of Uttranchal through Collector, Dehradun and
Another Vs. Ajit Singh Bhola and Another  Insc 396 (7 May 2004)
Hegde & B.P. Singh.
S.L.P.(C) No.19475 of 2003) WITH CIVIL APPEAL No. 3034 OF 2004 (@ S.L.P. (C)
No. 19476 of 2003) State of Uttranchal
through Collector, Dehradun and Another Appellants Versus Smt.Prakashwati Bhola
Respondent B.P. Singh, J.
both these appeals, the State of Uttranchal has challenged the interim order
passed by the High Court of Uttranchal at Nainital in Writ Petition Nos.
217(M/B) of 2002 and 216 (M/B) of 2002 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 of Uttranchal either to proceed under the
Land Acquisition Act or vacate the premises within 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
informed that the writ petitions filed by the respondents are still pending
before the High Court.
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.
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 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 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.
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 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.
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/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.
to the respondents, 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 5.2.2001 before the learned District Judge, Dehradun
that 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 as withdrawn on 20th March 2001. Since the order of the Court is
not before us, it is not clear whether the appeal preferred by the landlord was
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 a writ petition and obtained an order of stay on 30.1.2002.
notice under section 3(1) of the Uttar Pradesh Accommodation Requisition Act
1947 was issued proposing to requisition the premises in question. Since, there
was no response to the notice, the order of requisition 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.
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 the aforesaid writ
petition, the impugned interim order was passed on 8.5.2003.
Kumar, learned senior counsel appearing on behalf of the State of Uttranchal submitted that by passing the
interim order, the High 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.
noticed the facts and circumstances of the case, we do not 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 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 7.11.2000 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 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 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 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 manner done in the instant case.
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 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 exercise our
discretion under Article 136 of the Constitution of India to set aside the
interim order passed by the High Court. It is well- 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.
peculiar facts and circumstances, we refrain from exercising our discretion and
dismiss these appeals. The interim order stands vacated.