Central Administrative Tribunal - Delhi
Rakesh Bhatnagar vs Delhi Development Authority Delhi on 16 October, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 2655/2015
New Delhi this the 16th day of October, 2015
Hon'ble Mr. A.K.Bhardwaj, Member (J)
Rakesh Bhatnagar,
Danics Secretary (Labour)
S/o Late Sh. CP Bhatnagar,
Aged about 56 years
Staff Quarter No.7/8, Bhagwan Dass Road,
New Delhi. ... Applicant
(By Advocate Shri Naresh Kaushik)
VERSUS
1. Delhi Development Authority through
Its Vice Chairman, Vikas Sadan,
INA, New Delhi.
2. Government of NCT of Delhi through
Its Principal Secretary, PWD,
Delhi Sectt. IP Estate, Delhi. ... Respondents
(By Advocate Mr. Dhanesh Rahlan, Ms. Sriparna Chatterjee
and Ms. Sangita Rai )
ORDER
The facts of the case as stated in the OA are that the applicant who is a Member of DANICS (Delhi Andaman Nicobar and Islands Civil Service), went on deputation to Delhi Development Authority as Director (Land/Housing ) in the year 2003. His deputation ended in June, 2008. Nevertheless, he was allowed to retain the accommodation allotted to him in his capacity as Director (Land/Housing), DDA. i.e. DDA Staff Quarter No 7/8, Bhagwan Dass Road. Vide communication no. F.1 (16) 2005 / SQ / 400 dated 21.05.2012, the DDA demanded 2 OA 2655/2015 market rent from the applicant for his overstay in the aforementioned accommodation. The applicant gave a reply to the communication pointing out that there being exchange of DDA staff quarter no. 7/8, Bhagwan Dass Road occupied by the applicant and staff quarter no.C-18, Block-D-II, Vasant Kunj, New Delhi, the applicant could not have been treated as unauthorized occupant of the accommodation. The further plea raised by him was that the demand had not been approved by the Vice Chairman, DDA. After considering the stand of the applicant, the DDA agreed to reduce the demand from market rent to four times of normal licence fee. According to applicant, he paid the amount. For the period of over stay upto 19.03.2012, the applicant was required to pay four times of the licencee fee and for the period beyond 19.03.2012, he was required to pay normal licence fee i.e. Rs.950/-. However, subsequently vide notice No.F.1 (16) 2005/SQ/Pt./384 dated 13.05.2015, the DDA demanded penal rent from the applicant for the period starting from 17.03.2009. The applicant made a detailed representation for withdrawal of the demand notice which was followed by the show cause notice dated 18.05.2015 issued under the provision of Public Premises (Eviction of unauthorized occupants) Act, 1971. The Special Secretary (PWD), Government of National Capital Territory of Delhi wrote to Vice Chairman, DDA to accept the inter-pool exchange 3 OA 2655/2015 of the accommodation done as per the rules. Nevertheless, the applicant received another communication dated 29.05.2015 (sic 29.03.2015) whereby the penal rent was sought to be recovered from his salary. Vide communication no.F.1 (16) 2005/DDA/SQ/Pt/506 dated 23.06.2015, it was impressed upon the applicant that the DDA had decided to cancel the allotment/inter-pool exchange of staff quarter occupied by him with Govt. of NCTD. Vide communication No.F.4 (54) IV/ Allott/ PWD / 2013/Pt. File-1/11625 dated 7.07.2015, Government of NCT of Delhi opposed the communication. In the wake, the applicant filed the present OA, praying therein:-
" i. allow the present Original Application;
ii. quash and set aside the impugned orders placed at Annexure/1;
iii. pass such other order or orders as are deemed fit and proper in the facts and circumstances of the case."
Mr. Naresh Kaushik, learned counsel for applicant submitted that:-
· The impugned orders issued by the DDA are in complete contravention of the exchange policy of their accommodation issued by the Government of India, Directorate of Estates, which is binding on DDA. The orders impugned in the OA are perverse.4 OA 2655/2015
· In issuing the impugned orders, the DDA violated the Office Memorandum dated 07.04.2015 issued on the subject by the Ministry of Urban Development, Directorate of Estates.
· On the face of the communications dated 04.06.2015 and 07.07.2015 issued by the Government of NCT of Delhi, the inter-pool exchange of quarter no. 7/8, Bhagwan Dass Road with quarter No. C-18, D-II, Type-V, Delhi Administration Staff Quarters, Vasant Kunj, New Delhi is still in existence and the arrangement cannot be cancelled unilaterally by the DDA particularly when the possession of flat No.C-18, D-
II, Vasant Kunj has not been taken by the Government of NCT of Delhi and still continues to be possessed by the DDA .
· The order dated 13.05.2015 issued by the DDA seeking to recover the penal rent is liable to be quashed in the light of the communication dated 23.06.2015 which sought to cancel the exchange of accommodation for the first time on 23.06.2015 only.
5 OA 2655/2015· The occupation of the quarter No. 7/8, Bhagwan Dass Road, New Delhi by the applicant cannot be termed as unauthorized, as the Govt. of NCT of Delhi and DDA have not cancelled/terminated the exchange in accordance with the procedure specified in this regard.
· The DDA has unlawfully initiated the process of taking steps under the provisions of Public Premises (Eviction of Unauthorized Occupants ) Act, 1971 on the basis of the orders being impugned herein.
