S.K. Sood vs The Central Public Works ...
2010 Latest Caselaw 5599 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

     W.P.(C) No.11497/2009 and CM No. 11277/2009


                           Judgment delivered on: 08.12.2010


S.K. Sood                                ..... Petitioner
                      Through: Mr. Rajesh Yadav, Adv.


                         Versus


The Central Public Works
Department& Anr.                         ..... Respondents

Through: Mr. B.V. Niren, CGSC

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1. Whether the Reporters of local papers may be allowed to see the judgment? No

2. To be referred to Reporter or not? No

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

KAILASH GAMBHIR, J. Oral:

1. By this petition filed under Article 226 of the

Constitution of India, the petitioner seeks to set aside the

judgment and decree dated 16.7.2008 passed by the court of

the learned Addl. District Judge whereby the appeal under

section 9 of The Public Premises Act, 1971 was dismissed.

2. Brief facts of the case relevant for deciding the

present petition are that the petitioner joined the respondent

as a Junior Engineer (Civil) and while working in Delhi was

transferred to Jaipur on 21.9.2004 and then to Border

Fencing Division at Bikaner on 12.4.2005 which is a hard

station. Meanwhile the petitioner retained his government

accommodation at New Delhi bearing Flat No.2, Type IV,

Netaji Nagar, New Delhi and thus a show cause notice dated

30.3.2005 was served upon the respondent and consequently

an eviction order dated 11.4.2005 was passed against the

petitioner. Thereafter the petitioner preferred an appeal

against the said order which vide judgment and decree dated

16.7.2008 was dismissed. Feeling aggrieved with the same,

the petitioner filed the present petition.

3. Mr. Rajesh Yadav, counsel appearing for the

petitioner has placed reliance on the office memorandum

dated 10.5.1996 to contend that under the said office

memorandum the petitioner could retain the Government

accommodation after his posting in Border Fencing Division

and the said office memorandum nowhere states that such

Government accommodation necessarily should have been

allotted at the place of his last posting. Counsel further

submits that since the petitioner was not entitled to any

accommodation at the place of his last posting i.e. Jaipur as

he was already in possession of an accommodation in Delhi

which was allotted in his favour at the time of his posting at

Delhi as per his entitlement therefore, giving a true meaning

and correct interpretation to the language of the office

memorandum dated 1st May, 2002, the petitioner was entitled

to retain the Delhi accommodation for a period of 8 months.

Counsel further submits that the show cause notice was

served upon the petitioner even prior to the expiry of 8

months concession period, which was allowed to the

petitioner under the FR 45 A. The contention of counsel for

the petitioner is that the show cause notice was sent to the

petitioner on 30th March, 2005 while 8 months concessional

period had expired on 20th May, 2005. Counsel thus states

that the said show cause notice served by the respondent was

void ab initio and consequently proceedings held before the

learned Estate Officer and before the Appellate Court based

on the said show cause notice dated 30th March, 2005 became

nullity in the eyes of law. Counsel further submits that no

notice as envisaged under Section 7 was served on the

petitioner by the respondent, therefore, no damages can be

claimed by the respondent from the petitioner.

4. Mr. B.V. Niren, Standing Counsel appearing

for the respondent, on the other hand submits that in terms of

the office memorandum dated 1st May, 2002, the concession

of retention of Government accommodation on the posting of

an employee to Border Fencing Projects could be entertained

only when such Government accommodation under retention

was at the last place of posting. The contention of counsel for

the respondent is that the petitioner was transferred to

Central Division No. 1, CPWD Jaipur vide orders dated 24 th

June, 2002 and was relieved from his duties vide orders dated

11th June, 2004 from Delhi and then from Jaipur the petitioner

was relieved to join the Border Fencing Division-2, CPWD,

Bikaner on 12.4.2005 and 8 months concessional period

granted to the petitioner expired on 10.2.2005. The

submission of counsel for the respondent is that after the

expiry of the said retention period of 8 months the petitioner

had no right to retain the said accommodation further and in

terms of the said office memorandum dated 1st May, 2002 the

petitioner was not entitled to retain the Government

accommodation because his last place of posting was at

Jaipur, which was admittedly not a hard station.

