Delhi District Court
Shail Sinha vs . Ministry Of Communications & Anr. on 29 October, 2011
IN THE COURT OF SHRI. ASHISH AGGARWAL, CIVIL JUDGE1,
SOUTH WEST DISTRICT, DWARKA COURTS, DELHI
CS. No 716/11
Shail Sinha vs. Ministry of Communications & Anr.
29.10.2011
ORDER
1. This order shall decide the maintainability of the suit. The version of the plaintiff, as borne out from the plaint, is that the husband of the plaintiff was employed as postal assistant with the Department of Posts. During employment, the defendant no.1 had been allotted government accommodation at quarter no. 884/6, R.K. Puram, New Delhi wherein he was residing with his family members. The husband of the plaintiff expired on 27.01.2009 leaving behind the plaintiff and two sons. After the death of the husband of the plaintiff, the defendant no.2 sent a notice for vacating the premises or to pay rent at the market rate. The plaintiff chose to pay the rent at market rate. It is further pleaded in the plaint that the plaintiff applied for employment of her younger son with the defendant no.1 on compassionate grounds. The defendant no.2 sent another notice dated 15.09.2011 for vacating the premises.
2. The case of the plaintiff is that since she is paying rent at the market rate and since her son is likely to be employed with the defendant no.1, 1 of 10 she may not be dispossessed from the premises at this stage. On this basis, the plaintiff has prayed for permanent injunction restraining the defendants from dispossessing the plaintiff from the quarter no. 884/6, R.K. Puram, New Delhi without due process of law.
3. It is admitted case of the plaintiff that the house was allotted in favour of her husband who has expired. After the death of government servant, his family does not acquire any right to continue to occupy the government house. The husband of the plaintiff admittedly died on 27.01.2009. Almost three years have passed since then. The plaintiff has been continuously occupying the property without having any right to do so. As such she is a trespasser and an illegal occupant of the premises. The said illegality cannot be condoned, legitimized and perpetuated by a judicial order. It must be brought to an end. The plaintiff has no right either any law or in equity to continue to occupy the house while other deserving persons are awaiting allotment of government accommodation. The Hon'ble Apex Court has time and again lamented about persons overstaying in government houses and the inaction of the authorities in obtaining possession. Where such action is indeed taken by the authorities, it should not be defeated on flimsy grounds.
4. Admittedly, the defendants are the owners of the property. The plaintiff has no right to continue in occupation. It is settled law that injunction 2 of 10 cannot be granted against the owner of the property. The allottee of government accommodation is a mere licensee. The use of premises by a licencee does not amount to "possession" in the eyes of law so as to deserve protection.
In the case of D.T.T.D.C vs. D.R. Mehra & Sons, 62 (1996) DLT 234 (DB), the Hon'ble High Court of Delhi held that a licencee is, after termination of licence, not entitled to any injunction against the owner. In the case of G.N. Mehra Vs. International Airports Authority of India (IAAI), 63 (1996) DLT 62, it was laid down that after expiry of licence, the licencee is not entitled to any injunction against the true owner. Grant of such injunction would amount to perpetuating his unlawful possession.
The case of the plaintiff is on an even weaker footing since she is not even an allottee. The allottee has expired and by that fact, the license has stood terminated. Further, the defendants have already asked the plaintiff to vacate the premises. By expressing this intention, the defendants have terminated the license, if any, in favour of the plaintiff. Consequently, there is no doubt that the status of the plaintiff in the premises has become that of a trespasser.
5. It is also settled law that a trespasser does not deserve any equitable relief. By the conduct of the plaintiff in occupying the property without having any right to do so, she has divested herself of any equity so as 3 of 10 to claim discretionary relief. In the case of Tamil Nadu Housing Board Vs. A Vismam, 1996(2) R.R.R. 353, it was held that a trespasser is not entitled to injunction against dispossession by the true owner.
