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Safari Airways Vs. the Estate Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Writ Petition No. 54 of 1982
Judge
Reported inAIR1983Delhi347; 1983(4)DRJ279
ActsPublic Premises (Eviction of Unanthorised Occupants) Act, 1971 - Sections 4(1); Constitution of India - Article 226
AppellantSafari Airways
RespondentThe Estate Officer and ors.
Advocates: M.C. Bhandare,; G.B. Sathe,; Madan Lokur,;
Excerpt:
public premises (eviction of unauthorised occupants) act, 1971 - under section 4(1). a. while issuing notice under section 4(1) of the act the estate officer is not required to disclose the material on which he has formed his opinion. constitution of india - article 226. b. writ petition under article 226 of the constitution cannot be filed without availing the remedy of appeal provided under the act. - - i have come to the conclusion that the notice in question is perfectly valid because it conforms to the requirement of section 4(1) of the act and follows the form prescribed in the rules. if a man is to form an opinion he must form it himself on such reasons and grounds as seem good to him. those reasons may be good or bad......only question in this writ petition about the validity of the notice dated 19.3.1982 issued by the estate officer is delhi airport palam, respondent no. 1 to the petitioner, m/s safari airway.(2) these are the facts. on 22.10.71 the president of india execute a license in favor of the petitioner, m/s safari airways) for a period of one year. safari airways were allowed to occupy a plot of land at delhi airport measuring approximately 82 sq. yards on a certain annual fee. this license expired on 31.10.72 no written license was executed thereafter.(3) on 19.3.82 the estate officer of the international airport authority of india at delhi airport, palam issued to safari airways a notice under section 4(1) of the public premises (eviction of unauthorised occupants) act, 1971 (the act). this.....
Judgment:

Avadh Behari Rohaigi, J.

(1) The only question in this writ petition about the validity of the notice dated 19.3.1982 issued by the Estate Officer is Delhi Airport Palam, respondent No. 1 to the petitioner, M/s Safari Airway.

(2) These are the facts. On 22.10.71 the President of India execute a license in favor of the petitioner, M/s Safari Airways) for a period of one year. Safari Airways Were allowed to occupy a plot of land at Delhi Airport measuring approximately 82 sq. yards on a certain annual fee. This license expired on 31.10.72 No written license was executed thereafter.

(3) On 19.3.82 the Estate Officer of the International Airport Authority of India at Delhi Airport, Palam issued to Safari Airways a notice under section 4(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (the Act). This notice reads as under : 280 Notice Office Of The Estate Officer Delhi AIRPORT: Palam, New DELHI-110010. No : AAD/EO-4(81)/5208-11 19th March 1982 To M/s Safari Airways, (A Division of J.K. Chemicals Ltd.), J.K. Building, N. Morarjee Marg, Ballard Estate, Bombay-4000038 Whereas I, the undersigned, am of the opinion, on the grounds specified below, that you are in unauthorised occupation .of the Public Premises mentioned in the Schedule below that you should be evicted from the said premises : Grounds i) that your occupation of the premises referred to in schedule is without any specific permission, contract and/or license. The license granted to you for these premises has expired on 21.10.72. ii) It has been stated by you that M/s Air Works (India) are in possession of the premises with your consent, thus you have sublet;

'ASSIGNEDand have parted with the possession of the premises. iii) The premises are required by the International Airports Authority of India for development of the airport. Now thereforee, in pursuance of sub-section I of section

(4) It is the validity of this notice that Safari Airways challenge in this writ petition. The ground of challenge is that this notice does not disclose the material on which the Estate Officer formed the opinion that Safari Airways are in unauthorised occupation of the pre rises. In support of his contention Mr. Bhandare, counsel for the petitioner, referred me to Barium Chemicals v Company Law Board, : [1967]1SCR898 .

(5) The notice in question was issued under section 4(1) of the Act. Section 4 says: 'Issue of notice to show cause against order of eviction- 281 1. If the Estate Officer is of opinion that any perons 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 ten 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 -cost or by delivering it to that person or in such other manner as may be prescribed.' 5. The expression 'unauthorised occupation' is defined in section 2(g) of the Act in these terms :

'(G)'Unauthorised occupation', in relation to any 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 premises has expired or has been determined for any reason whatsoever'.

(6) Under the Act the form of notice is prescribed. It is not in dispute that the notice dated 19-3-82 conforms to this form. All that is argued is that the Estate Officer must disclose to the petitioners the material on which he has formed his opinion that Safari Airways are in unauthorised occupation. This argument, in my opinion, is without merit. There are several answers to it. The Supreme Court has upheld the validity of the Act. Rules have been framed under the Act. The Rules prescribe the form of notice. The form is, thereforee, a statutory form. Form 'A' nowhere prescribes that the Estate Officer must disclose to the unauthorised occupant the material on which he has formed his opinion about his unauthorised occupation. The owner of the land gives information to the Estate Officer that such and such person is in occupation of a public premises without any authority for such occupation. On the information so given to him the Estate Officer can form his opinion,

(7) The General Manager of the Palam Airport is also the estate Officer in the present case. The International Airport Authority has appointed him to administer Palam Airport. The land of the airport Vests in the Airport Authority. The international Airports are governed by the International Airports Authority Act, 1971. The estate Officer as General Manager has access to the files. He knows that Safair Airways were granted a license in 1971 for one year and that license has since expired. Becuase no new license in writing has been executed thereafter in their favor, the Airport Authority claims that Safari Airways are in unauthorised occupation. He further knows that Safari Airways are not in actual occupation of the premises. It is the Air Works India, respondent No. 4, who are in actual fact in occupation of the premises. This is based on the information Supplied by the petitioner itself. This is the second ground in the notice that Safari Airways have sublet, assigned and parted with the possession of the premises in favor of Air Works India. The General Manager can also gather this information by visiting the place on his daily round. Lastly, the ground given in the notice is that the premises are required by the International Airport Authority of India for the development of the airport.

