Tirlok Singh vs Union Of India & Another
2010 Latest Caselaw 2162 Del

                 *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                 WP(C)8934/2003

%                                                Date of decision: 26th April, 2010

TIRLOK SINGH                                                    ..... Petitioner
                             Through: Mr. R.K. Saini, Advocate
                                      Versus

UNION OF INDIA & ANOTHER                                      ..... Respondents
                             Through: Mr. Jatan Singh with Mr. Sudeep Sudan,
                                      Advocates for UOI.
                                      Mr. Chetan Lokur for Mr. Viraj R.
                                      Datar, Advocate for R-2.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.      Whether reporters of Local papers may
        be allowed to see the judgment?                  NO

2.      To be referred to the reporter or not?                  NO

3.      Whether the judgment should be reported                 NO
        in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner was employed and working as a Senior Gestetner Operator,

Grade-I in this court. The petitioner was allotted and occupying the official

accommodation at Sadiq Nagar, New Delhi. The petitioner met with an accident

which seriously injured him. The petitioner as such sought voluntary retirement

and also sought compassionate appointment in this court for his son. The said

request of the petitioner was accepted and while granting compassionate

appointment to the son of the petitioner, the petitioner was voluntarily retired

from service. The son of the petitioner immediately on joining applied for

allotment of Government accommodation/regularization of the allotment of the

aforesaid house in Sadiq Nagar earlier allotted in the name of the petitioner, in

his own name. Though the Directorate of Estates sanctioned ad hoc allotment of

government accommodation to the son of the petitioner but no actual allotment

was made. In the circumstances, the petitioner and his son continued to occupy

the aforesaid house at Sadiq Nagar earlier allotted to the petitioner. It is the

admitted position that the son of the petitioner was not being paid HRA since he

was occupying government accommodation earlier allotted to the petitioner.

2. The Directorate of Estates nevertheless asked the petitioner to pay market

rent for overstaying in the accommodation earlier allotted to him. Another

accommodation at Sadiq Nagar was allotted to the son of the petitioner after

about 1/1 ½ years. However, the Directorate of Estates demanded payment from

the petitioner of Rs.87,191/- for overstaying in the accommodation allotted to

him, as a precondition for delivering the possession of the accommodation

allotted to the son of the petitioner. It is the case of the petitioner that he had no

option but to pay the said amount. The petitioner immediately thereafter filed

this writ petition seeking refund of the said sum of Rs.87,191/-.

3. Notice of the petition was issued to the respondents and Rule was issued

on 9th February, 2004. The respondent no.1 has filed a counter affidavit in which

it is stated that the sum of Rs.87,191/- was demanded and recovered from the

petitioner in accordance with the rules, for overstaying in the accommodation

inspite his voluntary retirement. The petitioner has in the petition given an

instance of another employee who was allowed to continue in the

accommodation allotted to him till the regularization of the allotment in the name

of his son. The respondent no.1 has sought to distinguish that case by contending

that in the present case there was undue delay on behalf of the petitioner and his

son.

4. On 20th January, 2010 the counsel for the respondent no.1 sought time to

take instructions as to whether the respondent no.1 was prepared to either pay

HRA to the son of the petitioner for relevant period or to waive the market rent

charged from the petitioner. However, in spite of several opportunities

thereafter, the counsel for the respondent no.1 states that no instructions have

been received in this regard.

5. Compassionate appointment was sought and granted to the petitioner.

Ordinarily on such compassionate appointment, there should have been no delay

in allotment of alternate accommodation to the son of the petitioner or in

changing / regularizing the allotment of the accommodation from the name of the

petitioner to the name of his son. There is absolutely no explanation whatsoever

as to why the respondent no.1 took 1/1 ½ years in allotting accommodation to the

son of the petitioner. Immediately after such allotment, the petitioner and his son

shifted to the new accommodation. Though the respondent no.1 has in the

counter affidavit pleaded delay on the part of the petitioner and/or his son but no

particulars in support of the said plea have been given. Else from a reading of

the events, as set out in the petition and which are not disputed, no case of delay

is made out.

