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MED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI
O A No.77 of 2013
THURSADY, THE 20TH DAY OF FEBRUARY, 2014/1ST PHALGUNA, 1935CORAM:
HON'BLE MR. JUSTICE SHRIKANT TRIPATHI, MEMBER (J)
HON'BLE VICE ADMIRAL M.P.MURALIDHARAN,AVSM & BAR, NM, MEMBER (A)
APPLICANT:
IC 43595W COL KN SREEKUMAR, AGED 48 YEARS,S/O. SHRI N.K.NAIR,NCC GROUP HEADQUARTERS,BARRACK GROUNDS,GANDHINAGAR, BERHAMPUR(GM)-760001,ORISSA. 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 ARMY STAFF, COAS'S SECRETARIAT, INTEGRATED HEAD QUARTERS MINISTRY OF DEFENCE (ARMY) SOUTH BLOCK, NEW DELHI- 110 011.
3. QUARTERMASTER GENERAL, QUARTERMASTER GENERAL'S BRANCH, INTEGRATED HEADQUARTERS OF MOD (ARMY), B-WING, SENA BHAWAN, NEW DELHI -110 011.
O.A.No.77 of 2013 2
4. STATION COMMANDER HEADQUARTERS K & K SUB AREA CUBBON ROAD, BANGALORE – 560001
5. ADM COMMANDANT, STATION HEADQUARTERS CELL CUBBON ROAD, BANGALORE – 560001.
BY ADV. MR. K.M.JAMALUDHEEN, SENIOR PANEL COUNSEL.
ORDER
Shrikant Tripathi, Member (J):
Heard Mr. V.K.Sathyanathan for the applicant and
Mr.K.M.Jamaludheen for the respondents and perused the records.
2. The applicant Col. K.N.Sreekumar IC43595W filed the
instant Original Application for the direction to the respondents to
treat that his occupation of the accommodation 101/1, GTOC, Trinity
Road, Bangalore, hereinafter referred to as the married
accommodation, till 7th of May 2013 was legal. He further prayed for
the direction to the respondents not to recover damages at the
penal rate for the aforesaid accommodation payable till 7th May,
2013.
3. The relevant facts are that, the applicant was posted to 1
Karnataka Battalion NCC in 2010 and was accordingly allotted the
O.A.No.77 of 2013 3
married accommodation on 14th October, 2010. He, thereafter,
proceeded on posting to NCC Group Headquarters Behrampur in
July, 2012. But, he applied for retention of the married
accommodation till the allotment of separated family
accommodation. He was, however, allotted a separated family
accommodation by the Inter Service Quartering Committee
(ISQC)and was accordingly informed of the allotment vide the letter
dated 24th August 2012, whereby he was required to shift to the
new accommodation within 20 days from the date of allotment
order and vacate the married accommodation failing which the
allotment of the new accommodation would be automatically
cancelled and his occupation of the married accommodation would
be deemed as unauthorised with effect from 24th August, 2012. He
instead of shifting to the new accommodation, filed O.A.No.143 of
2012 before this Bench against the aforesaid order and prayed for
an interim stay. The Bench admitted the matter and passed the
following stay order:
O.A.No.77 of 2013 4
"Till next date of listing applicant shall not be required to
vacate the accommodation 101/1, GTOC, Trinity Road,
Bangalore-7."
The applicant, accordingly, continued in occupation of the married
accommodation and did not shift to the allotted separated family
accommodation in the garb of the aforesaid interim stay. The
Original Application was ultimately dismissed on merit vide the
order dated 12th March, 2013 and accordingly the interim stay
granted in his favour stood vacated. Despite the dismissal of the
Original Application on 12th March, 2013, the petitioner continued
thereafter in occupation of the married accommodation till 7th May,
2013. So, his possession from the 12th March, 2013 to 7th May,
2013 was not in any way in pursuance of the interim stay granted
by this Bench.
4. The respondents, after dismissal of the aforesaid O.A.,
proceeded against the applicant with the assumption that his
occupation of the married accommodation was unauthorised from
24th August, 2012 to 7th May, 2013 and accordingly proceeded to
O.A.No.77 of 2013 5
make recovery of the damages as per the rate fixed by the CPWD.