6. By the present suit, the plaintiff has prayed for protecting her possession over the suit property. Admittedly, proceedings for her dispossession from the suit property had been initiated under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The said proceedings have not been challenged by the plaintiff. The plaintiff was admittedly granted an opportunity of hearing by the Estate Officer. Eventually, the proceedings concluded against the plaintiff and an eviction order was passed. The said order was apparently not challenged by the plaintiff by filing an appeal under Section 9 of the abovementioned Act. Short of filing appeal, the plaintiff appears to be trying to indirectly circumvent and negate the effect of the eviction order through this suit. Filing of appeal is an alternate and efficacious remedy available to the plaintiff. The plaintiff ought to have availed of the said remedy instead of filing the instant suit for injunction. The existence of the said alternate remedy operates as a bar to the maintainability of the civil suit and the jurisdiction of this court stands ousted.
7. The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 is a complete code in itself. It provides for the procedure of deciding matters relating to eviction from public premises. It confers jurisdiction 4 of 10 and power on the estate officers to decide such matters. Orders of estate officers are subject to appeal under the Act. Owing to availability of these mechanisms under the Act, it is not open to a person to challenge the orders of eviction by separate civil suit. Regard may be had to the decisions reported as State of Punjab v. Diali Ram (Dead) through his LRs., 1997(1) R.C.R.(Civil) 270 and Panchayat, Village Bashamberpura v. Sardara Singh, 1988(2) R.R.R. 207.
8. It is not the case of the plaintiff that the procedure provided by law has not been followed or that the order of eviction is in excess of jurisdiction. Therefore there is no reason for the statutory remedy to be bypassed by the present civil suit. Owing to the existence of alternate remedy, the present suit for injunction is barred by Section 41(h) of the Specific Relief Act, 1963.
9. The mere fact that the son of the plaintiff is likely to get a government job on compassionate grounds is not adequate reason to permit the plaintiff to continue in the occupation of the property. The son of the plaintiff would be entitled to government accommodation only if and when he obtains employment and that too subject to seniority and availability of houses. The list of seniority and availability cannot be bypassed by overstaying in the property. The rule of law must be respected and honoured. Moreover, there is no vested right in the son of the plaintiff to secure government employment. The possibility of 5 of 10 employment is mere speculation and it does not confer any right upon the plaintiff to remain in occupation of the property.
10.The mere tendering of payment of rent at market rate does not legitimize the occupation. Such payment is in the nature of penalty and damages. The tendering of penalty does not purge the act of illegal character. Suffering of punishment is a consequence of illegal act. It does not make the said act lawful. Nor does it give a license to the perpetrator to continue to commit the illegal act. Hence, the mere tendering of penalty/damages at the market rate of rent does not entitle the plaintiff to continue in occupation. The notice dated 31.05.2011 must be construed as such. It does not, by any means, authorize the plaintiff to occupy the property even after payment of the said damages. The subsequent notice dated 15.09.2011 removes the ambiguity, if any. It unequivocally directs eviction of the plaintiff and demands payment of damages till the date of eviction. That the said damages have been termed as "market rent" is a matter of semantics and is inconsequential. It does not imply that the license stood revived or renewed. An intention to revive the license has to be unequivocal and unambiguous. The government is entitled to receive money from an illegal occupant of its premises. The demand for payment of such money does not imply that the government has authorised him to remain in occupation.
6 of 10 In the case of Bank of Rajasthan Ltd. v. M/s. Sarin & Co., 2000(1) R.C.R.(Rent) 299, the landlord accepted money from the tenant after expiry of the period of tenancy. He had accepted the said money as "rent". Holding that this does not amount to revival of tenancy, the Hon'ble High Court of Delhi observed :
"The preponderous weight of authorities of several High Courts shows that mere acceptance of rent by the landlord from the tenant, after service of notice to quit and institution of the suit by itself would not constitute waiver of notice, or proof of the intention of the landlord to renew the lease."
Noting that the use of expression "rent" is inconsequential, the Hon'ble High Court held :
"It does not at all refer to the intention of the landlord to keep lease subsisting. Mere use of the word 'rent' cannot be construed to mean waiver of notice to quit. Rent in its wider sense means any payment made for the use of premises and would thus include a payment by an occupant in respect of use and occupation. After the tenancy has been terminated so long as the tenant does not surrender possession to the landlord he is bound to make payment for the use of premises in his possession. The word `rent' is being descriptive of the amount tendered by the tenant in lieu of his using the premises."
