Karnataka High Court
Kumari. Nirmala D/O Guruputrappa Kari, vs Hubli-Dharwad Municipal Corporation, on 24 August, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
:1: W.P. No. 69195/2010
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF AUGUST, 2020
BEFORE
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 69195/2010(S-RES)
Between
Kumari Nirmala d/o Guruputrappa Kari
Age 62 years,
R/o Christian Colony,
Ghantikeri, Hubbali
Petitioner
(By Sri. J.S.Shetty, Adv.)
And
1. Hubli-Dharwad Municipal Corporation
Hubli, by its Commissioner.
2. The State of Karnataka,
By its Secretary,
Municipal Administration Department,
Bangalore.
3. Standing Committee for the Finance and Appeals
Hubli Dharwad Municipal Corporation, Hubli.
Dist: Dharwad, By its Chairman
4. Chief Auditor,
Hubli Dharwad Municipal Corporation, Hubli.
Respondents
(R.1, 3 and 4 by Sri. G.I.Gachichinamath, Adv.)
(R.2 by Ms. Seema Shiva Naik, HCGP)
:2: W.P. No. 69195/2010
This writ petition is filed under Articles 226 and 227
of the Constitution of India, praying to a writ of
mandamus direction the respondents 1 and 4 to
implement the order dated 18.11.2009 passed by the
standing committee, Finance and Appeal of the Hubli
Dharwad Municipal Corporation the third respondent vide
Annexure-A and to pay the family pension and to release
all the arrears of the family pension by considering the
representation dated 27.2.2001, 4.11.2006. 10.3.2008,
4.10.2008, 26.3.2010 and 7.5.2010 made by the
petitioner vide Annexures L, M, N, P. Y & Z.
This petition coming for hearing, this day, the Court
made the following:
ORDER
1. The petitioner is before this court seeking a writ of Mandamus directing respondents 1 to 4 to implement the order dated 18.11.2009 passed by the Standing Committee, Finance and Appeal of Hubli-Dharwad Municipal Corporation (in short HDMC), vide Annexure-A, to act on the representation dated 27.2.2001, 4.11.2006, 10.3.2008, 4.10.2008, 26.3.2010 and 7.5.2010 and to make payment of the family pension and also release the arrears of family pension. The :3: W.P. No. 69195/2010 petitioner has also sought a certiorari to quash the order No.HDC:357/TAP:97 dated 27.7.2000 passed by the first respondent Commissioner (Annexure-H) and the order No. HDMC 201009 dated 9.10.2009 passed by the Commissioner (Annexure-S). Sought a direction to respondent No.4 to release the family pension to the petitioner as per the order dated 8.5.2000 (Annexure-G) and order dated 24.5.2001 of the Chief Auditor of HDMC (Annexure-G1).
2. BRIFE FACTS OF THE CASE ARE THAT;
2.1 The petitioner is the unmarried sister of one Saraladevi who was working as ANM Nurse in HDMC, expired on 6.5.1985. Before her death, she had nominated the petitioner to receive the family pension on her death.
Subsequent to the death of Saraladevi, the petitioner made a representation to :4: W.P. No. 69195/2010 the HDMC, but no action was taken by the said Corporation. Hence, petitioner filed WP No. 24301/1993 for implementation of the Resolution passed by the Standing Committee dated 31.7.1986, wherein release of family pension to the petitioner was recommended by the Standing Committee. This Court vide order dated 15.3.1994 directed the respondent for payment of family pension at the rate of Rs.350/- per month commencing from 1.4.1994 and this court vide order dated 11.10.1999 disposed off the matter directing the respondent No.1 to consider the request of the petitioner for family pension and pay the same within three months from that date. This court has noticed the :5: W.P. No. 69195/2010 applicability or otherwise of Rule 294
(iv) of the KCSR and held that the petitioner was entitled for the family pension.
2.2 Thereafter, the petitioner wrote to
respondent No.1 seeking for
implementation of the order of this Court. Several correspondence were exchanged between the parties, but no action was taken. Hence, the petitioner filed contempt proceedings in CCC No. 479 of 2000, wherein the respondent No.1 had made a statement that payment of family pension to the petitioner has been made. Hence, this court vide order dated 5.2.2001 disposed the contempt proceedings reserving the right of the petitioner if she had any grievance, to make a :6: W.P. No. 69195/2010 representation to the respondent. Thereafter, there were several correspondence held between the petitioner and respondent No.1. Respondent No.1 denied the liability to make payment of money and finally the Commissioner of the Corporation vide order dated 3.11.2009 rejected the claim of the petitioner. Hence, petitioner had filed an appeal before Standing Committee. The Standing Committee by order dated 23.12.2009 directed the Commissioner to make payment of the family pension.
