Orissa High Court
Afr vs Union Of India And Others on 24 August, 2022
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO. 3596 OF 2004
In the matter of an application under Articles 226 and
227 of the Constitution of India.
---------------
AFR
Satyananda Nayak ..... Petitioner
-Versus-
Union of India and Others ..... Opp. Parties
For Petitioner : M/s B.K. Nayak-3 and S. Rath,
Advocates
For Opp. Parties: Mr. P.K. Parhi,
Asst. Solicitor General of India
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
AND
HONOURABLE MR. JUSTICE G. SATAPATHY
Date of hearing and judgment : 24.08.2022
DR. B.R. SARANGI, J. The petitioner, who was working as a
Draughtsman Division-I in No.II Drawing Office, Survey of
India, Bhubaneswar and is a physically handicapped
person, has filed this writ petition seeking to quash the
order dated 09.02.2004 passed by the Central
Administrative Tribunal, Cuttack Bench, Cuttack in O.A.
// 2 //
No. 182 of 2001 under Annexure-9, and to issue direction
to the opposite parties not to deduct the house rent and
electricity charges etc. from his salary in respect of the
quarters in question. He further seeks direction to the
opposite parties to refund the house rent and electricity
charges deducted from his salary, within a stipulated
time.
2. The factual matrix of the case, in a nutshell, is
that the petitioner was allotted with a Type-III quarters
bearing No.49/T-III at Survey of India Residential Colony,
Bhubaneswar, vide letter dated 03.11.1995, where he was
staying till 13.12.1998, on which date, by taking leave,
the petitioner went to his native village to see his ailing
mother and family where he fell ill. Thereafter, on
17.12.1998, opposite parties no.2 to 4 broke open the
door lock of the quarters allotted in favour of the
petitioner and allowed one Kabita Pradhan, daughter of
Laxman Pradhan to stay therein. On 22.12.1998, Kabita
Pradhan, the trespasser made a representation to
opposite party no.4, the Officer-in-Charge of the
// 3 //
petitioner, stating her name as Pramila Kabita Nayak,
which is name of the wife of the petitioner. She also
intimated the authority that she did not know about the
whereabouts of her husband.
2.1 The petitioner, after knowing about the
trespass made by Kabita Pradhan into his official
quarters, gave a representation to opposite party no.3
requesting him to look into the matter and to take
appropriate action, since he was the in-charge of the
quarters, but no action was taken by the opposite parties
no.2 to 4. Thereafter, the petitioner intimated the
authority that he will be present in the colony on
01.03.1999 to surrender the quarters. As soon as the
petitioner entered into the colony on 01.03.1999, the
main gate was closed by the opposite parties and he was
carried by the opposite parties to the police station and in
a false case concocted by the opposite parties, he was
arrested.
// 4 //
2.2 On 30.03.1999, the petitioner gave notice to the
opposite parties that he has surrendered the quarters in
question and no fees in respect thereof be deducted from
his salary. The petitioner also intimated the authority that
he has surrendered the quarters from 25.03.1999, but
opposite party no.3 intimated the petitioner that he has to
surrender the quarters in question on any working day.
As the opposite parties impersonated that lady named
Kabita Pradhan as Pramila Kabita Nayak to be the second
wife of the petitioner, the petitioner filed T.S. No. 21 of
1999 against said Kabita Pradhan before the learned Civil
Judge (Junior Division), Bhubaneswar to declare her as
not the wife of the petitioner, which fact was also brought
to the notice of the authority. The petitioner has also
intimated the authority on 30.03.1999 about the
trespassing of Kabita Pradhan into the quarters. But all
efforts of the petitioner went in vain, when on 30.03.1999,
opposite party no.2 constituted a Board, which submitted
the report by establishing that Kabita Pradhan is the wife
of the petitioner and suggested that she may be allowed to
// 5 //
stay in the said quarters till the petitioner personally
settled the issue.
