JUDGMENT
Vikramajit Sen, J.
1. This Judgment shall dispose of a batch of Writ Petitions that have been filed assailing the legal propriety of the Judgment of the Additional District Judge in respect of Appeals filed before him by the occupants of forty five (45) shops in the Red Fort, of which thirty seven (37) shops are under the lease/license of the MCD and eight (8) shops are under the lease/license of the Ministry of defense (MoD). All the shops are situated in what has historically come to be known as the Chhatta Bazaar or Meena Bazaar. The genesis or catalyst of the eviction of these Shopkeepers in the Chhatta Bazar complex is stated by the Respondents to be traceable to the decision of the Division Bench of this Court in a Public Interest Litigation bearing No. CWP 3313/1999 titled as Society for Protection of Heritage and Culture vs. Union of India and Others (PIL in short). The Division Bench had directed the Union of India to remove all the kiosks, canteens and other encroachments in the outer barbican and the periphery of the Red Fort. It is alleged by the Respondents that the Court’s directions also covered the Chatta Bazaar but this is not forthcoming from a perusal of any of the Orders passed in that PIL.
2. It will be of advantage to reproduce the following Minutes of a Meeting on which the assailed action of the MCD/MoD is avowedly predicated, which are self-explanatory:
“MINUTES OF THE MEETING HELD IN THE CHAMBER OF defense SECRETARY ON 28.5.2001 REGARDING CWP NO.3315/99 FILED BY THE SOCIETY FOR PROTECTION OF HERITAGE AND CULTURE BEFORE THE DELHI HIGH COURT ABOUT VACATION OF RED FORT BY THE ARMY.
……..a) To declare the entire Red Fort Complex as protected monument
DG, ASI mentioned that it would be possible to declare the entire Red Fort complex as protected monument even if it is under the occupation of the Army for performing the ceremonial duties relating to Independence Day, Republic Day and Martyr’s Day etc. assigned to it. However, once the entire monument is declared protected, no new construction will be permitted under the provisions of the Ancient Monuments and Archaeological Sites & Remains Act.
In this regard it was decided that the Army would vacate the rampart and the wall quarters under occupation of Army and handover the same to ASI. The army will, however, continue to use the ramparts for flag hoisting.
b) To remove the barracks and other unauthorised constructions including workshops for repairs of vehicles, for storing of coal and firewood and clear the entire area.
It was clarified by the representative of Army that there are no unauthorised constructions in the Red Fort Complex under occupation of Army. Also no coal is stacked in the store now. The representative of DGQA clarified that their own accommodation at Badarpur and as soon as their building is ready,
the building occupied by DGQA in the Red Fort area will be vacated and handed over to ASI. As regards one other building in the vicinity of Swatantrata Sangrahalaya, the representatives of Army Hqrs. stated that this building is being used for JCO’s accommodation and it was agreed in principle that they will vacate the building, but before vacation, alternative accommodation will have to be found within existing buildings by suitable readjustment. As regards the building, where IN a trial was held, presently under the occupation of Army, the defense Secretary desired that as this building has a historical significance, its vacation by the Army should be considered. Army Hqrs agreed to examine the matter in consultation with ASI. The Army authorities also agreed to relocate the existing overhead reservoir.
c) To remove the shops and Canteen, Chatta Corridor and outside the Chatta Corridor
It was clarified by the representative of Army Hqrs. that only 8 shops pertain to Ministry of defense. The leases of all these shops have been terminated and action has been initiated by the local military authorities for the eviction of unauthorised occupants under Public Premises (Eviction of unauthorised Occupants) Act, 1971. These shops will be handed over to ASI after the occupants are evicted. As regards the remaining shops which are under the control of MCD, ASI will take up the matter with MCD for their vacation. As regards the canteen there, this Canteen is located in ASI area for which action for eviction should be taken by ASI.
d) To ban use of generators forthwith.
This issue concerns Municipal Corporation of Delhi.
e) To prohibit the Sunday Bazar to be held behind the Red Fort and plan and develop the area as a garden.
This issue concerns Municipal Corporation of Delhi.
f) To remove the parking under MCD and Bus stand opposite to Delhi Gate of the Red Fort.
This issue concerns Municipal Corporation of Delhi.
g) To ban residential use of any portion of the Red Fort and to remove the existing residential activity in the entire Red Fort.
1. It was decided that ASI will prepare a comprehensive plan for improving the aesthetic look of the Red Fort keeping in view its historical character. The ASI agreed to prepare such a plan for which a consultant has been engaged by them. On the suggestion of the DG, ASI for relaying some of the grounds as per the original Mughal design, it was agreed that the issue will be examined by ASI in consultation with Army authorities and some funding from Ministry of defense may be considered for the purpose.
The Army representative emphasised that residential quarters are essential for the units located in the Red Fort complex for performing the ceremonial functions. They, however, agreed to their re-location to the extent feasible as well as relaying of lawns provided adequate funds are made available for this purpose by the Ministry of defense. The defense Secretary assured that funds for this purpose would be provided by the Ministry of defense and that essential elements of the Army required for performance of ceremonial functions along with their support and administrative backup will continue to remain in the Red Fort.
2. DG, ASI mentioned that it was proposed to expose the foundations of the original corridor linking the Diwan-e-Aam with Diwan-e-Khas for which evidence is available. A portion of this area is presently with the Army. The GOC, Delhi Area mentioned that the specific area mentioned would affect their movement . It was decided that a joint inspection may be carried out with the ASI with a view to working out possible modalities”.
3. Propelled by these events the MCD had issued Eviction Notices to all the Petitioners on 14.9.2001 and thereabouts, which inter alia read thus:-
“Consequent upon the decision taken and conveyed vide minutes of the Meeting held in the Chamber of defense Secretary on 28.5.2001 regarding C.W.P. No.3315/99 filed by the Society for Protection of Heritage and Culture before the Delhi High Court, it has been decided to cancel the allotment/license of the above stated shop for maintenance of security and protection of heritage of the Red Fort.
You are, therefore, directed to vacate the shop within one month from the date of issue of this notice.
You are also directed to stop the use of Gen-sets forthwith, failing which action will be initiated against you under the law.”
All the Petitioners have, by and large, adopted the same defense, which has been articulated in these words as can be found in one of the Replies to the above Notice:
“1. The above-noted shop bearing No.28, Meena Bazar, Red Fort, Delhi was given on lease to Shri Tika Ram by the Notified Area Committee, Delhi. The rent has been paid regularly by the lessee. After the demise of Shri Tika Ram the tenancy rights devolved upon his legal heirs. At present the tenancy rights have devolved upon Shri Om Prakash and Shri Babu Ram who have been tenants in the premises.
2. That the shop in question has been used by the tenant in consonance with the obligations contemplated under law and at no point of time, any breaches have been attributed to the tenant-lessee.
3. That the alleged decision alleged to have been taken in the chamber of defense Secretary on 28.5.2001 for protection of heritage of Red Fort is contrary to the provisions of Ancient Monuments & Archaeological Sites and Remains Act, 1958 and the rules framed therein. Without notice to the tenant and the persons effected and giving any reasonable hearing, any decision taken is non-est and is not valid.
4. That the tenancy of the addressee/tenant has not been determined and could not be determined and in the facts and circumstances, notice for vacation of shop bearing No.28, Meena Bazar, Red Fort, Delhi is also without any legal basis and pursuant thereto, the tenant cannot be directed to vacate the shop.
5. That in any case without offering alternative premises to the addressee, the demand to vacate the abovenoted shop is not justifiable. There had been representations to allot alternative shops to the shopkeepers at Meena Bazar before demanding vacation of shops from them.
6. That, it is further stated that no generator-set is used by the tenant and there has not been any violation of any of the liabilities imposed upon the lessee under the terms of allotment as a lessee and the rules and regulations applicable in case of lessee.
In the facts and circumstances, it is stated that the addressee-lessee of shop No.28, Meena Bazar, Delhi is not liable to vacate the shop as demanded pursuant to the above-noted notice.
This you may please note”
4. All those objections/submissions purport to have been disposed of by the Order dated 3.12.2002 of the Additional Commissioner (Revenue) which is reproduced below in order to illustrate that it palpably does not contain any discussion or the reasons for doing so:
” MUNICIPAL CORPORATION OF DELHI
LANDS & ESTATE DEPARTMENT
NO. AC/4E/2002/D-4170 Dated: 3/12/2002
Mr/Mrs. Bishamber Dayal, Om Prakash
Shop No. 9, Meena Bazar, Red Fort
Delhi
ORDER
WHEREAS shop No.9 Meena Bazar, Red Fort Complex, Delhi was originally under the management and control of the erstwhile Notified Area Committee, Red Fort, Delhi which was subsequently transferred to the Municipal Corporation of Delhi in 1958, being a successor body, on account of transfer and merger of the said Notified Area Committee, Red Fort in the Municipal Corporation of Delhi.
AND WHEREAS at present Shop No.9 is in your occupation.
AND WHEREAS pursuant to Civil Writ Petition No.3313/99 – In re. Society for Protection of the Heritage and Culture Versus Union of India & Others filed in the Hon’ble High Court of Delhi as Public Interest Litigation, directions were sought therein, interalia, for the removal of the shops at Meena Bazar, Red Fort complex, for maintenance and protection of heritage at Red Fort being a historical national monument.
AND WHEREAS the Govt. of India, Ministry of defense, decided to vacate the sites under their occupation being used by the Army and minutes dated 28.5.2001 recorded in this behalf by the defense Secretary to the Government of India, were filed by the Additional Solicitor General of India on behalf of Union of India before the Hon’ble High Court of Delhi on 30.5.2001 indicating the decision to vacate all the areas under occupation of the Army as well as other places, including the shops at Meena Bazar. The Hon’ble High Court further desired that action taken by the various authorities in terms of the said minutes maybe furnished to them.
AND WHEREAS pursuant to the decision taken vide the said minutes, the Director General, Archaeological Survey of India and the Additional Secretary to the Govt. of India have made a written request to hand over the possession and ownership of 37 shops of Chhata Bazar (including shop No.9 under your possession) to the Archaeological Survey of India so that their protection, maintenance and conservation could be carried out as per accepted conservation norms.
ANDWHEREAS in order to implement the decision of the Government of India in this behalf, the Municipal Corporation of Delhi took a decision to cancel the allotment/license of the aforesaid shops, including shop No.9 under your possession for maintenance and protection of heritage at Red Fort.
AND WHEREAS the decision of the Municipal Corporation of Delhi was accordingly conveyed to you vide show cause notice dated 14.9.2001 and you were directed to hand over the vacant and peaceful possession of shop No.9 to Municipal Corporation of Delhi within one month from the date of the said notice.
AND WHEREAS in response to the aforesaid show cause notice, you had requested for withdrawal of the said notice and/or to give an alternative site and accordingly you did not vacate and hand over the said shop.
AND WHEREAS another notice dated 4.3.2002 was issued and served upon you asking to vacate the aforesaid shop within 15 days of the receipt of the said notice but you have failed to vacate and hand over the same.
AND WHEREAS you have also been given opportunity of hearing but you did not vacate the shop and insisted upon withdrawal of the notice or to allot the alternative site.
AND WHEREAS after considering all the facts and circumstances of the case, your request for withdrawal of notice cannot be acceded to and as such you cannot be allowed to continue to occupy the aforementioned shop any more.
AND WHEREAS your request for providing alternative site has also been considered and the same cannot be accepted as there is no such agreement existing at any time for providing you the alternative site in lieu of the shop under your occupation and as such the Municipal Corporation of Delhi is not under any obligation to provide you the alternative shop or site in the absence of any agreement or covenant.
NOW, THEREFORE, I, Y.D. Bankata, Additional Commissioner, Municipal Corporation of Delhi, in exercise of powers delegated to me by the Commissioner under section 491 of the Delhi Municipal Corporation Act, 1957 (66 of 1957), hereby order to cancel the allotment/license in respect of shop No.9 Meena Bazar, Red Fort Complex, Delhi-110006 with immediate effect and direct you to hand over the vacant and peaceful possession of the same to the Municipal Corporation of Delhi within 15 days of the receipt of this order”.
5. The Petitioners had earlier filed Writ Petitions challenging the action of and (according to Learned Counsel for the MCD) Notices issued by it, which came to be disposed of by my Learned Brother Kaul, J. on 20.12.2002 in CWP No.8383/2002 in these terms:
“The grievance of the petitioner is that their license (though claimed as a lease in some of the case) has been terminated and there is a threat of dispossession. Learned counsel for the respondent cannot seriously dispute the proposition that dispossession of the petitioners has to be in accordance with law.
In view thereof it is directed that the dispossession of the petitioner shall be done by the respondents in accordance with law.
It may be noted that in view of the direction no further adjudication has been made in respect of certain relief of alternative allotment etc., for which it is always open to the petitioners to approach the appropriate authorities.
Writ Petition stands disposed of”.
These Orders have subsequently been clarified on 17.1.2003 by my Learned Brother Kaul, J. observing that the “grievance of the petitioner is that the order dated 20.12.2002 is being read as a direction of this Court to dispossess the petitioner. In fact this Court only accepted the submission of learned counsel for the respondent that the dispossession of the petitioner if it has to occur has to be in accordance with law. Application stands disposed of. It is made clear that this direction shall apply in all similarly situated cases of petitioners who filed petitions before this Court and similar orders as the order dated 20.12.2002 have been passed in those cases.” There can be no gainsaying that the Court had not adjudicated upon the contentions that had been raised before it and had merely accepted the Respondents’ statement that the Petitioners would be dispossessed only in accordance with law. The Court’s attention was not drawn to the issuance of the eviction notice nor has this aspect of the case been directly discussed. Therefore, the Orders dated 20.12.2002 cannot be construed in any manner other than their having left this entire issue at large. This aspect has also been considered in greater detail hereinafter.