2.3 In view of the above, the petitioner once again approached respondent No.1 to make payment of the due amount. However, the respondent corporation took up a contention that :7: W.P. No. 69195/2010 the petitioner had been made payment of excess money of Rs.61,467/- and as such by its order dated 9.10.2009 (Annexure-S) called upon the petitioner to refund the excess amount.
2.4 The Commissioner also wrote to the Secretary Urban Development Dept., vide letter dated 23.12.2009 stating that in terms of Rule 294(1) of KCSR, the family pension required to be paid is Rs.90/- per month and the period of entitlement being 10 years from the date of death of the employee.
2.5 He further informed the Secretary of Urban Development Committee that, as per Karnataka Municipal Corporations Act, 1976, the Standing Committee had no powers and hence requested the Govt., to nullify the :8: W.P. No. 69195/2010 order passed by the Standing Committee.
2.6 In the meanwhile, the petitioner had also submitted one more representation to the Secretary of Urban Development Dept., bringing to the notice of the Secretary regarding the factum of non-payment by the Commissioner despite the order of the Standing Committee. Considering the same, the Secretary on 9.3.2010 wrote to the Commissioner to look into the matter and pass appropriate orders. It is in this background, the petitioner is before this court contending that the respondents for nearly 25 years had not made payment of the due amount. The petitioner has been made to run :9: W.P. No. 69195/2010 from pillar to post to receive the family pension.
3. Shri. J.S.Shetty, learned counsel for the petitioner would submit that;
3.1 The factum of the petitioner being the sister of the deceased employee of the respondent is not in dispute. So also it is not in dispute that the said employee died in harness. In this connection, he submits that the petitioner having been nominated by the deceased unmarried sister, is entitled to pension.
3.2 He has also produced additional documents to contend that the HDMC is governed by the Bombay Provisional Municipal Corporations Act, 1949 (in short BPMC Act) Under the said Act, Family Pension Regulations are framed. One such regulation regarding payment of pension is : 10 : W.P. No. 69195/2010 framed U/Sec. 465(1) (H) of the BPMC Act, 1949.
3.3 Under the said regulations, the standing committee would have to decide the claim of the parties. Based on the same, he submits that the order passed by the standing committee earlier in 1986 as also subsequently in the year 2009 being proper and in accordance with law.
3.4 The Commissioner had to take necessary action to implement the said order and to make payment of the due pension amount.
4. Per contra, Sri. G.I.Gachichinamath, the counsel for the respondents 1, 3 and 4 would submit that; 4.1 BPMC Act was in force until coming into force until coming into force of the Karnataka Municipal Corporations Act, 1976 (in short KMC Act). On coming into force of KMC Act, the BPMC Act stood : 11 : W.P. No. 69195/2010 repealed in the year 1976. From that day, it is the KMC Act which is applicable to the entire state of Karnataka.
4.2 In terms of the statements of objects and reasons and Sec.507 of the KMC Act, 1976, wherein it is categorically stated that BPMC Act was repealed, he therefore submitted that regulations cannot be relied upon and pressed into service. 4.3 The submission of Sri. J.S.Shetty, the learned counsel would not be applicable, since the rules and regulations were framed much earlier to coming into KMC Act, 1976.
4.4 By way of repeal, not only the BPMC Act, but also all regulations, circulars etc., framed under BPMC Act stood repealed and the petitioner cannot have any claim thereunder.
: 12 : W.P. No. 69195/20104.5 The submission made by the petitioner that the standing committee is still having authority to decide all the disputes, is incorrect in as much standing committee has no power in that regard.
4.6 The powers of the standing committee is now regulated by Sec.444 of KMC Act. The Standing committee can sit an appeal only as regards the aspects enumerated in the said provision. He submits that, family pension U/Sec. 464(1) (H) is not the subject matter U/S 444 of KMC Act. Therefore, the orders passed by the standing committee is without jurisdiction and not binding.
5. Replying the same, Sri. J.S.Shetty, the counsel for the petitioner would submit that; 5.1 The right of the petitioner is a pre-
vested right in as much the services of : 13 : W.P. No. 69195/2010 the sister of petitioner commenced prior to coming into force of KMC Act, 1976, the right to receive family pension or otherwise accrued to the petitioner and her sister from the date of her joining the service.
