Delhi District Court
Sh. Bhishma Kumar Chugh vs Estate Officer (D)Ii on 11 August, 2017
In the Court of Ms. Poonam A. Bamba, District & Sessions Judge
New Delhi: Patiala House Courts, New Delhi.
In the matter of :
PPA No. 291/16
In the matter of :
Sh. Bhishma Kumar Chugh
H.No. 703, Tower 20
Common Wealth Games Village
New Delhi110 092 ...... Appellant
Versus
Estate Officer (D)II
Delhi Development Authority
ABlock, Ground Floor, Vikas Sadan
INA, New Delhi110 023. ..... Respondent
APPEAL UNDER SECTION 9 OF THE PUBLIC flat (EVICTION OF UNAUTHORIZED OCCUPANTS) ACT, 1971 ON BEHALF OF THE APPELLANT AGAINST THE ORDER DATED 18.07.2016 Date of filing : 03.09.2016 Arguments concluded on : 11.08.2017 Date of judgment : 11.08.2017 J U D G M E N T : 1.0 Vide this judgment, I shall dispose of the appeal of Sh.
PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 1 of 31Bhishma Kumar Chugh, under section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 ("the PP Act" in short) against the order dated 18.07.2016 ("the impugned order" in short) under sub Sections (1) and (2A) of Section 7 of PP Act, passed by the Estate Officer directing the appellant to pay a sum of Rs.2,43,268/ together with compound interest @18% per annum, for unauthorized occupation of flat i.e. Staff Quarter No.7/4, Bhagwan Das Road, New Delhi ("the said flat" in short) 2.0 The facts in brief as per the appeal are that
(i) on 04.07.2008, the appellant was appointed as the Engineer Member, Delhi Development Authority (DDA). Pursuant thereto, on 25.12.2008, he was allotted the said flat. On 09.03.2009, the appellant was promoted to a higher grade as Additional Director General (Works) (Spl) in CPWD. But he continued to work regularly as Engineer Member, DDA up to 17.04.2009 and also on his new assignment, from DDA Vikas Sadan itself, as no Engineer Member was posted. To his utter shock, he received a letter no.5.5(4)/2008/SQ/735 dated 03.08.2009 canceling the allotment of the said flat and calling upon him to hand over the vacant possession of the same and also to pay Rs.1,26,360/ towards licence fees and market rent, being in PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 2 of 31 alleged unauthorized occupation of the said flat. The same was replied to by him vide letter dated 17.08.2009 informing DDA that he has not been allotted any accommodation in the general pool so far and made a request for exchange of said DDA flat occupied by him. On which, Secretary, Ministry of Urban Development remarked in letter dated 17.08.2009 that "Since, it may take time to allot him a house by DE, DDA may be asked to allow him to continue. This much consideration they should give";
(ii) he was allotted general pool accommodation on 29.12.2009, which required repairs. The said accommodation was ready for occupation only on 25.05.2010 and the possession of the same was taken on 26.05.2010. The appellant vacated the said flat on 31.05.2010. Thus, there was no delay in vacating the said flat. He had made a request for regularization of the said flat up to 31.05.2010 on normal licence fee basis as both DDA and CPWD are under the same ministry i.e. Ministry of Urban Development. Further, during the period 18.04.2009 to 25.05.2010, the appellant had been regularly paying HRA from his salary to CPWD;
(iii) to his surprise, DDA vide letter dated 18.10.2010 PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 3 of 31 raised a demand of Rs.5,85,360/ on account of damages. It also mentioned that in case the appellant submitted the necessary documents regarding his daughter's treatment, then the amount of recovery would be Rs. 3,21,432/ after approval of the competent authority. Vide letter dated 21.10.2010, the appellant provided the relevant details and medical documents of his daughter's treatment. In response, DDA vide letter dated 11.11.2010 allowed the retention of the said flat to the appellant upto 08.05.2009 on payment of normal licence fee and on double the licence fee upto 29.12.2009 and damages/market rent was demanded for remaining period w.e.f. 30.12.2009 to 31.05.2010 and a total demand of Rs.2,45,767/ was raised from the appellant in complete violation of the rules and regulations;
(iv) the appellant vide letter dated 11.03.2011 had pointed out the factual error in the said demand letter. In view of the same, once again a request for regularization of the said flat from 17.04.2009 to 25.05.2010 was made. But without assigning any reason he was asked to deposit Rs.2,43,268/ on account of arrears of rent along with compound interest @18% w.e.f. receipt of the order till its final payment;
(v) after a gap of many years all of a sudden, DDA issued PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 4 of 31 notices dated 29.07.2015 and 18.04.2016 calling upon him to show cause why an order for payment of aforesaid amount be not passed against him;
(vi) in response to the above notices, he made a representation vide letter 28.04.2016 to Vice Chairman DDA, explaining the entire facts. But, DDA vide letter dated 03.06.2016 informed that his representation cannot be acceded to and he was again called upon to pay the aforesaid dues. He vide his letter dated 13.07.2016 addressed to Director (Nazarat Branch, DDA Staff Quarter Allotment Branch, Vikas Sadan, New Delhi) and copy to the Estate Officer informed about the prejudice against him. But, the said letter was refused to be received by the Estate Officer.
