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Delhi High CourtIndian Cases

P.K. Handoo vs Estate Officer And Director … on 2 August 2006

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Delhi High Court
P.K. Handoo vs Estate Officer And Director, … on 2 August, 2006
Equivalent citations: 132(2006)DLT672
Author: J.M. Malik
Bench: J.M. Malik

J.M. Malik, J.

Page 2910

1. The petitioner is a Kashmiri Pandit and belongs to the minority community in Kashmir Valley. He was working with Intelligence Bureau Government of India and retired on 31.7.2004. He was allotted government accommodation, D-45 Mandir Marg, Gole Market, New Delhi. The Estate Officer passed the eviction order against him on 30.6.2005. The petitioner has filed the instant writ in the nature of the mandamus with the prayer to quash the eviction order and directions be issued to the respondents to allow the petitioner to retain the above said quarter till the government makes it possible for him to return to Srinagar or till the suitable alternate accommodation is provided to him anywhere in Delhi or till such time the Court deems it fit and appropriate on payment of normal license fee.

2. Petitioner points out that due to extraordinary circumstances he was left with no other alternative but to file the instant writ petition. He has Page 2911 enumerated the following extraordinary circumstances. Due to militancy in Kashmir the people of the minority Kashmiri Pandits were targeted, specially the petitioner, who, was the prime target because he was working in Intelligence Bureau. In addition to that his younger brother was working in RAW. Aunt of the petitioner, Smt. Rani Handoo fell to militants bullets because she had accompanied the wife of the petitioner at Rainawari, Srinagar, Kashmir to retrieve some important papers relating to the service carrier of the petitioner. Again Shri Balkishan Revoo, petitioner’s maternal uncle, became the victim of the blast in a bus in 1993, while he was going to Katra from Jammu. Due to militancy, for safety reasons the members of the community of the petitioner migrated to various parts of the country including Delhi. The state government employees, who had to flee from valley, continue to be in Jammu and have been provided government accommodation at Jammu. Some of the employees posted in Jammu and Kashmir filed writ petition before the High Court of Jammu and Kashmir complaining that they were not provided accommodation by the State Government. Their prayers were rejected by a Single Judge of High Court of Jammu and Kashmir. However, Supreme Court in case J.L. Koul and Ors. v. State of Jammu and Kashmir in SLP No. 7369/1997, stayed the order sine die on 28.1.1998 with directions that till the time the Jammu and Kashmir State gives in writing that the life and property of these petitioners are safe in valley, they should not be evicted from the government accommodation.

3. It is also explained that petitioner can not go back to the Kashmir valley because his life is in danger on account of on going militancy. Most importantly, his own house in Srinagar was burnt/destroyed by the militants and he has no other shelter anywhere in India because of his meager income received as pension. He cannot take alternate private accommodation in Delhi, where he can live with dignity with his family members. The respondents have the power to relax the allotment Rules in respect of any person, as per SR317-B-25 of the Allotment of Government Residences (General Pool in Delhi) Rules 1963.

4. On the other hand the respondents have contested this petition tooth and nail. The key argument urged by the learned Counsel for the respondents was that when another efficacious remedy i.e. the appeal before the Additional Sessions Judge is available, the present writ petition is not maintainable. Secondly the postponment of eviction order can not be kept in abeyance as many people have retired and the respondents are not supposed to accommodate the petitioner for all times to come. Again, there is no such provision in the Act. The above said judgment by the Apex Court pertains to Jammu and Kashmir and in respect of eviction order passed by the Estate Officer of that State. Last but not the least, the State of Jammu and Kashmir should have been arrayed as a party to the present writ as it is a necessary party.

5. After mulling over the facts and circumstances detailed above, I find that arguments urged by the learned Counsel for the respondents go wide of the mark. It is now well settled that under extraordinary circumstances writ is maintainable. All those extraordinary circumstances have been explained in the writ. Secondly, it is averred that on the one hand the Apex Court Page 2912 stayed the eviction order as detailed above, on the other hand the learned A.D.J. had upheld the eviction order.