6. This court is of the opinion that the respondents cannot on the one hand

withhold the HRA of the son of the petitioner for the reason of his occupying the

government accommodation allotted to his father and at the same time seek to

recover market rent from the petitioner for overstaying in the accommodation. It

was the duty of the respondent no.1 to provide alternate accommodation

immediately and for their own delay they cannot penalize the petitioner and his

son. The action of the respondent no.1 of insisting upon the petitioner paying the

said market rent before the delivery of possession of the accommodation allotted

to the son of the petitioner is also found to be arbitrary.

7. Though ordinarily this court in the exercise of the writ jurisdiction would

not direct payment of amounts but since in the present case the amount which is

sought to be recovered is found to have been received by the respondent no.1 by

arm twisting the petitioner, this court does not deem it expedient to relegate the

petitioner to the remedy of filing a civil suit to recover the amount in question.

The Supreme Court in Shangrila Food Products Ltd.

Vs. Life Insurance Corporation of India AIR 1996 SC 2410, Dwarka Nath v.

Income-tax Officer, Special Circle D-ward, Kanpur AIR 1966 SC 81, Life

Insurance Corporation of India Vs Smt. Asha Goel AIR 2001 SC 549, Union

of India Vs R. Reddappa (1993) 4 SCC 269 and Ramesh Chandra Sankla Etc.

v. Vikram Cement Etc. AIR 2009 SC 713 has held 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. It was held that the Constitution

does not place any fetters on the exercise of the extraordinary jurisdiction of the

High Courts under Article 226. 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 the

injustice is found to have been done. It was yet further held that the restrictions

on the exercise of power, self imposed or statutory then 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 refund of the licence fee at

market rate which the petitioner was made to pay by arm twisting is directed,

injustice would be done to the petitioner and his son. The counsel for the

petitioner has assured that the son of the petitioner has not made and will not

made any claim for the HRA not paid to him for that period.

8. There is another aspect of the matter. Though the claim of the respondent

no.1 is that the petitioner was in unauthorized occupation of the government

accommodation allotted to him but the monies which were demanded from the

petitioner and recovered in the manner aforesaid from him were assessed not by

the Estate Officer in accordance with provisions of the Public Premises (Eviction

of Unauthorised Occupants) Act 1971 but calculated in accordance with the so

called "Rules". Section 7 of the Public Premises Act provides that where any

person is, or has been in unauthorized occupation of any public premises, the

Estate Officer having regard to such principles of assessment of damages as may

be prescribed may assess the damages on account of the use and occupation of

such premises and require that person to pay the damages within such time as

may be prescribed. Once the Public Premises Act has prescribed the mode in

which the damages for unauthorized occupation are to be assessed and recovered,

they are to be assessed and recovered in that manner/mode only and in no other.

The assessment under Section 7 of the Act is a judicial/quasi judicial function.

Rule 8 of the Rules framed in the Public Premises Act lay down the guidelines in

this regard.

9. This court on 5th March, 2010 had put the said question to the counsel for

the respondent no.1 and directed him to address on this aspect. No arguments to

the contrary have been addressed. From the documents filed, it is not disclosed

that any assessment as required to be done was done by the Estate Officer before

making the demand for the aforesaid amount from the petitioner. This court in

Yugal Kishore Vs. Delhi Jal Board 140(2007) DLT 375, relying on an earlier

unreported judgment of this court held that without taking recourse to the

provisions of the Public Premises Act the damages for unauthorized occupation

could not have been levied unilaterally without affording any opportunity. The

amount coercively recovered from the petitioner is thus found to be illegal for

this reason also.

10. I have also considered whether the respondent no.1 should be directed to

pay interest to the petitioner on the amount from the date of the illegal recovery

till the date of refund. However, I refrain from levying any interest in the hope

that the parties would allow the matter to rest and not take it further.

11. The petition is therefore allowed. The respondent no.1 is directed to

refund to the petitioner the sum of Rs.87,191/- recovered from the petitioner,

within six weeks hereof failing which the said amount shall incur simple interest

at 10% per annum till the date of payment/refund. In the circumstances, the

parties are also left to bear their own costs.

RAJIV SAHAI ENDLAW (JUDGE) 26th April, 2010/M