IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 1672 of 2010 Dr. A.K. Mehrotra …….Petitioner. Versus Prescribed Authority and another …Respondents. Present : Sri V.K. Kohli, Senior Advocate assisted by Sri I.P. Kohli, Advocate for the petitioner. Sri R.C. Arya, Brief Holder for the State. Sri D. Barthwal, Advocate for respondent no. 2. Hon’ble Sudhanshu Dhulia, J.(Oral) 1. Heard Sri V.K. Kohli, Senior Advocate assisted by Sri I.P. Kohli, Advocate, for the petitioner, Sri R.C. Arya, Brief Holder for the State and Sri D. Barthwal, Advocate for respondent no.2. 2. Under challenge before this Court are orders dated 3.5.2007 passed by the prescribed authority under U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (from hereinafter referred to as the “Eviction Act”) holding petitioner to be an unauthorised occupant of a public premises and thereby ordering his eviction and the order dated 26.8.2010 of the learned District Judge, Dehradun passed in statutory appeal of the petitioner by which the order of the prescribed authority has been upheld, and the appeal dismissed. Hence the present writ petition. 3. The petitioner was a Medical Health Officer in the Department of Medical Health and Family Welfare in the erstwhile State of Uttar Pradesh. In the year 1984-85, he was transferred to Mussoorie as its Medical Health Officer. As the records show, by the orders of the then Sub-Divisional Magistrate, Mussoorie, he was given 2 possession of a premises known as “The Acorns House”. This premises i.e. “The Acorns House” had for the last many years, to be more precise, since the year 1943-44, was given on lease to Nagar Palika Parishad, Mussoorie and Nagar Palika Parishad, Mussoorie in turn gave this residence to the Medical Health Officer, who happened to be posted in the hill station of Mussoorie. Prior to the petitioner’s joining as Medical Health Officer in Mussoorie in the year 1984, the building was occupied by the earlier Medical Health Officer Dr. A.K. Shukla, who vacated the same on his transfer from Mussoorie in the year 1984. Prior to Dr. Shukla, other Medical Health Officer, who were posted in Mussoorie from time to time, such as, Dr. Subodh Mittal, Dr. O.P. Garg, etc. were the occupants of this premises known as “The Acorns House”, in their capacity as Medical Health Officer of the State in Mussoorie. The owner of this property, admittedly, is one Dr. Z.R. Khan. Quite ingeniously, however, once the petitioner was posted in Mussoorie as Medical Health Officer and occupies this place called “The Acorns House”, by orders of the then Sub Divisional Magistrate, Mussoorie, he makes an arrangement with Nagar Palika Parishad, Mussoorie and instead of paying rent to Nagar Palika Parishad, Mussoorie, he instead directly starts paying this rent of ` 1750/- per annum, to its owner Dr. Z.R. Khan. By doing so, Dr. Mehrotra who is the petitioner would subsequently argue that he has a tenant-landlord relationship with Dr. Z.R. Khan and the law governing this “relationship” is Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (from hereinafter referred to as Act No. 13 of 1972), and since he is a tenant of landlord, namely, Dr. Z.R. Khan, the method prescribed for his eviction is under Act 3 No. 13 of 1972 and he cannot be evicted under any other provisions of law. But of this later. 4. The petitioner was, however, transferred from Mussoorie to Nainital in the year 1991, or nearabout. As a public servant and as a gentleman, he was required to vacate the premises and hand it over to Nagar Palika Parishad, Mussoorie or to the next incumbent, who joined Mussoorie as its Medical Health Officer. The petitioner, however, refused to do so. When pressure was built upon him to vacate the premises, he filed a suit for permanent injunction, being Suit No. 827 of 2001 Dr. Arvind Mehrotra Vs. Municipal Board, Mussoorie. The suit for permanent injunction was decreed and it was directed that the petitioner shall not be evicted from the premises except in accordance with law. The defendant i.e. Mussoorie Nagar Palika Parishad filed an appeal before the learned District Judge. Although these objections were on record that there is statutory bar under Section 15 of Eviction Act for any court to entertain a suit for eviction from a public premises as well as specific bar under Section 9 of the Code of Civil Procedure, these objections were not entertained by the appellate court on the grounds that exception 15 of Eviction Act would only come into play if a proceeding under the Eviction Act is pending before institution of the suit ! Be that as it may, the appellate court rejected the appeal of Mussoorie Nagar Palika Parishad, and directed that the petitioner will not be evicted except in accordance with law and also held that since the proceedings under the Eviction Act are already pending, therefore, the concerned court i.e. the prescribed authority will decide the question as to whether the 4 plaintiff/respondent is in unauthorized occupation of the property in question or not. What is, however, of significance here is that there is a categorical finding given by the learned District Judge regarding the nature of the property, so far as the applicability of Act No. 13 of 1972 was concerned, and it was held that provisions of Act No. 13 of 1972 are not applicable to the property in question. This finding was never challenged before any other forum and hence it had become final. 