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2018 DIGILAW 283 (JK)

Ghulam Ahmad Lone v. State of JK

2018-05-09

M.K.HANJURA

body2018
JUDGMENT : 1. The case of the petitioner is that, being a political worker of the Indian National Congress, he was victimized by different militant organizations, as a result of which, he lost his son also. Facing the severe torture at the hands of the militants, the petitioner approached the competent authority for the allotment of accommodation in some protected area. This request of his was considered and appreciated by the competent authority vide order No. Home 1213-97/ISA dated 31st of December, 2000 and the petitioner was provided temporary ration card, wherein his residential accommodation was shown in Hotel Payeen-II, Room No. 23 situated at Zero Bridge, Rajbagh, Srinagar. The petitioner has further stated that he was also provided with a monthly relief of Rs. 4000/- by the Relief Commissioner, after taking note of the fact that the petitioner was a duly recognized migrant. The accommodation of the petitioner in the hotel aforesaid was changed from one place to another, till such time that Hall No.1 in Hotel Snow Peak, Rajbagh, Srinagar, was allotted to him, where he continued to reside till the cancellation of the same. A fresh order of providing the accommodation in favour of the petitioner came to be passed vide order no. Sec/JK/Allot-19/06/2429-30 dated 29th of July, 2007. The petitioner and his other family members were threatened of dire consequences by the militants. 2. The petitioner further states that he was kidnapped by the militants and was forcibly taken into a vehicle, However, they released him after some days and, after that, when the petitioner reached Hotel Snow Peak, Rajbagh, Srinagar, he was surprised to see that the residential accommodation provided to him in the Snow Peak Hotel was allotted to some other person, namely, Bashir Ahmad Mir from Kralpora, for the reason that his wife was associated with the special task force personnel. The household belongings of the petitioner were thrown out of the residential accommodation provided to the petitioner leaving him with no shelter. The petitioner was exposed to the danger of the militants for getting liquidated along with his family members and the monthly relief given to the petitioner by the competent authority was also stopped. Thereafter, a false and frivolous case came to be registered against the petitioner under FIR No. 38 of 2007, registered at Police Station, Karan Nagar, for the commission of offences punishable Section 7/25 Arms Act. Thereafter, a false and frivolous case came to be registered against the petitioner under FIR No. 38 of 2007, registered at Police Station, Karan Nagar, for the commission of offences punishable Section 7/25 Arms Act. To tackle all these grievances, the petitioner sought the redressal of the same. He made various representations to the then Hon’ble Chief Minister of Jammu and Kashmir and the Hon’ble Revenue Minister of the State, but all his efforts, in this regard, went in vain. 3. Under the cover of the above facts, the petitioner has sought the following reliefs: I. Mandamus commanding the respondents to restore the residential accommodation meant for protected persons in Hall No.1 of Hotel Snow Peak Zero Bridge Rajbagh Srinagar. II. Mandamus Commanding the respondents to revoke the order of cancellation of the allotment of residential accommodation to the petitioner in Hall No.1 of Hotel Snow Peak Zero Bridge Raj Bagh, Srinagar. III. Mandamus commanding the respondents to restore the residential accommodation in Hall No.1/or at alternate place at Srinagar in protected area in favour of the petitioner. IV. Mandamus Commanding the respondent no.2 to release the monthly relief of the petitioner and his family members from the month of June 2007 till date and also in future. 4. The respondents, in their objections filed in opposition to the writ petition, have stated that in terms of the order dated 11th of February, 2015, this Court had sought records of the case that formed the basis of passing of the impugned order and with regard to the claim of the petitioner, particularly in view of the directions of the State Human Rights Commission (SHRC). The recommendations of the State Human Rights Commission were considered by the Empowered Committee constituted by the Government in its 15th Meeting held on 26th of December, 2012 and, in terms of the reports of the Inspector General of Police (IGP), Kashmir, vide letter No. KZ//HR-15th/ECM/2012.20226 dated 26th of December, 2012 and Inspector General of Police (IGP), CID’s letter No. CID/MR/Mig/2011/80 dated 22nd of October, 2012, the Empowered Committee came to the conclusion that the relief sought by the petitioner does not fall within the ambit of the policy, and the recommendations of the State Rights Commission (SHRC) cannot be accepted. The said recommendations were rejected and the order of rejection was conveyed by the Government to the answering respondents (Director General of Police J&K and Additional Director General of Police, Security, vide Home Department Letter No. Home/SHRC-130/2011/794 dated 19th of February, 2015. 5. Heard and considered. 6. The law provides that the correctness of the reasons that prompted the Government to take a decision and take a course of action instead of the other, is not a matter of concern in the judicial review and the Court is not the appropriate forum for conducting such investigations. The scope of the judicial review has to be confined to find out whether the Government decision was against the statutory provisions or violative of the fundamental rights of the citizens of the State. 7. In the case of ‘Federation of Railway Officers Association & Others vs. Union of India’, reported in ‘ AIR 2003 SC 1344 ’, the Apex Court said that the wholesome rule in regard to judicial interference in an administrative decision is that if the Government takes into consideration all the relevant factors, eschews from considering irrelevant factors and acts reasonably within the parameters of the law, Courts would keep off the same. 8. In the case of ‘BALCO Employees Union (Regd.) vs. Union of India & Ors.’, reported in ‘MANU/SC/0779/2001’, the Apex Court said that it is evident that it is neither within the domain of the Court nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our Courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wise or more scientific or more logical. 9. The respondents have contended that the Empowered Committee, constituted by the Government in its 15th Meeting held on 26th of December, 2012, in terms of the reports of the Inspector General of Police (IGP), Kashmir vide letter No. KZ/HR-15th/ECM/2012.20226 dated 26th of December, 2012 and Inspector General of Police (IGP), CID’s letter No. CID/MR/Mig/2011/80 dated 22nd of October, 2012, came to the conclusion that the relief sought by the petitioner does not fall within the realm of the policy and the recommendations of the State Human Rights Commission cannot be accepted. 10. 10. It needs must be said that the recommendations of the Human Rights Commission are not binding upon the Government. The Government, after taking an overall view of the recommendations, has to form its subjective opinion in a matter in view of the peculiar facts and circumstances of such case and the recommendations so made. It is within the domain and area of the Government to accept or reject the recommendations of the Commission. The policy decision of the Empowered Committee constituted by the Government which declined the relief to the petitioner cannot be called in question in the Court, unless and until the same is arbitrary or, to put in other words, it is irrational and not circumspect or is wayward, aberrant, malicious and capricious, offending the basic requirement of Article 14 of the Constitution of India. The petition of the petitioner does not fall within the purview of these parameters. The decision of the Empowered Committee on such matters, i.e. providing of security, shelter and accommodation to a person, cannot be challenged in a Court of law. The Empowered Committee is the best judge to look into these aspects of the case. The Court cannot substitute or rewrite a policy in a case like the present one. The Court cannot delve into an area which requires a critical analysis and examination by those who have the expertise on the subject and can well see who requires to be protected and who does not require supervision and support. It is within the realm of the Government to take a call on such an issue. That being the position, the petition of the petitioner is devoid of any merit. It entails dismissal and is, accordingly, dismissed along with all connected MPs. Interim directions, if any, in force as on date, shall stand vacated.