Nb/Sub Ram Niwas Sharma vs Uoi & Ors.
2010 Latest Caselaw 3415 Del

10
*IN THE HIGH COURT OF DELHI AT NEW DELHI

               +      W.P.(C)No.7957/2005

                                     Date of Decision : 21st July, 2010
%

      NB/SUB RAM NIWAS SHARMA            ..... Petitioner
                    Through : Mr. S.M. Dalal, Adv.

                      versus


      UOI & ORS.                                ..... Respondents
                           Through : Ms. Avnish Ahlawat with
                                     Mr. Nitesh Kumar Singh, Advs.
CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?

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

GITA MITTAL, J. (Oral)

1. By this writ petition, the petitioner before this Court has

sought the following prayers:-

"(i) file before this Court Army HQ Part--II order No.O/115/Sigs/2004 dt. 07.12.2004 alongwith record of proceedings to award by summary trial punishment of "severe reprimand" to the petitioner on 19.8.2004 by respondent No.5; and quash the said orders.

(ii) direct respondents to give all consequential benefits to the petitioner resulting from setting aside the punishment of "severe reprimand" to the petitioner as awarded on 19.8.2004 by respondent No.5.

(iii) file before this Court the record of proceedings leading to order dt. 3.3.2005 for recovery of damage rent of Rs.29,803/-

from the petitioner and quash the same.

(iv) award costs of this petition all throughout in favor of the petitioner and against the respondents."

2. A statement is made by Mr. S.M. Dalal, learned counsel

appearing for the petitioner that he has instructions not to

press prayers No.1 and 2 and prays for leave to withdraw the

same. Accordingly, prayers No.1 and 2 noticed above are

hereby dismissed as not pressed.

3. So far as the prayer No.3 is concerned, it appears that the

respondents were of the view that the petitioner had sub-let his

allotted quarter No.J-7/9, R.R. Colony, Delhi Cantonment to one

Subedar R.P. Ray. The respondents consequently passed an

order dated 22nd October, 2003 directing the petitioner to

immediately vacate the government accommodation. As the

petitioner failed to do so, the respondents passed further

orders dated 6th November, 2003 and 27th November, 2003

reiterating their earlier directions. In the order dated 27th

November, 2003, the respondents threatened the petitioner

that he would be liable for payment of market rate of rent. The

petitioner submitted an application dated 30th December, 2003

for waiver of the charge of market rent.

4. It appears that the above correspondence culminated in

the respondents passing an order dated 6th February, 2004

declaring him as unauthorized occupant of the said

government accommodation after issuance of the notice to

show cause dated 23rd January, 2004 and recording of evidence

by an officer to whom the same was entrusted. The

respondents also appear to have invoked provision of Army

Act, 1950 and proceeded to record a summary of evidence by

an order passed on 8th March, 2004 in respect of aforenoticed

continued occupation of the government accommodation by

the petitioner.

5. Finally, an order dated 3rd March, 2005 was passed

against the petitioner by Unit Accountant Barrack Store Officer

(Estate) Delhi Cantt. raising a damage rent bill for the sum of

Rs.29,803/- for the period from 1st February, 2004 to 31st

August, 2004. The petitioner has assailed this order inter alia

on the ground that the same was without authority and

jurisdiction and that the respondents could have imposed

damages and claimed the same from the petitioner only after

holding due proceedings under the provision of the Public

Premises (Eviction of Unauthorized Occupants) Act 1972.

6. The respondents have contested the petition and filed a

counter affidavit defending the aforenoticed action which was

taken by them. A stand is taken that proper legal proceedings

have been taken against the petitioner. In this background, an

order dated 13th February, 2009 was passed requiring the

respondents to keep available the record of the proceedings, if

any, which has been held before the Estate Officer.

7. It is trite that so far as the eviction of an unauthorized

occupant of public premises and imposition of damages for

continued unauthorized occupation is concerned, the statutory

provisions prescribed for the same are to be found in Sections

5, 7 and other provisions of the Public Premises (Eviction of

Unauthorized Occupants) Act 1972 alone. The Army Act, 1950

makes no provisions for recovery of possession of the public

premises from an unauthorized occupant or of levy and

recovery of damages for such action. So far as the provisions

of the Army Act are concerned, the respondents could have

proceeded for disciplinary or penal action against the

petitioner.

8. Mr. S.M. Dalal, learned counsel appearing for the

petitioner has placed reliance on the pronouncement reported

as 65 (1997) DLT 86 Lieutenant Colonel B.B. Asthana

(Retd.) vs. Union of India And Others wherein an identical

question had arisen for consideration and this Court had

authoritatively held that the respondents could have proceeded

to levy and recover damages for unauthorized occupation of

public premises only after taking recourse to the proceedings

and following the procedure prescribed in the aforesaid

enactment.

9. The legal position remains unchanged as on date.

10. The respondents are unable to point out compliance with

the Public Premises (Eviction of Unauthorized Occupants) Act

1972 in terms of the action which they have taken. In this view

of the matter, there is substance in the petitioner's contention

that the order dated 3rd March, 2005 has no basis in law and is

legally untenable.

11. Accordingly, we set aside and quash the order dated 3rd

March, 2005. The matter with regard to levy and recovery of

damages against the petitioner for his unauthorized occupation

of the aforenoticed quarter is left open and it shall be for the

respondents to proceed against the petitioner for the same in

accordance with law. We make clear that we have not

expressed any opinion on the merits of the respondent's claim.

We also direct that in view of the order that we have passed

today, the petitioner shall not be entitled to set up a plea of

limitation to the extent that matter has been pending in this

Court against the respondent's claim for damages, if set up. It

is also directed that the petitioner shall be entitled to refund of

the amount, if any, deposited by the petitioner pursuant to the

order dated 6th May, 2005.

12. This writ petition is allowed in the above terms.

13. Dasti to parties.

GITA MITTAL, J

J.R. MIDHA, J JULY 21, 2010 mk