3.0 The appellant has challenged the impugned order inter alia on the grounds that :
(i) the impugned order is passed in violation of principles of natural justice. The Estate Officer erred in holding that the appellant had not filed any reply on merits of the case and further erred in assuming that the appellant had nothing to say against the demand made by DDA. The Estate Officer even failed to consider that he had filed representation dated PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 5 of 31 13.07.2016 before the DDA. The Estate Officer even failed to consider the representations dated 28.04.2016 and 13.07.2016;
(ii) the impugned order was passed without following due procedure of law;
(iii) the Ld. Estate Officer failed to consider that the appellant had been regularly paying the HRA to the DDA during his employment with DDA and then to CPWD after repatriation and both the departments come under the same Ministry of Urban Development; and therefore, DDA's demand to deposit a sum of Rs.2,43,268/ along with compound interest for alleged unauthorized occupation and overstay in the said flat for the period between 18.04.2009 to 25.05.2010 amounts to double deduction and that it is at best a case of set off of charges between the two departments;
(iv) the Ld. Estate Officer failed to consider that the appellant was allotted General Pool Accommodation No. CII/151, Satya Marg, Chankayapuri, New Delhi on 29.12.2009 but the said accommodation could not be occupied as it was under repair; and the possession of the same could be taken over only on 26.05.2010. Soon thereafter, he vacated the said flat on 31.05.2010;
PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 6 of 31(v) the Ld. Estate Officer failed to consider that DDA without assigning any reason illegally and arbitrarily passed the order dated 03.06.2016; on that basis the impugned order dated 18.07.2016 was passed illegally and arbitrarily by the Estate Officer.
4.0 On the other hand, it is the case of the respondent / DDA that :
(i) after his repatriation on 09.03.2009, as per rules, the appellant was entitled to retain the said flat only for a period of two months on payment of normal licence fee. But the appellant failed to vacate the said flat even after the permissible period. As the appellant did not vacate the said flat, he was asked to deposit the provisional amount of Rs.1,26,360 by DDA vide letter dated 03.08.2009 towards licence fees for the retention period from 10.03.2009 to 09.05.2009 @Rs.993/ per month and thereafter @ market rent of Rs.45,900/ per month as per DOE rates for overstay period w.e.f. 10.05.2009 to 31.07.2009;
(ii) in response to the DDA's letter dated 03.08.2009, the appellant vide his letter dated 12.08.2009 requested DDA to cancel the order of vacation and prayed for time for vacating PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 7 of 31 said flat till General Pool Accommodation was alloted to him. DDA vide its subsequent letter dated 24.02.2010 requested appellant to pay (provisional dues till 31.01.2010) to the tune of Rs.3,99,774/. Vide letters dated 08.04.2010 and 26.05.2010, the appellant was again requested to vacate the said flat and make payment of the outstanding dues. However, the appellant handed over the possession of the said flat only on 31.05.2010;
(iii) accordingly, again vide letter dated 18.10.2010, the appellant was called upon to pay damages for the overstay period (along with revised calculation sheet) but he did not deposit the demanded amount;
(iv) subsequently on appellant's representation, DDA vide letter dated 11.11.2010 allowed appellant to retain the said flat on double the licence fee for a further period (after 09.05.2009) till he was allotted accommodation by CPWD i.e. till 29.12.2009.
4.1 It is further submitted by the respondent/DDA that as the appellant failed to deposit the outstanding dues, the matter was referred to Estate Officer - II, Damage Section for taking action under PP Act. The Estate Officer after issuing notice under Section 7 PP Act to PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 8 of 31 appellant and giving him due opportunity of hearing, rightly passed the impugned order dated 18.07.2016 directing the appellant to pay a sum of Rs.2,43,268/ along with compound interest @18%per annum. There is no infirmity in the impugned order and therefore, this appeal deserves to be dismissed.
5.0 I have heard Sh. Gaurav Dua, Advocate, Ld. Counsel for appellant and Ms. Promila Kapoor, Advocate for the respondent/DDA and have perused the record carefully.
