Binapani Mukherjee v. D. M. , Gaya — 1975 DIGILAW 98 (PAT)

Judgment S.K. Choudhuri, J. This writ application has been filed by the petitioner under Article 226 and 227 of the Constitution of India for quashing annexure 2', which is an allotment order, dated 25.4.74 made by the District Magistrate, Gaya under section II (2) (a) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter called as 'the Act') and annexure 3' which is also a subsequent allotment order of the District Magistrate, dated 5th of July 1974 made under the Act, in the name of Sri S.K. Saha, Settlement Officer, (Respondent no. 2). 2. The petitioner is admittedly the owner of the double storeyed house bearing municipal holding no. 12 ward no. I-A of the Gaya Municipality and situated in New Area Mohalla of Gaya town Several years back the ground floor of the house was let out to Smt. Rajeshwari Devi, wife of Sri Behari Singh, a magistrate posted at Gaya. The petitioner has alleged that on Smt. Rajeshwari Devi's vacation of the house it was illegally allotted by the District Magistrate, Gaya (Respondent no. 1) to another Government servant. Subsequently, it has been said by the petitioner, one Shri Ahmad Hassan, Settlement officer occupied it on the basis of allotment made in his name and paid monthly rent at the rate of Rs.60/- from March 1973. A petition was filed by the petitioner on 11.2.1974 before the District Magistrate, Gaya protesting against the said allotment and praying for restoration of possession to the petitioner. But the said petition was rejected by the District Magistrate on the same date saying it was premature. It is said that Sri Ahmad Hassan thereafter retired from Govt. service on 8.3.1974. A copy of handing over charge by Sri Hassan after his retirement has been made annexure 1' to the writ petition. Even after the retirement of Sri Hassan, he continued to live in the said house as a private person till 30.4.1974. It is also said that, during occupation of Shri Hassan after his retirement as a private person, he paid rent to the petitioner and accordingly a new tenancy came into existence. However the petitioner received a fresh allotment order purported to have been passed under section 11 (2)(a) of the Act, on 25.4.74 by the District Magistrate, Gaya (Respondent no. 1). A copy of the said allotment order is annexure 2' to the main writ application. However the petitioner received a fresh allotment order purported to have been passed under section 11 (2)(a) of the Act, on 25.4.74 by the District Magistrate, Gaya (Respondent no. 1). A copy of the said allotment order is annexure 2' to the main writ application. The said annexure 2' shows that this allotment was made not to any Government servant but it was made to a Government office (viz office of the Settlement officer) for the purpose of store. The petitioner has alleged that before this allotment was made she never received any notice either from Sri Hassan or from the District, Magistrate. It has been alleged by the petitioner that the ground floor, which was however, not used for the same but from time to time, it was occupied by different employees of the settlement office and ultimately it was occupied by one Sri J.L. Arya Settlement officer. He occupied this house from 15th May 1974, till 30th June, 1974 for his residential purposes. Before vacating the house, Sri Arya did not give any notice to the petitioner and ultimately, by another allotment order dated 6th of July 1974 the District Magistrate allotted the said portion to one Sri S.K. Saha another Settlement Officer (Respondent no. 2). It has also been said in the writ petition that although there was no allotment order in the name of one Sri Mahesh Prasad. Joint Magistrate, Gaya, he occupied the same for some time. Annexure 3' is a copy of the allotment order made in the name of Sri S.K. Saha, settlement officer (Respondent no. 2). It has been stated in the writ petition that several representations were made to the District Magistrate but to no effect. A copy of the last representation has been made annexure 4' to the writ petition. A counter affidavit has been filed on behalf of respondent no. 1. The fact that successive allotments that were made by the District Magistrate were all made without notice to the petitioner, has been denied in the counter affidavit. An affidavit in reply to the counter affidavit has also been filed by the petitioner. 3. It may be stated here that in the counter affidavit it has been stated that during the pendency of the writ application a further allotment has been made by the District Magistrate in the name of Sri R.D. Sahai. An affidavit in reply to the counter affidavit has also been filed by the petitioner. 3. It may be stated here that in the counter affidavit it has been stated that during the pendency of the writ application a further allotment has been made by the District Magistrate in the name of Sri R.D. Sahai. In the rejoinder to the counter affidavit it has been stated that Sri R.D. Sahai was never in occupation but one Sri Shanti Prasad, Charge officer II has been in unauthorised occupation of the house in question Therefore, the petitioner has added Sri Santi Prasad as party respondent no. 4 and Sri R.D. Sahai as respondent no. 5 to the present writ application. 