Delhi District Court
Gp Capt Shital Vachhani vs Union Of India And Anothers on 20 January, 2024
DLND010160932019
IN THE COURT OF ADDITIONAL DISTRICT JUDGE- 01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Presided over by :- MS. VIJETA SINGH RAWAT (DHJS)
PPA No. 30/2019
GP. Capt. Shital Vachhani
Presently residing at :
A-501, Vedika Habitat
Randesan Road,
Gandhi Nagar - 382421
Gujarat
........ Appellant
Versus
1. Union of India
Through Secretary
Ministry of Defence
South Block, New Delhi - 110011
2. Air Officer Commanding, AFRO
Subroto Park
New Delhi - 110010
3. Estate Officer
Camero Complex
Subroto Park
New Delhi - 110010
........ Respondents
Appeal presented On : 17.09.2019
Arguments Concluded On : 26.10.2023
Judgment Pronounced On : 20.01.2024
PPA No. 30/2019
GP. Capt. Shital Vachhani Vs. Union of India and Ors. Page No.1 of 23
JUDGMENT
1. This appeal u/s 9 of The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter, referred to as 'PPA') against order dated 08.08.2019 (hereinafter, referred to as 'impugned order') has a chequered history. This is the second round of litigation before the Appellate authority. For the sake of convenience, it will be relevant to elucidate the facts as under :
Sl no. Date Event 1. 08.09.1995 The appellant was commissioned in the medical
branch of Indian Airforce and is now, a Group Captain
2. 29.05.2013 The appellant was allotted OMQ (Official Married Quarter) no. P-364/B2
3. 13.03.2015 The appellant on transfer to Tezpur, Assam applied for retention of aforementioned OMQ relying upon para no. 53 (c), Chapter X of Indian Air Publication 2501 (IAP 2501), Ministry of Defence (MoD), letter no. 13(3)/97/D/CRC dated 12.11.1997 and letter no. Air HQ/37603/2/W(P&C) dated 08.06.2000 which permitted retention of OMQ at previous duty station by the personnel posted to units at Srinagar, Udhampur, Assam, Tripura and Andaman and Nicobar islands.
4. 24.03.2015 Vide letter no. RO(u)281/1/ORG the permission was granted for full tenure on posting to hard area subject to conditions mentioned therein
5. 21.7.2015 Air Force Record Office (AFRO) vide a letter addressed to C Adm O of 11 Wing Tezpur, Assam, the appellant was intimated about para 51 Chapter X IAP 2501
6. 20.08.2015 The appellant submitted her reply about non applicability of para 51 Chapter X IAP 2501 to her PPA No. 30/2019 GP. Capt. Shital Vachhani Vs. Union of India and Ors. Page No.2 of 23 Sl no. Date Event
7. 20.08.2015 AFRO informed the appellant about para 51 Chapter X IAP 2501 entitling the spouse of the appellant (who is also a Group Captain in the Air Force but posted in a difference unit) to allotment of Married accommodation from Common Accommodation Pool (CAO) pool and advised the appellant to shift out of the present accommodation to CAO pool on allotment to her spouse.
8. 25.10.2015 The appellant replied asserting her entitlement to the OMQ in view of para 53(c) Chapter X IAP 2501
9. 15.02.2016 Notice under Section 4 of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 addressed to C Adm O, AF Station, Tezpur was sent for hearing on 26.02.2016 but, the same was received by the unit only on 01.03.2016 and served upon the appellant on 04.03.2016
10. 08.03.2016 Order of eviction under Section 5(1) PPA was pronounced which was served upon the petitioner only on 14.03.2016.
11. 17.03.2016 The Estate Officer passed the eviction order without hearing the petitioner.
12. 29.04.2015 Appeal no. PPA no. 249/16 titled Gp. Capt. Shital Vachhani Vs. UOI was instituted to challenge order dated 08.03.2016 and 17.03.2016
13. 25.05.2019 The appeal was allowed qua impugned order) dated 08.03.20161
14. 04.06.2016 Fresh hearing was held by the Estate Officer
15. 19.06.16 of The appellant vacated the OMQ NO. SPE-364/B-2 20.06.16 (check from file) 1 "8.0 In view of the above facts & circumstances, it is evident that the impugned order of eviction was passed without hearing the appellant. The matter therefore, needs to be reconsidered by the Estate Officer after hearing the appellant. 8.1 The impugned order is therefore, set aside. The matter is remanded back to the Estate Officer.
