Supreme Court of India
Union Of India vs Onkar Nath Dhar on 5 August, 2021Author: Hemant Gupta

Bench: A Bopanna, H Gupta










1. The order passed by the learned Division Bench of the High Court of

Punjab & Haryana on 07.07.2011 is the subject matter of challenge in

the present appeal. The learned Single Bench has allowed the writ peti-

tion of a Kashmiri migrant, the respondent1 who shifted to Jammu in

the year 1989 or so. He was transferred to the office of the Intelligence

Bureau in Delhi. Later he was transferred to Faridabad where he has

been allotted a government accommodation. The respondent attained
Signature Not Verified

Digitally signed by R
the age of superannuation from service on 31.10.2006.
Date: 2021.08.11
17:06:37 IST

1 Onkar Nath Dhar, in short ‘Dhar’

2. The respondent gave representation to the appellant to allow him to

retain the government accommodation, which was allowed and Dhar

was allowed to retain house for another one year. Dhar submitted an-

other representation on 18.6.2007 to allow him to retain house allotted

to him on a nominal licence fee till the circumstances prevailing in

Jammu & Kashmir improve and the Government makes it possible for

him to return to his native place.

3. Dhar was served with a notice under the Public Premises (Eviction of

Unauthorised Occupant) Act, 19712. An order for eviction against Dhar

was passed but was stayed by the learned Additional District Judge,

Delhi. An objection was raised of territorial jurisdiction of the Delhi

Court. Dhar withdrew his appeal and filed it in the Court of learned Ad-

ditional District Judge, Faridabad which was dismissed on 19.08.2009.

Such orders were the subject matter of challenge before the learned

High Court of Punjab & Haryana in the civil writ petition, which was al-

lowed on 24.10.2010.

4. The learned Single Bench relied upon an order passed by this Court in

J.L. Koul v. State of J & K3. It was held, that it is not possible for Dhar

to return to his own State and that due to which order of eviction shall

be kept in abeyance, although the appellants are at liberty to provide

alternative accommodation to Dhar on nominal licence fee in Farid-

2 For short, the ‘Act’
3 (2010) 1 SCC 371

abad. The same was affirmed by the learned Division Bench of High

Court of Punjab & Haryana.

5. J.L. Koul was a case arising out of residential accommodation allotted

to the appellant who was a government servant at Jammu in the year

1989-90. The appellant therein was permitted to retain the house allot-

ted at Jammu for safety reasons. In terms of the interim order passed

by the Court, the Chief Secretary of the State had filed an affidavit on

06.10.2009 and disclosed that out of 54 appellants who were in Court,

23 had already vacated government accommodation and the same

had been allotted to the government employees whereas 31 migrants

are still occupying the government accommodation. 37,280 families

have been registered for the relief including the accommodation and

only 5,000 families have been provided with the accommodation. The

affidavit stipulates providing transit accommodation and alternatively

Rupees One Lakh per family towards rental and incidental expenses to

those who were not able to be accommodated in the transit accommo-

dation. The relevant clause is as under:

“(b) Transit Accommodation: Construction of transit ac-
commodation at three sites @ Rs.20.00 crore each for total
Rs. 60.00 crore. Alternatively, Rs. 1.00 lac per family to-
wards rental and incidental expenses to those families who
may not be accommodated in transit accommodation.”

6. This Court passed an order in J.L. Koul that no further action is re-

quired, wherein it was held as under:

“8. The aforesaid affidavit makes it clear that the State
Authorities have framed the rehabilitation scheme and for
implementation of the same, it got the resources also. In
such a fact situation no further action/direction is required.

9. In view of the above affidavit/undertaking given by
the State and after hearing Mrs. Purnima Bhat Kak, Ld.
Counsel for the appellants and Mr. Anis Suhrawardy, Ld.
Counsel for the State, we dispose of the appeal with a pious
hope that 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 accom-
modation to 31 appellants-retirees/oustees, they shall con-
tinue to possess the accommodations which are in their re-
spective possession on this date.”