5.2 This vested right has continued day on day during the period of service of the sister of petitioner, hence the repeal of BPMC Act would not have any impact in so far as vested right of the petitioner is concerned. Since Sec.507 of KMC Act says that any right of the petitioner is not affected to the Repeal of BPMC Act does not abrogate any right, privilege, obligation or liability acquired, accrued or incurred under the operation of said Act.
: 14 : W.P. No. 69195/20105.3 Second proviso of Sec.507 of KMC Act would include rules and regulations by- laws etc., and therefore submits that the regulation relied upon are protected even Section 507 of KMC Act.
5.4 The order passed by the standing committee is just and proper within its scope and jurisdiction. Hence, he says that writ petition may be allowed.
6. Ms. Seema Shiva Naik, the learned HCGP appearing for respondent No.2 submitted that respondent No.2 has written to the Commissioner directing to take action in accordance with law and it is the duty of the commissioner to take necessary action in accordance with law.
7. Heard Sri. J.S.Shetty, the learned counsel for the petitioner, Sri. G.I.Gachchinamath, learned counsel : 15 : W.P. No. 69195/2010 for R.1, 3 and 4 and Ms. Seema Shiva Naik, the learned HCGP for respondent No.2 and perused the records.
8. The following points would arise for the consideration;
1) Whether subsequent to coming into force of Karnataka Municipal Corporations Act 1976, The Bombay Provincial Municipal Corporations Act, 1949 stood repealed?
2) Whether any party could rely upon the provisions of Bombay Provincial Municipal Corporations Act, 1949 for any purpose subsequent to repeal?
3) Whether the order passed by the standing committee would be binding on the corporation?
4) What order?
9. The statements of objects and reasons to the KMC Act, 1976 is incorporated below;
"Act 14 of 1977- The city of Bangalore Municipal Corporation established under the City of Bangalore Municipal Corporation Act, 1949 and the Hubli-: 16 : W.P. No. 69195/2010
Dharwad Municipal Corporation functioning under the Bombay Provincial Municipal Corporations Act, 1949 as in force in the Belgaum Area are the two municipal corporations in the State. It is considered necessary that there should be a single enactment governing municipal corporations in the State. This will also enable the establishment of municipal corporations in other cities. Opportunity has been taken to make provision for certain matter which are found necessary as a result of the experience gained in the functioning of the existing municipal corporations".
The main features of this Bill are;
(i) creation of municipal authorities namely, the corporation, three standing committees and the commissioner.
(ii) Conferring certain powers on the mayor and the deputy mayor.
(iii) Specifying the obligatory and discriminatory functions of the corporation.
(iv) Strengthening the administrative machinery of the corporation in result of administration, account and audit;
(v) Employment of officers and staff drawn from the Karnataka Municipal : 17 : W.P. No. 69195/2010 Administrative Service which will enable mobility of the staff as between local authorities.
(vi) Provision for payment of honoraria, allowances and fees to the mayor, the deputy mayor and the councilors. The various other provisions of the Bill generally follow the provisions of the enactments now in force relating to the municipal corporations.
Hence this Bill.
(Obtained from L.A. Bill No.20 of 1974)
10. Sec.507 of the said Act is reproduced as under;
507, Repeal and savings- (1) The city of Bangalore Municipal Corporation Act, 1949 (Mysore Act LXIX of 1949) and Bombay Provincial Municipal Corporation Act, 1949 Bombay Act LIX of 1949) are hereby repealed.
Provided that such repeal shall not affect-
(a) the previous operation of the said enactments or anything duly done or suffered thereunder; or
(b) any right, privilege, obligation or liability acquired, accrued or incurred under the said enactments; or
(c) any penalty, forfeiture or punishment incurred in respect of any offence committed against the said enactments; or
(d) any investigation, legal proceeding or remedy in respect of any such right, : 18 : W.P. No. 69195/2010 privilege, obligation, liability, forfeiture or punishment as aforesaid, and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and such penalty, forfeiture or punishment may be imposed as if this Act had not been passed;
Provided further that subject to the preceding proviso anything done or any action taken (including any appointment or delegation made, tax, duty, fee, or cess imposed, notification, order, instrument, or direction issued, rule, regulation, form, bye-law or scheme framed, certificate obtained, permit or licence granted or registration effected) under the said enactments shall be deemed to have been done or taken under the corresponding provisions of this Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under this Act;
Provided also that notwithstanding anything contained in the preceding provisos where any tax, duty, fee or cess other than a duty on transfers of immovable properties has been imposed under the said enactments at a rate higher than the maximum rate permissible under this Act, such tax, duty, fee or cess may continue to be imposed and collected at such higher rate unless and until superseded by anything done or any action taken under this Act:
Provided also that any reference in any enactment or in any instrument to any provision : 19 : W.P. No. 69195/2010 of any of the repealed enactments shall, unless a different intention appears, be construed as reference to the corresponding provisions of this Act.