6.0 Admittedly, the appellant was on deputation with DDA. He was alloted the said flat by virtue of his deputation with DDA. The appellant got promoted in his parent cadre i.e. CPWD and took over the charge of the post of Additional Director General (Works Special) on 09.03.2009. It is also not disputed that DDA vide letter dated 03.08.2009 conveyed to the appellant that as per rules, the appellant could retain the said flat for a period of 2 months on licence fees basis after his repatriation and called upon him to handover the vacant physical possession of the said flat and to deposit Rs.1,26,360/ with Head Cashier (Cash Main) DDA on account of license fee for retention period w.e.f. 10.03.2009 to 09.05.2009 @993/pm and market rent for overstay period w.e.f. 10.05.2009 to 31.07.2009 @Rs.45,900/ pm as per D.O.E. rates as applicable in DDA. The said letter also mentions that this demand of Rs.1,26,360/ may be treated as provisional and final demand PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 9 of 31 will be sent by DDA after vacation of said quarter by the appellant.
6.1 Admittedly, the appellant did not vacate the said flat and vide his letter dated 12.08.2009 again requested DDA for further retention. DDA vide letters dated 24.02.2010, 08.04.2010 and 26.05.2010 repeatedly called upon the appellant to handover the vacant possession and also communicated to him the dues outstanding.
6.2 The apellant himself has stated that he vacated the said flat only on 31.05.2010. Admittedly, DDA vide letter dated 18.10.2010 again called upon the appellant to pay the outstanding dues on account of damages for overstay period and sent the said lettter with revised calculation sheet. Admittedly, the appellant did not deposit the demanded amount. Rather, he requested for regularisation of the retention period, which request was not acceded to. The appellant vide his letter dated 21.10.2010 again repeated his request for regularisation of the overstay period.
6.3 It may be mentioned that subsequently, considering the appellant's request, DDA vide letter dated 11.11.2010 regularised retention of the said flat on double the licence fee for a further period till he was allotted general pool accommodation by CPWD, which is not in dispute. Admittedly, the appellant was alloted PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 10 of 31 accommodation by CPWD on 29.12.2009. DDA's letter dated 11.11.2010 reads as under :
" Delhi Development Authority
Staff Quarters Allotment Branch
No. F.5(4)2008/SQ/962 Dated : 11.11.2010
To,
Sh. B.K. Chugh,
R/o CII/151, Satya Marg
Chanakya Puri,
New Delhi.
Sub : Regarding retention of S.Q. No. 7/4, Bhagwan Dass Road, New Delhi beyond the permissible period and payment of market rent/damages for overstay period.
Kindly refer to your letter No.PF/BKC/DG/CPDW/ 2010 dated 21.10.10 addressed to Director (Nazarat), DDA and copy endoresed to the VC, DDA on the subject cited above. In this context, I am directed to inform you that your representation has been examined by this office and it has been decided to allow retention of aforesaid staff quarter upto 08.05.2009 on payment of licence fee at normal rate and on double the rate of normal fee upto 29.12.2009. Damages/market rent is recoverable for the remaining period w.e.f. 30.12.09 to 31.05.2010. As per calculation sheet attached, an amount of Rs.2,45,767/ is recoverable from you.
It is therefore, requested to kindly arrange for payment of Rs.2,45,767/ to DDA for overstay period in r/o S.Q. No.7/4, Bhagwan Dass Road (TypeVI flat) immediately.
Dy. Director (SQ) Encl: As above."
6.3.1 It is also not in dispute that subsequently, the appellant vide PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 11 of 31 his letter dated 11.03.2011, which is reproduced hereunder pointed out that even after his promotion on 09.03.2009, he had held the charge of EM, DDA till 17.04.2009 and charges should be calculated from 18.04.2009 : "No.PF/BKC/DG(W)/2010 Dated 11 March, 2011 Shri G.C. Patnaik Vice Chairman Delhi Development Authority Vikas Sadan, New Delhi Subject : Retention of SQ No. 7/4, Bhagwan Das Road, New Delhi beyond the permissible period and payment of market rent. Respected Sir, As brought to your kind notice, during my request to you over telephone, I have not been issued the no dues certificate by DDA regarding my stay in SQ No. 7/4, Bhagwan Das Road, New Delhi. As such, I have not been able to get payment of my DCRG so far though I superannuated on 31 October, 2010.
2. In this connection, it is submitted that I had made a representation to DDA vide my even number dated 21.10.2010 which was considered by DDA vide No. F.5(4)/2008/SQ/962 dated 11.11.2010 and the dues were reduced to Rs.2,45,767/. However, this recovery statement had factual incorrectness on the following two grounds.
(i) The date of repatriation has been shown as 9.3.2009 whereas I handed over the charge of EM, DDA on 17.04.2009. Therefore charges/other charges should be counted from 18 April, 2009 onwards.
(ii) I was alloted a Government Accommodation by the Directorate of Estates, Qtr. No. CII/151, Chanakyapuri on 23.12.2009....... sd Bishma Kumar Chugh ................................."
