1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Wg.Cdr.Ajit Singh v. Union of India & Ors. S.B.CIVIL WRIT PETITION NO.5213/2003 under Article 226 of the Constitution of India. Date of Order :: 30 th March, 2009 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Ms. Nupur Bhati, for the petitioner. Mr. M.S.Godara, for the respondents. .... BY THE COURT : To challenge recovery of a sum of Rs.17,388/- against damage rent from the petitioner and for reimbursement of hired house rent to him, this petition for writ is preferred. In brief, the facts of the case are that the petitioner, a Wing Commander with Indian Air Force, while working as Commanding Officer, 2217 Squadron, by letter dated 26.4.2001 communicated his willingness to hire accommodation at 11 locations including 2485/C- 11, Vasant Kunj, New Delhi. The quartering officer by a letter dated 30.4.2001 allotted house No.2485/C-11, 2 Vasant Kunj to the petitioner with condition that the allotment shall stand cancelled on failure to occupy the accommodation on or before 4.5.2001. A condition was also there that sum equivalent to the rent till allotment of accommodation to some other officer shall be charged if the accommodation allotted is not availed by the allottee officer. The petitioner, after collecting allotment letter, visited the accommodation allotted to him and found that the accommodation concerned was not fit for dwelling, as such by a letter dated 3.5.2001 he desired for repair of the house or in alternative for allotment of some other accommodation. Some of the deficiencies pointed out by the petitioner in the letter dated 3.5.2001 are as follows:- “a)Crack in wall holding the door frames b)no distance paring fane c)cracks in wall on terrace. d)window panel broken e)Towel racks not fitted in f)Kitchen board hanging loose and broken g)Lamp shades lossely kept on the floor h)Water problem I)Window frame hanging loose and few missing. j)Wash basine creakced. g)capback knage loose 1Electrical switch loose/broken” The petitioner also mentioned in the letter dated 3.5.2001 that the Junior Engineer (Civil) also pointed out certain deficiencies and those were 3 earlier communicated to the Chief Administrative Officer, Ministry of Defence, New Delhi. The petitioner did not occupy the accommodation allotted to him under the letter dated 30.4.2001 on or before 4.5.2001 and, therefore, he was under impression that the allotment must have been cancelled as per the condition referred in the letter of allotment. However, he received a letter dated 11.6.2001 from the office of the respondent No.3 either to occupy the accommodation allotted to him or to face recovery of damage rent. By a letter dated 15.5.2001 the respondents also denied reimbursement of house rent. The petitioner accordingly informed the respondents that the house accommodation allotted to him was not fit for dwelling and as such he did not occupy the same. While doing so he also referred a letter dated 15.7.2000 whereby Lt. Colonel Shri S.Aghagurel, the earlier occupant of the same house accommodation pointed out defects and deficiencies existing with the house concerned. The deficiencies pointed out by the previous occupant Lt. Colonel Shri S.Aghagurel are as follows:- “a) Drawing room (i)Two light points not working (ii)One light point holder and wire missing (iii)Glass window closing handle missing (2 nos.) b)Dining hall (i)two plug points broken (ii)two light points not working 4 iii)Glass window closing handle missing (3 nos.) c)Water piper system. i)Water pump not working ii)Susting ground tank capacity grossly inndequater approx 300 considering the scaerty water supply in d)Master bed room i)Grill in window (partialy) missing ii)One lamp shade broken iii)fan not working iv)Wardrobe locking part missing. v)Glass window door handle missing vi)Plug point broken (2 nos.) e) Attached bath room i)Lamp shade broeken ii)Goyer not fitted iii)wash basin drain pipe to be replaced f)Bath room II i)Lamp shade borken ii)Towel hanger broken Iii)Shower broken iv)Giyser not fitted g)Kitchen i)Cabinet wooden door with framed hanging loose ii)window door handle missing (2 nos.) h)Bed room II i)Fan making noise during operation ii)Plug point broken (2 Nos.) iii)Glass window closing handle missing” 5 The petitioner also submitted a letter dated 5.12.2001 for reconsideration for reimbursement of house rent and also for not charging damage rent. An information regarding debit of damage rent in a tune of Rs.17,388/- was conveyed to the petitioner under a letter dated 6.12.2001 and being aggrieved by the same the petitioner submitted a representation to the Directorate of Plans to reconsider the damage rent already charged and also to reimburse house rent. The representation submitted by the petitioner was forwarded to the competent authority by the Administrative Officer on 7.12.2001 with recommendation for reimbursement of house accommodation rent and waiver of the damage rent. The quartering officer under a letter dated 12.6.2002 informed that “the case of the Wing Commander Ajit Singh (15864) for waival of damages rent charged to the officer for the period from 30.4.2001 to 29.7.2001 for Defence Pool accommodation No.2485/C-II, Vasant Kunj, New Delhi was considered and rejected by the PSOC vide its meeting held on 15.5.2002”. As per the minutes of the PSOC meeting held on 15.5.2002, the total consideration of the case of the petitioner for waiver of damage rent was as follows:- 6 “Item : VII-Waiver of Damage Rent : The cases of waiver of damage rent of the following officer were considered and rejected by the members of the PSOC. (a) Maj Gen Harbhajan Singh, VSM (Retd) (b) Col Om Prakash (c)Wg Cdr Ajit Singh” Being aggrieved by the decision of the PSOC, the petitioner submitted an application for redressal of his grievance to the Directorate of Air Force Works, however, that too was rejected and an information in this regard was given to the petitioner by letter dated 19.5.2003. While assailing validity of the recovery