Delhi District Court
Ajay Kumar Mohanty vs Estate Officer on 16 March, 2024
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. 32/2019
Ajay Kumar Mohanty
S/o Sh. Basant Kumar Mohanty
R/o House no. WZ 145,
Near Soni Khoya Shop,
Palam Village, New Delhi
........ Appellant
Versus
1. Estate Officer
Through Director
Directorate of Estate
Litigation Section
Room No. 51'C' Wing,
Nirman Bhawan,
New Delhi.
2. Intelligence Bureau
(Ministry of Home Affairs)
Govt. of India.
Through Deputy Central Intelligence Officer
I B Headquarter,
35, S.P. Marg,
New Delhi
........ Respondents
Appeal presented On : 04.10.2019
Arguments Concluded On : 16.03.2024
Judgment Pronounced On : 16.03.2024
JUDGMENT
1. This is an appeal u/s 9 of The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter, referred to as PPA No. 32/2019 Ajay Kumar Mohanty Vs. Estate Officer and Anr. Page No.1 of 7 'PPA') against order dated 19.07.2019 (hereinafter, referred to as 'impugned order') and Office Memorandum dated 31.07.2019 in pursuance to the impugned order demanding damages to the tune of Rs.15,63,489/-
FACTS
2. As elucidated by the plaintiff, he is a retired ex-serviceman from the Indian Air Force who was working as ACIO(II)(D) on re-employment with Intelligence Bureau and was allotted quarter no H, Block 35, Vasant Vihar, New Delhi in the year 2012. It is alleged that on 22.06.2016 at 02.12 p.m., the premises was inspected in the absence of the appellant and showcause notice dated 23.06.2016 was issued by Assistant Directorate of Estate for sub-letting. Thereafter, inquiry was conducted however, without affording reasonable opportunity to the appellant, the allotment was cancelled on 21.09.2016. The cancellation order dated 21.09.2016 was challenged before the Directorate of Estate (II). Subsequently, notice u/s 4 (2)(b)(i) PPA was issued on 06.12.2016. The appellant submitted his reply dated 20.12.2016 with relevant documents and requested for re-inspection and quashing of cancellation order. Thereafter, Ld. Estate Officer remanded the matter back to the department vide order dated 09.02.2017 observing irregularities in the inspection report. Again on 11.04.2017, notice was issued by another Estate Officer, on 16.05.2017. On 11.07.2017 eviction order was passed which was challenged before the Ld. Principal District and PPA No. 32/2019 Ajay Kumar Mohanty Vs. Estate Officer and Anr. Page No.2 of 7 Sessions Judge, New Delhi District in PPA no. 34 of 2017. As ad-interim ex-parte stay was denied vide order dated 01.08.2017 by the Ld. Appellate Court, CM(M) 837 of 2017 was filed before the Delhi High Court where Ld. Counsel for respondent no.1 under instructions stated that the market rent would not be less than Rs.25000/- per month and did not press upon damages as per telescopic method. Therefore, the eviction order was stayed vide order dated 11.07.2017. PPA no. 34 of 2017 was dismissed vide judgment dated 31.08.2017. W.P. (C) no. 8178 of 2017 was filed against the judgment which was disposed off vide order dated 13.09.2017 granting four months time to the appellant to vacate the premises subject to his depositing Rs.25,000/- per month till handing over of possession. Thereafter, the premises was vacated on 27.09.2017.
2.1 Thereafter, notice dated 26.02.2018 u/s 7 (3) PPA was issued but ignoring the order dated 04.08.2017 in CM (M) no. 837 of 2017, the impugned order came to be passed.
GROUNDS OF APPEAL
3. The impugned award has been challenged on the following grounds :
(a) That the impugned order is illegal, arbitrary as it has not been based upon any credible material
(b) That it is also against the admission of the respondents counsel before the Delhi High Court as recorded in order dated PPA No. 32/2019 Ajay Kumar Mohanty Vs. Estate Officer and Anr. Page No.3 of 7
4.8.2017 in CM (Main) 837/17 and 13.9.2017 in WP (C) 8178/17 where market rent @ Rs.25,000/- was not denied.
(c) That none of the notices informed the appellant that the assessment would be done on telescopic method and so, the appellant was not afforded reasonable opportunity to contest the notice.
REPLY
4. By way of its reply, the respondent has stated that the appeal is not maintainable and the appellant had knowledge of legal remedy available to him but chose to indulge in forum shopping.
ARGUMENTS
5. Final arguments have been advanced by Sh. Rohit Sharma, Ld. Counsel for the appellant and Vikesh Sharma and Sh. Chandan Mishra, Ld. Counsels for the respondent.
