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2014 DIGILAW 874 (ORI)

Pramila Kabita Nayak @ Kabita Nayak v. Director, South Eastern Circle Survey of India

2014-12-16

BISWAJIT MOHANTY, PRADIP MOHANTY

body2014
JUDGMENT : BISWAJIT MOHANTY, J. The petitioner has filed the present writ petition with the following prayers:- To issue (i) Writ of mandamus to opposite party No.1 not to evict the petitioner from Quarter No.49, Type-III, Survey of India Residential Colony. (ii) Further to issue direction to opposite party No.1 to start disciplinary proceeding against opp. party No.2 taking into consideration of various enquiry report and police cases against him. To issue such other writ/writs which this Hon’ble Court may think fit in the interest of justice. 2. In course of hearing, on 25.11.2014, the petitioner filed an affidavit stating that she did not want to press “prayer No.ii” as indicated above, since opp. party No.2 had already been punished and had retired from service on 31.8.2014. In such background, now this Court is only required to examine whether prayer No. (i) made above, can be allowed in favour of the petitioner ? 3. The case of the petitioner is that she married opp. party No.2 on 12.8.1997, and, thereafter, dissension arose on account of she being tortured by opp. party No.2 when her father failed to give the outstanding dowry of Rs.6,000/-. She was also pressurized by opp. party No.2 to go for abortion. In support of her marriage, she had relied on Marriage Permission Letter issued by Nikhila Utkal Oda Samanta Samaja under Annexure-1, the certificate issued by Sarpanch under Annexure-2 and Photo Identity Card issued by the Election Commission of India under Annexure-4 etc. The petitioner had also filed complaint in Odisha State Mahila Commission, Bhubaneswar, as a result of which, the said Commission took up the matter on her behalf. On 01.03.1999, when the petitioner was getting ready to go to attend the proceedings before Odisha State Mahila Commission, Bhubaneswar, the opp. party No.2 and her in-laws being armed with deadly weapons attacked her inside the quarters by breaking open the door and tried to kill her. But she was successful in running away through front door and thereafter she started shouting. Hearing her shouting, the neighbours came forward and rescued the petitioner from the attackers. Accordingly, on 1.3.1999 the petitioner lodged F.I.R. at Chandrasekharpur Police Station. During 1999, opp. party No.2 filed Title Suit No.21 of 1999 before the court of learned Civil Judge (Junior Division), Bhubaneswar against the petitioner for a declaration that petitioner was not his wife. Hearing her shouting, the neighbours came forward and rescued the petitioner from the attackers. Accordingly, on 1.3.1999 the petitioner lodged F.I.R. at Chandrasekharpur Police Station. During 1999, opp. party No.2 filed Title Suit No.21 of 1999 before the court of learned Civil Judge (Junior Division), Bhubaneswar against the petitioner for a declaration that petitioner was not his wife. After dismissal of the said Title Suit, the opp. party No.2 filed appeal before the learned Adhoc Addl. District Judge, Fast Track Court No.II, Bhubaneswar and on 20.5.2008, the learned Adhoc Addl. District Judge, Fast Track Court No.II, Bhubaneswar remanded the matter back to the learned Civil Judge (Junior Division), Bhubaneswar for giving a chance to the petitioner for adducing her evidence. The trial court was also directed to deliver a fresh judgment. Further, according to the petitioner against the Judgment of the learned Adhoc Addl. District Judge, Fast Track Court No.II, Bhubaneswar, the opp. party No.2 preferred SAO No.10 of 2008 before this Court. On 3.12.2010, this Court allowed SAO No.10 of 2008, set aside the order of the learned appellate court remanding the matter back to the trial court and directed that the suit of the opp. party No.2 be decreed with respect to his claim that petitioner was not the wife of opp. party No.2. The petitioner filed Misc. Case No.41 of 2011 to recall the order dated 3.12.2010 passed in SAO No.10 of 2008. The said Misc. Case was dismissed by this Court on 28.02.2012. Further, the petitioner filed RVWPET No.62 of 2012 to review the order dated 28.02.2012 passed in Misc. Case No.41 of 2011 arising out of SAO No.10 of 2008. The said review petition was also dismissed by this Court on 27.03.2012. Accordingly, on 21.4.2012, the learned Civil Judge (Junior Division), Bhubaneswar drew up the decree to the effect that the petitioner was not the wife of opp. party No.2 vide Annexure-B/1. Challenging the order dated 3.12.2010 passed in SAO No.10 of 2008, order dated 28.02.2012 passed in Misc. case No.41 of 2011 and order dated 27.3.2012 passed in RVWPET No.62 of 2012, the petitioner filed SLP (Civil) Nos.12864-12866 of 2013. The above noted SLPs were dismissed by the Hon’ble Supreme Court on 24.02.2014 (Annexure-H/2). The petitioner further filed Review Petition (Civil) Nos.1031-1033 of 2014. Such Review Petitions were dismissed on 8.7.2014 (Annexure-I/2). case No.41 of 2011 and order dated 27.3.2012 