1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER SHRI V.K.CHATURVEDI VS. UNION OF INDIA & ORS. (S.B.C.WRIT PETITION NO.575/95) Dated:- 17.4.08. HON'BLE MR.JUSTICE SANGEET LODHA Mr.D.C.Sharma, for the petitioner. Mr.Jagdish Vyas, for the respondents. Reportable 1. In this writ petition, the petitioner employed as Inspector in Railway Protection Force ( in short “RPF” hereinafter) has assailed validity of communication dated 11.1.95/24.1.95 issued by the Commandant , RPF, Bikaner , whereby Commandant, RPF, Northern Railway, Ambala has been informed to recover a sum of Rs.26,510/- from the salary of the petitioner towards the penal rent/damages rate of rent for unauthorised retention of railway quarter during the period 16.6.93 to 11.1.94. The petitioner has also sought direction for payment of House Rent Allowance( in short “HRA” hereinafter). 2. Briefly stated the facts of the case are that the petitioner was posted as Inspector at RPF Post, Lahori Gate,Delhi. Vide order dated 11.6.93, the petitioner was transferred to Ambala Cantt . Assailing the validity of transfer order, the petitioner preferred a writ petition no.2928/93 before this Court which was dismissed on 1.10.93. Thereafter, the petitioner carried out the 2 transfer order and joined duties at Ambala Cantt. During his posting at Delhi, the petitioner was occupying a railway quarter which was liable to be vacated on his transfer, however, he continued to occupy the said quarter even after joining the duties at Ambala Cantt. Since the petitioner did not vacate the railway quarter allotted to him , therefore, on account of unauthorised occupation, the penal rent/damages rate of rent payable for the period 16.6.93 to 11.1.94 was quantified and vide communication dated 11.1.95/24.1.95, the Commandant, RPF, Bikaner informed the Commandant, RPF, Ambala Cantt. to recover a sum of Rs.26,510/- from the salary of the petitioner. Hence, this petition. 3. It is to be noticed that the petitioner continued to occupy the said railway quarter till 18.5.05 and he has retired from service in the month of July,05. In the meantime, in the month of April, 99 , the petitioner was again transferred from Ambala Cantt. to Delhi, however, no fresh allotment in his favour was ever made and he continued to occupy the premises unauthorisedly. 4. It is contended by the learned counsel on behalf of the petitioner that the Delhi being a nearby place to Ambala Cantt. , the petitioner was allowed to retain the quarter at Delhi. The learned counsel submitted that the allotment of the quarter made in favour of the petitioner was never cancelled by the 3 competent authority, and no accommodation was allotted to him at Ambala Cantt., therefore, he cannot be said to be an unauthorised occupant. The learned counsel submitted that even if the petitioner is treated to be unauthorised occupant, the respondents were not authorised to initiate the proceedings for his eviction from the premises and proceed to recover the penal rent/damages rate of rent straight away. According to the learned counsel the respondents could have taken the appropriate action only under the provisions of the Public Premises(Eviction of Unauthorised Occupants),Act 1971( in short “the Act of 1971” hereinafter). The learned counsel urged that the order passed by the Divisional Security Commissioner, Bikaner is without jurisdiction. It is contended that the order impugned levying damages has been passed without passing any order for eviction and without giving an opportunity of hearing to the petitioner, therefore, the same is bad in law. The learned counsel submitted that the petitioner is entitled for HRA notwithstanding the fact that he has retained the residential accommodation at normal rent or penal rent, therefore, the respondents have acted in arbitrary manner in declining to release the HRA to the petitioner. Without prejudice to the arguments advanced as aforesaid, the learned counsel submitted that in the month of April,99, the petitioner has been re- transferred to the Delhi Division, therefore, he cannot be made 4 liable to pay the penal rent at least after his joining the duties at Delhi after his transfer from Ambala Cantt. 5. Per contra, the learned counsel appearing on behalf of the respondents submitted that after the petitioner's transfer from Delhi to Ambala Cantt., he was under an obligation to vacate the premises allotted to him , however, even after repeated instructions/requests and despite the order of superior authorities, the petitioner intentionally did not vacate the Railway quarter .It is contended by the learned counsel that the petitioner was only a licensee and the license stood terminated in June, 93 when he was transferred to Ambala, thus, the retention of the quarter by the petitioner after June, 93 and even after his re-transfer to Delhi in 1999, has to be treated unauthorised occupation inasmuch as, despite his posting back at Delhi, the said quarter could not have been regularised in his name as per the Rules. The learned counsel submitted that the members of RPF are governed by Railway Protection Force Rules, 1987( in short “RPF Rules” hereinafter) and as per Rule 120.2 and 120.3 , a member of service in unauthorised occupation of premises can be removed and possession thereof can be taken, by the competent authority. The learned counsel submitted that for eviction of the member of the force, the respondents are not required to resort to the proceedings under the Act of 1971. The learned counsel submitted that as per para 1711 of the Indian 5 Railway Establishment Manual Vol. II read with Master Order dated 19.1.93, the railway administration is empowered to charge/recover the penal rent/damage rate of rent in respect of Railway quarters occupied unauthorisedly . The learned counsel urged that the recovery of the penal rent from the petitioner for the period of unauthorised occupation is well within the powers of the authority concerned and order impugned passed directing recovery of penal rent/damages rate of rent does not suffer from any infirmity or illegality. 6. I have considered the rival submissions and perused the record. 7. It is not in dispute that the petitioner continued to occupy the Railway quarter despite his transfer from Delhi to Ambala Cantt. . Despite request being made for vacating the premises , the petitioner did not obey the orders of the superior authority on one or another pretext. The petitioner retained the said quarter firstly on the ground that his family was residing at Delhi and Ambala being a place nearby Delhi, he was authorised to continue the occupation of the said premises at Delhi. The another ground taken by the petitioner is that he was not allotted any accommodation at Ambala Cantt., therefore, the occupation of the quarter by the petitioner even after transfer , cannot be said to be unauthorised. 