Delhi High Court
Ran Singh Kohar vs Union Of India & Ors. on 17 November, 2014
Author: Vipin Sanghi
Bench: S. Ravindra Bhat, Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 17.11.2014
% W.P. (C) 7885/2014
C.M. Nos.18485-18486/2014
RAN SINGH KOHAR ..... Petitioner
Through: Mr. Sachin Chauhan, Advocate.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Anil Soni, CGSC on behalf of
Union of India with Mr. Naginder
Benipal, Advocate.
Ms. Ruchi Sindhwani, Addl. Standing
Counsel for Govt. of NCT of Delhi
with Ms. Megha Bharara, Advocate.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
1. Issue notice. Mr. Anil Soni, CGSC accepts notice on behalf of Union
of India. With consent of counsel, the matter heard finally.
2. The petitioner assails the order dated 08.09.2014 passed in O.A.
No.2457/2013 by the Central Administrative Tribunal (CAT/ Tribunal) in
these proceedings under Article 226 of the Constitution of India. The
Tribunal dismissed the petitioner's original application by the impugned
order.
W.P.(C.) No.7885/2014 Page 1 of 9
3. The petitioner was appointed as a Sub Inspector (Exe) in the Delhi
Police on 10.07.1979. He retired from the Delhi Police after earning
successive promotions, as ACP, on 31.03.2012. While serving as Sub
Inspector, the petitioner was selected and sent on deputation to the
Intelligence Bureau (IB) as ACIO-II(G). He joined the deputation post on
18.09.1982. While on deputation, he was allotted a government quarter on
Mandir Marg, New Delhi from the general pool of Directorate of Estates
(DoE).
4. The petitioner was repatriated to the Delhi Police on 01.06.1986. The
petitioner continued to occupy the aforesaid general pool accommodation
ever after repatriation. A request was sent to the DoE on 06.09.1994,
requesting that the said general pool government quarter be placed at the
disposal of Delhi Police and, in exchange, the Delhi Police would surrender
a similar unit into the general pool - as and when the same would be
available.
5. On 07.06.2010, the DoE issued a letter cancelling the allotment of the
aforesaid government accommodation on account of the petitioner's
retirement. After obtaining extension to retain the quarter upto 30.11.2012,
the petitioner vacated the said quarter on 01.01.2013. However, when he
sought NOC from the DoE, the said Directorate issued a letter dated
15.04.2013 which, inter alia, stated as follows:
"I am directed to refer your letter dated 05.04.2013 regarding
issue of NOC and to say that your request has been examined
and found that you are ineligible for GPRA from 01.06.1986
to 03.05.2011 by virtue of your posting in ineligible office.
W.P.(C.) No.7885/2014 Page 2 of 9
2. However, on your promotion as ACP, a Gazetted post
w.e.f. 04.05.2011 you became eligible for GPRA in
accordance with policy guidelines.
3. Damage rate of licence fee will be chargeable for the
period of unauthorized stay w.e.f. 01.06.1986 to 03.05.2011.
Sd/-
(Shobhana Mathew)
Deputy Director of Estates
Copy to:-
1. Rent Section (R-III) to calculate the rental liability of Shri
Ran Singh Ex-allottee of Quarter No. J-933, Kalibari
Marg, New Delhi from 01.06.1986 to 03.05.2011 i.e. his
ineligible period."
6. In view of the aforesaid communication - stating that damages would
be chargeable for the unauthorized stay in the said general pool government
accommodation between 01.06.1986 to 03.05.2011, the petitioner's gratuity
to the extent of 10% was withheld. Aggrieved by the said withholding, the
petitioner preferred the aforesaid original application.
7. The case of the petitioner was that till he vacated the said government
accommodation, at no stage, did the DoE issue any notice intimating that he
was not eligible to hold the quarter after repatriation to Delhi Police, or
asking him to vacate the same, and that all of a sudden, the order dated
15.04.2013 had been issued on the basis of which his gratuity was withheld.
