Delhi High Court

G R Gupta vs Lok Sabha Secretariat on 14 May, 2013

Author: V. K. Jain

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment reserved on   : 09.05.2013
                                   Judgment pronounced on : 14.05.2013

+      W.P.(C) 538/2012

       G R GUPTA                                          ..... Petitioner
                          Through: Mr Sunil K. Mittal, Mr Kshitij Mittal
                          and Mr Saurabh Balwani, Advs.

                          versus

       LOK SABHA SECRETARIAT                    ..... Respondent
                    Through: Ms Maninder Acharya, Sr. Adv with
                    Mr Yashish Chandra, Adv.
       CORAM:
       HON'BLE MR. JUSTICE V.K. JAIN

V.K. JAIN, J.

The petitioner before this Court was allotted Bungalow No. 6,

Talkatora Road, New Delhi, while on deputation with Lok Sabha

Secretariat from 14.02.1979 to 26.07.1982. The petitioner was

repatriated from Lok Sabha Secretariat on 25.07.1982, but he continued

to occupy the aforesaid house. The petitioner superannuated from

Government service on 31.12.1993. On 15.05.1996, he was appointed as

a Member of Consumer Disputes Redressal Forum, Delhi, where he

continued to work till 11.12.2000. Vide communication dated

27.08.2001, Lok Sabha Secretariat informed the petitioner that the

aforesaid house could have been retained by him only up to 02 months

from the date of his repatriation and, therefore, his occupation with effect

from 26.09.1982 was unauthorized and the allotment was deemed to have

been cancelled with effect from that date. He was accordingly required to

vacate the house and deposit market value with effect from 29.09.1982

till the vacation of the house. This was followed by reminders dated

10.09.2001 and 20.09.2001. The house came to be vacated by the

petitioner on 2.09.2001 and intimation in this regard was given by the

petitioner to Lok Sabha Secretariat on 08.10.2001.

2. On a reference made to him by Lok Sabha Secretariat, the Estate

Officer of Lok Sabha Secretariat issued notice to the petitioner under

Section 4 of Public Premises (Eviction of Unauthorized Occupants) Act,

1971 followed by a notice under Section 7(3) of the said Act. Vide order

dated 21.11.2003, the Estate Officer held that since normal licence fee

continued to be deducted from the salary of the petitioner up to

31.12.1993, and thereafter, he was entitled to retain the house for another

08 months, and also taking note that nobody asked the petitioner to vacate

the house till 15.05.1996, the date on which he was appointed as a

Member of Consumer Disputes Redressal Forum where he continued to

work till 11.12.2000, held that the petitioner had overstayed in the said

house from 01.09.1994 to 27.09.2001 for which he could be charged

licence fee at normal rate for the period from 01.09.1994 to 31.08.1994

and double of the licence fee for the remaining period from 01.09.1994 to

27.09.2001.

3. Being aggrieved from the order passed by the Estate Officer on

21.011.2003, the Lok Sabha Secretariat preferred an appeal before the

learned District Judge, Delhi. The said appeal came to be decided vide

order dated 13.09.2010. The learned District Judge held that the

occupation of the petitioner, after expiry of two months from his

repatriation from Lok Sabha Secretariat, was unlawful and unauthorized.

However, noticing that no proceedings were initiated by the respondent

against the petitioner for as many as 19 years and further observing that

had he been asked to vacate the aforesaid house, he would have sought

allotment of some other accommodation from his Department, the learned

District Judge was of the view that the petitioner was liable to pay

damages only for the period commencing 08 months after his

superannuation. As regards quantum of damages, finding that no

evidence had been led by the respondent to prove the exact damages to be

paid by the petitioner, he remitted the matter back to the Estate Officer to

assess the damages which the respondent was liable to pay for the

aforesaid period.

4. The order passed by the learned District Judge was impugned by

the petitioner before this Court by way of W.P(C) No.114/2012. In the

meanwhile, the Estate Officer, in compliance of the order dated

13.09.2010 passed by the learned District Judge, held that the petitioner

was required to pay damages in terms of recovery statement prepared by

Lok Sabha Secretariat which satisfied all the conditions enumerated in

Rule 8 of Public Premises (Eviction and Unauthorized Occupants) Rules.

The petitioner preferred an appeal against the order passed by the Estate

Officer on 13.12.2010. The said appeal came to be dismissed by the

learned District Judge vide order dated 28.11.2011. W.P.(C) No.

114/2012 filed by the petitioner was disposed of by this Court, pursuant

to the statement made by his counsel that he would be filing a fresh writ

petition challenging the order dated 28.11.2011 passed by the learned

District Judge. Now, this writ petition has been filed challenging the

orders dated 13.09.2010 and 28.11.2011 passed by the learned District

Judge.

