Eviction from service married accommodation allotted to underage (ie., below 25 years) PBOR challenged at AFT Kochi

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Relevant AFT order is appended below :-



ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI

O.A.NO. 226 OF 2013

FRIDAY, THE 24TH DAY OF JANUARY, 2014/4TH MAGHA, 1935

CORAM:

HON’BLE MR. JUSTICE SHRIKANT TRIPATHI, MEMBER (J)

HON’BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A)

APPLICANT:-

CORPORAL RAVI KUMAR,

AGED 24 YEARS 11 MONTHS AND 13 DAYS,

S/O.DINANATH SINGH,

TRADE: ACCOUNTS ASSISTANT NO. 920220S,

COMMAND ACCOUNTS SECTION,

HQ TC, IAF, BANGALORE

RESIDING AT:

T.M.Q NO.P-51/8, AF CAMPUS,

HEBBAL, J.C.NAGAR POST,

BANGALORE – 560 006.

BY ADV. SRI.V.K.SATHYANATHAN.

versus

RESPONDENTS:-

1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY,

MINISTRY OF DEFENCE, SOUTH BLOCK,

NEW DELHI – 110 011.

2. THE CHIEF OF THE AIR STAFF,

AIR HEADQUARTERS (VAYU BHAWAN)

RAFI MARG, NEW DELHI-110 011.

3. THE AIR OFFICER COMMANDING-IN-CHIEF,

HQ TC, IAF, J.C.NAGAR POST,

BANGALORE – 560 006.

4. THE SENIOR OFFICER ADMINISTRATION,

HQ TC, IAF, J.C.NAGAR POST,

BANGALORE – 560 006.

5. THE COMMANDING OFFICER

HQ TC, IAF(U), J.C.NAGAR POST,

BANGALORE – 560 006.

BY ADV.SRI.P.J.PHILIP, CENTRAL GOVT COUNSEL

O R D E R

 

Shrikant Tripathi, Member (J):

1. Heard Mr.V.K.Sathyanathan for the applicant and

Mr.P.J.Philip for the respondents and perused the record.

2. By the instant Original Application filed under

Section 14 of the Armed Forces Tribunal Act, the applicant

Corporal Ravikumar, No.920220S has prayed for a direction

to the respondents to allow him to continue in occupation of

the residence TMQ.No.P-51/8, AF Campus, Hebbal,

J.C.Nagar Post, Bangalore till he is allotted with a Permanent

Service Married Accommodation as per his seniority on the

roll of the respondents. He has further prayed for quashment

of orders Annexures A2, A6, A7, A9 and A10.

3. The relevant facts are that the applicant was

allotted the aforesaid accommodation and in pursuance of

the allotment he occupied the same. Someone else made a

complaint in writing that the allotment made in favour of the

applicant was bad in view of the fact that he was not entitled

to Married Accommodation as he was below 25 years of

age. In this connection the learned counsel for the

respondents submitted that the accommodation allotted to

the applicant could be allotted to a person who had

completed 25 years of age and was married and whose turn

had come for the allotment. In view of the fact that the

applicant was not entitled to be allotted the aforesaid

accommodation but was wrongly allotted, so it was decided

to cancel the accommodation. Accordingly, after serving

him a show cause notice, the order dated 5th December

2013 (Annexure A10/2) was passed by the Estate Officer

under Section 5 of the Public Premises (Eviction of

Unauthorised Occupants) Act, 1971, hereinafter referred to

as the Act, and in pursuance of that order the applicant was

required to vacate the accommodation. It is also significant to state

that the applicant vacated the accommodation on 27th

December 2013 in pursuance of the aforesaid order,

therefore, he is not in possession of the accommodation.

4. So far as the relief No.2 is concerned, it has become

infructuous due to the simple reason that the applicant is no

more in possession of the accommodation and as such a

direction to restrain the respondents not to evict him from

the accommodation can not be issued. The applicant has

not set up any prayer for restoration of the possession.

5. So far as the legality of the order passed under

Section 5 of the Act is concerned, the same is an appealable

order and the appeal lies to the District Judge. So, the

applicant cannot be said to be justified in challenging the

order of the Estate Officer before the Tribunal.

6. Mr.V.K.Sathyanathan appearing for the applicant

submitted that the jurisdiction of the Civil Courts has been

excluded by virtue of Section 33 of the Act, so the order

passed by the Estate Officer under section 5 of the Act was

appealable before the Tribunal. A similar question had

arisen before the Apex Court in the matter of Union of

India vs. Rasila Ram and Others, (2001) 10 SCC 623

pertaining to the jurisdiction of the Central Administrative

Tribunal to entertain a petition against the order of the

prescribed authority passed under Section 5 of the Act. The

Apex Court held that the jurisdiction of the appellate

authority was not excluded in any way by the Administrative

Tribunal Act, 1985, so, the Apex Court held that the Central

Administrative Tribunal had no jurisdiction to entertain a

petition against the order passed under Section 5 of the Act.

