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High Court Of Calcutta
Mahemmad Habeeb Shams Ansari
JAVED MONDAL - Appellant
Versus
UNION OF INDIA - Respondent
W. P. 3642 Of 2001
Decided On : 05/17/2001
PUBLIC PREMISES (EVICTION OF UNAUTHORIZED OCCUPANTS) ACT, 1971 - SECTION 2(G), 4, 7, 9 - ALLOTMENT OF GOVERNMENT QUARTERS - UNAUTHORIZED OCCUPATION - DEDUCTION OF PENAL RENT FROM SALARY - PROCEDURE FOR EVICTION OF UNAUTHORIZED OCCUPANTS - SHOW CAUSE NOTICE - PERSONAL HEARING - DETERMINATION OF DAMAGES - APPEAL - LEGAL PRINCIPLES.
Fact of the Case:
Petitioner, a BSF officer, was allotted a government quarter for a fixed period of one year. After the period elapsed, the respondent authorities started deducting penal rent from his salary for unauthorized occupation of the quarter. The petitioner challenged the deduction, arguing that the authorities had not followed the procedure prescribed under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971.
Finding of the Court:
The court held that the respondent authorities had not followed the procedure prescribed under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, as they had not issued a show cause notice to the petitioner, called for an explanation, or passed an order with regard to the unauthorized occupation or fixation of damages/penal rent. The court quashed the impugned actions and directed the authorities to proceed against the petitioner in accordance with the law and principles of natural justice.
Issues: 1. Whether the respondent authorities had followed the procedure prescribed under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, in deducting penal rent from the petitioner's salary for unauthorized occupation of the government quarter. 2. Whether the petitioner was entitled to a hearing before the deduction of penal rent.
Ratio Decidendi: The court relied on the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, which prescribes a comprehensive procedure for the eviction of unauthorized occupants. The court held that the respondent authorities had not complied with the procedure prescribed under the Act, as they had not issued a show cause notice to the petitioner, called for an explanation, or passed an order with regard to the unauthorized occupation or fixation of damages/penal rent. The court also held that the petitioner was entitled to a hearing before the deduction of penal rent.
Final Decision: The court quashed the impugned actions of the respondent authorities and directed them to proceed against the petitioner in accordance with the law and principles of natural justice. The court also directed that no deductions or recoveries towards penal rent should be made until the authorities had initiated proceedings in accordance with the due process of law.
( 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-700035 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 Tegorevilla. 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 rent
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