Lt. Col. T.K. Chatterjee vs Union Of India And Ors
2016 Latest Caselaw 2462 Del

                *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of decision: 30th March, 2016

+          W.P.(C) 2610/2014, CMs No.5414/2014 & 14900/2014 (both for
           stay) 2496/2015 & 3714/2015 (both u/S 151 CPC) & 12120/2015
           (for direction)

    LT. COL. T.K. CHATTERJEE                           ..... Petitioner
                   Through: Mr. G. Tushar Rao and Mr. Mayank
                              Sharma, Advs. / Amicus Curiae with
                              the petitioner in person.
                           Versus
    UNION OF INDIA AND ORS                          ..... Respondents

Through: Ms. Barkha Babbar, Adv. for UOI CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The petition impugns the order dated 28th January, 2014 of the District

Judge, New Delhi District exercising powers as an appellate authority under

Section 9(1) of the Public Premises (Eviction of Unauthorised Occupants)

Act, 1971 (PP Act) of dismissal of appeal [PPA No.19/2013] preferred by

the petitioner against the order dated 26th April, 2013of the respondent no.2

Estate Officer under Sub-sections (2) and (2-A) of Section 7 of the PP Act

directing the petitioner to pay the sum of Rs.9,04,069/- as damages on

account of unauthorized occupation of the Ministry of Defence Pool

Accommodation No.D-II/B-48, Moti Bagh for the period from 9th July, 2008

to 18th July, 2011 at the rate of Rs.190/- per sq. mtr. i.e. Rs.24,890/- per

month.

2. The petition came up before this Court first on 29 th April, 2014 when

since none appeared on behalf of the respondents inspite of advance copy,

notice thereof was issued. Subsequently, the petitioner asked for and was

permitted to file an additional affidavit and it was made clear that there was

no interim order in favour of the petitioner and liberty was given to the

respondents to file response to the said affidavit. The petitioner thereafter

filed CM No.2496/2015 again seeking interim order on the ground that the

respondents had commenced recovery of the aforesaid amount by making

deductions from the salary of the petitioners. The said application came up

before this Court on 13th February, 2015 and 23rd February, 2015 when

finding that the petitioner was no longer represented by the advocate through

whom petition was earlier filed, Mr. G. Tushar Rao, Advocate was requested

to assist the Court on behalf of the petitioner and it was directed that till the

next date of hearing, no recovery on account of damages / arrear of rent be

made from the salary of the petitioner.

3. The petitioner also filed CM No.3714/2015 for a direction to the

respondents to remit the salary deducted and to file the documents

mentioned therein and CM No.12120/2015 impugning the order dated 28 th

January, 2014 impugning which the petition itself has been filed. The

learned amicus curiae and the counsel for the respondents were heard on 14 th

July, 2015 and judgment reserved.

4. The undisputed facts are i) that the petitioner joined Indian Army on

18th December, 1984 and was in the year 2001 allotted the accommodation

aforesaid at Moti Bagh since he was then serving at the Headquarter of the

Ministry of Defence at Delhi; ii) that the petitioner on 8th May, 2008 was

posted to Headquarter-05, Mountain Division, FS Section and though

requested for retention of the aforesaid accommodation, but was granted

permission vide letter dated 9th May, 2008 to retain the same only for two

months i.e. till 8th July, 2008; iii) that the petitioner on 2nd June, 2008 also

sought separate family accommodation and was informed vide letter dated

6th June, 2008 that his name was entered in the Priority-I Waiting Roster for

allotment of such accommodation; iv) that though the petitioner was on 12th

October, 2009 allotted separate family accommodation at 15/296, Cariappa

Vihar but continued to reside at accommodation aforesaid at Moti Bagh till

18th July, 2011 when he vacated the same; v) that in the meanwhile the

respondent no.2 Estate Officer issued show cause notice dated 27th March,

2009 under Section 4(1) and 4(2)(b)(ii) of the PP Act to the petitioner and in

pursuance to the proceedings thereunder on 26th April, 2013 held that there

was no authority produced by the petitioner permitting the petitioner to

continue in the premises with effect from 9th July, 2008 to 18th July, 2011

and found the petitioner liable as aforesaid to pay Rs.9,04,069/- as damages

for unauthorized use and occupation.