7. Learned counsel for the appellant refers to the judgment of this Court

reported as Lok Prahari (I) v. State of Uttar Pradesh & Ors.4

wherein the executive instructions termed as Ex-Chief Ministers Resi-

dence Allotment Rules, 1997 were found to be illegal and Lok Prahari

(II) v. State of Uttar Pradesh & Ors. 5 wherein an Act enacted by the

Uttar Pradesh Government regularising the allotment of the Govern-

ment houses to the Ex-Chief Ministers was set aside. Reference was

also made to judgments of this Court reported as S.D. Bandi v. Divi-

sional Traffic Officer, Karnataka State Road Transport Corpora-

tion & Ors.6 and Shiv Sagar Tiwari v. Union of India & Ors.7

8. Mr. Handoo, the learned counsel for the respondent referred to a judg-

ment by learned Division Bench of High Court of Delhi reported as

4 (2016) 8 SCC 389
5 (2018) 6 SCC 1
6 (2013) 12 SCC 631
7 (1997) 1 SCC 444

Union of India & Ors. v. Vijay Mam8. The order of the learned Sin-

gle Bench which was the subject matter of appeal in which it was inter

alia ordered that Union shall provide alternative accommodation to the

petitioner and his or her family anywhere in Delhi but can be even in

NCR region, subject to payment of normal license fee. The learned Di-

vision Bench was hearing appeals of Union directed against 24 occu-

pants including one, a former Director-General of Border Security

Force. The Court referred to Section 2(1)(d) of the Protection of Human

Rights Act, 1993 as the rights relating to life, liberty, equality and dig-

nity of the individual guaranteed by the Constitution or embodied in

the International Covenants and enforceable by Courts in India. Refer-

ence was made to the report of May, 2008 prepared by UN Committee

on Economic, Social and Cultural Rights, inter alia, reporting that na-

tional authorities have the primary duty and responsibility to provide

protection and humanitarian assistance to internally displaced persons

within their jurisdiction. Principle 7, inter alia, provides that the author-

ities shall ensure that proper accommodation is provided to displaced

persons. The Court also referred to the judgment in J.L. Koul as a

binding precedent. The learned Delhi High Court, inter alia, held as un-

“16. No doubt the matter raises certain fundamental is-
sues. It is a mix of constitutional rights of the respondents
on the one hand and the right of the Government to claim
back the possession of the accommodation after their re-
tirement. It is also necessary to make a preliminary remark

8 2012 SCC OnLine Del 3218

that the issue has arisen in exceptional circumstances and
exceptional circumstances call for exceptional remedies.
The underlined objective has to be to dispense justice, of
course, justice in accordance with law, but at the same time
justice pragmatic with mercy and compassion, wherever it
is possible within the parameters of law and without doing
violence to the legal principles.

17. The simplistic overtures, as perceived by the appel-
lants taking it to be simple cases under PP Act, has to be
denounced. The Court cannot countenance trivialization of
the issue as sought to be projected. This matter definitely
has strong hue of human rights. The approach of learned
Single Judge in examining the matter from that angle is
definitely reasonable, just and proper. The said approach is
adopted with the purpose of doing justice in the broader
sense of the matter keeping aside the narrow and pedantic
approach. Situations may arise when, to do complete jus-
tice in the matter, courts have to ignore the technicalities of

xxx xxx xxx

31. We also make it clear that the Central Government
would be free to frame a rehabilitation scheme specifically
for such retired employees like the respondents and in such
a scheme, it can specify the terms and conditions on which
such persons would be entitled to rehabilitate/alternate res-
idence, which may include the term that these respondents
or their family members do not have any residence in any
part of the country. It would also be open to the Govern-
ment to specify the nature of accommodation to which such
retired Government servants would be entitled to or the
place where they would be rehabilitated which may not
necessarily be in Delhi but can be even in the NCR region.
After the scheme is framed, the cases of the respondents
can be scrutinized in terms of that scheme and those not
found eligible for rehabilitation in terms thereof can be
ousted from the present accommodation. Subject to our ob-
servations made immediately above, the appeals are
hereby dismissed with costs.”

9. We have heard learned counsel for the parties and find that the orders

of the High Court are unsustainable. In Shiv Sagar Tiwari, the large-

scale allotment of Government houses made out of turn in eleven cate-

gories was examined under the Allotment of Government Residences

(General Pool in Delhi) Rules, 1963. All such categories were of serving

employees who were given out-of-turn allotments. The then Minister of

Urban Development in the Central Government was asked to pay a

sum of Rs.60 lakhs as exemplary damages by order dated 8.11.1996.