8. It is to be noticed that as per Rule 120.2 , it is the 6 condition of service that a member of the force shall vacate the accommodation allotted to him if, he ceases to be a member of force or on his transfer from the place or whenever an officer not below the Security Commissioner for reasons to be recorded in writing, finds it necessary and expedient for him to do so. Even otherwise, the government accommodations are allotted to the employees according to the availability on their posting at a particular place and the occupants thereof are under an obligation to vacate the premises on their transfer, so that same may be allotted to other member of service posted at the place , aspirant and eligible for allotment. The petitioner's insistence that even if he was in unauthorised occupation, the respondents could not have charged the penal rent before his eviction from the premises in accordance with the procedure laid down under the Act of 1971, smacks indiscipline on the part of member of the force which cannot be countenanced by this Court. An enrolled member of the force who is in unauthorised occupation of the premises may be evicted by the superior officer in accordance with the procedure laid down under Rule 120.3 of the RPF Rules and it is absolutely not necessary for the Railway administration to resort to the proceedings under the Act of 1971. That apart, the liability of penal rent on account of unauthorised occupation is not dependent on the proceedings for eviction from the premises occupied unauthorisedly. 7 9. As per clause 8.1 of Master Circular dated 19.1.93, issued by the Ministry of Railways, Government of India, a railway employee on transfer from one station to another station which necessitates the change of residence may be permitted to retain the railway accommodation at the former station posting for a period of two months on payment of normal rent or single flat rate of license fee/rent, however, on request by the employees, on educational or sickness account, the period of retention of railway accommodation may be extended for a period of six month on payment of special license fee i.e. double the flat rate of license fee/rent and any further extension before the aforesaid period may be granted on educational ground only to cover the current academic session on payment of special license fee. It is not the case of the petitioner that he applied for retention of the railway accommodation beyond the period of two months on any of the grounds specified in clause 8.1. Therefore, after his transfer from Delhi to Ambala Cantt., the petitioner was not entitled to retain the quarter beyond the period of two months. 10. It is to be noticed that as per clause 8.22 of the aforesaid master circular dated 19.1.93, on expiry of permissible/permitted period, the allotment of quarter in the name of employee at the old station will be deemed to have been terminated automatically and retention of quarter by the 8 employee after expiry of the permissible period will be treated as unauthorised. As per the said clause, during the period of unauthorised occupation, the employee should be required to pay damages rate of rent in respect of the railway quarter. 11. In this view of the matter, allotment of the quarter in the name of the petitioner stands automatically terminated after a lapse of period of two months from the date of transfer of the petitioner from Delhi to Ambala Cantt. and retention of the quarter by the petitioner thereafter beyond the permissible limit of two months, shall be treated to be unauthorised occupation and he is liable to pay the penal rent/damages rate of rent specified. 12. There is nothing on record to show that the petitioner had ever applied for allotment of residential accommodation at his new place of posting i.e. at Ambala Cantt. Moreover, the petitioner had no authority to retain the railway quarter at Delhi after his transfer to Ambala Cantt. even if he was not allotted any accommodation at Ambala Cantt. The Railway quarters are allotted to the member of service, according to preference and availability of accommodation at the particular place. Allotment of quarter, cannot be claimed by any member of service as a matter of right. 13. It is to be noticed that even after repeated reminders/instructions, the petitioner persisting his obduracy , 9 did not vacate the railway accommodation and insisted that if he is unauthorised occupant, then, the Railway administration should first evict him from the premises by taking proceedings under the Act of 1971 and only thereafter, any proceedings for recovery of penal rent can be initiated. The tendency of the government employees occupying the government accommodation even after their transfer from a particular place and thus creating scarcity of accommodation and inconvenience for other personnel deserves to be deprecated. 14. The petitioner who has occupied the railway accommodation even after his transfer for such a long period is not entitled for any indulgence by this Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India. In my considered opinion, the petitioner having occupied the accommodation unauthorisedly cannot escape from the liability of penal rent/damages rate of rent fixed by the respondents for such unauthorised occupation. 15. In view of the discussion above, it is held that for removal of the member of the RPF from Railway quarter, the Railway administration is entitled to take proceedings straight away under Rule 120.2 and 120.3 of the RPF Rules and not required to resort to the proceedings under the Act of 1971. After the 10 transfer to other place, the member of the force cannot retain the quarter beyond the permissible period and after expiry of the permissible period in terms of Master order dated 19.1.93, the allotment shall stand terminated automatically and no specific order for cancellation of his allotment is required to be passed. The member of the force in unauthorised occupation of the Railway quarter is liable to pay penal rent /damages rent of rent for the period he has remained in unauthorised occupation of the premises. 16. Regarding the claim of the petitioner for HRA, the respondents have taken the stand that as he was occupying the Railway quarter at Delhi, therefore, he is not entitled for payment of HRA, however, the position under the relevant Rules regarding the payment of HRA has not been clarified by the learned counsel appearing on behalf of the parties. Therefore, the question regrading the petitioner's entitlement for HRA is not being decided by this Court. If the petitioner is entitled under the Rules for payment of HRA on account of his posting at Ambala Cantt. notwithstanding the fact that he was occupying the Railway quarter at Delhi then, he will be free to make appropriate representation to the Railway administration for adjustment of the claim. 11 17. In the result, the writ petition is dismissed. However, if any representation is made by the petitioner regarding his claim for HRA then, the same shall be considered and decided by the respondents in accordance with the Rules. No order as to costs. (SANGEET LODHA),J. Aditya/