1
Court No.11
Writ Petition No. 7093 (M/S) of 1989
State of U.P. and another Petitioners
Vs.
Ist Additional District Judge, Lucknow
and another Opposite parties.
-----------
Hon’ble Anil Kumar J.
Heard Sri Deepak Malhotra learned counsel for the petitioner.
Matter is taken on the revised list non appear from the side of
respondent.
In brief the facts of the present case are that the flat no. 34
Raj Bhawan Colony, Lucknow was allotted to one Sri.
K.M.Srivastava(Opposite Party No. 2) . In the capacity of special
secretary (Planning Department of Uttar Pradesh) Lucknow, he was
retired on 30.9.85. After his retirement he had not vacated the premises
in question and retained the same up till 1.12.1986.
In view of the above fact a notice under section 7 (2) of the U.P.
Public Premises (Eviction of Unauthorized Occupants) Act, 1972
hereinafter referred as Act was issued by the Prescribed authority.
In the response to the notice respondent no. 2 submit his reply on
16th April 1986. By order dated 29.3.88, the prescribed authority had
directed that respondent no.2 shall pay a sum of Rs.54,000/- as damages
at the rate of Rs. 3,000 per month for retaining the premises in question
as unauthorized occupant for a period July 1985 to 1.12..86 i.e. 18
months.
Aggrieved by the said order Sri K.M. Srivastava had filed
an appeal under section 9 of the Act before the Additional District Judge,
Lucknow (Appeal no.180 of 1988) K.M.Srivastava Vs. Rajya Sampati
Adhikari. By order dated 27th March 1989 the respondent no. 1 allowed
the appeal and directed that the standard rent including water charges for
the period in question shall be payable at the rate of Rs. 294.75 instead of
Rs. 3,000 per month.
2
The order dated 27th March 1989 passed by Opposite Party No. 1
as under challenge in the present writ petition.
From the perusal of the record of the present case it transpires that
initially on 25.10.89 this court had admitted the writ petition and issue
the notice to the opposite party no. 2 to take Counter Affidavit, however,
the office by his report dated 17.9.09 had submitted that the service on
opposite party no.2 Sri. K.M.Srivastava was deemed sufficient in view of
the provision as prescribed under chapter 8 rule 12 of the Allahabad
High Court rules 1952. Sri. Deepak Malhotra learned counsel for the
petitioner while assailing the order dated 27th March 1989 passed by the
opposite party no. 1 has submitted that the said order under challenge is
totally arbitrary in nature as no valid reason whatsoever had been
assigned by the opposite party no.1 thereby reducing the damages from
Rs. 3,000 per month of Rs. 294.75 Paise and only on the ground of
sympathy, which the court below had passed the impugned order as such
same cannot be done under law, so the impugned order is liable to be
quashed.
As stated above the notice on the opposite party no. 2 Sri
K.M.Srivastava was held tobe deemed sufficient as per office report and
nobody has put in appearance on his behalf. After hearing the learned
counsel for the petitioner, and going through the record in the present
case it is not disputed that the premises in question was allotted in favour
of the opposite party no. 2 on the capacity of serving officer of the State
Government and he retired from services on 1st July 1985 but retain the
premises up to 1.12.1986 as unauthorized occupation, accordingly
initially, notice had been issued under Section 7(2) of the Act, to which
respondent no.2 submitted his reply and after taking into consideration
the prescribed authority had passed the order dated 29.3.1988. The said
order was challenged in appeal by opposite party no.2 and the same was
allowed by opposite party No. 1 by order dated 27.3.1989 and the
amount from damages/ standard rent including water charge was reduced
from Rs. 3,000 per month to Rs. 294.75. From the perusal of the
impugned order which is under challenge, it is crystal clear that while
reducing the rent reason which is given by the opposite party no.1 was
3
stated in paragraph 5 of the order dated 27.3.1989 which inter alia
provides that ” After hearing the learned counsel for both the parties at
length perusing the papers on record and seeing the circumstances of the
case, I am of the opinion that the appellant deserves for sympathy in the
present case. I am also of the opinion that a lenient view may be taken
into the matter of damages. I am also of the opinion that the amount of
damages i.e. Rs. 3000/- per month, claimed by Prescribed Authority is
very much excessive and is not maintainable at all.” The said reason on
part of the opposite party no.1 thereby passing the impugned order and
reducing the damages for unauthorized occupation of the premises in
question by the opposite party no. 2 is totally contrary to law and
procedure as provides the Act and U. P Public Premises(Eviction of
Unauthorized) Occupants Rule 1973 .
Needless to mention herein that Rule 8 of the Uttar Pradesh Public
Premises (Eviction of Unauthorized Occupants ) Rule 1973 provides
detail procedure for assessment of damages in respect for use and
occupation of any public premises, the same shall be taken into
consideration by an authority while passing an order under the Act
against an unauthorized person for occupation of a public premises.
However, in the present case the order dated 27.3.1989 passed by
opposite party no. 1 in appeal no. 180 of 1988. (Shri K. M. Srivastava
V/s Rajya Sampati Adhikari) was not on the yardstick as given under
Rule 8 of the Rules, so the same was contrary to law and liable to be set
aside.
For the foregoing reason the Writ Petition is allowed, order dated
27.3.1989 passed by the 1st Additional District Judge, Lucknow is hereby
quashed, the matter is remanded back to the opposite party no.1 to decide
the same keeping in view the observation made hereinabove, in
accordance with the law further for the said purpose the opposite party
no.1 shall issue notice to the opposite party no.2 Sri K.M.Srivastava and
after hearing him shall decide the matter afresh expeditiously.
01.02.2010
Mahesh Kumar