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Judgment
Nitin W. Sambre, J
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 Respondent-Corporation. The facts as are
necessary for the decision of the present Writ Petition are as under:
(a)Â 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)Â 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)Â 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)Â 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)Â 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.
2Â 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.
3Â 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.
4Â So as to draw support to justify the recovery of the amount, the leaned counsel relied upon the Award delivered which according to the
Respondent is binding on the Petitioner. The learned counsel for the Respondent then would urge that already substantial amount is recovered from
the Petitioner and if this Court interferes at the present stage, the same will have an impact over the similar decision taken by the Respondent-1-
Corporation about other Ex-employees who are similarly placed like the Petitioner. The learned counsel has sought dismissal of the Petition.
5Â Considered rival submissions.
6 Apart from questioning the communication dated 20/06/2015 at Exhibit ‘K’ and 25/08/2015 Exhibit ‘A’, a prayer is made by the
Petitioner for injuncting the Respondent from recovery of amount of Rs. 8000/- per month from the pension amount, mandatory direction to return
already deducted amount with interest at the rate of 18.75%. A prayer is also made for removal of the charge over the property of the Petitioner with
directions to return the original Title Deed.
7Â In the aforesaid background, if the submissions made are analyzed, it can be noticed that on 17/12/1998, the Petitioner has furnished an
undertaking based on which an amount of Rs. 4,05,000/- out of sanctioned amount of Rs. 4,50,000/- was ordered to be released in favour of builder
upon request of the Petitioner.
8Â The basis for release of the first installment of Rs. 4,05,000/- out of the loan amount of Rs. 4,50,000/- is the 100% completion of the project, and
not the possession being taken over by the Petitioner of the said premises. Though vide certificate dated 14/12/1998 issued by the builder Mr. Ram
Bedekar, the row house that was purchased by the Petitioner was certified to be complete and ready for occupation including light and water
connection, however, same does not speak of possession being taken/handed over to the Petitioner. The said builder sought of clarificatory certificate
on 11/09/2001 stating that he is not in a position to get completion certificate, though construction of the row house purchased by the Petitioner is
complete in all respects. He has clarified that there is no water connection provided and the said fact is justified from the certificate issued by the
Sarpanch, Grampanchayat of Neral on 07/08/2002 thereby issuing no objection in favour of the Petitioner for getting electricity connection, and also
another certificate dated 22/03/2016 certifying that the Petitioner was granted water connection on 04/06/2003 vide consumer no. 2357.
9Â These certificates issued by the Grampanchayat about water and electricity connections and the certificate issued by the builder on 11/09/2001 in
categorical terms justifies the case of the Petitioner that though the construction was complete, water and electricity connection was not provided to
the row house. Even none of the documents in categorical terms speaks of possession of the row house was handed over to the Petitioner in 1998 or
till her retirement.
10Â The subsequent communications as could be noticed from the record issued by the Assistant Commissioner in categorical terms speaks of
extension of 6 months granted in favour of the Petitioner to continue to occupy the official accommodation. However, the same was at penal rent and
condition to furnish the undertaking to vacate the said premises.
11Â The staff quarter which is claimed to have been occupied by the Petitioner which is allotted to her on 13/04/1996 and her application for loan for
purchase of row house in question was on 16/12/1998. It was well within the knowledge of the Respondent no. 1 that on the date of disbursement of
the amount of loan, she has not produced the completion certificate, therefore, out of the total sanction amount of Rs. 4,50,000/-, 90% amount of loan
i.e. 4,05,000/- was released. The aforesaid observations are justified in view of the contents of the affidavit of the Respondent particularly in
paragraph 4 in the affidavit dated 17/10/2016. As such, the observations of this Court that though the project was completed, completion certificate
was not produced on the record of the Respondent Corporation so also Occupancy Certificate, was well within the knowledge of the Respondent.
