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2019 DIGILAW 2202 (RAJ)

Mohammed Salim v. Union of India

2019-08-19

MOHAMMAD RAFIQ, NARENDRA SINGH DHADDHA

body2019
JUDGMENT : 1. This writ petition has been filed against the judgement of the Central Administrative Tribunal, Jaipur Bench, Jaipur dated 11.1.2019 by which the Original Application filed by the petitioner against the order of the respondent-Railways dated 22.11.2018 has been dismissed. Petitioner earlier approached the Central Administrative Tribunal raising a grievance that despite his having surrendered the railway quarter upon his transfer from Ajmer to Jaipur Division and consequential posting at Phulera, the respondents have withheld the amount of house rent allowance to him and are continuously charging panel rent from him. The Tribunal by order dated 3.10.2018 disposed of the Original Application directing the respondent to treat the legal notice dated 11.8.2018 served by the petitioner as a representation and decide the same by passing a reasoned and speaking order within a period of two months. This representation/legal notice has been decided by the D.R.M. (Personnel), Ajmer by speaking order dated 22.11.2018. It was this order, which the petitioner challenged before the Tribunal in the new O.A., which was decided by impugned order dated 11.1.2019. 2. Shri Kailash Chandra Sharma, learned counsel for the petitioner has submitted that owing to the differences between petitioner and his wife, litigation ensued between them in number of Courts, including the one before the Family Court under the Protection of Women from Domestic Violence Act, 2005 filed by the respondent-wife against the petitioner. Learned counsel for the petitioner has produced copy of the pay slip of the month of October, 2018 showing deduction of sum of Rs. 20,000 from his salary to be paid to his wife as maintenance pursuant to the order of Family court under that Act. 3. It is argued that when the petitioner was earlier posted in Ajmer Division, he was allotted Railway Quarter No. 1357/B at Ajmer. He was later on transferred to Jaipur Division and was relieved from Ajmer to join at Jaipur on 29.7.2016. Soon after joining at Jaipur, he submitted an application to the respondent no. 3-D.R.M., North Western Railway on 1.6.2017 that since there were serious disputes between him and his wife, he due to apprehension of danger to his life could not personally go to Ajmer to vacate the allotted quarter. Therefore the respondent should treat the quarter to have been surrendered by him with all the articles lying therein. 3-D.R.M., North Western Railway on 1.6.2017 that since there were serious disputes between him and his wife, he due to apprehension of danger to his life could not personally go to Ajmer to vacate the allotted quarter. Therefore the respondent should treat the quarter to have been surrendered by him with all the articles lying therein. He further submitted similar applications on 18.6.2017 and 22.6.2017, copies whereof were placed on record. It is submitted that the respondent by order dated 7.6.2017 posted the petitioner at Phulera and since then he is working at Phulera. Grievance of the petitioner is that despite having surrendered the railway quarter, the respondents have not been making payment of house rent allowance to him. They have not treated him eligible for allotment of quarter at Phulera. He therefore submitted further representation on 1.5.2018 and 7.6.2018, even then the payment of HRA was not made to him. The HRA for the month of September, 2018 to the tune of Rs. 4,416 was granted to the petitioner, but did not grant the HRA since October, 2018. Petitioner served a legal notice and thereafter that legal notice was treated as representation, which was rejected by the respondents. 4. Shri Kailash Chandra Sharma, learned counsel for the petitioner has submitted that since the petitioner was under threat for his life from his in-laws, he did not even claim the household items viz. T.V., Fridge, Cooler, etc. amounting to Rs. 50,000. It is contended that the respondent-railways in the order rejecting the representation of the petitioner have illegally required the petitioner to obtain the certificates from SSE Electrical, GLO/Station Ajmer regarding removal of meter/fans and disconnection of water connection and then deposit the proof thereof with the railways. The said condition imposed by the respondent to obtain the NOC and then only to treat the quarter as surrendered, is onerous condition for the petitioner, which is impossible for him to comply. 5. Shri Shailesh Prakash Sharma, learned counsel for respondent has submitted that the respondent-Railways have got nothing to do with the dispute inter se between the petitioner and his wife. He however submitted that the petitioner while working under the Crew Controller, Phulera sent a letter dated 18.6.2017 to the office of DRM, Ajmer to surrender the railways quarter, but the quarter cannot be taken to have been surrendered by such letter. He however submitted that the petitioner while working under the Crew Controller, Phulera sent a letter dated 18.6.2017 to the office of DRM, Ajmer to surrender the railways quarter, but the quarter cannot be taken to have been surrendered by such letter. There is a certain procedure for vacating/surrendering the allotted quarter in which the certificate of SSE Electrical, GLO/Station for renewal of meter/fans has to be taken and submitted. SSE Works/Water Works, Ajmer has to give a certificate on the request made by the petitioner for disconnection of water. It is only upon production of these two certificates that the application for vacating the railway quarter has to be deposited in the office of SSE, Works, North Ajmer. Thereafter, the SSE Works North, Ajmer through Artisan Khallasi would got it verified that the railway quarter has been vacated and possession would be taken by railways. It is therefore submitted that mere repeated applications sent by the petitioner to the respondent cannot be taken as the proof of surrender of the quarter by the person occupant of the quarter. It is submitted that the railway quarter no. 1357B has not been handed over/surrendered by the petitioner which is Type-II, Railway Quarter at Raja Cycle Choraha and is in possession of the petitioner on 28.7.2016. 