Baradakanta Mishra vs State of Orissa

R.N. Misra, J.—This is an application under Articles 226 and 227 of the Constitution asking for a direction to the opposite party not to proceed with eviction of Petitioner from a Government quarters which had once been allotted to him and the allotment whereof had long since been cancelled.

On 25th of March, 1975, notice of admission and hearing was given and learned Additional Government Advocate appearing for the opposite party undertook to file its counter affidavit by 31st of March, 1975. After the counter affidavit was filed, the records of a connected Title Suit referred to in the writ application were sent for. At the instance of the Petitioner, the records of a criminal case instituted by him as also the papers relating to allotment of the quarters in question in favour of Petitioner were called for and all the records have been made available. From the pleadings and the records, the following facts which appear to be relevant for disposal of the writ application are found.

Petitioner before us, was a member of the Orissa Superior Judicial Service and came to be appointed as the Commissioner of Hindu Religious Endowments having his headquarters at Bhubaneswar. On 3rd of October, J 970, he was allotted quarter No. 7, Type VII-C in Unit No. 1 of the New Capital area of Bhubaneswar for use as his residence. Petitioner was transferred from the said post of Endowment Commissioner and was posted as Additional District Judge of Cuttack. On 5-12-1970, he handed over charge of his office as Commissioner of Endowments. On 6-1-1971, the allotment in his favour of the aforesaid quarters was cancelled with due notice to him. On 19-1-1971, Petitioner made an application for permission to continue occupation of the said quarters at Bhubaneswar pending allotment of a suitable residential quarters at Cuttack. On 5-5-1971, the request of Petitioner was turned down by Government. On 7th of July, 1971, the Registrar of the High Court wrote to the Home Department to the effect that Petitioner may continue staying at Bhubaneswar while functioning as Additional District Judge at Cuttack on condition that he would not charge travelling allowance. On 2-12-1971, Petitioner wrote to the Political and Services Department of the State Government enclosing a copy of the Court''s letter thereto asking for continuance of occupation of the quarters in question by him. Therein he wrongly asserted that his headquarters had been fixed at Bhubaneswar by the High Court.

On 6-5-1972, the Secretary of the Political and Services Department submitted the following note to his Minister:

Even though the quarters has not been allotted to him formally after he ceased to be the Endowment Commissioner, he is filing representations, one after the other asking for retention of the quarters but these have been rejected as prima facie there is no ground for allotment of a quarters at Bbubaneswar for an officer posted at Cuttack. In June, 1971, the Registrar of the High Court addressed a letter to the Secretary to Government, Home Department, stating that the Court permitted him to stay at Bhubaneswar and attend to his duties at Cuttack where he could not be provided with a Government quarters. Permission of the High Court to Shri Mishra (Petitioner) to stay at Bhubaneswar does not necessarily mean fixing up his headquarters at Bhubaneswar. Obviously, as Additional District Judge, Cuttack, the Court could not have fixed up his headquarters at Bhubaneswar. The letter of the Registrar may be seen at page 14/c. Shri Mishra has enclosed this with a representation addressed to the Minister at p. 15/c. He has stated wrongly in his representation that the Court has fixed his headquarters at Bhubaneswar. Having regard to the circumstances of this case it is, therefore, suggested that for the period from 12-12-70 to 12-9-1971 (when Petitioner ceased to hold office as Additional District Judge) we may give him the concession of the usual rent and for the period thereafter up to date, standard rent may be charged. He may also be served with a notice to clear the arrears and vacate the quarters immediately within seven days failing which we will take out proceedings under the Orissa Public Premises Eviction Act, 1972

On 9th of May, 1972, the Minister accepted the proposals of the Secretary and on 11-5-1972, Petitioner was informed that his representation had been rejected. On 17-5-1972, proceedings under the Orissa Public Premises Eviction Act were initiated against Petitioner for his eviction and on 2-8-1972, orders were passed directing his eviction. Petitioner carried an appeal to the District Judge of Puri as provided under the statute and the same was dismissed. Petitioner challenged the propriety of the eviction in a writ application before this Court (0. J.C. 492 of 1973) and on 28-9-1973. the said writ application was dismissed. With the dismissal of the writ petition, the order of eviction became final.

