- (1.) SUNIL Ambwani, J. Heard Sri Satish Dwivedi Counsel for the petitioner and Sri Govind Saran for respondents.
(2.) BY means of this writ petition, the petitioner has prayed for issuing a writ of certiorari, quashing the orders, if any, passed by the respondents after summoning the same by which deductions and realisation of damages as damages rent is being made from the petitioner from his monthly salary. He has further prayed for a writ of mandamus restraining respondents not to deduct or realise the damage rent for less than half of the salary of the petitioner except nominal charge of the accommodation under the law and to refund the amount which has been excessively realized from the petitioner. The facts giving rise to this petition are that on his posting as Constable in Railway Protection Force at District Allahabad, the petitioner was allotted a Railway Quarter No. 37-D Type-I, Subedarganj, Allahabad. He completed the tenure of posting at Subedarganj, Allahabad and was transferred to Company No. 49/gmc Kanpur on 1-6-1993 and was spared on 17-3-1993. The petitioner did not vacate the accommodation allotted to him, nor made any request to continue to occupy the accommodation. He was transferred from Kanpur to Cash Guard at Allahabad on 15-4-1996 and thereafter he transferred from Cash Guard Allahabad to Cash Guard Platoon Tundla on 14-9-1996. He was again transferred from Cash Guard Tundla to Allahabad on his own request on 25-4-2001. During this entire period he did not vacate the accommodation nor paid penal rent in accordance with the Rules for allotment. It is admitted between the parties that on his transfer back to Allahabad on his own request he has been re-allotted the same quarter on 25-4-2001. The dispute in the present case is thus confined only to the penal rent which was payable by the petitioner from 13-7-1993 to 24-4-2001. The details of the assessment of penal rent have been given in paragraph-7 of the counter-affidavit. Out of total amount of arrears of damage rent of Rs. 1,20,595/- an amount of Rs. 61,326/- has been realised from the petitioner and that the remaining amount of Rs. 59,269/- is being realised from his salary w. e. f. January, 2003 @ Rs. 1000/- per month. Learned Counsel for the petitioner submits that no proceedings were taken for his eviction under Public Premises (Eviction of Unauthorised Occupants) Act, 1997 prior to the notice dated 28-2- 2000 and that the petitioner was never given an order to vacate the accommodation. He submits that the petitioner and his family were in great difficulty as his wife was suffering from serious ailment for which she was treated in Railway Hospital and in the S. R. N. Hospital at Allahabad.
(3.) A perusal of the record show that the respondents did not take any steps to get the accommodation vacated from the petitioner. The respondents started recovering penal rent from the petitioner after its assessment vide order dated 6-3-2000. Although it is alleged that the petitioner had made representation there is nothing to show that the petitioner had requested to continue in the accommodation prior to 16-2-2000 when he made his first representation. The Court has been called upon the decide the rights of the petitioner to occupy the residential accommodation allotted to him at the place of his posting and to consider the submission whether it was incumbent upon the department to give a notice to the petitioner to show-cause as to why he may not be evicted, and further to issue show-cause notice before the penal rent was determined and imposed upon the petitioner, and also whether in such case the only remedy for the department is to proceed for eviction and determination of penal rent under The Public Premises (Eviction of Unauthorised Occupants) Act, 1947.;