The Court examining the argument of right to shelter, held as under:

“3. …May we also observe that life, livelihood and shelter are so
mixed, mingled and fused that it is difficult to separate them. To
take away life, it would be enough to take away livelihood; and
to earn livelihood, which in urban areas is ordinarily at places
away from one’s own home and hearth, shelter would be
necessary — be it a house or even a pavement. This Court has
dealt with cases of pavement-dwellers. The locus classicus
in Olga Tellis [Olga Tellis v. Bombay Municipal Corpn., (1985) 3
SCC 545] and the latest rendering is in Ahmedabad Municipal
Corpn. v. Nawab Khan Gulab Khan [JT (1996) 10 SC 485]. In the
case at hand, we are, however, not concerned with those who
per force occupy pavements near the places of their work. The
primary subject-matter of the present petition is providing of
residential accommodation in quarters built by the Government
for its employees — highly or lowly paid. (Emphasis Supplied)

xxx xxx xxx

40. The star question as to who should face eviction is,
therefore, answered by stating that it would be all those whose
names find place in Categories IV, VI, IX, X, XI and such of
Category VII who had not become actually entitled to in-turn
allotment by the date(s) the respective reports were submitted.
Those IAS, IPS and IFS and other officers who are occupying
General Pool quarters, despite being eligible for quarters in the
Tenure Pool, would also be evicted.

xxx xxx xxx

46. The arbitrary exercise of power by the authorities in a big

way had led almost to the collapse of the whole system of
allotment. There was a crisis-like situation and this Court had to
deal with an extraordinary situation and a special procedure had
to be devised to do justice to all concerned. Natural justice being
a flexible principle and we being concerned with the issue of out-
of-turn allotment in thousands, it was felt by us that a collective
hearing would meet the requirement of natural justice as the
Committee had given individual hearing to those who appeared
before it. This view was taken because the basic question to be
determined was whether the allotment given to an employee
was on out-of-turn basis or not. In case it were to be so, it is
apparent that unless an exception is made, the allottee has no
right to stay, no right to occupy the premises. The hearing given
by us on two occasions brought home eloquently to us that the
out-of-turn allottees, who were notified and had appeared, had
two principal contentions to advance — the same being the plea
not to evict either on the ground of serious illness of one or the
other close relatives, or to include them in the functional
category. Nothing else could have really been pleaded not to
evict them. These two aspects have been adequately borne in
mind by us as would appear from the aforesaid discussion.

xxx xxx xxx

95. Finally, we hope that coming years would not see any scam
or misuse of power in making allotments of government
quarters. The trust which is reposed in this context on high
public functionaries would be discharged, we are sure, only to
advance the object of providing of suitable conditions of work to
government employees so that the Government is run on even
keel; and shelter, which is a very pressing necessity of any
human being, would not come to be denied if the same is
otherwise due to the incumbent. A satisfied bureaucracy is as
much necessary, as good political leadership, to deliver the
goods. The Government of free India have many promises to
keep after its tryst with destiny on the midnight of 14-8-1947.
We have no doubt that all the public functionaries would so act
that the meeting with destiny really sees the dawn of an era of
hope for all.”

10. In S.D. Bandi, the occupation of a government accommodation by the

members of three branches of the State i.e., legislature, executive and

the judiciary beyond the period for which the same was allotted came

up for consideration. This Court, inter-alia, held as under: –
“33.18 Since allotment of Government accommodation is a
privilege given to the Ministers and Members of Parliament,
the matter of unauthorized retention should be intimated to
the Speaker/Chairman of the House and action should be initi-
ated by the House Committee for the breach of the privileges
which a Member/Minister enjoys and the appropriate Commit-
tee should recommend to the Speaker/Chairman for taking ap-
propriate action/eviction within a time bound period.

33.19 Judges of any forum shall vacate the official residence
within a period of one month from the date of
superannuation/retirement. However, after recording sufficient
reason(s), the time may be extended by another one month.