passed in RVWPET No.62 of 2012, the petitioner filed SLP (Civil) Nos.12864-12866 of 2013. The above noted SLPs were dismissed by the Hon’ble Supreme Court on 24.02.2014 (Annexure-H/2). The petitioner further filed Review Petition (Civil) Nos.1031-1033 of 2014. Such Review Petitions were dismissed on 8.7.2014 (Annexure-I/2). This writ petition was filed on 14.3.2012 with the earlier indicated prayers as the petitioner apprehended that opp. party No.2 was exerting pressure on opp. party No.1 to evict her from the quarters in question. Opp. party No.1 in its counter dated 7.11.2012 stated that though the quarters was allotted to opp.party No.2, presently the petitioner was residing in the said quarters No.49, Type-III, Survey of India Colony, Nayapalli, Bhubaneswar. Opp. party No.1 in his counter also made it clear that though the petitioner was presently staying in the quarters allotted to opp. party No.2, but for all practical purposes, the accommodation continued to be under the occupation of opp. party No.2 and opp. party No.2 had also been paying the licence fee and electricity charges regularly. Therefore, opp. party No.1 did not have any mandate to take over the said quarters as long as opp. party No.2 did not surrender the said quarters to the Estate Officer of Survey of India. Opp. party No.1 refers to order dated 3.12.2010 passed by this Court in SAO No.10 of 2008. Opp. party No.1 also refers to quashing of G.R. case No.653 of 1999 pending before the learned J.M.F.C., Bhubaneswar by this Court in CRLMC No.1893 of 2011, in which the present opp.party No.2 was one of the accused. Opp. party No.2 in his counter dated 12.1.2013 took the stand that the petitioner described herself as the wife of opp. party No.2 and entered into the quarters on 17.12.1998 by breaking the door lock with the help of some inhabitants. It has been further indicated that after filing of representation to opp. party No.1, when no step was taken against the petitioner and since the trespasser lady was claiming herself to be the wife of opp. party No.2, finding no way out, the opp. It has been further indicated that after filing of representation to opp. party No.1, when no step was taken against the petitioner and since the trespasser lady was claiming herself to be the wife of opp. party No.2, finding no way out, the opp. party No.2 had filed Title Suit No.21 of 1999 seeking for a declaration that present petitioner was not his wife and ultimately this Court vide order dated 3.12.2010 passed in SAO No.10 of 2008 declared the present petitioner not to be the wife of opp. party No.2. The opp. party No.2 also referred to the order of this Court dated 23.9.2011 passed in CRLMC No.1893 of 2011 quashing the Criminal proceeding against him and others. Copy of the said order has been attached as Annexure-C/2 to the counter affidavit. In his counter affidavit the opp. party No.2 has taken a plea that the order dated 3.12.2010 passed by this Court in SAO No.10 of 2008 (Annexure-B/2) has not been challenged by the petitioner in the appropriate forum. Therefore, being a trespasser, she should not be allowed to continue to remain in the quarters in question and accordingly the writ petition is without any merit and the same should be dismissed. 4. In the rejoinder filed by the petitioner to the counter affidavit of opp. party No.2, the petitioner has taken a stand that the said counter affidavit is a misnomer and should be discarded by this Court. She also disputed that she entered into the quarters on 17.12.1998 by breaking the door lock as alleged by opp. party No.2. Her further stand is that it is evident that the Board constituted by opp. party No.1 recommended that the petitioner should be allowed to stay in the quarters till opp. party No.2 settles the matter, but opp. party No.2 has not yet settled the matter. However, with regard to the order passed in SAO No.10 of 2008, the petitioner averred that though she filed a Misc. Case No.41 of 2008 to recall/modify the order dated 3.12.2010 passed in SAO No.10 of 2008, the same was dismissed without appreciating the law and fact and further she had filed RVWPET No.62 of 2012, which met with the same fate. At Para17 of the rejoinder, the petitioner took a stand that the order dated 3.12.2010 passed in SAO No.10 of 2008 and order dated 23.09.2011 passed in Criminal Misc. At Para17 of the rejoinder, the petitioner took a stand that the order dated 3.12.2010 passed in SAO No.10 of 2008 and order dated 23.09.2011 passed in Criminal Misc. Case No.1893 of 2011 were all nullity in law since they were passed erroneously and without any jurisdiction by this Court, as the Family Court was then the competent court. 