MULJIBHAI THAKARSHIBHAI SOLANKI Vs. DY EXECUTIVE ENGINEER

JUDGEMENT

(1.) THE petitioner herein was serving as a Mamlatdar at Porbandar in the year 1998. On 5. 9. 1998, he was ordered to be transferred from Porbandar to Jamnagar and accordingly, he was relieved from the office on 7. 9. 1998. The petitioner, therefore, preferred Special Civil Application No. 7530/1998 to challenge that order of transfer. The said transfer order came to be stayed by this Court. On the basis of that stay, the petitioner resumed charge again at Porbandar on 10. 9. 1998. Since the interim relief of stay was for a limited period and through oversight it was not got extended by the petitioner, the said interim relief came to be vacated by the Court and, therefore, the petitioner was again relieved from Porbandar office on 30. 9. 1998. The petitioner preferred Letters Patent Appeal No. 1222/1998 to challenge the order of learned Single Judge passed in Special Civil Application vacating the interim relief. Before the Letters Patent Bench, the respondent authority made a statement that they proposed to recall the order of transfer dated 5. 9. 1998. The Letters Patent Appeal, therefore, came to be disposed of on the basis of that statement on 4. 12. 1998. While disposing of the Letters Patent Appeal it was directed that the petitioner would apply for leave without pay for the interregnum period, which the petitioner applied for, and was granted by the respondent authority for a period from 7. 9. 1998 to 14. 12. 1998 and from 15. 12. 1998 to 28. 12. 1998. 1. 1 On 24. 12. 1998, another order of transfer of the petitioner came to be passed transferring him from Porbandar to Junagadh. Accordingly, he was relieved and took charge at Junagadh on 28. 12. 1998. On 3. 2. 1999, the petitioner applied for continuing the possession of the Quarter at Porbandar till the end of the academic term. On that application, it appears that no order is passed. It also appears that from the salary of the petitioner for the month of January, 1999, rent for the Quarter at Porbandar came to be deducted as per the Rules. However, eviction proceedings bearing No. 11/99 were initiated against him. The said proceedings came to be disposed of by an order dated 11. 2. 1999 declaring occupation of the Quarter of the petitioner to be unauthorised requiring him to vacate the Quarter within 15 days and further directing to recover regular rent for the period from 1. 10. 1998 to 30. 11. 1998 and thereafter to recover rent at the rate of Rs. 3840/- per month from 1. 12. 1998. That order came to be challenged by the petitioner before the appellate authority i. e. District Court, Porbandar by preferring Regular Civil Appeal No. 4/2000. The said appeal came to be dismissed by judgment and order dated 3rd December, 2003 and hence, this petition under Articles 226 and 227 of the Constitution of India.

(2.) LEARNED advocate Mr. Dagli has relied on a Resolution of the Government dated 8. 6. 1998, which authorises a Government employee to continue occupation of the Quarter allotted to him, if he is transferred in the middle of the term, till completion of the next academic term. Mr. Dagli submitted that the petitioner's application for seeking permission to continue occupation of the Quarter till the end of the academic term has not been rejected and the authorities below have failed to appreciate the fact that the petitioner was transferred in the middle of the term and was, therefore, in ordinary course, entitled to continue the occupation of the Quarter allotted to him at Porbandar. The petitioner has three children, who were studying at that time. Mr. Dagli also submitted that the monthly rent of Rs. 3840/-, which is ordered to be recovered from the petitioner from 1. 12. 1998 onwards is not termed as `market rent' in the eviction proceedings by the authority. Even if considered as market rent as indicated only in the notice, market rent would be Rs. 1920/-, if it is calculated as per Government Resolution dated 30. 10. 1990. 2. 1 Lastly, Mr. Dagli submitted that the petitioner voluntarily handed over the possession of the Quarter on 31. 5. 1999 on completion of the academic term, which would show his bona fides.

(3.) THE Deputy Executive Engineer, Roads and Buildings, Sub-Division, Porbandar and the Assistant Collector, Porbandar have been served with the notice of rule. It appears that they have not instructed the Government Pleader Office, High Court. Learned A. G. P. Mr. Soni states that no instructions are received. He has, however, assisted the Court on the basis of the Court record. He has also taken this Court through the relevant papers including Government Resolutions which are produced by the petitioner and has put in all efforts to assist the Court.