Central Administrative Tribunal - Mumbai
Dated This Tuesday vs Union Of India Through on 25 September, 2012
1 O.A. 652/2011 CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI. ORIGINAL APPLICATION NO.: 652 of 2011 Dated this Tuesday, the 25th day of September, 2012. CORAM : Hon'ble Smt. Chameli Majumdar, Member (J). Shri Rupesh Vilas Jadhav, Studio Boy in the O/o. The Films Division, G. Deshmukh Road, Mumbai 400 006, R/at : C/o. Shri Dinesh N. More, Sundar Sagar C.H. Society, Bldg. No. D/2, Room No. 301, Behind Kanakia Police Station, Mira Road, Dist Thane 401 107. ... Applicant. (By Advocate Shri K.R. Yelwe) VERSUS 1. Union of India through Secretary to the Govt. of India, Ministry of Urban Development, Nirman Bhavan, New Delhi 110 001. 2. The Secretary to the Govt. of India, Ministry of Information and Broadcasting, Sanchar Bhavan, New Delhi 110 001. 3. The Director of Estates, Government of India, Ministry of Urban Development, Nirman Bhavan, New Delhi 110 001. 4. The Estate Manager, Government of India, Old C.G.O. Building, 101, M. K. Road, Mumbai 400 020. 2 O.A. 652/2011 5. The Chief Producer, Film Division, 24, G. Deshmukh Road, Mumbai 400 026. ... Respondents (By Advocate Shri N. K. Rajpurohit along with Shri D. A. Dube for Respondents No. 1, 3 and 4 and Smt. N.V. Masurkar along with Shri P. Khosla for Respondents No. 2 and 5) O R D E R
Per : Smt. Chameli Majumdar, Member (J).
The applicant, working as Studio Boy, filed this Original Application along with Miscellaneous Application for condonation of delay. The M.A. was proceedings relating to the orders dated allowed by the order dated 29.09.2011. The following prayers are made in the Original Application :
(a) pleased That to this call Hon'ble for the Tribunal records be and 13.05.2008, 27.05.2008, 14.10.2008, 26.2.2009, 25.08.2009, 15.09.2009, 10.11.2009 and 16.7.2010 impugned herein above and after ascertaining the propriety and legality thereof quash and set them aside;
(b) That this Hon'ble Tribunal be pleased to direct the respondents to reallot to the applicant the quarters no. 44/1656 Type-I Sector VII, S.M. Plot, Antop Hill, which is still lying vacant unallotted.
(c) That this Hon'ble Tribunal be pleased to direct the respondents to refund the amount already recovered from the applicant.
(d) Such other orders as may be deemed necessary in the facts and circumstances of the case.
(e) Cost of the application be provided for. 3 O.A. 652/2011
2. Briefly stated, the facts of the case as made out in the Original Application is that the applicant was allotted Government accommodation No. 67/2890, Type-I, Sector-7, S. M. Plot, Antop Hill, Wadala, Mumbai, by allotment letter No. 16.08.2001 dated 16.08.2001. The applicant thereafter applied for change of accommodation on 25.03.2003. As per his request for change of quarters, respondents allotted quarter No. 44/1656, Type-I, Sector VII, S. M. Plot, Antop Hill, Wadala, Mumbai, by allotment letter dated 31.05.2004. The applicant took possession of the new allotment of quarter No. 44/1656 on 05.06.2004 and the licence fee for the said quarters was paid from his salary regularly. The applicant contended that Clause No. 15 of the Allotment letter dated 31.05.2004 stipulates that from the date of occupation of quarter no. 44/1656, Type-I, Sector VII, S.M. Plot, he may retain the quarter No. 67/2890 for that day or the next day immediately following thereafter. Thereafter the allotment would be cancelled. S.R. 37-B-12 of the G.P. Rules, 1963, provided that this should be done within eight days. The plea of the applicant is that in view of the stipulation made in Clause 15 of the Allotment letter his previous allotment of quarter no. 67/2890 stood vacated by him on 06.06.2004 on acceptance and occupation of the 4 O.A. 652/2011 Quarter No. 44/1656. There was no instructions in the order of allotment that he should surrender physical possession of the old quarter. Respondent No. 3 and 4 never asked him to give