2. In the counter reply filed by it, the DDA espoused that on 16.09.2008, the applicant who was posted in DDA on deputation was repatriated to his parent cadre i.e. Govt. of NCT of Delhi, thus he could retain the quarter 7/8, Bhagwan Dass Road only till 17.03.2009 i.e. for a period of 8 months beyond the expiry of period of deputation whereafter the retention of quarter by him had been termed as unauthorized. The stand taken in the reply of DDA is that on 23.09.2008 the applicant was requested to vacate the public premises and such request was again made to him in terms of letter dated 16.03.2009. When he did not vacate the accommodation, he was again requested to do so. According to the Authority, the applicant gave an undertaking dated 13.04.2005 to vacate the DDA flat on 6 OA 2655/2015 expiry of the period available to him ( he was entitled to retain the accommodation as per rules), thus for the period 2009- 2011, the applicant continued to occupy the accommodation without there being any operative exchange of accommodation between GNCTD and DDA. The DDA had also issued letter dated 17.09.2010 calling upon the applicant to pay sum of Rs.6,24,174/- for his overstaying in the public premises. He was also informed vide letter dated 12.01.2011 that his request for inter pool exchange of the public premises had not been accepted by the competent authority. Nevertheless, it is admitted by the DDA in its reply that vide letter dated 07.12.2011, the inter-pool exchange of the accommodation possessed by the applicant and flat No.C-18, Block-D-II, Vasant Kunj, New Delhi was allowed and physical possession of the exchanged accommodation was handed over by GNCTD to DDA on 20.03.2012. One of the emphasis laid by DDA is that for unauthorized retention of accommodation w.e.f 17.03.2009 to 20.03.2012, the applicant is liable to pay penal rent i.e. a sum of Rs.12,88,655/- and the amount was rightly demanded from him in terms of letter dated 21.05.2012. In terms of letter No.F.1(16)2005/SQ/72 dated 18.01.2013 for the period 17.03.2009 to 19.03.2012., the applicant was required to pay sum of Rs.1,20,234 i.e. four times of the licence fee. According to the DDA on 24.07.2014, it had vacated the exchanged flat 7 OA 2655/2015 and handed over the same to GNCTD, thus the inter-pool exchange of Public Premises had expired. Further in view of the inter audit objection, the DDA found infirmity in issuance of letter dated 18.01.2013 and issued letter dated 13.05.2015 demanding the penal charges in terms of the undertaking given by the applicant. Vide letter dated 18.05.2015, the Estate Officer, DDA called upon the applicant to show cause as to why the action should not be taken against him for his unauthorized occupation of the public premises. Having explained the aforementioned factual position, the DDA has raised objection to the jurisdiction of the Tribunal to decide the issue. To buttress his plea, learned counsel relied upon the following judicial precedents:-
"1. Delhi Development Authority Vs. Arun Mishra ( W.P( C) 7279/2015).
2. Union of India Vs. Rasila Ram & Ors (2001) 10 SCC 623).
3. Smt. Babli & Anr. Vs. Govt. of NCT of Delhi and Ors (95 (2002)DLT 114 (DB).
4. Mrs. Nishi Saraswat Vs. Kendriya Vidyalaya Sangathan (OA 196/2013-CAT (PB).
5. Union of India and Another Vs. Shanti Prasad and Another (W.P(C) 2844/2003).
6. S.D.Bandi Vs. Divisional Traffic Officer and others ( 2011(15) SCC 746).
7. UOI & Ors Dr.Jagdish Saran (123) 2005 DLT 626 (DB)
3. Ms Sangita Rai, counsel for GNCTD supported the case of applicant. For easy reference, the reply filed by GNCTD is reproduced hereinbelow:-8 OA 2655/2015
" 1. That I am fully acquainted with the circumstances of the case and I have gone through relevant records. Being fully authorized, I have authority and competence to submit and verify this reply affidavit on behalf of the replying respondent no.2.
2. That I have read and understood contents of the application made by the above named applicant. Save as expressly admitted herein and save what are matter of records each and every allegation and contention made in the said application shall be deemed to have been emphatically and specifically denied and disputed.
3. That the present short reply is being filed by the respondent no.2 seeking this Hon'ble Tribunal liberty to file detailed reply if so desired.
4. That the current background relating to the issue is being brought by the replying respondent before this Hon'ble Tribunal which is required to be considered for the proper adjudication.
5. That the letters dated 13.05.2015 and 23.06.2015 issued by the DDA are arbitrary, discriminatory and violation of the norms and prescribed policies laid down by Govt. of India & as per the instructions issued by Directorate of Estates, MoUD, vide OM no.12035(9)/69- pol.II dt. 03.11.1993. Further, the demand of Rs.12,88,655 raised on the officer for the period 17.03.2009 to 19.03.2012 is not sustainable in the light of following facts as per the records of Department of PWD, GNCTD.
a. That vide letter dt.09.03.2009 from Dy.Secy.PWD, the VC, DDA was requested for allowing retention of staff quarter 7/8, Bhagwan Das Road by Sh. Rakesh Bhatnagar on inter-pool exchange on long term basis as per the instructions issued by Directorate of Estates, MoUD,vide OM no.12025(9)/69-pol.II dt.03.11.1993. That DDA being under MoUD, follows the instructions of Directorate of Estates. The said OM when applied in context of 9 OA 2655/2015 interpool exchange with GNCTD pool, covers the accommodations of GNCTD pool. It is also submitted that no meeting to coordinate the interpool exchange of quarters has ever been convened by DDA as provided under clause 3 of the said OM.
b. That DDA issued a letter No.F.1(16)/2005/SQ/834 dated 17.09.2010 raising the demand of market rent on the officer and conveying to Dy.Secy. PWD that the proposal is not acceptable. No reason whatsoever was given by DDA for not following instructions of DOE, MoUD. Therefore, another detailed letter was sent from Joint Secy., PWD to VC, DDA no. F.4 (IV) 8/ PWD/ 2008-09/ 9891-92 dt.
01.11.2010 conveying that levy of demand is not correct and the same may be waived as the interpool exchange should have been allowed on the basis of very first letter dt. 09.03.2009.
c. That the concerned officers of DDA finally placed the matter before Competent Authority i.e. VC, DDA and a letter no.F1(16)/2005/SQ/686 dt.01.09.2011 from Dy.Director (SQ), DDA addressed to Joint Secretary, PWD, GNCTD was sent with request to indicate the flat that would be provided to DDA for mutual exchange. In response it was informed by Jt.Secy., PWD vide letter no.F 4(VI)8/PWD&H/ 2008-09/8378-80 dated 08.09.2011 addressed to Dy.Dir (SQ), DDA that the flat no. C-18, Type V, Vasant Kunj is placed at the disposal of DDA in lieu of quarter no. 7/8, Bhagwan Das Road occupied by Sh.Rakesh Bhatnagar. It was again reiterated that no penal rent would be applicable on the officer.
d. That the DDA conveyed the approval for inter-pool exchange of flats vide their letter No. F.1(16)2005/SQ/pt/883 dt. 07.12.2011 from Dy.Dir (SQ) addressed to Joint Secretary, PWD, GNCTD.
10 OA 2655/2015
6. That the claim of DDA vide their letter dt.13.05.2015 regarding alleged termination of inter-pool exchange from back date i.e. w.e.f. 23.7.2014 unilaterally is baseless, illegal, arbitrary and in complete violation of norms and unacceptable on the following ground:
a. That it being a case of duly approved mutual interpool exchange of flats, the DDA has to take up the issue with Department of PWD, GNCTD for any review etc. as per the para 3 of instructions issued by Directorate of Estates, MoUD, vide OM no.12035(9)/69-pol.II dt.03.11.1993. No correspondence from DDA on the subject has been received so far in this office (except for an endorsement of letter dt.23.06.2015 addressed to Sh. Rakesh Bhatnagar). It shows clearly that the present action of DDA is only an afterthought and motivated by issues other than merits of the case.
b. That the contention of DDA that the exchanged flat no.C-18, Vasant Kunj was vacated and handed over to PWD on 23.07.2014 is unfounded. It is submitted that all campuses of government housing pools, whether if be of DDA, Directorate of Estates, or GNCTD, have maintenance offices having concerned JEs. Any occupant vacating a flat has to hand over the keys to the respective JE for continuing the maintenance etc. Since the Vasant Kunj campus pertains to GNCTD, the maintenance office of JE, PWD is there. The vacation of a flat and giving keys at the JEs' office does not amount to handing over of flat to the pool of Deptt. Of PWD, GNCTD.
