G. S. Lal v. State of U. P. — 1985 DIGILAW 702 (ALL)

JUDGMENT : S.K. DHAON, J. 1. The Petitioner, a retired Government servant, has invoked the jurisdiction of this Court under Article 226 of the Constitution and has challenged the legality of the proceedings initiated under the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (hereinafter referred to as the Act) for his eviction from a Government premises on the ground that he is an unauthorised occupant of the same. 2. The Petitioner was a Joint Director of Education (Finance) Uttar Pradesh, Allahabad. He was allotted a House No. 85-A Mahatma Gandhi Marg, Allahabad (hereinafter referred to as the premises) by the Director of Education, Uttar Pradesh, Allahabad. The order of allotment was passed on 7th November, 1979. The order of allotment recited that the premises which were situate in the precincts of the Government Inter College, Allahabad and which had fallen vacant on account of the retirement of Kumari Shushma Mangalic, Joint Director of Education (Women) was being allotted to Sri Gauri Shankar Lal (the Petitioner) Joint Director of Education (Finance), Uttar Pradesh, Allahabad. 3. The Petitioner retired from the service of the Education Department on 31st January, 1980. Inspite of several notices sent by the Director of Education he failed to vacate the premises Finally proceedings were initiated under the Act by issuing a notice to the Petitioner u/s 4 thereof. The Prescribed Authority on 14th June, 1982, directed the Petitioner to vacate the premises within a period of 30 days from the date of its order. Feeling aggrieved, the Petitioner preferred an appeal which was dismissed by the VIth Additional District Judge, Allahabad on 17th May, 1983. The orders of the Appellate Authority as well as the Prescribed Authority art being impugned before this Court. 4. Section 2(e) of the Act defines 'public premises' to mean: any premises belonging or taken on lease or requisitioned by or on behalf of the State Government. The orders of the Appellate Authority as well as the Prescribed Authority art being impugned before this Court. 4. Section 2(e) of the Act defines 'public premises' to mean: any premises belonging or taken on lease or requisitioned by or on behalf of the State Government. Section 2(g) provident-- Unauthorised occupation' in relation to any public premises means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which the capacity in which he was allowed to hold or occupy the premises has expired or has been determined for any reason whatsoever, and also includes continuance in occupation in the circumstances specified in Sub-section (1) of Section 7, and shall not, merely by reason of the fact he bad paid any amount as rent be deemed to be in authorised occupation. 5. In paragraph 1 of the petition filed by the State of Uttar Pradesh u/s 4 of the Act it is stated that the premises is owned and belongs to the State of Uttar Pradesh, which has been given under the control of the Education Department of Uttar Pradesh through the Director of Education, Uttar Pradesh, Allahabad and is public premises as defined under the law, In paragraph 2 it is stated that the premises was allotted for the residence of the Petitioner for the period of his posting as the Joint Director of Education (Finance) at Allahabad in the Education Department of the State of Uttar Pradesh. A written statement was filed by the Petitioner. Paragraph 1 of the petition was denied subject to additional pleas. In the additional pleas there is not even a whisper to traverse the averments made in paragraph 1 of the petition. With regard to the contents of paragraph 2 of the petition, the Petitioner refuted the case of the State of Uttar Pradesh that the allotment of the premises was to inure for the period of his posting as Joint Director of Education (Finance) at Allahabad. Before the Prescribed Authority the State of Uttar Pradesh examined one Awadb Narain Pandey, a clerk to the Directorate of Education Uttar Pradesh. Before the Prescribed Authority the State of Uttar Pradesh examined one Awadb Narain Pandey, a clerk to the Directorate of Education Uttar Pradesh. He stated that the premises had been constructed by the Education Department and was under the care and management of the Education Department and the Director of Education, Uttar Pradesh, was competent to allot the same and also to cancel the allotment. 6. There is no dispute that the premises is the property of the Education Department of the State of Uttar Pradesh. Therefore, there can be no difficulty in coming to the conclusion that the premises are "public premises" within the meaning of Section 2(e) of the Act. The case set up by the Petitioner is that he is in legal occupation of the premises and is regularly paying three times of the standard rent as provided by subsidiary Rule 18A(5) of the Financial Hand-book, Volume II-Parts II to IV. It has been urged on behalf of the Petitioner that an implied contract of tenancy has come into existence between him and the Education Department. 