Full Text
HIGH COURT OF DELHI
Date of Decision: 11.01.2023.
DELHI GLIDING CLUB ..... Appellant
Through: Mr. K.C. Mittal, Advocate.
Through: Mr. Digvijay Rai and Mr. Archit Mishra, Advocates.
HON'BLE MR. JUSTICE SUDHIR KUMAR JAIN NAJMI WAZIRI, J (ORAL)
The hearing has been conducted through hybrid mode (physical and virtual hearing).
JUDGMENT
1. In the last about half a decade this case has been listed about 16 times. At request, this case is taken up for final disposal.
2. This appeal impugns order of the learned Single Judge dated 02.11.2016 in W.P.(C) 2194/2016 rejecting the appellant’s challenge to the order passed by the Airport Appellate Tribunal, Safdarjung Airport, New Delhi and upholding the eviction order dated 05.11.2015 in Eviction Case No. 1/2015, against the appellant. The latter had been in possession of a hangar at the Safdarjung Airport for flying and gliding activities, when such activities were earlier permitted. They claim that the allotment of the hangar, admeasuring 825.25 sq.mtr, was made sometime in the 1950’s. They do not have any document or shred of paper to support their claim. All flying activities were stopped by the Government of India in the year 2002 and the airport was designated only for the use of VIP/privileged movement. This possibly came about because the Airport is in the heart of the city, close to Lutyens’ Zone, and increased security is now required because of heightened threat perception which have come about, in a world which has much altered in the past seventy years. Entry passes to the hangar was declined to the appellant after 01.04.2008. The hangar and all spaces at the Airport are stated to have been taken over by the respondent- Airports Authority of India (‘AAI’). In effect, the appellant is not in possession of the hangar for almost two decades now. The eviction notice sought a recovery of Rs.3,15,50,530/towards unauthorised occupation of the premises, failing which, the Eviction Officer’s notice dated 26.05.2015 held that the appellant would be liable to be evicted from the premises. Since the monies were not paid, the Eviction Order was passed. Impugning the same before the Appellate Tribunal, the appellant had contended that in terms of the allotment by Delhi Gliding Club (‘DGC’) the appellant was to pay only Rs. 1/- per annum.
3. The Appellate Authority allowed the appeal, set-aside the demand note of Rs.3,15,50,530/- as arrears of rent and occupation charges, but upheld the Eviction Order primarily on the ground that there were no documents or material to support the appellant to stay on in the premises; that its occupation of the hangar-space was on the basis of a subsisting right. It held that the Eviction Officer had rightly found the appellant to be an unauthorised occupant of the hangar space.
4. The impugned order of the learned Single Judge has taken a similar view and has reasoned as under: “…
22. Even if assuming the document of allotment were destroyed by termites, the petitioner would at least contend as to in what right or capacity he claims the allotment of hangar. Leave alone show, the petitioner has not even been able to contend as to the capacity in which the allotment was made and the terms and conditions thereof. The only answer given is that the respondents have to show that the petitioner is in unauthorised occupation.
23. Apart from a bald reference made to the response of the respondents, that the petitioner was initially allotted the hangar. The petitioner has not been able to show that the petitioner has any right, title or interest in the hangar space. Since the petitioner is claiming rights to the hangar and claiming to hold on to the possession of the same, it would be for the petitioner to establish the right and capacity to hold on to the hangar. Not only the petitioner has not been able to produce any document, the petitioner has not been able to even make a categorical averment in respect thereof. The entire contention of the petitioner is that the respondents had not been able to discharge onus.
24. The party which claims a right in the affirmative has to establish the same. No party can be required to prove the negative. It is for the petitioner to show cause in what capacity or right the petitioner stakes such a claim.
25. There can be two situations, either the petitioner was allotted the space as a lessee or as a licensee. For the same of completeness, the case of the petitioner may be examined assuming both situations so as to ascertain, whether the petitioner has any subsisting right.
