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2018 DIGILAW 95 (JK)

Yogesh Sawhney v. State

2018-02-22

ALOK ARADHE

body2018
JUDGMENT : Caveat No. 1781/2015 Caveat stands discharged. OWP Nos. 1546/2015, 535/2016 and 547/2016 1. The writ petitions are admitted to hearing. With the consent of learned counsel for the parties, the same are heard finally. 2. Since common questions of law and facts arise for consideration in these writ petitions, which were heard together and are being decided by this common judgment. 3. The petitioner, namely, Yogesh Sawhney in OWP No. 1546/2015 was elected as Member of Legislative Assembly (MLA) from Jammu East and was a former Minister of Sports and Youth Affairs till 2008. In his capacity as Former Minister of Sports and Youth Affairs, he was allotted government accommodation, namely, Staff Quarter No. 3 in Rehari Colony, Jammu. Notice dated 25th April, 2015 under Section 4 (1) of the Jammu and Kashmir Premises (Eviction of Unauthorized Occupants) Act, 1988 (in brevity the “Act”) was issued to the petitioner. By the aforesaid notice, the petitioner was informed that the allotment made in favour of the petitioner has been cancelled vide order dated 22nd April, 2015 and the accommodation in possession of the petitioner has been allotted in favour of one-Sat Sharma-MLA from Jammu West. The petitioner submitted the reply to respondent No. 3 on 02nd May, 2005 and thereafter, an order of eviction was passed by the Estates Officer on 05th May, 2015. Being aggrieved, the petitioner preferred an appeal before the 1st Additional District Judge, Jammu, which was dismissed by order dated 10th October, 2015. 4. The petitioner in OWP No. 535/2016 was elected as Member Legislative Council (MLC) in the year 2009 and in his capacity as MLC, he was allotted Quarter No. 17-A, Gandhi Nagar, Jammu. The term of the petitioner as MLC has, admittedly, come to an end on 27th March, 2015. It is the case of the petitioner that he was threatened by the respondents with dispossession. Thereupon, the petitioner approached this Court by filing a writ petition, namely, OWP No. 372/2015, which was disposed of with a direction to the respondents to consider the case of the petitioner in the light of judgment dated 01st May, 2015, passed by the Srinagar Wing of this Court in batch of writ petitions headed by the writ petition bearing OWP No. 545/2015 and to pass an order of consideration, strictly, in terms of Paragraph No. 17 of the judgment passed in the aforesaid writ petition. It was further directed that till the order of consideration is passed, status-quo as it exists today shall be maintained. Thereafter, the order of consideration was passed on 19th December, 2015, by which the petitioner was permitted to shift to a hired accommodation for a period of six months, subject to vacation of the government accommodation. Thereafter, by an order dated 01st April, 2016, the petitioner was asked to vacate the accommodation on or before 15th February, 2016, failing which the petitioner was apprised that action against him shall be taken as per law. In the aforesaid factual background, the petitioner has approached this Court. 5. The petitioner in OWP No. 547/2016 was elected as Member of Legislative Assembly from 1996 to 2002 and he was nominated as Member Legislative Council from the year 2004 to 2009. The petitioner was allotted an accommodation, namely, Quarter No. 59-C, Gandhi Nagar, Jammu for a period of 1997 to 2012 and later on, he was allotted the accommodation, Quarter No. 12 Rehari, Jammu as Ex-Legislator in view of the threat perceptions to the petitioner. The petitioner approached this Court by filing writ petition bearing OWP No. 865/2015, which was disposed of with a direction to the respondents to consider the claim of the petitioner in the light of the judgment dated 01st May, 2015, passed by the Srinagar Wing of this Court. In pursuance of the aforesaid directions, the case of the petitioner was considered by the Committee and thereafter, by an order dated 01st April, 2016, the petitioner has been asked to make an alternative arrangement. In the aforesaid factual background, the petitioner has approached this Court. 6. Learned senior counsel for the petitioner in OWP No. 1546/2015 submitted that the impugned order suffers from procedural infirmity inasmuch as, the procedure prescribed under Sections 4 and 5 of the Act, has not been followed. It is further submitted that before cancellation of the allotment of accommodation in occupation of the petitioner, neither any notice was issued nor any opportunity of hearing was afforded to the petitioner. It is also submitted that the Committee has not examined the case of the petitioner in the light of the directions issued by the Division Bench of this Court. It is also submitted that the Committee has not examined the case of the petitioner in the light of the directions issued by the Division Bench of this Court. It is further submitted that Ex-MPs, Ex-MLAs and even the political workers have been provided the government accommodation, however, the petitioner is being subjected to hostile discrimination, which tantamounts to violation of Article 14 of the Constitution of India. 