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2019 DIGILAW 412 (JK)

Thakur Randhir Singh v. State of J&K

2019-09-13

RAJESH BINDAL, SINDHU SHARMA

body2019
JUDGMENT : Rajesh Bindal, J. 1. The appellant has filed the present intra-court appeal impugning the order dated 13.08.2018 passed by the learned Single Judge whereby the writ petition filed by him was dismissed. 2. The appellant had approached this Court seeking quashing of order No. DDE/J/620, dated 31.07.2018, whereby the appellant was directed to vacate the government accommodation bearing Flat No. 298-EP, Wazarat Road, Jammu. Prayer was also made to lease out the same to the appellant. 3. Assailing the order passed by the learned Single Judge, learned counsel for the appellant submitted that the learned Single Judge had failed to appreciate the real controversy involved in the case. There was patent error in the order issued by the Deputy Director Estates directing the appellant to vacate the government accommodation. It mentioned that the same had been allotted to the appellant as M.L.A. for fixed time period. It was factually incorrect. The appellant was M.L.A. for different periods only from 1962-77. Thereafter, he was not in active politics. The house in question was allotted to the wife of the appellant, while she was in service. She retired as Principal of Government College for Women, Jammu. The allotment was made in the year 1975. After her retirement, the same house was allotted to the appellant in the year 1993 as he did not have any other place to live in. The appellant never defaulted in payment of rent or violated any of the terms and conditions of the allotment. Till date, that allotment has not been cancelled. Hence, to seek eviction of the appellant is totally illegal. 4. The judgment of Division Bench of this Court in LPAOW No. 08/2018 titled as Ajay Kumar Sadhotra v. State of J&K and others, decided on 24.04.2018, which has been referred to in the order impugned, is not applicable in the facts of the case in hand. All the allottees of government accommodation therein were MP/MLA, whereas the petitioner was never allotted this accommodation in his capacity as MP or MLA. 5. It was further submitted that the appellant and his wife, both are 80 years of age. Presently, the appellant is admitted in hospital. They have no other accommodation where they can shift. All the allottees of government accommodation therein were MP/MLA, whereas the petitioner was never allotted this accommodation in his capacity as MP or MLA. 5. It was further submitted that the appellant and his wife, both are 80 years of age. Presently, the appellant is admitted in hospital. They have no other accommodation where they can shift. The flat in question is the property of Evacuee Department, which was taken on hire by the government and then allotted to different persons/Some of the houses have been returned back by the State to the Evacuee Department, which in turn had been allotted by the Evacuee Department and in some cases to the same person. The same process can be followed even in the case of the appellant. The appellant has three daughters who are married and happily settled in India and abroad. As due process under the J&K Public Premises (Eviction of Unauthorized Occupants) Act, 1988 (for short 'the PP Act') was not followed before directing eviction of the appellant, the order has to go. Whenever fresh notice is issued, the appellant will respond to the same and avail of his appropriate remedy for the purpose. 6. On a query by the Court as to on what basis the appellant claims a right to retain possession of the property, no rules, regulations or policy was referred to. The only submission was that he is in possession since long and there is no violation of any conditions or default in payment of rent and being senior citizens, they should be allowed to continue in possession of the house. 7. On the other hand, learned counsel for the respondents submitted that, to be fair to the appellant, he can persuade the department to grant three months' time to the appellant to vacate the premises. He referred to Para 40 of the Division Bench judgment of this Court in Ajay Kumar Sadhotra's case (supra) to submit that the then Advocate General had assured that all the unauthorized occupants of the government accommodation shall be evicted in terms of the report of the committee. The appellant has not been able to establish his right to retain possession of the property. In the absence thereof, he cannot be permitted to continue in possession thereof. There is no illegality in the process being followed for eviction of the appellant. The appellant has not been able to establish his right to retain possession of the property. In the absence thereof, he cannot be permitted to continue in possession thereof. There is no illegality in the process being followed for eviction of the appellant. The appeal being devoid of merits, deserves to be dismissed. 