Central Administrative Tribunal - Delhi
Coram vs Mcd & Ors Through on 24 July, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO.1252 OF 2012 New Delhi, this the 24th day of July, 2014 CORAM: HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBER AND HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER . G.N.Karhadkar, R/o BF-6, Shiva Enclave, A-4, Paschim Vihar, New Delhi 110063 .. Applicant (By Advocate: Shri M.K.Bhardwaj) Vs. MCD & Ors through 1. Commissioner, Municipal Corporation of Delhi, Civic Centre, Dr.S.P.Mukherjee, 4th Level, Jawahar Lal Nehru Marg, New Delhi 110002 2. Additional Commissioner (Engg.), Municipal Corporation of Delhi, Civic Centre, Dr.S.P.Mukherjee, 4th Level, Jawahar Lal Nehru Marg, New Delhi 110002 3. Deputy Commissioner (L&E), Municipal Corporation of Delhi, Civic Centre, Dr.S.P.Mukherjee, 4th Level, Jawahar Lal Nehru Marg, New Delhi 110002 .. Respondents (By Advocate : None) ORDER RAJ VIR SHARMA, MEMBER(J):
In this Original Application, the applicant has prayed for the following relief:
(i) To direct the respondents to release the DCRG of the applicant along with 24%.
To declare the action of respondents in demanding damages from the applicant on account of damages as illegal and arbitrary.
To allow the OA with cost.
Pass any further orders as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
2. Brief facts of the applicants case, as projected in the O.A., run thus: The applicant, while working as Superintending Engineer (Electrical), retired from service on 30.11.1989 on attaining the age of superannuation. According to the information received by him, he was not paid gratuity for his not vacating the Municipal accommodation on his retirement. It is stated by the applicant that he continued to occupy the said Municipal accommodation after his retirement from service by virtue of an interim order of stay passed by the Honble High Court in the writ petition filed by the MCD Quarters Residence Welfare Association and therefore, the respondents are not justified in withholding his gratuity.
2.1 It is also stated by the applicant that his entitlement to get the gratuity could not have been linked with the release of gratuity in view of the decision of the Honble Supreme Court in Civil Appeal No.6342 of 1994, in compliance with which the respondent-MCD issued a circular dated 20.1.1995 (Annexure A-1) stipulating, inter alia, that in future DCRG of retired/deceased employee shall not be withheld due to non-receipt of No Demand Certificate from the Lands & Estate Department, without prejudice to the right of the MCD to recover damages in accordance with the Public Premises (Eviction of Unauthorized Occupants) Act, 1971.
2.2 His repeated representations dated 17.12.1993, 9.8.1994, 29.9.1994, 21.9.1995 and 8.12.1997 to the respondents for paying him gratuity went unheeded.
2.3 The Honble High Court dismissed the writ petition. The SLP filed against the judgment of the Honble High Court was also dismissed by the Honble Supreme Court. While dismissing the SLP, the Honble Apex Court prescribed the time limit to vacate the Municipal accommodation up to 30.4.2001. It is stated by the applicant that by virtue of the order dated 21.9.2000 passed by the Honble Apex Court, the retired employees, like the applicant, who continued to occupy the Municipal accommodation after their retirement, were liable to pay only the standard license fee and not penal rent or market rent. The applicant vacated the Municipal accommodation on 12.10.2000, i.e., much before the date stipulated by the Honble Supreme Court, as would appear from the possession letter dated 12.10.2000 (Annexure A-3). Notwithstanding the aforesaid circular and even after vacation of the Municipal accommodation by the applicant on 12.10.2000, the respondent-MCD did not pay the gratuity to him.
2.4 The applicant, vide his representation dated 19.10.2000 (Annexure A-3), while intimating the fact of his handing over vacant possession of the Municipal accommodation, requested the respondent-MCD to pay him the retirement dues.
2.5 The respondent-MCD, vide demand note dated 20.3.2002 (Annexure A-4), called upon the applicant to pay Rs.20,400/- towards normal S.L.F. as per the orders of the Honble Supreme Court for his having continued to occupy the Municipal accommodation up to 12.10.2000 after his retirement from service on 30.11.1989.