8.2 Parties are directed to appear before the Estate Officer on 04.06.2019 at 02.00pm. 8.3 It is made clear that no further notice shall be issued by the Estate Officer. 8.4 The Estate Officer is directed to decide the matter afresh after hearing both the parties and disposed of the same as expeditiously as possible and within a period of 8 weeks from the date of this order."
PPA No. 30/2019
GP. Capt. Shital Vachhani Vs. Union of India and Ors. Page No.3 of 23
Sl no. Date Event
16. 08.08.2019 Impugned order came to be passed holding that the
plaintiff was an authorized occupant in OMQ NO. SPE-364/B-2 w.e.f. 27.2.216 to 19.06.2016 and damages of Rs.31,72,107/- was imposed.
GROUNDS OF APPEAL
2. The impugned award has been challenged on the following grounds :
(a) That the award has been passed by AOC AFRO who is not an Estate Officer and had no jurisdiction to adjudicate over the matter.
(b) That the order has been passed with a pre-determined mind and is biased as the language of the order suggests that the Estate Officer was acting on advice of superior authorities.
(c) That the order is illegal as it has been passed in violation of para no. 53 (c), Chapter X of Indian Air Publication 2501 (IAP 2501), Ministry of Defence (MoD), letter no. 13(3)/97/D/CRC dated 12.11.1997 and letter no. Air HQ/37603/2/W(P&C) dated 08.06.2000.
(d) That the Order has wrongly appreciated that the spouse of the appellant had been offered accommodation twice but he did not respond therefore, it was relegated. The Estate Officer failed to appreciate that at that time, the appellant was residing in Delhi alongwith her spouse in the OMQ. The respondents did not offer any accommodation in CAO after the appellant was posted out and therefore, since her husband had no other accommodation, the appellant was entitled to retain the OMQ under para 53(c) Chapter X of IAP 2501.
PPA No. 30/2019GP. Capt. Shital Vachhani Vs. Union of India and Ors. Page No.4 of 23
(e) That damages u/s 7 of the PPA to the tune of Rs. 31,72,107/- is in violation of principle of natural justice as no showcause notice fixing liability of damage was served upon the appellant.
(f) That the respondent has acted arbitrarily and discriminated against the appellant by disregarding its policy no. Air HQ/37603/2/W(P&C).
REPLY
3. By way of its reply, the respondent has stated that the appeal is not maintainable and the appellant is liable to pay the damages as imposed by the impugned order. It is further stated that the appellant has concealed the place and date of posting of her spouse in her married accommodation registration form and she cannot take benefit of her wrong. It is stated that being a personnel of disciplined force, it is not the expected behaviour. It is further averred that retention of the OMQ was allowed to the appellant only because she had concealed the date and place of posting of her spouse in her application dated 13.03.2015 but subsequently, when it was revealed that the spouse of the appellant was a commissioned officer in the Air Force and posted at the Head Quarter, New Delhi, the action has been taken under paras no. 48 to 52 Chapter X of Indian Air Publication 2501. It is stated that the appellant was intimated vide letter dated 21.07.2015 of the eligibility of the spouse of the appellant for PPA No. 30/2019 GP. Capt. Shital Vachhani Vs. Union of India and Ors. Page No.5 of 23 allotment of accommodation by the station / unit under which he was posted in view of para 51 Chapter X of Indian Air Publication 2501 but the same was ignored by her. It is further stated that on 13.01.2016, the point was again clarified to the appellant before initiating action for eviction. All allegations of arbitrariness and illegality have been refuted. It is insisted that action has been appropriately taken after the appellant in terms of the rules applicable to the service conditions of the appellant. It is stated that Air Officer Commanding is the Estate Officer who has rightly and independently exercised his jurisdiction. It is also stated that the appellant has not given any reason what stopped her husband from applying for married accommodation after she was posted out and that the husband of the appellant did not keep his status alive in the waiting list of CAO Pool which if he had, accommodation would have been allotted to him. It is also stated that the appellant was having complete knowledge of levy of damages since order under Section 7 (1) and 2 A dated 13.07.2016 was already served upon her.
REJOINDER
4. In rejoinder the appellant has denied concealment of particulars of posting of her spouse claiming that there was no column in the registration form to that effect. Even otherwise, it is stated that the information could have been obtained from the Officer's Database about the date and place of posting of the spouse of the appellant. It is stated that the respondents were PPA No. 30/2019 GP. Capt. Shital Vachhani Vs. Union of India and Ors. Page No.6 of 23 always aware of the place of posting of her spouse attributing personal knowledge also to the C Adm. O and to the Estate Officer, officiating until 04.10.2015 who were instrumental in granting approval to the appellant for retention of the OMQ. It is also denied that the spouse of the appellant was offered any accommodation after she was transferred to Assam.