With effect from September, 1971, Petitioner was reverted to the post of Additional District Magistrate (Judicial) and from 30th of March, 1972, he was placed under suspension. In his representation of 24th January, 1974 to the Director d Estates, Petitioner stated:

I would request you to allow me to continue in this quarters on concessional rent as a special case till the above controversies (relating to his suspension) are over and I am allowed at least subsistence allowance. Even without I such disposal, I will certainly move to my native place in the first week of May next (1974) after the school and college sessions of my children are over, and vacate this quarters.

This representation of Petitioner was rejected on 16th of February, 1974. Immediately thereafter on 22nd of February, 1974, Petitioner represented to the Governor saying:

On the above accounts, the Honorable Governor may be pleased to allow me to continue in the quarters till the first week of May next.

This representation was also disposed of soon after it was made. On 20th June, 1974, Petitioner made another representation to the Estate Officer and on the same day the following order was recorded on the representation itself:

The eviction may please be stayed till Tuesday the 25th instant. Shri Mishra has promised he would vacate the quarters on Tuesday evening in the absence of orders.

On 29-8-1974 Petitioner made an application to the Director of Estates for a month''s time. On that application, the following order was recorded on the very day:

Shri Mishra met me and told that Government orders are under issue. Stay the eviction this time allowing one month.

On 4-9-1974, Petitioner represented to the Chief Minister asking for stay of execution of the order of eviction. The record does not show any orders to have been passed on such representation.

It may be noted that in the meantime, Petitioner was dismissed from service and set up his practice as an Advocate at Cuttack. On 6-2-1975, the Director of Estates wrote a letter to Petitioner which has been annexed to the writ application as Annexure-1. It reads as follows:

" Dear Shri Misra,

Kindly refer to my discussion which I had with you on the 20th December, 1974 regarding vacation of quarter No. 7, Type-VII-C in Unit-I which you have been occupying unauthorisedly since long. In course of discussion you indicated to me that you have arranged rented accommodation at Cut tack and that you would shift your family soon. It is seen that till date the quarters is still in occupation by your family members.

Since a large number of officers including Secretaries are waiting for allotment of quarters since long, I would deem it a favour if you could arrange to vacate the'' quarters by the 10th of the current month at the latest.

With kind regards,

Yours Sincerely, (D. Swain)

Shri B.K. Misra,

Advocate, Cuttack.

On 7-2-1975, Petitioner sent a reply wherein inter alia he stated:

I have been trying to see the Chief Minister in connection with my above problems. My appeals in the Supreme Court are likely to come up for hearing in March next, after which, I will, in the extreme case, receive appreciable sum on account of subsistence allowance, so as to be financially able to shift to rented house.

So, I request you to appreciate my unenviable condition and allow me to continue in the quarters for some time more.

On 14th March, 1975, it is claimed that Petitioner was evicted from the house in question. Paragraph 7 of the counter affidavit runs thus:

Ultimately the Rent Officer effected the eviction on 14-3-1975 in the circumstances narrated under Annexure-A.... It is true that after the orders of eviction reached its finality the Petitioner has been allowed to remain in the quarters for some time. But that would not invalidate the order of eviction nor would it in any way enure to the benefit of the Petitioner. From the facts and circumstances narrated above, it can be well presumed that the Petitioner has been given maximum advantage with the idea and hope that a high ranking officer would vacate the quarters of his own accord

On the following day, Petitioner filed a complaint before the Sub-Divisional Judicial Magistrate at Bhubaneswar alleging commission of offences of theft and defamation against unknown accused persons. Therein he stated:

The complainant seriously tried to contact the chief Minister but did not find her. He, however, met the Finance Minister and narrated the above details to him. He sympathetically advised the complainant to continue in the quarters till he and the Hon''ble Chief Minister returned from Berhampur on the 17th instant So, the complainant has been in the house and his family members have returned there. The complainant did not inform the Police for obvious reasons.