2.3 On 31.07.1999, again the petitioner intimated
opposite party no.3 that he has filed T.S. No.21 against
Kabita Pradhan, who has impersonated herself as the wife
of the petitioner and has forcefully trespassed and
occupied the quarters with the help of the office from
17.12.1998 without any authority, and also requested the
authority not to deduct the charges towards the quarters
and to pay the house rent. Even though the petitioner
made several grievances before the authority, but the
same was not acceded to, and on the contrary, opposite
party no.2 wrote a letter to the Superintendent of Police,
Khurda, Bhubaneswar on 08.09.1999 stating that since
the petitioner has filed T.S. No. 21 of 1999 in the court of
learned Civil Judge (Junior Division), Bhubaneswar
challenging the claim of Kabita Pradhan, that she is the
second wife of the petitioner, they are unable to take any
decision regarding eviction of the said lady from the Qtrs.
No.49/T-III at Survey of India Residential Colony,
// 6 //
Bhubaneswar, and that if the said lady is not pronounced
by the court to be the second wife of the petitioner, then
necessary action with the police help will be taken for
vacation of the said quarters.
2.4 Since no action was taken either by the
authority or by the police, the wife of the petitioner filed
1CC No. 443 of 1999 against Kabita Pradhan before the
learned SDJM, Bhubaneswar on 13.10.1999. On
14.01.2000, the petitioner again submitted his detailed
representation before the authority and police authorities
by narrating everything about the fact. In spite of the
letter dated 08.09.1999, since Kabita Pradhan was not
evicted from the quarters and opposite parties went on
deducting the dues in respect of the quarters and did not
pay house rent, the petitioner filed O.A. No. 182 of 2001
before the Central Administrative Tribunal, Cuttack
Bench, Cuttack, praying for refund of the dues and house
rent allowance which are being deducted from his salary
on every month in respect of the quarters which is not
under his occupation, with an interim prayer not to
// 7 //
deduct house rent and other dues in respect of the
quarters from his salary. But ultimately the said original
application was dismissed by the tribunal vide order
dated 09.02.2004, challenging which this writ petition has
been filed by the petitioner.
3. Mr. B.K. Nayak-3, learned counsel appearing
for the petitioner vehemently contended that the tribunal
has come to a finding that the petitioner has neither taken
legal action nor surrendered the quarters and approached
the tribunal at the belated stage and that the petitioner
has not made a party to the person against whom he has
made allegations. It is contended that such finding has
been arrived at by the tribunal in an erroneous manner
without applying its mind to the Survey of India
Residential Rules. It is contended that Rules envisaged
that within 10 days of receipt of the notice to surrender
the quarters, the department shall take action for
cancellation of the allotment of the quarters and if no
action is taken by the department, on the 11th day, the
allotment of quarters deemed to be cancelled. It is
// 8 //
contended that on 03.03.1999 the petitioner was issued
with notice for surrendering the quarters and allotment
was cancelled by the opposite parties on 1/6.4.1999 and,
therefore, deduction of house rent and electricity charges
etc. from the salary of the petitioner is not justified, as
neither the petitioner nor his family members were staying
in the quarters in question. When the petitioner was on
leave, the lady Kabita Pradhan with the knowledge of the
opposite parties trespassed into the quarters and occupied
the same and for that purpose the petitioner is not liable
to pay the house rent and electricity charges.
3.1 It is further contended that T.S. No. 21 of 1999,
which was filed by the petitioner against Kabita Pradhan,
was dismissed vide order dated 20.10.2006 by the learned
Civil Judge (Junior Division), Bhubaneswar and against
the said order the petitioner preferred appeal, which was
registered as RFA No.6/3 of 2003, and ultimately the
same was remanded by the appellate court, vide order
dated 20.05.2008, to the trial court. Thereafter, SAO
No.10 of 2008 was filed by the petitioner before this Court
// 9 //
challenging the judgment dated 20.10.2006 passed in T.S.
