Delhi District Court
Sh. Chandra Dutt Sharma vs The Estate Officer on 13 February, 2020
IN THE COURT OF SH. DINESH KUMAR SHARMA
DISTRICT & SESSIONS JUDGE /
APPELLATE AUTHORITY: NEW DELHI
In the matter of :
PPA No. 20/2018
CNR No.DLND010051322018
Sh. Chandra Dutt Sharma
S/o Shri Umapati Sharma
R/o Sector2, Block46
Quarter No. 2B, TypeIII
DIZ Area, New Delhi. ..... Appellant
Versus
1. The Estate Officer
Directorate of Estates
(Litigation Section)
Room No. 538C Wing
Nirman Bhawan, New Delhi.
2. Directorate of Estates
Through Deputy Director (Litigation Section)
5th Floor, Nirman Bhawan
New Delhi. .....Respondents
Date of filing : 29.05.2018
Date of arguments : 13.02.2020
Date of judgment : 13.02.2020
JUDGMENT
1. The present appeal has been filed under Section 9 of PPA No.20/18 Chandra Dutt Sharma vs The Estate Officer & Anr. Page No. 1 of 11 The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 ("PP Act" in short) by the appellant Sh. Chandra Dutt Sharma against the impugned order dated 17.05.2018 passed by the Estate Officer under Section 5(1) of PP Act, directing the appellant and all persons who may be in occupation of the premises bearing No. Sector2, 46/2B, D.I.Z. Area (TypeC), New Delhi (Premises in question), or any part thereof, within 15 days from the date of publication of the said order.
2. Aggrieved by the same, the appellant has filed the present appeal assailing the impugned order dated 17.05.2018 on the ground that the impugned order is devoid of reasonable consideration and the facts and circumstances of the case.
3. The facts in brief are that the appellant being government servant was allotted the premises in question in the year 2017. On 23.06.2015, an inspection was conducted at the premises in question and during inspection, the Inspection Team found one Sh. Rajesh in the occupation of the said premises and it was suspected that the said Sh. Rajesh is the subtenant in the public premises. Pursuant to the inspection, the department served a show cause notice dated 26.06.2015 directing the appellant to show cause why the allotment of the public premises PPA No.20/18 Chandra Dutt Sharma vs The Estate Officer & Anr. Page No. 2 of 11 may not be cancelled; why he should not be declared ineligible for allotment of the government accommodation for the remaining period of his service; why he should not be charged damages from the date of cancellation of allotment; and why he should not be debarred from sharing the government residence for a specified period in future as may be decided. The appellant gave a detailed reply to the said show cause notice, however, the same was rejected and vide order dated 28.07.2015, it was decided that the allotment of the public premises be cancelled and also that the appellant be declared ineligible for the allotment of government residential accommodation. It was also directed that appellant be also charged with damages. It was further directed that in case, the subletting is established, the appellant would also be liable for disciplinary action. The appellant filed an appeal against the said order, which was also dismissed by the Directorate of EstatesII vide order dated 04.12.2015. Pursuant to that, an order under Section 5 of PP Act was passed against the appellant on 15.02.2017. The order dated 15.02.2017 was challenged by the appellant in this court. The Ld. Predecessor of this court vide its order dated 22.04.2017, set aside the order dated 15.02.2017 and remanded back the case to the Estate Officer to decide the same after complying with the provisions PPA No.20/18 Chandra Dutt Sharma vs The Estate Officer & Anr. Page No. 3 of 11 of PP Act.
4. It is pertinent to mention here that the main challenge to the impugned order is that the appellant was given only seven days for vacating the premises instead of fifteen days, as prescribed under the PP Act. Subsequent thereto, the premises in question was declared unsafe and the appellant was directed to vacate the premises and an alternate quarter bearing no. 46/2B, Sector2, DIZ Area, New Delhi, was allotted to the appellant. Upon vacating the premises in question, the department closed the proceedings for vacation qua this premises on 09.01.2018 and a fresh show cause notice in regard to the newly allotted premises i.e. quarter No. 4A, Block 47, Sector2, DIZ area, New Delhi, was issued. The Estate Officer after taking into account the entire facts, passed an eviction order dated 17.05.2018, which has been impugned in the present appeal.
