M.L. Joshi vs Director of Estates, Government of India, New Delhi and Another

The Petitioner challenges the cancellation of allotment to him of the residential quarter in dispute and the legality of the notice (Annexure ''G'' to the writ petition) dated 5-4-1965 u/s 4 (1) of the Public Premises Eviction of (Unauthorized Occupants) Act, 1958 (hereinafter called the Act) calling upon the Petitioner to show cause on or before 2-5-1965 why an order of eviction should not be made against him on the ground that he is in unauthorized occupation of the public premises.

According to the Petitioner''s averments, he is a quasi-permanent employee of the Government of India being an Upper Division Clerk in the office of the Trade Mark Registry Government of India, New Delhi. He was allotted the Government quarter in question in Rama Krishna Puram, New Delhi in January, 1963, the allotment to be effective from 5-2-1963 when he took its possession. On 19-9-1964, he came to know from a memorandum addressed to the Registrar of Trade Marks, Registry Office, Industrial Estate, Okhla, by the Assistant Director of Estates that the staff of Trade Marks Registry had not been declared eligible for accommodation in the general pool. It was by means of this memorandum that the allotment of the residential quarter to the Petitioner Shri M.L. Joshi was cancelled and he was directed to hand over vacant possession of the quarter in question to the Central P.W.D., Enquiry Office. This is Annexure ''B'' to the writ petition.

The argument urged before me is that once this allotment is made in favor of the Petitioner, it must be assumed that the Petitioner was entitled to the allotment and therefore, this right cannot be taken away except in accordance with law. No rules having been framed for cancelling allotments, the order cancelling the Petitioner ''s allotment according to the counsel is arbitrary and discriminatory.

It has also been argued that the Assistant Director of Estates who purports to have cancelled the allotment, was not authorized to do so.

The ground of attack against the show cause notice is that the officer who issued the show cause notice, namely, the Deputy Director of Estates (Litigation) Respondent No. 2, is himself going to adjudicate upon the merits of the controversy and, therefore, it is violative of the rules of natural justice.

In the return, it has been pleaded that since the office of the Petitioner was not declared eligible for participation in Government accommodation from the general pool by the Government of India, the allotment of the quarter allotted to the Petitioner was cancelled by the competent authority. After the cancellation of the allotment, the Petitioner was not entitled as of right to retain the quarter in question, with the result that he could be proceeded against under the Act. It has been expressly averred that the allotment in favor of the Petitioner was initially made under a mistake of fact that the office of the Trade Mark Registry, where the Petitioner was at that time employed, was eligible for allotment of accommodation.

This allotment having been made under a mistake of fact, could not afford any protection to the Petitioner. The staff of the Trade Mark Registry including the Petitioner had never been declared eligible for Government accommodation by the competent authority, namely, the Ministry of Works and Housing. In regard to tike competency of the authority issuing the show cause notice, it is pleaded that the Deputy Director of Estates (Litigation) Respondent No. 2 is the Estate Officer under the Act and, therefore, entitled to start proceedings under the Act.

A preliminary objection has also been raised on behalf of the Director of Estates to the effect that it is open to the Petitioner to appear before the statutory authority enquiring into the matter and show cause against the eviction and also to appeal from the prejudicial order as provided by Section 9 of the aforesaid Act. In support of his submission, Mr. Parkash Narain has relied on a Bench Decision of this Court in Hari Kishan Das v. Union of India, AIR 1961 Punj 98 at p. 100.

Shri N.D. Bali, learned Counsel for the Petitioner, has argued that the existence of an alternative remedy is not always an absolute bar in the way of the Petitioner seeking to invoke the jurisdiction of this Court under Article 226 of the Constitution and in support of his contention, he has relied on a Single Bench decision of the Allahabad High Court in Lala Raj Kishore v. District Board of Seharanpur, AIR 1954 All 675.

I quite agree that an alternative remedy does not go to the jurisdiction of this Court in granting relief under Article 226 of the Constitution; nor is it per se a legal bar to the issue of a writ by this Court. It is indeed only one of the several relevant considerations which this Court takes into account in the exercise of its judicial discretion whether or not on the facts and circumstances of a given case to allow its constitutional jurisdiction to be invoked and to grant relief under Article 226. This Court, I may observe, is not inclined ordinarily to allow itself to be reduced to the status of subordinate tribunals constituted under different statutes for the purpose of performing statutory functions.

The language of Article 226 is undoubtedly wide but jurisdiction there under is not exercised by this Court merely because it is lawful to do so. There are certain recognized self-imposed restrictions in the exercise of this jurisdiction. It is only in exceptional cases where to direct a party to the alternative statutory remedy would inter alia result in grave hardship, either by causing undue delay or by operating as denial of fair deal from the subordinate tribunals, that this Court would ordinarily feel inclined in the interest of substantial justice to permit its constitutional jurisdiction to be invoked.

Again, this Court does not generally enter upon a determination of questions demanding elaborate examination of evidence for establishing the right sought to be enforced, nor does this Court act as a Court of appeal to correct errors of fact of the subordinate tribunals. Indeed, in the absence of any specific factors, this Court is reluctant to allow the statutory machinery created for securing relief to be bypassed and substitute itself for the statutory tribunal.

In the case in hand, I am far from satisfied that any grave hardship or gross injustice is likely to visit the Petitioner if he is left in the ordinary course to show cause under the statute and to seek further relief, if necessary, by preferring appeal provided there under. No extraordinary circumstance has been brought to my notice why the Petitioner should not adopt the course designed by the Legislature for person similarly placed.

I have not been impressed by the argument that the show cause notice is wholly without jurisdiction. Section 2 (a) of the Act defines an "estate officer" to mean an officer appointed as such by the Central Government u/s 3. In the case in hand, it is sworn in the return that the Deputy Director of Estates (Litigation) is the Estate Officer under the Act and is entitled to start proceedings there under. The show cause notice u/s 4, would, therefore, be fully authorized and lawful. There being no jurisdictional or other similar serious legal infirmity, it would clearly be for the Petitioner to show cause on the merits against his proposed eviction in accordance with the statutory provision.

The contention urged on behalf of the Petitioner that the Estate Officer would be both the prosecutor and the Judge which is hit by the ratio of the Supreme Court decision in Gullappalli Nageswara Rao v. State of Andhra Pradesh, AIR 1959 SC 1376, is unconvincing and of no avail to the Petitioner in the present case because the Estate Officer does not appear to me to be acting as a Judge in his own cause when he is disposing of the proceedings initiated by the show cause notice u/s 4 of the Act.

To say that no one shall be a Judge in his own cause means that the Judge must not have anything like a personal interest in the cause he is to adjudicate upon and not that an officer discharging his official functions must not start proceedings in a matter which he is, under the law, competent to adjudicate upon. The Petitioner''s argument is obviously misconceived in the instant case and the decision of the Supreme Court does not seem to lend support to the Petitioner''s submission on the existing facts before me.

For all the foregoing reasons this petition fails and is hereby dismissed. In the peculiar circumstances of this case, there would be no order as to costs.