IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 5811 of 1984
For Approval and Signature:
Hon'ble MR.JUSTICE S.K.KESHOTE
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1. Whether Reporters of Local Papers may be allowed
to see the judgements?
2. To be referred to the Reporter or not?
3. Whether Their Lordships wish to see the fair copy
of the judgement?
4. Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the Civil Judge?
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C.T. SONARA
Versus
STATE OF GUJARAT
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Appearance:
MR IS SUPEHIA for Petitioner
MR HL JANI for Respondents
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CORAM : MR.JUSTICE S.K.KESHOTE
Date of decision: 05/05/97
ORAL JUDGEMENT
1.The petitioner, a Police Inspector of the Police
Department of the State of Gujarat, filed this Special
Civil Application and prayer has been made for quashing
and setting aside of the order dated 7-11-1984 under
which the respondent No.2 has ordered for recovery of
Rs.36740-45 from the salary of the petitioner at the
monthly installments of Rs.500/-.
2.The facts of the case as stated by the petitioner
in the petition, in brief, are that the petitioner was
allotted in the year 1979, a rent free accommodation in
Adarshnagar, Ahmedabad, bearing Block No.39/464 as he was
serving as Police Sub-Inspector in Ahmedabad. The
petitioner was ordered to be transferred from Ahmedabad
to Sabarkantha District and he was relieved on 2-1-1981.
The petitioner retained the possession of the premises
aforesaid on the pretext that he was not allotted
premises at his transferred place. In the month of
October, 1981, the petitioner was allotted a rent free
accommodation at Ambaliara. After the allotment of the
rent free accommodation at the aforesaid place, the
petitioner came to Ahmedabad and vacated the aforesaid
premises which was in his possession till then. The
petitioner was in a hurry and therefore he asked his
brother-in-law, Shri M.S. Parmar, to hand over the key
of the premises to the concerned Officer of the
department, but his brother-in-law forgot to do so. The
petitioner averred that, it seems that thereafter one Mr.
V.J. Desai, Police Inspector, broke open the lock of the
aforesaid premises and entered in possession thereof.
3.Under the notice dated 6-10-1982, annexure `A’,
of the Director of C.I.D., Ahmedabad, the petitioner was
called upon to vacate the official quarter and to hand
over its possession within seven days from the receipt
thereof. It has further been stated in the notice that
in case he fails to comply with the notice, accordingly
legal steps to take over the possession under sec.31(2)
of the Bombay Police Act would be commenced against him.
After the receipt of the said notice, the petitioner came
to Ahmedabad and gave in writing that the premises are in
possession of Shri V.J. Desai who had broken the lock of
the premises and the possession of the premises may be
taken from Shri V.J. Desai.
4.The petitioner was served with another notice
dated 7-2-1983 and he was called upon to vacate the
premises within seven days, failing which action under
sec.31(2) of the Bombay Police Act would be taken. In
this notice, the petitioner was called upon to pay in the
treasury the amount of outstanding rent with effect from
2-1-1981 at the rate of 10% of the pay plus Rs.10/- as
service charges for the period from 3-1-1981 to
31-3-1983.
5.The department under its notice dated 28th March,
1983, with reference to its earlier notice dated 7th
February, 1983, informed the petitioner that he was duty
bound to hand over the possession of the quarter in
question under written communication to the office. If
any unknown person is in occupation of the said quarter,
having entered therein by breaking open the lock without
his knowledge, he is at liberty to take legal steps
against the trespasser. He was called upon to show cause
as to why he has not complained about such a trespass to
the department so far. It has further been informed in
the letter that so long as the petitioner does not vacate
and hand over the possession of the quarter in question,
it will be treated against his name, and he was directed
to taken note that he will be held liable to bear and pay
the usual rent for the said period. He was further
called upon to pay the economic rent along with the usual
service charges as per the details shown in the
accompanied statement and to get the amount credited in
treasury and to send a copy of the challan in proof
thereof. He was further called upon to hand over the
possession within 15 days, failing which the market rent
would be charged.
6.The petitioner was thereafter served with a memo
dated 5-10-1983, annexure `D’ and he was informed that as
per the Government resolution dated 22-10-1982 issued by
the Public Works Department (Roads & Building)
Gandhinagar, the market rent of the disputed block No.39
has been fixed at Rs.1251-80ps. per month. He was
called upon to pay Rs.36740-80. Vide memorandum dated
6-10-1983, the petitioner has been informed that the
possession of the quarter has been taken on 13th June,
1983 from Police Inspector Shri V.J. Desai. The
petitioner was called upon to show cause as to why the
departmental inquiry should not be initiated against him.
