Allahabad High Court
Chandan Kumar Bhatt vs State Of U.P. Thru. Secy. Voc. Edu. & ... on 24 November, 2020
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Case :- SERVICE SINGLE No. - 14855 of 2020 Petitioner :- Chandan Kumar Bhatt Respondent :- State Of U.P. Thru. Secy. Voc. Edu. & Skill Devpt.& Ors. Counsel for Petitioner :- Vashu Deo Mishra,Santosh Kumar Mishra Counsel for Respondent :- C.S.C. Hon'ble Chandra Dhari Singh,J.
1. Heard learned Counsel for the petitioner and Sri Savitra Vardhan Singh, learned Counsel appearing on behalf of opposite parties.
2. The petitioner has approached this Court challenging the order dated 14.08.2020, whereby the Assistant Director (Employment), Lucknow Region, Lucknow has directed the petitioner to vacate the House No.3 situated in the campus of Government Industrial Training Institute, Aliganj, Lucknow and the order dated 13.08.2020 by which the Director (Training and Employment), U.P. Guru Govind Singh Marg, Lucknow has directed the Assistant Director (Employment), Lucknow Region, Lucknow for taking appropriate action against the petitioner for non-vacation of the abovesaid Government accommodation. The petitioner, inter alia, has sought for a direction to the opposite parties not to compel him to vacate the abovesaid Government accommodation.
3. Submission of learned Counsel for the petitioner is that the petitioner was appointed on the post of Junior Clerk on 21.08.2002 and joined his post in the pay scale of Rs.3050-75-3950-80-4590 at Government Industrial Training Institute, Aliganj, Lucknow. Vide order dated 02.05.2003 passed by the Principal, Government Industrial Training Institute, Aliganj, Lucknow (opposite party no.4) in consequence to the order passed by the Director (Training and Employment), U.P. Guru Govind Singh Marg, Lucknow (opposite party no.3), the residential House No.3 situated at the campus of Government Industrial Training Institute, Aliganj, Lucknow has been allotted to the petitioner and since then he is residing in the said house.
4. Learned Counsel for the petitioner has further submitted that vide order dated 18.05.2005, the petitioner has been transferred in the office of District Employment Officer, Barabanki, however, the department has permitted to the petitioner to continue in the allotted house on payment of double rent as provided in the Government Order. Vide Office Memorandum dated 07.06.2007, the Industrial Training Institute was separated and established as Vocational Educational Department from the Employment Labour Department but till date, no decision has been taken in respect of identification of the employees of the Employment Department and Industrial Training Institute Department.
5. Learned Counsel for the petitioner has again submitted that vide order dated 12.05.2016, the services of the petitioner has been attached at Labour Department-5, U.P. Government and since then the petitioner is working at Lucknow. Vide order dated 26.08.2019, the opposite party no.4 has directed the petitioner to vacate the aforesaid house in question. The mother of the petitioner approached the State Government against the order dated 26.08.2019 upon which the instructions were called for from the concerned officer. The opposite party no.4 had submitted his report on 07.01.2020 stating therein that vide order dated 31.05.2005, the petitioner was relieved to District Employment Office, Barabanki, hence the allotment of the residence is not legal but the opposite party no.4 has not reported that in compliance of the order dated 12.05.2016, the petitioner is attached at the Labour Department.
6. Learned Counsel for the petitioner has next submitted that vide order dated 20.02.2020, the Special Secretary, Government of U.P., Lucknow has passed an order directing the opposite party no.2 to permit the petitioner to continue in the house in question until further orders. After the order dated 20.02.2020, the opposite party no.2 had issued a letter dated 28.02.2020 annexing the Government Order dated 02.01.1992 to the opposite party no.4 and directed him to make compliance as per the arrangement made for assessment of rent of allotted houses.
7. It has been contended by learned Counsel for the petitioner that while passing the impugned order, the opposite party no.2 has not taken into consideration the order dated 07.08.2020 by which the services of petitioner has been transferred from Barabanki to Lucknow. Therefore, the impugned order is contrary to the order dated 07.08.2020. The act of the opposite party no.4 is illegal and arbitrary and the impugned order has been passed with mala fide intention only to provide benefit to another person on his own choice. The petitioner is a low salary earner employee and he has no house or land in Uttar Pradesh. The petitioner is continuously paying the entire rent as well as other dues. The authorities are very well known that in these hard days of COVID-19 Pandemic, no one wants to shift the residence but the opposite party no.4 is adamant to outset the petitioner from the house in question.
8. Per contra, Sri Savitra Vardhan Singh, learned Counsel appearing on behalf of the State has vehemently opposed the submissions of learned Counsel for the petitioner and submitted that the petitioner has been transferred from Lucknow to Barabanki on 18.05.2005 and, therefore, he is not entitled to be continued in the allotted house in question. Learned Counsel while inviting the attention of this Court towards judgment and order dated 28.11.2019 passed by a Co-ordinate Bench of this Court in Writ-A No.18253 of 2019 (Rakesh Kumar Vs. Principal Government Inter College, Prayagraj and others) has submitted that the impgned order has been passed in pursuance to the directions issued in the said judgment and order. There is no illegality in the impugned order and the same as in accordance with law.
