J.P. Yadav vs Union Of India & Ors.
2011 Latest Caselaw 3804 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of decision: 8th August, 2011
+                                 W.P.(C) 11063/2006

         J.P. YADAV                                    ..... Petitioner
                      Through: Mr. A.S. Singh for Mr. R.V. Sinha,
                                 Adv.
                             Versus
         UNION OF INDIA & ORS.                    ..... Respondents
                      Through: Mr. B.V. Niren, CGSC for R-1.
                              AND

                                  W.P.(C) 5754/2010

         J.P. YADAV                                                ..... Petitioner
                                 Through:     Mr. A.S. Singh for Mr. R.V. Sinha,
                                              Adv.
                                            Versus
         UNION OF INDIA & ORS.                                  ..... Respondents
                      Through:                Mr. B.V. Niren, CGSC for R-1.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                  Not necessary.

2.       To be referred to the reporter or not?           Not necessary.

3.       Whether the judgment should be reported          Not necessary.
         in the Digest?



W.P.(C) 11063/2006 & 5754/2010                                             Page 1 of 7
 RAJIV SAHAI ENDLAW, J.

1. W.P.(C) 11063/2006 was filed impugning the order/judgment dated

18th May, 2006 of the Addl. District Judge dismissing the appeal under

Section 9 of the Public Premises (Eviction of Unauthorized Occupants)

Act, 1971 (PP Act) of the petitioner against the order of the Estate Officer

of eviction of the petitioner from the government accommodation allotted

to the petitioner by virtue of his employment as Operator,

Telecommunication with the Ministry of Finance, for the reason of

subletting. Notice of the petition was issued and vide interim order dated

17th July, 2006 dispossession of the petitioner from the government

accommodation stayed. However on 18th April, 2009 it was informed that

the petitioner had vacated the said government accommodation on 20 th

February, 2009. Rule was issued in the petition. Counter affidavit has been

filed by the respondents. no.1 to 4. No rejoinder has been filed by the

petitioner.

2. W.P.(C) 5754/2010 was preferred impugning the demand contained

in the letters dated 8 th September, 2009 and 10 th May, 2010 of the

Directorate of Estates demanding a sum of `7,07,874/- on account of

licence fee/damages for occupation of the aforesaid quarter and to restrain

the respondents from initiating any coercive action for recovery of the said

amounts till final adjudication of W.P.(C) 11063/2006. Notice of the said

petition was also issued and vide interim order dated 31st August, 2010 the

demand stayed. Counter affidavit has been filed by the respondents and to

which rejoinder has been filed by the petitioner.

3. The counsels for the parties have been heard.

4. As far as the challenge to the judgment of the Addl. District Judge

dismissing the appeal of the petitioner against the order of the Estate

Officer of eviction of the petitioner from government accommodation is

concerned, the allotment of the government accommodation in favour of

the petitioner was cancelled for the reason of the petitioner having been

found to have unauthorizedly and illegally sublet the same. The Estate

Officer found the petitioner to have sublet the premises to one Ms. Manju

Mehra and her husband Mr. Mayank Mehra. The said Ms. Manju Mehra

was admittedly found in the premises at the time of surprise inspection

thereof. The said Ms. Manju Mehra and Mr. Mayank Mehra are admittedly

not related to the petitioner. The Estate Officer as well as the Addl. District

Judge have found the petitioner to have taken a shifting stand with respect

to the presence of the said Ms. Manju Mehra and Mr. Mayank Mehra in

the premises and have further found that the petitioner had been unable to

prove that he and his family members as claimed by him, were in

occupation, control and possession of the government accommodation. It

was held that though the petitioner had obtained a CGHS card of a

dispensary near the government accommodation but without the name of

any of his family members therein. It was similarly held that the petitioner

though had produced a cooking gas connection in his name at the address

of the government accommodation but the same had been obtained after

the proceedings had commenced. Both, the Estate Officer as well as the

Addl. District Judge thus concluded that the petitioner had unauthorizedly

and illegally sublet the government accommodation and was thus liable for

eviction.

5. Though the petitioner has already delivered possession of the

premises but the challenge to the order of the Addl. District Judge has still

to be adjudicated since the petitioner in W.P.(C)5754/2010 is impugning

the demand for damages solely for the reason of pendency of the challenge

to the order of eviction.

6. The legislature has not provided any further appeal against the order

of the Addl. District Judge deciding the appeal against the order of the

Estate Officer. The order of the Addl. District Judge is thus final but for

the power of this Court of judicial review. However the said power of

judicial review under Article 226 of the Constitution of India cannot be

converted into an appellate power. Thus findings of fact as the finding of

subletting in the present case is, are generally not interfered with unless

shown to be perverse i.e. without any material on record and/or such which

no reasonable person could have reached.

7. The finding of the Estate Officer and of the Addl. District Judge in

the present case on the basis of the admitted presence of Ms. Manju Mehra

and Mr. Mayank Mehra in the government accommodation during the

surprise inspection, their admittedly being not related to the petitioner and

the explanation of the petitioner qua them being different at different times

are possible findings of fact and which cannot be said to be perverse. The

counsel for the petitioner even otherwise has been unable to show that the

said finding is without any basis whatsoever. The transactions as of

subletting of government accommodation are generally transactions under

a cloak and/or secretive and have to be gauged from the circumstances. No

document or proof of subletting is generally available. The pleas as taken

by the petitioner in this writ petition have already been examined by the

Addl. District Judge and cannot be revisited in exercise of powers of

judicial review. Thus the challenge to the order of eviction fails and

W.P.(C)11063/2006 is dismissed.

8. As far as the challenge in W.P.(C) 5754/2010 is concerned, the

amount of `7,07,874/- demanded from the petitioner is not only towards

arrears of licence fee but damages as well. The respondent has however

along with its counter affidavit not filed any order of the Estate Officer in a

proceeding under Section 7 of the PP Act determining the said damages.

The demand for the said amount is thus found to be but a claim of the

Directorate of Estates on the petitioner but which claim at least in so far as

for damages is concerned, the petitioner has had no opportunity to meet.

Once the petitioner is controverting the damages claimed from him, the PP

Act provides for assessment thereof under Section 7(2) of the Act and

which assessment is not found to have been done in the present case.

9. W.P.(C) 5754/2010 therefore has to be allowed to the extent of

holding that since the petitioner is disputing the claim of the respondent

Directorate of Estate for damages, the damages due from the petitioner for

unauthorized occupation of the government accommodation have to be

assessed by the Estate Officer under Section 7(2) of the Act and relegating

the respondents to the said assessment. It is however clarified that till the

said assessment, the respondents shall be entitled to withhold the dues of

the petitioner if the petitioner is superannuating or otherwise leaving the

employment.

10. The petitions are therefore disposed of. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) AUGUST 8 , 2011 pp..

(corrected and released on 24 th August, 2011).