Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P.(C) NO. 3596 OF 2004 In the matter of an application under Articles 226 and 227 of the Constitution of India. AFR --------------- Satyananda Nayak ..… Petitioner -Versus- Union of India and Others ….. Opp. Parties For Petitioner : M/s B.K. Nayak-3 and S. Rath, Advocates For Opp. Parties: Mr. P.K. Parhi, Asst. Solicitor General of India P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND HONOURABLE MR. JUSTICE G. SATAPATHY Date of hearing and judgment : 24.08.2022 DR. B.R. SARANGI, J. The petitioner, who was working as a Draughtsman Division-I in No.II Drawing Office, Survey of India, Bhubaneswar and is a physically handicapped person, has filed this writ petition seeking to quash the order dated 09.02.2004 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. // 2 // No. 182 of 2001 under Annexure-9, and to issue direction to the opposite parties not to deduct the house rent and electricity charges etc. from his salary in respect of the quarters in question. He further seeks direction to the opposite parties to refund the house rent and electricity charges deducted from his salary, within a stipulated time. 2. The factual matrix of the case, in a nutshell, is that the petitioner was allotted with a Type-III quarters bearing No.49/T-III at Survey of India Residential Colony, Bhubaneswar, vide letter dated 03.11.1995, where he was staying till 13.12.1998, on which date, by taking leave, the petitioner went to his native village to see his ailing mother and family where he fell ill. Thereafter, on 17.12.1998, opposite parties no.2 to 4 broke open the door lock of the quarters allotted in favour of the petitioner and allowed one Kabita Pradhan, daughter of Laxman Pradhan to stay therein. On 22.12.1998, Kabita Pradhan, the trespasser made a representation to opposite party no.4, the Officer-in-Charge of the // 3 // petitioner, stating her name as Pramila Kabita Nayak, which is name of the wife of the petitioner. She also intimated the authority that she did not know about the whereabouts of her husband. 2.1 The petitioner, after knowing about the trespass made by Kabita Pradhan into his official quarters, gave a representation to opposite party no.3 requesting him to look into the matter and to take appropriate action, since he was the in-charge of the quarters, but no action was taken by the opposite parties no.2 to 4. Thereafter, the petitioner intimated the authority that he will be present in the colony on 01.03.1999 to surrender the quarters. As soon as the petitioner entered into the colony on 01.03.1999, the main gate was closed by the opposite parties and he was carried by the opposite parties to the police station and in a false case concocted by the opposite parties, he was arrested. // 4 // 2.2 On 30.03.1999, the petitioner gave notice to the opposite parties that he has surrendered the quarters in question and no fees in respect thereof be deducted from his salary. The petitioner also intimated the authority that he has surrendered the quarters from 25.03.1999, but opposite party no.3 intimated the petitioner that he has to surrender the quarters in question on any working day. As the opposite parties impersonated that lady named Kabita Pradhan as Pramila Kabita Nayak to be the second wife of the petitioner, the petitioner filed T.S. No. 21 of 1999 against said Kabita Pradhan before the learned Civil Judge (Junior Division), Bhubaneswar to declare her as not the wife of the petitioner, which fact was also brought to the notice of the authority. The petitioner has also intimated the authority on 30.03.1999 about the trespassing of Kabita Pradhan into the quarters. But all efforts of the petitioner went in vain, when on 30.03.1999, opposite party no.2 constituted a Board, which submitted the report by establishing that Kabita Pradhan is the wife of the petitioner and suggested that she may be allowed to // 5 // stay in the said quarters till the petitioner personally settled the issue. 