4. Mr. Jyoti Narayan, learned counsel appearing on behalf of the petitioner has contended that on the date when the allotment was made under annexure 2' to the office of the settlement officer for use of the ground floor fur office purpose it was not occupied by a Government servant and as such the order of allotment is null and void. His contention is that this allotment made under annexure 2' is dated 25th of April 1974, on which date Sri Ahmad Hassan was occupying the house not as a Government servant but actually as a private person having already retired from the service on 8.3.1974. He further contended that the allotment under annexure 2' has been made not to a Government servant but for a Government store, which is not permissible under section 11(2) (a) of the Act, and for this reason also the said allotment order is void and without jurisdiction. In my opinion, the contentions put forth by the learned counsel for the petitioner are well founded and fit to be accepted. In my opinion, the contentions put forth by the learned counsel for the petitioner are well founded and fit to be accepted. Section 11(2)(a) of the Act, (leaving the proviso) reads as follows: "Where a servant of the Government in possession of any building as a tenant intends to vacate such building, he shall give fifteen days' previous notice in writing of his intention to do so to the landlord and to the District Magistrate who shall under intimation to the landlord, within a week of the receipt of the notice, either allot building to any other servant of the Government whom the District Magistrate thinks suitable subject to the payment of rent, and the observance of the conditions of the tenancy by such servant of the Government, or direct that the landlord shall be put in possession' of the building," On a plain reading of the section it is manifest that an allotment can be made by the District Magistrate of a house which is occupied by a Government servant as a tenant only when the Government servant gives notice in writing of his intention to vacate the same to the landlord and to the District Magistrate. It is only then that the District Magistrate assumes jurisdiction to allot the building to any other Government servant. In the present case no such notice was given to the petitioner. In spite of that the District Magistrate has allotted the present house which was in occupation of Sri Ahmad Hassan who was not a Government servant on the date of allotment for office purposes. The fact that no notice was given to the petitioner by Sri Ahmad Hassan before vacating the said house has also not been controverted in the counter affidavit. In my opinion, therefore, the allotment order under Annexure 2' made: by the District Magistrate (Respondent no. 1) is illegal and without jurisdiction. I am aware of the Full Bench decision in Shiveshwar Prasad Sinha Vs. District Magistrate of Monghyr and another. This decision has no application to the facts of the present case and the point involved in the present case was not before the Full Bench for decision. 1) is illegal and without jurisdiction. I am aware of the Full Bench decision in Shiveshwar Prasad Sinha Vs. District Magistrate of Monghyr and another. This decision has no application to the facts of the present case and the point involved in the present case was not before the Full Bench for decision. It has been expressly stated in the reported decision as follows:- "Here we are not concerned with the question as to what will be the legal consequence if no notice was issued by the outgoing tenant either to the landlord or to the District Magistrate or to both. Similarly, we are not concerned with the further question about the legal consequences which would arise if, though the outgoing tenant gave fifteen day's notice as required by the statute, the District Magistrate fails to pass the order of allotment within one week of the receipt of that notice, as required by the statutory provision. We are also not concerned with the legal effect of the omission on the part of the District Magistrate to inform the landlord of the allotment of the house to Sri D.P. Yadav." 5. This order of allotment is also illegal from another point of view namely, that under this section 11 (2) (a) of the Act, the allotment has to be made to a Government servant and it cannot be made for office purposes. This conclusion is manifest from the plain language of the section itself. Thus, this contention of the learned counsel for the petitioner is also correct and has to be accepted. In that view of the matter all subsequent allotments that had been made after the order covered by annexure 2' are also illegal and without jurisdiction and cannot stand in law. They arc also accordingly set aside. 6. In that result, the writ application is allowed with costs and the orders contained in annexures 2' and 3' and all subsequent orders passed thereafter by the District Magistrate, Gaya (Respondent no. 1) are quashed The respondents arc directed to vacate the house by 15th of May, 1975 and hand over possession to the petitioner. Hearing fee is assessed at Rs.100/- payable to the petitioner. Application allowed.