Suresh Kumar T. vs The Additional Director General of Police, Southern Zone and Others

K. Vinod Chandran, J—The petitioner is aggrieved with Ext. P. 1 order, which he alleges to be a composite order under Section 5 and under Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the Act of 1971) and bad for that reason alone.

The petitioner admittedly was in occupation of a quarters when he was transferred from Peringome, Kannur to Tripura on 10.03.2012. The petitioner sought for retention of the quarters but no such request is produced nor is a sanction/permission evidenced. Admittedly the petitioner continued in the quarters and going by the recitals in Ext. P. 1 order the petitioner was issued with a notice dated 18.03.2013 to vacate the quarters since his request for retention was rejected. Subsequently the petitioner was issued with Ext. P. 1 order, after issuance of show cause notices dated 19.10.2013 and 21.12.2013, which he refused to respond to. A reading of Ext. P1 would indicate that the show cause notices dated 19.10.2013 and 21.12.2013 were notices under Section 4, 5 and 7, for vacation of quarters and the imposition of damage rent.

By Ext. P1 the petitioner was issued with an order directing recovery of damage rent at the rate of Rs. 6968/- per month from 01.04.2014 till the date of vacation of the Government Family accommodation. The petitioner contends that there is no separate order issued for eviction; and hence the same has to be considered as a composite order of eviction and damages; which is not permissible under the Act of 1971. The petitioner admittedly did not vacate the premises even after that.

The petitioner also did not challenge Ext. P1 order. The petitioner''s salary was directed to be deducted with Rs. 6968/- regularly with effect from 01.04.2015 by Ext. P7. At that point the petitioner vacated the quarters on 25.04.2015. The certificate of vacation is produced at Ext. P8. The petitioner then approached this Court challenging Ext. P1 order, which is an order issued under Section 7 of the Act of 1971.

The petitioner contends that a composite order as is seen at Ext. P1 cannot be issued and that there is clear violation of principles of natural justice since no notice as contemplated under Section 7(3) are issued. The petitioner would contend that the appellate remedy is not efficacious insofar as there being only 12 days prescribed for filing an appeal and the petitioner also has contentions with respect to the order being vitiated on the ground of illegality and violation of principles of natural justice which goes to the root of the matter in which event, the extra-ordinary remedy can be invoked under Article 226 of the Constitution of India.

The first contention of Ext. P1 being a composite order cannot be countenanced since on a plain reading, Ext. P1 does not order eviction from the premises. Though the order was issued on 7.1.2014, the petitioner had continued till April 2015. Further even Ext. P7 communication dated 27.03.2015 indicates that a request was to be made to the individual to vacate the quarters immediately and otherwise to order forceful eviction as per law and on other procedure or instruction on the subject. Hence no eviction order had been passed by the authority, but in any event, the same is no more relevant since the petitioner admittedly had vacated the premises, as is seen at Ext. P8 on 25.04.2015. In such circumstance, Ext. P1 cannot be said to be a composite order of eviction and imposition of damages. Though Sections 4 and 5 of the Act of 1971 is noticed in the order; the operative portion deals only with the imposition of damages and the order is one under Section 7 of the Act of 1971.

The petitioner''s contention that no notice was issued, is belied by the fact that the order itself shows that two show cause notices were issued on 19.10.2013 and 21.12.2013 directing him to show cause, as to why damage rent should not be imposed. As was noticed the petitioner was informed as early as on 18.03.2013 that the request for retention of quarters was rejected. The petitioner''s family continued there and it was hence proceedings were taken under Section 7. The notice also need not be served on the petitioner personally since the petitioner''s family was in continued occupation of quarters and a service effected there would be sufficient. In such circumstances, there can be no finding of violation of principles of natural justice going to the root of the matter. The contention that the petitioner had only 12 days to approach the appellate authority and that the petitioner was in Bangalore cannot be countenanced; since the proviso to Section 9(2) provides for an appeal even after the expiry of the limitation period prescribed, if the appellate authority is satisfied of sufficient cause, made out by the appellant, for such delay occasioned. The further contention that the damages ought to have been with reference to the house rent allowance has to be raised before the authority, if at all.

In such circumstances, this Court is not inclined to exercise discretion under Article 226. The well recognized exceptions to the doctrine of exhaustion of statutory remedies as laid down in State of H.P. and Others Vs. Gujarat Ambuja Cement Ltd. and Another, AIR 2005 SC 3936 : (2005) 6 JT 298 : (2005) 2 SCR 684 Supp : (2005) 142 STC 1 : (2005) AIRSCW 3727 : (2005) 5 Supreme 161 are (i) when proceedings are taken under a provision of law which is ultra vires (ii) when order is in violation of principles of natural justice (iii) where there is an allegation of violation of fundamental rights and (iv) in the event of total lack of jurisdiction. None of these grounds exist in the present case.

Further it is to be noticed that the order impugned herein itself was on 07.01.2014, the petitioner continued the unauthorised occupation even after the said order and eventually vacated the premises on 25.04.2015. The petitioner did not challenge Ext. P1 by way of an appeal nor did the petitioner approach this Court under Article 226 within a reasonable time. The petitioner waited for more than 1 1/2 years before he vacated the premises, voluntarily, on 25.4.2015 and then after vacation, came before this Court to challenge the damages imposed. This Court is not inclined to exercise the extra ordinary jurisdiction for the further reason of the delay occasioned. It is also to be noticed that the writ petition was not admitted and notice was issued before admission and interim stay was granted. The respondents have raised the objection of maintainability on grounds of existence of alternate remedy. In such circumstances, the writ petition is dismissed and discretionary remedy is denied.

However, the remedy of the petitioner to approach the appellate officer under Section 9 of the Act of 1971 would be left open. The petitioner shall do that within a period of one month from the date of receipt of a certified copy of this judgment, in which event, the condonation of delay would be left to the discretion of the appellate officer. However, it is made clear that the period when the writ petition was pending before this Court from 20.05.2015 shall not be computed for determining the delay. It is also made clear, the mere fact that this Court had taken note of the delay, as one of the grounds to deny the discretionary remedy under Article 226, need not deter the appellate officer from considering the explanation of the delay occasioned, to his own satisfaction. It is made clear that the recovery shall be stayed for a period of one month and if an appeal is filed then the recovery shall depend upon the orders passed.

Writ petition is dismissed. No costs.