ORDER
Ravi S. Dhavan, C.J.
1. This case is about state accommodation and Government estates not being accounted for by the administration. This case highlights that Government flats, houses and bungalows otherwise meant for allotment to those connected with the affairs of the State Government, the Civil Servants, Ministers, Hon’ble Members of the Legislative Assembly and Hon’ble Members of the Legislative Council are not available for allotment. This case highlights that Government accommodation has been occupied unauthorisedly by persons who have no allotment order. This case also highlights that such Government accommodation, perhaps, is being utilised by being put on hire and business by misuse of the privilege of a licence to occupy Government premises. These aspects, otherwise, have also been highlighted in the newspapers before the case was pending and during the pendency of the case.
2. By and large, the assertions of the petitioner have not been denied in replies which have come on behalf of the Government of Bihar. In effect, allegations of unauthorised occupation of Government flats and houses is accepted. It is acknowledged that Government flats and houses have trespassed into and steps are being taken to evict such illegal occupants. No answer seems to be forth coming how State owned accommodation was occupied without authorisation? Who has occupied these accommodations? Who abetted to this situation?
3. If it were one case or two the Court could treat it as an exception like an unlicensed camper. But, a general pattern reads like hiding criminals in Government accommodations under State benefactions. Is the Secretary to the Government making an official statement in his affidavits on record that in Bihar there is license to grab Government accommodation? This is down right criminality under government patronage.
4. If Government accommodation has been occupied illegally and this is accepted then what did those in the Government’s executive arm do?
5. Illegal occupation of anyone’s property is breaking the law. It is a crime. The law, the Indian Penal Code, in the variations of the law’s breaking calls it with such terms as criminal trespass (Section 441), house trespass (Section 442), lurking house trespass (Section 443), lurking house trespass by night (Section 444), house breaking (Section 445), house breaking by night (Section 446). The Indian Penal Code also gives illustrations on the shades and variations of house-breaking and house trespass. These are:
On House breaking–
“First. If he enters or quits through a passage by himself, or by any abettor of the house-trespass, in order to the committing of the house-trespass.
Secondly.–If he enters or quits through any passage not intended by any person other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building.
Thirdly.–If he enters or quits through any passage which he or any abettor of the house-trespass has opened, in order to the committing of the house-trespass by any means by which that passage was not intended by the occupier of the house to be opened.
Fourthly.–If he enters or quits by opening any lock in order to the committing of the house-trespass, or in order to the quitting of the house after a house-trespass.
Fifthly,–If he effects his entrance or departure by using criminal force or committing an assault or by threatening any person with assault.
Sixthly.–If he enters or quits by any passage which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the house-trespass.
Explanation.–Any out-house or building occupied with a house, and between which and such house there is an immediate internal communication, is part of the house within the meaning of this section.
Illustrations:
(a) A commits house-trespass by making a hole through the wall of Z’s house, and putting his hand through the aperture. This is house-breaking.
(b) A commits house-trespass by creeping into a ship at a port-hole between decks. This is house-breaking.
(c) A commits house-trespass by entering Z’s house through a window. This is house-breaking.
(d) A commits house-trespass by entering Z’s house through the door, having opened a door which was fastened. This is house-breaking.
(e) A commits house-trespass by entering Z’s house through the door, having lifted a latch by putting a wire through a hole in the door. This is house-breaking.
(f) A finds the key of Z’s house door, which Z had lost, and commits house-trespass by entering Z’s house, having opened the door with that key. This is house-breaking.
(g) Z is standing in his doorway. A forces a passage by knocking Z down, and commits house-trespass by entering the house. This is house-breaking.
(h) Z, the door-keeper of Y, is standing in Y’s doorway. A commits house-trespass by entering the house, having deterred Z from opposing him by threatening to beat him. This is house-breaking.
