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2014 DIGILAW 37 (PAT)

Suresh Prasad Singh v. State Of Bihar

2014-01-09

RAMESH KUMAR DATTA

body2014
ORDER Heard learned counsel for the petitioner in both the cases and learned counsels for the State. 2. Both the writ applications raise similar issues with respect to illegality and invalidity of the certificate proceedings and the orders passed by the District Certificate Officer-cum- Sub-Divisional Officer, Saharsa in Certificate Case Nos. 1/2004 and 2/2003 by the separate orders dated 28.10.2004 by which he has directed the petitioner to deposit Rs. 15,215/- as market cum penal rent for his overstay in the quarter allotted to him with interest in the first case and an amount of Rs. 13,217 for damages caused to the quarter allotted to the petitioner, and the petitioner further seeks quashing of the appellate orders dated 24.3.2006/8.4.2006 passed by the Collector, Saharsa in two appeals being Certificate Appeal Nos. 9/2004-05 and 10/2004-05 dismissing the appeals as also the orders dated 13.5.2006 passed by the Commissioner, Koshi Division, Saharsa in Revision case Nos. 05/2006-07 and 06/2006-07 dismissing the revisions. 3. The petitioner was a Government servant who at the time of his retirement was working as Senior Personal Assistant to Commissioner, Koshi Division, Saharsa. In the year 1969 he was allotted quarter No. 20/B and he retired from his service while still in occupation of the said quarter on 31.7.2001 but claims that on account of illness of his wife he remained in the said quarter until the first week of April, 2002. The petitioner claims to have been regularly paying the monthly rental of the official quarter which was Rs. 22/- per month as fixed by the competent authority. After his retirement and post vacation of the quarter by him from 21.5.2002 the District Magistrate, Saharsa directed charging of market-cum- penal rent and the amount due against the retired/transferred employees who had not vacated the quarter allotted to them, was to be recovered by the Treasury Officer/Drawing and Disbursing Officer in one lump sum from their pension/salary. As shown in the said order, with respect to the petitioner the amount was Rs. 2310. Subsequently, another order dated 27.7.2002 was passed in which the rental of the petitioner was shown as Rs. 98/- and the penal amount was accordingly fixed as Rs. 13,230/-. The petitioner also refers to another letter dated 29.7.2002 of the Executive Engineer, Building Construction Division, Saharsa in which the sum of Rs. 2310/- has been shown as due against the petitioner. 98/- and the penal amount was accordingly fixed as Rs. 13,230/-. The petitioner also refers to another letter dated 29.7.2002 of the Executive Engineer, Building Construction Division, Saharsa in which the sum of Rs. 2310/- has been shown as due against the petitioner. Thereafter the Executive Engineer filed a requisition before the Certificate Officer-cum-Sub-Divisional Officer, Saharsa for recovery of Rs. 15,215/- being the penal rent for the period from 1.8.2001 to 1.4.2002 along with interest. 4. After vacation of the quarter by the petitioner, the same was allotted to another employee, namely, Gajendra Kumar Singh who filed an application for repair of quarter upon which an inspection was made and an estimate for repair of damages was prepared by the Assistant Engineer/Sub-Divisional Officer, Building Construction Division, Saharsa and Junior Engineer of the Department in the presence of the new allottee Gajendra Kumar Singh and repair to the tune of Rs. 11,493/- was reported by the Executive Engineer to the Collector and by letter dated 17.7.2002 the Additional Collector, Establishment, Saharsa directed the petitioner to deposit Rs. 11,493/- towards damage of the said premises. The petitioner on receipt of the said letter replied that since the allotment of the quarter to him, despite repeated requests made by him to the Executive Engineer/Assistant Engineer, no repairs were made and as a matter of fact, from time to time the petitioner on his own expenses had made various repairs and whatever so called damages had been reported by the Engineers of the Building Construction Division, are solely on account of the long standing non-repair of the building for the period of 32 years in his occupation and no damages have been caused on account of the petitioner and thus no such amount ought to be recovered from him. However, a requisition was subsequently sent by the Executive Engineer, Building Construction Division, Saharsa to the District Certificate Officer, Saharsa cum Sub-Divisional Officer, Saharsa upon which Certificate Case No. 2/2003 was initiated for an amount of Rs. 13,217/- for damages and interest. 5. The petitioner filed his objections under Section 9 of the Act in both the certificate cases but the same were rejected and the petitioner was directed to deposit the amounts involved in the two certificate cases by the impugned orders dated 28.10.2004 of the District Certificate Officer-cum-Sub-Divisional Officer, Saharsa. 