for setting aside of the abatement and for restoration of the appeal before the Additional District Judge, has from his own file shown a photocopy of the copy of the application and reply thereto. The counsel has also handed over in the Court certified copy of the orders dated 7th September, 2011 and 27th September, 2011 on the said application.

11. A perusal of the aforesaid certified copies of the orders shows that the applications filed were registered as Mis.Appl. No.9/2010 and MCA No.16/2010.

12. An official from the Record Room of the District Judge is also present in Court and who, earlier on enquiry, had stated that there is no other record of the appeal aforesaid except that which has already been sent to this Court. He has now been shown the certified copies of the orders aforesaid and asked to trace the files of Mis.Appl. No.9/2010 and MCA No.16/2010, if consigned separately. He states that he will report by tomorrow evening.

13. The counsels for the parties have been heard again today with orders to be dictated in Chamber awaiting additional file, if any from the Record Room of the District Judge.

14. The file of MCA No.16/2010 has been received from the Record Room of the District Judge and which shows (i) that the respondents herein, on 9th April, 2010, filed application for setting aside of the abatement and for restoration of the appeal along with an application under Section 5 of the Limitation Act for condonation of delay in applying therefor and which applications came up before the Additional District Judge on 9 th April, 2010

when notice thereof was ordered to be issued; (ii) that replies were filed by the petitioner herein to the said applications; (iii) that vide order dated 27 th September, 2011, the application under Section 5 of the Limitation Act for condonation of delay in filing the application for setting aside of the abatement and for restoration of the appeal was allowed; and, (iv) that vide order dated 23rd July, 2012, the application for setting aside of the abatement and the order of withdrawal of the appeal were set aside and the appeal revived.

15. The appeal, vide order dated 23rd July, 2012 was revived, reasoning

(a) that it was the case of the respondent No.3 Mukesh Kumar that he harboured a misimpression to the effect that when he had contacted the earlier counsel for the deceased appellant, an application was prepared and filed for substitution of the respondents herein in place of the deceased appellant; (b) that he gave the statement on oath also before the Court on 9 th May, 2008 under the impression that the statement was only for the purposes of substitution of the respondents in place of the deceased appellant Ram Chander son of Prabhati; (c) that it was further the case of the respondent No.3 Mukesh Kumar that when he did not hear about the matter from his Advocate, he again contacted the counsel and then learnt that on 9th May, 2008 the appeal had been withdrawn and which was never his intention; (d) that it was yet further the claim of the respondent No.3 Mukesh Kumar that he and the respondents No.1&2 were deeply shocked on learning that the appeal had been withdrawn; (e) that it was the contention of the respondents that the appeal could not have abated as the cause of action was not of the deceased appellant only but equally of the respondents who were also in occupation of the property with respect to which order of eviction has been

made and thus right to sue survived; (f) that it was the admitted position that possession of the premises had been taken over on 21 st May, 2007; (g) that the factum of the petitioner taking over possession on 21st May, 2007 amounted to outsmarting the process of law, inasmuch as on 21 st May, 2007, the appeal under Section 9 of the PP Act as well as the application for interim stay therein were still pending; (h) that the petitioner acted in haste in getting the premises vacated on 21st May, 2007; (i) that the petitioner had thereby abused the process of law; propriety demanded that as long as the appeal was pending, the order of eviction should not have been enforced; (j) that the conduct of the appeal by the counsel for the deceased appellant was also found to be negligent; (k) that the deceased appellant as well as his heirs belonged to illiterate class and were dependent upon their Advocate to take appropriate steps; and, (l) that the entire facts and circumstances were extremely unfortunate and compelled the Court to set aside the abatement and to restore the appeal to its original position for decision in accordance with law.

16. A perusal of the file which has been received now also shows that after 23rd July, 2012, the appeal was adjourned from time to time and on 10 th July, 2014 it was ordered that the file of MCA No.16/2010 be consigned to Record Room and further proceedings be continued only in the file of the appeal under Section 9 of the Act.

17. This explains why the applications made after 9th May, 2008 and orders passed thereon were not found in the file of the appeal which was requisitioned to this Court.

