Delhi District Court
Lt Col. Ashok Kumar Singh vs Estate Officer on 8 October, 2007
IN THE COURT OF SH. SUNIL KUMAR AGGARWAL ADDL.
DISTRICT JUDGE, DELHI
RCA No. 5/07
Lt Col. Ashok Kumar Singh
HQ South Western Command,
C/o 56, APO 9085547
................... Appellant
Vs
1. Estate Officer,
Station Head Quarter,
Delhi Cantt,
New Delhi
2. Station Commander,
Station Headquarter,
Jaipur.
3. Union of india
................ Respondents
08.10.07 JUDGMENT.
This appeal U/s. 9 of the Public Premises (Eviction of Unauthorized Occupants) Act , 1971 has been filed by the Appellant against order dated 10.03.07 passed by Brig. HPS Dhillon, Estate officer holding Appellant to be an unauthorized occupier of public premises from 18.03.06 to 28.09.06.
The case of Appellant is that he was in occupation of DEO Hired accommodation No. BF-21(SF) Janakpuri , New Delhi from 23.04.03 when he was on study leave in Delhi . On his posting to field area, (HQ 33 Corps) he .. 2 ..
applied for separate family accommodation in Delhi and was permitted by the Department to retain the same accommodation till his posting in the field area. He was not allotted proper Government accommodation with garage and servant quarter , to which he was entitled . Per force his family had to stay in Civil area bearing inconvenience, financial hardships and security related problems. On 25.05.05, he was posted to the newly raised HQ South Western Command at Jaipur, which is a peace station, as Administrative Officer after completion of just 20 months in field area although the normal field tenure of an officer is 2- 2 1/2 years at one station. Due to the requirement of SW Command and that of Jaipur station having increased there was acute shortage of married accommodation. On joining at Station HQ at Jaipur, Appellant had applied for proper Majors Married Accommodation as he did not intend to shift into DEO Heired or any other lower scale of accommodation including temporary Captain's Accommodation. He was however denied the entitled accommodation due to local rules made by the department.
The Appellant had requested for issuance of No Accommodation Certificate (herein after called NAC) till allotment of proper accommodation per his entitlement .
.. 3 ..
The same was issued and forwarded to the department till 17.03.06. After waiting for 10 months Appellant was alloted Captain's Married Accommodation on 20.03.06. Appellant found it to be in dilapidated condition and already shirked by many officers . The Appellant therefore submitted application for allotment of proper Majors married accommodation and till the time it is not possible, to issue NAC so as to retain DEO hired accommodation at Delhi Station. No reply thereto was received from Station HQ Jaipur. Appellant repeated his requests to station commander HQ 61 Sub Area on 18.09.06 to which reply dated 20.10.06 was received to the effect that Appellant was allotted reappropriated married accommodation which was considered as Majors as per rules then prevailing. Willingness of Appellant was not sought. It is contended that in order to appropriate a lower scale accommodation to upper scale , the written approval of command HQ needs to be obtained and willingness of applicant is to be called before allotment. Ultimately the Appellant had to vacate DEO hired accommodation at Delhi Station on 29.09.06.
The impugned order has been challenged on the ground that Respondent No. 1 had assembled for the first time on 10.03.07 itself and decided the case in favour of the .. 4 ..
department. The Appellant could not have been forced to occupy lower scale accommodation as permanent. The station HQ Jaipur therefore, was under obligation to issue NAC to the Appellant till accommodation commensurate to his entitlement was allotted to him. The non reply by Respondent No. 2 and non issuance of NAC has resulted in Respondent No. 1 passing an Arbitrary order in haste against the Appellant. The non issuance of NAC and the ground of allotment of lower grade accommodation to appellant was unjustified. Respondent No. 1 after hearing the arguments had informed Ld. Counsel for Appellant that fresh date of hearing will be sent but instead of another date, copy of order passed on 10.03.07 was received in which department was given liberty to initiate recovery of damages for unauthorized use of public premises against the Appellant. The impugned order is alleged to be biased, one sided and is passed in breach of trust without affording opportunity of leading evidence to the Appellant. Respondent No. 1 did not ask for the reasons for non issuance of NAC from Station HQ, Jaipur. The impugned order is alleged to have been passed by violating the principles of Natural justice and the same has caused mental harassment and financial hardship to the Appellant. It has thus been urged that appeal against .. 5 ..
the impugned order be accepted.
I have heard Ms Sheela Singh Advocate Ld. Counsel for the Appellant, Ms Jasmeet Kaur, Advocate Additional standing government Counsel on behalf of the Respondents and carefully perused the file.
So far as the contention of Defendant of violation of the Audi Alterem Partem by Respondent No. 1 is concerned, it was laid down in Dr K R K Talwar Vs Union of India, AIR 1977 Delhi 189 that 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 effecting his rights can be passed. The rule 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 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 refusing to defend himself.
Reverting to the proceedings conducted by .. 6 ..
