Delhi District Court
Hira Singh vs The Directorate Of Estate on 21 August, 2018
IN THE COURT OF SHRI GIRISH KATHPALIA,
DISTRICT & SESSIONS JUDGE
SOUTH EAST : SAKET COURT, NEW DELHI.
PPA No. 05/2017
HIRA SINGH
ex.INSPECTOR, CBI
S/o LATE SHRI KISHAN SINGH BISHT
R/o QTR. No. 57, SECTORI (TYPEIII)
SADIQ NAGAR, NEW DELHI49
..... APPELLANT
VERSUS
THE DIRECTORATE OF ESTATE
THROUGH ESTATE OFFICER
NIRMAN BHAWAN
NEW DELHI ...RESPONDENT
Date of filing : 17.02.2017 First date before this court : 03.05.2017 Arguments concluded on : 04.08.2018 Date of Decision : 21.08.2018 Appearance: Shri S.C. Sagar, counsel for appellant Shri Mimansak Bhardwaj, counsel for respondent J U D G M E N T
1. In this appeal under the provisions of Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, the appellant has impugned orders dated 03.02.2017 and 13.02.2017 of the Estate Officer. On issuance of notice, the respondent entered appearance PPA No. 05/2017 Hira Singh vs Directorate of Estate Page 1 of 13 pages through counsel who filed a reply which followed a rejoinder from the appellant. The respondent also filed original records of the Estate Officer. I have heard learned counsel for both sides, who took me through records.
2. Briefly stated, the factual matrix as pleaded by the appellant is as follows.
2.1 The appellant exInspector Hira Singh was alloted a government quarter no. 57, Sector 1 (typeIII) Sadiq Nagar, New Delhi (hereinafter referred to as "the said quarter") while posted as Sub Inspector in CBI. The appellant retired from service on 30.11.2009.
2.2 Shri Mahender Singh, son of the appellant who had joined service of CBI as constable on 03.05.2004 applied for retention of the said quarter in his name soon after retirement of the appellant.
2.3 On 15.10.2010, respondent issued notice under Section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act to the appellant, calling him upon to vacate the said quarter. Son of the appellant filed an appeal under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act before the learned District & Sessions Judge, New Delhi, challenging notice dated 15.10.2010 on the basis of nonconsideration of his request for retention of the said quarter PPA No. 05/2017 Hira Singh vs Directorate of Estate Page 2 of 13 pages but the said appeal was withdrawn by son of the appellant on account of lack of territorial jurisdiction.
2.4 Thereafter, son of the appellant filed an Original Application before the Hon'ble Central Administrative Tribunal, Principal Bench, New Delhi, which was disposed of vide order dated 22.02.2012.
2.5 Vide order dated 22.04.2013, respondent alloted a general pool residential accommodation quarter no. 310, first floor, Sector 2, (typeII), Sadiq Nagar, New Delhi to son of the appellant but that order was never communicated to the appellant's son and subsequently the said proposed allotment was cancelled on the ground that appellant's son failed to occupy the alloted quarter.
2.6 On 28.12.2016, respondent issued letter claiming damages from the appellant on account of unauthorized occupation of the said quarter, to which appellant sent reply dated 11.01.2017. On 29.12.2016, respondent issued show cause notice under Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act to the appellant.
2.7 On 17.01.2017, son of the appellant applied afresh for allotment of the said quarter in his name.
PPA No. 05/2017Hira Singh vs Directorate of Estate Page 3 of 13 pages 2.8 Thereafter, vide impugned orders dated 03.02.2017 and 13.02.2017, respondent directed eviction of the appellant from the said quarter and recovery of Rs. 6,83,561/ towards damages for unauthorized occupation.
2.9 Hence the present appeal.
3. In reply, respondent pleaded their version as follows.
3.1 The appellant, who occupied the said quarter, retired as Inspector CBI on 30.11.2009 and thereafter his son Constable M.S. Bisht applied for retention of the said quarter.
