Bombay High Court
Vishwanath Ramchandra Raorane vs Municipal Corporation Of Greater ... on 18 June, 2013
Bench: V.M. Kanade, R.P. Sondurbaldota
WP-1194-10-Judg..sxw
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1194 OF 2010
Vishwanath Ramchandra Raorane, ]
Age : 66 Yrs., Occu.: Retired, ]
R/o. 104, Neha-Pooja C.H.S. Ltd., ]
Mitha Nagar, M.G. Road, ]
Goregaon (W), Mumbai - 400 062. ] ... Petitioner
Versus
1. Municipal Corporation of Greater Mumbai, ]
Through its Commissioner, ]
Having Office at Mahapalika Bhavan, ]
Mahapalika Marg, Mumbai 400 001.
ig ]
]
2. Chief Security Officer, ]
Security Force, Municipal Corporation of ]
Greater Mumbai, ]
I/Z Love Grove Stores Yard, ]
Dr. E. Mozes Road, Worli, Mumbai 400 018 ] ... Respondents
Mr. D.V. Sutar for the Petitioner.
Mr. A.Y. Sakhare, Senior Counsel, a/w. Mr. Vinod
Mahadik for the Respondents.
CORAM : V.M. KANADE &
SMT. R.P. SONDURBALDOTA, J.J.
TH JUNE, 2013.
DATE : 18
JUDGMENT :{Per R.P. SondurBaldota, J.}
1. The petitioner was employed with respondent no.2 in the Department of Security. He retired on superannuation on 1 st May, 2002.
Thereafter, for a period of six months commencing from 1st June, 2002, # 1/6 # ::: Downloaded on - 27/08/2013 20:51:42 ::: WP-1194-10-Judg..sxw he was appointed as "Officer on Special Duty (Training)". As an employee of respondent no.1, he had been allotted office quarters. On his retirement from service or at least on completion of his tenure as Officer on Special Duty, the petitioner was expected to vacate the office quarters.
He, however, continued in the premises until 5th June, 2008.
Consequently, the gratuity payable to him had been withheld, pursuant to his service rules. On vacating the office quarters, the petitioner, by his letters dated 17th September, 2008 and 19th September, 2009, had requested respondent no.2 to release the amount of gratuity. Since no action was taken on his requests, the petitioner filed the petition herein for a writ of mandamus directing the respondents to pay the amount of gratuity payable to him under the Payment of Gratuity Act together with the interest thereon from the date it became due and payable, until actual payment.
2. By the order dated 23rd January, 2013 passed in this petition, the Deputy Municipal Commissioner of respondent no.1 was directed to decide the representation of the petitioner regarding payment of gratuity.
Accordingly, the Deputy Municipal Commissioner considered the representation and decided the same by his order dated 31st January, 2013. He directed payment of gratuity to the petitioner in the sum of # 2/6 # ::: Downloaded on - 27/08/2013 20:51:42 ::: WP-1194-10-Judg..sxw Rs.80,511/- after deducting the penal rent equivalent to Rs.2,69,488.81 for overstaying in the office quarters. The petitioner has thereafter amended the petition to bring the subsequent events on record and also to challenge the decision of the Deputy Municipal Commissioner of deduction of the amount of Rs.2,69,488.81 from the gratuity.
3. It is the contention of the petitioner that he had been compelled by the circumstances to overstay in the office quarters after his retirement from service. In the year 1994, the municipal officers had floated a Co-
operative Housing Society by name Neha-Pooja Co-operative Housing Society for construction of residential building on the land owned by respondent no.1. The petitioner had become a member of that society.
Respondent no.1 had allotted two plots of land to the society. It had also sanctioned home loan to the petitioner. By the year 1998, construction of building on one of the plots was complete. However, possession thereof was not given to the members of the society. The petitioner had been continuously pursuing the office bearers of the society for possession of the flat to him so that he could vacate the office quarters and shift to his private accommodation. He had also sought help of Additional Municipal Commissioner (Administration) and Additional Municipal Commissioner (Property) in this regard. The petitioner had on 8 th January, 2003 # 3/6 # ::: Downloaded on - 27/08/2013 20:51:43 ::: WP-1194-10-Judg..sxw approached the respondent no.2, the Chief Security Officer of respondent no.1, with a request for his continuation in the office quarters. That request was granted by respondent no.2 by his endorsement on the application of the petitioner. Then on 24 th March, 2006, the petitioner approached the Joint Municipal Commissioner with an application for permission to stay in the office quarters for further few months. That extension had also been granted by respondent no.2. Thereafter as soon as possession of flat in Neha-Pooja Co-operative Housing Society Building was received by the petitioner, he surrendered the office quarters on 5 th June, 2008. Mr. Sutar, the learned counsel for the petitioner, submits that respondent no.1 could not have charged penal rent from the petitioner for overstaying in the office quarters because his request for continuing in the office quarters on account of the difficulties expressed by him had been specifically granted by respondent no.2. Besides considering the sincere efforts made by the petitioner and the fact that he had made the necessary arrangements for acquisition of private premises sufficiently in advance should also have been considered by the Deputy Municipal Commissioner while deciding his representation. He, therefore, requests that a sympathetic view of the petitioner be taken and the order of deduction of an amount from the gratuity towards the penal rent payable under the rules for overstaying in the office quarters be set aside and # 4/6 # ::: Downloaded on - 27/08/2013 20:51:43 ::: WP-1194-10-Judg..sxw directions be given to respondent no.1 to pay the entire amount of gratuity to the petitioner.
4. Mr. Sakhare, the learned senior counsel for the respondents, submits in reply that the petitioner was well aware of the rules that required payment of penal rent for overstaying in the office quarters.
Despite this knowledge, he did not surrender the office quarters and continued in the premises. Mr. Sakhare refers to circular of the Mumbai Municipal Corporation, a copy of which is annexed to the petition which prescribes recovery of penal rent @ Rs.10/- per square foot for the total carpet area of the premises and service charges at such penal rate for every month. The calculation of payment of penal rent pursuant to the circular comes to Rs.2,69,488.81. After deducting that amount from the gratuity, respondent no.1 had offered a cheque in the sum of Rs.80,511/-
to the petitioner. He, however, refused to accept the same. Therefore, the amount has been processed through the petitioner's account by way of E.C.S. Mr. Sakhare also points out that prior to his retirement, the petitioner had given two separate undertakings to respondent no.1 authorizing it to recover any dues from the petitioner, i.e. dues to Bank, Society or towards rent etc., from the gratuity payable to him. Therefore, it is not open to the petitioner now to complain about the deduction.
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5. From the averments in the petition itself, it is patent that the petitioner was aware of his liability to pay penal rent on overstay in the office quarters. Though he claims to have been granted permission by respondent no.2 on two occasions to continue to occupy the office quarters, there is no material produced by him to show that there was any concession in the rent granted to him. The permission to continue in the office quarters even after his retirement can only protect him against any action by respondent no.1 of getting the premises vacated from him.
It cannot extend to payment of penal rent for the continued occupation.
Therefore, the two orders referred to by him cannot come to his rescue as regards payment of penal rent. Besides, the petitioner himself had given undertakings that any dues from him can be recovered through the amount of gratuity payable to him by respondent no.1. The petitioner cannot be allowed to resile from those undertakings in such manner. We, therefore, find no substance in the petition. The respondent no.1 Corporation is seem to have followed the appropriate procedure for recovery of the rent from him from gratuity. Hence, the petition is dismissed.
[Smt. R.P. SondurBaldota, J.] [V.M. Kanade, J.]
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