Delhi High Court
Prof. P R Ramanujam vs Vice Chancellor (Ignou) & Anr on 27 August, 2020
SINDHU KRISHNAKUMAR
27.08.2020 14:56
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 11th August, 2020
Date of decision: 27th August, 2020
+ W.P.(C) 3505/2020
PROF. P R RAMANUJAM ..... Petitioner
Through: Mr. Ritwik Parikh, Advocate. (M:
9999320409)
versus
VICE CHANCELLOR (IGNOU) & ANR. ..... Respondents
Through: Mr. Aly Mirza, Advocate for R-1 and
2. (M:9899720944)
CORAM:
JUSTICE PRATHIBA M. SINGH
JUDGMENT
Prathiba M. Singh, J.
1. The judgment is pronounced through video-conferencing.
2. The Petitioner has filed the present petition seeking setting aside of the
orders dated 21st May, 2020 and 5th June, 2020 passed by Indira Gandhi
National Open University (hereinafter, 'IGNOU') and further seeking one
month's time to vacate the residential accommodation allotted to him.
Brief Background
3. The Petitioner's case is that he is a founding member of IGNOU. He
is a retired Professor and Ex-Pro-Vice Chancellor of IGNOU. He
superannuated from the University on 31st August, 2019. During his tenure
at IGNOU, he was allotted residential accommodation at the Asiad Village.
Vide e-mail dated 4th September, 2019, the Petitioner had sought extension to
retain the allotted flat, as per the House Allotment Rules, for a total period of
eight months from his superannuation i.e. till 30th April, 2020.
4. On 24th April, 2020, the Petitioner again wrote to the Vice Chancellor,
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:27.08.2020 12:33
IGNOU seeking a further extension beyond 30th April, 2020 for a period of
six months, due to the Covid-19 lockdown. However, the Competent
Authority granted, vide e-mail dated 29th April, 2020 an extension of one
month to the Petitioner beyond 30th April, 2020, as a special case, on the
following terms to vacate the premises:
"With reference to your letter dated 24.04.2020,
approval is hereby conveyed for retention of flat
No.181 at Asian Games Village Complex and
extension for a period of one month on double of the
normal licence fee beyond 30.04.2020 as a special
case due to complete lockdown to non-essential
services in the country.
You are therefore, requested to deposit the payment
as per the House Allotment Rules which is as
follows:-
1. Rs.1190/- per month for four months i.e. from
01.09.2019 to 31.12.2019((Normal Rate of Licence
fee)
2. Rs.2380/- per month for four months i.e. from
01.01.2020 to 30.04.2020(Double the Normal Rate
of Licence fee)
3. Rs.2380/- for a month i.e. from 01.05.2020 to
31.05.2020 (Double the Normal Rate of Licence
fee).
This issues with the approval of the Competent
Authority."
5. Thereafter vide email dated 21st May, 2020 sent to him by the
Competent Authority, the Petitioner was granted permission to retain the flat
for another five months i.e. till 31st October, 2020 but on payment of 65 times
of normal license fee i.e. Rs. 77,350/- per month. The said email reads as
under:
"In continuation of our earlier communication
dated 29.04.2020 thereby informing you the
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:27.08.2020 12:33
approval of the competent authority for retention of
flat No.181 at Asian Games Village Complex with
the extension for a period of one month to retain it
on double of the normal licence fee beyond
30.04.2020 upto 31.05.2020, as a special case due
to complete lockdown to non-essential services.
Since, you had originally requested for six month
retention of the flat for which the permission to
retain it for one month only is going to expire on
31st May, 2020, I am directed to inform you that
Competent Authority has approved for retention of
flat for another five months on payment of market
rent @65 times of normal licence fee i.e. Rs.1190/-
x 65=Rs. 77350/- per month x 5 months = Rs.
3,86,750.
You are, therefore, requested to deposit the amount
as stated above for retention of flat for five months
i.e. from 01.06.2020 to 31.10.2020. The receipt of
the same may kindly be deposited with Gen. Admn.
for records."
This is the letter which is under challenge before this Court.