7.Under the memo dated 14th August, 1984, the
petitioner was called upon to deposit into treasury an
amount of Rs.36740-45 within seven days. Further notice
was given in this respect to the petitioner on 28th
September, 1984. On 7-11-1984, order has been passed to
recover the aforesaid amount by way of monthly
installments of Rs.500/- from the petitioner. Hence,
this Special Civil Application before this Court.
8.Affidavit-in-reply has been filed by the
respondent in this case on 3-3-1997. On the direction of
this Court, the Director General of Police, Gujarat
State, filed his affidavit on 2nd April, 1997. The
counsel for the respondents produced various Government
Resolutions on the record of this petition.
9.The learned counsel for the petitioner contended
that Sec.31 of Bombay Police Act permits the authority to
take action against the petitioner for not vacating the
premises, and the petitioner should be punished on
conviction, but that section gives no power or authority
to the department to recover the rent that may be due
from the petitioner. The second contention has been made
that if at all the petitioner is liable to pay any rent
and the authorities have any power to recover the rent,
it can only be the economic rent as already conveyed by
the respondent No.2 under its communications, and as
such, that authority has no power to recover the amount
in excess of the rent i.e. to say 10% of the basic pay
plus Rs.10/- as service charges. Assuming for the sake
of arguments that the authority has power to recover the
rent at market rate, it can only be recovered from the
date of the aforesaid resolution of the Government dated
28-10-1982 as that resolution has not been given
retrospective effect. It has next been contended that
the amount of the rent for which the petitioner is made
liable is not definite and precise in the sense whether
the petitioner is liable to pay the economic rent or the
market rent. The respondent No.2 is not competent to
adjudicate upon the same and it will be open to the
respondents to file a civil suit to recover the
outstanding rent. The respondent No.2 cannot itself
determine the amount and realise the same. Only remedy
could have been to file a civil suit. Further contention
has been made that the petitioner is entitled for rent
free accommodation and till he got the rent free
accommodation at the transferred place, he is not liable
to pay any rent in respect of the premises at Ahmedabad.
Lastly, the learned counsel for the petitioner contended
that the respondent No.2 is not entitled to recover the
amount of rent from the petitioner at the rate of
Rs.500/- p.m. from the salary of the petitioner in view
of the provisions of sec.60 of the C.P.C. read with
sec.156 of the Bombay Land Revenue Code. In support of
his contention, the counsel for the petitioner placed
reliance on the decisions of this Court in the following
cases:
S.C.A. No.4618/91 decided on 12th August, 1991.
S.C.A. No.5111/96 decided on 3rd September, 1996.
S.C.A No.10794/95 decided on 19th December, 1996
and
S.C.A No.657/80 decided on 21st March, 1980.
10.Controverting the contentions raised by the
learned counsel for the petitioner, the counsel for the
respondents contended that the petitioner had
unauthorisedly occupied the premises at Ahmedabad. On
transfer, the petitioner could have retained the premises
for one month and thereafter he could have retained the
premises only with prior approval of the department. The
petitioner at no point of time prayed for retention of
the premises. He has illegally retained the premises,
and as such, as per the provisions of the Government
Resolution dated 22-10-1982, he is liable to make the
payment of the market rent for the period for which he
illegally retained the quarter. It has next been
contended that for the recovery of the amount of the rent
for illegally retaining the possession of the Government
premises which has been given to the petitioner at
Ahmedabad, the department was not required to file any
civil suit. What amount has to be paid is laid down
under the Government Resolution and the petitioner being
the Government servant is liable to pay the amount for
which no adjudication is called upon by the department in
the civil suit. Lastly, it is contended that the
petitioner has deliberately managed to continue in the
possession of the quarter for the benefit of his friend,
a good neighbour, an Inspector of the Police department
itself.
11.I have given my thoughtful consideration to the
submissions made by the learned counsel for the parties.
12.The petitioner was allotted a rent free
accommodation at Adarshnagar, Ahmedabad, bearing Block
No.39/464 as he was in service of the Police department
at Ahmedabad. He was transferred to Sabarkantha district
and he was relieved from Ahmedabad office on 2-1-1981.