6. Secondly, the petitioner has placed on record order passed by the Apex Court in case J.L. Koul v. State of Jammu & Kashmir which is reproduced as hereunder:

This order is being made in the backdrop of massacre which took place a couple of days ago in the Kashmir valley.
Adjourned sine die. Stay to continue. The petition to be activated on mentioning by counsel for the state of Jammu and Kashmir as and when state is in a position to assure return of the petitioners to their respective homes in the Kashmir Valley and ensure their safety and personal property.
7. It is not out of place to mention here that the petitioner has filed on the record the copy of the petition in SLP No. 7369/1997, in the above mentioned case of J.L. Koul v. State of Jammu and Kashmir. Para 6 of the petition mentions that the Single Bench of the Jammu and Kashmir High Court had given certain directions. The relevant direction is reproduced as under:

That all those persons who have ceased to be Government servants for any reason, shall be evicted from the houses allotted to them as Government servants immediately. This direction shall not, however, apply to persons whose eviction has been stayed by High Court in any proceedings.
Again it is further averred:
Para 27, That the petitioners problem is very serious. They can not return to the valley with their families and they can not survive after retirement without accommodation. The abnormal conditions in the Kashmir valley compelled the State Government to declare them as migrants after their retirement. This declaration has been made after due consideration and after taking note of the relevant factors surrounding the petitioners and having regard to the fear of gun in the Kashmir valley.
Para 33 (I), “Because the learned Single Judge has lost sight of the fact that the Petitioners who are retired Government employees and belong to the Kashmir Pandit communities and are migrants cannot go back to the valley in the abnormal conditions prevailing there and had to be provided some shelter at Jammu and without doing so or without considering the case by the authorities cannot be ordered to be evicted.
8. Lastly, the Apex Court in a case reported in State of H.P. and Ors. v. Gujrat Ambuja Cement Limited made the following observations.

Constitution Benches of this Court in K.S. Rashid and Sons v. Income Tax Investigation Commission and Ors. , Sangram Singh v. Election Tribunal, Kotah and Ors. , Union of India v. T.R. Varma , State of U.P. and Ors. v. Mohammad Nooh Page 2913 AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras held that Article 226 of the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted.

All these facts and circumstances clearly go to show that due to extraordinary circumstances the instant writ is maintainable, despite the fact that another efficacious remedy is available.

9. I see no force in the argument that the above said judgment pertains to Jammu and Kashmir and the people residing in Delhi can not derive any benefit from the above said judgment or the State Jammu and Kashmir is a necessary party. The Central Administrative Tribunal in case Tej Kishan v. Union of India and Ors. 2378/2002 decided on 30.12.2002, the copy of which has been placed on record by the learned Counsel for the petitioner, pointed out:

By referring to the letter dated 2.7.2002 written to the DDA by the Ministry of Urban Development and Poverty Alleviation, it is stated that this has been decided as under:
But the situation prevailing in J&K is such that does not permit the safe return of these Retired/Retiring Central Government Employees who can settle after retirement at their native place. Keeping this background in view, a decision has been taken to allot about 100 MIG and LIG Flats in Dwarka to such Retired/retiring J&K migrant Central Government employees so that the General Pool Accommodation could be got vacated from them. DDA is, therefore, requested to formulate a Housing Scheme for Retired/Retiring J&K migrant Central Government Employees and send a draft thereof to this Ministry within a fornight for approval
10. The Central Administrative Tribunal has also referred to a number of authorities regarding Article 14 and held that State shall not by its act discriminate as between two individuals who are similarly circumstanced.

11. The argument submitted by the learned Counsel for the respondents is typically gauche. It lacks sensitivity. Kashmir has never ceased to a hub of terrorist activity which is mainly directed against the Hindu Pandits. The violence in the State is at its peak. Due to the obstinacy of terrorists and helplessness of the government to counter terror, the situation could not improve. Indian Constitution applies to all the citizens of India. Equal protection means the right to equal treatment in similar circumstances. There should be no discrimination between one person and another if as regards the subject matter of the legislation their position is the same. It is settled law that a judicial or quasi judicial decision can not offend Article 14.

12. In the result, I allow the writ petition in terms of the order passed by the Apex Court in the case of J.L. Koul v. State of Jammu and Kashmir (supra). Page 2914 Respondents are directed to allow the petitioner to retain quarter No. D-845 Mandir Marg, New Delhi pending decision in SLP(Civil ) 7369-97 subject to payment of normal license fees or in the alternative the respondents may provide alternative accommodation to the petitioner and his family anywhere in Delhi till the pendency of the above said writ petition before the Hon’ble Supreme Court. No costs.