7. The source of the relationship of master and servant of employer and employee is contractual. This, in legal parlance is known as the Contract of service. Certain obligations, which are contractual, arise from such a relationship. However, all obligations, which are off springs of the declared will of the parties are not contractual. 8. An office or position attracts certain obligations as necessary adjuncts or concomitants. These obligations are the incidence of an office or position. These obligations, a person takes or imposes upon himself by accepting a position or office, are not considered by law to be contractual. The will of the parties does not control the nature and contents of such obligations. The same are not dependent upon the will of the parties. They are defined and determined by the law itself. Such a law is independent of the will of the parties. Such obligations are matters of status and are known as status obligations. 9. In Roshan Lal Tandon Vs. Union of India (UOI), AIR 1967 SC 1889 the Court through Ramaswami, J. spoke: ...But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. 9. In Roshan Lal Tandon Vs. Union of India (UOI), AIR 1967 SC 1889 the Court through Ramaswami, J. spoke: ...But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. The matter is clearly stated by Salmond and Williams on Contracts as follows: So we may find both contractual and status obligations produced by the same transaction. The one transaction may result in the creation not only of obligations defined by the parties and so pertaining to the sphere of contract but also and concurrently of obligation defined by law itself, and so pertaining to the sphere of status. A contract of service between employer and employee, while for the most part pertaining exclusively to the sphere of contract, pertains also to that of status so far as the law itself has been fit to attach to this relation compulsory incidence such as liability to pay compensation for accidents. The extent to which the law is content to leave matter within the domain of contract to be determined by the exercise of the autonomous authority of the parties themselves, or thinks fit to bring the matter within the sphere of status by authoritatively determining for itself the contents of relationship, is a matter depending on considerations of public policy. In such contracts as those of service the tendency in modern times is to withdraw the matter more and more from the domain of contract into that of status." Salmond and Williams on Contracts, 2nd Edition p. 12. 10. An official position may create certain privileges and disabilities. The Petitioner occupied the premises in pursuance of the office held by him. His official position as Joint Director in the Education Department conferred upon him the limited privilege of occupying the premises till he continued to bold the position. 10. An official position may create certain privileges and disabilities. The Petitioner occupied the premises in pursuance of the office held by him. His official position as Joint Director in the Education Department conferred upon him the limited privilege of occupying the premises till he continued to bold the position. The privileges lapsed automatically upon his retirement from the Government service. The conclusion, therefore, is inevitable that the theory of an implied contract of tenancy has no legs to stand upon. 11. Let us now examine as to whether the Petitioner can fall back upon any statutory provision to make his continued occupation of the premises an authorised one. Undoubtedly, Article 309 of the Constitution empowers the appropriate Legislature to regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the Union or of any State. The proviso thereof empowers either the President or the Governor, as the case may be, to make rules regulating the recruitment, and conditions of service of persons appointed, to such services and posts in connection with the affairs of the Union or State in case the appropriate Legislature has not done so by any legislation. There should be no difficulty in taking the view that the phrase "conditions of service" in Article 309 is wide enough to include within its sweep the allotment of a Government accommodation to a Government servant. 12. The Petitioner has relied heavily upon certain Subsidiary Rules contained in Chapter IV of the U.P. Fundamental Rules contained in Financial Handbook Volume II, Parts II to IV. These rules have been framed by the Governor under Fundamental Rule 45 which reads: 45. The principles governing the allotment to government servants, for use by them as residences, of buildings owned or leased by the Government, or portions thereof, which the Government may make available for the purpose and the circumstances, in which a government servant shall be considered to be in occupation of a residence shall be regulated by such rules and orders as may be issued by the Governor. It will be immediately seen that the rules are meant to govern the situations where the buildings owned or leased by the Government are allotted to Government servants for use by them as residences. The emphasis is on the status of the allottee. It will be immediately seen that the rules are meant to govern the situations where the buildings owned or leased by the Government are allotted to Government servants for use by them as residences. The emphasis is on the status of the allottee. The buildings are to be used as residences by the Government Servants as Government servants. 