IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 16TH DAY OF NOVEMBER 2011/25TH KARTHIKA 1933 WP(C).No. 24806 of 2010 (A) --------------------------------------- PETITIONER(S): ---------------------- K.P.LAILARAM, RETIRED ASSISTANT COMMISSIONER OF POLICE, ERNAKULAM RESIDING AT KOCHILATT HOUSE, MULAVUKAD P.O. ERNAKULAM. BY ADVS.DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.MATHEW SUNNY SRI.ANOOP.V.NAIR RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME (K) DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-1. 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM-1. 3. THE COMMISSIONER OF POLICE, KOCHI CITY, ERNAKULAM, KOCHI-31. BY GOVERNMENT PLEADER SMT.ROSE MICHAEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-11-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MJL WPC.NO:24806/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE ORDER NO.G2(b)29748/03/EC DATED 08-07-2003 GIVEN BY THE 3RD RESPONDENT EXT.P2 : TRUE COPY OF THE NOTICE GIVEN BY THE ASSISTANT COMMISSIONER OF POLICE, ERNAKULAM DATED 10-11-2003 EXT.P3 : TRUE COPY OF THE REPRESNTATION FILED BY THE PETITIONER DATED 27-11-2003 EXT.P4 : TRUE COPY OF THE LETTER GIVEN BY THE PETITIONER TO THE ASSISTANT COMMISSIONER OF POLICE, KOCHI CITY DATED 28-11-2003 EXT.P5 : TRUE COPY OF THE ORDER No.G2(b)-29748/2003 DATED 20-12-2003 EXT.P6 : TRUE OF THE RULES G.O.(MS)No.128/76/HOME DATED 29-09-1976 EXT.P7 : TRUE OF THE JUDGMENT DATED 11-072007 IN W.P.(C) No.2155/2004 EXT.P8 : TRUE COPY OF THE JUDGMENT DATED 28-11-2007 IN W.A.No.2741/2007 EXT.P9 : TRUE COPY OF THE COMMUNICATION GIVEN BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT DATED 12-05-2009 EXT.P10 : TRUE COPY OF THE LETTER WRITTEN BY THE 2ND RESPONDENT TO THE FIRST RESPONDENT DATED 25-08-2009 EXT.P11 : TRUE COPY OF THE LELTTER GIVEN BY THE FIRST RESPONDENT TO THE 2ND RESPONDENT DATED 02-07-2010 RESPONDENTS' EXHIBITS: NIL /TRUE COPY/ P A TO JUDGE MJL C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C) No.24806 of 2010 ------------------------------------------- Dated this the 19th day of November, 2011 J U D G M E N T ---------------------- Petitioner is challenging Ext.P11, decision taken by the Government in refusing waiver of penal rent charged for occupation of the official quarter beyond the prescribed period, after transfer of the petitioner from the station in question. The petitioner, who retired from the service of the Government in the Police Department on 30.6.2007, was occupying quarter No.5A(12) at the police housing complex at Thevara, during the period when he was working as Circle Inspector of police, Kochi city. The petitioner was transferred to Mala on 21.3.2003. Since his children were studying at Kochi he made a request to the 3rd respondent, Commissioner of Police, Kochi city, to permit continued occupation of the family quarter till the end of the academic year. The said request was declined by the 3rd respondent through Ext.P1 stating the reason that W.P.(C).24806/10 -2- there is no provision to extend continued occupation of the quarter till the end of the academic year, as per the Rules contained in GO(Ms).No.128/76/Home dt.28.9.1976. Consequently a notice was issued by the Assistant Commissioner as per Ext.P2, requesting the petitioner to vacate the quarter within 15 days. The petitioner thereupon submitted Ext.P3 representation to the 2nd respondent requesting to permit continued occupation of the quarters till the end of the academic year. The fact that such a representation was submitted and it is pending consideration of the 2nd respondent, was made known to the 3rd respondent through Ext.P4 letter. But the 3rd respondent took a decision to charge penal rent for occupation of the quarter for the period from 18.4.2003 to 30.11.2003. By Ext.P5 proceedings it was decided to recover an amount of Rs.10,192/- from the petitioner on this count. Challenging Ext.P5, the petitioner approached this court in W.P(C). 2155/2004. The petitioner relied on clause 22(b) of GO(MS) 128/76 /Home dt.29.9.1976 in order to content that there is W.P.