As per the Government Resolution of the Public Works
Department, Sachivalaya, Gandhinagar, dated 5-6-1975, a
Government servant on his transfer could have retained
the accommodation for one month after date of the
transfer. Further extension under the said resolution
was permissible if the transfer is made in the midst of
an academic term. In such case, the maximum period of
occupation should be coterminus with the end of an
academic term. The resolution dated 24th June, 1981 of
the Department of Roads & Building is relevant to be
referred herein, and this resolution also permits the
retention of the Government Quarter by the Government
servant on transfer for a period of one month from the
date of transfer. However, the retention of the quarter
beyond one month could have been permissible in case the
transfer is effected during the academic year, and if the
transferred employee desires to continue to occupy the
premises for the facility of their school or college
going children then extension could have been only upto
31st May of the relevant year.
13.Then comes the resolution dated 22nd October,
1982, and under this resolution, after transfer, a
Government servant could have retained the quarter for
two months. The learned counsel for the petitioner
contended that the resolution dated 22nd October 1982 is
not applicable to the present case as it has not been
given retrospective effect. However, as per the
resolutions dated 5th June, 1975 and 24th June, 1981, the
petitioner could have retained this quarter till 2nd
February, 1981. The learned counsel for the petitioner
very fairly conceded, on putting a question by the Court,
that the petitioner has not made any application for
extension of the period for retention of the quarter.
The learned counsel for the petitioner also very fairly
submitted that he is not in a position to say whether any
of his children were school or college going at the
relevant time. The transfer, no doubt, has been made in
the month of January, 1981, and, in case, the petitioner
had any school or college going children, he could have
legitimately prayed for the extension of the time for
retention of the quarter till 31st May, 1981. The
petitioner has not applied for the extension of the time
which goes to show that he was not having any school or
college going children. However, the learned counsel for
the petitioner stated that the quarter was retained by
the petitioner till October, 1981 and his family was
residing therein, and he shifted his family to District
Sabarkantha in the month of October, 1981 when the
quarter was allotted to him there. So the fact that his
family was continued at Ahmedabad till October, 1981
further goes to show that he was not having any school or
college going children. The petitioner has retained this
quarter so that he may continue his family at Ahmedabad.
The retention could have been only for one month, and in
case of the transfer in the midst of an academic term,
till 31st May, 1981, with prior approval of the
department, but that is not the case here, as stated
earlier. Beyond one month from the date of his relieving
from Ahmedabad, the petitioner has no legal right to
retain the possession of the quarter. The Police
Officers upto the rank of Inspector are to be provided
with a rent free accommodation, and on transfer the
premises at Ahmedabad has to be allotted to the other
Police Officer posted at Ahmedabad or waiting in the
queue. The justification given by the petitioner for
retention of the quarter is that he was not allotted the
quarter at District Sabarkantha. The learned counsel for
the petitioner has failed to show any resolution of the
Government or any other provision from a rule or Act that
an Officer of the rank of Inspector or Sub-Inspector, on
his transfer, could have retained the quarter at the
place, wherefrom he is transferred, till he is allotted a
rent free accommodation at the transferred place.
14.From the resolution of the Home Department dated
30th November, 1976, it is clear that the Police Officers
who are entitled to rent free accommodation but to whom
rent free accommodation is not provided should be granted
House Rent Allowance at the rates as specified in
sub-para (iii) of para one of the Government Resolution
dated 1-12-1975. Reference may have to the resolution of
the Finance Department dated 15th May, 1981 which has
amended the earlier resolutions including the resolution
dated 1-12-1975. Under this resolution, the Government
revised the rates of H.R.A. in lieu of rent free
accommodation. The petitioner was entitled for rent free
accommodation and in case it is not allotted then he was
entitled for the House Rent Allowance as per the
resolution of the Government dated 15th May, 1981. It
may not be possible to make available a rent free
accommodation to the transferee immediately at the
transferred place. So where rent free accommodation
could not be made available immediately, then in that
case, an Officer who is entitled for rent free
accommodation will get the House Rent Allowance. So the
justification given by the petitioner to retain the
quarter till October, 1981 on the ground of non-allotment
of the rent free accommodation at Sabarkantha District is
wholly illusory, unjustified and contrary to the
resolutions of the Government. The petitioner was a
Police Officer of the rank of Sub-Inspector at that time,
and now an Inspector and he has taken the law in his own
hands. Instead of exhibiting himself as a law abiding
Officer of the Police department, he has acted contrary
to the Government resolutions and has gone to the extent
of now saying before this Court that no market rent could
have been realised from him or the amount could have been
realised only after the department filed a civil suit and
the Court has adjudicated the liability of the
petitioner.
