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2019 DIGILAW 831 (GUJ)

Somsinh Babarbhai Parmar v. State of Gujarat

2019-10-01

A.S.SUPEHIA

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ORDER : A.S. SUPEHIA, J. 1. The present writ petition has been filed seeking a direction to the respondent authorities to immediately fix the pension of the petitioner ignoring an amount of recovery of rent towards unauthorized occupation of the Government quarter. 2. On 08.09.2008, this court while issuing rule has passed the following order: "1. Rule. 2. Looking to the fact that the petitioner has already retired, it may not be possible for him to pay the huge amount of arrears at a time. Keeping in view the above fact and his age, the order of recovery of entire dues at a time would be harsh on him. The petitioner has, without prejudice to his rights and contentions, requested for reasonable installments. Hence, looking to the overall facts and circumstances of the case the following order is passed: [i] The respondent will calculate the entire retirement benefits within a period of four months from today. [ii] Out of the total amount the respondent will retain 50% amount against the dues of the petitioner and remaining 50% will be paid to the petitioner by account payee cheque on or before 9th January 2009. [iii] The balance amount (i.e. Total dues minus 50% of retirement dues) which is required to be paid by the petitioner will be recovered from his pension amount by deducting 25% of the pension amount every month. [iv] On securing the entire dues the petitioner will be paid full pension every month. [v] The aforesaid order is passed without prejudice to the rights and contentions of both the parties. [vi] If ultimately the petitioner succeeds in the petition, it will be open to the petitioner to recover the amount as directed by this Court and in case the petition fails, it will be open to the respondent to claim interest on the amount in question. 3. Pleadings will be completed within a period of six months. It will be open to either side to move for early hearing after the pleadings are completed." 3. This court had permitted to recover the aforesaid amount from the pension of the petitioner without prejudice to the rights and contentions of both the parties. 4. The brief facts of the case are as under: 4.1. The petitioner was serving as a Maintenance Surveyor and retired on 30.04.2005. This court had permitted to recover the aforesaid amount from the pension of the petitioner without prejudice to the rights and contentions of both the parties. 4. The brief facts of the case are as under: 4.1. The petitioner was serving as a Maintenance Surveyor and retired on 30.04.2005. During his service tenure, he was allotted Government quarter No. 7/3 in 36 quarters at Godhra, Dist. Panchamahals. On 25.06.1992, the Deputy Collector passed the order in PWD Case No. 5 of 1992 to vacate the said quarter on or before 31.07.1992 and he was asked to pay rent of Rs. 272/- per month since the petitioner, though is transferred to Vadodara on 01.03.1985 and is serving there as a Surveyor from 01.03.1985, he did not hand over the possession of the said quarter allotted to him and thereafter, he came to be re-transferred to Godhra GIDC as a Surveyor w.e.f. 01.10.1986 and he continued possession of the said quarter. Thereafter, the Executive Engineer (Road & Building Department) sent a proposal to the Deputy Collector, Godhra for taking action against the petitioner to recover the possession of the quarter, pursuant to which PWD Case No. 5 of 1992 was filed and a notice came to be issued to the petitioner under the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (for short "the Act"). The petitioner has replied to the same and by the order dated 25.06.1992, the Deputy Collector directed the petitioner to handover the vacant possession of the said quarter till 31.07.1992 and ordered to recover the rent of the quarter at market rate i.e. Rs. 272/- per month w.e.f. 01.05.1985. 4.2. Being aggrieved by the aforesaid order, the petitioner preferred Regular Civil Appeal No. 30 of 1992 before the Court of District Judge, Panchmahals at Godhra, which came up for consideration before Extra Assistant Judge, Panchmahals at Godhra, wherein the order passed by the Deputy Collector was set aside and the petitioner was granted three (3) months time to hand over the vacant possession of the premises and further directions were also issued. It appears that thereafter, by way a letter written in the month of November, 1993, the petitioner requested the Collector, Panchmahals to allow him to occupy the aforesaid quarter with monthly rent of Rs. 272/- and he said that he will vacate the same as and when he gets private residence. 4.3. It appears that thereafter, by way a letter written in the month of November, 1993, the petitioner requested the Collector, Panchmahals to allow him to occupy the aforesaid quarter with monthly rent of Rs. 272/- and he said that he will vacate the same as and when he gets private residence. 