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K.R.K. Talwar Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 554 of 1967
Judge
Reported inAIR1977Delhi189; ILR1977Delhi138
ActsPublic Premises (Eviction of Unanthorised Occupants) Act, 1971 - Sections 9
AppellantK.R.K. Talwar
RespondentUnion of India and ors.
Advocates: S.A.K. Dhar and; Sital A.K. Dar, Advs
Cases ReferredIn Mt. Fakrunisa v. Moulvi
Excerpt:
.....decision of estate officer under section 9 (4) dismissed for default of the appellant--whether the appellate officer bound to decide the appeal on merits in such a case.; an appeal under section 9 of the public premises (eviction of unauthorised occupants) act, 1958, against the order of the estate officer, was dismissed for default by the appellate officer. it was inter alia, contended on behalf of the petitioner in this writ petition, that the appellate officer was bound to decide the appeal on merits, even when the appellant was absent :; (repelling the above contention, on construction of sub-section (4) of section 9 of the act) that the duty to hear an appellant is required by the same basic rule of natural justice which requires every person to be heard before an order affecting..........act, 1971] which is as follows : 'everyappeal under this section shall be disposed of by the appellate officer as expeditiously as possible.'the question for consideration is whether an appeal preferred against the decision of an estate officer can, under section 9(4), be dismissed for the default of the appellant or whether even if the appellant fails to appear when the appeal is called for hearing, the appellate officer is bound to decide the appeal on merits. (2) the petitioner dr. k. r. k. talwar had been allotted eng 9-6-1953 government premises at 216, kamla market, new delhi. it is not clear if a lease deed signed by the petitioner and also by the authorised officer on behalf of the president of india had been executed in respect of the premises. dr. talwar had an assistant.....
Judgment:

V.S. Deshpande, J.

(1) An interesting question arising for decision in this writ petition relates to the construction of sub-section (4) of section 9 of the Public Premises (Eviction of Unauthorised occupants) Act, 1958 [now corresponding to section 8(4) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971] which is as follows :

'EVERYappeal under this section shall be disposed of by the appellate officer as expeditiously as possible.'

The question for consideration is whether an appeal preferred against the decision of an Estate Officer can, under section 9(4), be dismissed for the default of the appellant or whether even if the appellant fails to appear when the appeal is called for hearing, the appellate officer is bound to decide the appeal on merits.

(2) The petitioner Dr. K. R. K. Talwar had been allotted enG 9-6-1953 government premises at 216, Kamla Market, New Delhi. It is not clear if a lease deed signed by the petitioner and also by the authorised officer on behalf of the President of India had been executed in respect of the premises. Dr. Talwar had an assistant called Shri H. Batra who worked in the same premises. Dr. Talwar appears to have been in large amount of arrears of rent almost from the beginning of the allotment. Though he paid something, he desired that the arrears of rent should be adjusted against some verified claim which he claimed to hold as a displaced person from West Pakistan. The first order by which the petitioner felt aggrieved was passed on 12th January, 1961 (Annexure F to the writ petition) terminating the tenancy of the petitioner. The petitioner requested the authorities to withdraw the termination of his lease or cancellation of his allotment but didi not succeed. The reason for the termination or cancellation of the lease or allotment probably and firstly was the undeniable A fact that the petitioner was in arrears for a number of years and the arrears had mounted to a huge sum. Secondly, it was possible that the authorities suspected that the petitioner had parted with possession of the premises to Batra inasmuch as at one stage the petitioner requested the authorities to evict Batra from the premises.

(3) In due course, notice to show cause why he should not be evicted from the premises was issued to the petitioner under section 4 and the eviction order was passed under section 5 by the Estate Officer after hearing the petitioner. The order of the Estate Officer dated 5-1-1965 (Annexure M to the writ petition) gave full reasons for holding that both Dr. Talwar and Shri Batra are in unauthorised occupationof the premises. The order of eviction was later passed on 11-1-1965 and served on the petitioner on 27-1-1965.

(4) An appeal was filed by the petitioner under section 9(1) against the order of the Estate Officer to the appellate officer who was Shri M. S. Joshi, Additional District and Sessions Judge, Delhi (now M. S. Joshi, J. of this High Court). The appeal was fixed for hearing on 14-7-1965 but the appellant did not turn up till after 4 P.M. and the appeal was, thereforee, dismissed for his default. An application was made for restoration of the appeal on the ground that he had to go to the High Court to attend his case and he could not return from the High Court till 4.45 P.M. It was found as a fact that the appellant had no case in the High Court fixed for that date and even if he had some reason to believe that he had some such case there, he could have returned to the court of Shri M. S. Joshi very soon long before the close of Court hours, after ascertaining that there was no case of his in the High Court on that date.' Subsequently, an application for review was also dismissed by Shri M. S. Joshi. - Ij The present writ petition is filed for quashing- (A) The order of cancellation of allotment, (B) The order of eviction, (C) The order dismissing the appeal for default, (D) The order dismissing the application for restoration, and (E) The order dismissing the application for review.

(5) Let us consider the validity of each of these orders and the scope of judicial review in respect of each of them. (A) The definition of 'unauthorised occupation' in section 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 for 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 allottor 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-pay ment of rent for a long time was a complete justification for such an action.