5. Mr. V.K.Sathyanathan submitted that the applicant's
occupation of the married accommodation from 24th August, 2012
till the date of actual vacation was under the stay order granted by
this Bench, therefore, the respondents were not justified in treating
the occupation as unauthorised. He further contended that this
Bench while dismissing the previous Original Application filed by the
applicant, nowhere directed for recovery of damages at the penal
rate. Mr.Sathyanathan next contended that if the applicant was in
any way an unauthorised occupant, the respondents should have
adopted the appropriate recourse available as per the provisions of
the Public Premises (Eviction of Unauthorised Occupants) Act, 1971,
hereinafter referred to as the 'Act of 1971', as the same was
applicable according to their own admission vide letter
No.B/68628/Policy(Qtr) dated 23rd December, 2005 (Annexure-R1).
But, they have not followed the procedure prescribed by Section 7
of the Act of 1971, the order Annexure A4 for recovery of the
damages was not sustainable.
6. Mr. K.M.Jamaludheen, on the other hand, submitted that as
O.A.No.77 of 2013 6
and when the previous Original Application filed by the applicant
was dismissed, the interim stay granted in his favour stood merged
with the dismissal order and the effect thereof would be as if the
stay order never came into existence. So, the applicant could not
be said to be justified in claiming the benefit of the interim stay. Mr.
Jamaludheen next contended that Para 7(f) of the Army Order
191/79 and Para 134 of the Special Southern Commandant Order
No.2/87 clearly empower to recover damages for the unauthorised
occupation of an accommodation. He next contended that the rate
of damages were determined as per procedure laid down in
SAO/10/s/86. Para 37 thereof, being relevant, is reproduced here:
"137. Unauthorised Retentions of Accommodation –Where
married accommodation is available at the station of posting
of the officer but the officer retains married accommodation at
the old duty station for his own convenience except when
otherwise specifically permitted by the competent authority
under the prescribed rules or if the officer retains the
accommodation unauthorisedly beyond the permissible
period, the officer will be charged rent for Government
accommodation under para 14(b) of Quartering Regulations,
i.e., assessed rent or market rent, whichever is more. In the
case of hired accommodation, the rental liability of the officer
will be the rent paid by Government to the landlord plus 10
per cent service charges. The officer is also liable to
O.A.No.77 of 2013 7
disciplinary action for unauthorised occupation of Government
accommodation."
7. Mr. Jamaludheen lastly contended that the Government of
India, Ministry of Defence, vide letter No.B/68628/Q3(B-1)/2450/D
(Q & C) dated 27th May, 1988 has prescribed the rate of the
damages and directed that the damages will be charged with effect
from 1st December, 2004 as per the rate fixed by the CPWD,
Bangalore, so the applicant was liable to pay damages of the
accommodation at the rate of 255/- per Sq.m of the living area. The
living area of the married accommodation illegally occupied by the
applicant was 155.80 Sq.m. Mr. Jamaludheen pointed out that the
determination of damages was made under the Act of 1971 vide the
order dated 2nd April, 2013 (Annexure A4). So, the proper course
for the applicant was to file an appeal under Section 9 of the said
Act instead of filing this Original Application.
8. In rejoinder, Mr. Sathyanathan tried to contend that if at
all any damages was payable, it was payable to the extent of
difference of the living area of the married accommodation held by
the applicant earlier and the living area of the newly allotted
O.A.No.77 of 2013 8
separated family accommodation, which comes approximately to 22
Sq.m. So, the damages being claimed for the whole 155.80 Sq.m
living area of the married accommodation was not proper at all. Mr.
Sathyanathan proceeded further to argue that the Armed Forces
Tribunal Act 2007 has the effect of taking away the provisions of the
appeal provided in the Act of 1971 and as such the Armed Forces
Tribunal had jurisdiction to entertain an appeal against the order
Annexure A4.
