Gujarat High Court
Bachubhai Jerambhai ... vs State Of Gujarat on 12 November, 2025
NEUTRAL CITATION
C/SCA/10266/2008 JUDGMENT DATED: 12/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10266 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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BACHUBHAI JERAMBHAI PADHIYAR(DECEASED) & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MS ARCHITA M PRAJAPATI(8241) for the Petitioner(s) No. 1.1,1.2,1.3
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES for
the Petitioner(s) No. 1
MR PARTH PATEL, ASST. GOVERNMENT PLEADER for Respondent No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 12/11/2025
ORAL JUDGMENT
1. Heard learned advocate Ms.Archita Prajapati for the
petitioners and learned Assistant Government Pleader
Mr.Parth Patel for the State respondents.
2. The present petition is filed under Article 226 of the
Constitution of India, seeking following reliefs :
"A) Quashing and setting aside the letter dated 02.08.2005
(Annexure F) issued by the Respondent No.2 calling upon to
pay up the amount of Rs.4,53,943/- towards market rent.
B) Directing the respondents to fix and pay the final
pension, commuted pension, gratuity, leave encashment etc.
to the petitioner with interest at the rate of 15% from
1.8.2004 till payment.
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C) During the pendency and final disposal of this petition,
the Respondent No.2 may be directed to pay final pension,
commuted pension, gratuity and leave encashment to the
petitioner forthwith.
D) To grant such such and further relief as may be deemed
just and proper."
SUBMISSIONS OF PETITIONER :
3. At the outset, learned advocate Ms.Prajapati appearing
for the petitioner would submit that amount of market rent
fixed by the respondent at Rs.4,53,943/- for alleged illegal
occupation of quarter by the petitioner is without jurisdiction,
inasmuch as, same is fixed without following due process of
law as envisaged under the Public Premises (Eviction Of
Unauthorised Occupants) Act, 1971 (hereinafter referred to as
"the Act, 1971"). It is submitted that due to aforesaid amount,
retirement benefit of the original petitioner withheld by the
respondent.
3.1 Nonetheless, learned advocate Ms.Prajapati would
candid in her submission that after passing of the order dated
15.09.2008 by this Court, the respondent initiated case
against the petitioner for fixing/recovering the market rent as
per the provisions of the Act, 1971, wherein the competent
authority under the Act, 1971, vide its judgment and order
dated 12.11.2008 passed an order against the petitioner
under Section 7(2) of the Act, 1971, whereby total market rent
fixed by the authority at Rs.4,53,943/-, to be recovered from
the petitioner by the respondent.
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3.2 Learned advocate Ms.Prajapati would humbly request
this Court that even though such order may be later on
passed, when recovery sought from the petitioner by the
respondent without due process of law, such illegal action on
the part of the respondent requires to be quashed and set
aside by this Court as prayed in the present writ petition and
amount so recovered from the petitioner requires to be repaid
to his legal heirs, who are now brought on record. She would
rely upon one oral order dated 03.09.1996 passed by
coordinate Bench of this Court in Special Civil Application
No.5111 of 1996 in the case of V.L.Parmar vs. District
Superintendent of Police, Gandhinagar and another.
3.3 Learned advocate Ms.Prajapati humbly submit that as
regards prayer of granting interest on not receiving
retirement benefits including leave encashment is concerned,
apart from this petition, original petitioner has also preferred
another writ petition being Special Civil Application No.13310
of 2018 which is pending before this Court, petitioner may be
permitted to claim interest on such amount by pursuing
aforesaid writ petition, except claiming interest on leave
encashment amount. It is submitted that without any
justifiable reasons, respondents withheld leave encashment of
the petitioner which was paid only in the year 2016, which
otherwise entitled to receive it in the year 2004, when the
petitioner retired. So, according to learned advocate
Ms.Prajapati, petitioner is entitled to receive interest on
delayed payment of leave encashment.
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SUBMISSION OF THE RESPONDENTS :
4. Per contra, learned Assistant Government Pleader
Mr.Patel would respectfully submit that there is no illegality
committed by the respondent in deducting the amount of
market rent as aforesaid from the retirement dues to be paid
to the petitioner.
4.1 Learned Assistant Government Pleader Mr.Patel drawn
attention of this Court in regards to order dated 15.09.2008
passed in the matter, whereby such amount was permitted to
be recovered in the manner as provided in the order by this
Court.
4.2 Learned Assistant Government Pleader Mr.Patel would
respectfully submit that when there is an order passed by the
competent authority, subsequent to filing of the petition,
under the Act, 1971 against the petitioner, whereby the
respondent is entitled to recover such amount from petitioner,
respondents may not be directed to return/refund such
amount to the petitioner. It is submitted that when such order
passed by the competent authority under the Act, 1971, is
never challenged by the petitioner, there is no reason to
refund such amount with interest to the legal heirs of the
petitioner, as claimed.
4.3 Learned Assistant Government Pleader Mr.Patel would
respectfully submit that petitioner has not disclosed true and
correct fact, inasmuch as, vide office order dated 22.12.2004,
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C/SCA/10266/2008 JUDGMENT DATED: 12/11/2025
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respondent authority has already passed an order thereby
withheld leave encashment of petitioner as there was
aforesaid amount towards market rent due and payable by
petitioner. It is submitted that respondents have already
clarified its stand in paragraphs 7 and 8 of its additional reply
dated 25.03.2025, which is not controverted by petitioner by
way of any rejoinder. It is respectfully submitted that when
there is justifiable reason for withholding leave encashment,
as per settled legal position of law, no interest can be
awarded to petitioner, when such leave encashment paid in
later in point of time instead of in the year of his retirement.
4.4 Making the above submissions, learned Assistant
Government Pleader Mr.Patel would urge this Court to reject
the present petition.
