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Gujarat High Court · body

2019 DIGILAW 1059 (GUJ)

Nitinbhai Chandubhai Ravji v. State of Gujarat

2019-10-24

N.V.ANJARIA

body2019
ORDER : 1. Heard learned advocate Mr. Brijesh Trivedi for the petitioner and learned Assistant Government Pleader Mr. Manan Mehta for the respondents in the main petition as well as in the Civil Applications. 2. By filing the present petition under Article 226 of the Constitution, the petitioner has prayed to set aside communications dated 19th May, 2018, dated 02nd June, 2018 and 21st June, 2018 which are by the Executive Engineer, Bhavnagar Irrigation Department, Bhavnagar. 2.1. Under the impugned communications dated 19th May, 2018 and 02nd June, 2018, the occupation of the quarter by the petitioner was treated as unauthorised, petitioner was asked to pay up the amount of Rs. 1,58,400/- being the arrears of rent of 33 months and to provide further the recovery of Rs. 4,800/- as rent per month for the occupation of the quarter. The different orders are the repeat orders pursuant to the repeated requests by the petitioner. In communication dated 21st June, 2018 the petitioner was called upon to show cause for unauthorised occupation of the quarter and was further called upon to explain why the disciplinary action should not be initiated against the petitioner. 3. The basic facts are that the petitioner who was serving as Work Assistant in the Irrigation Department at Palitana has allotted Quarter No. 2/3 in the Irrigation Colony, Gariyadhar Road, Palitana on 28th August, 2008 which was a rent free quarter. No rent was required from the petitioner in view of Government Resolution dated 21st May, 1998 since the petitioner was in service at that place. On account of the charges of corruption, the petitioner was suspended and came to be transferred to Irrigation Department, Amreli. It is the case of the petitioner that since he exposed the corruption of others, he was made scapegoat. 3.1. It was stated that the suspension was revoked and petitioner came to be posted at Talaja on 24th October, 2017. The petitioner has been serving presently at Talaja and family resides at Palitana, averred the petitioner. The petitioner stated that the impugned communications were unlawful. 3.2. 3.1. It was stated that the suspension was revoked and petitioner came to be posted at Talaja on 24th October, 2017. The petitioner has been serving presently at Talaja and family resides at Palitana, averred the petitioner. The petitioner stated that the impugned communications were unlawful. 3.2. The challenge by the petitioner to the impugned communications whereby the petitioner is asked to clear the arrears of rent and to pay the market rent every month and further to explain why disciplinary action should not be initiated for unauthorised occupation of the quarter, is based upon the main plank that several other employees, who according to the claim of the petitioner, are similarly situated, have been allowed to occupy their quarter. 4. Learned advocate for the petitioner while submitting that he was made to pay price because he had been showing the skeletons in the cupboards of other employees and officers by exposing their corruption, highlighted with vehemence the cases of claim of similarly situated persons from the pleadings of petition thus - (i) Shri P.O. Boda, Work Assistant at Talaja was allotted Quarter No. 5 in Palitana who were allowed to occupy the same till his retirement, (ii) one Shri M.B. Mer, Peon, serving at Hanol Canal Sub-division, Palitana, staying in Quarter No. 6 in another colony who was transferred on 10th September, 2001, nevertheless continued to occupy quarter, (iii) yet another person Shri L.U. Chavda, Peon in the Shetrunji Right Bank Canal was allotted Quarter No. 12 in Kharo Rajawala Irrigation Colony at Palitana on 01st April, 2003 and (iv) Shri J.J. Sarvaiya who was at Bhavnagar and allotted quarter there, did not vacate despite his transfer to Palitana in 2007. He vacated quarter as late as on 30th November, 2014. 4.1. Names of other employee Mr. P.T. Bhatt, S.J. Mandaliya, H.B. Rao would also mention. On the basis of these details, it was submitted that petitioner was treated with discrimination and the impugned communications were sent with an arbitrary approach which, in the submission of the petitioner, was violative of his rights under Articles 14, 16 and 21 of the Constitution. 4.2. The petition was contested by the respondents by filing affidavit-in-reply. It was submitted that the allotment and occupation of quarter by the petitioner was conditional and subject to rules and regulations. 4.2. The petition was contested by the respondents by filing affidavit-in-reply. It was submitted that the allotment and occupation of quarter by the petitioner was conditional and subject to rules and regulations. It was stated that the petitioner who was serving at Palitana, came to be suspended on the ground of committing corrupt practices involving the amount of Rs. 2.00 lakhs. After suspension order dated 21st May, 2015, petitioner was arrested and then released on bail, it was stated. The petitioner reported for duty at Amreli Irrigation Division. Petitioner was taken back in service on 24th October, 2017 at Talaja and had to report at Talaja. It was stated that the petitioner did not vacate the quarter at Palitana, nor gave any application to the authorities seeking permission to continue the occupation of quarter at Palitana. 