Similarly, in the case of Vijayshree Commercial (P) Ltd. v. Tike Jagjit Singh Bedi, 1997 DLT (66) 359, the Hon'ble High Court of Delhi observed thus :
"Use of the word "rent" by the tenantappellant in his letter dated 3.12.1993 is not by itself decisive of his having tendered the amount as
7 of 10 evidence of tenant demise between the landlord and tenant remaining alive. Nor can it be inferred that the landlord having accepted the rent rendered along with the letter was necessarily accepting tendered amount so as to revive or create a demise by the landlord to the tenant....."
For the aforesaid reasons, the contention of the plaintiff that she is entitled to continue in possession of the property upon making payment of the sum demanded by the defendants is not tenable and is rejected.
11.The judgments cited by the plaintiff reported as Peeru Bhawana Vs. N.C.T of Delhi & Ors. 2010 (168) DLT 553, Wire Netting Stores Vs. Delhi Development Authority 1969(3) SCC 415 and Radha Ballabh Vs. Union of India 2006(9) SCC 214 are not applicable to the facts of the case and they do not at all support the maintainability of the suit.
12.The defendant nos. 1 and 2 have admittedly acted in official capacity. They have been sued in their official capacity. As such, the plaintiff ought to have issued notice under Section 80 (1) of Code of Civil Procedure at least two months prior to the institution of the suit. Leave of the Court to sue without service of statutory notice has not been sought. The Union of India should have also been impleaded as a party defendant in view of the express provisions of Order XXVII Rule 5A of Code of Civil Procedure. Owing to the omission to implead the Union of India, which is a necessary party, and for want of issuance of prior notice under Section 80 of Code of Civil Procedure, the present suit is 8 of 10 not maintainable and is barred by law.
13.Although the case is at an early stage, the plaint has been subjected to scrutiny to assess its maintainability in view of the observations of Hon'ble Supreme Court in the case of Sopan Sukhdeo Sable and Others V. Assistant Charity Commissioner and others (2004) 3 SCC 137 in which it was held that it is obligatory for the Court to reject the plaint in the event of noticing any of the infirmities mentioned in Order 7 rule 11 of Code of Civil Procedure. The prayers made in the plaint have been found to be barred by law and the plaintiff has no cause of action sustaining the scrutiny of law. In these circumstances, I find no good ground to keep the suit pending or to put it to trial. Even if the plaintiff succeeds in proving the averments made in the plaint, she would not become entitled to the relief claimed by her.
In the case of T. Arivandam v. T.V. Satyapal and Another, (1977) 4 SCC 467, the Hon'ble Supreme Court has held that if on a meaningful, not formal, reading of the plaint if is manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, the court should reject the plaint under Order VII Rule 11 of the Code of Civil Procedure. In the case of Liverpool & London S.P.& I Association Ltd. Vs. Sea Success I & Another (2004) 9 SCC 512 it was held that when no cause of action is disclosed by the plaint, courts should not unnecessarily protract the hearing of suit. It was directed that in such cases, the court 9 of 10 must save expenses, achieve expedition and avoid the courts' resources being used up in cases which will serve no useful purpose. It was further held that a litigation which, in the opinion of the court, is doomed to fail should not be allowed to be used as a tool of harassment.
In the case of Popat and Kotecha Property Vs. State Bank of India Staff Association 2005(7) S.C.C. 510, the Hon'ble Supreme Court has held that the use of the word "shall" in Order 7 Rule 11 of Code of Civil Procedure implies that a duty is cast on the Court to reject the plaint where it is barred by law or where there is no cause of action, even without intervention of the defendant.
14.For the aforesaid reasons, under Order 7 Rule 11 of Code of Civil Procedure, the plaint is rejected. File be consigned to record room.
Announced in the open court (Ashish Aggarwal)
th
on 29 day of October, 2011 Civil JudgeI/Dwarka Courts,
South West District,
Delhi/29.10.2011
10 of 10