13,217/- for damages and interest. 5. The petitioner filed his objections under Section 9 of the Act in both the certificate cases but the same were rejected and the petitioner was directed to deposit the amounts involved in the two certificate cases by the impugned orders dated 28.10.2004 of the District Certificate Officer-cum-Sub-Divisional Officer, Saharsa. Thereafter the petitioner filed the aforesaid appeals before the Collector under the provisions of the Bihar and Orissa Public Demand Recovery Act which were also dismissed on the ground that no such appeals lie before the Collector and under the provisions of Bihar Government Premises (Rent, Recovery and Eviction) Act, 1956, the appeal lie before the State Government. Aggrieved by the same the petitioner filed revision applications before the Divisional Commissioner who also rejected the said applications by his impugned orders dated 13.5.2006 on the same grounds. 6. Learned counsel for the petitioner submits that the entire actions of the respondents are contrary to the statutory provisions of Section 2(b) of the Bihar Government Premises (Rent, Recovery and Eviction) Act, 1956. It is urged by learned counsel that the competent authority under the said Act means any Officer not below the rank of a Sub-Deputy Collector or a Sub Deputy Magistrate authorized by the State Government by notification in the Official Gazette, to perform all or any of the functions of the competent authority under the Act for such area as may be specified in the notification. It is further submitted that under the Government notification being S.O. 565 dated 26.6.1971 for all the places in the State, apart from New Capital Area, Patna, the Sub-Divisional Officer in the area in which the residence is situated, has been specified as the competent authority. It is contended that in terms of the said Act any damage can be recovered only by first ordering the eviction of a person from the government premises by the competent authority to vacate the premises within a week and only thereafter if the person continues in unauthorized occupation, the recovery of rent under Section 5 of the Act in respect of use and occupation of the premises may be exercised under Section 5(1) of the Act. 7. 7. It is further submitted by learned counsel that any damages, for acts of waste as are likely to affect materially the value or utility of the premises, can only be recovered by the competent authority by first communicating to the person concerned in occupation of the Government premises, grounds on which it is proposed to make assessment and require him to show cause within a month why such assessment should not be made and only thereafter an appropriate order may be passed. Learned Counsel also relies upon the provisions of Section 5(3) of the Act which provides that if any person refuses or fails to pay the damages within the time specified in the notice, the damage may be recovered as arrears of land revenue. In this context learned counsel refers to the provisions of the Bihar Government Premises (Rent, Recovery and Eviction) Rules, 1957, under Rule 7 of which it is provided that no damages or arrear rent in respect of any Government premises shall be recovered under the Act as an arrear of land revenue except under and in accordance with the certificate of the competent authority issued in Form G. Learned counsel also refers to form G which provides that after assessing the amount to be recovered, the competent authority has in the said form, to make a request to the Collector to recover the same as arrears of land revenue. 8. It is thus urged by learned counsel that not a single provision of the Bihar Government Premises (Rent, Recovery and Eviction) Act and Rules has been followed in the present matter and the entire proceedings are contrary to law. 9. It is submitted that there being no certificate issued in the form G by the competent authority, all action taken under the Bihar Public Demand Recovery Act are non-est and illegal. 10. It is further submitted that the Sub-Divisional Officer himself was the competent authority and instead of issuing a certificate in form G to the Collector he had acted upon the requisition of the Executive Engineer which process is unknown to the Government Premises (Rent, Recovery and Eviction) Act and Rules. 11. 10. It is further submitted that the Sub-Divisional Officer himself was the competent authority and instead of issuing a certificate in form G to the Collector he had acted upon the requisition of the Executive Engineer which process is unknown to the Government Premises (Rent, Recovery and Eviction) Act and Rules. 