33.20 Henceforth, no memorials should be allowed in future in
any Government houses earmarked for residential accommo-

34. It is unfortunate that the employees, officers, representa-
tives of people and other high dignitaries continue to stay in
the residential accommodation provided by the Government
of India though they are no longer entitled to such accommo-
dation. 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 recollect that rights and du-
ties are correlative as the rights of one person entail the du-
ties of another person similarly the duty of one person entails
the rights of another person. Observing this, the unauthorized
occupants must appreciate that their act of overstaying in the
premise directly infringes the right of another. No law or direc-
tions can entirely control this act of disobedience but for the
self realisation among the unauthorized occupants. The mat-
ter is disposed of with the above terms and no order is re-
quired in I.As for impleadment and intervention.”

11. The Uttar Pradesh Government has framed Ex-Chief Ministers Resi-

dence Allotment Rules, 1997. This Court in Lok Prahari (I) set aside

the allotment of houses to the former Chief Ministers and Ministers to

retain government accommodation even after they demit office. This

Court has approved the judgment in S.D. Bandi’s case, holding as un-


“37. If we look at the position of other constitutional post
holders like Governors, Chief Justices, Union Ministers, and
Speaker, etc. all of these persons hold only one “official
residence” during their tenure. The respondents have contended
that in a federal set-up, like the Union, the State has also power
to provide residential bungalow to the former Chief Minister. The
above submission of the respondent State cannot be accepted
for the reason that the 1981 Act does not make any such
provision and the 1997 Rules, which are only in the nature of
executive instructions and contrary to the provisions of the 1981
Act, cannot be acted upon.

38. Moreover, the position of the Chief Minister and the Cabinet
Ministers of the State cannot stand on a separate footing after
they demit their office. Moreover, no other dignitary, holding
constitutional post is given such a facility. For the aforestated
reasons, the 1997 Rules are not fair, and more so, when the
subject of “salary and allowances” of the Ministers, is governed
by Section 4(2)(a) of the 1981 Act.

xxx xxx xxx

46. So far as allotment of bungalow to private trusts or societies
is concerned, it is not in dispute that all those bungalows were
allotted to the societies/trusts/organisations at the time when
there was no provision with regard to allotment of government
bungalows to them and therefore, in our opinion, the said
allotment cannot be held to be justified. One should remember
here that public property cannot be disposed of in favour of any
one without adequate consideration. Allotment of government
property to someone without adequate market rent, in absence
of any special statutory provision, would also be bad in law
because the State has no right to fritter away government
property in favour of private persons or bodies without adequate
consideration and therefore, all such allotments, which have
been made in absence of any statutory provision cannot be
upheld. If any allotment was not made in accordance with a
statutory provision at the relevant time, it must be discontinued

and must be treated as cancelled and the State shall take
possession of such premises as soon as possible and at the same
time, the State should also recover appropriate rent in respect of
such premises which had been allotted without any statutory
(Emphasis Supplied)

12. In Lok Prahari (II), this Court struck down U.P. Ministers (Salaries, Al-

lowances and Miscellaneous Provisions) Act, 1981 as amended in the

year 2016 consequent to an order passed by this Court in the above-

mentioned proceedings. The Court held as under:

“16. The Preamble to the Constitution of India embodies, inter
alia, the principles of equality and fraternity and it is on the basis
of these principles of equality and fraternity that the Constitution
recognises only one single class of citizens with one singular
voice (vote) in the democratic process subject to provisions
made for backward classes, women, children, SC/ST, minorities,
etc. A special class of citizens, subject to the exception noted
above, is abhorrent to the constitutional ethos.

xxx xxx xxx

36. In the light of the above views, the allocation of
government bungalows to constitutional functionaries
enumerated in Section 4(3) of the 1981 Act after such
functionaries demit public office(s) would be clearly subject to
judicial review on the touchstone of Article 14 of the Constitution
of India. This is particularly so as such bungalows constitute
public property which by itself is scarce and meant for use of
current holders of public offices . The above is manifested by the
institution of Section 4-A in the 1981 Act by the Amendment Act,
1997 (8 of 1997). The questions relating to allocation of such
property, therefore, undoubtedly, are questions of public
character and, therefore, the same would be amenable for being
adjudicated on the touchstone of reasonable classification as
well as arbitrariness.” (Emphasis supplied)

13. In view of the judgments referred above, the Government accommoda-

tion could not have been allotted to a person who had demitted office.