5. Meanwhile, the prescribed authority before whom the matter was pending under Eviction Act, rejected the case of the State vide its order dated 15.10.2004 on the ground that it has not been able to prove that the premises in dispute is a “public premises”, or to prove that it comes within the purview of U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 and hence the proceeding for eviction against the petitioner could not have been initiated under the said Act. An appeal was filed against the said order being Appeal No. 136 of 2004. The learned District Judge vide its order dated 24.12.2004 came to the conclusion that whether Act No. 13 of 1972 is applicable on the premises has not been considered properly by the prescribed authority and stated that “It appears that the order was passed in haste”. The order of Prescribed Authority was then set aside and the matter was remanded back to the prescribed authority for fresh consideration vide order dated 24.12.2004, of the learned District Judge, Dehradun. 6. The objections, the petitioner raised before the prescribed authority, were that the disputed premises i.e. 5 “The Acorns House” is not a public premises and the premises is covered under Act No. 13 of 1972. He is a tenant of the landlord, namely, Dr. Z.R. Khan, to whom he is regularly paying rent and if anyone can initiate eviction proceedings against him, it is his landlord i.e. Z.R. Khan, under Act No. 13 of 1972. To strengthen his argument further, he gave example of one Lalita Singh. According to the petitioner, a part of the same premises has been allotted under Section 16 of the Act No. 13 of 1972 to one Lalita Singh by the competent authority which shows that the premises in question is covered under Act No. 13 of 1972. In a nutshell, the petitioner has challenged the entire eviction proceedings against him on seemingly technical grounds. 7. So, the second round of eviction proceedings against the petitioner commenced afresh. In a well- considered order, the prescribed authority, after considering the factual as well as the legal aspect of the matter, has given a categorical finding that the premises i.e. “The Acorns House” is a public premises, as it is under occupation and leased out to a local authority and the petitioner was only entitled to remain in the premises as long as he was the Medical Health Officer posted in Mussoorie. He becomes an unauthorised occupant of the property ever since his transfer from Mussoorie to elsewhere. Hence his eviction order was issued. This eviction order dated 3.5.2007 was challenged by the petitioner by way of an appeal under Section 9 of the Eviction Act before the learned District Judge, Dehradun. The learned District Judge has again considered the matter and has examined factual as well as legal aspects and has upheld the order of the prescribed authority and 6 ordered for the eviction of the petitioner from the public premises vide its order dated 26.8.2010. 8. In a nutshell, the case of the petitioner was that he is not occupying a public premises. Secondly, the premises which he is occupying, which is “The Acorns House” is under the ownership of Dr. Z.R. Khan who is the petitioner’s landlord and there is a landlord-tenant relationship between Dr. Z.R. Khan and the petitioner and he can only be evicted by the landlord under Act No. 13 of 1972 and taking recourse to the Eviction Act by the State authorities is wholly illegal and without jurisdiction. 9. The petitioner, however, had a lot of difficulty in establishing his case before the prescribed authority for various reasons. The first and foremost was, as it has already been referred above, there was already a finding of the learned District Judge that Act No. 13 of 1972 is not applicable on the premises i.e. “The Acorns House” – a finding which has become final. Therefore his plea that he can only be evicted under Act No. 13 of 1972 is wholly misconceived. Moreover, the only evidence worth any name placed by the petitioner before the prescribed authority as well as later before the appellate court, to establish landlord tenant relationship between Dr. Z.R. Khan and himself, are the rent receipts. However, this is not sufficient evidence in law to establish a landlord- tenant relationship between Dr. Z.R. Khan and the petitioner for the simple reason that there is an overwhelming evidence in support of the fact that the premises were actually leased out since 1943-44 by Dr. Z.R. Khan to Nagar Palika Parishad, Mussoorie, to be 7 given to Medical Health Officers, who happened to be posted in Mussoorie. It is an established fact that the predecessors in occupation of the premises known as “The Acorns House” have all been Medical Health Officers, who were sent on posting to Mussoorie. More importantly, before the court below, the owner of the premises Dr. Z.R. Khan had also deposed that he had never let out the premises on rent to the petitioner but had let out to Nagar Palika Parishad, Mussoorie and the same was under a lease to Nagar Palika Parishad, Mussoorie. The concerned clerk of Nagar Palika, Mussoorie, who had deposed before the prescribed authority, namely, “Kripal Singh” had also stated that the property has always been given to the Medical Health Officers, etc. Merely because the petitioner was directly paying the rent to Dr. Z.R. Khan would not make him a “tenant”, as visualised under Act No. 13 of 1972. 10. Secondly and more importantly, even it is assumed for the sake of argument that the premises “The Acorns House” was covered under Act No. 13 of 1972, then a building which is covered under Act No. 13 of 1972 can only be allotted to an eligible person by the District Magistrate under Section 16 of Act No. 13 of 1972 and there is a clear prohibition under Section 11 of Act No. 13 of 1972 for letting out the property in any other manner. Section 11 of Act No. 13 of 1972 reads as under :- “11. Prohibition of letting without allotment order. – Save as hereinafter provided, no person shall let any buildings except in pursuance of an allotment order issued under Section 16.” 