2.6 The applicant approached the Public Grievances Commission, Government of NCT of Delhi, in April 2010. Pursuant to the notice dated 3.5.2010 (Annexure A-5) issued by the said Commission, the respondent-MCD, vide its letter dated 19.5.2010 (Annexure A-6), explained to the Commission that due to non-vacation of Municipal accommodation/non-submission of clear No Dues Certificate from the Land & Estate Department in respect of the Municipal accommodation occupied by the applicant, the gratuity of the applicant was withheld.
2.7 When the matter stood thus, the respondent-MCD, vide Demand Notice dated 16.7.2010 (Annexure A-8), required the applicant to deposit Rs.3,89,004/- towards the damage charge in respect of the said Municipal accommodation within 15 days from the receipt of the said demand notice.
2.8 The Public Grievances Commission, vide its proceeding dated 26.7.2010, advised the applicant to contact the Land & Estate Department of the respondent-MCD for completing the required formalities. Thereafter, the complaint was taken up by the Commission on different dates, and finally, the Commission, vide order/proceeding dated 31.1.2011 (Annexure A-13), closed the applicants complaint and directed the applicant to deposit Rs.3,89,004/-, as demanded by the respondent-MCD, towards the damage charges for unauthorized occupation of the Municipal accommodation up to 12.10.2000.
2.9 In the above backdrop, the applicant has approached this Tribunal. It is contended by the applicant that the respondents are not justified in withholding the gratuity for more than two decades and therefore, they be directed to pay gratuity to him with interest @ 24% per annum.
3. Opposing the Original Application, the respondents have filed a counter reply. They have stated that the claim of the applicant for payment of gratuity is a stale claim; that the applicant has not explained the long delay in filing the present O.A; that the applicant should have approached the Pension Department if at all he had any grievance in the matter; that the issue of withholding of gratuity has nothing to do with the levy of damage charges; and that as soon as the applicant deposits the outstanding dues, the necessary no objection certificate shall be issued in his favour and the gratuity shall be released.
3.1 It is submitted by the respondents that as the applicant was in unauthorized occupation of the Municipal accommodation for more than 10 years, their action in withholding the gratuity for want of no due certificate cannot be allowed to be questioned by the applicant; that damage charges have been calculated as per rules and the applicant, without depositing the same, cannot ask for release of the gratuity in his favour; that the benefit of the judgment of the Honble Supreme Court, mentioned in the O.A., is not admissible to him inasmuch as the applicant was in unauthorized occupation of the Municipal accommodation for more than 10 years after his retirement; and that the withholding of the gratuity of the applicant is as per Rule 72 of the CCS (Pension) and circular dated 20.1.1995. To buttress their submissions, the respondents have placed reliance on the judgment of the Honble Supreme Court passed in Civil Appeal No.4064 of 2004, S.D.Bandi vs. Divisional Traffic Officer, KSRTC & others.
3.2 In view of the above, the respondents have prayed for dismissal of the O.A.
4. Refuting the pleas raised by the respondents in their counter reply, the applicant has filed a rejoinder reply, in which he has more or less made same averments and submissions as in the O.A.
5. On 3.7.2014, at the request of the respondents counsel, the O.A. was adjourned to 9.7.2014 for hearing, with the stipulation that if either party would not be present on that date, the matter would be heard in his absence. On 9.7.2014, as the Bench was not available, it was notified by the Registry that all the matters posted to 9.7.2014 would be taken up on 15.7.2014. On 15.7.2014, when the matter was taken up for hearing, the respondents counsel was absent and no request on his behalf was also made to adjourn the matter. We, therefore, heard the learned counsel for the applicant and reserved the O.A. for orders.
