Allahabad High Court
Bachche Lal Yadav And 10 Others vs State Of U.P. And 3 Others on 19 December, 2023
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:240333-DB Court No. - 40 Case :- WRIT - C No. - 39339 of 2023 Petitioner :- Bachche Lal Yadav And 10 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Gulab Chandra Tiwari,Pragyan Singh,Santosh Singh Counsel for Respondent :- C.S.C.,Prabhakar Awasthi Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Prashant Kumar,J.
1. Heard learned counsel for the petitioner; Sri Fuzail Ahmad Ansari, learned Standing Counsel for State-respondent nos.1 to 3 and Sri Prabhakar Awasthi, learned counsel for the applicants, who have filed impleadment application dated 27.11.2023.
2. The impleadment application dated 27.11.2023 is allowed. Let the impleadment be carried out forthwith.
3. Bachche Lal Yadav (Lecturer) and 10 other Lecturers/ Asstt. Teachers working in Rajkiya Inter College, Pipari, Sonbhadra have approached this Court for a direction to respondent no.2-District Magistrate, Sonebhadra to initiate proceeding against the illegal occupants of the government accommodation allotted to them.
4. It transpires from the record that respondent no.4- Executive Engineer, Rihand Colony Civil Maintenance Division, U.P. Jal Vidyut Nigam Ltd. Office Turra (Pipari), Distt. Sonbhadra have earmarked/ allotted 36 houses/government accommodation to the teachers/ employees of Rajkiya Inter College, Pipari, Distt. Sonebhadra. In this regard, he wrote a letter to the Principal of Rajkiya Inter College, Pipari, Sonbhadra on 6.8.2010 for providing the occupancy status of the aforesaid government accommodation. Thereafter, the Principal of Rajkiya Inter College, relying on the order dated 9.7.2020 of District Magistrate, Sonbhadra, issued a public notice on 27.1.2021 asking the unauthorised occupants to vacate the aforesaid government accommodation within 15 days. Thereafter, the Principal of Rajkiya Inter College had issued final notice on 13.10.2022 asking the illegal occupant to vacate the official residence. It is stated that the Principal in this regard has also sent a letter to the District Magistrate on 27.9.2023 for getting vacated the official residence from the unauthorised occupants. The petitioners have also made several representations in this regard but no action has been taken by the authorities concerned and as such it is contended that the petitioners being fully eligible are deprived of from their rightful claim to get the official accommodations.
5. On the matter being taken up on 16.11.2023, the Court has proceeded to pass the following order:-
"1. Heard learned counsel for the petitioners and learned Standing Counsel for the respondents.
2. Bachche Lal Yadav and 10 others are before this Court with request to issue a writ, order or direction in the nature of mandamus commanding/directing to the District Magistrate, Sonebhadra (respondent no.2) to initiate proceeding against illegal encroachment made on the allotted houses of Government Inter College Pipari, Sonebhadra and to decide their representation dated 04.10.2023.
3. Learned counsel for the petitioners submits that the petitioners are serving as Lecturers and Assistant Teachers in Government Inter College Pipari, Sonebhadra. The Executive Engineer, Rihand Colony, Civil Maintenance Division, U.P. Water Electricity Corporation Limited, Sonebhadra (respondent no.4) had allotted 36 houses to the Government Inter College, Pipari on 06.08.2010. Thereafter, the Principal, Government Inter College (respondent no.3) has allotted the houses in question to the petitioners but the same have been illegally occupied by the unauthorised persons. In this regard, the respondent no.3 has also made a publication on 27.01.2021 for vacating these houses. So far as the grievance of the petitioners is concerned, they have already filed a representation dated 04.10.2023 before the District Magistrate, Sonebhadra for redressal of their grievance, which is still pending.
4. Before proceeding further in the matter, let the District Magistrate, Sonbhadra may depute some responsible officer to hold fact finding enquiry in the matter and submit a report before the Court on the next date.