6. A Secretary to the State Government who runs the administration is telling the High Court that in Bihar mass criminal trespass, house trespass, lurking house trespass and house breaking is a phenomenon. He is telling the High Court that Government property and estates has passed into the hands of laws breakers.
7. On an inquiry from the Court put to the Additional Advocate General-II as to how this has happened on a large scale, the latter candidly submitted that it would be best that the details are not sought.
8. The facts seem to be emerging on the record slowly. It is illegal occupation or a tacit acceptance behind the scenes, of an organised and orchestrated plan which is worked everyday in parallel files of a syndicate within the Government itself, no one knows.
9. What would be the safety of property of ordinary people if the Government cannot protect its accommodation and Government estates all over Bihar?
10. In his submission the Secretary, Building Construction Department, Bihar, is telling the High Court that a large chunk of illegal occupation of Government accommodation is the domain of the Ministers, Members of the Legislative Assembly, and Members of the Legislative Council, and that this situation has existed for a considerable period of time, since about 1992. To quote the Secretary, his statements run thus:
“4. That in reply to the contents of the letter dated 17-11-2002 of Mr. Rama Nand Sharma mentioned above, it is submitted that it is not correct to contend that due to indulgence of the officers of the Building Construction Department unauthorised occupation of the Government Quarters is continuing. Though it is not denied that there are some quarters still under unauthorised occupation, the Building Construction Department is making all efforts to get the unauthorised occupants evicted. So far as the present position of Quarters No. 15 A/60, Baily Road and 29/60 Baily Road are concerned, it is submitted that Sri M. Pandey is the allottee of Quarters No. 15A/60 Baily Road, but as it appears from the letter No. 1904 dated 1-7-2003 the Executive Engineer, Patilputra Building Division annexed to the supplementary affidavit of the petitioner received on 4-8-2003, at page 14, due to his transfer from Patna he is now in unauthorised occupation of the quarters. It is pertinent to mention that eviction process has been initiated against all 39 unauthorised occupants as indicated in the report of the Executive Engineer, Patilputra Building Division, Patna by the competent authority of the Building Construction Department as per the rules. In any case penal rent is to be charged for the period of over stay of the unauthorised occupants of the Government Quarters.
7. That…. It is further submitted that the Building Construction Department, Bihar has taken action and is in the process continuously to evict unauthorised occupants from Government Quarters. It is submitted that unauthorised occupation from a total number of 284 quarters have been evicted as has already been indicated in the affidavit filed earlier in this case vide Oath No. 6012 dated 22-11-2002.
11. That in reply to the statement made in paragraph 3 of the Supplementary affidavit in reply, it is submitted that 11 quarters of Central Pool in R Block area were reported under unauthorised occupation out of which 5 were evicted in the month of November 2002 and the same has been submitted to the Hon’ble High Court on Affidavit vide Oath No. 6012 dated 20-11-2002 in this case. The eviction order has been passed in the remaining 6 quarters and they will be evicted with cooperation of the District Administration, Patna.
(A) That it is submitted that there are 6 Blocks of Building (Bidhayak Awas) namely, A, B, C, D, E, and F. Each contain 12 numbers of flats at Daroga Roy Path, Patna. These flats were constructed for allotment to Hon’ble Members of Bihar Legislative Assembly and the Bihar Legislative Council. There are all together 72 flats in the above mention 6 blocks of the building. A perusal of letter No. 739(B) dated 4-2-1986 clearly shows that 31 flats of block A, B and C are in the pool of Bihar Legislative Assembly and 5 flats of block A & B are in the pool of Bihar Legislative Council. It is clear in the letter mentioned above that in respect of residences which belong to the pool of Bihar Legislative Assembly/ Bihar Legislative Council, Deputy Secretary (Quarter Section) Bihar Legislative Assembly/Bihar Legislative Council is the competent authority for eviction of unauthorised occupants.
