Central Administrative Tribunal - Delhi
Balraj Singh Malik vs M/O Defence on 4 May, 2016
Central Administrative Tribunal
Principal Bench
OA No. 1958/2014
Order Reserved on: 19.04.2016
Order Pronounced on: 04.05.2016
Hon'ble Dr. B.K. Sinha, Member (A)
Balraj Singh Malik,
S/o Shri Hari Singh,
R/o T-9/1, Sanyat Line,
Delhi Cantt-110010 - Applicant
(By Advocate: Shri A.K. Trivedi)
VERSUS
1. Union of India
Through its Secretary,
Ministry of Defence,
South Block, New Delhi
2. The Station Commander,
Station Headquarters,
Delhi Cantt-110010
3. The Chief Engineer,
HQs Chief Engineer Delhi Zone,
Delhi Cantt-110010
4. The Garrison Engineer, New Delhi,
Delhi Cantt-110010 -Respondents
(By Advocate: Shri Rajeev Kumar)
ORDER
The sole issue to be resolved in the instant Original Application is that whether initiation of proceeding under Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as "Eviction Act") bars the 2 jurisdiction of the Administrative Tribunals Act, 1985 (for short, AT Act) to deal with the matter relating to eviction of unauthorized occupants from Government quarters.
2. The facts of the case, in brief, are that the applicant, a Junior Engineer, who is presently working in the office of Garrison Engineer, Delhi Cantt, New Delhi, had been allotted Government married accommodation No. T-9/1, Sanyat Line (Type-II) Gen Pool on a regular basis vide HQ allotment letter dated 08.05.2008. He was posted from GE (P) (Central), Delhi Cantt to GE (AF) Suratgarh vide central move order dated 04.02.2012. He requested for retention of the afore accommodation vide letter dated 13.02.2012 on being posted to GE (A/F), Suratgarh being a tenure station. As per Govt. of India, Ministry of Defence letter dated 31.01.1995, he was given retention sanction w.e.f. 04.02.2012 till serving in Suratgarh, i.e. tenure station. Now he has been posted back to GE, New Delhi from GE(AF) Suratgarh and joined on 23.04.2014. He submitted a representation dated 08.05.2014 informing the Station Commander, Delhi Cantt about his arrival to Delhi and his posting to GE, New Dlehi and requested the respondents that he could be allowed to retain the said quarter with his family till allotment of Type-III accommodation, as he is entitled for Type-III accommodation. His representation 3 had been duly recommended and forwarded by his parent unit vide letter dated 09.05.2014. He submits that without taking any decision on his representation, respondent Station Commander issued a show cause notice dated 10.05.2014 to him alleging that he had not informed this HQ regarding posting out and had been required to vacate the said accommodation by 25.04.2014. The applicant in reply dated 24.05.2014 requested for the supply of the order dated 25.05.2012 and communication of Ministry of Defence dated 07.04.2004 to enable him to file suitable reply. He submits that without supplying the details of the afore order as asked by him, the respondents issued an order dated 21.05.2014 cancelling the allocation of said accommodation without quoting any rules.
3. The applicant has, therefore, sought the following reliefs:-
i) Quash/set aside the Impugned order dated 21/05/2014 declaring as illegal, unjust, arbitrary and against the provisions of SRO- 308/78.
ii) Direct the respondents to allow the applicant to retain/occupy the present Govt. Accn. T-9/1, Sanyat Line, Delhi Cantt allotted to the applicant.
iii) Any other relief, which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case, may also be passed in favour of the Applicants."4
4. The applicant has pressed several grounds for his Original Application: posting to Suratgarh was a hard tenure station where there was no married accommodation; he has joined at the same station back; there are instances where similarly situated person have been allowed to retain such accommodations on their posting back for the reason that family could not have been accommodated to a hard station; he fulfills the conditions laid down in SRO- 308/78 and has resumed his duties in an eligible office at the same station; the entire exercise is being done in an opaque manner on the basis of 'pick and choose'; and no notice has been issued under Eviction Act as yet, thereby making reference under Sections 15 and 16 of Eviction Act are inapplicable.
