Full Text
HIGH COURT OF DELHI
Date of Order: 26th August 2022
46387/2019 & CM APPL. 6663/2021 INSPECTOR RAJ KUMAR ..... Petitioner
Through: Appearance not given
Through: Mr. Harish Vaidyanathan Shankar, CGSC with Mr. Srish Kumar
Mishra, Mr. Sagar Mehlawat and Mr. Alexander Mathai Paikaday, Advocates for R-1/UOI
CHANDRA DHARI SINGH, J (Oral)
JUDGMENT
1. The instant civil writ petition under Article 226 of the Constitution of India has been filed on behalf of the petitioner seeking inter alia the following reliefs: “(a) a writ of certiorari for quashing show cause notice dated 04.01.2019 issued by the respondent NO. 2 under sections 4(1) of the public premises (eviction of unauthorised occupants) act, 1971; (b) a writ of certiorari for quashing show cause notice dated 31.01.2019 issued by the respondent no. 2 under sections 4(2)(b) of the public premises (eviction of unauthorised occupants) act, 1971; 2022:DHC:3407
(c) Writ Of Mandamus directing the respondents not to dispossess the petitioner's family from the quarter being no. K 242, sarojini nagar, new delhi, till such time that an alternate accommodation, as per the guidlines for compulsory shifting, is provided to the petitioner;
(d) A writ of Mandamus directing the Respondents to allot an alternate accommodation at Lodhi Colony or R K Puram while considering the various reasons specified by the Petitioner in her several request letters….”
2. The background of the instant writ petition reveals that the petitioner, being a CRPF Sub-Inspector, was allotted an accommodation, bearing address K-242, Sarojini Nagar, New Delhi (Type 3 Quarter), on 3rd April 2006 by the respondent no. 2 and the family of the petitioner has been living at the said premises since.
3. In the year 2016, the respondent no.1/Ministry of Housing & Urban Affairs through the respondent no. 2/Directorate of Estates decided to redevelop seven GPRA colonies including Sarojini Nagar through the National Building Construction Corporation. In pursuance of the said, redevelopment the respondent no. 2 vacated all quarters falling under the Scheme, including the accommodation of the petitioner, in a phased manner and also provided alternate accommodation to the allottees so evicted under the Compulsory Shifting Scheme. The said allottees were given the opportunity to exercise their options for alternate accommodation in three bidding rounds through an online process.
4. The petitioner also exercised this option and furnished his preferences for Lodhi Colony and R K Puram, however, none of his bids were successful. Subsequently, the petitioner made requests to the respondents for allotment of alternate accommodation in his preferred areas, however, on 1st August 2017 he was allotted an alternate accommodation in Vasant Vihar, New Delhi.
5. The respondent no. 2 issued Notice dated 31st August 2017 under Section 4(1), 4(2)(b) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter “PP Act”) to the petitioner and directed him to appear before the concerned authority on 27th September 2017, with respect to the cancellation of allotment at Sarojini Nagar due to fresh allotment made at Vasant Vihar. On the date of the hearing, the wife of the petitioner appeared before the concerned Estate Officer and was informed that since they had been allotted a fresh accommodation under the Compulsory Shifting Scheme, they had to vacate the accommodation in Sarojini Nagar.
6. On 22nd November 2017, the respondent no. 2 once again issued Notice under Section 4(1) of the PP Act and the petitioner was asked to appear in person or through any representative before the Estate Officer on 14th December 2017. Several representations were made by the petitioner and his wife regarding allotment of alternate accommodation in the preferred areas and extension of the Sarojini Nagar accommodation. The Commandant CRPF of 82 battalion also addressed communications to the respondent no. 2 requesting them to allot an alternate accommodation in favour of the petitioner at the preferred locations, that is, Lodhi Colony or RK Puram and the respondent no. 2 also sought information and documents from the Commandant CRPF in relation to the postings of the petitioner.
