Delhi District Court
J.K.Mehra vs Delhi Vidyut Board on 19 May, 2011
IN THE COURT OF SH. S.K.MALHOTRA, SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
Suit No.1053/06/00.
J.K.Mehra,
Quarter No.56, Type III,
D.V.B. Colony,
Pankha Road,
Janakpuri,
New Delhi. .................Plaintiff
Vs.
01. Delhi Vidyut Board
through its Chairman
Nehru place,
New Delhi-110049.
02. Union Public Service Commission,
through its Secretary,
Dholpur House,
New Delhi. ..............Defendants
Date of institution : 30.10.2000.
Date of reservation : 19.04.2011.
Date of pronouncement : 19.05.2011.
J U D G M E N T.
The plaintiff filed the present suit for permanent injunctions
and mandatory injunction against defendants. Defendant no.2 i.e. Union
Public Service Commission was proceeded ex parte vide order dated
16.01.2001. DVB has been unbundled and BSES RPL has stepped into
its shoes.
Suit No.1053/06/00 Page 1 of page 10
In brief, the facts of the case as made out in the plaint are that
plaintiff was on deputation with defendant no.1 DVB as Organised and
Method Officer, being the permanent employee of defendant no.2
i.e.UPSC. It is stated that defendant no.1 allotted quarter no.56, Type 3,
DESU Colony, Pankha Road, New Delhi, to plaintiff on 01.09.1992 on
usual terms and conditions i.e. deduction of HRA and recovery of rent
@124.50p per month. Plaintiff was repatriated from the office of
defendant no.1 to his parent office i.e. defendant no.2 on 01.06.1997.
However, with the permission of defendant no.1, the said
accommodation could be retained by the plaintiff till suitable
accommodation is provided by defendant no.2 on the payment of normal
license fee. It is the case of the plaintiff that the plaintiff requested the
defendant no.1 vide his application dated 22.07.1997 and subsequent
reminder dated 18.12.1997 to permit him to retain the defendant no.1's
accommodation till April 1998 because plaintiff had applied for
government accommodation to defendant no.2, immediately, after
repatriation and the request of the plaintiff to retain the defendant no.1's
accommodation was in accordance with the decision taken by defendant
as per office order no.D/Housing/96-97/271 dated 27.05.1996, which was
issued with approval of competent authority and in the light of above
decision of defendant no.1, several officers belonging to Central
government retained the residential accommodation of defendant no.1,
even after, repatriation to their parent office on payment of usual license
fee only.
It is further stated that it was the obligation of defendant no.2
to provide residential accommodation to plaintiff on his repatriation and if
Suit No.1053/06/00 Page 2 of page 10
accommodation is not provided, then to pay HRA @ 30% of the basic pay
to the plaintiff. It is stated that defendant no.2 ought to have taken up the
matter with defendant no.1 to allow the quarter no.56 in the name of
plaintiff till defendant no.2 provide the residential accommodation. It is
further case of the plaintiff that the defendant no.2 could deduct the 30%
HRA only if the defendant no.1 allowed the lease of the said quarter in
the name of defendant no.2 for the purpose of allotment of the said
quarter to plaintiff and in absence of the same, the deduction of 30% HRA
from the salary of the plaintiff by defendant no.2 is illegal and
unauthorised, as quarter no.56 Type III, DVB Colony is neither a govt.
owned property nor it is leased property of the government. It is stated
that defendant no.1 remained silent till 28.08.2000 and never asked the
plaintiff to vacate the said quarter and as such, no reply of the aforesaid
application was sent by the defendant no.1 to the plaintiff and the
defendant no.1 should not have issued the orders of recovery of damage
charges retrospectively, w.e.f 01.07.1997 for the recovery of Rs.
1,01,374.50p as damage charges, from the salary of the plaintiff,
specially, when defendant no.2 was deducting 30% of the basic pay of the
plaintiff, every month and defendant no.2 ought to have remitted the
amount of HRA from the salary of plaintiff to defendant no.1 against their
demand of Rs.1,01,374.50p and therefore, the order of defendant no.2 to
deduct HRA second time, from the salary of the plaintiff for the same
period is illegal. Hence, the present suit to grant a decree of permanent
injunction in favour of plaintiff and against the defendants, thereby,
restraining the defendants from recovering the amount of Rs.1,01,374.50p
from the plaintiff and a decree of mandatory injunctions, thereby,
Suit No.1053/06/00 Page 3 of page 10
directing the defendant no.1 to take over the possession of Quarter No.56,
Type III, DVB Colony, Pankha Raod, Janakpuri, New Delhi and directing
defendant no.2 to pay the lawful dues of defendant no.1 out of the amount
already deducted by defendant no.2 from the salary of the plaintiff @30%
of his basic pay and directing defendant no.1 to pay the arrears payable by
the defendant no.1 to the plaintiff on account of Revision of Pay Scale
w.e.f. 01.01.1996 to 01.06.1997 while the plaintiff was in service with
defendant no.1 on deputation alongwith 15% interest per annum on these
arrears, is filed.