made by the respondents for damage rent, the contention of counsel for the petitioner is that as per letter dated 30.4.2001 the petitioner did not occupy the house accommodation allotted to him and, therefore, allotment stood cancelled and as such no damage rent could have been charged from him. It is further submitted that on 3.5.2001 itself the petitioner communicated that accommodation allotted to him was not fit for dwelling, therefore, a valid reason was available to him for not occupying the allotted house. The respondents in such circumstances were not required to make any recovery against damage rent. 7 Per contra, as per the respondents a house accommodation was allotted to the petitioner according to general rules and instructions for allotment of accommodation to service officers posted to Armed Forces Headquarters. According to the instructions aforesaid, an officer failed to collect the allotment letter or occupy the accommodation allotted to him in accordance with the acceptance given by him, is required to face relegation for a period of 6/3 months and also for payment of damage rent from the date of such allotment till it is re-allotted and occupied by another officer. The petitioner though collected allotment letter but failed to occupy the accommodation allotted to him in accordance with the acceptance given by him, as such the damage rent was rightly charged from him. It is also pointed out by counsel for the respondents that the condition aforesaid was referred in the letter of allotment itself and as such the petitioner was aware of the consequences on not occupying the allotted accommodation. Heard counsel for the parties. A house accommodation was allotted to the petitioner as per an administrative policy framed by the Government of India relating to allotment of accommodation to the service officers posted to Armed Forces Headquarters. The policy aforesaid prescribes 8 different eventualities for allotment of house accommodation, hired accommodation, rent reimbursement of house, procedure for allotment of house and also penalty on non-occupation of house allotted after giving acceptance. Essentially the policy is framed by the Government of India to provide an amenity to the service officer posted to Armed Forces. Such policy requires allotment of a house accommodation to defence personnels which is fit for dwelling. True it is that the policy in quite unambiguous terms prescribes for charging damage rent from the date of allotment of house till that is re-allotted to other officer, if the allottee fails to occupy the accommodation concerned, however, while giving effect to such penal provision, it is also required to see that whether the accommodation allotted was fit for dwelling or not. In the instant case the petitioner after collecting letter of allotment dated 30.4.2001 physically inspected the site on 3.5.2001 and on the same day he pointed out number of deficiencies with the accommodation allotted to him including the deficiencies relating to cracks in walls and cracks in terrace. The petitioner by the same letter also requested the Chief Administrative Officer for allotment of some other house accommodation. The deficiencies pointed out by the petitioner were also substantiated by Junior Engineer (Civil) working with the respondents. It is also relevant to note that the 9 previous occupant Lt. Colonel Shri S.Aghagurel also pointed out number of deficiencies with the house which was allotted to the petitioner. The deficiencies pointed out by the petitioner were also found genuine by the Administrative Officer of the Directorate of Plans who vide letter dated 7.12.2001 recommended to consider petitioner's case being a genuine one. In these circumstances the respondents instead of invoking penal provisions should have examined the correct factual position and to get the house accommodation adequately repaired. From perusal of the minutes of PSOC meeting, it is apparent that as a matter of fact the representation of the petitioner for waiver of damage rent was rejected in most cryptic manner. The PSOC should have called complete record and should have verified the real reasons for not occupying the allotted accommodation by the petitioner. In normal course, an officer who has given willingness for house accommodation accepts allotment made and refusal to such accommodation is an exception. In the present case the petitioner on 3.5.2001 itself pointed out several deficiencies in the house accommodation and those deficiencies were also earlier noticed by the previous occupant and also by the Junior Engineer (Civil) working with the respondents. A competent officer of the respondents found grievance of the petitioner genuine. In these circumstances, the refusal by the petitioner to occupy 10 the allotted house was required to be examined with an open mind and with all objectivity before invoking penal provision. In the present case no such objective consideration reveals from the consideration made by the PSOC in its meeting dated 15.5.2002. The Central Government too rejected the petitioner's case in quite casual manner. The policy maker or executors, while invoking penal provisions, must consider all objective conditions, circumstances and sufferings of the policy consumers. In such circumstances the charging of damage rent from the petitioner is certainly bad and as a matter of fact allotment of a house which was not fit for dwelling is required to be treated as non- allotment of hired accommodation. In view of whatever said above, this petition for writ deserves acceptance and, therefore, the same is allowed. The damage rent charged from the petitioner is declared illegal. The respondents, therefore, are directed to refund the same to the petitioner forthwith. The petitioner is also declared entitled for all consequential benefits including the benefit of reimbursement of house rent as per rules in the case of non-allotment of government accommodation. No order to costs. ( GOVIND MATHUR ),J. kkm/ps.