6. As has already been seen on 3.12.2002 the Additional Commissioner (Revenue), Lands and Estate Department, Municipal Corporation of Delhi had cancelled the lease/license in respect of these shops with immediate effect. This decision recites that the Meena Bazaar/ Chhatta Bazaar, Red Fort Complex, Delhi, was originally under the management and control of the erstwhile Notified Committee, Red Fort, Delhi which was subsequently transferred to the MCD in 1958, being its successor body. The pendency of the PIL was also noted as well as the decision of the Ministry of defense (MoD) to vacate the sites under their occupation. It was further recorded that the Director General, Archaeological Survey of India and the Additional Secretary to the Government of India had made a written request for handing over possession of the said shops. It also recited the issuance of a second notice for eviction of the aforesaid shops, which is dated 4.3.2002 and reads as follows:
” Final Notice For vacation of shops/Ban on use of Generators at Meena Bazar, Red Fort Complex, Delhi.
One month notice No. L&E/MCD/Red Fort shops/HC(CWP)/01/D-6561(Colly) Dated 14/09/2001, for vacation including the direction to stop the use of Generator Sets forthwith was served upon you in reference to decision taken and conveyed vide minutes of meeting held in the Chamber of defense Secretary on 28/5/2001 regarding C.W.P. No.3315/1999 filed by the Society for Protection of Heritage & Culture before the Delhi High Court, but till date you have not vacated the shop.
You are given the last & final opportunity for vacating the shop by handing over the possession to the undersigned within 15 days failing which the action will be initiated against you according to Law”.
This Notice was replied to by Letter dated 11.3.2002 as follows:
“1. We are in receipt of the aforesaid notice alleging about alleged decision taken in an alleged meeting held in the Chamber of defense Secretary on 28th May, 2001, however neither the exact contents have been disclosed nor the copy thereof have been supplied.
2. In the writ petition filed by the alleged Society for Protection of Heritage and Culture, it had transpired that no decision was taken as regards the removal of shop canteens etc. in the Red Fort. What was observed was that the shops which were under the control of M.C.D., ASI was to take up the matter with MCD for there vacation.
3. In the present notice and in an earlier notice dated 14th September, 2001 which was duly replied by reply dated 12th October, 2001, there is no reference made to any deliberation with ASI and the result thereof. It is apparent that the notice has again been sent in a most mechanical manner merely by referring to the alleged minutes which do not cover the shops under the control of MCD and the present shop.
4. The above-noted shop bearing No.28, Meena Bazar, Red Fort, Delhi was given on lease to Shri Tika Ram by the Notified Area Committee, Delhi. The rent has been paid regularly by the lessee. After the demise of Shri Tika Ram, the tenancy rights developed upon his legal heirs. At present the tenancy rights have devolved upon Shri Om Prakash and Shri Babu Ram who have been tenants in the premises.
5. Consequently we continue to be the LESSEE of the said premises. There is no authentic cancellation of lease unless and until grounds are made out and notice as contemplated under law terminating the tenancy is given. The factum of the filing of the writ petition cannot by itself be a ground for canceling the tenancy nor on the alleged question of security and protection of heritage, all the shopkeepers including us can be evicted. Most of the shopkeepers are very old and have not caused any threat to security and are not detrimental to the protection of Monument. In fact the continuation of these activities is a part of heritage of the Red Fort, since traditionally this place was earlier being used as what was historically known as Meena Bazar. The shopkeepers including us are carrying on small commercial activities and selling the product which represents the Indian cultural heritage and ethnic values. In no case carrying of our activities will amount to and can be inferred to be destructive of heritage of Red Fort in any manner. However, should you require any measures to be taken by us so that there is no threat of security or threat of destroying the heritage, we shall be glad to do the needful under the said exercise.
6. That the shop in question has been used in consonance with the obligations contemplated under law and at no point of time, any breaches have been attributed. Accordingly, you are requested to consider the decision in the light of the fact that there has been no order of the Hon’ble High Court directing the cancellation of lease and/or allotment of the shops and also likewise there has been no decision in the alleged minutes allegedly directing you to cancel the shops. The alleged decision alleged to have been taken in the chamber of defense Secretary for alleged protection of heritage of Red Fort is contrary to the provisions of Ancient Monuments & Archaeological Sites and Remains Act, 1958 and the rules framed therein. Without giving a reasonable hearing, any decision taken is non-est and is not valid.
7. That in any case without offering alternative premises to us, the demand to vacate the above noted shop is not justifiable. There had been representations to allot alternative shops to the shopkeepers at Meena Bazar before demanding vacation of shops from them.
8. In the facts and circumstances, it is stated that the shop No.28, Meena Bazar, Delhi is not liable to be vacated as demanded pursuant to above-noted notice.
You are therefore, most humbly requested to look into the matter and withdraw the notice in question and earlier notice. We are also willing to cooperate with you and provide you whatever help is necessary for preserving the heritage of the monument, Red Fort”.
7. The Assistant Commissioner (PP) has been appointed as the concerned Estate Officer to adjudicate upon the disputes that are the subject matter of the present Petitions. The precise seniority of the Estate Officer is not known, but as this aspect has not been dilated upon by learned Counsel for the Petitioners it shall be presumed that he was in fact the Assistant Commissioner (PP) at the relevant time. For the same reasons it shall also be assumed that the Estate Officer was of equal if not higher seniority than the Assistant Commissioner, Land and Estate Department, who was the Petitioner before him. Normally, the Estate Officer considers every aspect of the case himself and after reaching the conclusion that the occupants are liable to be evicted under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as `the PP Act`) does he issue statutory notices and conduct proceedings under that Act. The filing of a petition by a third party whose action would at the very least have pursuasive effect on the Estate Officer, is therefore a departure and digression from the typical progression and conduct of such hearings. The entire proceedings which are quasi judicial in nature should not be reduced to a travesty or formality, which may be possible if the Estate Officer is subordinate to the Petitioner. The Estate Officer is also not empowered to consider the vires of the termination decision.
8. The following Petition has been filed by the MCD:
“BEFORE THE ESTATE OFFICER, MCD, MORE SARAI, DELHI
IN RE:
MUNICIPAL CORPORATION OF DELHI ?.PETITIONER
-VERSUS-
SH/SMT.
SHOP NO.
MUNICIPAL MARKET
RED FORT (MEENA BAZAR) DELHI ?. RESPONDENT
PETITION UNDER SECTION 4, 5 & 7 OF THE PUBLIC PREMISES (EVICTION OF UNAUTHORISED OCCUPANTS) ACT, 1971
SIR:
The MCD/Land & Estate Department/ Petitioner most respectfully submits as under:-
1. That shop No._____________ Municipal Market, Red Fort (Meena Bazar), Delhi is owned by the petitioner/MCD which is a public premises within meaning of Section 2 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
2. That the said shop was allotted to the respondent on the basis of monthly license fee/rent.
3. The Hon'ble High Court of Delhi in CWP No.3313/99 titled as Society for Protection of Heritage & Culture V/S UOI & Ors. has issued directions to respondent MCD to remove all the kiosks, canteen and other encroachment in the vicinity of Red Fort and protect the Historic Monuments.
4. That a meeting was held in the Chamber of defense Secretary, GOI on 29.5.2001 and action as suggested in the minutes of the meeting were required to be complied with by the MCD.
5. Consequent upon the decision taken in the meeting, a notice for vacation of shop/ban on use of Generators at Meena Bazar in the Red Fort Complex was issued to the respondent vide notice No. L&M/MCD/R.F./HC CWP /01/1)-6561 (Colly) by speed post on 14.9.2001, the reply of the same was received in the office of the petitioner on 23.10.2001 with the request to the petitioner to withdraw the above mentioned notice for vacation and did not hand over the peaceful vacant possession to the petitioner.
6. The petitioner again, issued the 2nd notice to the respondent vide letter No. DA/City/RC/L&E 2002 dated 4.3.2002 by speed post. A reply of the same was received in the office of petitioner on 23.3.2002 and in that he stated that he is not ready to vacate the shop till the alternative site is allotted and he is ready to face the eviction proceedings. Hence again the respondent failed to handover the peaceful vacant possession of the said shop to the petitioner. Finally an order passed by the Competent Authority was delivered to all the allottees on 3.12.2002 in person/by speed post.
7. A number of licensees had filed an application in the Hon’ble High Court vide CWP No.8383/2002 for granting stay against the above mentioned order but the same has been disposed off with directions that the dispossession of the petitioners shall be done by the respondent, MCD in accordance with law.
Prayer
It is, therefore, prayed that
1. That the orders of eviction may be passed against respondent in respect of Shop No.30 Red Fort Complex, Delhi in view of the direction of the Hon’ble High Court in orders dated 20.12.2002 and meeting held on 28.5.2001 in the Chamber of the defense Secretary, GOI.
2. That the cost of the petition may be forwarded to the petitioner.
3. That any other relief which this Court deem fit may also be awarded to the petitioner.
Petitioner
MUNICIPAL CORPORATION OF DELHI
ASSTT. COMMISSIONER(L & E)
VERIFICATION:
I, J.G. Nanda, Asstt. Commissioner, Land & Estate Department, MCD verify at Delhi on ____________that the contents of Para No. 1 to 6 are correct as the same are framed on the basis of official record.
Sd/-
ASSISTANT COMMISSIONER
LAND AND ESTATE DEPARTMENT”
9. The next event is the issuance of a Notice under sub-Sections 4, 5 and 7 of the PP Act by the Estate Officer to the Petitioners informing them of his opinion, on the basis of the grounds specified in the Plaint, that the Petitioners are in unauthorised occupation of public premises from which they should be evicted on the tautological ground – ”unauthorised occupation”. This Notice also requires the Petitioners to Show Cause on or before 9.4.2003 along with the evidence which the Petitioners intended to produce. Owing to the multitude of Petitioners these Notices have been sent on sundry dates but uniformally grant the Petitioners less than seven days to take the requisite action. This document reads thus:
“MUNICIPAL CORPORATION OF DELHI
M.C. PRY SCHOOL BLDG.
MORE SARAI: DELHI
COURT OF ESTATE OFFICER
NOTICE UNDER SUB-SECTIONS 4, 5 & 7 OF THE PUBLIC PREMISES (EVICTION OF UNAUTHORISED OCCUPANTS) ACT, 1971.
No.:691/96/2003 DATED: 3.4.2003 SH. Ramesh Kumar Whereas, I the undersigned, am of the opinion on the basis of grounds specified in the plaint that you are in unauthorized occupation of the public premises mentioned in the schedule below and that you should be evicted from the said premises:- Grounds: UNAUTHORISED OCCUPATION:- Now, therefore, in pursuance of sub-sections 4, 5 & 7 of the Act, 1971, I hereby call you to show on or before the 9.4.2003 why such an order of eviction should not be made.
And in pursuance of clause of sub-sections 4, 5 & 7, I call upon you to appear before me in person or through a duly authorized representative capable to answer all material questions connected with the matter Along with the evidence which you intend to produce in support of the cause shown on 9.4.2003 at 2 P.M. for personal hearing. In case, you fail to appear on the said date and time, the case will be decided ex-parte.
A copy of the plaint has already been served in this regard.
SCHEDULE
Public Premises/Shop No. 13 Red Fort.
SIGNATURE & SEAL OF
THE ESTATE OFFICER”
A reading of the notice discloses that the Estate Officer had already come to the conclusion that the Petitioners were in unauthorised occupation of the shops, and this conclusion had been arrived at without having heard the Petitioners. What is not free from doubt is whether this was his independent decision or merely followed and implemented that of his colleague who was the Petitioner before him. The tenor of the arguments raised before me by learned Counsel for the Respondents is to the effect that the Respondents have the unbridled power to terminate the licenses/leases, and that this action is beyond legal challenge. Even while submitting so, it has also been contended that since the Petitioners have not challenged the legality of these eviction notices before my Learned Brother Kaul, J., they are now procedurally precluded from doing so. The argument is devoid of merit as no adjudication whatsoever took place and the petitions were disposed of only on the strength of the Respondent’s assurance that the Petitioners would be dispossessed in accordance with law. It is not legally sound to treat the status of the Petitioners as analogous to persons who have been allowed the use of public or government premises for their residence. The Petitioners have paid fees/rent for decades and it must at the very least be arguable that their tenancies should have been terminated in consonance with law. It cannot be appreciated why the Estate Officer had not specifically addressed this question since it had been raised before him. Furthermore, in their detailed Reply to the Show Cause the Petitioners have inter alia specifically prayed that an opportunity be granted to them to lead evidence in support of their defense. It appears that an application dated 24.2.2003 had been filed before the Estate Officer by the Petitioners specifically raising the lack of jurisdiction of the said Officer and praying for a ruling on this question.
10. The Orders of the Estate Officer are reproduced for facility of reference:
"IN THE COURT OF ESTATE OFFICER,
MCD, M.C. PRY. SCHOOL BLDG., MORE
SARAI, DELHI-6
MPL. CORPORATION OF DELHI. .....PETITIONER
VERSUS
NAME SUDHIR GOEL
SHOP NO.30
MEENA BAZAR, MPL. MARKET,
RED FORT, DELHI .....RESPONDENT
ORDER UNDER SECTION 5 OF THE PUBLIC PREMISES (EVICTION OF UNAUTHORISED OCCUPANTS ) ACT, 1971.
