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2018 DIGILAW 629 (JK)

Thakur Randhir Singh v. State of J&K

2018-08-13

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. In the instant writ petition, the petitioner inter alia seeks the following reliefs: (a) Certiorari quashing Order No.DDE/J/620 dated 31.07.2018 whereby respondent No.5 illegally/arbitrarily and without adopting due course of law directed the petitioner to vacate the Government Accommodation i.e., Flat No.298-EP, Wazarat Road, Jammu by or before 08.08.2018 failing which the petitioner has been threatened of forcible dispossession. (b) Mandamus commanding the respondents to pass appropriate orders regarding the regularization/allotment of the aforementioned Flat in favour of the petitioner who is a senior citizen having no residential accommodation in State of J&K including Jammu City. (i) Commanding the respondents to de-dire Flat No.298-EP, Wazarat Road, Jammu on the analogy of other similarly situated cases/persons so that the aforementioned Flat is leased out by the Custodian Department in favour of the petitioner. (ii) Commanding the respondents to adhere to the mandate of law enunciated under the Jammu and Kashmir Public Premises (Eviction of Unauthorized Occupants) Act, 1988 read with Public Premises (Eviction of Unauthorized Occupants) Rules,1962 as the procedure prescribed under the aforementioned Act and Rules has been flouted with impunity by the respondents while issuing the impugned order. 2. Facts giving rise to the filing of this petition briefly stated are that the petitioner is an Ex-Minister and was member of State legislative Assembly for three terms from Kathua and Billawar Assembly Segments. The petitioner originally hails from Village Gathi (Kathua) and has been putting up in Jammu for the last more than 50 years and he is in active politics since 1962. There is no private accommodation owned by the petitioner and his wife, namely, Prof. Kailash Rajput. The petitioner along with his wife is putting up in two bedrooms Flat No.298-EP, Wazarat Road, Jammu since 1975 and regularly paying the rent to the Estates Department. It is further stated that the petitioner is 84 years old and recently underwent a major heart surgery and moreover the wife of the petitioner has turned 82 years is also suffering from several ailments. Both husband and wife have no place/accommodation in Jammu City or Village Ghati in Kathua District where the entire land stands donated to the poor people including a small house. Both husband and wife have no place/accommodation in Jammu City or Village Ghati in Kathua District where the entire land stands donated to the poor people including a small house. The petitioner made a representation dated 01.06.2015 to the then Chief Minister (Minister for Estates) Mufti Mohammad Sayed (deceased) seeking retention of two bed rooms Flat at Wazarat Road, Jammu and request was also made to initiate the process for de-hiring the same so that the petitioner may approach the E.P.Department for appropriate lease. The petitioner was under a legitimate expectation that his request for de-hiring will be given due weight-age looking into the peculiar circumstances of the petitioner but the petitioner was surprised and astonished to come across Order No.DDE/J/620 dated 31.07.2018 issued by respondent No.5 whereby the petitioner has been directed to vacate the Govt. Accommodation by or before 08.08.2018 and in default the petitioner has been threatened of forcible dispossession. The petitioner is aggrieved of the impugned order dated 08.08.2018 and assails the same through the medium of above titled writ petition. Hence the instant writ petition. 3. The petitioner has assailed the validity of Order No.DDE/J/620 dated 31.07.2018 passed by the respondent No.5 by virtue of which the petitioner has been asked to vacate the Government Quarter No.298-EP, Wazarat Road, Jammu on the following grounds: (i) That the impugned order is illegal and arbitrary as the petitioner has been clubbed with those persons who are not similarly situated with the petitioner. The said Politicians/Ex-Ministers have got their own houses in Jammu and other parts of Jammu but as already submitted the petitioner has no house in Jammu or at his native Village Ghati (Kathua). In the impugned order reference of the litigation has been given in which the petitioner is not a party and thus the said judgments referred in the impugned order have no applicability to the case of the petitioner. The respondent No.5 without adhering to the established procedure as laid down in the J&K Public Premises (Eviction of Unauthorized Occupants) Act, 1988 issued the impugned order which is contrary to the mandate of law laid down in the Act. The respondent No.5 without adhering to the established procedure as laid down in the J&K Public Premises (Eviction of Unauthorized Occupants) Act, 1988 issued the impugned order which is contrary to the mandate of law laid down in the Act. The petitioner has been clubbed with those who had been declared as unauthorized occupants after following the due procedure but in the case of the petitioner the due procedure was not followed and straightway the impugned order was issued which is abuse of process of law and is liable to be quashed. The respondent No.5 was under an obligation to follow the procedure as laid down under Section 4and 5 of the Act but the established procedure was given a go-bye just to accommodate some blue eyed person otherwise the petitioner is entitled to be heard in view of his peculiar facts and circumstances. The respondent No.5 found a novel method in clubbing the case of the petitioner with those who lost the litigation up to the Division Bench of this Court and when the fact remains that the petitioner is not a party to that litigation and petitioner cannot be proceeded against on the strength of those court orders. The impugned order is a complete exhibition of non-application of mind and the same is without any logic or lawful justification as such