Delhi District Court
Netaji Subhash University Of ... vs Netaji Subhash University Of ... on 21 July, 2023
1
IN THE COURT OF SH. DIVYANG THAKUR, LD. ADJ03,
SOUTHWEST DISTRICT, DWARKA COURTS, DELHI
Civil Suit No: 16350/16
CNR No. : DLSW01-002292-2015
Ritu Raj Jain
S/o Sh. Rishi Raj Jain
R/o H. No. B-306-A,
Upper Ground Floor,
Mohan Garden, Uttam Nagar,
New Delhi
Also at:
Netaji Subhash University of Technology
Sector-3, Dwarka,
New Delhi-110078
.....Plaintiff
Versus
1. Netaji Subhash University of Technology
Sector-3, Dwarka,
New Delhi-110078
.....Defendant no. 1
2. Salini Jain
3, Kanchan Nagar,
Pathan Road,
Aurangabad, Maharashtra
Also at:
Assistant Professor
G.S. Mandal, S. Marathawada
Suit No. 16350/16
Ritu Raj Jain Vs. Netaji Subhas University of Technology and Anr.
2
Institute of Technology,
(Affiliated to Dr. Baba Sahdev Ambedkar Technological
University (BATU))
Distt. Raigad, Aurangabad, Maharashtra
....Defendant no. 2
DATE OF INSTITUTION : 12.03.2015
DATE OF FINAL ARGUMENTS : 27.05.2023
DATE OF DECISION : 21.07.2023
SUIT FOR RECOVERY OF MONEY
JUDGMENT
1. The plaintiff has filed the present suit seeking (a) decree of recovery of Rs. 4,02,379/- and (b) interest at the rate of 12% per annum.
PLAINT
2. In the plaint of this suit, the plaintiff has averred that the Plaintiff was working as Senior Scientific Assistant (SSA) in NSIT, Sector-3, Dwarka since February 2001 and the Defendant no. 1 i.e. NSIT is an Autonomous Institution registered under the Societies' Registration Act, 1860 and is 100% funded by the Government of NCT of Delhi under the administrative control of Directorate of Training and Technical Education (DTTE) and has affiliation to University of Delhi. It is further averred that the marriage between the Plaintiff and Defendant no. 2 was Suit No. 16350/16 Ritu Raj Jain Vs. Netaji Subhas University of Technology and Anr. 3 solemnized on 12.12.2002 at Kanpur, Uttar Pradesh as per Jain/Hindu rituals and a son was born on 15.01.2005 out of the said wedlock. It is also submitted that Defendant no. 2 is employed as an Assistant Professor in the Department of Information Technology, Maharaja Surajmal Institute of Technology, New Delhi since December 2003.
3. It is further stated that the Plaintiff, being an employee of NSIT was entitled to residential accommodation and accordingly, he was allotted a flat bearing no. 27, Type II at NSIT North Campus, Dwarka (hereinafter referred to as 'allotted flat') vide allotment letter dated 12.12.2005. The said allotment is governed by rules for Allotment of Residences: Netaji Subhash Institute of Technology, Delhi duly approved by the Chairman, Board of Governor (F.No.F.99 (20)/2000-BOG (ACTION)/NSITD.126 dated 12.05.2000). It is alleged that since the date of allotment of the flat, the Plaintiff has not been paid House Rent Allowance (HRA) and as per the applicable rules, HRA is calculated at 30% on total of basic pay plus grade pay. Thereafter, on allotment, Plaintiff had shifted to the said flat along with Defendant no. 2 and their minor son namely Master Ishan Jain.