No exception was carved out even in respect of the persons who held

Constitutional posts at one point of time. It was held that the Govern-

ment accommodation is only meant for in-service officers and not for

the retirees or those who have demitted office. Therefore, the view of

the learned Delhi High Court and that of the Punjab & Haryana High

Court is erroneous on the basis of compassion showed to displaced

persons on account of terrorist activities in the State. The compassion

could be shown for accommodating the displaced persons for one or

two months but to allow them to retain the Government accommoda-

tion already allotted or to allot an alternative accommodation that too

with a nominal licence fee defeats the very purpose of the Government

accommodation which is meant for serving officers. The compassion

howsoever genuine does not give a right to a retired person from con-

tinuing to occupy a government accommodation.

14. According to a policy framed by the government, a displaced person is

to be lodged in a transit accommodation and if it is not available then

cash compensation is to be provided. But the displaced persons cannot

occupy government accommodation. If a retired government employee

had no residence, they have an option to avail transit accommodation

or to receive cash compensation in the place of transit accommoda-

tion. The right of shelter is taken care of when alternative Transit ac-

commodation is made available to the migrants to meet out the emer-

gent situation. There is no policy of the Central Government or the

State Government to provide accommodation to displaced persons on

account of terrorism in the State of Jammu & Kashmir. Such directions

of the Delhi High Court and of the Punjab & Haryana High Court is de

hors any policy of allotting accommodation to the migrants under the

guise of the right to shelter which is clearly in excess of jurisdiction

vested with the Courts. The hardship faced by them does not lead to a

corresponding duty of the State to provide them alternative govern-

ment accommodation.

15. It was argued by Mr. Handoo that the right of shelter is a fundamental

right under article 21 of the Indian Constitution. A right to shelter is a

fundamental right, that may not be disputed, but such a right of shel-

ter is granted to millions of Indians who do not have shelter. A section

of society, more so retired government employees, who had earned

pension, drawn retirement benefits cannot be said to be in such condi-

tion, where the government should provide government accommoda-

tion for an unlimited period. The direction to allow a retired govern-

ment servant to retain government accommodation for an indefinite

period, to say the least, is a distribution of state largesse without any

policy of the State. A section of the migrants cannot be treated as

preferential citizens to give them the right to shelter at the cost of mil-

lions of other citizens who do not have a roof over their heads. The

right of shelter to the displaced person is satisfied when accommoda-

tion had been provided in the transit accommodation. Such right of

shelter does not and cannot extend to provide a government accom-


16. J.L. Koul is a case, accepting the rehabilitation scheme framed by the

State authorities based on which appropriate accommodation was pro-

vided to 31 appellants and was given accommodation which was in

their possession. Such direction was in terms of Article 142 of the Con-

stitution. This Court in a judgment reported as Indian Bank v. ABS

Marine Products (P) Ltd.9 held that the High Courts repeatedly fol-

lowed a direction issued under Article 142, by treating it as the law de-

clared by this Court. It was held that the Courts should therefore be

careful to ascertain and follow the ratio decidendi, and not the relief

given on the special facts. This Court held as under:

“26. One word before parting. Many a time, after declaring the
law, this Court in the operative part of the judgment, gives some
directions which may either relax the application of law or
exempt the case on hand from the rigour of the law in view of
the peculiar facts or in view of the uncertainty of law till then, to
do complete justice. While doing so, normally it is not stated that
such direction/order is in exercise of power under Article 142. It
is not uncommon to find that courts have followed not the law
declared, but the exemption/relaxation made while moulding the
relief in exercise of power under Article 142. When the High
Courts repeatedly follow a direction issued under Article 142, by
treating it as the law declared by this Court, incongruously the
exemption/relaxation granted under Article 142 becomes the
law, though at variance with the law declared by this Court. The
courts should therefore be careful to ascertain and follow
the ratio decidendi, and not the relief given on the special facts,

9 (2006) 5 SCC 72

exercising power under Article 142. One solution to avoid such a
situation is for this Court to clarify that a particular direction or
portion of the order is in exercise of power under Article 142. Be
that as it may.”

