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2023 DIGILAW 1119 (ALL)

Divakar Dwivedi v. State of U. P.

2023-04-24

RAJENDRA KUMAR IV, SUNEET KUMAR

body2023
JUDGMENT : Suneet Kumar, J. 1. Heard Shri Adarsh Singh, learned counsel for the petitioner and Learned Standing Counsel for the State. 2. Petitioner is a judicial officer of the Higher Judicial Services of the rank of Additional District Judge. 3. On 4 June 2018, petitioner was sent as Legal Advisor to the Excise Commissioner, U.P. Allahabad (Prayagraj). 4. Petitioner applied to the second respondent-District Magistrate, Prayagraj, for allotment of a suitable residential quarter commensurate to his position, rank and post. The second respondent vide communication dated 13 July, 2018, expressed his inability to provide residential government quarter to the petitioner. Accordingly, petitioner was compelled to rent a three bedroom accommodation (flat) at Rs. 26,000/-per month. 5. The fifth respondent-Additional District Magistrate (Civil Supply, Prayagraj), vide communication dated 14 March 2019, directed the petitioner to obtain Rent Justification Certificate of the rented flat. 6. Aggrieved, petitioner submitted an application against the aforenoted communication, further, an application dated 26 April 2019, was submitted before the Chief Secretary, Government of Uttar Pradesh. 7. It appears that a government quarter being No. 469/4, Park Road Colony, Prayagraj, was allotted to the petitioner, but, the earlier allottee refused to vacate the accommodation which was duly informed to the respondent by the petitioner. Similar was the case with government quarter No. 199/4, Mission Road, Prayagraj, the previous allottee also declined to vacate the government quarter. Thereafter, it appears that the fifth respondent issued the impugned Rent Justification Certificate of the flat rented by the petitioner at Rs. 6,820/-arbitrarily treating the rate of rent at Rs. 10 per square feet. 8. It appears that a complaint came to be filed before the Lokayukt, Uttar Pradesh, thereafter, government quarter No. 199/4, Mission Road Prayagraj, came to be allotted to the petitioner in May 2020. 9. Grievance of the petitioner is that he has not been paid the rent of the flat at Rs. 26,000/-per month from July 2018 till 15 November 2019, thereafter, enhanced rent at Rs. 27,300/-from November, 2019 till March 2020, aggregating at Rs. 5,28,850/-. Petitioner was paid at Rs. 9,018 per month towards House Rent Allowance (HRA), totaling at Rs. 1,89,378/-. In other words, petitioner had to bear Rs. 3,39,472/- from his pocket being the arrears of rent of the rented accommodation. Petitioner claims refund of the amount. 10. 27,300/-from November, 2019 till March 2020, aggregating at Rs. 5,28,850/-. Petitioner was paid at Rs. 9,018 per month towards House Rent Allowance (HRA), totaling at Rs. 1,89,378/-. In other words, petitioner had to bear Rs. 3,39,472/- from his pocket being the arrears of rent of the rented accommodation. Petitioner claims refund of the amount. 10. In this backdrop, it is submitted that petitioner being a Senior Judicial Officer, was subjected to harassment and had to suffer monitory loss at the hands of the State-respondent. The conduct of the State-respondent is in contravention of the Government Order dated 27 July, 2006, as well as, the judgment rendered by the Supreme Court in All India Judges Association Vs. Union of India, (2002) 4 SCC 247 , as the respondents failed to pay the actual rent paid by the petitioner for the rented accommodation. 11. In the counter affidavit, filed on behalf of the second to sixth respondents by the Additional City Magistrate (II), District Prayagraj, it has been admitted that as per Government Order dated 27 July 2006, in case of nonavailability of government accommodation, the concerned judicial officer may himself/herself arrange for an accommodation on rent, in accordance with law, stature/class of the post held by him/her. The difference of money beyond the prescribed H.R.A. shall be borne by the State Government. It is further stated in paragraph 8 of the counter affidavit that issuance of Rent Justification Certificate is for non-residential buildings and not for residential houses/accommodations. 