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Delhi High CourtIndian Cases

Smt. Sundri Devi vs D.D.A. And Anr. on 28 November 2003

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Delhi High Court
Smt. Sundri Devi vs D.D.A. And Anr. on 28 November, 2003
Equivalent citations: 2004IAD(DELHI)317, 108(2003)DLT598, 2004(72)DRJ226
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed
JUDGMENT

Badar Durrez Ahmed, J.

CM.No.13213/2003 Allowed subject to all just exceptions.

1. The petitioner is an occupant of premises bearing No. MPL 15-16, General Market, Paharganj, New Delhi measuring 93 sq. yards which is being used for commercial purposes. The said property admittedly is a government property. A notice dated 12.12.2001 was issued under Section 4(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the said Act). The petitioner was required to show cause as to why an order of eviction be not made against the petitioner on the ground that the petitioner was, inter alia, an unauthorised occupant. Pursuant to the said notice under Section 4 of the said Act, one Shri Amarjit Singh appeared on behalf of the petitioner before the Estate Officer on 28.02.2002 and requested for time to file objections. Thereafter, on 14.03.2002 and 15.07.2002 the said Shri Amarjit Singh entered appearance before the Estate Officer on behalf of the petitioner. However, he did not file any objection against the show cause notice. Learned counsel for the petitioner submitted that, in the meanwhile, the petitioner had been required to deposit certain arrears which the petitioner did as indicated in page 5 of the writ petition. The learned counsel for the respondent, however, submits that the entire amount of arrears have not been paid. The fact remains that the petitioner did not submit any reply or objection to the said show cause notice and thereafter no appearance was also entered on behalf of the petitioner and she was proceeded ex-parte on and from 31.07.2002. Thereafter, the Estate Officer recorded the evidence on behalf of the respondent-DDA which clearly demonstrated that the petitioner was in unauthorised occupation of the premises in question. There is nothing to rebut the same on record. In view of this, the Estate Officer passed the eviction order under Section 5(1) of the said Act.

2. Being aggrieved by the said order, the petitioner preferred an appeal under Section 9(1) of the said Act before the Learned Additional District Judge in which the petitioner submitted that an opportunity of hearing ought to have been given by the Estate Officer and that the Estate Officer ought to have considered the fact that certain payment towards damages had been made by the petitioner after the issuance of the said show cause notice under Section 4 of the said Act. The main ground of the petitioner which was taken before the Appellate Authority was that an opportunity of hearing had not been granted. The second ground that was taken by the petitioner was that the petitioner has been paying damages in respect of the said premises for a long time and like her case there were other persons who were also paying damages and who were not being evicted. On this ground, she submitted that since others, who were similarly situated, were not being evicted, she should also not be evicted.

3. The learned Additional District Judge, after hearing the parties, dismissed the appeal after noting that the petitioner had admitted that she was not in authorised occupation as she was paying damages for occupation of the premises in question which admittedly belonged to the Government. The learned Additional District Judge also noted the fact that the petitioner had stopped appearing before the Estate Officer on and after 31.07.2002 and was therefore proceeded ex-parte. This was noted in the context of the submission that appropriate opportunity had not been granted by the Estate Officer to the appellant. In view of these facts and circumstances, it is apparent that appropriate opportunity had been granted to the petitioner to represent her case before the Estate Officer and it is the petitioner who chose not to remain present on or after 31.07.2002 in proceedings before the Estate Officer. Therefore, the findings of the Estate Officer and the learned Additional District Judge, on this count, cannot be faulted. As regards the petitioner being singled out for eviction while others similarly situated were not being so dealt with, it is clear that such a plea is untenable. The truth is that the petitioner is admittedly an unauthorised occupant of the premises in question and mere payment of damages would not regularise the petitioner’s occupation so as to convert her occupation from being unauthorised to being authorised. No such right is created by mere payment of damages and this is exactly what this court in the case of Aisha Jalal v Lt. Governor & Others: 2003 III AD(DELHI) 303 has held. This decision has been correctly relied upon by the learned Additional District Judge while disposing of the petitioner’s appeal under Section 9 of the Act. In the impugned Judgment, the learned Additional District Judge has also noted that the petitioner was neither a lessee nor a licensee of the premises in question.

4. Apart from this, learned counsel for the petitioner submitted that he may be granted an opportunity to lead evidence in the matter. On being pointedly asked as to what evidence he would lead if such an opportunity was granted, learned counsel for the petitioner submitted that he would show that in other cases where the persons were similarly situated to the petitioner, the respondent had regularised their occupation. Learned counsel for the petitioner, however, in the same breath admitted that the occupation of the petitioner was unauthorised and the evidence that he would lead was not in the nature of establishing that the occupation was authorised. In this view of the matter, it is clear that the reasons for which the petitioner wants to lead evidence is beyond the scope of proceedings under the Public Premises Act. Under proceedings, pursuant to Section 4 of the said Act, the Estate Officer has to determine whether the occupant is occupying the premises under some authority or is an unauthorised occupant. The evidence that is to be led by both sides is with regard to the occupation of the premises and the authority therefore. If it is authorised occupation then the person cannot be evicted from the premises in question. However, if the occupation is unauthorised then the occupant is liable to be evicted under the said Act after following the due process. In this case, the petitioner is admittedly an unauthorised occupant. So, even if an opportunity was to be granted, this would not change the position at all. In view of the aforesaid facts and circumstances, there is no merit in the present writ petition and accordingly the same is dismissed.

5. However, it will be open to the petitioner to move an application before the respondent-DDA for having the occupation of the premises regularised, if permissible under law. The application may be filed within two weeks and, if any such application is filed within the time stipulated, the same shall be disposed of within two weeks thereafter. Till the disposal of such application, the petitioner may continue to occupy the premises.