Jammu & Kashmir High Court - Srinagar Bench
Syed Muhammad Rafiq Shah vs State Of Jk & Ors on 18 February, 2021
Serial No. 101 (xxiv)
Admission Cause List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
WP(C) No.2976/2019
Dated: 18th of February, 2021.
Syed Muhammad Rafiq Shah
..... Petitioner(s)
Through: -
Mr S. R. Khawar, Advocate.
V/s
State of JK & Ors.
..... Respondent(s)
Through: -
Mr B. A. Dar, Sr. AAG.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
Hon'ble Mr Justice Vinod Chatterji Koul, Judge
(JUDGMENT)
{Per Magrey; J (Oral)}:
01. Through the medium of the instant petition, the petitioner has
craved the indulgence of this Court in granting him the following relief(s):
i. By a Writ of Certiorari, any other/Eviction notice passed by the respondents
may be quashed.
ii. By a Writ of Prohibition, the respondents may be restrained from evicting
the petitioner from the allotted accommodation Set No.M4 Tanki Block,
Tulsi Bagh, Srinagar.
iii. By a Writ of Mandamus respondents may be commanded to process the case
of the Petitioner for appropriate/ Z security category with the further
direction to respondents to extend the allotment order regarding flat No. M-
4, Tanki Block Tulsi Bagh, Srinagar.
iv. Any other relief which this Hon'ble Court may deem fit and proper in the
circumstances of the case may also be granted in favour of the petitioner.
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02. Objections stand filed on behalf of the respondents, resisting and
controverting the averments made by the petitioner in his petition.
03. We heard learned counsel for the parties, perused the pleadings
on record and have considered the matter.
04. At the very outset, we wish to observe that it is unfortunate that
some former Ministers/ Legislators/ Retired Officers/ Politicians/ Political
persons, etc., have illegally/ unauthorizedly managed to continue to stay in
the residential accommodation provided to them by the Government of
Jammu and Kashmir, though they are no longer entitled to such
accommodation. Many of such persons continue to occupy residential
accommodation commensurate with the office(s) held by them earlier and
which are beyond their present entitlement. The unauthorized occupants must
realize that rights and duties go correlative to each other, inasmuch as the
rights of one person entail the duties of another person, whereas, the duties of
one person entail the rights of another person. In this context, the unauthorized
occupants must appreciate that their act of overstaying in the premise directly
infringes the right of another. No law or direction can entirely control this act
of disobedience, but for self-realization among the unauthorized occupants.
05. Apart from the above perspective, it, needs, must be said that the
natural resources, public lands and the public goods, like Government
bungalows/ official residence are public property that belong to the people of
the country. The 'Doctrine of Equality', which emerges from the concepts of
justice and fairness must guide the State in the distribution/ allocation of the
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WP(C) No. 2976/2019
same. Any former Minister/ Legislator/ Retired Officer/ Politician/ Political
person, once he/ she demits the office, is on a par with the common citizen,
though by virtue of the office held, he/ she may be entitled to security and
other protocols as per assessment of the concerned filed agency. But allotment
of Government bungalow, to be occupied during the lifetime of such persons,
would not be guided by the constitutional principle of equality.
06. Hon'ble the Supreme Court has also had the occasion, many a
times, to deliberate upon this issue of unauthorized/ illegal occupation of
Government accommodation and, in two leading cases, being (i) 'S. D. Bandi
v. Divisional Traffic Officer, Karnataka: (2013) 12 Supreme Court Cases
631'; and (ii) 'Lok Prahari v. State of Uttar Pradesh & Ors. (2016) 8
Supreme Court Cases 389', it has not only held that such illegal and
unauthorized occupation is bad in law, but has also directed the authorities
concerned to recover appropriate rent from the occupants of the said
government accommodation for the period during which they were in
unauthorized occupation of the said accommodation.