Defendant no.2 i.e. Union Public Service Commission, did
not file written statement and was proceeded ex parte vide order dated
16.01.2001, however, defendant no.1 i.e. DVB contested the present case
by filing detailed written statement and took the preliminary objection
that present suit is not maintainable as it comes under Public Premises
Act, therefore, civil court has no jurisdiction; suit is not maintainable as
plaintiff becomes unauthorised occupant of DVB accommodation in his
possession and liable to pay damage charges for overstay in DVB flat.
On merits, the contents of the plaint have been denied, while submitting
that the request of plaintiff for retention of accommodation vide letter
dated 07.07.2000 was considered and further retention could not allowed
as plaintiff did not offer to deposit the license fees in advance as provided
under the rules. It is stated that after the expiry of permissible period,
plaintiff becomes unauthorised occupant of DVB accommodation in his
possession and liable to pay the damages for overstay. It is submitted that
after approval of competent authority, the possession was taken on
01.12.2010 subject to clearance of electricity dues and as per request of
Suit No.1053/06/00 Page 4 of page 10
plaintiff alongwith photocopy of pay slip, in which, recovery has been
started @Rs.4,424/- from the pay of September, 2000. It is prayed by the
defendant no.1 that suit of the plaintiff be dismissed with cost.
Plaintiff filed replication, thereby, denying the contents of
written statement as filed on behalf of defendant no.1 and reaffirmed the
averments as made in the plaint.
From the pleadings of the parties following issues were
framed vide order dated 27.01.2001:
1.Whether plaintiff is entitled to the decree of permanent injunction as prayed ? OPP.
2. Whether the plaintiff is entitled to the decree of mandatory injunction as prayed ? OPP.
3. Whether civil court has no jurisdiction to try and decide this case ? OPD.
4. Whether defendant no.1 is entitled to the recovery of licence fees as per rules for the period for which plaintiff retained the residential accommodation beyond permission ? OPD.
5. Relief.
In support of its case, plaintiff examined himself as PW-1. On the other hand, no evidence is led on behalf of defendants and defendants evidence was closed vide order dated 19.04.2005.
I have heard ld. counsel for parties as well as perused the material placed on record and written arguments as filed on behalf both the parties. My issue wise findings are as under:-
Issue no.3.
The onus to prove this issue was upon the defendant. Ld. Suit No.1053/06/00 Page 5 of page 10 counsel for defendant no.1 argued that civil court has no jurisdiction to try the present suit as the matter comes under the purview of Public Premises (Eviction of unauthorised Occupant) Act 1971. On the other hand, ld. counsel for plaintiff argued that the Estate Officer had not passed any order u/s 7 of the Public Premises (Eviction of unauthorised Occupant) Act 1971, in absence of which, plaintiff had no remedy to file appeal u/s 9 of the Act and as the defendant no.2 started to recover the damage charges from the salary of the plaintiff, therefore, the civil court has jurisdiction to entertain the suit. No evidence is led by defendants to show that any order u/s 7 of the Public Premises (Eviction of unauthorised Occupant) Act 1971, was passed by Estate Officer for recovering damages from the salary of the plaintiff. No document to this effect, is on the record. In absence of any order of Estate Officer, in respect of recovery of damages for occupying the flat in question, unauthorisedly by the plaintiff u/s 7 of the Act, the present suit is not barred u/s 15 of the Public Premises (Eviction of unauthorised Occupant) Act 1971. Accordingly, this issue is decided against the defendants and in favour of plaintiff. Issue no.1 and 2.
