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2018 DIGILAW 94 (JK)

Choudhary Gharu Ram v. State

2018-02-22

ALI MOHAMMAD MAGREY

body2018
JUDGMENT : 1. Since all the petitions call for adjudication of somewhat similar issue, therefore, these are taken up together and this judgment shall govern all. OWP no. 1566/2015 2. Petitioner, Choudhary Gharu Ram, has filed the instant writ petition to question and seek quashment of the Notice nos. DDE/J/475 dated 16.6.2015; DDE/J/452 dated 25.6.2015; & DDE/J/460 dated 4.7.2015, for short impugned notices, issued in terms of Section 4 and 5 (1) of the J&K Public Premises (Eviction of Unauthorized Occupants) Act 1988, for short Act, with a further prayer for a writ of prohibition to the effect that respondents be restrained from evicting the petitioner and his family from Govt. quarter no. 24-B Gandhi Nagar, Jammu inter alia on the grounds that the petitioner, has been an active mainstream political activist and has a threat perception, therefore, was allotted the said government accommodation at Jammu and its cancellation would make him vulnerable to militant attacks; and that petitioner has been picked out of the bunch of similarly placed persons for such treatment. 3. Upon notice respondents appeared but did not file any reply. OWP no. 151/2005 4. In the instant petition, the petitioner challenges the Government Order No. 151-Est of 2004 dated 31.08.2004, and the judgment passed by the Additional District Judge, Jammu, in case titled Abdul Majid Mir v. State &Ors., for short impugned orders, by virtue of which the allotment of Government Quarter No. 137-W, Poonch House, Talab Tiloo, Jammu, made in favour of petitioner has been cancelled and the appeal preferred against such cancellation has been dismissed by the learned District Judge, respectively, inter alia on the grounds that the petitioner, has been an active mainstream political activist and has a threat perception, therefore, was allotted the said government accommodation at Jammu and its cancellation would make him vulnerable to militant attacks; and that petitioner has been picked out of the bunch of similarly placed persons for such treatment. 5. Upon notice, respondents appeared and filed their objections. In the reply it is stated that the petitioner is an unauthorized occupant of the quarter in question as the allotment made in favour of petitioner has expired and it has not been extended or renewed. It is further stated therein that the case of the petitioner being a migrant can be considered by the Relief and Rehabilitation Department. In the reply it is stated that the petitioner is an unauthorized occupant of the quarter in question as the allotment made in favour of petitioner has expired and it has not been extended or renewed. It is further stated therein that the case of the petitioner being a migrant can be considered by the Relief and Rehabilitation Department. There is, however, no counter to the petition after its admission. OWP no. 661/2005 6. In this petition, the petitioner, Sheikh Mohammad Rafi, seeks a writ of mandamus to the effect that respondents 3 and 4 be commanded not to evict the petitioner from the government accommodation on 132 Block-V, Poonch House, Talab Tiloo, Jammu, being used and occupied by the petitioner, inter alia on the grounds that the petitioner, has been an active mainstream political activist and has a threat perception, therefore, was provided the government accommodation at Jammu and its allotment to some other person would make him vulnerable to militant attacks and no advance notice for eviction from the said Government quarter has been issued to the petitioner. A writ of prohibition to the same extent has also been prayed for. 7. Upon notice respondents appeared but did not file the objections. OWP no. 1010/2017 8. The instant petition is also filed on the same lines as the OWP no. 151/2005, with a difference of only the impugned order being Order no. 343-Est of 2007 dated 24.10.2007 pertaining to Flat no. 86-Talab Tiloo, Block-Q, Poonch House, Jammu. 9. Having regard to the nature of the controversy coupled with the agreement of the learned counsel for the parties, the writ petitions have been taken up for final disposal. 10. Heard learned counsel for the parties. 11. Learned counsels for the petitioners’ submitted that the impugned order is bad in law and the same requires to be quashed as the petitioners have been discriminated because the other similarly placed persons have not been proceeded against. It is further submitted that the cancellation of the allotment would adversely affect the education of petitioners’ children who are studying at Jammu. It is further submitted that the petitioners are the active mainstream political activists and if they are evicted from the government accommodation they will be put to risk of life. It is further submitted that the cancellation of the allotment would adversely affect the education of petitioners’ children who are studying at Jammu. It is further submitted that the petitioners are the active mainstream political activists and if they are evicted from the government accommodation they will be put to risk of life. Furthermore, it is submitted that the petitioners’ are bonafidely using the premises in question and are paying the rent also, therefore, there is no reason for the respondents to order their eviction. 12. On the other hand, learned Advocate General, while rebutting the arguments of the learned counsel for petitioners, submitted that the petitioners are not vested with any right much less an enforceable right to seek continuation in the Government accommodation. He further submitted that petitioners have failed to carve out any ground which would reasonably strike the judicial conscience to tilt in their favour. He further submitted that the respondents are duty bound to provide the Government Accommodation to the office bearers of the current dispensation and the respondents are required to make available the accommodation from those who are no more holding any public office. He further submitted that the respondents have followed the procedure established under law and ordered the cancellation of the allotment in question. The learned Advocate General further submitted that the status of the petitioners in the quarters in question is that of an unauthorized occupant and they are continuing at the said premises in disregard of the norms and this Court cannot come to the rescue of unauthorized occupants. He further submitted that in OWP no. 661/2005 the petitioner is staying in the quarter in question even without any formal allotment order. 