1. The petitioner has preferred the present petition for appropriate writ to quash and set aside the impugned order dated 7.9.2001 – Annexure-A, whereby the communication is made that the amount of Rs.62,541/- be recovered from the salary and allowances of the petitioner.
2. The short facts are that the father of the petitioner, who was working as wireman with the State Government was allotted quarter of J-Type No.86/1 in Sector 21 at Gandhinagar, which is a quarter available to the lowest category of the Government Employee. He expired on 2.3.1983 and after the death of the father, the mother of the petitioner, Nasimbanu Gulamhusen Miyana was offered appointment on compassionate basis. Unfortunately, the mother of the petitioner also expired on 17.9.1992 and at the relevant point of time, major member of the family was sister of the petitioner Mumtaz Gulamhusen Miyana and other two sisters as well as petitioner, all were minor. As per the respondent, after the death of the mother, they were required to vacate the quarter, but it appears that the family members of the petitioner continued to occupy the quarter and thereafter, the respondent authorities assessed the market rent of the quarter at Rs.800/- per month and the recovery for the period from 1992 till 1999 was sought to be effected. As per the petitioner, when it came to their notice in the year 1999 that the Government had assessed the market rent at Rs.800/- per month and they were required to hand over the possession of the quarter, they immediately vacated the quarter. It appears that thereafter, as the petitioner became major, he was offered employment vide order dated 24.3.2000 and since then he was working. In the year 2001, the aforesaid impugned communication came to be issued and under these circumstances, the present petition.
3. Heard Mr.Adeshra, learned Counsel for the petitioner and Ms.Moxa Thakkar, learned AGP for the respondent.
4. It may be recorded that this Court, when considered the matter on 24.9.2002 at the admission stage, passed following order:-
“Heard Mr Adeshra, learned counsel for the petitioner and Mr RV Desai, learned AGP for the respondents.
2. The petitioner was born on 16.2.1982 and was just one year old when the petitioner's father, a wireman in the employment of the State Government, expired on 2.3.1983. Hence, the petitioner's mother was offered employment on compassionate ground as a peon and accordingly the quarters allotted to the petitioner's father was transferred in the name of the petitioner's mother. The rent was Rs.40/- per month. The petitioner's mother also expired on 17.9.1992 when the petitioner was only 10 years old and the petitioner's three unmarried sisters were aged 12, 16 and 22 years. The family continued to occupy the quarters in question. When the eldest sister was served with the notice dated 23.4.1999 to vacate the quarters and to pay market rent at the rate of Rs.800/- per month the quarters were vacated on 24.5.1999.
The petitioner came to be offered compassionate appointment on 24.3.2000. The petitioner is accordingly presently holding the post of a peon under the State Government.
3. The present petition challenges the order dated 7.9.2001 (Annexure "A") whereby the Government has demanded an amount of Rs.62,541/- from the petitioner as the arrears of rent for the period between 17.9.1992 and 24.5.1999 when the petitioner's eldest sister handed over vacant possession of the quarters in question. The demand is made at the rate of Rs.800/- per month being the market rent of the quarters in question. The petitioner has contended that the petitioner could not be fastened with the liability to pay the aforesaid amount for the period when he was a minor.
4. According to Mr Adeshra for the petitioner, the economic rent for the quarters in question would be Rs.100/- per month and without prejudice to the petitioner's contention that the petitioner was a minor throughout the period between 17.9.1992 and 24.5.1999, the petitioner is willing to pay economic rent for the quarters during the aforesaid period.
5. Mr RV Desai, learned AGP for the respondents points out letter dated 29.4.2002 (Annexure "F") whereby the petitioner had given his no objection for recovery of the amount of rent for the quarters in question from the petitioner's salary in instalments spread over 15 years.
Mr Adeshra points out from para 5 of the rejoinder affidavit that he was required to give such a writing for fear of facing unemployment.
6. Having heard the learned counsel for the parties, the Court finds that there are four important aspects to be considered at the stage of final hearing :-
(i) there is nothing on record to indicate that the petitioner's family was called upon to pay market rent at the rate of Rs.800/- per month soon after 17.9.1992 or within reasonable period thereafter.
(ii) No sooner the petitioner's eldest sister was served with the notice dated 23.4.1999 requiring her to pay market rent of Rs.800/- per month, she and her younger siblings vacated the quarters within one month - i.e. on 24.5.1999.