9. Learned Counsel appearing on behalf of the State has further submitted that the petitioner was transferred from Lucknow to Barabank in the year 2005 but after lapse of more than 15 years, the petitioner has unauthorizedly possessed the Government accommodation whereas as per the provisions of Financial Handbook, he was supposed to have vacated the official accommodation within a period of one month of his transfer, but he failed to do so and kept on residing in the said accommodation.
10. I have considered the submissions advanced by learned Counsel for the parties and perused the record.
11. In this case, vide order dated 18.05.2005, the petitioner was transferred from Government Industrial Training Institute, Aliganj, Lucknow to District Employment Office, Barabanki. After transfer from Lucknow to Barabanki, the petitioner was required to vacate the premises but the same has been occupied by him for more than 15 years. Vide order dated 12.05.2016, the petitioner has been attached from the office of District Employment Officer, Barabanki to Labour Department-5, U.P. Government.
12. The Government servant is expected to vacate the official accommodation allotted to him within the prescribed period of one month after he demits office/transferred from the office, as the allotment of the accommodation is concomitant with his posting. The official accommodation so vacated by him is to be allotted to other Government officials who have been posted to that place. The transferred Government official will have to seek official accommodation at his transferred place of posting, and cannot be allowed to retain the official accommodation allotted to him at the earlier place of posting, unless there are compelling circumstances, and for which purpose also a specific order needs to be passed by the competent authority.
13. In the case of S.D. Bandi v. Divisional Traffic Officer, Karnataka State Road Transport Corporation and others, (2013) 12 SCC 631, Hon'ble Apex Court has laid down the law that an employee should not overstay after his retirement or transfer. The Court has noticed that the States of Uttar Pradesh and Orissa have amended Section 441 of the Penal Code, 1860 (in short "IPC"). The Supreme Court has observed that the Government in two States are in a position to file criminal proceedings in the case of unauthorised occupation of government accommodation. Section 441 as amended in Uttar Pradesh as quoted in S.D. Bandi (supra) reads as under:
"441. ... or, having entered into or upon such property, whether before or after the coming into force of the Criminal Laws (U.P. Amendment) Act, 1961, with the intention of taking unauthorised possession or making unauthorised use of such property fails to withdraw from such property or its possession or use, when called upon to do so by that another person by notice in writing, duly served upon him, by the date specified in the notice, is said to commit "criminal trespass"."
14. After considering the response from all the States, Hon'ble Supreme Court has made certain suggestions in Para-33 of the S.D. Bandi's case (supra), which is as under:-
"Suggestions:
33. The following suggestions would precisely address the grievances of the Centre and the State governments in regard to the unauthorized occupants:
33.1 As a precautionary measure, a notice should be sent to the allottee/officer/employee concerned under Section 4 of the PP Act three months prior to the date of his/her retirement giving advance intimation to vacate the premises.
33.2 The Department concerned from where the government servant is going to retire must be made liable for fulfilling the above-mentioned formalities as well as follow up actions so that rest of the provisions of the Act can be effectively utilized.
33.3 The principles of natural justice have to be followed while serving the notice.
33.4 After following the procedure as mentioned in SR 317-B- 11(2) and 317-B-22 proviso 1 and 2, within 7 working days, send a show cause notice to the person concerned in view of the advance intimation sent three months before the retirement.
33.5 Date of appearance before the Estate Officer or for personal hearing as mentioned in the Act after show cause notice should not be more than 7 working days.
33.6 Order of eviction should be passed as expeditiously as possible preferably within a period of 15 days.
33.7 If, as per the Estate Officer, the occupant's case is genuine in terms of Section 5 of the Act then, in the first instance, an extension of not more than 30 days should be granted.
33.8 The responsibility for issuance of the genuineness certificate should be on the Department concerned from where the government servant has retired for the occupation of the premises for next 15 days and further. Giving additional responsibility to the department concerned will help in speedy vacation of such premises. Baseless or frivolous applications for extensions have to be rejected within seven days.
33.9 If as per the Estate Officer the occupant's case is not genuine, not more than 15 days' time should be granted and thereafter, reasonable force as per Section 5(2) of the Act may be used.
33.10 There must be a time frame within how much time the Estate Officer has to decide about the quantum of rent to be paid.
33.11 The same procedure must be followed for damages.
33.12 The arrears/damages should be collected as arrears of land revenue as mentioned in Section 14 of the Act.
33.13 There must be a provision for compound interest, instead of simple interest as per Section 7.
33.14 To make it more stringent, there must be some provision for stoppage or reduction in the monthly pension till the date of vacation of the premises.
33.15 Under Section 9 (2), an appeal shall lie from an order of eviction and of rent/damages within 12 days from the day of publication or on which the order is communicated respectively.
