Delhi High Court
Sushil Kumar Dhar vs Union Of India & Anr. on 16 February, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 16th February, 2022
+ W.P.(C) 14616/2021, CM APPL. 46073/2021
SUSHIL KUMAR DHAR
..... Petitioner
Through: Mr. Manoj V. George with
Ms. Shilpa Liza George, Advs.
versus
UNION OF INDIA & ANR.
..... Respondents
Through: Mr. Rahul Sharma, Sr. Panel Counsel
with Mr. C.K. Bhatt, Adv. for UOI
AND
+ W.P.(C) 1770/2021, CM APPL. 5088/2021 & 39788/2021
SURINDER KUMAR RAINA ..... Petitioner
Through: Mr. Arvind Chaudhary and
Mr. B.L. Wali, Advs.
versus
UNION OF INDIA & ORS.
..... Respondents
Through: Mr. Ajay Gupta, Sr. Panel Counsel
AND
+ W.P.(C) 5443/2021, CM APPL. 16867/2021 & 3171/2022
PRIDMAN KIRSHEN KOUL
..... Petitioner
Through: Mr. Arvind Chaudhary and
Mr. B.L. Wali, Advs.
versus
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UNION OF INDIA & ORS.
..... Respondents
Through: Mr. Ajay Digpaul, CGSC with
Mr. Kamal R. Digpaul, Adv. for UOI
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
V. KAMESWAR RAO, J. (ORAL)
1. By this common order I shall decide the aforesaid three
writ petitions filed by the petitioners challenging the action of the
respondents seeking their eviction from the government quarters
being Quarter No.245, Type IV, Laxmi Bai Nagar, New Delhi -
110022, B-179, Type IV, at Nanak Pura, South Moti Bagh, New
Delhi, and Flat No.50 B, Pocket-B, Mayur Vihar Phase-II, Delhi-
110091 respectively. The facts of each of the writ petition are
narrated separately.
W.P.(C) 14616/2021
2. This petition has been filed by the petitioner with the
following prayers:
"In the light of the above mentioned facts and
circumstances, it is most respectfully prayed by the
Petitioner before this Hon‟ble Court that it may be
pleased to:-
a) Quash and Set aside the order
F.No.245/LXN/TDA/2021 dated 02.12.2021 passed by
b) Stay the eviction proceedings against the residential
quarter No. 245, Type IV, Laxmi Bai Nagar, New
Delhi - 110022
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c) Issue directions to the Respondents to regularize the
Petitioner‟s allotment of Government accommodation
at residential quarter No. 245, Type IV, Laxmi Bai
Nagar, New Delhi - 110022 and charge him normal
license fees for a period three years as directed by the
Hon‟be Supreme Court in the case of UOI Vs. Om Kar
Nath Dhar CA 6619/2014 dated 07.10.2021
d) Pass any other further such order or direction that
this Hon‟ble Court deems fit in the interests of
justice."
3. The petitioner was a government servant having been
appointed as SRO in National Sample Survey Organisation (Field
Operation Division) Udhampur, State of Jammu and Kashmir as it
then was in the year 1983. While working in Udhampur, the
petitioner was transferred to Delhi. The case of the petitioner in
this petition is that he is a Kashmiri Migrant and is similarly placed
as other government servants who are retired Kashmiri Migrants,
who have been granted the continuation of government
accommodation by the Ministry of Urban Development,
Government of India. It is his case that he was under the belief that
the respondents have covered the petitioner under the scheme
providing alternate accommodation to retired Central Government
employees belonging to the State of Jammu and Kashmir and as
such did not bother to take any alternate accommodation and
continued to stay in the government accommodation allotted to
him. However, the respondents vide Office Memorandum dated
October 20, 2021, stated that in compliance with the judgment of
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the Supreme Court dated August 05, 2021, they are seeking
eviction of the petitioner.
4. According to the petitioner, the respondents have adopted a
pick and choose implementation of the order of the Supreme Court.
The Supreme Court after the judgment dated August 05, 2021, has
also passed an order dated October 07, 2021, which the
respondents have ignored wherein in paragraph 17 the Supreme
Court has allowed the retention of accommodation by Kashmiri
Migrants for a period of three years from the date of retirement.