12. In the earlier counter affidavit, district authorities have justified their conduct, when, admittedly, as per the Government Order, judicial officer was entitled to the entire rent of the rented accommodation in the event government accommodation was not available. The conduct and approach of the State-respondents in withholding the rent and compelling the judicial officer from repeatedly approaching the district authorities for accommodation not only tantamounts to harassment, but also makes a serious dent upon the constitutional principle of separation of powers between the executive and judiciary. 13. The State Government issued a Government Order dated 7 July 2006, addressed to the Registrar General, High Court, Allahabad, in compliance of the recommendations made by the Shetty Commission, modifying the earlier Government Order dated 27 January 2006. 13. The State Government issued a Government Order dated 7 July 2006, addressed to the Registrar General, High Court, Allahabad, in compliance of the recommendations made by the Shetty Commission, modifying the earlier Government Order dated 27 January 2006. The Government Order, inter alia, provided that in the event the State is unable to provide government accommodation to the judicial officer commensurate to his status and the officer rents an accommodation, the additional expenses towards the rent would be borne by the State Government. The subject and the amendment reads thus: ^^fu;qfDr vuqHkkx&4 y[kuÅ% fnukad % 27 tqykbZ] 2006 fo"k;% ÁFke jk”Vªh; U;kf;d osru vk;ksx ¼'ksV~Vh vk;ksx½ dh laLrqfr ds vUrxZr jkT; dh U;kf;d lsok@mPprj U;kf;d lsok ds lnL;ksa dks HkRrs ,oa lqfo/kk,a Ánku fd;s tkus fo"k;d 'kklukns'k fnukad 27 tuojh] 2006 esa vokl@edku fdjk;k HkRrs dh mfYyf[kr O;oLFkk dk vkaf'kd lalks/kuA la'kksf/kr O;oLFkk leLr U;kf;d vf/kdkjh viuh ik=rk ds vk/kkj ij fu%'kqYd ljdkjh vFkok ljdkj }kjk yht ij fy;k x;k vkokl vkoafVr djokus ds gdnkj gksaxsaA ljdkj }kjk vkokl miyC/k u djok ikus dh fLFkfr esa 'kklu ds laxr vkns'kksa ds vuqlkj lEcf/kr U;kf;d vf/kdkjh dks edku fdjk;k HkRrk ns; gksxk] ijUrq ;fn U;kf;d vf/kdkjh }kjk Loa; ds Á;kl ls viuh ik=rk ds vuqlkj fdjk;s ij fy;s x;s vkokl dk okftc Áekf.kr fdjk;k] mls vuqeU; edku fdjk;k HkRrk ls vf/kd gS] rks vUrj dh /kujkf'k dk O;; Hkh jkT; ljdkj }kjk lqlaxr ys[kk 'kh"kZ ds vUrxZr ogu fd;k tk;sxkA 14. Subsequently, the aforenoted Government Order came to be amended/modified vide Government Order dated 31 August 2021, wherein, the provision of providing Rent Justification Certificate was done away with. 15. Further, upper limit was prescribed towards maximum rent admissible to the judicial officer on renting accommodation in the event government accommodation was not available. The Government Order provides for determining actual rent admissible on the basic/level salary of the judicial officer which would vary from region to region. 15. Further, upper limit was prescribed towards maximum rent admissible to the judicial officer on renting accommodation in the event government accommodation was not available. The Government Order provides for determining actual rent admissible on the basic/level salary of the judicial officer which would vary from region to region. The relevant portion of the Government Order dated 31 August 2021, is extracted : ^^3¼1½¼x½ mi;qDr ewy osru ds vk/kkj ij fdlh U;kf;d vf/kdkjh dks y[kuÅ] eqjknkckn] esjB] xkft;kckn] vyhxढ+] vkxjk] cjsyh] dkuiqj] bykgkckn] xksj[kiqj] okjk.klh] lgkjuiqj] fQjkstkckn ,oa >klha 'kgj esa rSukrh dh fLFkfr esa mls ljdkjh vkokl miyC/k u djk;s tk ldus dh fLFkfr esa mlds Loa; ds Á;kl ls fy;s x;s vkokl ds okftc fdjk;s dh vf/kdrk lhek mlds ewy osru dk 18 Áfr'kr gksxhA 3¼1½¼?k½ y[kuÅ] eqjknkckn] esjB] xkft;kckn] vyhxढ+] vkxjk] cjsyh] dkuiqj] bykgkckn] xksj[kiqj] okjk.klh] lgkjuiqj] fQjkstkckn ,oa >klha 'kgj ds vfrfDr jkT; ds vU; fdlh Hkh uxj esa rSukrh dh fLFkfr esa fdlh U;kf;d vf/kdkjh dks ljdkjh vkokl miyC/k u djk;s tk ldus dh fLFkfr esa mlds Lo;a ds Á;kl ls fy, x;s vkokl ds okftc fdjk;s dh vf/kdre lhek og /kujkf'k gksxh tks mlds ewy osru dk 09 Áfr'kr ,oa mls jkT; ljdkj ds fu;eksa ds vuqlkj vuqeU; edku fdjk;s HkRrs ds ;ksx ds cjkcj gksA uks,Mk esa rSukrh dh fLFkfr esa fdlh U;kf;d vf/kdkjh dks ljdkjh vkokl miyC/k u djk;s tk ldus dh fLFkfr esa mlds Lo;a ds Á;kl ls fy;s x;s vkokl ds okftc fdjk;s dh vf/kdre lhek og /kujkf'k gksxh tks mlds ewy osru dk 18 Áfr'kr ,oa mls jkT; ljdkj ds fu;eksa ds vuqlkj vuqeU; edku fdjk;s HkRrs ds ;ksx ds cjkcj gksA 3¼1½¼p½ mDror ¼x½ ,oa ¼?k½ dh fu/kkZfjr lhek ds vUrxZr fdlh U;kf;d vf/kdkjh ds fdjk;s ds edku dk tks okftc