5. On 22.09.2014, the petitioner filed Misc. Case No.16360 of 2014 with a prayer to amend the writ petition. The said Misc. Case was allowed on 25.11.2014. In the newly added paragraph, particularly at Para-16 the petitioner has averred that order dated 03.12.2010 passed by the learned Single Judge in SAO No.10 of 2008 directing that the suit of opp.party No.2 be decreed with respect to his claim that the petitioner/defendant was not his wife, is a nullity since the Family Court Act, 1984 was extended by Law Department Notification on 22.06.2010. She also takes the stand that accordingly the consequent decree passed by the learned Civil Judge to the effect that the petitioner was not the wife of opp. party No.2 is also a nullity. At Paras-18 and 19 of the newly added Paras, the petitioner avers that dismissal of SLPs filed by her on 24.02.2014 on the ground of limitation was illegal and so also the dismissal of Review Petition (Civil) Nos.1031-1033 of 2014. According to her, such dismissal of Review Petition violated Articles 14 and 21 of the Constitution of India. However, in the newly added Para-21, the petitioner admitted that opp. party No.2 has retired from service on 31.08.2014 and in case, the office treated that the quarters was under unauthorized occupation from 01.09.2014, the opp. party No.2 is liable to pay damages and as she being the wife living in the quarters, should be allowed to continue to stay and rent be recovered from the Provident Fund, Pension and other benefits of opp. party No.2. In Misc. Case No.16360 of 2014, the petitioner continues to describe herself as the wife of opp. Party No.2. 6. Heard Mr. D.P. Mohanty, learned Senior Counsel for the petitioner, Mr. Bose, learned Asst. Solicitor General of India for opp.party No.1 and Mr.Ganeswar Rath, learned Senior Counsel for opp. party No.2. This Court has also gone through the date chart and written note submitted by the petitioner. 7. Mr. Party No.2. 6. Heard Mr. D.P. Mohanty, learned Senior Counsel for the petitioner, Mr. Bose, learned Asst. Solicitor General of India for opp.party No.1 and Mr.Ganeswar Rath, learned Senior Counsel for opp. party No.2. This Court has also gone through the date chart and written note submitted by the petitioner. 7. Mr. Mohanty, learned Senior Counsel for the petitioner mainly submitted that the petitioner was not a trespasser and since she happened to be the legally married wife of opp. party No.2, she had a right to continue to remain in the quarters allotted in the name of her husband, namely, opp. party No.2. Secondly, according to him the order dated 3.12.2010 (Annexure-B/2) passed by this Court in SAO No.10 of 2008 and order dated 23.9.20111 (Annexure-C/2) passed by this Court in CRLMC No.1893 of 2011 were nullity in the eyes of law as they were passed erroneously and without jurisdiction. According to him the competent court then was Family Court and the Family Court ought to have decided all questions with reference to The Protection of Women from Domestic Violence Act, 2005. Mr. Mohanty also contended that order dated 24.2.2014 passed by the Hon’ble Supreme Court dismissing the Special Leave Petitions on the ground of limitation was illegal and further the dismissal of Review Petition Nos. 1031-1033 of 2014 on 8.7.2014 by circulation without hearing was in violation of Articles 14 and 21 of the Constitution of India and against the Principle of Natural Justice. Mr. Mohanty learned senior counsel for the petitioner in support of his various contentions relied on the decisions reported in AIR 2002 SC 1771 (Rupa Ashok Hurra v. Ashok Hurra and another), AIR 2010 SC 1476 (State of West Bengal and others v. Committee for Protection of Democratic Rights, West Bengal and others), AIR 2012 Karnataka 6 (S.Leelavathi & another v. M.S.Shivashankar (deceased by L.Rs) & others, (2012) 1 SCC 476 (Union of India & others v. Ramesh Gandhi), AIR 2012 SC 965 (V.D.Bhanot v. Savita Bhanot) and AIR 2014 SC 1686 (Usha Bharati v. State of U.P. and others). 8. Mr. Bose, learned Asst. Solicitor General submitted that since in the meantime opp. party No.2 has retired from service on 31.8.2014, the opp. party No.1 was entitled to get vacant possession of the quarters. Accordingly, he prayed that the writ petition be dismissed. 9. Mr. 8. Mr. Bose, learned Asst. Solicitor General submitted that since in the meantime opp. party No.2 has retired from service on 31.8.2014, the opp. party No.1 was entitled to get vacant possession of the quarters. Accordingly, he prayed that the writ petition be dismissed. 9. Mr. Rath, learned senior counsel for opp.party No.2 relied on the decision in the case of Binaya Kumar v. State of Uttar Pradesh and others (2001) 4 SCC 734 and challenged the locus standi of the petitioner, as the petitioner has no right vis-à-vis the allotted quarters. He also relied on the order passed by this Court on 03.12.2010 in S.A.O. No.10 of 2008 and the subsequent orders passed by the Hon’ble Supreme Court dismissing S.L.Ps and Review Petitions as indicated earlier. According to Mr. Rath, learned Senior Counsel, the petitioner had not been able to make out any case within four corners of law and contended that the writ petition should be dismissed. He further submitted that the petitioner had not been able to point out any provision of law under which the petitioner was entitled to continue at the said quarter No.49, type-III, Survey of India Colony. 10. It is in such factual backdrop, let us examine the submissions made by the parties. 