5. I have heard learned counsel for the parties at

considerable length and gone through the records.

6. The main concern raised by the present petitioner

herein is that if the status of the petitioner with regard to the

Government accommodation for the relevant period, is

treated as that of an unauthorized occupant then he would

become liable to pay damages and if occupation of the

petitioner is accepted as that of an authorized occupant, then

he would be liable to pay at the most twice the amount of

normal licence fee. It is not in dispute that the petitioner had

joined the Border Fencing Division of the respondent on

12.4.2005, which is a hard station and as per the policy of the

respondent an employee posted at Border Fencing Division

can retain the Government accommodation as per his

entitlement but subject, however to the condition that the said

allotment of the Government accommodation is at the last

place of posting of such an employee. In the facts of the

present case, the petitioner was not allotted any

accommodation at Jaipur, which was his last place of posting

immediately prior to his posting at Bikaner. The petitioner

was allowed to retain the said Government accommodation at

Delhi for a period of 8 months period as per his request and

the said 8 months period expired on 20.5.2005. The

respondent has already accepted the plea of the petitioner to

calculate the 8 months period of retention w.e.f. 21.9.2004

and as per the policy of the Government the petitioner was

legally not entitled to retain the said accommodation for any

further period. The contention of counsel for the petitioner

that the office memorandum dated 1st May, 2002 makes him

eligible for retention of the Government accommodation on

payment of double the normal licence fee, is totally devoid of

any merit as the language of the said office memorandum is

quite explicit and unequivocally states that the concession of

retention of Government accommodation in respect of Border

Fencing Projects relates to the accommodation at the last

place of posting upto 31st March, 2005. Last place of posting

of the petitioner indisputably was at Jaipur and not at Delhi

and the petitioner was thus not clearly entitled to retain the

said Government accommodation at Delhi and the period of

retention, which was granted to him at his request, was for a

period of 8 months. The interpretation of the said office

memorandum as canvassed by the counsel for the petitioner

cannot be comprehended or accepted as such an

interpretation would defeat the very intendment and purpose

of the policy of the Government in not extending the

concession of the retention of the Government

accommodation unless the same is at the last place of posting.

7. Dealing with the other contention of counsel for

the petitioner that the show cause notice issued by the

respondent under Section 4 of the Public Premises Act was

null and void, I find this contention of counsel for the

petitioner equally devoid of any force. In any event of the

matter, the petitioner was in unauthorized occupation of the

said Government accommodation on the date of issuance of

the show cause notice dated 30th March, 2005 and, therefore,

the said show cause notice cannot be termed as illegal or

without any cause of action. It is an undeniable fact that the

petitioner was relieved by the respondent vide office order

dated 11.6.2004 but since the said order was challenged by

the petitioner before the Central Administrative Tribunal and

it is pursuant to the orders passed by CAT that the

respondent vide office order dated 7th January, 2006

implemented the orders of the learned CAT to treat the

petitioner relieved from Delhi from 21.9.2004 instead of 11th

June, 2004. The learned Appellate Court has already observed

that the subsequent change in the relieving date would give

benefit to the petitioner of retention of the said Government

accommodation for a period of 8 months to be reckoned from

21.9.2004 instead of 11.6.2004. To this extent the respondent

has also not taken any adverse stand. Clearly the said show

cause notice dated 30th March, 2005 was issued by the

respondent taking the relieving period of the petitioner w.e.f.

11th June, 2004 and, therefore, under no circumstances the

said show cause notice can be treated as null and void.

8. In the light of the above discussion, this Court

does not find any illegality or infirmity in the orders passed by

the both the Courts below. The petitioner has been rightly

treated as an unauthorized occupant of the Government

accommodation i.e. bearing address as Flat No. 2, Type -IV,

Enquiry Office, Netaji Nagar, New Delhi, for the period w.e.f.

21.5.2005 till 31st July, 2006.

9. Hence, there is no merit in the present petition

and the same is hereby dismissed.

December 08, 2010                   KAILASH GAMBHIR, J
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