IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SIXTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.6026 of 2000 Between: Dr. P.C.Rao H.No. 8-2-293/82/HH/12/2, Road No. 12(old), Road No.1 (new), Adjacent to MCH Lake Banjara Hills, Hyderabad - 500034 ..... PETITIONER AND 1 Government of India, Rep by its Secretary, Department of Urban Development, New Delhi. 2 Deputy Director of Estates, Ministry of Urban Affairs & Employment, Directorate of Estates, Government of India, New Delhi. 3 Directorate of Estates, Government of India, New Delhi. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to it is therefore, prayed that this Hon'ble Court may be pleased to issue an appropriate Writ, Order or direction, more particularly one in the nature of Writ of Mandamus, declaring the action of the Respondent in a) Not Considering my request for payment of normal rate of license fee as against the demand for market rate of License fee; and b) Issuing Proceeding in Case No. DRC/51/DD/Lit/99/TS dt. 3.2.2000, as in violation of Principles of natural justice, contrary to the procisions of Public premises (eviction of unauthorised occupants) Act 1971 and in violation of Article 14 of the constitution of India, and for Consequential direction to-; i) set aside the proceedings of the 3rd respondent in case No. DRC/51/DD/Lit/99/TS, dt. 3.2.2000, and ii) Consider the representation of the petitioner for being permitted to make payment of normal rate of license fee as against the market rate of license fee; and iii) Pass such other order or orders as this Hon'ble Court may deem fit and proper. Counsel for the Petitioner:MR.SRINIVAS DAMMALAPATI Counsel for the Respondent No.: MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) The Court made the following : THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.6026 of 2000 ORDER: This writ petition has been filed seeking a Writ of Mandamus to declare the action of the respondents in issuing the proceedings, dated 03-02-2000, as illegal and arbitrary. The undisputed facts are that the petitioner retired as Law Secretary, Government of India, on 31-08-1996. While he was working as a Law Secretary, he was allotted bungalow No.AB-16 at Pandara Road, New Delhi. After retirement, the concessional period of four months alone is admissible under the Rules and as such, the allotment of the said bungalow was cancelled, after expiry of four months i.e., with effect from 01-01-1997. Under Rule S.R.317-B-22, damages rate is recoverable as fixed by the Government from time to time. It is also not in dispute that the petitioner was elected as a Judge of International Tribunal for the Law of the Sea for a period of three years with effect from 01-10-1996. It is the case of the petitioner that the 2nd respondent, through proceedings, dated 24-04-1997, allowed the petitioner to retain the said bungalow on payment of market rate of licence fee at the rate of Rs.15,907/- per month with effect from 01-01- 1997 subject to ratification/approval of the Competent Authority. However, the said allotment was made for a period of one year or until issuance of further orders in this regard. Pursuant to the said letter of the 2nd respondent, dated 24-04-1997, the petitioner continued in occupation of the said bungalow, and, thereafter, made a representation, dated 10-05-1997, requesting the Government to permit him to retain the said bungalow on payment of normal rate of licence fee, keeping in view of the dignity of the office he hold, as he was appointed as a Judge of the International Tribunal for the Law of the Sea until 30-09-1999. While so, the Assistant Director of Estates, issued letter, dated 17-02-1998, asking the petitioner to pay an amount of Rs.4,02,911/-, as the amount due till 30-11-1998, by increasing the market rate of licence fee from Rs.15,907/- to Rs.18,757/-. In reply thereto, the petitioner made another representation, dated 01-01-1999, requesting the competent authority to allow him to pay the normal rate of licence fee. Thereafter, the 2nd respondent issued a letter, dated 05-01-1999, demanding the petitioner to remit a sum of Rs.4,21,668/- through bank draft immediately, failing which, eviction proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short “the Act”), would be initiated. Subsequently, the petitioner vacated the said bungalow on 20-01-1999. After issuing demand notice, final show cause notice, dated 20-07-1999, was issued demanding the petitioner to pay a sum of Rs.4,33,769/-, for the period, as per the enclosed statement. Pursuant to the said final show cause notice, the petitioner submitted his reply vide letter, dated 12-08- 1999, stating that he has not received any statement, as stated in the final show cause notice, and accordingly, requested to furnish copy of the statement said to have been enclosed in the show cause notice, dated 20-07-1999. It is further stated that the post held by him is similar to the posts occupied by the Judges of the International Court of Justice and two Judges namely Justice Nagendra Singh and Justice R.S.Pathak, while on their assignment in the International Court of Justice, were