1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3348 OF 2005 WITH CIVIL APPLICATION NO.2260 OF 2009 Union of India .. Petitioner. Vs. R.K.Pathania .. Respondent. Mr.Y.S.Bhatte for the petitioner. Mr.R.R.Shetty for the respondent. CORAM : D.B. BHOSALE, J. DATED : 25TH NOVEMBER, 2009 P.C. . Heard learned counsel for the parties. 2. Rule. By consent, rule made returnable forthwith. Learned counsel appearing for the respondents waives service. By consent, the petition is taken up for hearing and final disposal at the admission stage itself. 3. This petition is directed against the order passed by the city civil court dated 8.10.2004 allowing the appeal filed by the respondent and setting aside the order dated 22.1.1998 passed by the Assistant Estate Manager. 4. The respondent was working with the petitioner in the 2 department of Income Tax Settlement Commission as a Commissioner, Income Tax. He was allotted residential accommodation while he was in Mumbai between the period 1987 and 1995. On 18.4.1995 he was transferred to Delhi and the allotment of flat had been cancelled with effect from 18.6.1995. According to the respondent, the order of transfer was served on him on 12.6.1995. He was allowed to retain accommodation in Mumbai upto 18.12.1995 on educational grounds. The respondent was on leave from 19.4.1995 to 5.5.1995 and in view thereof cancellation of allotment was revised to read as 6.7.1995 instead of 18.6.1995. The subsequent retention period of six months was extended till 6.1.1996. Under Rule S.R. 317-B-22 an officer is allowed to retain residential accommodation for a period not exceeding six months beyond the period of two months during which standard licence fee is charged under FR 45-A. Accordingly, the Directorate of Estates vide its letter dated 3.9.1984 had intimated to the respondent about retention of the accommodation till 6.1.1996, and hence, according to the petitioner, the respondent was in unauthorised occupation from 6.1.1996 till the date the respondent vacated the premises i.e. 17.5.1996. In view thereof the respondent’s contention based on the circular dated 31.7.2000 was rejected by the Assistant Estate Manager and he directed the respondent to pay damages 3 for use and occupation of the accommodation vide his letter dated 22.1.1998. 5. The respondent challenged the order of Estate Manager in Misc. Appeal No.17 of 2003 before the Principal Judge of the City Civil Court, Mumbai. The appeal filed by the respondent has been allowed by the Principal Judge mainly relying upon the circular dated 31st July, 2000 and Rule S.R.317-B-II read with FR 45-A which according to the petitioner was wrong and illegal and hence the order passed by the city civil court deserves to be set aside. 6. I have heard learned counsel for the parties for sometime. Mr.Bhatte, learned counsel for the petitioner at the outset submitted that the order of the city civil court based on Rule S.R. 317-B-II read with FR 45-A and on the circular dated 31.7.2000 is erroneous since both, the rule as well as the circular, has no application to the facts of the present case. The order passed by the Estate Officer is of January, 1998, based on the transfer order issued in 1995, whereas the circular was issued on 31st July, 2000. Similarly, he also invited my attention to Rule S.R.317-B-22 to submit that this rule would apply to the facts of the present case, and the learned Principal Judge of the City Civil Court has wrongly relied on the Rule S.R. 317-B-II read with FR 45-A. On the other hand learned counsel for the respondent after inviting my attention to the circular 4 dated 31st July, 2000 vehemently submitted that based on this circular the petitioner had regularised next allotment of residential accommodation in Mumbai to the respondent when he had came back to Mumbai on 27.5.1996. He, therefore, submits that the respondent is entitled for benefit of the circular dated 31.7.2000. 7. I have perused the impugned judgment so also other material placed on record with the assistance of learned counsel for the parties. The respondent was transferred in April, 1995 and he came back to Mumbai in May, 1996. The order of the Assistant Estate Manager is dated 22.1.1998. It is, thus, clear that the transfer order as well as the impugned order was passed much before the circular dated 31.7.2000 was issued. The circular would not cover the case of the respondent and, therefore, reliance placed on this circular by the city civil court is misplaced. Similarly, reliance placed on Rule S.R.317- B-II was also an error committed by the city civil court. Admittedly, Rule S.R.317-B-22 covers the case of the petitioner. Further more, it is clear and/or not disputed by the respondent that he was permitted to retain the accommodation for a period of two months on payment of licence fee. Further retention was permitted on educational grounds, on payment of twice the normal licence fee. Damage rent has been charged for the period of over stay beyond the permissible period i.e. the period 5 of eight months. The period of eight months got over on 6.1.1996 and the respondent actually vacated the premises on 17.5.1996. In view thereof I do not find any error in the order passed by the Assistant Estate Manager. The city civil court, in my opinion, was wrong in interfering with the order of Assistant Estate Manager, relying upon the circular and the rule which do not apply to the facts of the present case. In the circumstances the order passed by the city civil court dated 8.11.2004 is set aside. Rule is made absolute in the aforesaid terms. No costs. Consequently, the civil application is also disposed of. (D. B. Bhosale, J.)