ARGUMENTS
5. Final arguments have been advanced by Sh. Satya Sehrawat, Ld. Counsel for the appellant and Ms. Vandana Sharma, Ld. Counsel for the respondents.
6. The Court has considered the submissions and material on record.
REASONING
7. At the outset, before proceeding to decide the appeal, the Court deems it appropriate to put in perspective certain issues that would assist in deciding the appeal.
(A) The Scope and Purpose of Section 4 r/w Section 5 and Section 9 of PPA
8. It would be apt to define the scope and purpose of PPA. In this regard, it would be relevant to allude to M/s Indo Imex PPA No. 30/2019 GP. Capt. Shital Vachhani Vs. Union of India and Ors. Page No.7 of 23 Agencies (Pvt.) Limited Vs. Life Insurance Corporation of India etc.2 where it has been held as under :
9. This shows that the Premises Act is a complete Code and provides the principles and machinery for dealing with those persons who are in unauthorised occupation of public premises. The definition of the term 'unauthorised occupation' given in S. 2(g) affords a key to the understanding of the Act. The definition says :
"unauthorised occupation', in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever."
10. The term 'public premises' is defined in Sec. 2(e) of the Act. It is not disputed before me that the premises in question are "public premises". Now an occupant of the public premises will be deemed to be in authorised occupation thereof until and unless he is a person who is in occupation of the public premises : (1) without authority for such occupation such as a rank trespasser, or (2) one who was continuing in occupation of the public premises under same authority, whether that authority was by way of grant or any other mode of transfer, and that authority has either expired or has been determined for any reason whatsoever. From the very beginning the trespasser will be deemed to be in authorised occupation because he had no authority to occupy the premises. But we are mainly concerned in this case with an occupant who was in occupation of the premises with authority on the date the premises mere declared public premises by the Act. He was an authorised occupant at that time. But if the authority under which that person was occupying the premises has either expired or has been determined for any reason whatsoever by the LIC, the person in occupation becomes an unauthorised occupant.
12. The use of the expression "authority" "to occupy the premises" is very significant. The Act does not use the term tenancy or lease. So the tenant becomes an occupant with authority. If he has no authority to occupy the premises either because he never had any or though he had authority, such as a lease, his authority to occupy the 2 1983 SCC OnLine Del 59 : AIR 1983 Del 409 PPA No. 30/2019 GP. Capt. Shital Vachhani Vs. Union of India and Ors. Page No.8 of 23 premises has expired or has since been determined for any reason whatsoever, he can be evicted from the public premises. But the premises must be public premises before all this can happen. The words that authority can be "determined for any reason whatsoever" are very ample words of conferment. They give power in the most ample terms. They are clearly suggestive of the banishment of the Rent Act.
14. Under the Premises Act of 1971 a man who was once a tenant ceases to be so. He becomes an authorised occupant. The manner of his eviction, the manner of recovery of rent from him, they are all governed by the Premises Act. The Ld. Estate Officer has been substituted in place of Civil Courts. In place of the dilatory procedure of the Civil Courts a summary procedure of eviction and recovery of rent has been prescribed. This, in my opinion, is the scheme of the Act. The provisions of the Act clearly show that the protection of the Rent Act has been taken away by the legislature. An occupant of public premises cannot claim the protection of the Rent Act. This is what the Supreme Court has said in Jain Ink case.
16. The Act adopts this simple and swift procedure as compared to the slow motion justice of Courts. More and more the legislature has displayed its solicitude for expedition in justice. An impatient legislature has done away with the Courts. It has done away with the Rent Act. It has taken away the protective umbrella of S. 14 of the Rent Act from the occupant of public premises. This is a clear indication that the Rent Act has been outlawed from public premises. An occupant of public premises is outside the pale of the Rent Act.
17. The Premises Act excludes the benefit of the Rent Act. This is the type of legislation which outlaws the Rent Act. The legislature has signified its displeasure of the Court procedures which are long, cumbersome and expensive, by banishing the Rent Act from the public premises. Public premises are the property of the public. Therefore from common weal the legislature has set up an administrative Tribunal maned by a quasi-judicial officer. The procedure adopted is different from the law Courts. The new vocabulary used in the Act d such as 'authority', 'unauthorised occupant', 'public premises' and the like conclusively show that the occupant of public premises is deprived of the benefit and protection of the rent laws.