6. Under the rules, gratuity becomes due immediately on retirement of an employee and is thus a retirement benefit. It is not in dispute that the applicant, who was governed by the CCS (Pension) Rules, 1972, was entitled to gratuity on his retirement from service on attaining the age of superannuation on 30.11.1989. The gratuity was admittedly withheld by the respondent-MCD because the applicant did not vacate the Municipal accommodation after his retirement. The applicant has stated that he had made representations dated 17.12.1993, 9.8.1994, 29.9.1994, 21.9.1995 and 8.12.1997 to the respondents for paying him gratuity. It thus appears that the applicant for the first time made representation dated 17.12.1993 requesting the respondent-MCD to release gratuity in his favour. If at all the respondent-MCD did not pay any heed to his representation dated 17.12.1993, the applicant should have approached the appropriate court of law within a reasonable period for redressal of his grievance, more so when in compliance with the decision of the Honble Supreme Court, respondent-MCD issued a circular dated 20.1.1995 (Annexure A-1) stipulating, inter alia, that in future DCRG of retired/deceased employee shall not be withheld due to non-receipt of No Demand Certificate from the Lands & Estate Department, without prejudice to the right of the MCD to recover damages in accordance with the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. But he did not do so and went on making successive representations; the last such representation being dated 8.12.1997. Thereafter, he remained silent for about 13 years and submitted a complaint before the Public Grievance Commission, Government of NCT of Delhi, in April 2010. The applicant has not shown any cause for his silence during the period from the date of his retirement, i.e., 30.11.1989 till 1993 when he for the first time made the representation requesting the respondent-MCD to pay gratuity to him. He has also not explained the delay of about 13 years from 1997, i.e., the date of his last representation to the respondent-MCD, till April 2010 when he submitted a complaint to the Public Grievance Commission, Government of NCT of Delhi. After the said complaint was closed by the said Commission, the applicant filed the present O.A. in 2012. It is, therefore, clear that the applicant has approached this Tribunal for payment of gratuity after more than 23 years of his retirement from service. In the above view of the matter, the plea of delay and laches on the part of the applicant, as raised by the respondents, cannot be lightly brushed aside. But since the applicants right to get gratuity has not been disowned by the respondent-MCD at any point of time and admittedly the gratuity has been withheld because of unauthorized occupation of the Municipal accommodation by the applicant till 12.10.2000 and because of non-payment of the purported damage charges by the applicant on account of unauthorized occupation of the Municipal accommodation, his right to get the gratuity cannot be obliterated solely because of delay and laches on his part. In the present case, the point in issue is not with regard to entitlement of the applicant for gratuity, but with regard to withholding of the gratuity by the respondent-MCD. Therefore, we are not inclined to throw out the O.A. without considering the claim of the applicant on merits.
7. Rules 71, 72 and 73 of the CCS (Pension) Rules, 1972, read thus:
71. Recovery and adjustment of Government dues: (1) It shall be the duty of the Head of Office to ascertain and assess Government dues payable by a Government servant due for retirement.
(2) The Government dues as ascertained and assessed by the Head of Office which remain outstanding till the date of retirement of the Government servant, shall be adjusted against the amount of the retirement gratuity becoming payable.
(3) The expression Government dues includes
(a) dues pertaining to Government accommodation including arrears of license fee, if any.
(b) dues other than those pertaining to Government accommodation, namely, balance of house building or conveyance or any other advance, overpayment of pay and allowances or leave salary and arrears of income tax deductible at source under the Income Tax Act, 1961 (43 of 1961).
72. Adjustment and recovery of dues pertaining to Government accommodation.
(1) The Directorate of Estates on receipt of intimation from the Head of Office under sub-rule (1) of Rule 57 regarding the issue of No Demand Certificate shall scrutinize its records and inform the Head of Office eight months before the date of retirement of the allottee, if any license fee was recoverable from him in respect of the period prior to eight months of the retirement. If no intimation in regard to recovery of outstanding license fee is received by the Head of Office by the stipulated date, it shall be presumed that no license fee was recoverable from the allottee in respect of the period preceding eight months of his retirement.
(2) The Head of Office shall ensure that license fee for the next eight months, that is up to the date of retirement of the allottee, is recovered every month from the pay and allowances of the alottee.