(8) I am not saying whether Safari Airways are an unauthorised occupant or not. Nor do I say whether these grounds exist in fact or not. On the merits of the question that Safari Airways are in unauthorised occupation, I say nothing because this is the question to be decided by the Estate; Officer. Only the validity of the notice is in question before me. I do not find any infirmity in the notice. The notice is in the prescribed form. The offices of the General Manager and the Estate Officer are united in the same parson and, thereforee, he can from an opinion that a certain person is in unauthorised occupation of a public premises and that he should be evicted. He will then issue notice under section 4(1) in his capacity of an estate officer. I have come to the conclusion that the notice in question is perfectly valid because it conforms to the requirement of section 4(1) of the Act and follows the form prescribed in the Rules. It is for Safari Airways to contest the grounds on which they are sought to be evicted and to prove before the Estate Officer that they are not liable to be evicted because they are not unauthorised occupants. I, thereforee, reject the argument that the Estate Officer must disclose to Safari Airways the material on which he formed his opinion.

(9) There is yet another answer to the argument raised before me The person to whom the notice is issued under section 4(1) of the Act has a right to contest the opinion formed by the Estate Officer in the course of the hearing for which the show cause notice is given to him. Section 4(1) uses the word 'show cause'. Section 4(2)(b) says that 'all persons who are, or may be, in occupation of, or claim interest in, the public premises' can/show cause' against the proposed order of eviction. The Estate Officer is a quasi-judicial authority. thereforee he is bound to observe the principles of natural justice. Section 4 says that he shall issue a notice to the persons in contemplated by the? section. But here the matter is entirely different. No eviction order is passed Unless and until a show cause notice is issued to the occupant of a public premises and unless he is heard. The question of formation of opinion by the Estate Officer and of the nature of the material before him loses all importance in view of the fact that the show cause notice gives a full opportunity to the occupant to dispute the opinion, the facts and allegations against him, in the inquiry which follows the service of notice. In my opinion, the petit ioners are not entitled to ask this court to quash the notice or for that matter the proceedings themselves at their very threshold. The reason is that the notice gives them an opportunity to show cause against the proposed order of eviction.

(10) Under section 5 the Estate Officer passes an order of eviction after (i) considering the cause shown by any person in pursuance of a notice under see. 4, (ii) any evidence produced in support of the same and (iii) after giving him a reasonable opportunity of being heard. So 'opinion' is different from 'order'. Opinion is formed under section 4. Order is made under section 5. As I have said, the opinion of the Estate Officer is itself the subject-matter of enquiry resulting in an order of eviction or dismissal of the case.

(11) Before issuing notice under section 4(1) the Estate Officer has to form a tentative opinion. Opinion meals estimation, not decision. If a man is to form an opinion he must form it himself on such reasons and grounds as seem good to him. Those reasons may be good or bad. But he does not arrive at a definite conclusion because he has not heard the affected party so far. There are no counter-allegations before him at the stage of the formation of the opinion. Invested as he is with quasi-judicial power he has to follow the principles of natural justice. He must hear the occupant and decide whether he . is there on the premises with or without authority. Then he arrives at a decision And his decision is appealable under section 9 of the Act to the district judge. The appeal is ajudicial re -hearing. This petition ought to be dismissed on the short ground that the Act provides an alternative and efficacious remedy in the form of appeal to a judicial officer of the rank of the District Judge from the order of eviction of the Estate Officer. In my opinion, this petition is misconceived and unmaintainable.

(12) The occupant can show that the opinion of the Estate Officer is wrong and that he is on the premises with authority. The enquiry that follows is vital for the reason that a definite decision is reached there. The formation of opinion is a condition precedent to the issuance of the notice. The notice serves no other purpose. It merely sets the machinery of law into motion. It gives grounds of eviction. But it has no serious consequences because the affected party is heard before an order of eviction is made. He can show that the proposed order of eviction is not warranted in the facts and circumstances.

(13) Barium Chemicals was a case of a different kind. Section 237(b) of the Companies Act gave power to the Central Government to order investigation into the affairs of a company if, in the opinion of the Central Government, there were circumstances suggesting irregularities and contraventions in respect of the provisions of the Companies Act, 1956, as stated in the section. This opinion of the Central Government was held to be open to judicial review.

(14) But there is no analogy between section 237 of the Companies Act 1956 and sec, 4(1) of the Public Premises Act. The opinion of the Estate Officer can be displaced. It can be shown to be erroneous by evidence and arguments. For this purpose there is an enquiry. There is a lis between the owner of the land and the occupant. But in Barium Chemicals there was no lis in the sense there was no notice to the company before hand and no enquiry before making the order of investigation by inspectors in the presence of the company. Under the Companies Act the opinion of the Central Government was held to be challengeable in court under Art. 226 of the Constitution. But the opinion of the Estate Officer cannot be challenged in court at this stage. The occupant can contest the opinion formed by the Estate Officer in the enquiry before him. It is the decision of the Estate Oificer which he can impugn in the appeal. Under Art. 226 it can be quashed if the rules of natural justice have not been observed by the quasi-judicial authority. Because that is a restraint on power which otherwise would become arbitrary. In my opinion the analogy of Barium Chemicals is misplaced.

(15) For these reasons the writ petition is dismissed. There shall be no order as to costs. At the conclusion of the hearing I pronounced this order on 6.12.1982. Now I have given my reasons for dismissing the writ petition.


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