JUDGMENT
M.H.S. Ansari, J.
1. The petitioner has prayed for reliefs, inter alia, as under;
“(A) Issue a writ of and/or in the nature of Mandamus commanding the respondents, their men and agents and each of them to forthwith issue further permanent allotment order of the Quarter No. 1 Type-II Block A or any other eligible Type-II family quarter in 122 Bn. BSF at Tagorevilla, Alambazar, Calcutta-700 035 in favour to the petitioner and set aside and/or quash the letter dated 27.2.2001 being annexure ‘F’ hereto;
(B) Issue a further writ of and/or in the nature of Mandamus commanding the respondents, their men and agents and each of them to forthwith stop deduction of any sort of penal rent and/or Rs. 2110/- per month from the salary of the petitioner in respect to the said allotted quarter.”
2. It is the case of the petitioner that he was transferred to Kashmir with 22nd Battalion and was seriously injured by Kashmir militants and he was admitted to the Army based hospital on 8.1. 1992. Thereafter, he was shifted to All India Institute of Medical Science, Delhi where he was kept upto April, 1992 and subsequently from April, 1992 to July, 1994. The petitioner was admitted in BSF Hospital in R.K, Puram, New Delhi. Thereafter, he was posted to 115 Battalion in BSF Tegorevlila. Petitioner relies upon the certificate of the Medical Board being Annexure ‘A’ wherein it was declared that percentage of disability was 70%. The said certificate was recommended for two years and the petitioner was required to appear before the next Board due after two years.
3. A residential quarter being No. 8 Type II Block A was allotted in favour of the petitioner. The same was on the third floor but by mutual arrangement with the occupier of quarter No. 1 Type II in the ground floor, petitioner occupied quarter No. 1 Type II on the ground floor and has been living there with his family. Representations were made by the petitioner for allotment of quarter No. 1 Type II and it is the case of the petitioner that the Commandant (RR) by his letter dated October 30, 2000 informed the Commandant. 122 Battalion, BSF that permission has been granted to the petitioner to live in that quarter in which he has been living now. (annexure ‘C’).
4. The grievance of the petitioner is that the respondent authorities have started deduction of Rs. 2110/- per month from the monthly salary of the petitioner from August. 2000 despite the specific order of Dy. IG/BSF dated 8.8.2000 contained in annexure ‘C’.
5. In the affidavit-in-opposition, it is stated that when 122 Battalion BSF was inducted in Bengal frontier under Calcutta Sector, a number of applications were received from the unit personnel for allotment of Government accommodation. It was observed that at Tegorevilla BSF Campus only 93 quarters are available against the authorization of 193 quarters and a few personnel who are posted from other units to 122 Battalion were occupying the quarters without any authority forcibly violating the Force discipline including the petitioner. It is further stated that all such unauthorized occupants were served notice to vacate residential quarter immediately to accommodate the wait listed personnel. The representation for retention of the occupied quarter submitted by the petitioner, it is stated, was considered in detailed and rejected by the competent authority being devoid of merit due to the reason that there are more than 20 personnel excluding the petitioner serving in 122 Battalion BSF who have sustained injury in militants action in Kashmir and having physical disability and waiting for allotment of quarter.
6. It is further stated that as the writ petitioner is occupying the Government quarter at a particular place that is at Tegorevilla Campus since last seven years against the allotment of one year only and other disable persons are kept on waiting list, the petitioner was repeatedly asked to vacate the Government accommodation and reside in rented accommodation for which he can be granted house rent allowance. The petitioner did not respond to the orders of the competent authority and did not vacate the quarter.
7. On behalf of the respondents, it is contended that the petitioner is entitled to reside in Type t quarter. He was allotted quarter No. 0.8 Type II for a period of one year from the date of his occupation and it was clearly mentioned that under any circumstances, no further extension will be granted. Reliance has been placed upon the office order dated November 7, 1994 being annexure ‘B’ to the writ petition. It is further contended that the petitioner violated the specific order and occupied quarter No. 1 Type II instead of Quarter No. 08 Type II. The petitioner was asked verbally several times vacate the said quarter. Reliance has been placed upon annexure ‘D’ to the affidavit-in-opposition whereby the petitioner was directed to vacate the Government accommodation and out living permission be given to him by the Commandant.