5. Two questions primarily arise for consideration in this writ

petition. The first question is as to whether the possession of the

petitioner with effect from 01.01.1994 was unauthorized and the second

is as to what would be the quantum of damages payable by the petitioner

in case it is held that his possession of house in question was

unauthorized on or after 01.01.1994.

6. It is not in dispute that the house in question was formed part of

Lok Sabha Secretariat pool when it was allotted to the petitioner. It is also

not in dispute that the petitioner came to be repatriated from Lok Sabha

Secretariat on 26.07.1982. As per Supplementary Rules particular SR

317-B-11, a person, who is on deputation and is allotted an

accommodation by the borrowing department, is entitled to retain such an

accommodation only for a period of two months from the date of his

repatriation. Admittedly, no permission as given by Lok Sabha

Secretariat to the petitioner to continue to occupy the house in question

on expiry of two months from the date of his repatriation. Consequently,

the possession of the petitioner with effect from 26.09.1982 became

unauthorized.

7. The petitioner has placed on record copies of correspondence

exchanged between Directorate of Estate and Lok Sabha Secretariat

which would show that there was a proposal to exchange house in

question with some other accommodation in General Pool, but, there is

no material on record to show that any such exchange had actually taken

place. There is no order passed by the Lok Sabha Secretariat placing

house in question in General Pool and the Directorate of Estate passing an

order placing another accommodation of the same type, in the pool of

Lok Sabha secretariat. Therefore, the petitioner had no legal authority to

continue in occupation of house in question after 25.09.1982. Thereafter,

he could have applied to his parent department for allotment of official

accommodation to him, but he could not have continued occupation of

house in question, without prior permission from Lok Sabha Secretariat.

Be that as it may, as the learned District Judge vide his order dated

16.09.2010 held that since the respondent did not write to the petitioner

asking him to vacate house in dispute, the petitioner is not required to pay

damages till the date of his superannuation, i.e., 31.03.1993 and the said

order dated 16.09.2010 was not challenged by the respondent, no order

can now be passed, directing the petitioner to pay damages for use and

occupation of the house in question for the period from 26.09.1982 to

31.12.1993.

8. Under the Rules, a Government servant, on superannuation is

entitled to retain Government accommodation for a maximum period of

eight months. The learned District Judge has taken a view that for 08

months from the date of his superannuation, i.e., 01.01.1994 to

31.08.1994, the petitioner is not required to pay damages for use and

occupation. Therefore, the only question which requires consideration is

as to whether the petitioner was unauthorized occupant for the period

from 01.09.1994 to 27.09.2001 and if so what should be the amount of

damages which he is required to pay for unauthorized occupation of the

house during the aforesaid period. As noted earlier, the occupation of the

petitioner, after 25.09.1982 being without permission of Lok Sabha

Secretariat was unauthorized and even thereafter, the Lok Sabha

Secretariat never permitted the petitioner to continue to occupy house in

question, it can, therefore, hardly be disputed that the possession for the

period from 01.09.1994 to 27.09.2001 was also unauthorized and

unlawful. The case of the petitioner is that he was appointed as a

Member in District Consumer Disputes Redressal Forum on 15.05.1996,

a post he continued to hold up to 11.12.2000 and since a retired

Government servant is also entitled to retain official accommodation for

08 months from the date of superannuation, without payment of damages,

he is not required to pay any damages for the period up to 10.08.2001. I,

however, find absolutely no merit in this contention. The petitioner

having superannuated from Government service on 31.12.1993 and

having been appointed as a Member in District Consumer Disputes

Redressal Forum only with effect from 15.05.1996, he was not a

Government servant during the intervening period and consequently had

no legal right to retain the Government accommodation during the said

period. Therefore, on the date of his appointment as a Member in District

Consumer Disputes Redressal Forum, the petitioner was occupying house

in question, without any authority in law and, therefore, it is not open to

him to say that he is not liable to pay damages for the aforesaid period.

There is absolutely no permission as given to the petitioner by Lok Sabha

Secretariat to continue to occupy house in question. Admittedly, no order

was passed by Government of Delhi either permitting the petitioner to

continue to occupy house in question during his tenure as a Member of

District Consumer Disputes Redressal Forum. The house in question is a

house placed by Directorate of Estate, Government of India in the pool of

Lok Sabha Secretariat. An employee of Government of India has no

legal right to continue to occupy the accommodation belonging to

Directorate of Estate/Lok Sabha Secretariat, without prior permission

from the Directorate of Estate/Lok Sabha Secretariat. If a Member of

District Consumer Disputes Redressal Forum, is entitled to allotment of

accommodation by the State Government, he can apply to the State

Government for allotment of an official accommodation to him, but he

has no right to continue to occupy the accommodation which does not

belong to the State Government. Even if the accommodation belongs to

the State Government, he cannot continue to occupy the same, without

permission of the State Government unless the Rules framed by the State

Government permit him to continue to occupy the accommodation

belonging to such Government. In fact, even if he is entitled to

accommodation from the State Government, he has no legal right to

occupy or continue to occupy an accommodation which the State

Government has placed in a specific pool. Therefore, the possession of

the petitioner during the period in question, i.e., 01.09.1994 to 27.09.2001

was clearly unauthorized and unlawful for which he is required to pay

damages to the respondent.