5. Put up this matter as fresh on 30.11.2023."
6. In response to the aforesaid direction, learned Standing Counsel has placed the detailed instructions sent by the District Magistrate, Sonbhadra, which is taken on record. On the basis of instructions, he submits that in response to the aforesaid direction the District Magistrate had constituted a four member committee headed by Sub Divisional Magistrate, Duddhi to conduct fact finding enquiry and submit the report. The fact finding report dated 25.11.2023 is also annexed along with the instructions from which it is reflected that 11 official accommodations are illegally occupied by unauthorised occupants and they have been asked to vacate the accommodation immediately.
7. Learned Standing Counsel, on the instructions, states that it is not in dispute that said official residences are maintained by the Irrigation Department and just to accommodate the teachers and employees of the Government Inter College, certain accommodations were allotted to them. As per the fact finding report, most of the employees, who have either superannuated or transferred are still in illegal occupation of the said official accommodations. He has submitted that official residences are provided to the working employees just to cater their residential need and any encroachment on the said accommodation beyond the prescribed period is not justified. In support of his submissions, he has placed reliance on the judgment in Jag Pal Singh Bhatt v. State of U.P. 2002 (2) AWC 988, wherein the Division Bench 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. He submits that even though in the present matter admittedly most of the allottees had superannuated/ transferred way back but since then they are still in illegal occupation and on account of their illegal occupation, the teachers/employees in whose favour the allotment took place, have not received vacant possession. He has also relied upon the judgment and order dated 28.11.2019 passed in Writ-A No.18253 of 2019 (Rakesh Kumar v. Principal Government Inter College, Prayagraj & Ors.). He submits that he has no objection, if the relief, as has been pressed, is accorded by this Court.
8. On the other hand, learned counsel for newly impleaded respondents, who are alleged to have been illegally occupied the official residences, have vehemently opposed the writ petition. He has submitted that the applicants are the lawful occupants of the official accommodation and the claim as has been set up in the writ petition is thoroughly incorrect. It is contended that multiple houses have been raised by irrigation department and subsequent thereto has been transferred to U.P. Jal Vidyut Nigam Ltd. The houses, therefore, have been allotted in favour of newly impleaded respondents by the Irrigation Department through allotment letters dated 16.7.1982, 15.11.1984 and 9.11.1998. The said allotment letters have been brought on record along with short counter affidavit. He submits that U.P. Jal Vidyut Nigam Ltd. makes the allotment of houses to the employees of various departments alongside the allotment to be made to the employees of their department. A rate list and the Rules notified as back as on 28.6.2011 is also appended along with the short counter affidavit. It is contended that the applicants have also got information under the Right to Information Act, 2005 that the Irrigation Department has not allotted any house to the teaching and non-teaching staff of the Government Inter College. It is also contended that respondent no.7 has also instituted Civil Suit No.115 of 2021 in relation to House No.B-32 impleading the Principal as well as petitioner no.2. The respondent no.8 had also instituted civil suit in this regard. On the basis of questionire appended along with the short counter affidavit it is contended that the said suits are still pending consideration. It is also stated that injunction has also been accorded in the aforesaid suit and in the midst of the suit proceeding the respondents may not be evicted. It is submitted that present writ petition has been preferred with concealment of material fact and, therefore, the same is liable to be dismissed.
9. Heard rival submissions; perused the record as well as the categorical instructions produced by learned Standing Counsel and respectfully considered the judgments cited at Bar. From perusal of the fact finding enquiry report appended along with the instructions, this much is reflected that 11 quarters are still being occupied by unauthorised occupants. Earlier allottees have either been superannuated/ transferred/ died or the said accommodations have been occupied by outsiders. It is not in dispute that the disputed residences are official and most of the residences are being occupied unauthorisedly beyond prescribed period. From the said report, this much is also reflected that the said accommodations have been allotted to the petitioners but the said occupations are still in unauthorised occupation. The official residences are provided to the working employees just to cater their residential need and any encroachment on the said accommodation beyond the prescribed period is not justified. The Division Bench in Jag Pal Singh Bhatt (Supra) has categorically held that an employee cannot continue to occupy the official accommodation after his retirement.