A petition was received from the petitioner, i.e. the Assistant Commissioner, Land & Estate, under sections 4, 5 & 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 against Sh. Sudhir Goel of Shop No.30, Meena Bazar, Municipal Market, Red Fort, Delhi.
The learned advocate for the respondent filed the application regarding lack of jurisdiction of the Estate Officer, MCD on the grounds given in the application. The petitioner filed reply to the said application and respondent filed rejoinder to the reply submitted by the petitioner. Both the parties argued the matter and the written arguments were also submitted by the respondent and the said application stands disposed of by this court’s order dt. 7.4.03. The Estate Officer issued show cause notice dt. 3.4.03 under sections 5 of the Public Premises (Eviction of Unauthorised Occupants) Act. Thereafter the learned counsel for the respondent filed written statement to the main petition as well as to the show cause notice dt. 3.4.03 under sections 5 of the Public Premises Act and the petitioner also filed rejoinder to the said reply/written statement.
The petitioner has stated that the shop, in question, was allotted to the respondent on the basis of municipal license fee/rent. Accordingly, notices had been issued to the respondents for vacation of the premises, in question, but the respondents failed to hand over the peaceful and vacant possession of the premises, in question, to the petitioner and finally an order was passed by the Competent Authority on 3.12.02 wherein the license deed was cancelled and the order was delivered to the respondents by speed post/in person, hence this petition under section 4, 5 & 7 of the P.P. Act, is filed by the petitioner.
I have carefully gone through the record and documents submitted by both the parties and after hearing the arguments in defense of both the parties, my findings are as under:
1. It is an admitted fact that the shop was allotted by the erstwhile notified Area Committee which had been collecting the rent. After the commencement of the Municipal Corporation Act, 1957, the shops were handed over to MCD by the said Committee and the MCD came into picture, and thereafter it was the MCD which had been collecting the rent from various allottees including the respondent and the respondent has been giving rent regularly to the petitioner and the license was also terminated by the MCD vide orders delivered on 3.12.2002 in person/by speed post.
Aggrieved by the said orders, the respondents along with the other stated to have filed writ petitions in the Hon’ble High Court of Delhi bearing different numbers and the Hon’ble High Court vide its orders dated 20.12.2002 in Writ Petition No.8383 titled as Kapil Goel V/s. MCD directed the MCD that the dispossession of the petitioner shall be done by the respondent MCD in accordance with the Law and the Hon’ble High Court in another Writ No.8414 dated 17.1.2003 in the case titled as Smt. Varsha Singha V/s. MCD held that the grievances of the petitioner is that the order dated 20.12.2002 is being read as a direction of this Court to dispossess the petitioner. In fact this Court only accepted the submission of learned counsel for the respondent that the dispossession of the petitioner if it has to occur has to be in accordance with law. As the respondent has not taken any plea regarding the jurisdiction of the MCD nor raised any such dispute before the Hon’ble High Court ever, as such the jurisdiction lies with the MCD regarding the ownership of the impugned premises and as such proceedings under the P.P. Act have been initiated by the MCD in accordance with the law and the Estate Officer, MCD has the powers to proceed under the P.P. Act in the matter by way of powers delegated through relevant notification.
2. It is also evident from the documents filed by the petitioner in its defense i.e. minutes of the meeting held in the Chamber of defense Secretary on 28.5.2001 regarding CWP No.3315/99 that in para C, it was cleared by the representative of Army Headquarters that only 8 shops pertain to Ministry of defense and remaining shops are under the control of MCD and the Military Authorities have initiated eviction proceedings against the allottees of their shops to hand over the vacant possession to Archaeological Survey of India and similar action is required on the part of MCD. Thus, there is no further examination left to ascertain the legality/ownership issue. It all leads to the conclusion that the shop no. 30, Meena Bazar, Municipal Market, Red Fort, Delhi, belongs to the petitioner MCD.
3. The proceedings held by the Archaeological Survey of India is under Centrally Protected Monuments, i.e. for violation under Sections 19(i) and 30 of the AM & AS & R Act, 1958 and rule 8 of the AM & AS & R Rules, 1959 and it has got no relevancy with the proceedings under the P.P. Act held by the Estate Officer of MCD and the judgment relied by the respondent titled as Naresh Kumar versus Vth Additional District Judge, Varanasi and others has no relevancy with the present case and even the facts are different.
4. From the above, it is proved that Sh. Sudhir Goel is an unauthorised occupant and also as per provision of clause (9) of Sub section 3 of Section 2 of the Public Premises (Eviction of unauthorised occupants) Act, 1971 read with provision of clause (fb) of Sub Section 3 of Section 2 of the Amendment Act, 1993 of shop no. 30, Meena Bazar, Municipal Market, Red Fort, Delhi and be thus required to vacate the said shop under the P.P. Act, 1971.
5. Shri Sudhir Goel is hereby directed to vacate the said shop no.30, Meena Bazar, Municipal Market, Red Fort, Delhi, within one day’s time of this order which has been announced in open court and he will hand over peaceful vacant possession of the said shop to the representative of the Land & Estate Department, i.e. petitioner MCD failing which the petitioner MCD and/or its authorised representative shall be at liberty to get this shop vacated with the assistance of local police or otherwise.
As the petitioner has not filed any claim under section 7, so the petitioner is at liberty to file fresh claim under section 7 of the P.P. Act.
Order announced in the open court on this 25th Day of April 2003 in the presence of all concerned.
(R.S. MEENA)
ESTATE OFFICER/MCD”
11. It is within this concatenation of events that the legality of the eviction Orders has to be determined. The Respondents’ themselves are at least ambivalent on the pivotal question of which Authority the Red Fort presently ‘belongs’ to. This word cannot but be narrower than `control` and `ownership` both of which would subsume the earlier. In the Rejoinder of the MCD to the present Writ Petitions it has been, inter alia, pleaded as follows:-
“It is further denied that Archaeological Survey of India have taken the control/ownership of the premises in question. As a matter of fact the premises in question is owned by the petitioner within the meaning of Section 2 of P.P. Act and the same was allotted to the respondent on the basis of monthly License Fee. The Hon’ble High Court of Delhi in CWP No.3313/99 titled as Society for Protection of Heritage and Culture has issued directions to the respondent MCD to remove all the Kiosk Canteens and other encroachments in vicinity of Red Fort to protect the historical Monuments. A meeting was also held in the Chamber of defense Secretary, Government of India on 28.5.2001 and action as suggested in the minutes of the meeting were required to be complied with by the MCD. Accordingly, notice for vacation of shop were issued vide No. D6361 dated 14.9.2001. Since, the respondent had not handed over the possession, a second notice was issued to him/her vide No. D/4163 dated 3.12.2002 but the respondent failed to hand over the peaceful vacant possession of the shop to the petitioner. It is pertinent to mention here that a number of Licensees had filed applications in the Hon’ble High Court of New Delhi in CWP No.8383/2002 for granting stay against the above mentioned notices orders but the writ petition has been disposed off with the direction that the dispossession of the Respondents shall be done by the petitioner/MCD in accordance with law. Hence, the present petition u/s 4, 5 & 7 of the PP Act has been filed before the Estate Officer, MCD”.
12. The decision of the Estate Officer had been assailed by means of Statutory Appeals before the learned Additional District Judge, Delhi. In the succinct and detailed Judgment the Appellate Court has returned the finding that there is no illegality or infirmity in the decision of the Estate Officer which calls for its interference; and the Appeals have been dismissed. It is important to highlight that in the opinion of the learned Additional District Judge the sundry provisions of The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (hereinafter referred to as `the Ancient Monuments Act`) has nothing to do with the eviction of the Appellants/Petitioners. The learned Additional District Judge has observed that no procedure for ejectment of unauthorised occupants has been provided for in the Ancient Monuments Act. It has also concluded that by virtue of the said statute the Director General, ASI (DG, ASI for brevity) does not automatically become the owner of any protected monument and that there is no evidence on record to prove that this Authority had acquired ownership rights of the premises in question. These findings have not been assailed by any of the Respondents and, therefore, attain finality against them. The observations of the learned Additional District Judge to the effect that the Petitioners are Lessees or Licensees of the MCD/Ministry of defense has also attained finality against the Respondents. I find no reason to disagree with these conclusions of the Learned ADJ. However, in my analysis, the learned Additional District Judge has stopped abruptly after concluding that the Ancient Monuments Act has no bearing on the eviction proceedings, and has not carried the dialectic to its logical end namely, that preservation in contradistinction to eviction is imperative under that statute. The DG, ASI can therefore prescribe all such condition as in its wisdom must be complied with by occupants for the preservation of an ancient monument. Failure to do so leads to the consequence of prosecution and not ejectment, akin to nonconforming user under the Delhi Development Act.
13. It will be of advantage, at this stage, to make a digest of the Ancient Monuments Act. As its Preamble indicates, the statute is intended to provide for the preservation of ancient and historical monuments and archaeological sites and remains of national importance, for the regulation of archaeological excavations and for the protection of sculptures, carvings and other like objects. It cannot be gainsaid that the Red Fort is not an ancient monument as defined and comprehended by the Ancient Monuments Act in Section 2 thereof, or that it cannot be justifiably categorised to be of national importance as envisaged in Sections 3 and 4 of the Ancient Monuments Act. In fairness to the Petitioners they have mounted no such challenge and on the contrary have recorded their alacrity to follow directions such as non user of generator sets and discontinuance of cooking at the site, an activity which has ironically been permitted so far as the ITDC is concerned. Different strokes for different folks is impermissible and abhorrent in law. Section 5 empowers the DG, ASI with the sanction of the Central Government to purchase or take a lease of, or accept a gift or bequest of, any protected monument and in those instances where a protected monument is without an owner, to assume its guardianship. Section 6 enables the Collector and the owner to enter into an agreement for the maintenance of the monument. Section 8 vests power with the Central Government to repair a protected monument with the permission of the District Judge; and it is thus clear that unbridled powers have not been extended to the Central Government. Thereafter, Section 13 is of great importance as it empowers the acquisition of protected monuments in the event that the Central Government apprehends that it is in danger of being destroyed, injured, misused, or allowed to fall in decay. This Section implants into the Ancient Monuments Act the provisions of the Land Acquisition Act, 1984 deeming the maintenance of protected monuments to constitute a public province. Section 19 enunciates that no person, including the owner or occupier of a protected area, shall construct any building within the protected area or carry on any mining, quarrying, excavating, blasting or any operation of a like nature in such area, or utilise such area or any part thereof in any other manner without the permission of the Central Government. Activities such as the proposal for providing underground parking in the outer rampants of front lawns would violate the intendment of the Ancient Monuments Act. It is indeed paradoxical that even surface parking should now be contemplated by the State, when other activities such as holding Ram Lilas, Circus, kiosks etc. have been discontinued through Court Orders. If there is any credence in the Report of even date in the Hindustan Times, Delhi Edition the Administration appears to forget the purpose behind public projects as per its convenience. A conspectus of the Statute, therefore, discloses that even in respect of `Protected Monuments and Areas` the owners or occupiers thereof are neither ousted there from nor is there a complete ban on its user. The Central Government can, at the highest, prescribe the parameters within which owners/occupiers can use such property, provided these restrictions are calculated towards protecting and preserving the monuments. The conclusions of the Learned ADJ, which are now beyond the assault of the Respondents, is of great significance to the solution of the nodus before this Court.
14. Since the subject eviction proceedings have been initiated under the PP Act the definition of ‘public premises’ and of “unauthorised occupants” in Section 2 thereof requires to be reproduced, since the meaning to be given to these phrases is central to the determination of the present controversy:
“2. Definitions.- In this Act, unless the context otherwise requires,-
(e) “public premises” means-
(1) any premises belonging to, or taken on lease or requisitioned by, or on behalf of, the Central Government, and includes any such premises which have been placed by that Government, whether before or after the commencement of the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1980, under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat;
(2) any premises belonging to, or taken on lease by, or on behalf of,-
(i) any company as defined in section 3 of the Companies Act, 1956, in which not less than fifty-one per cent, of the paid up share capital is held by the Central Government or any company which is a subsidiary (within the meaning of that Act) of the first-mentioned company.
(ii) any corporation (not being a company as company as defined in section 3 of the Companies Act, 1956 or a local authority) established by or under a Central Act and owned or controlled by the Central Government.
(iii) any University established or incorporated by any Central Act.
(iv) any Institute incorporated by the Institute of Technology Act, 1961.
(v) any Board of Trustee constituted under the Major Port Trusts Act 1963.
(vi) the Bharkha Management Board constituted under section 79 of the Punjab Reorganisation Act, 1966 and that Board as and when re-named as the Bhakra-Beas Management Board under sub-section (6) of section 80 of that Act;
(vii) any State Government or the Government of any Union Territory situated in the National Capital Territory of Delhi or in any other Union Territory.
(viii) any Cantonment Board constituted under the Cantonments Act, 1924 (2 of 1924); and
(3) in relation to the National Capital Territory of Delhi,-
(i) any premises belonging to the Municipal Corporation of Delhi, or any municipal committee or notified area committee,
(ii) any premises belonging to the Delhi Development Authority, whether such premises are in the possession of, or leased out by, the said Authority;
(iii) any premises belonging to, or taken on lease or requisitioned by, or on behalf of any State Government or the Government of any Union Territory………..
(g) “unauthorised occupation”, in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premise has expired or has been determined for any reason whatsoever.”