9. Section 7(2) Public Premises (Eviction of Unauthorized

Occupants) Act, 1971 provides that where any person is, or has at any

time been, in unauthorized 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. Rule 8 of Public Premises (Eviction and Unauthorized

Occupants) Rules reads as under:-

"Assessment of damages.-In assessing damages of unauthorised use and occupation of any public premises the estate officer shall take into consideration the following matters, namely :

       (a)     the purpose and the period for which the
               public premises were in unauthorised
               occupation;

       (b)     the nature, size and standard of the
               accommodation available in such premises;

       (c)     the rent that would have been realised if the
               premises had been let on rent for the period
               of unauthorised occupation to a private
               person;





        (d)     any damage done to the premises during the
               period of unauthorised occupation;

       (e)      Any other matter relevant for the purpose of
               assessing the damages.

The contention of the learned counsel for the petitioner is that no

evidence was led by the respondent before the Estate Officer to prove as

to what the rent that would be realized if the house in question had been

let out on rent for the period of unauthorized accommodation to a private

person and, therefore, there was no material available to him to assess the

damages. He also contended that the statement prepared by Lok Sabha

Secretariat calculating the amount of damages on the basis of office

memorandums, issued by Government of India from time to time could

not have been the basis for assessment of damages. I, however, find no

merit in this contention. Clause (e) of Rule 8 enables the Estate Officer

to take into consideration any material which would be relevant for the

purpose of assessing the damages and the office memorandum, issued by

Government of India from time to time, fixing the rate of damages for

unauthorized occupation of General Pool residential accommodation

certainly cannot be said to be a matter irrelevant for the purpose of

assessing damages in terms of the said Rule. As submitted by the learned

counsel for the respondent, the rates of damages for unauthorized

occupation of Government accommodation are fixed by the Government

after carrying out survey in various localities to assess the market

reference, prevailing from time to time and in fact such rates fixed by the

Government are less than the actual market rates. The purpose of fixing

rates of damages for unauthorized occupation of Government is to enable

the Estate Officer to quantify damages for such occupation, without the

Government undertaking the exercise of collecting and producing

evidence for the purpose of such assessment. The Government having

already undertaken such an exercise in the form of market surveys before

fixing such rates, it would neither be necessary nor practicable for the

Estate Officer to undertake such an exercise. Therefore, in my view, the

Estate Officer was fully justified in quantifying damages on the strength

of the office memorandums, issued by Government of India from time to

time, fixing the rates of damages for unauthorized occupation of General

Pool accommodation. In fact, the market rates prevalent in respect of

house in question would be more than rates of damages fixed by the

Government of India from time to time since the house which remained

in unauthorized occupation of the petitioner is situated in a prim locality

falling in Lutyen Zone. It would be unrealistic to say that the market

rates in such prime locality would be less than the rates of damages fixed

by the Government from time to time. In any case, the Estate Officer

having accepted the rates notified by Government of India from time to

time for assessment of damages for unauthorized occupation of house in

question and the learned District Judge having dismissed the appeal filed

by the petitioner, there no good reason for this Court, while exercising

jurisdiction under Article 227 of the Constitution, to interfere with the

finding recorded by the Estate Officer and accepted by the learned

District Judge.

10. The learned counsel for the petitioner, in support of his contention

that before levying damages, the occupant has first to be adjudged as

unauthorized occupation of the public premises in question, has relied

upon the decision of Supreme Court in Shangrila Food Products Ltd. v.

Life Insurance Corporation of India 1996(2) RCR 221. There is no

quarrel with the proposition of law espoused by the learned counsel for

the petitioners. But, in the case before this Court, the petitioner has been

found to be in unauthorized occupation of house in question since he

continued to occupy the said house beyond two months from the date of

his repatriation on 26.07.1982 and even after expiry of 08 months from

the date of his superannuation from Government service on 31.12.1993.

