Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 Misc. Appeal 95/19
Received on 22/02/2019
Registered on 26/02/2019
Decided on 18/01/2020
Duration Yrs. Months Days
00 10 21
CNR No. MHCC010020202019
IN THE COURT BOMBAY CITY CIVIL COURT AT GR.BOMBAY
MISCELLANEOUS APPEAL NO.95 of 2019
Venkatrao Garabadi Dukhishyam,
Occupation : Service,
R/at : Quarter No.158/02,
NCH Colony, Powai,
Mumbai – 400 078. ..Appellant.
Versus
Admiral Superintendent,
Estate Manager/Estate Officer,
Naval Dockyard,
Mumbai – 400 023. ..Respondents.
Coram : H.H.THE PRINCIPAL JUDGE
M.W. CHANDWANI
Dated : 18th January, 2020.
(C.R.No.19)
APPEARANCES:
Adv. Sangram Chinnappa for appellant.
Adv. Shriram Redij for respondent.
O R A L J U D G M E N T
The order dated 08.02.2019 of eviction passed by the Estate
Officer under Section 5 of the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 (hereinafter referred to as “PPE Act”), is assailed in
this appeal.
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Judgment 2 Misc. Appeal 95/19
2. The case in brief of the respondent before Estate Officer was
that the father of the appellant was in service and was allotted quarter
No.158/0 at NCHC (P). The appellant was residing with his father. After
retirement, the appellant applied for allotting the same quarter and vide
allotment order No.DYP/A/Accn/158/02 dated 25.09.2017 on account of
regularization of government accommodation the said quarter was
temporary allotted to the appellant, on the condition to produce the “non
availability certificate” from Naval Armament Depot (hereinafter referred
to as “NAD”). The appellant could not submit the “non availability
certificate” within stipulated time. The appellant being employee of NDA,
Trombay therefore was not entitled for accommodation at Naval Civilian
Housing Colony (hereinafter referred to as “NCHC”). The said
accommodation was temporary accommodation till 02.10.2018.
3 The notice dated 20.11.2018 under Section 4 of the PPE Act came to
be issued to the appellant as to why an order of the eviction should not be
made. The appellant defended the proceeding contenting that the
appellant was authorized to continue his father's accommodation as per
rules and is entitled for the same, and he has submitted the certificate as
required under the allotment letter i.e. “non availability certificate”. The
Estate Officer by order dated 08.02.2019 passed the impugned order
directing the appellant to vacate the premises. Being aggrieved with the
said order of Estate Officer, the present appeal came to be filed.
4. Having heard learned advocate for the appellant as well as
learned advocate for the respondent and after going through the record,
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Judgment 3 Misc. Appeal 95/19
following points arise for my determination and I have given my findings
against each of them for the reasons mentioned hereinafter.
POINTS FINDINGS
1 Whether the impugned order dated
08.02.2019 of the Estate Officer directing
the appellant to vacate the premises is just
legal and proper?
..In the negative
2 What order ? ..As per final
order
: R E A S O N S :
AS TO POINT NO.1:
5. It seems from the impugned order that since, appellant had
not submitted “non availability certificate” within the stipulated time
period, therefore, the temporary accommodation expired on 02.10.2018.
Impugned order also speaks that since the employee of NAD is not entitled
for the accommodation at NCHC. For the above reasons the Estate Officer
held the appellant as unauthorised occupant and by order under Section 5,
the eviction order came to be passed.
6. Evidently, by letter of allotment dated 25.09.2017, quarter
No.158/02 in which the appellant was already residing with his father,
who retired from service, came to be allotted to the appellant for the
period of one year. By the said letter, the appellant was directed that for
the further extension he has to produce “non availability certificate” from
NAD clearly indicating the present roster position for further extension of
the quarter.
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Judgment 4 Misc. Appeal 95/19
7. Thus, as per allotment letter, for further extension of the
quarter, the appellant had to produce “non availability certificate” from
NAD. Indisputably, by letter dated 01.10.2018, the Quartering Officer on
behalf of the General Manager, NAD, Trombay, Mumbai sent letter to the
respondent alongwith “non availability certificate” of the quarter at NAD,
Trombay. The said letter alongwith “non availability certificate” was
appears to be received on 08.10.2018 by the respondent.
8. It is contended on behalf of the advocate for the respondent that the
allotment letter was not produced within the stipulated time of one year.
Therefore, the appellant did not fulfill the criteria mentioned in the
allotment letter. Let me state, “non availability certificate” has been
received by the respondent on 8.10.2018, before issuance of the notice
under section 4 of the Act by the estate officer. Surprisingly, there is no
whisper in the order of the Estate Officer in this regard.
9. Record shows at the instance of the appellant NAD, Trombay
has sent the “non availability certificate” to the respondent issued on
01.10.2018 prior to the expiring period of one year i.e. on 02.10.2018.
Just because, the letter or “non availability certificate” of NAD, Trombay
was in transit, and appears to be received by the respondent no.1 on
8.10.2010, even before issuance of the notice under Section 4 of the PPE
Act, the appellant can not be blamed.
