Delhi District Court
Sh. Rajan Sehgal vs Directorate Of Estates on 20 January, 2022
IN THE COURT OF MS NEENA BANSAL KRISHNA
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH EAST DISTT.: SAKET COURTS, NEW DELHI
PPA NO. 01/2021
Sh. Rajan Sehgal
S/o Sh. S. L. Sehgal
W-10/2, DLF Phase-3,
Sector-24, Gurgaon - 122010 ..... Appellant
Versus
Directorate of Estates
Govt. of India
Nirman Bhawan,
New Delhi - 110011 ..... Respondent
First date before this Court: 30.06.2021
Date of Order: 20.01.2022
ORDER:
1. An Appeal under Section 9 of The Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred as the "Act" ) has been filed against th e Order dated 19.04.2021 vide which damages in the sum of Rs. 10,91,042/- for the period from 21.07.2016 till 17.03.2017 have been directed to be paid by the appellant.
2. The facts in brief are that the appellant while working with the Ministry of Environment and Forests on the post of Assistant Inspector General was allotted Premises No. E-32, HUDCO Place Extension (Type-5B), New Delhi on 19.11.2009 in accordance with Allotment of Government Residence (General Pool in Delhi) Rules, PPA No. 01/2021 Page No. 1 of 16 Rajan Sehgal Vs. Directorate of Estates 1963. The appellant was repatriated to his State Cadre i.e. Kerala in the first week of June, 2015 after expiry of his Central Deputation Tenure. Immediately on repatriation, the Study Leave of the appellant was sanctioned for the period of two years from 01.07.2015 to 30.06.2017 for undergoing Post Graduate Diploma in Management (Financial Management) under All India Services (Study Leave) Regulation, 1960 with approval from Ministry of Environment and Forest, Government of India at NIFM, Faridabad.
3. The appellant in June, 2015 was in the Grade Pay of Rs. 10,000/- and was entitled to Type-6A Government Accommodation but he continued to hold the suit premises, which was below his entitlement. The appellant in terms of SR 317 B-11 of the Rules was entitled to retain his accommodation for the entire period of Study Leave since his category for the accommodation was below his entitlement. Accordingly, Appellant made a request for retention of flat for the period of Study Leave vide Letter dated 10.07.2015 on the ground of preventing disruption of studies of his two daughters. The younger daughter was studying in Class-XI at Sanskriti School, Chanakya Puri, New Delhi, while the elder daughter was pursuing Law at Amity University.
4. The allotment was however, cancelled pursuant to communication dated 03.09.2015 w.e.f. 31.07.2015. A request was again made and appellant was allowed to retain PPA No. 01/2021 Page No. 2 of 16 Rajan Sehgal Vs. Directorate of Estates the premises on "Educational Grounds" from 31.07.2015 to 31.01.2016 vide Letter dated 03.09.2015. Since the daughters were in the midst of their academic session, the accommodation could not be vacated. A Show Cause Notice dated 08.06.2016 was issued to him. A Reply dated 20.06.2016 was given reiterating the concern of the appellant. However, without deciding the entitlement of the appellant, respondent directed him to pay Rs. 2,98,173/- towards Damages vide Letter dated 21.07.2016. The appellant deposited the amount on 22.08.2016 but submitted his protest/representation.
5. The respondent issued an Order dated 11.11.2016 directing the appellant to vacate the suit premises within 15 days of publication of the Order and was also called upon him to pay the damages computed at Telescopic rates w.e.f. 01.07.2016 as per OM dated 07.09.2016. The representation dated 28.11.2016 made by the appellant was not considered. Another representation was made on 06.02.2019 but again demand of Rs. 10,86,402/- was raised vide Letter dated 02.07.2019 and 23.07.2019.The representations were rejected vide Letter dated 31.07.2020 and demand was enhanced to Rs. 10,91,042/-.
