Payal Abdullah & Ors vs Union Of India & Ors
2017 Latest Caselaw 79 Del

                IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Judgment reserved on: November 25 , 2016
                                            Judgment delivered on: January 06, 2017

+       LPA 608/2016
        PAYAL ABDULLAH & ORS
                                                                             ..... Appellants

                                Through:     Mr.Jayant K.Sud with Mr.Honey
                                             Khanna, Mr.V.Pratap Singh, Ms.Vaishali Soni
                                             and Mr.Umang Singh, Advs.
                                versus

        UNION OF INDIA & ORS
                                                                         ..... Respondents
                                Through:     Mr.Sanjay Jain, ASG with Mr.Anurag
                                             Ahluwalia, CGSC and Mr.V.Pasayat, Adv. for
                                             UOI.
                                             Mr.Sunil Fernandes with Mr.Puneeth K.G.,
                                             Advs. for R-2.


CORAM:

HON'BLE THE CHIEF JUSTICE
HON'BLE MR JUSTICE V. KAMESWAR RAO

                                     JUDGMENT

V. KAMESWAR RAO, J

1. The present appeal has been filed against order dated August 19, 2016 passed by the

learned Single Judge in Writ Petition (Civil) No. 5886/2016 and CM No. 24201/2016

whereby the learned Single Judge has dismissed the petition, being without merit.

2. The appellants, who are three in numbers and are the estranged wife and sons of

Mr. Omar Abdullah, the Ex-Chief Minister of Jammu & Kashmir filed the writ petition

seeking directions against the respondents not to evict them from the premises bearing

No.7, Akbar Road (Type-VIII) Bungalow, New Delhi on security grounds or in the

alternative to allot a suitable government accommodation to them on security grounds

wherein the officers of the Z plus category security can effectively protect them. They had

also made a prayer in the writ petition that if the Court decides that the appellants are

entitled to be allotted any other suitable accommodation other than the premises bearing

No. 7 Akbar Road, New Delhi then direct the respondents not to evict the appellants from

the said premises till suitable accommodation is allotted to them.

3. It was the case of the appellants before the learned Single Judge that the three

appellants are enjoying Z and Z plus security. The accommodation was allotted to the

husband/father of the appellants on November 22, 1999 when he was holding the post of

Minister of State for Commerce and Industry and they have been living in the said

bungalow since then. It was their case that they have been staying in the bungalow even

during the time when Mr. Omar Abdullah was not holding any government office. By

asking them to vacate the aforesaid bungalow, the Government is harassing them. They

being the Z and Z plus protectees, there is a round the clock vigil required for their security;

there are 94 personnel who are deputed at the afore noted bungalow to look after their

security; 10 cars have been deputed for their security which includes three bullet proof

vehicles. Large security lights and barrack for the 41 personnel permanently living in the

bungalow besides four guard towers and two guard towers on the roof top are located in the

accommodation and the direction to vacate, is against their interest.

4. The case of the respondent No.1 Ministry of Urban Development was that the

guidelines for discretionary allotment of General Pool Residential Accommodation, New

Delhi is governed by OM dated November 17, 1997. Vide a subsequent OM dated

December 27, 2000, 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 November 22, 1999 while he was

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

dated September 9, 2015, the said premises was placed at the disposal of Government of

Jammu & Kashmir retrospectively with effect from August 11, 2009. Mr. Omar Abdullah

assumed the charge of Chief Minister for the State of Jammu & Kashmir in January 2009

and he occupied the premises with his family in his capacity as the then Chief Minister. He

has admittedly demitted the said office in January, 2015. The appellants are not entitled to

retain the bungalow which has now to be allotted to the new Chief Minister of Jammu &

Kashmir. It is reiterated that the appellants are admittedly Z and Z plus protectees but no

government accommodation can be allotted to any person on security considerations except

to SPG protectee.

