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Judgment
Jasmine Ahmed, J
OA 3373/2013 and OA 3455/2013 are based on same facts and, therefore, they are disposed of by this common order.
Facts of the cases being fully admitted, the same call for no debate. What is to be decided is the legal issue and remedy there for.
The applicants herein are permanent employees of Government of India Press located at Faridabad, Haryana. They are occupants of residential accommodation allotted to them under the departmental pool. The accommodation admittedly is of 1950-1960 vintage (as per averment in para 4.3 of the OA), which has not been rebutted in the corresponding para of the counter. It is stated that buildings are in such a shape and state that even in the words of the respondents "the accommodation are quite old and need major special repair and upgradation". It is further stated that within the enhanced rate of HRA which is surrendered to the government in the event of allotment and with the periodical increase in the licence fee for such government accommodation, the government realized its constitutional commitment to provide decent accommodation to its employees and in this regard, the extent of facilities to be made available to the government servants, the government has issued OM No.11014/1/2008/W-3 dated 14.03.2008, which contains the number of amenities to be made available as per Annexure 1 to that OM, and the same has to be done through the nodal ministry i.e. Ministry of Urban Development and the Central Public Works Department (CPWD).
It is, however, contended by the learned counsel for the applicant that irrespective of the provisions in the aforementioned OM for providing facilities, the applicants are deprived of such facilities and in this regard they have preferred many representations right from 2008 till the date of filing of the O.A., but no action has been taken by the respondents except the submission that "efforts are being made by the CPWD to provide the prescribed facilities as per OM No. 1104/1/2008/W-3 dated 14.03.2008 but due to shortage of funds no such upgradation/ special repair could be done except routine maintenance work of quarters." The claim of the applicants in the relief clause of the O.A. is that order dated 28.04.2011 relating to enhanced rate of licence fee effective from 01.07.2010 and its attendant office circular dated 13.08.2013 should be quashed and set aside and that the respondents be directed to ensure the basic prescribed facilities as per the letter dated 14.03.2008.
Save the customary and conventional objections of innocuous character, as already stated, the facts have all been admitted by the respondents. Arguments were advanced by the counsel for the parties, when the counsel for the applicants has made available a few photographs of the existing condition of the accommodation in which the applicants and their families were living, counsel for the respondents submitted that due to paucity of funds save the normal maintenance no other work of substantial nature could be carried out in the buildings allotted to and occupied by the applicants.
The fair submission by the respondents of the need for major and special repair and upgradation to the old buildings allotted to the applicants and the unhesitating submissions of the counsel for the respondents which goes in tandem to the admission by the respondents does deserve appreciation. With regard to legal issue, it has been contended by the counsel for the applicant that the increase in the licence fee becomes payable only when the requisite amenities as provided for in the order dated 04.03.2008 are made available and in the event of such amenities, not being made available, the applicants are not in a legal obligation to pay the higher rate of licence fee. The counsel invited the attention of this Tribunal to Rule 45 A of the S.R. and contended that the same confirms the fact that the licence fee is commensurate with the value of the building as per constructions cost including the attendant amenities and the present value of the building. As such, in the case of the applicants there being no such amenities provided for, as per law, the applicants are not obliged to pay the revised rate of licence fee. The counsel for the respondents has not denied that fact that the houses are in a very dilapidated state warranting substantial work to keep the accommodation in a habitable state. This point has also not been denied by the counsel for the respondents. It is apposite to refer to the words of the Apex Court in the case of D.P. Chadha Vs. Triyugi Narain Mishra, 2001 (2) SCC 221 which are as under :-
"26. A lawyer must not hesitate in telling the court the correct position of law when it is undisputed and admits of no exception. A view of the law settled by the ruling of a superior court or a binding precedent even if it does not serve the cause of his client, must be brought to the notice of Court unhesitatingly. This obligation of a counsel flows from the confidence reposed by the Court in the counsel appearing for any of the two sides. A counsel, being an officer of court, shall apprise the judge with the correct position of law whether for or against either party."