2.3 On 31.07.1999, again the petitioner intimated opposite party no.3 that he has filed T.S. No.21 against Kabita Pradhan, who has impersonated herself as the wife of the petitioner and has forcefully trespassed and occupied the quarters with the help of the office from 17.12.1998 without any authority, and also requested the authority not to deduct the charges towards the quarters and to pay the house rent. Even though the petitioner made several grievances before the authority, but the same was not acceded to, and on the contrary, opposite party no.2 wrote a letter to the Superintendent of Police, Khurda, Bhubaneswar on 08.09.1999 stating that since the petitioner has filed T.S. No. 21 of 1999 in the court of learned Civil Judge (Junior Division), Bhubaneswar challenging the claim of Kabita Pradhan, that she is the second wife of the petitioner, they are unable to take any decision regarding eviction of the said lady from the Qtrs. No.49/T-III at Survey of India Residential Colony, // 6 // Bhubaneswar, and that if the said lady is not pronounced by the court to be the second wife of the petitioner, then necessary action with the police help will be taken for vacation of the said quarters. 2.4 Since no action was taken either by the authority or by the police, the wife of the petitioner filed 1CC No. 443 of 1999 against Kabita Pradhan before the learned SDJM, Bhubaneswar on 13.10.1999. On 14.01.2000, the petitioner again submitted his detailed representation before the authority and police authorities by narrating everything about the fact. In spite of the letter dated 08.09.1999, since Kabita Pradhan was not evicted from the quarters and opposite parties went on deducting the dues in respect of the quarters and did not pay house rent, the petitioner filed O.A. No. 182 of 2001 before the Central Administrative Tribunal, Cuttack Bench, Cuttack, praying for refund of the dues and house rent allowance which are being deducted from his salary on every month in respect of the quarters which is not under his occupation, with an interim prayer not to // 7 // deduct house rent and other dues in respect of the quarters from his salary. But ultimately the said original application was dismissed by the tribunal vide order dated 09.02.2004, challenging which this writ petition has been filed by the petitioner. 3.
Legal Reasoning
Mr. B.K. Nayak-3, learned counsel appearing for the petitioner vehemently contended that the tribunal has come to a finding that the petitioner has neither taken legal action nor surrendered the quarters and approached the tribunal at the belated stage and that the petitioner has not made a party to the person against whom he has made allegations. It is contended that such finding has been arrived at by the tribunal in an erroneous manner without applying its mind to the Survey of India Residential Rules. It is contended that Rules envisaged that within 10 days of receipt of the notice to surrender the quarters, the department shall take action for cancellation of the allotment of the quarters and if no action is taken by the department, on the 11th day, the allotment of quarters deemed to be cancelled. It is // 8 // contended that on 03.03.1999 the petitioner was issued with notice for surrendering the quarters and allotment was cancelled by the opposite parties on 1/6.4.1999 and, therefore, deduction of house rent and electricity charges etc. from the salary of the petitioner is not justified, as neither the petitioner nor his family members were staying in the quarters in question. When the petitioner was on leave, the lady Kabita Pradhan with the knowledge of the opposite parties trespassed into the quarters and occupied the same and for that purpose the petitioner is not liable to pay the house rent and electricity charges. 3.1 It is further contended that T.S. No. 21 of 1999, which was filed by the petitioner against Kabita Pradhan, was dismissed vide order dated 20.10.2006 by the learned Civil Judge (Junior Division), Bhubaneswar and against the said order the petitioner preferred appeal, which was registered as RFA No.6/3 of 2003, and ultimately the same was remanded by the appellate court, vide order dated 20.05.2008, to the trial court. Thereafter, SAO No.10 of 2008 was filed by the petitioner before this Court // 9 // challenging the judgment dated 20.10.2006 passed in T.S. No. 21 of 1999 and remand order dated 20.05.2008 passed in RFA No.6/3 of 2007. This Court, vide order dated 03.12.2010 passed in SAO No. 10 of 2008, held that the defendant Kabita Pradhan (the occupant/trespasser of Qtrs. No.49/T-III) is not the wife of the petitioner. Copy of the order dated 03.12.2010 passed in SAO No. 10 of 2008 was again submitted by the petitioner before opposite party no.2 on 29.07.2011. In the meantime, Misc. Case No. 41 of 2011, which was filed to recall the judgment dated 