1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.5481/04 (Surya Prakash Goyal V/s. State of Raj. & Ors.) Date of Judgment :: 27.04.2009. HON'BLE MR.JUSTICE R.S. CHAUHAN Mr. V.K. Sharma for the petitioner. Mr. Krishna Verma, Addl. GA for the State. Aggrieved by the letters dated 21.01.2004 and 03.06.2004, the petitioner has challenged the the same before this Court. By the former letter, Additional Area Development Commissioner, CAD, Chambal, Kota had informed the petitioner that he could retain the government accommodation which was assigned to him, provided he pays three times the normal rent. By the latter letter, the petitioner was directed to deposit a penal rent at three times the normal rent, from August, 1993 onwards. 2 In a nutshell, the facts of the case are that the petitioner is a government employee and he was allotted a government house. By way of rent, a sum of Rs.160 was deducted from the petitioner's monthly salary. The petitioner also applied for allotment of a house to the Rajasthan Housing Board, Kota. The Rajasthan Housing Board allotted House No.2/323 in Ganesh Talab Scheme, Kota to the petitioner. The allotment of the house was within the knowledge of the respondents as the petitioner had taken loan from the respondents. On 25.12.1999, the petitioner rented out his personal house to one Mr. Bhim Singh. But, subsequently the petitioner filed a suit for eviction of Mr. Bhim Singh. The suit was decreed by the learned trial Court. Mr. Bhim Singh has challenged the decree of eviction. The said appeal is pending before the Additional District Judge No.5, Kota. According to the Rajasthan Civil Services (Allotment of Residential Accommodation) Rules, 3 (“the Rules”, for short) the petitioner ought to have handed over the possession of the Government accommodation allotted to him after the expiry of one year from the date of payment of last instalment of the loan amount taken by him. But the petitioner did not vacate the Government accommodation. The respondent asked the petitioner to furnish the details of the loan, tenancy of Bhim Singh and copies of the plaint, written statement etc., in the suit for eviction filed by him. Vide letter dated 21.01.2004 the petitioner was informed that he could retain the government accommodation on his giving an application, in writing, undertaking to pay three times the normal rent payable for government accommodation. Thereafter, vide letter dated 03.06.2004, the petitioner was required to deposit rent @ 7.50% of the basic pay, or Rs.675/- whichever is higher for the Government accommodation w.e.f., August, 1993. The petitioner was also required to immediately vacate the government accommodation, failing which 4 disciplinary action would be taken against him. The petitioner sent a letter to the Regional Development Commissioner informing him that he had vacated the government accommodation as on 31.07.2004. According to the petitioner, in spite of his having vacated the government accommodation as on 31.07.2004, the respondents are threatening to proceed against the petitioner in terms of their letters dated 21.01.2004 and 03.06.2004. Being aggrieved by the aforesaid letters, the petitioner has filed this present writ petition before this Court. Mr. V.K. Sharma, the learned counsel for the petitioner, has contended that under the Rules, the government does not have the power to impose any penal rent on the officer who has vacated the government accommodation assigned to him. Under Rule 9(4)(iii) of the Rules, an officer or an employee who owns or has his own house constructed or purchased, he or she may apply to the Government with a request to permit him/her to retain the 5 government accommodation. The Government may permit him to do so, provided he or she agrees to pay three times the normal rent prescribed under which government accommodation was allotted to the said officer/employee. It is the case of the petitioner that a limited power has been given to the Government. However, Rule 9 does not empower the Government to impose a penal rent thrice the normal rent for the government accommodation. Therefore, the impugned letters are devoid of any legal basis. Thus, they are illegal and invalid. On the other hand, Mr. Krishna Verma, the learned Addl. GA for the State, has vehemently argued that Rules 9(4)(iii) should be interpreted so as to empower the Government to impose a penal rent, thrice the normal rent of the government accommodation. Moreover, he has referred to Rule 12A of the Rules, whereby the Government is permitted to evict a person under Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 6 1964. Lastly, he has brought to the notice of this Court, the decision of the Government that in case a person were not to vacate the government accommodation, a departmental inquiry can be opened against him for having committed a misconduct. Heard, the learned counsel for the parties and perused the impugned letters. Rule 9 is as under :- 9(1) Notwithstanding anything contained in sub-rules, no officer who owns a house at the place of his posting, whether in his own name or in the name of his wife or children shall be allotted a residence under these rules ; (a) such house has been requisitioned or taken on lease by Government, or (b) it is proved to the satisfaction of the Chief Secretary to Government in G.A.D. that (i) such house was given out on lease by the officer before being posted at that place and that he is unable for reasons beyond his control to obtain vacant possession of the house or (ii) having regard to the status of the officer, the house is manifestly inadequate to his requirements, or (c) it is not complete and worth occupying. 