7. Learned counsel for the petitioner in OWP No. 535/2016 submitted that the impugned order has been passed in violation of Sections 4 and 5 of the Act and neither any notice was issued nor any opportunity of hearing has been afforded to the petitioner before cancellation of the allotment of the accommodation in favour of the petitioner. It is further submitted that the report of the Committee is in violation of the order passed by the Srinagar Wing of this Court and is not in consonance with the judgment of the Supreme Court rendered in the case of S.D. Bandi Vs. Divisional Traffic Officer, Karnatka State Road Transport Corporation and others, (2013) 12 SCC 631 . It is also submitted that as per regulation 22, respondent No. 2, i.e., Director Estates Department, Civil Secretariat, Jammu/Srinagar is the competent authority, whereas the impugned order has been passed by the Deputy Director, Estates. Learned counsel for the petitioner in OWP No. 547/2016 has adopted the submissions made by the learned senior counsel for the petitioner in OWP No. 1546/2015 and the submissions made by the learned counsel for the petitioner in OWP No. 535/2016. 8. On the other hand, Mr. Jahangir Iqbal Ganai, learned Advocate General appearing on behalf of the respondents submitted that the petitioner in OWP No. 1546/2015 has filed a petition under Article 226 of the Constitution of India, read with Section 103 of the Constitution of Jammu and Kashmir, in which the order passed by the 1st Additional District Judge has been challenged and, therefore, the writ petition is not maintainable. In support of the aforesaid submissions, reliance has been placed on the decision of the Hon’ble Supreme Court in the case of Radhey Sham and Anr. Vs. Chhabi Nath and others, AIR 2015 SC 3269 . In support of the aforesaid submissions, reliance has been placed on the decision of the Hon’ble Supreme Court in the case of Radhey Sham and Anr. Vs. Chhabi Nath and others, AIR 2015 SC 3269 . It is further submitted that the petitioner in OWP No. 1546/2015 was issued a notice under Section 4 (1) of the Act, to which, admittedly, he filed a response and thereafter, an order of eviction was passed, which was upheld in an appeal by the 1st Additional District Judge, Jammu. Therefore, the procedure, which has been adopted against the petitioner, does not suffer from any infirmity and the petitioner has no legal right to retain the accommodation and in the absence of infraction of any legal right, no Writ of Mandamus would lie. It is further submitted that the directions issued by the Srinagar Wing of this Court in OWP No. 545/2015 dated 01st May, 2015 do not say that the petitioners have a right to occupy the accommodation in question. The direction only pertains to providing the security. It is further submitted that the term of the petitioner in OWP No. 535/2016 had expired on 27th March, 2015 and thereafter, the petitioner had approached this Court straightway by filing the writ petition, namely, OWP No. 372/1995, which was disposed of with a direction to the respondents to take a decision in terms of the directions issued in Paragraph No. 17 of the judgment passed in OWP No. 545/2015 by the Srinagar Wing of this Court. It is further submitted that in accordance with the guidelines issued in Paragraph No. 17 of the judgment by the Srinagar Wing of this Court in OWP No. 545/2015, the cases of the petitioners in OWP Nos. 535/2016 and 547/2016 were considered and they were granted six months’ time to stay on hired accommodation, subject to vacation of the government accommodation. It is further submitted that the guidelines issued with regard to the security have no co-relation to the accommodation and in any case, the petitioners do not have any legal right to retain the accommodations. It is also submitted that regulation 22 of the Regulations in question is not applicable to the facts of the case and the allegations with regard to discrimination are bald allegations, which have been made without any factual foundation. 9. It is also submitted that regulation 22 of the Regulations in question is not applicable to the facts of the case and the allegations with regard to discrimination are bald allegations, which have been made without any factual foundation. 9. I have considered the submissions made by the learned counsel for the parties and have perused the record. The Jammu and Kashmir Public Premises (Eviction Unauthorized Occupants) Act, 1988 is an Act, to provide for eviction of unauthorized occupants from public premises and for certain incidental matters. Section 2 (g) of the Act, which defines “unauthorized occupation in relation to any public premises” reads as follows:- “Unauthorized occupation in relation to any public premises”, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever.” 10. Section 4 of the Act provides for issue of notice to show cause against the order of eviction and Section 5 deals with eviction of unauthorized occupants. Section 12 of the Act provides the remedy to an aggrieved person for filing an appeal. In the case of the petitioner in OWP No. 1546/2015, show cause notice under Section 4(1) of the Act was issued on 25th April, 2015. The petitioner in the aforesaid writ petition, admittedly, submitted a reply to the show cause notice on 02nd May, 2015 and thereafter, the Estates Officer in exercise of the powers under Section 5 of the Act has passed an order on 05th May, 2015. The aforesaid order has been upheld in an appeal, preferred by the petitioner in OWP No. 1546/2015 by judgment dated 12th October, 2015. Therefore, the contention of the petitioner in OWP No. 1546/2015 that the order of eviction has been passed in violation of Sections 4 and 5 of the Act cannot be accepted. So far as petitioners in OWP Nos. Therefore, the