9. First of all, we have to see as to whether the applicant's
occupation of the married accommodation during the operation of
the interim stay was not unauthorised notwithstanding the fact that
his original application was ultimately dismissed. In our view, the
legal position is very clear on this point. The Apex Court had
occasion to consider the effect of interim stay in the event of
dismissal of the main petition, in the matter of Amarjeet Singh and
Others v. Devi Ratan and others (2010) 1 SCC 417). In that case,
the Apex Court held that the interim order merges in the final order
and if the writ petition is ultimately dismissed the interim order
stands nullified automatically. The Apex Court further held that the
party cannot be allowed to take any benefit of his own wrongs by
O.A.No.77 of 2013 9
getting an interim order and thereafter blame the court. The Apex
Court applied the maxim actus curiae neminem gravabit viz. the act
of the court, shall prejudice no one and held that the court is
under an obligation to undo the wrong done to a party by
the act of the court and any undeserved or unfair advantage
gained by a party invoking the jurisdiction of the court must be
neutralised. The observations of the Apex Court made in
Paragraphs 17 and 18 being relevant are reproduced below:
"17. No litigant can derive any benefit from mere pendency of
case in a court of law, as the interim order always merges in the
final order to be passed in the case and if the writ petition is
ultimately dismissed, the interim order stands nullified
automatically. A party cannot be allowed to take any benefit of
its own wrongs by getting an interim order and thereafter
blame the court. The fact that the writ is found, ultimately,
devoid of any merit, shows that a frivolous writ petition had
been filed. The maxim actus curiae neminem gravabit, which
means that the act of the court shall prejudice no one, becomes
applicable in such a case. In such a fact situation the court is
under an obligation to undo the wrong done to a party by the
act of the court. Thus, any undeserved or unfair advantage
gained by a party invoking the jurisdiction of the court must be
neutralised, as the institution of litigation cannot be permitted to
confer any advantage on a suitor from delayed action by the act
of the court. (Vide Shiv Shankar v. U.P. SRTC, GTC Industries
O.A.No.77 of 2013 10
Ltd. v. Union of India and Jaipur Municipal Corpn. v. C.L.Mishra).
18. In Ram Krishna Verma v. State of U.P. this Court
examined the similar issue while placing reliance upon its earlier
judgment in Grindlays Bank Ltd.v. ITO and held that no person
can suffer from the act of the court and in case an interim order
has been passed and the petitioner takes advantage thereof and
ultimately the petition is found to be without any merit and is
dismissed, the interest of justice requires that any undeserved
or unfair advantage gained by a party invoking the jurisdiction
of the court must be neutralised."
10. In the previous O.A.No.143 of 2012, no doubt, the
respondents were directed by the interim stay not to require the
applicant to vacate the married accommodation till the next date of
the listing. But, it is also equally true that the Original Application
was ultimately dismissed as the same was baseless. The interim
order was not passed to confer any independent right on the
applicant and it was passed looking into the facts and
circumstances of the case, including urgency of the matter. When
the Original Application was ultimately dismissed, the interim order
stood merged with the final order as if it never came into being. As
held by the Apex Court in Amarjeet Singh's case (supra), the
interim order of the court cannot be used as a tool to discard the
O.A.No.77 of 2013 11
steps being taken by the respondents to recover the damages as
per the policy of the Government.
11. In view of the aforesaid, in our view, the applicant is not
entitled to any benefit of the interim stay granted in the matter of
the previous Original Application.
12. The next question that arises for our consideration is
whether this Tribunal has jurisdiction to hear an appeal against the
order for the recovery of damages rendered under the Act of 1971,
which seems to be a complete code to deal with the matters, inter
alia, for the eviction of unauthorised occupants from public premises
and for certain incidental matters. Section 3 of the said Act provides for
appointment of Estate Officers and the officer so appointed alone
seems to be competent to issue notice under Section 4 or 7, as the
case may be, of the Act of 1971 and pass appropriate order. His
order has been made appealable under Section 9 of the Act of
1971, according to which the appeal lies to the Appellate Officer
who shall be the District Judge of the District in which the public
premises situate. The appellate power can also be exercised by
O.A.No.77 of 2013 12
such other judicial officer in the District of not less than 10 years
standing, as may be designated by the District Judge in this behalf.
In this connection, Mr. V.K.Sathyanathan tried to contend that the
Armed Forces Tribunal Act, 2007, hereinafter referred to as the Act
of 2007, has an over-riding effect on all other previous legislations
by virtue of Section 39 thereof, so the provisions of section 9 of
the Act of 1971 stood ineffective and as such the appeal was
maintainable before the Armed Forces Tribunal.