Apparently the contention of DDA is only an afterthought aimed at repossession of its exchanged flat without following due procedure, norms or taking up the issue with Deptt. Of PWD, GNCTD.
c. That the alleged unilateral termination of mutual exchange cannot be accepted, and the same position has been clearly communicated to VC, DDA vide D.O. 11 OA 2655/2015 letters dated 04.06.2015 and again vide D.O letter dated 07.07.2015 to VC, DDA from Special Secretary, PWD, GNCTD.
d. That the mutual exchange of flats, duly approved in 2011, is still in operation. The proposed effort of DDA for unilateral cancellation, or raising of demand of penal rent directly on officer, that too retrospectively, cannot be sustained in law and in the facts and circumstances of the case.
e. That the instructions in OM No.12035/ 31 /96-POL.II dated 07.09.1998 of Ministry of Urban Development, Directorate of Estate, alongwith subsequent instructions including OM No.12035/4/2015-POL.II dated 7th April 2015, make it clear that the officer is entitled for retention of the said accommodation on payment of normal rate for license fee (Copy enclosed with letter to VC sent by me/on DOE site).
The GNCTD has accordingly allowed the officer to retain the flat. However, the DDA is not willing to even follow the OM for retention of accommodation for use by the dependent family of officer. It will cause serious problems to the family of officer who is on a hard area posting.
f. That the flat at Bhagwan Das Road belongs to GNCTD pool after mutual exchange and DDA has no right to cancel its allotment at their end unilaterally."
4. I heard learned counsel for parties and perused the record. In terms of order no. F.30/8/85/S,1/ dated 16.12.2003, the applicant herein (Joint Registrar, Cooperative Societies) was posted as Director, DDA on deputation. The order read thus:-
" ORDER NO 554 The Competent Authority is pleased to order the transfer/posting of following DANICS as under with immediate effect.12 OA 2655/2015
Sl.No. Name of the Officer Present posting Posted as Remarks
1. Sh.Rakesh Joint Registrar, Director, DDA Vice Sh. Bhatnagar Cooperative (on Surajit Roy Societies deputation) repatriated.
The terms & conditions of deputation in respect of Sh.Bhatnagar with the DDA will be settled in due course."
There he was allotted flat no.7/8, Bhagwan Dass Road, New Delhi. The flat is in his possession and the entire controversy is regarding his entitlement to retain the flat as well as liability to pay the damage rent. In terms of OM no.12035()/69-P.1,II dated 03.11.1993, issued by the Government of India, Directorate of Estates, a decision to permit inter-pool exchange of accommodation in certain situation mentioned in para 2 of OM was taken. For easy reference, the OM is reproduced hereinbelow:-
"Vide this date's O.M of even number dated 27.4.1993, instructions were issued that no fresh inter-pool exchange of General Pool Accommodation, with any departmental pool accommodation will be made. Such a blanket ban on exchange of accommodation even in cases of senior eligible officers whose date of priority in General Pool were well covered and who, to avoid dislocation, were seeking to retain the Departmental Pool accommodation held by them, has caused undue hardship to these officers. Similarly, senior officers in occupation of General Pool accommodation on their transfer to Delhi Administration, DDA, etc. were served with cancellation order, resulting in a spate of representations against with cancellation order, resulting in a spate of representations against the blanket-ban on inter-pool exchange of accommodation.
2. In the light of the recent experience, the matter was discussed with the Secretary (Land & Bld.) Delhi Administration and after a careful scrutiny of all the cases which had come to light, it was decided that inter-pool exchange may be permitted in the following cases:13 OA 2655/2015
(a) Where an officer in occupation of General Pool accommodation has gone to Delhi Administration or any of their other offices like MCD, NDMC, DDA etc. and in return another officer from one of these organizations has came to serve Govt. of India alongwith an accommodation, inter-pool exchange may be agreed to be one to one basis in all such cases.
(b) Since Delhi Administration allows its officers to retain accommodation when they are transferred to MCD, NDMC, DESU, DDA and other such organizations under Delhi Administration, if an officer occupying General Pool residential accommodation is transferred to any of such organizations, Delhi Admn./DDA shall provide an equivalent type of accommodation to the General Pool.
(c ) Wherever such one to one exchange is of the same type of unit, it may be allowed with the mutual consent of Secretary (Land). Similar inter-pool exchanges may be also be permitted with the consent of vice Chairman DDA in case where the exchange of general pool with DDA is involved. Whenever the exchange is not in the same type the proposal may be decided on merit after getting the view of Secretary (Land & Bldg)/Vice Chairman DDA with the approval of the Joint Secretary/ Add.Secretary.
(d) In lower types, i.e.Type 1 to IV, exchange shall be permitted only if the Delhi Administration /DDA provide accommodation in the areas where General Pool accommodation is available.
(e) For organizations like MCD, NDMC, DESU & others where the officers of Delhi Administration on their posting continue to be eligible for Delhi Administration accommodation, if an officer occupying general pool accommodation is transferred to such an organizations, Secretary (Land & Bldg), Delhi Administration would be the focal point for considering any inter- 14 OA 2655/2015
pool transfers and any decision on such inter-pool exchange would be taken on the advice of Secretary (Land & Bld) Delhi Administration.
3. In order to co -ordinate the inter-pool exchange of quarters a meeting will be held every 6 months at the level of Additional Secretary or Director of Estates with the Secretary (Land & Bldg) or his representatives or DDA as the case may be. On a specific request such a meeting may be held earlier as and when the situation demands.
4. So far as type V A and above accommodation is concerned, the necessary action shall be taken by the Allotment Sections concerned, under intimation to the CDN-1 Section; for accommodation upto type IV, the CDN-1 Section shall be nodal section."