8. The respondent authorities do not dispute that DIG, BSF, Calcutta after hearing the grievance of the writ petitioner issued order No. 866-67 dated 19.5.2000 and 8th August, 2000 to allow the petitioner to retain Government accommodation and to stop penal deduction being annexure ‘C’ to the writ petition. It is, however, stated that the Commandant 122 Battalion, BSF vide order dated August 11.2000 reviewed the decision of the DIG, BSF whereupon a representation was made by the petitioner to DG, BSF, New Delhi to stop the recovery of penal rent and to allow the petitioner to retain the quarter permanently. The DG, BSF, New Delhi asked Sector Headquarter, BSF, Calcutta to enquire into the matter and send a report along with the comments of IG/DIG, BSF, Calcutta after enquiring into the matter submitted a report to the IG, BSF which was further communicated to the DG, BSF, New Delhi. Based upon the said report, the Commandant 122 Battalion DIG BSF, Calcutta informed the petitioner to vacate the quarter within a fortnight so that other disabled personnel of the unit can be given opportunity to avail of the Government accommodation facility. But since the petitioner failed to do so penal rent is being recovered till he vacates the quarter.
9. In short, the case briefly analyzed appears to be that the petitioner was allotted a Government quarter for a fixed period of one year. The said period having elapsed, the respondent authorities are collecting penal rent for unauthorized occupation of the said quarter of the petitioner. The representations made by the petitioner to the higher authorities have been considered. Also, it must be borne in mind that the Commandants have been designated as the Estate Officer for the purpose of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. The petitioner was directed to vacate the premises. However, it does not appear that any proceedings as contemplated under the provisions of the said Act 1971 have been initiated against the petitioner in that no show cause notice has been issued to the petitioner as per the provisions of section 4 of the said Act nor has any determination of the damages in respect of the quarter in question has been made as per the provision of section 7 of the Act.
10. Learned counsel for the petitioner contended that the entire proceedings with regard to deduction from the salary of the petitioner have been made unllateralty and without any show cause notice or any hearing or any orders passed based thereon and, therefore, the entire procedure prescribed under the Act has been violated,
11. A comprehensive procedure has been prescribed under Public Premises (Eviction of Unauthorized Occupants) Act, 1971. Unauthorized occupant has been defined in section 2(g) of the said Act to mean occupation of public premises by any person without any authority and includes the continuance in occupation by any person of the public premises after the authority under which he was allowed to occupy the premises in question has expired. The Estate Officers are empowered to issue show cause notice to the unauthorized occupants as per the provision of section 4 of the said Act and after considering the reply and after personal hearing, if any, the Estate Officer is empowered to take possession of the public premises. He is further empowered to order for payment of rent or damages in respect of premises under the unauthorized occupation as per the provision of section 7 of the said Act.
12. Under section 9 of the said Act, an appeal has been provided for from every order of the Estate Officer to the District Judge of the District in which the public premises are situate and such appeal can be preferred within the time framed therein.
13. In the light of the said statutory provisions, it must be observed that no such show cause notice was issued to the petitioner by the Estate Officer (Commandant) nor any explanation was called for nor any order has been passed with regard to the unauthorized occupation of the petitioner or asking him to vacate the premises or with regard to fixation of the damages/ penal rent or the date from which the same should be recovered.
14. In such view of the matter, the actions impugned in the writ application cannot be sustained. Accordingly, they are quashed and set aside with liberty, however, to the respondent authorities to proceed against the petitioner in accordance with the law and in compliance with the principles of natural Justice.
15. For the said reasons, I am not inclined to go into the other contentions urged on behalf of the petitioner in the instant writ application. It shall, however, be open to him to raise all such questions in the event any proceedings are initiated by the Estate Officer (Commandant) in accordance with the provisions of the aforesaid Act, 1971.
16. Accordingly, the writ application is disposed of with a direction in terms of prayer ‘B’ of the writ petition with liberty, however, to the respondents to affect deductions or recoveries towards penal rent only after initiating proceedings in accordance with the due process of law.
There shall, however, no order as to costs.
Let urgent xerox certified copy of this judgment and order be furnished to the parties, if applied for, on priority basis.
17. Application disposed of