5. The plea of the appellant is that he joined on 29.06.2015 after availing earned leave w.e.f. 15.06.2015 to 26.06.2015 to attend religious function at his native place. In the meanwhile, an inspection was conducted on 23.06.2015 and during this inspection, Sh. Rajesh was found in the said public premises, who told himself to be the brother of the appellant and PPA No.20/18 Chandra Dutt Sharma vs The Estate Officer & Anr. Page No. 4 of 11 also gave his voter identity card at the address of C31, Sector E, R.K. Ashram Marg, New Delhi. The appellant submitted that as per the inspection report, all the columns from Column No. 9 to 15 were left blank and in reply to the Column No. 16 which is "Does the Inspection Team suspect that the quarter is sublet? If yes or no, ground on which the Team have based their conclusion" , the said inspection report only says that "Yes. Suspected". The plea of the appellant is that the department has merely proceeded on the suspicion and did not have any material on the record to infer that the premises was sublet to said Sh. Rajesh. The plea of the appellant is that in fact, he had gone to his native place and while he was away, he asked his brother Sh. Rajesh, who used to reside at a different place, to take care of his house. Ld. Counsel for the appellant has further submitted that the appellant has duly placed on record his voter identity card, driving licence and the passport, which are issued at the address of the accommodation alloted to him. It has further been pointed out by the Ld. Counsel for the appellant that in pursuance to the order of the Estate Officer, the disciplinary proceedings were initiated against the appellant and even in the said disciplinary proceedings, the charge of sub letting could not be substantiated. It has further been mentioned that the Estate Officer has passed the impugned order on the mere PPA No.20/18 Chandra Dutt Sharma vs The Estate Officer & Anr. Page No. 5 of 11 surmises and conjectures and the same is liable to be set aside.
6. I have heard the Ld. Counsel for the parties and perused the record carefully.
7. The Public Premises Act has been enacted for eviction of unauthorized occupants from Public Premises and for certain incidental matters. The "unauthorised occupation" has been defined in Section 2(g) PP Act, which reads as under: "2(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 premises has expired or has been determined for any reason whatsoever."
8. The bare perusal of this Section would indicate that a person allotted the government accommodation will fall into the category of unauthorized occupant only if either his allotment has been cancelled or has been determined for any reason whatsoever. A person would also deem to be unauthorized occupant in a public premises if he or she is in occupation without any authority for such occupation.
PPA No.20/18Chandra Dutt Sharma vs The Estate Officer & Anr. Page No. 6 of 11
9. Section 8 PP Act deals with the powers of the Estate Officers which reads as under: "8.Power of estate officers.An estate officer shall, for the purpose of holding any inquiry under this Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the following matters, namely:--
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) any other matter which may be prescribed."
10. Bare reading of Section 8 PP Act would indicate that the Estate Officer is required to take the entire evidence on record along with the documents and even the Estate Officer has been given powers to summon and enforce the attendance of any person and examine him on oath besides discovery and production of documents. If the statute confers a power on any authority, it has some meaning. It is also pertinent to mention here that the proceedings conducted by the Estate Officer are quasi judicial in nature as has been held in M/s Blaze and Central (P) Ltd. Vs. Union of India and others, AIR 1980 Karnataka 186, wherein it was held as under :
PPA No.20/18Chandra Dutt Sharma vs The Estate Officer & Anr. Page No. 7 of 11 " 13 ........ The Estate Officer must hold an enquiry as required under S. 4 of the Act, read with the Public Premises (Eviction of Unauthorized Occupants) Rules 1971. R. 5 of the Rules provides that the Estate Officer shall record the summary of the evidence tendered before him and the summary of such evidence and any relevant documents filed before him shall form part of the record of the proceedings. Exercise of the power under the Act is undoubtedly quasijudicial. The petitioner has a right to be heard before the Estate Officer and if the right to be heard is to be a real right which is worth anything, it must carry with it a right to know the evidence of the opposite side. The petitioner must therefore be told what evidence has been given or what statements have been made by the opposite side. In other words, to put it shortly, the petitioner must be given a fair opportunity to correct or contradict the statements recorded or the evidence ..........."
