Delhi High Court - Orders
Rajan Sehgal vs Directorate Of Estates on 1 April, 2022
Author: Anu Malhotra
Bench: Anu Malhotra
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5518/2022 & CM APPL. 16442-16444/2022
RAJAN SEHGAL ..... Petitioner
Through: Ms. Sonia A. Menon, Mr. Rohit
Taneja & Mr. Nishchint Rawat,
Advocates.
versus
DIRECTORATE OF ESTATES ..... Respondent
Through: None despite service through advance
notice.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
ORDER
% 01.04.2022 The petitioner vide the present petition seeks the setting aside of the order dated 19.04.2021 of the Estate Officer under Sections 7(2) and 7(2A) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 directing the petitioner to pay an amount of Rs.10,91,042/- as the arrears of license fee and damages on account of unauthorized use and occupation of the flat bearing No. E-32, HUDCO Place Extension (Type 5-B) New Delhi from 21.07.2016 to 17.03.2017 submitting to the effect that the said demand is in contravention of the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
It is inter alia submitted by the petitioner that he has already vacated the premises in question in the year 2017 on 17.03.2017 and thus the imposition of the legal damages/telescopic damages is unwarranted as W.P.(C) 5518/2022 Page 1 of 5 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:22.04.2022 19:46:57 This file is digitally signed by PS to HMJ ANU MALHOTRA.
imposed in terms of the office memorandum dated 07.09.2016 in partial modification of OM dated 22.07.2016. It has further been submitted on behalf of the petitioner that in terms of Section 18 of the said enactment, the requisite rules in terms of Section 18(2)(e) and 18(2)(ea), which read to the effect:-
"18. Power to make rules -- (1) The Central Government may, by notification in the Official Gazette make rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power such rules may provide for all or any of the following matters, namely, .....
.....
(e) the manner in which damages for unauthorised occupation may be assessed and the principles which may be taken into account is assessing such damages; ....
(ea) that rate at which interest shall be payable on arrears of rent specified in any order made under sub-section (1) of Section 7, or damages assessed under sub-section (2) of that section;] ....
...."
have not been framed and thus the levying of the telescopic/legal damages cannot be imposed.
A further submission was sought to be made as averred in the petition also to the effect that the petitioner having been granted study leave for the period from 01.07.2015 to 30.06.2017 for undergoing a Postgraduate Diploma in Management (Financial Management) under the All-India Services (Study Leave) Regulation, 1960 with approval from the Ministry of W.P.(C) 5518/2022 Page 2 of 5 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:22.04.2022 19:46:57 This file is digitally signed by PS to HMJ ANU MALHOTRA.
Environment and Forest, Government of India, NIFM, Faridabad with the entire expenses of the study having been borne by the Government of India could not in any manner have been termed to being unauthorised occupation of the public premises,i.e, the subject flat bearing No. E-32, HUDCO Place Extension (Type 5-B) New Delhi,in as much as, the petitioner from June 2015 was entitled to Type VI-A (C-II), Government accommodation as per Rules and continued to hold the accommodation in which he was in possession which was below his entitlement as per SR 317 B-11 of the Rules and thus the allottee in occupation of an accommodation below his entitlement was allowed to retain the accommodation for the entire period of his study leave.
Qua the said submission, the attention of the learned counsel for the petitioner was drawn to the aspect of the petitioner herein belonging to the cadre of the State of Kerela and not being a Central Government employee and consequential lack of entitlement to the Cental Government accommodation for study leave The said aspect is also correctly analysed vide order dated 20.01.2022 of the Court of the then learned Principal District and Sessions Judge, South- East, Saket Courts in PPA No. 01/2021.to the effect that the claim of the entitlement of the appellant was to be governed by the State Rules as he seeks to be intended to the benefit of the Central Government General Pool Accommodation having been transferred back to the State cadre i.e., Kerela in the first week of June 2015 with the study leave for two years having been sanctioned on 01.07.2015 till 30.06.2017 i.e., after the transfer back of the petitioner to the State cadre at Kerela. It thus becomes apparent that the W.P.(C) 5518/2022 Page 3 of 5 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:22.04.2022 19:46:57 This file is digitally signed by PS to HMJ ANU MALHOTRA.
petitioner was in unauthorised occupation of the public premises in question.
As regards the submission to the effect that the relevant rules in terms of Section 18 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 have not been framed, the factum that the OM that is sought to be put into operation by the respondent is of the date 07.09.2016 cannot be overlooked.
The damages in terms of the damages and penal interest in terms of the said OM would have apparently been realised from 07.09.2016 onwards taking into the factum of it's existence till date and thus the non framing of the rules in terms of Section 18 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 per se cannot detract from the locus of the respondent to assess the penal damages in accordance with the market rate where the public premises were situated in terms of Rule 8(e) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
It is essential to observe that the damages for the period from January 2016 till June 2016 in the sum of Rs. 2,98,173/- were levied against the petitioner which the petitioner had paid vide letter dated 21.07.2016 though under protest and damages on telescopic basis from January 2016 had not been levied and were levied only from July 2016.
The Estate Officer has imposed the telescopic damages on calculation and ascertainment of the aspect of the prevailing market rate in the area where the public premises were situated, is an aspect not countered by the petitioner as is also observed in the impugned order of the date 20.01.2022.
In the circumstances, there is no warrant whatsoever for the grant of the prayer made by the petitioner vide the present petition.
W.P.(C) 5518/2022 Page 4 of 5Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:22.04.2022 19:46:57 This file is digitally signed by PS to HMJ ANU MALHOTRA.
However, in the interest of justice, the penal rent/damages imposed vide the impugned order dated 19.04.2021 are permitted to be paid by the petitioner to the respondent within a period of six months from the date of this order, on failure of which, the same be recovered as revenue. The petition is disposed of.
The copy of this order be served on the standing counsel for the respondent and the respondent through e-mail.
ANU MALHOTRA, J APRIL 01, 2022 ha W.P.(C) 5518/2022 Page 5 of 5 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:22.04.2022 19:46:57 This file is digitally signed by PS to HMJ ANU MALHOTRA.