4.3. On 04.01.1994, Executive Engineer (R & B Department), Godhra, Panchmahals allowed the petitioner to continue living in the said quarter till he vacates the same on the monthly rent of Rs. 272/-. By the notice dated 14.11.1994, Deputy Executive Engineer asked the petitioner to vacate the premises, failing which he will have to pay market rent of Rs. 1920/- per month since the petitioner did not vacate the premises. By the order dated 04.07.1995 passed by the Executive Engineer, the rent of Rs. 1920/- was ordered to be recovered from the petitioner and he was asked to deposit the amount of Rs. 42,040/-. Despite the aforesaid order, the petitioner continued to stay there and vide communication dated 18.04.2002, the Executive Engineer again asked the petitioner to vacate the same since he was unauthorized occupant of the said premises. By the communication dated 21.04.2005, the Deputy Executive Engineer asked the petitioner to deposit an amount of Rs. 4,22,400/- towards market rent, failing which it was observed that the disciplinary action shall be taken against him. Since the petitioner did not pay the market rent at the time of retirement while issuing pension papers, he was not issued No Due Certificate and asked to pay the amount of Rs. 4,22,400/-. 4.4. Again by the communication dated 22.06.2007, the Deputy Executive Engineer asked the petitioner to pay outstanding amount of Rs. 3,97,216/-. It appears that the State authority did not finalize the retirement benefits because of the non-payment of the aforesaid amount and hence, the petitioner filed the present writ petition. 5. Learned advocate Mr. Vishal Mehta for the petitioner has submitted that the impugned action of recovering the amount of rent from the pension of the petitioner is illegal since vide order dated 30.08.1993 passed by the Extra Assistant Judge, Panchmahals at Godhra in Regular Civil Appeal No. 30 of 1992, the petitioner was allowed to continue to live in the said quarter by making payment of market rent of Rs. 272/- per month till he vacates the same. 272/- per month till he vacates the same. He has submitted that in fact by the order dated 04.01.1994, the Executive Engineer had permitted him to occupy the quarter till he vacates the same by paying rent of Rs. 272/- per month and accordingly the petitioner occupied it till he retired from service. The impugned orders are in violation of the order passed by the Extra Assistant Judge, Panchmahals at Godhra and hence, the same are required to be set aside. 6. Per contra, learned Assistant Government Pleader Mr. Swapneshwar Goutam has submitted that the impugned orders does not require interference since despite there being directions issued by the Extra Assistant Judge, Panchmahals at Godhra, the petitioner continued to occupy the premises till his retirement and remained unauthorized occupant. He has submitted that there were various notices given to the petitioner to vacate the premises however, he did not do so hence, the aforesaid amount towards the market rent was ordered to be recovered. 6.1. He has further submitted that the petitioner has misconstrued the directions issued by the Extra Assistant Judge, Panchmahals at Godhra and though, vide communication dated NIL.11.1993, the petitioner had assured the Collector, Panchamahals that as and when he will be in possession of the private property, he will vacate the same but he did not do so and the respondent authorities were forced to pass order vacating the premises and recovery of the market rent. Thus, he has submitted that the present petition may not be entertained. 7. Heard the learned advocates for the respective parties. 8. The genesis of the dispute raised in the present petition lies in the order dated 30.08.1993 passed by the 2nd Extra Assistant Judge, Panchmahals at Godhra in Regular Civil Appeal No. 30 of 1992. 9. The petitioner had filed his appeal under Section 9 of the Act challenging the order dated 25.06.1992 passed by the Deputy Collector asking him to vacate the quarter. The petitioner while serving in GIDC, Godhra was allotted a quarter No. 7/3 by the Executive Engineer. Thereafter, the petitioner was transferred to Vadodara on 01.03.1958 and he served there as a Surveyor from 01.03.1985 to 21.10.1985 however, he did not hand over possession of the quarter allotted to him at Godhra, Panchmahals. The petitioner while serving in GIDC, Godhra was allotted a quarter No. 7/3 by the Executive Engineer. Thereafter, the petitioner was transferred to Vadodara on 01.03.1958 and he served there as a Surveyor from 01.03.1985 to 21.10.1985 however, he did not hand over possession of the quarter allotted to him at Godhra, Panchmahals. Thereafter, he came to be re-transferred to Godhra GIDC as a Surveyor on 01.10.1986 and he continued with possession of the said premises. It appears that thereafter, necessary proceedings were carried out by the respondent authorities asking him to vacate the quarter, which ultimately culminated in the order dated 25.06.1992 asking him to vacate the quarter. 10. The said order was challenged by the petitioner before the 2nd Extra Assistant Judge, Panchmahals at Godhra and by the order dated 30.08.1993, the Court while allowing his Regular civil Appeal No. 30 of 1992 passed the following order: "ORDER 1. The appeal of the appellant - Govt. servant is hereby partly allowed. 