Inspite of same, the Respondent has proceeded to treat the case of the Petitioner of dual benefits i.e. of continuing her accommodation in the official
premises and also purchasing row house out of loan amount. It is then to be noted that on having superannuated on 01/01/2002, the Petitioner has duly
satisfied all the liabilities of repayment of loan amount and applied for releasing title document in her favour on 22/08/2014. While examining her
request on 22/08/2014 of return of Title Deed, the Respondent Corporation noticed that the Petitioner has vacated the staff quarter on 30/09/2002. As
such, the Respondent formed an incorrect and unjustifiable opinion of the Petitioner having drawn double benefit as claimed above. It is also claimed
by the Respondent in their affidavit that the loan amount was made available to the Petitioner at concessional rate and she should have vacated the
staff quarter and shifted to the row house as and when she got possession of the same. The fact remains that it is neither the case of the Petitioner
that she got the possession of the row house in 1998 or thereafter till she continued in the possession of the staff quarter nor the Respondent in any
case has established the same that the Petitioner has taken possession of the row house. Rather the evidence on record justifies the claim of the
Petitioner that the electricity and water connection was provided to the row house in the year 2003 and not in 1998 as claimed.
12Â As a consequence, it cannot be inferred from the record that the Petitioner illegally has availed the benefit of loan so also the accommodation in
the staff quarter at the same time.
13Â The Respondent though has tried to rely upon the alleged Award in the matter of Arbitration under Section 10 (A) of the Industrial Disputes Act,
the said Award appears to have been delivered on 17/06/1997 and claimed to have been binding on the Petitioner. It is also claimed by the Respondent
that the contents of the said Award has prompted the Respondent-Corporation to issue Circular dated 22/12/2014.
14Â If the contents of the Award and the Circular dated 22/12/2014 are appreciated, it is difficult to accept that the Circular is based on the contents
of the said Arbitration Award. Apart from above, by Circular dated 22/12/2014 whereby earlier Circulars in regard to terms and conditions sanction
disbursement and recovery of loan as provided under Circular dated 18/03/1986, 17/08/1989, 28/10/1997 and 08/11/2011 claimed to have been
cancelled. The Respondent-Corporation has framed fresh terms and conditions on which the employees like the Petitioners were granted benefit of
loan. Not only this, it is in categorical terms stated that the earlier loan scheme which provides for loan to the extent of 80% i.e. amount of Rs. 4.5
Lakhs at the rate of interest of 6.25 came to be discontinued on 01/04/1999 i.e. after the date of which the present Petitioner was sanctioned and
disbursed loan i.e. on 18/02/1999, as is apparent from Exhibit ‘B’ to the present Petition.
15Â The alleged Arbitration Award of 1997 which is relied upon by the Respondent does not govern the case of the Petitioner as is sought to be
claimed by the Respondent particularly when the Petitioner cannot be blamed in any manner whatsoever for not getting the possession of the Suit
premises. Rather the Respondents have no justification particularly from the contents of the Award or the contents of the Circular dated 22/12/2014 to
claim that the Petitioner has opted or enjoyed the double benefit viz. occupying the staff quarter and also taking loan and not shifting in the said
premises. At the cost of repetition, it is observed that Respondent-Corporation has lost sight of an important fact that the possession of the row house
purchased by the Petitioner, pursuant to the disbursement of loan in February 1999, was not received by the Petitioner till 2002 i.e. her superannuation.
There was no possession receipt of the said row house placed on the record of the Respondent Corporation or demanded by the Corporation.
16Â The Occupancy Certificate as defined in clause (zf) of Real Estate (Regulation and Development) Act, 2016 provides and means:
“""occupancy certificate"" means the occupancy certificate, or such other certificate by whatever name called, issued by the competent authority
permitting occupation of any building, as provided under local laws, which has provision for civic infrastructure such as water, sanitation and
electricityâ€.
In general terms, Occupancy Certificate can also be viewed as a document issued by the Competent Authority authorized in law upon completion of
construction of a project which can be used as proof certifying that the project was built by adhering to the applicable Building Codes, relevant
Regulations and Laws. One of the object of issuance of Occupancy Certificate appears to be to ensure that there is compliance of all Local Laws. It
is also issued with an intention to certify that a building which is constructed is ready to be occupied.
