CWP No.11026 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C. W. P. No. 11026 of 2008 Date of Decision: 8 - 12 - 2009 Union of India and others ....Petitioners v. S.L.Khindri ....Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Anil Rathee, Advocate for the petitioners. Mr.R.K.Sharma, Advocate for the respondent. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) Union of India and others had preferred the present writ petition seeking quashing of impugned order dated 10.4.2008, Annexure P10 passed by the Additional District Judge (Adhoc), Patiala. They further prayed that this Court should upheld the order dated 7.2.2007, Annexure P9, passed by the Estate Officer under Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter to be referred as, `the Act'). Respondent-S.L.Khindri to the writ petition, has also filed Civil Writ Petition No.11377 of 2008. He is also aggrieved against order dated 10.4.2008 passed by the learned Additional District Judge (Adhoc), CWP No.11026 of 2008 [2] Patiala. In the writ petition filed by employee S.L.Khindri, impugned order has been annexed as Annexure P5. Therefore, this Court has to examine the validity of order dated 10.4.2008, Annexure P10 annexed with Civil Writ Petition No.11026 of 2008 and Annexure P5 in Civil Writ Petition No.11377 of 2008. Counsel for the parties are in agreement that both the writ petitions can be disposed of by a common order, as facts projected in these writ petitions are the same. S.L.Khindri (hereinafter called as, `the employee') was Principal of Training Centre, managed and run by the Department of Telecommunications. In his capacity as Principal, he was allotted `E' type quarter. The employee retired on 31.10.1996. According to the rules, he could retain the accommodation only for a period of one month. The employee failed to vacate the premises on 1.12.1996, the date due for handing over the physical possession. The Department declared him un-authorised occupant and issued show cause notice dated 20.8.1997. The show cause notice stated that action is to be taken against the employee under the Act. No satisfactory reply was submitted by the employee. Thereafter, ejectment order dated 3.9.1997, Annexure P2 attached with Civil Writ Petition No.11026 of 2008 was passed. The competent authority also issued show cause notice on 4.8.2003 to the employee under Section 7 of the Act for determining the damages/compensation for over-stay in the quarter which was un-athorised for the period commencing 1.12.1996 to 28.12.1999. Copy of the show cause notice dated 4.8.2003 is attached as Annexure P5. The employee submitted reply to the show cause notice, Annexure P6. The Estate Officer determined damages for un-authorised stay in the quarter at the rate of Rs.4,237/- P.M. and thereafter the CWP No.11026 of 2008 [3] competent authority ordered that Rs.1,53,293/- be recovered from the pensionary benefits of the employee. Against this order, an appeal was filed by the employee. The appeal was disposed of vide impugned order, Annexure P10. The Appellate Authority noticed contention of the employee in para 5 which read as under:- “5. He further argued that as per citation Shiv Sagar Tiwari Vs. Union of India, AIR 1997 Supreme Court, 2725, the respondents at the most can recover three times of license fee for the accommodation in question from the appellant and the respondents have wrongly passed the order under appeal. The Appellate Authority after noticing the rival contentions, concluded as under:- “7. After hearing rival contentions of the learned counsel for the parties, I am of the view that the contention of the learned counsel for the appellant has force as per ruling cited above (supra). The appellant retired on 31.10.96 and he was authorized to occupy the quarter for one month and from 1.12.96 to 28.12.96 he was in unauthorized accommodation because it has come during the course of his argument that the approval given to the appellant to keep the quarter after one month was withdrawn later on. The license fee of the quarter in question with the appellant was Rs.247/- per month. 8. The argument of the learned counsel for the respondents is not tenable that the rate of the quarter in question should be charged @ Rs.4227/- per month i.e. As per report of the Civil Wing. CWP No.11026 of 2008 [4] 9. After hearing rival contentions of the learned counsel for the parties, I am of the view that the contention of the learned counsel for the respondents has no force. 10. The license fee of the quarter in question is Rs.242/- per month as per rule cited above and the respondents can recover three times of the same which comes to Rs.726/- per month.” Counsel for the petitioners-Union of India has submitted that reliance placed by learned Additional District Judge on Shiv Sagar Tiwari's case (supra) was misplaced. Counsel state that in para 10, question No.(8) was formulated as under:- (8) At what rate penalty has to be realised from those who were unauthorisedly occupying the government quarters? Counsel state that this question was answered by Hon'ble Apex Court in para 73 which read as under:- “73. The penalty which becomes payable by those who have either continues to occupy premises beyond the permitted period or have not vacated the premises despite cancellation of allotment, has to be as per the rules holding the field to which we have already referred. We may refer in this connection to Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 also, which deals with payment of rent or damages in respect of public premises. Its sub-section (2) has provided that where any person is, or has at any time been in unauthorised occupation of any public premises, the Estate Officer may, having regard to such principle of assessment of damages as may be prescribed, assess the damages on account CWP No.11026 of 2008 [5] of the use of the occupation. Rule 8 of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971 has mentioned about the factors to be taken into consideration in assessing the damage.” Counsel for Union of India has referred to Fundamental Rules and Supplementary Rules to state that there is no mention in rules regarding charging thrice the amount of license fee for unauthorised stay. Counsel for the employee has also failed to point out any rule which could justify the observations made by the Additional District Judge (Adhoc) in the impugned order, Annexure P10. However, counsel for the employee has raised a substantial question of law by stating that as per Department's own showing, the employee had vacated the premises on 28.12.1999 and the show cause notice was issued by the Department on 4.8.2003, after a period of 3 years. Counsel state that after a period of 3 years, no recovery of any amount could be effected from the employee, as the same was beyond the period of limitation. Counsel has further referred to Rule 8 of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971 and has stated that rules prescribe a procedure for assessment of damages. Rule 8 of the above said Rules reads as under:- “8. Assessment of damages- In assessing damages for unauthorised use and occupation to any public premises the state officer shall take consideration the following matters namely - (a) the purpose and the period for which the public premises were in authorised occupation; (b) the nature, size and standard of the accommodation CWP No.11026 of 2008 [6] available in such premises. (c) the rent that would have been realised if the premises had been let on rent for the period of unauthorised occupation to a private person; (d) any damage done to the premises during the period of unauthorised occupation; (e) any other matter relevant for the purpose of assessing the damages.” Counsel state that Estate Officer has not carried any exercise to assess the damages as per Rules. After hearing counsel for the parties, this Court is of the view that rival contentions raised have not been examined by the Additional District Judge in the impugned order, Annexure P10. Therefore, impugned orders, Annexure P10 in Civil Writ Petition No.11026 of 2008 and Annexure P5 in Civil Writ Petition No.11377 of 2008 is set aside and the matter is remanded back to the learned District Judge, Patiala. Learned District Judge either himself retain the filed appeal or may entrust the same to any other Additional District Judge for adjudication of the controversy afresh. Needless to say that counsel for the parties will be well within their rights to advance any other argument. With the above observations, both the writ petitions are disposed of. ( KANWALJIT SINGH AHLUWALIA ) December 8, 2009. JUDGE RC