07. Viewed in the above context, the legal position is quite clearly
uncomplicated qua the allotment of Government quarter/ accommodation to
a public servant. The petitioner, in the instant case, is in possession and
occupation of the premises in question for years now on the interim order of
this Court obtained by him on 14th of October, 2019, which makes it manifest
that the eviction proceedings have been hijacked for years by the unauthorized
occupant/ petitioner herein. The status quo order obtained by the petitioner
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WP(C) No. 2976/2019
cannot be allowed to run till eternity, thereby prejudicing the interests and
rights of those who are waiting in queue having earned a right for allotment
of such Government accommodation.
08. The other issue that requires consideration of this Court is
whether in denying the continuous possession/ occupation of the Government
accommodation in question to the petitioner, any of the rights of the petitioner
stands violated, thus, warranting issuance of a 'Writ of Mandamus' from this
Court, as sought in this petition. 'Mandamus' literally means a command. The
essence of 'Mandamus' is that it is a command issued for directing
performance of a public legal duty. A 'Writ of Mandamus' is issued in favour
of a person who establishes a legal right in himself. A 'Writ of Mandamus' is
issued against a person who has a legal duty to perform, but has failed and/ or
neglected to do so. Such a legal duty emanates from either in discharge of a
public duty or by operation of law. The 'Writ of Mandamus' is of a most
extensive remedial nature. The object of mandamus is to prevent disorder
from a failure of justice and is required to be granted in all cases where law
has established no specific remedy and whether justice, despite demanded,
has not been granted.
09. Law on the subject is no more res integra. Hon'ble the Supreme
Court, while dealing with the scope of mandamus, in case titled 'State of
Kerela V. Smt. A. Lakshmikutty & Ors.', reported as '(1986) 4 Supreme
Court Cases 632', the Apex Court of the country, at paragraph No.34, has
observed as under:
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"34. We must refer to the case of Mani Subrat Jain v. State of
Haryana & Ors., (supra) which was relied upon by learned counsel for the
State Government. It is well-settled that a writ of mandamus is not a writ of
course or a writ of right, but is, as a rule, discretionary. There must be a
judicially enforceable right for the enforcement of which a mandamus will
lie. The legal right to enforce the performance of a duty must be in the
applicant himself. In general, there- fore, the Court will only enforce the
performance of statu- tory duties by public bodies on application of a person
who can show that he has himself a legal right to insist on such
performance. Applying the principles stated in Halsbury's Laws of England,
4th edn., vol. 1, paragarph 122, this Court observed that a person whose
name had been recommended for appointment as a District Judge by the
High Court under Art. 233(1) had no legal right to the post, nor was the
Governor bound to act on the advice of the High Court and therefore he
could not ask for a mandamus. It was observed:
"It is elementary though it is to be restated that no one
can ask for a mandamus without a legal right.
The initial appointment of District Judges
under Article 233 is within the exclusive jurisdiction of the
Government after consultation with the High Court. The
Governor is not bound to act on the advice of the High Court.
The High Court recommends the names of persons for
appointment. If the names are recommended by the High
Court it is not obligatory on the Governor to accept the
recommendation.
The consultation of the Governor with the High Court
does not mean that the Governor must accept whatever advice
of recommendation is given by the High Court. Article 233 re-
quires that the Governor should obtain from the High Court
its views on the merits and demerits of persons selected for
promotion and direct recruitment."
The existence of a right is the foundation of the jurisdiction of a
Court to issue a writ of mandamus. The present trend of judicial opinion
appears to be that in the case of non-selection to a post, no writ of
mandamus lies."
10. Again, in the case of 'State of UP & Ors. V. Harish Chandra &
Ors., reported as '(1996) 9 Supreme Court Cases 309', at paragraph No.10,
has held thus:
"10. Notwithstanding the aforesaid Statutory Rule and without
applying the mind to the aforesaid Rule the High Court relying upon some
earlier decisions of the Court came to hold that the list does not expire after
a period of one year which on the face of it is erroneous. Further question
that arises in this context is whether the High Court was justified in issuing
the mandamus to the appellant to make recruitment of the Writ Petitioners.