The petitioner placed reliance on the memorandum dated 18.04.1972 of DoE
relating to retention of government pool accommodation by officers entitled
to residential accommodation from police pool, on their transfer, and vice
versa. This memorandum, inter alia, reads as follows:
W.P.(C.) No.7885/2014 Page 3 of 9
"Cases have come to notice where officers in occupation of
quarters from the Police Pool were transferred to the
offices entitled to general pool accommodation and they
continued to remain in unauthorized occupation of these
quarters. Similarly, officers in occupation of general pool
quarters overstayed in quarters after their transfer to the
Delhi Police. To avoid hardship to the concerned officers
and also to avoid infructuous work the matter has been
considered in consultation with the I.G. (Police) and it has
been decided that in case of transfers of the officers
occupying accommodation in Police Pool to the officers
entitled to general pool accommodation, they will be
allowed to retain residential accommodation already in
their occupation. The next vacancy of a quarter of the
same type irrespective of the locality or floor will be
included in the pool from which the officers has been
transferred from the other pool e.g. if an officer of CBI in
occupation of general pool accommodation is
deputed/transferred to the Delhi Police a quarter of the
same type irrespective of the locality/floor will be
transferred by the Delhi Police to the general pool and
vice-versa."
8. The submission of the petitioner was that since the Delhi Police had
sent a communication to the DoE on 06.09.1994 for retention of the
government accommodation in question - with an offer to surrender another
similar quarter, and no response had been received from the DoE, the
petitioner was justified in presuming that the respondent had agreed to the
said proposal. The further case of the petitioner was that the DoE had given
extension for retention for the said quarter even after the petitioner's
retirement - on medical grounds, upto 30.11.2012 and even at that stage it
was not claimed by the DoE that the petitioner was not eligible to retain the
said accommodation.
W.P.(C.) No.7885/2014 Page 4 of 9
9. The stand of the respondent was that in Delhi Police, upto the rank of
inspector, the employees are ineligible for allotment of general pool
accommodation by the DoE. It was also stated that the DoE allots general
pool accommodation only to those police officers who are in the rank of
ACP and above. Since the petitioner was not holding the rank of ACP at the
relevant time, he was not entitled to retain the general pool accommodation.
Moreover, it was only in 1994 that the DoE was informed regarding the
exchange of quarter with a quarter in the Delhi Police pool, whereas the
petitioner had been repatriated on 01.06.1986.
10. Reliance was placed on the following clause in the application made
by the petitioner for allotment of general pool accommodation:
"4. That I have been continuously employed in an eligible office
located in eligible zone since the date of my application for
allotment of General Pool Residential Accommodation. I
undertake to keep the Directorate of Estates informed about my
transfer within/ outside Delhi or to an office ineligible for
General Pool Residential Accommodation."
Therefore, it was obligatory for the petitioner to inform about his
repatriation to Delhi Police from IB in 1986, which he failed to do.
11. The Tribunal, while dismissing the petitioner's original application,
concluded as follows:
"8. What becomes clear from the arguments of both sides is
that an Inspector of Delhi Police is not entitled to general pool
accommodation by the Directorate of Estates, only an ACP is
eligible. But when the Inspector gets deputed to IB under the
Ministry of Home Affairs, he becomes eligible for general pool
accommodation. The application form for allotment of
accommodation itself stipulates that when the allottee comes to
W.P.(C.) No.7885/2014 Page 5 of 9
know that he is ineligible for general pool accommodation, he
is supposed to inform the Directorate of Estates. Therefore, the
onus is on the allottee and the defence cannot now be taken that
since the Directorate of Estate did not respond to 1994 letter of
Delhi Police, it could be presumed that he could continue in the
quarter beyond 1.06.1986, though ineligible. In fact, there is
no dispute regarding the period 4.05.2011 (when the applicant
got promoted as ACP) till the date of his retirement and period
beyond for which he was permitted to retain the quarter.
However, we agree with the argument of the respondents
counsel that, based on getting permission for retention of the
quarter post retirement, the applicant cannot stake a claim that
his allotment for the period 1.06.1986 to 3.05.2011 also gets
regularized. While we agree with the learned counsel for the
applicant that the facts of the cases cited by the respondents do
not strictly apply to this case, we hold that the occupation by
the applicant of the accommodation between 1.06.1986 and
3.05.2011 was unauthorized as he was not eligible for the same
and, therefore, we can apply the general principle laid down in
the judgments cited that if an employee retains a quarter in an
unauthorized manner, the penal rent can be recovered.
9. In the light of the facts and circumstances of the case, we
conclude that the impugned order dated 15.04.2013 is a valid
order and does not call for any interference. The OA is,
therefore, dismissed. No costs."
