Delhi High Court
Mwo(Hfo) Vinod Bihari (Retd.) vs Union Of India (Uoi) And Ors. on 18 November, 2004
Equivalent citations: 115(2004)DLT327
Author: Mukundakam Sharma
Bench: Mukundakam Sharma, Gita Mittal
JUDGMENT Mukundakam Sharma, J.
1. By filing this petition the petitioner has prayed for quashing and setting aside the order dated 1.12.2001 issued by the respondents directing for recovery of an amount of Rs.37,775/- from the petitioner's account, which is sought to be recovered as damages for alleged unauthorised occupation of official accommodation.
2. The petitioner was held on the posted strength of Central Civil Servicing Development Organisation, Subroto Park, New Delhi with effect from 14.8.1995 and was brought within the authorised married establishment category for the purposes of allotment of government accommodation from the aforesaid date. In June 2000, he was informed about the completion of five year's of stay in Station Married Quarter (SMQ) by him and was instructed to vacate the SMQ on or before the due date i.e. 14.8.2000 as per Air Headquarter letter dated 30.9.1999.
By the aforesaid circular dated 30.9.1999, it was communicated that the period of occupation of allotted quarter would be regulated under the provisions of para 29 of the AFO 6/95. Relevant portion of paragraph 29 reads as follows:
"29. The period of occupation of quarter allotted to an airman is to be regulated as under:-
(a) An airman posted to family station will be allowed to continue to remain within AME / stay in the station married quarter for a period of five years.
(b) Where local conditions so require the period of stay in SMO can be reduced to less than five years to ensure availability of this facility to other airmen also by rotation. This period is to be judiciously determined by the Station Commander ... ... ... .
(c) The period of five years will reckon from the date an airman is brought within the AME and becomes entitled to CILQ.
(d) .... .... .... .... ....
(e) .... .... .... .... ...."
3. The petitioner, however, on 10.8.2000 prayed for retention of SMQ beyond five years till 30.9.2001 when he would be superannuating. However, since as per existing policy, retention of SMQ beyond five years was not feasible, it was intimated to the parent unit of the petitioner and also the petitioner that if the petitioner fails to vacate the SMQ by due date, he will be declared unauthorised occupant of the said accommodation.
4. Despite the aforesaid communications issued to the petitioner and received by him, the petitioner did not vacate the official accommodation on the due date i.e. on 14.8.2000. Therefore, after waiting for about 30 days a show cause notice was issued to the petitioner on 15.9.2000 under Appendix 'A' to sub section 3 of Section 7 of Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The petitioner was directed to submit his reply on or before 26.9.2000.
The petitioner in response to the aforesaid show cause notice submitted his reply and pleaded for retention of the aforesaid SMQ up to 30.9.2001 contending, inter alia, that although the name of the petitioner was registered for quarter on 14.8.1995, the petitioner could get the quarter only on 8.8.1997 i.e. after two years of waiting and, therefore, he is entitled to be in occupation of the said quarter for another period of two years i.e. up to 8.8.2001 and since the petitioner is superannuating on 30.9.2001, he should be allowed to retain the quarter till then.
5. The aforesaid request for extension given by the petitioner was not found acceptable by the Estate Officer and another show cause notice under Appendix 'B' to sub section (1) and 2(A) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 was served on the petitioner on 9.10.2000 declaring him as unauthorised occupant and levying damage rate of rent with effect from 14.8.2000. He was also instructed to vacate the SMQ on or before 23.10.2000. Even despite the said notice, the petitioner did not vacate the SMQ. Therefore, a letter was addressed to the Commanding Officer of the petitioner requesting him to direct the petitioner to vacate the SMQ immediately failing which to initiate disciplinary action for his disobedience of lawful orders.
6. As the petitioner still did not comply with the notice demand, in May 2001, he was served with another show cause notice under Appendix 'C' to sub section (1) of Section 4 of Public Premises (Eviction of Unauthorised Occupants) Act, 1971. In his reply filed as against the aforesaid show cause notice, the petitioner again pleaded for retention of SMQ till his superannuation upon which the petitioner was again served with another show cause notice as contemplated under sub section (1) of Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
7. The petitioner finally vacated the premises only on 2.7.2001. The respondents consequently took steps for initiation of action to recover the damage rate of rent from 14.8.2000 to 2.7.2001. On 14.9.2001, the petitioner put up an application for exemption from recovery of damage rate of rent.
The same was considered by the Estate Officer and on consideration of the same, he waived three month damage rate of rent. Accordingly an order was passed for levying and recovery of damage rate of rent from the petitioner for the period from 14.11.2000 to 2.7.2001.
Consequent thereto, action for recovering damage rate of rent from the petitioner for the period from 14.11.2000 to 2.7.2001 was initiated and the said amount of Rs.37,775/- was recovered from the petitioner. As against the aforesaid action of the respondents, the present petition is filed in this Court.
8. Counsel appearing for the petitioner submitted before us that the petitioner was Master Sergent Officer and, therefore, he was not an airman as contemplated under para 29. Therefore, the provision, which was made applicable to the case of the petitioner, is in fact not applicable.