In terms of para 3 of the OM (ibid), in order to co-ordinate the inter-pool exchange of quarter a meeting at the level of Additional Secretary or Director of Estates with the Secretary (Land & Bldg.) or his representatives or DDA as the case may be was to take place every six months. On a specific request, meeting could take place even earlier also as per demand of the situation. In terms of letter no.F1(16)2005/SQ/Pt./883 dated 07.12.2011, the DDA with reference to letter no.F.4(VI)8/PWD &H/2008-09/8778-80 dated 08.09.2011 of the Joint Secretary (PWD), GNCTD conveyed the approval of competent authority for inter-pool exchange of DDA S.Q.no.7/8, Bhagwan Dass Road occupied by the applicant herein with flat no.C-18, Block- D-II, Vasant Kunj (Type-V flat) and issued directions for handing over the possession of staff quarter no.C-18, Block D- II, Vasant Ksunj (Type V flat) to Executive Engineer, WD- 5/Authorized representative, DDA. The letter read thus:- 15 OA 2655/2015
"Sub: Regarding interpool exchange of DDA Staff Quarter No.7/8, Bhagwan Dass Road with GNCTD flat No.C-18, D-II Block, Vasant Kunj, New Delhi.
This is with reference to your letter No.F.4 (VI)8/ PWD&H/2008-09 /8378-80 dated
8.09.2011 on the subject noted above. In this connection, I am directed to convey the approval of Competent Authority for interpool exchange of DDA S.Q No.7/8, Bhagwan Dass Road occupied by Sh. Rakesh Bhatnagar, Additional Commissioner (Trade & Taxes) GNCTD with GNCTD flat No.C-18, Block D-II, Vasant Kunj (Type V flat). It is, therefore, requested to hand over the possession of staff quarter No.C-18, Block D-II Vasant Kunj (Type V flat) to Executive Engineer, WD- 5/authorized representative, DDA.
It is also requested to intimate this office the living area of S.Q No.C-18, Block D-II, Vasant Kunj, for recovery of licence fee." Subsequently the possession of the flat no.C-18, Block D-II, Vasant Kunj was handed over to DDA. In any case, for the period during which no exchange of the flat no.C-18, Block D-II, Vasant Kunj with S.Q 7/8, Bhagwan Dass Road had taken place and for the period beyond 24.07.2014, the applicant was treated as unauthorized occupant of the premises retained by him and was required to pay the damage rent and further he was also given notice under Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Since the umbilical cord of plea of jurisdiction is linked with the issue on merit also, I proceed to decide the both simultaneously.
5. In Writ Petition (Civil) 7356/2015 (Delhi Development Authority Vs. Rakesh Bhatnagar), preferred against the 16 OA 2655/2015 interim order passed by this Tribunal, Hon'ble High Court had also required this Tribunal to determine the issue of jurisdiction. The order passed by Hon'ble High Court read thus:-
"1. Present writ petition has been filed by petitioner/Delhi Development Authority (hereinafter referred to for short as "DDA") being aggrieved by the order dated 23.07.2015 passed by the Central Administrative Tribunal (hereinafter referred to for short as "Tribunal") in O.A.No.2655/2015, whereby the Tribunal while issuing notice in the application granted stay against any further action by the petitioner in pursuance of the letters dated 13.5.2015 and 23.6.2015.
2. Learned counsel for the petitioner submits that the Tribunal has failed to consider that the OA filed by the respondent herein is not maintainable in view of the settled position of law as decided by the Supreme Court of India in the case of Union of India v. Rasila Ram & Ors., reported at (2001) 10 SCC 623 and Division Bench judgments of this Court in the case of Smt. Babli & Anr. v. Govt. of NCT of Delhi & Ors., reported at 95(2002) DLT 144(DB) and UOI & Ors. v. Dr. Jagdish Saran, 2005(84) DRJ 690(DB) and the order passed by the Tribunal itself. Further the jurisdiction of the Tribunal is barred under Section 9 of the Act as also in terms of OM dated 3.11.1993.
3. Learned counsel for the petitioner submits that eviction proceedings against the respondent are still pending adjudication before the Estate Officer. Counsel further submits that vide letter dated 23.6.2015 the petitioner requested the respondent to vacate the public premises and pay license fee and the penal rent upto the date of actual vacation, failing which eviction proceedings would be continued. Counsel further submits that the respondent thereafter filed O.A.No.2655/2015 before the Tribunal seeking to quash/ set aside the impugned orders/letters issued by the DDA on 13.5.2015 and 23.6.2015, wherein while issuing notice the Tribunal stayed the further proceedings in pursuance of the letters dated 13.5.2015 and 23.6.2015.17 OA 2655/2015
4. We have heard counsel for the parties. It is agreed that the proceedings before the Estate Officer shall continue with leave to the respondent to seek such remedy as may be available to him in accordance with law. As far as the objection of the petitioner herein with regard to maintainability of the O.A. is concerned, we request the CAT to decide the preliminary issue with regard to the maintainability of OA on 21.08.2015 (date of 6.8.2015 stands cancelled, as jointly prayed) while taking into account the judgments passed by the Hon'ble Supreme Court of India, the Division Bench of this Court and the earlier judgment of CAT itself.
5. With these observations, the writ petition is disposed of."
To buttress his plea of jurisdiction, the learned counsel for the respondents relied upon the judgment of Hon'ble Supreme Court in Union of India Vs. Sh.Rasila Ram and Others (2001) 10 SCC 623), judgments of Hon'ble Delhi High Court in Smt. Babli and Anr. Vs. Govt. of NCT of Delhi & Ors (95 (2002) DLT 144 (DB) and UOI & Ors. Vs. Dr. Jagdish Saran (123 (2005) DLT 626(DB) (ibid).
6. On the other hand, learned counsel for the applicant relied upon the order passed by this Tribunal in OA no. 196/2013. As far as the order passed in UOI Vs. Rasila Ram and Ors (ibid) is concerned, the view taken by Hon'ble Supreme Court is that there being remedy available in Public Premises Act, 1971 to question the decisions of Estate Officer, the Tribunal will have no jurisdiction to entertain an OA against the orders passed under the Act. The relevant excerpt of the judgment read thus:-
18 OA 2655/2015
"2. The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the "Eviction Act") was enacted for eviction of unauthorized occupants from public premises. To attract the said provisions, it must be held that the premises was a public premises, as defined under the said Act, and the occupants must be held unauthorized occupants, as defined under the said Act. Once, a Government servant is held to be in occupation of a public premises as an unauthorized occupant within the meaning of Eviction Act, and appropriate orders are passed thereunder, the remedy to such occupants lies, as provided under the said Act. By no stretch of imagination, the expression, "any other matter" in Section 3 (q)(v) of the Administrative Tribunals Act would confer jurisdiction on the Tribunal to go into the legality of the order passed by the competent authority under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. In this view of the matter, the impugned assumption of jurisdiction by the Tribunal over an order passed by the competent authority under the Eviction Act, must be held to be invalid and without jurisdiction. This order of the Tribunal accordingly stands set aside. The appeals are accordingly allowed."