the same is not sustainable under law and is liable to be quashed. (ii) That the impugned order is also violative of Article 14 and 21 of the Constitution of India as the petitioner has been picked up for hostile discrimination as the respondents have been sleeping over the repeated representations of the petitioner for de-hiring of the flat and its subsequent lease in favour of the petitioner by the E.P.Department on the analogy of the aforementioned persons/beneficiaries but the respondents have treated the petitioner differently for the reasons best known to them. The petitioner has already placed on record his two representations made to the then Minister Estates and the Hon’ble Governor for doing the needful but nothing substantial was done and on the other hand the benefit of de-hiring was extended to more than 12 allottees out of 18 and similar treatment has been denied to the petitioner who is most deserving amongst the 18 allottees. The petitioner is on the last legs of his life and at such a belated stage the respondents have adopted a very harsh treatment to the petitioner who had a illustrious/spotless political career. The petitioner is without any accommodation and it is very difficult for him to find some alternate accommodation when the petitioner is wholly solely dependent on his pension. The respondents are required to be directed to process the case of the petitioner for de-hiring and subsequent lease with the E.P.Department on the analogy of the persons mentioned in the earlier paras of the petition. The petitioner cannot be treated differently particularly when he has already approached the competent authority for de-hiring and this is fit situation for issuance of appropriate directions to the respondents not to disturb the petitioner from his Government Accommodation till the entire process of de-hiring and subsequent lease gets finalized. In this view of the matter the impugned order is not sustainable and is liable to be quashed. 3. I have heard learned counsel for the parties. From perusal of impugned notice, it would reveal that Deputy Director Estate on 31.7.2018 has issued notice for vacating the accommodation Quarter no. 298-EP Wazarat Road, Jammu against the petitioner. The relevant extract of notice reads as under:- “…Whereas, some similarly situated persons had approached before the Hon’ble High Court for retention of their respective Government accommodation, but the Hon’ble Court considered and dismissed the petitions bearing OWP No.1546/2015, OWP No.535/2016, OWP No.547/2016 vide common judgment dated 22.02.2018 and OWP Nos. 1566/2015, 151/2005, 661/2005 and 1010/2007 vide common judgment dated 22.02.2018 for the directions which is reproduced as under: “Admittedly, the petitioners did not have any legal right to retain the government accommodation. In the absence of any legal right, the petitioners cannot seek Writ of Mandamus. The Hon’ble Supreme Court in paragraph No.34 of the S.D.Bandi’s case (supra), which was referred to with approval in the case of Lok Prahari vs. State of utter Pradesh and ors, (2016) 8 SCC 389 , has held as follows:- “34. It is unfortunate that the employees, officers, representatives of people and other high dignitaries continue to stay in the residential accommodation provided by the Government of India though they are no longer entitled to such accommodation. It is unfortunate that the employees, officers, representatives of people and other high dignitaries continue to stay in the residential accommodation provided by the Government of India though they are no longer entitled to such accommodation. Many of such persons continue to occupy residential accommodation commensurate with the office(s) held by them earlier and which are beyond their present entitlement. The un-authorized occupants must recollect that rights and duties are correlative as the rights of one person entail the duties of another person similarly the duty of one person entails the rights of another person. Observing this, the un-authorized occupants must appreciate that their act of overstaying in the premises directly infringes the right of another. Now law or directions can entirely control this act of disobedience, but for the self-realization among the un-authorized occupants. The matter is disposed of with the above terms and no order is required in Las for impleadment and intervention.” In view of the proceeding analysis, I do not find any merit in these writ petitions. The same fail and are hereby dismissed along with connected MP(s). Whereas, the above said orders of which have been upheld by the learned Division Bench as well in LPAOW No.08/2018, 10/2018, 12/2018 and 09/2018 vide common judgment dated 24.04.2018 in case titled Ajay Kumar Sadhotra and others vs State and others. Now, therefore, in compliance to the aforesaid directions, you are hereby informed to vacate the government accommodation provided to you by the Estates Department by or before 08.08.2018 failing which this office shall have no other option except to take the vacant possession forcibly with the use of necessary force without further notice, solely at your own risk and responsibility.” 4. Admittedly, the petitioner is in unauthorized occupation of Government Accommodation after the expiry of one year period from the date of allotment of Quarter, i.e., 27.07.1993 because in this order, it was categorically stated that this extension is valid for only one year. Now at present he is in unauthorized occupation of the said Government Accommodation. The allottee of a Government accommodation, may it be a Government Servant, Minister or a Legislator, is required to vacate the accommodation allotted to after he ceases to hold the official status/position. But in present case, petitioner is neither a Legislature nor minister at present, even than he is occupying the Government Accommodation without any reasonable cause since 1993. 