15. The vires of the PP Act as well as the interplay between this statute and the Delhi Rent Control Act came to be considered in considerable detail in Ashoka Marketing Ltd. and another v. Punjab National Bank and others, . A number of issues had been raised in that case, but we are concerned only with two – (a) the qualification of the Estate Officer and the procedure followed by him and (b) the characteristics of the decision of the Respondents. The Apex Court has observed as follows:
“30. The definition of the expression `unauthorised occupation’ contained in Section 2(g) of the Public Premises Act is in two parts. In the first part the said expression has been defined to mean the occupation by any person of the public premises without authority for such occupation. It implies occupation by a person who has entered into occupation of any public premises without lawful authority as well as occupation which was permissive at the inception but has ceased to be so. The second part of the definition is inclusive in nature and it expressly covers continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. This part covers a case where a person had entered into occupation legally under valid authority but who continues in occupation after the authority under which he was put in occupation has expired or has been determined. The words “whether by way of grant or any other mode of transfer” in this part of the definition are wide in amplitude and would cover a lease because lease is a mode of transfer under the Transfer of Property Act. The definition of unauthorised occupation contained in Section 2(g) of the Public Premises Act would, therefore, cover a case where a person has entered into occupation of the public premises legally as a tenant under a lease but whose tenency has expired or has been determined in accordance with law.
………
32. Shri Ganguli has placed reliance on the decision of A.P. Sen, J. in Express Newspapers Pvt. Ltd. vs. Union of India, 1985 Suppl(3) SCR 382: (AIR 1988 SC 872) and has submitted that in that case the learned Judge has held that cases involving relationship between the Lesser and lessee fall outside the purview of the Public Premises Act. We have carefully perused the said decision and we are unable to agree with Shri Ganguli. In that case A.P. Sen, J. has observed that the new building had been constructed by the Express Newspapers Pvt. Ltd. after the grant of permission by the Lesser, and, therefore, the Express Newspapers Pvt. Ltd. was not in unauthorised occupation of the same within the meaning of Section 2(g) of the Public Premises Act. It was also held by the learned Judge that the Express Building constructed by the Express Newspapers Ltd. with the sanction of Lesser on plots Nos. 9 and 10 demised on perpetual lease can, by no process of reasoning, be regarded as public premises belonging to the Central Government under Section 2(e) of the Public Premises Act, and therefore, there was no question of the Lesser applying for eviction of the Express Newspapers Pvt. Ltd. The aforesaid observations indicate that the learned Judge did not proceed on the basis that cases involving relationship of Lesser and lessee fall outside the purview of the Public Premises Act. On the other hand the said observations show that the learned Judge has held that the provisions of the Public Premises Act could not be invoked in the facts of that case.
33. Another submission that has been urged by Shri Ganguli is that the question whether a lease has been determined or not involves complicated questions of law and the estate officer, who is not required to be an officer well versed in law, cannot be expected to decide such questions and, therefore, it must be held that the provisions of the Public Premises Act have no application to a case when the person sought to be evicted had obtained possession of the premises as a lessee. It is true that there is no requirement in the Public Premises Act that the estate officer must be a person well versed in law. But, that, by itself, cannot be a ground for excluding from the ambit of the said Act premises in unauthorised occupation of persons who obtained possession of the said premises under a lease. Section 4 of the Public Premises Act requires issuing of a notice to the person in unauthorised occupation of any public premises requiring him to show cause why an order of eviction should not be made. Section 5 makes provisions for production of evidence in support of the cause shown by the person who has been served with a notice under Section 4 and giving of a personal hearing by the estate officer. Section 8 provides that an Estate Officer, shall, for the purpose of holding any enquiry under the said Act have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the matters specified therein namely:
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring discovery and production of documents; and
(c) any other matters which may be prescribed.
…..
64. It would thus appear that, while the Rent Control Act is intended to deal with the general relationship of landlords 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 or Corporation owned or controlled by the Central Government and certain corporations, institutions, autonomous bodies and local authorities. The effect of giving overriding effect to the provisions of the Public Premises Act over the Rent Control Act, would be that buildings belonging to Companies, Corporations and autonomous bodies referred to in S.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 the 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. What can be said with regard to Government in relation to property belonging to it can also be said with regard to companies, corporations and other statutory bodies mentioned in S.2(e) of the Public Premises Act. In our opinion, therefore, keeping in view the object and purpose underlying both the enactments viz., the Rent Control Act and the Public Premises Act, the provisions of the Public Premises Act have to be construed as overriding the provisions contained in the Rent Control Act”.
16. Before venturing on from a consideration of this case it would be convenient to deal with the argument raised by the Learned Counsel for the Petitioners to the effect that all the Respondents should have filed a Suit for Possession and ought not to have taken recourse to the procedure in the PP Act. This contention is predicated on the observations of the Apex Court in Express Newspapers Pvt. Ltd. vs. Union of India, AIR 1986 872. His Lordship, A.P. Sen, who had delivered the leading Judgment quashed the impugned notices threatening re-entry and demolition of construction and raising a demand for conversion charges till the final determination of these demands by a statutory tribunal or by a Civil Court. His Lordship Justice E.S. Venktaramiah (as the Learned Chief Justice then was) voiced the view that the impugned notices suffered from arbitrariness and non-application of mind in that the Central Government had functioned under the Lieutenant Governor of the Union Territory of Delhi. So far as the rights under the Lease Deed were concerned they were left open to be decided in appropriate proceedings i.e. other than under the PP Act. His Lordship Justice R.B. Misra (as the Learned Chief Justice then was) while concurring with these opinions also opined that the question of whether there was a breach of the contract of lease or of any statute “can be properly decided by taking detailed evidence involving examination and cross-examination of witnesses”. The entire Bench had indicated in unison that matters of such import could not be properly decided in a summary manner. This landmark Judgment has also been considered in Ashoka Marketing’s case (supra) in the extracted paragraph 32 (supra). The opinion of His Lordship Justice A.P. Sen, has also been echoed in a treatise on the subject. In de Smith, Woolf & Jowell, Judicial Review of Administrative Action, the recommended approach is that “if the exercise of a discretionary power has been influenced by considerations that cannot lawfully be taken into account, or by the disregard of relevant considerations required to be taken into account, a court will normally hold that the power has not been validly exercised. It may be immaterial that an authority has considered irrelevant matters in arriving at its decision if it has not allowed itself to be influenced by those matters; and it may be right to overlook a minor error of this kind even if it has affected an aspect of the decision. The influence of extraneous matters will be manifest if they have led the authority to make and order that is invalid ex facie, or if the authority has set them out as reasons for its order or has otherwise admitted their influence. … If the influence of irrelevant factors is established, it does not appear to be necessary to prove that they were the sole or even the dominant influence. …. If the ground of challenge is that relevant considerations have not been taken into account, the court will normally try to assess the actual or potential importance of the factor that was overlooked, even though this may entail a degree of speculation.
17. In Kaiser-I-Hind Pvt. Ltd. and another versus National Textile Corpn. (Maharashtra North) Ltd. and Others, the Apex Court opined that it could not have been ” held that summary speedier procedure prescribed under the PP Act for evicting the tenants, sub-tenants or unauthorised occupants, if it is reasonable and in conformity with the principles of natural justice, would abridge the rights conferred under the Constitution”. These observations as also the views in Ashoka Marketing case (supra) do not suggest that it will be legally proper for the Authorities and/or the Estate Officer to adopt a summary hearing even in those cases where the facts and submissions are so very convoluted, complex and complicated as would make it preferable, in the interests of justice, to decide the disputes in detail. It bears repetitions to reiterate that the position of the present petitioners cannot be equated to persons permitted to reside in government accommodation.
18. The Respondent’s action must firstly be reasonable; and this requirement is more onerous from the standpoint of the State than a private individual. The following opinion of the Apex Court in Ramana Dayaram Shetty v. The International Airport Authority of India and others, immediately comes to mind.
“20. Now, obviously where a corporation is an instrumentality or agency of Government, it would, in the exercise of its power or discretion, be subject to the same constitutional or public law limitations as Government. The rule inhibiting arbitrary action by Government which we have discussed above must apply equally where such corporation is dealing with the public, whether by way of giving jobs or entering into contracts or otherwise, and it cannot act arbitrarily and enter into relationship with any person it likes at its sweet will, but its action must be in conformity with some principle which meets the test of reason and relevance.
21. This rule also flows directly from the doctrine of equality embodied in Art. 14. It is now well settled as a result of the decisions of this Court in E.P. Rayappa V. State of Tamil Nadu, and Maneka Gandhi v. Union of India, that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It requires that State action must not be arbitrary but must be based on some rational and relevant principle which is non-discriminatory: it must not be guided by any extraneous or irrelevant consideration, because that would be denial of equality. The principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non-arbitrariness is projected by Article 14 and it must characterise every State action, whether it be under authority of law or in exercise of executive power without making of law. The State cannot, therefore act arbitrarily in entering into relationship, contractual or otherwise with a third party, but its action must conform to some standard or norm which is rational and non-discriminatory.”
Therefore, in terminating the licenses/leases of the Petitioners the Respondents’ should not be seen to act unreasonably or capriciously, or contrary to their own Resolutions. If one of the reasons on which reliance had been placed turns out to be illusory, the State action would become unreasonable. I have already stated that, contrary to the submissions of the learned counsel for the MCD, the Ministry of defense and the ASI, the Division Bench has not even casually observed that the occupants of the shops in the Chatta Bazaar should be evicted. The Orders in the PIL dealt with the barbican, ramparts and outer periphery of the Red Fort. So far as Orders dated 20.12.2002 are concerned my Learned Brother Kaul, J. had in fact issued a positive direction that the Petitioners should not be dispossessed except by due process of law. I fail to appreciate how these Court direction can be employed to provide the raison d’etre for the ejectment of the Petitioners. There has not been any adjudication on the legal validity of the so called termination notices, and whether they need to conform to the rigours of Section 106 of the Transfer of Property Act. This question should have been considered by the Estate Officer and the statutory appellate body. It also appears that the present proceedings fly in the face of the Resolution dated 30.5.2002 especially sub-paragraphs (ii) and (iii) of Paragraph 2 thereof.
19. Reliance has also been placed by learned counsel for the Petitioners on the said Resolution reproduced below in order to buttress their arguments that there is no justification for the removal of the Petitioners from the Chhatta Bazar/Meena Bazar:-
“MINISTRY OF URBAN DEVELOPMENT AND POVERTY ALLEVIATION
(DIRECtorATE OF ESTATES)
RESOLUTION
New Delhi, the 30th May 2002
Subject : Guidelines to prevent arbitrary use of powers to evict genuine tenants from public premises under the control of Public Sector Undertakings/financial institutions.
No. 21013/1/2000-Pol. I–The question of notification of guidelines to prevent arbitrary use of powers to evict genuine tenants from public premises under the control of Public Sector Undertakings/financial institutions has been under consideration of the Government for some time past.
2. To prevent arbitrary use of powers to evict genuine tenants from public premises and to limit the use of powers by the Estate Officers appointed under Section 3 of the PP(E) Act, 1971, it has been decided by Government to lay down the following guidelines:-
(i) The provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 [P.P.(E) Act, 1971] should be used primarily to evict totally unauthorised occupants of the premises of public authorities or subletees , or employees who have ceased to be in their service and thus ineligible for occupation of the premises.
(ii) The provisions of the P.P.(E) Act, 1971 should not be resorted to either with a commercial motive or to secure vacant possession of the premises in order to accommodate their own employees, where the premises were in occupation of the original tenants to whom the premises were let either by the public authorities or the persons from whom the premises were acquired.
(iii) A person in occupation of any premises should not be treated or declared to be an unauthorised occupant merely on service of notice of termination of tenancy, but the fact of unauthorised occupation shall be decided by following the due procedure of law. Further, the contractual agreement shall not be wound up by taking advantage of the provisions of the P.P.(E) Act, 1971. At the same time, it will be open to the public authority to secure periodic revision of rent in terms of the provisions of the Rent Control Act in each State or to move under genuine grounds under the Rent Control Act for resuming possessions. In other words, the public authorities would have rights similar to private landlords under the Rent control Act in dealing with genuine legal tenants.
(iv) It is necessary to give no room for allegations that evictions were selectively resorted to for the purpose of securing an unwarranted increase in rent, or that a change in tenancy was permitted in order to benefit particular individuals or institutions. In order to avoid such imputations or abuse of discretionary powers, the release of premises or change of tenancy should be decided at the level of Board of Directors of Public Sector Undertakings.
(v) All the Public Undertakings should immediately review all pending cases before the Estate Officer or Courts with reference to these guidelines, and withdraw eviction proceedings against genuine tenants on grounds otherwise than as provided under these guidelines. The provisions under the P.P.(E) Act, 1971 should be used henceforth only in accordance with these guidelines.
3. These orders take immediate effect.
VINEETA RAI
Additional Secy.”
20. The learned Counsel for the Respondents have sought to dilute the applicability of this Resolution by contending that it applies to Public Sector Undertakings (PSUs) but I fail to appreciate why it should not be applied to the cases in hand. The Petitioners are identically placed as those in M/s. Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay, . This decision has been applied very recently in Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai and another, and I can do no better than reproduce the following paragraphs thereof:-
“14. The Bombay Port Trust is an instrumentality of State and hence an `authority` within the meaning of Article 12 of the Constitution. (See Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay.) It is amenable to writ jurisdiction of the court. This position of law has not been disputed by either party. The consequence which follows is that in all its actions, it must be governed by Article 14 of the Constitution. It cannot afford to act with arbitrariness or capriciousness. It must act within the four corners of the statute which has created it and governs it. All its actions must be for the public good, achieving the objects for which it exists, and accompanied by reason and not whim or caprice.