11. Thus, the Estate Officer cannot mechanically pass an order without taking into the account the documents placed by the employee. In an enquiry conducted by Estate Officer, the principle of natural justice has to be followed.
12. Coming to the facts of the present case, I consider that the appellant is entitled to be succeeded in the present case on the ground that Estate Officer has mechanically passed the order PPA No.20/18 Chandra Dutt Sharma vs The Estate Officer & Anr. Page No. 8 of 11 merely on the basis of suspicion, presumption and surmises. If we start from the inspection report, the Inspection Team only concluded that they suspected that the premises had been sublet. On the basis of mere suspicion, the Estate Officer could not have passed the quasijudicial order directing the appellant to vacate the public premises. The allotment of public premises is an important incidence of the government servant and order for vacation of the same is a very harsh process and therefore, should be passed only with due circumspection. It is necessary to refer to the impugned order passed by the Estate Officer. In the impugned order itself, the Estate Officer has inter alia mentioned as under : ".......Enquiry Officer of his department has discharged him the disciplinary case in this matter. Enquiry Officer has concluded his report stated that "I find that the perceived contradictions in the statement of CO are immaterial. There is no restriction as to the location of the school of his children should study; he was not able to express his side before the inspection team of Dte. of Estates as he was out of station and complaints forwarded by CPWD not part of this disciplinary proceeding. Therefore, the level of proof does not stand of tests of even preponderance of probability and I find the charge against Shri Chandra Dutt Sharma PA, as not proved." Enquiry Officer has also accepted that the complaint of subletting is not a part of Enquiry in disciplinary matter."
PPA No.20/18Chandra Dutt Sharma vs The Estate Officer & Anr. Page No. 9 of 11
13. Perusal of this order would indicate that the Estate Officer was duly aware of the fact that in the departmental proceedings, the department has failed to prove the charge of subletting against the appellant. At the one forum, the charge of subletting has not been proved and in the other forum, without any further proof, the Estate Officer proceeded on the presumption that the appellant has sublet the premises in dispute.
14. It is also necessary to refer even to the Office Memorandum no. 12032/1/2015Pol.II dated 06.12.2016. The perusal of this would indicate that the said Office Memorandum is regarding clarification on procedure to conduct subletting inspections of General Pool Residential Accommodation. The relevant portion of the said office memorandum is reproduced as under :
"2. It is clarified that the main criterion for deciding a suspected case of subletting is that it should prima facie appear that the house or a portion thereof has been given on rent. Action should accordingly be taken against the allottee for breach of rules and conditions of allotment of GPRA.
3. If the Inspection Team suspects that such persons as mentioned in para 1 above are present on the premises and are paying rent to the allottee, the Inspection Team should mention it clearly in their Inspection report so that a case of subletting can be framed against such allottees.PPA No.20/18
Chandra Dutt Sharma vs The Estate Officer & Anr. Page No. 10 of 11 If subletting is proved in such cases, all penalties i.e. cancellation of quarter from date of inspection, charging of double damages at telescopic rates from date of cancellation, initiation of disciplinary proceedings etc., as per the provisions of SR 317B21 of Allotment of Government Residences (General Pool in Delhi) Rules, 1963, will be imposed on such offenders."
15. Perusal of this office memorandum would also indicate that the intention of the Government is also that at least there should be a prima facie material to infer that the public premises has been sublet. In the present case, besides the inspection report, which on the face of it is a sketchy, there is no other material to infer that the public premises was sublet. I consider that the order of the Estate officer suffers from nonapplication of mind and is therefore, liable to be set aside. The impugned order dated 17.05.2018 is set aside and the appeal is allowed accordingly.
16. Record of the Estate Officer be sent back alongwith copy of this judgment. Appeal file be consigned to Record Room.
Announced in open court (DINESH KUMAR SHARMA) on 13.02.2020. District & Sessions Judge/ Appellate Authority : New Delhi PPA No.20/18 Chandra Dutt Sharma vs The Estate Officer & Anr. Page No. 11 of 11