Research › Search › Judgment

J&K High Court · body

2016 DIGILAW 507 (JK)

Suraj Singh v. State

2016-10-05

B.S.WALIA

body2016
JUDGMENT : B.S. Walia, J. Learned counsel contends that impugned Government Order No. 216-Est of 2013 dated 21.10.2013 is legally unsustainable for not taking into account the fact that the 5% discretionary quota for allotment of residential accommodation by the Minister, Estates under the Jammu and Kashmir Estates Department (Allotment of Government Accommodation) Regulations, 2004 (hereinafter referred to as the Regulations) is not restricted to freedom fighters, ex-legislators and media persons only, but envisages other persons also as evident from Clause (e) of paragraph 3 of the impugned order, which 'clarifies that the 5 % discretionary quota includes freedom fighters, ex-legislators and media persons also, meaning thereby that the said categories of persons are in addition to other categories of deserving persons. On the basis of the same, learned counsel contends that the aforementioned clause has to be read as not excluding other deserving persons. In support of his arguments, learned counsel refers to the preamble of the Jammu & Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998 (hereinafter referred to as 'the Act'). Relevant extract of the same is reproduced hereunder:- "An Act to provide equal opportunities, care, protection, maintenance, welfare, training and rehabilitation to the persons with disabilities." 2. Learned counsel contends that since the Act is to provide for equal opportunities, care, protection, maintenance, welfare and rehabilitation to persons with disabilities, it was all the more incumbent upon the respondents to take into account the aforementioned aspect of the matter while considering the ambit of clause (e) of paragraph 3 of the impugned order. 3. Learned Sr. Addl. AG, contends that the 5% discretionary quota does not include category of visually challenged persons and includes only those categories as are envisaged in Clause (e) of paragraph 3 of the impugned order. It is further contended that the petitioner is not entitled to residential accommodation on account of his hailing from district Kathua. Both argument's are noted to be rejected for the reasons given hereunder. 4. It is further contended that the petitioner is not entitled to residential accommodation on account of his hailing from district Kathua. Both argument's are noted to be rejected for the reasons given hereunder. 4. It is settled law that the word "includes" used in interpretation clauses is to enlarge the meaning of the words or phrases occurring in the body of the statute and when so used, those words and phrases are to be construed as comprehending not only such things as they signify according to their nature and import but also those things which the interpretation clause declares that they shall include. Reference in this connection can be made to the decision of the Hon'ble Supreme Court in CIT v. Taj Mahal Hotel, (1971) 3 SCC 550 . Relevant extract of the aforesaid decision is reproduced hereunder :- "6. Now it is well settled that where the definition of a word has not been given, it must be construed in its popular sense if it is a word of everyday use. Popular sense means "that sense which people conversant with the subject-matter with which the statute is dealing, would attribute to it". In the present case, Section 10(5) enlarges the definition of the word "plant" by including in it the words which have already been mentioned before. The very fact that even books have been included shows that the meaning intended to be given to "plant" is wide. The word "includes" is often used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute. When it is so used, those words and phrases must be construed as comprehending not only such things as they signify according to their nature and import but also those things which the interpretation clause declares that they shall include. ..." The petitioner, is a visually challenged person. Despite the handicap faced by him, the petitioner has had the fortitude to come from district Kathua to practice in the High Court at Jammu, therefore, it was all the more incumbent on the respondents to ensure implementation of the mandate of the Act by providing equal opportunity with regard to protection, maintenance, welfare and rehabilitation to persons who suffer from a disability. In view of the preamble to the Act (ibid), as also the inclusive nature of the definition, the argument advanced by learned Sr. In view of the preamble to the Act (ibid), as also the inclusive nature of the definition, the argument advanced by learned Sr. AAG that the 5% discretionary quota is restricted only to freedom fighters, ex-legislators and media persons is unsustainable and is accordingly rejected. 5. In a welfare State, it is incumbent on the authorities to ensure full implementation of welfare schemes contemplated as per different provisions of law and to ensure availability of equal opportunities with regard to care, protection, maintenance, welfare and rehabilitation facilities to persons with disabilities. The mandate of the Act (ibid) would be achieved only in the eventuality of entitlement of the petitioner as a visually challenged person being upheld in the context of para 3 clause (e) of the impugned order. In the light of the position noted above, clause (e) of paragraph 3 of the impugned order which incorporates the Allotment of Government Accommodation Regulations 2004, is read as including visually challenged persons also in the 5 % discretionary quota with the Minister Estates for allotment of residential accommodation. 6. Learned counsel has also argued that the impugned order has not been passed by the competent authority. I find merit in this submission also. As per Clause 3(e) of the Regulations as contained in the impugned order, the 5 % discretionary quota is to be operated as per the discretion of the Minister Estates. In other words the competent authority for taking decision with regard to the claim under the discretionary quota is the Minister Estates. However, the impugned order has been passed by the Director Estates. In the circumstances, the impugned order is coram-non-judice. 7. In the light of the position as noted above, the impugned order is quashed. The claim of the petitioner is directed to be placed before the Minister Estates, Govt, of J&K, for taking a decision in accordance with the Rules and Regulations in the light of interpretation given above within a period of four weeks from the date, certified copy of this order is served on the respondents. 8. Writ Petition stands allowed in the aforesaid terms along with connected MP.