Hemant Kumar vs Union Of India & Ors
2017 Latest Caselaw 5653 Del

             IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Judgment delivered on: October 12, 2017

+     W.P.(C) 8942/2017
      HEMANT KUMAR
                                                                         ..... Petitioner
                                   Through:   Mr.Anirudh Sharma, Adv. with Mr.Abhaid
                                              Parikh, Adv.

                          versus

      UNION OF INDIA & ORS                                             ..... Respondent
                         Through:             Ms.Sangita Rai, Adv. for R1-UOI
                                              Mr.Jivesh Tiwari, Adv. for Mr.Sandeep
                                              Mahapatra, Adv. for R2-R5
                                              Mr.Kalyan Babu Singh

CORAM:
HON'BLE MR JUSTICE V. KAMESWAR RAO

                                     JUDGMENT

V. KAMESWAR RAO, J (ORAL)

CM No.36571/2017 (direction)

This is an application filed by the petitioner for filing lengthy list of dates. The

application is allowed and disposed of. The list of dates as filed is taken on record.

W.P.(C) 8942/2017

1. The present has been filed by the petitioner with the following prayers:

"In view of the above facts and circumstances it is most respectfully prayed that this Hon'ble Court be pleased to:

i) Strike down / quash, Rule / Instruction 7 (C), 14 E) and 14 F) of the Allotment of Resident-

Instructions dated 5.12.2011 of the Respondent ONGC;

ii) Direct the Respondent no.2 to provide, all the recoveries (with interest) wrongfully made by the Respondent, from the salary of the Petitioner and;

iii) Direct the Respondent ONGC to provide to the

Petitioner, HRA from the time of transfer of the Petitioner to Uran, Mumbai till today and thereafter.

iv) Pass such other or further order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances."

2. The petitioner is an employee of an Oil Natural Gas Corporation (ONGC). He

was allotted a Flat No.B-26 7th Floor, ONGC Housing Complex Sector-39, Noida. The

petitioner's license with respect to the said flat was cancelled on account of the

petitioner being transferred by the employer to Navi Mumbai. Petitioner submitted the

surrender letter of the licensed premises to the employer on May 29, 2015 without

actually handing over the possession because as per the case of the petitioner his

estranged wife was refusing to hand over the possession of the premises to him or to the

employer directly. The employer was deducting the license fee from the salary of the

petitioner. The petitioner challenged the said action of the ONGC in a Writ Petition

being W.P. (C) 6357/2016. The same was decided on February 02, 2017 on the

following terms:

"6. In view of the above, this writ petition is based on no legal cause of action inasmuch as there is no law or rule of the employer/organization by which the licence or charges for use and occupation fee cease to be paid merely on handing over of nominal possession without handing over actual vacant physical possession. Petitioner will be liable therefore to pay licence fee or any other charges payable to the employer as per its rules to the respondent No.2 till actual physical possession of the licenced premises is received back by the employer/respondent No.2. In view of the facts of the present case I further direct that wife of petitioner Ms. Sakshi will be given a notice of one month from today to vacate the licenced premises inasmuch as Ms. Sakshi has already had more than around one and half years time to vacate the premises which has not been vacated, and after expiry of one month from today, the respondents along with

petitioner can approach the concerned police authorities who will provide police assistance, and the respondents will not use more than reasonable force than which is necessary so that the licenced premises being Flat No.B-26, 7th Floor, ONGC Housing Complex, Sector-39, Noida-201301 are got vacated by the respondent No.2 and actual physical vacant possession thereof is received by respondent No.2 from whoever is in possession of the aforesaid licenced premises."

3. The above said order was taken in appeal by the estranged wife of the petitioner

as well as by the petitioner himself. In so far as the appeal being LPA 147/2017 of the

estranged wife was concerned, the impugned order was not interfered by the Appellate

Court except the time for vacating the flat was extended by a period of 15 days. The

Division Bench also observed that the ONGC will be entitled to charge rental for the

period of 15 days in accordance with law from the original licensee.

4. Insofar as the appeal being 160/2017 filed by the petitioner herein, was concerned

the same was withdrawn by the Counsel appearing for the petitioner stating that he

would like to challenge the rule relating to the penal rent and rate of penal rent.

5. It is the submission of the learned counsel for the petitioner that the petitioner is

within his right to challenge the vires of the rule regulating penal rent, and if succeeded

the petitioner shall be entitled to the refund of the penal rent charged by the ONGC. In

this regard he would rely upon the following judgments of the Supreme Court in the

cases of Nand Kishore Vs. State of Punjab, (1995) 6 SCC 614 and Mahendra Lal

Jaini Vs. State of Uttar Pradesh and Others AIR 1963 SC 1019

6. I am unable to accept the aforesaid submission made by the learned counsel for

the petitioner for the simple reason that the judgment dated February 2, 2017 of the

Single Judge in Writ Petition No.6357/2016 has attained finality, wherein the Single

Judge has also held that the petitioner is liable to pay licence fee or any other charges to

the ONGC as per its rules till actual physical possession is received back by the ONGC.

Even the Division Bench in its order dated March 1, 2017 in LPA 147/2017 has

observed that the ONGC will be entitled to charge rental for the fifteen days period

allowed by the Court in favour of the estranged wife of the petitioner in accordance with

law. The orders would reveal that even the aspect of payment of license fee as per rules

has been settled by the Court. The issue cannot be reopened on the ground that the vires

of the rule(s) has been challenged. In other words assuming such a challenge is

permissible still no relief can be granted to the petitioner in view of the fact that the writ

petition filed by the petitioner has been dismissed which has put stamp of approval on

the issue of recovery of penal rent by the ONGC. The challenge to vires of the rule(s)

shall be mere academic. The reliance placed by the learned counsel for the petitioner on

the judgment of the Supreme Court in the case of Nand Kishore (supra) is concerned

the same shall not be applicable in the facts of this case inasmuch as the issue with

regard to compulsory retirement of the petitioner in that case had not attained finality as

the order of the High Court was also challenged by the petitioner therein before the

Supreme Court and the Supreme Court had set aside the compulsory retirement as rule

5.32, which governed compulsory retirement was held to be void in view of the

judgment of the Supreme Court in the case of Gurudev Singh Siddhu vs. State of

Punjab 1964 (7) SCR 587. Suffice to state, there is no such declaration in the case in

hand. Insofar as the reliance placed by the learned counsel for the petitioner on the

judgment of Mahendra Lal (supra) to contend that the Doctrine of eclipse would not

apply to post Constitutional Laws which are governed by Article 13 (2) which

contemplates that any law made in contravention of the fundamental rights shall be void

is not appealing for the same reason as already stated above. I do not see any merit in

the petition. The same is dismissed.

CM No.36570/2017 (stay)

Dismissed as infructuous.

V. KAMESWAR RAO, J OCTOBER 12, 2017 akv