(B) That it will not be out of place to mention here that the matter of allotment of quarters of Central Pool by Bihar Legislative Assembly/Bihar Legislative Council to the Members of the Bihar Legislative Assembly/Bihar Legislative Council was taken up in CWJC No. 13412/92 Patna Citizen Forum v. Government of Bihar and Ors.. The Hon’ble High Court, Patna vide its order dated 31-1-2001 in that case constituted a Committee to resolve this issue under the Chairmanship of Member Board of Revenue. The Committee so constituted has submitted its report and the same has been filed before the Hon’ble High Court vide Oath No. 4299 dated 18-10-2001.
In the report submitted before the Hon’ble High Court the committee found that a total number of 59 quarters of Central Pool were under the possession of Bihar Legislative Assembly and a total number of 28 quarters were under the possession of Bihar Legislative Council. Because of allotment of quarters of Central Pool to the Hon’ble Members of Bihar Legislative Assembly/Bihar Legislative Council, most of the flats of Block A, B, C, D, E and F at Daroga Roy Path remained either vacant or were unauthorisedly occupied. An inspection report dated 6-3-2003 of Joint Secretary, Building Construction Department reveals that out of 72 flats at Daroga Roy Path 3 flats are allotted by Bihar Legislative Assembly and 6 flats are allotted by Bihar Legislative Council and 47 flats are under the unauthorised occupation of Hon’ble Members of Bihar Legislative Assembly/Bihar Legislative Council or unauthorised persons. Although 72 above mentioned flats were either under authorised or unauthorised occupation of Hon’ble Members of Bihar Legislative Assembly/Bihar Legislative Council, Building Construction Department could not take steps to evict the unauthorised occupants as it does not fall within the ambit of this department.
(C) That it is further to be submitted that a total number of 36 flats of Blocks D, E & F have now been transferred to Bihar Legislative Council vide letter No. 3478(B) dated 28-6-2003 of Building Construction Department to provide residences to the newly elected Members of the Bihar Legislative Council and hence forth any Act of allotment and eviction of these flats is to be done by the Council Secretariat at the appropriate level.
(D) That… Action is being taken to request Bihar Legislative Assembly/ Council secretariat to evict unauthorised occupants from these flats.
(E) That Quarter No. B 3/3, B3/36, B3/49, 13 Patel Path, 18/60 and 6, South Baily Road, it is submitted that they belong to Central Pool of Building Construction Department, Eviction order in respect of these quarter has been passed by the competent authority of Building Construction Department.
(F) That so far as Quarter No. 5, Bailey Road is concerned, it is submitted that it is presently in the pool of Bihar Legislative Assembly and eviction is to be done by the competent authority of the Assembly.
12. That in reply to the statement made in paragraph 4 of the supplementary affidavit in reply, it is submitted that as the meeting of the House Allotment Committee of Gazetted Officers was scheduled to be held on 3-7-2003, list of vacant quarters and those under illegal occupation were sought from the concerned Executive Engineer. The letter No. 1904 dt. 8-7-2003 of Executive Engineer, Patilputra Building Division, Patna referred to in this paragraph was received in this department. The competent authority of Building Construction Department accordingly initiated the process of eviction of unauthorised occupants.
11. What the Secretary to the Government is telling the High Court is that the Law maker is the Law breaker. He’s dropping a hint to the High Court that the Law breakers are legislators, Members of the Legislative Assembly and of the Legislative Council, Ministers not excluded, and he is helpless in taking action to remedy the violation of the Law. Criminality he acknowledges. He’s virtually telling the High Court that if the High Court wants to take action, it may do so.
12. It is an interesting fact that this matter was raised initially by members of the Secretary’s own “biradri”, so to speak, the Civil Service. A number of officers, represented by an organisation, perhaps to avoid any possible victimisation, had brought the matter of illegally occupied Government accommodation to the Court’s attention in the first place.
