W.P.(C)No.7957/2005 Page 1 of 5 10 *IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C)No.7957/2005 Date of Decision : 21st July, 2010 % NB/SUB RAM NIWAS SHARMA ..... Petitioner Through : Mr. S.M. Dalal, Adv. versus UOI & ORS. ..... Respondents Through : Ms. Avnish Ahlawat with Mr. Nitesh Kumar Singh, Advs. CORAM :- HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE J.R. MIDHA 1. Whether Reporters of Local papers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? GITA MITTAL, J. (Oral) 1. By this writ petition, the petitioner before this Court has sought the following prayers:- “(i) file before this Court Army HQ Part—II order No.O/115/Sigs/2004 dt. 07.12.2004 alongwith record of proceedings to award by summary trial punishment of “severe reprimand” to the petitioner on 19.8.2004 by respondent No.5; and quash the said orders. (ii) direct respondents to give all consequential benefits to the petitioner resulting from setting aside the punishment of “severe reprimand” to the petitioner as awarded on 19.8.2004 by respondent No.5. (iii) file before this Court the record of proceedings leading to order dt. 3.3.2005 for recovery of damage rent of Rs.29,803/- W.P.(C)No.7957/2005 Page 2 of 5 from the petitioner and quash the same. (iv) award costs of this petition all throughout in favor of the petitioner and against the respondents.” 2. A statement is made by Mr. S.M. Dalal, learned counsel appearing for the petitioner that he has instructions not to press prayers No.1 and 2 and prays for leave to withdraw the same. Accordingly, prayers No.1 and 2 noticed above are hereby dismissed as not pressed. 3. So far as the prayer No.3 is concerned, it appears that the respondents were of the view that the petitioner had sub-let his allotted quarter No.J-7/9, R.R. Colony, Delhi Cantonment to one Subedar R.P. Ray. The respondents consequently passed an order dated 22nd October, 2003 directing the petitioner to immediately vacate the government accommodation. As the petitioner failed to do so, the respondents passed further orders dated 6th November, 2003 and 27th November, 2003 reiterating their earlier directions. In the order dated 27th November, 2003, the respondents threatened the petitioner that he would be liable for payment of market rate of rent. The petitioner submitted an application dated 30th December, 2003 for waiver of the charge of market rent. 4. It appears that the above correspondence culminated in the respondents passing an order dated 6th February, 2004 declaring him as unauthorized occupant of the said government accommodation after issuance of the notice to show cause dated 23rd January, 2004 and recording of evidence W.P.(C)No.7957/2005 Page 3 of 5 by an officer to whom the same was entrusted. The respondents also appear to have invoked provision of Army Act, 1950 and proceeded to record a summary of evidence by an order passed on 8th March, 2004 in respect of aforenoticed continued occupation of the government accommodation by the petitioner. 5. Finally, an order dated 3rd March, 2005 was passed against the petitioner by Unit Accountant Barrack Store Officer (Estate) Delhi Cantt. raising a damage rent bill for the sum of Rs.29,803/- for the period from 1st February, 2004 to 31st August, 2004. The petitioner has assailed this order inter alia on the ground that the same was without authority and jurisdiction and that the respondents could have imposed damages and claimed the same from the petitioner only after holding due proceedings under the provision of the Public Premises (Eviction of Unauthorized Occupants) Act 1972. 6. The respondents have contested the petition and filed a counter affidavit defending the aforenoticed action which was taken by them. A stand is taken that proper legal proceedings have been taken against the petitioner. In this background, an order dated 13th February, 2009 was passed requiring the respondents to keep available the record of the proceedings, if any, which has been held before the Estate Officer. 7. It is trite that so far as the eviction of an unauthorized occupant of public premises and imposition of damages for continued unauthorized occupation is concerned, the statutory W.P.(C)No.7957/2005 Page 4 of 5 provisions prescribed for the same are to be found in Sections 5, 7 and other provisions of the Public Premises (Eviction of Unauthorized Occupants) Act 1972 alone. The Army Act, 1950 makes no provisions for recovery of possession of the public premises from an unauthorized occupant or of levy and recovery of damages for such action. So far as the provisions of the Army Act are concerned, the respondents could have proceeded for disciplinary or penal action against the petitioner. 8. Mr. S.M. Dalal, learned counsel appearing for the petitioner has placed reliance on the pronouncement reported as 65 (1997) DLT 86 Lieutenant Colonel B.B. Asthana (Retd.) vs. Union of India And Others wherein an identical question had arisen for consideration and this Court had authoritatively held that the respondents could have proceeded to levy and recover damages for unauthorized occupation of public premises only after taking recourse to the proceedings and following the procedure prescribed in the aforesaid enactment. 9. The legal position remains unchanged as on date. 10. The respondents are unable to point out compliance with the Public Premises (Eviction of Unauthorized Occupants) Act 1972 in terms of the action which they have taken. In this view of the matter, there is substance in the petitioner’s contention that the order dated 3rd March, 2005 has no basis in law and is legally untenable. W.P.(C)No.7957/2005 Page 5 of 5 11. Accordingly, we set aside and quash the order dated 3rd March, 2005. The matter with regard to levy and recovery of damages against the petitioner for his unauthorized occupation of the aforenoticed quarter is left open and it shall be for the respondents to proceed against the petitioner for the same in accordance with law. We make clear that we have not expressed any opinion on the merits of the respondent’s claim. We also direct that in view of the order that we have passed today, the petitioner shall not be entitled to set up a plea of limitation to the extent that matter has been pending in this Court against the respondent’s claim for damages, if set up. It is also directed that the petitioner shall be entitled to refund of the amount, if any, deposited by the petitioner pursuant to the order dated 6th May, 2005. 12. This writ petition is allowed in the above terms. 13. Dasti to parties. GITA MITTAL, J J.R. MIDHA, J JULY 21, 2010 mk