DATE OF JUDGEMENT:
August 5th, 2021
JUDGES:
Justice Hemanta Gupta
Justice A.S Bopanna
PARTIES:
Appellant- Union of India &Anr
Respondent- Onkar Nath Dhar
SUBJECT
The Supreme Court has held that the fundamental right to shelter under Article 21 of the Constitution does not mean the right to government accommodation for retired government employees.
OVERVIEW
- The Single Bench had allowed the petition of the respondent – Onkar Nath Dhar, 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, wherein he was allotted a government accommodation.
- After his retirement, he requested the Government to allow him to retain the government accommodation, which was allowed and Dhar was allowed to retain the house for another year. Dhar submitted another representation to allow him to retain the house allotted to him on a nominal license fee till the circumstances prevailing in Jammu and Kashmir improve and Government makes it possible for him to return to his native place.
- An eviction order was passed against the respondent under the Public Premises (Eviction of Unauthorised Occupant) Act, 1971, but the same was stayed by the Additional District Judge, Delhi. An objection was raised against the territorial jurisdiction of the Delhi Court. Dhar filed an appeal in the Court of learned Additional District Judge, Faridabad, which was dismissed by the Court. The orders were the subject matter of challenge before the learned High Court of Punjab & Haryana and the petition was allowed.
- Later, the Single Judge Bench relied upon an order passed by the Court inJ.L. Koul v. the State of J&K,(2010) 1 SCC 371, wherein it was held that it was not possible for Dhar to return to his State and due to which the eviction order shall be kept in abeyance. The same was affirmed by the Division Bench of Punjab and Haryana High Court.
- The decision of the Punjab and Harayana High Court has been challenged in this case and the appellant filed a petition before the Hon’ble Supreme Court.
LEGAL PROVISIONS
- Article 21 of the Indian Constitution: Protection of Life and Personal Liberty.
“No person shall be deprived of his life or personal liberty except according to a procedure established by law.”
ISSUES
- Whether the order passed by the learned High Court based on the compassion on account of terrorist activities in the state is sustainable?
- Whether allotment of government accommodation after retirement on a nominal fees license defeats the very purpose of government accommodation?
JUDGEMENT ANALYSIS
- Firstly, the Supreme Court opined that the High Court orders were unsustainable. It was held that the government accommodation is only meant for in-service officers and not for the retirees or those who have demitted office.
- Therefore, the decision of the Punjab and Haryana High Court was erroneous based on compassion showed to displaced persons on account of terrorist activities in the State.
- Further, the bench stated that compassion could be shown for accommodating the displaced persons for one or two months but to allow them to retain the Government accommodation already allotted or to allot an alternative accommodation that too with a nominal license fee, defeats the very purpose of the government accommodation which is meant for serving officers. If a retired government employee has no residence, there is an option to avail transit accommodation or to receive cash compensation in the place of transit accommodation.
- The respondent contended that the right to shelter is a fundamental right. Elaborating more, the Court stated that the right of shelter is taken care of when the alternative transit accommodation is made available to the migrant, to meet out of the emergent situation. Government accommodation is meant for serving officers and officials and not the retirees as benevolence and distribution of largesse.
- The Court stated that the Centre or State does not have any policy to provide the accommodation to displaced persons on account of terrorism in the State of Jammu and Kashmir.
- The bench held that there is no indefeasible right of any citizen for the allotment of government accommodation on a nominal license fee.
- Given the decision inJ.L. Koulv. the State of J&K,(2010) 1 SCC 371,the Kashmiri migrants are entitled to transit accommodation, and if transit accommodation could not be provided, then money compensation for residence and expenses is to be given.
- In addition to the discussion, the Court stated that 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 conditions are conducive for their safe return, is wholly illusory.
CONCLUSION
The Supreme Court found that the orders of the High Courts were wholly arbitrary and irrational, therefore, the present appeal was allowed. The Court directed the respondent-Dhar 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 superannuation. The Court also ordered the appellant to submit a report of the action taken against the retired government officials, who are still in government accommodation post their retirement, under the orders of the High Courts on or before 15.11.2021.
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