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Abraham Mathew v/s The Garrison Engineer (Air Force), Military Engineer Services, Pulayanarkotta, Trivandrum & Others

    Original Application No. 686 of 2006

    Decided On, 13 June 2008

    At, Central Administrative Tribunal Ernakulam Bench

    By, THE HONOURABLE DR. K.B.S. RAJAN
    By, JUDICIAL MEMBER & THE HONOURABLE DR. K.S. SUGATHAN
    By, ADMINISTRATIVE MEMBER

    For the Appearing Parties: P.K. Madhusoodhanan, C.M. Nazar, ACGSC.



Judgment Text

DR. K B S RAJAN, JUDICIAL MEMBER


The applicant was allotted Key Personnel Married Accommodation Quarter No. P 68/2 of Type III at Pulayanarkotta, Trivandrum by the Garrison Engineer (AF), M.E.S. Trivandrum on 23-01-2001 which he retained till 30.09.2005. He was earlier served with an eviction notice vide Annexure A-1 letter dated 21st January, 2004 but according to the applicant, as per Annexure A-6 order dated 29-09-2005, the respondent No. 1 has permitted the applicant to retain the said quarters and vacate the same only by 07-10-2005 and the applicant has vacated the quarters on 30-09-2005. In view of the permission granted to the applicant to retain the accommodation, the respondents were to charge the rent only as for an authorized occupant and not as for an unauthorised occupant. And, the applicant had paid normal rent till his vacation of accommodation. The respondents have, however, issued Annexure A-12 communication whereby a sum of Rs. 6,062/- has been charged and recovered. The applicant has prayed for quashing of the said Annexure A-12 order and also prayed for a direction to the respondents for the refund of Rs 6,062/-.


2. It is pertinent to state at this juncture that earlier, when the respondents had issued eviction notice, the applicant moved this Tribunal through OA No. 170/04 and by order dated 9th March 2004, the Tribunal was pleased to issue an interim order directing the respondents that no action shall be taken regarding eviction of the applicant. This interim relief was continued till 4th August, 2005, when while allowing MA No. 503/2005 in OA 170/04, the interim order so granted was vacated. Thus, according to the respondents the applicant ought to have become unauthorized occupant since 4th August, 2005.


3. Counsel for the applicant contended that vide Annexure A-6, time granted for vacation of accommodation was upto 7th October 2005, while the applicant vacated the accommodation by 30th September, 2005 itself. And as he has already paid rent upto 30th September, 2005, there is no question of any rent to be paid by him. Counsel for the applicant relied upon the decision by the Cuttack Bench in the case of Pramatha Kumar Mishra vs Union of India (OA No 404 of 1994 decided on 20th May 1996,wherein it was held that if the occupant is allowed to retain the quarter by payment of Standard Licence Fee for a certain period he cannot be charged damage rent for the said period by treating him as an unauthorized occupant. Further he had cited the decision by the C.A.T. Chandigarh Bench wherein it was held that notice to the affected official is essential when recovery is ordered for damage rent and in this case no notice had been given.


4. Counsel for the Respondents submitted that the applicant's continuance in the accommodation was on the basis of the Tribunal's order and the Tribunal on 4th August 2005 vacated the interim order. It was obligatory on the part of the applicant to have vacated then and there or to meet the consequence thereof, i.e. payment of penal rent.


5. Arguments were heard and documents perused. Respondent had been directed to make available the relevant rules regulating the rate of rent in respect of govt accommodation. The same had been filed by the respondents.


6. In this case, the applicant was issued with an eviction order but the same was stayed vide order dated 9th March 2004 in O.A. No. 170/04. Later on the applicant was transferred from Trivandrum to Alwaye in January, 2005 and for the purpose of retention of accommodation, he was to be governed by the rules relating to retention after transfer. The Tribunal, on 4th August, 2005 vacated the stay granted against the eviction order. However, the respondents had extended the time for retention till 7th October, 2005, and the applicant vacated the accommodated on 30th September, 2005.


7. The rule position in regard to retention of accommodation after transfer is that the permissible period for retention of the residence is 2 months, vide Rule 317-B-11 SR. However, on the ground of children education, one can retain till the end of the academic session subject to payment of rent over and above the normal rent, as prescribed. In the instant case, permission has been granted for retention. The decision of the Cuttack Bench relates to an entirely different circumstance. There the applicant was posted out to a distant inhabitable and difficult terrain like Leh and was permitted to retain the quarters and permission had been extended from time to time. Again, he was re-posted to the same place and he had re-applied for the said accommodation and was allowed the same.


8. In the instant case, the applicant had been transferred from Trivandrum to Alwaye in January, 2005 and the academic session would have ended in April, 2005. However, the applicant was enjoying stay of order of eviction till 4th August, 2005 and the respondents by themselves, extended the time for retention till 7th October, 2005. One aspect has to be considered at this juncture. By grant of time for retention of accommodation, all that has been done by the respondents is to treat the occupation of accommodation as 'authorized'. Provision exists for charging of double the normal rent etc., in such cases of authorized occupation. Damage rent or penal rent is charged is for unauthorized occupation and the applicant cannot be brought within that category. However, the applicant cannot escape from the liability of payment of fixed rent for retention beyond the permissible period of two months on the ground of academic session. The applicant was transferred in January, 2005 and the permissible period is two months, which ended in March 2005. From April to September, 2005, notwithstanding the fact that the character of retention is treated as authorized, payment of additional rent @ prescribed rate of rent cannot be avoided by the applicant. Hence, it is declared that the respondents shall charge only that rate of rent which is applicable for retention beyond two months on academic grounds and not any damage or penal rent.


9. The OA is disposed of with a direction to the respondents -


(a) That they would work out the rent due for the period from April, 2005 upto 30th September, 2005 at the rate of rent applicable for retention of accommodation on grounds of children education.


(b) Against the amount so worked out, normal rent already paid by the applicant from April, 20

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05 to September, 2005 shall be adjusted and the balance due shall be worked out. (c) The said balance shall be adjusted against the amount of Rs 6,062/- recovered from the applicant. (d) The balance amount from out of Rs 6,062/- shall be refunded by the respondents. 10. No interest need be paid by the respondents on the above amount if the same is refunded to the applicant within a period of 2 months from the date of communication of this order. In case the payment is delayed beyond two months, interest @ 9% shall be paid from 01-01-2006 till the date of refund of the amount. 11. Under the circumstances there shall be no orders as to costs.
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