8 11. It is an admitted case that the petitioner does not have any allotment order regarding said premises under Act No. 13 of 1972. Moreover, a person who occupies a property without an allotment order under Section 16 is actually an unauthorised occupant under Section 13 of Act No. 13 of 1972. Section 13 of Act No. 13 of 1972 reads as under :- “13. Restrictions on occupation of building without allotment or release. – Where a landlord or tenant ceases to occupy a building or part thereof, no person shall occupy it in any capacity on his behalf, or otherwise than under an order of allotment or release under Section 16, and if a person so purports to occupy it, he shall, without prejudice to the provisions of Section 31, be deemed to be an unauthorised occupant of such building or part.” 12. Therefore, there can be no doubt about the fact that even if we accept the argument of the petitioner, just for the sake of it, the petitioner was always an unauthorised occupant of the property. The argument of the petitioner before the authorities below that he is actually a tenant of the premises was only a clever and mischievous ploy, rightly rejected by the prescribed authority as well as by the appellate court. The appellate court has held, and rightly so, that the petitioner is an unauthorised occupant of a public premises and notices under Section 5(1) of the Uttar Pradesh Public Premises (Eviction of Unauthorised Occupants) Act, 1972 for eviction from the public premises were rightly issued against the petitioner. The learned District Judge, Dehradun has 9 dealt with the issue under the four corners of the law applicable to the case, and has come to the conclusion that the petitioner is an unauthorised occupant of the premises in dispute and has thereby dismissed his appeal. 13. Let us also examine whether the disputed premises i.e. “The Acorns House” is actually a public premises. Public premises is defined in the Uttar Pradesh Public Premises (Eviction of Unauthorised Occupants) Act, 1972 as under :- “(e) “Public premises” means any premises belonging to or taken on lease or requisitioned by or on behalf of the State Government and includes any premises belonging to or taken on lease by or on behalf of – (i) any company as defined in Section 3 of the Companies Act, 1956, in which not less than fifty-one per cent of the paid up share capital is held by the State Government; or (ii) any local authority; or (iii) any Corporation (not being a company as defined in Section 3 of the Companies Act, 1956 or a local authority) owned or controlled by the State Government; or (iv) any society registered under the Societies Registration Act, 1860, the governing body whereof consists, under the rules or regulations of the society, wholly of public officers, or nominees of the State Government, or both.” 10 14. The building was on lease to a local authority i.e. Nagar Palika Parishad, Mussoorie since 1943-44, as it has already come in evidence before the courts below. Therefore, it comes under the definition of public premises. The petitioner became an unauthorised occupant of the premises the moment he was transferred out of Mussoorie in the year 1991. He should have in all fairness handed over the possession of the premises to the concerned authorities or to the next incumbent, subject to whatever period of limitation the rules applicable in these matters permitted the petitioner. The petitioner is a public servant (Medical Health Officer) in the services of Government. His act of unauthorise occupation of a public premises is wholly uncalled for. All through out, the petitioner has done nothing but to abuse the process of law. This Court has been informed that the petitioner has since retired from service, otherwise in order to meet the ends of justice, a disciplinary proceeding were also liable to be initiated against the petitioner. It has also come on record that the petitioner now stays in Gurgaon and also that he also has another flat in Mussoorie itself. What was then the pressing need for the petitioner to hold on to “The Acorns House”! Order dated 26.8.2010 of the learned District Judge, Dehradun passed in statutory appeal under Section 9 of Eviction Act is a well-reasoned order passed not only on clear cut statutory provisions but on authoritative decisions of court. This Court is in total agreement with the findings on fact as well as on law given by the court below. 11 15. This writ petition has absolutely no merit and is liable to be dismissed and is hereby dismissed. No order as to costs. 16. Interim order dated 24.9.2010 stands vacated. 17. The District Magistrate, Dehradun is further directed to take-over the possession of the property in dispute from the petitioner and then hand-over the possession of the same to Nagar Palika Parishad, Mussoorie, who may in accordance with law give it to the Medical Health Officers, who are posted in Mussoorie, or to any other public servant. Also, since now it has been established that the petitioner was an unauthorised occupant of the premises, since the year 1991 i.e. the time when he was transferred from Mussoorie to Nainital, the prescribed authority would initiate proceedings under Section 7 of the Uttar Pradesh Public Premises (Eviction of Unauthorised Occupants) Act, 1972 for recovery of rent and damages, which are liable to be given by the petitioner. Since Section 7 of Eviction Act prescribes a procedure, whereby before passing such an order an opportunity of hearing must be given to the petitioner, orders will only be passed after giving opportunity of hearing to the petitioner as provided under Section 7 of Eviction Act. 18. The Registrar General is directed to forward a certified copy of this order, free of cost, to the District Magistrate, Dehradun as well as the Prescribed Authority, Mussoorie for compliance of the court’s order. (Sudhanshu Dhulia, J.) 14.12.2010 Avneet