Allowed

Sri N Shivanna v. General Manager

Karnataka HC8 Feb 2021WP/34984/2016

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging railway quarter retention and damage rent recovery. The Court quashed notices for unauthorized occupation ordered after a fresh quarter allotment was made and directed refund of illegally collected double rent with interest.

What did the court decide?

Annexure H and the vacation notice were quashed. Respondents directed to refund Rs.1,75,636 of double damage rent with 6% per annum interest.

Sri N Shivanna Vs General Manager — Pension and Retirement Benefits | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8^TH DAY OF FEBRUARY, 2021 BEFORE

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THE HON'BLE MR.JUSTICE PRADEEP SINGH YERUR

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WRIT PETITION NO.34984 OF 2016 (GM-RES)

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BETWEEN :

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SRI. N. SHIVANNA, S/O NARAYANAPPA, AGED ABOUT 54 YEARS, WORKING AS HEAD CONSTABLE, RAILWAY PROTECTION FORCE, BANGALORE CITY RAILWAY STATION, BANGALORE – 560 023. R/AT QUARTERS NO.320/K-L, M.G.COLONY, MAGADI ROAD, OKALIPURAM, BANGALORE – 560 023.

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... PETITIONER

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(BY SRI.SUBRAMANYA BHAT M AND M/S.SUBBA RAO & CO., ADVOCATES)

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AND :

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GENERAL MANAGER, SOUTH WESTERN RAILWAY, HUBBALLI – 580 020.

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THE DIVISIONAL RAILWAY MANAGER, SOUTH WESTERN RAILWAY, BANGALORE DIVISION, BANGALORE – 560 023.

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THE DIVISIONAL SECURITY COMMISSIONER, RAILWAY PROTECTION FORCE, SOUTH WESTERN RAILWAY, BANGALORE CITY – 560 023.

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... RESPONDENTS

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(BY SRI. ABHINAY Y.T., ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE (1) MEMORANDUM DATED 1.6.2015 (ANNEXURE - H) AND (2) COMMUNICATION/ MEMORANDUM DATED 20.5.2016 (ANNEXURE - L) ISSUED BY THE R-3 AS THE SAME ARE ILLEGAL, UNJUST, ARBITRARY CAPRICIOUS AND IN UTTER VIOLATION OF ARTICLES 14, 16 AND 21 OF THE CONSTITUTION OF INDIA AND ALSO CONTRARY TO RULES OF PRINCIPLES OF NATURAL JUSTICE AND ETC.

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THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is questioning the Memorandum dated 01.06.2015, issued by the 3^rd respondent for recovery of damage rents from the salary of petitioner and the letter dated 20.5.2016, directing the petitioner to vacate the quarters within 14 days from the date of receipt of the order and to pay damage rents.

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Petitioner was appointed as Constable in Railway Protection force, Southern Railway and was posted to Yeshwantpur Railway Station, Bangalore. During this period, the petitioner was allotted a Railway Quarters bearing No.320/- at Bangalore city which was Type I quarters with nominal rent of Rs.32/- pm.

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In the course of services, the petitioner was transferred from Yeswanthpur Railway Station to Castle Rock Station, Hubbali Railway station Hubballi division on 10.12.15 As the petitioner was having wife and school going children, petitioner was permitted to retain quarters subject to condition that he would be imposed damage rent at the rate double the normal rent.

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Petitioner continued to work in Hubballi Division, till 2008. Thereafter, petitioner was transferred to Arasikere which comes under Mysore Division, where he worked from 2008 to 2009. In view of the fact, that he met with an accident, petitioner requested the third respondent to post him to work in Bangalore on temporary

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basis which was acceded by the respondents and accordingly petitioner was transferred to Bangalore in the year 2009.

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Thereafter, as per the order of posting on 10.02.2010, petitioner was transferred to Arasikere and by order dated 05.05.2011 petitioner was promoted and transferred back to Bangalore as Head Constable.

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It is submitted that on 31.5.2011, vide Annexure E, the petitioner was allotted a quarter bearing No.320K and L by clubbing the earlier quarter allotted to him at SBC, Bangalore. Ever since then the petitioner along with his family continued to reside at the same quarter. After petitioner was transferred back to Bangalore City, the levy of damage rent which was proposed by respondent is stopped. To prove this fact, the petitioner produced Annexure G, the pay slip of August 2011 where the nominal rent of Rs.53/- was charged by respondents from August, 2011.

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This being the state of affairs, third respondent issued Memorandum dated 1.6.2015 addressed to the petitioner stating that the damage rent from 1.5.2011 till date would be Rs.1,74,636/- and also directed the petitioner to vacate the premises failing which the occupation of the quarter would be treated as unauthorized and eviction proceedings would be initiated against him.