6. Further communications were again issued on 29th May, 2020 and 5th
June, 2020, reiterating the above stand of the University that as per the
decision of the House Allotment Committee (hereinafter, 'HAC'), retention
of the flat by him beyond 31st May, 2020 would only be on payment of
applicable market rent.
Submissions of Parties
7. The submission of Mr. Ritwik Parikh, ld. counsel for the Petitioner is
that the Petitioner is a disabled person who is a wheelchair user and is also a
diabetic patient. He submits that the rationale for which the extension was
given in April, 2020 and thereafter in May, 2020 by IGNOU i.e. the lockdown
situation due to the pandemic, would continue to apply till the lockdown is
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:27.08.2020 12:33
lifted. Thus, according to the Petitioner, he ought to be given permission to
retain the premises till 31st July, 2020 on double the license fee, on
compassionate grounds and charging of 65 times the licence fees is too steep.
8. It is also submitted by him that the Petitioner has served at a very high
position in IGNOU since 1986 and the extension sought for two months on
double license fee, is not unreasonable considering the long tenure he had in
IGNOU.
9. Mr. Aly Mirza, ld. counsel for the IGNOU however submits that the
University has been extremely compassionate to the Petitioner. But it has to
go by the House Allotment Rules. He submits that the University had initially
granted the Petitioner four months extension at the same licence fee of
Rs.1198/- per month. Additionally, for the second batch of four months by
nearly paying double licence fee i.e., Rs. 2350/- per month, the Petitioner
continued to retain the premises. As per the Rules, and considering his
position and other factors, another extra month was given on double licence
fee. The Petitioner was not satisfied even with that and now seeks extension
till the end of July, 2020.
10. It is further submitted by him that the house rent after taking into
consideration the total amount being paid by the Petitioner during his tenure,
for the official accommodation was Rs. 53,510/-, which included House Rent
Allowance @ 24% of the Basic Pay, which was Rs. 52,320/- per month (being
24 % of Basic Pay of Rs. 2,18,000/per month) + licence fee of Rs. 1190/- per
month. So, the portrayal of the Petitioner that the amount is being increased
65 times is not correct. According to Mr. Aly Mirza, ld. counsel as against
the monthly rent of Rs.53,510/- per month, the University is demanding
Rs.77,350/- per month which is comparable market rent which the Petitioner
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:27.08.2020 12:33
is bound to pay as per the rules. He further submits that as per the Government
of India, Ministry of Urban Development Office Memorandum dated 6th
December, 2012, in all metropolitan cities, if a person over stays, 65 times of
the licence fee is to be paid as damages for unauthorized occupation. This
Office Memorandum has been adopted by the IGNOU as applicable to all its
employees, vide notification dated 27th January, 2014.
11. According to Mr. Mirza, ld. counsel, therefore, no further rebate in
payment of the licence fee/ rent is liable to be granted. The University further
relies upon the minutes of meeting dated 28th May, 2020 of the HAC in which
one of the Members who was specially invited was from the National Centre
for Disability Studies (NCDS). After considering the entire legal position
even under the Disabilities Act, the Committee had come to the conclusion
that the entire period having been already exhausted for over stay and one
month extra having already been given, the market rent would be payable by
the Petitioner.
12. Mr. Ritwik Parikh, ld. counsel in rejoinder relies upon Rule 11.2.5 and
Rule 22.1 to argue that as per the House Allotment Rules of IGNOU, the
Petitioner was entitled to eight months and therefore the Petitioner has not
over stayed to the extent as has been made out by the Respondent. Above all,
ld. counsel submits that the physical condition of the Petitioner must be
considered.
13. Mr. Aly Mirza, ld. counsel also relies upon the judgment of Dr. P.R.
Ramanujam v. Indira Gandhi National Open University and Prof. H.P.
Dikshit, W.P(C) 1578/2006 dated 25th September 2006 wherein in relation to
a disciplinary enquiry conducted against the Petitioner, this Court had
observed that there had been no injustice caused to the Petitioner.