11. The learned counsel for the petitioner has referred to the decision

of this Court in Smt. Indrawati Kapoor etc. v. U.O.I. 1984 RLR 241 in

support of his contention that the respondent was required to prove,

before the Estate Officer, the rent which house in question would have

fetched had it been let out to a private person during the period the

petitioner remained in its occupation. A perusal of the judgment would

show that in the aforesaid case, the learned Additional District Judge had

taken the view that the market rent of property in question could be at

least Rs 700/- per months and the Estate Officer had leniently assessed

the matter. A perusal of the judgment would show that the plea of the

appellant before the Estate Officer was that he had not been supplied the

details as to how the rent or the so called damages had been calculated. It

was noted by this Court that there was no record that the property in

dispute would have fetched the rent for which damages had been assessed

and the Additional District Judge had relied on his own personal

assessment that similar properties could have fetched the rent of Rs 700/-.

This Court was of the view that such personal assessment by the learned

District Judge was a sheer conjecture which could not be accepted as the

basis for imposing damages. It was, in these circumstances, that the

Court held that since the Government had not proved the actual damages

which had been suffered by it, the appellant should pay twice the standard

licence fee towards damages. However, in the case before this Court,

neither the Estate Officer nor the District Judge has assessed damages on

the basis of their own estimate or opinion. The rate of damages fixed by

the Estate Officer and accepted by the learned District Judge are based

upon office memorandums, issued by Government of India from time to

time fixing the rate of damages for unauthorized occupation of

Government accommodation. No such office memorandums were

produced by the Government in the case of Smt. Indrawati Kapoor

(supra). Therefore, this judgment does not help the petitioner before this

Court.

12. It was lastly contended by the leaned counsel for the petitioner that

the Estate Officer has no legal right to recover damages which had

become time barred on the date reference was made to him by Lok Sabha

Secretariat. In support of his contention, he has relied upon the decision

of Supreme Court in New Delhi Municipal Committee vs. Kalu Ram and

Anr. (1976)3 SCC 407. A perusal of the above-referred judgment would

show that the Court was dealing with a matter of assessment of rent under

sub-section (1) of Section 7 of Public Premises (Eviction of Unauthorized

Occupants) Act and not a matter relating to recovery of damages for

unauthorized occupation of any public premises, under sub-section (2) of

the said Section. Therefore, the aforesaid judgment does not apply to the

case before this Court. It would be seen from a careful examination of

Section 7 of the Act that the expression "arrears of rent payable", is used

in sub-section (2) and it was the expression "payable" used in sub-section

(1) which was interpreted by the Apex Court to mean that it should be

paid and it was in this context that the Apex Court observed that if the

person in arrears raises a dispute as to the amount, the Estate Officer in

determining the amount payable cannot ignore the existing laws and if the

recovery of any amount is barred by limitation, it is difficult to hold that

the Estate Officer should still insist that the said amount was payable.

The learned counsel for the respondent, on the other hand, has

drawn my attention to the decision of a Division Bench of Madhya

Pradesh High Court in L.S. Nair v. Hindustan Steel Ltd., Bhilai and Ors.

AIR 1980 Madhya Pradesh 106, where the Court, inter alia, held as

under:-

"10. It was also submitted that the recovery of damages for a period beyond 3 years was time barred. The Limitation Act has no application to proceedings before the Estate Officer who is not a Court. Learned counsel for the petitioner relied upon the case of Kalu Ram v. New Delhi Municipal Committee, (1965) 67 Pun LR 1190 in support of his submission. There is nothing in Section 7(2) which authorises the Estate Officer to assess the damages on account of the use and occupation of the premises and by order require the person to pay the damages, to show that there is any rule of limitation by which the Estate Officer is governed. As the Limitation Act has no application to proceedings before the Estate Officer and as the jurisdiction of Civil Court is entirely barred in matters governed by the Public Premises Act, it is difficult to accept the argument that there is any period of limitation for recovery of damages. The Punjab case on which reliance was placed, construed the words "rent payable" as they occurred in Section 7 (1) of the Public Premises Act, 1958, and construed them to mean "rent legally recoverable by a suit." The case has no application for construing Section 7(2) of the Public Premises Act, 1971, which deals with the power to assess and order payment of damages and where the language used is entirely different. Further, Section 15 of the 1971 Act now bars a suit and the remedy under the Act is

the only remedy which can be availed of. In such a situation, the Limitation Act cannot be inferentially applied to proceedings before the Estate Officer."

I am in full agreement with the reasoning given by the Madhya

Pradesh High Court and, therefore, hold that the limitation prescribed

under Limitation Act, 1963 has no application to recovery of damages

under Section 7(2) of Public Premises (Eviction of Unauthorized

Occupants) Act, 1971.

13. Vide office memorandum dated 31.03.1993, Government of India

revised the rate of damages to Rs 50 per square metre for type V and

above accommodation. The said damages were revised to Rs 80 per

square metre with effect from 01.06.1995, Rs 95 per square metre with

effect from 01.11.1997, Rs 110 per square metre with effect from

01.11.1999. The computation sheet prepared by Lok Sabha Secretariat

which was applied by the Estate Officer and accepted by the learned