13. It is true that Section 39 of the Act of 2007 has over-
riding effect on other inconsistent enactments but, only with
regard to the matters, in respect of which the Armed Forces
Tribunal has been conferred with the jurisdiction. If any matter has
not been specifically brought within the domain of the Act of 2007,
the jurisdiction of the Tribunal cannot be extended to include that
matter also in the garb of the aforesaid section 39.
14. The Act of 2007 has been enacted to provide for the
adjudication or trial by Armed Forces Tribunal of disputes and
complaints with respect to commission, appointments, enrolment
O.A.No.77 of 2013 13
and conditions of service in respect of persons subject to the Army
Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950 and also
to provide for appeals arising out of orders, findings or sentences of
courts-martial held under the said Acts and for matters connected
therewith or incidental thereto. Section 2 of the Act deals with the
application of the Act, according to which, the Act is applicable to all
persons subject to the Army Act, the Navy Act and the Air Force Act
and is also applicable to retired personnel, who had been subjected
to these three Acts, including their dependents, heirs and
successors in so far as it relates to their service matters. The
provisions of Section 2 being relevant is reproduced as follows:
“2. Applicability of the Act:--(1) The provisions of this
Act shall apply to all persons subject to the Army Act,
1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) or
the Air Force Act, 1950 (45 of 1950) including their
defendants, heirs and successors, in so far as it relates
to their service matters.”
15. Section 3(o) of the Act defines service matters in relation
to the persons subject to the Army Act, the Navy Act and the Air
O.A.No.77 of 2013 14
Force Act, according to which, all matters relating to the conditions
of their service come within the category of service matters,
including the following matters, namely:-
(i)remuneration (including allowances), pension
and other retirement benefits;
(ii) tenure, including commission, appointment,
enrolment, probation, confirmation, seniority,
training, promotion, reversion, premature
retirement, superannuation, termination of service
and penal deductions;
(iii) summary disposal and trials where the
punishment of dismissal is awarded.
(iv) any other matter, whatsoever.”
The aforesaid section 3(o) has, however, excluded the following
matters from the purview of the service matters, namely:-
(i) orders issued under section 18 of the Army
Act 1950 (46 of 1950), sub-section (1) of section
15 of the Navy Act, 1957 (62 of 1957) and section
18 of the Air Force Act, 1950 (45 of 1950) ; and
(ii) transfers and postings including the change
of place or unit on posting whether individually or
O.A.No.77 of 2013 15
as a part of unit, formation or ship in relation to
the persons subject to the Army Act 1950 (46 of
1950), the Navy Act, 1957 (62 of 1957) and the
Air Force Act, 1950 (45 of 1950) ;
(iii) leave of any kin;
(iv) Summary Court Martial except where the
punishment is of dismissal or imprisonment for
more than three months;”
16. A reference can also be made to Section 14 of the Act,
which confers jurisdiction, power and authority on the Armed
Forces Tribunal in “service matters”. According to sub-section (1)
of Section 14, save as otherwise expressly provided in the Act, the
Tribunal exercises, on and from the appointed day, all the
jurisdiction, powers and authority exercisable immediately before
that day by all courts (except the Supreme Court or a High Court
exercising jurisdiction under Articles 226 and 227 of the
Constitution) in relation to all “service matters”. Other sub-
sections of Section 14 pertain to the procedure as to how the
Tribunal has to exercise its powers and jurisdiction in dealing with
any original application. Section 14 of the Act, being relevant, is
reproduced as follows:
O.A.No.77 of 2013 16
“14. Jurisdiction, powers and authority in service
matters:-- (1) Save as otherwise expressly provided
in this Act, the Tribunal shall exercise, on and from the
appointed day, all the jurisdiction, powers and
authority, exercisable immediately before that day by
all courts (except the Supreme Court or a High Court
exercising jurisdiction under article 226 and 227 of the
Constitution) in relation to all service matters.