18. The Act applies a method characteristically administrative. It is unlike the common law. The Anglo- Saxo common law is a law of the Courts. Its oracles are Judges. Common law is characteristically judicial. In PPA No. 30/2019 GP. Capt. Shital Vachhani Vs. Union of India and Ors. Page No.9 of 23 England, America and Commonwealth characteristically the prestige of the Judge is very great.(See Roscoe Pound : Article on the Development of Americal Law (1951) 67 LQR 49). The Act adopts a mixed method of doing justice. Something of administrative and something of judicial. The Ld. Estate Officer is an administrative Tribunal. The appellate officer is a judicial authority. The "administrative process", Dean Landis has told us, "is essentially our generation's answer to the inadequacy of the judicial processes". The Premises Act illustrates the truth to this profound observation."
8.1 Thus, as against the Ld. Estate Officer who exercises a Quasi Judicial function, this Court while discharging its powers u/s 9 of the Act, is a judicial authority.
(B) The Procedure under Section 4, 5 and 9 of the Act.
9. Here, this Court seeks to rely upon the following observations in New India Assurance company Ltd. Vs. Nusli Neveille Wadia (Supra) :
"17. Section 3 of the Act provides for appointment of an Ld. Estate Officers. Sections 4 provides for issuance of a show cause notice in the following terms :-
4 - Issue of notice to show cause against order of eviction -
(1) If the Ld. Estate Officer is of the opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, the Ld. Estate Officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made. (2) The notice shall--
(a) specify the grounds on which the order of eviction is proposed to be made; and
(b) require all persons concerned, that is to say, all persons who are, or may be, in occupation of, or claim interest in, the public premises,--
(i) to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than seven days from the date of issue thereof, PPA No. 30/2019 GP. Capt. Shital Vachhani Vs. Union of India and Ors. Page No.10 of 23 and
(ii) to appear before the Ld. Estate Officer on the date specified in the notice along with the evidence which they intend to produce in support of the cause shown, and also for personal hearing, if such hearing is desired. (3) The Ld. Estate Officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in such other manner as may be prescribed whereupon the notice shall be deemed to have been duly given to all persons concerned.ﾵ
18. Section 5 deals with the procedure for eviction of unauthorized occupants. It reads :-
Section 5 - Eviction of unauthorised occupants.- (1) If, after considering the cause, if any, shown by any person in pursuance of a notice under section 4 and any evidence produced by him in support of the same and after personal hearing, if any, given under clause (b) of sub- section (2) of section 4, the Ld. Estate Officer is satisfied that the public premises are in unauthorised occupation, the Ld. Estate Officer may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.
(2) If any person refused or fails to comply with the order of eviction on or before, the date specified in the said order or within fifteen days of its publication under sub- section (1) whichever is later, the Ld. Estate Officer or any other officer duly authorized by the Ld. Estate Officer in this behalf may evict that person from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary.
19. Section 7 empowers the Ld. Estate Officer to require payment of rent or damages in respect of public premises by the person who is in unauthorized occupation thereof.
20. Section 9 provides for appeal from an order of the Ld. Estate Officer.
THE RULES
21. Rules have been framed by the Central Government in exercise of its powers under Section 18 of the Act known as the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971. Rule 5, which is material for these appeals reads as under :-
"5. Holding of inquiries - (1) Where any person on whom PPA No. 30/2019 GP. Capt. Shital Vachhani Vs. Union of India and Ors. Page No.11 of 23 a notice or order under this Act has been served desires to be heard through his representative he should authorize such representative in writing.
(2) The Ld. Estate Officer shall record the summary of the evidence tendered before him. The summary of such evidence and any relevant documents filed before him shall form part of the records of the proceedings."
GUIDELINES
25. Where an application is filed for eviction of an unauthorized occupant it obligates the Ld. Estate Officer to apply his mind so as to enable him to form an opinion that the respondent is a person who has been in unauthorized occupation of the public premises and that he should be evicted. When a notice is issued in terms of Section 4 of the Act, the noticee may show cause. Section 5 of the Act postulates that an order of eviction must be passed only upon consideration of the show cause and any evidence produced by him in support of its case also upon giving him a personal hearing, if any, as provided under clause (ii) of sub-section 2 of Section 4 of the Act.
26. Although Section 5 ex-facie does not make any classification in regard to the two classes of tenancies but the same is evident from the decisions rendered by this Court as also by the different High Courts.
