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Supreme Court of India
Union Of India Through Director Of … vs Onkar Nath Dhar (Omkar Nath Dhar) … on 7 October, 2021Author: Hemant Gupta
Bench: Hemant Gupta, V. Ramasubramanian
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
MISCELLANEOUS APPLICATION NO. 1468 OF 2021
IN
CIVIL APPEAL NO. 6619 OF 2014
UNION OF INDIA & ANR. …..APPELLANT(S)
VERSUS
OMKAR NATH DHAR (D) THROUGH L.Rs. …..RESPONDENT(S)
WITH
MISCELLANEOUS APPLICATION NO. 1556 OF 2021
IN
CIVIL APPEAL NO. 6619 OF 2014
AND
MISCELLANEOUS APPLICATION NO. 1573 OF 2021
IN
CIVIL APPEAL NO. 6619 OF 2014
ORDER
HEMANT GUPTA, J.
1. This order shall be read with in continuation of order dated
Signature Not Verified
5.8.2021 and shall dispose of the three applications filed by the
Digitally signed by R
Natarajan
Date: 2021.10.07
occupants of the Government accommodation in Delhi and in
18:20:09 IST
Reason:
National Capital Region on the strength of an order passed by the
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Delhi High Court in a judgment reported as Union of India v.
Vijay Mam1, including an application filed by the legal heir of the
deceased respondent Omkar Nath Dhar for recall of judgment of
this Court passed on 5.8.2021.
2. In M.A. No. 1468 of 2021, recall is sought on the basis that the
respondent had died on 16.3.2020 and this Court had passed an
order without seeking substitution of the legal representatives of
the deceased respondent.
3. All these applications are filed by the applicants who are in
possession of government accommodation in Delhi and/or National
Capital Region in terms of policy framed by the Central
Government on 28.3.2017 as modified on 19.5.2017.
4. In Vijay Mam, there was a direction that the Central Government
was to frame a rehabilitation scheme specifically for such retired
employees like the respondents herein, specifying the terms and
conditions on which such persons would be entitled to
rehabilitate/alternate residence, which may include the term that
these respondents or family members do not have any residence in
any part of the country. The Office Memorandum is the policy
circulated on 28.3.2017 in pursuance of the directions of the High
Court of Delhi. The relevant extract from the Office Memorandum
reads thus:
1 2012 SCC On Line Del 3218
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“
OFFICE MEMORANDUM
Subject: Scheme for providing alternate accommodation etc.
to retired Central Govt. employees belonging to the State of
Jammu & Kashmir holding General Pool residential
accommodation in Delhi in terms of the direction of Hon’ble
High Court of Delhi.
xx xx xx
4.In view of direction of the Hon’ble High Court of Delhi, a
scheme has now been formulated by Ministry of Urban
Development, in consultation with Ministry of Home Affairs,
for providing alternate residence to retired Central Govt.
employees belonging to State of Jammu & Kashmir who are
possessing General Pool Residential Accommodation (GPRA)
in Delhi and who meet the specified terms and conditions to
qualify as “Kashmiri migrant”. The Scheme is enclosed at
Annexure.
xx xx xx
Annexure
Scheme for· providing alternate accommodation etc. to
retired central Govt. employees belonging to the State of
J&K holding General Pool residential accommodation in Delhi
in terms of the direction of Hon’ble High Court of Delhi
1. Terms and conditions for qualifying 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 . 9f the Central Government
and was posted in Srinagar, J&K at the relevant time, and he
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was transferred by the Central Government from Srinagar to
Delhi on security ground after 1st November, 1989.
(iv) He/She’or his/l1er 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 condition are still
not favourable for his/her safe return back to the valley.
2. Scheme
i). The retired Kashmiri migrants (who were litigants in the
cases decided by Hon’ble Delhi High Court) holding
residential accommodation from General Pool shall be
provided retention in the quarters in their possession at
present.
ii) Such retired Kashmiri migrants, who meet the specified
terms and conditions to qualify as a ‘Kashmiri migrant’
would be accommodated in Delhi for first five years starting
from the date of their retirement and thereafter be shifted to
NCR. The scheme would apply to those retired Central. Govt.
employees belonging to State of J&K who have been
transferred by the Central Govt from Srinagar to Delhi on
security grounds after 1st November, 1989.
iii) The quarters may be held by the retired government
employees till his/her demise or demise of his/her spouse
whichever event takes place later, subject to extension of
this scheme and the condition that the retired government
employee/spouse doesn’t procure a house in any part of
India subsequent to their availing of this scheme. Extension
of this scheme will be granted at par with the extension of
the scheme of retention of GPRA at the last place of posting
to civilian Central Govt. Employees posted to the State of
J&K.
iv) The incumbent or his/her spouse, as the case, may be,
will have to submit a life certificate once a year (in
November) to the Directorate of Estates in the proforma
prescribed for Pensioners for the purpose of availing benefits
of the Rehabilitation Scheme for Kashmiri migrants.