fdjk;k fu/kkZfjr gksxk ,oa ftldk okLrfod #i esa Hkqxrku fd;k tk;sxk mlesa ls mls jkT; ljdkj ds fu;eksa ds vuqlkj vuqeU; gks jgs edku fdjk;s HkRrs dh /kujkf'k dks ?kVkdj 'ks"k /kujkf'k dh ÁfriwfrZ dj nh tk;sxhA 3¼1½¼N½ ;g Hkh funsZf'kr fd;k tkrk gS fd fdlh Hkh U;kf;d vf/kdkjh ftudks ljdkjh vkokl u miyC/k u djk;s tkus ds fLFkfr esa fdjk;s dk edku ysdj vkokflr gksu iM+ jgk gS muds fy;s okftc fdjk; uks,Mk] y[kuÅ] eqjknkckn] esjB] xkft;kckn] vyhxढ+] vkxjk] cjsyh] dkuiqj] bykgkckn] xksj[kiqj] okjk.klh] lgkjuiqj] fQjkstkckn ,oa >klha 'kgj esa #0 20]000 dh lhek ds v/khu ,oa vU; 'kgjksa esa #0 15]000 dh lhek ds v/khu vFkok mi;qZDr ÁLrjksa esa fu/kkZfjr vf/kdre lhek ds v/khu] nksauksa esa tks vf/kd gks] fu/kkZfjr fd;k tk ldsxkA^^ 16. Shetty Commission Report dated 11 November 1999, while dealing with house rent allowance and other related issues observed that housing is a basic need, next only to food and clothing. Supreme Court in ‘All India Judges’ case, (1992) 1 SCC 119 , in paragraph 33 and 34, observed that provision of an official accommodation for every judicial officer should be made mandatory. The relevant portion of paragraph 33 and 34 is extracted: “33. Provision of an official residence for every Judicial Officer should be made mandatory. A Judicial Officer to work in a manner expected of him has to free himself from undue obligations of others, particularly owners of buildings within his jurisdiction who ordinarily may have litigation before him. This is mostly the case in rural areas where outstation judicial courts are located. 34. ….A judicial officer who is not provided residential accommodation is obliged to go in for rented accommodation. In view of the prevailing rate of rent, the smallest accommodation that can be taken may often cost 75 per cent to 100 per cent of the monthly salary, a situation which cannot be countenanced by any logic. It is absolutely necessary that appropriate conditions should be provided for the judicial officer and he should have reasonable mental peace in order that he may perform his duties satisfactorily. Rendering justice is a difficult job. It is actually a divine act. Unless the judicial officer has a reasonably worry free mental condition, it would be difficult to expect unsoiled justice from his hands.” 17. Further in paragraph 36, Supreme Court directed that until adequate government accommodation is available, it should be the obligation of the State at the instance of the High Court to provide requisite accommodation for every judicial officer. 18. The State Government vide Government Order dated 5 October 2020, issued directions to all the District Magistrates with regard to allotment of government accommodation to the judicial officer by granting them first preference as against the Executive Officers/Magistrates. The relevant portion of the Government Order reads thus: ^^3- vr% bl lEcU/k esa iqu% eq>s ;g dgus dks funsZ'k gqvk gS fd ftu U;kf;d vf/kdkfj;ksa dks mudh dkWyksfu;ksa esa vkokl miyC/k ugha gks ik jgs] mu U;kf;d vf/kdkfj;ksa dks tuin esa ftykf/kdkjh ds fu;a=.kk/khu miyC/k dkWyksfu;ksa esa ls mudh ik=rk ds vuq#i vkokl ÁFke ojh;rk ds vk/kkj ij vkoafVr djus dk d"V djsaA** 19. Accordingly, as per Government Order dated 27 July 2006, petitioner is entitled to actual rent of the rented accommodation. In any case, by the subsequent Government Order dated 5 October 2020, a judicial officer posted at Allahabad (Prayagraj) is entitled to minimum Rs. 20,000/-over and above the admissible H.R.A. or 18 percent of his basic/level of pay whichever is higher. The arrears claimed by the petitioner would also be covered by the subsequent Government Order. The case of the petitioner, however, is covered by the earlier Government Order dated 27 July 2006, i.e., actual rent of the rented accommodation minus the H.R.A. 20. In the circumstances, the writ petition is allowed. 21. The impugned Rent Justification Certificate dated 21 June, 2019, is set aside and quashed. 22. The respondents are directed to pay/refund Rs. 3,39,472/-, towards the arrears of rent paid by the petitioner along with interest at the rate of 7% per annum from the due date till the date of payment. The amount shall be released by the competent authority of the State within four weeks from the date of service of this order upon the second respondent-District Magistrate, District Prayagraj. 23. Registry to ensure compliance. 24. No cost.