Delhi High Court

Syed Azhar Ahmed vs Northern Railways & Ors. on 21 September, 2010

Author: Kailash Gambhir

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                     W.P. (C ) No. 5336/2008
                                Judgment delivered on: 21.09.2010

Syed Azhar Ahmed                                     ..... Appellant
                               Through: Mr. Rajat Aneja, Advocate

                               Versus

Northern Railways & Ors.                 ..... Respondent
                   Through: Mr. J.K. Singh, Advocate

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1. Whether the Reporters of local papers may               Yes
   be allowed to see the judgment?

2. To be referred to Reporter or not?                       Yes

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

KAILASH GAMBHIR, J. Oral:
*

1. By this petition filed under Article 226 of the Constitution of

India, the petitioner seeks quashing of the letter dated 7.9.2006

issued by the respondents whereby a sum of Rs. 4,60,430/- was

imposed on the petitioner towards damages/rent w.e.f 25.5.2004 to

31.7.2006.

2. Brief facts of the case relevant for deciding the present

petition are that the petitioner is an employee of the Railway

Protection Force under the respondent since 1982 and on

16.9.1996 he was posted at New Delhi and was allotted a Type III

quarter bearing no. L-5, Delhi Sarai Rohilla Station Area, New Delhi

on 1.5.1997. Thereafter he was transferred to the Railway Coach

Factory at Kapurthala, Punjab but his family stayed back in Delhi in

the said quarter and the petitioner sought to retain the said quarter

for a period of one year. After making several representations, the

respondent passed an order dated 7.9.2006 imposing a sum of Rs.

4,60,730/- as damages from rent to be recovered from the salary of

the petitioner. After making a representation, the respondent again

on 18.10.2006 passed an order that a sum of Rs. 6000/- would be

deducted each month from the salary of the petitioner. Thereafter

the petitioner was again transferred to Delhi and consequently he

vacated and handed over the physical possession of the said quarter

on 19.11.2007 to the respondent. Thereafter, the respondent on

23.1.2008 allotted the same quarter to the petitioner. However

feeling aggrieved with the imposition of the huge amount of

damages, the petitioner has preferred the present petition seeking

quashing of the letter dated 7.9.2006.

3. Mr. Rajat Aneja, counsel appearing for the petitioner at the

very outset submits that the respondent has not initiated any

proceedings against the petitioner under the provisions of the

Public Premises Act for the recovery of damages in question. In

support of his arguments, counsel for the petitioner has placed

reliance on the judgment of the Apex Court in N.D. Thandani Vs.

Arnavaz Rustom (2004) 1 SCC 656.

4. Opposing the present petition, counsel for the

respondent, on the other hand, in response to this argument

submits that under the policy formulated by the respondent steps

for the recovery and damages can be straightway initiated without

even resorting to the provisions of the Public Premises Act. In

support of his argument, counsel for the respondent has placed

reliance on the judgment of the Apex Court in Secretary, ONGC

Ltd. & Anr. Vs. V.U. Warrier (2005) 5 SCC 245.

5. I have heard ld. counsel for the parties at considerable

length on the limited issue as to whether the respondent can

proceed to recover the arrears of damages from the petitioner for

overstaying in the said quarter after his transfer to the Railway

Coach Factory, Kapurthala without adhering to the provisions of

Section 7 of the Public Premises Act, 1971.

6. In the present petition, the petitioner has sought

directions to quash the letter dated 07.09.2006 issued by the

respondents whereby demand for a sum of Rs.4,60,430/- was raised

towards damages for overstaying in Quarter No. L-5, Delhi Sarai

Rohilla Station Area, New Delhi for the period w.e.f. 25.05.2004 to

31.07.2006. The petitioner has given some justification for

overstaying in the said premises while the respondent has raised

serious disputes on the reasons advanced by the counsel for the

petitioner for his over stay. Without taking into consideration the

contentions raised by both the parties on the factual matrix of the

case, this court is of the view that this writ petition can be disposed

of on the short ground as to whether the respondent could

proceed to recover damages without taking recourse to the

provisions of the Public Premises Act, 1971. The contention raised

by the counsel for the respondent is that under the policy of the

Railways, the respondent is competent to deduct the amount of

damages from the salary or other benefits of its employees.

