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2011 DIGILAW 187 (ALL)

Dhananjay Kumar Singh v. District Judge Gorakhpur

2011-01-25

V.K.SHUKLA

body2011
JUDGMENT Hon'ble V.K. Shukla, J. Present writ petition has been filed questioning the validity of the order dated 28.8.2009 passed by the Estate Officer, North Eastern Railway, Gorakhpur and order of its affirmance dated 13.1.2011 passed by the Appellate Authority/Special Judge SC/ST Act, Gorakhpur in Misc. Appeal No. 3 of 2009 and Misc. Appeal No. 4 of 2009 (Dhananjay Kumar Singh Versus Medical Director and others). 2. Brief background of the case is that Railway Quarter No. 580-A Jatepur Railway Colony Noreth Eastern Railway Gorakhpur was allotted to the father of the petitioner namely Jagdish Prasad Singh Laboratory Superintendent in Lalit Narain Mishra Railway Hospital Gorakhpur. The father of the petitioner retired from service on 31.1.2003. The petitioner was posted as Senior Commercial Clerk Mankapur and was transferred to Gorakhpur vide order dated 25.7.2002 passed by the Divisional Railway Manager Commiercial Lucknow and was relieved by the Station Superintendent North Eastern Railway Mankapur on 15.8.2002 and has joined at Gorakhpur on 16.8.2002. It is further stated that since the entire family of the petitioner as well as his father was residing in house No. 580-A referred to above and the petitioner was also entitled for allotment of type II quarter and has vacated his quarter at Mankapur on 15.8.2002. The petitioner has moved an application for share accommodation in Railway quarter No. 580-A with his father on 16.8.2002 and similar application was also moved by the father of the petitioner on 23.8.2002 for share accommodation of Railway Quarter with his son with effect from 16.8.2002. Petitioner claims that from the date of joining at Gorakhpur on 16.8.2002 he is residing in the Railway Quarter No. 580-A with effect from 16.8.2002 and on the letter of Medical Director Lalit Narain Mishra Railway Hospital Gorakhpur, Station Manager North Eastern Railway Gorakhpur has informed that the petitoner is not getting the house allowance with effect from August 2002 and house rent of Rs. 98.00 is being deducted. Notice under Section 4 of the Public Premises (Eviction of Unauthorised Occupant) Act 1971 and another notice under Section 7(3) of Public Premises (Eviction of Unauthorised Occupant) Act 1971 were issued to the petitioner's father on 12.11.2007 by the Estate Officer North Eastern Railway Gorakhpur. The Estate Officer North Eastern Railway Gorakhpur has passed the impugned order dated 28.8.2009 for eviction of the petitioner father and for recovery of Rs. The Estate Officer North Eastern Railway Gorakhpur has passed the impugned order dated 28.8.2009 for eviction of the petitioner father and for recovery of Rs. 4945 as penal rent with effect from 1.2.2003 to 15.10.2007 or till the eviction of the accommodation. Against the said order of Estate Officer North Eastern Railway Gorakhpur, petitioner has filed two appeals being Misc. Appeal No. 3 of 2009 and Misc. Appeal No. 4 of 2009 on the ground that with effect from 16.8.2002 the petitioner is residing in the accommodation entitled to get the benefit of share of accommodation and as he is in service he is not at all unauthorised occupant, hence neither he may be evicted nor damages may be recovered. The appeal filed by the petitioner has been dismissed by the District Judge/Appellate Authority vide judgment and order dated 13.1.2011. At this juncture present writ petition has been filed. 3. Sri. H.N. Singh, learned counsel for the petitioner contended with vehemence that in the present case petitioner has been illegally treated as unauthorised occupant, whereas in the background narrated by no stretch of imagination order in question could have been passed by the Estate Officer North Eastern Railway Gorakhpur and same could not have been affirmed by the Appellate Authority as has been done in the present case, as such orders passed are unjustifiable and same are liable to be quashed. 4. Countering the said submission, Sri Govind Saran, Advocate representing North Eastern Railway, Gorakhpur on the other hand contended that petitioner has got no right to retain premises in question, as premises in question has not been allotted in favour of the petitioner and petitioner's claim was not at all falling within the parameter of Railway Quarter Allotment Rules 2000 and as such action which has been so taken is strictly within the parameter of Public Premises (Eviction of Unauthorised Occupant) Act 1971, as such no interference is warranted. 5. After respective arguments have been advanced, factual position, which is emerging in the present case is that petitioner's father had been allotted Railway Quarter No. 580-A type II Jatepur Railway Colony, Gorakhpur, who was Laboratory Superintendent in Lalit Narain Mishra Railway Hospital, Gorakhpur. Petitioner's father retired from service on 31.1.2003. 5. After respective arguments have been advanced, factual position, which is emerging in the present case is that petitioner's father had been allotted Railway Quarter No. 580-A type II Jatepur Railway Colony, Gorakhpur, who was Laboratory Superintendent in Lalit Narain Mishra Railway Hospital, Gorakhpur. Petitioner's father retired from service on 31.1.2003. Petitioner who was posted as Senior Commercial Clerk at Railway Station Mankapur was transferred to Gorakhpur on 25.7.2002 by Divisional Railway Manager (Commercial) Lucknow and he joined at Gorakhpur on 16.8.2002. Petitioner's specific claim is that petitioner's entire family was residing at House No. 580-A Type II Jatepur Railway Colony referred to above and as such petitioner was entitled to be allotted Type-II Quarter as he had vacated his quarter at Mankapur on 15.8.2002. Petitioner has moved an application for share accommodation House No. 580-A with his father on 16.8.2002 and application to the similar effect was also moved by the father of petitioner on 23.8.2002 for share accommodation of Railway Quarter with his