13. There are nuances of the Constitution which are unwritten within it. In the sophistication of a Parliamentary Democracy that there are privileges of Members of the Legislature which are protected. The Constitution mentions these as the powers, privileges and immunities of a House of a Legislature of a State, and of the Members and the Committees of a House of such Legislature. Prior to an amendment made in the Constitution, and as it was originally enacted, in this regard, the Constitution said that such powers, privileges and immunities shall be those as of the House of Commons.
14. The Secretary needs to be reminded that even taking such privileges into consideration, there is no licence to break the law. Conveniently putting one’s hands up as if to say that a Member of the Legislature has broken the Law, is no answer. Every time a Government accommodation was occupied illegally or trespassed into, did the Secretary insure that a First Information Report was filed under the Criminal Procedure Code? The record of these proceedings show that the State Administration did not even keep track of the property of the Government. Is the Secretary trying to tell the High Court that the bureaucracy looked the other way when Government estates were occupied by those who trespassed criminally? Putting the blame on a Public Works Department of one area or another, or telling the High Court that this was the responsibility of an Engineer in the Public Works Department is not an explanation.
15. If the Secretary is attempting to tell the High Court that a large section of the Government accommodation has been occupied illegally by a politician, who is a Legislator, and this is the Legislature’s preserve, then, the bureaucracy is abetting the situation. The High Court is aware that the matter relating to allotment of accommodations is the charge of a sub-committee of the Legislature. But the Secretary has forgotten that the concept of allotment is an example of rule of law. Illegal occupation is either criminal trespass or house breaking and is the antithesis of the rule of law.
16. The Secretary to the Government was playing games with the High Court creating mischief, as if there is a conflict between the High Court, an institution under the Constitution, and the Government. The High Court was only assisting the Government in drawing up a list of Government accommodations to ensure that they are allotted in accordance with the rules and regulations for the benefit of which ever department, Ministry, etc. The affidavit of the Secretary of the Government was attempting to create a Constitutional conflict between the Legislature and the High Court by simultaneously presenting a situation that there has been a mass illegal occupation of Government accommodation by the politician who is the Legislator, and saying that this illegality is the prerogative of the Legislature. On this the learned Additional Advocate General attempted to make the best out of a bad situation and with much humility, modesty and grace tried to explain that that was not the intention in making those submissions in the affidavit.
17. Tomorrow, there will be nobody to appreciate the submission of the Additional Advocate General. The affidavit supplied by the Secretary is on behalf of the State of Bihar. Illegal occupation of Government estates is accepted. While details were being given to the High Court drop by drop, it was being highlighted that these accommodations are occupied by Hon. Members of Legislative Assembly. It is repeated as an emphasis that these accommodations are under the control of the Legislature. Even the reference to filing a First Information report is very recent and during the pendency of the proceedings. Every time it was found out by the Secretary that Government accommodation has been illegally occupied was a report lodged with the police? Or was the administration under the Secretary conveniently looking the other way and abetting the situation?
18. What the Secretary to the State Government has virtually told the High Court is this, that the Legislator has violated the Law, and there is nothing he can do as such violations enjoy immunity as privileges of the Legislature and the High Court may do whatever it wants to. The Secretary to the Government has himself given an answer to the situation by presenting facts, giving instances that the Law maker is the Law breaker and the steel frame of the bureaucracy is helpless to uphold the system. A simple police report to take note of the violation of the rule of law and its remedy is in the hands of the administration. If the administration cannot remedy this situation, then it should not attempt devious methods to tell the High Court that on the illegal occupation of Government accommodations by Hon’ble Members of the Legislative Assembly, it has to watch in frustration, and if the High Court moves further it will conflict with the privileges of the Legislature,
19. The only summing up which the High Court can do in this is that the administration in the State of Bihar has collapsed, and a marauder’s writ rules. And within this there are abettors within the Government itself. As the Secretary to the Government so desires, let this matter be sorted out within the Legislature itself. This case must now be laid to rest.
Consigned.