12. The submission of learned counsel for the petitioner is that it is not in
dispute that the petitioner was entitled to the type of accommodation as was
allotted to him while on deputation from general pool accommodation by the
DoE, even after his repatriation to Delhi Police. The respondents were not
justified in claiming that the DoE had not been informed about the
petitioner's repatriation. The communication dated 06.09.1994 addressed to
the DoE by the Delhi Police is relied upon in this regard, which reads as
follows:
W.P.(C.) No.7885/2014 Page 6 of 9
"I am directed to say SI Ran Singh, now as per No. D/1812
of Delhi Police was allotted H.No. J-933, Park Street,
Mandir Marg, New Delhi vide Dt. of Estate's letter No.
933/PS/TB (M)/83 dated 06.10.83 while he was on
deputation to I.B. After his repatriation he is still in
occupation of above said Qr. And now the said S.I. has
requested to retain the same.
It is, therefore, requested that the above mentioned
govt. Qr. may placed at the disposal of Delhi Police.
However, a similar unit will be surrendered to the General
pool as and when the same will be available."
13. The further submission of learned counsel for the petitioner is that, in
any event, the DoE cannot unilaterally determine the damages for the
alleged unauthorized occupation of the general pool accommodation.
Learned counsel submitted that the determination of damages is an
adjudicatory process to be undertaken by resort to the provisions of the
Public Premises (Eviction of Unauthorised Occupants) Act, 1971 ('the
Act').
14. Learned counsel for the respondent, who appears on advance notice,
does not dispute the fact that the petitioner was entitled to the same type of
accommodation after repatriation - though from the Delhi Police pool. It is
also not in dispute that the petitioner had not drawn the HRA while retaining
the accommodation in question.
15. Having heard learned counsel for the parties, we are of the view that
for the period 01.06.1986 to 06.09.1994 - when the Delhi Police sent the
aforesaid communication to the DoE, the holding of general pool
accommodation by the petitioner may not have been justified, and the
W.P.(C.) No.7885/2014 Page 7 of 9
petitioner may be subjected to damages after adjustment of the HRA.
However, for the period after 06.09.1994, till the date he was permitted to
occupy accommodation, in our view, there would be no justification to claim
any damages for the reason that the DoE had been put to notice on
06.09.1994 and offered another similar accommodation for surrender to the
general pool. The DoE did not reject the request made by the Delhi Police
in the said communication dated 06.09.1994 and the petitioner had,
therefore, no reason to vacate the accommodation in question. The DoE did
not ask the petitioner to vacate the said accommodation at any stage. The
petitioner, therefore, was justified in continuing to occupy the
accommodation in question till his retirement, and thereafter till it was so
expressly permitted on medical grounds.
16. We also accept the petitioner's submission that the quantification of
damages is an aspect which is statutorily covered by Section 7 of the Act,
and the DoE cannot unilaterally determine the damages for unauthorized use
and occupation of the accommodation in question - either between the
period 01.06.1986 and 06.09.1994, or for the period for which the petitioner
overstayed in the accommodation after the expiry of the extension period
post retirement. The said determination can be made only by the Estate
Officer appointed under the Act.
17. For the above reasons, the petition partly succeeds. The impugned
order is hereby set aside. It is, however, open to the respondents to initiate
proceedings under Section 7 of the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 in respect of the period 01.06.1986 to
06.09.1994, and for the period after expiry of the extension, if so advised,
W.P.(C.) No.7885/2014 Page 8 of 9
and after giving due opportunity in terms of the said Act in accordance with
law pass appropriate orders as regard damages payable by the petitioner.
The respondents are further directed to ensure that the amount of gratuity
withheld, be now kept in an interest bearing deposit and be disbursed subject
to the final orders in the proceedings under the said Act along with the said
interest as is accrued upon that amount, in case the same - or any part
thereof, becomes payable to the petitioner. The proceedings under the said
Act shall be completed at the earliest convenience of the Estate Officer and,
in any case, within six months from today. All the rights and contentions of
the parties in that regard are reserved.
18. The writ petition is allowed to the above extent.
19. Order dasti.
VIPIN SANGHI, J.
S. RAVINDRA BHAT, J NOVEMBER 17, 2014 sr W.P.(C.) No.7885/2014 Page 9 of 9