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Judgment
M. Thanikachalam, J.—The revision petitioner, unable to sustain the order of eviction passed against the respondent, under the Public
Premises (Eviction of unauthorised Occupants) Act, hereinafter called ''the Act'', has filed this revision petition.
The respondent, by name Thiru Manuneedhicholan was working as Deputy Director (Inspection), Office of the Regional Director, Department
of Company Affairs at Chennai. On his request, when he was the Assistant Registrar, the quarters bearing door No.F-6 Type-IV, Bazullah Road,
T. Nagar, Chennai - 600 017, was allotted to him, as per the order dated 4.3.1992. On 27.9.1996, the respondent was transferred out of
Chennai and in view of the same, the license granted to the respondent, for the occupation of the premises was terminated, as per the rules, on
27.11.1996. Thereafter, on his representation, that his children are studying and he is entitled to retain the quarters, till the academic year, the
respondent was permitted to retain the premises, on educational grounds, for six months, which period came to an end on 27.5.1997. Even after
the expiry of the said period, the respondent did not vacate the premises and therefore, he was treated and labeled as ""unauthorised occupant"" and
on that basis, eviction proceedings were initiated u/s 5 of the Act. The respondent, who had been transferred to Mumbai, went on study leave,
with effect from 1.8.1997 to 31.7.1998. The authorities concerned, having granted study leave, fixed his head quarters at Chennai. When he was
on study leave, his request for regularisation of the quarters was negatived. Thereafter, he was transferred to Madras and continued to occupy the
quarters without authorisation. Under the above said circumstances, labeling this respondent as ""unauthorised occupant"", an eviction order came to
be passed.
Aggrieved by the order of the eviction, the respondent preferred an appeal to the Principal Judge, Chennai. The eviction order originally passed
was set aside and the matter was remanded for fresh hearing.
As per the direction of the Principal Judge, Chennai, de novo proceedings were initiated and finally, the Estate Officer passed an order of
eviction u/s 5 of the Act on 20.10.1999, treating the respondent as ""unauthorised occupant"", directing him to pay damages of Rs.4672/- per
month, with further directions to pay the arrears up to 31.5.2002 amounting to Rs.1,55,640/-, and to refund the wrongful drawl of H.R.A. from
23.9.1997 to 30.11.1997 and from March 1998 to 8.12.1998. The respondent aggrieved by the eviction order dated 20.10.1999, challenged the
same in C.M.A.No.182/99 before the Principal Judge, Chennai, which was allowed on the ground, that a Government Servant transferred during
the middle of the academic year, is entitled to retain the accommodation, till the end of the academic year and therefore, the respondent cannot be
evicted, further observing that the HRA drawn against the rules, could be recovered by the head of the department, by taking appropriate action,
to recover the same, which is under challenge in this revision.
Heard the learned Additional Solicitor General, Mr. V.T. Gopalan appearing for the revision petitioner and the learned counsel for the
respondent, Mr. K. Moorthy.
The learned Addl. Solicitor General submits, that the occupation of the premises by the respondent, after the permission granted up to
27.5.1997, on educational ground, is an unauthorised one and in this view, he is liable to be evicted under the Act, which was done by the officer
concerned legally, based upon the rulings of the Apex Court, which is unnecessarily disturbed by the learned Principal Judge, Chennai and in this
view, it requires setting aside, restoring the order of eviction.
The learned counsel for the respondent opposing the above submission would contend, that the respondent was permitted to occupy the
quarters on educational grounds and thereafter, when his head quarters was fixed during the study leave at Madras, he was allowed to occupy the
quarters in that capacity at Madras, which is in a way should be construed as authorised occupation. He would further submit, that by the conduct
of the petitioner, in collecting the market rate of rent and thereafter, allowing the petitioner to occupy the premises, till he is once again transferred
to Chennai, the respondent is entitled to retain the quarters, which cannot be branded as ""illegal occupation"" or ""unauthorised occupation"", as the
case may be, and in this view, the order of eviction passed by the Estate Officer, labeling the respondent as ""unauthorised occupant"", has no legal
base to stand, which order was properly and legally set aside, which requires confirmation. To appreciate the rival contentions of the parties, in
addition to the facts set out supra, we have to remember, some more facts also.
The facts beyond dispute are, that the respondent was allotted Government quarters No.F-6 Type IV on 4.3.1992, that he was transferred
from Chennai on 31.5.1994, that the petitioner cancelled the allotment on 31.7.1994, that the respondent was retransferred to Chennai on
24.10.1995 and once again his allotment was regularised on 24.10.1995. Thereafter, when the respondent was transferred to Mumbai on
27.9.1996, giving two months time, for vacating the premises, the allotment was cancelled on 27.11.1996 i.e. during the middle of the academic
year. On the basis that his children are studying, the respondent sought permission to retain the quarters on educational grounds, which was
allowed up to 27.5.1997. Up to this point, there is no dispute. Therefore, in the ordinary course, after 27.5.1997, the respondent ought to have
vacated the premises, which he did not do so.
After the transfer, the respondent applied study leave and the same was granted from 1.8.1997 to 31.7.1998. In the order, the Head Quarters
of the respondent is fixed at Chennai. During that period, on 16.10.1997, the respondent submitted a representation for regularisation, which was
rejected on 22.10.1997. Therefore, though the respondent was permitted to pursue his studies, staying at Chennai, his occupation of the quarters,
which came to an end legally on 27.5.1997, has not been subsequently regularised, which would indicate, from the said date onwards, he is in
occupation of the quarters, as ""unauthorised occupant"", coming within the meaning of the Act. Though the previous order of eviction was set aside,
as mandated by the learned Principal Judge, Chennai, de novo proceedings were initiated and fresh eviction order was passed on 26.10.1999.