Respondent No. 1, it transpires that notice dated 25.11.06 U/s. 4 (1) and section 4 (2) (b) (ii) of Public Premises Act was issued to the appellant of which he had submitted a detailed reply dated 8.12.06 running into 10 pages. Although the proceedings thereafter were fixed for 16.12.06 and 03.02.07 but since Respondent No. 1 remained busy in other official commitments, no proceedings had taken place. The matter had ultimately been posted for 10.3.07 when the arguments on behalf of the department as well as the appellant were heard. Respondent No. 1 appears to have thereafter dictated the impugned order there and then. The appellant had then filed an appeal dated 20.4.07 for revising the impugned order. The notices for appearance before Respondent No. 1 were issued to the appellant besides his Counsel. Appellant however never appear in the proceedings before him. It is not his case that notices of appearance were not served on them. It is interesting to note here that the matter before Respondent No. 1 was pursued only by Ld. Counsel for the appellant without producing any authority/ Vakalatnama from her client. Reply to notice dated 25.11.06 and even the appeal dated 20.04.07 was filed only by Ld. Counsel for the appellant. In the appeal dated 20.04.07 filed .. 7 ..
before Respondent No. 1 it has been admitted on behalf of the appellant that the matter was heard on 10.03.07 during the Court proceedings but Ld. Counsel for the appellant was not made aware that orders will be passed on that very day. Even in appeal filed before this Court it has been admitted on behalf of the appellant in ground (G) of appeal that after hearing the arguments Respondent No. 1 had told the Counsel that a fresh date of hearing may be sent to them on which they can appear. No such assertion had been made by the Counsel in appeal dated 20.04.07. Apparently it has been incorporated in the present appeal as an improvement by way of after thought.
The proceedings under notice U/s. 4 of Public Premises Act are summary in nature. It was only to afford a hearing to the person who is alleged to be an unauthorized occupant of public premises. Neither any detailed inquiry nor evidence needed to be taken at that stage. Even otherwise it is not being contended on behalf of the appellant that the documentary evidence produced by him has not been taken into account by Respondent No. 1 while making the impugned order. It is for the Presiding Officer to fix the time of passing an order after hearing arguments on behalf of the parties. The parties really have no say in the matter nor can .. 8 ..
insist that the order should not be passed on that very date or that it should be passed after a few days. There is nothing incoherent in passing order by Respondent No. 1 on 10.03.07 itself, the day on which he had heard the arguments of parties. The allegations of Respondent No. 1 being bias as he belonged to the department, also have to be repelled. Such a contention was negatived in Northern India Caterers Private Ltd Vs State of Punjab, ILR 1963 (1) Punjab 761. To the similar effect was held in M L Joshi Vs Director of Estates, Govt of Delhi, AIR 1967 Delhi 86 .
Although the appellant seems unhappy over his transfer from field area to South Western Command, Jaipur in just 20 months but that cannot be made a bone of contention in these proceedings as the transfers and postings are effected by the employer as per the work exigencies and requirement.
The appellant had admittedly received copy of impugned order 2.4.07 yet filed the appeal only on 2.5.07 which is much beyond the prescribed period of limitation of 12 days. Neither condonation of delay has been sought nor any reasons for condonation have been specified in the appeal itself.
The main grievance of appellant is non issuance .. 9 ..
of NAC by Respondent No. 2 after 17.03.06. As per rule 70 of Special Army Order, 1986 regarding provision of accommodation and allied services and recovery of quartering charges from service officers, an officer on transfer from one peace station to another can retain family accommodation on payment of normal rent at the last duty station up to the end of current School/College academic year of his children. The appellant therefore was issued NAC by Respondent No. 2 from 21.6.05 to 17.03.06 on being posted from field area to South Western Command in May 2005. Since he could not make out the ground for issuance of further NAC, his DEO hired accommodation at Delhi was cancelled w.e.f 18.03.06. It has been held in Dr K.R.K Talwars case by a division bench of Hon'ble High Court of Delhi that the lesser or the allotter has an absolute right to terminate the lease/licence or cancel the allotment. It is not permissible in the course of judicial review to probe into reasons for such action. The justifiability of withholding the issuance of NAC, therefore cannot be gone into. Similar sentiments were expressed in subsequent judgment of Hardwari Lal Verma Vs the Estate Officer, AIR 1977 Delhi 268.
Even though the DEO hired accommodation of Janak Puri was initially allotted to appellant when he was on .. 10 ..
study leave in Delhi. His occupation thereof became unauthorized on his transfer to another peace station in Jaipur where he chose not to occupy the Captain's Married Accommodation even on temporary basis and non submission of NAC at Delhi Station. It was held in Indian Bank Vs M/s Blaze and Central P Ltd , 1986 (1) Rent LR 560 that provisions of the Public Premises Act is applicable to eviction of persons whose occupation is unauthorized. The occupation becomes unauthorized when licence/tenancy is terminated by the public authority.
Appellant has not mentioned even for instance that officers junior to him at Jaipur had been allotted/offered better accommodation than what was offered to him. Nothing concrete was produced before Respondent No. 1 to assess that NAC for period subsequent to 17.03.06 was not issued by the station HQ deliberately or to satisfy some ulterior motive.
The impugned order is well reasoned and has touched each and every relevant aspect raised before him. There is nothing to perceive that the order has been passed in haste.
For the afore going reasons, the appeal is found to be barred by limitation and also devoid of merits. It is hereby dismissed.
ANNOUNCED IN THE OPEN (SUNIL KR AGGARWAL) COURT ON DATED: 08.10.07 ADDL. DISTRICT JUDGE DELHI RCA No. 05/07 8.10.07 Present: None for the parties.
Vide separate judgment dictated and announed. The appeal has been dismissed. The original record called from Respondent No. 1 be returned through Ld.. Additional Standing Government Counsel with a copy of judgment . Appeal file be consigned to record room.
(Sunil Kr Aggarwal) ADJ/Delhi 08.10.07