15.This petition has been filed by the petitioner
under Article 226 of the Constitution. The writ under
Article 226 of the Constitution is not available to the
petitioner as a matter of course or right. It is a
discretionary remedy and in case, the conduct of the
petitioner is not free from doubt and if the conduct of
the petitioner is not fair and if the petitioner has not
come up with clean hands before this Court, then this
Court, though the petitioner may have a case on merits,
may decline to give any relief in an appropriate case.
16.The counsel for the petitioner during the course
of arguments admitted that Shri V.J. Desai was a Police
Officer who was his next door neighbour in the Government
quarters. He was also having rent free accommodation at
Ahmedabad. The question which arises for consideration
of this Court is whether the petitioner was really
intending and willing to vacate the quarter at Ahmedabad
after he was allotted the quarter at District
Sabarkantha. The pleadings of the petitioner in this
respect are very material and are to be referred. After
getting the premises in District Sabarkantha, the
petitioner came to Ahmedabad and he stated that he has
vacated the aforesaid premises. It appears that the
petitioner removed his household articles from the
premises, but the question is whether he has vacated and
handed over the possession of the premises to the
department, is a real question. The petitioner admitted
that he had not delivered the possession of the quarter
to the department. What he stated that he was in a
hurry, and therefore, he asked his brother-in-law, one
Shri M.S. Parmar, to hand over the key of the premises
to the person concerned and who forgot to do so. Very
convenient plea has been taken. Instead of handing over
the key to Mr. Parmar, his brother-in-law, the
petitioner should have delivered the key to the concerned
Officer of the department. What was the hurry, the
petitioner has not disclosed in the Special Civil
Application. Then the petitioner stated that “it seems
that thereafter one Shri V.J. Desai, Police Inspector
broke open the lock of the aforesaid premises and got the
possession thereof. The petitioner has not taken any
steps whatsoever after October, 1981 to see and check up
whether his brother-in-law has handed over the key to the
department or not. The petitioner felt content and
satisfied and relieved of his duty to hand over the
possession to the department by delivering the key to
none other than his own brother-in-law. It is nothing
but only a manufactured story for the purpose of defence.
From this fact, it is clear that the petitioner
deliberately and purposely retained the quarter with him
and he was not intending to hand over the possession of
the quarter to the department.
17.From the facts of the case, it necessarily
follows that the petitioner has given the possession of
the quarter to Shri V.J. Desai, Police Officer, one of
his friends, and may be a good neighbour. The notice
dated 6th October, 1982 has been given by the department
to the petitioner but he has not handed over the
possession of the quarter to the department. The
petitioner had given an application dated 8-2-1983 to the
department in which he stated that he has already vacated
the Government quarter and possession may be taken from
Shri V.J. Desai, P.I., who broke open his lock and
occupied the premises. In the application dated
8-2-1983, the petitioner stated that he has already
vacated the Government quarter. It may be true that he
had taken away his household articles, but that is not
the end of the matter and it cannot be said that the
premises has been vacated and possession thereof has been
handed over to the department. He had shifted his
family, but still he continued with the possession of the
premises. The question is of handing over the possession
of the premises to the department and then only it could
have been said that it has been vacated. To keep the
lock on the premises cannot be said to be a case of
vacation of the premises. The petitioner has stated that
the possession was with Shri V.J. Desai. So he
permitted Shri V.J. Desai to enter in the premises and
now when he has been called upon to pay the rent at the
market value, he has taken the plea that Shri Desai had
broke open the lock of the premises. It is a clear case
of collusion in between the petitioner and Shri V.J.
Desai, who is now reported to be dead. The petitioner
has manipulated the things to retain the possession of
the quarter, may be for his friend, may be a good
neighbour, but the fact is that he has not handed over
the possession of the quarter to the department. The
possession has been taken by the department from Shri
Desai on 13th June, 1983, but the petitioner cannot be
relieved of his liability to pay the amount of the rent
for the period ending on 13th June, 1983. The petitioner
is a person concerned for the illegal retention of the
possession of the quarter and the fact that the
petitioner has not delivered the possession of the
quarter to the department clinches the issue. This
conduct of the petitioner itself is sufficient for
disentitling him from getting any relief from this Court.
