Bethampudi Leela Kumari and ors. Vs. A.P. Social Welfare Residential Educational Institutions Society (Regd.) and ors. - Court Judgment

Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default.orderl. narasimha reddy, j.1. the petitioner challenges the memo, dated 6.12.2007, whereunder the 2nd respondent directed the respective institutions, in which the petitioners are working, to deduct the entire house rent allowance (hra).2. the petitioners are employed in different capacities, in the andhra pradesh social welfare residential educational institutions, and all of them are working in the residential junior college at vatluru of west godavari district. since it is a residential institution, all of them are provided accommodation, by the educational institutions society, the 1st respondent herein. rents fixed from time to time for the building, are being deducted from the salaries of the petitioners. at a meeting of the zonal office held on 15.11.2007, the 1st respondent is said to have directed that the actual hra, being paid to the employees, must be deducted, instead of rents fixed for the quarters.3. sri g. vidya sagar, learned counsel for the petitioners, contends that the hra is part of emoluments and it cannot be deducted, on the basis of administrative instructions. he contends that the respondents themselves have fixed the rents for the accommodation provided to the petitioners, and deduction of amounts, in excess of that, is impermissible in law, apart from being arbitrary and capricious.4. learned standing counsel, on the other hand, submits that the society incurred huge expenditure, in causing repairs to the quarters and providing amenities therein, and deduction of hra, which is exclusively meant for accommodation to the employees, cannot be found fault.5. it hardly needs any emphasis that hra is part of the emoluments of an employee. it is the component of the salary, which is meant to enable the employee to avail the accommodation. the hra varies, even for the same category of employees in the same organization, depending upon the place of posting. the purpose of indicating the hra separately appears to be, on account of the said variation. even where an employee owns house, he is entitled to be paid the hra, and he cannot be denied the same. in a given case, an employee may incur more expenditure for accommodation, than the amount representing hra, and in such a case, he would be compensated for the deficit. similarly, if he is able to save any amount, in availing the accommodation, he cannot be required to refund the saved amount.6. the petitioners are provided with accommodation by the society, since they are working in a residential junior college. in accordance with the norms, the respondents have already fixed the rents of the premises, and it is not in dispute that the corresponding amounts are being deducted from the salaries of the petitioners. that having been done, the respondents cannot undertake a further verification as to what is the amount being paid to the petitioners towards hra, much less, to deduct such an amount, irrespective of the amount fixed for the quarters. such a step is totally opposed to law and would furnish an instance of arbitrary exercise of power. therefore, the writ petition is allowed, and the impugned order is set aside. it is clarified that the respondents shall be entitled to deduct the rent fixed for the quarters, as is being done at present. there shall be no order as to costs

Judgment:
ORDER

L. Narasimha Reddy, J.

1. The petitioner challenges the memo, dated 6.12.2007, whereunder the 2nd respondent directed the respective institutions, in which the petitioners are working, to deduct the entire House Rent Allowance (HRA).

2. The petitioners are employed in different capacities, in the Andhra Pradesh Social Welfare Residential Educational Institutions, and all of them are working in the Residential Junior College at Vatluru of West Godavari District. Since it is a residential institution, all of them are provided accommodation, by the Educational Institutions Society, the 1st respondent herein. Rents fixed from time to time for the building, are being deducted from the salaries of the petitioners. At a meeting of the Zonal Office held on 15.11.2007, the 1st respondent is said to have directed that the actual HRA, being paid to the employees, must be deducted, instead of rents fixed for the quarters.

3. Sri G. Vidya Sagar, learned Counsel for the petitioners, contends that the HRA is part of emoluments and it cannot be deducted, on the basis of administrative instructions. He contends that the respondents themselves have fixed the rents for the accommodation provided to the petitioners, and deduction of amounts, in excess of that, is impermissible in law, apart from being arbitrary and capricious.

4. Learned Standing Counsel, on the other hand, submits that the Society incurred huge expenditure, in causing repairs to the quarters and providing amenities therein, and deduction of HRA, which is exclusively meant for accommodation to the employees, cannot be found fault.

5. It hardly needs any emphasis that HRA is part of the emoluments of an employee. It is the component of the salary, which is meant to enable the employee to avail the accommodation. The HRA varies, even for the same category of employees in the same Organization, depending upon the place of posting. The purpose of indicating the HRA separately appears to be, on account of the said variation. Even where an employee owns house, he is entitled to be paid the HRA, and he cannot be denied the same. In a given case, an employee may incur more expenditure for accommodation, than the amount representing HRA, and in such a case, he would be compensated for the deficit. Similarly, if he is able to save any amount, in availing the accommodation, he cannot be required to refund the saved amount.

6. The petitioners are provided with accommodation by the Society, since they are working in a Residential Junior College. In accordance with the norms, the respondents have already fixed the rents of the premises, and it is not in dispute that the corresponding amounts are being deducted from the salaries of the petitioners. That having been done, the respondents cannot undertake a further verification as to what is the amount being paid to the petitioners towards HRA, much less, to deduct such an amount, irrespective of the amount fixed for the quarters. Such a step is totally opposed to law and would furnish an instance of arbitrary exercise of power. Therefore, the writ petition is allowed, and the impugned order is set aside. It is clarified that the respondents shall be entitled to deduct the rent fixed for the quarters, as is being done at present. There shall be no order as to costs