Payal Abdullah & Ors vs Union Of India & Ors
2016 Latest Caselaw 5409 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                    Date of Judgment :19.08.2016

+       W.P.(C) 5886/2016
        PAYAL ABDULLAH & ORS
                                                             ..... Petitioners
                            Through    Mr. Amit Khemka, Mr. Rishi Sehgal
                                       and Mr. Sanjeev Verma, Advs.

                            versus

        UNION OF INDIA & ORS
                                                           ..... Respondents

                            Through    Mr. Anurag Ahluwalia, CGSC for
                                       UOI.
                                       Mr.Sunil Fernandes Standing Counsel
                                       for Govt. of J & K along with Estate
                                       Officer, Resident Commission of
                                       Govt. of J & K with Mr. Deepak
                                       Pathak, Advocate

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (oral)

W.P.(C) 5886/2016 & C.M. No.24201/2016 (stay)

1       There are three petitioners before this Court. Petitioner No. 1 is the

estranged wife of Mr. Omar Abdullah; petitioners No. 2 & 3 are the sons of

Mr. Omar Abdullah. Mr. Omar Abdullah is the Ex- Chief Minister of State

of Jammu and Kashmir. Admittedly all the three petitioners are enjoying 'Z'

and 'Z+' security. Whereas petitioner No. 1 is enjoying 'Z' security and

petitioners No. 2 & 3 have been given a 'Z+' security. They are presently

residents of 7, Akbar Road, New Delhi (type VIII bungalow). This

accommodation had been allotted to their father namely Mr. Omar Abdullah

by the Assistant Director of Estates, Directorate of Estates, Ministry of

Urban Development, Government of India on 22.11.1999. This was while

he was holding the post of Minister of State for Commerce and Industry.

Petitioners have been living in this bungalow since that time.

2 The contention of the petitioners is that the petitioners have

continuously been staying in this bungalow since that period of time and

even during the time when Mr. Omar Abdullah was not holding any

Government office (for the years 2002 to 2008), they were not asked to shift

out from the accommodation. The grievance of the petitioners is that the

Government is now harassing them to vacate the aforenoted bungalow.

Contention being that since all the three petitioners are 'Z' and 'Z+'

protectees, there is a round the clock vigil required for their security; there

are 94 personnel who are deputed at the aforenoted bungalow to look after

their security; 10 cars have also been deputed for their security which

includes 3 bullet proof vehicles. Large security lights and barrack for the 41

personnel permanently living in this bungalow besides four guard towers and

two guard towers on the roof top are located in this accommodation. In these

circumstances, the contention of the respondents that they should shift out of

this accommodation when they continue to be 'Z' and 'Z+' protectees is

against their interest.

3 Prayer (a) is that the petitioners should not be directed to be evicted

from the aforenoted bungalow for the aforenoted security reasons. The

alternate prayer is for allotment of a suitable Government accommodation

for the said security reasons and till an alternate Government

accommodation is allotted to them, they should not be asked to shift out of

this accommodation.

4 Respondents before this Court are the Ministry of Urban Development

and Minister of Home Affairs both of whom are represented by a counsel.

They are respondent No. 1 and respondent No. 3 respectively. Respondent

No. 2 is the Resident Commissioner, State of Jammu and Kashmir.

5       Pleadings are compete.

6       The stand of respondent No.1 (Ministry of Urban Development) is

that the guidelines for discretionary allotment of General Pool Residential

Accommodation, New Delhi is governed by O.M. No.12035/2/97-Pol.II

(Pt.II) dated 17.11.1997 which has been issued by the Ministry of Urban

Affairs and Employment, Directorate of Estates. Vide a subsequent O.M.

No.12035/8/93-Pol. II (Pt.) dated 27.12.2000 issued by the said Ministry, it

has been declared that no Government accommodation will be allotted to any

private person on any security considerations except to SPG protectees. Mr.

Omar Abdullah was allotted the said bungalow on 22.11.1999 while he was

holding the post of Minister of State for Commerce and Industry. Vide

communication dated 09.09.2015, the said premises i.e. 7, Akbar Road, New

Delhi has been placed at the disposal of Government of Jammu and Kashmir

retrospectively w.e.f. 11.08.2009.. Mr. Omar Abdullah had assumed charge

as Chief Minister for State of Jammu and Kashmir in January, 2009 and he

occupied these premises with his family in his capacity as the then Chief

Minister. He has admittedly demitted the said office in January, 2015. The

next Chief Minister Mr. Mufti Mohammed Sayeed had assumed charge as

Chief Minister for State of Jammu and Kashmir on 01.03.2015. The

petitioners are not entitled to retain this bungalow which has now to be

allotted to the new Chief Minister of Jammu and Kashmir. It is reiterated

that the petitioners are admittedly 'Z' and 'Z+' protectees but no

Government accommodation can be allotted to any private person on

security considerations except to SPG appointee.