5. There is no gainsaying that the petitioner who has allotted quarter on 28th August, 2008 since he was posted at Palitana and had been serving there. Subsequently, the petitioner came to be suspended and transferred to another place Talaja, yet the petitioner failed to vacate the quarter at Palitana. He did not care to even request the authorities to allow him to remain in occupation though he was not posted at Palitana. It is indicated that petitioner did not pay even the rent, therefore the rent to the tune of Rs. 1,58,400/- for 33 months piled up as unpaid. Petitioner was required to pay market rent at the rate of Rs. 4,800/- per month for his continued occupation of quarter even after he came to be posted elsewhere. Petitioner was therefore called upon to pay the arrears and the market rent and further was called upon to submit the explanation for unauthorised occupation of the government quarter. 5.1. Undoubtedly, there exist and practiced a policy by the State Government in respect of allotment, occupation and use of the government quarters by the employees concerned. Resolution dated 31st January, 2015 of the Road and Building Department mentions about the prescription of levy of market rent from the government servants who failed to vacate the government quarters to continue unauthorised occupation. The Resolution fixed the market rates to be levied towards rent from such defaulting occupants. Resolution dated 07th July, 2004 also of the Road and Building Department contemplates that the quarter will be required to be vacated within one month. The Resolution fixed the market rates to be levied towards rent from such defaulting occupants. Resolution dated 07th July, 2004 also of the Road and Building Department contemplates that the quarter will be required to be vacated within one month. Also relied on was Finance Department Resolution dated 21st May, 1988. The demand for arrears of the rent and the recovery of market rent every month as contemplated in the impugned communications were based on policy of the State Government, which were asked for from the petitioner as an unauthorised occupant of the quarter. 5.2. Recollecting the facts of the case, petitioner was in service at Palitana when came to be allotted quarter on 28th August, 2008. He was suspended on 21st May, 2015. He was transferred to Amreli and thereafter came to be posted at Talaja after suspension. It could hardly be disputed that once the petitioner was not at Palitana, he was bound to vacate the government quarter allotted to him at Palitana. Not only petitioner continuing with the occupation, but did not pay the rent which was due to be recovered from him in form of arrears as well as by way of a monthly market rent. 5.3. It was a failed attempt on part of the petitioner seeking to compare his case with others by projecting that he was discriminated against. The references of other employees were answered by the respondent in their affidavit-in-reply duly explaining thus: "The petitioner has placed reliance by giving various names of persons from whom the recovery is not sought. In light of the same it is submitted that so far as one person namely L.U. Chavda is concerned the said person has himself written a letter stating that the premises is vacated vide letter dated 09.05.2016........It is respectfully submitted that as far as one person namely J.J. Sarvaiya is concerned, the said person had filed an application to the department on 03.01.2011, requesting the department to continue in the premises which was allotted to Mr. Sarvaiya and the department considered his application and granted him permission vide letter dated 07.05.2011. It is respectfully submitted that as far as Mr. M.B. Mer and Mr. P.O. Boda is concerned they have retired on 31.08.2015 and 30.06.2012 respectively and on page 43/A of the memo of the petition Mr. M.B. Mer has himself stated that he has vacated the premises." 5.4. It is respectfully submitted that as far as Mr. M.B. Mer and Mr. P.O. Boda is concerned they have retired on 31.08.2015 and 30.06.2012 respectively and on page 43/A of the memo of the petition Mr. M.B. Mer has himself stated that he has vacated the premises." 5.4. Not only that, it was stated further that the department recovered the market rent from not only the petitioner but from the other employees also who continued to occupy the quarters rendering themselves liable to pay the market rent. The names of such employees were mentioned to be Shri P.M. Bhatt, A.M. Dave, S.J. Gondaliya, P.T. Bhatt. 5.5. In any view, petitioner has to stand on his own merits for his case. Mere comparison with other employees who might have been treated would not bring any assistance for the petitioner. It is well settled that Article 14 does not have a negative facet. Even if in a given case wrong benefit is extended, it could not be the basis for similar treatment to a person not entitled to in law, by raising plea of Article 14. 