4. It is alleged that there had been numerous instances Suit No. 16350/16 Ritu Raj Jain Vs. Netaji Subhas University of Technology and Anr. 4 of abusive and violent behaviour on part of the Defendant no. 2 wherein she had threatened the Plaintiff and his family in domestic violence and dowry cases. It is further alleged that on 07.07.2008, the Defendant no. 2 had left the residence of the Plaintiff without information and was living in some other flat bearing no. S-2, Staff flats, Maharaja Surajmal Institute of Technology, C-4, Janak Puri, New Delhi and continued to stay there till 24.04.2010. However, with the intervention of the families, she came back to the allotted flat at NSIT on 24.04.2010 with malafide intention to capture the said flat. Thereafter, it is alleged that after the death of the maternal uncle of Defendant no. 2, she had assaulted the Plaintiff and then locked herself in the bedroom and dialed 100 to call the police and also called her relatives and when the police arrived, Defendant no. 2 started shouting and raised false allegations against the Plaintiff. It is further alleged that the Defendant no. 2 had locked the Plaintiff in the bedroom, however, the son of the Plaintiff had opened the door and Plaintiff had left the house.
5. Thereafter, the Plaintiff had filed a complaint against the Defendant no. 2 on 22.06.2010 to SHO, P.S. Sector-16B, Dwarka, New Delhi and also filed HMA petition for divorce bearing no. 562/2010 on account of desertion and cruelty under Suit No. 16350/16 Ritu Raj Jain Vs. Netaji Subhas University of Technology and Anr. 5 Section 13(1) (1a) and (1b) of the Hindu Marriage Act, 1956 against Defendant no. 2 before the Court of Ld. Principal Judge, Family Courts, Dwarka. It is also alleged that the Plaintiff has not been residing at the allotted flat at NSIT since 20.06.2010 and the Defendant no. 2 was in illegal possession of the same and due to this, the Plaintiff was not getting HRA and leasing charges/license fee, electricity, water, sanitation, maintenance charges, etc. However, on the other hand, Defendant no. 2 was withdrawing HRA from her employer since December 2003. It is further averred that the Plaintiff had rented H. No. B-306-A, Mohan Garden, Uttam Nagar, New Delhi and had paid monthly rent of Rs. 7,500/- and the rent agreement was valid till 11.01.2015. Earlier, the rented premise was B-64, 2 nd Floor, Patel Garden, Kakrola Mor, New Delhi on a monthly rent of Rs. 6,000/- which was enhanced to Rs. 7,000/-. It is further averred that the Defendant no. 2 was an Assistant Professor and earning Rs. 53,040/- (net income) as per salary slip for December 2011 and the salary slip further shows that the Defendant no. 2 was getting Rs. 7,941/- towards HRA.
6. It is further averred that the Plaintiff had made a representation dated 29.11.2010 to Defendant no. 1 as per rules for Allotment of Residences seeking to surrender the Suit No. 16350/16 Ritu Raj Jain Vs. Netaji Subhas University of Technology and Anr. 6 accommodation. Rule 14 of the House Allotment Rules deals with surrender of an allotment and the relevant rule is extracted below:
"An employee may at any time surrender an allotment by giving intimation so as to reach the estate officer at least 10 days before the date of vacation of the residence. The allotment of the residence shall be deemed to be cancelled with effect from the eleventh day after the day on which the letter is received by the estate officer or the date specified in the letter, whichever is later."
7. It is alleged that Defendant no. 1 had responded vide their letter dated 08.12.2010 asking the Plaintiff to resolve the matter at his end and did not take the possession of the allotted flat. Thereafter, a legal notice dated 24.06.2014 was issued by the Plaintiff against Defendant no. 1 asking them to take possession of the allotted flat and declaring Defendant no. 2 as an unauthorized occupant. However, the said legal notice was replied by the Defendant no. 1 vide reply dated 07.07.2014 wherein they had stated that the said allotted flat is matrimonial house of Defendant no. 2 and no action could be taken in the absence of any direction from the Court. The Plaintiff alleged that the Defendant no. 1 kept deducting the HRA, license fees, Suit No. 16350/16 Ritu Raj Jain Vs. Netaji Subhas University of Technology and Anr. 7 electricity, water and sanitation charges from the month of December 2010 till the month of December 2014 which amounted to a grand total of Rs. 4,02,379/- as per the table given in para 14 of the plaint.
8. Aggrieved, Plaintiff had filed the present suit under Order VII Rule 1 of CPC seeking money decree against Defendant no. 1 to the tune of Rs. 4,02,379/- along with interest at the rate of 12% per annum.