2. The appeal as regards the decision of the Dy. Collector - Godhra holding the appellant-Govt. servant to be in illegal occupation and ordering him to vacate the premises is hereby confirmed and the order passed by this Court below exh. 4 staying implementation of the order is hereby vacated and the appellant-Govt. servant is given three months time to hand over the vacant possession of the premises. 3. This order would not affect right of the appellant - Govt. servant to move the proper authorities for allotment of the quarter. 4. The order of the Dy Collector as regards the fixing of the rent at market rate of Rs. 272/- and recovery of the rent at that rate is hereby set aside and the appeal to that extent is allowed. 5. The respondent is at liberty to proceed after complying with provisions of Public Premises Act for determining the rent. 6. No order as to costs. 7. Decree be drawn accordingly." 11. The court specifically had confirmed the order passed by the Deputy Collector, Godhra, Panchmahals and held that the petitioner is in illegal occupation of the premises and ordered him to vacate the same, however, the petitioner was given three (3) months time to hand over the vacant possession of the premises. 7. Decree be drawn accordingly." 11. The court specifically had confirmed the order passed by the Deputy Collector, Godhra, Panchmahals and held that the petitioner is in illegal occupation of the premises and ordered him to vacate the same, however, the petitioner was given three (3) months time to hand over the vacant possession of the premises. It was further observed that the said order will not affect the right of the appellant-petitioner herein to move the proper authorities for allotment of the quarter. As regards the order of the Deputy Collector of fixation of rent at market rate of Rs. 272/-, the same was set aside. Finally, it was observed that the respondent authority is at liberty to proceed after complying with provisions of the Act. Thus, the court had granted three (3) months time to the petitioner to vacate the premises as and when he gets the possession of any private property. In the month of November, 1993, the petitioner wrote a letter asking the Collector, Panchamahals to allow him to occupy the quarter till he finds a private property. The Executive Engineer vide order dated 04.01.1994, allowed the petitioner to occupy the quarter on the rent at market rate of Rs. 272/- per month till he vacates the same. After the aforesaid three (3) months period, which was granted by the 2nd Extra Assistant Judge, Panchmahals at Godhra, the Deputy Executive Engineer asked the petitioner vide communication dated 14.11.1994 to vacate the premises failing which the rent at market rate of Rs. 1920/- shall be recovered from him. Despite the aforesaid communication dated 14.11.1994, the petitioner did not vacate the premises and again by the order dated 04.07.1995, the Deputy Executive Engineer asked him to pay Rs. 1920/- per month as a market rent and also the arrears towards the rent quantified at Rs. 42,240/-. However, the petitioner did not still vacate the quarter and authorities were again constrained to give him notices dated 18.04.2002, 21.04.2005 and 17.05.2005 but the petitioner neither vacated the premises nor paid the amount of rent. Since the petitioner did not pay the rent, his pension papers were not forwarded and "No Due Certificate" was not issued till the petitioner paid the aforesaid amount. Thereafter, he challenged the same action of the respondent authority by filing the captioned writ petition. Since the petitioner did not pay the rent, his pension papers were not forwarded and "No Due Certificate" was not issued till the petitioner paid the aforesaid amount. Thereafter, he challenged the same action of the respondent authority by filing the captioned writ petition. Thus, the petitioner continued in unauthorized occupation even after three (3) months period was granted by the 2nd Extra Assistant Judge, Panchmahals at Godhra and only paid Rs. 272/- per month as a rent of the quarter. The petitioner was supposed to vacate the quarter after three (3) months as observed by the court below. After completion of three (3) months, the respondent authorities asked the petitioner either to vacate the premises or pay rent at market rate, however, the petitioner did not vacate the quarter and hence, no illegality can be found in the action of the respondent authorities in recovering the rent amount at the market rate from the retirement benefits of the petitioner since he continued to occupy the property in defiance of the order dated 30.08.1993. 12. In this view of the matter, the petitioner has misused the liberty granted by the 2nd Extra Assistant Judge, Panchmahals at Godhra by the order dated 30.08.1993 as he neither vacated the premises nor paid the rent amount at the market rate. 13. In light of the aforesaid observations, the present petition fails. Rule is discharged. 14. It is hereby directed that if the pension of the petitioner is not finally fixed, the same shall be finally fixed after the amount in question is recovered by the respondent authorities.