Orissa High Court
Jaya Krushna Sethi vs State Of Odisha & Ors. .... Opposite ... on 14 November, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 1615 of 2019
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
..................
Jaya Krushna Sethi .... Petitioner
-versus-
State of Odisha & Ors. .... Opposite Parties
For Petitioner : Mr. R.K. Swain, Advocate
For Opp. Parties : Mr. A. Tripathy
Addl. Govt. Advocate
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 14.11.2025 & Date of Judgment: 14.11.2025
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through hybrid mode.
2. Pursuant to order dtd.30.10.2025, affidavit filed by Opp. Party
No. 3 in Court be kept in record. Copy of the same is provided to
the learned counsel for the Petitioner in Court.
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3. Heard Mr. R.K. Swain, learned counsel appearing for the
Petitioner and Mr. A. Tripathy, learned Addl. Govt. Advocate
appearing for the Opp. Parties.
4. The present writ petition has been filed inter alia challenging
office order dtd.16.08.2018 so issued under Annexure-6 by Opp.
Party No. 3. Vide the said order Petitioner has been assessed with
penal rent for the period beyond 17.01.2010 till 18.12.2018, when
Petitioner vacated the quarter in question.
5. It is the case of the Petitioner that while continuing as a A.F.A.-
cum-Under Secretary to Govt., Department of Higher Education,
Petitioner was allotted with quarter bearing No. D-9/5 in Unit-VIII,
Bhubaneswar. However, since Petitioner was transferred to
Kalahandi as Commercial Tax Officer vide order dtd.23.04.2008
and joined on 28.04.2008, considering the request made by the
Petitioner and the resolution issued by the Govt. in the G.A.
Department, Petitioner vide letter dtd.03.10.2008 issued under
Annexure-14 was allowed to retain the quarter by paying normal
rent for a period of three (3) years. It is contended that basing on
such letter issued on 03.10.2008 under Annexure-14, Petitioner
remained in occupation of the allotted quarter as before.
6. It is contended that thereafter Petitioner was never issued with
any notice directing him to vacate the quarter and Petitioner
accordingly remained in occupation of the quarter by paying the
normal rent, which was also duly accepted till the Petitioner
attained the age of superannuation on 31.01.2018. However, after
his retirement, vide order dtd.16.08.2018 under Annexure-6,
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Petitioner was held liable to pay normal licence fee for the period
from 28.07.2008 to 16.10.2009 and 17.10.2009 to 16.11.2009 and
standard licence fee from 17.11.2009 to 16.01.2010 and thereafter 5
times of the standard licence fee w.e.f.17.01.2010, the present writ
petition was filed inter alia challenging the said order.
6.1. It is contended that this Court while issuing notice of the
matter, passed an interim order on 14.02.2019, holding therein that
no recovery can be made. The said interim order was also allowed
to continue.
6.2. Learned counsel appearing for the Petitioner contended that
since after expiry of the period of three (3) years, so allowed vide
letter dt.03.10.2008 under Annexure-14, Petitioner was never issued
with any notice whatsoever directing him to vacate the quarter and
he remained in occupation of the quarter with due payment and
receipt of the normal licence fee till he attained the age of
superannuation on 31.01.2018, the order passed under Annexure-6
and consequential demand issued in that regard is not sustainable in
the eye of law. It is contended that no penalty can be imposed, if the
occupier of the quarter is not issued with any notice directing him to
vacate the quarter. Reliance was placed to a decision of the Hon'ble
Apex Court in the case of State of Odisha Vs. Sadasiv Mohanty,
(1997) 3 SCC 211. Hon'ble Apex Court in Para 6 & 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
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regulated under the instructions 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
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
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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."
6.3. It is further contended that by following the aforesaid decision
of the Apex Court, this Court in its order dtd.05.04.2023 in W.P.(C)
No. 3218 of 2014 interfered with the levy of penal rent. Order
passed by this Court in Para 6 of the order reads as follows:-
"Having heard learned counsel for the parties and heard
placing reliance on the decision in the case of Sadasiv
Mohanty, as cited supra, it is the view of this Court that since
the Petitioner for the first time was issued with the notice to
vacate the quarter only on 12.09.2014 under Annexure-5, the
Petitioner is not liable to pay any penal rent for the period
beyond 1.11.2010 till the date of issuance of notice on
12.09.2014. The Petitioner is only liable to pay the normal rent
for the said period. It is also the view of this Court that since in
terms of the notice issued under Annexure-5, the Petitioner
vacated the quarter on 26.09.2014 within a period of 15 days
from the date of issue of the letter, the Petitioner is also not
liable to pay any penal rent from 12.9.2014 to 26.09.2014.
While holding so and while disposing the matter, this Court
directs Opp. Party No.2 to calculate the normal rent as due
and admissible for the period from 01.11.2010 to 26.09.2014.