5. The respondents having filed their counter affidavit denying the averments save those which are being made in the factual matrix. In the first instance, the respondents have questioned the jurisdiction of this Tribunal once recourse to proceeding under Eviction Act has been undertaken. In the second instance, the applicant has approached this Tribunal against show cause notice dated 10.05.2014, which admittedly was technically incorrect and had been cancelled and a fresh notice dated 02.06.2014 had been issued. The applicant was required to file reply to 5 the said notice before the department to justify his position, thereby it is barred under Section 20 of the AT Act. In the third instance, the respondents submit that the applicant has now been posted out from GE (AF), Suratgarh to GE, New Delhi vide move order dated 05.04.2014. Neither the parent unit of the applicant nor the applicant himself has informed the headquarter regarding his posting out. The respondents are, therefore, prayed for dismissal of the OA.
6. The applicant has submitted a rejoinder application wherein he has largely reiterated his earlier averments.
7. The respondents have filed their written submissions and have also relied upon the decided cases of Union of India Vs. Rasila Ram & Ors., (2001)10 SCC 623 and Sudhir Kumar Dhuliya Vs. Union of India & Ors. (OA No. 1081/2014 decided on 05.03.2015).
8. I have considered the pleadings of rival parties as also the documents adduced and the citations relied upon on either side and have patiently heard the arguments advanced by the learned counsel for the parties.
9. Before I embark upon the examination of the matter, the issue relating to jurisdiction has to be satisfied. The facts having been stated, I refer to the provisions of Eviction Act. There is no dispute over the fact that the 6 premises under question constitute public premises within the meaning of 2(e) of the Eviction Act. The power of eviction for temporary occupation has been provided under Section 3A of the Eviction Act which for the sake of greater clarity is being reproduced as hereunder:-
3A. Eviction from temporary occupation.-- Notwithstanding anything contained in section 4 or section 5, if the estate officer, after making such inquiry as he deems expedient in the circumstances of the case, is satisfied that any persons who were allowed temporary occupation of any public premises are in unauthorised occupation of the said premises, he may, for reasons to be recorded in writing, make an order for the eviction of such persons forthwith and, thereupon, if such persons refuse or fail to comply with the said order of eviction, he may evict them from the premises and take possession thereof and may, for that purpose, use such force as may be necessary."
10. Section 4 relates to issue of show cause notice against eviction. This Section provides that where the Estate Officer is of the opinion that a person is in unauthorized occupation of some public premises that he should be evicted, he shall proceed to issue notice in writing for all persons concerned to show cause. For the sake of greater clarity, Section 4 is being reproduced as below:-
"Issue of notice to show cause against order of eviction.--
(1) If the estate officer is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, the estate officer shall issue in the manner hereinafter provided 7 a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made.
(2) The notice shall--
(a) specify the grounds on which the order of eviction is proposed to be made; and 13
(b) require all persons concerned, that is to say, all persons who are, or may be, in occupation of, or claim interest in, the public premises,--
(i) to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than seven days from the date of issue thereof; and
(ii) to appear before the estate officer on the date specified in the notice along with the evidence which they intend to produce in support of the cause shown, and also for personal hearing, if such hearing is desired."
11. Section 5 provides for the process of eviction which is within the competence of the Estate Officer. This Section reads as follows:-
"5. Eviction of unauthorised occupants.--
(1) If, after considering the cause, if any, shown by any person in pursuance of a notice under section 4 and 1[any evidence produced by him in support of the same and after personal hearing, if any, given under clause (b) of sub-section (2) of section 4], the estate officer is satisfied that the public premises are in unauthorised occupation, the estate officer may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.8
(2) If any person refuses or fails to comply with the order of eviction 1[on or before the date specified in the said order or within fifteen days of the date of its publication under sub-section (1), whichever is later,] the estate officer or any other officer duly authorised by the estate officer in this behalf 1[may, after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person] from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary."