6. The amount levied as damages has been challenged on the ground that the appellant was not an unauthorized occupant. He was holding the accommodation in a category below his entitlement and in terms of Allotment Rules he was entitled to retain the premises for the entire period of PPA No. 01/2021 Page No. 3 of 16 Rajan Sehgal Vs. Directorate of Estates study leave. It is further asserted that the appellant vacated the suit flat prior to expiry of his study Leave and hence no damages could have been levied against him. Moreover, once the retention was granted to him on 03.09.2015 for a period of 06 months for educational reasons, the same could not have been declined for the remaining period for which the appellant was pursing his course.
7. The appellant has also challenged the quantum of damages by following the telescopic method. It is submitted that the existence of OM dated 07.09.2016 imposing Telescopic rates was communicated to him for the first time on 11.11.2016 and was received on 19.11.2016. The OM could have been made applicable only after 15 days of the date of publication and the damages could not have been computed retrospectively since July, 2016. Furthermore, the OM dated 07.09.2016 has not been published in the Official Gazette, which is mandatory under Section 18 of the Act. Moreover, OM is an Executive Order and cannot over-ride the statutory provisions of the Act. Moreover, a Show Cause Notice should have been issued to him before imposing Telescopic damages. Further, as per the OM, Telescopic damages should be imposed only after the occupant has been declared "unauthorised occupant". Even if, the strictest interpretation has to be given to the OM, Telescopic damages should have been charged 15 days post issuance of Notice on 11.11.2016. It is claimed that the Order of the Ld. Estate Officer suffers from illegality and PPA No. 01/2021 Page No. 4 of 16 Rajan Sehgal Vs. Directorate of Estates infirmity and is liable to be set-aside.
8. The respondent has submitted a detailed reply wherein it is explained that the appellant on transfer to his parent cadre was not eligible to Central Government General Pool Accommodation and was liable to vacate the same. The Rule of retaining the house below entitlement for the entire period of Study Leave is provided in the Central Government General Pool Residential Accommodation Rules, 2017, which was applicable only when the officer continues to be entitled for General Pool Residential Accommodation. Since the appellant got transferred to non- eligible cadre, the Rule was not applicable.
9. It is further submitted that on the request of the appellant he was given an extension till 31.01.2016 on account of education of his two daughters, but he failed to vacate the premises and Eviction proceedings under Section 5 of the Act were initiated against him. The appellant in his various representations kept maintaining that he was entitled for retention of allotted house for his entire study period on his own interpretation of Allotment Rules by mixing them with Service Rules. Though the appellant kept making various representations, he was unable to produce any Order which allowed him to retain General Pool Residential Accommodation at New Delhi.
10.It is further asserted that the Eviction Order was made against the appellant on 11.11.2016 and he was asked to vacate the premises within 15 days from the date of PPA No. 01/2021 Page No. 5 of 16 Rajan Sehgal Vs. Directorate of Estates publication of Order. It was clearly indicated that in case the appellants fails to vacate the premises, damages would be calculated by following the Telescopic method. In the meanwhile, rates of damages were also revised by the Central Government for unauthorised occupation of General Pool Residential Accommodation vide OM No. 18011/1/2015-Pol.II I dated 07.09.2016 and concept of Telescopic damages was introduced and was made applicable to all the unauthorised occupants as on 01.07.2016 and to those who were subsequently declared unauthorised occupants. The appellant was unauthorisedly occupying the General Pool Residential Accommodation and was liable to pay the damages at the Telescopic rates from 01.07.2016 to 17.03.2017 when he vacated the premises. The revised rates were conveyed to the appellant by the Directorate vide Letter dated 21.07.2016. It could not have been done earlier since it got notified on 07.09.2016. It is further submitted that the damages have been assessed in accordance with law and there is no merit in the present appeal which is liable to be dismissed.
11.The appellant in the rejoinder has reaffirmed the grounds, as contained in the appeal.