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:27.08.2020 12:33
Analysis and findings
14. The practice of retaining official accommodation by persons in official
capacity beyond their tenure is one, which has been repeatedly frowned upon
by various Courts. In S. D. Bandi v. Divisional Traffic Officer, KSRTC &
Ors. (2013) 12 SCC 631, the Supreme Court observed that retaining of
residential accommodation provided by Government and related authorities
for long durations is unfortunate. The Court cautioned such occupants as
under:
"29. It is unfortunate that the employees, officers,
representatives of people and other high dignitaries
continue to stay in the residential accommodation
provided by the Government of India though they
are no longer entitled to such accommodation.
Many of such persons continue to occupy
residential accommodation commensurate with the
office(s) held by them earlier and which are beyond
their present entitlement. The unauthorized
occupants must recollect that rights and duties are
correlative as the rights of one person entail the
duties of another person similarly the duty of one
person entails the rights of another person.
Observing this, the unauthorized occupants must
appreciate that their act of overstaying in the
premise directly infringes the right of another. No
law or directions can entirely control this act of
disobedience but for the self realization among the
unauthorized occupants. The matter is disposed of
with the above terms and no order is required in I.
As for impleadment and intervention."
It is in this background that the present petition is to be adjudicated.
15. There is no doubt that the Petitioner has held a very high position in the
IGNOU and is also disabled. However, the Petitioner, having served at a high
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:27.08.2020 12:33
position in the IGNOU, ought to in fact give greater credence and importance
to the Allotment Rules, which apply.
16. As per Rule 11.2 of the Allotment Rules of IGNOU, upon retirement
of an employee, four months' time may be granted for retention of the house
on payment of normal license fee. Under Rule 11.2.5, if an employee retains
the accommodation beyond the permissible limit, damages would be required
to be paid, as specified under Rule 22. The relevant Rules read as under:
"11.2 A house allotted to an employee may be
retained on payment of normal licence fee on the
happening of any of the events specified in Col. 1 of
the table below for the period specified in the Col.2
thereof; provided that the house is required for the
bonafide use of the employee or members of his
family. As defined in para 2.5. The employee will
seek prior permission for retention of the house.
The permissible period of retention will also be
application to the officers of the University who are
entitled to rent-free accommodation under the
Act/Statute/Ordinance of the University. -
EVENTS PERMISSIBLE
PERIOD FOR
RETENTION OF THE
HOUSE
i)Resignation, dismissal One month
removal or termination
of service or
unauthorized absence
without permission.
ii)Retirement or Four months
terminal leave, or
repatriation to the
parent organization on
completion of tenure of
appointment
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:27.08.2020 12:33
iii) .... .....
11.2.5 The case of retention of house by the
employee beyond the permissible limit as laid down
under the relevant event mentioned above, would be
required to pay damages as specified in Rule 22.1
for the period in excess of the permissible limit
unless he/she sought and obtained prior approval of
the competent authority for the retention of the
accommodation subject to the provisions of proviso
to rule 22.1 in regard to the amount of licence fee."
22 Overstayal in house after cancellation of
Allotment.
22.1 Where after an allotment has been cancelled or
is deemed to have been cancelled under these rules
and the house remains in occupation of the
employee to whom it was allotted or any person
claiming through him/her such employee shall be
liable to pay damages at the rate of Rs. 75/- per
sq.mt. of living area per month in respect of type - I
to type - III houses and Rs. 110/- per s.q. meter of
living area per month in respect of Type - IV and V
quarters for use or occupation of the residence. The
above rates are subject to revision every two years.
The revised rates are effective from O 1-09-2006.
In addition charges towards furniture and garden
as stipulated under rule 21.2 will be recovered.
Action will also be taken against the employee
under the provisions of Public premises (Eviction of
Unauthorized Occupants) Act, 1971.
Provided that an employee who was allowed to
retain accommodation under Rule 11 may be
allowed by the University, in special cases to retain
a house on payment of twice the standard licence fee
under rules, in advance for a period not exceeding
four months beyond the period permitted under Rule
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:27.08.2020 12:33
22.2 The employee shall ensure that he/she signs an
inventory of fixtures and fittings at the time of taking
over possession of the house and shall also ensure
its proper handing over to the University at the time
of its "vacation"."