As far as the judgment in Smt. Babli and Anr Vs. Govt. of NCT of Delhi and Ors (ibid) is concerned, the view taken by Hon'ble Delhi High Court in the judgment is that since the allotment of Government residential accommodation was not one of the conditions of service of the applicant, the Tribunal had no jurisdiction to entertain the OA of the applicant. In the said case, the petitioners i.e. LRs of retired/dead employees sought the regularization of the Government accommodation or allotment of fresh accommodation in their name. Para 3 to 10 of the judgment read thus:-
19 OA 2655/2015
"3. Learned counsel for petitioner, Mr. Bisaria has taken us through these provisions and the Allotment of Government Residences (General Pool in Delhi) Rules of 1963, in a bid to persuade us that petitioner's claim for regularisation of allotment or fresh allotment related to their service condition thus vesting jurisdiction in Tribunal to entertain and examine it. He placed whole hog reliance in this regard on Section 3 (Q)(V) of the Act and Supplementary General Pool Rules. He interpreted expression "any other matter whatsoever" occurring in Section 3 (Q)(V) to include everything connected with the service of an employee including claim to residential accommodation. According to time once an employee did not charge HRA, his claim for residential accommodation would in lieu thereof would partake the character of a service condition. He also referred to the other set of Rules to claim that these entitled government employees to residential accommodation and constituted a service condition to that extent which was cognizable by Tribunal under the Act.
4. Section 3 (Q) (V) which is material for our purposes in reproduced for proper appreciation of the issue involved:
"(q) "service matters" in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the Control of the Government of India, or, as the case may be, of any corporation [or society] owned or controlled by the Government, as respects-
(i) .....
(ii) .....
(iii) .....
(iv) .....
(v) any other matter whatsoever"20 OA 2655/2015
5. It must be clarified at the very outset that claim to allotment of Govt. residential accommodation does not become condition of service unless the relevant service Rules provide so. No such rule was shown or pressed in service in the present case which provided for petitioners entitlement to residential accommodation. The expression "any other matter" occurring in Sub Clause V could not be also interpreted so liberally and loosely as to include any matter whatsoever whether or not it was related to employees service condition. The words "any matter"
would be read esjuda generis and in the context of provisions of Rule 3(Q). Otherwise any contrary interpretation placed on it would lead to absurd results and would make Tribunal a forum for all matters including private matters of an employee. That indeed cannot be the intent and purpose of this Rule which defines the service Matters for purposes of giving jurisdiction to Tribunal. The employee's non charging of HRA would be inconsequential in this regard and would not convert his claim for residential accommodation to service condition.
6. As regards pool Rules, they only regulate the allotment of Govt. accommodation and do not confer any right as such on an employee to claim it.
7. All this notwithstanding, we find that Tribunal had held petitioners OAs not maintainable upon reliance on the Supreme Court Judgment in Rasila Ram case (supra) which laid down:-
"Once a government servant is held to be in occupation of a public premises as an unauthorised occupant within the meaning of Eviction Act, and appropriate orders are passed there under, the remedy to such occupants lies as provided under the said Act. By no stretch of imagination the expression any other matter in Section 13(q)(v) of the Administrative Tribunal Act would confer jurisdiction on the Tribunal to go into the legality of the order passed by the competent authority under the provisions of the PPE Act, 1971. In this view of the matter, the impugned assumption of jurisdiction by the Tribunal over an order passed by the competent authority under the Eviction Act must be held to be invalid and without jurisdiction. This order of the Tribunal accordingly stands set aside.21 OA 2655/2015
8. We have gone through that judgment which proceeds on the premises that once eviction action was initiated for his unauthorised occupation of premises under the relevant Act, Tribunal could not assume jurisdiction in the matter by reference to Sec. 3(Q)(V) by treating it as "any other matter". That conclusively settles the issue once for all and it need be hardly expressed that law laid down by Supreme Court was binding on all including Tribunal and therefore its impugned orders could not be faulted for that. This is so for the added reason that Eviction Act provided its own safeguards and remedies and where an employee felt aggrieved of any orders passed under this Act, he was to seek appropriate remedy provided therein instead of approaching the Tribunal with his grievance in this regard.
9. In the present case also eviction proceedings stood initiated against petitioners who had all the options to avail of the safeguards and remedies provided under the relevant Act. The question of Tribunal assuming jurisdiction therefore did not arise.
10. We, accordingly, hold that CAT had no jurisdiction to entertain OAs claiming allotment or regularisation of Govt. accommodation unless such claim was shown to be a condition of service. Nor could it assume jurisdiction where eviction action was taken against an employee for his alleged unauthorised occupation of the premises under the Eviction Act. These petitions are accordingly dismissed and Tribunal order affirmed." Also in UOI & Ors Vs. Dr. Jagdish Saran (ibid) where the Tribunal directed refund of an amount of Rs.38,596/- to Dr. Jagdish Saran charged from him as damages from occupying quarter No. D-II/64, Kaka Nagar, New Delhi, following the judgment in the case of Babli and Anr Vs. Govt. of NCT of Delhi and Ors, Hon'ble Delhi High Court ruled that the Tribunal had no jurisdiction to interfere in the matter. Para 5 to 11 of the judgment read thus:-
22 OA 2655/2015
"5. Aggrieved, the petitioner-Union of India has filed the present Writ Petition. The learned counsel for the petitioner has submitted that the respondent was allotted D-II accommodation in Kaka Nagar vide offer of allotment dated 4.6.1991, which is after the cut off date of 1.4.1991 mentioned by the Supreme Court in its order and, therefore, the order passed by the learned Tribunal is factually and legally incorrect. Learned counsel for the petitioner has also relied upon the judgment of a Division Bench of this Court in the case of Babli and Anr. v. Govt. of NCT of Delhi and Ors. in which it has been held that disputes in respect of government residential accommodation cannot become subject matter of an application before Central Administration Tribunal unless the right to allotment or claim is shown to be a 'condition of service'. Relying upon this judgment it is submitted that the learned Tribunal did not have jurisdiction to direct refund of Rs. 38,596/- charged towards damages for illegal occupation of the accommodation as the dispute was not in respect of 'condition of service'.
