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Date of Decision: 5th September, 2018.
No.4951/2018 (for direction/recall of order dated 27th April, 2017).
LT COLONEL VINEET MEHTA ..... Petitioner
Through: Mr. Mohan Kumar and Mr. Abishek Sarvaria, Advs.
Through: Mr. Vikram Jetly, CGSC with Col.
A. K. Singh, SO (Legal).
JUDGMENT
1. This petition under Articles 226 and 227 of the Constitution of India impugns the order [dated 29th March, 2017 in PPA No.10/2016 of the Court of the Additional District Judge-01 (South-West) acting as Appellate Officer under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (PP Act)] of dismissal of appeal preferred by the petitioner against the order dated [6th October, 2012 of the respondent no.1 Estate Officer, Delhi Military Station] of eviction of the petitioner under Section 5 of the PP Act from House no.4, Tigris Road, Delhi Cantt.
2. This petition came up first before this Court first on 25th April, 2017 when it was adjourned to 27th April, 2017 when the following order was passed:-
3. The petitioner filed CM No.19083/2017 for modification of the order dated 27th April, 2017 and which came up before this Court on 19th May, 2017 when notice thereof was ordered to be issued. The respondents filed a counter affidavit. The application of the petitioner to restrain the respondents from recovering penal rent from the petitioner was dismissed on 30th August, 2017 observing, that the respondent Estate Officer till then had not determined the penal rent under Section 7(3) of the PP Act; liberty was however granted to the petitioner to approach the Court after the said determination and the proceedings under Section 7 of the Act before the Estate Officer were made subject to outcome of the petition. On 8th February, 2018 it was informed that the proceedings under Section 7 of the Act before the Estate Officer were listed on 10th February, 2018; observing, that the proceedings before the Estate Officer be continued and the final order along with relevant record be produced before this Court on 3rd May, 2018, this petition was adjourned to 3rd May, 2018.
4. The petitioner preferred LPA No.242/2018 against the order dated 8th February, 2018 and which has been disposed of vide judgment dated 11th May, 2018 of the Division Bench of this Court.
5. The petitioner has filed another application, being CM No.4951/2018, for recall of the order dated 27th April, 2017.
6 Today, the counsel for the respondent Estate Officer at the outset states that this petition has to be disposed of in terms of judgment dated 11th May, 2018 supra of the Division Bench.
7. The counsel for the petitioner opposes and contends that the judgment dated 11th May, 2018 of the Division Bench nowhere disposes of the writ petition.
8. It is appropriate to reproduce the relevant paras of the judgment dated 11th May, 2018 of the Division Bench. The same are as under:-
5. Mr. Luthra, learned Senior Counsel could not dispute that a direct challenge to an order passed by the Estate Officer under Section 7(3) of the Act in an appeal of the present nature, was plainly untenable. Section 15 of the Act bars the jurisdiction of a Court to entertain any suit or proceeding inter alia in respect of the arrears of rent payable under Section 7(1) or damages payable under Section 7(2) of the Act. It is in that context only, the order under Section 7(3) of the Act was passed by the Estate Officer on 16.04.2018 and which is sought to be challenged in the instant appeal. Recourse to Article 226 ipso facto would not be tenable, as an appellate remedy is available under the statute. We have therefore no hesitation to say that the challenge to the eviction order having been urged and not pressed, any adjudication on the order passed by the Estate Officer under Section 7(3) of the Act in exercise of the extraordinary jurisdiction of this Court was not called for. Suffice to say, the legal recourse against the order dated 16.04.2018 passed by the Estate Officer under Section 7(3) of the Act would be as provided for under Section 9 of the Act.
