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Uttarakhand High Court · body

2012 DIGILAW 692 (UTT)

Doon School, Dehradun v. Manohar Daniel

2012-11-19

V.K.BIST

body2012
ORDER Petitioner No.1 (hereinafter referred to as the school) is a private educational institution. One Scheme known as House Vacation Scheme for all employees in the administrative, technical and support staff categories for those who are staying in the school complex was launched by the petitioner No.1. This scheme was launched to free up the land occupied by the quarters for other purposes of the school. The father of the respondent was appointed on the post of Electrician in the year 1948 in the school. He was given a quarter within the campus of the school in lieu of his services with the school. He retired from service on 15-7-1983. The respondent joined the services of the school on 31.01.1984 on the post of Electrician and started living in the same quarter within the campus of the school, with the consent of the school. Most of the employees opted for the scheme and accordingly they started shifting out. The school on its part started demolishing such quarters. The respondent did not avail the option. Respondent was asked to shift from his present Administrative Staff Quarter i.e. quarter No.JA-1 at Jaipur Lines to Administrative Staff Quarter No.3 near Oberai House in Doon School vide petitioners communication dated 23.04.2011. He was also asked to handover the keys of the present accommodation by 30.04.2011. Respondent did not shift. On 02.05.2011 he was again asked to shift from his present accommodation to the alternate accommodation by 15.05.2011. Respondents instead of shifting to the alternate accommodation instituted Original Suit No.144 of 2011 on 12.05.2011 seeking a relief that petitioners be restrained from evicting him from the present accommodation. Learned trial court granted ex parte interim injunction directing the parties to maintain status quo. After being served with the summoning order and notice, the petitioner filed written statement. An application was also filed by the petitioner under Order XXXIX, Rule 4 of C.P.C. for vacating ex parte injunction. It was indicated in the said application as well as in the written statement that the respondent is an employee of the school and that calling upon him to shift from one accommodation to the other within the school premises is an incidence of service. It was indicated in the said application as well as in the written statement that the respondent is an employee of the school and that calling upon him to shift from one accommodation to the other within the school premises is an incidence of service. On 19.08.2011 the Civil Judge, Junior Division, Dehradun allowed the 6C2 application of the respondent and passed order restraining the petitioners from interfering in the land which is in the possession of the respondent. Against the said order dated 19.08.2011 the petitioners filed Misc. Civil Appeal No.89 of 2011 before the District Judge, Dehradun. The learned District Judge, Dehradun transferred the said appeal to the Court of ADJ/FCT-III (sic), Dehradun. During the pendency of appeal, the appellants filed an application reiterating that respondent was being asked to shift to another accommodation of the same nature that was in his occupation within the school premises and this being an incidence of service, there is no impediment in shifting. The Additional District Judge/III Fast Track Court, Dehradun dismissed the appeal of the petitioners on 09.02.2012. Against these two orders present petition has been filed. 2. Learned counsel for the petitioners submitted that the trial court failed to consider that the petitioner/appellants school is a private unaided educational institution and it has every right to ask its employee to shift to another accommodation within the school premises, which does not tantamount to forcible eviction. He submitted that both the judgments passed by the courts below are not in accordance with law as the suit was filed by the plaintiff/respondent by concealing the fact that the plaintiff/respondent had been asked to shift from his present accommodation. He submitted that the respondent is an employee of private Educational Institution, which gets no aid from the Government, thus no injunction can be granted to the respondent in view of Section 14 read with Section 41 (e) of the Specific Relief Act, as the relief tantamount to the enforcement of personal service. He submitted that the petitioners institution has never tried to evict the respondent by force at any point of time. The respondent was simply asked to shift from his staff quarter to administrative staff quarter i.e. within the school premises, thus the apprehensions alleged by the respondent are totally misconceived. He submitted that the petitioners institution has never tried to evict the respondent by force at any point of time. The respondent was simply asked to shift from his staff quarter to administrative staff quarter i.e. within the school premises, thus the apprehensions alleged by the respondent are totally misconceived. He further submitted that the trial courts order is based on incorrect appreciation of law and facts and the trial court has not given any categorical finding whether the respondent has any prima facie case. He relied upon the judgments of Honble Supreme Court reported in (2004) 3 SCC 172 : ( AIR 2004 SC 1373 ) Pearlite Liners (P) Ltd. v. Manorama Sirsi and 2012 (2) U.D., 163, A. Shanmugam v. Arya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Aripapanai Sangam, Etc. and submitted that even the lower appellate court exercised the jurisdiction in improper manner. 