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THE COURT OF II ADDL. DISTRICT & SESSIONS
JUDGE AT: RAICHUR
Dated this the 5th day of August, 2019
// PRESENT //
Shri Mustafa Hussain S.A. B.A.,LL.M.
II Addl. District & Sessions Judge, Raichur.
Criminal Appeal No.4/2019
APPELLANT :
Vs
RESPONDENT :
Smt. Kaveri Nelwade W/o S Omprakash, Age: 32
Years, R/o TIV/14, RTPS Colony, Shaktingar
584 170, Tq. and Dist. Raichur.
(Petitioner in Crl. Misc.13/2015 pending on the
file of Hon’ble CJM Court at Raichur)
(By Shri K.B., Advocate)
2 Crl. Appeal No.4/2019
J U D G M E N T
U/Sec.29 of D.V. Act against the respondent being aggrieved
Misc.13/2015 on the file of learned C.J.M., Raichur.
and they are referred as per their ranking before the trial
Court.
3. The brief and relevant facts relating to this appeal
are as under :
against the respondent No.1 and his family members seeking
maintenance and residence & other reliefs.
No.1 filed application u/S.23 of the D.V. Act seeking direction
No.TypeIV/14, RTPC Colony, Shaktinagar. In support of the
application, the applicant has sworn to affidavit stating that
residence and due to the dispute with the petitioner No.1 he
left the quarters and as such, the petitioners are residing in
occupied new quarters and now he has to vacate the earlier
handover to his department. Hence, the application.
4. The petitioner No.1 resisted the application by filing
petitioner No.1 is a woman and the petitioner No.2 and 3 are
quarters without any alternative arrangement, she will be put
residence of the petitioners. Therefore, on all these grounds,
she has sought for dismissal of the application.
disposed the application with an observation that it has no
alternative accommodation having regard to the status of the
petitioners and their convenience. Now the respondent No.1
this appeal challenging the correctness, legality and propriety
amongst the following grounds ;
The respondent No.1 now asserted that the impugned
order is erroneous and opposed to the law, facts of the case.
It is further asserted that the learned trial court has directed
him to provide alternative residence to the petitioners and he
has also agreed to provide alternative residence by searching
that the learned trial court failed to direct the petitioners to
asserted that he has occupied new quarters and due date for
lapsed and the K.P.C. authorities may initiate action against
impugned order has resulted in miscarriage of justice. Hence
the revision petition.
5 Crl. Appeal No.4/2019
trial court records were secured.
7. I have heard both sides and perused the material
placed on record. The following points that would arise for
my consideration:
and arguments heard, my answers to the above points are as
follows :
Point No.1: In the negative.
Point No.2: In the affirmative.
Point No.3: As per final order, for the following :
6 Crl. Appeal No.4/2019
// R E A S O N S //
Engineer and the K.P.C. allotted to him the quarters for his
official accommodation. According to the appellant due to the
domestic dispute with the respondent he left the quarters and
started residing separately and the respondent continued her
stay in the official quarters. The appellant has asserted that
has already occupied the same and therefore, he sought for
trial court contended that unless alternate accommodation is
placed on record has come to the conclusion that he has no
jurisdiction to direct the respondent to vacate the premises
and it is within the domain of the K.P.C.L. to take action. It
is also observed by the learned trial court that the appellant
residence and now the appellant cannot seek the indulgence
of the court. It is also observed by the learned trial court that
respondent and her children.
allotted to the quarters for his official accommodation and he
has no right or control over the said quarters. It was further
argued that the K.P.C. has allotted another quarters to the
appellant in view of his promotion as Executive Engineer and
he is under obligation to vacate the quarters. It was further
with him and the appellant is likely to face disciplinary action
from his employer for noncompliance of the notice. It was
alternative accommodation through a rented premises of the
choice of the respondent and ready to bear all the expenses.
8 Crl. Appeal No.4/2019
11. Repelling the said arguments the learned counsel
the respondent is in possession of the quarters along with her
children and that she cannot be comepelled to go for a rented
her children in the new quarters. I have perused the entire
material placed on record.
record, the appellant was allotted with official quarters by the
K.P.C. while he was serving as Assistant Executive Engineer.
