Lt. Colonel Vineet Mehta v. The Estate Officer & Ors.

1. This Letters Patent appeal challenges the order dated 08.02.2018 of a learned Single Judge in WP(C) 3573/2017. The appellant had in the writ petition assailed the judgment dated 29.03.2017 passed by the ld. ADJ-01 (South-West) on an appeal preferred under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereafter 'the Act') against the eviction order (dated 06.10.2012) by the Estate Officer under Sub- Section (1) of Section 5 of the Act in respect of the premises no.4, Tigris Road, Delhi Cantt (hereafter 'the subject premises').

2. The relevant facts are that the appellant, an Army Officer, was allotted the subject premises a regular married accommodation for 2018:DHC:3125-DB residential purposes by letter dated 30.04.2008. On 19.04.2011, he was posted out to field area Mtn. Div. Ord. Unit, Tenga Valley, Arunachal Pradesh. At that time the appellant got himself registered for allotment of Field Area Family Accommodation (hereafter 'FAFA') w.e.f. 22.07.2011. During the period of his posting with 5 Mtn. Div. Ord. Unit, he met with an accident in April, 2012 and it appears on that account, he was given temporary attachment with HQ., Delhi area. In July, 2012 the appellant was transferred to Kanpur, a peace area and was to join there by 03.09.2012. On 01.09.2012, he was however given permanent posting to 57 Mtn. Div. Ord. Unit C/o 99 APO. He states that resultantly he was entitled to FAFA. Before his such joining either in the field area posting at Kanpur or 57 Mtn. Div. Ord. Unit, J&K/Assam, the allotment of the subject premises in his favour was cancelled w.e.f. 06.07.2012, on the premise that the rules did not permit retention of regular married accommodation after allotment of FAFA which, according to the respondents, was made earlier. The order of cancellation led to issuance of the notice under Section 4(b)(ii) of the Act. The notice was resisted by the appellant, who disputed the receipt of the communication allotting FAFA to him besides, relying on his medical issue on account of accident he suffered in April, 2012. Not satisfied with the reply, proceedings were initiated by the Estate Officer under Sub-Section (1) of Section 5 of the Act which culminated into an eviction order on 06.10.2012. Against that order, the appellant preferred an appeal under Section 9 of the Act, which was dismissed on 29.03.2017. The appellant was evicted from the subject premises on 07.04.2017. The order of the District Judge was thereafter challenged by way of the writ petition out of which the present appeal arises. The appellant has challenged the order dated 08.02.2018 passed by the learned Single Judge in WP(C) 3573/2017 as well as the order dated 16.04.2018 passed by the Estate Officer under Sub-Section (1) of Section 7 of the Act.

3. The claim in the writ petition filed against the eviction order passed under Section 5(1) was restricted only to the recovery of penal rent/damages. A statement to that effect was made by the Counsel before the learned Single Judge on 27.04.2017. It appears that such a position was on the assumption that the appellant was not an unauthorized occupant. The writ petition was therefore kept alive awaiting the outcome of the proceedings under Section 7 of the Act. An order under Section 7(3) of the Act was passed by the Estate Officer on 16.04.2018. Questioning the order dated 08.02.2018 passed by the learned Single Judge, the appellant has also challenged the order of the Estate Officer under Section 7(3) of the said Act in the present appeal.

4. The order of the learned Single Judge (dated 08.02.2018) impugned in this appeal is as under:

standing counsel who submits on instructions that reply has not been filed.

3. Learned standing counsel for the petitioner submits that the documents relating to the year 2012 have not been produced to the petitioner which is disputed by learned standing counsel who submits that the documents have already been furnished to the petitioner as well as counsel to the petitioner.

4. Let the proceedings before the Estate Officer be continued and the final order along with the relevant record be produced before this Court on the next date of hearing.

5. List on 03rd May, 2018.

6. Copy of this order be given dasti to learned counsels for the parties under signature of Court Master." A bare perusal of the foregoing impugned order of the learned Single Judge shows that it merely records proceedings of the day rather than recording any finding or issuing any direction to the appellant, of which, he could feel aggrieved of and resort to an appeal. This Letters Patent Appeal to that effect is wholly misconceived and untenable. It is equally surprising to note that in the appeal, a challenge is made to an order passed by the Estate Officer under Section 7(3) of the Act.

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. This was observed to by this Court in Dr. K.R.K. Talwar vs. Union of India and Ors., ILR (1977) 1 Del. 138 as follows: "5. Let us consider the validity of each of these orders and the scope of judicial review in respect of each of them. (A) The definition of "unauthorised occupation" in section 2(e) of the Act is the occupation by any person of the public premises after the authority under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. The authority for the occupation of Dr. Talwar was the original allotment or lease granted to him. When this lease was terminated or allotment was cancelled, that authority disappeared and he became a person in unauthorised occupation of the premises. The nonpayment of rent by the petitioner for a long time was an overwhelmingly sufficient reason for the termination of the lease and the cancellation of the allotment. The petitioner's counsel contended that the real reason for such action was the suspicion of the authorities that the premises had been sublet by Dr. Talwar to Shri Batra. The lessor or the allotter has an absolute right to terminate the lease or cancel the allotment. It is not permissible in the course of judicial review to probe into the reasons for such action. The justifiability of such an action is not open to judicial review at all. Moreover, the non-payment of rent for a long time was a complete justification for such an action."

7. Though, the scope of Article 226 of the Constitution of India is cast in wide terms, the interference in exercise of such jurisdiction is very limited. In the present case, the challenge to the eviction order, which was the foundation of the writ petition, having been not pressed, the Court sees no justification for awaiting an order to be made under Section 7 of the Act and then adjudicate thereupon in the exercise of such jurisdiction under Article 226 of the Constitution of India. This is particularly so, in view of Section 9 of the Act. From which date, the appellant should be treated to be an unauthorized occupant and what should be the penal rent/damages leviable is however a subject, in given facts and circumstances, we consider, should be left open to be considered by the concerned Court, in the event, the appellant challenges the order dated 16.04.2018 passed by the Estate Officer under Section 7(3) of the Act. That right and liberty is preserved and kept open. In case the appellant prefers an appeal under Section 9, all his rights and contentions including as to what ought to be the date of commencement of damages, and its quantum, are kept open.

8. The appeal stands disposed off in the foregoing terms. All the pending applications also stand disposed off

A. K. CHAWLA, J