(2) Notwithstanding anything contained in sub-
section (1), any tax, duty, fee or cess imposed under the said enactments may, notwithstanding that such tax, duty, fee or cess cannot be imposed under the provisions of this Act, be continued to be levied and recovered as if the provisions of such enactments, the rules, bye- laws, orders and notifications made or issued thereunder relating to such levy and recovery had not been repealed.
11. On perusal of statements of objects and reasons and also Sec. 507 of the Act, the intention of the legislature is to have a single enactment to provide for and cover the benefit of the KMC Act within the state of Karnataka. The Bombay Provincial Municipal Corporations Act, 1949 which was in- force in Belgaum area governing the Municipal Corporations i.e. Hubli-Dharwad Municipal Corporations and Belgaum Municipal Corporation, whereas other Municipal Corporations in the State were governed by the Municipal Corporations. It : 20 : W.P. No. 69195/2010 was opined that KMC Act, 1976 would govern all the Municipal Corporations in the State of Karnataka.
12. Statements of objects are more particularly enshrined in Sec. 507 of the Act which makes a declaration that the BPMC Act is repealed except for certain circumstances like any pre-existing right, privilege and liability acquired, accrued or incurred, action taken or saved and any pending investigation, forfeiture order etc. Such would continue despite the repeal and those actions have saved by the repeal.
13. In view of the above, I have no hesitation to hold that subsequent to coming into force of KMC Act 1976, Bombay Provincial Municipal Corporations Act, 1949 stood repealed. Accordingly, point No.1 is answered in the affirmative.
: 21 : W.P. No. 69195/2010
14. Point No.2 & 3: The question that would arise is whether subsequent to the repeal, The Bombay Provincial Municipal Corporations Act would be applicable to the claims of the petitioner. On the basis of contention raised by the learned counsel Sri. J.S.Shetty, the right of the petitioner is a pre- existing vested right, hence the right to family pension accrued from the date on which the petitioner's sister joined services of the corporation.
15. The contention of Sri. J.S.Shetty appears to be that the repeal was not applicable to the case of the petitioner on account of clause (b) of the first proviso, which reads as, "any right, privilege, obligation or liability acquired, accrued or incurred under the said enactments". His submission is that, the family pension is a right, which accrued on the date on which the petitioner's sister joined service. Such contention if accepted : 22 : W.P. No. 69195/2010 would result in an anomalous situation. Whether the petitioner would continued in service or would take voluntary retirement or terminated from the service is not something which could be envisaged on the date on which the person joined the service. The right of pension either pre-existing or the quantum of pension etc., would have to be ascertained and determined at the time of death or retirement. Similar is the situation as regards family pension. It cannot be said that a family member has acquired the right of family pension on the day on which the employee joined service. This factor cannot be determined as on the date of the person joining employment. Since the right of pension is mere a right, which accrue on survival rather than the date of entering service. So it is 6.5.1985 which would have to be considered for determining the issue between the parties. As on that date, the BPMC Act, 1949 stood repealed and : 23 : W.P. No. 69195/2010 it is KMC Act, 1976, which was applicable. Therefore, the claim of the petitioner under the repealed Act or any regulation subsequent bye-law framed thereunder would be of no avail.
16. In the above background, pension has to be determined on the basis of the rules and regulations applicable to the family pension. As held by this court in Writ Petition No. 24301/1993, it is Rule 294(iv) of the KCSR, which is applicable for the purpose of determination of the family pension. Rule 294(iv) is reproduced as under:
294(i) A family pension not exceeding the amount specified in sub-rule (ii) may be granted to the family of a Government servant who dies whether while still in service or after retirement, after completion of not less than 20 years qualifying service, for a period of ten years;
Provided that the period of payment of family pension will in no case extend beyond a period of 5 years from the date on which the deceased Government servant retired or on which he would have retired on a superannuation pension in the normal course, : 24 : W.P. No. 69195/2010 according as the death takes place after retirement or while the officer is in service.