6. The learned counsel for the respondent, however, submitted that the Urban Development Minister had ordered for allotment of ad hoc allotment of D- II type flat to the petitioner on 22.10.1990, i.e., prior to 1.4.1991 and, therefore, the respondent herein is not liable to pay any damages in terms of the judgment in the case of Shiv Sagar Tiwari (supra). It is submitted that the offer of allotment dated 4.6.1991 does not make any difference and is not relevant.
7. We do not think that the learned Tribunal had jurisdiction to entertain and decide the original application filed by the respondent herein. The allotment of the D-II type flat at Kaka Nagar under the discretionary quota cannot be regarded as a matter connected with or relating to 'condition of service' as defined under Section 3(q) of the Administrative Tribunal's Act, 1985. The discretionary allotment of accommodation made in favor of the respondent herein was de hors and not under any service regulation or rules. The said allotment cannot be construed and regarded as a matter relating to 'condition of a service'. Service matters as defined under Section 3(q) of the Administrative Tribunal's Act, 1985 means all matters relating to 'conditions of service of an 23 OA 2655/2015 employee'. It is only in respect of these matters that the learned Tribunal has jurisdiction. Learned Tribunal cannot decide and adjudicate disputes that are not relating to 'conditions of service' between Government and its employees. The Supreme Court in the case of Union of India v. Rasila Ram and Ors. has examined Section 3(q) including sub-clause (v) of the Administrative Tribunal's Act, 1985 with reference to proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and has held as under:-
"By no stretch of imagination the expression, 'any other matter,' in Section 3(q)(v) of the Administrative Act would confer jurisdiction on the Tribunal to go into the legality of the order passed by the competent authority under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. In this view of the matter, the impugned assumption of jurisdiction by the Tribunal, over an order passed by the competent authority under the Eviction Act, must be held to be invalid and without jurisdiction."
8. This Court in the case of Babli (supra) has referred to the aforesaid decision has laid down as under:-
"5. It must be clarified at the very outset that claim to allotment of Government residential accommodation does not become condition of service unless the relevant Service Rules provide so. No such rule was shown or pressed in service in the present case which provided for petitioners entitlement to residential accommodation. The expression 'any other matter' occurring in Sub- clause V(sic) could not be also interpreted so liberally and loosely as to include any matter whatsoever whether or not it was related to employees service condition. The words 'any matter' would be read esjuda generis and in the context of provisions of Rule 3(Q)(sic). Otherwise any contrary interpretation placed on it would lead to absurd results and would make Tribunal a Forum for all matters including private matters of an employee. That indeed cannot be the intent and purpose of this Rule (sic) which defines the service matters for purposes of giving jurisdiction to Tribunal. An employee's non-charging of HRA would be inconsequential in this regard and would not convert his claim for residential accommodation to service condition.24 OA 2655/2015
6. As regards pool Rules, they only regulate the allotment of Government accommodation and do not confer any right as such on an employee to claim it."
9. In view of the aforesaid, out of turn allotment under discretionary quota to a government servant de hors the Rules cannot be regarded as a matter relating to 'conditions of service'. The respondent has not been able to point out any service rule under which he was entitled to said accommodation under the discretionary quota. On the other hand, in the judgment of the Supreme Court in the case of Shiv Sagar Tiwari (supra) it has been held that the discretionary allotments made represent a scenario of what has come to be known as a Housing Scam. While dealing with the issue of damages to be charged from the out of turn allottees on account of their illegal occupation, the Supreme Court held that discretionary allotments de hors the rules to an ineligible person, entitles the government to charge damages. The recovery of damages from the respondent herein is, therefore, made as per the directions given by the Supreme Court and not on account of 'conditions of service', and it is difficult to construe and regard a direction given by the Supreme Court as a matter relating to condition of service between the petitioner and the respondent herein.
10. In view of the above, we hold that the learned Tribunal did not have jurisdiction to entertain the original application filed by the respondent herein and the impugned order is illegal and void abinito.
11. In view of above findings, we are not required to examine and go into the merits of the controversy. However, from the records placed before us, it is apparent that the allotment letter or the letter of offer in respect of flat No. D-II/64, Kaka Nagar, New Delhi on ad hoc basis is dated 4.6.1991, which is after the cut off date of 1.4.1991 specified by the Supreme Court in the case of Shiv Sagar Tiwari (supra). The respondent herein occupied the flat only after the allotment letter dated 4.6.1991 was issued and the date of the letter of offer of allotment should be treated as the date of out of turn allotment. Thus as per the directions given by the Supreme Court quoted above the respondent herein was liable to pay damages. No other contention was raised and argued before us." 25 OA 2655/2015 The ratio decidendi of the orders passed by the High Court in the aforementioned cases is that once the accommodation is not condition of service, the Tribunal will have no jurisdiction to entertain the OA regarding allotment of accommodation or recovery of damages for unauthorised occupation of the accommodation. What is, and should be condition of service has not been commented upon in the judgments. Whether an employee allotted the Government accommodation and is entitled to retain the same, as per his entitlement can be required to pay the damages and the challenge to demand to damage can be considered as his grievance being violation of his service condition or not is the issue before us.
7. Prior to the commencement of the Constitution in Shelton Vs. Smith (1895) AC 229, the Privy Council viewed that the servants of Crown hold their office at the pleasure of Crown and if any public servant considers that he has been dismissed unjustly without following the procedure prescribed by rules his remedy is not by way of law suit but by an appeal of an official or political kind. Nevertheless, in Gould Vs. Stuart (1896) AC 575), it could be ruled that where the statute imposes certain restrictions and conditions for removal or dismissal of a government servant, any order passed in contravention of those 26 OA 2655/2015 provisions would be illegal and would give rise to cause of action in the Court of Law. The Government of India Act, 1919 contained section 96-B regarding the protection given to the Government employees. The provision was retained in Section 240 (1) and (2) of 1935 Act which rephrased Government of India Act, 1919. Sub section 3 added to Section 241, 240 was para meteria to present Article 311 (2) of the Constitution. The condition of service may be regulated by the Constitutional provision or statutory provision and in the absence thereof the same may be regulated even by the executive instructions also. Such is the view taken by Hon'ble Supreme Court in Union of India Vs. K.P.Joseph and Others (AIR 1973 SC 303). In the said case, the Hon'ble Supreme Court ruled that an administrative order can never confer any right would be too wide a proposition as there are administrative orders which confer rights and impose duties. Para 8 to 12 of the judgment read thus:-
"8. The appellant, however, contended that the Order being an administrative direction conferred no justiciable right upon the first respondent which could be enforced in a Court by a writ or order in the nature of mandamus. The appellant submitted that the very foundation for the issue of a writ or an order in the nature of mandamus is the existence of a legal right and as an administrative order could confer no justiciable right, the High Court was wrong in issuing the order directing the second respondent to fix the pay of the first respondent in accordance with the Order.
