S.D Bandi v. Divisional Traffic Officer, Karnataka State Road Transport Corporation And Others

Order

Union Territory of Chandigarh

1. Heard learned amicus curiae as well as learned counsel appearing on behalf of the Union Territory of Chandigarh.

2. It has been stated in the latest status report, which has been filed on affidavit, that so far as the two writ petitions, namely, Writ Petition No. 15972 of 2004 and CWP No. 7367-CAT of 2007 are concerned, steps have been taken before the High Court of Punjab and Haryana for fixing an early date of hearing in those cases but no formal order has been passed. Learned counsel for the Union Territory of Chandigarh is directed to pursue the application for early hearing and see that writ applications are disposed of with utmost expedition.

3. Place the matter on 13-11-2007.

State of Karnataka

4. The State of Karnataka is directed to file a more detailed affidavit within six weeks stating therein as to whether the house in question has been vacated by the particular occupant and, if not, reason for the same. The details of rental/penal rental and the steps taken for recovery of the same shall also be stated in the affidavit.

5. Place the matter on 18-9-2007.

State of Orissa

6. Heard learned amicus as well as learned counsel appearing for the State of Orissa.

7. It has been stated in the latest status report, which has been filed on affidavit dated 2-2-2007, that out of eighty-five unauthorised occupants of the executive wing, eighteen persons have either vacated or have been evicted. So far as one person is concerned, his occupation has been regularised as he has been transferred back to Bhubaneshwar. In relation to the remaining sixty-six persons, it has been stated that out of them, forty-two are in service and six are those who have already superannuated whereas eighteen are legal heirs of government servants who died in harness.

8. We directed the State of Orissa to respond as to whether for unauthorised occupation of government premises a government servant can be proceeded against departmentally and suspended when the departmental proceeding is under contemplation. Learned counsel appearing on behalf of the State pointed out that under Rule 3(b) of the Orissa Government Servant's Conduct Rules read with the Circular bearing Memo No. 376/70-13980/(180)/CA dated 26-11-1970, issued by the Government of Orissa, a departmental proceeding can be initiated against such a government servant and he can be suspended in contemplation of the same. It has been stated that even against a retired government servant or heirs of a deceased government servant, under the provisions of Rule 7 of the Orissa Civil Services (Pension) Rules, 1992 (in short “the Pension Rules”) action can be taken for continuing to remain in occupation of government premises unauthorisedly. This being the position, we are of the view that for not vacating the government premises after the expiry of the period prescribed under law, the occupation of a government servant becomes unauthorised, for which a disciplinary proceeding can be started against him and in contemplation of the same, he can be suspended.

9. From the tenor of submissions of the learned counsel appearing on behalf of the State, it appears to us that the State Government is satisfied that such proceedings should be initiated against the aforesaid forty-two government servants and they be suspended when the departmental proceedings against them are under contemplation inasmuch as against the six retired government servants and heirs of the eighteen deceased government servants appropriate measures should be taken under Rule 7 of the Pension Rules. Accordingly, we direct the State of Orissa to pass orders of suspension in contemplation of departmental proceedings against the forty-two persons aforesaid who are still in government service, within a period of six weeks from today and departmental proceedings be initiated against them. Against the six persons, who have superannuated, and heirs of the eighteen government servants who died in harness, occupation of all of whom is unauthorised, the State Government is directed to take appropriate measures under Rule 7 of the Pension Rules within the same time.

10. By our order dated 30-8-2006 (2011) 15 SCC 737, we had directed the Chief Secretary of Bihar to respond why such and some other steps as enumerated in para 3 of the said order be not taken by the State Government against unauthorised occupants. Relevant portion of the said order reads thus:

“3. Affidavit shall further state clearly for what period 209 persons remained in unauthorised occupation and what is the amount of rent/penal rent, etc. the State is entitled to realise from them by deducting every month from their salary or post-retirement benefits or pension or attaching their deposits or by attachment and sale of their properties in accordance with the provisions of the relevant Public Demands Recovery Act. It should also be stated in the affidavit as to whether by not vacating the government accommodation such unauthorised occupants incur any criminal liability under the Public Premises Act or the Penal Code or any other law for the time being in force so that in case any such liability is incurred, directions may be given to launch criminal prosecution against them by filing complaint in court. Further, affidavit shall state as to why the appropriate Government/Authority/Body/High Court be not directed to consider the desirability of initiating proceedings under the relevant service rules and suspend the unauthorised occupants which includes judicial officers in contemplation of departmental proceeding as such conduct of theirs is unbecoming of judicial officers/government servants and in future also, no sooner occupation of a person becomes unauthorised, such action be taken immediately.”

11. Similarly, by order dated 26-9-2006 (2011) 15 SCC 730 we directed the Chief Secretaries of the States of Madhya Pradesh, Orissa, Karnataka, Gujarat, Tamil Nadu, Andhra Pradesh, Maharashtra and the Union Territory of Chandigarh besides the Union of India to respond to the measures to be taken by them as incorporated in para 3 of the said order pursuant to which responses have been filed.

12. We direct the Chief Secretaries of other States and Union Territories to also respond to steps to be taken at their level as enumerated in para 3 (quoted above) of our order dated 30-8-2006 (2011) 15 SCC 737. On 18-9-2007, the Court shall hear the Union of India, all the States and Union Territories in this regard.

