Trilok Chandra Pandey vs State And Others

Sharad Kumar Sharma, J

Heard the learned counsel for the petitioner on the Restoration Application seeking recall of the order dated 26.04.2019, dismissing the writ petition for want of prosecution and vacating the interim order dated 26.09.2008. The reason which has been assigned in the Restoration Application is that the petitioner had to come from Ram Nagar to Nainital to attend his case, but due to some fault which was developed in his car he could not put in appearance before the Court within time, in the meantime, the list has been revised and the matter was dismissed for want of prosecution and the interim order was vacated.

Considering the grounds taken in the Restoration Application (MCC No.440 of 2019) and being satisfied with the reasons for absence on 26.04.2019, the same is allowed. The order dated 26.04.2019 dismissing the writ petition for want of prosecution is recalled and the Writ Petition is restored to its original number.

As the matter happens to be of 2008, the same is being proceeded to be heard on merits with the consent of the counsel for the parties. In the present writ petition in question, the petitioner has challenged the recovery citation dated 02.09.2008, as issued by the respondent Mandi Samiti, for recovery of the rent due to be paid towards the residential accommodation which was allegedly allotted to the mother of the petitioner on 20.03.1999, by the orders of the Sub Divisional Magistrate, Rishikesh, Dehradun, passed on representation of the petitioner under the pretext of being defendant of a freedom fighter, passed on 28.04.1999.

The argument of learned counsel for the petitioner is that the accommodation which was allotted to the petitioner i.e. House No.45, as shown in the letter of allotment, it has been issued by the Secretary, Mandi Samiti, on the direction which was issued by the Sub Divisional Magistrate on the representation of the petitioner dated 20.03.1999, directing the allotment of the residential accommodation to the petitioner at Rishilok Colony, Ashutosh Nagar, Rishikesh. In the subsequent documents, which has been placed on record, particularly, the letter dated 20.02.2014, which has been issued to the petitioner through Tehsildar by the Secretary of Mandi Samiti, he is shown to be in default for remittance of rent for the period from 01.06.1999 to 16.01.2003, wherein, he defaulted an amount being Rs.39,933/- and from 01.05.2003 to 31.01.2004, he defaulted an amount being Rs.8,262/- and total amount which has been shown to be payable by the notice dated 20.02.2004 was of Rs.48,195/- which was payable by the petitioner.

The learned counsel for the petitioner contends that the demand raised by the notice dated 20.02.2004, since was in relation to Accommodation No.44, and accommodation allotted to him was House No.45, he had represented the matter before the respondent on 01.04.2004 for redressal of his grievance against the recovery proceeding initiated against him by demand letter dated 20.02.2004. It is not only that there was yet another notice dated 16.08.2004 issued to the petitioner, whereby, once again a sum of Rs.53,703/- as arrears of rent was sought to be recovered from the petitioner as a rent payable towards the accommodation which has been allotted to him apart from electricity, water and sewerage charges, in an event of failure to deposit, it was to be recovered under Section 20(1) Krishi Utpadan Mandi Samiti.

On issuance of the recovery citation which is under challenge before this Court raising a demand of Rs.1,73,848/-, which was payable by the petitioner, he has contended that the citation in his name as against the allotment of residential accommodation made as back as on 28.04.1999, is bad because it was an allotment which was made in the name of his mother Dhanuli Devi and hence the recovery as sought to be made now against him cannot be sustained because he was not the principal allottee of the accommodation, but the uncontroverted fact remains that in pursuance to the earlier recovery proceedings initiated against the petitioner and on issuance of notice on 20.02.2004 and 16.08.2004, the petitioner had only represented his grievance before the respondent for determination of the actual liability of the rent dues payable by him as a consequence of the handing over of the possession of the accommodation since 1999.

In response to the pleadings raised by the petitioner in the writ petition and as against the recovery of the rent by the citation in question, the respondent had pleaded in para 7 of the counter affidavit that in fact the Sub Divisional Magistrate on whose direction the Secretary of Mandi Samiti has allotted the accommodation in fact had no authority under law applicable to Mandi Samiti to pass any such direction for making allotment. Secondly, it has been submitted by the petitioner that on the basis of the communication received by the Secretary of the Mandi Samiti on 22.10.2008, that no house was ever allotted by the Mandi Samiti to Dhanuli Devi (the principal allottee).