physical vacant possession of Quarter No. 67/2890. The applicant was not aware of the inspection report in respect of Quarter No. 67/2890 and there was nothing to show that the old quarter no. 67/2890 was in his possession. After long four years he was surprised to receive memorandum no. 1/T4(113)/04-EMM dated 13.05.2008 which says that he was liable to pay damages for both the quarters, i.e., 67/2890 and Quarter No. 44/1650 from the date of respective cancellation of the quarters. The applicant was directed to vacate both the quarters, failing which the eviction proceedings would be initiated against him by the Estate Manager. The applicant submits that on acceptance and occupation of the new Quarter on 06.06.2004 the possession of the earlier quarter stood automatically vacated. The respondents ought to have taken action to allot the vacant Quarter No. 67/2890 to other eligible employees in the order of priority in terms of S.R. 317-B-7(3) of the Allotment of Government Residences Rules, 1963. The applicant had been paying licence fee regularly through his monthly salary with reference to quarter no. 44/1656, 5 O.A. 652/2011 therefore, it cannot be said that he was in unauthorized occupation of the said quarters. The Respondent No. 4 and any other authority, including the Estate Officer, appointed by the Central Government at no point of time issued any notice under Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, to the applicant nor followed the procedure prescribed thereunder. A memorandum dated 14.10.2008 was issued by the Accountant of Respondent No. 4 to the Respondent No. 5 directing the Respondent No. 5 to recover Rs. 6,45,351/-and to direct him to vacate the two quarters or the eviction proceedings would be proceeded against him. A memorandum dated 23.10.2008 was issued asking the applicant to submit vacation report of both the quarters. Respondent No. 5 issued memorandum dated 26.02.2009 stating that the competent authority has ordered to recover amount of Rs. 6,47,351/-from his pay and allowances in 279 instalments of Rs. 2200/-per month and recovered Rs. 12,802/-from 40% of Pay Commission arrears and Rs. 19,202/-from 60% of Pay Commission arrears admissible and payable to him on the implementation of the recommendations of the Sixth Central Pay Commission with effect from 01.01.2007. Respondent No. 4 by memorandum dated 25.08.2009 to the respondent no. 5 requested them 6 O.A. 652/2011 to recover further damage rent from October, 2008 to May 2009 aggregating Rs. 95,088/-with a further request to Respondent No. 5 to direct the applicant to vacate both the quarters immediately and recover further amount. It was stated that the applicant was liable to pay market rent @ Rs. 5,476/-and @ Rs. 7,372/-till he vacates both the quarters. Respondent No. 5 by his memorandum dated 15.09.2009 and 10.11.2009 directed the applicant to submit vacation report.
3. The applicant's submission is that there was only one quarters, i.e., 44/1656 and the earlier quarter no. 67/2890 stood vacated by him on the date of acceptance of the new accommodation. So the question of submitting vacation report in respect of both the quarters did not arise. The further grievance of the applicant is that without taking recourse to the procedure laid down in the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, the respondents adopted pressure tactics on the applicant. The respondent no. 5 again issued memorandums dated 15.09.2009 and 10.11.2009 asking the applicant to submit vacation report in respect of both the quarters and to recover damage rent till the vacation of both the quarter and to explain why both the quarters were not surrendered, failing which disciplinary 7 O.A. 652/2011 proceedings would be initiated against him. By memorandum dated 16.07.2010 the Respondent No. 4 informed Respondent No. 5 that both the quarters which were in unauthorized occupation of the applicant got vacated by the Estate Officer on 30.11.2009.
4. The respondents have filed their replies. In the affidavit in reply filed on behalf of Respondents No. 1, 3 and 4 the respondents have contended that as per S.R. 317-B-12 the allotment of the previous quarter was deemed to have been cancelled from the date of occupation of the quarter given in change i.e. Quarter No. 44/1656, since the applicant did not vacate the previous quarter within the period as stipulated under S.R.317- B-12. The applicant initially filled up DE-2 application in the prescribed format and submitted to the respondents through his department for allotment. The applicant knew the procedure for surrendering accommodation, therefore, the applicant was required to physically hand over the possession of the quarter to the concerned authorities in the same way as he had taken possession of the quarter. He cannot plead ignorance at this stage. While submitting his application for allotment, the applicant has signed the declaration stating that "I agree to abide by 8 O.A. 652/2011 the allotment of Government residences (General Pool in Delhi) Rules, 1963 as amended from time to time or relevant Allotment Rules applicable.
5. The respondents has referred to the O.M. of Directorate of Estate bearing no. 12035(6)/ 88/Pol.II dated 04.10.1988 which says that failure to vacate the previous accommodation also amounts to breach of terms and conditions in respect of the second quarters given to the allottee, which is only in lieu of the first quarters. The respondents have referred to SR-317-B-12 and SR317- B-13.
6. The respondents contended that allotment of both the quarters were cancelled in accordance with law and ultimately physical possession was also taken in respect of both the quarters. The applicant became liable to pay damages under SR317- B-22 in respect of both the quarters at the rate prescribed by the Government from time to time. The respondents worked out the damages and intimated the employer of the applicant. The respondents fixed the total liability of the applicant to the tune of Rs. 8,26,408/-and the calculation was given as indicated in exhibit R-6 to the reply. The eviction proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, were initiated against the 9 O.A. 652/2011 applicant. The respondents annexed the copies of the proceedings as Annexure R-7. The respondents' contention is that the applicant committed breach of Allotment Rules and allotment in respect of both the quarters were cancelled. The Government was within its right to recover the dues payable by the applicant under SR-317-B-22.
7. The further contention of the respondents are that in spite of the fact that allotment of both the quarters was cancelled by the respondents and the applicant was duly informed, the applicant did neither reply to the notices nor appeared before the competent authority at the relevant time against such cancellation of allotment. Thereafter the Estate Officer issued notice under Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. Even at that point of time, the applicant did not find it necessary to submit his reply or appear before the Estate Officer. The eviction order under Section 5 of the Public Premises Act was also passed. Accordingly, the vacation order was passed and the applicant was physically evicted in respect of both the quarters.
8. I have heard Shri K.R. Yelwe, Learned Counsel for applicant and Shri N. K. Rajpurohit, Learned Counsel along with Shri D.A. Dube, Learned Counsel for Respondents No. 1, 3 and 4 as well as 10 O.A. 652/2011 Smt. N.V. Masurkar, Learned Counsel also with Shri P. Khosla,learned counsel for Respondents No. 2 and