10. Rather, it is matter of record that the appellant has applied for
regularization of quarter which was allotted to his father in his own name,
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Judgment 5 Misc. Appeal 95/19
after retirement of his father and the appellant being in service of NAD,
Trombay. It will opposite to mentioned here that allotment of premises in
question is being governed by allotment of residence (Defence pull
accommodation for civilians in defence services rules 1978). Rule20 of the
said rule will be relevant here, which is reproduced here as under:
20...Allotment to certain relations in certain cases
(1) When a Government servant who has been allotted
Government accommodation retires from service or dies
while in service, his son, daughter, wife, husband or father be
allotted Government accommodation on an adhoc basis
provided that the said relation is Government servant eligible
for Government accommodation and had been sharing
accommodation with the retiring or deceased officer for at
least six months before the date of retirement or death.
(2) These same residence may be regularised in the name of the
relation if he or she is eligible for a residence of that type or a
higher type. In other cases the said relation may be allotted a
residence of his or her entitled type, if available at the time of
failing that a type next below, if acceptable to the allottee.
(3) Where the accommodation has not been specifically built for
Defence civilians, the allotment of accommodation to the son
or daughter or wife or husband or father of the deceased
Government shall be subject to the condition that it is surplus
to the requirement of entitled Service personnel.
11. Thus, the allotment rules itself provides provisions for
regularization of the quarter of a employee, who retires from service and if
his relative, who is son is in government service eligible for government
accommodation as the same residence may be regularize in the name of
said relative, if he is eligible for a resident of that type.
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Judgment 6 Misc. Appeal 95/19
12. There is no dispute that the appellant is also serving at that
time as a Assistant Store Keeper in NAD, Trombay, rather, now he is
promoted to Store Keeper and he is eligible/entitled for the
accommodation of a residence of the type which he is presently holding
i.e. typeII. Thus, it appears from allotment letter that the application of
the appellant was made for regularization of his quarter, and he was
allotted the said quarter initially for a year and further extension was
subject to production of “non availability certificate” which he has
admittedly produced, though late, but before issuance of notice u/s 4 of
the Act.
13. So far as, submission of learned advocate for respondent that
the appellant is working under the NAD, Karanja and as per guidelines
issued by the department, the staff employee under the NAD, Karanja are
not eligible for the accommodation at NCHC, Powai quarter is concerned,
firstly, the allotment rule 1978 does not provide any distinction with
regard to the entitlement of the accommodation as per the department
under they are working. Secondly, it is not in dispute that the appellant
has been transferred from NAD, Karanja to NAD, Trombay with effect from
10.03.2016. On this ground also the argument of learned advocate for
respondent does not sustain.
14. It has been held by the Hon'ble Apex Court as well as Hon'ble
Bombay High court in catina of judgments that public authorities are state
within the meaning of Article12 of the Constitution of India and every
action of public authority has to satisfy the test of reasonableness.
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Judgment 7 Misc. Appeal 95/19
Just because, the “non availability certificate” was received by one
department from other department seven days later, though issued before
expiry of allotment period, can not be ground of eviction of an existing
employee, who is otherwise entitled for the same. The grounds for eviction
do not appear to be reasonable. The action of respondent no.1 a public
body i.e. State with in the meaning of section 12 of The Constitution of
India, does not satisfy the test of reasonableness. Rather, it appears from
the record that the proceeding before The Estate Officer is result of that
there is dispute between two departments to accommodate their
employees at particular place, inspite of the fact that the rule of 1978 does
not make any difference. Even otherwise, from 2016 onward the appellant
permanently transferred to NDA Trombay and does not remained the
employee of NDA Karanja, who according to the guidelines produced by
the respondent, are not eligible for accommodation at NCHC, Pawai.
15. Evidently, the allotment to the appellant was granted on the
application for regularization of quarter under rule 20 of the allotment
rules,1978 referred above. The allotment letter speaks about the allotment
for a year, but it also speaks for further extension of production of “non
availability certificate” by the appellant, which is produced. So, it cannot
be said that by efflux of time, the authority of appellant came to be an end.
16. In view of the above, the order of Estate Officer does not
sustain in the eyes of law. Therefore, it requires to be set aside and in the
result, the present appeal succeeds. Hence, following order.
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Judgment 8 Misc. Appeal 95/19
: O R D E R :
1. Miscellaneous Appeal No.95 of 2019 is allowed.
2. The order of Estate Officer dated 08.02.2019 is
hereby set aside.
3. Record & Proceeding be sent back to The Estate
Officer.
18/01/2020 (M.W. CHANDWANI)
Principal Judge,
Gr.Bombay.
Dictated on : 18.01.2020.
Transcribed on : 18.01.2020.
Signed by H.H.J. on : 11.02.2020.
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Judgment 9 Misc. Appeal 95/19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographer: Mr. Tushar P. Kuwar
Upload date and time: 11.02.2020 (1.50 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri M.W. CHANDWANI(C.R.No.19)
Date of Pronouncement of Order 18.01.2020
Order signed by P.O. on 11.02.2020
Order uploaded on 11.02.2020
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