33.16 Under Section 9(4), disposal of the appeals must be preferably within a period of 30 days in order to eliminate unnecessary delay in disposal of such cases.
33.17 The liberty of the appellate officer to condone the delay in filing the appeal under Section 9 of the Act should be exercised very reluctantly and it should be an exceptional practice and not a general rule.
33.18 Since allotment of government accommodation is a privilege given to the Ministers and Members of Parliament, the matter of unauthorized retention should be intimated to the Speaker/Chairman of the House and action should be initiated by the House Committee for the breach of the privileges which a Member/ Minister enjoys and the appropriate Committee should recommend to the Speaker/ Chairman for taking appropriate action/ eviction within a time bound period.
33.19 The Judges of any forum shall vacate the official residence within a period of one month from the date of superannuation/retirement. However, after recording sufficient reason(s), the time may be extended by another one month.
33.20 Henceforth, no memorials should be allowed in future in any Government houses earmarked for residential accommodation. "
15. Hon'ble Supreme Court further held that the same procedure must be followed for damages also; the arrears/damages should be collected as arrears of land revenue; to make it more stringent, there must be some provision for stoppage or reduction in the monthly pension till the date of vacation of the premises.
16. The aforesaid judgment of Hon'ble Supreme Court in S.D. Bandi (supra) has been followed by a Bench of this Court in Satish Chandra Yadav Vs. State Of U.P. And 7 Ors. 2016 (2) ADJ 395 and a direction has been issued as under:-
"Therefore, the authority concerned shall adopt an uniform policy for granting extension to retain the government accommodation beyond prescribed limit. The State functionaries would follow the law laid down by the Supreme Court in the case of S.D. Bandi (supra) in letter and spirit."
17. In Union of India vs. Vimal Bhai, (2014) 13 SCC 766 Hon'ble Supreme Court directed to get the Government accommodation vacated from those who are unauthorisedly occupying the same and action must be taken strictly in accordance with para 33 of the judgment in S.D. Bandi case (supra).
18. In Lok Prahari vs. State of U.P. (2016) 8 SCC 389 (Paras-41, 46), Hon'ble Supreme Court held as under:
"41. This Court, in the case of "SD Bandi v. Karnataka SRTC, (2013) 12 SCC 631, in relation to occupation of government bungalows, beyond the period for which the same were allotted, observed that (SCC p.649, para 34) "34. It is unfortunate that the employees, officers, representatives of people and other high dignitaries continue to stay in the residential accommodation provided by the Government of India though they are no longer entitled to such accommodation. Many of such persons continue to occupy residential accommodation commensurate with the office(s) held by them earlier and which are beyond their present entitlement. The unauthorized occupants must recollect that rights and duties are correlative as the rights of one person entail the duties of another person similarly the duty of one person entails the rights of another person. Observing this, the unauthorized occupants must appreciate that their act of overstaying in the premise infringes the right of another. No law or directions can entirely control this act of disobedience but for the self realization among the unauthorized occupants".
46. So far as allotment of bungalow to private trusts or societies are concerned, it is not in dispute that all those bungalows were allotted to the societies/trusts/organizations at the time when there was no provision with regard to allotment of government bungalows to them and therefore, in our opinion, the said allotment cannot be held to be justified. One should remember here that public property cannot be disposed of in favour of any one without adequate consideration. Allotment of government property to someone without adequate market rent, in absence of any special statutory provision, would also be bad in law because the State has no right to fritter away government property in favour of private persons or bodies without adequate consideration and therefore, all such allotments, which have been made in absence of any statutory provision cannot be upheld. If any allotment was not made in accordance with a statutory provision at the relevant time, it must be discontinued and must be treated as cancelled and the State shall take possession of such premises as soon as possible and at the same time, the State should also recover appropriate rent in respect of such premises which had been allotted without any statutory provision."
19. A Division Bench in Jag Pal Singh Bhatt Vs. State of Uttar Pradesh 2002(2) AWC 988 has laid down the law in the matter of a State Government Employee that he cannot continue to occupy the official accommodation since he has been transferred from there.
20. In light of the law laid down in the aforesaid cases, relying on the judgments of the Hon'ble Supreme Court, it is clear that the impugned order has been passed in consonance with the law laid down by the Hon'ble Apex Court. The petitioner could not place any fact or law which could support his case for overstaying in the official accommodation without any authority of law. The petitioner continued to occupy the official accommodation for more than 15 years which is a very long time, without any authority of law and therefore is not entitled to any protection from this Court. No ground was canvassed by the petitioner, except the fact that he was attached in the office of Labour Department-5, U.P. Government on 12.05.2016 and, therefore, the petitioner is not entitled to retain the Government accommodation after his transfer.
21. The petitioner is directed to vacate the premises in question within a period of one month from today.
22. In case, the premises in question is not vacated by the petitioner within time, the competent authority is at liberty to take appropriate action against the petitioner.
23. Accordingly, the writ petition is dismissed. No order as to costs.
Order Date:24.11.2020 akverma