12.Ld. Counsel for the appellant has submitted written arguments. It is submitted that Section 7(2) and Section 7 (2A) of the Act stipulates that the Ld. Estate Officer "having regard to such principles of assessment of damages as may be prescribed" may determine the damages. In the PPA No. 01/2021 Page No. 6 of 16 Rajan Sehgal Vs. Directorate of Estates impugned Order, the respondent without giving any basis of calculation, has directed the appellant to pay the damages to the tune of Rs. 10,91,042/- as arrears of license fees and damages of being unauthorised occupant from 21.07.2016 to 17.03.2017. It is claimed that the OM dated 07.09.2016 is premature as it has not been published in the official Gazette which is the mandatory requirement under Section 18 of the Act. Thus, this OM being penal in nature, a Show Cause Notice ought to have been issued to the appellant before imposing the penal damages calculated according to Telescopic method. Further, without prejudice to the OM, the Government cannot over-ride the statutory provisions.
13.It is further argued that even if the strictest possible interpretation is to be given to the OM dated 07.09.2016 the Telescopic method could have been charged 15 days post of the issuance of Order of eviction dated 11.11.2016. The existence of OM dated 07.09.2016 was communicated to the appellant for the first time on 11.11.2016, which was received by him on 19.11.2016 and hence the damages if any, ought to be computed post 15 days of its communication. Reliance has been placed on S. D. Bandi vs. Divisional Traffic Officer (2013) 12 SCC 631 .
14.The other limb of argument is that once the Study Leave of the appellant was sanctioned in accordance with Rules under All India Services (Study Leave) Regulation, 1960 with the approval of the Controlling Authority i.e. Ministry PPA No. 01/2021 Page No. 7 of 16 Rajan Sehgal Vs. Directorate of Estates of Environment and Forest, Government of India, he should have been allowed to retain the official accommodation for the entire duration of Study Leave from 01.07.2015 to 30.06.2017, since the category of the accommodation was a category below his entitlement. It is claimed that the impugned order is devoid of any logic as once the extension for 06 months for the reason "educational" was given the same should not have been reduced for the remaining period of the course pursued by the appellant.
15.It has been further argued that Section 7 of the Act empowers the Ld. Estate Officer to adjudicate after issuing Show Cause Notice and conducting enquiry, but in the present case no such determination has taken place. Reliance on this aspect has been placed on Solaimmal vs. Toothukudi Municipal Corporation 2015 (1) CTC 465 . The Ld. Estate Officer is a quasi-judicial Authority and is bound to observe the principles of natural justice while conducting the enquiry as held in Col. Arun Ahuja vs. The Estate Officer dated 07.03.2020 passed in PPA No. 53/2017 . It is submitted that the impugned order is liable to be set-aside.
16.Ld. Counsel for the respondent has argued that the impugned order has been made in accordance with law and is a speaking Order, which is not liable to be set-aside.
17.I have heard the arguments and perused the record. My observations are as under:
18.To appreciate the rival contentions of the parties it would PPA No. 01/2021 Page No. 8 of 16 Rajan Sehgal Vs. Directorate of Estates be pertinent to reproduce Section 7 of the Act which reads as under:
7. Power to require payment of rent or damages in respect of public premises --
(1) Where any person is in arrears of rent payable in respect of any public premises, the estate officer may, by order, require that person to pay the same within such time and in such installments 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, by order, require that person to pay the damages within such time and in such installments as may be specified in the order.
(2A)....
(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.
19.Section 7 of the Act mentions the procedure to be followed for determination of recovery of rent/damages in respect of the public premises. There are two kinds of recovery envisaged under Section 7 of the Act:
1. In respect of arrears of rent/licence fee that may accrue before the termination of the Licence Deed.
This is the amount which is calculated by the Department on the basis of agreed rent.
2. Damages which are to be calculated from the date when the allottee becomes an unauthorised occupant till the date he vacates the premises. The damages have to be calculated by the Estate Officer on the established norms.
PPA No. 01/2021 Page No. 9 of 16Rajan Sehgal Vs. Directorate of Estates
20.Further, Sub Section (3) of the Act provides that before any Order is made under Sub Sections (1) or (2) of the Act, Notice in writing shall be issued calling upon the person to show cause within such time as to why an order be not made and his objections, if any, and any evidence that he may produce shall be considered by the Estate Officer before making the Order. Sub Section (2A) also provides for grant of interest on the rent/ damages as per the stated Rate, by the Estate Officer.