…..
16. The position of law is settled that the State and its authorities including instrumentalities of States have to be just, fair and reasonable in all their activities including those in the field of contracts. Even while playing the role of a landlord or a tenant, the State and its authorities remain so and cannot be heard or seen causing displeasure or discomfort to Article 14 of the Constitution of India.
17. It is common knowledge that several rent control legislations exist spread around the country, the emergence whereof was witnessed by the post-World War scarcity of accommodation. Often these legislations exempt from their applicability the properties owned by the Government, semi-government or public bodies, Government-owned corporations, trusts and other instrumentalities of State. What is the purpose? Do the legislatures intend to leave such entities absolutely unbridled and uncontrolled as landlords from the operation of the rent control legislation or do they do so with some hope and trust in such institutions? In Dwarkadas Marfatia and Sons a few decisions and authorities were cited before this Court. The observations of Chief Justice Chagla (as His Lordship then was) in Rampratap Jaidayal v. Dominion of India, (1952) 54 Bom.L.R. 957 were quoted with approval stating that while enacting rent control legislations, the Government seeks to achieve the object of protecting the tenants and preventing the rent from being increased and people from being ejected unreasonably; then it cannot be assumed that the very Government would itself be indulging in those very activities which it was proposing to prevent by enacting such laws. The underlying assumption behind granting exemption from the operation of the rent control legislations was that the Government would not increase rents and would not eject tenants unless it was necessary to do so in public interest and a particular building was required for the public purpose. It was also pointed out that the Government or local authority or the Board would not be actuated by any profit-making motive so as as to unduly enhance the rents or eject the tenants from their respective properties as private landlords are or are likely to do. This Court in Baburao Shantaram More v. Bombay Housing Board, recognised that the basis of differentiation in favor of public authorities like the Bombay Port Trust, was on the ground that they would not act for their own purpose as private landlords do but would act for public purposes. The Court held in Dwarkadas Marfatia that the public authorities which enjoy the benefit without being hidebound by the requirements of the Rent Act, must act for public benefit and where they fail to do so they render themselves amenable to adjudication under civil review jurisdiction of the Court. A Division Bench of the Bombay High Court presided over by Mrs. Sujata Manohar, J. (As Her Lordship then was) held in Ratti Palonji Kapadia v. State of Maharashtra, 1992 Bom LR 1356 that the exemption from the provisions of the rent control law casts an obligation on the State and its instrumentalities and authorities to comply with the public policy of ensuring a fair return of investments without charging exorbitant rates based on the prevailing market price of the land. Thus, a balance has to be struck between ensuring a fair return on investment and charging exorbitant rates based on the prevalent market prices of land, which would be of utmost relevance to any other landlord. The State Government in order to justify a steep increase in rent, cannot plead exploitative increases in prices of lands. Reference in this connection may also be made to Kumari Shrilekha Vidyarthi v. State of U.P., wherein this Court held that while acting in the field of contractual rights the personality of the State does not undergo such a radical change as not to require regulation of its conduct by Article 14. It is not as if the requirements of Article 14 and contractual obligations are alien concepts which cannot coexist. Our Constitution does not envisage or permit unfairness or unreasonableness in State action in any sphere of activities contrary to the professed ideals in the Preamble. Exclusion of Article 14 in contractual matters is not permissible in our constitutional scheme. In P.J. Irani v. State of Madras, Constitution Bench observed that a tenant in a building owned by the State or its instrumentality is not liable to eviction solely because the tenancy has terminated. The existence of rent control legislation, though not applicable to such building, is suggestive of the State’s policy of protecting tenants because of the great difficulty of their obtaining alternative accommodation.
18. In our opinion, in the field of contracts the State and its instrumentalities ought to so design their activities as would ensure fair competition and non-discrimination. They can augment their resources but the object should be to serve the public cause and to do public good by resorting to fair and reasonable methods. The State and its instrumentalities, as the landlords, have the liberty of revising the rates of rent so as to compensate themselves against loss caused by inflationary tendencies. They can — and rather must — also save themselves from negative balances caused by the cost of maintenance, payment of taxes and costs of administration. The State, as the landlord, need not necessarily be a benevolent and good charitable Samaritan. The felt need for expanding or stimulating its own activities or other activities in the public interest having once arisen, the State need not hold its hands from seeking eviction of its lessees. However, the State cannot be seen to be indulging in rack-renting, profiteering and indulging in whimsical or unreasonable evictions or bargains.
19. A balance has to be struck between the two extremes. Having been exempted from the operation of rent control legislation, the courts cannot hold them tied to the same shackles from which the State and its instrumentalities have been freed by the legislature in their wisdom and thereby requiring them to be ruled indirectly or by analogy by the same law from which they are exempt. Otherwise, it would tantamount to defeating the exemption clause consciously enacted by the legislature. At the same time the liberty given to the State and its instrumentalities by the statute enacted under the Constitution does not exempt them from honouring the Constitution itself. They continue to be ruled by Article 14. The validity of their actions in the field of landlord-tenant relationship is available to be tested not under the rent control legislation but under the Constitution. The rent control legislations are temporary, if not seasonal; the Constitution is permanent and an all-time law”.
21. Learned counsel for the Petitioners’ had relied on the following observations of the Hon’ble Supreme Court in Rajeev Mankotia Versus Secretary to the President of India and Others, , which indubitably makes relevant reading –
“19. It is needless to mention that as soon as the Indian Institute of Advanced Studies vacates the building and hands it over to the Archaeological Department, the Government should provide the necessary budget for effecting repairs and restoring to the building its natural beauty and grandeur. It is also necessary that its proper maintenance and preservation is undertaken as an on-going process to protect the historical heritage and needed repairs are effected from time to time. We avail this opportunity to direct the Government of India to maintain all national monuments under the respective Acts referred to above and to ensure that all of them are properly maintained so that the cultural and historical heritage of India and the beauty and grandeur of the monuments, sculptures secured through breathless and passionate labour workmanship, craftsmanship and the skills of the Indian architects, artists and masons is continued to be preserved. They are the pride of Indians and places of public visit. The tourist visitors should be properly regulated and collection of funds by way of admission/entrance fee should be conscientiously accounted for and utilised for their upkeep and maintenance under the respective regulations/rules. Adequate annual budgetary provisions should be provided. In this behalf, it may not be out of place to mention that if one goes to Williamsburg in United States of America, the first settlement of the Britishers therein is preserved as a tourist resort and though it is one in the row, its originality is maintained and busying business (sic. bustling) activity goes on in and around the area attracting daily hundreds of tourists from all over the world. Similar places of interest, though of recent origin, need to be preserved and maintained as manifestation of our cultural heritage or historical evidence. Similar places of interest, though of recent origin, need to be preserved and maintained as manifestation of our cultural heritage or historical evidence. Similar efforts should also be made by the Government of India, in particular the Tourism Department, to attract foreign tourists and to give them a good account of our past and glory of the people of India as message to the other countries and territories. Equally all the State Governments would do well vis-a-vis monuments of State importance, though given power under Entry 12, List II of the Seventh Schedule to the Constitution. From this perspective, the petitioner has served a great cause of national importance and we place on record his effort to have the Viceregal Lodge preserved and maintained; but for his painstaking efforts, it would have been desecrated into a five star hotel and in no time “We, the people of India” would have lost our ancient historical heritage.”
22. A perusal of the passage will clearly indicate that the Apex Court was not adverse to the continuation of an activity historically carried out in the monument in question, and had mentioned places of great historical importance in other parts of the globe where such activity is allowed to continue. Furthermore, The Taj Mahal and the Red Fort ought not to be treated on a similar footing since a distinction must be drawn between a mausoleum and a fort. There would normally be no place or reason for commercial activity to be conducted in the former ; in fact, it would derogate from the solemnity essential to a tomb. In the latter case a fort partakes of the nature of a mini town, protected by various devices from outside onslaughts. A fort invariably contains military installations and presence, residential units, storages and even shops in order that human life may be continued as normally as is possible in the circumstances, and even during the period of a siege. In M.C. Mehta Versus Union of India & Ors. in Writ Petition No.13381/1984 the Apex Court observed thus:-
“I – Area occupied by the Shop owners ground Taj Mahal:
Mr. D.D. Thakur appears for Managing Director, Rajasthan Small Industries Corpn. Ltd. and for The Commissioner Handicrafts and Managing Director, J & K (S & E ) Corporation Ltd. Haryana State Small Industries Export Corpn. Ltd. has been served through its Managing Director but none is present on its behalf. Mr. Jaitley appears for Managing Director, Handicrafts Development Corpn. of Kerala Ltd. Mr. Mehta appears for the UP Export Corporation Limited. Mr. Attrey appears for the Himachal Pradesh Horticultural Produce, Marketing and Processing Corporation Ltd. and Mr. Ranjit Kumar appears for Subandra Kumar Shyhare S/o Kailash Chand who is running a photo stall. All the above mentioned Corporations and the photographer are operating within the protected boundary of the Taj Mahal. Although they have no authority to operate at that place they are doing so in view of the stay order granted by the Civil Judge, Agra. We stay the interim stay order granted by the Civil Judge, Agra, and further stay all the proceedings pending before him. We also stay any order/order passed by the District Judge in respect of any of these Corporation and proceedings pending before him. Meanwhile, we direct that these Corporations and photographer shall not be evicted till further orders by this Court. Meanwhile, we direct Agra Development Authority through Mr. Satish Chandra who is already assisting us in various other matters to probe the possibility of providing some suitable alternative place to these Corporations and the photographer 200 meters away from the boundary of the Taj Mahal.”
23. These persons who were granted indulgence by the Apex Court were less favorably placed than the Petitioners who through their predecessors-in-tile have been in occupation of the shops in the Red Fort for centuries. The Taj Mahal is a mausoleum and cannot be compared with the Red Fort which is a mini city. The Hon’ble Supreme Court also had occasion to pass Orders in respect of a canteen in the Agra Fort. The Court observed that Rule 8 of the Ancient Monuments Act prohibited the cooking or consumption of food anywhere in a private monument except under the Authority or in accordance with the conditions of a license granted by an Archaeological Officer. It took note of the fact that the license to run a canteen was granted in 1992 for a period of three years only and that since the canteen had already been shifted and was no longer running in the protected monument, the proceedings could be closed. Reliance has been placed on the direction, at the conclusion of the Order, where the Court took pains to “make it clear that, henceforth no commercial activity shall be allowed within the premises of the Agra Fort or in any other protected monument at Agra in the Taj Trapezium”. Learned Counsel for the Respondents have predicated their justification for the removal of the Petitioners from the Meena Bazaar on this observation, but I think it has been blown by them out of context and proportion. The position in the Agra Fort is not an analogous to that in the Red Fort, since the canteen had been running for a short period of three years only, till 1995. However, the Meena Bazaar or the Chhatta Bazaar has admittedly been functioning not for decades only but even for centuries. This is evident from a reading of the historically famous Shahjahanama, which contains a contemporary account of the period. The following passage, a translation from the original, is of irreplaceable and irrefutable topicality:-
“There are three gates. The western gate is very high and beautiful. Outside the western gate 200 yards long and 140 yards old chowk. Here there are two beautiful corridors. On East, North and West side there are three doors. From eastern gate to the northern gate there are 40 yards big high corridors where there are stables and other roval factories. In the middle there is a canal flowing. From the west side of the palace till the gate of the palace there is a double storied covered bazar. This place is crowded. Despite this the place is very clean. The huire (cubicals) are placed together with each other. The shops are full of precious jewels. In India this is the roofed bazar first of its kind”.
Mention of the Chatta Bazar can be found in Asar-Ul Sanadeed by Sir Saiyed Ahamad Khan, Hayate Dilli by Khwaja Raqunuddin Nizami, Lal Quile Ki Ek Jhalak by Hakim Khwaja Sayed Nasir Nazir Faraq, Wakiate Darul Hukumat Dilli by Bashiruddin Ahmed Delhvi, Delli Tariq Ke Ayene Mei by Prof. Khaltiq Ahmad Nizami. In the book Delhi, Its Monuments and History by the renowned Historian T.G.P. Spear it is mentioned that – “Inside the Lahore Gate is the Chhatta Chowk, or covered bazaar. This covered bazaar is unique in Mughal architecture. Here the merchants of Delhi sold their goods to the nobles of the Court. Passing through the Chhatta Chowk we come to the Naqqarkhana”. Similarly in the Social Life of the Mughal Emperors (1526-1707) Muhammad Azhar Ansari, Associate Professor, Centre for Historical Studies, JNU, New Delhi states that – “there was another gate situated on the west side of the fort. It had long and wide streets with diwans but was “bordered with shops instead of arcades”. It was a bazar”. In his treatise The Architectural Glories of Delhi Dr. Nandalal Chatterji also mentions a Chatta Chowk. It would be advantageous and informative to also refer to ‘Dilli Ki Khoj’ authored by Shri Brij Kishan Chandiwala, published by the Ministry of Information and Broadcasting in 1964. The translation of this sterling work reads thus:-
” CHATTA LAHORI DARWAZA
After entering the Lahori gate there comes a chatta which is 230 ft. long and 13 ft. in width, in the middle of which is a “chowk” and open courtyard. The area of this is 30 ft.. On the right and left of this courtyard there are small doors, which used to open to the most populated places once upon a time. On either side of this courtyard there are 4 ft. high platform and 32 shops. At one time this was famous as the Chatta Bazar and all types of things were sold in this market. Now also there are things sold from here. The roof of the chatta is made of “ladau” inlay work in which there are various types of waves and curves. On either side of the Chatta there are double storied houses. A similar Chatta is also situated in front of Delhi Gate also”.