7. The respondent no. 2 issued a letter dated 31st October 2018 to the Deputy Commandant CRPF, New Delhi, stating that that the Petitioner had been posted at the IGP, RAF, Headquarters office at New Delhi, (the Petitioner was posted in the said office from 13th May 2016 till 28th March 2017 i.e. for a period of 10 months) and had thereafter been posted
82 Battalion at Jammu & Kashmir, however, since Rapid Action Force (hereinafter “RAF”) is allegedly considered by them as an ineligible office for allotment of GPRA, he is considered an unauthorised occupant by the respondent no. 2. The letter also stated that proceedings under the PP Act would be initiated against the petitioner. On 21st June 2018, the respondents cancelled the allotment of the petitioner due to non-payment of the license fee, however, the same was withdrawn subsequently.
8. On 21st December 2018, the respondent no. 2 again sent a letter to the Deputy Commandant, CRPF, New Delhi, wherein it was reiterated that the petitioner was being considered an unauthorised occupant and the Deputy Commandant was asked to order the petitioner to vacate the house at Sarojini Nagar. The letter also stated that respondent no. 2 had initiated proceedings under PP Act against the petitioner.
9. Meanwhile, the wife of the petitioner approached several authorities and also made written representations before various governmental authorities. However, ultimately, the respondent no. 2 issued Show Cause Notices dated 4th January 2019 and 31st January 2019 (hereinafter “impugned Notices”) to the petitioner asking him to show cause as to why he should not be evicted since he was occupying public premises even after the allotment was cancelled. The petitioner and his wife again approached the respondent no. 2 requesting them to consider the reasons given for allotment of alternate plot in the preferred locations, however, it is the case of the petitioner that the respondent no. 2 threatened them to vacate the accommodation of Sarojini Nagar within 7- 10 days failing which forceful removal from the accommodation was anticipated.
10. The petitioner is aggrieved by the Notices dated 4th and 31st January 2019 and is seeking directions to the respondents to not dispossess the petitioner and his family from the quarters at Sarojini Nagar and to allot alternate accommodation at Lodhi Colony or RK Puram.
11. Learned counsel appearing on behalf of the petitioner submitted that the actions of the respondents were arbitrary, biased, harsh and considerate. It is submitted that no cancellation of allotment of accommodation or notices under the PP Act were ever communicated to the petitioner and only the impugned Notices were served upon the petitioner.
12. Learned counsel for the petitioner submitted that the impugned notices did not set out, in its contents, the grounds for issuing the show cause. The respondents were required to specify the reasons for which the eviction was sought and such an inaction was not accordance with the law.
13. It is submitted that it was only on 31st October 2018 that the respondents for the first time took the stand that the petitioner was considered ineligible for allotment of GPRA because he had been posted at RAF and there was no mention before this point about the same.
14. It is submitted that the respondents did not cancel the allotment of the alternate accommodation at Vasant Vihar. Moreover, in its letter dated 31st October 2018 and 21st December 2018, the respondents said that proceedings under PP Act would be initiated against the petitioner, however, neither were these proceedings initiated now did the petitioner hear from the respondents regarding his requests.
15. It is further submitted that the respondents failed to appreciate that as per the direction of the Ministry the Compendium of the Allotment of Government Residences (General Pool in Delhi) Rules, 1963 at serial no.s 394, 395 and 396 of Appendix III, as well as the respondents own OM dated 28th April 2017, Office of IGP RAF, R K Puram, New Delhi and personnel who are on the strength of the Headquarter CRPF are eligible for GPRA. On one hand the respondent no.2 initiated action against the petitioner for declaring him and unauthorised occupant of the GPRA at Sarojini Nagar and on the other hand it recognised the petitioner as an authorised occupant of the said accommodation when it allowed him to participate in the bidding process open to the authorised occupants of seven GPRA colonies found eligible under the Compulsory Shifting Scheme.
16. It is submitted that the wife of the petitioner made several requests and written representation to the respondents, as well as other authorities of the Country throughout 2017-19, however, the respondents did not do anything to give any relief to the petitioner and his family.