5. The allottee of a Government accommodation, may it be a Government Servant, Minister or a Legislator, is required to vacate the accommodation allotted to after he ceases to hold the official status/position. But in present case, petitioner is neither a Legislature nor minister at present, even than he is occupying the Government Accommodation without any reasonable cause since 1993. 5. Now only question arises as to whether the petitioner who is unauthorized occupation of public premises since long has right to heard before passing the order of eviction. 6. Learned counsel for petitioner has argued that no compliance in terms of Sections 4 and 5 of the J&K Public Premises (Eviction of Unauthorized Occupants) Act, 1988, has been made before passing the order of eviction; he has been condemned un-heard, whereas counsel for respondents has argued that in present case, petitioner is in occupation of Govt. Accommodation from decades so, law of natural justice would not apply. I have considered this aspect of the matter and facts of unauthorized occupation of premises by petitioner is admitted & indisputable and there is no possibility of change or improvement in situation even after hearing the person against whom the order is passed ‘useless formality theory’ can be brought into service. Learned counsel for the respondents has relied upon the judgment dated 24.04.2018 passed by the Division Bench of this Court in LPA no. 08, 09, 10 and 12 of 2018. For ready reference, the relevant Paragraph Nos.33 to 41 of the said judgment is reproduced as under: “…..33. Allottee of a Government accommodation, may it be a Government Servant, Minister or a Legislator, is required to vacate the accommodation allotted to him latest within thirty days after he ceases to hold the official status/position. His lingering on with the occupation beyond the prescribed period would be without any legal authority and he will become unauthorized occupant thereof by operation of law and incur liability to be served with a notice under section 4 of the Act calling upon him to show cause why an order of eviction against him should not be issued. There is nothing like first declaring him unauthorized occupant before issuing notice under Section 4 or issuing order of eviction under section 5. A legal system, as we have, not only creates a right but creates obligations and duty also. There is nothing like first declaring him unauthorized occupant before issuing notice under Section 4 or issuing order of eviction under section 5. A legal system, as we have, not only creates a right but creates obligations and duty also. Whereas section 4 of the Act contemplates issuing a show cause notice against an unauthorized occupant of a Government accommodation before issuing the order of eviction under section 5, clause 13 of the Regulations of 2004 casts a duty on him to vacate the Government accommodation within 30 days after he ceases to hold the office/status in which allotment was made to him. Every citizen has a duty to confirm his behavior to the rule of a particular legal system. It is expected of the persons who once have had held high positions and more from former Ministers and Legislators, who happened to be public representatives and law makers, that they vacate the Government accommodation in time instead of waiting for a show cause notice or order for their compulsory eviction. None other than a former Minister or a former Legislator can understand the difficulty, which is faced by the eligible persons waiting for Government accommodation and the financial burden, which is faced by the State exchequer, when Government premises are not vacated by unauthorized occupants. 34. That apart, it may be stated that the notice under section 4 of the Act enshrines the compliance of the principles of natural justice, in particular the principle of audi alteram partem before issuing the order of eviction. Principle of audi alteram partem envisages that no one should be condemned unheard. No adverse order by a judicial, quasi-judicial or administrative authority against a person should be passed without notice and providing him opportunity of being heard. We may state that we cannot rather entertain any confusion or disagreement about the importance of following the principle of audi alteram partem and in that the importance of issuing notice under Section 4 of the Act before issuing order of eviction under Section 5. 35. We may state that we cannot rather entertain any confusion or disagreement about the importance of following the principle of audi alteram partem and in that the importance of issuing notice under Section 4 of the Act before issuing order of eviction under Section 5. 35. Having said so, we, having regard to the legal position in retrospect and as it by now has by virtue of various judicial pronouncements developed, cannot subscribe to a view that High Court in exercise of Writ jurisdiction should set aside an order once it is shown that the same has been passed in breach of the principle of audi alteram partem, without requiring the petitioner to show that the prejudice has been caused to him and the position would have been different had he been issued notice and heard. In R. S. Dass v. Union of 'India & ors., 1986 Supp. SCC 617, Supreme Court have observed; “it is well established that Rules of natural justice are not rigid rules, they are flexible and their application depends upon the setting and the back-ground of statutory provisions, nature of the right which may be affected and the consequences which may entail, in the facts and circumstances of each case”. 36. What is required to be determined is whether and to what extent the prejudice has been caused by not following the principle of audi alterem partem and can the situation change or improves if the order is set aside and opportunity in terms of the principle is provided. It may be stated that if an adverse order is passed in breach of the principle of audi alteram partem the affected person may approach the Court to say that the prejudice has been caused by not hearing him. But if no substantial or de facto prejudice is caused question of breach of the principle would not arise. If it can be said that the situation would not have been different had the person been heard, no prejudice can be said to have been caused. 