6.3.2 Admittedly, considering the appellant's representation, DDA vide its letter dated 09.05.2011 revised its demand and reduced it to Rs.2,43,268/ from Rs.2,45,767/ calculating the dues w.e.f. 17.04.2009 i.e. from the date of his release from DDA.
PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 12 of 316.3.3 It is not in dispute that the aforesaid dues of Rs.2,43,268/ remain unpaid till date.
6.4 Admittedly, the appellant did not vacate the said flat even after allotment of general pool accommodation to him by CPWD on 29.12.2009; he admittedly handed over the vacant physical possession of the said flat only on 31.05.2010. Appellant has pleaded that the accommodation alloted by CPWD required repairs and the same was ready for occupation only on 26.05.2010 and he vacated the said flat on 31.05.2010; and that there was no delay in vacating the said flat. Vide his letter dated 21.10.2010, he had requested the DDA to consider his request for regularisation of the said flat for the period up to 31.05.2010 on normal licence fee basis as DDA and CPWD both are under same Ministry.
6.5 It is not in dispute that the appellant's request for regularisation till 31.05.2010 was not accepted. As noted above (in para 6.3 supra) vide letter dated 11.11.2010, the appellant's request for retention of the said flat was allowed only till 29.12.2009 (when he was alloted general pool accommodation by CPWD) on payment of double the licence fee.
PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 13 of 316.6 The appellant has failed to demonstrate his authority to occupy the said flat after permissible period of retention up to 29.12.2009. It may be mentioned that as per Section 2(g) PP Act, the expression "unauthorised occupation" in relation to any public premises means the occupation by 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 under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. Thus, the appellant was in unauthorised occupation w.e.f. 30.12.2009. The appellant's plea that he could not have vacated the said flat as accommodation alloted to him by CPWD was under repair and became ready only on 25.05.2010 does not in any manner entitle the appellant to occupy the said flat.
7.0 Now coming to the assessment of damages and their recovery. In view of the above, it has come on record that after his repatriation, the appellant was allowed to retain the said flat for a period of two months (w.e.f. 17.04.2009) on normal license fees @ Rs.993/; thereafter at double the license fee of Rs.993/ till 29.12.2009 (when he was allotted accommodation by CPWD); and then at market rent @ Rs.45,900/ till vacation i.e. 31.05.2010. The said dues worked out to be Rs.2,43,265/. The appellant has pleaded that the impugned order is passed in violation of principles of natural justice as the Estate Officer PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 14 of 31 failed to consider that he had made representations dated 28.04.2016 and 13.07.2016 to DDA and passed the impugned order without following the due procedure of law.
7.1 It is a matter of record that as the aforesaid dues remained unpaid, proceedings for recovery of damages under PP Act were initiated against the appellant.
7.2 Perusal of Estate Officer's record reveals that vide notice under Section 7 (3) of PP Act dated 17.07.2015, the appellant was called upon by the Estate Officer to show cause on or before 28.07.2015 why an order requiring him to pay arrears of rent along with compound interest to the tune of Rs.2,43,268/ for a period from 17.04.2009 to 31.05.2010 (both days inclusive), be not passed against him. Said notice was returned undelivered. Thereafter, fresh notice dated 29.07.2015 was issued to the appellant, which was admittedly received by the appellant. Vide said notice, the appellant was called upon to show cause on or before 08.08.2015 why such an order be not made against him, along with compound interest; and thereafter, yet another notice was issued to the appellant on 18.04.2016. Vide said notice dated 18.04.2016, the appellant was again called upon to appear before the Estate Officer on or before 29.04.2016 and show cause why an order requiring him to pay the arrears of rent of Rs.2,43,268/ along with compound interest should not be made.
PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 15 of 317.2.1 It is seen that on 29.04.2016, the appellant himself appeared before the Estate Officer and filed his reply/letter dated 28.04.2016 which was addressed to Vice Chairman, DDA, requesting DDA to consider its decision to recover damages from him and to cancel the notice dated 18.04.2016 issued by the Estate Officer and copy of the same was marked to the Estate Officer specifically mentioning that the same be considered as his reply. The relevant endorsement is reproduced hereunder :
"Copy to :
Sh. Vijender Singh, Estate Officer - II (Damage) DDA ABlock, G, Floor, Vikas Sadan, INA, New Delhi23. In view of above factual matter and my representation to ViceChairman, DDA, the aforesaid Notice No:F5(4)/2008/SQ/ Photo File/434 Dated 18.04.2016 may kindly be withdrawn/canceled and no dues may please be got issued to facilitate release of my pending DCRG. This endorsement may kindly be treated as my reply to the said notice issued by his office. (Encl: As above) (Bhishma Kumar Chugh)"
The matter was then adjourned to 13.05.2016 for department's reply.