On the 17th March, 1975, Petitioner filed a Title Suit in the Court of the Munsif at Bhubaneswar being Title Suit No. 13 of 1975 for permanent injunction against the State of Orissa and the learned Munsif passed an order maintaining status quo. The State of Orissa entered appearance. The learned Munsif heard the parties on the question of injunction on the 22nd of March, 1975 and posted the matter to 25th of March, 1975. Petitioner was well aware that his suit was not maintainable on various grounds and, therefore, before final orders in the injunction matter were passed by the learned Munsif, Petitioner filed the writ application before this Court on 24th of March, 1975.

An officer of Government is not entitled as of right to allotment of a residential quarters. Rule 105 of the Orissa Service Code leaves the discretion with the State Government to allot a residential building owned or leased by Government either to the incumbent of a post or to an individual officer by name. When Petitioner came to Bhubaneswar as Endowment Commissioner, he was allotted the quarters in question and the allotment, therefore, was in favour of the Commissioner of Endowments. Under Rule 107-A of the Orissa Service Code, upon transfer of Petitioner from Bhubaneswar to Cuttack and in view of the admitted position that Petitioner had not been provided with quarters at the new station, he was entitled to remain in occupation of the quarters in question for a total period of two months from the date of making over charge. In this case, therefore, Petitioner could remain in occupation of the quarters till the 5th February, 1971 at the latest.

The opposite party-State has taken the stand that there is dearth of residential accommodation for officers at Bhubaneswar. Judicial notice can also be taken of this position. In spite of the fact that Petitioner was not entitled to remain in occupation of the quarters beyond February, 1971 and at the earliest available opportunity, the allotment in his favour had been cancelled no steps were taken to evict Petitioner from the premises until expiry of four years thereafter. Learned Additional Government Advocate has explained this inaction on the ground that the vires of the Public Premises Eviction Act had been successfully challenged before this Court and a new legislation came into existence only in 1972. Soon thereafter proceedings for eviction were taken and on 2-8-1972, orders of eviction were passed. Judicial proceedings in the matter continued till 28-9-1973 when the writ application was dismissed by this Court. The inaction for the remaining period of about one and a half years thereafter has been explained in the return made to this Court and by learned Additional Government Advocate during hearing of the case by referring to the several and repeated representations of Petitioner to the different authorities of Government and on different grounds from time to time for deferring action against him. "''\\file have already referred to some of these representations and letters. On some occasions, Petitioner had volunteered to give up possession by a stated period. He did not fulfil his own undertaking and on changed grounds renewed his prayer for continuing occupation of the premises.

Once the allotment was cancelled and statutory proceedings under the Act were taken and judicial orders were obtained for eviction of Petitioner, there was absolutely no justification to delay execution of the order of eviction. Government maintain residential quarters at different stations with a view to allotting them to their officers posted at such stations. In maintaining residential buildings, it is not the intention of Government that they should carry on the business of providing accommodation on rent. Therefore, when under the statutory Rules (The Orissa Service Code) the Petitioner became disentitled to continue occupation of the official quarters and Government having decided to evict him initiated appropriate proceedings under the relevant Act and secured orders of eviction, there remained no further powers in Government not to enforce the order of eviction, particularly when it is the case of Government that there was dearth of accommodation at Bhubaneswar and public officers posted to the station were experiencing insurmountable difficulties on such score. Petitioner was anxious to continue occupation of the quarters and, therefore, on various pretexts was obtaining extension. As rightly indicated in the counter affidavit, the allotment in his favour had been cancelled as early as January, 1971 and his several representations thereafter had been rejected. The cancellation of allotment had nothing to do with the subsequent disciplinary proceedings taken against Petitioner resulting firstly in reversion, then suspension and lastly dismissal from service. The proceedings taken by Petitioner before the Supreme Court have nothing to do with the cancellation of the residential accommodation in question. By referring to these matters, Petitioner intended to confuse the public officers and create an impression in their mind that he had a right to continue in the premises. With the transfer of Petitioner from the post of Endowment Commissioner to that of Additional District Judge, Cuttack, Petitioner''s right to residence in the allotted quarters had come to an end. Notwithstanding the fact that Petitioner was not entitled to remain in occupation of the premises, he was allowed to remain in occupation for too long a period and in fact that has become the main prop for his stand in this application. Merely because the public officers entrusted with the administration of the statute failed in their duty to secure possession of the quarters in good time, no right to continue in unauthorised occupation thereof accrued to Petitioner.

