The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C ) No.3217 of 2014 Nabin Kishore Danga …. Petitioner Mr. L. Pradhan,Adv. -versus- State of Odisha & Others …. Opposite Parties Mr. Y.S.P. Babu,AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 05.04.2023 Order No 04. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. L. Pradhan, learned counsel appearing for the Petitioner and Mr. Y.S.P. Babu, learned A.G.A. 3. The Present Writ Petition has been filed inter alia with the following prayer. the “ Quash imposition of standard Licence Fee and Penal Lincece Fee upon the applicant vide Annexure-5 and deposit of Rs.3,98,370/- and charging of monthly rent of Rs.5586/- from 2.10.2014 during the pendency of representation vide Annexure- 4. (ii) Accepting the house rent of Rs.294/- till as per L.P.C vide Annexure-2 or 30.10.2014 when notice was issued vide Annexure-3. (iii) Allow the applicant to retain the quarter till 31.03.2015 or till availability of suitable accommodation for vacation of quarter which ever is earlier.” // 2 // 4. It is contended that the Petitioner while continuing as an Asst. Teacher in A.J.O High School, Phulbani vide Office Order dated 28.04.2004, he was allotted with Qr. No.EDM-8 at Teachers Colony, Khajuripada w.e.f the date of allotment. It is contended that while continuing in the School, Petitioner was transferred from A.J.O, High School, Phulbani to Govt. High School, Khajuripada vide order No.308 dated 03.07.2008. The Petitioner was also relieved from his duty by the Headmaster, Opp. Party No.4 w.e.f 03.07.2008. But the Petitioner, because of some personal problem, could not vacate the allotted quarter even though he was transferred and relieved w.e.f 03.07.2008. 4.1. It is contended that the Petitioner even though remained in occupation of the quarter beyond 03.07.2008 but at no point of time, the petitioner was issued with any notice directing him to vacate the quarter. Fort the first time and vide letter dated 12.09.2014 issued by the Opp. Party No.4, the Petitioner was directed to vacate the quarter or else action will be taken as deemed fit and proper. It is contended that on receipt of Annexure-3, the Petitioner though moved an application before Opp. Party No.4 on 26.09.2014 under Annexure-4 with a prayer to allow him to continue with the quarter till 31.03.2015, but without considering the same, while the impugned demand notice was issued vide letter dated 01.10.2014 under Annexure-5, the Petitioner Page 2 of 8 // 3 // challenging such demand of penal rent amounting to Rs.3,98,370/- approached the Tribunal in OA. No.3217(C ) of 2014. 4.2. The Tribunal while issuing notice of the matter vide order dated 16.10.2014 passed an interim order restraining the Opp. Parties from taking any aciton pursuant to the demand notice under Annexure-5. The matter on being transferred from the Tribunal has been registered as W.P.C(OAC) No.3217 of 2014. It is contended that since the Petitioner was issued with the notice to vacate the quarter only vide letter dated 12.09.2014 under Annexure-3, the said date is to be treated as the date of cancellation of allotment. It is accordingly contended that the Petitioner is not entitled to pay penal rent for the period, he remained in occupation after being relieved from the school i.e. from 03.07.2008 till 12.09.2014. In support of his aforesaid submission Mr. L. Pradhan, learned counsel appearing for the Petitioner relied on a decision of the Hon’ble Apex Court in the case of State of Orissa Vs. Sadasiv Mohanty reported in 1997(3) SCC 211. In para 6 and 8 of the said judgment, Hon’ble Apex Court has held as follows : 6. The question, therefore, is: whether the Tribunal's view is correct in law? It is seen that under Rule 104 of the Rules, the Government have reserved its power to regulate the allotment of the houses, subject to the terms the and conditions, as may be regulated under the thereof by instructions Government. Rule 11 deals with allotment of the house to the officers either owned by the Government or leased by the Government, as the case may be. Rule 2(ii) provides, by general or special order, for fixing fee in excess of what is prescribed in clause (b) referred to earlier. Clause furtherance issued in Page 3 of 8 // 4 // (6) provides that where the Government servant does not vacate the residence, after cancellation of the allotment, the Government is empowered to collect penal rent. For that, procedure has been laid down by the proceedings of the