7.2.2 On 13.05.2016 one Sh. Umang Chugh on behalf of the appellant appeared before the Estate Officer. As the reply from the department was awaited, the matter was adjourned to 24.05.2016. On 24.05.2016, the matter was adjourned for 24.06.2016 as the reply from the department was still awaited. On 24.06.2016, a telephonic message was received from the appellant that he was out of Delhi and sought PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 16 of 31 some more time. In view of the same, the matter was adjourned to 11.07.2016. On 11.07.2016, one Sh. Inder Kumar appeared on behalf of appellant and informed that the appellant was suffering from fever and the matter was then adjourned to 15.07.2016. On 15.07.2016, the appellant did not appear but sent a letter dated 13.07.2016 through his orderly Inder Kumar. Said letter dated 13.07.2016 was addressed to Director (Nazarat), DDA and copy was endorsed to the Estate Officer for information. Even vide this letter, the appellant only stated that his case has not been rationally appreciated on merits and a biased view has been taken asking him to deposit an amount of Rs.2,43,268/ along with compound interest. It is seen that the matter was then reserved for orders; and finally, the impugned order was passed on 18.07.2016.
7.3 In view of the above facts and circumstances and the record as reproduced herein above, it is more than evident that due opportunity of hearing was given to the appellant; the appellant had availed of that opportunity and filed his reply. Only thereafter, the Estate Officer proceeded to pass the impugned order, after considering appellant's reply. Thus, due procedure was followed by the Estate Officer.
LIMITATION 8.0 It may be mentioned that during oral arguments before this court, the appellant contended that the claim of respondent for recovery of damages is barred by limitation as the dues pertain to period up to PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 17 of 31 2010. But, the proceedings for recovery were intiated vide notices dated 29.07.2015 and 18.04.2016 i.e. beyond a period of three years. The appellant has placed reliance upon the judgement of the Hon'ble High Court in Union of India V. Deepa Sharma 230 (2016) Delhi Law Times 784, in support.
8.1 On the other hand, Ld. Counsel for the respondent/DDA submitted that the appellant was being repeatedly called upon to pay the outstanding dues and appellant himself had been corresponding with DDA for waiver of the outstanding dues till as late as 2016. He himself has stated that his representation was lastly rejected by DDA vide letter dated 03.06.2016. Therefore, the proceedings under PP Act were well within limitation period.
8.2 To appreciate rival contentions, let me refer to Section 7 of PP Act, at the outset. Same is reproduced as under:
"7. Power to require payment of rent or damages in respect of public premises.
(1) Where any person is in arrears of rent payable in respect of any public premises, the estate officer may, by order, require that person to pay the same within such time and in such instalments as may be specified in the order.
(2) Where any person is, or has at any time been, in unauthorised occupation of any public premises, the estate officer may, having regard to such principles of assessment of damages as may be prescribed, assess the PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 18 of 31 damages on account of the use and occupation of such premises and may, by order, require that person to pay the damages within such time and in such instalments as may be specified in the order.
(2A) While making an order under subsection (1) or sub section (2), the estate officer may direct that the arrears of rent or, as the case may be, damages shall be payable together with [compound interest] at such rate as may be prescribed, not being a rate exceeding the current rate of interest within the meaning of the Interest Act, 1978 (14 of 1978).
(3) No order under subsection (1) or subsection (2) shall be made against any person until after the issue of a notice in writing to the person calling upon him to show cause [within seven days from the date of issue thereof], why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the estate officer. (4)......
(5)....... " 8.3 It may be mentioned that the issue of limitation with
respect to recovery of dues under Section 7 PP Act came up for consideration before the Hon'ble Madhya Pradesh High in L.S. Nair V. Hindustan Steel Ltd. Bhilai & Ors. AIR 1980 M.P. 106. The Hon'ble Division Bench held that :
"10. It was also submitted that the recovery of damages for a period beyond 3 years was time barred. The Limitation Act has no application to proceedings before the Estate Officer who is not a Court. Learned counsel for the petitioner relied upon the case of Kalu Ram V. New Delhi Municipal Committee, (1965) 67 Pun LR 1190 in support of his submission. There is nothing in Section 7(2) which authorises the Estate Officer to assess the damages on account of the use and occupation of the premises and by order require the person to pay the damages, PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 19 of 31 to show that there is any rule of limitation by which the Estate Officer is governed. As the Limitation Act has no application to proceedings before the Estate Officer and as the jurisdiction of Civil Court is entirely barred in matters governed by the Public Premises Act, it is difficult to accept the argument that there is any period of limitation for recovery of damages. The Punjab case on which reliance was placed, construed the words "rent payable" as they occurred in Section 7 (1) of the Public Premises Act, 1958, and construed them to mean "rent legally recoverable by a suit." The case has no application for construing Section 7(2) of the Public Premises Act, 1971, which deals with the power to assess and order payment of damages and where the language used is entirely different. Further, Section 15 of the 1971 Act now bars a suit and the remedy under the Act is the only remedy which can be availed of. In such a situation, the Limitation Act cannot be inferentially applied to proceedings before the Estate Officer."