We have already referred to the assertion in the counter affidavit that opposite party expected the Petitioner to vacate possession as undertaken by him on different occasions and had, keeping his status as a superior judicial officer in view, not interfered with him at any time. This explanation seems to have been advanced to cover to their own laches and to explain away their conduct of inaction. There have been many occasions when the demand for vacant possession has been enforced with such strictness in case of others as the Rules permit. In the instant case, however, that amount of strictness which the problem of deficient official accommodation at Bhubaneswar should warrant has not been shown.

It is the positive case of the opposite patty that they have already taken possession of the premises on 14th of March, 1975. Annexure-A is the detailed report submitted by the Rent Officer to the Estate Officer dealing with the question of taking of possession. Therein it has been stated that all the belongings of Petitioner''s family had been removed from the premises in a truck bearing No. ORP 983 and whatever was left in the house was also taken away by one Senapati, Petitioner''s cook. The Maintenance Chowkidar''s register shows that the cook who was the last to leave the premises signed in token of delivery of possession of the premises. Locks had been put after possession was taken. From the report (Annexure-A) and the counter affidavit, it is very clear that possession had been taken of the premises on 14th of March, 1975 as claimed by the opposite party. It must, therefore, be found as a fact that Petitioner was dispossessed on 14th of March, 1975.

At the time when possession was taken, Petitioner was not present in the premises. Later on, as the opposite party alleges, Petitioner seems to have forced his way in by trespassing into the premises. In the petition of complaint lodged by Petitioner, he stated that the members of his family have returned to the premises after he received assurances from the Finance Minister. We do not trust that a person of the status of the Finance Minister attempted to interfere with the proceedings for eviction of Petitioner. This iS perhaps the reason why Petitioner did not aver this fact in his writ application, though it was filed several days after the petition of complaint. Since such an assertion had not been made in the writ application, there has been no occasion for the opposite party to dispute that fact. Learned Additional Government Advocate is, however, right in his contention that after there has been a due eviction pursuant to statutory orders in the absence of a fresh allotment as provided under the law, assurances of any public officer, however high he may be, cannot make occupation authorised in any sense of the term.

Petitioner has thus been duly evicted in execution of order which became final as early as 1973. As Petitioner does not challenge the said order of eviction in the present proceeding, in the absence of an allotment after the order of eviction was passed, Petitioner must be taken to be a trespasser in occupation until he was evicted. Such a trespasser in a Government premises has no right to possession of the premises which can be protected in law. The learned Munsif found that Petitioner bad not gone before him in the civil litigation with clean band. He had completely suppressed facts about his eviction proceedings by the Estate Officer, the appellate order as also the rejection of the writ application by this Court and actual eviction on 14-3-1975. We are surprised that the learned Munsif did not look for the notice u/s 80 of the CPC and was prepared to give relief without application of mind. He lost sight of the fact that the jurisdiction of the Civil Court was ousted by the Orissa Public Premises Eviction Act and an alternate forum had been provided for adjudication of the disputes relating to eviction.

The same Judicial Officer functions as the Sub-Divisional Judicial Magistrate at Bhubaneswar. Immediately after the complaint was filed, he took cognizance of the offences and directed an enquiry to be made to find out who the accused persons are. A judicial enquiry to determine who the accused persons are is an unusual procedure. We, however, do not intend to say anything more about the suit as also the criminal case as the matters are pending adjudication in subordinate forums and must be left to take their own course.

In view of our finding that Petitioner had already been evicted from the premises in execution of the order for his ejectment and he has no right to remain in the premises his status having become that of a trespasser ever since cancellation of the allotment, his writ application is bound to fail. Petitioner''s prayer for issue of a writ of prohibition and injunction is accordingly rejected. It is open to the Estate authorities to take immediate possession of the house.

The writ application is accordingly dismissed. Hearing fee is assessed at rupees one hundred.

B.K. Ray, J.

I agree.