27. The occupants of public premises may be trespassers, or might have breached the conditions of tenancy, or have been occupying the premises as a condition of service, but were continuing to occupy the premises despite cessation of contract of service.
28. However, there may be another class of tenants who are required to be evicted not on any of the grounds mentioned hereinbefore but inter alia on the ground, which requires proof of the fairness and reasonableness on the part of the landlord which may include requirement for its own use and occupation.
29. Furthermore a proceeding may be initiated under Section 4 simplicitor. A composite proceedings may also be initiated both under Sections 4 and 7 of the Act. In the latter category of cases the landlord would be required to establish not only the bona fide need on its part but also quantum of damages to which it may hold to be entitled to, in the event that an order is passed in favour of the establishment.
...
31. When an application for eviction is based on such grounds, which require production of positive evidence on part of the landlord, in our opinion, it would be for it to adduce evidence first; more so in a composite application PPA No. 30/2019 GP. Capt. Shital Vachhani Vs. Union of India and Ors. Page No.12 of 23 where the evidence is also required to be led on the quantum of damages to be determined by the Ld. Estate Officer.
32. There may be a case where the tenant may take a defence which discloses no prima facie case in which event the Ld. Estate Officer may ask him to lead evidence. But there may be cases where the ground of eviction, having regard to the defence taken by the occupants, may be required to be gone into."
(C) The jurisdiction of the Ld. Estate Officer while deciding petition under Section 5 of the Act
10. Delhi High Court in S.S. Con-Build Vs. Delhi Development Authority3 has expounded the domain of Ld. Estate Officer as under :
"11. Mr. Krishnan also drew the Court's attention to the decision in UOI and Anr. v. Mohinder Pratap Soni & Ors 2016 SCC OnLine Del 2600, where while expounding upon the domain of the Estate Officer, the Court had observed as follows: -
"11. It is unfortunate that inspite of the Constitution Bench in Ashoka Marketing Ltd. supra and the judgments of the Division Bench of this Court in Ambitious Gold Nib Manufacturing Co. Pvt. Ltd. and Escorts Heart Institute and Research Centre Ltd. supra and inspite of the attention of the counsels for the respondents having been drawn thereto, the counsel for the respondents in their respective written submissions continue to harp upon the Express Newspaper Pvt. Ltd. supra.
12. It is now settled law:
(i) that the correctness or otherwise of the allegations of public authorities such as the petitioner L&DO or the Delhi Development Authority (DDA) on the basis of which determination of lease is effected is to be decided by the Estate Officer under the PP Act.
(ii) that whether the lessee has committed breach of the terms of the lease deed or not and whether the determination of the lease was legal or not are matters to be adjudicated by the concerned authority under the PP 3 Arb. P. 567/2022 Pronounced on 09.05.2023.PPA No. 30/2019
GP. Capt. Shital Vachhani Vs. Union of India and Ors. Page No.13 of 23 Act i.e. the Estate Officer and cannot be gone into in exercise of writ jurisdiction and the public authorities as the L&DO or the DDA cannot be asked to resort to the civil suit instead of the PP Act for eviction of the occupants even if an ex-lessee after the lease has been determined;
(iii) that the observations of the Supreme Court in Express Newspaper Pvt. Ltd. supra that the public authority as the L&DO and the DDA is required to file a civil suit and the proceedings under the PP Act are not maintainable is not good law;
(iv) that merely because the Estate Officer under the PP Act is not required to be a person well versed in law cannot be a ground for excluding from the ambit of PP Act the premises in unauthorized occupation of persons who had obtained possession as lessee;
(v) that a combined reading of Sections 4, 5, 8 and 9 of the PP Act shows that final order that is passed in the proceedings under the PP Act is by the judicial officer of the rank of a District Judge; the same also suggests that questions as to justification for determination of lease fall within the jurisdiction of the Estate Officer."
(D) The expectations from a quasi judicial authority (Ld. Estate Officer) while discharging its duties
11. In New India Assurance Company Ltd. Vs. Nusli Neville Wadia and Anr (Supra), it has been held that the Inquiry under PPA would be a "multi level inquiry :primary inquiry will be to arrive at a conclusion "unauthorised occupant", and intermediate inquiry would be as to the eviction of "unauthorised occupant.""4. Further, it has also been held that even though, the Act does not envisage a lengthy hearing or cross examination, however, "the noticee should be given an opportunity to file an effective show-cause. An effective show- cause can be filed when eviction is sought for a specified ground 4 Para no. 37 of New India Assurance company Ltd. Vs. Nusli Neveille Wadia (Supra) PPA No. 30/2019 GP. Capt. Shital Vachhani Vs. Union of India and Ors. Page No.14 of 23 and occupants must know the particulars in relation thereto." 5 It has also been held that for the aforesaid purpose Section 4 and 5 of the Act have to be read together alongwith Rules framed under the statute. It has been thus, opined that principles of natural justice have to be adhered to while the Inquiry is conducted by the Ld. Estate Officer.