6. The Court has considered the submissions and material on record.
REASONING AND APPRECIATION OF MATERIAL ON RECORD
7. The appellant is aggrieved that the Estate Officer in the PPA No. 32/2019 Ajay Kumar Mohanty Vs. Estate Officer and Anr. Page No.4 of 7 impugned order dated 19.07.2019 has assessed the penalty for unauthorized occupation on the basis of telescopic method as provided in Office Memorandum no. 18011/12015-POI.III dated 22.07.2016 (hereinafter, referred to as Office Memorandum) applicable w.e.f. 01.07.2016. It has been submitted that Rule 8 of PPA provides for how assessment of damages is to be done and the Office Memorandum relied upon by the respondent could not override the effect of the statute. It is also urged that in none of the show cause notices dated 23.06.2016, 06.12.2016, 11.04.2017 and 26.02.2018 as well as cancellation order dated 21.09.2016, it was notified to the appellant that telescopic method would be adopted for assessment of the penalty u/s 7 of The Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
8. Per contra, reliance has been placed by the respondent upon Section 18 of The PPA to submit that Office memorandum was devised by the Central Government on the basis of powers derived u/s. 18 of The PPA. Today gazette notification dated 16.06.2017 has also been placed on record in support of the submissions.
9. In Suhas H. Pophale vs. Oriental Insurance1 the Apex Court had the occasion to deal with guidelines issued by the Central Government vide Resolution No.21012/1/2000-Pol.1, dated 30th May, 2002, published in the Gazette of India, Part I, Sec.1 dated 8th June, 2002 that :-
"GUIDELINES TO PREVENT ARBITRARY USE OF 1 Civil Appeal No. 1970 Of 2014 decided on 11.02.2014 PPA No. 32/2019 Ajay Kumar Mohanty Vs. Estate Officer and Anr. Page No.5 of 7 POWERS TO EVICT GENUINE TENANTS FROM PUBLIC PREMISES UNDER THE CONTROL OF PUBLIC SECTOR UNDERTAKINGS / FINANCIAL INSTITUTIONS"
10. While dealing with the aforesaid notification in respect of the force that such guidelines have, it was held in para no. 43 as under :
"43. The instructions contained in this Resolution are undoubtedly guidelines, and are advisory in character and do not confer any rights on the tenants as held in para 23 of New Insurance Assurance Company Vs. Nusli Neville Wadia reported in 2008 (3) SCC 279. At the same time, the intention behind the guidelines cannot be ignored by the Public Undertakings which are expected to follow the same. When it comes to the interpretation of the provisions of the statute, the guidelines have been referred herein for the limited purpose of indicating the intention in making the statutory provision, since the guidelines are issued to effectuate the statutory provision. The guidelines do throw some light on the intention behind the statute. The guidelines are issued with good intention to stop arbitrary use of the powers under the Public Premises Act. The powers are given to act for specified reasons, and are expected to be used only in justified circumstances and not otherwise."
(emphasis applied)
11. Thus the nature of the Office Memorandum relied upon by the respondent is only advisory in nature.
12. It has further been submitted that in showcause notice dated 26.02.2018 u/s 7(ii) of PPA, even though Schedule 2 was annexed alongwith the notice, the methodology vide which the damages were assessed was not disclosed to be one under Office Memorandum. Hence, it has also been submitted that a fair opportunity of defending the claim of penalty was not afforded to the appellant.
13. Thus, on the basis of the material on record, this Court is convinced that the fixation of penalty by way of showcause of PPA No. 32/2019 Ajay Kumar Mohanty Vs. Estate Officer and Anr. Page No.6 of 7 notice dated 26.02.2018 was unilateral without affording reasonable opportunity to the appellant to counter the same. Moreso, in view of the fact that reliance placed upon the Office Memorandum was only by way of a guideline which already mentioned above was a advisory, there is no credible material upon which the Ld. Estate Officer relied upon, before arriving at the base rent @ Rs.29,648/- (as mentioned in the Schedule 2 to showcause notice dated 26.02.2018). Therefore, in the interest of justice, the appeal is allowed and the matter is remanded back to the Estate Officer for considering the objections raised by the petitioner qua the fixation of penalty within two months.
14. The appeal is accordingly, allowed.
15. File be consigned to records.
Pronounced in open Court (Vijeta Singh Rawat) on 16.03.2024 Additional District Judge-01, New Delhi District, Patiala House Courts, New Delhi PPA No. 32/2019 Ajay Kumar Mohanty Vs. Estate Officer and Anr. Page No.7 of 7