8. Heard learned counsel for the parties and perused the paper book. 9. The appellant herein is in occupation of government accommodation bearing Flat No. 298-EP, Wazarat Road, Jammu. It is the admitted case of the appellant that it was allotted to his wife when she was working as Lecturer way-back in the year 1975, though allotment letter as such has not been produced by the appellant. His wife retired from service as Principal of the Government College for Women, Jammu in the year 1993. It was claimed that thereafter the present accommodation was transferred in the name of the appellant. Even that letter of allotment or transfer from the name of his wife, has not been produced on record to enable this court to peruse the conditions laid down therein. 10. It is the admitted case of the appellant himself that he is a person of political background. He remained MLA for different periods from 1962-77. The appellant had represented to the then Chief Minister of the State vide letter dated 01.06.2015 requesting for regularization of allotment in his name, stating that the department is seeking his eviction therefrom. He also referred to the names of some persons who were in occupation of government accommodation. Thereafter he made a representation dated 16.01.2016, as President of Nationalist Congress Party, J&K State, to the then Governor of the State requesting him to regularize the allotment of house in his favour. The, aforesaid two representations on record establish the fact that the allotment in favour of the appellant after the retirement of his wife from government service was on account of his being a political person. Hence, the argument raised by the learned counsel for the appellant that allotment of house in question to him or transfer thereof from the name of his wife, who was allotted the same being a government servant, was not on account of him being political person, is totally misconceived, hence, rejected. Hence, the argument raised by the learned counsel for the appellant that allotment of house in question to him or transfer thereof from the name of his wife, who was allotted the same being a government servant, was not on account of him being political person, is totally misconceived, hence, rejected. Rather the fact suggest that even after leaving the active politics, as claimed in the year 1977, the appellant was able to get the accommodation allotted in the year 1993. 11. Further, the judgment of Division Bench of this court in Ajay Kumar Sadhotra's case (supra) applies in the case of the appellant on all fours. It was also a case in which the question was retention of government accommodation by political persons after they demitted office. They wanted to continue with possession thereof raising various pleas including security threat. However, all the arguments were discarded and the appeals filed by them were dismissed. In the aforesaid case the then Advocate General made a statement regarding eviction from the Govt. accommodation, which are in possession of the persons not entitled to. The relevant paragraph is extracted below: "24. Learned Advocate General, Mr. Jehangir Iqbal Ganie, appearing on behalf of the State, however, vehemently supported the report of the Committee as also the impugned judgments. Mr. Ganie submitted that nowhere in the country nor in the State of Jammu and Kashmir a protected person can claim Government accommodation as an alternative to residing in or arranging his own accommodation, though the Government has to ensure security cover of a protected persons by providing stationary and mobile guards, having regard to the category he is placed in. Mr. Ganie, thus, urged that the appellants have no legal right to retain the Government accommodation allotted to them at a time they were entitled to such allotment. Learned Advocate General argued also that unauthorized retention of Government accommodation by the appellants and similar others persons is causing great hardship to the Government in accommodating the Government servants, Legislators and Ministers, who are holding the office, besides causing huge burden on the State exchequer as the Government has to hire private houses for them." (Emphasis supplied) 12. Even the issue raised by them regarding opportunity of hearing was also rejected referring to judgments of Hon'ble the Supreme court in R.S. Dass v. Union of India and others, 1986 Supp. Even the issue raised by them regarding opportunity of hearing was also rejected referring to judgments of Hon'ble the Supreme court in R.S. Dass v. Union of India and others, 1986 Supp. SCC 617 and M.C. Mehta v. Union of India, (1999) 6 SCC 237 , wherein the observation was that Rules of natural justice are not rigid rules. These are flexible and their application depends on the setting and the background of statutory provisions, nature of the right, which may be affected and the consequences which may entail. 'Useless formality theory' was evolved in M.C. Mehta's case (supra). It is on the principle that when all the facts are admitted or indisputable and the ultimate results cannot be different, than merely referring the case back for grant of opportunity and passing of order will only result in unnecessary wastage of time. Reference can also be made to latest judgment of Hon'ble the Supreme Court on the issue, reported as (2018) 15 SCC 463 , titled as, Union of Indian and another v. Raghuwar Pal Singh. 