3.2 As per relevant rules, the government accommodation could be regularized in the name of son of the government servant provided the said son had been residing continuously with the retired government servant for atleast three years immediately preceding the date of retirement of the government servant. Constable M.S. Bisht joined CBI on 16.11.2004 and had continued to draw house rent allowance till 16.03.2007. Therefore, Constable M.S. Bisht did not qualify the above mentioned criterion, so his request for regularization of the said quarter was rejected vide order dated 15.04.2010.
PPA No. 05/2017Hira Singh vs Directorate of Estate Page 4 of 13 pages 3.3 On 09.08.2010, the case was referred to the Litigation Section for initiating eviction proceedings and the same culminated into order dated 05.10.2010. But the appellant did not vacate the said quarter even till expiry of the concessional period of retention.
3.4 In the proceedings filed by Constable M.S. Bisht before the Hon'ble Central Administrative Tribunal, vide order dated 25.10.2010, the present respondent was directed to look into the request of Constable M.S. Bisht treating the Original Application as supplementary request for allotment of the entitled type to him and for retention of the said quarter till alternate allotment was made. In compliance, the relevant rules were relaxed and a shortfall of three and half months of residence period was approved.
3.5 Thereafter, by way of sanction letter dated 28.03.2013, quarter no. 310, Sector 2 Sadiq Nagar was alloted to Constable M.S. Bisht. When Constable M.S. Bisht went to accept the authority slip of type 2 quarter, he was requested to clear the pending dues of approximately Rs. 3,00,000/ with respect to the said quarter that had been alloted to the appellant but he requested to reduce the damages. Thereafter, Constable M.S. Bisht neither returned to clear the dues nor accepted type 2 quarter and continued to retain the said quarter that had been alloted to the appellant, without paying damages.
PPA No. 05/2017Hira Singh vs Directorate of Estate Page 5 of 13 pages 3.6 As in the month of December 2016, damages payable by the appellant were to the tune Rs. 6,83,561/. By way of representation dated 10.01.2017, the appellant requested for waiver of the said damages and by way of representation dated 10.01.2017, Constable M.S. Bisht expressed inability to bear such huge expense and requested for allotment of type 2 quarter.
3.7 Even the present appeal has been filed beyond limitation period in so far as eviction order dated 03.02.2017 is concerned.
3.8 Therefore, the appeal is liable to be dismissed.
4. In rejoinder, the appellant reiterated the contents of his appeal.
5. During arguments, learned counsel for both sides reiterated their above mentioned rival factual matrix. Learned counsel for appellant argued that respondent ought to have allowed retention of the said quarter by son of the appellant, as he occupied the said quarter for a period of more than three years as son of appellant. It was also argued on behalf of appellant that even this court while considering the appeal under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act can direct the respondent to regularize the said quarter or to allot alternate accommodation as well. It was further argued on PPA No. 05/2017 Hira Singh vs Directorate of Estate Page 6 of 13 pages behalf of appellant that the impugned order dated 13.02.2017 is also bad in law since damages for the period from the year 2010 onwards being claimed were beyond the limitation period of three years, and the same could not be recovered by the respondent in the year 2017. Per contra, learned counsel for respondent argued that since despite opportunity, Constable M.S. Bisht and the appellant did not clear the outstanding damages, they have no right to seek regularization of the said quarter or even allotment of alternate accommodation.
6. At the very outset, I must express inability to uphold the argument of learned counsel for appellant that in the present proceedings under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, this court can direct the respondent to regularize the said quarter in the name of appellant's son Constable M.S. Bisht or to allot alternate accommodation, as sought by the appellant by way of prayer clause (c) and (d) of the appeal. The allotment and retention of the government accommodation can be done by the respondent only in accordance with the relevant rules, none of which empowers the District Judge to issue such directions under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act. Not only this, even the medical documents on the basis of which retention of the said quarter has been sought by the appellant pertain to the year 2014 whereas the allotment stood cancelled in the year 2010 itself, so those documents are not even relevant.