The reply given by the respondents to para 9 of the grounds reads as follows:
"Even though these quarters are quite older but they are maintained by CPWD regularly and their License Fees is being regularly raised accordingly by the Competent Authority as per rules."
The respondents have also stated in their counter that the licence fee is fixed as per covered area of the quarters and not by the age of accommodation and that they have to abide by the orders/ OM issued by the Directorate of Estates, New Delhi for charging the licence fee on revised rates from 1.07.2010, 1.07.2013 and 1.07.2017. In their reply to the grounds in para 11, the respondents have stated that they have already out listed the quarters not in condition of living in consultation with CPWD. With regard to the quarters/buildings in which applicants are residing, no such orders of CPWD have been received till date that the building has outlived its life. CPWD undertakes all repairs, white wash etc., supply of water, repair of electric installations by their staff under the supervision of engineers of different levels viz. JE, AE and Exe. Engineer and accordingly the licence fee is being charged as per the orders of Directorate of Estates, New Delhi from the Press Pool Quarters from other Presses located in various parts of the country. It is also stated that the Directorate of Estates, New Delhi is the competent authority to calculate the rates of licence fee in respect of quarters of this Press which are being implemented from time to time as per their OM. The rate of licence fee are applicable on all general pool as well as departmental pool accommodation without discrimination. The learned counsel for the respondents further stated that all the quarters which were declared non-livable have not been allotted to any employee.
The applicants herein have prayed for the relief that the impugned order dated 28.04.2011 which speaks about enhanced rate of licence fee effective from 1.07.2010 be quashed. Para 2 of the OM dated 28.04.2011 reads as under:
"2. The revised rates of the licence fee would be effective from 1st July 2010. All the Ministries/ departments are requested to take action to recover the revised licence fee in accordance with these orders in respect of accommodation under their control all over the country."
He also contended that Rule 45 A - II of Fundamental Rules reads as under:-
"F.R.45-A II. For the purpose of the assessment of license fee, the capital cost of a residence owned by Government shall include the cost or value of sanitary, water supply and electric installations and fittings; and shall be either -
(a) the cost of acquiring or constructing the residence including the cost of site and its preparation and any capital expenditure incurred after acquisition or construction; or, when this is not known,
(b) the present value of the residence, including the value of the site.
NOTE.- The cost of restoration or special repairs shall not be added to capital cost of present value, unless such restoration or repairs add to accommodation or involve replacement of the existing type of work by work of a more expensive character.
Provided that -
(i) the Central Government may make rules providing the manner in which the present value of residence shall be determined;
(ii) the Central Government may make rules determining what expenditure is to be regarded, for the purpose of sub-clause (a) above, as expenditure upon the preparation of a site;
(iii) the Central Government may, for reasons which should be recorded, authorize a revaluation of all residences of a specified class or classes within a specified area to be conducted under the rules referred to in proviso (i) above, and may revise the capital cost of any or all such residences on the basis of such revaluation;
(iv) the capital costs, howsoever calculated, shall not take into consideration (1) any charges on account of establishment and tools and plant other than such as were actually charged direct to the work in cases in which the residence was constructed by Government, or (2) in other cases, the estimated amount of such charges;
(v) the Central Government may, for reasons which should be recorded, write off a specified portion of the capital cost of a residence -
(1) when a portion of the residence must be set aside, by the officer to whom the residence is allotted, for the reception of official and non-official visitors visiting him on business, or
(2) when it is satisfied that the capital cost, as determined under the above rules, would be greatly in excess of the proper value of the accommodation provided;
(vi) in assessing the cost or value of the sanitary, water supply and electric installations and fittings, the Central Government may by rules determine what are to be regarded as fittings for this purpose."