5. Mr.Manoj V. George, Advocate who appears for the
petitioner would submit that the petitioner hails from Srinagar
which was the hub of militants at that time. The petitioner and his
family were indifferently treated by the militants and separatist
group of Kashmir as an informer of the Union of India as he was a
government servant serving the Union of India and therefore, was
one of the prime targets of the militants. The threat against the
petitioner was real and imminent as many of the petitioner's
neighbours were gunned down in his native village by various
militant groups. Therefore, in a do-or-die situation, he brought his
family from Srinagar to Jammu leaving all baggage, moveable and
immovable property at home in Srinagar.
6. According to Mr.George, the threat to the lives of the
Kashmiri Pandits like the petitioner from the regional militants still
persists in the Kashmir Valley even after many years of exodus by
the Kashmiri Pandits. It is not advisable for the Kashmiri Pandits
like the petitioner to go back to Srinagar to their native place
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owing to the present unrest and the deplorable conditions. The
petitioner having been allotted the quarter No.245, Type - IV,
Laxmi Bai Nagar, New Delhi - 110022 while serving in Central
Electricity Authority, Ministry of Power, he should be allowed to
continue for a period of three years in terms of paragraph 17 of the
order dated October 07, 2021, of the Supreme Court.
W.P.(C) 1770/2021
7. This petition has been filed by the petitioner with the
following prayers:
"In view of the aforesaid facts and circumstances, it is
most respectfully prayed that this Hon'ble Court may
be pleased to issue:
(a) an appropriate writ in the nature of certiorari or
an appropriate, writ order or direction calling for the
records of EC/175/AD/LIT/2020/TD dated 06.01.2021
pertaining to residential property bearing No. B-179,
Nanak Pura, (Type-IV) South Moti Bagh, New Delhi-
110021 and set aside the same; and
(b) writ of mandamus thereby restraining the
respondents from evicting the petitioner from the
property bearing No. B-179 Nanak Pura, (Type-IV),
South Moti Bagh, New Delhi-110021 till such time the
Government of India/State Government makes it
possible for the petitioner to return to the Kashmir
Valley alongwith his family or till such time an
alternative and suitable accommodation is provided to
the petitioner; and
(c) issue. an appropriate writ, order or direction
thereby directing the respondents not to charge penalty
or enhanced license fee from the petitioner, during his
stay in the official accommodation; and permit him to
pay normal license fee; and
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(d) A ward costs of the present petition; and
(e) Any other or further order, direction or reliefs as
this Hon'ble
Court may deem just fit and proper in the facts and
circumstances of the present case may also be passed
in favor of the Petitioner."
8. The petitioner in this writ petition has stated that he is a
Kashmiri Migrant who was working in All India Radio
(hereinafter, „AIR‟) and superannuated as an Assistant Engineer.
He was appointed as a Technician with AIR, Leh Ladakh in the
year 1981. In 1982 he was transferred to Doordarshan Kendra
Srinagar and continued to be posted there till 1990. On April 06,
1990, after the petitioner migrated to Delhi, he got himself
registered as Kashmiri Migrant. The petitioner was thereafter
transferred to AIR, Leh and from AIR, Leh to AIR Jammu in the
year 1991 and worked in Jammu till 2006 when he was transferred
to the AIR, Akashwani Bhawan, New Delhi. He was allotted a
government accommodation in 2009, being B-179, Type IV, at
Nanak Pura, South Moti Bagh, New Delhi
9. It is also his case, he is aggrieved by the eviction order
passed by the respondents calling upon him to vacate the
residential accommodation. The impugned action of the
respondents is contrary to the judgment of the Division Bench in
the case of P.K. Koul v. Estate Officer & Anr., W.P. (C)
15239/2004, decided on November 30, 2010 and also LPA
No.332/2011 titled as Union of India v. Vijay Mam & Ors.
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Reference is also made to the case of Rajinder Kumar Pandita &
Ors. v. Union of India & Ors., W.P.(C) 3908/2019.
10. A counter affidavit has been filed by the respondents
wherein it is stated that as per the policy dated March 28, 2017,
which stipulates the terms and conditions for qualifying as a
Kashmiri Migrant, one of the conditions is that the applicant
should have been transferred by the Central Government from
Srinagar to Delhi on security ground after November 01, 1989. It
is stated that the petitioner was not officially transferred from
Srinagar to Delhi during the relevant period. He is not entitled to
retention under the policy and action has been taken seeking his
eviction from the accommodation allotted to him under the
provisions of the Public Premises (Eviction of Unauthorized
Occupants) Act, 1971.