Counsel also submits that under Article 309 of the Constitution of

India, the said policy framed by the Railways has a statutory force.

Counsel for the respondent, however, has not placed on record any

such statutory rule to satisfy this court whereunder the

respondent/Railways could take steps to recover the rent/damages

from its employees. It is true that the Railways, like any other

employer, has every right to recover the damages from its

employees who over stay in the premises either on account of their

transfer or retirement or for any other purpose but the precise

question arising in the present petition is that whether the

respondent without resorting to the provisions of the Public

Premises Act could straightway recover the damages by deducting

it from the salary of the petitioner. Counsel for the respondent

has not brought forth any specific regulation in this regard framed

by the Railways under which the respondent can proceed to recover

the said damages. So far the case of Secretary ONGC (Supra)

cited by the counsel for the respondent is concerned, the ONGC

had framed regulations deriving its power under Section 32 (1) of

the ONGC Act and the regulations were referred to as the Oil and

Natural Gas Commission (Death, Retirement and Terminal Gratuity)

Regulations, 1969 and referring to the said regulations, the Apex

Court held that the said regulations were statutory in nature and

were therefore enforceable in the court of law. Regulation 5 of the

said regulations provides for recovery of dues of the Commission

and in the face of the said regulations, the Apex Court took a view

that the Commission has a right to effect recovery of its dues from

any officer without his consent from gratuity. So far the facts of

the present case are concerned, the respondent has not placed on

record any such statutory regulation which can give the right or

power to the respondent to recover the damages straightway

without taking recourse to the Public Premises Act. The respondent

has not disputed the fact that so far the eviction in such a case is

concerned, the only remedy available to the respondent is to

proceed under the Public Premises Act 1971, but for the recovery of

damages the stand of the respondent is that it can straightaway

deduct the same from the salary of the employee. However, I do

not find any rationality in the said stand taken by the respondent.

Once the remedy has been provided by the legislature under a

particular statute then recourse should have been taken by the

respondent under the said statute instead of devising its own

procedure to recover the rent/damages. It is quite strange that for

seeking eviction the stand of the respondent is that the provisions

of the Public Premises Act would be applicable but when it comes to

the recovery of damages, the stand of the respondent is contrary

that the provisions of the Public Premises Act would not be

applicable. The argument of the counsel for the respondent is thus

misconceived and devoid of any merit and thus merits outright

rejection. It is not in dispute that the petitioner being an employee

of the respondent was occupying the public premises and therefore

was liable to pay the dues for overstaying. The respondent has

every right to proceed against the petitioner under the said Act for

the recovery of damages in terms of Section 7 of the Public

Premises Act. Section 7 of the Public Premises Act is reproduced as

under:-

"7. Power to require payment of rent or damages in respect of public premises. (1) Where any person is in arrears of rent payable in respect of any public premises, the estate officer may, by order, require that person to pay the same within such time and in such instalments as may be

specified in the order.

(2) Where any person is, or has at any time been, in unauthorised occupation of any public premises, the estate officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of the use and occupation of such premises and may, by order, require that person to pay the damages within such time and in such instalments as may be specified in the order.

3*[(2A) While making an order under sub-section (1) or sub- section (2), the estate officer may direct that the arrears of rent or, as the case may be, damages shall be payable together with simple interest at such rate as may be prescribed, not being a rate exceeding the current rate of interest within the meaning of the Interest Act, 1978 (14 of 1978).]

(3) No order under sub-section (1) or sub-section (2) shall be made against any person until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice, why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the estate officer."

7. It is to be evinced from the above provision that the petitioner

is required to be proceeded under Section 7(1) if the petitioner was

in authorized occupation or under Section 7(2) if he was in

unauthorized occupation. In either event, sub-section (3) provides

that no order can be passed under sub-section (1) or sub-section (2)

unless and until a notice in writing is issued to the person

concerned calling upon him to show cause as to why an order under

the aforesaid Section 7(1) and 7(2) ought not to be made.