17. Apart from the above Rules, which prescribe damages payable, if the
period of retention of the premises is beyond the permissible period, damages
would have to be paid at 65 times the normal license fee in view of the Office
Memorandum (hereinafter, 'OM') dated 6th December 2012 issued by the
Ministry of Urban Development, which has been adopted by IGNOU vide
notification dated 27th January, 2014. As per the above OM and Notification,
in all metropolitan cities, except Mumbai, 65 times the normal license fee
would be liable to be paid. The extract of the said notification is set out below:
"NOTIFICATION
Consequent upon the approval of BOM in its 119 th
meeting held vide resolution No.BOM 117.7.1 the
rate of damage / market rent on account of
unauthorized occupation of IGNOU flats/houses
stands revised as under:-
S. Metropolitan Type of Present Revised
No. City Accommodation Rates Central Non-
Central
(i) All Type-I to Type- Rs.175/- 55 times 45 times of
Metropolitan IV per sq. of normal normal
Cities except meter Licence Licence
Mumbai per Fee Fee
month
(ii) " Type-IV, (Spl.) Rs.235/- 65 times 55 times of
and above per sq. of normal normal
including Hostel meter Licence Licence
accommodation per Fee Fee
month
(a) Mumbai Type-V, Type-VI Rs.750/- 120 times of normal
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:27.08.2020 12:33
Hyderabad and Hostel per sq. licence fee
Estate meter
Belvedere per
and Pedder month
Road
(b) Rest of Type-I to Type-V Rs.230/- 65 times 55 times of
Mumbai including Hostel per sq. of normal normal
meter Licence Licence
per Fee Fee
month
(i) The rate of damages/market rent will automatically
get revised as and when the rate of normal licence
fee under FR-45-A is revised. In addition to this
garden charges as applicable will also be
recovered.
(ii) These rates will be effective from 1st January, and
will also be in force till next revision of rate of
normal licence fee as per FR-45/A by GOI."
18. A perusal of the above Rules shows that for the first four months of
over-stay, the allottee is permitted to retain the accommodation by paying the
normal license fee. For a further period of four months, the allottee may be
permitted to retain the accommodation by paying double the normal rate of
license fee. Thus, by a conjoint reading of the above Rules and Notifications,
it is clear that for the period beyond eight months, permitted as per the
Allotment Rules, the Petitioner is liable to pay 65 times the license fee.
19. An attempt is made to portray to this Court that 65 times the amount of
license fee would be extremely high i.e. as against Rs.1190/- per month, the
Petitioner would have to pay Rs.77,350/- per month. Though at first blush,
this submission appears attractive, further analysis would reveal that the same
is quite misleading. In fact, the total rent which was being paid by the
Petitioner while he was in service was as under:
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:27.08.2020 12:33
House Rent Allowance (HRA) @ 24% of Basic Pay of Rs. 2,18,000/-
= Rs.52,320/-
+
License fee = Rs.1190/- per month
20. Thus, the total payment which was being made by the Petitioner, while
he was in service, was a sum of Rs.53,510/- per month. The demand now
would be Rs.77,350/- per month, which is an increase of approximately
Rs.24,000/- per month. The Petitioner has also saved a substantial sum of
money during the eight months when he paid bare minimum license fee as
there were no HRA deductions during the said months.
21. The ground on which extension is sought is the outbreak of the
pandemic and the disability being suffered by the Petitioner. This court is of
the opinion that in view of the disability, which is suffered by the Petitioner,
the IGNOU authorities through the House Allotment Committee took special
care to consider the Petitioner's case. In fact, a perusal of the Minutes of the
HAC shows that a representative of the National Centre for Disability Studies
(NCDS) was invited to participate in the said meeting. After considering all
the facts, the said Committee approved the decision to charge market rent.
The said decision of the Committee having being taken into consideration all
the applicable Rules as also the Notification, cannot be faulted with.
