The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OAC) No.1226 of 2017 Kishore Chandra Rout …. Petitioner Mr. S.K. Rath, Advocate State of Orissa & Others -versus- …. Opposite Parties Mr. H.M. Dhal, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 09.04.2024 Order No. 08. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. On the oral prayer made by Mr. Rath, learned counsel for the Petitioner, he is permitted to implead “The Principal Accountant General (A&E), Odisha, Bhubaneswar” as Opposite Party No.4 in Court today subject to payment of cost of Rs.500/- before the Orissa High Court Bar Association Welfare Fund with filing of the receipt in question. 3. Heard Mr. S.K. Rath, learned counsel for the Petitioner and Mr. H.M. Dhal, learned Addl. Government Advocate for the State and Mr. S.K. Patra, learned counsel appearing for Opposite Party No.4, who was
Decision
served with a copy of the writ petition in Court. // 2 // 4. Petitioner has filed the present Writ Petition inter alia with the following prayer:- “ (a) To direct Respondent No.2 and 3 to charge market rent i.e. Rs.204/- x2 = Rs.408/- per month, from June, 2015 till vacation of Qr. No.F/20-2 at Burla; them To direct to pay Gratuity amount of (b) Rs.1,91,200/- with 7% interest per annum or higher as fixed under the payment of Gratuity Act w.e.f. 10/2012 till such payment; To adjust the house rent from Gratuity amount and (c) rest be paid to applicant; on such adjustment and payment, the applicant (d) undertook to vacate the quarter F/20-2 within two months”. 5. It is contended that Petitioner was allotted with a quarter on 24.04.1997 and monthly rent was fixed at Rs.204/-, which is the standard licence fee. 5.1. It is contended that while continuing as such, Petitioner retired from service on attaining the age of superannuation on 30.06.2012 as reflected under Annexure-1. 5.2. It is contended that after such retirement Petitioner though was issued with the notice on 11.04.2017 vide Annexure-1 directing him to vacate the quarter failing which necessary action will be initiated, but no such step was taken. Accordingly, Petitioner remained in- occupation of the Quarter on the face of the notice issued Page 2 of 8 // 3 // under Annexure-1 till he vacated the same on 17.05.2022. 5.3. Learned counsel for the Petitioner contended that since after issuance of the notice under Annexure-1, no proceeding was ever initiated against the Petitioner as provided under law, Petitioner is not liable to penal rent for the period he remained in occupation of the quarter after his retirement till he vacated the same. However, on the ground of such unauthorized occupation of the quarter in question, the entire gratuity amount as due to the Petitioner was kept withheld by Opposite Party No.4 so reflected in Annxure-2. 5.4. It is contended that sine after issuance of notice under Annexure-1, no step was taken, Petitioner remained under the bona fide impression that he is allowed to retain the quarter till he vacated the same on 17.05.2022. 5.5. It is also fairly contended that since from the date of retirement, Petitioner remained in occupation of the quarter till he vacated the same on 17.05.2022, he is ready and willing to pay the market rent i.e. two times of the standard licence so paid by him towards occupation of the quarter. 5.6. It is contended that by adjusting the market rent i.e. two times of the standard licencee fee for the period he remained in authorized occupation of the quarter Page 3 of 8 // 4 // balance retirement gratuity along with interest be released. 6. Mr. H.M. Dhal, learned Addl. Government Advocate for the State on the other hand made his submission basing on the stand taken in the counter affidavit. Placing reliance on the resolution issued by the Government in the Finance Department under Annexure-D to the counter, learned Addl. Government Advocate contended that since the Petitioner did not vacate the quarter in terms of the provisions contained under Para-10(iii)(a) of the Resolution dtd.15.12.2010, he is liable to pay five times of the standard licencee fee as provided under Para- 10(iii)(b) of the Resolution. Para-10(iii)(b) of the Resolution is reproduced hereunder:- “(b) The Licence Fee at the rate of five times of Standard Licence Fee shall be charged for the period of occupation of the quarters beyond the permissible period followed with eviction proceedings as per rules in force”. 6.1. It is accordingly contended that the penal rent calculated in terms of the provisions contained under Para-10(iii)(b) of the Resolution will be much higher than the withheld gratuity amount so indicated in Annexure-3. It is accordingly contended that no illegality has been committed in withholding the gratuity amount as indicated in Anneure-3. 7. Mr. S.K. Patra, learned counsel appearing for Opposite Party No.4 contended that basing on the letter Page 4 of 8 // 5 // issued by Opposite Party No.3, the entire gratuity amount as due to the Petitioner has been adjusted towards arrear rent with issuance of Annexure-2. 8. To the submissions made by learned Addl. Government Advocate, learned counsel for the Petitioner contended that since in terms of the provisions contained under Para-10(iii)(b) of the Resolution, no eviction proceeding was ever initiated as per Rules in force, Petitioner cannot be charged with the licnece fee at the rate of five times of the standard licence fee. In support of the aforesaid submission, learned counsel for the Petitioner relied on the decision of the Hon’ble Apex Court in the case of State of Orissa vs. Sadasiv Mohanty reported in 1997 (3) SCC 211. Hon’ble Apex Court in Para-6 & 8 of the said judgment has held as follows:- in issued furtherance “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 (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 Page 5 of 8 // 6 // 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 in advance the standard rent. Clause (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. 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 Page 6 of 8 // 7 // 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.” 8.1. Placing reliance on the aforesaid decisions and the provisions contained under Para-10(iii)(b) of the Resolution dtd.15.12.2010 under Annexure-D to the counter. It is contended that the Petitioner if will be charged market rent i.e. two times of the standard licence fee, Petitioner will have no further grievance against the Opposite Parties. 9. Having heard learned counsel appearing for Parties and considering the submissions made, it is found that Petitioner while in service he was allotted with a quarter and standard licence fee @ Rs.204/- was realized from his salary till he retired from his service on 30.06.2012. Since after his retirement in terms of the provisions contained under Para-10(iii)(b) of the Resolution and letter dtd.11.04.2017 under Annexure-1, no proceeding was ever initiated to evict the Petitioner, placing reliance on the decision in the case of Sadasiv Mohanty as cited (supra), it is the view of this Court that no penal rent can be imposed against the Petitioner for the period he remained in unauthorized occupation of the quarter. 9.1. However, considering the stand taken by the Petitioner that Petitioner is ready to pay 2 (two) times of Page 7 of 8 // 8 // the standard licence fee, this Court directs Opposite Party No.3 to realize the rent two times of the standard licencee fee for the period beyond four months from the date of retirement till 17.05.2022. After calculating the arrear rent, the same be deducted from the retirement gratuity of the Petitioner. After such adjustment of the arrear rent from the gratuity entitlement of the Petitioner, fresh proposal be submitted by Opposite Party No.3 to Opposite Party No.4 for release of the balance gratuity amount along with interest as due and admissible. The entire exercise be undertaken and completed by Opposite Party Nos.3 and 4 within a period of three (3) months from the date of receipt of this order. 10. Accordingly, the Writ Petition stands disposed of. Subrat (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 15-Apr-2024 17:31:48 Page 8 of 8