Commodore H.C.Sharma(Rtd) Vs Union of India and Ors.

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION

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 WRIT PETITION NO.299 OF 1995

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 Commodore Harish Chandra Sharma ]
 Indian Navy (Retired) residing ]
 at 31/32, B-Wing, "Omkar Housing ]
 Society", Manpada, Ghod Bunder ]
 Road, Thane (West) -400607 ]..Petitioner
 Vs.
 1. Union of India ]
 having its office at ]
 Aayakar Bhavan Annexe, ]
 2nd floor, Maharshi Karve Rd.]
 New Marine Lines, Bombay- ]
 400020 ]
 2. The Chief of the Naval Staff ]
 having his office at Naval ]
 Headquarters, Sena Bhavan ]
 New Delhi-110 011 ]
 3. The Flag Officer Commanding ]
 -in-Chief, Headquarters ]
 Western Naval Command, Shahid]
 Bhagatsingh Road, Bombay- ]
 400 001 ]

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 4. The Unit Accountant, ]

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 Barrack Store Office (Naval ]

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 Works) Colaba, Bombay-400005 ]..Respondents

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 ...
 Mr.A.I.Bhatkar Advocate for Petitioner
 Mr.Y.R.Mishra with D.A.Dube for
 Union of India-Respondent

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 CORAM : DR.S.RADHAKRISHNAN AND
 SMT.V.K.TAHILRAMANI,JJ.
 DATE : NOVEMBER 13,2006

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ORAL JUDGMENT (PER SMT.V.K.TAHILRAMANI,J.):

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 1. The petitioner, a retired Commodore from Indian
 Navy, has filed this petition under Article 226 of
 the Constitution of India challenging the orders
 dated 22.8.1994, 13.9.1994, and 28.9.1994. By these
 orders, he was called upon to pay the amount of
 Rs.1,29,897/- towards retention of Government
 accommodation for the period from 1.3.1989 to
 12.5.1991, in continuation of the retention bill
 received by him in September, 1991.

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 2. The petitioner came to be transferred from Bombay
 to Bangalore on 6.9.1987 and he was permitted by the
 competent authority of respondent no.3 to retain the
 Government accommodation for the period from 6.9.1987

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 to 30.6.1988 on account of children’s education at
 Bombay. He was again transferred from Bangalore to
 Okha on 13.5.1988. Okha being a non-family station,
 at the request of the petitioner, he was allowed to
 retain the accommodation in Bombay till 12.5.1989 as
 per the orders passed by Respondent No.3. It appears
 that on 1.3.1989 Okha became a family station.

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 3. On 25.7.1989 the petitioner was transferred from
 Okha to Porbunder a non-family station and he was
 permitted to retain the accommodation at Bombay as
 per the orders passed by Respondent No.3 for the
 period from 25.7.1989 to 12.5.1991. On 13.5.1991 the
 petitioner came to be transferred from Porbunder to
 Bombay and he was allowed to stay in the same
 accommodation he had retained. Surprisingly, in
 September, 1991 he received a rent bill at damage
 rate to the tune of Rs.1,29,877/- for the period from
 1.3.1989 to 12.5.1991. The petitioner retired from
 Naval Service on 13.4.1993 and recovery of
 Rs.1,29,877/- was made from the petitioner’s gratuity
 and pension.

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 4. Affidavit-in-reply filed on behalf of Respondent
 Nos.2 and 3 states that the Local Audit Authorities

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 at Bombay had objected to the sanction given by Local
 Naval Authorities at Bombay for the period from
 1.3.1989 to 12.5.1991 i.e. from the date Okha became
 a family station to the date the petitioner was
 transferred back to Bombay and asked the Local Naval
 Authorities to get government sanction to regularise
 the said period.

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 5. Though the Naval Authorities at Bombay had
 recommended to the Government of India through
 Headquarters for granting sanction, it was turned
 down by Government vide order dated 22.8.1994.
 Consequently, recovery of Rs.1,29,877/- was made from
 the petitioner’s gratuity and pension.

