Registrar, High Court, Patna v. Sub Divisional Magistrate)
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.376 of 2013 In Civil Writ Jurisdiction Case No. 846 of 2012 ====================================================== 1. Ramjatan Prasad Yadav S/O Late Bechu Prasad R/O Mohalla- Chhaajjubagh, P.S.- Gandhi Maidan, District- Patna .... .... Appellant/s Versus 1. The State Of Bihar Through The Secretary Building Construction Department, Bihar, Patna 2. The Executive Engineer, Sub-Divisional Building Construction Department, Patna 3. Junior Engineer, Chhajjubagh (Section) Prashakha Patna, Office Of The Executive Engineer, Bhawan Nirman Bibhag, Patna 4. Additional Collector, Law Department, Patna 5. Assistant Sub-Divisional Officer, Bankipur, Patna Construction), Patna 6. The Chairman, Bihar State Electricity Board Vidyut Bhawan, Bailey Road, Patna (Building .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Umesh Kumar Singh For the Respondent/s : Mr. M. K. Mishra, GP 25 ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA and HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 5 01-05-2013
Legal Reasoning
We have heard Counsel for the appellant and the State. The present appeal arises from the order dated 16.7.2012 dismissing CWJC No. 8464 of 2012, declining to interfere with the action of the respondents in locking “the shop of the petitioner’. Learned Counsel for the appellant submits that he was given permissive possession by the erstwhile MLA to occupy a portion of Quarter No. 1 in Chhajjubagh area of the town. The appellant was running a small shop selling Ghee, Khoa, Curd and Paneer since 1984. He had secured an electric connection in his name also. Several officers came and went in Patna High Court LPA No.376 of 2013 (5) dt.01-05-2013 2 occupation of Quarter No. 1 but none objected to the peaceful continuance of the appellant. On 7.1.2011 the Junior Engineer came with other persons and forcibly locked the shop and sealed it. No notice or opportunity was given. The petitioner was occupant of unused portion of the premises. The occupation being permissive, he was not a trespasser. Learned Counsel has invited our attention to Section 4 ‘Proviso’ of Bihar Government Premises (Rent, Recovery and Eviction) Act, 1956 to submit that an opportunity of defence by service of notice had to be given and the cause shown had to be considered. The procedure has not been followed. The action being outright illegal the appellant is required to be put back in possession. Reliance has been placed on 1984 BBCJ 615 (Registrar, High Court, Patna v. Sub Divisional Magistrate). Counsel for the State has opposed the application urging that the appellant was a rank encroacher and the question of any permissive possession simply does not arise. No commercial activity can be carried on in the government residential premises. The learned Single Judge held that the appellant occupied the premises in question without any order or authority, not only established a shop but also obtained an electric connection from the Electricity Board in his own name. Rejecting the contention that the appellant could not be removed without resorting to procedures in accordance with law, it was held that he having entered the premises without any order or authority is not entitled to remain in the government residence and seek protection of the law for an illegal occupation. It was dereliction in duty on the part of the Estate officer who allowed the appellant to continue in the government quarter for such a long time. Directions have been given to hold an enquiry under what circumstances the electric connection was provided to the appellant in a wholly illegal occupation of the government quarter and to Patna High Court LPA No.376 of 2013 (5) dt.01-05-2013 3 take action against those responsible. A government quarter is a premises which is given by the authority of law to those who discharge duty by or on behalf of the Government. The appellant on his own showing was not a government servant much less discharging duties on behalf of the State Government. Under Section 2A (2) the State Government may allot Government premises to persons who are under the control of the executive power of the State Government or entitled for a residence/quarter under any other law. Under Sub-clause (3) the State Government may allot Government premises to various Departments/Authorities/Boards/ Commissions /Statutory Bodies for their official use for the period, the order is in force. Indisputably the appellant does not fall under any of the aforesaid criteria. It is his case that he was given permissive possession by the erstwhile MLA. The authority of the MLA to do so has not been shown to us. Any such claimed permissive possession obviously originated in rank illegality and cannot be the foundation for any claim. The applicability of the proviso to Section 4 relied upon cannot be applied in the void. It has to be read subject to the main Section 4(A) and (B) which derives it origin under Section 2A with regard to allotment and the cancellation under Section 3. The reliance on the case of (Registrar, High Court) (supra) is completely misconceived and totally out of context. The question there related to allotment of quarter from the Government pool to the High Court occupied by a sitting Judge, after his superannuation assigned duties as the Chairman of the Bihar State legal Aid Board. Failure to vacate the premises led to orders by Hon’ble the Chief Justice for cancellation of the allotment and the request for eviction filed before the Sub Divisional Magistrate by the Registrar General was declined holding that Hon’ble the Chief Justice was Patna High Court LPA No.376 of 2013 (5) dt.01-05-2013 4 not the competent authority to cancel the allotment which lay with the Sub Divisional Magistrate only. The judgement is wholly inapplicable. Use of Government premises by a person not associated with the Government in any manner, and that too for commercial purposes, not permissible under the Act, makes the appellant a rank encroacher and outright illegal occupant not entitled to any relief. We find no reason to interfere with the order under Appeal.
Decision
The appeal is dismissed. (Navin Sinha, J) (Shivaji Pandey, J) Snkumar/-