Reliance is placed very much upon the policy guidelines of the Government of India in O.M. dated 24.10.1985, which says an occupant is not
entitled to regularisation of accommodation on account of his retransfer to the original place, as his case is not covered under the policy guidelines
of Government of India and in such cases, the officer will have to secure allotment in the normal course after the accommodation in the
unauthorised occupation is vacated and he has cleared all the arrears. This respondent has failed to clear all the arrears and he went to the extent of
drawing H.R.A. also from the place where he was transferred, ignoring the fact that he is retaining the quarters, whether it is authorised or
unauthorised, as the case may be.
The contention of the learned counsel for the respondent, that his occupation is deemed to have been authorised or regularised, appears to be
unsound, not based on legal principles supported by facts. The respondent knew fully well that after his transfer from Chennai to elsewhere, he is
not entitled to retain the quarters, after the grace period and even in the case of retransfer, he has to apply for allotment subject to conditions
stipulated in the policy guideline of the Government of India in O.M. dated 24.10.1985, which is recognised by the Apex Court in Shiv Sagar
Tiwari Vs. Union of India and others, , wherein it is observed that nobody, not even a Minister, can be allowed to depart from the policy. Realising
this, he had applied for regularisation, which was rejected and in this view, he comes squarely within the meaning of ""unauthorised occupant"" and
such a person is not entitled to retain the quarters, as a matter of right. The fact that he was transferred once again to Madras or the fact that he
was permitted to pursue his higher studies, having residence at Madras, will not give an automatic relief or presumption that his occupation is an
authorised one, unless it is authorised so, on the basis of the policy guideline, which is not done in this case, admittedly. In this view of the matter,
the deemed regularisation or the respondent retaining the quarters by some way or other, will not bring the respondent within the meaning of
authorised occupant"". Therefore, I am of the view that the Estate Officer is justified in ordering eviction u/s 5 of the Act. But unfortunately, the
learned Principal Judge without going into the matter, whether the respondent comes within the meaning of ""unauthorised occupant"" or not, as
rightly submitted by the learned Addl. Central Govt. Standing Counsel, under the presumption that he is entitled to retain the quarters, which
contravenes the Policy Guideline of the Government of India, set aside the same, which appears to be not legal and sound, warranting interference
by this Court.
As rightly submitted by the learned Additional Solicitor General, if the respondent had been transferred within the period permitted, and sought
permission for retention of accommodation as permissible under the rules, then he has to be allowed such retention. In this case, the respondent
had occupied the quarters where he was transferred and admittedly, he has not been retransferred to Madras from outside within the grace period
or within the period, he was permitted to occupy the quarters under the policy. On the other hand, the respondent was retransferred to Chennai,
after expiry of 15 months from 27.5.1997 and therefore, in view of the fact that he has not been posted back to Chennai within the period of
retention allowed to him i.e. 27.5.1997, certainly he is not entitled to claim the concession contained in O.M. dated 24.10.1985. Therefore, the
submission of the learned counsel for the respondent that he was permitted originally to retain the quarters, subsequently retransferred to Madras,
will not give any automatic right, for regularisation, when it became unauthorised occupation, since he had exceeded the permitted period in
occupying the quarters. The authorised officer considering the conditions stipulated in O.M. dated 24.10.19985 and concluding that the petitioner
has not fulfilled the conditions, reached an irresistible conclusion, that he is not entitled to claim concession of regularisation of accommodation, on
account of reposting to same station, which was unnecessarily disturbed by the learned Principal Judge, on the ground that a Government servant,
who has been transferred during the middle of the academic year, is entitled to retain the quarters.
True a Government servant is entitled to retain the quarters, if he had been shifted, during the middle of academic year, only up to the academic
year is over and not thereafter. If he has availed the concession and retained the quarters as an authorised person, then his retransfer must be within
the said period. In this case, admittedly, this respondent was retransferred to Madras, after 15 months, though he was allowed to go on study
leave, after fixing his head quarters at Madras. As aforementioned, when he was permitted to reside at Head Quarters, during the study leave, his
request for regularisation of the accommodation exceeding the prescribed period was negatived, which is not challenged and therefore, taking
advantage of the fact that he was allowed to reside at Madras, during study leave, as a matter of right, he cannot continue to occupy the quarters.
Once the occupation became unlawful, it shall continue, till it is authorised by the competent authority. When he was occupying the quarters as
unauthorised occupant, whether it is during academic year or otherwise, his transfer to elsewhere and retransfer to Madras, will not have any
bearing for its automatic regularisation or deemed regularisation, as incorrectly claimed by the learned counsel for the respondent. In view of the
admitted position that the occupation of the quarters by the respondent after 27.5.1997 is unauthorised, he is liable to be evicted u/s 5 of the Act.
It is not the case of the respondent that the procedure followed at the time of ordering eviction, during the second time, is erroneous or violative of
any rules and regulations. An unauthorised occupant is liable to pay market rent, which is claimed and calculated, in addition to the HRA drawn by
the respondent, against the rules.
The Estate Officer formulating necessary issues for decision, assigning reasons, based on legal principles, supported by the guidelines of the
O.M. dated 24.10.1985, as well as the judicial precedent, had passed an eviction order, which is set aside by the learned Principal Judge, without
considering the case on merits in detail and in the light of the above discussion, I am constrained to set aside the order of the learned Principal
Sessions Judge, restoring the order of the Estate Officer.
In the result, the revision is allowed setting aside the order of the learned Principal Judge, City Civil Court, Chennai in C.M.A.No.182 of 1999
restoring the order of the Estate Officer dated 20.10.1999 in Proceedings C.No.56/97 AEM (M) 2723. No costs.
The respondent is directed to vacate the premises within two months from today.