7 The stand of respondent No. 3 (Ministry of Home Affairs) is also

similar. Their stand is that the security arrangements for the petitioners will

be done as per the Yellow Book issued by the Ministry of Home Affairs

(perused). The petitioners are not central protectees i.e. their security

protection categorization has not been done by the Central Government.

Admittedly both the sons of petitioner No. 1 are 'Z+' protectees and

petitioner No.1 herself is a 'Z' security protectee but they have to be

protected by the State of Jammu and Kashmir. This affidavit further states

that since the petitioners are residents of Delhi and are a part of the esteemed

Abdullah family, a general threat is perceived from Kashmiri militants but

there is no input of any specific or imminent threat to the aforentoed three

petitioners. This threat assessment of the petitioners has been reviewed by

the Central Security Agency on the basis of which this submission has been

noted in the counter affidavit. Further stand of respondent No. 3 is that the

threat assessment carried out by the Central Security Agency is a secret

document and the same cannot be annexed with the affidavit. A copy of the

same has however been placed on record (in a sealed cover) for the perusal

of the Court which has been perused and this Court notes that there appears

to be only a general threat to the petitioners perceived from Kashmiri

militants and this is largely for the reason that they are family members of

the Abdullah family i.e. Mr. Omar Abdullah and Mr. Farooq Abdullah but

there is no indication of any specific threat to the aforenoted petitioners.

Further stand of respondent No.3 is that the Delhi Police will watch the

interest of the petitioners as they are admittedly residents of Delhi and they

would ensure that adequate security is provided to them at any place they

chose to live in Delhi. Further stand is that depending upon the size of the

bungalow, the number of security personnel required for the protection of

such protectees would be enhanced or reduced accordingly. This affidavit

further states that at present three central protectees namely Mr. K.P.S. Gill,

(Ex-DGP, Punjab), Mr. M.S. Bitta, (Chairman, All India Terrorists Front)

and Mr. Subramanian Swamy, (Member of Parliament) being central SPG

protectees have been allotted Government accommodation in view of a high

level of threat faced by them. Such a threat is not faced by the petitioners.

8 The stand of respondent No. 2 (Resident Commissioner, Government

of Jammu and Kashmir) is that the state of Jammu and Kashmir alone is

responsible for providing security to the petitioners who are residents of

Delhi; it is the Delhi Police who would be responsible for their security and a

copy of the letter of the DGP, Jammu and Kashmir dated 19.10.2013 has

been placed on record to substantiate this submission. Submission being

reiterated that it is not the State of Jammu and Kashmir who will look after

the issue of security and protection of the petitioners. It is admitted that the

petitioners are 'Z' and 'Z+' category security protectees. The apprehension

of the petitioners is that if they shift to a smaller accommodation as

compared to the one which is now occupied by them and they cannot be

provided with adequate security is misconceived. Petitioner No. 1 has a

residence on the second floor at West End, New Delhi measuring 2300

square feet. The State Government with the assistance of local police will

ensure that adequate and appropriate security (which is for a 'Z' and 'Z+'

protectee) will be afforded to the said protectees. Mr. Omar Abdullah had

also written to the Resident Commissioner, Jammu and Kashmir vide his

letter dated 04.06.2016 (perused) that he is no longer in occupation of the

premises and the Department is free to take whatever steps they wish to. It is

pointed out that Mr. Omar Abdullah has now shifted to a private residence in

Delhi i.e. House No. 22, First Floor, Nizamuddin (East). He continues to

enjoy 'Z+' security cover; he has no complaint on the security provided to

him. The father-in-law of petitioner No. 1 (Mr. Farooq Abdullah) also being

a 'Z+' protectee is residing at Sagar Apartments, 6 Tilak Marg, New Delhi

which is also an area approximately 2300 square feet and where also the

security cover provided to him has not been the ground for any complaint

whatsoever. The case of the petitioner that she is entitled to retain the

present accommodation for this reason is thus without any basis.