(3) Where the Directorate of Estates intimates the amount of license fee recoverable in respect of the period mentioned in sub-rule (1), the Head of Office shall ensure that outstanding license fee is recovered in instalments from the current pay and allowances of the allottee and where the entire amount is not recovered from the pay and allowances, the balance shall be recovered out of the gratuity before its payment is authorized.
(4) The Directorate of Estates shall also inform the Head of Office the amount of license fee for the retention of Government accommodation for the permissible period beyond the date of retirement of the allottee. The Head of Office shall adjust the amount of that license fee from the amount of the gratuity together with the unrecovered license fee, if any, mentioned in sub-rule (3).
(5) If, in any particular case, it is not possible for the Directorate of Estates to determine the outstanding license fee, that Directorate shall inform the Head of Office that ten per cent of gratuity may be withheld pending receipt of further information.
(6) The recovery of licence fee (where it is possible for the Directorate of Estates to determine the outstanding licence fee) as well as damages (for the occupation of the Government accommodation beyond the permissible period after the date of retirement of allottee) shall be the responsibility of the Directorate of Estates and the withheld amount of gratuity under sub-rule (5) above, the retiring Government employees, who arein occupation of Government accommodation, shall be paid immediately on production of No Demand Certificate from the Directorate of Estates after actual vacation of the Government accommodation.
(7) The Directorate of Estates shall ensure that No Demand Certificate shall be given to the Government employee within a period of fourteen days from the actual date of vacation of the Government accommodation and the allottee shall be entitled to payment of interest (at the rate applicable to General Provident Fund deposit determined from time to time by the Government of India) on the excess withheld amount of gratuity which is required to be refunded, after adjusting the arrears of licence fee and damages, if any, payable by the allottee and the interest shall be payable by the Directorate of Estates through the concerned Accounts Officer of the Government employee from the actual date of vacation of the Government accommodation up to the date of refund of excess withheld amount of gratuity.
(8) On account of licence fee or damages remaining unpaid after adjustment from the withheld amount of gratuity mentioned under sub-rule (5) above, may be ordered to be recovered by the Directorate of Estates through the concerned Accounts Officer from the Dearness Relief without the consent of the pensioners and in such cases no Dearness Relief shall be disbursed until full recovery of such dues has been made.
NOTE.-For the purpose of this rule, the license fee shall also include any other charges payable by the allottee for any damage or loss caused by him to the accommodation or its fittings.
73. Adjustment and recovery of dues other than dues pertaining to Government accommodation:
(1) For the dues other than the dues pertaining to occupation of Government accommodation as referred to in Clause (b) of sub-rule (3) of Rule 71, the Head of Office shall take steps to assess the dues two years before the date on which a Government servant is due to retire on superannuation; or on the date on which he proceeds on leave preparatory to retirement, whichever is earlier.
(2) The assessment of Government dues referred to in sub-rule (1) shall be completed by the Head of Office eight months prior to the date of the retirement of the Government servant.
(3) The dues as assessed under sub-rule (2) including those dues which come to notice subsequently and which remain outstanding till the date of retirement of the Government, shall be adjusted against the amount of retirement gratuity becoming payable to the Government servant on his retirement. From the above, it is clear that the recovery and adjustment of Government dues from retirement gratuity are regulated under Rules 71 to 73 of the CCS (Pension) Rules, 1972. Sub-rules (1) to (3) of Rule 72 (ibid) provide for recovery of actual amount of Government dues in respect of Government accommodation from pay and allowances before retirement and from retirement gratuity. Sub-rule (5) of Rule 72 (ibid) stipulates that if, in any particular case, it is not possible for the Directorate of Estates to determine the outstanding license fee, that Directorate shall inform the Head of Office that ten per cent of gratuity may be withheld pending receipt of further information. In the present case, the applicant did not apply for retention of the Municipal accommodation for permissible period after the date of his retirement. Therefore, he had to vacate the Municipal accommodation on or immediately after 30.11.1989. But it is his case that he continued to occupy the Municipal accommodation by virtue of an interim order of stay passed by the Honble High Court in a writ petition filed by the MCD Quarters Residence Welfare Association. Therefore, the dues pertaining to Municipal accommodation recoverable from the applicant for his unauthorized occupation of the Municipal accommodation could not have been determined by the respondent-MCD soon after his retirement from service.
