Nitin W. Sambre, J. - (1.) The Petitioner, a former employee of the Respondent-Corporation as questioned the legality and validity of the recovery ordered and initiated against her at the rate of Rs. 8000/- per month from monthly pension payable to her towards the alleged accommodation charges for overstaying in the Corporation premises though she has availed the loan facility for purchase of new home from the RespondentCorporation. The facts as are necessary for the decision of the present Writ Petition are as under: (a) On 28/11/1962, the Petitioner joined with the Respondent no. 1 Municipal Corporation of Greater Mumbai as a clerk and was promoted to the post of Chief Inspector (Enquiry). The Petitioner stood superannuated from the said post w.e.f. 01/01/2002. (b) Since the Petitioner was intending to purchase a row house, applied to the employer i.e. the Respondent no. 1 to grant loan of Rs. 4,50,000/- as she has agreed to purchase row house with M/s. Ram Bedekar Builders bearing row house no. 2 admeasuring 890 sq. meters in "Paranomic View" Scheme, which was consisting of row houses and the flats. The row house which the Petitioner has agreed to purchase was consisting of 3 rooms and a kitchen developed on land Survey no. 163/1A, 164/1B at village Neral by paying 20% of the total cost which was agreed to be 6,00,000/-. Pursuant to the requirement under the land scheme floated by the Respondent no. 1-Corporation with its employees, the Petitioner furnished an undertaking that she will abide by the bylaws issued by the Respondent no. 1- Corporation. Accordingly Respondent no. 1 sanction loan of Rs. 4,20,000/- in favour of the Petitioner based on the said undertaking and a certificate issued by the Builder Mr. Ram Bedekar dated 14/12/1998 disclosing that the Petitioner has entered into an agreement dated 08/10/1998 for purchase of dwelling unit no. 2 for a total cost of Rs. 6,00,000/- and the said project is at the level of completion and is ready for occupation including light and water connection. (c) The Sarpanch of Grampanchayat, Neral within whose local jurisdiction the Petitioner has agreed to purchase the row house vide certificate dated 07/08/002, has certified that the Petitioner is residing in the said row house bearing house no. 1996/2, and the Society and Grampanchayat has no objection for providing electricity connection. On 22/03/2016, the same Grampanchayat has issued certificate in favour of the Petitioner certifying that on 04/01/2003, the Petitioner was granted water connection vide consumer no. 2357. The same builder who also gave a certificate on 14/12/1998 issued another certificate on 11/09/2001 informing that he is not in a position to get completion certificate from the Competent Authority, though the construction of row house no. 2, purchased by the Petitioner is complete, for want of water connection from the local authority. (d) As a sequel of the sanction of the loan amount, amongst other conditions which were required to be completed by the Petitioner, she was to furnish an undertaking that she shall vacate the official quarter provided by the Respondent no. 1 within 3 months. It appears that the Petitioner was granted extension to continue in the official accommodation pursuant to her request dated 14/09/2001, provided she continue to pay three times of the existing rent. She was also called upon to furnish an undertaking to that effect. (e) It appears that the Petitioner has repaid the entire loan amount and applied for release of the original Title Deed in her favour vide communication dated 22/08/2014. It appears that the Respondent no. 1 in response to her aforesaid request of the release of the Title Deed, re-opened the loan file of the Petitioner and formed an opinion that the Petitioner has taken dual benefit i.e. on one hand she continued to stay in official accommodation provided by the Respondent no. 1- Corporation and on other hand, having taken loan at 6.5% concessional interest, for purchase of the row house as referred above, has not vacated the official quarter within time prescribed. As a consequence, it was proposed by the Chief Accountant to order recovery of interest at the rate of 12.50% in addition to interest already levied at 6.25%. The said note-sheet was put up on 04/03/2015 by the Chief Accountant and approved by the Deputy Commissioner on 05/08/2015. As a consequence of above, recovery is effected from the pension payable. The Petitioner feeling aggrieved, preferred this Writ Petition questioning the relevant orders of illegal recovery and for return of title documents.
(2.) In the aforesaid background, the learned counsel for the Petitioner would urge that the impugned communication and action on the part of the Respondent of effecting recovery of amount of Rs. 8000/- per month from the pension payable to the Petitioner towards penal interest is not justifiable. According to him, even though there was a certificate issued by the builder on 14/12/1998 stating that the row house is ready for occupation including the light and water connection, he would urge that subsequent communication issued by the Sarpanch of Grampanchayat on 07/08/2002 granting no objection for issuance of electric connection and she having been allotted water connection on 04/06/2003 are completely ignored. According to the learned counsel, the said builder on 11/09/2001 in categorical terms has stated that completion certificate is not issued by the Competent Authority for want of water connection from the local authority, though construction is completed. The learned counsel then would submits that the present Petitioner has not taken any undue benefit of the premises which is purchased by her by giving the same on rent and still continued in the possession of the official accommodation. According to him, there is no material on the record to infer any such act on the part of the Petitioner but for only contradictory statement made by the builder in his communications. He would try to justify the communication/certificate of completion issued by the builder as necessary requirement for getting the loan amount disbursed. The learned counsel then would urge that the Respondent knowing fully well that the actual possession of the new premises were not with the Petitioner, has accepted the request of the Petitioner to continue her to occupy the official accommodation that too upon payment of penal rent. The learned counsel then would urge that admittedly the present Petitioner has repaid the entire loan amount as per schedule and it is after delayed period of more than 13 years, recovery is sought to be effected against the present Petitioner without any authority of law. According to him, the Circular issued by the Respondent no. 1 cannot be operated with retrospective effect, in absence of any express provision to that effect. The learned counsel for the Petitioner then would urge that assuming without admitting that there is lawful claim of the Respondent Corporation to effect recovery, the said claim is barred by limitation. According to the learned counsel for the Petitioner, the Petition needs to be allowed in terms of the prayer clauses.
(3.) Per contra the learned counsel for the Respondent-Corporation would strenuously urge that the Petitioner is bound by the terms of the undertaking executed while taking benefit of the loan. He would draw support from the terms of the undertaking dated 17/12/1998, in addition to the certificate issued by the builder Ram Bedekar on 14/12/1998 wherein it was certified that the row house which was purchased by the Petitioner is complete in all respects and ready for occupation including light and water connection. According to the learned counsel for the Respondent, the Petitioner has tried to take benefit of her own wrong and has not occupied the premises purchased by her which were ready in 1998 till her date of superannuation and thereafter. He would then invite attention of this Court to the conditions of the scheme of loan so as to claim that once the Petitioner has got possession of the premises purchased by her, she was not entitled to continue in the official residence.;