26. If the petitioner is treated as a „lessee‟, the lease deed and its renewals would require registration under the Registration Act, 1908. Even if assuming that there was a lease deed, that would be for a fixed term. The petitioner has not been able to show that there was any term or period mentioned in any document entitling the petitioner to retain possession. There is no contention or averment that the term of any such lease deed, if any, was ever extended or renewed.
27. Assuming the petitioner was allotted the space as a licensee, the licence would be for a limited period. The petitioner is not in a position to aver as to what the period was or whether the same was ever extended or renewed.
28. In either eventuality, the petitioner has not been able to show any subsisting right or entitlement to hold on to the hangar or retain possession thereof.
29. The Eviction Officer has categorically returned a finding that all flying and gliding activities have been stopped since the year 2002. Reference is made to minutes of meeting dated 18.09.2001 wherein it was decided that except official flying which may include some dignitaries no other flying activity should be allowed at Safdarjung Airport. The Eviction officer has held that the Petitioner is non operational since the year 2002 because of instructions of the government. The Evicting Officer has held that the petitioner has not been able to show any document by way of which its possession of the hangar could be termed as legal. There is no existing lease/licence given by the respondents – Airport Authority to the petitioner. 30. I may also note that in the evidence recorded, even the Secretary of the petitioner, in his statement, before the Eviction Officer, does not state as to under what capacity, the said hangar was allotted and as to under what right, the petitioner seeks to continue to hold on to the said hangar.
31. The Airport Appellate Tribunal has noted that the flying activities of the petitioner came to a complete halt in the year 2002. The Tribunal held that the petitioner has not been able to show any right to continue to occupy the said hangar.
32. In my view, there is no infirmity in the findings returned by the Eviction Officer and the Airport Appellate Tribunal and the orders passed by them. The petitioner has not been able to produce any document to show that the petitioner has a continuing right to occupy or possess the said hangar.
33. Even if assuming there was a lease or a licence executed in favour of the petitioner in the year 1950, the term of the same would have been fixed. The petitioner has not been able to show or even aver, that the term of such a lease or licence was ever extended or that the same is subsisting as of date.
34. Even if assuming there was ever any such lease of licence, the same would be deemed to have expired by efflux of time. As the term of the allotment of the petitioner has expired by efflux of time, the petitioner would be in unauthorized occupation of the said hangar space. Since the term of allotment has expired by efflux of time no further notice terminating the term of the lease or licence is required to be issued to the petitioner.
35. It may be however noted that the notice for eviction dated 26.05.2015 categorically states that by the letter dated 26.05.2014 of the Airport Authority of India, the petitioner had been asked to vacate the said premises. The said notice would also amount to a notice claiming possession and impliedly terminating the right, if any. As the petitioner does not have a subsisting right to retain the possession of the said hangar, the petitioner would be in unauthorized occupation thereof. Since the petitioner has not been able to show any subsisting or existing right under which the petitioner can hold on to the possession of the same, the petitioner would be in unauthorized occupation of the said hangar space at Safdarjung Airport and has rightly been directed to be evicted. Consequently, the action of the respondents in physically evicting the petitioner from the hangar space cannot be faulted. …”
5. What emanates from above is that the appellant was not able to show any documents or communication to it for the past seven decades either from the Civil Aviation Department or from the DGC or from the National Airports Authority or from the AAI, as to the terms, if any, on the basis of which it had a right to continue to occupy the airport premises/hangar. In the absence of any supporting documents showing its right or interest to be in privileged government premises, the claim of the appellant cannot be sustained.
6. In any case, flying activities at the Safdarjung Airport have long since ceased i.e. over two decades. The possession of the hangar has been taken over by the respondent.
7. There is no reason for the court to disagree with the findings of the learned Single Judge.
8. The appeal is without merits and is accordingly dismissed.
NAJMI WAZIRI, J SUDHIR KUMAR JAIN, J JANUARY 11, 2023