12. Section 15 of the Eviction Act has barred the jurisdiction of courts to entertain any suit or proceeding in respect of eviction. For the sake of greater clarity, the said Section is being reproduced as follow:-
"15. Bar of jurisdiction.--No court shall have jurisdiction to entertain any suit or proceeding in respect of--
(a) the eviction of any person who is in unauthorised occupation of any public premises, or
(b) the removal of any building, structure or fixture or goods, cattle or other animal from any public premises under section 5A, or
(c) the demolition of any building or other structure made, or ordered to be made, under section 5B, or (cc) the sealing of any erection or work or of any public premises under section 5C, or]
(d) the arrears of rent payable under sub-section (1) of section 7 or damages payable under sub-section (2), or interest payable under sub-section (2A), of that section, or
(e) the recovery of--
(i) costs of removal of any building, structure or fixture or goods, cattle or other animal under section 5A, or
(ii) expenses of demolition under section 5B, or 9
(iii) costs awarded to the Central Government or statutory authority under sub-section (5) of section 9, or
(iv) any portion of such rent, damages, costs of removal, expenses of demolition or (i) costs awarded to the Central Government or the statutory authority."
13. Now the issue is that whether non-issue of notice empowers the Tribunal to entertain such cases. In this regard, the very purpose for which the enactment has been made is to ensure that the unauthorized occupants are evicted completely from the public premises and all illegal unauthorized constructions are demolished and the land freed from encroachment. This being the purpose to my mind, the jurisdiction of the Estate Officer shall commence with the date of reference and not with the issue of notice.
14. Section 4(1) clarifies that the Estate Officer, on a reference, shall issue notice in case he is of the opinion that a person is in unauthorized occupation of public premises. Likewise, the Estate Officer also has authority to decline to issue notice where he is of the opinion that the person is not in authorized occupation. However, in both these cases, the Estate Officer has jurisdiction. This requires that the case should be contested before the Estate Officer. In other words, the parties should submit to the jurisdiction of the Estate Officer. Any recourse to subterfuge otherwise would be tantamount to denying 10 lawful jurisdiction of the Estate Officer. Therefore, once reference has been made, the application acquires right to approach the Estate Officer and plead his case before him. In this respect, I find that a show cause notice dated 10.05.2014 has been issued to the applicant which is on record. Para 4 of the said notice reads as under:-
"4. I would call upon you by way of this Notice to Show Cause/written reply with 10 days of receipt of this Notice as to why your case should not be tfr to EO's Court for eviction and charging of damage rate of rent w.e.f. 26 Apr 2014 till date of vacation under the PP (EUO) Act, 1971."
It would be clear from the afore para that the show cause is only in respect of reference to EO's Court for eviction and charging of damage rate of rent w.e.f. 26.04.2014. Nowhere has it been pleaded by the respondents that a reference to EO's court has actually been made. Per contra it appears that no such reference has been made as yet.
15. The preliminary issue raised by the respondents relates to non compliance of Section 20 of the AT Act. Under this provision, it was incumbent upon the applicant to have exhausted all the formal channels of vindication of grievances. In this case, I find that he has not even replied to the notice dated 02.06.2014. Therefore, non compliance with the statutory provision under Section 20 renders the Original Application unsustainable. The applicant should 11 have replied to show cause notice dated 02.06.2014 and should have exhausted the channels of vindication of her grievances.
16. In the case of Sudhir Kumar Dhuliya vs. Union of India & Ors. (OA No. 1081/2014 decided on 05.03.2016), this Tribunal has held that service of notice has been taken as point of initiation of proceeding. In this regard, para 7 of the said order is being reproduced as under:-
"7. I have heard the learned counsel for the Applicant Shri A.K. Trivedi and the learned counsel for the Respondents Ms. Pooja Wahal. As rightly submitted by the learned counsel for the Respondents, proceeding under the P.P. (EUO) Act, 1971 has already been initiated against the Applicant by serving him a notice on 26.03.2014. The said Act also provides for appeal against the orders of the Estate Officer. Therefore, it is not in the interest of justice to interfere in the matter by this Tribunal at this stage. Accordingly, this OA is dismissed. There shall be no order as to costs. "
Being guided by this precedent, I am of the opinion that since notice has been served, the proceeding is said to have been initiated.
17. In view of the afore two conclusions which have drawn against the applicant that non exhaustion of channels of vindication of grievances and the jurisdiction of EO's court arising, I find that the OA is bereft of merit and is fit to be dismissed. Therefore, I order the following:-
(i) The OA is dismissed as unsustainable;.12
(ii) However, the applicant has option to file a fresh show cause which shall be considered by the respondents.
(iii) There shall be no order as to costs.
(Dr. B.K. Sinha) Member (A) /lg/