5. The respondent No.3 Ministry of Home Affairs has taken a similar stand before the

learned Single Judge that the security arrangements for the appellants have to be done as per

the Yellow Book issued by the said Ministry. The appellants are not Central protectees i.e

their security protection categorization has not been done by the Central Government. In

other words, they have to be protected by the State of Jammu & Kashmir. It was also the

stand of the Ministry of Home Affairs that the appellants are residents of Delhi and are the

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 three appellants. This threat

assessment of the appellants has been reviewed by the Central Security Agency, which was

the basis for the Ministry to take the stand in the affidavit. It was also the stand of the

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

document and the same cannot be annexed with the affidavit. It is also noted from the

impugned judgment that the threat assessment carried out by the Central Security Agency

was placed before the learned Single Judge and was perused by the learned Single Judge

and on that basis, the Court had noted that there appears to be only a general threat to the

appellants perceived from Kashmiri militants and largely for the reason, they are family

members of Abdullah family.

6. It was also the stand of the Ministry of Home Affairs that the Delhi police will watch

the interest of the appellants as they are admittedly the 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 was 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 . It is also stated three central protectees namely Mr. K.P.S. Gill, Mr. M.S.

Bitta and Mr. Subramanian Swamy being central SPG protectees have been allotted

government accommodation in view of a high level of threat faced by them.

7. The stand of the respondent No.2 Resident Commissioner, Government of Jammu &

Kashmir before the learned Single Judge was that the Jammu & Kashmir alone is

responsible for providing security to the appellants who are residents of Delhi, it is the

Delhi Police who would be responsible for their security and a letter of the DGP, Jammu &

Kashmir dated October 19, 2013 was placed before the learned Single Judge. The

following submissions were made on behalf of the appellants before the learned Single

Judge:-

(i) The appellants are Z and Z plus category security protectees.

(ii) If they shift to a smaller accommodation as compared to the one which is now occupied by them, they cannot be provided with adequate security.

(iii) The appellants have been discriminated as besides the afore noted persons there are other persons who are enjoying Government accommodation irrespective of the fact that they are not in government employment like Mr. Sachin Pilot, Dr. Fatana Nazibullah, Mr. Om Prakash Mathur and Mr. Th. Muviah who are enjoying the government accommodation.

8. The learned Single Judge rejected the stand of the appellants by noting that the

bungalow was placed at the disposal of the State of Jammu & Kashmir with effect from

August 11, 2009 for Mr. Omar Abdullah. He retained the accommodation till he demitted

the office in January, 2015. Mr. Omar Abdullah has, in his communication to the

respondent No.1 dated June 4, 2016 informed that he is no longer in occupation of 7, Akbar

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

learned Single Judge held that the appellants were deriving their entitlement to retain the

accommodation only through the official position of Mr. Omar Abdullah. They have no

independent right or claim in this property. The accommodation now has been allotted to

the new Chief Minister of Jammu & Kashmir. As on date, the appellants are residing in the

property as illegal occupants. They are admittedly not in government employment. It is

also noted by the learned Single Judge that Mr. Omar Abdullah who is also a Z plus

protectee is residing in a private accommodation at Nizamuddin where he is enjoying a

security cover of a Z plus protectee and which has been provided to him by the Delhi

Police. The father in law of the appellant No.1 Mr. Farooq Abdullah is also staying in a

private accommodation at Sagar Apartments, Tilak Marg. It is also noted by the learned

Single Judge that the appellant No.1 owns a 2300/- sq. feet flat. The learned Single Judge

also held that if Mr. Omar Abdullah and Mr. Farooq Abdullah can live in private

accommodation and have been given adequate security cover, there is absolutely no reason

for the appellants to have a misconceived apprehension that they cannot be protected

similarly. The learned Single has noted the undertaking of the respondent No.3 Ministry of

Home Affairs to the effect whatever may be the size of the accommodation to which the

appellants propose to shift, adequate security cover will be provided to them and they will

have no complaint.

9. The learned Single Judge has also rejected the plea of discrimination by holding that

persons who have been given government accommodation are officers who are facing

imminent threat whereas the appellants face only a general perception of threat.