UNAUTHORIZED OCCUPANT:
21.The first aspect of challenge is that the appellant was not an unauthorised occupant and hence was not liable to pay the damages as have been levied by the respondent. The basic premise of the appellant is that he was posted in Delhi in Ministry of Environment and Forests ad Assistant Inspector General and was allotted the suit premises which was Type-5B, even was below his entitlement for Type-6A house being in the Grade Pay of Rs. 10,000/-. The appellant was transferred back to the State Cadre i.e. Kerala in the first week of June, 2015. The Study Leave for two years was sanctioned by the State Government from 01.07.2015 to 30.06.2017. It is the case of the appellant himself that while he was transferred to his parent cadre i.e. Kerala, he ceased to be entitled to retain the Central Government General Pool Accommodation and he was given one PPA No. 01/2021 Page No. 10 of 16 Rajan Sehgal Vs. Directorate of Estates month's time as per Rules, to vacate the suit premises. The appellant has not been able to show any Rule which permitted him to retain the Central Government General Pool Accommodation even after his transfer to State Cadre.
22.It was further argued on behalf of the appellant that once the study leave from 01.07.2015 to 30.06.2017 was duly sanctioned by the Government, he could not have been penalised by way of damages, but should have been allowed to retain this accommodation. This argument does not auger in favour of the appellant. It is again not disputed that the Study Leave was sanctioned by the State Government and not by the Central Government. The claim or entitlement of the appellant was to be governed by the State Rules as he ceased to be entitled to the benefit of the Central Government General Pool Accommodation. The State Rules did not entitle him to retention of the General Pool Flat once he got repatriated and therefore he was not entitled to continue to retain the Flat.
23.A fallacious argument has been raised by the appellant that once the extension was granted on "educational ground" it should not have been for 06 months but for his entire tenure of "education leave". This argument is completely untenable since the extension of 06 months was pursuant to his representation on account of education of his two daughters and not his educational leave. Thereafter, his representations for further extension were declined making him an unauthorized occupant from January, 2016. The PPA No. 01/2021 Page No. 11 of 16 Rajan Sehgal Vs. Directorate of Estates appellant failed to vacate the premises despite Notice and the eviction proceedings under Section 5 of the Act were correctly initiated against him on 11.11.2016.
24.Again, the argument that the appellant became unauthorized occupant only in November, 2016 when the proceedings got initiated, is frivolous for the simple reason that he became an unauthorised occupant after expiry of period of extension in January, 2016 and not when eviction proceedings was initiated against him in November, 2016. Ld. Estate Officer has thus rightly held that the appellant is liable to pay the damages being an unauthorized occupant.
CALCULATION OF DAMAGES:
25.The second aspect of challenge is that the damages in terms of OM dated 07.09.2016 have been wrongly calculated.
26.Section 7 (2) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 provides that 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 by an unauthorised occupant and require him to pay such damages within the given time or in installments.
27.The parameters to be considered by the Ld. Estate Officer for determination of the damages payable by the unauthorised occupant have been given in Rule 8 of the PPA No. 01/2021 Page No. 12 of 16 Rajan Sehgal Vs. Directorate of Estates Public Premises (Eviction of Unauthorised Occupants) Rules, 1971, which is reproduced as under:
Rule-8 Assessment of damages - In assessing damages for unauthorised use and occupation of any public premises the estate officer shall take into consideration the following matters, namely:-
(a) The purpose and the period for which the public premises were in unauthorised occupation;
(b) The nature, size and standard of the accommodation available in such premises;
(c) The rent that would have been realised if the premises had been let on rent for the period of unauthorised occupation to a private person;
(d) Any damage done to the premises during the period of unauthorised occupation;
(e) Any other matter relevant for the purpose of assessing the damages.