5. The learned amicus curiae i) contended that as per Rule 61 of the

General Rules and Instructions for Allotment of Married Accommodation

from the Defence Pool the facility of retention of accommodation is

available where the child goes to Class X or XII and that the petitioner was

entitled to retain the accommodation on the said ground; ii) drew attention to

Rule 62 providing that officers posted to a field area are required to apply

for allotment of separate family accommodation and permitted to retain the

hired accommodation till the allotment thereof; iii) contended that the Estate

Officer before issuing notice dated 27th March, 2009 under Section

4(2)(b)(ii) of the PP Act had no material before him on the basis of which he

could have concluded that the petitioner was in unauthorized occupation and

thus the initiation of proceedings under the PP Act itself is bad; iv)

highlighted that the notice was issued prior to even the separate family

accommodation having been allotted to the petitioner; v) contended that

though as per the order dated 26th April, 2013 supra of the respondent no.2

Estate Officer, the amounts were threatened to be recovered as an arrear of

land revenue but were sought to be recovered by deduction from the salary

of the petitioner; vi) contended that the invocation of PP Act is contrary to

the letter dated 23rd December, 2005 of the Army Headquarters, New Delhi

to Southern, Eastern, Western, Central & Northern Command headquarters;

vii) contended that the license fee for the said accommodation was being

regularly deducted from the salary of the petitioner who was a serving

officer and the same itself is indicative of the occupation of the premises by

the petitioner being not unauthorized; viii) contended that the petitioner has

already suffered a lot of harassment by being embroiled in litigation; ix)

drew attention to the order dated 12th March, 2015 of the Armed Forces

Tribunal and to the order dated 23rd November, 2011 of the Supreme Court

in SLP(C) No.9257/2007 filed by Union of India against the petitioner and

copies whereof is annexed to CM No.12120/2015; and, x) contended that

there are no rationale for the rate at which the damages have been claimed.

6. I may in this regard notice that it is not as if the learned District Judge

in the impugned order has not dealt with the pleas of the petitioner. It was

however held that the petitioner has not placed on record anything to prove

that he was entitled to the benefit of Rule 61 and that even otherwise the

Rule applicable to the petitioner was Rule 62 since the petitioner had been

posted to a field area. It was also held that the petitioner despite having been

allotted family accommodation on 12th October, 2009 did not shift thereto

and that from the petitioner's own letter it was abundantly clear that he was

required to vacate the pool accommodation within two months but continued

in the accommodation fully aware of the consequences thereof.

7. The counsel for the respondents has drawn attention to the letter dated

9th May, 2008 of the Ministry of Defence to the petitioner qua the request of

the petitioner to retain the Moti Bagh accommodation and informing the

petitioner that the same was not permissible under the Rules and granting

two months time only to the petitioner to vacate the same. Attention was

then invited to the application dated 7th May, 2008 of the petitioner in which

the petitioner had clearly admitted that he was aware that on his posting to

field area, he had to vacate the Moti Bagh accommodation within two

months and the he could not retain the same except with specific sanction

and that on his failure to do so, he was liable to be charged damage rent.

Attention in this regard was also invited to para 10 of the reply affidavit filed

by the respondents in response to the additional affidavit of the petitioner. It

was also contended that the delay in allotment of separate family

accommodation was also attributable to the petitioner not providing the

documents requested from him.

8. The learned amicus curiae in rejoinder emphasized that the notice

initiating the PP Act proceedings was issued even prior to the allotment of

separate family accommodation.

9. I have considered the controversy.

10. Though the sympathy of the Courts is generally with defence

personnel and on equity it may appear that the petitioner who admittedly

during the period of his overstay was posted in a field area should not be

charged damages for retaining the pool accommodation allotted to him when

he was posted at New Delhi especially when it is not the case that anyone

other than his family was in occupation thereof but this Court cannot at the

same time forget that it cannot in individual cases, on such grounds, grant

relief especially when granting such relief would be contrary to the Rules.

The remedy if any in this regard is for change of Rules. However before

effecting such change, the Court will have to have a larger perspective. The

Court, while considering the equity vis-à-vis one defence personnel, cannot

be blind to the reality of shortage of accommodation for defence personnel

posted at Delhi. It is not as if the question has only monetary considerations.