6. It was succinct for learned Assistant Government Pleader to rely on the decision of the Division Bench of this Court in V.N. Solanki vs. State of Gujarat, 2008 (3) GLH 110 in which following was observed and laid down: "It is not in dispute that the State Government allocates residential quarters to its servants on rent, on the agreed terms and conditions, at nominal rate. Under the said terms and conditions, the concerned servant is permitted to occupy the residential quarter allotted to him so long as he is in Government service at that place. In other words, when such servant is transferred to another place or his service is terminated on account of superannuation, discharge or on disciplinary grounds, he is supposed to vacate the quarter allotted to him. His continued occupation of the concerned quarter thereafter would be illegal." (Para 11) 6.1. The facts were akin, which could be discerned readily from the following observations: "The appellant was liable to continue to pay nominal rent while he was serving at Ahmedabad and the rent at market rate since he was transferred to Morbi. His continued occupation of the concerned quarter thereafter would be illegal." (Para 11) 6.1. The facts were akin, which could be discerned readily from the following observations: "The appellant was liable to continue to pay nominal rent while he was serving at Ahmedabad and the rent at market rate since he was transferred to Morbi. The impugned order dated 11 March, 1996 made by the State Government for recovery of rent at the market rate from the appellant for the period from 15th March, 1990 to 29th February, 1996 and further till he continued to occupy the said quarter is in consonance with the existing policy of the State Government. The same has rightly been upheld by the learned Single Judge." (Para 11) 7. For the foregoing reasons and discussion, no relief could be booked for the petitioner. The petition and the prayers stand merit-less. The petition is hereby dismissed. Notice is discharged. Interim orders are vacated. ORDER IN CIVIL APPLICATION No. 1 OF 2018 During the pendency of the petition, the present Civil Application was filed seeking a prayer "to grant interim relief by staying recover of amount, including Rs. 4,800/- per month and of Rs. 1,58,400/- or of any amount whatsoever, pending admission, hearing and final disposal of this petition." By order dated 12th November, 2018 the Court observed and directed, extracting the relevant. "3. Perusal of the averments made in the affidavit reveals that the specific averments made in para 3 of the civil application have not been dealt with by the deponent. 4. The applicant-petitioner has made a specific case before this Court that he has been discriminated in effecting recovery. Since no averments controverting the contentions raised by the applicant in para 3 have been made in the affidavit filed by the respondents, this Court is of the opinion that further recovery, shall be stayed till a necessary affidavit dealing with the contentions raised in the civil application or in the writ petition has not been filed." Now, that the main Special Civil Application is disposed of on merits with the findings as above, the present Civil Application is liable to be dismissed and the same is hereby dismissed. Notice is discharged. All subsisting interim orders are vacated. ORDER IN CIVIL APPLICATION NO. Notice is discharged. All subsisting interim orders are vacated. ORDER IN CIVIL APPLICATION NO. 01 OF 2019 This Civil Application was filed with a prayer to impose cost on the respondents, in which notice was issued on 12th June, 2019 and further order was passed on 29th August, 2019 observing that the petitioner may remain on leave. In view of dismissal of the main petition, this application is dismissed as not surviving. The prayer for imposition of cost on the respondents was misconceived and was liable to be rejected. Accordingly, the Civil Application is not entertained. Interim order is vacated. Notice is discharged. ORDER IN CIVIL APPLICATION NO. 02 OF 2019 In this Civil Application filed during the pendency of the petition, what was prayed by the petitioner was to stay the implementation and execution of the order of transfer and the order of relieving the petitioner from Talaja dated 10th June, 2019. The petitioner was transferred to Halvad. By order dated 12th June, 2019 it was observed that the petitioner was permitted to remain on leave. The Civil Application being subsidiary proceeding to the parent petition, cannot survive after disposal of the main petition. The grievance of the petitioner was in respect of transfer which was incidentally came to be filed in the main petition which related to unauthorised occupation of government quarter by the petitioner and recovery of market rent for the same. Evidently, the subject matter and causes of action of main petition and the Civil Application were different. As the main petition is dismissed, the Civil Application would not survive, however liberty is reserved for the petitioner to seek ventilation of his grievance about the subject matter of present Civil Application by filing appropriate independent proceedings in accordance with law. 8. This Civil Application is accordingly disposed of as not surviving. Notice is discharged.