5. Pleadings along with the documents annexed to the O.A. have also been perused.
9. From the documents annexed to the O.A. as well as to the reply, it appears that the Assistant Estate Manager, for the the first time on 13.05.2008 issued his letter addressed to the Assistant Administrative Officer, Films Division, with a copy to the applicant, the subject being cancellation of allotment of quarter No. 67/2890, Type-I, Sector VII, S.M. Plot, on account of holding two quarters. The letter discloses that in respect of Quarter No. 67/2890 the allotment was deemed to have been cancelled w.e.f. 06.06.2004 (FN), the date on which the applicant took possession of Quarter No. 44/1656, Type-I, Sector VII, S.M. Plot. Although no details have been mentioned with regard to cancellation of quarter no. 44/1656 yet the addressee was requested to arrange realisation of damages in respect of both the quarters, i.e., Quarter No. 67/2890 @ Rs. 5467/-per month and for Quarter No. 44/1656 @ Rs. 7,372/-per month from the date of cancellation. The applicant was directed to vacate both the quarters. The next letter dated 27.05.2008 which the applicant received from the Assistant 11 O.A. 652/2011 Administrative Officer for Chief Producer of the Films Division reiterates the contents of letter dated 13.05.2008 written by the Assistant Estate Manager. The applicant thereafter annexed letter dated 14.10.2008 written by the Accountant of Estate Manager addressed to the Assistant Administrative Officer, Films Division requesting him to recover a sum of Rs. 6,41,351/-immediately and if he overstays further, the date of cancellation w.e.f. 06.06.2004 he would be charged the damages at the rate of Rs. 5,476/-and Rs. 7372/-respectively and the eviction proceedings would be initiated against him. The next memorandum dated 23.10.2008 issued by the Assistant Administrative Officer for Chief Producer subject being recovery of damages on account of holding two quarters, the applicant was directed to submit vacation report of both the accommodation. Recovery order was made on 26.02.2009 by the Sr. Administrative Officer w.e.f. March 2009 onwards in 280 installments in respect of two quarters. In the meantime, as it appears from exhibit R-7, a show cause notice under Sub-Section and Clause (B) (II) sub-section (2) of Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, was issued on 25.05.2009. Thereafter on 30.07.2009 an eviction order under Section 5 of the 12 O.A. 652/2011 Public Premises Act was issued. The applicant has not disclosed this fact. But the applicant annexed the letter written by the then Assistant Estate Manager dated 25.08.2009 addressed to the Assistant Administrative Officer, Films Division, again stating that the applicant be directed to vacate both the quarters and the addressee was directed to recover the above, amounting to Rs. 7,40,439/which includes Rs. 6,47,351/-. Balance upto September 2008 already intimated vide office letter dated 14.10.2008 and further adding market rate w.e.f. October, 2008 to May, 2009. There is a note below the said letter which is dated 09.10.2009. The said note says that the eviction could not be carried out earlier due to shortage of police on account of Ganesh Chaturthi, Navratri festivals plus the forthcoming elections. However, premises would be vacated by the end of October, 2009. The Assistant Administrative Officer thereafter issued letter dated 10.11.2009 whereby the applicant was again directed to vacate both the accommodation and submit vacation report failing which disciplinary action would be taken against him as per Conduct Rules. From the letter dated 16.07.2010 written by the Assistant Estate Manager addressed to the Assistant Administrative Officer, Films Division, it appears that eviction was done by the Estate 13 O.A. 652/2011 Officer on 30.11.2009.
10. The Respondents No. 2 and 5 and Respondents No. 1, 3 and 4 have filed two separate written statements. Although the applicant has taken a plea in the Original Application that no proceedings under the Public Premises Act was taken but from the annexures annexed to the written statements filed by two sets of respondents, it appears that notice under clause (b)(ii) of Subsection 2 of Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, was issued on 25.05.2009. In the said notice issued under the Public Premises Act, for the first time, it was mentioned that the allotment of Quarter No. 44/1656, Type-I, S.M. Plot, Mumbai 400 037 was cancelled by the competent authority w.e.f. 06.06.2004 (FN) vide order dated 25.03.2008. 05.06.2004 is the relevant date when the applicant took possession of allotment of Flat No. 44/1656. The said notice also mentions that the premises no. 67/2890, Type-I, S.M. Plot, Mumbai, was not vacated by the applicant within the stipulated period under SR 317-B-12 and he continued to hold two premises till date. Accordingly, he was declared unauthorized occupant in respect of both the quarters. The order of eviction under sub section (1) of Section (5) of the Public Premises (Eviction 14 O.A. 652/2011 of Unauthorized Occupants) Act, 1971, is also annexed to the reply statement.
11. The respondents contended that they have followed the SR 317-B-12 read with SR 317-B-15 as well as SR 317-B-22. The relevant parts of these rules are set out herein below :
317-B-12(2) where an officer, who is inoccupation of a residence is allottedanother residence and he occupies newresidence, the allotment of former residenceshall be deemed to be cancelled from the date of occupation of the new residence. After such date of occupation, he may, however, retain the former residence onpayment of normal licence fee therefor, fora period of 15 days for shifting to theallotted accommodation in change:
Provided that if the former residence is not vacated within 15 days, the officer shall be liable to pay damages for use and occupation of said residence, furniture and garden charges as may be determined by Government from time to time with effect from sixteenth day from the date of occupation of the new residence.
