Shri Harish Chander vs Union Of India & Others
2010 Latest Caselaw 1451 Del

43.
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+       W.P.(C) 1784/2010
                                        Date of decision: 16th March, 2010

        SHRI HARISH CHANDER                 ..... Petitioner
                       Through Mr. Asish Nischal, Advocate.

                         Versus

        UNION OF INDIA & ORS.              ..... Respondents
                       Through Mr. A.K. Bhardwaj, Advocate for
                       UOI.
        CORAM:
        HON'BLE MR. JUSTICE SANJIV KHANNA

                                  ORDER

1. The petitioner retired as the President of Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi after completing his tenure of three years on 12th April, 1995. During his tenure as the President, the petitioner was allotted and had occupied flat No. D-5, M.S. Flats, Baba Kharag Singh Marg, New Delhi but the said flat was not vacated by him till 23rd February, 2000.

2. The Estate Officer vide his order dated 15th September, 2005 held that the petitioner is liable to pay damages amounting to Rs.7,43,737/- for unauthorized occupation of the government flat after retirement. By the impugned order dated 7th October, 2009, the appeal filed by the petitioner under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the Act, for short) has been dismissed and it has been held that the petitioner is liable to pay Rs.7,43,737/- for unauthorized occupation during the period between 12th

W.P. (C) No. 1784/2010 Page 1 October, 1995 to 23rd February, 2000.

3. Learned counsel for the petitioner has submitted that the petitioner was not an unauthorized occupant as he was authorized to occupy the said flat by an interim stay order passed by this Court in W.P. (C) No. 2399/1998 and this interim order was modified vide order dated 24th December, 1999 by which the petitioner was granted time upto 29th February, 2000 to vacate the premises.

4. The petitioner after his retirement as President of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi on 12th April, 1995 had filed a petition under Section 19 of the Administrative Tribunals Act, 1985 that he still retains his lien on the post of the Vice-President. The said petition was dismissed by the Administrative Tribunal. This order was made subject matter of challenge before the High Court in W.P. (C) No. 2399/1998. On an interim application filed by the petitioner, by order dated 18th May, 1998 the Court directed that the petitioner would not be evicted from the government accommodation, which he was presently occupying and the government would not take coercive measures to recover damages or penalty on account of use and occupation of the said premises. This writ petition was ultimately dismissed vide judgment dated 24th December, 1999. After hearing the dismissal order, counsel for the petitioner made an oral prayer that he should be permitted to occupy the government accommodation for a period of three months as the petitioner had to make alternative arrangement for the purpose of residential accommodation. In view of the prayer made, the Court granted time to the petitioner to vacate the premises upto 29th February, 2000.

5. It is not possible to accept the contention of the petitioner that the orders passed by this Court in W.P. (C) No. 2399/1998 had the effect of

W.P. (C) No. 1784/2010 Page 2 authorizing petitioner‟s occupation of the flat and regularizing the same. On an application filed by the petitioner, an interim order was passed in W.P. (C) No. 2399/1998, which had the effect of protecting the petitioner against forcible eviction and coercive measures to recover damages or penalty on account of use and occupation of the premises. Extension of three months time was also granted on the oral prayer made by the petitioner at the time of dismissal of the writ petition on 24th December, 1999. These two orders did not go into the question whether the petitioner will be liable to pay penalty or damages for the period he has occupied the premises after his retirement as President on 12th April, 1995. This question was not examined and decided. The writ petition was dismissed and no relief was granted. Payment of damages/penalty was not waived or quashed. It is not possible to accept the contention of the petitioner that during this period the petitioner is only liable to pay nominal licence fee and not penalty and damages. The doctrine of actus curiae neminem gravabit (an act of court shall not cause prejudice to any man) is applicable. The respondents are entitled to be compensated for the period the petitioner had continued to unauthorisedly use and occupy the premises/flat even after his retirement. In ONGC and Another versus Association of Natural Gas Consuming Industries and Others, (2001) 6 SCC 627 the Supreme Court has observed:-

"12. Even if this be not so, there can be little doubt that on the principle of restitution, ONGC is entitled to be compensated. It now well settled by a series of decisions of this Court that where as a result of interim orders of this Court, payment is not made but subsequently after the case is disposed of, money is required to be paid then the recipient would be entitled to charge interest by way of restitution. For this Mr. B. Sen had drawn our attention to Kerala SEB v.

W.P. (C) No. 1784/2010 Page 3 MRF Ltd., Gursharan Singh v. NDMC, Kanoria Chemicals & Industries Ltd. v. U.P. SEB, Calcutta Jute Mfg. Co. v. CTO, Kartar Singh v. State of Punjab and Agricultural and processed Food Products v. Oswal Agro Furane. It would be sufficient to refer here to one passage from the decision in Gursharan Singh case where at p. 466 the Court observed as follows: (SCC para13) "13. In view of the legal maxim „actus curiae neminem gravabit' which means that an act of court shall prejudice no man, NDMC is justified in making a claim for interest over the arrears which have remained unpaid for more than 12 years because of the interim orders passed by this Court. This aspect of the matter has been examined by this Court in the case of Raj Kumar Dey v. Tarapada Dey. Although in the interim orders it has not been stated that in event of dismissal of the appeals and the writ petition, the appellants and the writ petitioner shall be liable to pay interest over the arrears of the licence fee, but that shall not debar this Court from passing any order in respect of payment of reasonable interest over the said amount."

6. Similarly in Karnataka Rare Earth and Another versus Senior Geologist, Department of Mines & Geology and Another, (2004) 2 SCC 783 the Supreme Court referred to the earlier decision in the case of South Eastern Coalfields Limited versus State of M.P. and Others, (2003) 8 SCC 648 and observed:-

"10. In South Eastern Coalfields Ltd. this Court

W.P. (C) No. 1784/2010 Page 4 dealt with the effect on the rights of the parties who have acted bona fide, protected by interim orders of the court and incurred rights and obligations while the interim orders stood vacated or reversed at the end. The Court referred to the doctrine of actus curiae neminem gravabit and held that the doctrine was not confined in its application only to such acts of the court which were erroneous; the doctrine is applicable to all such acts as to which it can be held that the court would not have so acted had it been correctly apprised of the facts and the law. It is the principle of restitution which is attracted. When on account of an act of the party, persuading the court to pass an order, which at the end is held as not sustainable, has resulted in one party gaining advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the act of such party, then the successful party finally held entitled to a relief, assessable in terms of money at the end of the litigation, is entitled to be compensated in the same manner in which the parties would have been if the interim order of the court would not have been passed. The successful party can demand: (a) the delivery of benefit earned by the opposite party under the interim order of the court, or (b) to make restitution for what it has lost."

7. Learned counsel for the petitioner has referred to Shangrila Food Products Limited and Another versus Life Insurance Corporation of India and Another, (1996) 5 SCC 54. In the said judgment, it has been held that the High Court while exercising jurisdiction under Article 226 of the Constitution exercises extraordinary jurisdiction keeping in mind principles of equity, which require promotion of honesty and fairplay. While exercising the said jurisdiction, the Court can ask the party to count

W.P. (C) No. 1784/2010 Page 5 for unfair advantage/gain and require a party to shed unfair gain before granting relief. The said observations do not in any way support the contention of the petitioner.

The writ petition accordingly has no merit and is dismissed.

SANJIV KHANNA, J.

        MARCH 16, 2010
        VKR




W.P. (C) No. 1784/2010                                                 Page 6