8. The circular No.CA/Pen/Misc.-55-97/3845, dated 20.1.1995 (Annexure A/1) issued by the respondent-MCD reads thus:
CIRCULAR Sub: Withholding of DCRG due to non-vacation of municipal accommodation beyond permissible period after retirement/death-Instructions regarding.
Attention is invited to Chief Accountants circular No.CA/Pen/Misc.55-97/6059, dated the 15th April,1993 on the above captioned subject.
2. On a review of the matter, in deference to judgment of the Honble Supreme Court dated 29th September, 1994 in Civil Appeal No.6342/1994, wherein it was, inter alia, held that right of DCRG is not dependent upon the retiree vacating the official accommodation, it is hereby directed that in future DCRG of a retired/deceased employee shall not be withheld due to non-receipt of No Demand Certificate from the Lands & Estate Department. Of course, this shall be without prejudice to the right of the MCD to recover damages under FR-48A as also eviction action under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, as upheld by the Apex Court in the judgment as aforesaid.
3. As per provisions of Rule 72(6) of the CCS (Pension)/(Amendment) Rules, 1991, the recovery of license fee for the occupation of municipal accommodation beyond the permissible period of four months after the date of retirement of the allottee shall be the responsibility of the Lands & Estate Deptt., which stipulates that any amount becoming due on account of license fee for retention of official accommodation beyond the permissible period after retirement and remaining unpaid shall be recovered by the Lands & Estate Deptt., through the Accounts Officer (Pension) from the dearness relief without the consent of the pensioner. In such cases, no dearness relief shall be disbursed until full recovery of such dues has been made.
4. Prompt action for recovery of license fee or damages, as the case may be, and initiation of eviction proceedings under P.P.Act shall, however, be taken by the Lands & Estate Deptt., in all such cases where municipal accommodation beyond permissible period after retirement/death has not been vacated.
5. Past cases, if any, be also regulated in the light of these instructions.
9. It is the contention of the applicant that the respondent-MCD ought to have released the gratuity in favour of the applicant in accordance with the circular dated 20.1.1995 (ibid). In the counter reply, the respondents have not given any explanation as to why notwithstanding the circular dated 20.1.1995 (ibid) they did not release the gratuity in favour of the applicant. It is, however, the contention of the respondents that the applicant remained in unauthorized occupation of the Municipal accommodation for more than 10 years after his retirement, penal rent/damages amounting to Rs.3,89,004/- had been levied and a demand note had been issued calling upon him to pay the same and that the applicant having failed to deposit the said penal rent/damages, the respondents cannot be faulted for having withheld the retirement gratuity payable to him.
10. The applicant, on the other hand, contended that the respondent-MCD is not justified to levy damages/penal rent against him for occupation of the Municipal accommodation after the date of his retirement inasmuch as the Honble Supreme Court, while dismissing the SLP filed against the judgment of the Honble High Court of Delhi, permitted the applicant and other similarly placed persons to vacate the accommodation by 30.4.2001 and also directed that the applicant and similarly placed persons were to pay only the standard license fee and not penal rent/market rent for the period of occupation of the Municipal accommodation. It is also contended by the applicant that he having vacated the Municipal accommodation on 12.10.2000 was not liable to pay penal rent for the period of occupation of the Municipal accommodation after the date of his retirement till 12.10.2000.