Mr.V.K.Sathyanathan, however, tried to contend that the

provisions of the Administrative Tribunals Act, 1985 were not

in pari materia with the provisions of the Armed Forces

Tribunal Act.
We do not find any justification to accept this

submission. So far as the question of service matter or

exclusion of the jurisdiction of Civil Court is concerned, both

the enactments are in pari materia, therefore, the verdict of

the Apex Court is quite applicable to the facts of the instant

case. In our view, the applicant should have challenged the

legality of the order passed under Section 5 of the Act

before the appellate authority, instead of approaching this

Tribunal.

7. Mr.V.K.Sathyanathan next contended that the

Commanding Officer had power to allot an accommodation to

a married person below 25 years of age at his discretion and

the applicant’s allotment was made by the Commanding

Officer at his discretion, therefore, the allotment could not be

cancelled. In order to verify this factual aspect of the

matter, we called for the original records which we perused

today. We find that the proposal for allotment in favour of

the applicant was never sent to the Commanding Officer for

allotting the disputed quarter in favour of the applicant. The

allotment was made by some other officer who did not dare

even to inform to the Commanding Officer. Therefore, it

cannot be assumed that the allotment was made either by

the Commanding Officer himself or under his approval.

8. The Rules are very clear. No Married Occupation

can be allotted to a married person who is below 25 years of

age. But in exceptional cases, the Commanding Officer has

power to waive the rule. But in this case no such power was

exercised. The allotment made in favour of the applicant

who was below 25 years of age as married person, was

quite illegal. More so, the respondents instead of adopting

any coercive process against the applicant, decided to

initiate a proceeding against him under the Act and

proceeded accordingly in accordance with law and obtained

the order for the ejectment of the applicant under Section 5

of the Act. So the respondents adopted available legal

recourse for obtaining the said order. In view of the fact

that we do not possess jurisdiction to examine the legality

of the order passed under Section 5 of the Act and appeal

lies against that order, we do not propose to examine the

correctness and legality of the proceedings done under the

Act. It is for the appellate authority under the Act to

consider the question and pass appropriate order, if any

appeal is filed by the applicant. But we would like to observe

that the observations whatsoever we have made in this

order will not cause any prejudice to his rights to press the

appeal.

9. The learned counsel for the applicant lastly

contended that the applicant has already completed 25

years of age on 15th of January, 2014, therefore, he has now

become eligible to seek allotment of a Married

Accommodation, therefore, a direction may be issued to the

respondents to allot him a suitable accommodation. In our

view, no such direction can be issued. The applicant has to

apply for a Married Accommodation. If any such application

is given, the same may be considered in accordance with the

rules and order in vogue, without being prejudiced in any

way due to the institution of this case by the applicant.

10. With the aforesaid observations, the Original

Application is dismissed.

11. No order as to costs.

12. Inform to the parties.

Sd/- Sd/-

VICE ADMIRAL M.P.MURALIDHARAN JUSTICE SHRIKANT TRIPATHI

MEMBER (A) MEMBER (J)

an.

(true copy)

Prl.Pvt.Secretary



The referred judgment is re-produced below :-

———————————————————-

Supreme Court of India

Union Of India (Uoi) vs Rasila Ram And Ors. on 6 September, 2000

Equivalent citations: 2000 (87) FLR 370, JT 2000 (10) SC 503, (2001) 10 SCC 623, (2000) 3 UPLBEC 2678

Bench: G Pattanaik, U Banerjee

ORDER

1. The aforesaid appeals are directed against the order of the Full Bench of the Central Administrative

Tribunal in a batch of applications before it, recording a finding that an order passed by the competent

authority under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 for eviction would also

come within the purview and jurisdiction of the Administrative Tribunal constituted under Administrative

Tribunals Act, 1985. The Tribunal by the impugned order has construed the expression ‘service matter’

defined in Section 3(q) of the Administrative Tribunals Act and because of the expression any other matter

whatsoever’ occurring in Clause (v) thereof, it has come to the conclusion that the eviction of unauthorised

occupants from the Government quarter, would tantamount to a service matter, and therefore, Tribunal retains

jurisdiction over the same, in view of the overriding effect given to the Act by virtue of Section 33 of the said

Act.

2. The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the

“Eviction Act”) was enacted for eviction of unauthorised occupants from public premises. To attract the said

provisions, it must be held that the premises was a public premises, as defined under the said Act, and the

occupants must be held unauthorised occupants, as defined under the said Act. Once, a Government servant is

held to be in occupation of a public premises as an unauthorised occupant within the meaning of Eviction Act,

and appropriate orders are passed thereunder, the remedy to such occupants lies, as provided under the said

Act. By no stretch of imagination the expression, “any other matter,” in Section 3(q)(v) of the Administrative

Act would confer jurisdiction on the Tribunal to go into the legality of the order passed by the competent

authority under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. In this

view of the matter, the impugned assumption of jurisdiction by the Tribunal, over an order passed by the

competent authority under the Eviction Act, must be held to be invalid and without jurisdiction. This order of

the Tribunal accordingly stands set aside. The appeals are accordingly allowed.

Union Of India (Uoi) vs Rasila Ram And Ors. on 6 September, 2000