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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH, 2021 PRESENT THE HON'BLE MR. JUSTICE SATISH CHANDRA SHARMA AND THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY WRIT PETITION NO.5755/2021(S-CAT) BETWEEN T C GUPTA S/O. SHRI GYAN CHAND, AGED ABOUT 65 YEARS R/O S-77, GOLDEN ENCLAVE, OLD AIRPORT ROAD, BANGALORE 560 017
...PETITIONER (BY SRI T.C.GUPTA, PARTY-IN-PERSON) AND 1 . UNION OF INDIA THROUGH THE SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, GOVERNMENT OF INDIA NEW DELHI 110001 2. THE DY. COMMISSIONER OF INCOME TAX (HQ) O/O. THE PR. CCIT, KARNATAKA AND GOA REGION, CR BUILDING, BANGALORE – 560001
...RESPONDENTS (BY SRI S.R.KAMALACHARAN, AGA FOR R2; SRI MADANAN PILLAI, ASG FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO ORDER DATED 02.08.2019 IN O.A.NO.1649/2018 AND ORDER DATED 17.12.2019 IN R.A.NO.63/2019 PASSED BY THE CAT BENCH BANGALORE (T.C.GUPTA VS. UNION OF INDIA AND ORS.) ANNEXURE-A AND B, MAY KINDLY BE QUASHED AND SET ASIDE AND WRIT PETITION MAY KINDLY BE ALLOWED IN TERMS OF PRAYER RAISED.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The present writ petition is filed by the petitioner/party-in-person being aggrieved by the order dated 02.08.2019 passed by the Central Administrative Tribunal in OA No.170/01649/2018 (T.C.Gupta vs. Union of India and another).
The facts of the case reveals that the petitioner before this Court is a retired government servant. He has attained the superannuation on 30.09.2014. Undisputedly, as per the Rules, he was entitled to retain the Government Quarters up to 31.05.2015 on payment of differential licence fee. He made a request to the authorities to permit him to continue for a few days before the term was coming to an end i.e., 31.05.2015. However, on 13.06.2015, his request was turned down by the authorities and he was informed about charging of market rent till the Government Quarter is vacated.
The petitioner/party-in-person before the Tribunal disputed the type of quarter which was allotted to him. His contention was that the Quarter which was allotted to him deserves to be categorized as Type-III However, at the time of allotment it was categorized as Type-V. The Disputed facts also make it very clear that the at the time the Quarter was allotted, the employee in question happily accepted the allotment and the Type of the Quarter also i.e., Type-V and now he is disputing the category of the Quarter that too after his retirement only because penal rent has been levied upon him. The Tribunal, after hearing the parties at length in paragraph-7 as held as under: “We have heard the Learned Counsel for both the parties and perused the materials placed on record in detail. Both the parties have filed their written arguments note. The issue in this case is in a very small compass. The applicant retired on 30.09.2014 and as per rules, he was allowed to retain the staff quarters till 31.05.2015 on payment of differential license fee as prescribed under the rules. The applicant made a request a few days before the deadline i.e.31.05.2015. But the respondents vide letter dtd.13.6.2015(Annexure- R4) have clearly negated the request and have also informed about the charging of market rate of rent till vacation which is 45 times the license fee of Rs.930/- per month fixed for the quarters. Before
4 this communication, the respondents vide Annexure-R2 & R3 have intimated the position that the quarters must be vacated after the retention period of 8 months by 31.05.2015. The applicant was fully aware of the position in this regard and would now claim that the type of quarters he was allotted was less than the type claimed by the respondents and that he was under the impression that his request for retention of quarters was under consideration of the department and therefore he had not vacated it after the retention period of 8 months. As rightly pointed out by the respondents, his questioning the area, eligibility etc. of the quarters at the time of vacation having been in occupation of the quarters and having paid the fixed license fee from the year 2012 is not acceptable. The fixation of license fee was known to the applicant from the time he occupied the quarters and the type of quarter being described as such was also very much within his knowledge from 2012 itself. Only after the department had raised the issue of 45 times the market fee, the applicant had started raising the issue of the type of quarters, absence of common bathroom etc. Having occupied the senior position in the department, it is incumbent on the applicant to act according to the rules especially when he had been very clearly told on the completion of his retention period of 8 months that his request was not acceded to and that 45 times the market rate would be charged on him till he vacates the quarters. Rules are to be made applicable uniformly and the respondents
5 obviously do not have any discretion to act otherwise. Further as seen from Annexure-MA1, the license fee dues arising from the occupation of the Govt. quarters can very well be recovered from the gratuity that is payable to the applicant. Therefore, the respondents had every right to demand the payment of the higher license fee based on the rules and communications which they have consistently issued. This will definitely not come under the ratio of the judgment given in State of Punjab vs. Rafiq Masih(White Washer) in Civil Appeal No.11527/2014 by the Hon’ble Supreme Court since the charges are leviable for the unauthorised occupation of the Govt. quarters as per the rules and in no way connected with any recovery made on the excess payment made to the applicant.” 4. In the considered opinion of this Court, no procedural irregularity has been committed by the Income Tax Department in charging the penal rent.
The petitioner was aware of the Type of Quarter at the time when it was allotted to him. It is an undisputed fact that he has over stayed in the Quarter after his retirement and in those circumstances, recovery has been ordered to the tune of Rs.6,11,770/- by an order dated 26.09.2018. Before the Tribunal, a prayer was made that the recovery be quashed
6 keeping in view the judgment delivered by the Hon’ble Supreme Court in the case of State of Punjab v. Rafiq Masih (White Washer) reported in Civil Appeal No.11527/2014. However, in the considered opinion of this Court, the recovery cannot be quashed keeping in view the aforesaid judgment. The employee in question after his retirement against the statutory provisions continued to remain in the Quarter for which the penal rent is charged. No case for interference is made out in the matter in respect of the order passed by the Tribunal. The admission is declined.
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JUDGE TL