Rule 45 A-III (b) provides the formula for calculation of licence fee, which is as under:
"45 A-III(b) in the case of residences owned by Government, the standard licence fee shall be calculated on the capital cost of the residence, and shall be either -
(i) a percentage of such capital cost equal to such rate of interest as may from time to time be fixed by the President plus an addition for municipal and other taxes in the nature of house or property tax payable by Government in respect of the residence and for both ordinary and special maintenance and repairs, such addition being determined under rules which the Central Government may make, or
(ii) 6 per cent per annum of such capital cost, whichever is less."
Rule 45 A-IV(c)(ii) which is relevant for the purpose of this case reads as under:
"IV. When Government supplies an officer with a residence leased or requisitioned or owned by Government, the following conditions shall be observed:-
(a) xxxx xxxx xxxx
(b) xxxx xxxx xxxx
(c) Notwithstanding anything contained in sub-clause (b) above, the Central Government may -
(i) xxxx xxxx xxxx
(ii) prescribe flat rate of monthly licence fee applicable throughout the country based on the cost of construction and plinth area, living area of the type of accommodation allotted to the employees, subject to the condition that the amount taken from any officer shall not exceed 10 per cent of his monthly emoluments."
The above rules clearly bring out the intimate link between the nature of accommodation and the licence fee. It is trite that rate of licence fee is identical in respect of identical type of accommodation situated in any particular locality, the amenities available therein, and, there is an inherent condition that the accommodations are to be duly maintained and also special repairs conducted, though the cost of these do not constitute the cost of accommodation for the purpose of assessment of licence fee. Right to recover by the respondents the licence fee from the government servants for the accommodation allotted to them is inextricably interdigited with the responsibility to keep the accommodation duly and properly maintained and in the instant case, it is admitted fact that the condition of the accommodation is pitiable and precarious.
The Rules of accommodation clearly stipulate that the scale of accommodation allotted to a government servant shall be appropriate to the status of the occupant [Fundamental Rule 45 A-(IV) (a)]. The Hon'ble Apex Court in Roshan Lal Tandon, 1968 (1) SCR 185 has held as under :-
"....The legal position of a Govt. servant is more one of status than of contract. The hallmark of status is the attachment to a legal relationship of rights and duties purposed by the public law and not by mere agreement of the parties."
It is thus imperative that the respondents ensure that the accommodation allotted to the government servant for which licence fee is recovered from him matches with the status of the individual and is commensurate with the extent of licence fee.
Though the respondents at one place in the counter have stated that quarters declared non livable have not been allotted to any government employees, in so far as the accommodation allotted to the applicants, they have not certified that the same is in a livable condition. Rather, there has been a pure admission of fact by the respondents (which admission is comparable to that referred to in Order XII, Rule 6 of the CPC, which provides even for a consent decree). And herein the nature of admission of the fact by the respondents is such as has been specified by the Hon'ble Apex Court in the case of Jeevan Diesels & Electrical Ltd Vs. Jasbir Singh Chadha, (2010) 6 SCC 601 :-
"This Court on a detailed consideration of the provisions of Order 12 Rule 6 made it clear "wherever there is a clear admission of facts in the face of which it is impossible for the party making such admission to succeed" the principle will apply."
A glimpse at the photographs supplied by the counsel for the applicant would shock and shake the conscience of any dispassionate person to think as to how the applicants and their families are made to reside in such a dilapidated quarters.
Learned counsel for the applicants states that the impugned order dated 28.04.2011 speaks about the revised licence fee all over the country without taking into account the condition of the quarters and also without ensuring the basic prescribed facilities which should be provided to the occupants of the quarters. He has placed before this Court various photographs showing the dilapidated condition of quarters in which the employees are forced to live. He contended that the photographs produced itself speak of volumes about the real condition of quarters allotted to the employees. He stated that even the life of the family members of the occupants of these flats has become vulnerable because of poor maintenance of the quarters. The learned counsel for the applicants argued that if the occupants of the quarters are not provided basic necessary amenities, they are not under any legal obligation to pay higher licence fee.