S.R. 317-B-15(1) An officer to whom a residence has been allotted under these rules mayapply for a change to another residence ofthe same type or a residence of the type towhich he is eligible under SR 317-B-5, whichever is lower. Not more than one changeshall be allowed in respect of one type ofresidence allotted to the officer. S.R. 317-B-22. Where, after an allotment has been cancelled or is deemed to be cancelled under any provision contained in these rules, the residence remains or had remainedin occupation of the officer to whom it wasallotted or of any persons claiming throughhim, such officer shall be liable to paydamages for use and occupation of the residence, services, furniture and gardencharges as may be determined by Governmentfrom time to time, or twice the licence feehe was paying, whichever is higher.
12. From a perusal of Rule 317-B-12 it appears 15 O.A. 652/2011 that on occupation of another residence or the new residence, the allotment of former quarters will be deemed to be cancelled from the date of occupation of new residence. It further says that if the former residence is not vacated within 14 days, the officer shall be liable to pay damages for use and occupation of the said residence, etc.
13. S.R. 317-B-22 says about overstayal in residence after cancellation of allotment. Once an allotment is cancelled, the officer shall be liable to pay damages on use and occupation of the quarters. The rule could be invoked only after cancellation or deemed cancellation. The contention of the respondents that the applicant became liable to pay damage rent in respect of former quarters, i.e., quarter no. 67/2890 on deemed cancellation has considerable force since admittedly the applicant did not physically vacate the quarter no. 67/2890 on occupation of new quarter, i.e., 44/1656 on 05.06.2004. But the Learned Counsel for respondents could not produce any law which empowers them to charge damage rent in respect of both the quarters from the same date. The respondents' contention with regard to cancellation of allotment of quarter no. 44/1656 is violation of rules of allotment but the respondents did not produce the exact rule or order which 16 O.A. 652/2011 permitted the respondents to cancel and/or to charge damage rent in respect of the allotment of quarter no. 44/1656 simultaneously from the same date. The first notice dated 13.05.2008 issued by the respondents says that as per rules of allotment the previous quarter no. 67/2890 was deemed to have been cancelled w.e.f. 06.06.2004 (FN), the date on which he took possession of Quarter No. 44/1656 and he was liable to pay damages for both quarters, i.e. Quarter No. 67/2890 and Quarter No. 44/1656, from the date of respective cancellation. The respondents for the first time in the show cause notice issued under Public Premises (Eviction of Unauthorized Occupants) Act, 1971, mentioned that the order of cancellation of Allotment of quarter No. 44/1656 was dated 25.03.2008 and w.e.f.
06.06.2004.
14. In view of deemed cancellation of allotment in respect of Quarters No. 67/2890 the question of issuing notice before such cancellation, as alleged by the applicant, did not arise. But from the documents it does not appear whether any notice before cancellation of quarter no. 44/1656, which was being occupied by the applicant on payment of regular licence fee, was ever issued to the applicant. The Hon'ble Apex Court as well as competent court of law have held on number of 17 O.A. 652/2011 occasions that the authority should scrupulously follow the principles of natural justice before issuing order of cancellation of the Government accommodation.
