Ravinder Kumar Wali vs Union Of India & Ors.
2015 Latest Caselaw 5228 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of decision: 21st July, 2015

+      W.P.(C)6875/2015, CMs No.12580/2015 (for stay) & 12581/2015
       (for exemption)

       RAVINDER KUMAR WALI                        ..... Petitioner
                   Through: Mr. Rajinder Wali, Advocate.

                                   Versus

    UNION OF INDIA & ORS.                         ..... Respondent

Through: Mr. Akshay Makhija, CGSC with Mr., Rohitendra Deb, Mr. Sanjugeeta Moktan and Ms. Mahima Behl, Advocates for respondents 1 to 3.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. The petitioner, having suffered an order of his eviction from Quarter

No.C-17, Panchwati, Palam, Delhi Cant under the Public Premises (Eviction

of Unauthorized Occupants) Act 1971, has filed this petition under Article

226 of the Constitution of India for retaining the said accommodation and

impugning the order of his eviction.

2. It is the case of the petitioner:-

(i) that he is a permanent resident of State of Jammu and Kashmir

at Srinagar;

(ii) that he, on 28th September, 1983 joined the service in the office

of the Controller General of Defence Accounts under the Ministry of

Defence, and was from 1983 to 1985 posted at District Udhampur in

Jammu and Kashmir and thereafter, from March 1985 to February

1989 in Leh, also in Jammu and Kashmir;

(iii) that though thereafter from 1989 till 1992 he was posted in

Srinagar, but owing to the uncontrolled violence in the Kashmir

Valley from 1989-1990 onwards and mass exodus of Kashmiri

Pandits therefrom and due to threat to his life and liberty, was forced

to migrate outside the state along with his family and was posted in

Delhi since October, 1992;

(iv) that upon his posting in Delhi, he was allotted the aforesaid

residential accommodation from Defence Accounts Department Pool

and has continued in occupation thereof till date;

(v) that his wife got seriously unwell and the petitioner vide letter

dated 8th April, 2013, opted for Voluntary Retirement to look after his

ailing wife;

(vi) that the application of the petitioner for voluntary retirement

was accepted vide letter dated 16th July, 2013;

(vii) that however, upon the health of his wife improving, the

petitioner on 16th November, 2013, applied for re-instatement and

regularisation of his services and sought withdrawal of the application

earlier made for voluntary retirement;

(viii) no decision on the aforesaid application was communicated to

the petitioner; however, in the interregnum, the Estate Officer

commenced proceedings and has vide letter dated 27th October, 2014

asked the petitioner to vacate the premises;

(ix) the petitioner again called upon the respondents to consider his

application for reinstatement; however the respondents vide letter

dated 15th May, 2015 informed the petitioner that his request could

not be acceded to;

(x) that the petitioner has made a representation to the Defence

Minister and the Prime Minister for sympathetic consideration and is

making endeavours for being so reinstated.

3. Accordingly, the reliefs aforesaid have been claimed, to retain the

aforesaid accommodation, either till the time that the petitioner is able to

return to his home-town or any suitable accommodation is provided to him

in Delhi.

4. Learned counsel for the petitioner being conscious that the aforesaid

facts do not disclose any right in the petitioner to the reliefs claimed, has

rested his case entirely on dicta of a Single Judge of this Court in judgment

dated 30th November, 2010 in WP(C) No. 15239/2004 titled P.K. Koul Vs.

Estate Officer and other connected petitions. It is generally argued that the

petitioners therein also being Kashmiri Pandits in occupation of government

accommodation, had been allowed vide the said judgment to retain the said

accommodation.

5. I have heard the learned counsel for the petitioner at length. The

judgment aforesaid of the learned Single Judge relied upon by the petitioner

was the subject matter of appeal in Union of India Vs. Vijay Mam 2012

SCC Online Delhi 3218 decided by a Division Bench of which the

undersigned was a member vide judgment dated 1st June, 2012. I am told

that Special Leave Petition against the judgment of the Division Bench of

this Court is also pending consideration before the Supreme Court.

