Shiv S. Sharma vs Union Of India & Ors.
2010 Latest Caselaw 1866 Del

                *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            WP(C) No.12/1998

 %                                            Date of decision: 9th April, 2010

SHIV S. SHARMA                                      ..... PETITIONER
                             Through: Mr. Ashwin Vaish, Advocate with
                                     Mr. Vinod Kumar Pandey & Mr.
                                     Sanjeev Manchanda, Advocates
                                     Versus
UNION OF INDIA & ORS.                   ..... RESPONDENTS
                  Through: Mr. R.V. Sinha & Mr. R.N. Singh,
                          Advocates

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.        Whether reporters of Local papers may
          be allowed to see the judgment?               YES

2.        To be referred to the reporter or not?              YES

3.        Whether the judgment should be reported             YES
          in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner preferred this writ petition for quashing the letter

dated 29th October, 1997 of the Directorate of Estate of the Government of

India rejecting the representation of the petitioner for retention of the

government accommodation and calling upon the petitioner to vacate the

government accommodation and demanding Rs.5,92,992/- from the

petitioner as damages for unauthorized occupation of the government

accommodation. The petitioner also seeks quashing of the notice dated 10 th

December, 1997 issued by the Estate Officer of the Department of Estate to

the petitioner under Section 4 of The Public Premises (Eviction of

Unauthorized Occupants) Act, 1971.

2. The facts on which the petitioner seeks the relief are not in dispute.

The petitioner after 33 years of service with the Government of India,

retired on 31st August, 1991 as Director General, Doordarshan. The

petitioner by virtue of his employment had been allotted government

accommodation at D-II/99, Kaka Nagar, New Delhi and with respect

whereto the letter / notice aforesaid had been issued. The petitioner during

his tenure as the Director General, Doordarshan was meted out threats by

certain organizations and was w.e.f. December, 1990 provided 'X' scale

security by the Government of India. On 13 th June, 1991 while the

petitioner was on the way to his office from his home, he was ambushed

and attacked by two terrorists who rained bullets on the car in which the

petitioner was travelling. The driver of the car died in the said incident and

the Personal Security Officer provided to the petitioner received ten bullet

injuries. The petitioner also received three bullet injuries and out of which

two bullets could not be extracted and remain embedded in the shoulder

muscles of the petitioner. The Government of India immediately after the

said incident upgraded the security provided to the petitioner first to 'Y'

scale and then in August, 1991 i.e. shortly before his retirement, to 'Z'

scale. The respondents in response to the directive of this Court filed an

additional affidavit in which it is informed that though the petitioner retired

on 31st August, 1991 but he continued to enjoy the 'Z' scale security till

March, 1993 when after considering the threat perception to the petitioner

his security was downgraded to 'Y' scale. It is further stated in the said

additional affidavit that the security of the petitioner was thereafter

downgraded to 'X' scale in September, 1994 and ultimately withdrawn in

January, 1998.

3. It is the case of the petitioner and not controverted by the

respondents that as a part of the aforesaid arrangements for security of the

petitioner, the government accommodation at Kaka Nagar, New Delhi

provided to the petitioner was fortified with grills, high walls, barbed wires

and guards round the clock. Upon retirement of the petitioner on 31st

August, 1991, the petitioner in accordance with the Rules became liable to

vacate the aforesaid government accommodation and was entitled to retain

the same at concessional rate for a period of four months only. However,

the petitioner for the reason of the threat perception to himself and his

family members requested the respondents to allow him to continue to

reside in the government accommodation for security reasons. The

petitioner was however informed that as per the policy the persons under

threat perception could be allowed use of government accommodation only

if they did not own any residence in Delhi. The petitioner was the owner of

Flat No.D-3-E, DDA Flats, Munirka, New Delhi. The petitioner feeling

secure in the government accommodation which as aforesaid had been

fortified and feeling that he and his family members even with the security

personnel provided, would be insecure in the DDA Flat, Munirka requested

the government to allow him to continue in the government

accommodation and offered to place his Munirka flat at the disposal of the

Directorate of Estate for allowing the occupation thereof by the Directorate

of Estate to any other official.

4. The Directorate of Estate vide its letter dated 26th February, 1992

informed the petitioner that it had been decided to allow the petitioner to

retain the government accommodation at Kaka Nagar for a period of one

year subject to his placing his DDA Munirka Flat at the disposal of the

Directorate of Estate in lieu thereof. The petitioner accepted the said offer

and the Directorate of Estate on 9th April, 1992 took possession of the DDA

Munirka Flat of the petitioner. The petitioner was also made to sign an

agreement with respect to his flat and which the petitioner forwarded to the

Directorate of Estate.

