Back
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
Ali Mohammad Magrey and Mohd. Akram Chowdhary, JJ.
Abdul Rahim Rather and Others – Appellant
Versus
State of J&K and Others – Respondent
OWP No.641/2016, OWP No.143/2017 and CCP(S) No.68/2020
Decided on : 17-8-2022
Eviction - Government Accommodation - Jammu and Kashmir Estates Department (Allotment of Government Accommodation Regulations, 2004) - Regulation 4(e)
Fact of the Case:
The petitioner, a former legislator, was asked to vacate the Government accommodation by a notice dated 06.04.2016. The petitioner sought quashment of the notice and claimed retention of the accommodation as a former legislator. The respondents extended the allotment of the accommodation in favor of the petitioner from 16.04.2016 to 31.12.2017 during the pendency of the writ petition.
Finding of the Court:
The impugned notice was quashed, and the petitioner was directed to make a detailed representation before the Director Estates. The Committee was directed to re-examine the case of the petitioner and consider the mandate of Regulation 4(e) of the Jammu and Kashmir Estates Department (Allotment of Government Accommodation Regulations, 2004). The petitioner was allowed to retain the present accommodation or alternate Government accommodation until the recommendations are received and necessary orders are passed.
Issues: The main issue was the validity of the impugned notice asking the petitioner to vacate the Government accommodation. The petitioner challenged the notice on various grounds, including violation of constitutional rights, discrimination, and threat to life.
Ratio Decidendi: The Court held that the impugned notice was not based on fair decision and was arbitrary. The Court also found that the petitioner was not heard by the Committee, and the basis of the impugned notice was against the records. The Court directed the Committee to re-examine the case of the petitioner and consider the mandate of Regulation 4(e) of the Regulations, 2004.
Final Decision: The impugned notice was quashed, and the petitioner was allowed to retain the present accommodation or alternate Government accommodation until the recommendations are received and necessary orders are passed.
JUDGMENT :
Ali Mohammad Magrey, J.-
Petitioner, a former Legislator challenges the impugned notice bearing No. DDES/Pvt. House/2016/681-82 dated 06.04.2016, in terms whereof he has been asked to vacate the Government accommodation by or before 15th April, 2016, failing which action as warranted under rules shall be taken without any further notice. Petitioner seeks quashment of the notice by allowing the writ petition with further direction to allow him to retain the accommodation.
Brief facts relevant for disposal of the writ petition are detailed out as under:-
(ii) Petitioner after the dissolution of Assembly in the year 1990, claims to have shifted to his village Badipora, Tehsil Chadoora, District Budgam, but he along with his family had a narrow escape in the Bomb Blast incident that took place in his house, therefore, on the instructions of the Administration, the petitioner shifted to Jammu on imminent threat to his life, family and property. It is stated that the residential house in village Badipora of the petitioner was raised to ground by the militants in the year 1993 and many attempts were made to physically eliminate the petitioner.
(iii) Petitioner claims to be in hit list of anti-national elements and in view of threat to his life, the respondent Government has put him in Z-Category of security cover. Petitioner states that he does not own and possess any house in City of Srinagar or elsewhere in Kashmir and his damaged house at his native place is also not habitable. Petitioner after losing his status as Cabinet Minister has been provided Government accommodation w.e.f. 01.05.2015, after surrendering the ministerial bungalow in the capacity as former Legislator with reference to Government order No. 118-Est of 2015 dated 22.07.2015, extended from time to time till the year 2016, when the impugned notice is issued, which notice is the subject matter of the writ petition.
(iv) Petitioner states that during pendency of the writ petition, the respondents have extended the allotment of the accommodation in favour of the petitioner from 16.04.2016 to 31.12.2017 in terms of Government order No. 26-Est of 2018 dated 23.03.2018 on the terms and conditions detailed out in the order and, accordingly, the petitioner deposited the rent. The petitioner claims to be in possession of the allotted accommodation as on date and pays the regular rent, receipts whereof are kept with the rejoinder/supplementary affidavits.
(v) Petitioner claims retention of accommodation till the time he holds the status of former Legislator in terms of the allotment made by the Government, as a result of fulfilling all the criteria for such allotment in tune with the mandate of Regulation 4 (e) of the Jammu and Kashmir Estates Department (Allotment of Government Accommodation Regulations, 2004) (hereinafter referred to “Regulations, 2004”).
Grounds of challenge
Petitioner challenges the action of the respondents, asking him to vacate the allotted accommodation, provided to him by the Estates Department on the grounds detailed out as under:-
(a) That action of respondent Estates Department is initiated on the basis of the decision made by this Court in a bunch of writ petitions, lead case being OWP No. 545/2015, wherein direction was passed for constitution of the Committee, headed by Additional Director General of Police (Security) J&K, DC Srinagar/Jammu, Director, Estates, J&K and SSP (Security), Srinagar/Jammu and any other member co-opted by Additional Director General of Police, Security, to make an objective assessment
The competent authority has the discretion to make subjective decisions based on threat perception and government accommodation, and the scope of judicial review in such matters is limited.
Eligibility for government accommodation retention requires compliance with specific transfer conditions; court upheld eviction of Kashmiri Migrants not meeting these criteria, affirming equal treatm....
Point of Law : retention of the official accommodation - petitioners being ineligible under the Office Memorandum cannot rely on order.
Point of Law : retention of the official accommodation - petitioners being ineligible under the Office Memorandum cannot rely on order.
The court held that a retired employee claiming retention of government accommodation as a Kashmiri migrant failed to meet eligibility due to ownership of alternative property, highlighting strict ad....
Point of law: Framing a Scheme, under which the petitioner is not eligible, the plea that similar directions need to be issued to Airports Authority of India, is unmerited and is rejected.
Second writ petitions are not maintainable if the previous petition was withdrawn without permission, and former members of the legislature have no vested right to retain government accommodations af....
Out-of-turn government accommodation allotment under exigency must be by House Allotment Committee per rules; arbitrary executive directions bypassing procedure illegal, violative of equality and rul....
The cancellation of an allotment order without notice constitutes a violation of the principles of natural justice, rendering the order null and legally unsustainable.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