12. At the same time, this Court is also conscious that in Jiwan Dass Vs. Life Insurance Corporation of India (supra) 6 it has been settled as under :
"4. ... When the statute has advisedly given wide powers to the public-authorities under the Act to determine the tenancy, it is not permissible to cut down the width of the powers by reading into it the reasonable and justifiable grounds for initiating action for terminating the tenancy under Section 106 of the T.P. Act. If it is so read Section 106 T.P. Act and Section 2(g) of the Act would become ultra vires. The statute advisedly empowered the authority to act in the public interest and determine the tenancy or leave or licence before taking action under Section 5 of the Act."
13. With the above judicial pronouncements in mind, the Court hereby proceeds to examine the grounds of appeal.
14. Competency of Air Officer Commanding (AOC) as the Estate Officer has been challenged by the appellant. It has been explained by the respondent that AOC is the Estate Officer and is fully authorized to pass the impugned order. The appellant has not drawn the attention of the Court to any credible material to rebut the presumption of genuineness of official acts. Therefore 5 Para no. 39 of New India Assurance company Ltd. Vs. Nusli Neveille Wadia (Supra) 6 1994 Supp (3) SCC 694 PPA No. 30/2019 GP. Capt. Shital Vachhani Vs. Union of India and Ors. Page No.15 of 23 the ground of appeal is frivolous.
15. The Ld. Estate Officer while exercising its jurisdiction under Section 4 and 5 of PPA "proceeds on two basic postulates : (a) the subject matter of proceeding being public premises as defined and (b) the occupant being found to be in unauthorised occupation."7 In the present appeal, the first postulate is no longer an issue. What has been canvassed is that the appellant has been wrongly held to be an "unauthorised occupant" as she was entitled to retain the OMQ by virtue of para 53(c) Chapter X of IAP 2501.
16. The rules of allotment of accommodation to spouses who are both government employees is stipulated in the following paragraphs of Chapter X of IAP 2501.
"Allotment of Accn when both Husband and Wife are Govt Employees
45. In stations, where both husband and wife are in Defence Service in the same station (not necessarily in the same Air Force Unit) of posting, only one unit of married accommodation will be allotted to them in accordance with seniority of either of them on the waiting list in the proper class. The station means units located within a distance of 20 km and full transfer grant is not admissible on posting from one unit to other unit within the station. The couple will have the option to choose as to on whose name accommodation is to be taken.
46. In case of refusal to take over accommodation in respect of officers who have been offered accommodation first according to his / her seniority, NAC in respect of only the officer who have refused accn will cease from the date of such refusal. However, when accommodation has been allotted to either of them in accordance with seniority, the NAC to the spouse will also cease from the period the officers are jointly in occupation of accommodation.
7 S.S. Con-Build Vs. Delhi Development Authority (surpa) PPA No. 30/2019 GP. Capt. Shital Vachhani Vs. Union of India and Ors. Page No.16 of 23
47. Where either husband or wife is in civil employment at the same station, Government accommodation (Civil or Defence) will be claimed only from one of the sources.
48. Both husband and wife are required to register their names with respective OIC Md Accommodation on arrival on posting in accordance with the rules of the respective stations. However, only one of them will be allotted with accommodation. The name of other officer will be retained on the waiting list and not relegated. His / her name will be considered for allotment as and when once the spouse on whose name quarter has been allotted is posted out.
49. In the event of posting of one of the spouses, the spouse who is not posted out will not be asked to vacate the quarter. In case both the officers are / were posted to the same unit or the accommodation is being controlled / administered by the same station, then the quarter in occupation will be transferred in the name of the spouse who is still on the strength of the station provided he / she fulfils the following conditions:-
(a) Has registered his /her name.
(b) Eligible for allotment of same quarter according his / her status.
(c) On posted strength of the unit / station where such quarter is existing.
50. In case he / she is not eligible for allotment of same quarter on his / her name, he / she will not be asked to vacate the quarter till such time he / she is allotted with alternate quarter according to his / her status.