Government dated December 12, 1986. Therein Clause (2) adumbrates that a Government servant who cannot vacate the quarters, for genuine reasons of health or other absolutely compelling reasons, may retain the quarter for a further period of one month only, with the prior written permission of the Director of Estates on advance payment of standard rent fixed for the quarter. In other words, the Government servant after retirement/transfer is required to vacate the quarter except for genuine reasons with prior written permission of the Director of Estates. He shall be entitled to retain the quarter only for a period of one month that too on paying (5) envisages that a Government servant after retirement may be allowed to retain the quarter occupied by him for a maximum period of four months as provided in the Rule of the Code on advance payment of normal rent for four months. But his DCRG will be released only after he vacates the Government quarter. Rent at the rate of five times the standard rent will also be charged for the period of occupation of the quarter beyond four months. the standard rent. Clause in advance Xxx xxx xxx 8. In regard to appeal arising out of SLP (C) No.14606/94 filed against the order of the Tribunal in OA No.2078/92 dated 18.11.1993, the admitted position is that the respondent was staying in a Government quarter at Karanjia. It is seen that the above regulation referred to earlier relate to the quarter allotted to the Government servant in Cuttack and Bhubaneswar. Under these circumstances, the levy prescribed by special order for payment of the penal rents in excess of the prescribed limit to the houses occupied or owned by the Government at Cuttack and Bhubneshwar, the Government thereby, has denied itself any power to charge penal rentals to buildings owned or occupied by the Government in other places unless rules or general directions are issued. The Tribunal, therefore, was right in respect of that case only. But in all other cases, the order passed by the competent authority has become final. The Government is devoid of power of levy penal rents for the overstay. Even in respect of the cases where the Government servant overstays beyond the period permitted by the High Court, the Government servants are required to pay penal rent beyond the period permitted by the order passed by the competent authority or by the High Court, as the case may be. the High Court requires to consider each case only on exceptional circumstances for giving directions to permit a Government servant beyond prescribed period. The object is to enable the Government servants on transfer or waiting for allotment to be entitled to be provided with accommodation.” 4.3. It is contended that in view of the decision of the Hon’ble Apex Court as cited (supra), the Petitioner is not liable to pay penal rent prior to the date of cancellation of the allotment. Since in the instant case, Page 4 of 8 // 5 // the allotment was cancelled only with issuance of the notice on 12.09.2014 under Annexure-3, the Petitioner is not liable to pay any penal rent from 03.07.2008 till 12.09.2014. 5. Mr. Y.S.P. Babu, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that the Petitioner while continuing in the School of Opp. Party NO.4, he was allotted with the quarter vide order dated 28.04.2004 under Annexure-1. The Petitioner on being transferred from the said School and having been relieved w.e.f 03.07.2008, the Petitioner should have vacated the quarter as per the provisions contained under the relevant Government Rules. It is contended that in spite of being relieved w.e.f 03.07.2008, the Petitioner since never vacated the quarter in question, the petitioner is liable to pay the penal rent beyond the period of one month i.e. from the date of such relieve. It is accordingly contended that since admittedly, the petitioner has not vacated the question in spite of being relieved w.e.f 03.07.2008, the Petitioner is liable to pay the penal rent and the demand issued under Annexure-5 is a genuine demand. 