13. In the case in hand as well, the appellant has not been able to establish on record any basis on which he can be allowed to retain possession of the government accommodation. Hence, even the plea that he was not heard or the matter should be sent back to the authorities concerned to afford him opportunity of hearing is rejected as the same would result in moving in circle with no end. 14. Similar issue came up for consideration before Hon'ble the Supreme Court in Lok Prahari through its General Secretary v. The State of Uttar Pradesh & others, reported as (2018) 6 SCC 1 . The challenge therein, in a petition filed under Article 32 of the Constitution of India, was to the validity of Section 4(3) of the Uttar Pradesh Ministers (Salaries, Allowances and Miscellaneous Provisions) Act, 1981 (for short 'the 1981 Act'). Section 4(3) of the 1981 Act provided that a government residence shall be allotted to a former chief minister of Uttar Pradesh on his/her request for life-time, on payment of such rent as may be determined from time to time by the Estate Department of the State. Section 4(3) of the 1981 Act provided that a government residence shall be allotted to a former chief minister of Uttar Pradesh on his/her request for life-time, on payment of such rent as may be determined from time to time by the Estate Department of the State. Hon'ble the Supreme Court framed the following issue for its consideration: "Whether retention of official accommodation by the functionaries mentioned in Section 4(3) of the 1981 Act after they had demitted office violate the equality clause guaranteed by Article 14 of the Constitution of India." 15. Observation made by Hon'ble the Supreme Court in Para 12 of the judgment is quite relevant. It was noticed that though the issue before Hon'ble the Supreme Court in the petition was confined to the validity of Section 4(3) of the 1981 Act but there may be similar or pari materia provisions in force in different states and union territories. The law officers of all the State and Union Territories were informed about the pendency of the writ petition before Hon'ble the Supreme Court and the issues raised therein. Some of the States filed their response. Referring to Seven Principles of Public Life Report by Lord Nolan, the principles to be followed by the State for distribution of largesse, allocation of land, grant of permits, etc. and the touch stone on which any law framed by the State is to be examined, Hon'ble the Supreme Court opined that the government bungalows/official residences are public property. Any minister/officer/official after demitting office is at par with a common citizen. Though by virtue of the office held, he may be entitled to security and other protocols, allotment of government bunglow for life-time is to be examined on the touchstone of equality. Relevant paras there from are extracted below: "38. The 'Doctrine of Equality' which emerges from the Natural resources, public lands and the public goods like government bungalows/official residence are public property that belongs to the people of the country concepts of justice, fairness must guide the State in the distribution/allocation of the same. The Chief Minister, once he/she demits the office, is at par with the common citizen, though by virtue of the office held, he/she may be entitled to security and other protocols. But allotment of government bungalow, to be occupied during his/her lifetime, would not be guided by the constitutional principle of equality. 39. The Chief Minister, once he/she demits the office, is at par with the common citizen, though by virtue of the office held, he/she may be entitled to security and other protocols. But allotment of government bungalow, to be occupied during his/her lifetime, would not be guided by the constitutional principle of equality. 39. Undoubtedly, Section 4(3) of the 1981 Act would have the effect of creating a separate class of citizens for conferment of benefits by way of distribution of public property on the basis of the previous public office held by them. Once such persons demit the public office earlier held by them there is nothing to distinguish them from the common man. The public office held by them becomes a matter of history and, therefore, cannot form the basis of a reasonable classification to categorize previous holders of public office as a special category of persons entitled to the benefit of special privileges. The test of reasonable classification, therefore, has to fail. Not only that the legislation i.e. Section 4(3) of the 1981 Act recognizing former holders of public office as a special class of citizens, viewed in the aforesaid context, would appear to be arbitrary and discriminatory thereby violating the equality clause. It is a legislative exercise based on irrelevant and legally unacceptable considerations, unsupported by any constitutional sanctity. 