The aforesaid statement of the counsel for the petitioner was considered by us. In this connection, reference may be made to the definition of 'airman' and 'officer' as given under the Air Force Act, 1950:
""airman" means any person subject to this Act other than an officer.
"officer" means a person commissioned, gazetted or in pay as an office in the Air Force, and includes-
(a)an officer of any Air Force Reserve or the Auxiliary Air Force who is for the time being subject to this Act;
(b)in relation to a person subject to this Act when serving under such conditions as may be prescribed, an officer of the regular Army or the Navy;
but does not include a junior commissioned officer, warrant officer, petty officer or non-commissioned officer."
9. The aforesaid definitions of both the "officer" as also of the "airman" make it crystal clear that the petitioner was not a commissioned officer and was working below a commissioned officer in the rank of Master Warrant Officer and, as such, he clearly comes within the ambit of the definition of "airman". Therefore, the petitioner is also governed by the provisions of para 29 of AFO 6/95. The first contention of the petitioner, therefore, is found to be without any merit and it is held that the petitioner was an airman as envisaged under para 29 and is governed by the said provision.
10. Having decided thus, we may now proceed to scrutinise the provisions of para 29(a) and (c), which have been extracted above.
11. We are informed that "AME " is the abbreviation for Authorised Married Establishment and "CILQ" for Compensation in Lieu of Quarter. A reading of the said provisions also makes it crystal clear that an airman posted to a family station could continue to remain within the authorised married establishment and get compensation or stay in the SMQ for a period of five years. As to how the period of five years will be reckoned is also specified in the aforesaid paragraph 29. The said period of five years will be reckoned from the date an airman is brought within the authorised married establishment and becomes entitled to compensation in lieu of the quarter. Any overstay in the quarter after the aforesaid period of five years would be construed as unauthorised occupation.
12. In the present case there could be no dispute that the petitioner was brought within the authorised married establishment for the purpose of allotment of government accommodation from 14.8.1995. However, at that stage, no station married quarter was available and, therefore, the petitioner was given compensation in lieu of the quarter i.e. CILQ. The petitioner was provided a quarter on 8.8.1997 from which date the aforesaid compensation in lieu of compensation was stopped by the respondents. On the face of the aforesaid facts, it is clearly proved and established that the petitioner was enjoying the benefits of the station married quarter with effect from 14.8.1995 and in terms of the aforesaid para 29 of the Air Force Order No.06/95, the petitioner was entitled to remain in the station married quarter till 14.8.2000 on which date the five years' period as stipulated had expired.
13. The said fact was brought to the notice of the petitioner again and again by the respondents. The petitioner, however, did not pay any heed to the aforesaid advice of the respondents and continued to remain in unauthorised occupation of the said government property and, therefore, he is required to pay market rate of rent. As the petitioner was in unauthorised occupation of the government property, the respondents were entitled to raise bills against the petitioner charging damage rent for the quarter from the date the petitioner was ineligible to retain the said quarter. A similar question, as appearing for consideration in this case, was also raised in the case of Ashwani Mathur v. Chief of The Air Staff and Anr. WP(C) 2569/2003. In the said case also on similar facts, a writ petition was filed and the same after consideration was dismissed by this Court by judgment dated 12th August, 2004.
14. In our considered opinion, the ratio of the aforesaid decision is also applicable with full force to the facts of the present case.
15. The other contention, which is also raised by the petitioner, is that in cases of four other persons, whose cases are specifically mentioned by the petitioner in paragraph 5, they were allotted quarters within six months of their waiting and that they were allowed to continue occupation of the said premises for more than 41/2 years whereas the petitioner was forced to vacate the quarter after three years of stay.
The respondents have dealt with the aforesaid allegation in their counter affidavit and have stated that these personnel were from `CAMERO' while the petitioner is under CSDO. As per policy, waiting list roster was maintained separately for personnel from the CAMERO and CSDO. The said persons were allotted SMQ as per their turn in the waiting list of their roster i.e. CAMERO whereas as per the waiting list of CSDO, the petitioner's turn did not come up for allotment of SMQ and as such he could not be allotted SMQ. It is pointed out that the cases of those four person stand on different footing and they cannot be equated. It is also stated that the period of stay in SMQ is counted from the date of authorised married establishment and till the Air Force married personnel are allotted SMQs, they are paid compensation in lieu of quarter.
16. In our considered opinion, therefore, the cases of those four persons cannot be equated with that of the petitioner as they stand on different footing. Even otherwise, there is no case of discrimination made out in the facts of the present case as the petitioner was paid the compensation for the period he could not be provided SMQ, which he had availed of. The rules do not permit occupation beyond five years. If an action is taken in accordance with the provisions of law and the rules as applicable, the said action cannot be faulted on the ground that in some other cases, the respondents have acted in a manner opposed to the extant provision of law. In this connection we may also appropriately state that in the instant case the respondents have themselves waived three months penal market rent and have demanded the same only for the remaining period of unauthorised occupation. The respondents also granted to the petitioner several opportunities to vacate the accommodation. The petitioner did not choose to avail of such opportunities and consciously delayed the matter and continued to occupy the premises without any authority.
17. Therefore, in the light of the aforesaid discussion, we find no merit in this petition and the same is dismissed.