IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 OP.No. 33598 of 2001(Y) ------------------------------- PETITIONER(S): -------------------- JACOB CHACKO, MOTOR TRANSPORT INSPECTOR, A.R. CAMP, COCHIN CITY. BY ADV. MR.K.JAJU BABU MS.M.U.VIJAYALAKSHMI RESPONDENT(S): --------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVT. SECRETARIAT, TRIVANDRUM. 2. THE DEPUTY INSPECTOR GENERAL OF POLICE, ARMED POLICE BATTALION, TRIVANDRUM. 3. THE COMMANDANT, M.S.P., MALAPPURAM. 4. THE ACCOUNTATN GENERAL (A&E), OFFICE OF THE ACCOUNTATNT GENERAL, TRIVANDRUM – 695 001. GOVERNMENT PLEADER SRI. T.K. VIPINDAS. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 33598 of 2001 ORDER ON C.M.P.NO.54898 OF 2001 IN O.P.NO.33598 OF 2001 CLOSED. 18.2.2009. SD/- S. SIRI JAGAN, JUDGE. APPENDIX EXT.P1: COPY OF ORDER NO.G2-18335/99/M DTD 24.5.2000 ISSUED BY THE 3RD RESPONDENT. EXT.P2: COPY OF ORDER NO.G2-18335/99 M DTD 24.5.2000 ISSUED BY R3. EXT.P3: COPY OF REPLY SENT BY R2 TO THE PETITIONER VIDE NO.G1/5225/2000-APB DTD 24.7.2000. EXT.P4: COPY OF REVISION FILED BY THE PETITIONER BEFORE R1 ON 20.4.2001. EXT.P5: COPY OF ORDER NO.G.O.(Rt) NO.3555/2001 HOME DTD 10.10.2001 ISSUED BY R1. EXT.P6: COPY OF ORDER NO.G2-18335/99-M DTD 4.10.99 ISSUED BY R3 TO THE PETITIONER. EXT.P7: COPY OF ORDER NO.G2-10517/2000M DTD 16.6.2000 ISSUED BY R3. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No.33598 OF 2001 ---------------------------------------- Dated this the 18th day of February, 2009 JUDGMENT The petitioner, while working as a Motor Transport Inspector at Malappuram, in the year 1999, was allotted a family quarter and he was occupying that family quarter along with his family. While so, on 16.2.1999, his wife, a central government employee, was transferred to Ernakulam. The petitioner was asked to vacate the family quarter on the ground that on transfer of his wife to Ernakulam, he is not entitled to occupy the family quarters. On 12.10.1999, the petitioner requested for at least a bachelor accommodation. By Ext.P1 dated 24.5.2000, the petitioner was allotted a bachelor quarter. By Ext.P2, the allotment of the family quarter to the petitioner was cancelled with retrospective effect from 28.2.1999. The petitioner was directed to pay penal rent at triple rate for the period from 28.2.1999 onwards till he vacated the same on 1.6.2000. The petitioner’s representation against the same, before the 2nd respondent was rejected by Ext.P3 dated 24.7.2000. The O.P.No.33598/01 2 petitioner approached the Government. By Ext.P5, the Government limited the penal rent for the period from 28.2.1999 to 11.10.1999. The petitioner is challenging Exts.P2, P3 and P5, seeking the following reliefs: i) issue a writ of certiorari, or other appropriate writ, order or direction, calling for the records leading to Exts.P2, P3 and P5 and quash the claim for penal rent from the petitioner; ii) stay the operation and all further actions on the basis of Ext.P5, pending disposal of the Original Petition”. 2. According to the petitioner, no penal rent is payable by the petitioner because the petitioner had not done anything illegal and had done whatever the respondents had directed him to do. He further points out that there is no rule stipulating that on transfer of a wife, the husband ceases to be entitled to family quarter and for continued occupation of the family quarter penal rent would be payable. 3. Although the respondents did not file any counter affidavit, the learned Government Pleader argues in support of the impugned orders. 4. I have considered the rival contentions in detail. The rules for allotment of the quarters to the police personnel have been made available by the petitioner. As per the same O.P.No.33598/01 3 only married persons are entitled to family quarters. The term “married person” is defined in Rule 3(3) thus: “Married Person” means a person who has a wife living with him or a widower who has at least a child living with him” 5. At the time of allotment of the quarter, admittedly the petitioner was a married person. Simply because the petitioner's wife has been transferred, the wife does not cease to be living with him. There can be circumstances where the wife may commute daily or come home on week ends, in which case he would continue to be a married person as defined. Even otherwise, the action of the respondents is arbitrary in so far as even assuming that the petitioner has ceased to become entitled to family quarters, the petitioner is certainly entitled to some time to move out. That time would necessarily be the time till the petitioner is allotted bachelor's quarter. Admittedly, the petitioner requested for allotment of bachelor accommodation on 12.10.1999. The respondents could provide a bachelor accommodation to the petitioner only on 24.5.2000. That would mean that a bachelor accommodation was not available for the petitioner at the relevant time. All along the petitioner paid the normal rent payable without O.P.No.33598/01 4 default. Therefore, I am of opinion that the imposition of penal rent on the petitioner is totally unjustifiable. It is not as if the Government has suffered any loss on account of the continued occupation of the family quarters by the petitioner. If the petitioner had vacated the quarter at that time itself, another married person would have occupied the same, in which case also the Government would have received only the normal rent. The question of payment of penal rent is only to discourage occupation of family quarters without any justification by persons who are not eligible for family quarters. In this case, the petitioner did not occupy family quarters against Rules as such. He was allotted family quarters since he was a married person and he was occupying the family quarters legally. Even assuming that he was not entitled to continue to occupy family quarters on his wife haviing been transferred on 16.2.1999, he is entitled to some time to seek alternate accommodation at least. Therefore, I do not think that the conduct of the petitioner merited penal consequences. It is also stated in paragraph 5 of the original petition that no married person was actually waiting in the queue for occupying a family quarter at Malappuram at the relevant time. This has O.P.No.33598/01 5 not been controverted by filing a counter affidavit. If that be so, in fact the Government actually benefited from the petitioner’s continued occupation of the family quarter, since if he had vacated it then and there the Government would not even have received the normal rent paid by the petitioner. 6. For all the above reasons, I am satisfied that the demand for penal rent is unjust and unreasonable. Accordingly, the impugned orders are quashed. It is declared that the petitioner is not liable to pay any penal rent for the continued occupation of the family quarters till he was allotted bachelor accommodation. The original petition is allowed as above. S. SIRI JAGAN, JUDGE Acd O.P.No.33598/01 6