11. Mr.Arvind Chaudhary, learned counsel for the petitioner
make similar submissions as made by Mr. George, inasmuch as the
petitioner had retired from service on March 31, 2020 and in terms
of paragraph 17 of the order passed by the Supreme Court, dated
October 07, 2021, the petitioner is entitled to retain the
accommodation for a period of three years from that date.
W.P.(C) 5443/2021
12. This petition has been filed by the petitioner with the
following prayers:
"In view of the aforesaid facts and circumstances, it is
Most Respectfully prayed that this Hon‟ble Court may
be pleased to issue:
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(a) an appropriate writ in the nature of certiorari or
an appropriate writ order or direction calling for the
records of the property bearing House ID
No.1110352101 being residential Flat No.50 B, Pocket-
B, Mayur Vihar Phase-II, Delhi-110091 and to set aside
the eviction notice dated 08.03.2021 (Annexure P-1);
and
(b) writ of mandamus thereby restraining the
respondents from evicting the petitioner from Flat
No.50 B, Pocket-B, Mayur Vihar Phase-II, Delhi-
110091 till such time the Government of India/State
Government makes it possible for the petitioner to safely
return to the Kashmir Valley along with his family or till
such time an alternative and suitable accommodation is
provided to the petitioner; and
(c) issue an appropriate writ, order or direction
thereby directing the respondents not to charge penalty
or enhanced license fee from the petitioner, during his
stay in the official accommodation; and permit him to
pay normal license fee; and
(d) Award costs of the present petition; and
(e) Any other or further order, direction or reliefs as
this Hon‟ble Court may deem just fit and proper in the
facts and circumstances of the present case may also be
passed in favour of the Petitioner."
13. The petitioner herein was appointed as an Auditor by the
Controller of Defence Accountants (Northern Command), Jammu
Cantt. on October 18, 1982. After joining the post, he also served
at Srinagar. Between 1986-88 the petitioner was transferred to Leh
Ladakh where he remained posted till June 1988.
14. It is the own case of the petitioner that between July 1988
to September 2009, he was posted to various places in North India,
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including the states of Himachal Pradesh and Punjab. It is also his
case that due to insurgency, the petitioner migrated from Kashmir
Valley to Jammu along with his parents. His father was issued a
Ration Card and the petitioner's name is also mentioned in the
same as he was then unmarried. He was also issued a Kashmiri
Migrant Card.
15. It is the case of the petitioner that in September 2009, he
was transferred to Delhi, where he was allotted a government
accommodation bearing Flat No.50 B, Pocket-B, Mayur Vihar
Phase-II, Delhi-110091. In May 2016 he was transferred to
Srinagar, where he served the Principal Controller of Defence
Accounts (Northern Command), till his superannuation in
December 31, 2020. On his transfer to Srinagar, he made a request
to retain the family accommodation, as his wife and two daughters
continued to reside at Delhi and also because Srinagar, was a non-
family station. The said request was allowed and the petitioner
continued to retain the official allotted accommodation at Delhi.
16. Pursuant to his retirement which was during the lockdown,
the petitioner made a request for retention of the official
accommodation as he is a Kashmiri Migrant, who does not have
any other residential house to shift to. The only ancestral property
of the petitioner is situated in Anantnag District, Jammu and
Kashmir, which is inhabitable for such a long time as the petitioner
was forced to leave the valley due to militancy and unrest. The
house is in a dilapidated condition and is not fit for living. His
allotment has been cancelled upon the expiry of six months of his
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superannuation till June 30, 2021. The petitioner gave a
representation to the respondents which has not been replied to till
date.
17. Counter affidavit has been filed by the respondents wherein
it is stated that the petitioner does not qualify under the scheme of
March 28, 2017, as he was not officially transferred to Delhi
during the relevant period on security grounds.
18. The counsel for the respondents would submit, on the only
ground urged by the counsel for the petitioners for retention of the
accommodation for a period of three years in view of the order
dated October 07, 2021, of the Supreme Court more specifically
paragraph 17 of the order, that the said paragraph has to be read in
continuity with the earlier paragraphs from 13 to 16. Paragraph 17
is only an observation of the Supreme Court but not a direction that
every Kashmiri Migrant is entitled to the retention of the
government accommodation for a period of three years from the
date of retirement.
19. That apart, they heavily relied upon the fact that after the
order dated October 07, 2021, the respondents have withdrawn the
scheme of March 28, 2017, and as of date there is no scheme
evolved by the respondents for retention of the government
accommodation by the Kashmiri Migrants for a period of three
years from the date of retirement. They seek the dismissal of the
petitions.