WRITTEN STATEMENT, REPLICATION, ADMISSION- DENIAL OF DOCUMENTS AND FRAMING OF ISSUES
9. A perusal of the Court file reveals that summons and notice of the application under Order XXXIX R 1 and 2 of CPC were ordered to be issued qua the Defendants on 12.03.2015 which were duly served. Written Statement was filed on behalf of the Defendants no. 1 and 2 and subsequent Replication was filed.
10. In the WS of Defendant no. 1, it is pleaded that the Plaintiff had not approached the Court with clean hands as he had suppressed the material fact that he had not handed over the physical and vacant possession of the premises that had been allotted to him and until and unless the premises is handed over to the Defendant no. 1, Defendant no. 1 is authorized to make Suit No. 16350/16 Ritu Raj Jain Vs. Netaji Subhas University of Technology and Anr. 8 deductions from the salary of the Plaintiff. It is further averred that the Defendant no. 1 is not concerned with the matrimonial dispute between the Plaintiff and Defendant no. 2 herein.
11. In the WS of Defendant no. 2, it is pleaded that the suit of the Plaintiff is not maintainable and liable to be dismissed. It is further alleged that the plaint is without any cause of action as the Defendant no. 2 is the admitted wife of the Plaintiff and staying in her matrimonial house is her legal right as per the Hindu Marriage Act and Domestic Violence Act. It is further alleged that the suit is liable to be dismissed under Order VII R 11 of CPC. It is further stated that there is no privity of contract between the Defendant no. 1 and Defendant no. 2. It is further alleged that the suit premises is the government property and governed by the provision of Public Premises Act which specifically barred the jurisdiction of civil court to entertain, try and decide the present suit.
12. Pleadings were completed and on the basis of pleadings, following issues were framed on 19.01.2016:
(i) Whether the suit as framed and presented before the court is not maintainable? (OPD)
(ii) Whether the suit is barred under any provisions of law, provisions of CPC in general and particularly regarding Suit No. 16350/16 Ritu Raj Jain Vs. Netaji Subhas University of Technology and Anr. 9
jurisdiction of the court? (OPD)
(iii) Whether the plaintiff is entitled to a decree of mandatory injunction to take the possession of the allotted flat i.e. flat no. 27, Type II at NSIT North Campus, Dwarka, from the Defendant no. 2? (OPP)
(iv) Whether the Plaintiff is entitled to a money decree against Defendant no. 1 in the sum of Rs. 4,02,379/-? (OPP)
(v) Whether the Plaintiff is entitled to any interest, if so, at what rate and for what period? (OPP) No any other issue arose or was pressed for by the parties. Thereafter, matter was proceeded for Plaintiff's evidence. EVIDENCE LED BY THE PARTIES
13. On 11.05.2016, PW-1 Sh. Ritu Raj Jain had tendered his evidence by way of affidavit exhibited as Ex. PW1/A and relied upon copy of house allotment letter dated 12.12.2005 as Ex. PW1/1; copy of house allotment rules dated 12.05.2000 as Ex. PW1/2 (page no. 2 to 20); a copy of complaint to SHO, P.S. Dwarka Sector 16 dated 21.06.2010 as Ex. PW1/3 (page no. 23 to 28); copy of letter dated 29.11.2010 as Ex. PW1/4; copy of petition u/s 13(1) (ia) (ib) Hindu Marriage Act, 1956 filed in Dwarka Court as Ex. PW1/5 (page no. 83 to 127); copy of salary statement as Ex. PW1/6 (page no. 61 to 64); copy of salary slip Suit No. 16350/16 Ritu Raj Jain Vs. Netaji Subhas University of Technology and Anr. 10 for December, 2013 as Ex. PW1/7; copy of salary slip for January, 2014 as Ex. PW1/8; copy of salary slip for February, 2014 as Ex. PW1/9; copy of salary slip for March, 2014 as Ex. PW1/10; copy of salary slip for April 2014 as Ex. PW1/11; copy of salary slip for June 2014 as Ex. PW1/12; copy of salary slip for July 2014 as Ex. PW1/13; copy of salary slip for August 2014 as Ex. PW1/14; copy of salary slip for September 2014 as Ex. PW1/15; copy of faculty profile of Defendant no. 2 as Ex. PW1/16; copy of documents received in RTI vide IP University letter dated 16.01.2012 as Ex. PW1/17 (page no. 31 to 46); copy of documents received under RTI dated 07.02.2012 as Ex. PW1/18 (page no. 47 to 60); copy of my rent agreement dated 17.09.2012 as Ex. PW1/19 (page no. 74-76); copy of rent agreement dated 12.10.2013 as Ex. PW1/20 (page no. 77 to 79); copy of rent agreement dated 11.02.2014 as Ex. PW1/21 (page no. 80 to 82); copy of letter no. F.201/517/06- 07/HAC/E.Cell/NSIT/1073 dated 08.12.2010 as Ex. PW1/22; copy of leagl notice issued to Defendant dated 24.06.2014 as Ex. PW1/23 (page no. 128-132) and copy of reply of legal notice dated 07.07.2014 by Defendant no. 1 as Ex. PW1/24 (page no. 133 to 135).