6. To the aforesaid submission of the learned A.G.A, Mr. L. Pradhan, learned counsel appearing for the Petitioner contended that the petitioner in the meantime has already vacated the quarter on 30.6.2020. It is accordingly contended that in view of Page 5 of 8 // 6 // the decision as cited (supra), the Petitioner at best can be liable to pay penal rent beyond the period 12.09.2014 till he vacated the quarter on 30.06.2020. However, it is contended that since the Petitioner is a low paid employee, in view of the decision of the Hon’ble Apex Court reported in the case of Tolaram Relumal Vs. State of Bombay reported in AIR 1954 SC 496, lenient view is required to be taken with regard to imposition of penal rent. Hon’ble Apex Court in para 8 of the said judgment has held as follows: “The question that needs our determination in such a situation is Whether section 18(1) makes punishable receipt of money at a moment of time when the lease had not come into existence, and when there was a possibility that the contemplated lease might never come into existence. It may be here observed that the provisions of section 18(1) are penal in nature and it is a well settled rule of construction of penal statutes that if two possible and reasonable constructions can be put upon a penal provision, the Court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty. It if; not competent to the Court to stretch the meaning of an expression used by the Legislature in order to carry out the intention of the Legislature. As pointed out by Lord Macmillan in London and North Eastern Railway Co. v. Berriman(1), 1946 AC 278 at p.295(B) " where penalties for infringement are imposed it is not legitimate to stretch the language of a rule, however beneficent its intention, beyond the fair and ordinary meaning of its language." 6.1. Mr. L. Pradhan, learned counsel accordingly contended that in view of the decisions of the Hon’ble Apex Court in the case of State of Orissa Vs. Sadasiv Mohanty, the Petitioner is not liable to pay any penal rent save and except the normal rent for the period 03.07.2008 till 12.09.2014. For the period 13.09.2014 to 30.06.2020, the Petitioner though is liable to pay penal rent, but in view of the decision in the case of Page 6 of 8 // 7 // Tolaram Relumal as cited supra the authority may be directed to take a lenient view with regard to imposition of the penal rent. 7. To the submission made by the learned counsel for the Petitioner that the Petitioner has vacated the quarter on 30.06.2020, learned A.G.A contended that he has no instruction as to whether the Petitioner has in fact vacated the quarter as allotted on 30.06.2020. However, it is contended that if the petitioner has in fact vacated the quarter on 30.06.2020, then the Opp. Parties on verification will calculate the penal rent till 30.06.2020. 8. Having heard learned counsel for the Parties and taking into account the materials available on record, it is found that the Petitioner while continuing in the School of Opp. Party NO.4, he was allotted with the quarter vide order dated 28.04.2004. The Petitioner on being transferred from the school of Opp. Party No.4 though he was relieved on 03.07.2008, but no material has been placed by the Opp. Parties showing issuance of any notice to the Petitioner to vacate the quarter prior to the notice issued under Annexure-3 on 12.09.2014. Therefore, in view of the decision of the Hon’ble Apex Court in the case of State of Orissa Vs. Sadasiv Mohanty, the Petitioner cannot be held liable to pay any penal rent for the period 03.07.2008 till issuance of the notice under Annexure-3 on 12.09.2014. The Petitioner is only liable to pay the normal rent for the period 03.07.2008 to 12.09.2014. Page 7 of 8 // 8 // However, with regard to the occupation of the quarter beyond 12.09.2014 till the petitioner so vacated the quarter, the Petitioner is liable to pay penal rent. However, in view of the decision of the Hon’ble Apex Court in the case of Tolaram Relumal as cited supra, this Court directs Opp. Parties to take a lenient view and take into consideration the fact that the allotted quarter is not situated either in Cuttack and Bhubaneswar. The Opp. Parties more particularly, Opp. Party No.2 is directed to calculate the normal rent for the period 03.07.2008 to 12.09.2014 and for the period beyond 12.09.2014 till the Petitioner so vacate the quarter, penal rent be assessed, but by taking a lenient view of the matter, Opp. Party No.2 is directed to calculate the rent as well as the penal rent as due and admissible and intimate the same to the petitioner within a period of one month from the date of receipt of this order. The Petitioner will be allowed one month time from the date of receipt of the notice to pay the amount, so assessed by the Opp. Party No.2. The Writ Petition is accordingly disposed of with the aforesaid observation and direction. sangita (Biraja Prasanna Satapathy) Judge Page 8 of 8