11. In order to examine the rival contentions, it is necessary to refer to the judgment of the Honble Supreme Court. Though the applicant has not given the details of the writ petition and SLP decided by the Honble High Court and the Honble Supreme Court, yet in the written submissions filed by the applicant on 30.6.2010 (Annexure A/7) before the Public Grievances Commission, Government of NCT of Delhi, the applicant has mentioned some details of the writ petition and the SLP and the judgments passed therein. It transpires from the said written submissions that CWP No.2903 of 1992 (M.K.Yadav & others vs. MCD and others) was filed before the Honble High Court of Delhi, wherein they claimed ownership right over the Municipal accommodations allotted in their favour. The Division Bench, vide order dated 20.8.1992 granted a stay against dispossession of the petitioners therein till disposal of the said writ petition. Similarly, the allottee-occupants of 32 other Municipal colonies also filed identical writ petitions claiming ownership right over the flats occupied by them. The Honble High Court, by a single order dated 21.7.2000, finally decided the matters against the petitioners and in favour of the respondent-MCD. Special Leave Petition (Civil) Nos. 13920-21 and some other SLPs were filed before the Honble Supreme Court against the judgment of the Honble High Court. The Honble Supreme Court, vide judgment dated 21.9.2000, while dismissing the SLPs, directed as follows:
Considering the facts and circumstances of the case, particularly the stand taken by the Corporation of disposal of quarters in favour of its employees, who are occupying the same, as prayed for, time to vacate is granted till the end of academic year 2001, i.e., up to 30th April,2001, on their furnishing the usual undertaking to hand over peaceful and vacant possession of the premises on or before the said date and to pay regularly the licence fee as payable by the employees of the Corporation (not market or penal rent). However, this benefit would be given to those petitioners who file usual undertaking to vacate the premises before this Court and send a copy thereof to the Municipal Commissioner or the Delhi Jal Board within four weeks from today.
12. The respondents have taken the stand that the benefit of the said judgment of the Honble Supreme Court is not admissible to the applicant. Save and except making this bald statement, the respondents have not shown any reason as to why the benefit of the judgment of the Honble Supreme Court is not admissible to the applicant.
13. The applicant has filed a copy of the demand note issued by the respondent-MCD on 20.3.2002 (Annexure A/4) which reads thus:
MUNICIPAL CORPORATION OF DELHI LAND & ESTATE DEPARTMENT TOWN HALL: DELHI No.AC-III/S(A)/L&E/4017 Dated 20.3.2002 DEMAND NOTE Municipal accommodation bearing No.D-24, Type III, Bunglow Road, Delhi, was allotted to you on 01.06.1976 by virtue of your service in M.C.D. You retired from municipal services on 30.11.1989. As per the direction of the Honble Supreme Court of India you have vacate (sic) the municipal accommodation on 12.10.2000.
You are liable to pay normal S.L.F. as per the orders of the Honble Court and the normal S.L.F. in respect of above noted quarter comes to Rs.20,400/- which is up to 12.10.2000.
You are, therefore, directed to deposit the above mentioned amount in the office of the undersigned at the earliest and also clear the dues towards Electricity and Water charges in respect of above noted quarter for your occupancy period. Clear No Dues Certificate will be issued only after the submission of clearance certificate towards electricity and water charges and clearance of above mentioned dues. Sd/ Superintendent (Allot.) LANDS & ESTATE
14. It is thus found that the plea now taken by the respondent-MCD that the benefit of the judgment of the Honble Supreme Court is not admissible to the applicant runs counter to the above demand note dated 20.3.2002 (Annexure A/4) which goes to show that in compliance with the decision of the Honble Supreme Court, standard license fee amounting to Rs.20,400/- was sought to be recovered from the applicant.
15. In the absence of specific averment made by the applicant in his pleadings as to whether he had made the payment of the normal S.L.F. of Rs.20,400/- together with the Electricity and Water Charges in response to the said demand note dated 20.3.2002 (Annexure A/4), it has to be inferred that the applicant did not make payment of the said dues to the respondent-MCD within the stipulated period or thereafter.
