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2009 DIGILAW 381 (GUJ)

B. M. ASARI v. STATE OF GUJARAT

2009-05-13

JAYANT PATEL

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( 1 ) THE short facts of the case appears to be that, the Petitioner was occupying the Quarter of the government, Block No. 145, Room No. 3451-52 since he was posted at the relevant point of time in Ahmedabad as Police Sub- Inspector. It appears that, thereafter, he was transferred outside Ahmedabad, and therefore, he had to vacate the Quarter. As per the Petitioner, from Ahmedabad, he was transferred to Junagadh and thereafter from Junagadh to Bhavnagar, and in 1989 he was again reposted to Ahmedabad, and, as his father was ill and his children were studying, he had applied for extension. It appears that thereafter on 31. 3. 2009, a notice was issued to the Petitioner stating that he was allotted Quarter on 24. 10. 1985, and since he was transferred to Bhavnagar, he had to vacate the Quarter on 3. 9. 1988. But, inspite of the same, the Quarter was not vacated. Therefore, the Petitioner was called upon to show cause as to why market rent should not be recovered during the period of unauthorised occupation. It appears that the Petitioner has not replied to the same, but had made a representation on 27. 7. 1989, that he has been reposted in Ahmedabad and therefore he may be permitted to occupy the same Quarter. On 25-8. 11. 1993 the order has been passed by the Additional Director General of Police calling upon the Petitioner to pay the market rent at Rs. 1920/-p. m. for the period from 1. 8. 1985 to 2. 7. 1993 as per order " Annexure-K. It is under these circumstances, the present petition before this Court. ( 2 ) HEARD Learned advocate Mr. Chintan Champaneri for Mr. Raval, for the Petitioner and Mr. K. P. Raval, learned AGP for the State authority. ( 3 ) IT appears that in the show cause notice at Annexure-J, it has been stated that the Quarter was allotted from 24. 10. 1985 and the Petitioner had to vacate the Quarter on account of the fact that he was transferred to Bhavnagar w. e. f. 3. 7. 1988 and he had to surrender the Quarter from 3. 9. 1988. Whereas the impugned order at Annexure-K has been passed on the basis that the Petitioner had to surrender the Quarter from 1. 8. 1985 and the market rent is ordered to be recovered from 1. 8. 1985 to 3. 7. 1988 and he had to surrender the Quarter from 3. 9. 1988. Whereas the impugned order at Annexure-K has been passed on the basis that the Petitioner had to surrender the Quarter from 1. 8. 1985 and the market rent is ordered to be recovered from 1. 8. 1985 to 3. 7. 1993. The aforesaid shows that there is ex facie non-application of mind on part of the authority while passing the impugned order. In any case, if the Petitioner had to vacate the Quarter from 3. 9. 1988, the market rent could not be recovered from 1. 8. 1985. Hence, the impugned order to that extent can be said as vulnerable. ( 4 ) IT deserves to be recorded that, if any Government employee is transferred from one place to another place, beyond the prescribed limit, he cannot retain the Quarter and the said Quarter is to be made available to the other employee, who may be posted vice him or other Government servant. The tendency on part of any Government employee to retain the Quarter beyond the prescribed limit, has got to be deprecated. If any Government employee has retained the Quarter beyond the prescribed limit, the Government would be justified in recovering the market rent unless such retention is condoned or is regularized for the valid reason. Therefore, for the period after 3. 9. 1988, in normal circumstances, the Petitioner would be required to pay the market rent to the Government. ( 5 ) HOWEVER, the learned counsel appearing for the Petitioner contended that his father was hospitalized due to kidney stone problem and his children were also studying, and therefore, he could not vacate the Quarter under compelling circumstances. He also submitted that since 25. 6. 1989 he was reposted in Ahmedabad, and therefore, he had made representation to permit him to retain the same Quarter. He also submitted that thereafter, when the Petitioner was transferred to Vadodara, he had not withdrawn any house rent allowances. Therefore, the Government may treat the occupation of the Quarter as valid and no market rent may be recovered. ( 6 ) IT appears to the Court that in view of the earlier observations made, the impugned order (Annexure-K) ex facie is without proper application of mind and therefore it cannot be sustained. Therefore, the Government may treat the occupation of the Quarter as valid and no market rent may be recovered. ( 6 ) IT appears to the Court that in view of the earlier observations made, the impugned order (Annexure-K) ex facie is without proper application of mind and therefore it cannot be sustained. It will be for the competent authority to issue fresh notice expressly providing the time during which the Petitioner remained in unauthorized occupation of the Quarter and for recovery of the market rent for such period, if any. At that stage, the Petitioner may raise contentions as may be available in law for compelling circumstances or for his re-transfer to Ahmedabad or for non-claiming of the house rent allowances for the relevant period, etc. Such may be considered by the competent authority in accordance with the prevailing policy of the State Government in the matter of retention of the Quarter. Therefore, it is not necessary for this Court at this stage to finally conclude on the aspects as sought to be canvassed by the learned counsel appearing for the Petitioner on the ground of compelling circumstances or that he was re-transferred to Ahmedabad or that he did not claim any house rent allowances and such contentions are kept open to be decided by the authority in accordance with law. ( 7 ) IN the result, the impugned order " Annexure-K dated 25-8!11/1993 is quashed and set aside with the direction that a fresh notice shall be issued by the competent authority for recovery of the market rent on the ground of unauthorized occupation of the Quarter in light of the observations made by this Court hereinabove. The Petitioner shall be at liberty to raise contentions as may be available in law. The authority shall decide the same keeping in view the observations made hereinabove and in accordance with law. The Petition is allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs.