JUDGMENT : Hasnain Massodi, J. 1. Petitioners have filed their response to documents, submitted by respondents, including affidavit sworn by Deputy Director, Estates, and furnished copies to otherside. On previous date of hearing learned counsel for petitioner in OWP No. 545/2015, agreed to vacate government accommodation and withdraw writ petition in the event allotment of House No. 4, Friends Enclave, Airport Road, Srinagar, made in his favour in October 2014, for a period of six months, is extended at least by one year, so that petitioner shifts to allotted accommodation. Learned Advocate General was requested to respond to suggestion made. However, learned Deputy Advocate General appearing vice Advocate General, expresses his inability to extend any such assurance. 2. In opposition to petitioners' claim in OWP No. 440/2015 and OWP No. 406/2015, it is stated that petitioners have their own residential houses and therefore do not have a right to retain present accommodation. Petitioners have responded to stand taken by respondents and ECI returns filed in this regard, stating that either no such property is owned or even if owned, is not habitable because of recent floods. 3. Petitions involve identical issue and controversy by its very nature does not permit long drawn litigation. Learned Advocate General on previous date of hearing stated that respondents did not want to add or supplement their stand and are more interested in final disposal of petition. Learned counsel for petitioners are not averse to the course suggested. Petitions (OWP Nos. 545/2015; 440/2015; 406/2015; 527/2015; 678/2015; and 741/2015) are, therefore, admitted to hearing and on agreement, taken up for final disposal. 4. Heard and considered. 5. Petitioners in writ petitions on hand are former Cabinet Ministers, Parliament Members or Legislators. They have unsuccessfully contested Assembly Elections held in December 2014. While they held afore-stated positions, State Government allotted government accommodation to them in Srinagar and Jammu, to facilitate discharge of their official duties. However, after their failure to get re-elected, they are being asked to vacate government accommodation, so that Ministers, who replaced petitioners and elected legislators are allotted such accommodation. 6. Petitioners resist effort made by State Government to see them vacate their allotted government houses/apartments, on the grounds urged in petitions. They also oppose the Government decision to remove or reduce their security cover.
6. Petitioners resist effort made by State Government to see them vacate their allotted government houses/apartments, on the grounds urged in petitions. They also oppose the Government decision to remove or reduce their security cover. On strength of averments made in their respective petitions, petitioners seek writ of mandamus, commanding respondents to allow them to retain allotted government accommodation and also security apparatus attached with them and in place as on date. 7. Respondents contest petitioners' claim on the ground that facilities whatever made available to petitioners, are linked to their status as Ministers, Parliament Members and Legislators and once petitioners have lost that status because of verdict in Assembly Elections, they automatically lost right to retain accommodation or even security cover, they had because of their status. 8. There is tendency all over Country on part of Ministers, Members of Parliament and even government servants to retain government accommodation and other facilities/amenities, even after they loose status that entitled them to such facilities, demit office or retire on superannuation. Such tendency has been frowned upon by Law Courts and resented by civil society and social activists, having interest in honesty, integrity and transparency in affairs related to public life. Once a legislator loses an election, right course for him is to gracefully vacate government accommodation and surrender facilities enjoyed by him, so that accommodation and other facilities go to newly elected legislator. Same is true about Members of Parliament, government servants and other public functionaries. Their retaining such facilities would be unjust and unfair and may even touch peripheries of misconduct. 9. However, what is true about rest of the Country may not be true about the State. 10. State of Jammu and Kashmir has been worst affected by turmoil and antinational activities during last two and half decades. Violence makes political activists vulnerable to threat from subversive elements. We have long list of protected persons, who but for government accommodation and security provided to them, would have fallen prey to nefarious designs of elements inimical to peace, progress and public order.
Violence makes political activists vulnerable to threat from subversive elements. We have long list of protected persons, who but for government accommodation and security provided to them, would have fallen prey to nefarious designs of elements inimical to peace, progress and public order. Claim of a political activist declared as protected person to facilities, like government accommodation in protected areas, personal security officer etc., is to be dealt with in the context of prevalent law and order situation and not the way such claim is dealt with elsewhere in the country, not caught in whirlpool of violence and free from antinational and subversive activities. 11. The very fact that the State is declared as Disturbed Area and Armed Forces Special Powers Act is in force, any demand to withdraw or dilute it, is opposed with full vigour by respondents, is indicative of the fact that subversive activities in the State have not entirely disappeared or die down. Against this backdrop, refusal to provide government/hired accommodation in a safe or protected area or security cover, may amount to violation of right to life and liberty guaranteed under Article 21, Constitution of India, inasmuch as withdrawal of such facilities may result in bodily harm to protected person or any of his dependent family members. 12. It is admitted case of parties that petitioners are Protected Persons and therefore exposed threat to their life and to life of their family members. 13. There is no scope for disagreement with the stand taken by learned Advocate General that J&K Estates Department (Allotment of Government Accommodation) Regulations, 2004, link allotment and retention of government accommodation to status of allottee. In other words, once an allottee loses status that entitles him to allotment, he automatically loses right to retain accommodation and need not be served any notice or given an opportunity to put forth his stand against an order, requiring to vacate such premises. However, in present case, petitioners have not been allotted government accommodation only because of their status as Ministers, Members of Parliament, Legislators etc., but also because of "threat perceptions" and their safety requirements as "Protected Persons". The matter, therefore, has to be looked not only from viewpoint of Regulations of 2004 but their "threat perception".
However, in present case, petitioners have not been allotted government accommodation only because of their status as Ministers, Members of Parliament, Legislators etc., but also because of "threat perceptions" and their safety requirements as "Protected Persons". The matter, therefore, has to be looked not only from viewpoint of Regulations of 2004 but their "threat perception". True, that petitioners may not insist on retention of accommodation allotted to them commensurate with their last status, but they cannot be altogether denied government or hired accommodation in a safe area, if they are required to be given such accommodation having regard to their "threat perceptions", and made vulnerable to threat to their life and that of their family members. To illustrate, if a petitioner has been allotted a VIP bungalow as categorised in Regulations, he may not have a right to retain such bungalow, but nonetheless is to be considered for other types of accommodation i.e. Special - A Type Quarter etc., as provided in Regulations, having regard to the "category" in which he has been placed. Similarly, in case any of petitioners has been provided particular security cover or particular number of personal security officers, he may not be heard insisting on same cover or number of personal security officers, but at the same time is to be provided such security as would serve intended purpose. 14. Learned counsel for petitioners have, during course of arguments, referred to number of instances, where political activist of one or other party continue to use government accommodation notwithstanding their failure to get elected in 2008 or 2014 elections. Mr. Ratanpuri has even placed a list of persons provided government accommodation at Pulwama. It is pointed out that a number of such allottees are political activists and not elected as legislators. However, it would not be appropriate to dilate on this aspect of the case as the observations made herein are not restricted to one or few protected persons but would relate to all such persons, who have been provided government accommodation and security cover by State Government. 15. This Court is not equipped with necessary mechanism to assess "threat perception" of petitioners or to conclude whether petitioners or any one of them deserves to be allowed to retain present accommodation or provide alternate government/hired accommodation.
15. This Court is not equipped with necessary mechanism to assess "threat perception" of petitioners or to conclude whether petitioners or any one of them deserves to be allowed to retain present accommodation or provide alternate government/hired accommodation. Similarly this Court does not have necessary inputs to assess the case of each and every petitioner for security cover or nature and gravity of threat, to which petitioners or any one of them is exposed. The exercise is to be left to experts. Viewed thus, petitions are disposed of, with following directions: (i) State Government shall constitute a Committee headed by Additional Director General of Police, Security, and comprising of District Magistrate, Srinagar/Jammu; Director Estates; Superintendent of Police, Security, Srinagar/Jammu; and any other member co-opted by Additional Director General of Police, Security, to make an objective assessment of threat perception of each of petitioners and in the said background need to allow petitioners to retain present government accommodation in their use or to provide alternate government/hired accommodation. The Committee shall allow petitioners to put forth their stand either in person or through their representative including written representations; (ii) The committee shall also examine the security cover or number of security personnel required by petitioners, so that they and their dependent family members are not exposed to any threat or risk; (iii) The committee, on threadbare examination of the matter, shall make its recommendations to State Government within two weeks from the date of receipt of copy of order. The Committee, while making its recommendation, shall have due regard to the "category", in which petitioners have been placed i.e. any of one of X, Y, Z or Z+ categories. State Government, having regard to recommendations so received, shall issue necessary orders as warranted in facts and circumstances of the case. (iv) Till recommendations are received from the committee and necessary orders on such recommendations passed, petitioners would be allowed to retain present accommodation and security cover. (v) Let copy of order be provided to Mr. Sajad A. Geelani, learned Dy. AG, under signature of Bench Secretary, so that needful is done without delay. Disposed of.