16. After lapse of 8(eight) years from the date of issuance of the aforesaid demand note dated 20.3.2002, he submitted a complaint before the Public Grievances Commission, Government of NCT of Delhi, in April 2010, regarding non-payment of retirement gratuity by the respondent-MCD. It appears from the records that the Commission issued notice to the respondent-MCD to appear on the date of hearing on the complaint filed by the applicant. During pendency of the said complaint before the Commission, the respondent-MCD issued demand notice dated 16.7.2010 (Annexure A/8) requiring the applicant to pay Rs.3,89,004/- towards SLF dues/damage charge in respect of the Municipal accommodation occupied by him from 30.11.1989 to 12.10.2000. According to the respondent-MCD, the applicant was liable to pay damage charge for unauthorisedly occupying the Municipal accommodation from 30.11.1989 to 12.10.2000. In view of the Honble Supreme Courts direction contained in the order dated 21.09.2000 and in view of the facts that the applicant had vacated the Municipal accommodation on 12.10.2000 and that the respondent-MCD had issued demand note dated 20.3.2002 (Annexure A/4) requiring the applicant to pay normal Standard License Fee of Rs.20,400/- for his occupying the said accommodation from 30.11.1989 to 12.10.2000, the contention of the respondent-MCD that the applicant was liable to pay damage charge to the tune of Rs.3,89,004/- for the aforesaid period is without any substance, besides being contumacious and violative of the direction of the Honble Supreme Court. Further, the respondents have nowhere stated in their pleadings that they had ever initiated any proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 against the applicant and determined the aforesaid damage charges payable by the applicant. In the absence of initiation of proceedings under the said Act and without following the procedure contained therein, the respondent-MCD could not have determined the liability of the applicant to pay damage charges for occupation of the Municipal accommodation. On this ground also, the demand notice dated 16.7.2010 (Annexure A/8) is unsustainable.
17. When the respondent-MCD had earlier determined the normal S.L.F. of Rs.20,400/- payable by the applicant for his occupying the Municipal accommodation from 30.11.1989 to 12.10.2000 and called upon the applicant to deposit the same, vide demand note dated 20.3.2002 (Annexure A/4), the applicant should have paid the same for the purpose of issuance of No Due Certificate by the Land & Estate Department of the respondent-MCD and thereafter he should have requested the respondent-MCD to pay him the retirement gratuity, but the applicant did not do so. On his failure to do so, the respondent-MCD should have adjusted the same from the retirement gratuity withheld by it and paid the balance amount to the applicant. It is thus found that both the applicant and the respondent-MCD have failed to act honestly in the matter and have lingered the issue till now.
18. In S.D.Bandis case (supra), the Honble Supreme Court observed thus:
28) The following suggestions would precisely address the grievances of the Centre and the State governments in regard to the unauthorized occupants:
Suggestions:
As a precautionary measure, a notice should be sent to the allottee/ officer/ employee concerned under Section 4 of the PP Act three months prior to the date of his/her retirement giving advance intimation to vacate the premises.
The Department concerned from where the government servant is going to retire must be made liable for fulfilling the above-mentioned formalities as well as follow up actions so that rest of the provisions of the Act can be effectively utilized.
The principles of natural justice have to be followed while serving the notice.
(iv) After following the procedure as mentioned in SR 317-B-11(2) and 317- B-22 proviso 1 and 2, within 7 working days, send a show cause notice to the person concerned in view of the advance intimation sent three months before the retirement.
(v) Date of appearance before the Estate Officer or for personal hearing as mentioned in the Act after show cause notice should not be more than 7 working days.
(vi) Order of eviction should be passed as expeditiously as possible preferably within a period of 15 days.
(vii) If, as per the Estate Officer, the occupants case is genuine in terms of Section 5 of the Act then, in the first instance, an extension of not more than 30 days should be granted.
The responsibility for issuance of the genuineness Certificate should be on the Department concerned from where the government servant has retired for the occupation of the premises for next 15 days and further. Giving additional responsibility to the department concerned will help in speedy vacation of such premises. Baseless or frivolous applications for extensions have to be rejected within seven days.
(ix) If as per the Estate Officer the occupants case is not genuine, not more than 15 days time should be granted and thereafter, reasonable force as per Section 5(2) of the Act may be used.
