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1999 DIGILAW 4 (KER)

Sreedharan v. Registrar, High Court of Kerala

1999-01-05

C.S.RAJAN

body1999
Judgment :- C.S. Rajan, J. The petitioner is the owner of a house in Vadakara. According to the petitioner, on the request of the second respondent through the Tahsildar, Vadakara the house was given on rent for the residential accommodation of the fifth respondent who was then the Motor Accidents Claims Tribunal. This was in consistent with Ext. P-1 order of the Government. Ext. P1 order was issued by the Government in order to comply with the directions of the Supreme Court regarding the residential accommodation of judicial Officers of the State. According to Ext. P-1, the Judicial Officer posted in a particular station shall intimate the District Collector of his requirement of residential accommodation. The District Collector shall make necessary arrangements to locate accommodation within a month according to the specifications of plinth area as laid down in G.O. MS.46/94/Home dated 3.3.1994. If the Collector is not able to locate suitable accommodation, the accommodation located by the judicial Officer within the prescribed plinth area limits shall be treated as requisitioned rental accommodation for the purpose of payment of rent. Rent of the building will be fixed considering the prevailing market rate by a committee consisting of the District Collector as convenor, the Executive Engineer (Buildings) and District Judge as members. Rent of the building should be paid to the owner by the concerned Court from the provision under 'Rent, Rate and Taxes'. The Judicial Officer will deduct 12% of his basic pay from the salary bill as his share of rent payable. In the case of the judicial Officer already in occupation of rental accommodation the same benefit will be extended to him provided that the plinth area of the building occupied is within the prescribed norms. 2. The fifth respondent addressed Ext. P-2 letter to the second respondent requesting to fix the rent in accordance with Ext. P-1 order. Accordingly, by Ext. P-3 the Superintending Engineer fixed the rent as Rs. 1,764/-with effect from 1.9.1995. The fifth respondent retired with effect from 30.6.1998. But the fifth respondent did not vacate the building. This Original Petition was filed before the retirement of the fifth respondent because no rent was paid to the petitioner since October, 1997. During the above time the fifth respondent was under suspension. 1,764/-with effect from 1.9.1995. The fifth respondent retired with effect from 30.6.1998. But the fifth respondent did not vacate the building. This Original Petition was filed before the retirement of the fifth respondent because no rent was paid to the petitioner since October, 1997. During the above time the fifth respondent was under suspension. The first prayer in the Original Petition is for payment of arrears of rent which the petitioner received subsequent to the filing of the Original Petition. The second prayer is also for a direction to the respondents to take steps to hand over vacant possession of the building to the petitioner on the expiry of the month of July 1998. 3. Learned counsel for the petitioner also made available a communication from the High Court to the District Collector dated 31.8.1995. The above communication states that the Motor Accidents Claims Tribunal, Vadakara has informed that the house belonging to the petitioner has been allotted for his occupation by the Revenue authorities on a monthly rent of Rs. 1,200/- as per his request and the High Court has accorded sanction to occupy the same. Therefore, the District Collector was requested to make necessary arrangements to forward necessary details regarding the matter to the Government. 4. A counter affidavit has been filed by the fifth respondent. According to the fifth respondent, he took the house on rent directly from the petitioner through the then President of the Bar Association in July, 1995. Therefore, according to the fifth respondent, it is not correct to say that the house was allotted as per Ext. P-1 Government Order. On the above basis it has been pointed out that the fifth respondent is liable to be evicted only under the provisions of Act 2 of 1965. The petitioner is not entitled to get any direction from his Court under Art.226 of the Constitution. 5. In the reply affidavit filed by the petitioner the statement of the fifth respondent that the house was taken on rent in the month of July, 1995 has been denied. According to the petitioner, in Ext. P-2 communication from the fifth respondent to the District Collector he has admitted that he occupied the building on 1.9.1995. The fifth respondent requested for fixation of rent only from 1.9.1995 and not earlier. According to the petitioner, in Ext. P-2 communication from the fifth respondent to the District Collector he has admitted that he occupied the building on 1.9.1995. The fifth respondent requested for fixation of rent only from 1.9.1995 and not earlier. It was further stated in the reply affidavit that if the building was given to the fifth respondent in this individual capacity and not as a judicial Officer, he would have continued to pay the rent when the payment was stopped by the fourth respondent. When the payment of rent was stopped and the petitioner approached the fifth respondent, he informed that he had no liability to pay the rent because he was occupying the building as allotted by the District Collector for occupation of Motor Accidents Claims Tribunal. Therefore, according to the petitioner, the present stand of the fifth respondent is not at all sustainable. 