15. Although the applicant has taken a plea that the competent authorities did not invoke the provisions of Public Premises Act, but from the record it appears that the respondents invoked the Public Premises Act and issued show cause notice under Section 4 of the said Act. The applicant neither replied to the said notice nor presented himself with his defence plea before the competent authority. The order of eviction under Section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 was passed on 30.07.2009. The applicant did not approach the competent court of law and he vacated the two premises and surrendered possession to the authorities. The respondents referred to a letter dated 21.05.2010 written by the applicant wherein the applicant admitted that he could not surrender the two quarters in time. He vacated both the quarters and surrendered to the Estate Manager on 30.10.2009. The learned counsel for applicant contended that this letter was written under coercion and threat of initiation of disciplinary proceedings inasmuch as the applicant surrendered the two quarters on 18 O.A. 652/2011 30.10.2009 and this letter is dated 21.05.2010. The applicant further contended that he might not have surrendered physical possession due to ignorance of law but the said quarter, i.e., 67/2890 was not being used by him or he was not in possession of the same. There may be some lapses on the part of the respondents to issue orders of cancellation or raise demand for damage rent in respect of both the quarters after expiry of four years but there is serious laches on the part of the applicant in not vacating and/or handing over the vacant possession of quarters no. 67/2890 physically on the day he took over possession of the changed quarter no. 44/1656. The applicant's plea of ignorance of law cannot be sustained under any pretext. The applicant failed and neglected to take any step even after receiving notice after notice from the competent authorities, the first of which is dated 13.05.2008.
16. The applicant himself has referred to S.R. 317-B-12 to show that the allotment of the earlier quarter will stand vacated as soon as he accepts and occupies the changed quarter but very cleverly he has not pointed out the proviso to Rule 317-B-12 which says "provided if the former residence is not vacated within 15 days aforesaid, the officer will be liable to pay damage rent for use and occupation 19 O.A. 652/2011 of said residence, furniture and garden charges as may be determined by Government from time to time with effect from sixteenth day from the date of occupation of the new residence. Deemed cancellation will entail damage rent in terms of SR 317-B-22. SR-317-B-12 says about deemed cancellation of allotment of former quarter but not automatic vacation of the said quarter. The cancellation of allotment does not amount to vacation of the quarter. That apart, the applicant himself has admitted that he did not vacate premises No. 67/2890 prior to 30.11.2009.
17. In view of the laches and negligence on the part of the applicant in not taking steps on the date when the applicant was informed about cancellation of both the quarters in May 2008 or thereafter, the applicant cannot claim any equitable relief inasmuch as the settled principle is that delay defeats equity. In view of the fact that the applicant did not challenge the order of cancellation which merged with the order of eviction and he vacated both the quarters, at this distant time the applicant cannot get the reliefs as claimed for in the Original Application.
18. The respondents, prior to invoking Public Premises Act for eviction, issued notice for cancellation of quarters and recovery of damage 20 O.A. 652/2011 rent in terms of SR-317-B-12 read with SR-317-B-22. Therefore, the order of cancellation was followed by the eviction proceedings under the Public Premises Act. The Public Premises Act itself has provided for the safeguards and measures to get the relief against orders passed under the Act. It has been held by the Hon'ble Apex Court that the Tribunal will not assume jurisdiction over the order passed by the competent authority under the Public Premises Act. In view of the applicant's not challenging the order of eviction before the appropriate forum and above all in view of applicant's vacating both the quarters, the question of interfering with the impugned notices/orders do not arise at all, save and except the part of recovery of damage rent in respect of Quarter No. 44/1656.
19. The respondents could not produce any law which provides for charging damage rent and/or penal rent in respect of both the quarters simultaneously from the same date. As such it is not open to the respondents to recover damage rent in respect of Quarter No. 44/1656 which was under
occupation of the applicant on payment of normal licence fee paid from his salary till the date he was evicted. The respondents would charge regular licence fee in respect of Quarter No. 44/1656 till 21 O.A. 652/2011 the date the applicant was evicted and the respondents will be entitled to charge the arrears of licence fee, if any.
20. The respondents are hereby restrained from recovering the damage rent in respect of Quarters No. 44/1656. The respondents are further directed to refund or readjust the recovered amount towards damage rent in respect of Quarters No. 44/1656 within three weeks from the date of receipt of a copy of the order after working out and furnishing a proper statement of account for that purpose.
21. The O.A. is partly allowed. No order as to costs.
(Smt. Chameli Majumdar) Member (J) os* O.A. 652/2011