son. This is accepted position that till today accommodation in question has not at all been allotted in the name of petitioner under Railway Quarter Allotment Rules, 2000, in such a situation and in this background as father of the petitioner who was original allottee had already retired on 31.1.2003 and at no point of time, application moved for allotment had ever been allowed and petitioner with his family continued to retain the premises in question, then at the said juncture proceedings under Public Premises (Eviction of Unauthorised Occupant) Act 1971 has been undertaken mentioning therein that house in question was allotted in favour of Jagdish Prasad Singh and as he had retired from service, as such he has got no right to keep possession, therefore, his occupation is treated to be as that of unauthorised occupant. Notice under sub-section 1 of Section 4 of the Act was given to Jagdish Prasad Singh father of the petitioner. Further notice under sub- section 3 of Section 7 of the Act was also given to Jagdish Prasad Singh mentioning therein arrears of rent due from the Ist Day of February 2003 upto to the 15th of October, 2007. Notice under sub-section 1 of Section 4 of the Act was given to Jagdish Prasad Singh father of the petitioner. Further notice under sub- section 3 of Section 7 of the Act was also given to Jagdish Prasad Singh mentioning therein arrears of rent due from the Ist Day of February 2003 upto to the 15th of October, 2007. In the said proceeding so undertaken before the Estate Officer North Eastern Railway Gorakhpur, there was complaint of non cooperation on the part of the incumbent against whom notice has been issued and thereafter Estate Officer North Eastern Railway Gorakhpur proceeded to pass order for eviction and damages. Against the same, two set of appeal has been filed not by incumbent against whom order has been passed but by the petitioner and thereafter said appeal has been dismissed. Record in question clearly reflects that Railway Quarter No. 580-A Jatepur, Gorakhpur had been allotted in favour of Jagdish Prasad Singh, father of the petitioner and at no point of time as per terms and conditions of Railway Quarter Allotment Rules, 2000 said house in question had ever been allotted in favour of the petitioner on the basis of preference for having shared accommodation. 6. Chapter-V of Railway Quarter Allotment Rules, 2000 deals with application for registration for quarters and therein preference is to be given to son/unmarried daughter/wife/husband/father, if terms and conditions are fulfilled. Relevant Rules 4(c) is being extracted below:- 4(C). Out of Turn:- When a Railway servant who has been allotted Railway accommodation retires from service (normal retirement or dies his/her while in son/unmarried daughter/wife/husband/father may be allotted/regularised Railway accommodation of same or lower type on out of turn basis provided the said relation of the railway servant is eligible for same or higher type of accommodation and further he/she declares without suppressing the fact that he/she had been sharing accommodation with the retiring Railway servant for at least six months before the date of retirement and has not been drawing house rent allowances and the said relation of his family member does not own house at the place of her/his posting. In the present case accepted position is that six months period as mentioned has not at all 7. In the present case accepted position is that six months period as mentioned has not at all 7. been completed and thus it is writ apparent that out of turn allotment could not have been made in favour of the petitioner as has been provided for under Chapter-5 of Rule 4 (c) of Railway Quarter Allotment Rules, 2000. 8. Petitioner has placed reliance on Rule 12 of 2000 Rules by contending that on retirement, his father was entitled to retain Railway accommodation for period of four months on payment of normal rent, and for next four months on payment of double the assessed amount, and if such period is clubbed, the pre-requisite terms and conditions of completing six months would be completed/fulfilled. 9. The area of operation of Rule 4 (c) and Rule 12 are quiet distinct. Rule 4(c) is very very specific, that for getting benefit of preference/ accommodation has to be shared for six months before the date of retirement. Sharing of accommodation, post retirement, is not at all subscribed by Rules. Rule 12 only gives facility to retain premises for specified period on specified rent, and nothing beyond the same. Rule 15 clearly provides that no railway employee shall occupy any Railway quarter, in absence of proper allotment. 10. Once this is the factual scenario that pre requisite terms and conditions of getting preference was not at all fulfilled by the petitioner as he has not shared accommodation for at least six months before the date of retirement, then in such a situation rightly preference has not been given and accommodation has not been allotted in favour of the petitioner on preferential basis. Once this is factual scenario that till date house in question has not been allotted in favour of the petitioner and actual allotment has been made in the name of his father, who admittedly retired, and has not come forward to question the validity of proceedings, then in such a situation, proceeding cannot be faulted by any means and petitioner's father has rightly been held to be unauthorised occupant and liable to be pay damages and as petitioner and his family members have been illegally occupying the same, they will have to go out. At last it has been sought to be contended that damages awarded are excessive. At last it has been sought to be contended that damages awarded are excessive. Nothing has been brought on record to show and substantiate that damages which has been awarded in any way is contrary to criteria provided under the Rules and same will not fetch so much of market rent. Once there is no challenge on the said score, then damages has been rightly awarded. 11. Consequently, writ petition is dismissed.