IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 PRESENT THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE R DEVDAS WRIT PETITION No.46988/2017 (S-KAT) Between:
R.V. Eshwaraiah S/o late Venkatappa Aged about 68 years R/at No.52, Pocket-2 Vasanth Vihar, Army Layout Vidyanagar, New Airport Road Bengaluru 562 157 …Petitioner (By Sri Prithvi Raj B.N., Advocate) And :
1. State of Karnataka Rep. by its Principal Secretary Department of Personnel & Administrative Reforms (Servies-3) Vidhana Soudha Bengaluru 560 001 2. The Treasury Officer Pension Payment Treasury Nrupathunga Road K.R. Circle, Bengaluru 560 001 3. The Accountant General (A&E) Park House road, Bengaluru 560 001 4. The Principal Secretary P.W.D. Vidhana Soudha Bengaluru 560 001 5. Addl. Chief Secretary To Government of Karnataka Primary & Secondary Education M.S. Building Dr. Ambedkar Veedhi Bengaluru 560 001. ...Respondents (By Sri I. Tharanath Poojary AGA) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to set aside the final order dated 08.08.2017 passed by the Karnataka Administrative Tribunal in Application No.4335/2017 vide Annexure-A and to quash the communication dated 15.02.2010 issued by respondent No.1 Annexure- A5 and etc., This Writ Petition coming on for Orders this day, DEVDAS J., made the following:
ORDER The petitioner is before this Court assailing the order dated 08.08.2017 passed by the Karnataka State Administrative Tribunal in Application No.4335/2017.
2. The petitioner is a retired Government servant. At the time of his retirement he was working as Managing Director, Text Books Society, DSERT Building, Hosakerehalli, Bengaluru. He retired on 30.06.2018.
3. The respondents contend that the petitioner, overstayed in the official quarters which was given to him and therefore, the petitioner was called upon to answer as to why action not to be initiated against him for recovery of damages in terms of the Karnataka Government (allotment of Government Quarters) Rules, 1999.
4. After enquiry, respondents sought to recover the damages from the pension of the petitioner. Being aggrieved, petitioner approached the Tribunal. The Tribunal held that the petitioner herein continued to occupy the Government quarters beyond the permissible period and therefore was liable to pay the penal rent. Therefore, the Tribunal upheld the order of recovery passed by the respondents.
5. Learned counsel for the petitioner submits that there was no enquiry held by the respondents. On the other hand, it is submitted by learned Additional Government Advocate that the provision prescribed summary enquiry and therefore order was passed in terms of provisions of the Karnataka Government (allotment of Government Quarters) Rules, 1999. Moreover it is submitted at the hands of the respondents that the petitioner had approached the Tribunal after a delay of seven years, while the order was passed on 15.02.2010, the petitioner approached the Tribunal in the year 2017. It is also submitted that though the Tribunal has given a finding that the order passed by the respondents was in accordance with law, the application itself was dismissed mainly on the ground of delay and latches.
6. We have heard the learned counsel for the petitioner and learned AGA for the respondents and perused the writ papers.
7. As pointed out by the learned counsel for the petitioner, Section 11 of Pensions Act, 1871 has not received consideration by the Tribunal. Section 11 clearly provides that:
“No Pension granted or continued by Government on political consideration, or on account of past services or present infirmities or as a compassionate allowance, and no money due or to become due on account of any such pension or allowance, shall be liable to seizure, attachment or sequestration by process of any Court at the instance of a creditor, for any demand against the pensioner, or in satisfaction of a Decree or Order of any such Court”.
8. The said provision fell for consideration before the Hon’ble Supreme Court in the case of Union of India and another vs. Wing Commander, R.R. Hingorani (Retd.), reported in AIR 1987 SC 808. In that matter too, the Union of India sought to recover the penal rents, as in this case, for over stay in the official quarters. The Hon’ble Supreme Court having considered Section 11 of the Pensions Act, held that on plain reading of Section 11, it protects the pension from every attachment, seizure or sequestration pension or any portion of pension or money due or to become due on account of any such pension. It was held that the words “money due or to become due on account of pension” by necessary implication means money that has not yet been paid or the commuted portion of the pension ie., money not yet been paid on account of pension or has not been received by the pensioner. As a consequence, the Hon’ble Supreme Court has set aside the order passed by the High Court and allowed the writ petition, while directing the Central Government to refund the amount deducted from the commuted pension of the petitioner therein. The decision in R.R.Hingorani (Supra) applies on all fours to the present case on hand.
9. In the light of the above, we proceed to allow the writ petition and set aside the impugned order passed by the Tribunal and the impugned communication dated 15.02.2010, while granting liberty to the respondents to proceed under Section 7 read with Section 14 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 for recovery of the penal rent or damages or to file a suit for recovery of damages.
10. At this juncture, learned counsel for the petitioner submits that in his representation dated 06.08.2005 he has brought to the notice of the respondents that many other Officers were also allowed to overstay in the quarters, but no action was sought to be initiated by the respondents against such persons, while the petitioner has been singled out. The respondents are hereby directed to consider the representation of the petitioner and take action in accordance with law.
SD/- JUDGE SD/- JUDGE HR