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20. Having heard the learned counsel for the parties, the first
and foremost question that arises for consideration is whether the
Office Memorandum dated March 28, 2017 was applicable to the
petitioners for being allowed retention. The policy in terms of
Annexure A-1 reads as under:
"1. Terms and conditions for qualifying as a
'Kashmiri migrant' under this scheme:
i) The applicant should be a retired Central
Government employee or his/her spouse (in case the
employee is dead), and the applicant should be in
possession of a General Pool Residential
Accommodation (GPRA) in Delhi allotted by the
Directorate of Estates, Ministry of Urban Development
on the date of filing the application.
ii) Applicant should be a permanent resident of State of
Jammu and Kashmir and should be an erstwhile
domicile of Kashmir Division excluding Ladakh and
Kargil districts.
iii) Applicant was an employee of the Central
Government, and was posted in Srinagar, J&K at the
relevant time, and he was transferred by the Central
Government from Srinagar to Delhi on security ground
after 1st November, 1989.
iv) He/she or his/her family have no other residence in
any part of the country.
v) Though he/she has retired, he/she is not in a
position to go back to his/her native place because
conditions are still not favourable for his/her safe
return back to the valley."
21. From the above, it is clear that the scheme which was in
place at the relevant time contemplated that the same shall be
applicable to those employees of the Central Government, who
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were posted at Srinagar at the relevant time and have been
transferred by the Central Government from Srinagar to Delhi on
security grounds after November 01, 1989. In the case in hand, the
facts demonstrate that none of the petitioners have been transferred
from Srinagar to Delhi on security grounds after November 01,
1989. The petitioner, namely Sushil Kumar Dhar was posted at
Udhampur before being transferred to Delhi. He has not stated
when was he transferred to Delhi. He has also not annexed his
transfer order to Delhi. From the representation dated October 18,
2021, it is noted that he was transferred to Delhi in January 1993,
that is after four years from 1989. It is not his case that for security
reasons he was transferred from Srinagar to Delhi after November
01, 1989. So, the petitioner was not eligible under Office
Memorandum dated March 28, 2017. Similar is the case of the
petitioner in W.P.(C) 1770/2021, who was posted at Srinagar till
1990, subsequently posted at Leh and thereafter, at Jammu (1991).
He was transferred to Delhi only in the year 2006. So, it is not a
case, that the petitioner was transferred from Srinagar to Delhi
after November 01, 1989 on security grounds. It follows, he was
not eligible under the scheme. I find even the petitioner in W.P.(C)
5443/2021 was posted in Dehi only in the year September 2009.
He was not posted in Srinagar after the year 1986. Hence, he was
also not eligible for retention of government accommodation as a
Kashmiri Migrant under the Office Memorandum dated March 28,
2017.
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22. Having said that, it must be noted, the Supreme Court vide
its judgment dated October 07, 2021 has set aside the above Office
Memorandum by holding in paragraphs 13 to 16 as under:
"13. We do not find any merit in the argument that
directions in J.L. Koul were not under Article 142 of
the Constitution of India. This Court accepted the
Rehabilitation Scheme produced on affidavit by the
Chief Secretary of the State and thereafter expressed
a pious hope. This Court did not decide any question
of law or fact but merely expressed a compassionate
view to alleviate the difficulties being faced by
Kashmiri Migrants. The Rehabilitation Package
approved by this Court itself contemplated that
transit accommodations were being constructed at
three sites but if such transit accommodation was not
available, Rupees One Lakh per family towards
rental and incidental expenses would be given to
those who may not be accommodated in transit
accommodation. Thus, even if they have not been
given alternate accommodation, the Scheme
approved by this Court contemplates cash
compensation towards rental and incidental
expenses. The compassion could not be extended in
perpetuity and has to end some day or the other.
Therefore, seeking parity with 31 retirees who were
granted benefit in J.L. Koul is not tenable. The
applicants are occupying the government
accommodation at the cost of other Government
servants who are waiting in queue for allotment of a
government accommodation to discharge their
official duties. The compassion shown to Kashmiri
Migrants has to be balanced with the expectations of
the serving officers to discharge their duties
effectively. The Government accommodation is meant
for serving officers and cannot be taken as a recourse
to stay in Government accommodation for the life
time of the Government servants or his/her spouse.
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14. The Office Memorandum issued on 28.3.2017 was
in terms of the directions of the High Court of Delhi.
Such order of High Court has not been approved by
this Court vide order dated 5.8.2021. Therefore, the
entire basis of issuance of Office Memorandum falls
flat as the very foundation of such Scheme stands
knocked down.
