Prof.(Dr.) S.K.Kacker vs Aiims
2012 Latest Caselaw 735 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RFA No.874/2003

%                                                    3rd February, 2012

PROF.(DR.) S.K.KACKER                                     ...... Appellant
                    Through:             Mr. C.Hari Shankar with
                                         Mr. C.M.Jaya Kumar &
                                         Mr. Pushkar Kumar Singh, Advs.

                            VERSUS

AIIMS                                                     ...... Respondent
                            Through:     Mr. Rajat Katyal with
                                         Ms. Prarthna Kedia, Advs. for AIIMS.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?                  Yes.


VALMIKI J. MEHTA, J (ORAL)

1.             The challenge by means of this Regular First Appeal filed under

Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned

judgment of the Trial Court dated 1.8.2003 dismissing the suit filed by the

appellant/plaintiff, an ex-Director of All India Institute of Medical Sciences,

for recovery of an amount of Rs.4,23,914/-.

2.             The Trial Court dismissed the suit on account of the fact that the

claim of the appellant/plaintiff was adjusted against the claims of the
RFA No.874/2003                                                      Page 1 of 6
 respondent/defendant towards penal rent for occupation of Director's

Bunglow, recovery towards car loan and the fact that the appellant/plaintiff

was paid salary for the period he did not work.

3.          Learned counsel for the appellant/plaintiff very fairly confines

the relief claimed in the appeal only to disputing the claim of the

respondent/defendant for penal rent for the period from 19.7.1996 to

31.10.1996 inasmuch as during this period the appellant/plaintiff continued in

the premises by virtue of an undertaking given by the counsel for the

respondent/defendant/AIIMS in a Writ Petition filed in this Court.        The

appellant/plaintiff ultimately retired on 31st October, 1996. Learned counsel

for the appellant/plaintiff has relied upon the judgment in the case of Ram

Dayal Rai vs. Jharkhand State Electricity Board & Ors., 2005(3) SCC 501

wherein the Supreme Court in para 16 has held that when a person stays in a

government accommodation pursuant to orders passed by the Court, then, it

cannot be said to be totally unauthorized occupation. It was held that, no

doubt, recovery can be made, for occupation of the premises, of more than the

normal rate of rent, however, there cannot be disproportionate reduction from

the pensionary benefits of a retired employee. In the facts of the case before

the Supreme Court since the admitted rent was Rs.25 /- per month, the
RFA No.874/2003                                                   Page 2 of 6
 Supreme Court directed the payment of Rs.500/- per month for the period of

unauthorized occupation which was from 1.11.1999 to 6.1.2000. The Supreme

Court, in fact, did not allow the Government to make deductions during the

period for which the employee had stayed pursuant to the orders passed by the

Courts. Paras 16 and 17 of the judgment in the case of Ram Dayal Rai

(supra) read as under:-

            "16. In the instant case, the appellant vacated the quarter
            in question within the period specified by the High Court
            and he informed the respondents about the vacation of the
            quarters and even after this information the appellant was
            penalized. The punishment of 5% cut in pensionary
            benefits, in our opinion, is disproportionate to the
            misconduct alleged against the appellant. The appellant
            vacated the Board's quarters on 6.1.2000 whereas he ought
            to have vacated the same on 1.11.1999 as per order dated
            4.10.1999 of the High Court. The High Court, on various
            occasions, ordered extension of period on humanitarian
            grounds. Therefore, extension of time granted by the High
            Court and the occupation of the quarters during that period
            as per the orders of the Court cannot be treated as or
            construed as an unauthorized occupation. The continuance
            thereof in the quarters in question can, therefore, be treated
            only as litigious possession. But the fact remains that he
            had not vacated the quarters on 1.11.1999 but in fact
            vacated only on 6.1.2000.

            17. We are, therefore, of the opinion that the impugned
            order does call for interference by this Court and
            modification of the same in order to meet the ends of
            justice. The occupation of the quarters after 1.11.1999 is
            illegal. When a question was put, the learned counsel
RFA No.874/2003                                                    Page 3 of 6
             appearing for the appellant submitted that he was paying the
            monthly rent of `25. Justice would be amply met if we
            direct the appellant to pay a sum of `5000 per month for the
            entire period of illegal occupation (from 1.11.1999 to
            6.1.2000). The balance of convenience and the prima facie
            case is also in favour of the appellant. If the pensioner's
            benefit is cut at 5% out of the total amount of pension
            payable to the appellant, the appellant will suffer an
            irreparable loss and injury since, after retirement, the
            pensrionary benefit is the only amount available to take out
            a livelihood for the retired employees of the Government."

4.          In the facts of the present case, the appellant/plaintiff admittedly

continued to stay in the premises of respondent/defendant/AIIMS for the

duration of the Writ Petition on account of the statement given by counsel for

the respondent/defendant/AIIMS in the Writ Petition which was filed by the

appellant/plaintiff. Therefore, in terms of the ratio of the judgment of the

Supreme Court in the case of Ram Dayal Rai (supra), the possession of the

appellant/plaintiff cannot be said to be unauthorized occupation entitling the

respondent/defendant/AIIMS to claim penal charges for the said period. The

respondent/defendant/AIIMS, therefore, cannot claim the penal charges,

except the admitted rent for the period during which the Writ Petition of the

appellant/plaintiff remained pending in this Court. Thereafter, however, the

respondent/defendant is entitled to claim a reasonable amount for the period

from 19.7.1996 to 31.10.1996 - the period of unauthorized occupation, by
RFA No.874/2003                                                    Page 4 of 6
 deduction from the retiral benefit of the appellant/plaintiff.

5.           Accordingly, this appeal is disposed of by dismissing the appeal

so far as the claims other than the claims being the unauthorized deductions

made by the respondent/defendant/AIIMS for the period for which the

appellant/plaintiff stayed in the Director's Bunglow of AIIMS. It is clarified

that the appellant/plaintiff will not be liable to pay any penal charges for the

period during which the Writ Petition remained pending before this Court and

which period ended on 19.7.1996. The respondent/defendant/AIIMS can for

the period from 19.7.1996 to 31.10.1996, claim reasonable charges in

accordance with the aforesaid ratio of the Supreme Court's judgment in the

case of Ram Dayal Rai (Supra).

6.           Accordingly, let the respondent/defendant/AIIMS pass an

appropriate speaking order qua the claim of a reasonable amount for

occupation by the appellant/plaintiff of the Director's Bunglow of the

respondent/defendant/AIIMS from 19.7.1996 to 31.10.1996, and, such claim

can    thereafter    be    adjusted     against    the    monies    which        the

respondent/defendant/AIIMS has of the appellant/plaintiff. Any amount in

excess, thereafter available with the respondent/defendant, be refunded back

to the appellant/plaintiff within a period of 4 weeks of passing of the order.
RFA No.874/2003                                                      Page 5 of 6
 7.          Parties are left to bear their own costs. Appeal is disposed of

accordingly in terms of the aforesaid observations.



                                                  VALMIKI J. MEHTA, J.

FEBRUARY 03, 2012 ak