51. In case both the officers are / were posted to different units and the accommodation is being controlled / administered by two different stations, then on posting of the spouse on whose name the quarter in occupation was allotted, the other spouse will not be asked to vacate the quarter till such time he / she is allotted with accommodation by the station / unit to which he/she is posted.
52. Normally only one unit of accommodation will be allotted to either of the husband and wife in Defence Services in the same station (non necessarily same Air Force Unit) of posting except for the following conditions under which both Officer shall be allotted with a accommodation under these rules:-
(a) Husband and wife are posted in different stations separated by a distance of 20 km or more.
(b) Husband and wife are residing separately in pursuance of an order of judicial separation made by any court.
(c) Husband / wife who was allotted a quarter earlier and has been surrendered it for any reason."PPA No. 30/2019
GP. Capt. Shital Vachhani Vs. Union of India and Ors. Page No.17 of 23 16.1 The relevant rule for retention of married accommodation relied upon by the appellant is as under :
"Retention of Married Accommodation
53. Under normal circumstances, a married quarter alloted to an officer is required to be vacated by him within 10 days of his Effective Date of Posting (EDP) or date of SOS whichever is later. The officer, on his request may be permitted to retain the accommodation beyond 10 days upto a maximum period of two months. Although no reasons are required for this retention of two months, but this retention is not automatic and the officer is required to apply for the same. If an officer wishes to retain accommodation beyond two months, he should decide within these two months, whether further retention is to be on the grounds of non-availability of accn (NAC) at new duty station on or academic grounds of his child / children. The option once exercised would be treated as final and no change of option will be permitted. Any retention of married accommodation even if admissible within the rules is not automatic and an officer is required to apply for the same with specific grounds and obtain the permission in writing from the allotting authority before his departure from the station. When retention is permitted, the officer and other concerned are to be informed in writing about the retention period and provision of retention as per the format given in Appendix 'D'. Retention of married accommodation for use of his family for laid down periods is permissible on following grounds :-
(a) On posting to a peace station. If posted to peace station, officer will be allowed a maximum period of 10 days after the date of handing over charge to vacate his quarter. If in his new station, Stn Cdr/Quartering Committee cannot provide accommodation, officer' family may continue in occupation for a period of two months after his handing over to give him time to make alternate arrangements.
(Authy: Gol MoD letter No. 7506/93/1/Q3B/3768- Q/D8/47 dt. 04 Dec 47)
(b) On posting to Field area / MFA. If posted to Field area / MDA where accommodation is not available, officers are entitled to retain family accommodation at the last duty station from where he was posted out, or move the family to a selected place of residence. Officers whose children are studying in school/college locally will be permitted to PPA No. 30/2019 GP. Capt. Shital Vachhani Vs. Union of India and Ors. Page No.18 of 23 retain the same OMQ in which they are staying till the expiry of the current academic session, thereafter, they will have to shift to lower status i.e. one status below to their entitled accommodation. (The officer may be allowed at the discretion of the Stn Cdr to retain the same accn in case there is no shortage of accn at the station). (Authy: Gol MoD letter No. A/0117/Q3(B-i)/346- S/D(Q&C) dated 04 May 1965)
(c) Personnel posted to units located at Srinagar, Udhampur, Assam & Tripura and Andaman & Nicobar Islands have been treated at par with personnel posted to a field area and are permitted to retain married accn at previous duty station.
(Authy: Gol MoD letter No. 63043/Q3)B-i)/4382/D(Q&C) dated 29 Sep 1989)"
17. The basis for introduction of para no. 53 (c) Chapter X of IAP 2501 it can be ascertained from letter dated 08.06.2000 bearing no. AIR HQ/37603/2/W(P&C) was for uplifting the morale of Air Force personnel posted in IAF Units in Assam and Tripura who felt harassed on being directed to vacate accommodation provided in previous parent station. Thus, it is a beneficial rule introduced with a specific purpose. If para 53 Chapter X of IAP 2501 relied upon by the appellant is gleaned, it can be gathered that the retention was subject to non-availability of accommodation at the new duty station or on academic grounds of the children and was at discretion of Station Commander in case of no shortage of accommodation at the station. Even on posting to field area / MFA, retention of family accommodation was also for securing the academic pursuits of the children and was at discretion of Station Commander. The same benefit was extended to the personnels posted at Srinagar, Udhampur, Assam and Tripura and Andaman and Nicobar Islands. Letter dated 13.03.2015 seeking retention of OMQ is as PPA No. 30/2019 GP. Capt. Shital Vachhani Vs. Union of India and Ors. Page No.19 of 23 under :
"Retention of Married Accommodation OMQ NO - P-364, B2
1. I am on the posted strength of D AV wef 17 Sep 2012 and have been allotted OMQ P-364, B-2, Quarter since May 2013.
2. I now stand posted out to 11 Wing, AF (Tezpur) on promotion wef 16 Mar 2015 vide Air HQ/PO/699 dated 17 Feb 2015 with permission to avail Joining time after EDP.