6. Having commented on the untenability of a direct challenge to an order under Section 7(3) in this appeal or under Article 226, without seeking recourse to an appeal under Section 9, this Court notes that undisputedly, the appellant was allottee of the subject premises and which was cancelled; an eviction was passed by the Estate Officer. The appellant came to be evicted before the filing of the writ petition. It is well settled that the owner of the public premises has the absolute right to terminate the lease or cancel the allotment.” Thereafter certain paragraphs of Dr. K.R.K. Talwar Vs. Union of India ILR (1977) 1 Del 138 were reproduced and it was held as under:-
9. I have enquired from the counsel for the respondent Estate Officer, whether not once this petition is disposed of, the finding in the impugned order, of the petitioner being in unauthorised occupation, will attain finality, also affecting the liability of the petitioner under Section 7.
10. The counsel for the respondent Estate Officer draws attention to para 7 of the judgment of the Division Bench reproduced above, which inter alia records that ‘from which date the petitioner should be treated to be in unauthorised occupation and what should be the penal rent/damages leviable is a subject to be considered in the event the petitioner challenges the order dated 16th April, 2018 passed by the Estate Officer under Section 7(3) of the Act’. It is also informed that the proceedings before the respondent Estate Officer under Section 7 of the Act have culminated in the order dated 16th April, 2018 of the respondent Estate Officer and it is further informed that the petitioner has already preferred an appeal before a District Judge under Section 9 of the Act against the said order and which is pending consideration.
11. The counsel for the petitioner has contended that the District Judge has not followed the procedure prescribed by law for decision of the appeal under Section 9 of the Act against the order under Section 5 of the Act and has sought to draw attention to certain provisions in this regard.
12. I have considered the controversy.
13. A reading of the judgment aforesaid of the Division Bench does indeed show that the Division Bench has interpreted the statement of the counsel for the petitioner/appellant on 27th April, 2017, as recorded in para 1 of that order reproduced above, as amounting to the petitioner giving up the right to challenge the finding, of the petitioner being in unauthorised occupation and being liable to be evicted. The Division Bench is also found to have limited the scope of enquiry in the appeal before the District Judge against the order under Section 7 of the Estate Officer, only to, the date from which the possession of the petitioner became unauthorised and the correctness/validity of the rate at which the respondent Estate Officer has determined the damages. The Division Bench has not only held appeal preferred before it to be not maintainable but also held resort to Article 226 of Constitution of India to be also not available before exhausting remedy of appeal under Section 9 of the PP Act against the order under Section 7 of the Act.
14. The counsel for the respondent Estate Officer is thus found to be right in the contention, that this petition is to be disposed of in terms of judgment dated 11th May, 2018 of the Division Bench. The pleas, as urged by the counsel for the petitioner, of the learned District Judge, in deciding the appeal against the order of eviction under Section 5 of the PP Act, having not followed the prescribed procedure, are now no longer open to the petitioner.
15. As far as the contention of the counsel for the petitioner, of the Division Bench having not expressly disposed of the writ petition, is concerned, merely because the Division Bench has not expressly said so cannot take away the effect of what has been said. Moreover, the petitioner also is not challenging his eviction or seeking repossession of the premises from which he has already been evicted. The only challenge now is to the liability if any of the petitioner for damages/penal rent under Section 7 of the PP Act and rights of the petitioner in which regard have been protected by the Division Bench.
16. As far as the applications filed by the petitioner before this Court, for modification/recall of the order dated 27th April, 2017 are concerned, again, once the Division Bench in appeal arising from an order in this petition has pronounced on the premise of what is recorded in the order dated 27th April, 2017, it is not in the jurisdiction of this Bench to now modify or recall the order, on the premise of which the Division Bench pronounced. It was for the petitioner to urge before the Division Bench that its application was pending or that he intended to file application for recall of the order dated 27th April, 2017. Judicial propriety does not permit this Bench to so pull the rug on which the order of Division Bench stands.
17. The petition is thus disposed of in terms of the judgment dated 11th May, 2018 of the Division Bench. No costs. Dasti under signature of Court Master.
RAJIV SAHAI ENDLAW, J SEPTEMBER 05, 2018 ‘pp’..