Delhi High Court
Union Of India & Others vs Ashwini Kumar Nim on 21 January, 2010
Author: Sanjiv Khanna
14.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1845/2008
% Decided on : 21st January, 2010
UOI & ORS. ..... Petitioners
Through Ms. Jasbir Kaur, Advocate.
versus
ASHWINI KUMAR NIM ..... Respondent
Through Mr. Diwan Singh Chauhan, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
1. The proceedings for recovery of damages were initiated before the Estate
Officer against the original allottee-Mr. Rama Nand and Mr. Ashwini Kumar Nim.
It was alleged that Mr. Rama Nand had sublet the property No. 3A, Vasant Vihar,
New Delhi and was receiving consideration in form of rent from Mr. Ashwini
Kumar Nim.
2. The Estate Officer, however, dismissed the proceedings against Mr. Rama
Nand and passed an order against Mr. Ashwini Kumar Nim directing him to pay
Rs.1,48,444/- as damages on account of unauthorized occupation of the property.
3. Mr. Ashwini Kumar Nim had filed an appeal before the learned Additional
District Judge. Learned Additional District Judge has allowed the said appeal vide
order dated 11th April, 2007. In this order, learned Additional District Judge has
noticed that the charge of subletting was undisputed as Mr. Ashwini Kumar Nim
had admitted that he was sharing the said premises with Mr. Rama Nand but had
alleged that Mr. Rama Nand had cheated him by representing that he had obtained
permission from the department. Mr. Ashwini Kumar Nim had further alleged
that he had paid Rs.5,000/- per month to Mr. Rama Nand.
WPC No.1845/2008 Page 1
4. Learned Additional District Judge has referred to SR No. 317-B-20(3),
which stipulates that the officer, who sublets his residence shall do so at his own
risk and responsibility and shall be liable to pay licence fee and damages caused to
the residence, etc. Reference is also made to the Government order dated 4th
August, 1987 issued by the Ministry of Urban Development, Directorate of Estates
stipulating claim/penalties for subletting of government accommodation and
subsequent order of the Government of India dated 26th August, 1999, which
stipulates that a government officer, who sublets the residence allotted to him will
be liable to pay enhanced licence fee or damages ten times the normal licence fee.
It further stipulates that the Government servant will be declared ineligible for
allotment of residential accommodation and disciplinary proceedings for
imposition of major penalty will be initiated against him.
5. Thus, it is clear from the aforesaid office orders that the original allottee is
personally responsible to pay enhanced licence fee and damages, etc. and is liable
to be declared ineligible for allotment of residential government accommodation
for his remaining service.
6. Learned Additional District Judge in the impugned order has noticed that
notices were issued to Mr. Rama Nand to appear before the Estate Officer as he
had failed to pay arrears of licence fee/damages and he was called upon to show
cause why Rs.1,48,444/- should not be recovered from him. Notices were initially
not issued to the respondent Mr. Ashwini Kumar Nim. In paragraphs 4.4 and 4.5
of the impugned order, it is recorded as under:-
"4.4 But so far as other liability as to payment of penal
rent/damage rent is concerned, it is seen from the Estate
Officer's record that as Sh. Rama Nand had failed to pay
the arrears of licence fee/damage rent, the department
requested the Estate Officer to initiate proceedings u/s 7
PP Act against Sh. Rama Nand. On receipt of
department's request, the Estate Officer initiated the
proceedings for recovery of damages under 7 PP Act
against Sh. Rama Nand after recording his satisfaction as
under:-
"....Copy of letter....... Dated 3.2.200(sic)
from the Directorate of Estates to the effect
WPC No.1845/2008 Page 2
that on cancellation of allotment of public
premises 3-A, Vasant Vihar, New Delhi,
w.e.f. 18.03.2004 and arrears amounting of
Rs.1,48,444/- are outstanding against Sh./Smt.
Rama Nand as damage......I am prima facie
satisfied that.....these amount arrears due as
damages for the period of unauthorized
occupation of the said premises."
It is further noted from the Estate Officer's record
that notice dated 27.3.2006 under sub section (3) of
Section 7 of PP Act was issued to Sh. Rama Nand, calling
upon him to show cause as to why an order for recovery
of damages amounting of Rs.1,48,444/-, be not passed
against him. Sh. Rama Nand was also directed to appear
before the Estate Officer on 20.4.2006. It is further seen
that subsequent notices dated 22.5.2006, 26.6.2006 and
dated nil for 24.8.2006, also were issued to Sh. Rama
Nand only. Thereafter, the matter was transferred to
another Estate Officer. The said Estate Officer issued
fresh show cause notice dated 22.8.2006 to Sh. Rama
Nand as well as to the appellant herein, for 14.9.2006.
There is nothing on record to show as to how and why
subsequent notice was issued to the appellant also.
It is further observed that Sh. Rama Nand neither
appeared before Estate Officer nor did he file any reply.
The appellant herein, in response to the above said notice,
had appeared before the Estate Officer on 14.9.2006 and
had sought time to file objections. The matter was then
adjourned to 05.10.2006 and thereafter to 09.11.2006 and
to 07.12.2006. The appellant had filed written
submissions before the Estate Officer, vide his letter dated
25.10.2006, pleading inter alia, that Sh. Rama Nand has
cheated the appellant as well as the Department for
pecuniary gain. Therefore, Sh. Rama Nand only is fully
responsible U/s 7(2) PP Act.
4.5 I have also perused the impugned order. It is seen
that the Estate Officer has observed that:-
".... Shri Rama Nand (allottee) did not
bother to attend the hearing but Shri
Ashwani Kumar Nim who has been
responded and submitted detailed objections
WPC No.1845/2008 Page 3
to the applicant's contention. The
applicant's representative furnished replies
to the objections of the Opposite Party and
both were taken on record."
7. Learned Additional District Judge has stated that the Estate Officer has not
dealt with the objections raised by Mr. Ashwini Kumar Nim in the reply filed
before him and has not given any findings on the contentions and allegations
made. It is held that the Estate Officer has passed the order in a mechanical
manner. The learned Additional District Judge has also noticed that though
initially proceedings for recovery of damages were initiated only against Mr.
Rama Nand but subsequently notice was issued to Mr. Ashwini Kumar Nim but
ultimately no order of recovery of damages was passed against the actual allottee.
The Estate Officer has not specifically given any reason why he is not passing any
order against the original allottee. Accordingly, the order passed by the Estate
Officer has been set aside but with liberty to the petitioner to initiate appropriate
action against the allottee for recovery of damages as per law. The impugned
order is justified and requires no interference. It is clarified that in case the
petitioner initiates appropriate proceedings against the original allottee, they will
be at liberty to also make the respondent-Mr. Ashwini Kumar Nim a party to the
said proceedings and make claim against him.
With the aforesaid clarification, the writ petition is disposed of.
SANJIV KHANNA, J.
JANUARY 21, 2010
VKR/P
WPC No.1845/2008 Page 4
