Shri Mahesh Chand Tyagi vs Delhi Jal Board Govt. Of Nct Through … on 21 August 2006

Delhi High Court
Shri Mahesh Chand Tyagi vs Delhi Jal Board, Govt. Of Nct, Through … on 21 August, 2006
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition, the petitioner has assailed the order of Tribunal dated 18.11.2003 whereby Tribunal has upheld the legality of the order of recovery of Rs. 63,499.86 from the dearness relief payable to the petitioner.

2. Briefly the facts are that petitioner retired from service in September, 1995. He was having a Government accommodation allotted to him which he did not vacate after retirement, despite the fact that he was having his own house in Sarita Vihar. He continued in illegal occupation of the house till 20.5.99 when the house was got vacated in pursuance of an order of Estate Officer. For the period he continued in unauthorized occupation of the house he had not paid any charges for unauthorized occupation of the house. The Assistant Commissioner, Land and Estate of the respondent passed an order dated 19.7.99 seeking recovery of the charges for the period of illegal occupation including the water charges. Total amount assessed as per rule was Rs. 63,499.86.

3. The petitioner raised an industrial dispute before the Tribunal. The Tribunal upheld the legality of order of recovery of this amount from the dearness relief of his pension.

4. The order of Tribunal has been challenged on the ground that there was specific bar under Public Premises (Eviction of Unauthorized Occupants) Act against assessing and recovery of damages pertaining to public premises by any authority and Estate Officer alone was empowered to pass an order of damages. The Tribunal failed to appreciate that the damages could not be assessed unilaterally by the respondent without referring the dispute for assessment to the Estate Officer under Public Premises Act and that no show cause notice was served upon the petitioner under Public Premises Act.

5. A perusal of statement of claim of the petitioner before the Tribunal would show that the petitioner had not raised this issue before the Tribunal and had not claimed that the order was not passed by a competent authority under the Public Premises Act. The petitioner had only taken the stand that he was entitled to retain quarter up to March, 1998 and deduction of Rs. 400/- per month for occupation of quarter by the respondent was illegal and this would force his family to reach at the verge of starvation.

6. It is settled law that the writ petition is an extraordinary remedy and court has discretion not to exercise discretion of writ in favor of persons who are out to play fraud or cheat the public exchequer. The courts in exercise of writ jurisdiction cannot encourage dishonestly and illegality. Keeping the Government quarter by an employee in unauthorized occupation despite the fact that he was having his own accommodation (which he might have given on rent and earning hafty amount) shows dishonest intention of the petitioner. No court can be a party to perpetuation of a fraudulent practice. The petition is liable to the dismissed on this ground alone.

7. In Wazir Chand v. Union of India , a retired employee continuously kept the government quarters occupied unauthorizedly. He was charged penal rent in accordance with rules and after adjustment of dues, balance amount of gratuity was paid to him. He contended that it was the bounden duty of the government not to withhold the gratuity amount. Supreme Court, however, dismissed the appeal observing that it was ‘unable to accept’ the prayer of the appellant. Supreme Court observed that the appellant having unauthorisedly kept the government quarters, was liable to pay penal rent in accordance with rules and there was no illegality in adjusting those dues against gratuity. In Secretary ONGC Limited and Anr. v. V.U. Warrier 2005 SCC (L&S) 676, the employee had not vacated the premises allotted to him by the petitioner despite assurance. Petitioner, out of the gratuity, appropriated a sum towards unauthorized occupancy of the accommodation. This deduction was challenged by the employee. High Court held that the deduction was illegal. On an appeal Supreme Court held that the deduction of the penal rent for the period employee withheld residential accommodation causing loss to the commission was justified. The order of the High Court was set aside. In Jarnail Singh v. Secretary, Ministry of Home Affairs and Ors. , the Supreme Court upheld the adjustment of government dues payable by the appellant against amount of death-cum-retirement benefits payable to him.

8. I find no force in the writ petition. The writ petition is hereby dismissed. No order as to cost.