(x) There must be a time frame within how much time the Estate Officer has to decide about the quantum of rent to be paid.
(xi) The same procedure must be followed for damages.
(xii) The arrears/damages should be collected as arrears of land revenue as mentioned in Section 14 of the Act.
There must be a provision for compound interest, instead of simple interest as per Section 7.
(xiv) To make it more stringent, there must be some provision for stoppage or reduction in the monthly pension till the date of vacation of the premises.
(xv) Under Section 9 (2), an appeal shall lie from an order of eviction and of rent/damages within 12 days from the day of publication or on which the order is communicated respectively.
(xvi) Under Section 9(4), disposal of the appeals must be preferably within a period of 30 days in order to eliminate unnecessary delay in disposal of such cases.
(xvii)The liberty of the appellate officer to condone the delay in filing the appeal under Section 9 of the Act should be exercised very reluctantly and it should be an exceptional practice and not a general rule.
(xviii)Since allotment of government accommodation is a privilege given to the Ministers and Members of Parliament, the matter of unauthorized retention should be intimated to the Speaker/Chairman of the House and action should be initiated by the House Committee for the breach of the privileges which a Member/Minister enjoys and the appropriate Committee should recommend to the Speaker/ Chairman for taking appropriate action/eviction within a time bound period.
Judges of any forum shall vacate the official residence within a period of one month from the date of superannuation/retirement. However, after recording sufficient reason(s), the time may be extended by another one month.
Henceforth, no memorials should be allowed in future in any Government houses earmarked for residential accommodation.
29) It is unfortunate that the employees, officers, representatives of people and other high dignitaries continue to stay in the residential accommodation provided by the Government of India though they are no longer entitled to such accommodation. Many of such persons continue to occupy residential accommodation commensurate with the office(s) held by them earlier and which are beyond their present entitlement. The unauthorized occupants must recollect that rights and duties are correlative as the rights of one person entail the duties of another person similarly the duty of one person entails the rights of another person. Observing this, the unauthorized occupants must appreciate that their act of overstaying in the premise directly infringes the right of another. No law or directions can entirely control this act of disobedience but for the self realization among the unauthorized occupants. The matter is disposed of with the above terms and no order is required in I.As for impleadment and intervention.
19. In the light of the above discussions and keeping in mind the observations of the Honble Supreme Court in S.D.Bandis case (supra), we hold that the applicant is liable to pay normal Standard License Fee of Rs.20,400/- for occupation of the Municipal accommodation from 30.11.1989 to 12.10.2000; that the demand notice dated 16.7.2010 (Annexure A/8) having been issued by the respondent-MCD in clear violation of the direction of the Honble Supreme Court is unenforceable; that the respondent-MCD is not justified in withholding the retirement gratuity of the applicant for non-payment of the purported damage charge amounting to Rs.3,89,004/-; and that the respondent-MCD is liable to pay retirement gratuity to the applicant after deducting therefrom the normal Standard License Fee of Rs.20,400/-. Further, in view of the facts that the applicant had not vacated the Municipal accommodation on his retirement; that the applicant was not vigilant in pursuing his claim with the respondent-MCD for payment of retirement gratuity; that the applicant had vacated the Municipal accommodation only on 12.10.2000; that the applicant had not made payment of the normal Standard License Fee as per the demand note dated 20.3.2002 (Annexure A/4); and that the applicant approached this Tribunal after 23 years of his retirement, we hold that the applicant is not entitled to interest on gratuity, more so when no interest is granted by us on the normal Standard License Fee of Rs.20,400/- as demanded by the respondent-MCD in March 2002.
20. As a consequence, the respondents are directed to recover the normal Standard License Fee of Rs.20,400/- from the gratuity payable to the applicant and pay the balance amount of gratuity to the applicant within a period of one month from the date of receipt of copy of this order, failing which the respondents shall pay interest as applicable to GPF on the balance amount of gratuity till the date of actual payment.
21. Accordingly, the Original Application is allowed to the extent indicated above. No costs.
(RAJ VIR SHARMA) (ASHOK KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBMER AN