(C).24806/10 -3- provision to allow continued occupation of transferred officials till the end of the academic year, and further to contend that even beyond the end of the academic year the Inspector General of Police has got power to extent the period of occupation. This court in Ext.P7 judgment had quashed Ext.P5, taking note of the said provision and directed the 3rd respondent to pass fresh orders in the matter. The respondents herein challenged Ext.P7 judgment in writ appeal, on the contention that the 3rd respondent herein is not the competent authority to decide the issue. In Ext.P8 judgment the writ appeal was disposed of directing the 2nd respondent to consider Ext.P3 representation and to dispose of the same untrammelled by any of the observations contained in Ext.P7 judgment. Long after Ext.P8 judgment, the 2nd respondent had taken a decision as per Ext.P9, directing the 3rd respondent to realise from the petitioner only the normal rent under the general rules, for the period from 14.5.2002 to 31.5.2007. But after taking such decision the 2nd respondent again W.P.(C).24806/10 -4- referred the matter to the 1st respondent through Ext.P10, stating as follows: “As per the usual general law says that the occupant can be vacated by the Department through proper procedures and he/she has no right for continued occupation after the academic year without specific Government permission. Further his request was rejected by Police Headquarters at its discretion on 23.1.2004 since 12 applications are pending. Moreover, the petitioner retired from service on 30.6.07 and vacated the quarters on 31.5.07. The Court Order by the single judge of the High Court in W.P(C). No.2155 of 2004 dtd.11.7.07 and orders of division bench were issued on a later date after his retirement from service and after he had vacated the quarters. Under the above circumstances, it is requested to examine the above matter on the basis of humanitarian grounds and requested to exempt from paying the penal rent since he has retired from service and vacated the quarters well before his date of retirement. Early orders may be communicated to this office.” On the basis of P10 the 1st respondent has taken Ext.P11 decision refusing to accord sanction for waiver of penal W.P.(C).24806/10 -5- rent. This writ petition is filed being aggrieved by the decision taken in Ext.P11. 2. In the counter affidavit filed by the 3rd respondent it is mentioned that the petitioner is liable for payment of penal rent to the tune of Rs.67,774/- since the Government had refused to waive the penal rent. But nothing is mentioned to illustrate as to why the 2nd respondent had referred the matter for decision of the Government, inspite of the fact that he had taken Ext.P9 decision, in compliance with Ext.P7 and P8 judgments. 3. For deciding the issue I need not go into merits of the rival contentions, because it is evident from Ext.P7 and P8 judgments that this court directed the 2nd respondent to consider the matter and to take a decision in view of clause 22 in Ext.P6 Government Order, on the basis of Ext.P3 representation. Going by clause 22 in Ext.P6 it is clear that the incumbent concerned can make a request for continued occupation of the quarter till the end of the academic year or for a maximum period of 6 months, whichever is earlier, W.P.(C).24806/10 -6- and the controlling officer can take a decision on such request. It is further mentioned that if the maximum period of 6 months expired beyond the close of academic year, the Inspector General of Police (at present the Director General) can take a decision for permitting continued occupation till the close of academic year. In the case at hand, the 2nd respondent had taken a decision as evident from Ext.P9 to realise only normal rent for the period of the extended occupation, presumably in compliance with the directions contained in Ext.P7 and P8 judgments. There was no occasion warranting a reference of the matter to the Government. According to the petitioner he has no grievance with respect to the decision taken under P9 and he is not disputing liability for payment of rent at the normal rate. Therefore I am of the view that the issue can be settled directing the petitioner to abide by the decision taken under Ext.P9 and to settle the liability by payment of the amount recalculated at the rate of the normal rent applicable during the relevant period. W.P.(C).24806/10 -7- 4. Therefore the writ petition is allowed and Ext.P11 order is hereby quashed. The respondents 2 & 3 are directed to settle the issue by recovering normal rate of rent applicable during the relevant time, with respect to occupation of the quarter from 14.5.2002 to 31.5.2007. Needless to say that amounts already recovered in this regard shall be adjusted against such liability. Needful steps in this regard shall be done by the 3rd respondent at the earliest. Sd/- C.K.ABDUL REHIM, JUDGE. /True copy/ P. A. to Judge okb