15. We find that the Office Memorandum allowing
government accommodation to the retired
Government employees who are Kashmiri Migrants
cannot meet the touchstone of Article 14 of the
Constitution of India. The Government houses/flats
are meant for serving Government employees. Post
retirement, the government employees including
Kashmiri Migrants are granted pensionary benefits
including monthly pension. The classification made in
favour of Government employees who were Kashmiri
Migrants stands on the same footing as that of other
Government employees or public figures. There
cannot be any justification on the basis of social or
economic criteria to allow the Kashmiri Migrants to
stay in Government accommodation for indefinite
long period.
16. To say that they would return to the Valley when
the situation will improve is an open-ended statement
capable of being interpreted in different ways. The
satisfaction of improvement of situation would be
widely different by the erstwhile Government
employees and the State. But in no case it can be
countenanced that the former Government employee,
may be a Kashmiri Migrant, is entitled to stay in a
government accommodation for an indefinite period.
Thus, we are unable to uphold the Office
Memorandum and strike it down as being totally
arbitrary and discriminatory."
23. The plea advanced by the counsel for the petitioners that
they are entitled to the benefit of retention of house for three years,
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is unmerited. Firstly, the petitioners being ineligible under the
Office Memorandum dated March 28, 2017, cannot rely on
paragraph 17 of the order dated October 07, 2021, as they were not
covered under the scheme, and as such were not entitled to
retention of the government accommodation at all. Secondly, in
the affidavit filed by the respondents on the directions of this
Court, (noting the submission made by the counsels during the
hearing on February 08, 2022), the following has been stated:
"5. I say that the OM dated 28.03.2017 was
withdrawn on 20.10.2021 by the Respondent No.1, in
terms of the Ho‟ble Supreme Court's order/ judgment
dated 05.08.2021 & 07.10.2021 passed in Union of
India & Anr. Versus Omkar Nath Dhar (D) Through
LRs.
6. I say that the contents of para 17 of the Hon'ble
Supreme Court's judgment dated 07.10.2021 passed
in Union of India & Anr. Versus Omkar Nath Dhar
(D) Through LRs., may kindly be read with the
contents of paragraphs 13, 14, 15, 16 & 18, wh ich
paras clearly espouses the basis and reason for
setting aside/withdrawal of the policy/scheme of
retention of the government accommodation by the
retired Kashmiri migrants and further clarifies that
the observations [which are being relied upon by the
Applicant herein], are observation of the Hon'ble
Supreme Court on Para 2 of OM dated 28.03.2017
and are not binding directions. Also, the Withdrawal
of the policy and initiation of eviction proceedings, in
compliance of Supreme Court Order dt 5.8.2021 and
7.1 0.2021, was taken on record by the Hon'ble
Supreme Court in it's order dated 11.01.2022 in MA
No. 1891 /2021 in CA No. 6619/2014.
7. I say that the above said is further clear from the
order dated 11.01 .2022, passed by the Hon'ble
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Supreme Court in Union of India & Anr. Versus
Omkar Nath Dhar (D) Through LRs., as well as
Action Taken Reports filed by the Respondent No.1
before the Hon'ble Supreme Court in terms of the
orders dated 05.08.2021 & 07.10.2021.
8. I say that all the retired Kashmiri migrants
occupying government accommodation have been/
are being treated at par/ equally and in terms of the
orders dated 05.08.202 1, 07.10.2021 & 11.01.2022,
passed by the Hon'ble Supreme Court in Union of
India & Anr. Versus Omkar Nath Dhar (D) Through
LRs. and accordingly Action Taken Reports are being
filed by the Respondent No.1 before the Hon‟ble
Supreme Court as directed."
24. In view of my above discussion, this Court is of the view,
that the impugned action of the respondents cannot be faulted. The
petitions are devoid of merit, the same are dismissed. No costs.
The petitioners shall vacate the government accommodation
allotted to them on or before March 31, 2022 and an undertaking
shall be filed in the Court within one week. No costs.
CM APPL. 46073/2021 in W.P.(C) 14616/2021
CM APPLs. 5088/2021 & 39788/2021 in W.P.(C) 1770/2021
CM APPLs. 16867/2021 & 3171/2022 in W.P.(C) 5443/2021
In view of the fact that writ petitions are dismissed, these
applications are also dismissed.
V. KAMESWAR RAO, J
FEBRUARY 16, 2022/aky
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