Disposed

Rakesh Kumar v. Principal Government Inter College, Prayagraj, and 4 Others

Allahabad HC28 Nov 2019WRIA/18253/2019

Case brief

AI extract

What is this about?

The Court disposed of a writ petition filed for allotment of government accommodation. The petitioner was allotted an accommodation in 2018, which had not been vacated by a transferred employee even after a prior court order. The Court noted the State's inaction in enforcing eviction despite Supreme Court directives in S.D. Bandi and issued directions to the State Government to frame a policy and

What did the court decide?

Directions to the State Government to frame a uniform eviction policy within two months and ensure immediate vacation of all illegally occupied government accommodations.

Rakesh Kumar Vs Principal Government Inter… — Pension and Retirement Benefits | Allahabad HC (2019)

A.F.R.

Court No. - 5

Case :- WRIT - A No. - 18253 of 2019

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Petitioner :- Rakesh Kumar

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Respondent :- Principal Government Inter College, Prayagraj, And 4 Others Counsel for Petitioner :- Indra Raj Singh, Adarsh Singh Counsel for Respondent :- C.S.C.

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Hon'ble Surya Prakash Kesarwani,J.

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Heard Sri Adarsh Singh, learned counsel for the petitioner and Sri Girish Vishwakarma, learned standing counsel for the respondent nos. 1 to 4.

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On 25.11.2019, this Court passed the following order:-

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“The petitioner is posted as Assistant Teacher in the institution of respondent no. 1. He has been allotted an accommodation by the respondent no. 1 by order dated 24.9.2018 which has not yet been vacated by the earlier Assistant Teacher, namely Sri Chhote Lal Yadav who was promoted and transferred on 3.8.2018.

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The grievance of the petitioner is that more than one year has passed and yet the respondent no. 5 has not yet vacated the residential accommodation of the institution allotted to the petitioner due to which the petitioner is suffering. In view of the facts briefly noted above, learned standing counsel is directed to obtain instructions from respondent nos. 1, 2 & 3 who shall also show cause that if the allotment order dated 24.9.2019 is still operating in favour of the petitioner, then why the accommodation has not been got vacated from the respondent no. 5 and what action has been taken against the respondent no. 5 due to alleged illegal occupation of the Government accommodation. Put up on 28.11.2019 in the additional cause list for further hearing.”

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Today, learned standing counsel has produced instruction dated 27.11.2019, given by the respondent no.1 in which it is mentioned that after the order of this Court dated 25.11.2019, the premises has been got vacated from the respondent no.5 and it has been given to the petitioner

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which was allotted to him by order dated 24.09.2018. The aforesaid instruction is kept on record.

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Perusal of this instruction prima facie shows that the respondent no.5 is indulged in not only illegally and unauthorisedly occupying the Government accommodation but also indulged in encroaching upon the Government land and damaged boundary wall etc. which is Government property. No action whatsoever has been taken by the respondent authorities except that after this court passed the above quoted order, the payment of salary of the respondent no.5 was requested to be stopped. Such type of instances are serious particularly when there is inaction on the part of the respondent authorities.

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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.

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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:

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'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".'

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(Uttar Pradesh).

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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:-

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“ Suggestions:

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The following suggestions would precisely address the grievances of the Centre and the State governments in regard to the unauthorized occupants:

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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.

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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.

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33.3 The principles of natural justice have to be followed while serving the notice.

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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.

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33.6 Order of eviction should be passed as expeditiously as possible preferably within a period of 15 days.

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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.

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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

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as per Section 5(2) of the Act may be used.

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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.

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33.11 The same procedure must be followed for damages.

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33.12 The arrears/damages should be collected as arrears of land revenue as mentioned in Section 14 of the Act.

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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.

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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.

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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.

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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.

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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.

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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. ”

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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

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be some provision for stoppage or reduction in the monthly pension till the date of vacation of the premises.

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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.

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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:-

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“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.”

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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).

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In Lok Prahari vs. State of U.P. (2016) 8 SCC 389 (Paras-41, 46), Hon'ble Supreme Court held as under:

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“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)

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“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

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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”.

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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.”

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(Emphasis supplied by me)

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From the facts as briefly noted above, it appears that despite a clear direction of Hon'ble Supreme Court and of this Court and despite the provisions of Section 11 of the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972, the State authorities have neither adopted a uniform policy nor have made any effort to enforce the provisions of Section 11 of the Act 1972 nor enforced the clear direction given by this Court in the case of Satish Chandra Yadav (supra) and

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by Hon'ble Supreme Court in the case of S.D. Bandi (supra) which has binding force under Article 141 of the Constitution of India.

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In the present case, since the accommodation has now been got vacated from the respondent No.5 and the allottee has been given possession of the allotted Government Accommodation, therefore, this writ petition is disposed of and the following directions are issued which shall be strictly complied with by the State Government:-

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(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.

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(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).

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(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.

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(iv) The State Government shall call for

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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.

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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. Order Date :- 28.11.2019/vkg

Rakesh Kumar v. Principal Government Inter College, Prayagraj, and 4 Others

Case brief

What is this about?

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Rakesh Kumar v. Principal Government Inter College, Prayagraj, and 4 Others

Case brief

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