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.