37. If the facts are admitted or indisputable and there is no possibility of change or improvement in situation even after hearing the person against whom the order is passed ‘useless formality theory can be brought into service. This theory has now got recognition and can be applied in the cases where the facts are admitted or indisputable. 37. If the facts are admitted or indisputable and there is no possibility of change or improvement in situation even after hearing the person against whom the order is passed ‘useless formality theory can be brought into service. This theory has now got recognition and can be applied in the cases where the facts are admitted or indisputable. The useless formality theory’ has received consideration of the Supreme Court. [See M.C. Mehta v. Union of India, (1999) 6 SCC 237 ( AIR 1999 SC 2583 ). 38. In all these four appeals, appellants have been found not to possess any legal and enforceable right to retain the Government accommodation allotted to them after they ceased to be Ministers/Legislators. The main plank of their claim that they are entitled to continue in occupation of Government accommodation because of their being protected persons does not sustain in view of the finding of the committee (supra) as stated above. There is no scope in law for allowing retention of Government accommodation beyond the period of eligibility on compassionate grounds like, ill health or education of children of the unauthorized occupant or his hailing from a remote area or not having his own accommodation in the city. The appellant, therefore, cannot be heard raising pleas that notice under section 4 of the Act was not issued or sufficient opportunity of being heard was not provided to them even though plea on that score is not otherwise maintainable as discussed above. 39. We find no substance in the allegation of hostile discrimination meted out to the appellants by allowing similarly situated persons of ruling dispensation to retain the accommodation allotted to them. The report and the recommendation of the committee do not make any distinction or discrimination/among the former Ministers/Legislators who are retaining Government accommodation beyond the period of their entitlement. It recommends that all such persons may be provided alternate accommodation ‘up to six months’ to enable them to make arrangements of their own. It gives list of five former Ministers/Legislators residing at Srinagar who have been recommended for providing hired accommodation by the Government up to 31.03.2016 and six former Ministers/Legislators residing at Jammu, which includes herein appellants, Ajay Kumar Sadhotra, Yogesh Kumar Sawhney and Ashok Kumar Sharma, for providing them hired accommodation by the Government up to 31.12.2015. 40. It gives list of five former Ministers/Legislators residing at Srinagar who have been recommended for providing hired accommodation by the Government up to 31.03.2016 and six former Ministers/Legislators residing at Jammu, which includes herein appellants, Ajay Kumar Sadhotra, Yogesh Kumar Sawhney and Ashok Kumar Sharma, for providing them hired accommodation by the Government up to 31.12.2015. 40. No discrimination or unfavorable treatment to the appellants is evident from the report of the committee. It was stated by the learned Advocate General at bar and the Court was assured that the Government is in the process of effecting eviction of all the unauthorized occupants in light of the report and recommendations made by the committee and the notices to appellants, Ajay Kumar Sadhotra and Ashok Kumar Sharma, which were impugned in the writ petitions filed by them, have been issued in the same sequence. We trust the State Government in this regard and are not inclined to examine further the issue in this regard as we do not intend to give the benefit of negative equality to the appellants, even if the Government so far has not initiated action against some of the illegal occupants who are similarly situated with the appellants. We, nonetheless, put a note of caution for and remind the State Government of its duty under Article 144 of the Constitution of India to implement the judgment of the Supreme Court in S.D. Bandi’s case and further remind the Government of the affidavit filed on behalf of the State of Jammu and Kashmir in that case to the effect that “Government is ready to comply with further/additional directions being issued” by the Supreme Court. 41. For all that said and discussed above, these appeals have no merit and are dismissed.” 7. Bare perusal of this judgment, it is evident that a person/allottee, who is an unauthorized occupant of the Government Accommodation for a long time, has no indefeasible right to be heard before issuing the order of eviction of public premises. So, the respondents were not duty bond to comply with the provisions of Sections 4 and 5 of the J&K Public Premises (Eviction of Unauthorized Occupants) Act, 1988. So, the respondents were not duty bond to comply with the provisions of Sections 4 and 5 of the J&K Public Premises (Eviction of Unauthorized Occupants) Act, 1988. Further the petitioner instead of availing of statutory remedy of appeal under the Act has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India read with Section 103 of the Constitution of the Jammu and Kashmir under writ jurisdiction. This Court being the highest Court in the State has definitely come to the conclusion that the petitioner has failed to show any valid and reasonable cause to retain the Government Accommodation in question after the petitioner ceased to be Minister or Member of State Legislative Assembly. No fundamental legal right has been violated in the present set of circumstances of the case. 8. In view of the preceding analysis, I do not find any merit in the instant writ petition; the same fails and is hereby dismissed.