9. Generally speaking, an administrative Order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. This Court has held in Sant Ram Sharma v. State of Rajasthan, (1968) 1 SCR 111 = (AIR 1967 SC 1910) that although Government cannot 27 OA 2655/2015 supersede statutory rules by administrative instructions, yet, if the rules framed under Art. 309 of the Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the conditions of service.
10. In Union of India v. M/s. Indo Afghan Agencies Ltd. (1968) 2 SCR 366 at p. 377 = (AIR 1968 SC 718), this Court, in considering the nature of the Import Trade Policy said :
"Granting that it is executive in character, this Court has held that Courts have the power in appropriate cases to compel performance of the obligations imposed by the Schemes upon the departmental authorities."
To say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that we have imported the principle of natural justice of audid alteram partem into this area. A very perceptive writer has written :
"Let us take one of Mr. Harrison's instances, a regulation from the British War Office that no recruit shall be enlisted who is not five feet six inches high. Suppose a recruiting officer musters in a man who is five feet five inches only in height, and pays him the King's shilling; afterwards the officer is sued by the Government for being short in his accounts; among other items he claims to be allowed the shilling paid to the undersized recruit. The Court has to consider and apply this regulation and, whatever its effect may be, that effect will be given to it by the Court exactly as effect will be given to a statute providing that murderers shall be hanged, or that last wills must have two witnesses."
(John Chipman Gray on "The Nature and Sources of the Law").
11. We should not be understood as laying down any general proposition on this question. But we think that the Order in question conferred upon the first respondent the right to have his pay fixed in the manner specified in the Order and that was part of the conditions of his service. We see no reason why the Court should not enforce that right.
28 OA 2655/2015
12. It was contended on behalf of the appellant that the Order not being retrospective in character, the respondent's pay should not have been fixed with retrospective effect from 2-7-1953. The order is not retrospective in character. The High Court was therefore wrong in fixing the pay with retrospective effect from 2-7- 1953. The direction could only be to fix the pay with effect from the date of the Order and the first respondent did not contend otherwise in this Court. The second respondent will, therefore, fix the pay of the 1st respondent in accordance with the provisions of the Order with effect from the date of the Order."
8. Learned counsel for the applicant could produce certain guidelines issued by Delhi Administration, (Public Works Department) Vikas Bhawan, New Delhi vide letter dated 1.11.1977 providing for entitlement of the officers for accommodation. Clause 3 to 7 of guidelines read thus:-
3. Entitlement of allotment of An office will be eligible for allotment of a residence. residence of the type shown in the table below:
Type of Residence Category of office whose monthly emoluments as on the first day of the allotment year in which the allotment is made is as below:
I Less than Rs.3050/-
II Less than Rs.5500/- but not less
thanRs.3050/-
III
Less than Rs.8500/- but not less than
IV Rs.5500/-
Less than Rs.12000/- but not less than V Rs.8500/-
Rs.12000/- and above
4. Classification of Residences The Director of Allotment may classify type of various residences from time to time.
5. Application for allotment 1) The Director of Allotment shall invite such applications in such form and manner and before such date as may be specified by him from time to time.
Separate priority list of each type of residence shall be maintained.
2) An officer joining duty in Administration on first appointment or on transfer may submit his application in the prescribed form to the Director of Allotment within a month of his joining duty.
3) Applications received under sub-rules (2) on or before the 20th day of a calendar month shall be considered for allotment in succeeding month and included in the relevant priority list maintained under sub rule (1). The entry in the priority list shall be duly signed by the Director of Allotment.
29 OA 2655/2015
6. Allotment of Residence and offers 1) The director of Allotment shall allot a residence, on falling vacant, to an applicant having the earliest priority date for that type of residence subject to the following conditions:-
i) The Director of Allotment shall not allot a residence of a type higher than that to which the applicant is eligible under rule-3.
ii) The Director of Allotment shall not compel any applicant to accept a residence of a lower type than that to what he is eligible under rule 3.
iii) The Director of Allotment on request from an applicant for allotment of a lower category residence might allot to him a residence next below the type for which the applicant is eligible under rule-3 on the basis of his priority date for the same.
2) The Director of allotment may cancel the existing allotment of an officer and allot to him an alternative residence of the same type or in emergent circumstances an alternative residence of the type next below the type of residence in occupation of the officer. If the residence in occupation of the officer is required to be vacated.
3) A vacant residence may, in addition to allotment to an officer under sub-rule-1 above, be offered simultaneously to other eligible officers in order of their priority duties.
*4) Not withstanding the above, Director of Allotment for reasons to be recorded in writing, may allot a house to the applicant not having the sufficient priority date for that particular type of house.
However, it should be as per a clearly laid down policy applicable to all services that cater to GNCTD and whose employees have the liability of being posted outside Delhi.
*5) Director of Allotment, may allot a house of a category lower than entitlement to any applicant, where the applicant is not having sufficient priority in his entitled category and where the applicant himself has made a written request for a lower category allotment provided that his priority for the next category below will be based on the date of eligibility for that category.
*6) The allotment of house of one category above the entitlement should be made by Director of Allotment for Govt. employees strictly as per the provision of FR in this regard and without any discrimination.
30 OA 2655/2015
7. Maintenance of separate pool for Notwithstanding anything contained in certain categories of officers. these rules, the following pools shall be maintained, namely:
i) Pool of the transferable officers (Indian Administrative Service, Delhi Andaman & Nicobar Islands Civil Service and State Civil service), who are posted in the Delhi Administration.
ii) Pool for the officers of the Delhi Higher Judicial Service and the Delhi Judicial Services, who are posted in the Administration, Allotment to them shall be made by the High Court of Delhi District.
iii) These officers are eligible for allotment of residence out of this pools only.
2. The number of types of residence placed in these pools referred to in sub- rule (i) above are mentioned in schedule. The administration may amend or revise the sub-rule from time to time.
3. The inter-seniority of the officers eligible for the allotment of residences under this rule shall be determined on the basis of the date from which each such officer began to draw emoluments pertaining to type to which he is to be considered for allotment. An officer, eligible for allotment of type-VI accommodation may be allotted Type-V accommodation on request from him.