(2) Subject to the other provisions of this Act, a person
aggrieved by an order pertaining to any service mater
may make an application to the Tribunal in such form
and accompanied by such documents or other evidence
and on payment of such fee as may be prescribed.,
(3) On receipt of an application relating to service
matters, the Tribunal shall, if satisfied after due inquiry,
as it may deem necessary, that it is fit for adjudication
by it, admit such application; but where the Tribunal is
not so satisfied, it may dismiss the application after
recording its reasons in writing.
(4) For the purpose of adjudicating an application, the
Tribunal shall have the same powers as are vested in a
Civil Court under the Code of Civil Procedure, 1908 (5
of 1908), while trying a suit in respect of the following
O.A.No.77 of 2013 17
matters, namely:--
(a) summoning and enforcing the attendance
of any person and examining him on oath;
(b) requiring the discovery and production of
documents;
(c) receiving evidence on affidavits;
(d)subject to the provisions of section 123 and
124 of the Indian Evidence Act, 1872 (1 of
1872), requisitioning any public record or
document or copy of such record or document
from any office;
(e) issuing commissions for the examination of
witnesses or documents;
(f) reviewing its decisions;
(g) dismissing an application for default or
deciding it ex parte;
(h) setting aside any order of dismissal of any
application for default or any order passed by it
ex parte; and
(i) any other matter which may be prescribed
by the Central Government.
(5) The Tribunal shall decide both questions of
law and facts that may be raised before it.”
17. Mr. Sathyanathan argued that the matter pertaining to
O.A.No.77 of 2013 18
determination of damages under the Act of 1971 would come within
“any other matter whatsoever” provided in Section 3(o)of the Act of
2007.
18. Whether the order making recovery of damages from the
applicant for his unauthorised occupation of the married
accommodation comes within the category of “any other matter
whatsoever” provided in Section 3(o) of the Act of 2007 is the
paramount question required to be considered for deciding the
question of jurisdiction of this Bench.
19. A similar provision has been incorporated in Section 3(q) of
the Administrative Tribunals Act, 1985 while defining the service
matters pertaining to persons inter alia appointed to the public
services and posts in connection with the affairs of the Union or of
a State. In that definition too, “any other matter, whatsoever”, as
provided in Section 3(o) of the Act of 2007 has been incorporated.
A Full Bench of the Central Administrative Tribunal had occasion to
examine a similar question of jurisdiction and formed the opinion
that the eviction of unauthorised occupant from the Government
O.A.No.77 of 2013 19
quarter would tantamount to a service matter. The decision of the
Full Bench of the Central Administrative Tribunal was impugned
before the Apex Court in the matter of Union of India v. Rasila
Ram and Others (2001) 10 SCC 623. The Apex Court very
clearly held that by no stretch of imagination the expression “any
other matter”under Section 3(q) of the Administrative Tribunals Act
would confer jurisdiction on the Tribunal to go in to the legality of
the order passed by the competent authority under the provisions of
the Public Premises (Eviction of Unauthorised Occupants) Act,
1971. The relevant observations of the Apex Court made in
Paragraph 2 of the judgment are reproduced as follows:
“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
O.A.No.77 of 2013 20
other matter,” in Section 3(q)(v) of the Administrative Tribunal
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”.
20. In view of the aforesaid, we are of the opinion that the
jurisdiction of the Appellate Officer exercisable under Section 9 of
the Public Premises (Eviction of Unauthorised Occupants) Act of
1971 has not been excluded in any way by the Armed Forces
Tribunal Act 2007, so the Tribunal is not competent to exercise an
appellate jurisdiction in such matter.
21. As this Tribunal has no jurisdiction to exercise appellate
power under Section 9 of the Act of 1971 against an order of the
Estate Officer, we do not consider it proper to express any opinion
in regard to the following questions:
(i) whether or not the order Annexure A4 was rendered after
O.A.No.77 of 2013 21
due compliance of Section 7 of the Act of 1971?
(ii) whether or not the applicant was liable to pay damages
only with regard to the difference of living area between the married
accommodation and the living area of the separated family
accommodation?.
The aforesaid questions are beyond the domain of the Tribunal.
22. For the reasons stated above, the O.A. is dismissed.
23. There will be no order as to costs.
24. Issue free copy of this order to both sides.
Sd/- Sd/-
VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE SHRIKANT TRIPATHI, MEMBER(A) MEMBER(J)
krs. (True Copy )
Private Secretary