The Indian National Trust for Art and Cultural Heritage (INTACH) has with the support of the DDA has published an exceptional work of unimpeachable character in two volumes titled Delhi The Built Heritage: A Listing which, as can be expected, contains a write-up on this historic bazaar. This treatise has the following account of the `Chatta Chowk` —
“CHHATTA CHOWK
Location Red Fort, Shahjahanabad
ownership Public Army, MCD
Function Formerly shopping arcade. At present: Shops
Status Protected
Special Features
A. SIGNIFICANCE: This is the spectacular entrance to the palace area, where shops cater to members of the royal household.
B. PHYSICAL DESCRIPTION: The magnificent vaulted arcade is some 70.1 m long and 8.22 m wide. On either side there are 32 rooms still functioning as shops. These have completely disfigured the original character of the arcade with modification and hoardings in the centre of the arcade there is an octagonal court 9.1 m in diameter with an open roof to let in light and air. Traces of the old painted plaster can be seen at the south-east corner of the open court.
Materials Walls: Random rubble, plastered Vaulted
Roof : Brick
State of Preservation Fair. The upper portion is used to house army jawans; the shops have completely altered the original faade
Date A.D. 1639-48
Grading Archaeological Value A
Reference Hasan, Zafar, Vol1, p.9. No.10″
24. Removal of the Meena Bazaar would, therefore, be contrary to the intendment and the very purpose of the Ancient Monuments Act itself, which envisages the preservation of ancient and historic monuments in their pristine and historical ambiance. If it were to be decided that Connaught Place in Delhi should be preserved under the Ancient Monuments Act, would it not be absurd to clear out all the shops there from. The Statute expects the DG, ASI to embark on a repair and restoration drive, and not to mindlessly preserve status quo in a ghostly state. Before venturing to a consideration of other aspects of the case it is indeed remarkable that the ASI in its show Cause Notice dated 2.07.2003 after the recital pertaining to its proposal “to restore the entire Chatta Bazar area including the gateway complex to its original ambiance and structural manifestation in order to preserve the monument in the manner befitting an ancient monument/site” has recited the ipsi dixit that “it is perceived by us that you will cause obstruction in our efforts to enforce prohibitions narrated above but before taking any action it is considered desirable to give you an opportunity of hearing”. The Petitioners have repeatedly reiterated their alacrity to assist and participate in every effort to restore the Red Fort to its original glory; their resistance is only to their needless ejectment.
25. Let us briefly recount the sequence of events. There is no challenge that the premises in question were under the control of the erstwhile Notified Area Committee and stood transferred to the MCD on the coming to the force of the DMC Act. The Petitioners have been paying and the MCD has been receiving rents of the said shops. The learned Additional District Judge has recorded a finding to the effect that the “Petitioner was either Lessee or Licensee of the MCD”. This conclusion has not been questioned. Whilst reference has been repeatedly made to the decisions rendered by the Division Bench of this Court in PIL but on a perusal of all the Orders passed in the said PIL it is found that not a single Order directs the ejectment of the Petitioners from the Shops. The Minutes of the Meeting held on 28.5.2001 have already been reproduced above. DG, ASI had then stated that it was possible to declare the entire Red Fort as the protected monument. The entire Red Fort including the shops was declared as an ‘ancient monument’ in terms of the Notification dated 31.7.2002 issued under the Ancient Monuments Act. The Petitioners do not remonstrate against any action envisaged and/or permissible under that statute and rely on the finding of the learned Additional District Judge to the effect that on a “perusal of the above Act, thus, clearly reveals that it no where provides any power to the Director General of Archaeological Survey of India to evict a person from the premises in question”. The Petitioners’ stance is that they would indeed cooperate in the protection of the Red Fort. The eviction notice dated 14.9.2001 issued by the MCD has already been reproduced above. The Petitioners challenge the direction to vacate the shops and clarify that they have no objection to the order directing the stoppage of use of generators etc. Their Replies have already been reproduced (infra). Acting in pursuance to the Notification dated 31.7.2002 the ASI had issued a Show Cause Notice dated 10.12.2002 for removal of unauthorised occupants in the Chhatta Bazaar at Red Fort calling upon the Petitioners to Show Cause within seven days against their eviction there from by December, 2002. Therefore, irrefutably both the MCD as well as the ASI have issued Notices pertaining to the eviction of the Petitioners form the Chhatta Bazaar, creating the conundrum as to which Authority the ownership or control or belonging of the concerned property presently vests. The learned Additional District Judge has observed that the DG, ASI is not empowered by the Ancient Monuments Act to evict any person from the premises in question and has also observed that there is no basis to conclude that the ASI has initiated proper and legal proceedings of eviction against the Petitioners. These findings remain unchallenged by the Respondents. Mr. Sabharwal, Learned Counsel for the MCD, has submitted that the PP Act employs the words ‘belonging to’ rather than ‘owned by’. Assuming that there is a significant distinction between these two terms, no answer is forthcoming as to why the ASI should not be viewed as the Authority to whom the Red Fort ‘belongs’ after the Notification dated 31.7.2002 and that thereafter all vestiges of ownership/control or belonging that the MCD may have exercised stood transferred to the ASI. It brings into focus the powers of the Additional Commissioner (Revenue), Lands and Estate Department, MCD in issuing the Order dated 3.12.2002 cancelling the allotment of the shops with immediate effect, subsequent to the Notification dated 31.7.2002. The apparent awkwardness felt by the MCD and the ASI is evident from the fact that that the “Final” Notice dated 4.3.2002 had been issued by the MCD for eviction of the premises. The fact that there is no mention of the Red Fort Complex being notified under the Ancient Monuments Act is indeed remarkable. Reliance on the Minutes of the Meeting in the Chamber of the defense Secretary which is itself based on Orders passed in CWP No.3313/1999, none of which pertain to the shops in the Chhatta Bazaar/Meena Bazaar, would have the effect of severely wounding jeopardising the legality of the entire eviction proceedings.
26. It has already been mentioned that the Petitioners had filed a Writ Petition in this Court that was disposed of on 20.12.2002, with the direction that the dispossession of the Petitioners shall be done by the Respondent in accordance with law. Till that date, although notices had been issued by the MCD, and Replies have been filed thereto, no personal hearing had been granted to the Petitioners by the MCD. None of the essential characteristics of an adjudication, therefore, existed. It has nevertheless been mentioned on behalf of the Respondent that the Petitioners are barred from questioning the legality of the termination of the Lease/License of the shops. The argument on behalf of the Respondent is that the Petitioners could have assailed the decision to terminate the License/Lease and to order their eviction in the said Writ Petition. The objection is devoid of merit. In this regard it would be instructive to recall the following opinion of the Hon’ble Supreme Court in The Workmen of Cochin Port Trust Versus The Board of Trustees of the Cochin Port Trust and another, :-
“8. It is well-known that the doctrine of res judicata is codified in S. 11 of the Code of Civil Procedure but it is not exhaustive. Section 11 generally comes into play in relation to civil suits. But apart from the codified law the doctrine of res judicata or the principle of res judicata has been applied since long in various other kinds of proceedings and situations by Courts in England, India and other countries. The rule of constructive res judicata is engrafted in Explanation IV of S. 11 of the Code of Civil Procedure and in many other situations also principles not only of direct res judicata but of constructive res judicata are also applied. If by any judgment or order any matter in issue has been directly and explicitly decided the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceeding between the same parties. The principle of res judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implication; then also the principle of res judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defense or attack in a former proceedings but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it is deemed to have been constructively in issue and, therefore, is taken as decided.
9. In the instant case the award of the Tribunal, no doubt, was challenged in the special leave petition filed in this Court, on almost all grounds which were in the subsequent writ proceeding agitated in the High Court. There is no question, therefore, of applying the principles of constructive res judicata in this case. What is, however, to be seen is whether from the order dismissing the special leave petition in liming it can be inferred that all the matters agitated in the said petition were either explicitly or implicitly decided against the respondent. Indisputably nothing was expressly decided. The effect of a non-speaking order of dismissal without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to have decided that it was not a fit case where special leave should be granted. It may be due to several reasons. It may be one or more. It may also be that the merits of the award were taken into consideration and this Court felt that it did not require any interference. But since the order is not a speaking order, one finds it difficult to accept the argument put forward on behalf of the appellants that it must be deemed to have necessarily decided implicitly all the questions in relation to the merits of the award. A writ proceeding is a different proceeding. Whatever can be held to have been decided expressly, implicitly or even constructively while dismissing the special leave petition cannot be reopened. But the technical rule of res judicata, although a wholesome rule based upon public policy, cannot be stretched too far to bar the trial of identical issues in a separate proceedings merely on an uncertain assumption that the issues must have been decided. It is not safe to extend the principle of res judicata to such an extent so as to found it on mere guesswork. To illustrate our view point, we may take an example. Suppose a writ petition is filed in a High Court for grant of a writ of certiorari to challenge some order or decision on several grounds. If the Writ Petition is dismissed after contest by a speaking order obviously it will operate as res judicata in any other proceeding, such as, of suit, Art. 32 or Art. 136 directed from the same order or decision. If the Writ Petition is dismissed by a speaking order either at the threshold or after contest, say, only on the ground of laches or the availability of an alternative remedy, then another remedy open in law either by way of suit or any other proceeding obviously will not be barred on the principle of res judicata. Of course, a second writ petition on the same cause of action either filed in the same High Court or in another will not be maintainable because the dismissal of one petition will operate as a bar in the entertainment of another writ petition. Similarly even if one writ petition is dismissed in liming by a non-speaking one word order `dismissed’, another writ petition would not be maintainable because even the one word order, as we have indicated above, must necessarily be taken to have decided impliedly that the case is not a fit one for exercise of the writ jurisdiction of the High Court. Another writ petition from the same order or decision will not lie. But the position is substantially different when a writ petition is dismissed either at the threshold or after contest without expressing any opinion on the merits of the matter, then no merit can be deemed to have been necessarily and impliedly decided and any other remedy of suit or other proceeding will not be barred on the principle of res judicata”.
(underlining added)
27. An objection has been made by Learned Counsel for the Petitioners predicated on the ground that no reasons have been stated in the Notice under Section 4, 5 and 7 of the PP Act issued by the Estate Officer on 3.4.2003, apart from the cryptic and laconic caption – ‘unauthorised occupation’. No reasons could have been disclosed in the earlier proceedings, apart from those contained in the Show Cause Notice because a personal hearing was not granted. The extracted pronouncements of the Apex Court in Mohinder Singh Gill and Another vs. The Chief Election Commissioner, New Delhi and Others, , paragraph 8 of which readily come to mind:-
“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji () (at p. 18):
“Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself”.
Orders are not like old wine becoming better as they grow older.
A Caveat”
The views of my Learned Brother Justice Baddar Durrez Ahmed expressed in CWP 7771/2002 titled Ex. Havaldar Kailash Singh v. Union of India are in similar vein in that it was held that “if the grounds specified under Section 4 are different from the grounds on which an eviction order is passed, the eviction order cannot be sustained”. The Petitioners are not clairvoyants who can be expected to guess and anticipate the chain of thought and action contemplated by the Respondents.
28. The situation is worse confounded on recalling the Prayer in the Petition before the Estate Officer since it seeks “that the orders may be passed against the respondent in respect of Shop No.____ Red Fort Complex, Delhi in view of the direction of the Hon’ble High Court in Orders dated 20.12.2002 and Meeting held on 28-5-2001 in the Chamber of the defense Secretary, GOI”. On reading this prayer I had thought that the reference was to the directions passed by the Division Bench in the PIL, but it transpires that these prayers relate to the Order of my Learned Brother Kaul, J. who had considered it appropriate to dispose of the Petitioners writ petitions with the observations that they can be evicted only by adherence to due process of law. Any lurking doubt that may have persisted stood dispelled by the clarificatory directions passed on 17.1.2003. Nevertheless, Learned Counsel for the Respondents’ have vehemently repeated that the Petitioners are estopped, barred and foreclosed from challenging the legality of the termination of their lease/license. This argument is devoid of merit.
29. In respect of this ground of challenge, learned Counsel for the Respondents have also relied on a few Judgments in which such an assault has been thwarted for the reason that no prejudice to the defense had occasioned and/or that the Petitioners were well aware of the grounds on which the action of the Respondents was predicated. In my opinion, if this approach is adopted by the Respondents it would be most unfair, if not incongruent, for them to raise the technical objection of constructive res judicata or estoppel. The Petitioners could not have challenged an action or stance which had not been clearly and distinctly disclosed by the time of their filing the Writ Petition in December, 2003, which petition had been disposed of by my Ld. Brother Kaul, J. The Respondents can only be seen as approbating and reprobating. The Petitioners were not afforded an opportunity of being heard and the MCD Order dated 3.12.2002 does not contain any reason for rejecting the Petitioners’ response to the Show Cause Notice. The legal principles articulated in Order II Rule 2 of the CPC would also not operate as a bar to entertaining the present writ petitions. Rules of procedure, it has been so often observed, are merely the handmaidens of justice. All these procedural restraints are the product of the salutary and pragmatic compulsions in mandating that all questions and disputes should be ventilated in one litigation; otherwise multiplicity of proceedings are bound to occur and there is every likelihood of conflicting judgments/orders being pronounced. These considerations do not arise in view of the explicit Orders of my Ld. Brother Kaul, J. containing a positive direction to the Respondents that the dispossession of the Petitioners shall be done in accordance with law. It ought not to be forgotten that the Archaeological Survey of India had already issued notices to the Petitioners claiming control of the Shops independent of the MCD. The burden of proving or establishing the legal propriety of the eviction process rests on the Respondents. This must include the basic question of whether the leasehold rights of a citizen can be determined by the Authorities in the manner exemplified in these petitions, and that too without compliance with the foremost principle of natural justice – audi alteram partem (hear the other side or no one shall be condemned unheard). At the fulcrum of the dispute the issue which remains is whether there was a proper adjudication of all the aspects of the case.
