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Uttarakhand High Court · body

2014 DIGILAW 600 (UTT)

Jayanand Prasad Tyagi v. State of Uttarakhand

2014-12-18

ALOK SINGH

body2014
JUDGMENT Alok Singh, J. 1. Petitioner was working as Regular Work Supervisor with the Irrigation Department; Quarter No. B-244, Lakhwad Colony was allotted to the petitioner when he was in service; petitioner stood retired on attaining the age of supernnuation on 31.07.2008; vide letter / notice dated 20.03.2009, annexure No.1, petitioner was directed to pay penal rent @ Rs.3,217/- p.m. feeling aggrieved, petitioner has preferred present writ petition. 2. Section 7 of U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 and Rule 8 of U.P. Public Premises (Eviction of Unauthorised Occupants) Rules, 1973 read as under :- “Power to require payment of rent or damages in respect of public premises:- (1) Where any person is in arrears of rent for four months payable to respect of any public premises, the prescribed authority may, by order, require that person to pay the same within such time and in such instalments as may be specified in the order, and on the failure of such person to pay the same or any instalment thereof he shall be deemed, to be in unauthorised occupation of the public premises. (2) Where any person is, or has at any time been, in authorised occupation of any public premises, the prescribed authority may, having regard to such principles of assessment of damages as may be prescribed assess the amount of damages on account of the use and occupation of such premises and may by order, require that person to pay the amount within such time and in such instalment as may be specified in the order. (3) No order under sub-section (1) or sub-section (2) shall be made against any person until after the issue of a notice in writing to the person calling upon whom to show cause within such time as may be specified in the notice, why such order should not be made, and until his objections, if any the evidence he may produce in support of the same have been considered by the prescribed authority.” “8. Assessment of damages. [Sections 7 (2) and 18 (2) (e)]. – In assessing damages for unauthorized use and occupation of any public premises, the Prescribed Authority shall take into consideration the following matters, namely:- (a) The purpose and the period for which the public premises were in unauthorized occupation. (b) The nature, size and standard of the accommodation available in such premises. [Sections 7 (2) and 18 (2) (e)]. – In assessing damages for unauthorized use and occupation of any public premises, the Prescribed Authority shall take into consideration the following matters, namely:- (a) The purpose and the period for which the public premises were in unauthorized occupation. (b) The nature, size and standard of the accommodation available in such premises. (c) The rent that would have been realized if the pubic premises had been let out on rent for the period of unauthorized occupation to a private person. (d) Any damages done to the pubic premises during the period of unauthorized occupation. (e) The expenditure, if any, incurred in litigation for eviction, including lawyer’s fees. (f) Any other matter relevant for the purpose of assessing the damages.” 3. As per sub-section (2) of Section 7 of Act of 1972, if any person is in unauthorized occupation of any public premises, the Prescribed Authority may assess the amount of damages on account of use and occupation of such premises and shall direct the person in unauthorized occupation to pay the damages as assessed by the Prescribed Authority. Assessment of the damages has to be made as per the procedure prescribed under Rule 8 of Act of 1972. 4. Public premise is defined under sub-section (e) of Section 2 of the Act of 1972. Since quarter, in question, belongs to the State Government, therefore, it falls within the definition of “public premises”. Unauthorised occupation is defined under sub-section (g) of Section 2 of the Act. After retirement and expiry of permissible limit to occupy the Government quarter, possession of the petitioner falls within the definition of “unauthorized occupation.” 5. Undisputedly, petitioner has handed over possession of the quarter, in question, on 12.06.2009 to the Department. Now question remains as to how much penal rent and damages can be recovered from the petitioner who was said to be unauthorized occupation of the quarter, in question. 6. Penal rent / damages can only be assessed by the Prescribed Authority under Section 7 (2) read with Rule 8 of the Act. 7. In the present case, without referring the matter to the Prescribed Authority, it seems that Executive Engineer himself has assessed the penal rent / damages for unauthorized occupation. Therefore, impugned order does not sustain in the eyes of law. 8. Consequently, impugned orders are hereby quashed. Writ petition is allowed. 7. In the present case, without referring the matter to the Prescribed Authority, it seems that Executive Engineer himself has assessed the penal rent / damages for unauthorized occupation. Therefore, impugned order does not sustain in the eyes of law. 8. Consequently, impugned orders are hereby quashed. Writ petition is allowed. However, respondents shall be at liberty to refer the dispute to the Prescribed Authority under Section 7 (2) of the Act read with Rule 8 of the Rules for assessment of the damages / penal rent. 9. CLMA No. 10752 of 2014 and IA No. 4737 of 2014 stand disposed of accordingly.