Delhi High Court
Raj Kumar Sarkar vs Union Of India on 27 April, 2011
Author: Kailash Gambhir
IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 4810/2010 & CM. No. 9517/2010
% Judgment delivered on: 27.04.2011
Raj Kumar Sarkar ...... Petitioner
Through: Ms. Amita Gupta, Advocate
Versus
Union of India ..... Respondent
Through: Mr.Praveen Kumar, Advocate.
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 challenge the order dated 28th January, 2010 passed by the Addl. District Judge in exercise of his powers under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
2. Brief facts of the case relevant for deciding the present petition are that the petitioner was transferred to Northern Railway, Delhi on 31.12.1991 and was allotted quarter bearing 15/B, Railway Colony, Tilak Bridge, New Delhi in May, 1993. He was thereafter transferred to Secunderabad on 3.7.2000 and returned to Delhi on1.7.2001 till 31.3.2002, by which date the said quarter was regularized in his name. He worked at Secuderabad from 1.4.2002 to 1.4.2004 and then at Allahabad from 2.4.2002 to 24.3.2006. That the petitioner made various representations for retention of the said quarter since his posting at Allahabad on medical grounds but a show cause notice dated 10.2.2005 under section 4 & 7 of the Public Premises Act was sent and vide order of the Estate officer dated 27.9.2005 , the petitioner was declared as unauthorized occupant. Consequently the petitioner filed an appeal which was dismissed vide judgment and decree dated 28.1.2010. Feeling aggrieved with the same, the petitioner has preferred the present petition.
3. Ms. Amita Gupta, learned counsel for the petitioner submits that the petitioner was entitled to retain the accommodation for the period w.e.f. 1.4.2002 to 31.5.2003 due to the academic session of the daughter of the petitioner and from 2.4.2004 to 24.3.2006 in terms of Circulars dated 6.1.97 and 25.9.2003 on account of the transfer of the petitioner to a new zone at Allahabad. Counsel also submits that the petitioner was not given any rent allowance for the period he retained the said accommodation. Counsel further submits that the respondent cannot charge a penal rent once the petitioner was not given any house rent for the said relevant period. Counsel also submits that in the case of one Mr. Mahesh Kumar the respondent has only charged four times of normal licence fee instead of charging penalty from him.
4. Mr. Praveen Kumar, counsel appearing for the respondent, on the other hand, supports the judgment passed by the learned District Judge. He submits that the petitioner was permitted to retain the railway accommodation at Delhi upto 31.03.2002 although he was transferred to Secunderabad and in this manner, he had retained the railway accommodation for a period of one year and eight months. Counsel further submits that the petitioner was rightly not given the benefit of house rent allowance on account of his unauthorized occupation of the said railway accommodation.
5. I have heard the learned counsel for the parties and carefully gone through the records.
6. It is the admitted case between the parties that the petitioner was transferred to South Central Railway, Secunderabad on 03.07.2000 and the petitioner was granted extension to retain the said railway accommodation for a period of one year and eight months. It is also not in dispute that the petitioner retained the said railway accommodation till 30.04.2006 which would mean that the petitioner had overstayed in the said railway accommodation as an unauthorized occupant for such a long period. The contention of counsel for the petitioner is that due to academic session of the daughter of the petitioner the petitioner was entitled to retain the said accommodation for the period w.e.f. 01.04.2002 to 31.05.2003. This contention raised by counsel for the petitioner is totally misplaced, as the petitioner has not placed on record any such request made by the petitioner with the respondent to seek retention of the said railway accommodation due to the academic session of the daughter of the petitioner. In any event of the matter, the petitioner had retained the said accommodation for a period of one year and eight months and no further request for the retention of the said accommodation by the petitioner on the ground of the alleged academic session of the daughter of the petitioner could have been entertained by the respondent. The argument raised by counsel for the petitioner is devoid of any merit and the same deserves outright rejection.
7. The second contention raised by counsel for the petitioner is that in terms of the circulars dated 06.01.1997 and 25.09.2003, the petitioner was further entitled to retain the said railway accommodation on account of his transfer to a new zone at Allahabad. No doubt, the said circular dated 06.01.1997 does permit the official to retain the railway quarter for a period of one year in the event of transfer of such an officer at the newly set up zonal railway and the said period of one year was further increased to a period of two years vide circular dated 25.09.2003. Nevertheless, these circulars also do not help the case of the petitioner as they protect those railway officials to retain the railway accommodation allotted in their favour at the previous place of posting. The previous place of posting of the petitioner was either at Secunderabad if the circular dated 06.01.1997 is taken into consideration and at Allahabad, if the circular dated 25.09.2003 is taken into consideration. The petitioner thus cannot derive any benefit from these circulars and, therefore, the second argument raised by counsel for the petitioner also merits rejection. To my surprise, the petitioner never raised these pleas before the learned Estate Officer as he did not choose to contest the proceedings initiated by the respondent before the Estate Officer under Sections 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. The court of first instance is the fact finding court and having chosen not to appear before the Estate Officer, the petitioner cannot be allowed to build up a new case before the writ court which will not act as a court of second appeal to re-appreciate the findings of facts arrived at by the courts below.
8. Another argument taken by the counsel for the petitioner is that the respondent could not have charged penal rent once the petitioner was not being paid the house rent allowance. This argument of counsel for the petitioner also cannot be appreciated as due to the unauthorized occupation of the railway accommodation the petitioner was rightly not paid the house rent allowance as the liability of the petitioner to pay the damages certainly would be much more than the amount which was payable by the petitioner towards the house rent allowance.
9. In the light of the above discussion, I do not find any illegality, perversity or infirmity in the orders passed by both the courts below.
10. There is no merit in the present appeal and the same is hereby dismissed.
April 27, 2011 KAILASH GAMBHIR, J
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