6. Be that as it may, in my opinion, the judgment of the learned Single

Judge in P.K. Koul (supra), on which the claim of the petitioner is based and

which was reaffirmed with certain modifications by the Division Bench, has

no application to the matter in controversy and the petitioner cannot claim to

be similarly placed as the petitioners in that case. The petitioners before this

Court in P.K. Koul (supra) though undoubtedly Kashmiri Pandits but were

representing the Central Government in the Kashmir Valley in Intelligence

Agencies, Paramilitary and Defence Services, Government Media and had

become prime targets for the militants to the extent that list of persons who

had to be targeted were published and circulated in the localities; family

members and friends of such persons had also been killed and their

properties destroyed for the message to permeate. It was as a result thereof

that the said persons were evacuated from the Kashmir Valley on

emergency basis to protect their lives and were posted in Delhi and since

they did not have any accommodation in Delhi, were provided government

accommodation on priority basis. However, after the said persons reached

the age of superannuation, they were required to vacate the government

accommodation and which lead the aforesaid petitions being filed. What

lead the Single Judge and the Division Bench to allow the said persons to

retain the said accommodation was the threat to the said persons and their

family members attributable to the service which they were rendering for

the government and which had resulted in their evacuation from the

Kashmir Valley.

7. It is not the case of the petitioner that owing to any duty performed by

him for the Ministry of Defence, he or his family members had become a

target for the militants or that it was for this reason that he was transferred to

Delhi. Though, undoubtedly a bare plea is made in this regard, but it cannot

also be lost sight of that the petitioner was an employee of the Central

Government and his job was transferable and merely because he was

transferred out of Srinagar, to Delhi, it cannot be inferred that there was any

threat to him or his family or any need for evacuating them from the

Kashmir Valley. There is absolutely nothing before this Court to show that

the petitioner or his family are under any threat. The perception of threat

has to be objective and by the authorities concerned and not subjective.

Reference if any required can be made to Parveen Kumar Beniwal Vs.

Govt. of NCT of Delhi MANU/DE/1304/2015 (DB) and Shiv S. Sharma

Vs. Union of India MANU/DE/1024/2010.

8. There is another relevant factor which distinguishes the petitioner

from the petitioners before this court in P.K. Koul (supra) and the group of

petitions decided therewith. While all those persons had been required to

vacate the government accommodation on reaching the age of

superannuation, the petitioner herein, of his own volition, nearly two years

back sought voluntary retirement from the Ministry of Defence. The

petitioner being in occupation of official accommodation at the time of

making his application for voluntary retirement, ought to have known that in

consequence thereof he would be required to vacate the said

accommodation. The petitioner still went ahead and made application for

his re-instatement only after receiving notices of cancellation of allotment

and being asked to vacate. Merely because the petitioner may have applied

for reinstatement (and which request inspite of the petitioner not showing

any rule whereunder such a request can be made) and which request also has

already been rejected by the appropriate authority, the petitioner could not

have expected to continue in occupation of the government accommodation.

9. The petitioner has already overstayed in the official accommodation

for more than two years. It cannot also be lost sight of that the government

accommodation available is far less than the number of government servants

posted at Delhi. The same results in long delays in allotment of

accommodation, with the government employees being compelled to wait

for long before they get accommodation. If persons, who have ceased to be

government servants are permitted to so retain government accommodation

on specious grounds, a day would come when there would be no

accommodation left for the incumbents with all the accommodation

available being in occupation of persons, who though at one time were

government employees, have ceased to be so.

10. It is also relevant to notice that the circumstances, in which P.K. Koul

(supra) was considered, have substantially changed over a period of time.

What may have been true about the militancy situation in Kashmir 10 years

ago, cannot be said to prevail today. Thus, decisions of the courts

influenced by a state of affairs prevailing at that time cannot be made

precedent, when there has been a substantial change. The militancy in the

Kashmir Valley is today not such, as the situation was 10 or more years ago.

The petitioner for this reason also cannot be held to be entitled to get the

benefit of the judgement in P.K. Koul (supra).

11. No other ground has been urged.

12. There is no merit in the petition. The same is accordingly dismissed.

No costs.

RAJIV SAHAI ENDLAW, J.

JULY 21, 2015 n..

(corrected and released on 29th July, 2015)