Shankar Lal vs Assistant Commissiioner (L&E) & ...
2012 Latest Caselaw 7087 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                  Date of decision: 11th December, 2012
+                                LPA No.642/2012
       SHANKAR LAL                                      ..... Appellant
                          Through:      Mr. V.C. Gautam & Mr. Rahul
                                        Mohod, Advs.
                                     Versus

    ASSISTANT COMMISSIIONER (L&E) & ORS. ..... Respondents

Through: Ms. Sadhana Sharmam Adv. with Mr. Shashi Rattanpal, AO (L&E) & Mr. Praveen Kumar, JCF.

CORAM :-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This intra-court appeal impugns the order dated 28th May, 2012 of

dismissal of W.P.(C) No.3309/2012 preferred by the appellant, with liberty

to the appellant to seek his remedies, as may be available on the Civil side.

2. The appellant is employed as an Assistant Engineer with the

respondent Delhi Jal Board (DJB) and by virtue of his employment has been

allotted Quarter No.G-8/II, Okhla Water Works, New Delhi. It appears that

the appellant and certain other allottees of other quarters had carried out

unauthorized additions/alterations in their respective quarters and in which

regard in or about the year 2004 notices were issued directing them to

remove the unauthorized additions / alterations. The replies received to the

said notices were perused and while some of the notices were closed, action

against others proceeded with. As far as the appellant is concerned, he did

not give any reply to the notice and a decision was taken to give him another

opportunity to give reply failing which his quarter be cancelled. The

appellant then submitted a reply pleading that the unauthorized

addition/alteration in the form of coverage of varandah and construction of a

temporary AC sheet shed in the quarter existed since prior to the allotment in

his favour. It however further appears that in subsequent inspection on 10 th

October, 2006 it was reported that the unauthorized additions/alterations had

been removed by the appellant. However in the year 2008 a complaint was

received by the respondent DJB of the unauthorized additions/alterations

still existing and an inspection carried out in pursuance thereto also

confirmed the same. In the circumstances proceedings were initiated for

cancellation of the allotment of the quarter allotted to the appellant and

recovery of damage charges w.e.f. the date of cancellation to the date of

vacation of the quarter.

3. The appellant appealed against the aforesaid decision and a fresh

inspection of 9th January, 2009 revealed the unauthorized addition/alteration

to have been removed. Accordingly the allotment of the quarter in favour of

the appellant was restored subject to the appellant depositing damage

charges amounting to Rs.43,676/- for the period w.e.f. 23rd July, 2008 to 31st

December, 2008.

4. In view of the aforesaid, the proceedings initiated against the

appellant before the Estate Officer of the respondent DJB were dismissed as

withdrawn on 18th June, 2010.

5. Upon representation from the appellant, the damage charges were

reduced to Rs.17,139/- The damage charges of Rs.17,139/- were deducted

from the salary of the appellant. The appellant protested that the damage

could not have been levied except by the order of the Estate Officer and

which proceedings stood withdrawn; he accordingly sought refund.

6. The appellant filed the writ petition from which this appeal arises also

contending that the recovery of damage charges from him without the same

being assessed by the Estate Officer was contrary to the provisions of the

Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and

seeking refund.

7. The learned Single Judge dismissed the writ petition observing that

the appellant had not protested against the deduction from his salary and

could not maintain a writ petition seeking refund. Liberty was however

granted to the appellant to take remedies on the Civil side.

8. Notice of this appeal was issued for the reason that damages for

unauthorized occupation are required to be assessed by the Estate Officer

and could not be administratively determined.

9. The counsel for the respondent DJB has appeared and has on the basis

of the record produced before us demonstrated that though decision had been

taken, not only to initiate proceedings under the PP Act for eviction of the

appellant and for recovery of damages, but also to initiate disciplinary

proceedings against the appellant, as is permissible, for the reason of such

unauthorized construction in allotted accommodation but on appeal by the

appellant against the said decision, a sympathetic view was taken, not to take

disciplinary action and to withdraw proceedings before the Estate officer but

on the condition that the appellant pays such damages. For this reason only,

the allotment of quarter in favour of appellant was also restored. All this

happened in the year 2009 and when the amount of Rs.17,139/- also was

received from the appellant. The appellant however after taking advantage /

benefit of the order in departmental appeal belatedly in the year 2012 filed

the writ petition seeking refund of damages recovered from him in the year

2009.

10. We are of the opinion that the appellant cannot be so allowed to object

to the condition on which disciplinary action against him was not taken,

proceedings against him under the PP Act withdrawn and allotment of

quarter in his favour restored, particularly much later. If the appellant had

any objection to the order, he should have agitated it then and in which case,

even if there was any merit in the said objection, the respondent DJB could

have proceeded with and action before Estate Officer and the disciplinary

proceedings against the appellant.

11. For the aforesaid reasons, we do not deem it appropriate to interfere.

Dismissed.

No costs.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE DECEMBER 11, 2012 pp