17. It is submitted that the respondents have acted arbitrarily, illegally and in an unjust manner by not considering the various communications/ requests made by the petitioner for re-allotment of a quarter at Laxmi Bai Nagar owing to her special/peculiar circumstances relating to (i) the education of her children who are currently studying in Class IX and Class VI in Navy Children School, Nausena Bagh, Chanakyapuri, New Delhi, re-allocation of the quarter at some far off place would severely prejudice the studies of her children, (ii) the proximity of her proximity of her husband's work place.
18. It is submitted that in the light of the aforesaid, the relief sought by the petitioner before this Court may be allowed and the Show Cause Notices may be quashed.
19. Per Contra, the learned CGSC appearing on behalf of the respondents vehemently opposed the submissions made on behalf of the petitioner and submitted that there arises no cause of action to be challenged before this Court since no action has been taken by the respondents against the petitioner and only Notices had been issued asking him to show cause.
20. It is submitted that the office of the petitioner, vide letter dated 28th July 2018, informed the respondent no. 2 about the postings of the petitioner and it was found that the petitioner had been posted outside Delhi since 2007 and was required to inform the respondent regarding such postings outside of Delhi, however, he failed to do so for 11 years and only thereafter informed the respondents about the same. Further, the petitioner was posted in Delhi in an ineligible office, however, he did not inform the respondents, as per the mandate, and hence, his quarter was cancelled. It is further submitted that the respondent no. 2 had initiated the project of redevelopment of seven colonies however, the redevelopment of nearly fifty quarters of the K block alone had been put to a halt because the quarter no. K-242 has been illegally occupied by the petitioner.
21. It is submitted that the petitioner had already been allotted an alternate accommodation, that is, House No.- 28C, Vasant Vihar, pending decision in the instant matter. Moreover, the petitioner, upon his request, was asked to select one out of two flats in R K Puram and as per his choice Q no. 12, Sector-1, R K Puram has been allotted to hi on 5th March 2021, the physical possession of which he has taken on 26th March 2021, therefore, further no cause of action is left to be adjudicated upon. Therefore, the instant petition is liable to be dismissed for being devoid of merit.
22. Heard learned counsel for the parties and perused the record. This Court has also perused the impugned Notices.
23. The petitioner has challenged the Show Cause Notices dated 4th January 2019 and 31st January 2019 and sought directions to the respondents with respect to the allotment of alternate plot in the preferred areas by the petitioner.
24. The relevant portion of the said impugned Notices is reproduced hereunder for perusal:- Notice dated 4th “Whereas, I, the undersigned, am of the opinion on the grounds specified below that you are in the unauthorized occupation of the Public premises mentioned in the
SCHEDULE below and that you should be evicted from the said premises. GROUNDS. You have been continuing to occupy public premises as specified in the
SCHEDULE below even after it's allotment stands cancelled and the period for which you were allowed to retain the instant premises has also expired. Now, therefore, in pursuance of sub-section (1) of section (4) of the Act, I hereby, call upon you to show cause on or before the date specified below, why such an order of eviction should not be made.” Notice dated 31st “With refrence to the above case pending against you under Section 4(1) the Public Premises Eviction of Unauthorised Occupants) Act, 1971, the case has been fixed on date and time given below for personal hearing. If you want to urge anything, you may appear in person or through a duly authorised representative competent to answer to all material questions connected with the matter on the date and time specified below, and on your behalf. In case, you or your authorised representative fail to appear on the said date and time, the case will be decided ex-part.”
25. It is an admitted position by the petitioner that pursuant to the letters of the respondents as well as its impugned Show Cause Notices, neither any proceedings were initiated by the respondent no. 2 nor did the petitioner hear anything from them. The only challenge before this Court is to the impugned Notices issued. However, the precedents clarify the position of law with regard to the question whether any Show Cause Notice would give rise to a cause of action that can be challenged before a court of law.