9 In rejoinder, learned counsel for the petitioner submits that he has

been discriminated. Besides the aforenoted persons i.e. Mr. K.P.S. Gill, Mr.

M.S. Bitta and Mr. Subramanian Swamy, there are other persons who are

also enjoying Government accommodation irrespective of the fact that they

are not in Government employment. Attention has been drawn to the reply

filed by the petitioner to the affidavit of respondent No. 2. It is pointed out

that Mr. Sachin Pilot, Dr. Fatana Nazibullah, Mr. Om Prakash Mathur and

family of late Sh. Th. Muviah who are all stated to be enjoying Government

accommodation which is at the cost of exchequer. The petitioners are

deliberately harassed and discriminated upon.

10       Arguments have been heard.

11       Before delving into these submissions, this Court notes that the legal

process as envisaged under the Public Premises (Eviction of Unauthorized

Occupants) Act, 1971 now stands exhausted. The petition under Section 5 of

the said Act had been filed by respondent No.1 which has been decided in

their favour. An appeal had been filed against this order before the District

Judge which has also been disposed on 16.08.2016. A copy of the said order

has been placed on record. The order of the Estate Officer has been upheld.

The contention of the petitioners that they cannot be granted adequate

security cover except in the aforenoted bungalow i.e. 7, Akbar Road, New

Delhi had also been noted. The Court had declined all these submissions and

the learned District Judge vide his order dated 16.08.2016 had upheld the

order of the Estate Officer directing that the Government accommodation

presently being enjoyed by the petitioners be vacated.

12 The perusal of the record satisfies this Court that the prayers made by

the petitioners cannot be answered in their favour. Admittedly this

accommodation i.e. 7, Akbar Road, is a type VIII bungalow and had been

allotted to Mr. Omar Abdullah while he was holding office of Minister of

Commerce and Industry. This was in the year 1999. The petitioners which

includes his wife and his two children are living in this accommodation since

that date. It is also an admitted position (as is evident by the counter

affidavit of respondent No.1) that vide letter dated 09.09.2015, the Ministry

of Urban Development has placed this bungalow at the disposal of the State

of Jammu & Kashmir w.e.f. 11.08.1999. Mr. Omar Abdullah had assumed

charge as Chief Minister of state of Jammu and Kashmir in January, 2009.

In that capacity, he continued to retain the said accommodation. He

demitted the office in January, 2015. The communication of Mr. Omar

Abdullah to the Ministry of Urban Development dated 04.06.2016 also

clearly informs the State that he is no longer in occupation of 7, Akbar Road,

New Delhi and they are free to take whatever steps they deem necessary.

13 A conjoint reading of affidavits of respondents No. 1 & 3 also clearly

show that the entitlement to a type VIII was the entitlement of Mr. Omar

Abdullah who was occupying it in his capacity firstly as Minister of

Commerce and Industry and thereafter in his capacity as Chief Minister of

the State of Jammu and Kashmir. This accommodation was placed at the

disposal of State of Jammu and Kashmir dated 11.08.2009 with retrospective

effect from 2009. Mr. Omar Abdullah who became the Chief Minister of

Jammu and Kashmir demitted this office in January, 2015. The affidavit of

respondent No. 2 (para 10) clearly states that this accommodation i.e. 7,

Akbar Road stood allotted to the State Government (State of Jammu and

Kashmir) w.e.f. 11.08.2009 when the State intended to use the same for the

official residence of the Chief Minister of Jammu and Kashmir. The

petitioners were admittedly deriving their entitlement to retain this

accommodation only through the official position of Mr. Omar Abdullah.

They have no independent right or claim in this property. This

accommodation now has to be allotted to the new Chief Minister of Jammu

and Kashmir. The admitted position as on date is thus that the petitioners are

residing in this property as illegal occupants. They have been evicted vide

orders of the Competent Court under the Public Premises (Eviction of

Unauthorized Occupants) Act, 1971. Their entitlement to stay in the

aforenoted Government allotted bungalow is no longer available to them.

They are admittedly not in Government employment. Mr. Omar Abdullah

who had demitted his office as Chief Minister of the State of Jammu and

Kashmir demitted office in January, 2015. He categorically in his letter dated

04.06.2016 stated that this bungalow is no longer in his occupation. In fact,

Mr. Omar Abdullah who is also a 'Z+' protectee is residing in a private

accommodation at Nizamuddin where he is enjoying a security cover of a

'Z+' protectee and which has been provided to him by the Delhi Police. The

father-in-law of petitioner No. 1 Mr. Farooq Abdullah (also a 'Z+' protectee)

is also staying in a private accommodation at Sagar Apartments, Tilak Marg.

