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Himachal Pradesh High Court · body

2019 DIGILAW 1575 (HP)

Chita Ram v. Chief Managing Director, Satluj Jal Vidyut Nigam, Himfed Building, Shimla

2019-10-23

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, the appellant has challenged the judgment and decree dated 30.03.2017, passed by the Court of learned Civil Judge (Senior Division), Rampur Bushehar, District Shimla in Civil Suit No. SD/0300047/2011, titled as =Chita Ram Vs. The Chief Managing Director and others, whereby a suit for declaration filed by him that letter No. 18425 dated 29.03.2008 as well as letter No. 31164 dated 30.05.2008, issued by defendant No. 3 to defendant No. 4 for deduction of an amount of Rs.2,08,966/- from his salary on account of rent for the period w.e.f. 01.01.1995 to 31.03.2008 as well as subsequent orders issued for recovery of penal rent from him by the defendants were illegal, null and void and also for a consequential relief of injunction by restraining defendants from effecting recovery of the said amount was dismissed, as also the judgment and decree dated 05.01.2018, passed by the learned Appellate Court in Civil Appeal No. 08 of 2017, titled as Chita Ram Vs. The Chief Managing Director and others, vide which, the appeal filed by the appellant against the judgment and decree passed by the learned Trial Court stood decided in the following terms: ?49. As a cumulative effect of my aforementioned discussion, the appeal is partly allowed with no order as to costs and resultantly the judgment and decree passed by learned Trial Court are affirmed only to the extent stated above but not wholly for the reasons assigned by the Trial Court. Decree sheet be prepared accordingly. Record of the learned Trial Court be sent back alongwith a copy of this judgment and the file of this Court after its due completion be consigned to record room.? 2. Brief facts necessary for the adjudication of the present appeal are that a suit for declaration, as already mentioned above, stood filed by the appellant/plaintiff (hereinafter referred to as =the plaintiff') against the respondents. His case before the learned Trial Court was that he was a Police Officer serving with the Government of Himachal Pradesh and thus was entitled for rent free accommodation or house rent allowance in terms of the provisions of Rules 10.76 of Chapter X of the Punjab Police Rules. He stood appointed as Incharge at Police Post, Jhakri in the month of September, 1991. He stood appointed as Incharge at Police Post, Jhakri in the month of September, 1991. In lieu of the same, Type-1 quarter No. 27 at Block No. 5 stood allotted to him at SJVNL township. Same was a rent free accommodation. He was assured by the defendants that no rent for occupation of the said accommodation shall be charged from him. He remained posted as Incharge at Police Post, Jhakri till February, 1995. In the month of August, 1994, he admitted one of his ward at DPS, Jhakri, who completed his Senior Secondary education from the said school. Plaintiff also admitted his second ward in the same school, who also passed his senior secondary examination in the year 2011-2012. Though the plaintiff was entitled for 50% fee concession at par with other employees of SJVNL for admitting his wards in the said School, however, no fee concession was granted to him. He was transferred to Police Station, Kumarsain in February 1995 and thereafter was again transferred as Incharge at Sub-Unit, Jhakri in September 1995 and he served as such till his transfer to Shimla in the month of September, 1997. Thereafter, he again served at Jhakri from July 1998 till February 2003, when on promotion, he was transferred to District Kinnaur. As per him, defendants wrongly claimed rent of the accommodation allotted to him for the period when he remained posted at Police Post/Police Station, Jhakri. Said act of the defendants was illegal and arbitrary. Defendant No. 1 had wrongly and illegally deducted an amount of Rs.1,43,583 from bills submitted by defendant No. 3. This amount was allegedly deducted on account of recovery of penal rent from 01.01.1991 to 31.12.2007 with respect to the accommodation allotted to the plaintiff. It was further his case that if he indeed was in arrears of rent, then the remedy available to the defendants was to file a suit for recovery against him. On these grounds, he filed the suit praying for declaration that the communications issued by defendant No. 3 to defendant to No. 4 for recovery of an amount of Rs.2,08,966/- on account of rent from his salary were illegal and arbitrary, as the Government of Himachal Pradesh has no right to recover the amount from him. 3. The suit was contested by the defendants. 3. The suit was contested by the defendants. Stand of SJVNL was that for the period during which the appellant-plaintiff served as an Incharge at Police Post, Jhakri, i.e., from September 1991 till January 1995, he was not charged any rent, as SJVNL had honoured its commitment with the Government of Himachal Pradesh to provide rent free accommodation to the Police Officer who was so deployed at Jhakhri. However, after transfer of the plaintiff as Incharge of Police Post, Jhakhri in January 1995, he continued to occupy the said premises without any right or permission from SJVNL and it is for this unauthorized occupation of the premises that the employer of the plaintiff was called upon to indemnify SJVNL and it was in lieu of same that communications were issued by the employer for recovery of Rs.2,08,966/-. 