Dileep Kumar vs State Of U.P. And 2 Others
2021 Latest Caselaw 7267 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 35
 

 
Case :- WRIT - A No. - 7010 of 2021
 

 
Petitioner :- Dileep Kumar
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Raja Ullah Khan
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Jayant Banerji,J.

Heard learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents.

This petition has been filed with the following prayers:-

"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 28.12.2020 (Annexure No. 4) passed by respondent No.3, commandant 8th Bn. P.A.C. Bareilly.

(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents not to take coercive action of being deduction of rent Rs. 5,50,800.00 from the salary of petitioner in view of order impugned, during the pendency of present writ petition".

The contention of the learned counsel for the petitioner is that an amount of Rs. 5,50,800/ is being demanded and sought to be recovered from the petitioner by the respondent No.3 due to not vacating the official accommodation for a period of four years. The contention is that the petitioner had vacated the official premises on 26.9.2020 and the order to that effect has been enclosed as Annexure No. 3 to the writ petition. It is stated that the petitioner is neither granted house rent allowance nor barrack allowance and without giving any opportunity of hearing, the order has been passed imposing standard rent deduction for illegal occupation of the official accommodation.

Learned Standing Counsel has vehemently argued that the final notice dated 30.4.2020 was issued to the petitioner that has been enclosed as Annexure No.2 to the writ petition, in which it was specifically pointed out that he was continuing to occupy the official accommodation illegally and under the relevant Government Orders as well as order of the High Court dated 30.9.2003, whereby it is required to vacate the official accommodation within one month of being transferred but he continued to illegally occupy the said official accommodation and vacated it only on 26.9.2020. It is contended that act of the petitioner is deliberate and contrary to the rules.

A perusal of the final notice dated 30.4.2020 that has been enclosed as Annexure No. 2 to the writ petition reveals that a break-up of the rent payable by the petitioner from 8.5.2016 till April 2020 has been given in a tabulated chart. The petitioner has not been able to point out any illegality in the said notice and even after final notice dated 30.4.2020, the petitioner chose to vacate the premises on 26.9.2020. The petitioner is liable to pay the specified rent where he has failed to vacate the official accommodation within the time specified.

A division bench of this Court in K.M. Raizada Vs. Nagar Ayukt, Nagar Nigam, Aligarh and others reported in 2004 (1) ESC 164, has held as follows:

"3. The Appellant was in the employment of Nagar Nigam, Aligarh and in that capacity, he was allotted an official accommodation at Ghanta Ghar, Civil Lines, Aligarh in 1989. He retired in February 2003, but he has not yet vacated the official accommodation in his possession.

4. Learned Counsel for the Appellant has relied on a scheme of the State Government inviting application for conversion of nazul land into free hold. In our opinion, this is wholly irrelevant to the present case. When an employee in possession of an official accommodation retires or is transferred, he should within a reasonable time vacate the accommodation in his possession, otherwise his successor will have no place to live in. Decent people vacate the accommodation soon after retirement or transfer, but in this country, decency is evidently at a discount. Case after case is coming before us in which an official, who has retired or was transferred, continues to hold on to the official accommodation, often even several years after the retirement or transfer. This disgraceful practice has become rampant and now it must be put at an end.

5. We, therefore, dismiss this appeal, but we also direct that the Appellant will be evicted from the official accommodation in his possession by police force within one month from today unless he vacates it earlier.

6. We further direct that throughout U.P. all official accommodations must similarly be got vacated within one month of the retirement/transfer of the employee of the Government, Local Bodies, Public Sector undertakings, statutory bodies, etc. by police force unless the employee voluntarily vacates it earlier. The employees who have already retired or have been transferred more than one month before this judgment, will be evicted from the official accommodation in their possession within a week."

The Supreme Court in Union of India Vs. Sisir Kumar Deb reported in (2010) 15 SCC 788, has held as follows:-

"3.The respondent having retired from service was expected to vacate the quarter occupied by him as an employee of the Railway Administration. He failed to do so. In proceedings bearing No. 148 of 1988 arising out of MA No. 223 of 1897 in the matter of TA No. 1019 of 1986, the Central Administrative Tribunal (Calcutta Bench) passed an order to the following effect:

"Therefore, in our opinion, he has really committed contempt of this Tribunal. However, we give him a last chance to vacate the quarter and pay the arrears of rent within a month failing which he would be sent to civil prison until he complies with the order passed by the Tribunal in MA No. 223 of 1987 and the present order."

4. After this order was passed, since the respondent did not comply, the Railway Administration deducted the amount due from the pension relief admissible to the respondent. The respondent thereupon filed O.A. No. 599 of 1992 in the Central Administrative Tribunal (Calcutta Bench). This OA was heard by the Judicial Member, Shri N. Sen Gupta who was also a Member of the Bench which heard the application and passed the extracted order. Even after taking note of the earlier order passed by the Bench to which he was a party, and was in fact its author, he proceeded to pass the impugned order by which the Department was precluded from recovering the amount from the pension relief and directed refund of the amount already recovered. What is now surprising is that after taking note of the earlier order in para 4 of the impugned order, instead of taking action against the respondent as per the earlier order, he directed the Railway Administration to refund the amount and even left the matter in regard to grant of complimentary passes open. Therefore, instead of taking action in contempt against the respondent by the impugned order, the Department was prevented from realising its dues from the respondent who overstayed the period postretirement. The Tribunal also did not take note of this Court's decision in Union of India Vs. Shiv Charan by which this Court had permitted deduction of the charges due from the occupant from the dues payable to him. Besides, no valid ground has been given for not permitting the deduction to the Department. We find it difficult to comprehend the rationale for the view taken by the Judicial Member. Instead of ensuring delivery of possession from a person who, in violation of the Tribunal's order, was continuing to occupy the quarter and who could not have been said to have approached the Tribunal in OA No. 599 of 1992 with clean hands, the Tribunal has virtually rewarded him, in that, he can now continue to remain in occupation of the quarter indefinitely and also not pay the charges for the same. The learned Member should have visualised the situation that would arise by the said order. We, therefore, cannot allow the order to stand.

5.In the result, we set aside the impugned order dated 25.02.1993. We further make it clear that the Railway Administration will be free to take possession of the quarter from the respondent, if necessary, by use of force, if he does not deliver the possession within 15 days. The Railway Administration will also be free to recover its dues from any amount payable to the respondent and if the same falls short, the difference in accordance with law."

No indulgence under the circumstances, can be granted to the petitioner in exercise of jurisdiction under Article 226 of the Constitution of India. The entire amount claimed in the impugned order dated 28.12.2020 is to be paid / recovered without any delay. However, after payment / recovery of the amount, in case any excess amount has been charged, it is open for the petitioner to seek correction and refund of the same.

This petition lacks merit and is, accordingly, dismissed.

Order Date :- 8.7.2021

sfa/

(Jayant Banerji, J)