The learned counsel for the respondents in a very fair manner accepted/ agreed that the quarters are in a very dilapidated state warranting substantial repair work to make them in a habitable condition. It is the only contention of the learned counsel for the respondents that lack of funds is the impediment before the respondents for doing the proper repair work and that they are bound by the OMs issued from time to time for enhancement of licence fee, which is applicable all over the country.
Heard the rival contentions of the parties and perused the pleadings available on record.
It is seen that the main contention about the dilapidated condition of the quarters has not been controverted but very fairly accepted by the respondents. They themselves have agreed that the quarters are quite old and require substantial repair work but they are unable to undertake the repair only because of lack of funds. The photographs shown in the Court do not give any scope, even of imagination, that the quarters are of livable condition. It is these circumstances under which the applicants herein are having concern about the security of their family members. It is also to be taken into account that the respondents, without providing the basic amenities required to make the quarters habitable, are taking the plea of shortage of funds and are increasing the licence fee, that also to be effective from 1.07.2010. The prayer of the applicants herein is that without providing the basic amenities, the respondents are not entitled to increase the licence fee, that too with retrospective effect from 1.07.2010.
Learned counsel for the applicants has also taken the plea that the respondents have failed to appreciate that the quarters in which the applicants are living are not in a habitable state and that the enhanced licence fee cannot be imposed on those who are not enjoying any basic amenities to which they are entitled to. Thus, the increase in licence fee all over the country without taking into consideration the state of the quarters allotted to the employees is discriminatory, arbitrary and illegal. The applicants have prayed that the respondents be directed to ensure the basic prescribed facilities as per their own letter dated 14.03.2008 before enhancing the licence fee.
After seeing the photographs produced, I have no doubts in my mind that the applicants herein are living in quarters which need immediate care and attention otherwise the lives of the applicants as well as their family members is highly vulnerable. The respondents, as a welfare State, are duty bound to act in real sense as right to life is guaranteed under the Constitution and the photographs shown by the learned counsel for the applicants, by no stretch of imagination, depict that the applicants are living in those quarters along with their family members in a respectable condition.
Therefore, in the interest of justice, the respondents are directed not to take enhanced licence fee from the applicants until and unless they provide them repaired/ renovated/ livable quarters. Accordingly, the respondents are directed not to give effect to the impugned orders dated 28.04.2011 and 13.08.2013 qua the applicants. They are further directed either to repair/ renovate the quarters allotted to the applicants herein or to allow them to vacate the quarters and stay in their own arranged accommodation. There shall be no recovery at the enhanced rates from July, 2010 in respect of the accommodation occupied by the applicants and it shall be at the old rates that the licence fee shall be charged. Any amount in excess of the pre-July, 2010 recovered, shall be refunded to the applicants. In so far as the special repair and maintenance are concerned, respondent no. 1 which is the Administrative Controller both for the other respondents as also for the CPWD is directed to cause instructions issued to the authorities concerned under him in the CPWD wing to forthwith in respect of all the accommodations occupied by the applicants and under the supervision of the Chief Engineer in charge of the area in which the accommodations are situate, necessary repair work shall be carried out and completed within a period of six months from the date of receipt of a certified copy of this order.
Registry is directed to forward a copy of this order together with all the photographs produced by the applicants to the Secretary, Ministry of Urban Development, Nirman Bhawan, New Delhi to enable him to have an idea of the ground reality and the pathetic condition of the building so as to pass suitable orders to the officers under him in the CPWD for strict compliance of this order.
The applicants in their relief column have also prayed for such other relief as may be deemed fit in the facts and circumstances of the case. Though the applicants deserve cost of this litigation and the same could be levied against the respondents but the sober submissions made in the courter plainly admitting the facts and the endorsement of the same echoed by the counsel for the respondents at the time of argument, dissuade me from levying any cost. With the above directions, the OAs are disposed of.