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