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It is stated that damage rent from 1.5.2011 till date of filing of the petition would be Rs.1,74,136/- After issuance of Annexure H, the third respondent issued a communication dated 20.6.2015, Annexure-L directing the petitioner to vacate the allotted quarters within a period of 14 days from the date of receipt of the letter/ communication, failing which the eviction proceedings would be initiated against him.

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It is these two letters of respondent dated 1.6.2015 and 20.5.2016 vide Annexures H & L respectively which are challenged before this Court.

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The learned counsel for respondents has filed statement of objections to this petition wherein appointment of the petitioner is admitted. They also admit the transfer of petitioner from Bangalore to Hubballi Division and thereafter to Arasikere and then back to Bangalore.

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Respondents have produced the document as per Annexure R1 to the statement of objections and has sought to sustain the orders passed vide Annexures H and L. The documents produced by the respondents are the extracts of the guidelines issued by respondent with regard to retention of railway quarters to transfers and regularization thereof on posting back to the same station etc.

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I have heard the learned counsel for the petitioner and the Respondents 1 to 3.

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It is contended by the learned counsel for the petitioner that the petitioner is appointed as a constable in

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the Railway Protection Force and was posted to Railway station, Yeshwanthpur and thereafter allotted Type I quarters in which he and his family reside. He further contends that pursuant to his transfer from Yeshwanthpur to Castle Rock Station, Hubballi Division, the petitioner made an application to retain the quarters on the ground that he is having school going children. His request was considered and the petitioner was permitted to retain the quarters. Thereafter, the learned counsel for the petitioner contends that the respondents started demanding double damage rent at the rate of double the normal rent till the period the petitioner has been transferred back to Bangalore.

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Learned Counsel for the Petitioner fairly submits that he has no grievance with regard to the damage rent having been imposed on him for the period after two months of his transfer from Bangalore city till the time he was transferred back to Bangalore and the same has been demanded and duly paid. Learned counsel for

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petitioner vehemently contended that issuance of Memorandum dated 01.06.2015, vide Annexure-H, wherein respondent sought to recover damage @ Rs.3,564/- per month from 01.05.2011 till issuance of the said letter, is unsustainable in law and same deserves to be quashed and set aside.

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Learned counsel further contends that the question of issuing Memorandum dated 01.06.2015 would not be sustainable for two reasons, firstly, the petitioner was transferred back to Bangalore on 05.05.2011 and secondly, petitioner was allotted type-II quarters by the respondent on 31.05.2011 vide Annexure-E. Therefore, when the respondents themselves have allotted the quarters on 31.05.2011 the question of issuing Annexure-H dated 01.06.2015 is arbitrary and unsustainable.

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Learned counsel further contends that the subsequent issuance of Annexure-C dated 20.05.2016 is also arbitrary and the same is against the Rules and

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Regulations and in violation of the principles of natural justice. This notice sought for vacation of the railway quarters illegally occupied by the petitioner, failing which eviction proceedings will be initiated. Learned counsel further contends that this letter deserves to be set aside in view of the fact that the respondents themselves have allotted type-II quarters vide Annexure-E dated 31.05.2011. Further, he vehemently contends that the recovery of the damaged rent by the respondents from the month of July 2015 along with interest at the rate of 10% PA is bad in law. Therefore, under these facts and circumstances of the case and the submissions, he seeks to allow the writ petition.

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Per contra, learned counsel for respondents contends that imposition of damaged rent against the petitioner pursuant to his transfer from Bangalore to Hubballi and thereafter till his return to Bangalore is in accordance with the Rules and Regulations of the respondents vide Annexure-R2, which is produced along

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with statement of objections. Learned counsel further contends that once the petitioner was transfer out of Bangalore as per the Rules provided, he would be entitled to retain the quarters for a period of two months thereafter and any occupation or stay beyond said period of two months, the damage rent or double the rent is applicable as per Rules. He further contends that the said damage rent has been recovered from petitioner from the date of his unauthorized occupation of the quarters through salary account of the petitioner.

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Learned counsel for respondent further contends that petitioner ought to have made a fresh application for fresh allotment or re-allotment of quarters, which having been not done, the respondents were within their legal powers to order for recovery of damage rent at the rate of double nominal rent and which has been rightfully recovered by the respondents. He further contends that Annexure-H and L are letters issued to the petitioner in view of the fact that the petitioner is in

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unauthorized occupation and for recovery of damage and recovery of possession of the quarters, has been rightfully issued, which does not call for any interference by this Court. Therefore, on the basis of these submissions he seeks to dismiss the writ petition as the same does not merit consideration.

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Having heard the learned counsel for petitioner and learned counsel for respondents the points that arises for consideration before this Court are:

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“(1) Whether the Memorandum issued by the respondent dated 01.06.2015 as per AnnexureH for recovery of damage rent at the rate of Rs.3,564/- per month from 01.04.2011 till the date of said letter is sustainable in law?