18. The same learned Additional District Judge who vide order dated 27th September, 2011 allowed the application under Section 5 of Limitation Act and vide order dated 23rd July, 2012 set aside abatement and order of withdrawal of appeal and restored the appeal, vide impugned order dated 21 st November, 2014 has allowed the appeal reasoning, (a) that the description of the property was not accurate, inasmuch as the Estate Officer ignored the major difference in an area described as 0-4 biswas and an area described as 0-4 bighas as shown in the notice dated 16th January, 2006; the order of eviction could not be sustained on this ground only; (b) that the order of eviction was also liable to be set aside in terms of Bhagat Singh Vs. DDA AIR 1988 Delhi 174; (c) that the record of proceedings before the Estate Officer was not produced, inspite of opportunity; therefrom it was evident that the order of eviction was passed by the Estate Officer in an arbitrary manner; (d) that when Ram Chander son of Prabhati had informed the authorities that he and his last three generations had been residing in Village Mahipalpur and the said premises had been in their occupation for the last 100 years, he was not given an opportunity to produce the requisite material to arrive at any finding; (e) that no opportunity of personal hearing was given; (f) that no material was placed on record to show that the property was a Patwarghar; (g) that the occupation of the property by Ram Chander son of Prabhati was not disputed; (h) that the Estate Officer did not examine the Tehsildar; and, (i) that the Estate Officer simply proceeded on the presumption that the property was a government property, when there was no such material on record.

19. The file of the appeal which was received earlier also contains the order dated 11th September, 2014 recording that the file of the Estate Officer

had been produced. The same falsifies one of the reasons given by the learned Additional District Judge, that the file of the Estate Officer had not been produced and wherefrom in the impugned order, adverse inference was drawn.

20. The counsel for the petitioner, in the hearing on 13th August, 2018, drew attention to the following documents on the file of appeal earlier received in this Court (i) the Khasra Girdawari for the year 2002-2003 of village Mahipalpur showing the subject land to be recorded in the name of "Sarkar Daulatmadar" i.e. the Government of the State; (ii) the notice dated 16th January, 2006 issued by SDM, Delhi Cant. and SDM, Vasant Vihar to Sh. Ram Chander, predecessor of respondents no. 1 to 3, to vacate the aforesaid property which was the property of the Government recorded as Patwarghar and further informing him that if he did not so vacate the property on or before 31st January, 2006, proceedings as per law shall be initiated against him for eviction and for recovery of damages; (iii) legal notice dated 30th January, 2006 got issued by the predecessor of the respondents no. 1 to 3 to SDM, Vasant Vihar and SDM, Delhi Cant. under Section 80 of the CPC, in response to the notice aforesaid asking him to vacate the premises; in the said notice under Section 80, it was claimed that the predecessor of the respondents no.1 to 3 and his earlier three generations had been residing in the property for the last 100 years; (iv) the notice dated 8th September, 2006 under Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 informing the predecessor of the respondents no. 1 to 3 that the respondent no.4, as the Estate Officer, was of the opinion that the predecessor of the respondents no. 1 to 3 was an unauthorized occupant of the said premises which was a public premises and

asking him to give reply, if any, within 15 days; (v) notice dated 29th November, 2006 of oral hearing granted to the predecessor of the respondents no. 1 to 3 on 7th December, 2006; and, (vi) the order dated 27th December, 2006 of the Estate Officer of eviction of the predecessor of the respondents no. 1 to 3.

21. The learned Additional District Judge, in the impugned order, has ignored all the aforesaid documents and has erred, in fact, in holding that there was nothing before the Estate Officer for holding the property, with respect to which order of eviction was made, to be public premises. The learned Additional District Judge is further found to have erred in holding that there was any discrepancy in the description of the property, forgetting that no dispute was raised by the respondents No.1 to 3 or their predecessor in this regard and further forgetting that there was no dispute as to the identity of the property as was also evident from the notice under Section 80 of the CPC got issued by the predecessor of the respondents No.1 to 3. The learned Additional District Judge also forgot that possession of the property had already been recovered and it was not the case that possession had been recovered of property different from that which was ordered by Estate Officer to be vacated. A reading of the entire impugned order of the learned Additional District Judge indicates as if reasons were being searched in support of decision already taken to set aside the order of eviction.

22. In fact, filing of applications for setting aside of the abatement and for restoration of the appeal and for condonation of delay in applying therefor after nearly two years of withdrawal on 9th May, 2008 of the appeal on 9th April, 2010, after the Presiding Judge had changed and the reasons given for

condonation of delay and for setting aside of the abatement as well as the order of withdrawal of appeal and restoration of the appeal, do not inspire confidence.