9. In view of the aforementioned administrative guideline and the judgments of Hon'ble Supreme Court (ibid), it cannot be said that the accommodation is not one of the condition of service of the applicant. Even otherwise also in Ajay A.P.Toppo Vs. Union of India and Ors (W.P (C) 10987/2009) decided on 19.08.2009, Hon'ble Delhi High Court ruled that the cancellation of allotment of an accommodation is an issue amenable to the jurisdiction of the CAT. Para 2 to 3 of the judgment read thus:-
"2. There is merit in the contention raised by the learned counsel for the respondents. The petitioner is admittedly an employee of the Central Government. He was allotted a 31 OA 2655/2015 quarter at Janakpuri in view of his employment as a Postal Assistant in the Department of Posts. The respondents have cancelled the said allotment and allotted a flat at Moti Bagh. The dispute is a service dispute as what is challenged in the writ petition is cancellation of allotment of a quarter at Janakpuri and allotment of a new quarter at Moti Bagh. Reference in this regard can be made to the decision of this Court in Dharam Dev versus Union of India and Ors., 1989 (1) SLJ 11 (Delhi), wherein it has been held:-
"(4) The question which arose for decision is whether the subject matter of dispute arising in this writ is covered by the provisions of Administrative Tribunals Act, 1985 or not?
(5) Section 3(q) defines service matters as follows :--
"Service matters", in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation owned or controlled by the Government, as respects:-
(i) remuneration (including allowances),, pension and other retirement benefits :
(ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation;
(iii) leave of any kind ,
(iv) disciplinary matters ; or
(v) any other matter whatsoever ;
(6) Section 14(1)(b) clearly lays down that in respect of service matters, the Administrative Tribunal shall have exclusive jurisdiction and Section 29 of the Act makes it clear that all matters pending in any court which have come under the jurisdiction of the Administrative Tribunal shall stand transferred to said Tribunal. So, it cannot be disputed that right of a particular employee to have an allotment of residential accommodation is a service matter because it is a service benefit which flows from the person being in government service. Section 3(q) clearly lays down that in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union would be included in the definition of ''service matters" and 32 OA 2655/2015 then five clauses have been given. First four clauses specifically give certain matters which would be deemed to be covered by the expression "service matters". Clause (v) clearly mentions that any other matter whatsoever, would also be covered by the subject "service matters" but obviously such matters must relate to the conditions of service. Clause (v) cannot be read ejusdem generis with the preceding four clauses. Clause (v) has to be read in connection with the main Clause (q). The main Section 3(q) is quite comprehensive to include all matters pertaining to the service conditions of the employees so it cannot be argued with any rationality that allotment of a government quarter to an employee is not a matter of his service conditions. I, therefore, hold that the subject matter of the present writ clearly falls under the expression "service matters" and thus only the Administrative Tribunal has the jurisdiction to try the matter and the present case would be deemed to have been transferred to the said Tribunal. The parties are directed to appear before the Registrar of the Tribunal on 1st August, 1988. The office shall take steps to send the file to the Tribunal at the earliest."
3. In view of the aforesaid decision, it is held that the present writ petition is not maintainable and the petitioner should invoke jurisdiction of the Central Administrative Tribunal under the provisions of the Administrative Tribunals Act, 1985. The writ petition is disposed of."
Nevertheless, the facts of the present case are quite peculiar. Here we need to look at the claim of the applicant by dividing the same in three parts viz:
(i) His liability to pay the damage charges for the period between 17.03.2009 to 20.03.2012;
(ii) Liability to pay damage charges for period beyond 20.03.2012 and
(iii) Liability for eviction from the Staff Quarter No. 7/8, Bhagwan Dass Road, New Delhi;33 OA 2655/2015
As far as the period between 17.03.2009 and 20.03.2012 is concerned, there is nothing on record to show that the exchange of staff quarter No. 7/8, Bhagwan Dass Road with quarter no.C- 18, Block-D-II, Vasant Kunj, New Delhi had been finalized during this period. Once a period of 8 months after expiry of deputation of the applicant was over, it was for him to take a decision regarding vacation of the accommodation, in terms of the understanding given by him. There is no administrative instruction or orders produced by the applicant to show that after his repatriation to GNCTD, he could retain the accommodation allotted to him by DDA. For such period the applicant was not entitled to retain the accommodation at the strength of any constitutional or statutory provision or administrative instruction/order. If for such period, he is liable to pay damages to DDA, the authority could take steps in accordance with law including the relevant provisions of Public Premises (Eviction of Unauthorized Occupants) Act, 1971, which read thus:-
"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 damages on account of the use and occupation of such premises and may, 34 OA 2655/2015 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 sub-section (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 simple 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 sub-section (1) or sub-section (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 such time as may be specified in the notice, 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."
As has been ruled by Hon'ble Supreme Court in the case of Union of India Vs. Rasila Ram and Others, the Tribunal cannot entertain the Original Application in respect of the cases covered by the Public Premises Act. Nevertheless, for the period beyond 20.03.2012 when the exchange of the accommodation had been finalized, the applicant was entitled to retain the accommodation in terms of the conditions of his service and even when there is a failure of exchange of Public Premises or rescind of such exchange between two authority, the applicant cannot be blamed Again this Tribunal will have no jurisdiction to enforce the exchange of public premises between the two authority and if DDA has taken a decision to back out from the 35 OA 2655/2015 exchange or to cancel the exchange from a particular date, such cancellation or back out would not become the service matter amenable to the jurisdiction of the Tribunal. If the applicant is adversely affected by the back out, he may seek his remedy elsewhere. His enforceable right is only to ask his employer to give him accommodation in terms of the administrative instructions mentioned hereinabove.
10. In view of the aforementioned, it is held:
(i) This Tribunal will have no jurisdiction to entertain the OA regarding liability of the applicant to pay the damage charges (penal rent) for retention of staff quarter No. 7/8, Bhagwan Dass Road for the period from 17.03.2009 till 20.03.2012, as the accommodation was retained by him not as a condition of his service.
(ii) For the period from 20.03.2012 when the exchange of staff quarter no. 7/8, Bhagwan Dass Road with quarter no. C-18, Block-D-II, Vasant Kunj, New Delhi had been taken place, the applicant will not be liable to pay any damages, as beyond said date, he was entitled to allotment of Government accommodation by employer.
(iii) This Tribunal has no jurisdiction to determine the dispute between GNCTD and DDA on the issue of exchange of bunglow bearing no 7/8 Bhagan Dass 36 OA 2655/2015 Road with quarter No.C-18, Block-D-II, Vasant Kunj, New Delhi
(iv) Though, the entitlement to Government accommodation in terms of the administrative instructions may be the service condition of the applicant, but he can have no legal right to enforce the exchange of public premises between GNCTD and DDA.
(v) This Tribunal has no jurisdiction to interfere with the notices /orders issued under Public Premises ( Eviction of Unauthorised Occupants) Act, 1971.
Ordered accordingly. No cost.
(A.K.Bhardwaj) Member (J) 'sk' ...