B M ASARI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE short facts of the case appears to be that, the Petitioner was occupying the Quarter of the government, Block No. 145, Room No. 3451-52 since he was posted at the relevant point of time in Ahmedabad as Police Sub- Inspector. It appears that, thereafter, he was transferred outside Ahmedabad, and therefore, he had to vacate the Quarter. As per the Petitioner, from Ahmedabad, he was transferred to Junagadh and thereafter from Junagadh to Bhavnagar, and in 1989 he was again reposted to Ahmedabad, and, as his father was ill and his children were studying, he had applied for extension. It appears that thereafter on 31. 3. 2009, a notice was issued to the Petitioner stating that he was allotted Quarter on 24. 10. 1985, and since he was transferred to Bhavnagar, he had to vacate the Quarter on 3. 9. 1988. But, inspite of the same, the Quarter was not vacated. Therefore, the Petitioner was called upon to show cause as to why market rent should not be recovered during the period of unauthorised occupation. It appears that the Petitioner has not replied to the same, but had made a representation on 27. 7. 1989, that he has been reposted in Ahmedabad and therefore he may be permitted to occupy the same Quarter. On 25-8. 11. 1993 the order has been passed by the Additional Director General of Police calling upon the Petitioner to pay the market rent at Rs. 1920/-p. m. for the period from 1. 8. 1985 to 2. 7. 1993 as per order " Annexure-K. It is under these circumstances, the present petition before this Court.

(2.) HEARD Learned advocate Mr. Chintan Champaneri for Mr. Raval, for the Petitioner and Mr. K. P. Raval, learned AGP for the State authority.

(3.) IT appears that in the show cause notice at Annexure-J, it has been stated that the Quarter was allotted from 24. 10. 1985 and the Petitioner had to vacate the Quarter on account of the fact that he was transferred to Bhavnagar w. e. f. 3. 7. 1988 and he had to surrender the Quarter from 3. 9. 1988. Whereas the impugned order at Annexure-K has been passed on the basis that the Petitioner had to surrender the Quarter from 1. 8. 1985 and the market rent is ordered to be recovered from 1. 8. 1985 to 3. 7. 1993. The aforesaid shows that there is ex facie non-application of mind on part of the authority while passing the impugned order. In any case, if the Petitioner had to vacate the Quarter from 3. 9. 1988, the market rent could not be recovered from 1. 8. 1985. Hence, the impugned order to that extent can be said as vulnerable.