4. On the basis of pleadings of the parties, learned Trial Court framed the following issues: ?1. Whether the plaintiff is entitled for declaration that order/letter No. 18425 dated 29.03.2008 as well as letter No. 31164 dated 30.05.2008 issued by Superintendent of Police, Shimla, to Superintendent of Police, Kinnaur at Reckong Peo, to deduct the amount of Rs.2,08,966/- from the salary of plaintiff on account of the rent are illegal, inoperative, null and void, as alleged? OPP 2. Whether the plaintiff is entitled for decree to the effect that orders of penal rent recovery against the plaintiff by the defendants is to be declared illegal and not binding, as alleged? OPP 3. Whether the plaintiff is entitled for rent free accommodation or house rent allowance from the date of posting till retirement, as alleged? OPP 4. Whether plaintiff while serving in P.P. Jhakri and also in P.S. Jhakri is entitled for 50% free concession at par with the employees of SJVNL, as alleged? OPP 5. Whether the suit is not maintainable, as alleged? OPD 6. Whether the suit is not within limitation, alleged alleged? OPD 7. Whether the plaintiff is estopped to file the suit due to his own acts, conducts, omissions and commissions, as alleged? OPD 8. Whether plaintiff has no enforceable cause of action, as alleged? OPD 9. Whether the suit is barred by Order 2, Rule 2 of the CPC, as alleged? OPD 2 to 4 10. Whether the present suit is barred by principle of res judicata, as alleged? OPD 2 to 4 11. OPD 8. Whether plaintiff has no enforceable cause of action, as alleged? OPD 9. Whether the suit is barred by Order 2, Rule 2 of the CPC, as alleged? OPD 2 to 4 10. Whether the present suit is barred by principle of res judicata, as alleged? OPD 2 to 4 11. Whether no notice U/S 80 of C.P.C. has been served by the plaintiff to defendants, as alleged? OPD 2 to 4 12. Whether the preent suit of the plaintiff is not maintainable, as alleged? OPD 2 to 4 13. Whether the plaintiff has no locus standi to file present suit, as alleged? OPD 2 to 4 14. Whether the plaintiff is estopped by his conduct and act, as alleged? OPD 2 to 4 15. Whether no cause of action accrued in favour of plaintiff, as alleged? OPD 2 to 4 16. Whether plaintiff has not approached to this Court with clean hand, as alleged? OPD 2 to 4 17. Relief.? 5. On the basis of evidence adduced by the respective parties in support of their respective claims, the following findings were returned by learned Trial Court on the issues so framed: "Issue No. 1 No. Issue No. 2 No. Issue No. 3 Yes. Issue No. 4 No. Issue No. 5 No. Issue No. 6 Yes. Issue No. 7 No. Issue No. 8 No. Issue No. 9 No. Issue No. 10 No. Issue No. 11 No. Issue No. 12 No. Issue No. 13 No. Issue No. 14 No. Issue No. 15 No. Issue No. 16 No. Relief Suit is dismissed as per operative part of the judgment." 6. The suit of the plaintiff was dismissed by the learned Trial Court. It held that it was not in dispute that plaintiff was not an employee of SJVNL and that he was an employee of the State Government. It held that plaintiff served as Incharge at Police Station, Jhakhri from September 1991 up to January/February 1995. During the said period, he was allotted Type-1 quarter No. 27 at Block No. 5 in the township of SJVNL at Jhakhri and as the accommodation was allotted to him in his official capacity, he was not charged any rent by the SJVNL for the said period. During the said period, he was allotted Type-1 quarter No. 27 at Block No. 5 in the township of SJVNL at Jhakhri and as the accommodation was allotted to him in his official capacity, he was not charged any rent by the SJVNL for the said period. However, despite his transfer from Police Post, Jhakhri in January/February 1995, he continued his possession upon the residential accommodation allotted to him and this fact was admitted by him in his cross-examination. Plaintiff could not produce any cogent and reliable evidence to demonstrate that he was allowed to retain the residential accommodation belonging to SJVNL despite his transfer from Police Post, Jhakhri. Plaintiff could not prove any rule, which permitted him to retain the residential accommodation belonging to SJVNL despite his transfer from Police Post, Jhakri. The rules relied upon by the plaintiff pertaining to the employees of SJVNL did not also allow him to retain said residential accommodation for a long period. Plaintiff had retained the premises in dispute for a long period of 17 years after his transfer. It observed that in his cross-examination, the reason which plaintiff gave as to why he did not vacate the premises was that as double fee was charged for the schooling of his children and the said issue was not yet settled, therefore, he did not vacate the premises. Learned Trial Court held that keeping in view the fact that the residential accommodation was initially allotted to the plaintiff, because he was working at Police Post, Jhakri, said officer cannot be permitted to misuse his position by way of retaining the said accommodation even after he stood transferred from the said place of posting and therefore, there was no illegality or infirmity with the act of defendant No. 1 for effecting recovery rent of the said accommodation from the plaintiff through his controlling authority. On these basis, learned Trial Court dismissed the suit filed by the plaintiff. 