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(2) Whether the letter issued on 20.05.2016 as per Annexure-C requires interference by this Court?”

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Heard, the learned counsels and their rival contentions, on careful perusal of material placed on record, it is not in dispute that petitioner was appointed

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with the respondent as Police Constable during the year 1986 and thereafter he was transferred to Castle Rock Police Station at Hubballi. Thereafter, petitioner was transferred to several places and finally he was transferred back to Bangalore on 05.05.2011. It is seen as per the extant Rules the petitioner was entitled to hold the quarters for a period of two months after his transfer from Bangalore. Thereafter as per Rules the damage rent at the rate of double the normal rent would be charged on the petitioner and he has paid till the time he was transferred back to Bangalore on 05.05.2011.

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Admittedly, petitioner has no grievance with regard to damage rent, which is double the normal rent, for a period from 2006 till 2011, during which period petitioner was posted out of Bengaluru. Petitioner was issued with Annexure-H dated 01.06.2015 wherein respondent wanted to recover the damage rent from 01.05.2011 till the date of issuance of letter. It is seen from the records that as per Annexure-G, respondents

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have demanded the nominal rent from the petitioner from the month of August 2011, this goes to show that pursuant to transfer of petitioner to Bangalore,ddd rent that was demanded was nominal rent and not the damage rent. This is in view of the fact that on 31.05.2011 as per Annexure-E, the petitioner was allotted type-II quarters by the respondent, which was occupied by the petitioner and he was continued to stay in the said premises as on date. Therefore, in view of the fact that respondents have allotted type-II quarters on 31.05.2011, respondents started recovery of only nominal rent in view of the allotment of the quarters,

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Thereafter, respondent got issued

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Memorandum dated 01.06.2015 to recover the damage rent from 01.05.2011 till 20.06.2015. The damage rent was recovered from June 2015 till 23.06.2016, on which day this Court had passed the interim order in favour of the petitioner and thereafter in view of the fact that interim order was continued no damage rent was

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recovered from the petitioner. It is seen that respondent allotted type –II quarters to the petitioner as per Annexure-E dated 31.05.2011 thereafter continued to recover normal rent from the petitioner. Therefore, it cannot be said that the occupation of the petitioner to type-II quarters allotted by the respondent was liable for deduction of damage rent and the occupation of the petitioner cannot be considered as unauthorized because he was allotted type-II quarters on 31.05.2011 by the respondents themselves.

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The fact that respondents have recovered the damage rent from the salary account of petitioner from June 2015 till 23.06.2016, prima facie, appears to be arbitrary and is not sustainable in law. On the admitted facts that allotment of the type-II quarter by the respondents themselves, the respondents ought not to have recovered the rent as double rent from the petitioner for the period from June 2015 till grant of interim order by this Court, ie., on 23.06.2016. Therefore, the respondents

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are liable to refund the damage rent collected from the petitioner from the month of July 2015 with interest at the rate of 6% per annum till 23.06.2016.

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The letter issued by the respondent dated 20.05.2016 is also not sustainable in law for the reason that the respondents have not considered their allotment letter dated 31.05.2011 vide Annexure-E through which petitioner, is allotted type II Quarters in accordance to the extant guidelines and regulations. Therefore it cannot be said that the petitioner is in unauthorized occupation of the quarters allotted by the respondents pursuant to the said allotment vide Annexure-E.

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Therefore, I am of the considered view that recovery of damage rent on the basis of annexure-H by the respondent is illegal and arbitrary and the same is unsustainable. So also the letter dated 20.05.2016 for recovery of damage rent is not sustainable in law. Therefore, there is force in the submission of the learned counsel for petitioner that, petitioner is not in unauthorized

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occupation of the official quarters allotted by the respondents vide Annexure-E dated 31.05.2011. No doubt respondents are entitled to recover the damage rent prior to the allotment issued to petitioner. However, the recovery of damage rent post the allotment letter vide Annexure-E dated 31/05/2011 is unsustainable in law. The present writ petition deserves to be allowed. Accordingly, I pass the following order:

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ORDER

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(1) Writ petition is allowed.

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(2) Annexure-H dated 01.06.2015 issued by the respondent is quashed to the extent of the damage rent already recovered by the respondent for a period from 31.05.2011 to 31.05.2015.

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(3) Letter dated 20.05.2016 issued by the respondents vide Annexure-L is also quashed.

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(4) Respondents are directed to refund the damage rent already recovered by the respondent in a sum of Rs.1,75,636/- for a period from the month of June 2015 till May 2016 with interest at the rate of 6% per annum.

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Sd/JUDGE

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NM VK

Sri N Shivanna v. General Manager

Case brief

What is this about?

What did the court decide?

Sri N Shivanna v. General Manager

Case brief

What is this about?

What did the court decide?

What the court decided

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