Jammu & Kashmir High Court - Srinagar Bench

Dated: 9Th Of March vs Union Territory Of Jk & Ors on 9 March, 2021

                                                                                           Serial No.467
                                                                                        Supplementary-II List

                               HIGH COURT OF JAMMU AND KASHMIR
                                         AT SRINAGAR
                                                                               WP(C) No.319/2020
                                                                                 CM No.582/2020

                                                                        Dated: 9th of March, 2021.
           Kafil-Ur-Rehman & Ors.

                                                                                    ..... Petitioner(s)
                                                  Through: -
                                      Mr M. Y. Bhat, Senior Advocate with
                                         Mr Hamza Prince, Advocate.

                                                        V/s

           Union Territory of JK & Ors.
                                                                                  ..... Respondent(s)

Through: -

Mr B. A. Dar, Sr. AAG.

CORAM:

Hon'ble Mr Justice Ali Mohammad Magrey, Judge (JUDGMENT)

01. Through the medium of the instant petition, the petitioners have

craved the indulgence of this Court in granting them the following relief(s):

i. That by issuance of writ of certiorari impugned Eviction Notice No.LA 309-

11/EO/2020, Eviction Notice No. LA 291-93/EO/2020, Eviction Notice No. LA 294-96/EO/2020 all dated 05.02.2020.

ii. That respondents by issuance of writ of prohibition be directed not to disturb the peaceful possession of the petitioners and their family over Set Nos. 328, 319 and 225 at Legislators Hostel, MA Road, Srinagar.

iii. That by issuance of writ of mandamus respondents be directed to allow the petitioners to occupy the present accommodation which they are in possession for last more than two decades in MLA Hostel, MA Road, Srinagar and respondents be also directed to provide adequate security to the petitioners.

iv. That the respondents be also directed to frame a fair and transparent policy with regard to providing of security to the person having threat perception and implement the same in letter and spirit.

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v. Any other Writ, order or direction which this Hon'ble Court may deem fit in the circumstances of the case may also be passed in favour of the petitioners and against the respondents in the interest of justice and equity."

02. Objections stand filed on behalf of the respondents, resisting and

controverting the averments made by the petitioners in their petition.

03. Heard the learned counsel for the parties, perused the pleadings

on record and have considered the matter.

04. At the very outset, it is noticed that it is very 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 TAHIR MANZOOR BHAT 2021.03.09 17:35 I attest to the accuracy and integrity of this document

WP(C) No.319/2020 CM No.582/2020

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

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 petitioners, in the instant case, are in possession and

occupation of the premises in question on the interim order of this Court

obtained by them on 11th of February, 2020, which makes it manifest that the

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eviction proceedings have been hijacked by the unauthorized occupants/

petitioners herein. The stay order obtained by the petitioners 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 petitioners, any of the rights of the

petitioners 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

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Kerela V. Smt. A. Lakshmikutty & Ors.; (1986) 4 Supreme Court Cases

632', at Paragraph No.34, has observed as under:

"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.; (1996) 9 Supreme Court Cases 309', at Paragraph No.10, the Apex

Court 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 TAHIR MANZOOR BHAT 2021.03.09 17:35 I attest to the accuracy and integrity of this document

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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 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 petitioners have not been able

to show as to which of their right has been violated by the respondents in

denying them the continuous possession of the Government accommodation,

which can be directed to be enforced by way of issuing a 'Mandamus' from TAHIR MANZOOR BHAT 2021.03.09 17:35 I attest to the accuracy and integrity of this document

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this Court. In this context, the irrefutable conclusion which can be drawn is

that none of the rights of the petitioners stand violated by the respondents for

which a 'Writ of Mandamus' can be issued in their favour.

11. For all that has been said and done hereinabove, I am of the

considered view that there is no merit in this petition, which is, accordingly,

dismissed, alongwith the connected CM(s). Interim direction(s), 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 petitioners is held to be bad in law. The petitioners thus, shall,

if still in occupation, hand over the possession of the said Government

accommodation occupied by them within one month from today and the

Government, in turn, shall also recover appropriate rent from the petitioners

for the period during which they were in authorized/ unauthorized occupation

of the same. It is, however, made clear here that insofar as the contention of

the petitioners qua threat perception to the life and liberty of their own self as