ANALYSIS :
5. Having heard the learned advocates for the respective
parties, following would emerges :
5.1 It appears that this Court vide its order dated
15.09.2008 passed in this matter which reads as under :
"1. Heard learned counsel for the parties.
2. Rule.
3. The respondent has ordered to recover Rs.4,53,943/- towards
the market rent of the Government
quarter no. 17 at Chotila which was occupied by the petitioner and
has also not paid the retirement dues
to the petitioner.
4. In that view of the matter, on the facts and circumstances of
the case, the following order is passed:
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(I) The respondent shall deduct 50% of the retirement dues and
shall adjust the same against the amount of Rs. 4,53,943/-. The said
exercise shall be completed within a period of two months.
(ii) The balance amount(Rs. 4,53,943 - 50% of retirement dues)
shall be recovered by way of monthly installments from the pension
which will be 25% of the pension amount.
(iii) It is made clear that this arrangement is made in favour of
the petitioner without prejudice to the rights and contentions of
both the sides.
(iv) The parties shall complete the pleadings within a period of
nine months.
(v) It will be open to the petitioner to move for early hearing
after the pleadings are over."
5.2 It further appears that during the pendency of this
matter, the competent authority under the Act, 1971, passed
an order dated 12.11.2008 whereby held that the respondent
is entitled to recover Rs.4,53,943/- as market rent from the
petitioner. Such order passed by the competent authority
concerned is not challenged by the petitioner.
5.3 Likewise, it appears from paragraphs 7 and 8 of
additional affidavit-in-reply filed by respondent on 25.03.2025
that amount of leave encashment i.e. Rs.96,760/- was
withheld by respondent authority vide its office order dated
22.12.2004 and bare look of said office order would suggest
that same was also forwarded to petitioner. Nonetheless,
petitioner at given point of time including in the petition, not
whispered about it, though complained that leave encashment
is wrongly withheld by respondent. In any case, it remained
undisputed that petitioner has not challenged said office order
dated 22.12.2004.
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6. In view of the aforesaid undisputed facts and
circumstances of the present case, it may be true that when
recovery of aforesaid market rent proposed by the respondent
was without following due procedure of law as envisaged
under Section 7 of the Act, 1971, such recovery of market
rent, if any, deducted from retiral benefit of petitioner by
respondent requires to be interfered by this Court.
7. At the same time, though this Court consciously allowed
such recovery of amount vide its aforesaid order dated
15.09.2008, thereby such amount by now already recovered,
in view of subsequent event happened after passing of such
order needs to be considered.
8. It remained undisputed fact that respondents have
subsequent to filing of this petition, initiated process of
getting order to get market rent from petitioner as per
provisions of the Act, 1971, wherein respondent succeeded as
competent authority under Act, 1971 allowed the application
of respondent being Public Premises Case No.1 of 2008 vide
its judgment and order dated 12.11.2008, whereby held that
respondent is entitled to receive market rent of Rs.4,53,953/-
from petitioner as per Section 7(2) of the Act, 1971. This
order is never challenged by the petitioner, thus, become final
and binding to petitioner.
9. The decision of coordinate Bench in the case of
V.L.Parmar (supra) on which reliance placed by learned
counsel Ms.Prajapati would not be applicable to the facts of
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the present case, inasmuch as, in the cited decision also
liberty was given to respondent authority to initiate
proceeding for recovery of market rent from petitioner as per
law and in that background of facts, order to refund the
amount to the petitioner. Whereas, in the present case, as
referred hereinabove, such recovery proceeding culminated
into order of competent authority passed on 12.11.2008 under
Act, 1971 against petitioner.
10. In light of the aforesaid peculiar facts and circumstances
of the present case, as on date, as per order dated 12.11.2008
passed by competent authority under the Act, 1971, petitioner
is liable to pay Rs.4,53,943/- to respondent as market rent, I
am of the view that no relief can be granted in favour of the
petitioner as prayed in this petition, inasmuch as, on one hand
directing the respondent to refund the aforesaid amount to
petitioner, and on the other hand, petitioner also required to
pay such amount to the respondent. Thus, principal relief as
prayed in paragraph 21(A) of this petition cannot be granted,
which hereby rejected.
11. As observed hereinabove that benefit of leave
encashment was withheld by respondent vide its office order
dated 22.12.2004, never challenged by petitioner, according
to my view, there was justifiable reason on part of respondent,
when withheld leave encashment in the year 2004 as
undisputedly, there was Government dues pending to be
recovered from petitioner by respondent i.e. market rent.
After analyzing entire set of events taken place subsequent to
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filing of present petition including order passed therein, I am
also of the view that respondent has not willfully and
deliberately withheld leave encashment in the year 2004 and
as such, no case is made out by petitioner to claim interest on
delayed payment of leave encashment benefit.
CONCLUSION :
12. In view of the aforesaid peculiar facts and circumstances
of the case, I am of the view that the legal heirs of the original
petitioner who are now brought on record, not entitled to
claim/get back amount of market rent, i.e. Rs,4,53,943/-.
12.1 So far as claiming interest on retirement dues i.e. leave
encashment is concerned, in view of foregoing reasons, same
is denied.
12.2 So far as other service benefits which are received by
petitioner after long period of time and to claim interest for
such belated payment thereof is concerned, the original
petitioner in his lifetime preferred a substantive petition,
being Special Civil Application No.13310 of 2018, such claim
to get interest on other service benefits are not decided in this
matter and same will be decided in the aforesaid substantive
writ petition filed by the petitioner.
13. In view of the foregoing conclusion, the present petition
fails. Thus, it is hereby dismissed. Rule is discharged. No
order as to costs.
(MAULIK J. SHELAT, J)
GAURAV J THAKER