11. Learned counsel also submits that even the fixation of damages have been made without any notice to the petitioner of any inspection of the premises and having been carried out behind the back of the petitioner, that too not by the competent authority, thus, all such actions of the respondents are bad in law and are fit to be quashed. 12. Learned counsel for the State, on the other hand, submits that the petitioner had overstayed in the Government accommodation and the Collector had accordingly fixed penal rent which the petitioner was obliged to pay and on failure of the petitioner to do so, the respondents were justified in recovering the same under the certificate proceedings. 13. It is also submitted by learned counsel for the State that since damage has been found in the premises in question, the respondents were justified in recovering the damages by way of certificate proceedings. 14. It is further submitted by learned counsel for the State that in his objection before the Certificate Officer the petitioner had not challenged the proceedings rather he had only challenged the enhancement of the rent from Rs. 22/- to Rs. 98/- without calculating the amounts. 15. Having considered the rival submissions of learned counsels for the parties, I find sufficient force in the submission of learned counsel for the petitioner. It is evident from the pleadings on the record that the statutory provisions laid down under the Bihar Government Premises (Rent, Recovery and Eviction) Act, 1956 has not been followed in the present matter apart from the fact that learned counsel for the State was unable to show that on what basis the amount 15 times of normal rent was charged with respect to the petitioner. It has also not been shown how from Rs. 22/- the rent of the premises became Rs. 98/- when such rent was not to be found with respect to any other premises. It has also not been shown how from Rs. 22/- the rent of the premises became Rs. 98/- when such rent was not to be found with respect to any other premises. The more serious issue however is the statutory provisions of the 1956 Act having not been followed in the matter in either fixation of the rent and penal rent in question or in the fixation of the damages. Moreover, it is not denied that no such certificate in Form G was ever filed in either of the two cases by the competent authority, namely, the Sub-Divisional Officer, before the Collector rather they have acted on the basis of the requisition of the Executive Engineer, Building Construction Division, Saharsa which is not permissible in terms of the statutory provisions of the Bihar Government Premises (Rent, Recovery and Eviction) Act, 1956. 16. The submission of learned counsel for the State that no such plea had been taken by the petitioner has to be noticed to be rejected as it is a pure question of law with regard to following of the statutory procedure which goes to the root of the jurisdiction of the Certificate Officer and the certificate proceedings. Once the Certificate Proceedings had been initiated without complying with the requirements of the 1956 Act then every further actions and orders passed in the certificate cases and subsequent orders passed in appeals and revisions would be contrary to law and have to be set aside and quashed by this Court. 17. I further find that neither the fixation of the penal rent nor the fixation of the damages caused to the quarter have been done in the manner as required by the provisions of 1956 Act which vests such power in the competent authority, namely, the Sub-Divisional Officer and not the Collector who had issued the notices in question nor in the Executive Engineer who had filed the requisition. 18. In the aforesaid view of the matter, the writ applications are allowed and the impugned orders dated 28.10.2004, 24.3.2006/8.4.2006 and 13.5.2006 passed by the District Certificate Officer-cum-Sub-Divisional Officer, Saharsa, the Collector, Saharsa and the Commissioner, Koshi Division are all quashed. 19. It would however, be open to the respondents to proceed afresh in the matter in accordance with law so far as recovery of rent/penal rent, if permissible, is concerned. 19. It would however, be open to the respondents to proceed afresh in the matter in accordance with law so far as recovery of rent/penal rent, if permissible, is concerned. With regard to the issue of damage caused, in view of the passage of time and occupation by others subsequently, it may not be possible even upon inspection to come to any definite conclusion; the certificate proceeding for recovery of damages, therefore, is quashed in its entirety without any liberty to initiate fresh proceeding. 20. The respondents are directed to refund the entire amount deposited by the petitioner with respect to the damages caused to the premises. They are further directed to refund the amount over and above the period of use and occupation of the premises in question. Let the refund be made within a period of three months from the date of receipt/production of a copy of this order.