[Note-1].- In the case of a Government servant who dies while on extension of service, the expression "date on which he would have retired on superannuation pension in the normal course" in the said proviso shall mean the date up to which extension of service has been sanctioned to him before his death.
[Note-2.- In the case of a Government servant who dies while on leave preparatory to retirement on a retiring pension, the period of five years for the purpose of the grant of family pension should be reckoned from the date on which the officer would have retired on a superannuation pension in the normal course and not the intended date of retirement on a retiring pension which did not, however, actually come about.] [Note-3.- Sanctions to retention in service or extension of service which have not been communicated or have not become operative before the death of a Government servant should be taken into account while computing the period of tenability of family Pension under the proviso to this rule.]
(ii) The amount of family pension will be-
(a) in the event of death while in service, one-half of the superannuation pension which would be admissible to the Government servant had he retired on the date following the ate of his death, and : 25 : W.P. No. 69195/2010
(b) in the event of death after retirement, half the pension sanctioned for him at the time of retirement:
[Provided that the amount of family pension will be subject to a maximum of Rs. 150 per mensem, and a minimum of Rs. 30 per mensem:] [Provided further that as from the 1st April 1973, the amount of family pension shall be subject to a minimum of Rs. 40 per mensem:] [Provided that the amount of family pension shall be, subject to a minimum of ninety rupees per month with effect from 1st January1977.] In case where a Government servant mentioned in clause6[(b)] had commuted a part of his pension before his death, the uncommuted value of that part of pension will be deducted from the family pension calculated as above.
Government will also be prepared to consider, in exceptional circumstances, the award of family pension to families of Government servants who may die after completing less than 20 years' qualifying service but not less than 10 years' qualifying service.1 [Note - In order to enable Government to satisfy itself that the conditions of 'exceptional circumstances' for the award of family pension is fulfilled in such cases, the following information should be furnished to Government:-
: 26 : W.P. No. 69195/2010
(i) the amount received (or receivable) by the family of the deceased officer by way of Insurance, Provident Fund and Death-cum-
retirement gratuity;
(ii) the pay (indicating separately the officiating pay and other emoluments in the nature of pay), the officer was in receipt of at the time of his death;
(iii) the number of children left behind, if any, with their ages and the classes in which studying.]
(iii) 'Family' for the purpose of this Section will be as defined in sub-rule (i) of Rule 302
(iv) No pension will be payable under this Section-
(a) to a person mentioned in clause (b) of sub-rule (v) without production of reasonable proof that such person was dependent on the deceased Government servant for support
(b) to an unmarried female member of a Government servant's family, in the event of her marriage;
(c) to a widowed female member of a Government servant's family in the event of her re-marriage;
(d) to a brother of a Government servant on his attaining the age of 18 years;
(e) to a person who is not a member of Government servant's family;
: 27 : W.P. No. 69195/201017 Relying on Sec. 294 (i) (ii) and (iii) proviso, Sri. Gurudev, the learned counsel for the respondents would submit that, maximum family pension liable to be paid at Rs.90/- per month. However, Sri. J.S.Shetty, the learned counsel for the petitioner would submit that the said amount is minimum and there is no maximum pension determined on the basis of service rendered by the deceased as on the date of her death, in this case, being 22 years, the pension would have to be determined on that basis.
18. On perusal of pension order, it would indicate that the commissioner has taken into account a sum of Rs.90/- per month to be paid, which is totally correct and therefore he contended that excess amount has been paid as pensionary amount. On perusal of Annexure-A produced by the Commissioner would indicate that the Corporation has calculated the pensionary benefits from the : 28 : W.P. No. 69195/2010 year 1986 onwards, which was Rs.240/- in 1986 and subsequently increased year on year. It is therefore this table in Annexure-A which ought to have been made use by the corporation for the calculation of family pension, which is liable to be paid to the petitioner who is a unmarried sister of the deceased employee, that not having been done. The orders passed by the Commissioner at Annexure-H and S are contrary to law and would required to be quashed and therefore are quashed.
19. The first respondent is directed to re-work the pensionary benefits required to be paid to the petitioner in terms of Annexure-A and Rule 294 of Karnataka Civil Service Rules, 1958 within a period of eight weeks from the date of receipt of certified copy of this order and make payment of the same to the petitioner within such period. The counsel for the petitioner is at liberty to obtain and submit the certified copy of this order to the respondent. The : 29 : W.P. No. 69195/2010 date of submission of the certified copy would be taken into consideration for the purpose of determination of period.
20. This petition, accordingly partly allowed.
Sd/-
JUDGE SKK