11. The first submission of Mr. Mohanty, learned counsel for the petitioner that the petitioner being the wife of opp. party No.2, has a right to continue in the quarters in question, cannot be accepted for the very simple reason that as early as 3.12.2010 vide Annexure-B/2, this Court has directed that suit of opp. party No.2 be decreed with respect to his claim that the petitioner is not his wife. Despite being challenged, the Hon’ble Supreme Court has not altered such direction of this Court. Also on 12.04.2012, the learned Civil Judge (Junior Division), Bhubaneswar had drawn the decree in favour of opp. Party No.2 by declaring that the petitioner was not the wife of opp. party No.2. Therefore, it is too late in the day to contend that the petitioner continues to be the wife of opp. party No.2 and accordingly the authority should be directed not to evict her from the quarters. After dismissal of SLPs and Review Petitions by the Hon’ble Supreme Court as indicated (supra), we refuse to accept the submission of Mr. Therefore, it is too late in the day to contend that the petitioner continues to be the wife of opp. party No.2 and accordingly the authority should be directed not to evict her from the quarters. After dismissal of SLPs and Review Petitions by the Hon’ble Supreme Court as indicated (supra), we refuse to accept the submission of Mr. Mohanty learned Senior Counsel for the petitioner that the order dated 3.12.2010 passed in SAO No.10 of 2008 of this Court is a nullity in the eyes of law as it was passed erroneously and without any jurisdiction. Further, the learned counsel for the petitioner was not able to draw our attention to any provision of law, which gives the petitioner a right to continue in the quarters in the above backdrop, particularly after retirement of opp. party No.2. Accepting for a moment that the petitioner continues to be the wife of opp. party No.2 notwithstanding all the orders passed against her, still then can it be said that the petitioner is entitled to occupy the quarters in question even after retirement of her husband-opp. party No.2 ? The answer is a resounding ‘no’ as after retirement even the husband has also no right to continue to occupy the allotted government quarters ad infinitum. In such background, even if petitioner is taken as a wife, she also cannot continue to occupy the quarters. We, however, hasten to make it clear that we are not accepting the contention of petitioner that she continues to be the wife of opp. party No.2 after various orders of this Court as well as Hon’ble Supreme Court as indicated (supra). Similarly, the submissions of Mr. Mohanty learned Senior Counsel for the petitioner that dismissal of SLPs on 24.2.2014 and dismissal of Review Petitions (Civil) Nos.1031-1033 of 2014 on 8.7.2014 are all illegal, cannot be accepted by this Court, rather we strongly feel that such submissions at this stage are clearly unwarranted. Accordingly, we reject such submissions made by Shri Mohanty. So far as the decision cited by Shri Mohanty, it can only be said that such decisions have no application to the present case and are factually distinguishable. With regard to the ratio decided in the case of Rupa Ashok Hurra (supra), it can safely be said that the facts and issues involved therein are totally different. So far as the decision cited by Shri Mohanty, it can only be said that such decisions have no application to the present case and are factually distinguishable. With regard to the ratio decided in the case of Rupa Ashok Hurra (supra), it can safely be said that the facts and issues involved therein are totally different. In that case, the Hon’ble Supreme Court was confronted with the issue that whether a writ petition under Article 32 of the Constitution can be maintained before it to question the validity of its own judgment after the petition for review of the said judgment has been dismissed. In the present case, the issue is right of the petitioner to continue in the quarters after retirement of the person in whose favour, the quarters was allotted. Therefore, the ratio decided in the case of Rupa Ashok Hurra (supra) has no application to the present case. With regard to the ratio decided in the case of State of West Bengal and others (supra), there the issue was whether the High Court in exercise of the jurisdiction under Article 226 of the Constitution can direct the C.B.I. to investigate a cognizable offence which is alleged to have taken place within the territorial jurisdiction of the State without the consent of the State Government. Thus, the above noted case is again factually distinguishable and the ratio decided therein has no application to the present case. With regard to the ratio decided in the case of S.Leelavathi & another (supra), it has been laid down that a Civil Court cannot conduct trial after establishment of Family Court with regard to a petition for maintenance for alimony. In the present case, as indicated earlier, the issue relates to right of the petitioner to continue in the Government quarters, particularly after retirement of a person