According to the appellant, due to the marital dispute with
staying in the official quarters. It is an undisputed fact that
the appellant is now promoted as Executive Engineer and in
view of his promotion, the K.P.C. has allotted to him a bigger
appellant, he has now occupied new quarters and that he has
to vacate the earlier quarters and a notice is also issued to
9 Crl. Appeal No.4/2019
him by his employer. But the learned trial court has come to
the conclusion that it has no jurisdiction to pass such order
u/S.23 of D.V. Act.
Magistrate to pass such interim order as he deems just and
respondent to vacate the official quarters. Section 19 of the
Act deals with residence orders which confer powers on the
accommodation to the respondent. Section 19 (1) (f) of the
Act also confers power on the court to direct the respondent
circumstances of the case. The relevant provisions reads as
under:
Section 19 Residence order. (1) ***
(f) directing the respondent to secure same
level of alternative accommodation for the
aggrieved person as enjoyed by her in the
shared household or to pay rent for the same, if
the circumstances so requires:
10 Crl. Appeal No.4/2019
alternate accommodation or to pay rent for the same in the
circumstances of the case. In the instant case, the official
quarter was allotted to the appellant by his employer mainly
because of his employment. The right of the appellant over
the official quarters is like a Licensee and he can only use
and enjoy the premises so long as he remains in the post.
The appellant has no right or title over the official quarters
and he is bound to vacate whenever there is a demand from
Admittedly, the appellant is promoted as Executive Engineer
and he is already allotted quarters befitting his rank by his
new quarters. That being so, it becomes incumbent on his
occupation of the respondent. The learned counsel for the
issued to appellant for vacating the earlier quarters and he
appellant being the Government servant cannot continue to
enjoy two official quarters at a time. He has to retain one and
the other has to be vacated. Therefore, in the circumstances
11 Crl. Appeal No.4/2019
employer of the appellant but that itself is not a ground to
consider the application filed by him in the peculiar facts &
circumstances of the case. If the respondent had vacated the
quarters, there would not have been any scope for the
appellant to approach the learned trial court. Admittedly, the
dispute quarters was not allotted in the name of respondent
action only against him and not against the respondent. If
any eviction proceedings are taken place, the respondent will
be driven out of the house which may cause more hardship
and inconvenience to her than the inconvenience pleaded by
employer of the appellant. The appellant has also no other
option except in approaching the learned trial court seeking
appropriate direction against the respondent. Since Section
justice, ought to have allowed the application in the facts &
suitable rented accommodation. Therefore, the approach of
the learned trial court in holding that it has no jurisdiction is
improper and incorrect.
13. Moreover, the appellant has fairly volunteered to
getting rented premises to her. Interestingly, the respondent
also sought for the same relied in her objections before the
learned trial court and now for the first time before this court
allotted to the appellant. No such relief was claimed by her
before the learned trial court and in fact, the learned trial
accommodation to the respondent befitting her status. But
befitting her status and which is convenient to her has now
challenged this appeal by asserting her right of residence in
the new quarters allotted to the appellant. Admittedly, the
13 Crl. Appeal No.4/2019
parties have got marital dispute and the appellant is also an
Executive Engineer and the official quarters is allotted to him
allotted with different quarters or he may be asked to vacate
the quarters by his employer and in that event, again it will
lead to further litigations between the parties. Therefore, in
appellant to provide accommodation to the respondent in his
official quarters. On the other hand, the respondent herself
has opted for alternate accommodation and the appellant has
premises of her choice befitting her status and having regard
payment of monthly rent as agreed by him. Therefore, the
however the learned trial court is not justified in dismissing
“negative” and point No.2 in the “affirmative”.
14. POINT No.3 : For the foregoing discussions and
reasons stated therein the appeal filed by appellant succeeds
following:
O R D E R
(Dictated to the Judgment writer on computer, corrected and
pronounced by me in the open court on the 5 th day of August,
2019)
(Mustafa Hussain S.A.)
II Addl. District & Sessions Judge,
Raichur.
*U*