(iii) Rent at market rent is charged to serve as a disincentive to Government employees continuing to occupy the quarters unauthorisedly or beyond the date of retirement in defiance of rules and eviction notices. The undisputed facts narrated in para 3 and the aforesaid two aspects would justify and warrant a sympathetic exercise of power and discretion.
(iv) Whether the petitioner can be fastened with the liability to pay arrears of rent for the period when he was a minor is a legal question that needs to be examined.
7. Hence, the following order is passed :- Rule.
Till final disposal of the petition, there shall be interim relief restraining the respondents from implementing or enforcing the orders dated 7.9.2001 (Annexure "A") and 3.5.2002 (Office Order No. 149 of 2002 issued by the Chief Town Planner & Chief Architect, Gujarat State) subject to the condition that for the period in question (i.e. from 17.9.1992 till 24.5.1999), the petitioner shall pay the rent for the quarters in question bearing Block No. 86/1/ J Type, Sector No. 21, Gandhinagar at the rate of Rs.160/= per month. The amount so calculated shall be paid by the petitioner in equal monthly instalments of Rs.160/= each.
Direct Service is permitted.”
5. The aforesaid shows that this Court, in view of the peculiar facts and circumstances, found that Questions No.(i), (ii), (iii), and (iv) were required to be decided by the Court at the time of final hearing and by interim order, directed the Government to recover the amount at the rate of Rs.160/- per month and it has been stated by the learned AGP that the amount of Rs.160/- per month is already recovered.
6. Mr.Adeshra, learned Counsel appearing for the petitioner, submitted that in view of the peculiar facts and circumstances, as amply recorded by the Court when the order dated 24.9.2002 came to be passed, this Court may consider the case to direct the State Government to accept the amount already paid at the rate of Rs.160/- per month as full and final and the Government may put an end to the matter.
7. Whereas, the learned AGP submitted that the amount of Rs.800/- per month has been assessed as per the Government Resolution dated 30th October, 1990 and as per the said Resolution, for the category at 'B' Tupe Quarter, economic rent is Rs.200/- per month and market rent is Rs.800/- per month and accordingly, market rent has been assessed. The aforesaid Resolution shows that the economic rent is not Rs.160/- per month, but Rs.200/- per month. Another aspect is that the rent fixed by the Finance Department as normal rent, when the Government Servant is in employment, is Rs.35/- per month and the standard rent is fixed at Rs.150/- per month, the economic rent is fixed at Rs.200/- per month and the market rent is fixed at Rs.800/- per month.
8. It is true that any Government employee upon termination of his service or retirement has to vacate the quarter, so as to make it available for the incoming Government servant or Government employee. If the quarter is not vacated well in time, it would be impossible for the Government to provide accommodation to the existing employee and, therefore, there cannot be any dispute to the said aspect. It is not that in every case the Government may be required to recover market rent and even if market rent is to be recovered, opportunity may be required to be given to the person concerned on the said aspect. It does not come on record as to whether any prior show-cause notice was given or not. However, the stand of the Government is that the market rent has been fixed as per the Government circular. When the matter was considered on 24.9.2002, observations have been made by this Court that the case deserves sympathetic approach on the part of the State Authorities, more particularly because the father and the mother both had expired and except elder sister, all other including the petitioner were minors and, therefore, keeping in view the said aspect, this Court in the above referred order did make observations and rather narrated peculiar circumstances for examination of the points at paragraphs 6.1 to 6.4. It appears that, keeping in view the aforesaid peculiar circumstances, it is required for the State Government to consider the case as to whether economic rent should be recovered or market rent. If the observations made by this Court are taken into consideration, it may call for recovery of economic rent as against the market rent, more particularly because no material has come on record that any prior opportunity was given even before the fixation of the market rent or otherwise.
9. Under these circumstances, it appears that the following directions shall meet with the ends of justice:-
(a) The competent authority of the State Government shall examine the aspects of recovery of economic rent or market rent, keeping in view the points for consideration as observed in the above referred order and the competent authority shall also consider the case on sympathetic basis as already observed in the said order. The aforesaid exercise shall be completed within the period of four months from the date of receipt of the order of this Court. Until the decision is taken and the same is communicated to the petitioner, interim order passed in the present proceedings shall continue to remain in operation.
10. The petition is disposed of in terms of the aforesaid directions. Rule is made absolute accordingly. No order as to costs.
(Jayant Patel, J.) vinod