28.Reading of Section 7 (2) of the Act along with Rule 8 of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971 makes it evident that the assessment of damages has to be made by the Estate Officer keeping in mind the parameters as narrated in Rule 8 of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971.
29.The Government in order to bring transparency and uniformity has provided basic formula to be kept in mind while calculating the damages. Being conscious of the rampant propensity of the allottees to retain the premises, the Government revised the principles of calculating the damages and introduced Telescopic method whereby the PPA No. 01/2021 Page No. 13 of 16 Rajan Sehgal Vs. Directorate of Estates damages were increased by 10% every month to a maximum of 05 times.
30.The main argument raised by the Appellant is that the OM is an Office Order which has not been notified in Gazette as mandated by Section 18 of the Act, to acquire the force of a statute.
31.It has been rightly submitted that the Office Order introducing Telescopic Method of calculating damages has not been notified as yet, but it could very well be considered under Rule 8 as a general guideline for calculating the damages. It is pertinent to refer to the Order of the Ld. Estate Officer, who while referring to the Office OM has observed that the market rates of HUDCO Place Extension Area, New Delhi, where the Property is located are much higher than the rates being fixed by the Directorate of Estates. The Ld. Estate Officer was fully conscious of the prevailing market rates while determining the rates of damages. The appellant has not been able to show that the damages calculated by the respondent were higher than the prevailing market rate as observed by the Ld. Estate Officer. The Ld. Estate Officer has considered the parameters including the Office Order as defined under Rule 8 of the Act and has independently held that the prevailing damages are much higher than those calculated by following the Telescopic method. The appellant has nowhere countered that the prevailing market rate in the area was less than the damages PPA No. 01/2021 Page No. 14 of 16 Rajan Sehgal Vs. Directorate of Estates fixed by the Estate Officer.
32.It is claimed by the appellant that before making the assessment by following the telescopic method, he was not given any prior Notice before 11.11.2016 and without giving him Notice this principle could not have been adopted since July, 2016 for calculating the damages.
33.This argument again gets defeated by his own claim that Office Order has not been published in the Gazette and acquired the status of statute. It merely remains a guiding principle which the Estate Officer may follow in appropriate cases. Ld. Estate Officer has calculated the damages by applying the telescopic method, but that was only a guiding factor for consideration and calculation of the damages. The question of its retrospective applicability and prior Notice therefore does not arise.
34.A Show Cause notice was duly issued under Section 7 (3) of the Act and an opportunity was given to the appellant during the proceedings before the Ld. Estate Officer to challenge the damages so levied, but the appellant did not question the fundamental principles, but only challenged the assessment of damages on the ground that he was not unauthorised occupant.
35.It would be pertinent to point out here that the damages for the period from January, 2016 till June, 2016 in the sum of Rs. 2,98,173/- were levied against the appellant vide Letter dated 21.07.2016 which has been paid by the appellant, though under protest. The benefit has been given in not PPA No. 01/2021 Page No. 15 of 16 Rajan Sehgal Vs. Directorate of Estates levying the damages on Telescopic basis since January, 2016 but only from July, 2016. The overall calculation of damages for the entire unauthorized retention period cannot be held to be unreasonable having regard to the area where the premises are located. There is no infirmity in the calculation of damages and the objections raised by the appellant in this regard are without merit.
36.The Ld. Estate Officer has passed a reasoned order which reflects that all the submissions as raised by the appellant were duly considered.
37.In view of above, there is no infirmity or illegality in the impugned Order dated 19.04.2021 passed by the Ld. Estate Officer. Hence, the present appeal is hereby dismissed.
38.The Record of Ld. Estate Officer be sent back along with a copy of this order.
39.Appeal file be consigned to Record Room.
Announced in the open (NEENA BANSAL KRISHNA) Court on 20.01.2022 Principal District & Sessions Judge (KSR) South East, Saket Courts, New Delhi PPA No. 01/2021 Page No. 16 of 16 Rajan Sehgal Vs. Directorate of Estates