13. Rule 18 of the Subsidiary Rules is relevant and may be extracted: When a building owned or leased by the Government or a portion thereof has been made available by the Government for use as a residence by a government servant under their administrative control, such building or part of a building may be allotted to a post specified in the order of allotment for use as a residence by the incumbent of the post. It will be profitable at this stage to reproduce Rule 18-A(5) in its entirety: (a) The incumbent of a post to which a residence is allotted shall vacate the residence occupied by him on his transfer before the expiry of the period of joining time (exclusive of journey time permissible to him). He may be permitted to occupy the residence in his occupation beyond the period of joining time as indicated above on payment of rent as follows: (i) normal rent under F.R. 45-A-IV (b) for one month from the date of transfer; (ii) the standard rent of the residence for the next two months; (iii) double the standard rent for the following two months; and (iv) triple the standard rent for any subsequent period. (b) In case, however, permission for continued occupation beyond joining time as referred to in Sub-paragraph (a) above is not obtained or is not granted, the occupation will be unauthorised and the incumbent will be liable to action in accordance with the law on the subject. (c)(i) In the event of death or retirement from service the incumbent and/or his family, as the case may be may remain in occupation of the residence after the date of death or retirement, for a period of one month at normal rent and thereafter for a period not exceeding three months at the standard rent of the residence. (c)(i) In the event of death or retirement from service the incumbent and/or his family, as the case may be may remain in occupation of the residence after the date of death or retirement, for a period of one month at normal rent and thereafter for a period not exceeding three months at the standard rent of the residence. (ii) In the event of resignation, dismissal or removal from service, the Incumbent and/or his family, as the case may be, may remain in occupation of the residence for a period of one month at normal rent from the date of resignation, dismissal or removal from service. (iii) Where the concession of rent free quarter was enjoyed by the incumbent before the event of death, dismissal, or removal or retirement from service, the same shall be admissible to him and or his family, as the case may be, for a period of one month from the date of death, dismissal removal or retirement from service. Provided that if the residence is occupied even beyond the period stipulated in Clauses (i), (ii) and (iii) of Sub-para (c) above the incumbent shall be required to pay triple the standard rent of the residence for any such period. Note--Normal rent means the standard rent of the residence or ten per cent of the monthly emoluments of the incumbent whichever is less and municipal and other taxes payable by the Government in respect of the residence not being in the nature of house or property tax. (Correction Slip No. 3 dated Jan. 11, 1973 Finance (G) Section 11 No. 534 (119/69). Rule 18-A(5) cannot be and should not be interpreted in isolation of Rule 18. Such an approach will be in direct conflict with the well-known rule of interpretation. It is now well settled that no provision should be read in Isolation. On the contrary, effect should be given to all the relevant provisions by adopting the principle of harmonious construction. In my opinion Rule 18 provides the key for unfolding the intendment contained in all the rules following it including Rule 18-A(5). The order of allotment passed in the instant case too should be read in the light of Rule 18. Once that is done, it is crystal clear that the premises was allotted not to the Petitioner personally but to the post of Joint Director of Education (Finance). The order of allotment passed in the instant case too should be read in the light of Rule 18. Once that is done, it is crystal clear that the premises was allotted not to the Petitioner personally but to the post of Joint Director of Education (Finance). In other words, the Petitioner was not an allottee eonominee Emphasis has been laid on Sub-clause (c) of Rule 18-A(5) and also to the proviso contained thereto. 