5. The petitioner on the expiry of the said one year represented that

since he was still receiving threats, he should be permitted to retain the

government accommodation for further time. However, the said

representation of the petitioner was rejected on 28th February, 1994 and the

petitioner was directed to vacate the government accommodation and to

take over possession of his DDA Munirka Flat from the Directorate of

Estate.

6. The petitioner continued to represent and ultimately the letter dated

29th October, 1997 (supra) was issued to the petitioner asking the petitioner

to vacate and to pay Rs.5,92,992/- as damages and proceedings under The

Public Premises Act as aforesaid were initiated against the petitioner.

7. It was then that the petitioner filed the present petition and this Court

vide ex parte order dated 19th January, 1998 issued Rule in the petition and

also restrained the respondents from interfering with the petitioner's

possession of the government accommodation at Kaka Nagar, New Delhi.

The respondents filed CM No.6269/1998 for vacation of the interim order.

8. On 15th April, 2002 when the matter was listed before this Court, the

counsel for the petitioner stated that the petitioner will handover possession

of the government accommodation at Kaka Nagar, New Delhi on or before

24th May, 2002 and the counsel for the respondents stated that the

Directorate of Estate would accordingly hand over the possession of the

DDA Munirka flat to the petitioner on or before 30th April, 2002. This

Court directed the respondents to work out a reasonable quantum of

damages which could be the basis for a settlement to be arrived at in

respect of the damages to be paid by the petitioner to the respondents.

9. On 29th May, 2002 this Court was informed that the parties had

exchanged possession of the two flats and they needed more time for

settlement. It appears that when the petitioner took possession of the DDA

Munirka flat from the Directorate of Estate he found that there were unpaid

electricity and water bills thereof in excess of Rs.4,00,000/- for the period

when the said flat was in occupation of the Directorate of Estate and which

electricity and water charges as per the agreement got signed from the

petitioner with respect to the said flat were payable by the Directorate of

Estate or the officer to whom the Directorate of Estate could have allotted

the said flat. The petitioner applied to this Court for payment of the said

amount of electricity and water charges. The counsel for the respondents

controverted the said claim of the petitioner. However, this Court on 9th

August, 2002, without prejudice to the rights and contentions of the parties,

directed the respondents to deposit in this Court the amount of the

electricity and water bills. The respondents however did not deposit the

said amount. On the next date i.e. 11th December, 2002, the petitioner

informed the Court that on his representation to the Delhi Jal Board and the

Delhi Vidyut Board, they had agreed to reduce the said electricity and

water bills from over Rs.4,00,000/- to Rs.60,000/-. This Court accordingly

directed the respondents to deposit the sum of Rs.60,000/- in this Court

without prejudice to the rights and contentions of the parties. The said

amount was deposited and vide order dated 15th January, 2003, permitted to

be withdrawn by the petitioner and withdrawn by the petitioner. Vide

order dated 8th March, 2006, the respondents were directed to place before

this Court the manner in which the security to protected persons is provided

and the method of recovering damages from said persons in the case of

government servants as well as non government servants. In response

thereto an additional affidavit dated 4th May, 2006 has been filed stating

that as per rules only 'Z+' security provided persons are entitled to be

considered for retention / allotment of government accommodation on

special licence fee and the Cabinet Committee on Accommodation only has

the power to consider the question of exemption of dues, if the aggrieved

person approaches through his nodal Ministry which in the case of the

petitioner was Ministry of Information and Broadcasting. It was stated that

the Directorate of Estate was itself unable to exempt / reduce the

outstanding dues.

10. In view of the aforesaid affidavit, this Court on 7th August, 2007

permitted the petitioner to make a representation as aforesaid and the

Cabinet Committee on Accommodation was directed to consider the said

representation of the petitioner and to take a decision thereon within a

period of eight weeks and to place the said decision before this Court. On

subsequent dates, time was taken stating that the matter was still pending

before the Cabinet Committee on Accommodation or to take instructions in

that respect. Till date neither any decision is shown to have been taken nor

has the same been placed before this Court. Today also the counsel for the

respondents states that he will have to find out the status of the

representation of the petitioner. This petition having remained pending for

the last over 12 years, it is not deemed expedient to adjourn the matter any

further and the counsel for the parties have been heard.

