Allahabad High Court
Const. Vinay Kumar Singh vs State Of U.P. Thru Prin.Secy. Home ... on 25 June, 2020
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 26 Case :- SERVICE SINGLE No. - 9623 of 2020 Petitioner :- Const. Vinay Kumar Singh Respondent :- State Of U.P. Thru Prin.Secy. Home Lucknow And Ors. Counsel for Petitioner :- Anupam Shukla Counsel for Respondent :- C.S.C. Hon'ble Alok Mathur,J.
1. Heard Sri Anupam Shukla, learned counsel for the petitioner as well as Sri Ran Vijay Singh, learned Additional Chief Standing Counsel for the State respondents.
2. The petitioner being aggrieved by the impugned order of recovery of penal house rent on account of the fact that he continued to over stay in the Government accommodation allotted to him at the earlier place of posting in the 10th Battalion of PAC Barabanki, has approached this Court by means of instant writ petition.
3. The petitioner has assailed the recovery order dated 10.04.2020, for recovery of an amount of Rs. 2,50,344/-, on the ground that he was not given any opportunity of hearing prior to passing of the said recovery order, and also that he was entitled to retain the official accommodation allotted to him at Barabanki in light of the fact that he was not allotted the official accommodation at the transferred place i.e 32nd Battalion PAC Lucknow.
4. The petitioner has also sought to rely upon the Circular dated 06/10/2010 and also on final judgement of this Court passed in Writ Petition No. 3149 (S/S) of 2014, in support of his challenge to the impugned order.
5. The learned standing counsel has opposed the writ petition, and submitted that the petitioner was allotted the official accommodation at Barabanki when he was posted in the 10 Battalion PAC, but on 10/05/2018 he was transferred to 32nd Battalion PAC Lucknow, and that as per the provisions in the 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 without any permission from the competent authority. His occupation of the official accommodation was therefore unauthorized and illegal and therefore he was asked to vacate the premises and also to pay the penal rent as per the impugned order.
6. It was further submitted that the impugned order has been passed in pursuance to the directions issued by this Court in case of Rakesh Kumar vs Principal Inter-College, and others in Writ Petition No. 18253 of 2019 (decided on 28/11/2019).
7. It has been submitted by the learned Standing Counsel that in compliance of the aforesaid directions of this court the official accommodation is being got vacated from officials who have been transferred and are still occupying official accommodation at the earlier place of posting. He further submits that there is no illegality in the impugned order and the same as in accordance with law.
8. I have heard the counsel of the parties and perused the record.
9. The petitioner is a constable in the PAC and was transferred from Barananki to Lucknow by means of order 10/05/2018 but continued to occupy the official accommodation allotted to him at Barabanki.
10. The petitioner has submitted that he moved an application for allotment of an Government accommodation in the 32nd Battalion PAC Lucknow, but was not allotted any accommodation due to nonavailability of the same at Lucknow.
11. There is no order on the strength of which the petitioner continued to occupy the official accommodation at Barabanki.
12. By means of the impugned order dated 10/04/2020 it has been stated that the petitioner was allotted the official accommodation at Barabanki and he was transferred to Lucknow by means of order dated 10/05/2018, but he continued to occupy the official accommodation allotted to him at Barabanki and did not vacate the same as per the provisions of the Financial Handbook Vol II-IV Rule 45 A-4 read along with Rule 18 A (5). He was therefore directed to vacate the said accommodation with one month of receipt of the said order. It is further provided that the petitioner has been in unauthorised occupation of the said accommodation and therefore penal rent would be recovered from him.
13. The facts of the case are undisputed. The petitioner was transferred to Lucknow on 10/05/2018 but continued to occupy the official accommodation at Barabanki. He never applied for retention of the accommodation in Barabanki, nor was any order passed permitting him to retain the same. The retention of accommodation beyond one month from 10/05/2018 was clearly unauthorised and contrary to the provisions contained in the Financial Handbook Vol 2-4 Rule 45 A-4 read along with Rule 18 A (5).
14. 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.
15. In case, a government official overstays in the official accommodation allotted to him even after he being transferred, then the respondents can validly invoke the provisions of Public Premises Act to evict the erring Government official and also to charge penal rent from him. This proposition of law has been re-stated a number of times, and has also been held by the Hon'ble Supreme Court in number of cases the leading one being S.D. Bandi v. Divisional Traffic Officer, Karnataka State Road Transport Corporation and others, (2013) 12 SCC 631.
16. The learned Standing Counsel, to buttress the stand of the State Government referred to the specific directions issued by this Court in the case of Rakesh Kumar vs Principal Inter-College, and others in Writ Petition no. 18253/2019 (decided on 28/11/2019). The relevant portions of the judgement are quoted herein below :-
"5. 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.
6. Hon'ble Supreme Court in the case of S.D. Bandi v. Divisional Traffic Officer, Karnataka State Road Transport Corporation and others, (2013) 12 SCC 631, 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".' 3 (Uttar Pradesh).
7. 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), 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 4 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.
33.19The 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. "
8. 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 5 be some provision for stoppage or reduction in the monthly pension till the date of vacation of the premises.
9. The State of Uttar Pradesh has informed the Supreme Court that in the State of Uttar Pradesh, there is already a provision in respect of arrears of rent and damages and the rules enable the State to recover the same as arrears of land revenue. The Supreme Court was also informed by the State of Uttar Pradesh that the stringent provision viz. Section 11 of the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 is in force.
10. 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."
11. In Union of India vs. Vimal Bhai, (2014) 13 SCC 766 (Para-5) 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).
12. 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 6 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"."
17. In light of the law laid down in the aforesaid case, relying on the judgements 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 judgement cited by the petitioner does not discuss any aspect of law and in light of the binding decisions of the Hon'ble Apex Copurt in this regard no reliance can be placed on the said judgement cited by the learned counsel for the petitioner which seems to be clearly contrary to the law laid down by the Hon'ble Supreme Court.
18. The petitioner continued to occupy the official accommodation for nearly 2 years which is a very long time, without any authority of law and therefore is not entitled to any protection from this Court. He being an officer of a disciplined Police Force of the State should have voluntarily vacated the accommodation in accordance with law, or should have sought appropriate directions from his superior officers. He having not done either of the aforesaid, is not entitled for any relief from this Court. The levying of penal rent in the said circumstances also cannot be faulted. It is further submitted that no opportunity of hearing is required for levying penal rent, as the same is leviable on overstaying in the official accommodation beyond the period prescribed in the Rules. No ground was canvassed by the petitioner, except the fact that he was not allotted official accommodation at is transferred place of posting, and therefore he continued to occupy the official accommodation allotted to him at his previous place of posting. This is no ground for continuing to occupy the official accommodation in as much as the Government servant is entitled for house rent allowance in case no Government accommodation is available to be allotted to him.
19. In light of the above, I do not find any merit in the submissions made by the counsel of the petitioner.
20. The writ petition is dismissed. No order as to costs.
Order Date :- 25.6.2020 A. Verma (Alok Mathur, J.)