PPA No. 05/2017Hira Singh vs Directorate of Estate Page 7 of 13 pages
7. It would be significant to keep in mind that appellant before this court is exInspector Hira Singh and not Constable M.S. Bisht. But almost entire case setup and argued on behalf of the appellant was from the stand point of Constable M.S. Bisht. This court dealing with an appeal under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act has to examine if exInspector Hira Singh is an unauthorized occupant of the said quarter. This court under Section 9 of the Act cannot examine the rights of Constable M.S. Bisht to retain possession of the said quarter. This court dealing with such an appeal must confine itself to the rights of the appellant exInspector Hira Singh.
8. It is the admitted case that the said quarter had been alloted to exInspector Hira Singh as an incident of service, from which he retired way back on 30.11.2009. Having retired from service on 30.11.2009, right of exInspector Hira Singh to continue in occupation of the said quarter ceased and he was duty bound to vacate the said quarter. After 30.11.2009, right for the retention of the said quarter, if any existed, vested in Constable M.S. Bisht, who has not approached this court, and rightly so, since the procedure established by law with regard to exercise of that right does not contemplate any role of this court, much less under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act.
PPA No. 05/2017Hira Singh vs Directorate of Estate Page 8 of 13 pages
9. Further, as mentioned above, Constable M.S. Bisht did not even fulfill the requisite criterion for the period of residence in the said quarter and that criterion was even relaxed by the respondent in compliance with the order dated 25.10.2010 of the Hon'ble Central Administrative Tribunal. But despite that, Constable M.S. Bisht opted not to avail the opportunity by clearing the pending dues, which rose on the figure of Rs. 6,83,561/ by December 2016. Most importantly, the said quarter had been alloted to the appellant Shri Hira Singh, posted as an Inspector whereas his son Shri M.S. Bisht is posted only as a Constable. Entitlement of the two is not and cannot be same. There cannot be a vested right in a Constable to retain the quarters alloted to his father who was Inspector and stands retired.
10. As regards damages, vide letter dated 28.12.2016, the appellant was called upon to deposit the damages to the tune of Rs. 6,83,561/ within 20 days, failing which the Directorate would be constrained to initiate recovery proceedings.
11. As regards the argument of appellant that order dated 13.02.2017 is bad in law on the ground of claim beyond limitation period of three years, in the case of Sharma Montessori School & Oriental College Society vs Union of India, WP (C) 3210/2000, decided by the Hon'ble Single Judge of the Delhi High Court on 24.09.2012, referred to by learned counsel for respondent, it was observed thus :
PPA No. 05/2017Hira Singh vs Directorate of Estate Page 9 of 13 pages "9. To assert that Estate Officer is not a court and so provisions of Limitation Act would not apply to the eviction proceedings before the Estate Officer and that the Public Premises Act being a special Act would prevail upon the Limitation Act, respondent's counsel had relied upon decisions in Nand Ram & Ors. vs Union of India & Ors., 87 (2000) DLT 234; WP (C) 4688/1997, NDMC vs Charan Singh Gupta & Ors., rendered on 30.09.2004 and L.S. Nair vs Hindustan Steel Ltd. Bhilai & Ors., AIR 1980 MP 106. Thus, rejection of the writ petition is sought by asserting that the impugned order does not suffer from any illegality or infirmity.
10. Having considered the submission advanced, impugned order, the material on record and decisions cited, I find that there is no limitation provided in the Public Premises Act for initiation of eviction proceedings or recovery of damages. This court in Nand Ram & Ors. vs Union of India & Ors., 87 (2000) DLT 234, has categorically held that Public Premises Act being a special Act would prevail upon the Limitation Act. ...."
