Kamla Singh Vs. Municipal Corporation of Delhi (North), Through Commissioner and Another - Court Judgment

Excerpt:

Judgment:

The applicant, who retired as Junior Labour Officer (JLO) from the respondent Municipal Corporation of Delhi, filed the present OA seeking the following reliefs:

“It is, therefore, most respectfully prayed that your Lordships may graciously be pleased to direct the respondents to grant same benefits of the judgments and orders in Writ Petition (Civil) No.2132/2007, and further issue directions and orders to the respondents to issue demand notice and deduct the said amount from the dearness allowance laying deposited with the respondents, and release the balance payment to the applicant along with interest @ 18% p.a. and quash the order dated 11.07.2012 passed by the respondent, or may pass any other orders or directions as may deem fit and proper in the interest of justice.”

2. The applicant retired from service while working as JLO on 30.06.1997. The applicant was in occupation of the Municipal Flat No. 154, Neemri Colony, Delhi-35 as on the date of his retirement, which was allotted on 18.05.1992.

3. It is submitted that at the time of allotment of various quarters in Neemri Colony, the respondents gave an impression to all those allottees including the applicant that those Municipal flats would be finally sold to the occupants of the respective flats on certain terms, but when the respondents have not done so, most of the allottees of Neemri Colony flats did not vacated the flats either on their retirement or on their transfer.

4. Neemri Colony (Phase-II) Welfare Association, wherein the applicant also a member, along with some of the individual occupants of certain Municipal flats of the said colony filed cases which were finally ended by virtue of the orders of the Honble Apex Court in Special Leave to Appeal (Civil) No.17492/2000 dated 20.10.2000. The relevant portion of the order reads as follows:

“Considering the facts and circumstances of the case particularly the stand taken by the Corporation of disposal of quarters in favour of its employees who are occupying the same, as prayed for, time to vacate is granted till the end of the academic year 2001, i.e. upto 30th April 2001 on their furnishing the usual undertaking to hand over peaceful and vacant possession of the premises on or before the said date and to pay regularly the licence fee as payable by the employee of the Corporation (not market or penal rent). However this benefit would be given to those petitioner who file usual undertaking to vacate the premises before this court and sent copy thereof to the Municipal Commissioner or the Delhi Jal Board within four weeks from today”.

5. The applicant submits that though the applicant was not a party to the litigation, but since he is a Member of the Petitioners Association, i.e. Neemri Colony (Phase-II) Welfare Association, he had also paid the licence fee payable to the respondents for the period from 01.07.1997 to 30.04.2001, which was duly received and acknowledged by the respondents (Annexure-3). In an application filed by the Association, the Honble Apex Court vide its order dated 27.04.2001 (Annexure-4) extended the time upto 31.07.2001 for vacating the premises subject to furnishing further undertaking to that effect. It is further submitted that the Honble High Court of Delhi in a Writ Petition No.2132/2007 filed by certain similarly situated persons further directed the respondents not to dispossess the petitioners therein till 01.05.2007. The Honble High Court of Delhi vide its order dated 23.04.2007 modified the order dated 20.03.2007 ‘as standard licence fee instead of charge to remove the doubts about the payment. The respondents have implemented the orders of the Honble Delhi High Court in Writ Petition (C) No.2132/2007 and permitted the petitioners therein to be in possession of the Municipal flats allotted to them till 14.05.2007. Accordingly, the applicant was also evicted from his Municipal flat on 14.05.2007, along with all others.

6. The respondents by issuing the impugned order dated 11.07.2012 directed the applicant to deposit an amount of Rs.2,78,785/- being the 50% of the SLF/demurrage charges towards his unauthorized occupation of the Municipal flat from 30.06.1997 to 14.05.2007, i.e. from the date of his retirement to the date of his eviction. It is further stated that on deposit of the said amount, his dearness allowance in pension, which was withheld, will be released.