Under the Constitution a mandamus can be issued by the Court when the
applicant establishes that he has a legal right to the performance of legal
duty by the party against whom the mandamus is sought and said right was
subsisting on the date of the petition. The duty that may be enjoined by
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mandamus may be one imposed by the Constitution or a Statute or by Rules
or orders having the force of law. But so mandamus can be issued to direct
the Government to refrain from enforcing the provision of law or to do
something which is contrary to law. This being the position and in view of
the Statutory Rules contained in Rule 26 of the Recruitment Rules we really
fail to understand how the High Court could issue the impugned direction
to recruit the respondents who were included in the select list prepared on
4.4.87 and the list no longer survived after one year and the rights, it any,
of persons included in the list did not subsist. In the course of hearing the
learned counsel for the respondents, no doubt have pointed out some
materials which indicate that the Administrative Authorities have made the
appointments from a list beyond the period of one year from its preparation.
The learned counsel appearing for the appellants submitted that in some
cases pursuance to the direction of the Court some appointments have been
made but in some other cases it might have been done by the Appointing
Authority. Even though we are persuaded to accept the submission of the
learned counsel for the respondents that on some occasion appointments
have been made by the Appointing Authority from a select list even after the
expiry of one year from the data of selection but such illegal action of the
Appointing Authority does not confer a right on an applicant to be enforced
by a Court under Article 226 of the Constitution. We have no hesitation in
coming to the conclusion that such appointments by the Appointing
Authority have been made contrary to the provisions of the Statutory Rules
for some unknown reason and we deprecate the practice adopted by the
Appointing Authority in making such appointments contrary to the Statutory
Rules. But at the same time it is difficult for us to sustain the direction given
by the High Court since, admittedly, the life of the select list prepared on
4.4.87 had expired long since and the respondents who claim their rights to
be appointed on the basis of such list did not have a subsisting right on the
date they approached the High Court. We may not be understood to imply
that the High Court must issue such direction, if the writ Petition was filed
before the expiry of the period of one year and the same was disposed of
after the expiry of the statutory period. In view of the aforesaid conclusion
of ours it is not necessary to deal with the question whether the stand of the
State Government that there existed one vacancy in the year 1987 is correct
or not."
From the perusal of the law laid down above, it is crystal clear
that existence of a right is the foundation of the jurisdiction of a Court to issue
a 'Writ of Mandamus'. In the case on hand, the petitioner has not been able to
show as to which of his right has been violated by the respondents in denying
him the continuous possession of the Government accommodation, which can
be directed to be enforced by way of issuing a 'Mandamus' from this Court.
In this context, the irrefutable conclusion which can be drawn is that none of
the rights of the petitioner stand violated by the respondents for which a 'Writ
of Mandamus' can be issued in his favour.
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WP(C) No. 2976/2019
11. For all that has been said and done hereinabove, we are of the
considered view that there is no merit in this petition, which is, accordingly,
dismissed, alongwith the connected CM(s). Interim directions, if any
subsisting as on date, shall stand vacated. As a necessary corollary, the
continuous occupation/ possession of the Government accommodation in
question by the petitioner is held to be bad in law. The petitioner thus, shall,
if still in occupation, hand over the possession of the said Government
accommodation occupied by him within one month from today and the
Government, in turn, shall also recover appropriate rent from the petitioner
for the period during which he was in authorized/ unauthorized occupation of
the same. We, however, make it clear here that insofar as the contention of the
petitioner qua threat perception to the life and liberty of his own self as well
as his family members is concerned, the petitioner shall be at liberty to
approach the competent authority in the Government of Jammu and Kashmir
for seeking redressal of this grievance.
(Vinod Chatterji Koul) (Ali Mohammad Magrey)
Judge Judge
SRINAGAR
February 18th, 2021
"TAHIR"
i. Whether the Judgment is reportable? Yes/ No.
ii. Whether the Judgment is speaking? Yes/ No.
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