18.The counsel for the petitioner has placed strong
reliance on the decisions of this Court, but those cases
are of little help to the petitioner as in none of the
case, the question of conduct of the person who
approached this Court seeking relief under its
extraordinary jurisdiction was gone into. More so, when
the resolutions of the Government regulating the
retention of the Government quarter after transfer and
for charging of the rent for retention of the quarter
after transfer are there, the liability of the petitioner
has to be determined in accordance with the resolution
for which the department is not required to file a civil
suit. It is a case where the Government servant cannot
be equated with the tenant or the lessee or even the
licensee. He could have retained the quarter till he was
posted at a particular place. It is in lieu of his
services which he renders to the Government, the rent
free accommodation has been given to him. He has no
right or justification whatsoever to retain the quarter
beyond permissible limit laid down under the resolution.
The resolution of the Government dated 29th December,
1972 is clear and retention of the quarter on transfer by
a Government servant beyond the permissible period is a
misconduct. It is different matter that the Police
department has tolerated such a gross and serious
misconduct committed on the part of a Police Officer of
the rank of Inspector now, at the relevant time he was of
the rank of Sub-Inspector. The Director General of
Police has also admitted in the affidavit dated 2nd
April, 1997 that the petitioner is prima-facie guilty of
gross misconduct, disobedience of orders and violation of
the rules. In one of the notices, the department has
also called upon the petitioner to show cause as to why
the departmental proceedings should not be initiated
against him. The department has found that the
petitioner had not handed over the possession of the
block in question as a part of his duty or in the course
of his official duty. It has further been found by the
department that he has made a false report of having
vacated the said block. The petitioner, as stated
earlier, has not handed over the possession of the
quarter to the department. It is not the case of the
petitioner that at any point of time his brother-in-law
has given the key of the quarter to the department. The
action was proposed to be taken under the memorandum
dated 6-10-1983 by the department, but for all these
years no action has been taken. No explanation
whatsoever forthcoming for this inaction or omission or
slackness on the part of the department except to state
that the matter is sub-judice before this Court. This
Court has not restrained the department from proceeding
against the petitioner departmentally for the alleged
misconduct. However, it is for the department to
regulate its own business, but I am constrained to
observe that if the Police Department tolerates its own
Officers who commits such a gross misconduct,
indiscipline as well as of making a false statement then
what will be the fate of the department, is a question
for consideration of the department. If in such matters,
drastic actions are not taken then it will encourage the
Officers to retain the possession. The counsel for the
respondents very fairly conceded that if the proceedings
initiated under the provisions of the Gujarat Public
Premises (Eviction of Unauthorised Occupants) Act, 1972,
against the Officer for not vacating the Government
premises will take years together, but the question does
arise whether for getting the possession of its own
property from its own servant on his transfer any
proceeding is required to be taken by the department. It
is the duty of the Officer to vacate the premises
immediately on transfer and if he does not vacate the
premises then he is not a person befitting to the
service. If this course is adopted then the Officers
would retain the quarter in the city like Ahmedabad as it
has been conceded by the Government advocate before this
Court. It is for the Government to make necessary
provisions in this respect under the Act, 1972 or in the
matter of Police Officer in the Police Act.
19.The provisions of sec.31 of the Bombay Police Act
gives the power to the Government to get the possession
of the premises from the Police Officer on his ceasing to
be a Police Officer or whenever the State Government or
any Officer authorised by the State Government in this
behalf thinks it necessary and expedient or requires him
to do so.
20.The validity of the provisions of sec.31 has not
been challenged. Though this question is not in issue,
but if we go by the provisions of sec.31 of the Police
Act, which is a special Act, the department has
sufficient powers to get the premises vacated without
resorting to the remedies provided under the Act, 1972 or
the civil suit. The petitioner has not controverted the
affidavit filed by the Director General. This conduct of
the petitioner constitutes a grave and serious
misconduct. This conduct of the petitioner disentitles
him from seeking any relief from this Court and the
petition deserves to be dismissed only on this ground.
21.In view of these facts, the other contentions
raised by the counsel for the petitioner need not be gone
into. However, before parting with this judgment it is
observed that it is not the case of the petitioner that
in Ahmedabad city the premises of the area which was in
possession of the petitioner could have been made
available on the monthly rent less than what the market
rent has been demanded from the petitioner.
22.In the result, this Special Civil Application
fails and the same is dismissed with costs. The
petitioner is directed to pay Rs.2000/- by way of costs
of this petition to the respondent-State Government. The
respondent-State Government is directed to deposit this
amount of costs on receipt of the same in the welfare
fund which is there for the employees. The respondent
No.2 is directed to realise this amount of costs at
monthly installments of Rs.100/- from the salary of the
petitioner. Rule discharged. Interim relief granted by
this Court stands vacated.
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