7. In appeal, the findings returned by the learned Trial Court were upheld. While upholding the findings returned by the learned Trial Court, learned Appellate Court held that the plea which was taken by the plaintiff for retaining the accommodation, i.e., alleged non-settlement of the fee issue of his children, was not proved by him by placing necessary documents on record or by requisitioning necessary documents from the School. While upholding the findings returned by the learned Trial Court, learned Appellate Court held that the plea which was taken by the plaintiff for retaining the accommodation, i.e., alleged non-settlement of the fee issue of his children, was not proved by him by placing necessary documents on record or by requisitioning necessary documents from the School. Learned Court further held that as admittedly the plaintiff stood transferred from Police Post, Jhakri to Kumarsain in December 1994, therefore, he was not entitled to retain the accommodation thereafter which stood earlier occupied by him in his official capacity as Incharge of Police Post, Jhakri. On these basis, learned Appellate Court dismissed the appeal filed by the appellant. 8. Feeling aggrieved, the plaintiff has assailed the judgments and decrees passed by the learned Courts below before this Court. 9. I have heard learned counsel for the parties and have also gone through the judgments and decrees passed by the learned Courts below. 10. There are concurrent findings of fact returned against the plaintiff by both the learned Courts below that after the transfer of the plaintiff as Incharge of Police Post, Jhakri in the month of December 1994/January, 1995, he was having no right to retain the accommodation in dispute. During the course of arguments, learned counsel for the appellant could not demonstrate from the record that the findings so returned by the learned Courts below were perverse findings. It is not in dispute that initially after posting of the plaintiff as Incharge of Police Post, Jhakri from the year 1991 up to December 1994/January 1995, no rent was charged from him for occupation of the premises in dispute. It is only after he stood transferred from the post in issue, yet he did not vacate the premises in dispute, recovery stood effected from him for occupying the premises in issue unauthorizedly. During the course of arguments, learned counsel for the appellant could not refer to any evidence on record from which it could be deciphered that the appellant had any legal right to retain the premises in question and occupy the same, even after he stood transferred from Jhakri in January 1995. This clearly demonstrates that the findings returned by the learned Courts below that after his transfer from Jhakri in January 1995, the occupation of the premises in dispute by the plaintiff was unauthorized are correct findings. This clearly demonstrates that the findings returned by the learned Courts below that after his transfer from Jhakri in January 1995, the occupation of the premises in dispute by the plaintiff was unauthorized are correct findings. As I have already mentioned above, as these are pure and simple findings of fact which have been returned by the learned Courts below on the basis of evidence on record, this appeal indeed does not involves any substantial question of law. There is no mis-reading or mis-appreciation of the evidence on record by the learned Courts below. In fact, no evidence was led by the appellant to demonstrate that after January 1995, he had any right to retain the occupation in issue without payment of rent. 11. Learned counsel for the appellant has also argued that assuming that the appellant was entitled to pay rent for occupation of the premises in dispute, even then the mode adopted by the defendants was per se illegal as course open for the defendants was to file a suit for recovery and not to deduct the amount from the consolidated funds of the salary of the Police Officer. It is not in dispute that SJVNL approached the employer of the appellant for the purpose of recovery of the rent to which it was entitled to, including penal rent on account of the appellant having occupied the premises of SJVNL unauthorizedly. It is on account of the request so received from SJVNL that the employer of the appellant took appropriate steps for making deductions from the salary etc. to ensure that the rent which the appellant was bound to pay to SJVNL along with penal rent for occupying its premises unauthorizedly was paid to the owner of the SJVNL. In my considered view, there is no illegality in the methodology adopted by the defendants for recovery of the amount. It was not for the appellant to advise the defendants as to how they were to effect the recoveries. As appellant had occupied the premises of defendant No. 1 without payment of any rent, said defendant was within its rights to call upon the employer of the appellant to make good the payments from the emoluments due to the appellant. It was not for the appellant to advise the defendants as to how they were to effect the recoveries. As appellant had occupied the premises of defendant No. 1 without payment of any rent, said defendant was within its rights to call upon the employer of the appellant to make good the payments from the emoluments due to the appellant. Further, the act of the employer in doing so also cannot be faulted with, because the premises in issue at the first instance stood allotted by defendant No. 1 to the appellant on account of appellant's being transferred to Jhakri at the instance of the employer. 12. In view of the findings returned hereinabove, as this Court finds no merit in the present appeal and further as no substantial question of law is involved in the appeal, the same is dismissed, so also pending miscellaneous applications, if any.