30. A question remarkably similar to that which has arisen in the present cases came up before the Hon’ble Supreme Court in M/s. Wire-Netting Stores and Another vs. The Delhi Development Authority and Others, . This is how the Apex Court dealt with the issue:
“8. Two notices are referred to as having been issued by the Authority to the Stores. One of them is dated September 23, 1967 which only called upon the stores to pay damages under Section 7(2) of the Eviction Act. It gave them opportunity to show cause why an order requiring them to pay the said damages should not be made. The other notice is one dated April 12, 1963 by which it is said that the lease of the Stores was terminated from July 31, 1963. This notice has not been filed by either party. We gave opportunity to the Delhi Development Authority to let us see the notice which was issued so that we might be able to determine whether it was in accordance with the Act under which it was given. No copy of the notice was produced before us. It appears, however, that a notice had been given but what its contents were it is difficult to say. The petitioners have quoted a paragraph from this notice in one of their affidavits. It reads as follows:
“In case of your failure to deliver possession by the aforesaid date, your occupation would be wrongful and unauthorised and you shall be liable for damages after that date and proceedings for taking possession and recovery of damages will be taken under the provisions of the Public Premises (Eviction of Unauthorised Occupants), Act 1958”.
In one of the affidavits filed on behalf of the authority it is stated as follows:
“I also submit that it is not necessary to refer to sections of the Public Premises (Eviction of Unauthorised Occupants) Act as done by the Petitioner since the notice clearly mentioned that re-entry will be effected by the authorities if the conditions of the lease and the notice are not complied with”.
Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act reads as follows:
“4. Issue of notice to show cause against order of eviction.
(1) If the estate officer is of opinion that any person are in unauthorised occupation of any public premises and that they should be evicted, the estate officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made.
(2) The notice shall-
(a) specify the grounds on which the order of eviction is proposed to be made; and
(b) require all persons concerned, that is to say, all persons who are, or may be, in occupation of, or claim interest in, the public premises, to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than then days from the date of issue thereof.
(3) The estate officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned.
(4) Where the estate officer knows or has reasons to believe that any persons are in occupation of the public premises, then, without prejudice to the provisions of sub-section (3), he shall cause a copy of the notice to be served on every such person by post or by delivering or tendering it to that person or in such other manner as may be prescribed.
It is only after the procedure in this section is complied with that the eviction of unauthorised occupants under Section 5 can take place. It appears that the Estate Officer did not follow the procedure of Section 4, nor did he give a notice which would comply with its terms and that is the reason why the notice has not been produced before us for our perusal. The petitioners said that they had mislaid the notice and could not produce a copy which probably is also not true. In any case, both sides seem to have suppressed the notice from the Court. In this view of the matter we can hold that the procedure laid down by Section 4 was not followed, for it was the burden of the authority to establish to our satisfaction that they were acting in accordance with the law. In any case, no opportunity appears to have been given to the petitioners for showing cause against the proposed eviction. This is contrary not only to the law laid down but also to the principles of natural justice. In these circumstances, we have no option but to allow the petition. The action of the Authority appears to have been most high-handed on the facts of the case as brought out before us. If the Authority wishes to evict the petitions from the occupation of these premises it behoved them to follow strictly the procedure laid down for their action. It is a matter of great regret that authorities constituted to take such drastic steps without recourse to civil court should be so oblivious to their own duties as laid down in the Act. We accordingly allow the petition and order the restoration of the premises to the petitioners and return of all the machinery and other goods and parts of their factory which have been seized from them.”
The following paragraph from Ramchandra Keshav Adke (Dead) by LRs and Others vs. Govind Jyoti Chavare and Others, is both topical and instructive:-
“25. A century ago, in Taylor v. Taylor, Jassel, M.R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council, in Nazir Ahmed v. Emperor and later by this Court in several cases, to a magistrate making a record under Sections 164 and 364 of the Code of Criminal Procedure, 1898. This rule squarely applies “where, indeed, the whole aim and object of the Legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other”. The rule will be attracted with full force in the present case, because non-verification of the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of the Legislature to prohibit the verification of the surrender in a manner other than the one prescribed, is implied in these provisions. Failure to comply with these mandatory provisions, therefore, had vitiated the surrender and rendered it non est for the purpose of Section 5(3) (b)”.
31. Since the PP Act envisages that seven clear days must be granted this must be implemented in punctilious and minute detail otherwise the entire action would be held as non est and inefficacious. It cannot be remedied by the subsequent grant of accommodation and enlargement of time. Indeed, there is much substance in the Petitioner’s reliance on the observations of the Division Bench in Dr. Yash Paul Gupta v. Dr. S.S. Anand and others, in the peculiar and singular circumstances of the case. The decision to terminate the leases/licenses had been predicated on the Orders passed by the Division Bench in the PIL, and on the need to preserve the historic Bazaar and thereafter on the Orders of the Single Judge passed on 20.12.2002. It is in this concatenation of events that the Authorities had acted, and not on their unbridled power to terminate the license/lease. The State does not act whimsically, capriciously or with mala fides and it is thus not merely speculative that had these factors not been presented in the forefront, the termination may not have received the consent of the Officers. The Urban Development & Poverty Alleviation Ministry Resolution dated 30.5.2002 has already been reproduced, and it would suffice to redirect attention to the sentences underlined thereof.
32. The Petitioners have indefatigably assailed the legality of the termination notices, but this aspect of the case has been glossed over by the Estate Officer and has not been dealt with in the detail it demanded and deserved by the learned Additional District Judge. Where a mere license had been created, as in Corporation of Calicut v. K. Sreenivasan, , the Hon’ble Supreme Court had observed that even if the unauthorised occupant had been incorrectly ejected, he cannot claim restitution of possession. In the present case the Respondents have themselves pleaded that the Petitioners were licensees/Lesses. A recollection of the last sentence of paragraph 30 of Ashoka Marketing’s case (supra) will make the issuance of a notice determining the tendency of the Petitioners essential, and the sine qua non for any action under the PP Act. It was to be expected, therefore, that the manner and method of termination of their occupancy rights would have been dictated by the Transfer of Property Act, mandating the issuance of a notice to quit as envisaged in Section 106 thereof. This argument was not advanced and I was ambivalent whether to leave the discussion in animated suspension. The Notice issued by the Estate Officer cryptically speaks only of ‘unauthorised occupation’ and its tautological infirmity has been made light of and explained away by the Learned Counsel for the Respondents by resort to the decision of the Division Bench of this Court in Dr. K.R.K. Talwar vs. Union of India and Another, where it has been observed that the “definition of ‘unauthorised occupation’ in S.2(e) of the Act is the occupation by any person of the public premises after the authority under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. The authority of the occupation of Dr. Talwar was the original allotment or lease granted to him. When this lease was terminated or allotment was cancelled, that authority disappeared and he became a person in unauthorised occupation of the premises. The non-payment of rent by the petitioner for a long time was an overwhelmingly sufficient reason for the termination of the lease and the cancellation of the allotment. The petitioner’s counsel contended that the real reason for such action was the suspicion of the authorities that the premises had been sublet by Dr. Talwar to Shri Batra. The Lesser or the allotter has an absolute right to terminate the lease or cancel the allotment. It is not permissible in the course of judicial review to probe into the reasons for such action. The justifiability of such an action is not open to judicial review at all. Moreover, the non-payment of rent for a long time was a complete justification for such an action”.
33. Even stronger reliance has been placed on behalf of the Respondents on the opinion of a learned Single Judge of this Court in M/s. Safari Airways vs. The Estate Officer and others, . In that case it had been held that it is not necessary for the Estate Officer to disclose the material on which the decision that the Petitioner was an unauthorised person was predicated; that the show cause notice gives full opportunity to the occupant to dispute this opinion; that a writ petition challenging the validity of formation of opinion by the Estate Officer is not maintainable at the stage of notice (which demolishes the Respondents’ submission of the non-assailability of the termination notice post the disposal of the writ petitions by my Ld Brother Kaul, J.); that the Estate Officer discharges quasi judicial functions and must adhere to the principles of natural justice; and that his decision is subject to a statutory appeal. The judgment is of little assistance to the Respondents and would further the cause of the Petitioners as would also the decision of the same learned Judge in Indo Amex Agencies (Pvt.) Limited vs. Life Insurance Corporation of India, AIR 1983 Delhi 409. My learned Brother had opined that the use of the expression ‘authority to occupy the premises’ is very significant. The Ancient Monuments Act does not use the term tenancy or lease. So the tenant becomes an occupant with authority. If he has no authority to occupy the premises either because he never had any, or though he had authority, such as a lease, his authority to occupy the premises has expired or has since been determined for any reason whatsoever, he can be evicted from the public premises. But the premises must be public premises before all this can happen. The words that authority can be “determined for any reason whatsoever” are ample words of conferment. They give power in the most ample terms. They are clearly suggestive of the banishment of the Rent Act”. The facts of the present case are so convoluted as to make it imperative for the Respondents to clearly state their case and not leave it to conjectures. Firstly, do the shops ‘belong’ to the MCD/MoD or to the ASI who had issued notices similar to those of the MCD/MoD and had intervened in the proceedings claiming ownership thereof. Secondly, the Respondents should be forthright in mentioning the reasons for terminating the leases/licenses as it is nebulous whether it is predicated on the Orders in the PIL or based on the decision arrived at the Meeting held in the office of the defense Secretary or founded on the need to hand over the shops for their preservation to the ASI in which case it is at least arguable that they would ‘belong’ to the ASI and not the MCD/MoD. The question that arises is also why the Respondents consider that the eviction of the Petitioner from the shops is essential for their preservation as envisaged under the Ancient Monuments Act. Since it has been held by the Apex Court that the summary procedure established under the Public Premises Act regime is not ultra vires, the Estate Officer must act with full responsibility in granting a meaningful and not perfunctory hearing to all those persons likely to be ejected. The pronouncement in M. Mohamed vs. Union of India and others, does not dilute this imperative. The Division Bench held that -“Assuming we are wrong in our aforesaid conclusions, we are of the view that there is no reason why the present premises should not be fall within the expression “belonging to the Central Government” in the definition of “public premises” in S.2(e) of the said Act. There is no doubt that the expression “belonging to” does not mean the same thing as “owned by”. The two expressions have two different connotations. The expression “belonging to” will take within its sweep not only ownership but also rights lesser than that of ownership. It must be remembered in this connection that the expressions used in the statute are to be interpreted and given meaning in the context in which they are used. The present Act has been placed on the statute book to give a summary remedy to the Government to evict persons in occupation of public premises to obviate the long ordeal of a trial in a Civil Court and of further proceedings thereafter. Hence a wider meaning will have to be given to the expressions used in the Ancient Monuments Act for defining the concept of public premises. So viewed there is no reason why the premises of which possession for the time being vests in the Government and which are allotted by the Government to others while so in possession should not be held to the public premises”. It indubitably appears that the total control of the Red Fort has been delivered into the hands of the ASI from a period anterior to the commencement of the eviction proceedings by the MCD/MoD. The preponderant opinion must be that the Red Fort belonged to the ASI at the material time and not to the MCD. This is also how the ASI assessed the situation. The eviction process initiated and continued by the MCD is thus without jurisdiction.
34. In my opinion the extracted opinion of the Division Bench in Dr. Yash’s case (supra) should be followed to the teeth:-
“6. Sub-section (4) makes it obligatory to serve a copy of the notice issued under sub-s. (3) of S.4 on all such persons whom he knows or has reason to believe to be in possession of the public premises. This copy shall be served upon every such person either by post or by delivering or tendering it to that person, or in such other manner as may be prescribed under Rules. The expression “without prejudice to the provisions of sub-s. (3)” makes it abundantly clear that mere failure to serve such a copy on any such person will not in any manner render the service of the notice issued under sub-s. (3) ineffective or invalid. The notice must, however, specify the ground or grounds on which the order of eviction is proposed to be made, and in no case shall the person against whom such a notice is issued be called upon to show cause against the eviction earlier than 10 days from the date the notice has been issued. A person has two options open to him after the notice is served upon him. He may either vacate the premises in case he is convinced that his occupation of the premises is unauthorised. This may very well save him from the tedium and expense of the litigation which he may have to face before the Estates Officer. Where, however, he considers either that the premises from which he is sought to be evicted is not a public premises as defined in S. 2 of the Eviction Act, or that his occupation of the public premises is not unauthorised, he may resist the eviction proceedings. Where he chooses to face the proposed eviction proceedings, equity, good conscience and fair play demand that he should have a reasonable notice of the grounds upon which his eviction is sought, as obviously he would not be in a position to put up his defense without actually knowing what precisely is the case against him. That is why Cl. (a) of sub-s. (2) of S. 4 contains a mandate to the Estates Officer, that he shall specify the grounds on which the order of eviction is proposed to be made. In the instant case a copy of the notice given to the appellant has also been served upon him. There is, however, a significant variance between the copy supplied to the appellant and its original which is on the file of the Estates Officer, inasmuch as no ground whatsoever has been mentioned in the copy, whereas its original contains the ground which is:
“You have occupied Govt. Quarter unauthorisedly.”
