STATE OF UTTARANCHAL THROUGH COLLECTOR, A

DEHRADUN AND ANR. v.

AJIT SINGH BHOLA AND ANR.

MAY 7, 2004 B

[N. SANTOSH HEGDE AND B.P. SINGH; JJ.]

Uttar Pradesh Accommodation Requisition Act, 1947; Section 3(1):

Premises in dispute leased out to an Educational Institution for use C as Guest House-Eviction petition filed by landlords on ground of bona fide requirement-Partly allowed by trial Court in respect of ground floor only-District Magistrate allotted the premises to Director General of Police for Camp Office/residential purpose-Cross appeals-Appeal filed by the Institute dismissed as withdrawn-Execution of the eviction D decree-Challenged by the State-Stayed by High Court-State requisitioned the premises-Writ petition dismissed by the High Court as infructuous- Challenging the requisition order, landlords filed writ petition-High Court passed an interim order directing the State either to vacate the premises or to proceed under the Land Acquisition Act-On appeal, E Held: since the District Magistrate took over possession of the premises in a high-handed/arbitrary manner and without any legal sanction behind it, Supreme Court not inclined to exercise its discretion under Article 136 of the Constitution of India to set aside the interim order passed by the High Court-Land Acquisition Act-Constitution of India, 1950- F Article 13 6.

Respondent-landlady and her two sons leased out the premises in question to an Educational Institution for use by them as Guest House.

Later, an eviction petition was filed by the landlords on ground of bonafide requirement. Trial Court passed a decree of eviction in G respect of part of the premises. Hence, the cross appeals by the owners and the Educational Institute. However, the Institute has withdrawn the appeal. In the meanwhile, the District Magistrate had allotted the premises to the Director General of Police for Camp Office/residential purpose. Pursuant to the eviction decree passed, the landlords filed an H

A application for execution of the decree of eviction. State filed objections which were dismissed by the Executing Court. Aggrieved, the State filed writ petition in which the High Court stayed the execution of eviction proceeding. However, the authorities concerned issued a notice under Section 3(1) of the Uttar Pradesh Accommodation B Requisition Act, proposing to requisition the premises in question and la for passed order of requisition in respect of the premises. In view of the order of requisition, High Court dismissed the writ petition as infructuous. The landlords filed writ petitions challenging the order of requisition as well as order of the District Magistrate in which High C Court passed an interim order directing the State either to proceed under the Land Acquisition Act or vacate the premises within a week.

Hence the present appeals filed by the State.

It was contended by the appellant-State that by the interim order, the High Court has virtually allowed the writ petition; and D that since the eviction order was in respect of the ground floor premises, only, eviction of the State from the remaining portion was not justified.

Dismissing the appeals, the Court

HELD : In pursuance of the order of the District Magistrate, he entire premises was purportedly taken over by the State for the residence-cum-office of the Director General of Police, Uttranchal. The State has neither been able to produce the order passed by the District F Magistrate in this regard nor has it been able to point out any law or rule which authorizes the District Magistrate to take possession of any premises in such a high-handed manner as has been done in the instant case. Having regard to the manner in which the District Magistrate took over possession of the premises, which appears to be high-handed, arbitrary and without any legal sanction, this Court is not persuaded G to exercise its discretion under Article 136 of the Constitution of India to set aside the interim order passed by the High Court, and thereby revive another illegal order. (631-F; 632-A-B, D-El

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3033 of

H 2004.

From the Judgment and Order dated 8.5.2003 of the Uttaranchal High A Court at Nainital in W.P. No. 217 (M/B) of 2002.

WITH

C.A. No. 3034 of 2004.

Ranjit Kumar, G. Venugopal and Mrs. D. Bharathi Reddi for the Appellants.

Anil Nauriya and Ms. Sumita Hazarika for the Respondents.

The Judgment of the Court was delivered by

B.P. SINGH, J. : Special leave granted.

In both these appeals, the State of Uttranchal has challenged the D interim order passed by the High Court of Uttranchal at Nainital in Writ Petitbn Nos. 217 (M/B) of2002 and 216 (MIB) of2002 whereby in writ petitions filed by the respondents herein, the High Court noticing the facts of the case, passed an interim order directing the State ofUttranchal either to proceed under the Land Acquisition Act or vacate the premises within E a week. The time granted to vacate the premises was extended by the Court, but the State is aggrieved by the interim order passed by the High Court.

Its contention before us is that by the interim order, virtually the writ petitions themselves have been finally decided. We are informed that the writ petitions filed by the respondents are still pending before the High F Court.

We wish to briefly narrate the facts of the case keeping in mind the fact that the writ petitions are still pending in the High Court and, therefore, any expression of opinion on the merit of the case may prejudice the case of the parties. However, some necessary facts must be noticed.

