IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No 10591 of 2006
Suresh Thakur, son of late Radha Ballabh Thakur, resident of
Village - Sonepur, P S - Narpatganj, District - Araria, presently
Posted as a Mohrir at Sub Divisional Irrigation Office, Banka under
Executive Engineer, Irrigation Division, Bhagalpur - Petitioner
Versus
1 The State of Bihar through Commissioner -cum- Secretary, Water Resources
Department, Government of Bihar, Patna
2 Chief Engineer, Irrigation, Bhagalpur, District - Bhagalpur
3 Superintending Engineer, Canal Circle, Saharsa, District - Saharsa
4 Executive Engineer, Irrigation Division, Bhagalpur
5 Executive Engineer, Irrigation Division, Birpur, District - Supaul
6 Executive Engineer, Irrigation Division, Araria - Respondents
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2 03.12.2010 The petitioner was posted at Araria from where he was
transferred to Bhagalpur (Irrigation Office, Banka) vide notification dated
26.06.1992. Immediately thereafter, on 03.07.1992, he was allotted an
accommodation at Bathnaha at Araria itself though he had already been
transferred to Bhagalpur Division. He continued to occupy the said
accommodation till 31.08.2003. By the impugned order, as contained in
Annexure-9, petitioner has been served with a notice of demand issued by
the Executive Engineer, Irrigation Division, Bhagalpur intimating that he
was occupying accommodation No F/2 of which monthly rent was Rs
66.40 unauthorisedly after his transfer from 01.05.1992 to 31.08.2003
and, as such, he was liable to pay penal rent for the said period which
totals to Rs 1,35,456/- which is to be realised from him in 32 equal
monthly instalments of Rs 4,233/- each. Petitioner’s case is that there was
surplus accommodation available at Araria and, as such, it was upon
departmental allotment he was occupying it though transferred to another
Division. The allotment itself was made after his transfer. As such, it
cannot be said that he was in unauthorised occupation thereof. The
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second contention of the petitioner is that a reference to last pay certificate
would show that petitioner was being charged rent for the accommodation
at the rate of Rs 16.60 per month but now the same has been arbitrarily
enhanced to Rs 66.40 P for which there is no explanation. His next
contention is that on basis of rent of Rs 16.60 P, he was already charged
penal rent which he paid at the rate of Rs 245/-. Though this is rate which
is chargeable to him and payable by him, he was charged Rs 465/- per
month which was also deducted from his salary. Thus, it is submitted on
his behalf that penal rent having already been charged for the entire
period, no further charge could be levied. In the counter affidavit, it is
stated that subsequently order dated 01.09.2006 has been passed
(Annexure-E) on basis whereof all the penal rent, petitioner had paid
earlier, was adjusted against the demand and, as such, only Rs 66,709/-
was now recoverable and had to be recovered in 30 monthly instalments.
Having heard the parties and considering the matter, so far
as paying penal rent is concerned, that cannot be accepted for the reason
that, admittedly, petitioner was not posted at the station where
accommodation was provided. Petitioner had sought accommodation at
Araria when he was already transferred to Bhagalpur. Petitioner, thus,
enjoyed the accommodation which he was not entitled to and, as such,
was an unauthorised occupier. Thus, petitioner is liable to pay penal rent
for the period of occupancy, as indicated in the impugned order passed.
The next question that arises what is the rent and the penal
rent. In the revised order dated 01.09.2006 (Annexure-E to the counter
affidavit), it is admitted that petitioner had, during the aforesaid period,
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paid penal rent at the rate of Rs 465/- per month. Why the same has now
stood revised to about Rs 996/- per month remains unexplained in the
counter affidavit. Learned counsel for the State submits that as petitioner
was in occupation of the accommodation after retirement, it was market
rent that was being charged. I am afraid, learned counsel for the petitioner
is correct in pointing out that in the revised order dated 01.09.2006, it is
stated that the rent was being charged for the period 01.05.1992 to
31.08.2003 whereas the petitioner had superannuated on 31.07.2009 long
thereafter. Thus, no proper reason is forthcoming as to why this
enhancement.
In such a situation, I have no option but to set aside the
impugned order, as contained in Annexure-9 and Annexure-E and direct
the petitioner to make a representation to the Executive Engineer,
Irrigation Division, Bhagalpur who would reconsider the matter with
regard to the rate at which penal rent was charged and payable. If it is
found that penal rent had been paid then penal rent cannot be
subsequently revised much less after petitioner had vacated the quarters
unless it was for some justifiable reason wrongly charged. The petitioner
would be entitled to make a detailed representation in this regard and after
hearing the petitioner, the concerned Executive Engineer would dispose of
the same by a speaking order duly communicated to the petitioner within
one month of filing the representation. It is only expected if, as a
consequence of the aforesaid order, it is found that the deduction
subsequently made pursuant to the impugned order was excess of the
liability, the concerned Executive Engineer would ensure its refund to the
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petitioner within one month.
With these observations and directions, the writ petition
stands disposed of.
M.E.H./ (Navaniti Prasad Singh)