14. Thereafter, an application under Order VII R 11 of Suit No. 16350/16 Ritu Raj Jain Vs. Netaji Subhas University of Technology and Anr. 11 CPC was filed by Defendant no. 2 to which reply was filed by the Plaintiff. Settlement talks between the parties failed. Thereafter, an application under Order VI R 17 of CPC was filed by the Plaintiff for amending the plaint. Arguments were heard on both the aforesaid applications. Vide separate order dated 22.05.2018, application of the Plaintiff under Order VI R 17 of CPC was allowed and application of the Defendant under Order VII R 11 of CPC was dismissed. Accordingly, amended plaint was filed by the Plaintiff along with an application for condonation of delay. Same were kept on record. Thereafter, amended memo of parties was filed on 18.10.2019.
15. In the meanwhile, fresh affidavit of evidence of PW- 1 Sh. Ritu Raj Jain was filed and his evidence was recorded again and he had tendered his evidence by way of affidavit exhibited as Ex. PW1/A and relied upon the following documents:
(i) Request for surrender letter dated 29.11.2010 is Ex.
PW1/1;
(ii) Institute letter no. F.201(517)/06- 07/HAC/E.Cell/NSIT/1073 dated 08.12.2020 is Ex. PW1/2;
(iii) Allotment letter bearing no. F.201(517)/2005- 06/E.Cell/NSIT/792 dated 12.12.2005 is Ex. PW1/3; Suit No. 16350/16 Ritu Raj Jain Vs. Netaji Subhas University of Technology and Anr. 12
(iv) Salary slip are Ex. PW1/4 (colly) and
(v) Institute House Allotment Rules as Ex. PW1/5.
PW-1 was cross examined and discharged on
15.05.2023.
16. In the meanwhile, an application under Order XII R 8 of CPC was filed on behalf of the Plaintiff which was allowed subject to cost vide order dated 29.08.2022. No other witness was examined on behalf of Plaintiff and thereafter, PE was closed vide separate statement of Plaintiff and matter was proceeded for Defendant's evidence.
17. On 24.05.2023, DW-1 Sh. Pradeep Deswal, Executive Engineer, NSIT had tendered his evidence by way of affidavit exhibited as Ex. DW1/1 and relied upon the following documents as Ex. DW1/2 (colly) as under:-
(i) Office Order dated 25.10.2017 (OSR); (ii) Letter dated 26.07.2017 (OSR);
(iii) Vacation slip dated 25.07.2017 (OSR) and
(iv) List of inventory dated 25.07.2017 (OSR).
18. DW-1 was cross examined and discharged on the even date. No other witness was examined on behalf of the Defendant and DE was closed vide separate statement of the Defendant on the even date. Thereafter, matter was proceeded for Suit No. 16350/16 Ritu Raj Jain Vs. Netaji Subhas University of Technology and Anr. 13 final arguments.