22. The Petitioner is not entitled to rely upon the pandemic as a reason for
further delaying the vacation of the premises as the retirement of the Petitioner
took place in August, 2019 i.e. 6-7 months before the outbreak of the
pandemic in India. The very first extension was sought by the Petitioner on
4th September, 2019. The extension in response to the said request was granted
till 30th April, 2020. Thus, a complete period of 8 months was available for
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:27.08.2020 12:33
the Petitioner, during which period, he barely paid any amount for occupying
the accommodation. In fact, the Petitioner has benefitted considerably during
these 8 months as there was no deduction of HRA and he was only paying the
License fee, which is a meagre amount.
23. When the Petitioner sought another extension, just a few days before
the expiry of the 8 months, the same was granted for one more month on
double the normal rate of license fee, which again was a compassionate view
taken by the IGNOU authorities. In fact, for the month of May itself, IGNOU
was entitled to charge 65 times the license fee. The Petitioner again sought
extension beyond May, 2020 which was accepted, only upon payment of
market rent. This decision of IGNOU is challenged in this petition. A prayer
is made by the Petitioner that he ought to be granted time till 31 st July, 2020
to vacate the premises, only on payment of double license fee.
24. At the time when this Court had entertained the writ petition, the
Petitioner was still in occupation of the accommodation. The Court while
pending examination of the issues raised, directed that no coercive steps
would be taken to vacate the accommodation and on 3 rd July, 2020, the
undertaking of the Petitioner was accepted for vacating the premises by 31st
July, 2020. On 31st July, 2020 the Petitioner moved an application seeking
further time for 20 days for vacating the premises, and an extension of 10
more days was granted by the Court. Finally, the Petitioner has vacated the
residential accommodation on 10th August, 2020.
25. The only question that, therefore, survives before this Court is as to
what amount is payable by the Petitioner for the period beyond 30th May, 2020
i.e. 2 months and 10 days, during which he retained the accommodation.
26. In Wazir Chand v. Union of India & Ors., (2001)6 SCC 596 the
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:27.08.2020 12:33
Supreme Court was considering a case where an employee of the Railways
continued to occupy the government quarters. The Supreme Court in its order
upheld the principle that unauthorized occupants have to pay penal rent. The
Supreme Court went to the extent of holding that the government was entitled
to even withhold gratuity amount, payable to the employee, towards the penal
rent. The order of the Court reads as under:
"These appeals are directed against the orders of
the Central Administrative Tribunal rejecting the
claim of the appellant, who happens to be a retired
Railway servant. Admittedly, the appellant even
after superannuation, continued to occupy the
Government quarter, though being placed under
hard circumstances. For such continuance, the
Government, in accordance with Rules, has
charged penal rent from the retired Government
servant, and after adjusting the dues of the
Government, the balance amount of the gratuity,
which was payable, has been offered to be paid, as
noted in the impugned order of the Tribunal. The
appellants' main contention is that in view of the
Full Bench decision of the Tribunal against which
the Union of India had approached this Court and
the Special Leave Application was dismissed as
withdrawn, it was bounden duty of the Union of
India not to withhold any gratuity amount, and
therefore, the appellant would be entitled to the said
gratuity amount on the date of retirement, and that
not having been paid, he is also entitled to interest
thereon. We are unable to accept this prayer of the
appellant in the facts and circumstances of the
present case. The appellant having unauthorisedly
occupied the Government quarter, was liable to pay
the penal rent in accordance with Rules, and
therefore, there is no illegality in those dues being
adjusted against the death-cum-retirement dues of
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:27.08.2020 12:33
the appellant. We, therefore, see no illegality in the
impugned order which requires our interference.
The appeals stand dismissed."
27. Similarly, in Radhey Lal v. State of Haryana & Ors. [W.P(C)
7054/2003 Decided on 11th April 2013], the ld. Single Judge of this Court held
that if a person overstayed in Government Quarters, the employer was fully
justified in deducting amounts from retiral benefits, in order to recover the
penal rent that was so payable.
