Sita Nanda vs State Of Odiaha & Ors
2023 Latest Caselaw 13298 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                         W.P.(C) No.17486 of 2023
                                     &
                         W.P.(C) No. 27008 of 2017
        Sita Nanda                      ....               Petitioner
                                                Mr. S.K. Pradhan, Advocate

                                            -versus-

        State of Odiaha & Ors.             ....                Opposite Parties
                                                            Mr. S. Rath, ASC
                                                       Mr. L.N. Patel, Advocate
                                                       (Opp. Party Nos. 4 & 5)

                             CORAM:
                JUSTICE BIRAJA PRASANNA SATAPATHY

                                     ORDER

30.10.2023 Order No

11. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard Mr. S.K. Pradhan, learned counsel for the Petitioner, Mr. S. Rath, learned Addl. Standing Counsel appearing for the State and Mr. L.N. Patel, learned counsel appearing for the Opp. Party Nos. 4 & 5.

3. Since common issue is involved in both the cases with regard to demand of penal house rent by Sambalpur Municipal Corporation (in short Corporation), both the matters were heard analogously & disposed of by the present common order.

4. The Petitioner in W.P.(C) No. 17486 of 2023 is the wife of the deceased employee and has filed the writ petition challenging the notice dtd.05.07.2022 so issued by the Corporation under Annexure-7. Similarly, the Petitioner in W.P.(C) No. 27008 of 2017, is the son of the deceased employee and has approached this // 2 //

Court challenging the notice dtd.11.09.2017, so issued by the Corporation under Annexure-4.

5. Learned counsel for the Petitioner in W.P.(C) No. 17486 of 2023 contended that Petitioner's late husband Ram Kumar Nanda was allotted with a Quarter vide Slum Quarter No. 10 at Kamali Bazar, Sambalpur while he was in service. It is contended that Petitioner's husband retired from his service on 31.01.1993 on attaining the age of superannuation. Thereafter, though the late employee continued with the occupation of quarter, but at no point of time he was issued with any notice of eviction by the Corporation and/or Sambalpur Municipality till he died on 12.09.2012. Subsequently, for the first time when the Corporation issued a notice on 11.09.2017 to the Petitioner in W.P.(C) No. 27008 of 2017, the said notice was challenged before this Court in W.P.(C) No. 27008 of 2017. This Court while issuing notice of the matter on 03.01.2018 passed an interim order to the effect that Petitioner shall not be evicted from the quarter in question subject to payment of arrear rent within a month from today and current rent each month. It is contended that in terms of the said order Petitioner in W.P.(C) No. 27008 of 2017 has deposited the normal rent @ Rs. 200/- per month till 31.03.2018.

5.1. It is contended that while the matter stood thus, Petitioner in W.P.(C) No. 17486 of 2023, was issued with the impugned notice on 05.07.2022, wherein after calculating the arrear rent at Rs. 13,59,200/- and after adjusting the arrear as due and admissible towards 6th Pay & 7th Pay Commission entitlement @ Rs. 5,65,914/-, Petitioner was directed to pay a sum of Rs. 7,93,286/- towards arrear house rent from 2/1993 to 8/2021.

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5.2. It is contended that since during the life time of the deceased employee, no notice was ever issued directing vacation of the quarter in question, the Petitioner is not liable to pay any penal rent as calculated and indicated in the impugned notice under Annexure-

7. It is also contended that for the first time when a notice was issued by the Corporation on 11.09.2017, the matter was carried before this Court in W.P.(C) No. 27008 of 2017. Pursuant to the interim order passed therein, Petitioner in the said case deposited the normal rent @ 200/- per month till 31.03.2018. It is also contended that in the meantime for the purpose of renovation of Samalei Temple at Sambalpur, the structure in question has been demolished by the Corporation.

5.3. Mr. Pradhan also contended that without raising any such demand towards penal rent, the deceased employee was not only sanctioned with the pension but also the Petitioner in W.P.(C) No. 17486 of 2023 was sanctioned with the family pension after the death of her husband on 12.09.2012. But while calculating the arrear entitlement towards 6th Pay as well as 7th Pay Commission recommendation, the authorities of Sambalpur Municipal Corporation adjusted the entitlement of the Petitioner to the tune of Rs. 5,65,914/- while calculating the arrear penal rent at Rs. 13,59,200/- and thereby raising a demand of Rs. 7,93,286/-. It is contended that since the Corporation at no point of time issued any eviction notice to the deceased employee against whom the quarter was originally allotted, Petitioner is not liable to pay any penal rent as indicated in the impugned notice dtd.05.07.2022 under Annexure-7 and she is eligible and entitled to get the benefit of the arrear towards 6th Pay and 7th Pay Commission recommendation as indicated in Annexure-7, which has been illegally adjusted.

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6. On appearance though a counter affidavit was filed by the Opp. Party Nos. 4 & 5 justifying the demand, but this Court taking into account the nature of dispute involved when directed the Corporation to justify the demand, an additional affidavit was filed by the Opp. Party Nos. 4 &5. In the said additional affidavit it has been indicated that the quarter in question was allotted in favour of the husband of the Petitioner in W.P.(C) No. 17486 of 2023 while he was in service with monthly rent of Rs. 200/-. After his retirement on 31.01.1993 since he remained in occupation of the quarter and it was never vacated even after his death on 12.09.2012, penal rent was calculated in terms of the resolution issued by the Govt. in the Finance Department on 15.12.2010. It is accordingly contended that Petitioner is liable to pay penal rent as assessed and indicated in the impugned notice under Annexure-7 for the period the quarter remained in unauthorized occupation of the Petitioners.