17. In another judgment reported as Ram Pravesh Singh & Ors. v.

State of Bihar & Ors. 10, it was held that any direction given on spe-

cial facts, in the exercise of jurisdiction under Article 142, is not a bind-

ing precedent. This Court held as under:

“23. The appellant next submitted that this Court, in some
cases, has directed absorption in similar circumstances. Reliance
is placed on the decision in G. Govinda Rajulu v. A.P. State
Construction Corpn. Ltd. [1986 Supp SCC 651 : 1987 SCC (L&S)
71] We extract below the entire judgment: (SCC p. 651, paras 1-

“1. We have carefully considered the matter and after
hearing learned counsel for the parties, we direct that
the employees of the Andhra Pradesh State Construction
Corporation Limited whose services were sought to be
terminated on account of the closure of the Corporation
shall be continued in service on the same terms and
conditions either in the government departments or in
the government corporations.

2. The writ petition is disposed of accordingly. There is
no order as to costs.”

The tenor of the said order, which is not preceded by any
reasons or consideration of any principle, demonstrates that it
was an order made under Article 142 of the Constitution on the
peculiar facts of that case. Law declared by this Court is binding
under Article 141. Any direction given on special facts, in
exercise of jurisdiction under Article 142, is not a binding
precedent. Therefore, the decision in Govinda Rajulu [1986 Supp
SCC 651 : 1987 SCC (L&S) 71] cannot be the basis for claiming
relief similar to what was granted in that case. A similar
contention was negatived by the Constitution Bench in Umadevi

10 (2006) 8 SCC 381

(3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] : (SCC p. 39, para 46)

“The fact that in certain cases the court had directed
regularisation of the employees involved in those cases
cannot be made use of to found a claim based on
legitimate expectation.”

18. Therefore, the direction issued in J.L. Kaul that the retirees shall con-

tinue to possess the accommodation in their possession is a direction

under Article 142 of the Constitution. This Court had accepted the re-

habilitation scheme finalized by the State Government.

19. Dhar was an officer of the Intelligence Bureau. He has drawn his salary

and availed of alternative accommodation for 15 years after his retire-

ment along with pensionary benefits. There is no indefeasible right in

any citizen for allotment of government accommodation on a nominal

licence fee. The government accommodation is meant for the serving

government employees to facilitate the discharge of their duties. The

government accommodation is not meant for the retirees. The accom-

modation to the retirees is at the cost of serving officers. In terms of

the policy which was considered in J.L. Koul, the Kashmiri migrants

are entitled to transit accommodation and if transit accommodation

could not be provided then money for residence and expenses. Dhar

and such like persons are not from the poorest section of the migrants

but have worked in the higher echelons of the bureaucracy. To say that

they are enforcing their right to shelter only till such time the condi-

tions are conducive for their safe return is wholly illusory. No one is

sure that at what point of time the condition will be conducive to the

satisfaction of the migrants. Such benevolence and preferential right to

section of the citizens is unfair to the serving officers. Dhar like persons

should have compassion for their fellow employees who may be with-

out any government accommodation. The right to shelter does not

mean right to government accommodation. The government accom-

modation is meant for serving officers and officials and not to the re-

tirees as a benevolence and distribution of largesse.

20. Thus, we find that the orders passed by the High Court are absolutely

without any basis and in the absence of any policy of allotment of gov-

ernment accommodation to a retired government servant, who may be

victim of terrorism. The orders passed are wholly arbitrary and irra-

tional. We are unable to agree with the reasoning recorded by Delhi

and Punjab & Haryana High Courts.

21. Consequently, the present appeal is allowed. The order passed by the

High Court is set aside and the writ petition challenging the order un-

der the Act is restored. However, the respondent- Dhar is granted time

to hand over vacant physical possession of the premises on or before

31.10.2021, i.e., after 15 years of his attaining the age of superannua-


22. The appellant shall submit a report of the action taken against the re-

tired Government officials who are in Government accommodation post

their retirement by virtue of the orders of the High Courts on or before




AUGUST 5, 2021.



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