28. Recently, in Y. S. Dwivedi v. Directorate of Estate & Anr. [W.P(C)
3772/2020 Decided on 14th July, 2020], the Petitioner therein was an allottee
of the Central Government General Pool Residential Accommodation, who
prayed that he should be allowed to retain the allotted house on prescribed
license fee till the normalization of Covid-19. The Ld. Single Judge extended
the time for vacating the premises by 15 days and held that for the period
thereafter, market rent would be payable.
29. The Petitioner has relied upon the following judgments in the written
submissions, though the same were not cited during the course of arguments.
• Satyabrata Ghose v. Mugneeram Bangur & Co. and Another, AIR
1954 SC 44
• Energy Watchdog v. Central Electricity Regulatory Commission &
Ors., 2017 (14) SCC 80
• Industrial Finance Corporation of India Ltd. v. Cannanore
Spinning and Weaving Mills Ltd. & Ors., (2002) 5 SCC 54
• M/s Halliburton Offshore Services Inc. v. Vedanta Limited & Anr.,
(OMP (I) (COMM) No.88/2020 decided on 29th May, 2020)
30. The above four judgments primarily deal with the concept of force
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:27.08.2020 12:33
majeure and how the existence of force majeure would lead to frustration of
contractual conditions. In the present case, the Petitioner would not be
entitled to relief under force majeure as admittedly he superannuated in
August, 2019, much before the outbreak of the pandemic. The Petitioner has
already been given sufficient time to vacate the premises i.e. 8 months under
the Allotment Rules and an additional period of one month as a special case
due to the pandemic, to vacate the premises. Thus, beyond the period of 9
months, if the Petitioner wishes to retain the premises, he is bound to pay the
damages. These terms and conditions are prescribed in the Rules governing
the retention of residential accommodation. Thus, the concept of frustration
of contractual conditions due to force majeure would have no applicability.
31. Moreover, the difficult and hard circumstances caused by the pandemic
have already been taken into consideration by the Authorities in April, 2020
after the outbreak of the pandemic and extension for one more month has
already been granted over and above the 8 months of over-stay permitted
under the Rules. This Court has also granted the Petitioner, extension till 10th
August, 2020. Force majeure conditions would not mean that payment, which
the Petitioner is liable to make, can be completely discounted. Even in
Ramanand & Ors. v. Dr. Girish Soni & Anr. [RC. REV.447/2017, decided
no 21st May, 2020], this Court while recognizing the concept of force majeure
in landlord-tenant relationships has clearly held that the same would be
governed predominantly by the contract, though under extreme
circumstances, the Court may consider suspension of rent. The present case
is not a case of suspension of rent as the Petitioner has already been given
sufficient benefits since the time he retired in August, 2019.
32. The legal position is, thus, well-settled. Anyone who occupies official
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:27.08.2020 12:33
accommodation beyond the permissible period is bound by the Rules that
govern the retention of the said accommodation. In the present case, the
Petitioner does not dispute that the Rules apply to him. Leniency is sought
only on compassionate grounds and due to the pandemic.
33. Compassion beyond law is not permissible. The Allotment Rules and
the binding Notification make it quite clear that any person who overstays
would have to pay the damages as applicable. The Petitioner having held such
a high position - stated to be the second highest position in IGNOU, ought to
be equally bound by the Rules that apply.
34. The IGNOU has given sufficient time to the Petitioner for vacating the
premises, but he has over-stayed. No further leniency can be extended.
Accordingly, it is directed that for the month of June and July, 2020, the
Petitioner would be liable to pay the entire license fee at market rent i.e. 65
times of the license fee. For the month of August, 2020 the Petitioner would
be liable to pay 1/3rd i.e. the proportionate market rent as he had vacated the
premises on 10th August, 2020. The Petitioner is directed to pay the amounts
as determined, within 8 weeks, failing which the same would be entitled to be
recovered, in accordance with law.
35. Petition is disposed of, in these terms.
PRATHIBA M. SINGH
JUDGE
AUGUST 27, 2020
dk/dj/A
Signature Not Verified
Digitally Signed
By:PRATHIBA M SINGH
Signing Date:27.08.2020 12:33