12. The issue of applicability of the Limitation Act to the proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act for recovery of damages also came up before the Hon'ble Delhi High Court in the case of Union of India vs Anil Bhatt, WP (C) 3454/2012 decided by the Hon'ble Single Judge of the Delhi High Court on 14.05.2015 and it was observed thus :
"The learned counsel for petitioner has referred to the decision of the Division Bench of this court in Shri G.R. Gupta vs Lok Sabha Secretariat, LPA 370/13 rendered PPA No. 05/2017 Hira Singh vs Directorate of Estate Page 10 of 13 pages on 29.11.2013 where this court had referred to the decision in Kalu Ram {NDMC vs Kalu Ram, 1976 SCC (3) 407} and also article 112 of Limitation Act 1963 and had concluded that the said article would apply and the period of limitation for recovery of damages by the Central Government would be 30 years. The relevant extract from the said decision is quoted below :
"26. It is settled law that a judgment of one High Court is not binding on the other, but in view of article 141 of the Constitution of India the Supreme Court judgment is binding on all High Courts. Consequently, the finding of the learned Single Judge that the limitation prescribed under the Act 1963 has no application to recovery of damages under Section 7 (2) of the PP Act, 1971 is not correct.
27. Even though we have held that the Act, 1963 applies to proceedings under the PP Act 1971, yet the question that arises for consideration is whether the right to claim damages under Section 7 (2) of the PP Act 1971 was barred on the date the proceedings were initiated by the Lok Sabha Secretariat.
28. Article 112 of the Act, 1963 reads as under :
Description of suit Period of Time from which
limitation period begins to run
112.Any suit except When the period of a
Suit before the Thirty years limitation would begin
Supreme Court in the to run under this Act
exercise of its original against a like suit by a
Jurisdiction by or on private person
behalf of the Central
Government or any
State Government including
the Government of the State
of Jammu and Kashmir. "
13. Going by the above described legal position, the impugned order dated 13.02.2017, imposing damages for the period from 01.08.2010 to 31.12.2016 cannot be struck down to be beyond limitation in view of article 112 of the Limitation Act, which would apply to the PPA No. 05/2017 Hira Singh vs Directorate of Estate Page 11 of 13 pages proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act.
14. Rather, it is a classic case of misuse of process of law where a Constable with impunity claims himself to be entitled to retain the government accommodation alloted to an Inspector, and that too without paying the outstanding damages. It was observed by the Hon'ble Supreme Court of India in the case of S.D. Bandi vs Divisional Traffic Officer, KSRTC, Civil Appeal No. 4064/2004 decided on 05.07.2013 by the bench of Hon'ble Mr. Justice P. Sathasivam and Hon'ble Mr. Justice Ranjan Gogoi (copy filed by learned counsel for respondent) as under :
"29. It is unfortunate that the employees, officers, representatives of people and other high dignitaries continue to stay in the residential accommodation provided by the Government of India though they are no longer entitled to such accommodation. Many of such persons continue to occupy residential accommodation commensurate with the offices held by them earlier and which are beyond their present entitlement. The unauthorized occupants must recollect that rights and duties are correlative as the rights of one person entail the duties of another person, similarly the duty of one person entails the rights of another person. Observing this, the unauthorized occupants must appreciate that their act of overstaying in the premises directly infringes the rights of another. No law or directions can entirely control his act of disobedience but for the self realization among the unauthorized occupants."PPA No. 05/2017
Hira Singh vs Directorate of Estate Page 12 of 13 pages
15. In view of above discussion, I am unable to find any infirmity in the impugned orders dated 03.02.2017 and 13.02.2017 of the Estate Officer, so both orders are upheld. The present appeal is meritless and the same is dismissed.
16. A copy of this judgment be sent to the Estate Officer along with original records of the eviction proceedings.
17. Appeal file be consigned to records.
Announced in the open court on
this 21st day of August, 2018 (GIRISH KATHPALIA)
District & Sessions Judge
Digitally signed South East, Saket Courts
by GIRISH
GIRISH New Delhi 21.08.2018 (a)
KATHPALIA
KATHPALIA Date:
2018.08.23
14:54:17 +0530
PPA No. 05/2017
Hira Singh vs Directorate of Estate
Page 13 of 13 pages