8.4 Even the Hon'ble Delhi High Court in its judgment dated 30.09.2004 in NDMC Vs. Sh. Charan Singh Gupta and ors. WP (C) No.4688 of 1997 while dealing with the issue of limitation period for recovery of damages under PP Act, made reference with approval to the judgment of Hon'ble MP High Court in L.S. Nair's case (supra). The Hon'ble Court of Delhi appreciated the distinction between provisions of subsection (1) of Section 7 PP Act (which dealt with arrears of rent) and subsection (2) of Section 7 of PP Act (which dealt with recovery of damages for unauthorised occupation). The relevant portion of the judgment is reproduced hereunder :
"5. The short controversy, which thus arises for consideration, is whether the petitioner Council is entitled to recover damages against respondent No. 1 from the date the allotment was cancelled or for a period of only three years prior to the proceedings under the said Act.
6.....
12. It may be appropriate to first consider the issue of limitation, which has been held against the petitioner by the appellate authority.......
13........PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 20 of 31
14. There is no doubt that in Kalu Ram's case (supra), the Supreme Court while examining the provisions of subsection (1) of Section 7 of the said Act came to the conclusion that the period of limitation would be three years. However, the said decision arose on account of the phraseology used where the word 'payable' has been used which was construed to mean what was 'legally recoverable'. The phraseology used in subsection (2) of Section 7 of the said Act is quite different, which is for the determination of damages. It is also to be noticed that the introduction of Section 15 in the said Act bars the remedy of a civil suit and thus, it is only the proceedings for determination of damages under Section 7(2) where the amount has to be quantified.
15. The distinction between the provisions of subsection (1) and subsection (2) of Section 7 of the said Act was noticed by the Division Bench of the Madhya Pradesh High Court in L.R. Nair's case (supra) as also the consequences arising from Section 15 of the said Act, which came into force subsequently to the initiation of proceedings under the earlier enactment against Kalu Ram. It was held that the judgment in Kalu Ram's case (supra) would not apply to the quantification of damages under subsection (2) of Section 7 of the said Act. This judgment has been followed by learned Single Judges of this Court in Nandram's case (supra), Inderjeet Singh's case (supra) and Shri Vijay Kumar Rajput's case (supra).
16...... This fact is specifically noticed in Shri Vijay Kumar Rajput's case (supra). I am, thus, unable to accept the conclusion arrived at by the estate officer and the appellate authority that no damages could have been recovered beyond the period of three years by the petitioner on account of applicability of the Limitation Act and the impugned orders are set aside to that extent."
8.5 Thus, it is a settled position of law that the Limitation Act has no applicability to recovery of damages under Section 7(2) PP Act. Though recovery of rent under Section 7(1) PP Act, is governed by Limitation Act in the light of Kalu Ram's judgment (supra). In view of the same, the judgment of the Hon'ble High Court in Union of India V. Deepa Sharma's case (supra) as relied upon by appellant is of no assistance to the appellant. The facts in the said case were very different. In that case, recovery was sought to be made from the legal heirs of the allottee but no notice under Section 7 of PP Act was issued to them. Further, one of the legal heirs was not even impleaded.
PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 21 of 319.0 It may be mentioned that although notice under Section 7 PP Act and the impugned order do not contain the periodwise break up of the total outstanding amount of Rs.2,43,268/ towards arrears of rent (recoverable under Section 7(1) PP Act) and damages (recoverable under Section 7(2) PP Act) for the period of unauthorized occupation and the entire amount has been referred to as arrears of rent. The said birfurcation however, is not in dispute. In view of the above facts and circumstances and the findings recorded in preceding paras, the appellant had complete details of the said dues as claimed by DDA; as admittedly, the appellant was called upon by DDA vide letter dated 11.11.2010, initially to pay a sum of Rs.2,45,769/, whereby detailed worksheet of calculation of dues was provided to the appellant; and on appellant's pointing out that he handed over the charge as EM, DDA on 17.04.2009, DDA vide letter dated 09.05.2011, corrected the error and reduced the said amount to Rs.2,43,268/. The appellant was called upon to pay rent at the prescribed rates indicated in the worksheet, that is, for the authorised period @ Rs.993/ per month for first two months after his handing over of charge on 17.04.2009 and thereafter @ double the said licence fee of Rs.993/ till 29.12.2009 and to pay damages for the unauthorized period (i.e. w.e.f. 30.12.2009 to 31.05.2010) @ market rent of Rs.45,900/pm. PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 22 of 31 LIMITATION PERIOD - DAMAGES (w.e.f. 30.12.2009 to 31.05.2010) 9.1 As per settled position of law as discussed above, recovery of damages for the period w.e.f. 30.12.2009 to 31.05.2010 under Section 7(2) PP Act, is not barred by limitation.