17Â It can be inferred from the certificate issued by the builder, Sarpanch of Neral Grampanchayat that at no point of time, there was no Occupancy
Certificate in favour of the builder or the Petitioner so as to infer the possession was taken over by the Petitioner of the row house before she vacates
the staff quarter upon her superannuation. The fact remains that the builder has in categorical terms stated that he is unable to produce completion
certificate which fact was also within the knowledge of the Respondents as is reflected in the affidavit and also the disbursement certificate wherein
only 90% of the loan amount was disbursed in favour of the Petitioner. As such it cannot be inferred that the Petitioner in any manner whatsoever has
taken the illegal benefit as claimed by the Respondent.
18Â The penal cost as sought to be recovered from the Petitioner is based on the amount of loan that was disbursed, and repaid by the Petitioner well
within time. The recovery of the penal cost is sought to be made after period of more than 10 years without any justifiable reasons. As observed
herein above the recovery was not justified as the Petitioner has not taken dual benefit as claimed by the Respondent. The recovery of the amount
without any authority is sought to be made in the present case against the Petitioner wherein there is time barred claim.
Just because the Petitioner is receiving pension that ifso facto does not entitle the Respondent to start recovery of the amount which in law they are
not entitled to. Least that can be observed is the impugned decision of the Respondent is an high-handed act and same is inn colourable exercise of the
powers.
19Â The Apex Court had an occasion to consider the recovery of amount from an employee by an employer in the matter of State of Punjab and
others Vs. Rafiq Masih (White Washer) and others [(2015) 4 supreme Court Cases 334] particularly paragraph18 which reads thus:
“18 It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have
mistakenly been made by the employer, in excess of their enti-tlement. Be that as it may, based on the decisions referred to herein above, we may, as
a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermis-sible in law:
(i)Â Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii)Â Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii)Â Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recov-ery is
issued.
(iv)Â Recovery in cases where an employee has wrongfully been re-quired to discharge duties of a higher post, and has been paid ac-cordingly, even
though he should have rightfully been required to work against an inferior post.
(v)Â In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary
to such an extent, as would far outweigh the equitable balance of the employer's right to recover.â€
20Â Apart from above, it is required to be observed that the Circular of 22/12/2014 issued in supersession to all earlier four Circulars of 1986 to 2011
is given prospective effect and it is nowhere provided that the same will have retro-spective operation. Apart from above, the earlier scheme vide
which the Petitioner has taken loan was discontinued from 01/04/1999.
21Â There is one more justifiable reason which in our opinion warrants interfer-ence in favour of the Petitioner as it is an admitted position that the
Petitioner has vacated the staff quarter on 30/09/2002 before which the Petitioner was permitted to continue the possession of the staff quarter and
penal rent was recovered from her. It was well within the knowledge of the Respondent as is apparent from the note-sheet dated 09/10/2015 signed
by Deputy and Chief Officer (Enquiry) that the Petitioner has taken possession of the row house as is reflected in the affidavit of October 2002 and
that being so, it will not be justifiable to order recovery of the amount un-der the Circular dated 22/12/2014.
22Â For all the aforesaid reasons, in our opinion, the claim put forth by the Peti-tioner needs to be allowed in terms of prayer clauses (a) (b) (c) and
(d). It is clari-fied that the Respondent no. 1 shall refund the amount so deducted from the pension of the Petitioner with 9% interest and so also return
the Title and other documents of the Petitioner within period of six weeks from the date of delivery of this Judg-ment.
23Â It shall be the responsibility of the learned counsel for the Respondent-Corporation to forthwith bring this copy of the Judgment to the notice of
the Com-missioner of Respondent no. 1-Corporation who we expect will see to it that the same is complied with.
24Â It is not in dispute that the Petitioner is a lady who is also a senior citizen having attained age around 75 years has been put to tremendous
hardships because of the arbitrary and unreasonable exercise of powers by the Respondent Corpora-tion, particularly by deducting the amount of Rs.
8000/- per month from her pension amount which appears to be the only source of income. This Court was inclined to saddle exemplary cost but we
refrain ourselves from doing so, however it will be appropriate to warn the Respondent Corporation to desist from taking recourse to such drastic act
of illegally deducting the amount that too without any authority of law from the pension payable to the employees, particularly the senior citizens.
25Â The Writ Petition is disposed of.