3. On the other hand, learned counsel for the respondent submitted that the judgments passed by the courts below are in accordance with law and the same do not require any interference by this Court. He submitted that the categorical and concurrent findings with regard to the fact as well as law have been recorded by both the courts below and same cannot be looked into by this Court as this Court is not sitting in appeal. He submitted that there is no legal ground in the writ petition, therefore, same is not legally maintainable and deserves to be dismissed. He also submitted that the respondent is an authorized occupant over the property in question and the area of accommodation, offered by the petitioners is almost 1/4th of the present accommodation, which is not suitable for residence of a family. He further submitted that the petitioner want to evict the respondent forcibly from the property in question, which is not permissible under the law. He placed reliance on paragraph 4 of the judgment reported in 2004(3) SCC 682 : ( AIR 2004 SC 3892 ), Ranjeet Singh v. Ravi Prakash. 4. Case law cited by the learned counsel for the petitioner in Pearlite Liners (P) Ltd. (2004) 3 SCC 172 does not apply to present case as in that case, suit was instituted for declaring transfer order illegal and also for permanent injunction for holding an enquiry. 4. Case law cited by the learned counsel for the petitioner in Pearlite Liners (P) Ltd. (2004) 3 SCC 172 does not apply to present case as in that case, suit was instituted for declaring transfer order illegal and also for permanent injunction for holding an enquiry. But in the present case, injunction has been sought against the employer not to evict the employee from the official accommodation which has been given to him on account of his employment. In another case 2012 (2) UD 163 cited by the learned counsel for the petitioner, the Honble Supreme Court has held that protection of the Court can be granted or extended to the person who has valid subsisting rent agreement, lease agreement or licence agreement in his favour. This judgment helps the petitioner, as respondent is residing in the accommodation in question in the capacity of employee, and can retain the house as per the policy framed by the employer. 5. Counsel for the respondent by relying on the judgment reported in (2004) 3 SCC 682 : ( AIR 2004 SC 3892 ), submitted that this Court should not entertain the petition as Court is not sitting in appeal and should not disturb the finding given by the Courts below. Case law cited by the learned counsel for the respondent does not apply in the present case in view of discussion in subsequent paragraph. 6. The petitioner, in their written statement categorically mentioned that respondent was given the accommodation in question in lieu of his services with the school, but subject to schools rules and condition of Housing Policy. The petitioner also mentioned in the written statement that respondent had agreed to abide by the school rules and the Housing Policy vide his written declaration dated 28.03.2001. Both the Courts below have not dealt with this aspect of the matter. It is not disputed that school has provided residential accommodation to the respondent and he has been permitted to live therein on account of his employment. The school has merely asked him to shift to another accommodation within the school premises and has not tried to evict him forcibly. It is not the case of the petitioner that he is occupying the accommodation on the basis of lease or licence. It is also undisputed that residential accommodation was given to him as one of the conditions of employment. It is not the case of the petitioner that he is occupying the accommodation on the basis of lease or licence. It is also undisputed that residential accommodation was given to him as one of the conditions of employment. Now the employer simply wants him to shift to another accommodation. Employer has full right to do so. An employee can certainly ask for accommodation but he cannot ask for particular accommodation. In the present case, the school has already offered alternative accommodation to the respondent. It cant be believed that irreparable loss will be suffered by the respondent, if he shifts to another official accommodation. Thus, it is apparent that injunction that has been granted by the Courts below could not be granted. Both the Courts below committed patent illegality in granting injunction in favour of the respondent. 7. In view of above discussion, petition is allowed. Order dated 19.08.2011 passed by the learned Civil Judge, (J.D.), Dehradun in Suit No.144 of 2011- Manohar Daneil v. The Doon School & another and order dated 09.02.2012 passed by the learned Additional District Judge/F.T.C.-III, Dehradun in MCA No.82 of 2011- The Doon School & another v. Manohar Daniel are quashed. Application 6-C2 filed by the respondent for injunction is rejected. 8. No order as to costs. Petition allowed.