After making such calculation, Opp. Party No.2 is directed to
issue a demand notice to the Petitioner to pay the amount. The
Petitioner be allowed towards arrear house rent one month
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time to pay the demand after receipt of the same from Opp.
Party No.2."
6.4. It is accordingly contended that since Petitioner was never
issued with any notice directing him to vacate the quarter after
expiry of the period of three (3) years from 03.10.2008, till he
vacated the quarter on 18.12.2018, he is not liable to pay any penal
rent. Not only that since the Petitioner has paid the normal rent
although with due acceptance till he attained the age of
superannuation on 31.01.2018, the order passed under Annexure-6
is not sustainable in the eye of law.
7. Mr. A. Tripathy, learned Addl. Govt. Advocate on the other hand
made his submission basing on the stand taken in the counter
affidavit so filed by Opp. Party Nos.1, 2 & 4 and the affidavit filed
today in Court. It is contended that even though Petitioner was
allowed to retain the quarter for a period of three (3) years vide
letter dtd.03.10.2008 under Annexure-4, but allotment of the quarter
in favour of the Petitioner was cancelled w.e.f.17.01.2010 vide
order dt.17.01.2010. Since on the face of cancellation of the
allotment of the quarter vide order dtd.17.01.2010, Petitioner
remained in occupation of the quarter till he vacated the same on
18.12.2018, he is liable to pay the penal rent in terms of the
impugned order under Annexure-6 and further notice issued on
27.08.2018 and 27.12.2018, Petitioner has been rightly held liable
to pay penal rent to the tune of Rs.8,41,799/-.
8. To the submission made by the learned Addl. Govt. Advocate,
learned counsel appearing for the Petitioner contended that after
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allowing the Petitioner to continue in the quarter for a period of
three (3) years vide letter dtd.03.10.2008, the alleged cancellation
of the quarter so made vide order dt.17.01.2010 was never
communicated to the Petitioner nor after such cancellation of the
allotment, Petitioner was issued with any notice, directing him to
vacate the quarter. Since the impugned order of cancellation
dt.17.01.2010 was never communicated nor any notice was ever
issued to the Petitioner directing him to vacate the quarter and in the
alternate Petitioner all through was allowed to retain the quarter by
paying the normal rent, which was also duly accepted, the ground
on which the penal rent has been imposed vide the impugned order
under Annexure-6 is not at all sustainable.
9. Having heard learned counsel appearing for the Petitioner and
considering the submissions made, it is found that Petitioner while
continuing at Bhubaneswar, he was allotted with quarter No. D-9/5
in Unit-VIII, Bhubaneswar. He remained in occupation of the
quarter w.e.f.06.07.2006. However, it is not disputed that Petitioner
while in occupation of the quarter, he was transferred to
Bhawanipatna vide order dtd.23.04.2008 and was relieved on
28.04.2008.
9.1. However, as found from letter dt.03.10.2008 under Annexure-
14, considering the request made by the Petitioner, he was allowed
to retain the quarter for a period of three (3) years by paying the
normal rent. Even after expiry of the period of 3 years from
03.10.2008, Petitioner remained in occupation of the quarter till he
vacated the same on 18.12.2018, with his superannuation on
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31.01.2018. It is also not disputed that Petitioner went on paying the
normal rent till he retired on 31.01.2018 all through.
9.2. Since from the record it is found that order dtd.17.01.2010
cancelling the allotment was never issued to the Petitioner nor any
notice was issued directing the Petitioner to vacate the quarter after
17.01.2010, placing reliance on the decision of the Apex Court so
followed by this Court as cited (supra), it is the view of this Court
that Petitioner cannot be imposed with any penal rent for the period
he remained in occupation of the quarter till his retirement. Not
only that on the face of such cancellation vide order dt.17.01.2010
Petitioner was not only allowed to remain in occupation of the
quarter but also normal rent was accepted from him all through till
31.01.2018.
9.3. In view of the aforesaid analysis, it is the view of this Court
that Petitioner is not liable to pay any penal rent till 31.01.2018 and
if as contended the normal rent has been paid till that date,
Petitioner will not be held liable to pay any further rent till
31.01.2018. However, Petitioner is held liable to pay the penal rent
as due and admissible for his occupation of the quarter beyond
31.01.2018 till 18.12.2018. Opp. Party No. 3 is directed to pass a
fresh order and serve a demand notice accordingly on the Petitioner
within a period of two (2) months from the date of receipt of this
order. Petitioner is also directed to pay the penal rent without
raising any objection.
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10. With the aforesaid observation and direction, the writ petition
stands disposed of.
(BIRAJA PRASANNA SATAPATHY)
Judge
Orissa High Court, Cuttack
Dated the 14th November, 2025/Sneha
Location: High Court of Orissa, Cuttack