7. Shri Sarvesh Bisaria, the learned counsel for the applicant submits that applicant is a Member of the Neemri Colony (Phase-II) Welfare Association and the respondents in terms of the various orders of the courts charged only the licence fee from the Members of the Association and others, whereas they are forcing the applicant to pay the demurrage charges. He submits that he has paid the entire licence fee for the period from 01.07.1997 to 14.05.2007, and hence, he is not liable to pay any amount. He submits that since the applicant is similarly situated and a Member of the Association, the respondents cannot discriminate him and compel him to pay any amount other than the licence fee as was collected from others. He further submits that the respondents illegally withheld his Dearness allowance from his pension, and hence, they are liable to pay the arrears of dearness allowance with the interest @ 18% p.a.

8. The respondents filed a detailed counter denying the above averments.

9. Heard Shri Sarvesh Bisaria for the applicant and Shri K.M. Singh for the respondents, and carefully perused the pleadings on record.

10. Shri K.M. Singh, the learned counsel for the respondents, raises the following grounds, and sought for dismissal of the OA:

(i) Since the subject matter of the OA pertaining to the unauthorized occupation of the residential accommodation and payment of the demurrage charges, the Tribunal has no jurisdiction to entertain the OA. He placed reliance on the following judgments:

(a)  Union of India Vs. Rasila Ram and Ors., JT 2000 (10) SC 503.

(b) Babli Vs. Government of NCT of Delhi of the Honble Delhi High Court, 2002 (95) DLT 144.

(c) OA No.794/2011 dated 02.12.2011 of the  Central Administrative Tribunal, Principal Bench, New Delhi, in Ratnesh  Bharati v. Union of India.

(ii)  Applicant was not a party in any of the judicial proceedings enclosed to the OA, and hence, he is not entitled for the extension of the benefit of the said orders.

(iii)  The applicant is not similarly situated like the parties in the orders sought by him and further the orders of the Honble Supreme Court and the Honble Delhi High Court or on facts, and hence, the same cannot be automatically extendable to the applicant.

(iv)  As per rules, the respondents are entitled to withheld the dearness allowance from the pension, if a Government servant is in unauthorized occupation of the residential accommodation until the recovery of the licence fee, and other amounts pertaining to the said amount obligated by the respondents. Hence, there is no illegality in withholding the dearness allowance from the pension and for the same, the respondents are not liable to pay any interest on the said amount.

11. In Rasila Rams case (supra), the Honble Apex Court has held as under:

“Once, a Government servant is held to be in occupation of a public premises as an unauthorised occupant within the meaning of Eviction Act, and appropriate orders are passed thereunder, the remedy to such occupants lies, as provided under the said Act. By no stretch of imagination the expression any other matter in Section 3(q)(v) of the Administrative Act would confer jurisdiction on the Tribunal to go into the legality of the order passed by the competent authority under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. In this view of the matter, the impugned assumption of jurisdiction by the Tribunal over an order passed by the competent authority under the Eviction Act must be held to be invalid and without jurisdiction. This order of the Tribunal accordingly stands set aside”.

12. In Bablis case (supra), the challenge was to the order passed under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 for initiating eviction proceedings of the petitioner therein. Following Rasila Rams case, the Division Bench of the Honble Delhi High Court held as under :

“4. Section 3(q)(v) which is material for our purposes is reproduced for proper appreciation of the issue involved:

“(q) ‘service matters in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any Corporation [or Society] owned or controlled by the Government, as respects-

“(i)…...

(ii) …..

(iii) …….

(iv) …...

Any other matter whatever.”

xxx xxx xxx xxx xxx xxx

10. We, accordingly, hold that CAT had no jurisdiction to entertain OAs claiming allotment or regularization of Government accommodation unless such claim was shown to be a condition of service. Nor could it assume jurisdiction where eviction action was taken against an employee for his alleged unauthorized occupation of the premises under the Eviction Act.”

13. This Tribunal in OA No.794/2011, after considering the judgments in Rasila Ram and Bablis cases (supra), observed as under:

“In the Original Application filed by the applicant he has nowhere pleaded that the allotment of Government accommodation is condition of his service. Thus, the respondents had no occasion to plead whether the allotment of Government accommodation is condition of service of applicant or not. However, since during the course of hearing, learned counsel appearing for respondents has submitted that the allotment of Government accommodation is not condition of service of the applicant and relied upon the judgment of Honble High Court in Smt. Bali and Ors., in the absence of any pleadings on record to this effect, I cannot take a view whether allotment/retention of Government accommodation is condition of service of the applicant or not.