10. Mr. Jayant K. Sud, learned Counsel for the appellants would submit that the

appellants being the estranged wife and the children of the Mr. Omar Abdullah and

themselves being the Z and Z plus protectees, could not have been evicted from the

bungalow in question for security reasons. Even if the appellants are not entitled to the

present accommodation, an alternative accommodation need to be provided where the

security aspects can be taken care of. He would contend that the respondents have

unfortunately overlooked these aspects while directing the eviction of the appellants. He

would vehemently plead the case of discrimination as in similar manner other persons

having protection have been allotted accommodation. He states that the order of the learned

Single Judge is without considering in proper perspective the aforesaid consideration and

need to be set aside and the reliefs as sought for in the writ petition need to be granted. He

would rely upon the judgment of this Court in the case of Union of India v. Vijay Mam,

LPA No. 332/2011 and connected appeals decided on June 1, 2012, to contend that this

Court with regard to the Kashmiri Pandits who have been transferred out of Srinagar were

allowed to be continued in the accommodation provided to them at a place where they were

transferred and the Court has upheld the direction of the learned Single Judge directing the

appellants before the Division Bench to allow them to occupy till such time the appellants

take adequate, effective and reasonable steps to rehabilitate and resettle the respondents by

making provisions for appropriate accommodation for the petitioners/respondents. He

would also rely upon the judgment of this Court in the case reported as (2010) 117 DRJ 298

Shiv S. Sharma v. Union of India and Ors.

11. During the course of his submissions, Mr. Sud had also relied upon an OMs dated

December 27, 2000 and July 24, 2003 to contend that the security protectees will not be

required to surrender their house in Delhi in lieu of allotment of General Pool Residential

Accommodation.

12. Having heard the learned counsel for the parties, there is no dispute that the

appellants are the Z and Z plus protectees because of them being the estranged wife and

children of Mr. Omar Abdullah. It has been accepted by the learned Single Judge Mr. Omar

Abdullah, after he ceased to be the Chief Minister, has, himself written to the respondent

No.1 that they are free to take possession of the bungalow in question. He himself has

shifted to a place in Nizamuddin where adequate security is being provided to him by the

Delhi Police. Similar is the position with his father Mr. Farooq Abdullah. The learned

Single Judge is justified in holding that they derive the right of a Z and Z plus security

protectees only because being the family members of Mr. Omar Abdullah and Mr. Farooq

Abdullah. Hence, the submission of Mr. Sud that the appellants being Z and Z plus security

protectees need to be allotted accommodation by the Central Government is without any

basis. We also note that the learned Single Judge has concluded that the bungalow in

question was placed at the disposal of the Government of Jammu & Kashmir and it is the

duty of the Government of Jammu & Kashmir to provide security to the appellants and, the

DGP, Jammu & Kashmir, has on October 19, 2013, written a letter, for providing security

to the appellants. Even the Ministry of Home Affairs has taken a stand that adequate

security cover will be provided to the appellants.

13. The plea of Mr. Sud of discrimination is also not sustainable. Firstly, the threat

perception having been determined by the Ministry of Home Affairs and which document

was placed before the learned Single Judge and the conclusion of the learned Single Judge

being that the appellants have only a general threat perception, not an imminent threat

perception, cannot be questioned.

14. Secondly, the learned Single Judge has held that the case of the appellants cannot

draw parallel with the case of Mr. K.P.S. Gill, Mr. M.S. Bitta and Mr. Subramanian Swamy

as they face an imminent threat. The judgment relied upon by Mr. Sud in the case of Union

of India v. Vijay Mam (supra), has no applicability in the facts of this case, inasmuch as, in

the said case, the petitioners before the learned Single Judge were the employees posted in

J&K and who were transferred out because of the threat perception from the Kashmiri

militants and were given accommodation at the transferred place, and later sought to be

evicted. The direction of the learned Single Judge was to continue the employees in their

accommodation till adequate and reasonable steps are taken to rehabilitate and resettle them

by making provisions for appropriate accommodation, which direction was upheld by the

Division Bench. The Division Bench clarified that the direction was in peculiar facts of

those cases and cannot be construed as general directions in all types of cases pertaining to

right to shelter.

15. Similarly, the judgment of Shiv S. Sharma (supra), has also no applicability to the

facts of this case.

16. Insofar as the plea of Mr. Sud relying upon the OMs dated December 27, 2000 and

July 24, 2003 is concerned, suffice to state the said OMs contemplate that security

protectees will not be required to surrender their own house in lieu of allotment of General

Pool Residential Accommodation, which is not the case here as there is no allotment of

General Pool Residential Accommodation to the appellants. Furthermore, when Mr. Omar

Abdullah himself has shifted to a private accommodation, there is no reason why the

appellants can be treated differently.

17. We do not see any merit in the appeal. The same is dismissed.

V. KAMESWAR RAO, J

CHIEF JUSTICE

JANUARY 06, 2017 ak