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2019 Supreme(J&K) 511
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Rajesh Bindal, Sindhu Sharma, JJ.
Thakur Randhir Singh – Appellant
Versus
State of J&K and Ors. – Respondents
LPA No. 122 of 2018 (O&M) in OWP No. 1512 of 2018
Decided On : 13-09-2019
For the Appellant :S.C. Gupta and S.S. Ahmed, Advocates
For the Respondent: Amit Gupta, AAG
Headnote:
Constitution of India,1950 – Article 14 - J&K Public Premises (Eviction of Unauthorized Occupants) Act, 1988 - Uttar Pradesh Ministers (Salaries, Allowances and Miscellaneous Provisions) Act, 1981 – Section 4(3) - Seeking quashing of order -Seeking eviction - Appellant had approached this Court seeking quashing of order whereby appellant was directed to vacate government accommodation - Prayer was also made to lease out the same to the appellant - There was patent error in the order issued by Deputy Director Estates directing appellant to vacate government accommodation - It mentioned that same had been allotted to appellant as M.L.A. for fixed time period - It was factually incorrect - Appellant was M.L.A. for different periods - Thereafter, he was not in active politics - House in question was allotted to wife of the appellant, while she was in service - She retired as Principal of Government College for Women, Jammu - After her retirement, the same house was allotted to appellant as he did not have any other place to live in Appellant never defaulted in payment of rent or violated any of terms and conditions of allotment - Till date, that allotment has not been cancelled - Hence, to seek eviction of the appellant is totally illegal - Whether retention of official accommodation by functionaries mentioned in Section 4(3) of 1981 Act after they had demitted office violate equality clause guaranteed by Article 14 of Constitution of India – Held, argument raised regarding equity considering the age of 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 appellant to continue in possession of the residential accommodation in question that would be laying down law - Petitioner may raise one ground but once the gate is opened, there may be numerous grounds on which such a claim could be made - Hence, this court would be violating the law in case any direction is issued merely on equity, which runs contrary to law - 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 - For the reasons mentioned above, court do not find any merit in the present appeal - Same is accordingly dismissed - However, considering the age of appellant, we find it reasonable to grant six months' time to the appellant to handover vacant physical possession of flat in dispute to the competent authority - Before parting with the order, court hope and expect that authorities in the State shall abide by the statement made by 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 – Appeal dismissed.
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. 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 the