This area is equivalent to an area owned by petitioner No. 1 (2300 square

feet) where Mr. Farooq Abdullah is also enjoying an adequate security cover

(provided to him by Delhi Police in coordination with Ministry of Home

Affairs) and for which also he has no complaint. This is an admitted

position. The fact that the present petitioners have no independent claim to

this property is also an admitted fact. They are in fact deriving their right of

a 'Z' and 'Z+' security only because they are family members of Mr. Omar

Abdullah and Mr. Farooq Abdullah. If Mr. Omar Abdullah and Mr. Farooq

Abdullah can live in private accommodations and have been given adequate

security covers; there is absolutely no reason for the petitioners to have a

misconceived apprehension that they cannot be protected similarly. The

secret document (placed on record and perused by the Court) also show that

there is no specific threat to the petitioners; a general threat perception has

alone been noted.

14 This Court has also been informed that 94 personnel who were

guarding the present accommodation were coming in three shifts i.e. 31

personnel at one point of time. The counter affidavits of both respondent

No. 2 and respondent No.3 state that depending upon the size of the

accommodation, the security can be enhanced or reduced; if the

accommodation where the petitioners will be housed is smaller than the

present accommodation, a vigil of 94 security personnel may not be required

and could be reduced. The undertaking of respondent No.3 (Minister of

Home Affairs) is also noted which is to the effect that whatever may be the

size of the accommodation to which the petitioners propose to shift, adequate

security cover will be provided to them and they will have no complaint.

15 Noting the above factual matrix, this Court is of the view that the

entitlement of the petitioners to retain this accommodation is wholly illegal.

It is a Government accommodation. Petitioners have no claim or right upon

it. They are liable to the evicted forthwith. Their apprehension that they will

not be given an adequate security cover is misconceived; if the husband and

father-in-law of petitioner No. 1 can be adequately secured (living in private

accommodations), there is no reason as to why the petitioners cannot be

protected. In fact petitioner No. 1 is a 'Z' category protectee and Mr. Omar

Abdullah and Mr. Farooq Abdullah are 'Z+' protectees (so also petitioners

No. 2 & 3).

16 This Court is thus of the view that all the 3 petitioners can be

adequately looked after and whichever private accommodation they proposes

to shift to, this Court notes the undertaking of respondent No.3 that there will

be an adequate security cover provided to the petitioners.

17 Submission of the petitioners that they have been discriminated qua

other persons is also misconceived. This Court notes the stand of respondent

No.1 that Mr. K.P.S. Gill, Mr. M.S. Bitta and Mr. Subramanian Swamy are

central protectees and they have been given Government accommodation

only because of an imminent threat faced by them whereas the petitioners

face only a general perception of threat (as noted in the security document

and perused by this Court). In rejoinder, a plea had been taken up by the

petitioners that they are Central protectees and not State protectees. This

Court notes that this submission did not find mention in the body of the main

petition but it was in response to the counter affidavit of respondent No. 2

that this submission has been argued. The secret document perused by this

Court also make the stand of respondent No. 2 clear. 'Z' and 'Z+' security

have been granted to the petitioners by the State of the Jammu and Kashmir

because they are the wife and children of Mr. Omar Abdullah respectively.

This fact that they are 'Z' and 'Z+' protectees has also been stated in the

affidavit of the Additional Resident Commissioner of the State of Jammu

and Kashmir; the Central Government i.e. Delhi Police would only look after

their interest and ensure their security and for the limited purpose the

colloquial term 'Central Protectees' has been used in the letter dated

19.10.2013 (heavily relied upon by the petitioners). This is clearly only for

the reason that Delhi Police would be providing the security cover to the

petitioners in coordination and cooperation with the Ministry of Home

Affairs (respondent No.3). This argument of the petitioners that they are

Central protectees is thus clearly a misunderstood argument.

18       Petition is without any merit. Dismissed.

19       Order dasti under the signatures of the Court Master.

Crl. M.A. No.12800/2016 (under Section 340 of the Cr.PC)

20 Renotify on 14.09.2016.

INDERMEET KAUR, J AUGUST 19, 2016 A