(6) (B) The order of eviction was passed after Dr. Talwar had the fullest opportunity of showing cause why he should not be evicted from the premises. Before the Estate Officer, Dr. Talwar pleaded that his allotment should not have been cancelled. But the Estate Officer rightly held that he was not to sit in judgment over the sufficiency of administrative reasons for cancellation of allotment. He found that a, notice for more than 15 days had been given to Dr. Talwar for the termination of the tenancy. This was done when the Transfer of Property Act had not been made applicable to Delhi.

(7) The duty to hear an appellant is required by the same basic rule of natural justice which requires every person to be heard before an order affecting his rights can be passed. At the appellate stage this duty is not more onerous than it is at the stage of the original hearing. The rule of audi alteram partem only requires that an opportunity to be heard should be given to the person concerned. It does not require that even if the said person does not avail himself of the opportunity, an order against him cannot be passed without hearing him. Such an interpretation of the rule would mean that the person concerned may simply refuse to say anything against the order proposed to be passed against him and may thereby stultify the proceedings against him completely with the effect that no order against him can be passed merely because he does not allow it to be passed by merely refusing to defend himself. The same principle should normally apply to an appeal by a person aggrieved by an order aga.inst which the appeal is preferred. Petitioner's counsel has, however, argued that an appeal under section 9 of the Act could not be on the said language of section 17(1) read with section 20, the Supreme Court held as follows at page 142 of the report :-

'......IT is obligatory on the part of the Tribunal to decide an appeal on merits even though there is default in the appearance of the appellants and to record its decision. regarding the merits of the appeal. If an appeal is dismissed for want of prosecution it cannot be said that the Tribunal has 'decided the appeal' and 'recorded its decision' within the meaning' of section 17 of the Jagirs Abolition Act. It cannot be supposed that the legislature intended by the word 'decide' in section 17(1) to mean. dispose of the appeal or to put an end to the appeal'.'

The language of section 9(4) and rule 8 in the present case is in marked contrast to the' language of section 17 of the Jagirs Abolition Act. In fact, the Supreme Court has held that the words 'decide' and 'record its decision' are in direct contrast to the words 'dispose of the appeal'. The words 'dispose of' merely mean put an end to the appeal by any of the recognised methods. We are all aware of the word 'disposal' of judicial cases. In fact, every month, statements of disposals are made in respect of each court. These disposals include disposals of all kinds, namely, disposals for default, by compromise, etc., that is, not on merits as also disposals on merits. It is well established that when legislature uses a word which has a well understood meaning in the particular context in which the word is used, then it is presumed to have used the word with the same meaning. The word 'disposal' in relation to judicial cases and appeals has always included all kinds of disposals. There is no reason to think that the legislature should have intended to give a meaning different from its popular meaning in section 9 of the Act. On the contrary, the legislature in the Bombay Act before the Supreme Court in Vajesingh's case did not use the word 'disposal' advisedly and used the words 'decide the appeal and record its decision'. The contrast between the language of the legislation before the Supreme Court in the Bombay case and the language of section 9 before us is clear.

(11) The contention that the appellate officer must have decided the appeal on merits even when the appellant was absent has dangerous implications. In Mt. Fakrunisa v. Moulvi lzarus Sadik, Air 1921 P.C. 55, the Judicial Committee observed that in every appeal it was incumbent upon the appellants to show some reason why the judgment appealed from should be disturbed ; there must be some balance in their favor when all the circumstances were considered, to justify the alteration of the judgment that stands. As such the appellant has, in our opinion, to show to the appellate authority, by oral argument and reference to the record why the order of the first authority is not sustainable. Mere mention in the grounds of appeal is not sufficient since it is open to the appellant to abandon any of the grounds and it is his duty to substantiate his grounds pressed by reference to the material placed on the record, which may not be apparent from the order of the first authority. Under the circumstances, it is impossible for the appellate court or authority to conjecture the grounds and imagine the arguments advanced and then give its reasons to repel the same. Moreover, the appellant whose appeal is dismissed for default has the legal remedy of getting the appeal restored so that it may be heard on merits. Should the appeal be decided on merits in the absence of the appellant, the question of appeal being restored for being heard and decided on merits will not arise. If the appellate court has decided the appeal on merits without the appellant, then it will considerably prejudice the appellant, if he wants the same to be heard again in his presence and surely the appeal cannot be decided twice on merits. We are, thereforee, of the view that section 9 did not require the appellate officer to decide the appeal on merits and the appellate officer was fully competent to dismiss it for default and the contention of the learned counsel for the petitioner before us has no merit.

(12) The appeal of the petitioner had been pending for some time and on the date it was dismissed for default, he was present before the appellate authority in the early part of the day and then had an application moved for its adjournment which was not granted. He alleges that he came to the High Court but found that he did not have a case. If it were so, it was the duty of the appellant to immediately go back to the appellate authority and attend to the appeal which was already pending. The learned appellate officer was right in his observation that the petitioner really wanted adjournment and not hearing of the appeal. We are satisfied that the order of the appellate officer dismissing the appeal for default of appearance was legal and valid and no sufficient ground had been made out for restoration of the appeal. The order dismissing the application for restoration, was, thereforee, amply justified and does not call for interference in exercise of writ jurisdiction.

(13) In view of the finding that the appellate officer had acted within his jurisdiction and according to law in dismissing the application for restoration, no case had properly been made out for review of his order and the order of the appellate officer dismissing the review application was within his jurisdiction and passed according to law and is justified in the circumstances of the case. The same docs not call for any interference.

(14) As a result, we find that there is no merit in the writ petition and the same is dismissed with no order as to costs.


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