3.Documentary Proof to be submitted for examining the
request on case to case basis.
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When a claim is received for consideration for providing
alternative residence under the direction of the Hon’ble High
Court , the claimant must provide adequate· documentary
proof in support of his claim that his/her case falls within the
parameters of those retired Kashmiri migrants who were
granted relief by the Hon’ble Court as set out in .para 30 of
the judgment. Following documents may be collected from
them;-
a) Proof of posting in Srinagar, Jammu & Kashmir in Central
Govt. office· during relevant period (documentary proof
issued by the employer)
b) Proof of transfer from Srinagar to Delhi during the
relevant period, i.e. after 1st November,1989 (copy of
transfer order/letter)
c) Proof that he/she or his/her family have no other
residence. in any part of the country. (copy of service book
to ascertain if he has taken HBA from the Government)
d) A life certificate from the incumbent/spouse, as the case
may be, once per year (in November) in the proforma
prescribed for the Pensioners for the purpose of availing
benefits of Rehabilitation Scheme for Kashmiri migrants.
4. The claim with the documentary proofs received from
such retired Kashmiri migrants may be processed in the
Allotment Section on case-to-case basis and their
entitlement to an alternative. residence be decided in the
light of the specified terms and conditions and the
documentary proof produced by them. Alternative residence
should be provided only after it is established from
documentary proof that they fulfill the specified terms and
conditions: Those who d9 not meet these conditions may be
asked to vacate the quarters as per the provisions of Public
Premises (Eviction of Unauthorised Occupants) Act, 1971′.
Damage charges may also be made applicable on them for
retaining the quarters beyond the permissible period.”
5. Clause 2(i) of the Scheme was restricted to grant of benefits to
retired Kashmiri Migrants who were litigants in the cases decided
by the High Court of Delhi holding residential accommodation from
the General Pool. However, such conditions were modified on
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19.5.2017 to clarify that the Office Memorandum dated 28.3.2017
is applicable equally to all retired Central Government employees
belonging to the State of Jammu & Kashmir who are holding
General Pool residential accommodation in Delhi, irrespective of
whether they were litigants before the Delhi High Court.
6. Mr. Bimal Roy Jad, learned senior counsel appeared for the
applicants in M.A. Nos. 1556 of 2021 and 1573 of 2021 and
vehemently argued that this Court on 5.8.2021 held that the
directions issued in J.L. Koul were under Article 142 of the
Constitution of India but in fact, the directions were not issued
under Article 142 of the Constitution of India but while deciding the
rights of the Kashmiri Migrants to residential accommodation. It
was further argued that the Kashmiri Migrants form a different
class as victims of terrorism, therefore, the same were dealt with
while keeping in view peculiar hardships faced by them. Since,
neither the transit accommodation is available for them nor they
can go to their houses which stand either occupied by the local
population or destroyed, therefore, the Kashmiri Migrants have
been treated as a class apart, particularly the applicants who were
working in the critical intelligence offices. Thus, in light of such
background, the Scheme was framed.
7. It was argued that 31 Kashmiri Migrants were given protection in
J.L. Koul, therefore, similar protection was accorded by the High
Court of Delhi to the 54 Kashmiri Migrants. As per written
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submissions filed by the appellants, 80 Kashmiri Migrants are in
possession of Government accommodation in Delhi and 3 in
Faridabad.
8. To a question put to Mr. Jad, it was admitted by him that some of
the migrants have retired many years ago but some might have
retired in 2016, 2017 and 2018 as well. Learned counsel argued
that since the Scheme provides a humanitarian approach to the
problems faced by the Kashmiri Migrants, therefore, the order
passed by this Court needs to be recalled. It was argued that the
judgments referred to by this Court such as Lok Prahari, S.D.
Bandi and Shiv Sagar Tiwari arise in different circumstances and
are not applicable to the displaced Kashmiri Migrants.
9. Mr. Jad submitted that 31 retirees are still in occupation of
Government accommodation, therefore, the same benefit should
be granted to the other occupants in Delhi and/or National Capital
Region. It was also submitted that the judgments referred to by
this Court in Lok Prahari were in respect of prominent public
figures such as Chief Ministers, therefore, such directions in the
aforesaid referred cases would not be applicable to the present
applicants who are victims of terrorism.
10. On the other hand, Ms. Madhavi Divan, learned Additional Solicitor
General of India pointed out that the Government has given
various benefits to Kashmiri Migrants including grant of financial
assistance, financial package for repairs and renovation of the
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houses, jobs, ration etc. It was also argued that with the
abrogation of Article 370 from the Constitution of India, the
Kashmiri Migrants have started moving back to the Kashmir Valley.