11. The only question surviving in this petition is the demand of the

respondent Directorate of Estates from the petitioner of the sum of

Rs.5,92,992/- for unauthorized occupation of the government

accommodation allotted to him. From the facts aforesaid, it transpires that

the demand is for the period during which according to the respondents

also there was a perception of threat to the petitioner inasmuch as the

security continued to be provided to the petitioner till January, 1998. The

case of the respondents is that the petitioner though under threat was not

entitled to government accommodation because the scale in which the

threat perception to the petitioner was placed was below 'Z+' category and

threatened individuals of which category alone are entitled to government

accommodation. The Cabinet Committee on Accommodation which alone

is empowered to waive off the said demands against the petitioner has

inspite of direction aforesaid of this Court chosen not to take the decision.

Not only are they in defiance of the order of this Court but their conduct

also shows that the said Committee finds it difficult to reject the request of

the petitioner. In the aforesaid circumstances, it is upon this Court to

determine as to whether the petitioner in the facts aforesaid ought to be

held liable for the aforesaid amount or not. The counsel for the petitioner

of course has contended that the direction on 28th February, 1994 (supra)

for vacating the government accommodation was of the Directorate of

Estate only and without consultation with the Home Ministry, actually

concerned with the threat perception. It is stated that the Home Ministry

took a decision on the representation of the petitioner only after five years

in or about the year 1997 and on this ground alone the demand against the

petitioner is liable to be struck down. Per contra, the counsel for the

respondents contends that the damages are levied under the Public

Premises Act and the remedy of writ jurisdiction is not available and the

petitioner ought to have preferred an appeal. No merit is found in the said

contention of the counsel for the respondents. The nature of the

controversy raised is not such as capable of adjudication in the appeal

provided under the Public Premises Act.

12. Inspite of the writ petition having remained pending in this Court for

12 years and inspite of direction of this Court, the respondents have not

been able to show as to the basis of threat perception. Though undoubtedly

the courts cannot foray in the said field which is purely in the domain of

executive functions but what is worth mentioning is that the level/scale of

perception is subjective. What an impartial person adjudicating with an

objective view may perceive as a threat of a lesser level scale is bound to

be a threat of higher level scale to the threatened person especially one who

has faced an encounter of the aforesaid kind and in which he was shot at

and of which two bullets remain buried in his body as a continuous

reminder. The action of the petitioner therefore of wanting to continue in

the protected / secure environment of government accommodation cannot

thus be said to be motivated or mala fide.

13. The bullets faced by the petitioner was not a part of the duties of the

petitioner as a Director General for which he was being paid. A defence

personnel may in the course of his duties be expected to be met with

bullets, but not a civil servant. There is no averment that the respondents

Union of India being the employer of the petitioner has in any way

compensated the petitioner for the same. In my view waiver, of the

damages of less than Rs.6,00,000/- even if in accordance with Rules of the

Estate office, is the least compensation which the respondents can pay to

the petitioner in this respect. The Union of India / State even otherwise

owes a duty to the petitioner as a citizen to protect him. It cannot be denied

that the right of the petitioner to expect security from the State was

breached in the present case. The petitioner owing to the said breach came

to the brink of death. The respondents ought to have shown consideration

and regard for such a case and which unfortunately has not been done.

14. The Supreme Court recently in Union of India Vs. C.S. Sidhu

MANU/SC/0218/2010 has commented with regret on the shabby manner in

which the army-men of our country are being treated. It was commented

that they bravely defend the country even at the cost of their lives and

deserve a better and more humane treatment by the government authorities

particularly in respect of their emoluments, pension and other benefits.

The same, in my view, applies equally to the petitioner in the present case

also. It is not the case that the attack on the petitioner was out of any

personal enmity. The attack on the petitioner was owing to the duties which

he was performing as a government servant. Unless the government

protects such officials, no other official would be willing to stick his neck

out and is likely to compromise his official duties / functions for the fear of

annoying those against whom the government offers no protection to the

officials. The Supreme Court in Navkiran Singh Vs. State of Punjab

(1995) 4 SCC 591 has held that no citizen of this country, much less

Advocates who are protectors of human rights can be permitted to be

kidnapped and eliminated. The State of Punjab in that case was directed to

provide security to all those Advocates who genuinely apprehended danger

to their lives from militants / anti-social elements of the state. It was

further held that request for security recommended by the District Judge or

the Registrar of the High Court was to be treated as genuine and to be

considered sympathetically.