If this Court were for equity considerations qua the petitioner and unmindful

of others were to let go the petitioner from the amount which is due from

him under the Rules, it may also have the effect of inculcating indiscipline

which is essential, more in defence forces.

11. Considering the matter strictly as per the Rules, the petitioner has no

case. All the contentions of the petitioner are negated by the letter dated 9th

May, 2008 in response to the request of the petitioner for retaining the Moti

Bagh accommodation. The petitioner was clearly told that he could not

retain it beyond two months. The petitioner then did not challenge the same.

If the petitioner felt that he was being wronged, the petitioner should have

then taken up the said issue. However the petitioner shied away from doing

so and continued in occupation of the premises in contravention / defiance of

the said order dated 9th May, 2008. As aforesaid, such continued occupation

of the petitioner must have been at the cost of denial of the said

accommodation to another officer eligible or entitled thereto. The petitioner

cannot be permitted to urge the aforesaid grounds as an afterthought. The

petitioner today cannot invoke Rule 61 supra.

12. No merit also is found in the contention that the respondent no.2

Estate Officer had no material before him on 27th March, 2009 to form an

opinion of the petitioner being in unauthorized occupation. The petitioner,

upon being transferred out of Delhi had been authorized to occupy the

accommodation aforesaid till 8th July, 2008 only and the occupation of the

petitioner thereafter was ipso facto unauthorized. Similarly, the deduction

even if any of the licence fee from the salary of the petitioner cannot

overrule the express order dated 9th May, 2008 rejecting request of the

petitioner to retain the accommodation and allowing him to retain the same

till 8th July, 2008 only. Yet further, the factum of initiation of proceedings

under PP Act before to allotment of separate family accommodation to the

petitioner has no bearing as the petitioner had not been allowed to retain the

Moti Bagh accommodation till then.

13. In fact, the conduct of the petitioner of, even after had been allotted

separate family accommodation not shifting thereto disentitles the petitioner

from any equitable relief. The other disputes before the Armed Forces

Tribunal also have no bearing on the present controversy.

14. That leaves only two contentions of the learned amicus curiae. One

with respect to there being nothing to prove the rate of damages and the

other with respect to the letter dated 23rd December, 2005 supra.

15. As far as the rate is concerned, the petitioner, in the show cause notice

dated 29th November, 2011 preceding the order dated 26th April, 2013 was

informed of the said rate at which he will be charged damages. It is not the

case of the petitioner that he contested the said rate. Taking judicial notice

of the prevalent rent in the locality also, the rate at which damages have been

assessed cannot be said to be exorbitant or unnecessary. In fact, the counsel

for the respondents in response to the said argument taken for the first time

during the hearing has also handed over copies of various orders issued from

time to time fixing the rate at which such damages have to be charged and

therefrom it is apparent that the rate at which damages have been charged is

in accordance with law.

16. The letter dated 23rd December, 2005 supra conveys the decision qua

invocation of PP Act in the case of defence personnel in active service and

provides that prior to imposing damage rate of rent, the cases should be

examined based on their merit and proper discretion should be applied on

case to case basis. It is the contention of the learned amicus curiae that the

case of the petitioner has not been examined thereunder. However a perusal

of the reply filed by the respondent to CM No.2496/2015 shows that the

matter was properly considered before initiating action and it thus cannot be

said that the impugned action is in contravention. Mention in this regard

may also to be made of dicta of Division Bench of this Court in Life

Insurance Corporation of India Vs. Damyanti Verma 188 (2012) DLT 741

and Indian Institute of Public Opinion Pvt. Ltd. Vs. Life Insurance

Corporation of India MANU/DE/2013/2012 SLP(C) 18564/2012

whereagainst was dismissed on 26th February, 2014 holding that government

orders issued advising that PP Act should be invoked only against rank

trespassers and not against those who have been lawfully inducted into the

premises and are continuing in possession have been held to be not coming

in the way of proceedings under the PP Act.

17. No merit is thus found in the writ petition.

18. Dismissed. No costs.

19. The Court expresses gratitude to Mr. G. Tushar Rao, Advocate for pro

bono rendering valuable assistance to the Court.

RAJIV SAHAI ENDLAW, J MARCH 30, 2016 'gsr'