03.12.2010 passed in SAO No. 10 of 2008 and Misc Case No.27 of 2011, which was filed to drop the decree filed in SAO No.10 of 2008 by Kabita Pradhan were dismissed by this Court. Thereafter, the learned Civil Judge (JD), Bhubaneswar drew the decree by declaring that Kabita Pradhan is not the wife of the petitioner on 26.04.2012. Against the order dated 03.12.2010 passed in SAO No. 10 of 2008, as well as order dated 28.02.2012 passed in Misc. Case No. 41 of 2011 and Misc. Case No.27 of 2011 and RVWPET No. 62 of 2012, Kabita Pradhan filed // 10 // SLP (C) Nos.12864-12866 of 2013 before the apex Court, which was dismissed on 24.02.2014. Thus, it is contended that the trespasser Kabita Pradhan, who has occupied the quarters at the behest of the opposite parties, having been proved as not the wife of the petitioner, he is not liable to pay the house rent as well as electricity charges, as demanded by the authority. It is further contended that this fact has not been placed on record and, as such, the said fact has been brought to the notice of the Court after disposal of the original application by the tribunal. Therefore, in the event opportunity of hearing is given to the petitioner to establish the fact before the tribunal that he is not liable to pay the dues, then it would suffice the purpose. 4. Per contra, Mr. P.K. Parhi, learned Asst. Solicitor General of India appearing for the opposite parties contended that the tribunal has adjudicated the matter on the basis of the materials available on record by the time it had passed the final order and whatever contention now raised, it is after disposal of the original // 11 // application. Therefore, if any subsequent developments had taken place and the same were not brought to the notice of the tribunal, the order so passed by the tribunal cannot be faulted with so as to call for interference by this Court. 5. This Court heard Mr. B.K. Nayak-3, learned counsel for the petitioner and Mr. P.K. Parhi, learned Asst. Solicitor General of India appearing for the opposite parties, and perused the records. Pleadings having been exchanged between the parties, with the consent of learned counsel for the parties this writ petition is being
Decision
disposed of finally at the stage of admission. 6. The undisputed fact, as emerged from the records available before this Court, is that one Kabita Pradhan had occupied the quarters in question which was allotted in favour of the petitioner. The petitioner claims that Kabita Pradhan is not his wife and, as such, he is not liable to pay the house rent and the electricity charges for the said quarters. The facts which are now brought to the // 12 // notice of this Court were not placed before the tribunal while passing the final order. Therefore, this Court is of the considered view that if by virtue of a civil court decree Kabita Pradhan has been declared as not the wife of the petitioner, she should have been declared as a trespasser to the quarters allotted in favour of the petitioner. Therefore, for un-authorized occupation of the quarters by Kabita Pradhan, who is a trespasser, the petitioner is not liable to pay the house rent as well as the electricity charges, which have been forcibly deducted by the authorities from his salary in spite of intimation given by the petitioner to them. In the above premises, without delving into the merits of the case itself, this Court is of the considered view that in the event the matter is remanded back to the tribunal, the tribunal shall take into consideration the subsequent developments, that have taken place in the meantime, in proper perspective on the basis of documents filed by the petitioner and re- adjudicate the same afresh by giving opportunity of hearing to all the parties. // 13 // 7. In the above view of the matter, the order impugned dated 09.02.2004 passed by the tribunal in O.A. No. 182 of 2001 under Annexure-9 is hereby set aside. The matter is remitted back to the Central Administrative Tribunal, Cuttack Bench, Cuttack, for fresh adjudication on the basis of the documents to be filed by the petitioner by way of an additional affidavit, by giving opportunity of hearing to the parties. 8. In the result, the writ petition is allowed. However, there shall be no order as to costs. JUDGE …………….………….. DR. B.R. SARANGI, G. SATAPATHY, J. I agree. JUDGE …………….………….. G. SATAPATHY, Orissa High Court, Cuttack The 24th August, 2022, Ashok/GDS