No. 21 of 1999 and remand order dated 20.05.2008
passed in RFA No.6/3 of 2007. This Court, vide order
dated 03.12.2010 passed in SAO No. 10 of 2008, held that
the defendant Kabita Pradhan (the occupant/trespasser of
Qtrs. No.49/T-III) is not the wife of the petitioner. Copy of
the order dated 03.12.2010 passed in SAO No. 10 of 2008
was again submitted by the petitioner before opposite
party no.2 on 29.07.2011. In the meantime, Misc. Case
No. 41 of 2011, which was filed to recall the judgment
dated 03.12.2010 passed in SAO No. 10 of 2008 and Misc
Case No.27 of 2011, which was filed to drop the decree
filed in SAO No.10 of 2008 by Kabita Pradhan were
dismissed by this Court. Thereafter, the learned Civil
Judge (JD), Bhubaneswar drew the decree by declaring
that Kabita Pradhan is not the wife of the petitioner on
26.04.2012. Against the order dated 03.12.2010 passed in
SAO No. 10 of 2008, as well as order dated 28.02.2012
passed in Misc. Case No. 41 of 2011 and Misc. Case No.27
of 2011 and RVWPET No. 62 of 2012, Kabita Pradhan filed
// 10 //
SLP (C) Nos.12864-12866 of 2013 before the apex Court,
which was dismissed on 24.02.2014. Thus, it is contended
that the trespasser Kabita Pradhan, who has occupied the
quarters at the behest of the opposite parties, having been
proved as not the wife of the petitioner, he is not liable to
pay the house rent as well as electricity charges, as
demanded by the authority. It is further contended that
this fact has not been placed on record and, as such, the
said fact has been brought to the notice of the Court after
disposal of the original application by the tribunal.
Therefore, in the event opportunity of hearing is given to
the petitioner to establish the fact before the tribunal that
he is not liable to pay the dues, then it would suffice the
purpose.
4. Per contra, Mr. P.K. Parhi, learned Asst.
Solicitor General of India appearing for the opposite
parties contended that the tribunal has adjudicated the
matter on the basis of the materials available on record by
the time it had passed the final order and whatever
contention now raised, it is after disposal of the original
// 11 //
application. Therefore, if any subsequent developments
had taken place and the same were not brought to the
notice of the tribunal, the order so passed by the tribunal
cannot be faulted with so as to call for interference by this
Court.
5. This Court heard Mr. B.K. Nayak-3, learned
counsel for the petitioner and Mr. P.K. Parhi, learned Asst.
Solicitor General of India appearing for the opposite
parties, and perused the records. Pleadings having been
exchanged between the parties, with the consent of
learned counsel for the parties this writ petition is being
disposed of finally at the stage of admission.
6. The undisputed fact, as emerged from the
records available before this Court, is that one Kabita
Pradhan had occupied the quarters in question which was
allotted in favour of the petitioner. The petitioner claims
that Kabita Pradhan is not his wife and, as such, he is not
liable to pay the house rent and the electricity charges for
the said quarters. The facts which are now brought to the
// 12 //
notice of this Court were not placed before the tribunal
while passing the final order. Therefore, this Court is of
the considered view that if by virtue of a civil court decree
Kabita Pradhan has been declared as not the wife of the
petitioner, she should have been declared as a trespasser
to the quarters allotted in favour of the petitioner.
Therefore, for un-authorized occupation of the quarters by
Kabita Pradhan, who is a trespasser, the petitioner is not
liable to pay the house rent as well as the electricity
charges, which have been forcibly deducted by the
authorities from his salary in spite of intimation given by
the petitioner to them. In the above premises, without
delving into the merits of the case itself, this Court is of
the considered view that in the event the matter is
remanded back to the tribunal, the tribunal shall take
into consideration the subsequent developments, that
have taken place in the meantime, in proper perspective
on the basis of documents filed by the petitioner and re-
adjudicate the same afresh by giving opportunity of
hearing to all the parties.
// 13 //
7. In the above view of the matter, the order
impugned dated 09.02.2004 passed by the tribunal in
O.A. No. 182 of 2001 under Annexure-9 is hereby set
aside. The matter is remitted back to the Central
Administrative Tribunal, Cuttack Bench, Cuttack, for
fresh adjudication on the basis of the documents to be
filed by the petitioner by way of an additional affidavit, by
giving opportunity of hearing to the parties.
8. In the result, the writ petition is allowed.
However, there shall be no order as to costs.
..............................
DR. B.R. SARANGI,
JUDGE
G. SATAPATHY, J. I agree.
..............................
G. SATAPATHY,
JUDGE
Orissa High Court, Cuttack
The 24th August, 2022, Ashok/GDS