6. Learned counsel for the petitioner relied on a decision of the Supreme Court reported in Union of India v. Ram Kanwar (AIR 1962 SC 247). In that case a house was requisitioned by the authorities under the Defence of India Rules. When the purpose for which it was requisitioned ceased to exist, the person to whom it was allotted refused to vacate and the landlord has to approach first the High Court under Art.226 of the Constitution for a direction to get the house vacated. While dealing with the above question the Supreme Court held that the person to whom the house was allotted under the Defence of India Rules for a specific purpose is liable to vacate the house when the purpose for which it was allotted ceased to exist. Dealing with the above question the Supreme Court held as follows: "(11) Relying upon the deeming clause, it is contended that the requisition of the land and the user of the same by the Government under the 1947 Act should be deemed to be a requisition made under S.3 of the 1952 Act for a public purpose, being the purpose of the Union, and as that purpose, namely, user by the Triveni Kala Sangham, had not ceased, the appellants were not bound to de-requisition under S.6 of the Act. But the fiction created by S.24(2) of the Act would operate only upon the requisition already made. But the fiction created by S.24(2) of the Act would operate only upon the requisition already made. The fiction could not validate any legal act of the Government, Therefore the question is that what was the effect of the earlier requisition under the Rules as well as under the 1947 Act. If the requisition originally made was for purposes mentioned in R.75-A of the Rules and continued under S.3 of the 1947 Act only for the said purposes under S.3 of the 1952 Act the requisition of the property made for the said purposes would be deemed to be a requisition for a public purpose being a purpose of the Union. But the validity of the requisition could be judged on the basis of the pre-existing statutes and not on the basis of the provisions of the Sections of the 1952 Act. The result is that the requisition of a property made for public purposes under R.75-A of the Rules would be deemed to be a requisition under S.3 of the Act and all the provisions of the Act would apply accordingly. It is said that under the Rules a requisition need not have been made for public purpose; but the express provisions of R.75-A of the Rules negative this contention. Though no notice stating the purpose is contemplated under R.75-A of the Rules, the requisition could have been made only for the four public purposes mentioned in R.75-A of the Rules. We have pointed out that derequisition for the said purposes only continued under the 1947 Act. The purposes for which it was requisitioned must, therefore, be deemed to be the purposes mentioned in R.75-A of the Rules. Even if S.5 of the Act was excluded on the ground that no notice was issued under R.75-A of the Rules, the proviso to S.6 of the Act would be attracted. Under that proviso, where the purposes for which any requisitioned property was being used ceased to exist, the Central Government shall release the property, as soon as may be, from requisition. Under that proviso, where the purposes for which any requisitioned property was being used ceased to exist, the Central Government shall release the property, as soon as may be, from requisition. In the present case, on the facts it is manifest that the flat was not used for any of the purpose for which it was requisitioned for a number of years; and indeed, when the Act came into force, it was used only for locating the Triveni Kala Sangam, which is clearly not one of the purposes for which the flat was requisitioned. If so, it must be held that the purpose for which the property was requisitioned ceased to exist and the respondents have acquired a right to be put in possession thereof under the said proviso." 7. On the other hand, learned counsel for the fifth respondent contended that his occupation is not pursuant to Exhibit P-1 order of the government. According to the fifth respondent, he began occupation of the house much earlier that the date of allotment by the District Collector. The learned counsel also relied on clause V of Ext. P-1 which is as follows: "V) In the case of the judicial Officer already in occupation of rental accommodation the same benefit will be extended to him provided that the plinth area of the building occupied is within the prescribed norms." Therefore, according to the fifth respondent, he only wanted the benefit of the above clause and that is why he wrote Ext. P-2 letter to the District Collector to fix the rent The above argument cannot be accepted in view of the categoric admission of the fifth respondent in Ext. P-2 letter to the effect that he was in occupation of the building bearing No. 28/126 of Vadakara Municipality from 1.9.1995. Therefore, it is idle to contend that the fifth respondent began the occupation of the building earlier than the allotment of the house by the District Collector. 8. The only other argument of the fifth respondent is that this Court should not widen the ambit and scope of Art.226 of the Constitution in order to give a direction to vacate the house now occupied by the fifth respondent. It must be remembered that the guidelines evolved by the Supreme Court of India which became part of Ext. 8. The only other argument of the fifth respondent is that this Court should not widen the ambit and scope of Art.226 of the Constitution in order to give a direction to vacate the house now occupied by the fifth respondent. It must be remembered that the guidelines evolved by the Supreme Court of India which became part of Ext. P-1 order passed by the Government are intended to benefit the judicial Officers who should not be allowed to go in search of a house for accommodation at the mercy of the landlord and the members of the Bar Association. The Supreme Court thought that it is the duty of the Government to provide adequate residential accommodation to the judicial Officers so as to enable them to discharge their duties efficiently. If all the judicial Officers who were given accommodation pursuant to Ext. P-1 order take a similar attitude as now taken by the fifth respondent, as rightly pointed out by learned counsel for the petitioner, no reasonable landlord will be willing to allot any house for the purpose of accommodating a Subordinate Judicial Officer. The attitude now shown by the fifth respondent will definitely defeat the very purpose and the laudable object of the ruling of the Supreme Court which has now been adopted by the Government. Therefore, I feel that it is the bounden duty of this Court to see that the benefits granted by the Government as per the direction of the Supreme Court should not be misused by a Subordinate Judicial Officer. Therefore, it is highly necessary in the interest of justice as well as in the interest of the Subordinate Judicial Officers to give necessary direction to the fifth respondent to vacate the house now occupied by him which belongs to the petitioner. In that respect I think this Court is justified in widening the scope of the power under Art.226 of the Constitution of India if it can be termed as widening of the power of this Court under Art.226 of the Constitution. Therefore, the Original Petition is allowed. The fifth respondent is directed to give vacant possession of the building to the petitioner on or before 1.7.1999. It is made clear that the fifth respondent is liable to pay the existing rent to the petitioner for his continued occupation till 30.6.1999.