in whose favour such quarters was allotted. Therefore, the facts and issues involved in the present case are totally different. In any case so far as the present case is concerned, the Family Court came to be established when SAO No.10 of 2008 was pending before this Court not before any Civil Court. Therefore, the facts and issues involved in the present case are totally different. In any case so far as the present case is concerned, the Family Court came to be established when SAO No.10 of 2008 was pending before this Court not before any Civil Court. Moreover, at the present juncture, the petitioner cannot describe herself as a wife in view of the order passed by this Court on 3.12.2010 in SAO NO.10 of 2008 and order dated 24.02.2014 passed in SLP (Civil) Nos.12864-12866 of 2013 and order dated 8.7.2014 passed in Review Petition (Civil) Nos.1031-1033 of 2014 by the Hon’ble Supreme Court. With regard to the ratio decided in the case of Union of India & others (supra), it can be said that the issues involved in that decision are quite different from the present one. There, the judgments of the High Court and Hon’ble Supreme Court were obtained by playing fraud. F.I.R. was filed alleging that the judgments were obtained by the accused who had conspired and suppressed the material facts from the court. Challenging the said F.I.R., writ petition was filed before the High Court and the High Court quashed the said F.I.R. with the reasoning that since the supply of the coal to the private company was made in terms of the decision given by the High Court as approved by the Supreme Court at a price fixed by the Supreme Court, therefore, no Magistrate can examine the allegation that such supply of coal resulted in an unjust, pecuniary advantage to a private company. While allowing the appeal of Union of India, the Supreme Court, inter alia, held that the earlier judgments obtained by playing fraud on the courts are nullities and are to be treated as non est by every Court, superior or inferior. Therefore, held that quashing of the F.I.R. on the ground that court can go into the allegation of fraud on court to be improper. But in the present case, there exists nothing to show that earlier orders of this Court as well as Hon’ble Supreme Court were results of fraud played on the court by deliberate non-disclosure or suppression of crucial facts. Therefore, this case can in no way help the case of the petitioner. Even otherwise, accepting for a moment that the petitioner continues to be the wife of opp. Therefore, this case can in no way help the case of the petitioner. Even otherwise, accepting for a moment that the petitioner continues to be the wife of opp. party No.2 ignoring of earlier orders passed by this Court as well as Hon’ble Supreme Court even then she has no right to continue in the quarters allotted to the opp. party No.2 after his retirement. We again hasten to make it clear that we are not accepting the contention of the petitioner that she continues to be the wife of opp. party No.2 notwithstanding the orders passed by this Court as well as Hon’ble Supreme Court as indicated earlier. With regard to the ratio decided in the case of V.D.Bhanot, the said case is also factually distinguishable. There, the wife had filed a petition under Sections 12,18 and 19 of Protection of Women from Domestic Violence Act, 2005. There the Supreme Court held that even a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the above noted Act. Here, as indicated earlier issue is a simple one as to whether the petitioner can continue to stay in the Government quarters after retirement of opp. party No.2 who was allotted with the said quarters. Even in the above noted case, no direction has been issued in favour of the wife to continue with the Government accommodation in Mathura Cantonment. Therefore, the said case also does not come to the aid of the petitioner. With regard to the ratio decided in the case of Usha Bharati (supra), it can only be said that the said case is factually distinguishable and has no application to the present case. There, the issues mainly related to legality or otherwise of a notice for convening of a meeting for considering the motion of ‘no confidence’. Further, as rightly contended by Mr. Rath, learned Senior Counsel, the petitioner has not been able to satisfy us about legality of her claim to continue in the quarters with reference to any provision of law. 12. Moreover, since the petitioner has also no locus standi to maintain the writ application in the factual backdrop as described above, the writ petition is without any merit and is dismissed hereby. 12. Moreover, since the petitioner has also no locus standi to maintain the writ application in the factual backdrop as described above, the writ petition is without any merit and is dismissed hereby. In view of dismissal of the writ petition, all the pending Misc. Cases are dismissed accordingly. However, it is made clear that none of the observations made herein the judgment, would in any way affect the adjudication of other pending cases filed by the parties.