GANGA SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS writ petition under Article 226 of the Constitution of India has been fled by the petitioners on 22. 7. 1992 against the respondents with the prayer that by an appropriate writ, order or direction, the respondents be directed not to recover the penal rent from the petitioners and the order dated 18. 6. 1992 (Annex. 5) passed by the Executive Engineer, Division-I, Mahi Dam, Banswara be quashed.

(2.) IT arises in the following circumstances: The petitioners are working with the respondents for the last more than 15 years. The petitioners applied for allotment of VI Type Houses through applications to the respondent No. 3 Executive Engineer, Division-I Mahi Dam, Banswara. Thereafter, the petitioners requested the respondent No. 3 Executive Engineer many times for allotment of houses and the respondents used to give assurance that house will be allotted to them as soon as the same were made available. However, some houses were allotted to the persons junior to the petitioners and, therefore, the petitioners approached the concerned authorities and upon this, the Executive Engineer (respondent No. 3) verbally told the petitioners that if there were any vacant houses, the same could be occupied by them and in due course, those houses would be allotted to them. Thereafter, the petitioners informed the respondents that there were certain damaged houses and they further asked the respondents to get them repaired and allot them and upon this, the respondents told the petitioners to occupy these houses and get them repaired with their own money and on the said assurance, the petitioners occupied the houses mentioned in para 10 of the writ petition. When the petitioners started living in these houses, the respondents lodged FIR against the petitioners and challan was also filed and the respondents also issued charge-sheets against the petitioners on the ground that they were unauthorised occupants of the said houses and the departmental enquiries are still going on. However, in the meanwhile, the respondents issued letters to the petitioners for recovery of the penal rent and the letter which was given to the petitioner No. 1 Ganga Singh is Annex. 3 and the general order is Annex. 5 dated 18. 6. 1992 and the said order Annex. 5 dated 18. 6. 1992 has been challenged in this writ petition contending that the enquiries are pending against the petitioners and no rent was fixed for the houses in question and the petitioners were entitled for rent free accommodation as per Rule 8 of the Rajasthan Civil Services (Project Allowance and Concession in Project Area) Rules, 1975 (hereinafter referred to as the "the Rules of 1975") and, therefore, in these circumstances, charging of penal rent was beyond the jurisdiction of the respondents and thus, per se illegal and, therefore, order Annex. 5 dated 18. 6. 1992 directing recovery of penal rent from the petitioners cannot be sustained and it should be set aside. A reply to the writ petition was filed by the the respondents on 1. 2. 1993 and the main contention of the respondents is that the petitioners are unauthorised occupants and the respondents are fully authorised under the law to charge penal rent from the petitioners since the petitioners are unauthorised occupants as they occupied the houses in question without allotment in their favour. Hence, this petition be dismissed.

(3.) IT may be stated here that in mortgage debt, stipulation as to payment of compound interest in case of default is penal meaning thereby before a penal rent is charged, there should be fixation or determination of rent to be paid and in default of payment of rent, penal rent can be charged. In other words, fixation or determination of rent must be a condition precedent for charging penal rent.