The premises in question belongs to respondents which had been leased out to Wadia Institute of Himalayan Geology, Dehradun on 7.2.1977 for use by them as Guest House. The said Wadia Institute is an autonomous institution of the Department of Science and Technology, Dehradun. The H

A lease was initially for a period of 11 months, but later the tenure was extended by five years. In the year 1993, an eviction petition was filed by the respondents on the ground of bona fide personal need. The said suit was partially decreed on 25.4.1995 and a decree for eviction in respect of a part of the premises (only ground floor) was passed. Aggrieved by the B eviction order, Wadia Institute preferred RCA No. 61/95, while the respondents aggrieved by a decree for partial eviction only, preferred RCA No. 70/1995. While the said appeals were pending before the appellate Court, the District Magistrate of Nainital purported to allot the said premises for residence-cum-office of the Director General of Police of the newly created State of Uttranchal. No letter of allotment passed by the C District Magistrate has been brought on record, but all that has been produced is a letter addressed by the District Magistrate to the Senior Superintendent of Police, Dehradun dated 7.11.2000 informing him that the Guest House of the Wadia Institute has been allotted to the Director General of Police for Camp office/residential purpose until further orders.

D From the material on record, it further appears that on 26.11.2000

possession of the premises was taken by use of police force. The said fact .was intimated to the appellate court by the Wadia Institute by their application dated 1.12.2000 in which it was stated that on 26.11.2000, the police force got vacated the entire property and evicted the officials/ E employees of the Wadia Institute from the property. It appears that on

5.2.2001, the Wadia Institute filed an application before the appellate court that it did not wish to pursue its appeal and prayed for permission to withdraw the appeal. There is a dispute whether the Wadia Institute also prayed for allowing the appeal of the landlord. According to the respondents, F such a prayer was made, which is denied by the appellant. It, however, appears from the counter-affidavit filed on behalf of the appellant before the High Court that such a request had been made to the appellate court by the Wadia Institute. In their counter-affidavit filed before the High Court in paragraph (xi), it was stated that the Wadia Institute had moved an application dated 5 .2.200 I before the learned District Judge, Dehradun that G they are no more interested in pursuing their Rent Control Appeal No. 61 of 1995 or Appeal No. 70 of 1995 and prayed to pass suitable orders thereon. This, according to the appellant, was a collusive application and was a result of collusion between the Wadia Institute and the landlord. Be that as it may, the appeal preferred by the Wadia Institute was dismissed H as withdrawn on 20th March 2001. Since the order of the Court is r.ot

, y

before us, it is not clear whether the appeal preferred by the landlord was A also allowed.

Pursuant to the eviction decree passed, an application for execution was filed on 23.4.2001. Objections filed by the appellant-State were overruled on 25.1.2002, aggrieved by which the State of Uttranchal filed B a writ petition and obtained an order of stay on 30.1.2002.

A notice under section 3(1) of the Uttar Pradesh Accommodation Requisition Act 194 7 was issued proposing to requisition the premises in question. Since, there was no response to the notice, the order of requisition C was passed on 4.4.2002. However, in view of the order of requisition, the writ petition filed by the State was dismissed as infructuous on 22.5.2002.

Two writ petitions were filed by the landlady and her two sons challenging the order of requisition as well as the order dated 7 .11.2000 pursuant to which possession of the premises was taken by the State. In D the aforesaid writ petition, the impugned interim order was passed on 8.5.2003.

Mr. Ranjit Kumar, learned senior counsel appearing on behalf of the State of Uttranchal submitted that by passing the interim order, the High E Court has virtually allowed the writ petition. He further submitted that in any event, the eviction order only related to the ground floor premises and, therefore, eviction of the State from the remaining part of the premises is not justified.

Having noticed the facts and circumstances of the case, we do not F

consider it appropriate to pass an order interfering with the interim order passed by the High Court. We notice that possession of the premises was taken by use of police force by the State of Uttranchal under orders of the District Magistrate dated 7 .11.2000. It is immaterial whether police force was or was not used for the purpose. The fact which is not disputed is that G possession was taken over of the entire premises on 26.11.2000 purportedly for the residence-cum-office of the Director General of Police, Uttranchal.

Since, the order issued by the District Magistrate dated 7. I 1.2000 was not placed before us, we adjourned the matter to enable the counsel for the State to seek instructions and to produce before us the formal order passed H

A by the District Magistrate and also to bring to our notice any law or rule which authorized the District Magistrate to take possession of the premises in this manner. Learned counsel for the State has neither been able to produce the order passed by the District Magistrate in this regard nor has he been able to point out any law or rule which authorizes the District B Magistrate to take possession of any premises in the manner it has been done in the instant case. We are really surprised that the District Magistrate chose to act in such a high-handed manner. Counsel for the State fairly stated before us that he is unable to produce any formal order passed by the District Magistrate in this regard and the letter dated 7.11.2000, which C is in the nature of communication by the District Magistrate to the Superintendent of Police is the only document on which he can place reliance. He has also not shown us any law or rule which authorizes the District Magistrate to take over possession in the ; nanner done in the instant case. We do not wish to say anything more at this stage because we are conscious of the fact that the writ petitions are still pending before the High D Court. Having regard to. the manner in which the District Magistrate took over possession of the premises, which appears to us as at present advised, to be high-handed, arbitrary and without any legal sanction we are not persuaded to exerci5e our discrction under Article 136 of the Constitution of India to set aside the interim order passed by the High Court. It is well- E settled that this Court will not exercise its discretion and quash an order which appears to be illegal, if its effect is to revive another illegal order.

In the peculiar facts and circumstances, we refrain from exercising our discretion and dismiss these appeals. The interim order passed by this F Court stands vacated.

S.K.S.

Appeals dismissed.

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