40. Consequently, we hold that Section 4(3) of the 1981 Act cannot pass the test of Article 14 of the Constitution of India and is, therefore, liable to be struck down. We, therefore, hold that the aforesaid Section 4(3) of the Uttar Pradesh Ministers (Salaries, Allowances and Miscellaneous Provisions) Act, 1981 is ultra vires the Constitution of India as it transgresses the equality clause under Article 14. The writ petition in question, therefore, is allowed." (Emphasis supplied) 16. In the aforesaid judgment, even the attempt made by the State Legislators to legalize the allotment of government accommodation to the former chief minister by enacting law was set at naught by Hon'ble the Supreme Court as the provision was struck down. 17. In the case in hand, the appellant has not been able to refer to any Act, Rules or Guidelines in terms of which he was allotted the accommodation in question or can retain the possession thereof. Hence, no right as such has been established. 18. 17. In the case in hand, the appellant has not been able to refer to any Act, Rules or Guidelines in terms of which he was allotted the accommodation in question or can retain the possession thereof. Hence, no right as such has been established. 18. The argument raised regarding equity considering the age of the appellant and his wife also has to fail in the court of law. It is well known that 'hard cases make bad law'. In case, any direction is issued in the case in hand for allowing the appellant to continue in possession of the residential accommodation in question that would be laying down law. The petitioner may raise one ground but once the gate is opened, there may be numerous grounds on which such a claim could be made. Such a course has already been deprecated by Hon'ble the Supreme Court. Reference can be made to recent judgment of Hon'ble the Supreme Court delivered on 29.08.2019, in Civil Appeal No. 6669 of 2019, titled as State of Tamil Nadu & Ors. v. G. Hemalathaa and another. Relevant paras therefrom are extracted below: "10. In her persuasive appeal, Ms. Mohana sought to persuade us to dismiss the appeal which would enable the Respondent to compete in the selection to the post of Civil Judge. It is a well-known adage that, hard cases make bad law. In Umesh Chandra Shukla v. Union of India, Venkataramiah, J., held that: "13.... exercise of such power of moderation is likely to create a feeling of distrust in the process of selection to public appointments which is intended to be fair and impartial. It may also result in the violation of the principle of equality and may lead to arbitrariness. The cases pointed out by the High Court are no doubt hard cases, but hard cases cannot be allowed to make bad law. In the circumstances, we lean in favour of a strict construction of the Rules and hold that the High Court had no such power under the Rules. 11. Roberts, C.J. in Caperton v. A.T. Massey held that: "Extreme cases often test the bounds of established legal principles. There is a cost to yielding to the desire to correct the extreme case, rather than adhering to the legal principle. 11. Roberts, C.J. in Caperton v. A.T. Massey held that: "Extreme cases often test the bounds of established legal principles. There is a cost to yielding to the desire to correct the extreme case, rather than adhering to the legal principle. That cost has been demonstrated so often that it is captured in a legal aphorism: "Hard cases make bad law." 12. After giving a thoughtful consideration, we are afraid that we cannot approve the judgment of the High Court as any order in favour of the candidate who has violated the mandatory Instructions would be laying down bad law. The other submission made by Ms. Mohana that an order can be passed by us under Article 142 of the Constitution which shall not be treated as a precedent also does not appeal to us." (Emphasis supplied) 19. Hence, this court would be violating the law in case any direction is issued merely on equity, which runs contrary to law. 20. It had transpired at the time of hearing that the appellant has three daughters, who were well settled in life in India and abroad and his wife retired as Principal of Government College for Women, Jammu. Hence, there are well off in life. 21. For the reasons mentioned above, we do not find any merit in the present appeal. The same is accordingly dismissed. However, considering the age of the appellant, we find it reasonable to grant six months' time to the appellant to handover vacant physical possession of the flat in dispute to the competent authority. 22. Before parting with the order, we hope and expect that the authorities in the State shall abide by the statement made by the then learned Advocate General, as referred to above and get all the houses vacated, which are in possession of the persons not entitled thereto. This will build confidence of the people in the Rule of Law. 23. A copy the order be sent to the Chief Secretary of the State of Jammu and Kashmir for information and compliance.