Reference was made to the statement of Hon’ble Minister of State
in the Ministry of Home Affairs on the floor of the House on 17 th
March 2021 that nearly 3800 persons have returned back to the
Kashmir Valley in the last few years to take up the PM package
jobs. 520 migrants have returned to Kashmir for taking up the jobs
that have been provided to them under the Rehabilitation Package
post abrogation of Article 370. Another nearly 2000 migrants are
also likely to return under the same policy in the year 2021 on
successful completion of the selection process. The Parliament was
also informed that Government has devised policies for Return and
Rehabilitation of Kashmiri Migrants under the Prime Minister’s
Packages in the year 2008 and 2015. The various components of
the policies included assistance at the rate of Rs. 7.5 lacs for
repairing fully or partially damaged house; Rs. 2 lacs for
dilapidated/ unused house and Rs. 7.5 lacs for
purchase/construction of a house in group housing societies for
those who sold their properties during the period after 1989 and
before the enactment of JK Migrant Immovable Property
Preservation, Protection and Restraint of Distress Sale 1997. Cash
relief is also being provided which has been raised to Rs. 13,000/-
per family at the rate of Rs. 3250/- per person. 6,000 posts were
announced under PM Packages and nearly 3,800 Kashmiri Migrants
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have been rehabilitated directly by providing government
employment. In respect of transit accommodation, it was stated as
under:
“In order to provide accommodation to the 6,000 Kashmiri
Migrants who are getting employed in the Government of
Jammu and Kashmir in the valley, 6,000 Transit
Accommodation units are being constructed for Kashmiri
Migrants Employees in various districts of Kashmir Valley
at an estimated cost of Rs.920 Cr. So far, 1,025 dwelling
units have already been constructed which include 721
dwelling units in the district of Budgam, Kulgam, Kupwara,
Anantnag and Pulwama. Another 1,488 units are under
construction and land has been identified for about 2444
units.”
11. We do not find that any modification is required to the order dated
5.8.2021. In J.L. Koul, an affidavit of Chief Secretary of the State
was filed disclosing that out of 54 appellant/Migrants, 23 had
already vacated Government accommodation whereas 31 Migrants
were still occupying the Government accommodation. The
appellants were allotted residential accommodation at Jammu in
the year 1989-1990 being Government servants. The writ petitions
were filed before the High Court in the year 1995 which were
decided by the learned Single Bench. Aggrieved against the
directions issued by the learned Single Bench of the High Court, the
occupants filed intra-court appeal before the High Court which was
dismissed. Still further, appeal was filed before this Court.
12. This Court noticed that during the period of 12 years when the
matter remained pending, directions were issued to prepare a
Rehabilitation Scheme which was ultimately prepared and placed
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on record by the Chief Secretary of the State. Accepting the
Scheme, it was held that no further action/direction was required.
However, the appeal was disposed of “with a pious hope that the
State shall take all endeavours to rehabilitate the persons who
have been victim of terrorism and till the State is able to
rehabilitate and provide the appropriate accommodation to 31
appellant retirees/oustees, they shall continue to possess the
accommodations which are in their respective possession on this
date.”
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
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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.
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
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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.
17. In Para 2(ii) of the Scheme, Kashmiri Pandits were to be
accommodated in Delhi for first five years starting from the date of
their retirement and thereafter be shifted to National Capital
Region. Thus, we find it reasonable if Kashmiri Migrants are
allowed government accommodation for a period of three years
from the date of retirement so as to make alternative
arrangements within such period. If an alternative accommodation
is not available for them at their instance, they are at liberty to
move to the transit accommodation or to avail cash amount in lieu
of transit accommodation. Thus, a government employee who is a
Kashmiri Migrant would not be entitled to retain Government
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accommodation for a period exceeding three years, may be in
Delhi or in the National Capital Region or for that matter anywhere
in the country.
18. The three-years period can also be considered as cooling off period
for the officers who were in active intelligence work so that they
can resume normal life but the excuse of once working for
intelligence agency is not a valid ground to occupy the Government
accommodation for indefinite period.
19. In view thereof, we do not find any merit in the present
applications. The same are dismissed. However, time granted to
Omkar Nath Dhar, since deceased, to vacate the premises is
extended upto 30.11.2021. The action taken report by the Union
shall be filed on or before 15.12.2021. The liberty is given to the
Union to file an application for modification of the order in respect
of the 31 retirees as well who are covered by the judgment in J.L.
Koul.
………………………………………J.
(HEMANT GUPTA)
………………………………………J.
(A.S. BOPANNA)
NEW DELHI;
OCTOBER 7, 2021.
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