These issues are interlinked, as such, taken up together. Onus to prove these issues was upon the plaintiff. PW-1 deposed that he was repatriated from DESU to his parent office in 1997 and after repatriation to his parent office, i.e. UPSC, he requested to DVB vide his application dated 22.07.1997, Ex.PW-1/8 to allow him to retain the accommodation allotted to him by DESU and also sent a reminder dated 18.12.1997, i.e. Ex.PW-1/9, but, he had not received any reply from DVB, however, DESU wrote a letter dated 20.10.1997 i.e. Ex.PW-1/10 to Suit No.1053/06/00 Page 6 of page 10 UPSC to deduct the normal rent of the aforesaid quarter and to remit the same on the rates at which, the said rent was being deducted by DESU and that letter is proved as Ex.PW-1/10. PW-1 further deposed that vide letter dated 10.02.2000 i.e. Ex.PW-1/11, he asked the UPSC to remit the rent which was being deducted from his salary and therefore on the request of DVB, the UPSC informed him vide letter Ex.PW-1/12 that the DVB had requested them to recover Rs.1,01,374.50p from his salary, which is not recoverable as UPSC was regularly deducting 30% of his pay every month but not remitting any rent to DVB. PW-1 further deposed that allotment of his quarter was cancelled by DVB vide letter dated 28.08.2000 i.e. Ex.PW-1/14. It is admitted fact by the defendant no.1 as mentioned in para no.6-7 of the written statement that as regards the permission beyond retention period, the request of the plaintiff dated 07.07.2000 for the permission for further retaintion of DVB quarter was considered by competent authority and further period could not be allowed under the circumstances on the ground that the plaintiff did not offer to deposit the license fee in advance as provided under the rules. Thus, even, as per defendant no.1, the request of the plaintiff dated 07.07.2000, was not considered as he did not offer to deposit the advance license fee, which, itself shows that prior to 07.07.2000, the retaintion of the DVB quarter was not declined by the DVB and the rules of the DVB provided for retention of the DVB quarter even after repatriation to the parent department. The office order of DVB Ex.PW-1/7 also supports the contention of the plaintiff to this effect. There is no evidence on behalf of defendants to show that the earlier request made by the plaintiff vide letter Ex.PW-1/8 and Ex.PW-1/9 to retain the said flat was turned down by the Suit No.1053/06/00 Page 7 of page 10 defendant no.1. The office order Ex.PW-1/14 as issued by DVB, itself shows that the allotment of quarter in favour of plaintiff was cancelled by that order i.e. Ex.PW-1/14 dated 28.08.2000, therefor, prior to 28.08.2000, it cannot be said that the plaintiff was an unauthorised occupant of the flat. It is also not in dispute that after repatriation from DVB from UPSC, the defendant no.2 UPSC was deducting HRA i.e.30% of the basic salary of the plaintiff. It is also not disputed by defendant no. 1 as deposed by PW-1 that in August 2010 after cancellation of quarter, he requested the DVB to take over the possession from him but they refused to take over the same and thereafter, the possession was taken over on 01.12.2000. As the allotment of the quarter of the defendant no.1 to plaintiff was cancelled vide letter Ex.PW-1/14 dated 28.08.2000, the defendants are not entitled to claim any damages from plaintiff in respect of quarter prior to date of cancellation of allotment. Accordingly, defendants are restrained to recover the amount of Rs.1,01,374.50p on account of damage charges upto 30.06.2000 from the plaintiff. As far as relief of mandatory injunction to direct the defendant no.1 to takeover the vacant possession of quarter is concerned, as PW-1 has already deposed that the possession was taken over on 01.12.2000 the relief becomes infructuous. In respect of direction to defendant no.2 to pay the lawful dues of defendant no.,1 out of amount already deducted by defendant no.2 from the salary of the plaintiff i.e.HRA @30% per month is concerned, PW-1 has deposed that he has already paid the entire rent till date of vacation of the aforesaid quarter and same was adjusted with the damage charges illegally recovered from him, therefore, no direction to this regard is required. Plaintiff has also prayed that defendant no.2 be directed to Suit No.1053/06/00 Page 8 of page 10 pay the arrears payable by defendant no.1 to the plaintiff on account of revision of pay scale w.e.f. 01.01.1996 to 01.01.1997, but, no evidence is led by plaintiff disclosing his pay scale or the revision of pay if any, made by the defendants, in absence of any evidence to this effect the relief for arrears of pay cannot be granted. Accordingly, these issues are decided in favour of plaintiff and against the defendants.
Issue no.4.
The onus to prove this issue was upon the defendant, but no evidence is led by the defendants to show as to for which period, the plaintiff retained the residential accommodation beyond permission. It is mentioned in para no.6 and 7 of the written statement of the defendant no.1 that the request of plaintiff dated 07.07.2000 for further retention of the quarter was not allowed as the plaintiff did not offer to deposit the license fee in advance, as provided in the rules, which, itself shows that plaintiff deposited the license fee prior to 07.07.2000. Furthermore, PW-1 specifically deposed that he has already paid the entire rent till date of vacation of aforesaid quarter as per direction of this court and the same was adjusted with the damage charges illegally recovered from him. Perusal of record shows that vide order dated 27.01.2001, on an application u/o 39 rule 1 & 2 CPC, it was directed that the defendant no.1 is entitled to license fee and other charges and if any recovery effected from the plaintiff that shall be adjusted towards the payment of license fee and other charges for the period from January 1997 to August 2000. There is no evidence in rebuttal or a suggestion to PW-1 that any amount on account of license fee is still due towards the plaintiff. Accordingly, this issue is decided in favour of plaintiff and against the defendants.
Suit No.1053/06/00 Page 9 of page 10 Relief.
In view of my findings on the above issues, the suit of plaintiff is decreed with costs in favour of plaintiff and against the defendants and defendants are restrained from recovering the amount of Rs.1,01,374.50p from the plaintiff on account of damage charges in respect of Quarter No.56, Type III, DVB Colony, Pankha Raod, Janakpuri, New Delhi. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in open Court (S.K.MALHOTRA) on 16.05.2011. SCJ/RC(NORTH)/DELHI. Suit No.1053/06/00 Page 10 of page 10