8. Although in some of the letters, the respondent has taken a

stand that for vacating the said premises they will proceed against

the petitioner under the Public Premises Act and for recovery of

damages they can deduct the same from his salary. No doubt those

letters were written by the respondent at the time when the

petitioner was occupying the said quarter in question but now the

petitioner is not in occupation of the said quarter as he has already

handed over the possession of the premises on 19.11.2007. The

mandate of Section 7 of the Public Premises Act is quite explicit as

where in case a person is in arrears of rent or damages payable by

him in respect of any public premises, the Estate Officer may pass

an order requiring that person to pay the same within such time as

may be specified in that order. It would be relevant to refer to the

judgment of this court in the case of Yugal Kishore vs. Delhi Jal

Board (2007) 140 DLT 374 where after taking note of the scheme

of the act it was held that:

"9. A comprehensive procedure has been prescribed under the Act for eviction of unauthorised occupants from public premises and for incidental matters including recovery of rent/damages in respect of public premises. Unauthorised occupation has been defined in Section 2(g) of the Act to mean occupation of public premises by any person without any authority and includes the continuance in occupation by any person of the public premises after the authority under which he was allowed to occupy the premises in question has expired. The Estate Officers are empowered to issue show cause notice to the unauthorized occupants as per the provision of Section 4 of the said Act and after considering the reply and after personal hearing, if any, the Estate Officer is empowered to take possession of the public premises. He is further empowered to order for payment of rent or damages in respect of premises under unauthorized occupation as per the provision of Section 7 of the said Act. Admittedly, the provisions of the Act were not invoked by the respondent before raising a demand on the petitioner, and deducting a sum of Rs. 20,237.70/- from his retiral benefits.

10. Reliance has rightly been placed by the counsel for the petitioner on the judgment rendered by this Court in the case of Kanhaiya Lal Yadav (supra), wherein it has been held as under:

Aggrieved by the order passed by the respondent on 21.09.1992 for recovery of license fee/damages, the petitioner has filed the present petition. At the outset it has been contended by counsel for the petitioner that the Executive Engineer had no authority in law to compute damages and it could only be computed pursuant to application of the provisions of Public Premises (Eviction of Unauthorised Occupants) Act pursuant to Section 7 thereof. However, learned Counsel for the respondent has contended that as per the fundamental rules respondent was liable to recover damages. There is no dispute about the proposition of law that as per fundamental rules respondent could have recovered damages if they could have found that the petitioner was in unauthorised occupation of the premises, which was given to him when he was in service. For determination and adjudication it was imperative on the part of the respondent to have served the petitioner with a show cause notice as to why he be not declared unauthorised occupant in the

premises under Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act and thereafter Section 7 of the Act empowers the Estate Officer to calculate damages. Respondent having not taken recourse to either Section 4 or Section 7 of Public Premises (Eviction of Unauthorised Occupants) Act would not have levied damages unilaterally without affording any opportunity to the petitioner in accordance with law.

11. In light of the fact that in the present case neither any notice was issued to petitioner under Section 4 of the Act nor was any notice to show cause issued to him under Section 7 of the Act before deducting the said amount of alleged damages from the retiral dues of the petitioner, such an act of the respondent in levying damages on the petitioner unilaterally, without affording him an opportunity of hearing, and without taking recourse to the provisions of the Act cannot be sustained."

In the facts of the present case as well no proceedings had

been initiated by the respondent against the petitioner under the

Public Premises Act although a specific amount was quoted by the

respondent towards the recovery of damages in terms of its policy.

10. Taking into consideration the aforesaid legal position

and the arguments advanced by both the counsel for the parties,

this court is of the considered view that without taking recourse to

the Public Premises Act, the action of the respondent in recovering

the said damages from the salary of the petitioner is illegal and

therefore the impugned order dated 07.09.2006 is hereby set aside.

However, the respondent will be at liberty to proceed against the

petitioner to recover the said damages under the Public Premises