13. In relation to launching of criminal prosecution, learned counsel pointed out that if a government servant, after he is called upon by a notice duly served upon him, fails to withdraw from possession of government premises, he is said to commit criminal trespass within the meaning of Section 441 of the Penal Code, 1860 (for short “IPC”) as amended by the Orissa Legislature vide the Indian Penal Code (Orissa Amendment) Act, 1986 (Orissa Act 22 of 1986) and liable to be prosecuted under Section 447 IPC. Section 441 IPC incorporating the Orissa Amendment reads thus:

“441. Criminal trespass.—Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property,

or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence,

or, having entered into or upon such property, remains there with the intention of taking unauthorised possession or making unauthorised use of such property fails to withdraw from such property, or its possession or use when called upon to do so by that another person by notice in writing, duly served upon him,

is said to commit ‘criminal trespass’.”

(emphasis added)

14. From a bare reading of the aforesaid provisions, it would be clear that upon service of notice to vacate government premises, if a government servant continues to remain in occupation thereof, he would be committing offence of criminal trespass thereby and liable to be prosecuted under Section 447 IPC, which offence is cognizable as would appear from the First Schedule to the Code of Criminal Procedure, 1973 (for short “the Code”). In the present case, the aforesaid sixty-six persons are unauthorisedly continuing in occupation of the government premises even after service of notices upon them to vacate, as such, the State Government would not only be justified but obliged under law to launch criminal prosecution against them under Section 447 IPC by lodging first information reports before the police stations concerned, which must be done within six weeks from today.

15. It appears that in the State of Uttar Pradesh also amendment has been made in Section 441 IPC by the State Legislature vide the Criminal Laws (U.P Amendment) Act, 1961 (U.P Act 31 of 1961) which is more or less on the same lines and the same runs thus:

“441. Criminal trespass.—Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property,

or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence,

or, having entered into or upon such property, whether before or after the coming into force of the Criminal Laws (U.P Amendment) Act, 1961, with the intention of taking unauthorised possession or making unauthorised use of such property fails to withdraw from such property, or its possession or use when called upon to do so by that another person by notice in writing, duly served upon him, by the date specified in the notice,

is said to commit ‘criminal trespass’.”

(emphasis added)

16. From the First Schedule of the Code, it would appear that the offence is bailable. Let the States of Orissa and Uttar Pradesh consider the desirability of making State amendment in the First Schedule of the Code for making the offence under Section 441 IPC to be non-bailable so far it relates to continuance of government servants in government premises even after service of notices upon them to vacate the same for which we direct the Chief Secretaries of these two States to respond before the next date fixed.

17. Keeping in mind the mushroom growth of unauthorised occupation of government premises in almost all parts of the country, in flagrant violation of all the rules prevalent in a civilised society, which is detrimental to the interest of a large number of government servants who have been waiting for years together for allotment of government premises, we feel that a time has come that Governments of all the other States and Union Territories should bestow their thoughts and consider the desirability of taking steps for amendment of Section 441 IPC by legislatures of the respective States on the lines of the amendments made in the States of Uttar Pradesh or Orissa. They should also consider the desirability of amending the First Schedule of the Code for making the offence under Section 441 IPC to be non-bailable so far as it relates to continuance of government servants in government premises even after the service of notices upon them to vacate the same. We direct the Chief Secretaries of all other States and Union Territories to respond in this regard before the next date fixed.

18. The Union of India should also consider the desirability of making suitable amendments in the relevant public premises statutes dealing with premises belonging to the Union Government, providing therein such unauthorised occupation penal and the offence a non-bailable one for which response must be filed before the next date fixed. The Union of India should also consider the desirability of making amendments in Section 441 IPC and the First Schedule of the Code, as indicated in para 17 above, for which also response must be filed before the next date fixed.

19. So far as the legislative wing is concerned, we have been informed that out of eight persons, four have vacated as would appear from the affidavit filed on behalf of the State of Orissa. Learned counsel appearing on behalf of the State, during the course of argument, stated on instructions, that out of the remaining four persons, two have vacated and allotment of quarter in favour of one person has been regularised. So far as the fourth person, namely, Shri Sambhunath Nayak, sitting MLA, is concerned he has not vacated and a notice was directed to be issued by this Court under our order dated 26-9-2006, but the same could not be served. We direct the Registry to issue fresh notice in terms of our aforesaid order to the said legislator. The State is also permitted to serve notice of this appeal upon the aforesaid legislator.

20. It appears that on 26-9-2006 (2011) 15 SCC 730, we directed to call for the records of OJCs Nos. 2956 and 9603 of 2004 from the Orissa High Court pursuant to which the Registry had sent requisition for the same, but the records have not been received though a period of about ten months has elapsed. The Registry is directed to call for an explanation from the Registrar (Administration), Orissa High Court, as to why the records have not been sent to this Court.

21. We find that in the affidavit filed on behalf of the State of Orissa there is no reference as to the amount of rental/penal rental due against the unauthorised occupants and the steps taken to realise the same for which, a detailed affidavit should be filed within the same time.

22. Place the matter on 18-9-2007.

23. The Registry is directed to send copies of this order to Press Trust of India and Prasar Bharati for wide publication in print and electronic media throughout the country so that the other unauthorised occupants of government premises be informed that in case they still fail to vacate the same, the Court may consider the desirability of giving similar directions in relation to them as well.

24. Let copy of this order be made over to Mr Ranjit Kumar, the amicus, Mr Amarendra Sharan, Additional Solicitor General representing the Union of India and the learned counsel appearing on behalf of the Governments of all the States and Union Territories for taking steps to file their respective responses before the next date fixed.

Court Masters