6. Shri Shailesh Prakash Sharma, learned counsel submitted that after transfer, a railway servant for the maximum can retain the quarter for two months and therefore after 28.7.2016, the possession of the petitioner in the concerned railway quarter is deemed to be unauthorised. It is therefore that damage rent for the period from 28.7.2016 to 30.4.2019 to the tune of Rs. 2,15,317 has been assessed, which has to be recovered from the petitioner. Learned counsel has invited attention of the court towards the order dated 23.4.2019 written by DRM (Establishment), Ajmer in this behalf contending that apart from aforesaid amount, the petitioner shall be further liable to pay a sum of Rs. 6499.35 as damage rent till unauthorised possession in the quarter continues. He submitted that as the time of unauthorised possession increases, the damage rent would also undergo upward increase. 7. Shri Kapil Gupta, learned counsel appeared for the respondent-applicant-Mst. 6499.35 as damage rent till unauthorised possession in the quarter continues. He submitted that as the time of unauthorised possession increases, the damage rent would also undergo upward increase. 7. Shri Kapil Gupta, learned counsel appeared for the respondent-applicant-Mst. Sahin Sultana, wife of the petitioner, contended that as per the provisions of Section 26 read with Section 19 of the Protection of Women from Domestic Violence Act, 2005, the applicant-wife is entitled to retain quarter allotted to her husband, which was their last shared household. Since the quarter in question was allotted to the petitioner in his capacity as railway servant, even if petitioner has been transferred from Ajmer to Jaipur Division and posted at Phulera, she, being her wife, would be entitled to continue to retain the railway quarter at Ajmer. If at all, the applicant-wife is required to vacate the quarter, petitioner has to make alternative arrangement or pay some amount for her residential purpose. 8. This court while considering the validity of the order of the Tribunal, is not required to examine the dispute between the petitioner and his wife. The Tribunal in the impugned order observed that petitioner has failed to get the 'No Objection Certificate' from the electricity department, water services department and also from the office of S.S.E. Works, North, Ajmer. Since the applicant's belongings are lying in the official accommodation and he has failed to deliver the vacant possession to the respondents in accordance with law, the Tribunal did not find any infirmity in the order dated 22.11.2018 passed by the respondents. We are faced with a peculiar situation where on the one hand, the petitioner contends that not only he has been transferred from Ajmer to Jaipur Division, but he has been posted at Phulera. Owing to the fact of his dispute with his wife, he has sent written application to the respondents surrendering the railway quarter with all his belongings lying therein. On the other hand, petitioner has not been paid HRA and would not be entitled to any alternate accommodation at Phulera. Third angle to the dispute has been introduced by the petitioner's wife, who contends that she by virtue of the provisions of the Protection of Women from Domestic Violence Act, 2005 would be entitled to retain the shared household accommodation. Third angle to the dispute has been introduced by the petitioner's wife, who contends that she by virtue of the provisions of the Protection of Women from Domestic Violence Act, 2005 would be entitled to retain the shared household accommodation. The maximum time upto which the quarter can be retained on normal rent is for two months, thereafter, damage rent would be charged. The total amount from 28.7.2016 to 30.4.2019 to the tune of Rs. 2,15,317 has been assessed for being recovered from the petitioner for unauthorised accommodation would also go higher. It is also a fact that while a sum of Rs. 20,000 has been deduced from the salary of the petitioner to be paid to the applicant-wife as maintenance, another sum of Rs. 8832 is being deducted towards arrears of damage rent. Even though the wife may be entitled to relief against the husband within the parameters of law, but on account of dispute between the petitioner-husband with his wife, she cannot retain the railway quarter for indefinite period even when the railways have treated such possession as unauthorised and started charging the damage rent and on that basis withheld the HRA payable to the petitioner and not treated him eligible for allotment of any quarter at the place of present posting at Phulera. Taking note of all these facts, we are inclined to partly allow this writ petition with the following directions: (1) that the respondent-railways shall be entitled to get the railway quarter in question vacated by recourse to law as may be available to them on expiry of two months from today i.e. upto 20.10.2019. The petitioner shall be entitled to payment of HRA after 20.10.2019; (2) that the applicant-wife shall be free to avail her legal remedy before the Family Court concerned or any other Court of competent jurisdiction as regards the necessary directions for 'residence orders' under Section 19 the Protection of Women from Domestic Violence Act, 2005; (3) that this order would not entitle the petitioner from waiver of the recovery of the aforesaid amount of damage rent already directed to be recovered from him and further damage rent upto 20.10.2019 as the railway quarter was occupied by his wife by virtue of her relationship with the petitioner. 9. 9. It is made clear that nothing observed in this order shall prejudice the case of either party before the Family Court, Jaipur or any other Court in the dispute pending between the petitioner and his wife. 10. Accordingly, the writ petition is partly allowed. The application nos. 23570/19 & 1/29.6.19 are disposed of.