7 (2) No officer who has been granted a house building advance from the Government – Whether under the General Financial and Account Rules or under the Low Income Group Housing Scheme for constructing a house at the place of his posting shall be allotted a residence under these rules, or will be allowed to retain the residential building/quarter already allotted to him after the expiry of a period of one year from the date of instalments, the date of the last instalment will be considered as the date of drawing such advance for purposes of calculating the above period. (3) If any Government servant takes occupation of the Government owned, leased or requisitioned house without the orders of the Allotting or continues to occupy such accommodation against the orders of the Allotting Authority, double the standard rent shall be charged from the occupant concerned. (4)(i) An officer/employee who has his own house including a Farm House in the name of his wife/husband or minor children at the place of posting in urbanisable limit shall not be entitled to get Government residential accommodation. (ii) Those having commercial buildings at the place of posting and which has been given on lease/rent, shall also not be entitled to Government residential accommodation. (iii) The officer/employee who has been allotted Government residential 8 accommodation in the past and who owns or has got constructed /purchased own house /farm house/commercial property after allotment of Government residential accommodation, not being an earmarked accommodation, will be allowed to retain such Government accommodation on his/her written request in this regard subject to his/her agreeing to pay three times the normal rent prescribed for Government accommodation allotted to the concerned person. (iv) The officers/employees who do not vacate Government accommodation within prescribed /sanctioned time limit after their transfer shall not be entitled to Government residential accommodation at any place in future except earmarked house. A bare perusal of Rule 9(4)(iii) clearly reveals that upon keeping the house of his own, a responsibility has been imposed upon the Government officer/employee to request the government to permit him to retain the government accommodation. Moreover, the government has the power to permit him to do so, provided he agrees to pay three times the normal rent prescribed for the government accommodation. 9 The golden rule of interpretation is to go by the plain and grammatical meaning of the words. Provisions of Rules clearly show that a sole duty has been cast upon the officer/employee to make a request for retention of the accommodation to the government. In case, the employee/officer were to agree to pay thrice the normal rent, a power has been granted to the government to permit the officer to retain the government accommodation. Thus, clearly the provision cannot be read as empowering the government to charge a penal rent, three times of the normal rent. In case such a penal power were to be given, the provision would have clearly stated so. However, such a penal power is conspicuously missing from the said provision. Therefore, the ambit and scope of the said provision cannot be enlarged so as to include a penal power. Hence, the impugned letters have no legal basis. Thus, they suffer from colourable exercise of power. They are, therefore, unsustainable. 10 Mr. Verma has further informed this Court that the petitioner has already vacated the government accommodation. Therefore, the Government cannot take recourse to Rule 12A and cannot file any application for ejecting the petitioner from the Government accommodation. Therefore, Rule 12A does not come into operation in the present case. While the government could not have issued the impugned letters, the Government is free to take disciplinary action against the petitioner for not having vacated the government accommodation, in accordance with the Rules and the government decision mentioned above. In this view of the matter, while allowing the writ petition, this Court quashes and sets aside the letters dated 21.01.2004 and 03.06.2004. But, the respondents are free to take any disciplinary action against the petitioner in accordance with law. 11 But by way of abundant caution, it is clarified that the respondents shall not be influenced by any observation made in this judgment while dealing with the disciplinary inquiry, if any, taken against the petitioner. With these observations, this writ petition, is hereby, allowed. No costs. [R.S.CHAUHAN]J A.Asopa/