23. The petitioner, though in the memorandum of this petition has mentioned the factum of withdrawal of the appeal and subsequent restoration thereof but has not challenged the order dated 27th September, 2011 allowing the application for condonation of delay in applying for setting aside of the abatement and the order of withdrawal of the appeal and for restoration of the appeal and the order dated 23rd July, 2012 setting aside the abatement as well as the order of withdrawal of appeal and restoring the appeal. However, once this Court is approached in its supervisory jurisdiction, notwithstanding the petitioner having not challenged the said orders, this Court would be entitled to take into consideration the said orders also, while dealing with the challenge to the order dated 21st November, 2014 ultimately allowing this appeal.

24. As recorded in the order dated 9th May, 2008, reproduced above, of the learned Additional District Judge, the statement of respondent No.3 Mukesh Kumar as under was also recorded:

"Statement of Sh. Mukesh Kumar S/o Late Sh. Ram Chander Aged about 21 years R/o H. No.1369, Road No.6, Mata Wali, Near First Flight Courier Office, Village Mahipal Pur, New Delhi - 37.

On S.A.

I am son of Late Sh. Ram Chander, the appellant in this case. My father expired on 20.01.2008. I have filed copy of death certificate of my father, same is Mark A.

As the appeal has already been abated, I do not wish to proceed with this appeal."

25. The aforesaid statement is signed by respondent No.3 Mukesh Kumar in English language. Similarly, the applications filed for restoration of the appeal were also signed by respondent No.3 Mukesh Kumar as well as by the respondent No.2 Rakesh Kumar in English language. The respondent No.3 Mukesh Kumar, on 9th May,2008, was accompanied by an Advocate. It was not the case of the respondents in the application for restoration of the appeal that they were illiterate. It was also not the case in the application that the respondents were misled by the Advocate who drafted the application for withdrawal of the appeal and/or who appeared with the respondent No.3 Mukesh Kumar before the Additional District Judge on 9 th May, 2008. It was also not the case that any action had been taken by them against the said Advocate.

26. If actions which are voluntarily withdrawn, are permitted to be restored in such casual manner, there would be no finality of any rights, which would remain in abeyance and in a state of flux, in perpetuity and which is contrary to public interest. Moreover, as aforesaid, the reasons given for condoning the delay for setting aside of the abatement and setting aside of the order of withdrawal of appeal and for restoring the appeal as well as for allowing the appeal, seen in totality do not inspire confidence. Once in the appeal, no order granting interim protection or staying dispossession had been made, the learned Additional District Judge erred in reasoning that the petitioner abused the process of law by executing the order of eviction. Either the Court, if finds a case therefor, should grant interim

order or should not castigate the litigant for changing the status quo. If, in law, mere pendency of a lis was a bar to changing the status quo as existing, there would have been no need to make statutory provisions for grant of interim relief.

27. The counsel for the respondents, during hearing on 13th August, 2018, had referred to Government of Andhra Pradesh Vs. Thummala Krishna Rao (1982) 2 SCC 134, Shekhar Shah Vs. Government of Maharashtra 233 (2016) DLT 32 and Bhagat Singh Vs. Delhi Development Authority AIR 1988 Delhi 174 but in the facts aforesaid, the said judgments are of no relevance.

28. Another factum which is of significance is that the predecessor of the respondents admittedly lost possession of the premises, from which they were ordered to be evicted by the Estate Officer, as far back as on 21 st May, 2007. Neither during the pendency of the appeal, till it was withdrawn on 9th May, 2008 nor at the time of applying for restoration of appeal nor after the appeal was restored, did the predecessor of the respondents and/or the respondents at any time applied for restoration of possession. More than eleven years have now elapsed. The same is also indicative of the fact that this petition is being defended, only since it has been filed and else the respondents have no interest in the property and have accepted the order of the Estate Officer.

29. For all the aforesaid reasons, the petition is allowed. The orders dated 27th September, 2011, 23rd July, 2012 and 21st November, 2014 of the learned Additional District Judge are set aside. Resultantly, the appeal preferred by the predecessor of the respondents No.1 to 3 and withdrawn by

the respondents, stands withdrawn. Alternatively, the order allowing the appeal is set aside. The order of eviction of the Estate Officer is restored.

30. The petition is disposed of.

31. I am refraining myself from imposing costs on the respondents.

32. Both the requisitioned files be returned and be tagged for being consigned to the Record Room of the District Judge.

RAJIV SAHAI ENDLAW, J.

OCTOBER 04, 2018 ak/bs