permitted to occupy the Government bungalow on special concessional rate and, therefore, the petitioner, who is also occupied similar post, requested to allow him to pay concessional rate of licence fee for the said bungalow. But, however, without assigning any reasons whatsoever, the respondents issued final demand notice, dated 03-02-2000, directing the petitioner to pay a sum of Rs.4,33,769/-, as damages for unauthorized use and occupation of the said Bungalow. Petitioner questions the said order, dated 03-02-2000. A counter has been filed admitting that Justice Nagendra Singh and Justice R.S.Pathak were allowed to retain their residence in Delhi with the approval of CCA, which is the Competent Authority, in relaxation of the rules and that the retention was allowed on payment of licence fee at special rate and not at normal rate. The rate of special licence fee is higher than normal rate. It is stated that though Justice Nagendra Singh was not eligible for retention of allotment of a general pool house in Delhi, the retention was allowed on relaxation of the Rules. It is stated that insofar as the petitioner is concerned, the request could not be considered or decided by the CCA, as he himself vacated the bungalow on 20-01-1999. It is further stated that the Supreme Court of India in its judgment, dated 23- 12-1996, in Writ Petition (Civil) No.585/94, in case of SHIV SAGAR TIWARI Vs. UNION OF INDIA, has disapproved such waivers approved by CCA in relaxation of the Rules and held that while initiating recovery action, CCA decisions be ignored. I have perused the judgment of the Supreme Court of India in Writ Petition (Civil) No.585 of 1994, dated 23-12-1996. The Supreme Court of India in the said Judgment held at paras 14 and 15 as follows:- “The unauthorized occupants of Government premises, who are liable to pay damages, would do so as per the relevant rules.” “The waiver orders as passed have no sanction of law, and while undertaking recovery, the same shall be ignored and the recovery proceedings would abide the order passed on 29-11-1996. On 29-11-1996, the Supreme Court in the said writ petition held that after completing the recovery proceedings, the recovery warrant be sent to the Competent Authority for making recovery as arrears of land revenue, granting two months time to initiate proceedings against all the persons. Thus, it is stated that in view of the aforesaid judgments of the Supreme Court, the petitioner is liable to pay damages and even the CCA cannot waive the damages granting permission for payment of normal rate or special rate. It is not known when the said Justice Nagendra Singh was allowed to pay licence fee at special rate. However, it is stated that it was higher than the normal rate. The question that arises for consideration is as to whether the petitioner is entitled for payment of licence fee at normal rate or special rate or market rate. In the impugned order, the market rate of the licence fee has been demanded. It is the case of the petitioner that he is entitled for payment of licence fee on par with Justice Nagendra Singh, who was allowed to retain the similar residence, while he was occupying the post of International Court of Justice. Admittedly, the case of Justice Nagendra Singh was referred to CCA and in the counter it is stated that the case of the petitioner was also considered and it was decided to place the matter before CCA, but for the reason that he had already vacated the bungalow on 20-01-1999, the matter was not placed before CCA. I am of the opinion that vacation of the bungalow cannot be a reason for not placing the matter before CCA. as the question that requires to be resolved is about payment of licence fee i.e., whether the petitioner is liable to pay licence fee at normal rate or special rate or market rate. Against the order passed under Section 7 of the Act, an appeal lies to the Additional Chief Judge, Delhi. But, in the instant case, as the petitioner already vacated the bungalow, the question with regard to payment of licence fee for his use and occupation of the Bungalow for the aforesaid relevant period is only to be decided by the CCA. Having regard to the facts and circumstances of the case, without expressing any opinion on the merits of the case, the writ petition is disposed of directing respondents 2 and 3 to refer the matter to CCA with regard to payment of licence fee by the petitioner for his use and occupation of the bungalow from 01-01-1997 to 20- 01-1999, while he was occupying the post of the Judge of International Tribunal, so as to enable the CCA to consider the case of the petitioner and pass appropriate orders. Till CCA takes appropriate decision, no coercive steps shall be taken for recovery of the said amount. However, it is made clear that the petitioner shall file an application before respondents 2 and 3 within three weeks from the date of receipt of a copy of this order, so as to enable respondents 2 and 3 to refer the matter to CCA for taking appropriate decision. There shall be no order as to costs. ___________ 06-08-2008 Prv ..... 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