1 S/6 S.B. CIVIL WRIT PETITION No.7584/2007 [VIJAY PRAKESH DHEER VS. B.S.N.L. & ORS.] Dated : 10.03.2008 HON'BLE MR. MUNISHWAR NATH BHANDARI, J. Mr.H.K.Dutt for the petitioner. Mr.M.K.Godara for Mr.V.K.Mathur for the respondent. ***** The petitioner is aggrieved by the order dated 11.10.2006 (Annex.5) by which the recovery of the rent of the accommodation occupied by the petitioner is being demanded. Learned counsel for the petitioner submits that petitioner was transferred from Bikaner to Kolayat vide order dated 14.05.2001 and pursuant to aforesaid order, he joined his duties at Kolayat on 06.06.2001. After transfer, the petitioner did not vacate the accommodation at Bikaner while he was posted at Kolayat as his children were pursuing their studies. The petitioner infact made an application vide Annex.3 to allow him to retain the accommodation as he is not in a position to vacate the same. The petitioner was thereafter transferred back to Bikaner vide order dated 23.09.2003. The respondents have issued demand notice for recovery of the rent of the accommodation detained by the petitioner at Bikaner subsequent to his transfer. The said order dated 11.10.2006 is being challenged by the petitioner. 2 Learned counsel for the petitioner submits that no rent can be demanded by the respondents without initiating proceedings under the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred as “the Act of 1971”). According to the learned counsel for the petitioner, a notice is required to be issued by the Estate Officer to the unauthorised occupant for determination of rent and it is only when rent is determined by the Estate Officer notice for recovery can be issued. The further contention of the counsel is that even if on account of retention of accommodation at Bikaner, rent on the enhance rate was payable by the petitioner then he was entitled for the benefit of H.R.A. while remain posted at Kolayat but even the said amount has not been paid. On these two contentions learned counsel for the petitioner submits that the action of the respondents is totally illegal and to support his contention judgments of the Hon'ble Apex Court were also referred. Learned counsel for the respondents on the other hand submits that petitioner has transferred from Bikaner to Kolayat thus after expiry of normal period to retain a Government accommodation he was liable to pay enhanced rate of rent for the period for which petitioner retained the Government accommodation and for that purpose no proceeding under the Provisions of Act of 1971 is required to be undertaken. It was further contended that the period of two months for which petitioner can retain the accommodation on normal rental was not even counted for the purpose of 3 effecting recovery. The aforesaid period was counted from 06.06.2001 to 14.03.2004 thus according to the respondents, the impugned order Annex.5 does not suffer from any illegality. I have considered the rival submissions of the parties and also gone through the record. Dealing with the argument of the learned counsel for the petitioner I have gone through the Provisions of the Act of 1971 and more specifically Section 7 which was then referred by the learned counsel for the petitioner during the course of argument. The perusal of Section 7 reveals that the Estate Officer while undertaking the proceedings for eviction of unauthorised occupation of the Government accommodation can give direction for payment of damages however, the award of damages is not award of rent rather the normal rent as well as enhance rent is charges as per Rules/instructions issued by the respondents. Therefore, such determination never remains subject matter of adjudication by the Estate Officer. In view of the above, I am not convinced with the argument of the learned counsel for the petitioner in that respect. So far as the second argument of the learned counsel for the petitioner is concerned, it is quite convincing inasmuch as if the petitioner is made liable to pay enhance rent for retaining the accommodation at Bikaner while posted at Kolayat then definitely the petitioner is entitled for H.R.A. while remain posted at Kolayat, the benefit of aforesaid cannot be denied. Therefore, prayer of the petitioner to that extent deserves to be accpeted. 4 Now coming to the judgments cited by the learned counsel for the petitioner on the issue. The first judgment cited is reported in (1994) 6 SCC 589 K. Kapur Vs. Director of Inspection (Painting & Publication) Income Tax & Anr. The perusal of the judgment shows that same was on the issue pertaining to non-payment of gratuity and interest thereupon. The facts of the case so decided by the Hon'ble Apex Court are quite different from the present case because due to over stay in the accommodation the employee therein was not given benefit of gratuity. The case in hand is not of the said nature because petitioner is continuously working with the respondents. The second judgment is reported AIR 2001 SC 2433 Gorakhpur University & Ors. Vs. Dr.Shitla Prasad Nagendra & Ors. The said case is again regarding grant of pensionary benefits on retirement which otherwise cannot be adjusted or appropriated for satisfaction of the demands due to non vacating official quarter even after retirement. The case in hand is not for denial of pensionary benefit to the petitioner on account of retention of the accommodation thus both the judgments referred to above are having no application in the present matter. In light of the discussion made above, though the petitioner is liable to pay the rent on the enhanced rate for the period for which he retained the accommodation at Bikaner while working at Kolayat but then the rate of enhance rent shown to be Rs.5,700/- in Annex.5 is not sustainable in view 5 of the subsequent affidavit filed by the respondents showing the enhanced rate of rent of the accommodation retained by an employee after normal period to be Rs.3,227/- per month if such accommodation is Old III Type accommodation , the rate aforesaid was submitted by the respondents pursuant to the direction of this Court dated 15.02.2005 because in Annex.5 rate for enhance rent was taken at the rate otherwise payable in New Delhi whereas the petitioner has retained accommodation at Bikaner. Hence the following directions is given to the respondents:- A] Enhance rent for a period of two years 7 months and 9 days would be @ Rs.3,227/- per month ; B] the petitioner would be entitled for H.R.A. for the entire intervening period for which he was entitled for H.R.A. C] The amount of H.R.A. payable to the petitioner would be deducted from the total sum becomes payable pursuant to the sum arrived as per direction No.A; D] Petitioner has paid enhance rent @ Rs.5,700/- for the intervening period when this writ petition remain pending, without stay. Therefore, the total sum already paid by the petitioner towards enhance rate would also be adjusted from the sums calculated as per direction No.A. 6 The petitioner would then be given figure if any amount remains payable after undertaking the exercise as given above and at the same time, if it is found that petitioner has already paid an excess amount. The respondents will refund the excess amount to the petitioner. All necessary exercise as directed above be undertaken within a period of one month. The writ petition of the petitioner is partly allowed in view of the directions above. (MUNISHWAR NATH BHANDARI), J. mamta