15. There is another aspect of the matter; as aforesaid, the petitioner, for

the period for which damages are claimed from him had placed his own

DDA flat at Munirka at the disposal of the Directorate of Estate. It is thus

not as if the petitioner while on the one hand continuing to earn market rent

from his own flat was illegally occupying the government accommodation

and also claiming waiver of damages at the rate of market rent with respect

thereto. Even though the respondent after the expiry of one year from the

retirement of the petitioner had offered back the possession of the flat of

the petitioner to the petitioner but the petitioner did not take it back and

took it back only when he mentally felt secure to move in to the said flat.

Munirka is a prime residential locality of Delhi and the petitioner could

have earned handsome rent with respect to the said flat. However, the bona

fides of the petitioner are amply borne out from the petitioner placing the

said flat at the disposal of the Directorate of Estate for allotment to any

other government official to whom the government accommodation of the

petitioner could have been allotted and which the petitioner has also

sacrificed for the sake of his security. I am conscious that this Court in

Suhaib Ilyasi Vs. Union of India MANU/DE/1153/2002, Bhim Singh Vs.

Union of India MANU/DE/0391/2000 and Sh. Ashwini Kumar Chopra

Vs. Union of India MANU/DE/0654/2010, held that threat perception is to

be perceived objectively and the person at his own asking and owing to his

own perception of threat cannot be permitted to occupy the accommodation

so provided to him if the competent authority has perceived the threat

perception to have come down. But in none of the said cases, the said

persons had placed their own accommodation at the disposal of Directorate

of Estate. The facts of the present case thus stand out on their own and

require this Court to do justice in the matter.

16. The Courts have held (reference in this regard may be made to

Shangrila Food Products Ltd. Vs. LIC AIR 1996 SC 2410, Dwarka Nath

Vs. ITO AIR 1966 SC 81, LIC Vs. Asha Goel AIR 2001 SC 549, UOI Vs.

R. Reddappa 1993 (4) SCC 269) that Article 226 is couched in

comprehensive phraseology and it ex-facie confers a wide power on the

High Court to reach injustice wherever it is found. The High Court is

empowered to mould the relief to meet the peculiar and complicated

requirements of this country. The constitution does not place any fetters on

the exercise of the extraordinary jurisdiction of the High Courts under

Article 226. It is left to the discretion of the High Court. This Court can in

exercise of such jurisdiction take cognizance of the entire facts and

circumstances of the case and pass appropriate orders to give the parties

complete and substantial justice. Once this Court is satisfied of injustice or

arbitrariness, then the restrictions on the exercise of power, self imposed or

statutory, stand removed and no rule or technicality on exercise of power

can stand in the way of rendering justice. In the present case, it is found

that unless the demand for damages from the petitioners is quashed,

injustice would be done. Reference in this regard can also be made to

Ramesh Chandra Sankla Vs. Vikram Cement AIR 2009 SC 713 where it

was reiterated that Article 226 grants an extraordinary remedy which is

essentially discretionary, although founded on legal injury and it is open for

the Court exercising this flexible power, to pass such order as public

interest dictates and equity projects. It was further held that courts of

equity, are to grant relief in furtherance of public interest and in granting

the relief, must balance interest and equity and mould the relief

appropriately as per the demands of justice.

17. In the entirety of the facts of the present case, while holding that the

petitioner ought not to be made liable for the damages of Rs.5,92,992/-

demanded from him, I at the same time feel that there is no justification for

the petitioner to retain the sum of Rs.60,000/- got paid to him under interim

orders of this Court towards electricity and water charges of the DDA

Munirka flat, for the time it was in the custody of the respondents. The

respondents having offered possession of the Munirka flat to the petitioner

and having not availed the amenity of electricity / water therein cannot be

made liable for charges therefor. The present is a matter where both

parties should call it quits. The petitioner is thus liable to return the sum of

Rs.60,000/- received from respondents under orders of this Court; since

the petitioner has enjoyed the said monies now for the last several years,

the petitioner also ought to pay interest thereon.

18. This petition is therefore disposed of by quashing the demand of the

respondents from the petitioner of the sum of Rs.5,92,992/- for

unauthorized use of the Kaka Nagar accommodation and the petitioner is

directed to within four weeks of today refund to the respondents the sum of

Rs.60,000/- received under interim orders of this Court, together with

simple interest thereon at 7% per annum from the date of receipt of money

and till the date of refund thereof.

The parties are left to bear their own costs.

RAJIV SAHAI ENDLAW (JUDGE) 9th April, 2010 gsr