CONTENTIONS OF PARTIES
19. Written submissions were filed on behalf of the Plaintiff. Final arguments were heard on behalf of the parties on 27.05.2023. Ld. Counsel for Plaintiff has submitted that the only relief pressed by the Plaintiff was for the money decree only and that the relief of mandatory injunction had become infructuous. He submitted that the letter sent by the Plaintiff to Defendant no. 1 which was duly received had the effect of surrendering the allotment in terms of Rules 14.1 of the Relevant Allotment Rules framed by Defendant no. 1 within 10 days of the receipt of such letter by Defendant no. 1.
20. Per contra, it was submitted by Ld. Counsel for Defendant that the Plaintiff should have approached the Civil Court to get his wife evicted and thereafter, should have handed over the vacant peaceful possession of the allotted flat to Defendant no. 1. Ld. Counsel further referred to para 2(g) of the Allotment Rules to buttress his arguments. He has also referred to para 21.1 of the said Rules.
ISSUE WISE FINDINGS Issues no. (i) and (ii)
21. The said preliminary issues were never pressed by Suit No. 16350/16 Ritu Raj Jain Vs. Netaji Subhas University of Technology and Anr. 14 the Defendant no. 1 as against the Plaintiff and in so far as Defendant no.2 is concerned, no relief has been claimed by the Plaintiff as against Defendant no. 2. There are no pleadings to this effect in the WS of Defendant no. 1. Therefore, the said issues are decided against the Defendant no. 1 and in favour of the Plaintiff.
Issue no. (iii)
22. After the amended plaint was taken on record, as no relief of mandatory injunction has been claimed, therefore, the said issue has become infructuous.
Issues no. (iv) and (v)
23. At the outset, it is relevant to note the points on which the parties i.e. Plaintiff and Defendant no. 1 differ (Defendant no. 2 did not contest the suit nor was any relief claimed by the Plaintiff against Defendant no. 2 who could as well, have been struck from the array of parties).
24. A reading of the WS would show that the only point raised by Defendant no. 1 in its pleading is that the Plaintiff had failed to handover the vacant physical possession of the allotted flat and till such time, as such possession was handed over, the Suit No. 16350/16 Ritu Raj Jain Vs. Netaji Subhas University of Technology and Anr. 15 Defendant no. 1 was well within its rights to make the deductions of HRA etc. from the salary of the Plaintiff. The only point therefore, to be assessed, is whether the letter of the Plaintiff Ex. PW1/4 dated 29.11.2010 had the effect of surrendering the allotment within the meaning of the House Allotment Rules, the copy of which is Ex. PW1/2. Needless to add that none of these documents are disputed and therefore, may be safely relied upon to come to a just decision in the present case. It is also not disputed that the House Allotment Rules Ex. PW1/2 are applicable to the allotment of the flat to the Plaintiff being an employee by his employer i.e. Defendant no. 1. Some of the relevant Rules may be noticed and extracted herein:
"2(e) 'Employees' means whole time employees of the Institute who are eligible for residence on the campus in terms of these Rules.
.....2(g) 'Family' means the wife or husband, as the case may be, children, step children, legally adopted children, parents, brothers and sisters as ordinarliy reside with and are dependent on the employee.
......9.1 An allotment shall be effective from the date on which it is occupied or from the 8th day from the date of receipt of the allotment order by the allottee, whichever is earlier, and shall Suit No. 16350/16 Ritu Raj Jain Vs. Netaji Subhas University of Technology and Anr. 16 continue to be in force until-
(a) the expiry of the concessional period permissible under Rule 10 below after the employee ceases to be in the service of the Institute;
(b) it is cancelled by the Director or is deemed to have been cancelled under any provision in these Rules; or
(c) it is surrendered by the employee.
.....14.1 An employee may at any time surrender an allotment by giving intimation so as to reach the Estate Office at least 10 days before the date of vacation of the residence. The allotment of the residence shall be deemed to be cancelled with effect from the eleventh day after the day on which the letter is received by the Estate Office or the date specified in the letter, whichever is later. If he/she fails to give due notice, he/she shall be responsible for payment of licence fee for ten days or the number of days by which the notice given by him falls short of ten days. ......21.1 Penal Rent: Where-after an allotment has been cancelled or is deemed to have been cancelled under any provision contained in these Rules, the residence remains or has remained in occupation of the employee to whom it was allotted or of any person claiming through him, such employee shall be liable to pay damages for use and occupation of the residence Suit No. 16350/16 Ritu Raj Jain Vs. Netaji Subhas University of Technology and Anr. 17 equal to the penal rent being for times the Market Rent without prejudice to any other disciplinary action that may be taken against him/her."