10. Hon'ble the Apex Court in S.D. Bandi v. Divisional Traffic Officer, Karnataka State Road Transport Corporation & Ors., (2013) 12 SCC 631 has laid down the law that an employee should not overstay after his retirement or transfer. It was also observed that criminal proceeding may also be initiated in the case of unauthorised occupation of government accommodation. After considering the responses from all the States, Hon'ble the Apex Court in S.D. Bandi's case (Supra) has also given certain suggestions in para 33, which reads 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.
33.19The 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. "
11. In the aforesaid proceeding, Hon'ble the Apex 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. In the aforesaid proceeding, the State of Uttar Pradesh has also 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.
12. 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."
13. In Union of India vs. Vimal Bhai, (2014) 13 SCC 766 (Para-5), Hon'ble the 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).
14. In Lok Prahari vs. State of U.P. (2016) 8 SCC 389 (Paras-41, 46), Hon'ble the 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."
(Emphasis supplied)
15. This Court in Rakesh Kumar (Supra) considering the entire facts and circumstances as well as the judicial pronouncements holding the field had issued certain directions regarding the government accommodations, which for ready reference is quoted as under:-
"(i) The State Government shall ensure compliance of the directions of Hon'ble Supreme Court in the case of S.D. Bandi (supra) and take immediate action against all such employees/ officers who are unauthorisedly over staying in a Government Accommodation after their retirement or transfer.
(ii) Necessary action shall be taken by competent authorities in the State of Uttar Pradesh against such Employees/Officers who are unauthorisidely over staying in Government allotted accommodation after their retirement or transfer (as suggested by Hon'ble Supreme Court in the case of S.D. Bandi's case and directed to be implemented in Vimal Bhai case).
(iii) The State Government shall frame and adopt a uniform policy within two months from today, if not framed so far, for granting extension to retain the Government accommodation beyond prescribed limit and shall strictly adhere to it.
(iv) The State Government shall call for information from all the District Authorities in the State of Uttar Pradesh within two months from today about the Officers and Employees who are unauthorisedly over staying or retaining the Government accommodation beyond prescribed limit, after their retirement or transfer. Within next one month, the State Government shall ensure that all such Government accommodation being illegally or unauthorisedly occupied by retired/transferred Employees and Officers are vacated immediately. In the event, any inaction is shown by any authority, the State Government shall ensure that necessary action is also taken against such authorities.
15. With the aforesaid directions this writ petition is disposed of.
16. Let a copy of this judgment be sent by the Registrar General of this Court to the Chief Secretary, Government of Uttar Pradesh for necessary action and compliance."
16. Considering the facts and circumstances of the case, we find that the accommodations in question are official residences as such the contesting respondents cannot propose adverse possession or title. We are of the opinion that under the present facts and circumstances, injunction could not be accorded in the present matter. Moreover, as the interim injunction was accorded way back in the year 2021 and nothing is brought on record to indicate that the said injunction order was ever extended by the civil court, as such, in view of law laid down by Hon'ble the Apex Court in the judgment dated 28.3.2018 in Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. v. Central Bureau of Investigation, Criminal Appeal Nos.1375-1376 of 2013, the said injunction cannot be subsisting giving any right to the contesting respondents to hold the official residence in perpetuity. As such we are of the considered opinion that the contesting respondents must vacate the official accommodation without any further delay. Accordingly, a direction is issued to the District Magistrate to remove the illegal encroachment from the premises in question so that the same may be handed over to the rightful claimants. The said exercise shall be taken within two months from the date of production of certified copy of this order.
17. The writ petition stands allowed accordingly.
Order Date :- 19.12.2023 Manish Himwan