1 have read these rules more than once and I have no hesitation in taking the view that the rules are merely concerned with the realisation of damages for the use and occupation of the government premises. In Sub-clause (c) it is very clear that the Rule framing authority intended that in the event of death or retirement from service the incumbent or his family, as the case may be, should vacate the government premises. If, however, for some reason or the other that is not done then the quantum of damages for the use and occupation is provided for, namely, normal rent for one month and thereafter for a period not exceeding three months the standard rent. The proviso enjoins that the damages will increase by leaps and bounds if the premises is not vacated and will become triple the standard rent. These rules do not create any contract of tenancy either express or Implied in favour of a government servant. Despite the rules, any government servant who retires shall in any case become an unauthorised occupant after a period of one month from the date of his retirement. Rule 43 of the Fundamental Rules read with Rule 18 of the Subsidiary Rules coupled with a close reading of Rule 18-A(5) take the matter beyond the pale of controversy. No contract of tenancy comes Into existence between the Department or the State Government on the one hand and a government servant on the other. 14. We have already read the definition of "unauthorised occupation' in the Act. I have already held that the Petitioner was under an obligation to vacate the premises immediately after the expiry of a period of one month from the date of his retirement from service. 14. We have already read the definition of "unauthorised occupation' in the Act. I have already held that the Petitioner was under an obligation to vacate the premises immediately after the expiry of a period of one month from the date of his retirement from service. His continuance in occupation of the premises after the expiry of the said period of one month is squarely covered by the expression" the continuance in occupation by any person of the public premises after the authority under which or the capacity in which he was allotted the premises has expired...". I have already emphasized that the Petitioner was allowed to hold or occupy the premises in his capacity as a Joint Director of Education (Finance). That capacity came to an end on his retirement or expired to borrow the phraseology used by the Legislature in Section 2(g) of the Act. In view of the contents of Rule 18-A(5) the incapacity of the Petitioner to occupy or hold the premises became complete or absolute after the expiry of the period of one month from the date of his retirement. The Petitioner was, therefore, in an unauthorised occupation of the premises on the date when the proceedings u/s 4 of the Act were initiated against him. 15. It was urged that, in any view of the matter, in the absence of a notice to quit as contemplated by the provisions of Section 106 of the Transfer of Property Act the tenancy of the Petitioner remained undetermined and, he, therefore, did not become an unauthorised occupant. This argument can be met on more than one ground. First, it proceeds on the assumption that a contract of tenancy either express or implied came into existence between the parties. I have already held that no such agreement came into existence. Secondly, the argument is founded upon the second limb of the provisions contained in Section 2(g) of the Act, namely, that the authority or the capacity of the occupant has not been determined. The argument overlooks the first limb, namely, the automatic expiration of the authority or capacity to occupy the premises. Secondly, the argument is founded upon the second limb of the provisions contained in Section 2(g) of the Act, namely, that the authority or the capacity of the occupant has not been determined. The argument overlooks the first limb, namely, the automatic expiration of the authority or capacity to occupy the premises. I will be repeating myself by saying that in the instant case the capacity or the authority met a natural death upon the retirement of the Petitioner from the government service and at any rate upon the expiry of period of one month from the date of his retirement. 16. Reliance has been placed on Jain Ink Manufacturing Company Vs. Life Insurance Corporation of India and Another, AIR 1981 SC 670 . This was a case arising out of proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the Central Act). The definition of 'unauthorised occupation' in Section 2(2)(g) of the Central Act is analogous to the meaning given to that expression in the Act. In the case before the Supreme Court the Appellant therein was inducted as a tenant by Mithan Lal who was the owner of certain premises. Later on the Life Insurance Corporation of India purchased the premises and the Appellant therein attorned to new landlord, namely, the Corporation. The necessity to determine the lease by a notice u/s 106 of the Transfer of Property Act arose as the relationship of landlord and tenant existed between the Appellant therein and the Life Insurance Corporation. This case, therefore, does not advance the case of the Petitioner. 17. As a result of the foregoing discussion, this writ petition lacks merit. It is, accordingly, dismissed with costs.