25. The abovesaid Rules show that the terms 'employee' and 'family' are distinctly defined. Therefore, it would be reasonable to conclude that the word 'employee' cannot be equated with his spouse or other members in his 'family'. The employee in the present case can only be understood to refer to the Plaintiff. Para 9.1 which deals with the period for which the allotment would subsist provides that the allotment would continue to be in force till such time as it is surrendered by the employee. The term 'surrender' is therefore, in contradistinction with the term 'cancelled.' The mode of surrendering the allotment is defined in para 14.1 which provides that an employee may at any time surrender an employment by giving intimation to the Estate Office. The said provision also provides that the allotment of the residence shall be deemed to be cancelled with effect from the eleventh day after the day on which the letter is received by the Estate Office. It is pertinent to also note that the allotment also expires if it is cancelled or deemed to be cancelled under any provision of the Rules.
26. Therefore, I find that the Rules itself provide for the Suit No. 16350/16 Ritu Raj Jain Vs. Netaji Subhas University of Technology and Anr. 18 surrender of the allotment by mere intimation. Even if the said flat is not physically vacated, the intimation of surrender triggers the 'deemed cancellation clause' of para 14.1 itself whereby even if the flat is not vacated, by virtue of the letter duly received, the allotment is deemed to be cancelled from the eleventh day of the receipt of the said letter. Such deemed cancellation is provided for in para 9.1 (b) itself. The triggering of such deemed cancellation would automatically terminate the allotment after which the HRA and other charges cannot be deducted from the salary of the employee. It is even more pertinent to note that the word used in para 14.1 is 'employee'. Therefore, it is only the employee who can initiate the surrender by sending the letter and not any family member, though, they may be residing in the said flat. Para 21.1 clearly allows the employer i.e. Defendant no. 1 in the present case, to charge the employee with damages if even after such deemed cancellation, if the employee or any person claiming through him, is remaining in possession of the flat. However, that does not mean that the deemed cancellation of the allotment would be effected by the continued occupation of a family member. Irrespective of the occupation of the flat by any family member, the intimation within the meaning of para 14.1 would act as the trigger for the deemed cancellation, provided Suit No. 16350/16 Ritu Raj Jain Vs. Netaji Subhas University of Technology and Anr. 19 that the same was sent by the employee. Axiomatically, the employer could not continue to deduct the HRA and other fees which would have been otherwise deducted from the salary of the employee for the duration of the allotment.