LIMITATION PERIOD - RECOVERY OF RENT (w.e.f. 17.04.2009 to 29.12.2009) 10.0 As far as the recovery of rent under Section 7(1) PP Act is concerned, same is governed by Limitation Act. The respondent has pleaded that the appellant has been acknowledging the said dues vide his letters while seeking regularisation of his stay in the said flat/waiver of dues and has drawn this court's attention to the appellant's letter dated 22.04.2013 addressed to Vice Chairman, DDA & email of the same date received by department on 03.05.2013 again forwarding his representation dated 22.04.2013. It is pleaded that in view of the same, even the proceedings pertaining to recovery of rent were initiated within the limitation period. It is further submitted that the appellant's request for regularisation/waiver of outstanding dues was declined repeatedly.
10.1 It is seen that vide his letters/representations dated 21.10.2010, 11.03.2011, 22.04.2013 and 03.05.2013, the appellant has been reiterating his pleas as made in the present appeal and requested for PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 23 of 31 regularisation of accommodation for the period (of unauthorised occupation) and for issuance of No Dues Certificate so that an amount of Rs.2,43,268/ deducted from his retiral dues could be released to him. It is also noted that in response to appellant's aforesaid representation dated 22.04.2013 & 03.05.2013, DDA vide its letter dated 13.06.2013 again called upon CPWD to arrange for payment of Rs.2,43,268/ towards licence fee/market rent for the said flat from the appellant's retiral benefits and to remit the same without any further delay.
10.2 It is noteworthy that the appellant vide his letter dated 02.12.2013 addressed to Addl. Secretary, Ministry of Urban Development and copy marked to the Vice Chairman, DDA, again made a request for regularisation of his stay during the aforesaid unauthorised period, enclosing his earlier representation dated 22.04.2013. DDA vide its letter dated 09.12.2013 again wrote to CPWD with copy to the appellant, calling upon CPWD to remit the aforesaid outstanding amount from the gratuity payable to the appellant.
10.3 From the above, it is more than evident that abovesaid letters of the appellant seeking regularisation of his stay in the said flat for unauthorised period and waiver of penal rent and to adjust HRA deducted by CPWD towards arrears of rent amount to acknowledgment of arrears of rent. Thus, the appellant's plea of limitation even with respect to recovery of the arrears of rent, is untenable. Moreover, it is the PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 24 of 31 appellant's own case that an amount of Rs. 2,43,268/ (including the arrears of rent for the aforesaid period 18.04.2009 - 29.12.2009) has already been recovered/withheld from his retiral dues (appellant retired from service on 31.10.2010).
10.4 In view of the above, proceedings for recovery of arrears of rent under Section 7 (1) PP Act was also not barred by limitation.
QUANTUM OF RENT/DAMAGES 11.0 The appellant has contended that while calculating arrears of rent/damages, HRA deducted from his salary by CPWD has not been taken into account. Ld. Counsel for the respondent in this respect submitted that rent/damages have been charged at the prescribed rate. Further, HRA, if any, deducted by CPWD from the appellant's salary was towards the general pool accommodation allotted by them to the appellant on 29.12.2009 and not towards DDA's accommodation/said flat in occupation of appellant. Thus, the same could not have been taken into account while calculating the outstanding rent/damages for use of said flat.
11.1 Let me mention here that as far as the arrears of rent for the authorised period of occupation (w.e.f. 17.04.2009 to 29.12.2009) are concerned, appellant has failed to demonstrate that the licence fee of PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 25 of 31 Rs.993/ as charged by DDA was not as per prescribed rates. Rather, no such plea was taken by the appellant either before the department/DDA, or the Estate Officer or before this court. Thus, there is no infirmity in order for payment of arrears of licence fee @Rs.993/ upto two months after appellant's repatriation to CPWD and @ double the licence fee of Rs.993/ for a further period upto allotment of accommodation by CPWD, that is, upto 29.12.2009. As far as appellant's plea of adjustment of HRA towards arrears of rent is concerned, it may be mentioned that any government official who is in occupation of the government accommodation is not entitled to HRA. Besides, the official is required to pay the licence fee for use and occupation of the government accommodation. Thus, the appellant was not entitled to receive HRA (from CPWD) while he was in occupation of the said flat/government accommodation from DDA's pool. Therefore, the rent as charged was payable by the appellant to the respondent/DDA.