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 6. Having considered the respondents arguments and
 on perusing the affidavit-in-reply filed by
 Respondent Nos.2 and 3, it is clear that the
 petitioner was not in unauthorised occupation of the
 subject accommodation at Bombay from 1.3.1989 to
 12.5.1991 and the retention of quarters during this
 period was duly sanctioned by Respondent No.3. Even
 though Okha became a family station on 1.3.1989
 within a period of about 4 months i.e. from
 25.7.1989, the petitioner was transferred from Okha

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 to Porbunder which was a non-family station. The
 order passed by Respondent No.3 permitted the
 petitioner to retain the family accommodation in
 Bombay for a period of three months with effect from
 13.5.1988, thereafter, by subsequent orders, he was
 permitted to retain family accommodation including
 for the period from 1.3.1989 to 25.7.1989 and even
 thereafter till 12.5.1991. It is seen that sanction
 of the Government was accorded to retain the
 accommodation at Bombay for the period from 1.3.1989
 to 25.7.1989 i.e. the date petitioner was posted at
 Porbunder a non-family station. During the period
 from 25.7.1989 to 12.5.1991 by the order of the
 competent authority i.e. Respondent No.3, he was
 permitted to retain the family accommodation at
 Bombay. Thus, all these orders passed from time to
 time, clearly reveal that the petitioner was not in
 unauthorised occupation of the quarters at Bombay so
 as to charge him rate at the damage rate for the
 period from 1.3.1989 to 12.5.1989.

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 7. Our attention was invited to the scheme of
 Section 7 of the Public Premises (Eviction of
 Unauthorised Occupants) Act, 1971 which deals with
 powers to require payment of rent or damages in

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 respect of Public Premises. The said Section reads

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 as under:-

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 . 7. Power to require payment of rent or
damages in respect of public
premises.--(1) Where any person is in
 arrears of rent payable in respect of
 any public premises, the estate officer
 may, by order, require that person to
 pay the same within such time and in
 such instalments as may be specified in
 the order.

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 . (2) Where any person is, or has at any
 time been in unauthorised occupation of
 any public premises, the estate officer
 may, having regard to such principles
 of assessment of damages as may be
 prescribed, assess the damages on
 account of the use and occupation of
 such premises and may, by order,
 require that person to pay the damages
 within such time and in such
 instalments, as may be specified in the
 order.

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 . [(2-A) While making an order under
 sub-section (1) or sub-section (2), the
 estate officer may direct that the
 arrears of rent or, as the case may be,
 damages shall be payable together with
 simple interest at such rate as may be
 prescribed, not being a rate exceeding
 the current rate of interest within the
 meaning of the Interest Act, 1978 (14
 of 1978).]

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 . (3) No order under sub-section (1) or
 sub-section (2) shall be made against
 any person until after the issue of a
 notice in writing to the person calling
 upon him to show causewithin such time
 as may be specified in the notice, why
 such order should not be made, and
 until his objections, if any, and any
 evidence he may produce in support of

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 the same, have been considered by the
 estate officer.

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 8. Thus, sub-section (3) of section 7 makes it very
 clear that no order can be made under sub-section (1)
 or (2) against any person until after the issuance of
 a notice in writing to a person calling upon him to
 show cause within such time as may be specified in
 the notice, as to why such an order cannot be made
 and unless his objection if any, and the evidence if
 any, he may produce in support of the same, has been
 considered by the estate officer. In the present
 case, it is apparent that the procedure laid down
 under Section 7(3) has not been followed before the
 bill was issued to the petitioner in September, 1991,
 on this ground itself the orders are liable to be set
 aside.

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 9. In the premises, this petition succeeds and the
 impugned orders dated 22.8.1994, 13.9.1994 and
 28.9.1994 are hereby quashed and set aside. The
 Respondents are directed to refund to the petitioner
 the amount of Rs.99,000/- towards D.C.R.G. and
 Rs.13,877/- towards Leave Encashment. The refund be
 made on or before 31st December, 2006, failing which,
 the petitioner will be entitled to simple interest at

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 the rate of 18% per annum with effect from 1.1.2007.

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 Rule made absolute accordingly.

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 [ DR.S.RADHAKRISHNAN,J.]

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 [SMT.V.K.TAHILRAMANI,J.]

Commodore H.C.Sharma(Rtd) v. Union of India and Ors.

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Commodore H.C.Sharma(Rtd) v. Union of India and Ors.

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