26. When an authority issues a Show Cause Notice, it is merely giving the recipient an opportunity to make his case and show as to why an action should not be taken against him in the background of the facts and circumstances of his case. At the stage of issuing a Show Cause Notice, there is no adverse action that has been taken against the recipient of the Notice and hence, no cause of action has actually arisen for it to be challenged at that stage. Such a challenge to a Show Cause Notice, especially does not lie as a matter of routine under a writ jurisdiction since a Court exercising its powers under Article 226 of the Constitution of India is already limited to the extent of adjudicating upon the illegality or errors apparent on the very face of record and hence, has limited scope of interference in the impugned order or in this case, a Show Cause Notice. Therefore, a challenging a Show Cause Notice invoking a court’s writ jurisdiction is not only premature but is also discouraged by the mandate of the law, as has been interpreted by the Hon’ble Supreme Court.
27. The Hon’ble Supreme Court in Special Director vs. Mohd. Ghulam Ghouse 2004 3 SCC 440, the Hon’ble Supreme Court while adjudicating upon a similar question has observed as under:-
28. In Union of India & Anr. vs. Kunisetty Satyanarayana (2006) 12 SCC 28, while setting aside a High Court judgment allowing the writ challenging a Show Cause Notice, the Hon’ble Supreme Court has observed as under:-
29. Reiterating the principles laid down in Kunisetty (Supra), the High Courts while entertaining Show Cause Notices under the PP Act have observed as under:- The Calcutta High Court in Kishen Lall vs. Deputy Commissioner, 2012 SCC OnLine Cal 2803 observed as follows:- “It is settled by a catena of decision of the Hon'ble Supreme Court that a writ petition against a show cause notice issued by a statutory functionary shall not be entertained unless the High Court is satisfied of the nullity of such notice or want of jurisdiction of the authority concerned to even investigate the facts. The point of jurisdiction of the Estate Officer has been answered above, and therefore, every other point that the petitioner seeks to agitate in respect of validity of the show cause notice including the point that it does not contain the grounds must be raised by him after his appearance before the Estate Officer. Reference in this connection may be made to the decision of the Supreme Court reported in AIR 1961 SC 1615: Carl Still G.m.b.H v. The State of Bihar, (2004) 3 SCC 440: Special Director v. Mohd. Ghulam Ghouse and AIR 2007 SC 906: Union of India v. Kunisetty Satyanarayana.” The Bombay High Court in JM Financial Asset Reconstruction Company Pvt Ltd vs. Board of Trustees of the Port of Mumbai & Ors. 2016 SCC OnLine Bom 5355 held as reproduced under:-
30. Further, in Ministry of Defence vs. Prabhash Chandra Mirdha, (2012) 11 SCC 565, the Hon’ble Supreme Court, reiterating the principles, held as under:-
31. Therefore, it is clear that a challenge does not lie against a Show Cause Notice unless there is an action taken in pursuance of such Notice, in which case also the challenge would lie against the action and not the Notice itself. A Show Cause Notice can only be interfered with under the writ jurisdiction in the rare event of there being an absolutely illegal, improper, erroneous finding or action on the part of authority issuing such it.
32. In the instant matter, the petitioner challenged the impugned Notices and also admitted that no action was taken by the respondents in pursuance to the said Notices. Therefore, it is found that the petitioner has approached this Court prematurely, since there is no cause of action that has arisen yet.
33. Moreover, as per the contents of the Counter Affidavit filed on behalf of the respondents, it is found that the petitioner has already taken possession of an alternate plot in R K Puram on 26th March 2021 and the grievance of the petitioner has been addressed to the effect that he has been allotted an alternate accommodation in his preferred area, hence, in light of this fact as well nothing survives in the matter.
34. In light of the above facts and circumstances, the submissions made on behalf of the parties, the contentions raised in the pleadings as well as the observations made in the foregoing paragraphs, this Court does not find merit in the instant petition.
35. Accordingly, the instant writ petition is dismissed.
36. Pending applications also stand disposed of.
37. The judgment be uploaded on the website forthwith.
JUDGE AUGUST 26, 2022/dy/ms