11.2 As far as the damages for the period of unauthorised occupation (30.12.2009 to 31.05.2010) at market rent of Rs.45,900/ is concerned, there is no specific submission with respect to the quantum charged. The appellant has only pleaded that as his HRA was being deducted by CPWD during the period, charging of market rent would amount to double deduction. Ld. Counsel for the respondent submitted that HRA, if any, deducted by CPWD from the appellant's salary for that period was towards general pool accommodation No. CII/151, Satya PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 26 of 31 Marg, Chankayapuri, New Delhi, alloted to the appellant by CPWD on 29.12.2009. Admittedly, the appellant was alloted the said accommodation by CPWD on 29.12.2009. Thus, I find force in respondent's plea that HRA, if any, deducted was towards general pool accommodation.
11.2.1 The appellant has pleaded that the Ld. Estate Officer failed to consider that the aforesaid accommodation allotted to him by CPWD could not be occupied by him as it was under repair; and the possession of the same could be taken over only on 26.05.2010. Soon thereafter, he vacated the said flat on 31.05.2010. Ld. counsel for respondent/DDA in this regard submitted that the appellant being DG, CPWD could have got expedited the repairs if any, required. But there was a deliberate undue delay in vacating the said flat by the appellant despite knowing fully well that there was shortage of staff quarters at Bhagwan Dass Road and the officer who joined DDA and was supposed to shift in the said flat, could not move into the same. This is despite the fact that the appellant was allowed to retain the said flat even beyond the permissible period of eight months after his repatriation, at the request of Directorate of Estates.
11.2.2 Let me mention here that the appellant being in unauthorised occupation w.e.f. 30.12.2009 to 31.05.2010 is liable to pay PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 27 of 31 to DDA damages for the said period @ market rent of Rs.45,900/p.m. The appellant's claim, if any, towards HRA deducted by CPWD from his salary for the period for which he could not occupy the accommodation allotted by them (CPWD) on account of nonrepair, the appellant is free to claim the said amount from CPWD.
RATE OF INTEREST 12.0 The appellant has also contested the compound interest @ 18% per annum charged by the Estate Officer. Ld. counsel for the respondent in this regard submitted that the said rate of interest has been rightly charged by the Estate Officer taking into account the fact that the said flat situated in prime location was not vacated by the appellant despite allowing of retention much beyond permissible period.
12.1 In this regard, it would be pertinent to refer here to the provision as contained in subsection 2(A) of Section 7 of PP Act, which reads as under:
"7(2A)While making an order under subsection (1) or subsection (2), the estate officer may direct that the arrears of rent or, as the case may be, damages shall be payable together with(compound interest) at such rate as may be prescribed, not being a rate exceeding the current rate of interest within the meaning of the PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 28 of 31 Interest Act, 1978(14 of 1978)".
12.2 Further, clause (b) of Section 2 of Interest Act, 1978, defines "current rate of interest", as under:
(b) "Current rate of interest" means the highest of the maximum rates at which interest may be paid on different classes of deposits(other than those maintained in savings account or those maintained by charitable or religious institutions) by different classes of scheduled banks in accordance with the directions given or issued to banking companies generally by the Reserve Bank of India under the Banking Regulation Act, 1949(10 of 1949)".
12.3 It is clear from the plain reading of subsection (2A) of section 7 of PP Act that it permits charging of compound interest( as amended in the year 2015) at the rate not exceeding the "current rate" of interest being paid on deposits, by the scheduled banks. Further, the Hon'ble High Court in Vivek Sondhi Vs. NDMC 2003(67) DRJ 142, held that the Estate Officer cannot pass an order for payment of interest more than the current rate within the meaning of Section 2(b) of Interest Act 1978.
PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 29 of 3112.4 Perusal of the impugned order shows that the Estate Officer has not indicated the basis of charging interest @ 18%. It may be mentioned that prevailing rate of interest provided by the nationalised banks during the said period i.e. 20092010 on deposits for a period of one to two years was ranging between 6% to 7%p.a. approximately. Considering the same, I am of the considered opinion that interest @ 6.5% p.a. would meet the ends of justice. Thus, the rate of compound interest awarded by the Estate Officer is reduced from 18%p.a. to 6.5%p.a. 13.0 In view of the above findings, I find no reason to interfere with the impugned order of recovery of arrears of rent/damages of Rs.2,43,268/ except for the rate of interest. The rate of compound interest is reduced to 6.5% p.a. The appeal is allowed to that extent only.
14.0 Appeal is partly allowed.
15.0 As CPWD has already withheld/recovered from the appellant an amount of Rs.2,43,268/ towards arrears of rent and damages payable to DDA, CPWD is directed to immediately remit the said amount to DDA/respondent towards its dues. The interest as awarded be recovered from the appellant.
PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 30 of 3116.0 Record of the Ld. Estate Officer be returned along with copy of this order.
17.0 Appeal file be consigned to record room.
Announced in the open Court on this 11th day of August, 2017 (Poonam A. Bamba) District & Sessions Judge New Delhi District: PHC New Delhi (s) PPA No. 291/16 Bhishma Kumar Chugh V. Estate Officer Page 31 of 31