13. Considered the rival submissions of learned counsel for the parties. 14. The court does not feel convinced of the case having been made out in favour of the petitioner. Instead it appears that the petitioners have apparently unauthorizedly stayed in the Government accommodations in question. They ought to have gladly surrendered the possession of the quarter in question after they ceased to be holding any public post. This is how, reasonably, the system works. There are certain parameters those govern the allotment of government accommodation, its occupation, retention and vacation. Every administrative privilege is per se a finite affair and any otherwise impression of the occupant is a misnomer and bound to meet its fate. This is how, reasonably, the system works. There are certain parameters those govern the allotment of government accommodation, its occupation, retention and vacation. Every administrative privilege is per se a finite affair and any otherwise impression of the occupant is a misnomer and bound to meet its fate. The petitioners do not have any right muchless an enforceable right to occupy the residential accommodation commensurate with the office (s) held by them earlier and which are beyond their present entitlement. The rights and duties are corelative as the rights of one person entail the rights of another person; similarly the duty of one person entails the rights of another person. The Hon’ble Supreme Court while so holding in case titled S. D. Bandi v. Karnatake SRTC, relied upon by the learned Advocate General, and reported as (2013) 12 SCC 631 , has held that the unauthorized occupants must appreciate that their act of overstaying in the premise directly infringes the right of another and no law or directions can entirely control this act of disobedience but for the self-realization among the unauthorized occupants. There are catena of judgments on the issue and the courts of the country have heavily come upon the unauthorized occupants occupying the public premises beyond the permissible period. The action of the respondents therefore, cannot be faulted. 15. In writ petitions, OWP no. 151/2005 and 1566/2015, the order of the appellate court also has attained finality. 16. In the facts and circumstances of the writ petitions the legal position, seems to me to be uncomplicated. The allotment of quarter to a public servant can be cancelled at any time, however, in due regard of the applicable norms and if there is any violation on the part of the respondents to follow the prescribed Rules in this behalf, the same is obviously open to challenge in appropriate proceedings and that is exactly what the petitioners have done, as in their opinion, the action initiated by the respondents for their eviction from the government accommodation in question has infringed their right which is however, unsubstantiated. 17. The petitioners are in possession and occupation of the premises in question for years now on the orders obtained by them during the pendency of these writ petitions. The petitioner in OWP no. 17. The petitioners are in possession and occupation of the premises in question for years now on the orders obtained by them during the pendency of these writ petitions. The petitioner in OWP no. 1566/2015 has obtained the status quo order on 28.10.2015 and is continuing at the premises in question since then; the petitioner in OWP no. 151/2005 has obtained the statusquo order way back in the year 2005 on 24th day of March and is continuing since then; the petitioner in OWP no. 1010/2007 has obtained the statusquo order on 10th December, 2007 and is continuing since then similarly, the petitioner in OWP no. 661/2005 has obtained the statusquo order on 10th October, 2005, and is continuing since then. The dates are reflected to bring to the light the fact that the eviction proceedings have been hijacked for decades together by the unauthorized occupants, petitioners. The statusquo order obtained by the petitioners cannot be allowed to run till eternity thereby prejudicing the interests and rights of those who are waiting in line having earned a right for the allotment of government accommodation. 18. The Supreme Court in case titled Lok Prahari v. State of Uttar Pradesh and others, referred and relied upon by the learned Advocate General, reported as (2016) 8 SCC 389 , has held that “a Minister which includes Chief Minister is permitted to retain his residence for 15 days after demitting office”. The law, therefore, does not favour the unauthorized occupants to continue enjoying the possession of the bungalows they are no more entitled to retain. 19. The court has got a chance, through the instant petitions, to know about the sorry state of affairs in the respondent department. In one of these cases there is not even any allotment order in favour of the petitioner and he is continuing in the premises and further seeks to continue. Astonishing it is that the respondent department has allowed the flats to be used without any allotment orders. This appears to be just the tip of the iceberg. The number of such cases would obviously be quite high and obviously the occupiers of such quarters would not be paying any rent or premium towards the allotment resulting in a huge loss to the public exchequer. This appears to be just the tip of the iceberg. The number of such cases would obviously be quite high and obviously the occupiers of such quarters would not be paying any rent or premium towards the allotment resulting in a huge loss to the public exchequer. I am of the view that in case such a trend is allowed to remain in place any further it would amount to contributing towards the wrong. 20. Having regard to what has been observed hereinbefore, the writ petitions are held to be without any merit, therefore, dismissed. Upholding the impugned orders, the interim directions are vacated. Respondents, in particular the respondent, Director, Estates J&K, are directed to evict the petitioners from the Government accommodation in question forthwith and allot the same to the eligible applicants strictly in terms of the Jammu and Kashmir Estates Department (Allotment of Government Accommodation) Regulations, 2004, notified in terms of Government Order No. 169-GAD of 2004 dated 10.02.2004, and report compliance to that effect. 21. Disposed of along with connected MPs. Registry to place a copy of the judgment on each file.