In the circumstances, I return the present OA being not maintainable. It goes without saying that the applicant would be at liberty to seek remedy before appropriate forum including filing of fresh Original Application pleading therein that the allotment of Government accommodation falls within the condition of service of the applicant, if so advised. OA is disposed of”.

14. A conspectus of the aforesaid judgments reveals that unless it is shown that the allotment or regularization of Government accommodation is a condition of service, Central Administrative Tribunal has no jurisdiction to entertain the OA. It was also held that where the impugned action relating to a Government accommodation is initiated under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, OA is not maintainable.

15. The purport of the judgments cited by the learned counsel for the respondents is that if allotment of residence is not a condition of service of an employee, the CAT has no jurisdiction in terms of Section 3 (q)(v) of the Administrative Tribunals Act. It is not disputed that the allotment and occupation of the said staff quarter to the applicant was as per Rules, and hence, it cannot be said that allotment of residence to the applicant is not a service condition of the applicant. It is also not the case of the respondents that the impugned order issued in exercise of the powers under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. In this view of the matter, the aforesaid judgments are not applicable to the facts of the case, and accordingly, this Tribunal has jurisdiction to entertain the present OA.

16. The perusal of the facts of this case reveals that the applicant has also similarly situated like the petitioners in Special Leave to Appeal (Civil) No.17492/2000 (Annexure-2), and the petitioners in the other orders of the Honble Delhi High Court. It is also not disputed that he is one of the Member of the Petitioners Association as evidenced by Annexure-3, wherein it was mentioned that the applicant has also paid the licence fee along with other Members of the Association to the respondent MCD in terms of the Honble Apex Courts orders. Hence, the contention of the respondents that he is not similarly situated, and that the orders of the Honble Apex Court and Honble Delhi High Court are not applicable to the applicant, cannot be accepted. It is more so that the respondents failed to place any record to show that whether they have taken any action against the applicant evicting him from the Municipal flat or for recovering the demurrage charges for the unauthorized occupation from 01.07.1997 till they passed the impugned order dated 11.07.2012. Therefore, they have infact treated the applicant on par with others, though there were no prohibitory orders from any court in proceeding against the applicant.

17. In Inderpal Yadav Vs. Union of India, 1985 (2) SLR 248, (Also see: (i) K.T. Veerappa Vs. State of Karnataka, 2006 (9) SCC 406; (ii) State of Karnataka Vs. C. Lalitha, 2006 (2) SCC 747; and K.I. Shephard and Others Vs. Union of India, AIR 1988 SC 686), the Honble Apex Court held that:

“Those who do not come to court, need not be at a disadvantage to those who rushed to here. If they are otherwise similarly situated, they are entitled for similar treatment, if by no one else at the hands of the Court”.

18. In the aforesaid fact scenario, it also cannot be said that the respondents have withheld the dearness allowance from the pension of the applicant without any reason or without any authority. The occupation of the applicant after his retirement resulted in withholding of his dearness allowance from his pension. Hence, he is not entitled for any interest on the same, till he was evicted from the accommodation on 14.05.2007. Once the applicant paid the licence fee for the period for which he was on occupation of the Municipal flat and finally evicted from the same, the respondents cannot withheld any amount of him from the date of his eviction.

19. In the circumstances and for the aforesaid reasons, the OA is allowed and the impugned order dated 11.07.2012 is quashed. The respondents are directed to pay the arrears of dearness allowance in pension to the applicant within 60 days from the date of receipt of a certified copy of this order, after adjusting any amount of normal licence fee, as was charged to the petitioners in Special Leave to Appeal (Civil) No.17492/2000, if still payable by the applicant for the period from 01.07.1997 to 14.05.2007. The respondents shall also pay interest on the arrears of dearness allowance in pension, after adjusting of the normal licence fee, if any due as observed above, at the GPF rate of interest from 15.05.2007 to till the date of actual payment. No order as to costs.