7. To the aforesaid submission of Mr. Patel, Mr. Pradhan contended that since the deceased employee at no point of time was issued with any notice by the Corporation directing him to vacate the quarter nor the present Petitioner was ever issued with any notice directing for such eviction, Petitioner is not liable to pay any penal rent in view of the decision of the Hon'ble Apex Court reported in the case of State of Orissa Vs. Sadasiv Mohanty, reported in 1997(3) SCC 211. Hon'ble Apex Court in the case of State of Orissa Vs. Sadasiv Mohanty reported in 1997(3) SCC 211, in para 6 and 8 of the said judgment has held as follows :

"6. The question, therefore, is: whether the Tribunal's view is correct in law? It is seen that under Rule 104 of the Rules, the Government have reserved its power to regulate the allotment of the houses, subject to the terms and conditions, as may be regulated under the instructions

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issued in furtherance thereof by the Government. Rule 11 deals with allotment of the house to the officers either owned by the Government or leased by the Government, as the case may be. Rule 2(ii) provides, by general or special order, for fixing fee in excess of what is prescribed in clause (b) referred to earlier. Clause (6) provides that where the Government servant does not vacate the residence, after cancellation of the allotment, the Government is empowered to collect penal rent. For that, procedure has been laid down by the proceedings of the Government dated December 12, 1986. Therein Clause (2) adumbrates that a Government servant who cannot vacate the quarters, for genuine reasons of health or other absolutely compelling reasons, may retain the quarter for a further period of one month only, with the prior written permission of the Director of Estates on advance payment of standard rent fixed for the quarter. In other words, the Government servant after retirement/transfer is required to vacate the quarter except for genuine reasons with prior written permission of the Director of Estates. He shall be entitled to retain the quarter only for a period of one month that too on paying in advance the standard rent. Clause (5) envisages that a Government servant after retirement may be allowed to retain the quarter occupied by him for a maximum period of four months as provided in the Rule of the Code on advance payment of normal rent for four months. But his DCRG will be released only after he vacates the Government quarter. Rent at the rate of five times the standard rent will also be charged for the period of occupation of the quarter beyond four months.

XXX XXX XXX

8. In regard to appeal arising out of SLP (C) No.14606/94 filed against the order of the Tribunal in OA No.2078/92 dated 18.11.1993, the admitted position is that the respondent was staying in a Government quarter at Karanjia. It is seen that the above regulation referred to earlier relate to the quarter allotted to the Government servant in Cuttack and Bhubaneswar. Under these circumstances, the levy prescribed by special order for payment of the penal rents in excess of the prescribed limit to the houses occupied or owned by the Government at Cuttack and Bhubneshwar, the Government thereby, has denied itself any power to charge penal rentals to

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buildings owned or occupied by the Government in other places unless rules or general directions are issued. The Tribunal, therefore, was right in respect of that case only. But in all other cases, the order passed by the competent authority has become final. The Government is devoid of power of levy penal rents for the overstay. Even in respect of the cases where the Government servant overstays beyond the period permitted by the High Court, the Government servants are required to pay penal rent beyond the period permitted by the order passed by the competent authority or by the High Court, as the case may be. the High Court requires to consider each case only on exceptional circumstances for giving directions to permit a Government servant beyond prescribed period. The object is to enable the Government servants on transfer or waiting for allotment to be entitled to be provided with accommodation."

7.1. It is accordingly contended that Petitioner in W.P.(C) No. 17486 of 2023 is not liable to pay any penal rent as indicated in the impugned notice dtd.05.07.2022 under Annexure-7. It is further contended that since the normal rent till 31.03.2018 @ Rs. 200/- per month has already been deposited, Petitioner is eligible and entitled to get the benefit of the arrear entitlement towards 6th Pay and 7th Pay Commission as indicated in Annexure-7.

8. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is found that even though the deceased employee even after his retirement on 31.01.1993 remained in occupation of the quarter in question, but no document has been filed by the Corporation showing therein that the deceased employee was directed to vacate the quarter at any point of time till his death on 12.09.2012. It is found that for the first time when notice was issued by the Corporation on 11.09.2017, the matter was carried to this Court in W.P.(C) No. 27008 of 2017. This Court finds that prior to 11.09.2017, no notice

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was ever issued either to the deceased employee or to the present Petitioners directing therein to vacate the quarter in question.

8.1. Placing reliance on the decision of the Hon'ble Apex Court as cited supra, since at no point of time any notice was issued directing the deceased employee and/or the present Petitioners to vacate the quarter save and except the notice issued on 11.09.2017 for the 1st time, as per the considered view of this Court no penal rent can be realized save and except the normal rent @ Rs. 200/- per month, which had already been paid till 31.03.2018. Therefore, this Court is inclined to quash the demand as raised in the communication dtd.05.07.2022 under Annexure-7 in W.P.(C) No. 17486 of 2023. While quashing the same, this Court directs the Opp. Party No. 4 to refund the amount towards arrear entitlement of 6th & 7th Pay Commission recommendation as indicated in Annexure-7 within a period of six (6) weeks from the date of receipt of this order. The Corporation however will be entitled to adjust the rent @ 200/- per month for the period beyond 31.03.2018 till the quarter in question was demolished by the Corporation from the entitlement as indicated in Annexure-7.

9. Both the writ petitions are disposed of accordingly.

10. Photocopy of the order be placed in the connected case record.

(Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Nov-2023 18:04:18