27. Having arrived at the aforesaid conclusions, now it has to be seen in light of the facts that have come on record. The fact that the Plaintiff was allotted a flat by Defendant no. 1 under the aegis of the Allotment Rules Ex. PW1/2 is not disputed. It is the admitted fact that the intimation as contemplated by para no. 14.1 of the Rules was sent to Defendant no. 1 by the Plaintiff vide letter dated 29.11.2010. The receipt of this letter is clearly indicated by the letter dated 08.12.2010 (Ex. PW1/22) sent by the Defendant no. 1 to the Plaintiff which was in the form of the reply to the letter Ex. PW1/4. Therefore, it is reasonable to presume that Defendant no. 1 had received the letter Ex. PW1/4. The said letter dated 29.11.2010 clearly mentions that the Plaintiff intends to surrender the house allotted to him to save the cost being deducted on account of HRA etc. Once the letter Ex. PW1/4 was received, the same started the clock for the deemed cancellation of the allotment as provided for in para 14.1. The Defendant's no.1 insistence that the allotment would subsist till the time when the physical vacant possession was handed over Suit No. 16350/16 Ritu Raj Jain Vs. Netaji Subhas University of Technology and Anr. 20 by the Plaintiff to the Defendant no. 1 is factually incorrect and misplaced. There is no ground to ascribe any such meaning to the Rules which are categorical in this regard. However, theoretically, the Defendant no. 1 could have sued for the penal rent as contemplated in para 21.1. That they did not do so within the period of limitation, is neither here nor there. What is important is that the allotment was deemed to be cancelled. Ld. Counsel for Defendant no. 1 put up the argument that the HRA etc. were deducted on account of para 21.1 of the Rules as penal rent from the Plaintiff on account of his wife having still occupied the flat. However, it is manifest that the deduction of HRA etc. from the salary of the Plaintiff was on account of the fact that the Defendant no. 1 was intending to treat the allotment as a subsisting one. In any case, even as per para 21.1, the penal rent would be four times the market rent. It has not been pleaded by the Defendant no. 1 in their WS that the deductions from the salary of the Plaintiff was sufficing the requirements of four times the market rent as contemplated by para 21.1. In fact, in the WS, it is not their stance that the allotment was cancelled rather, it is apparent that the stance of the Defendant no. 1 is that the allotment was subsisting till the flat's physical possession was handed over to the Defendant no. 1. Once that is the stand of the Suit No. 16350/16 Ritu Raj Jain Vs. Netaji Subhas University of Technology and Anr. 21 Defendant no. 1, they cannot blow hot and cold at the same time. The provision of para 21.1 would only apply once the allotment had been surrendered or cancelled. Once it is the stand of the Defendant no. 1 that the allotment was subsisting, then it cannot be claimed by them at the stage of final arguments that they were entitled to make the deductions of HRA etc. on account of charging the penal rent from the Plaintiff.
28. Once the aforesaid is the case, what comes out is that though, the letter Ex. PW1/4 triggered the deemed cancellation of the allotment, notwithstanding, the continued occupation of the flat by the wife of the Plaintiff-employee, then the Defendant no. 1 could not have deducted the salary as per the table of deductions on pages 8 and 9 in para 14 of the plaint. It is not disputed that the deductions as claimed in the said table were made by Defendant no. 1 from the month of December 2010 to December 2015. It is clear that once the allotment was deemed to be cancelled as per the Rules, the Defendant no. 1 could not have made the deductions starting from December 2010 till December 2014. Consequently, the Plaintiff therefore, becomes entitled for a recovery of the said deductions as made by the Defendant no. 1, which is as per the case of the Plaintiff amounting to Rs. 4,02,379/- which fact has not been disputed by Defendant no. 1 Suit No. 16350/16 Ritu Raj Jain Vs. Netaji Subhas University of Technology and Anr. 22 in their pleadings and in the specific para wise reply to para 14 of the plaint.
29. Additionally, it may be noted that the evidence of DW-1 that the allotment was subsisting as the physical possession was with the wife of the Plaintiff is of no value, for the reason that the Allotment Rules constitute a written contract and has to be interpreted as such, and also Sections 91 and 92 of the Indian Evidence Act would also preclude such oral evidence to the contrary.
RELIEF
30. In light of the foregoing, the suit of the Plaintiff is decreed in favour of the Plaintiff and against the Defendant no. 1 for a sum of Rs. 4,02,379/- which sum shall carry an interest at the rate of 6% per annum from the date of filing of the suit till the date of its realization. Costs of the suit are also awarded to the Plaintiff and against Defendant no. 1. No relief was claimed against Defendant no. 2 and therefore, the suit of the Plaintiff is dismissed as against Defendant no. 2.
31. Decree sheet be prepared accordingly.
Suit No. 16350/16 Ritu Raj Jain Vs. Netaji Subhas University of Technology and Anr. 23
32. File be consigned to Record Room after due compliance.
Digitally
signed by
DIVYANG
DIVYANG THAKUR
THAKUR Date:
2023.07.21
16:10:37
+0530
Announced in the open court (Sh. Divyang Thakur)
On 21.07.2023 ADJ-03/South West
Dwarka / New Delhi
Suit No. 16350/16
Ritu Raj Jain Vs. Netaji Subhas University of Technology and Anr.