Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 114 (JK)

State of Jammu and Kashmir v. Suraj Singh

2017-03-06

ALOK ARADHE, N.PAUL VASANTHAKUMAR

body2017
JUDGMENT : Alok Aradhe, J. In this Intra-court Appeal, the appellants have assailed the validity of order dated 05.10.2016, passed by the learned single Judge. 2. The facts giving rise to the filing of this appeal briefly stated are that admittedly the respondent, who is a Practicing Lawyer, suffers from visual disability to the extent of 100%. He has no accommodation in Jammu. The respondent on 01.09.2012 submitted a representation to the Chief Minister for allotment of accommodation under 5% discretionary quota as per J. & K. Estates Department (Allotment of Government Accommodation) Regulations, 2004 (hereinafter referred to as the Regulations). However, the representation submitted by the respondent failed to evoke any response. Thereafter, the respondent filed OWP No. 1401/2012, which was disposed of with a direction to the appellants herein to accord consideration to the representation of the respondent. However, vide order dated 21.10.2013, the representation submitted by the respondent was rejected on the ground that there is no provision under the Regulations for providing accommodation to a person suffering from disability. 3. Thereupon, the respondent filed another writ petition, namely, OWP No. 857/2016, which was decided vide order dated 05.10.2016 and the impugned order dated 21.10.2013 was quashed. The learned single Judge inter alia held that the word used in Regulation 3(e) of the regulations are inclusive and since the order has been passed by the Director Estates, therefore, the order is coram-non-judice. Accordingly, the appellants herein were directed to place the case of the respondent before the Minister Estates, Government of J. & K., for taking a decision in accordance with the Rules and Regulations in the light of interpretation of order passed by the learned single Judge. In the aforesaid factual background, the appellants have approached this Court. 4. Learned counsel for the appellants has produced the record before us and has pointed out the learned single Judge ought to have appreciated that the impugned order passed by the Minister of Estates and in absence of any provision in the Regulations, the impugned order rejecting the claim of the respondent was rightly passed. On the other hand, learned counsel for the respondent has supported the order passed by the learned single Judge. 5. We have considered the rival submissions made at bar and have perused the record.? On the other hand, learned counsel for the respondent has supported the order passed by the learned single Judge. 5. We have considered the rival submissions made at bar and have perused the record.? Before proceeding further, it is apposite to take note of the relevant part of the Regulations, which reads as under: 5. '% discretionary Quota placed at the discretion of minister Estates for persons, other than Government Employees which will include freedom fighters, ex-legislators and media person also.' 6. From the perusal of the Regulation 4 (e), it is evident that in the aforesaid regulation, the word ' includes-has been used by the State Legislature. It is well settled in law that 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 statute and when it is so used the words must be construed comprehending. (See CIT Rivandrum v. Anand Theatres (2000) 5 SCC 393 : ( AIR 2000 SC 2356 ); Narmada Bachao Andolan v. Union of India and others (2005) 4 SCC 32 : ( AIR 2005 SC 2994 ) and Commercial Taxation officer, Udaipur (2007) 3 SCC 124 ) : (AIR 2007 SC (Supp) 550). 7. It is pertinent to mention here that India is Signatory of Universal Declaration of Human Rights. Article 25 of the Universal Declaration of Human Rights recognises right of every individual to basic human needs including access to adequate health care in the event of sickness and disability. Article 25 reads as under: 'Everyone has right to standard of living adequate for the health and well being of himself and of his family including food, clothing, housing and medical care and necessary social service and right to security in the event of unemployment, sickness, liability, widowhood, old age or lack of livelihood in circumstance beyond his control.' 8. One of the directive principles of State Policy contained in Article 41 of the Constitution of India is in consonance with Article 25 of the Universal Declaration of Human Rights, casts an obligation on the State to provide within its economic capacity, public assistance in case of unemployment, old age, sickness and disablement. For enjoyment of basic fundamental human freedoms, it is an obligation of the State to extend protection and assistance both for the physical and mental health of every individual. 9. For enjoyment of basic fundamental human freedoms, it is an obligation of the State to extend protection and assistance both for the physical and mental health of every individual. 9. The Supreme Court in the case of Jeeja Ghosh and another v. Union of India and Ors., AIR 2016 SC 2393 , while dealing with the scope and ambit of Section 44 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 has held that rights that are guaranteed to differently abled persons under the Act are founded on the sound principle of human dignity which is the core value of human right and is treated as a significant facet of right to life and liberty. Such a right now treated as human right of the persons who are disabled, has its roots in Article 21 of the Constitution. It has further been held that right life is given a purposeful meaning including right to live with dignity and human dignity is a constitutional value and a constitutional goal. 10. From the perusal of the file, which was produced before us, it is evident that no decision has been taken by the In-charge Minister and merely signature has been put in the file. Therefore, we agree with the finding recorded by the learned single Judge that no decision in the matter has been taken by the Minister Estates, Government of Jammu and Kashmir. 11. In view of the preceding analysis, we do not find any infirmity with the view taken by the learned single Judge in quashing the impugned order. However, the Minister Estates, Government of Jammu and Kashmir is directed to take a decision in the matter in accordance with the observations made herein (supra) and the interpretation given to us on the Regulation 4(e) of the Regulations and take a decision in respect of entitlement of the respondent for accommodation within a period of four weeks from the date of receipt of a certified copy of order passed today. To the aforesaid extent, order passed by the writ court is modified. 12. With the aforesaid directions, the appeal is disposed of.