Clearly, therefore, it cannot be said that the copy supplied to the appellant was indeed a copy of the notice served upon him under sub-section (3) of S.4. Why the ground of eviction was withheld from the appellant in serving the aforesaid copy on him is not quite understandable to us, nor any explanation has been tendered by the Estates Officer for this glaring omission. Whether it was a bona fide accidental slip, or it was a calculated design to keep the appellant in the dark may be anybody’s guess. Be that as it may, as we have already opined, that even non-service of such a copy would not render the service of notice under sub-s. (3) invalid, we shall confine ourselves to the validity of the original notice served upon the appellant in terms of sub-s. (3).
7. The only ground of eviction which the notice specifies is, that the appellant occupied the Govt. quarter mentioned in the notice unauthorisedly. This statement in our opinion cannot be characterised as a ground of eviction by any stretch of logic. This may be at the most an inference of unauthorised occupation based upon some ground other than the fact that the appellant was an unauthorised occupant of the public premises. How his occupation of the premises which at its inception was admittedly lawful became unauthorised, must have been the outcome of some supervening circumstances. What were those supervening circumstances, the appellant had every right to know, as it would be those circumstances alone which would constitute the ground for his eviction within the meaning of cl. (a) of sub-s. (2). How could it be said, that merely telling the appellant that he was an unauthorised occupant because he occupied the Govt. quarter unauthorisedly tantamounted to specifying the grounds on which his eviction was proposed? Such a statement in the notice could hardly constitute a ground as already observed.
8. The learned single Judge, it appears, was also conscious of this infirmity in the notice. This defect was, however, considered by him as totally inconsequential as according to him, the appellant was otherwise having full knowledge of the grounds upon which his eviction was proposed. In other words, the learned Judge was of the opinion, that where a person proceeded against under the Eviction Act was otherwise in the know of the grounds upon which his eviction was proposed, mere failure to mention those grounds in the notice served upon him under sub-sec. (3) was immaterial, which did not render the notice invalid. We are unable to fall in line with the learned single Judge in taking this view of sub-s. (2). The provisions of this sub-section are mandatory and not merely directory in character, for the simple reasons, that failure to make an effective reply to the notice for eviction as a consequence of absence or even vagueness of the grounds of eviction to be specified in the notice, may result in loss of the occupation of the premises. Furthermore, by construing cl. (a) of sub-s. (2) in such a manner, we would be indeed reading the words “unless otherwise known to him” in it which in fact are not there. …..”
35. It has been vehemently argued that the Notice under Sections 4, 5 and 7 of the PP Act is liable to be struck down as it contravenes the provisions of Section 4 itself. These Notices have been issued to each of the Petitioners on sundry dates but in all the cases the period permitted for ‘showing cause’ was less than seven days as mandated by Section 4(2)(b)(i) of the PP Act. This statutory discrepancy or deficiency is sought to be explained away by drawing attention to the repeated adjournments allowed to the Petitioners. These have been reproduced in detail by the learned Additional District Judge in the impugned Judgment, but on its perusal it is manifestly clear that the Estate Officer did not grant an adjournment for a duration in excess of the mandatory period of seven days prescribed by the statute itself. The Estate Officer ought not to have forgotten that he was a creation of that statute and derived each and every power for it. Almost a century ago, in Nazir Ahmad vs. King Emperor, it has been enunciated that it is not open to follow any procedure other than that laid down with minute particularity in the provision itself. The Notice was ultra vires and is liable to be struck down on this short ground. What is disturbing is that even after this error was pointed out to the Estate Officer, in his haste to conclude the case, he did not even attempt to make statutory amends by adjourning the hearings for the period stipulated by the Section but instead postponed the case for a couple of days at a time. The attitudinal fault has manifested itself in other aspects of the case including the resolute refusal of the Estate Officer to allow sufficient opportunity to the Petitioners to lead evidence. In India, every lawyer nay every person acquainted or associated with law is aware of the adage that justice hurried is justice buried. The anxiety of the Estate Officer to finish the case with athletic speed can be expected, but it must be deprecated when speed clouds jural attention. Both in their Reply to the Notice issued by the Estate Officer as well as in their Appeal before the learned Additional District Judge the Petitioners’ prayer for an opportunity of recording evidence has been ignored. Summary procedure cannot pardon the failure to grant adequate opportunity to defend. The Estate Officer as well as the learned Additional District Judge could not but have been aware that the present case was wholly dissimilar to the run of the mill cases of a licensee overstaying in government residential accommodation. Cases of such genre cannot constitute precedents for the complex question raised in the present case.
36. The Hon’ble Supreme Court has always remained dynamically abreast of societal changes and demands. With the ever increasing participation of the Government in non-sovereign activities and its entry into the commercial field, the watershed between State immunity is getting washed away year upon year. There has been numerous litigation on the question of whether judicial review is permissible under Article 226 of the Constitution where the action of the State is in dispute is purely of commercial character. An analysis of the precedents on this interesting nodus will disclose that the foundation for jural interference in this aspect of State activity has been cemented in Kumari Shrilekha Vidyarthi and Others versus State of U.P. and Others, where it has been observed as follows:-
“22. There is an obvious difference in the contracts between private parties and contracts to which the State is a party. Private parties are concerned only with their personal interest whereas the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest. The impact of every State action is also on public interest. This factor alone is sufficient to import at least the minimal requirements of public law obligations and impress with this character the contracts made by the State or its instrumentality. It is a different matter that the scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes. However, to the extent, challenge is made on the ground of violation of Article 14 by alleging that the impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its obligation to comply with the basic requirements of Article 14. To this extent, the obligation is of a public character invariably in every case irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the guarantee under Article 14 of non-arbitrariness at the hands of the State in any of its actions.
……
35. It is now too well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in the mind”.
This position has been reiterated in Style (Dress Land) versus Union Territory, Chandigarh and Another, in which, after adverting to Shrilekha’s case (supra) the Apex Court observed that ” every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 and basic to the rules of law, the system which governs us, arbitrariness being the negation of the rule of law. Non-arbitrariness, being a necessary concomitant of the rule of law, it is imperative that all actions of every public functionary in whatever sphere must be guided by reason and not humour, whim, caprice or personal predilections of the persons entrusted with the task on behalf of the State and exercise of all powers must be for public good instead of being an abuse of power. Action of renewability should be gauged not on the nature of function but public nature of the body exercising that function and such action shall be open to judicial review even if it pertains to the contractual field. The State action which is not informed by reason cannot be protected as it would be easy for the citizens to question such an action as being arbitrary”. I shall avoid referring to plethora of precedents on this point. But suffice it to refer to three other decisions where the same principle has been enunciated. In Marfatia’s case (supra) the Hon’ble Supreme Court held that every Authority must not act arbitrarily even in contractual matters and its action must be motivated only by public interest. The Appellant was the Tenant under the Respondent and in the context of an allegation of partiality it was held that a public Authority is not expected to behave like a private landlord, and if its actions are not for public benefit or for a public purpose it would be liable to be struck down in judicial review. This approach manifests itself again in Mahabir Auto Stores and others v. Indian Oil Corporation and others, , in which the Petitioner challenged the decision of the Respondent by which the latter denied and discontinued the supply of sundry lubricants even though the relationship was not covered by a formal contract. The Apex Court took note of the fact that the Indian Oil Corporation had attempted to bring to an end a relationship which had continued for almost two decades. The Court considered it imperative that the procedure followed by IOC should be reasonable, fair and just and that the Appellant ought to have been taken into confidence before terminating the relationship. The supply arrangement was ordered to continue till such time as the Company had concluded a fresh consideration. In Harbanslal Sahnia and another v. Indian Oil Corpn. Ltd. and others, , the Petitioners’ dealership in petroleum products, which was their bread and butter, came to be terminated for irrelevant and non-existent causes, and in these circumstances the Apex Court did not agree with the High Court that the existence of an arbitration clause precluded the High Court from exercising its extraordinary jurisdiction under Article 226 of the Constitution. It was opined that “in spite of availability of alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged”. Although the Respondents have not even obliquely challenged the exercise of the extraordinary jurisdiction of this Court in these proceedings, it is of significance to clarify that even at the threshold of the ejectment process the MCD ought not to have resorted to the provisions of the PP Act. I am conscious of the fact that these decisions enunciate that judicial review is permissible even in contractual relationship. However, Marfatia’s case (supra) was concerned with landlord tenant relationship and even in such circumstances the Authority had to act in a fair manner which could be reviewed by the Court. It is, therefore, too late in the day to be allowed to assert the unmitigated and unbridled power of the State to put even commercial relationships asunder. In the petitions before me the relationship spans not just two decades but in some cases over a century. It is not possible for the State to terminate this relationship without giving a full and meaningful hearing to the affected parties. It is insufficient to merely call upon the Petitioner to show cause against the proposed decision and thereafter take the decision without granting them a personal hearing. The jurisdiction of the Estate Officer, acting under the PP Act, commences after the relationship has been put to an end, thereby reducing the Petitioners to the status of an unauthorised occupants. The Estate Officer did not and could not have gone into the legal propriety of terminating the tenancies of the Petitioners. The Respondents have acted in extreme haste and have caused miscarriage of justice not only in failing to provide an opportunity to the Petitioners to be heard and to make good the sundry grounds raised by them in their Replies but also in not addressing each and every objection and contention raised by the Petitioners. It is not just prudent but it is also essential that the course adopted in the Express Newspapers case (supra) should have been followed and regular civil proceedings should have been resorted to, keeping in perspective the multifaceted defense of the Petitioners. The factual matrix pertaining to the eight (8) shops under the lease/license of the MoD are similar in essential content to those of the MCD and are, therefore, dealt with and decided on parity with the other shops. It has already been seen that the actions of the State cannot violate Article 14 of the Constitution, cannot be biased or partial to any particular person and cannot suffer from the vice of mala fides and capriciousness. I find it necessary to produce the following photograph published in Times of India to show that while great haste has been displayed in evicting the Petitioners, the ASI has turned a blind eye to the damage caused to this Monument by the State itself.
While the above may disclose a dereliction of duty on the part of the ASI it would not have any direct bearing on the cases for the eviction of the Petitioners. The Petitioners have also placed several photographs on record to show that the ASI has not taken similar action in respect of several other monuments of historical importance. That will, per se, also not render the present action illegal since the Respondents must make a start at some point and place. In the course of hearings, however, the Petitioners have vehemently contended that the ASI has granted permission to the ITDC to open a Restaurant within the precincts of the Red Fort. Since the shops in the Chhatta Bazaar are an integral part of the Red Fort it must reasonably be presumed that after the ejectment of the Petitioners these shops will be put to use by some other persons. This would amount to discriminatory action on behalf of the State.
37. If the following Brochure or advertisement/trade material published by the ITDC is perused it will show that while the Petitioners have been prohibited from cooking on the premises, catering activity on a wide scale has been allowed to ITDC. Ironically this Brochure mentions the existence of the Meena Bazaar. It is also apparent that a wide range of souvenir and gift items are also intended to be sold by the ITDC.
38. In these circumstances the writ petitions are allowed and the impugned Order of eviction passed by the Estate Officer and affirmed by the ADJ is set aside. This decision could have been arrived at without alluding to the proceedings under the PP Act, by simply exercising the extraordinary jurisdiction of this Court under Article 226 of the Constitution. However, it is necessary to record the opinion that wherever complicated questions arise, the Authorities should refrain from initiating proceedings under the PP Act and should instead take recourse to the ordinary civil proceedings. The MCD should have terminated the lease in accordance with law, since the Petitioners possess the legal attributes of a tenant. The MCD cannot be a judge in its own cause and adjudicate upon the legality of the notice. Therefore the filing of a civil suit is necessary. Even if a notice to quit under Section 106 of the Transfer of Property Act is not necessary, the decision to eject the Petitioners after such a long period must be taken after granting a meaningful opportunity to the Petitioners of being fully heard. The decision which would follow should clearly disclose the reasons which have weighed in the mind of the Authority in terminating the tenancy. Failure to adhere to the essentials of audi alteram partem render the decision to terminate the lease as legally unsustainable. The Estate Officer must assume that the lease of the Petitioners has been legally terminated since he is precluded from adjudicating on this issue. Otherwise he could not have come to the conclusion that the Petitioners had become unauthorised occupants. He could also not have gone into this question for the reason that his jurisdiction commences and continues on the premise that the termination notice and the subsequent decisions legally taken. On the showing of both the MCD as well as ASI the Red Fort had ceased to `belong` to the MCD and came to `belong` to ASI from the date of Notification. The Ancient Monuments Act does not make it imperative for the ejectment of all occupants. The said Act envisages the preservation of an ancient monuments and, therefore, empowers the ASI to prescribe conditions which must be adhered to by the occupants. The occupants will render themselves liable to prosecution in case of their failure to comply with any of the conditions imposed by the ASI. Only in very extreme cases the ASI can take over the ownership of the monument. In the circumstances of the case even if the ASI were to have initiated and concluded the eviction proceedings it would have been non est and illegal. Furthermore, the Estate Officer as also the Learned ADJ ought to have granted sufficient opportunity to the Petitioners to lead evidence to prove their defense. Article 14 has been seriously inferacted for the reason that whilst the Petitioners have been ordered to be evicted from the premises other persons such as the ITDC etc. have been encouraged and permitted to commence commercial activities in the Red Fort itself. The great haste of the Respondents has brought about a grave miscarriage of justice.
39. For all these manifold reasons the writ petitions are allowed with no order as to costs.
40. In view of the above, all the pending applications are also disposed of accordingly.