contention of the petitioner in OWP No. 1546/2015 that the order of eviction has been passed in violation of Sections 4 and 5 of the Act cannot be accepted. So far as petitioners in OWP Nos. 535/2016 and 547/2016 are concerned, it is pertinent to mention here that even before the respondents could invoke the provisions of the Act against the petitioners in the aforesaid two writ petitions, they approached this Court by filing the writ petitions, which were disposed of with a direction to the respondents to consider their cases in the light of the observations made by the Srinagar Wing of this Court in Paragraph No. 17 of the judgment dated 01st May, 2015 passed in OWP No. 545/2015. Therefore, the petitioners in OWP Nos. 535/2016 and 547/2016 cannot be allowed to raise the plea that the provisions of Sections 4 and 5 have not been followed in their cases. 11. At this stage, I deem it appropriate to reproduce the directions issued by the Srinagar Wing of this Court in OWP No. 545/2015 contained in the order dated 01st May, 2015. The same read as follows:- “Viewed thus, petitions are disposed of, with the following directions:- (i) State Government shall constitute a Committee headed by Additional Director General of Police, Security and comprising of District Magistrate, Srinagar/Jammu; Director Estates; Superintendent of Police, Security, Srinagar/Jammu; and any other member co-opted by Additional Director General of Police, Security, to make an objective assessment of threat perception of each of petitioners and in the said background need to allow petitioners to retain present government accommodation in their use or to provide alternate government/hired accommodation. The Committee shall allow the petitioners to put forth their stand either in person or through their representative including written representations. (ii) The Committee shall also examine the security cover or number of security personnel required by petitioners, so that they and their dependent family members are not exposed to any threat or risk. (iii) The Committee, on threadbare examination of the matter, shall make its recommendations to State Government within two weeks from the date of receipt of copy of order. The committee, while making its recommendation, shall have due regard to the “Category”, in which petitioners have been placed, i.e., any of one of X, Y, Z or Z+ categories. (iii) The Committee, on threadbare examination of the matter, shall make its recommendations to State Government within two weeks from the date of receipt of copy of order. The committee, while making its recommendation, shall have due regard to the “Category”, in which petitioners have been placed, i.e., any of one of X, Y, Z or Z+ categories. State Government, having regard to recommendations so received, shall issue necessary orders as warranted in facts and circumstances of the case. (iv) Till recommendations are received from the Committee and necessary orders on such recommendations passed, petitioners would be allowed to retain present accommodation and security cover.” 12. From the perusal of the aforesaid directions, it is evident that the aforesaid directions have been issued to the respondents to constitute a Committee to make an objective assessment of threat perception to the petitioners and in the said background, need to allow the petitioners to retain the present government accommodation in their use or to provide alternate government/hired accommodation. The aforesaid directions, in no way, provide that in case the petitioners are entitled to security, they shall be entitled to retain the accommodation. Admittedly, the petitioners have no legal right to retain the accommodation in question. 13. The cases of the petitioners were considered by the Committee and the Committee has taken a decision in cases of the petitioners that they be shifted to hired accommodation for a period of six months, subject to vacation of the government order on or before 31st December, 2015. It has further been held by the Committee that the petitioners shall be provided adequate security cover as per their category of entitlement. Thereafter, the impugned order has been passed, asking the petitioners to vacate the accommodations. Therefore, the contention of the petitioners that their cases have not been considered in the light of observations made in Paragraph No. 17 of the judgment dated 1st May, 2015 passed by the Srinagar Wing of this Court in OWP No. 545/2015, does not deserve acceptance. 14. Admittedly, the petitioners do not have any legal right to retain the government accommodations. 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. 14. Admittedly, the petitioners do not have any legal right to retain the government accommodations. 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 Uttar 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. 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 unauthorized 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 unauthorized occupants must appreciate that their act of overstaying in the premises directly infringes the right of another. No law or directions can entirely control this act of disobedience but for the self-realization among the unauthorized occupants. The matter is disposed of with the above terms and no order is required in IAs for impleadment and intervention.” 15. In view of the preceding analysis, I do not find any merit in these writ petitions. The same fail and are hereby dismissed along with connected MP(s).