3. I humbly request that I may please be permitted to retain the married accommodation allotted to me as per the existing provisions on "Posting to Field / Modified Field Area / Assam Area" grounds."
The same is silent as to why the retention of OMQ was necessary and as already observed above, it is not a matter of right.
18. Further, as already reproduced above, where both spouses are in the same station but in different Air Force unit, they are required to register their names with their respective OIC Md Accommodation and either could avail the accommodation. Whereas, the other spouse is required to be retained on the waiting list and not to be relegated. As per the Rule 31 of General Rules And Instructions For Allotment Of Married Accommodation From The Defence Pool Under The Administrative Control Of Joint Secretary (training) And Chief Administrative Officer, Ministry Of Defence To Service Officers Posted To Armed Forces Headquarters And Inter Services Organisations an officer relegated twice will only be considered for allotment after request is received from the officer in writing. However, admittedly, the spouse of the appellant was offered accommodation twice which he refused because of the appellant PPA No. 30/2019 GP. Capt. Shital Vachhani Vs. Union of India and Ors. Page No.20 of 23 being posted in the same station and the family occupying the OMQ, after which he did not take steps to keep his status alive. This is even subsequent to the issue being flagged by the respondent to the appellant which therefore, appears to be a voluntary and informed decision.
18.1 It cannot be lost sight of that both the appellant and her spouse are members of a disciplined force. It also is a hard reality that there are shortages of official accommodation and therefore, it is also essential to implement the rules balancing the interest of the appellant and of the unit which then has to accommodate its incoming officer and its family. Though, retention allowed on 24.03.2015 is claimed to be on misrepresentation, however, due diligence was required to be conducted at that instance itself. Be that as it may, the respondent cannot be not estopped from acting for the benefit of the institution more so, after the appellant voluntarily chose not to avail the option available to the spouse who chose not to waive off his relegation. In the considered view of this Court, there is no arbitrariness or illegality in clubbing the case of the appellant with her spouse as the very substratum upon which Para 53(c) IAP 2501 Volume II was introduced has not been met as the spouse could have applied for OMQ from his unit and the retention was not for academic pursuit of the child / children. The action has been taken only after appellant was put PPA No. 30/2019 GP. Capt. Shital Vachhani Vs. Union of India and Ors. Page No.21 of 23 to due notice of the rules but the appellant has been adamant in retaining the OMQ, only. This does not augur well for the armed forces. There does not appear to be bias or discrimination as alleged by the appellant. Therefore, the impugned order to the extent of holding the appellant as "unauthorized occupant" does not warrant interference.
18.2 However, another ground of appeal is that the quantum of damages under Section 7 of the Act has been decided in violation of principles of natural justice. In response thereof, the respondents have relied upon the previous round of litigation and showcause notice dated 20.06.2016 u/s 7(3) of the Act to state otherwise. However, since order dated 25.05.2019 in PPA no. 249 of 2016, had allowed the appeal against impugned order dated 08.03.2016 under Section 4 of the Act, any fixation of quantum of damages under Section 7 of the Act could not survive. Thereafter, no fresh notice under Section 7 of the Act appears to have been served upon the appellant. Even the impugned order is under Section 4 of the Act, as stipulated. It is therefore, not a composite action under Section 4 and Section 7 of the Act. Further, there is no reasoning emanating from the impugned order as to how the damage has been ascertained at Rs.31,72,107/-. To that extent, the order is non-speaking. Therefore, the order cannot be sustained on the quantum of damages.
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19. The order to the extent of finding given under Section 7 of Public Premises (Eviction of Unauthorised Occupants) Act for fixation of quantum of damages as ascertained at Rs.31,72,107/- is set aside.
20. Appeal is partly allowed.
21. File be consigned to records.
Pronounced in open Court (Vijeta Singh Rawat) on 20.01.2024 Additional District Judge-01, New Delhi District, Patiala House Courts, New Delhi PPA No. 30/2019 GP. Capt. Shital Vachhani Vs. Union of India and Ors. Page No.23 of 23