This fact pertaining to the allotment not having been made by the Mandi Samiti as pleaded in para 7 of the counter affidavit and with regards to the competence of the Sub Divisional Magistrate to make the allotment, this fact in the rejoinder affidavit filed by the petitioner, in the reply as has been extended in para 8 of the rejoinder affidavit, whereby, the answer to the competence of the Sub Divisional Magistrate to allot the accommodation has not been answered. The fact of there being no record available to the Mandi Samiti pertaining to the allotment made in favour of the petitioner are the two vital aspects which has not been denied by the petitioner in the rejoinder affidavit as referred above. But the fact which has emerged from records is that admittedly the petitioner is not an employee of the Mandi Samiti and no allotment as such could have been directed to be made by the Sub Divisional Magistrate for the reason that the Mandi Samiti is exclusively governed by the Act i.e. Krishi Utpadan Mandi Samiti Adhiniyam and the regulation framed thereunder. If that is the situation, when the Mandi Samiti is the creation of the statute and it has got its independent legal entity with the right to be sue and be sued, no allotment could have been directed to be made of the accommodation available with the Mandi Samiti by an order of Sub Divisional Magistrate dated 28.04.1999.

The argument of the learned counsel for the petitioner is that since in pursuance to the allotment order as already referred in the body of the writ petition. The Accommodation No.45, since was allotted to his mother. The recovery citation could not have been issued as against the petitioner. In response to it, it is argued by the learned counsel for the respondent that on a default being committed by the petitioner in remittance of the rent, the Mandi Samiti has been consistently raising the demand of rent by letter dated 20.02.2004 and 16.08.2004 obtained by them on rental basis is a fact, the default which stand determined by the notice dated 20.02.2004 and 16.08.2004 which has not been assailed by the petitioner before any competent forum seeking an adjudicate of the issue about the liability to meet the dues of rent for accommodation, which was allotted to the mother of the petitioner. It seems that on the scrutiny of the documents on record, the petitioner has tried to take an advantage of the reference of the Accommodation No.44 in the letter of allotment and Accommodation No.44 in the recovery notice issued in 2004, but since the factum as pleaded in para 7 of the counter affidavit has not been denied. The inter departmental communication made between the office of the Tehsildar with regards to the effect that no bill would be payable as it did not find any reference in the letter of allotment made in favour of the mother of the petitioner cannot be sustained for the reason being that the Sub Divisional Magistrate under the law had no authority to make any allotment of the accommodation in relation to the property which otherwise is registered and under ownership of the Mandi Samiti under the Krishi Utpadan Mandi Samiti Adhiniyam. Consequently, as far as the recovery is concerned since the allotment itself made by the Sub Divisional Magistrate is vitiated and the petitioner who has not challenged the notice dated 20.02.2004 and 16.08.2004, now he is stopped to take a stand to the effect that the recovery impugned in the writ petition ought to have been issued in the name of his mother, because he has already earlier submitted notice dated 20.02.2004 and 16.08.2004 and the present recovery proceeding for the recovery of the rent was in continuation to the said notification which was issued to the petitioner and the same was not challenged by the petitioner.

Hence, this Court does not find any merit in the writ petition because even otherwise also admittedly the petitioner occupied the Government accommodation belonging to Mandi Samiti he would be liable to pay the rent of his occupancy in relation to the accommodation which has been allotted to him.

Thus this Court does not find any merit in the writ petition and the same is hereby dismissed. There would be no order as to costs.

However, the petitioner, at this stage, seeks on a slight clarification in the order to the effect that the recovery which has been now being effected against him is inclusive of rent, electricity bill and water dues. He submits that as far as the aforesaid dues are concerned, the same had already been remitted by the petitioner or his mother during the period of the occupancy of the accommodation if that be so and if any amount under these heads had been remitted the same would be adjusted against the recovery when the recovery is being enforced in pursuance to the today's judgment.