UNION OF INDIA & ANR versus ONKAR NATH DHAR on 5 August 2021

[2021] 8 S.C.R. 194

SUPREME COURT REPORTS

[2021] 8 S.C.R.

UNION OF INDIA & ANR

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ONKAR NATH DHAR

(Civil Appeal No. 6619 of 2014)

BAUGUST 05, 2021

[HEMANT GUPTA AND A. S. BOPANNA, JJ]

Constitution of India:

Art. 21 – Right to claim government accommodation, if fallsCunder the right to shelter – Held: Right to shelter does not meanright to government accommodation – Government accommodationis meant for serving officers and officials and not to the retireeswho have demitted office, as a benevolence and distribution oflargesse – No exception for persons who held constitutional posts– Allowing the displaced persons to retain the GovernmentDaccommodation already allotted or to allot an alternativeaccommodation that too with a nominal licence fee defeats the verypurpose of the Government accommodation which is meant forserving officers – On facts, the High Court allowed the governmentofficer-Kashmiri migrant, to retain government accommodation afterEretirement, on basis of compassion showed to displaced persons onaccount of terrorist activities in the State, relying on J L Koul case– Orders passed by the High Court wholly arbitrary and irrational,in the absence of any policy of allotment of governmentaccommodation to a retired government servant, who may be victimof terrorism - Order passed by the High Court set aside –FGovernment officer granted time to hand over vacant physicalpossession of the premises, after 15 years of his attaining the ageof superannuation – Public Premises (Eviction of UnauthorisedOccupant) Act, 1971.

Art. 142 – Applicability of the case of J.L. Koul v. State ofGJammu & Kashmir – Direction in J.L. Koul’s case, that accepting therehabilitation scheme finalized by the State Government, retiredgovernment employees allowed to stay in the governmentaccommodation even after retirement for safety reasons, in terms ofArt. 142 – Held: Direction given on special facts, in exercise ofHjurisdiction under Art. 142 not a binding precedent – J L Koul’ case was based on special facts and direction was in terms of Art. 142 –Thus, the orders passed by the High Court relying on JL Koul’s casewithout any basis and, JL Koul’s case is inapplicable.

Allowing the appeal, the Court

HELD: 1.1 The Government accommodation could not havebeen allotted to a person who had demitted office. No exceptionwas carved out even in respect of the persons who heldConstitutional posts at one point of time. The Governmentaccommodation is only meant for in-service officers and not forthe retirees or those who have demitted office. Therefore, theview of the Delhi High Court and that of the Punjab & HaryanaHigh Court is erroneous on the basis of compassion showed todisplaced persons on account of terrorist activities in the State.The compassion could be shown for accommodating the displacedpersons for one or two months but to allow them to retain theGovernment accommodation already allotted or to allot analternative accommodation that too with a nominal licence feedefeats the very purpose of the Government accommodationwhich is meant for serving officers. The compassion howsoevergenuine does not give a right to a retired person from continuingto occupy a government accommodation. [Para 13][206-G-H; 207-A-C]

1.2 According to a policy framed by the government, adisplaced person is to be lodged in a transit accommodation andif it is not available then cash compensation is to be provided.But the displaced persons cannot occupy governmentaccommodation. If a retired government employee had noresidence, they have an option to avail transit accommodation orto receive cash compensation in the place of transitaccommodation. The right of shelter is taken care of whenalternative Transit accommodation is made available to themigrants to meet out the emergent situation. There is no policyof the Central Government or the State Government to provideaccommodation to displaced persons on account of terrorism inthe State of Jammu & Kashmir. Such directions of the Delhi HighCourt and of the Punjab & Haryana High Court is de hors anypolicy of allotting accommodation to the migrants under the guiseof the right to shelter which is clearly in excess of jurisdiction A

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Avested with the Courts. The hardship faced by them does notlead to a corresponding duty of the State to provide themalternative government accommodation. [Para 14][207-C-F]1.3 Respondent was an officer of the Intelligence Bureau.He has drawn his salary and availed of alternative accommodationBfor 15 years after his retirement along with pensionary benefits.There is no indefeasible right in any citizen for allotment ofgovernment accommodation on a nominal licence fee. Thegovernment accommodation is meant for the serving governmentemployees to facilitate the discharge of their duties. Thegovernment accommodation is not meant for the retirees. TheCaccommodation to the retirees is at the cost of serving officers.In terms of the policy which was considered in *J.L. Koul’ s case,the Kashmiri migrants are entitled to transit accommodation andif transit accommodation could not be provided then money forresidence and expenses. Respondent and such like persons areDnot from the poorest section of the migrants but have worked inthe higher echelons of the bureaucracy. To say that they areenforcing their right to shelter only till such time the conditionsare conducive for their safe return is wholly illusory. No one issure that at what point of time the condition will be conducive tothe satisfaction of the migrants. Such benevolence and preferentialEright to section of the citizens is unfair to the serving officers.Respondent like persons should have compassion for their fellowemployees who may be without any government accommodation.The right to shelter does not mean right to governmentaccommodation. The government accommodation is meant for Fserving officers and officials and not to the retirees as abenevolence and distribution of largesse. [Para 19][210-A-E]

1.4 J.L. Koul is a case, accepting the rehabilitation schemeframed by the State authorities based on which appropriateaccommodation was provided to 31 appellants and was givenGaccommodation which was in their possession. Such direction wasin terms of Art. 142 of the Constitution. The Courts shouldtherefore be careful to ascertain and follow the ratio decidendi,and not the relief given on the special facts. [Para 16][208-B-D]

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1.5 The orders passed by the High Court are absolutelywithout any basis and in the absence of any policy of allotment ofgovernment accommodation to a retired government servant,who may be victim of terrorism. The orders passed are whollyarbitrary and irrational. The order passed by the High Court isset aside and the writ petition challenging the order under theAct is restored. However, the respondent is granted time to handover vacant physical possession of the premises on or before31.10.2021, i.e., after 15 years of his attaining the age ofsuperannuation. [Para 20, 21][210-F-H]

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J.L. Koul v. State of J & K (2010) 1 SCC 371 : [2009]15 SCR 452 – held inapplicable.

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Lok Prahari (I) v. State of Uttar Pradesh & Ors. (2016)8 SCC 389 : [2016] 4 SCR 1026; Lok Prahari (II) v.State of Uttar Pradesh & Ors. (2018) 6 SCC 1 : [2018]6 SCR 1076; S.D. Bandi v. Divisional Traffic Officer,Karnataka State Road Transport Corporation & Ors.(2013) 12 SCC 631 : [2013] 17 SCR 1; Shiv SagarTiwari v. Union of India & Ors. (1997) 1 SCC 444 :[1996] 10 Suppl. SCR 925; Union of India & Ors. v.Vijay Mam (2012) SCC OnLine Del 3218; Indian Bankv. ABS Marine Products (P) Ltd. (2006) 5 SCC 72 :[2006] 1 Suppl. SCR 52; Ram Pravesh Singh & Ors. v.State of Bihar & Ors. (2006) 8 SCC 381 : [2006] 6Suppl. SCR 512 – referred to.

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Case Law Reference

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ACIVIL APPELLATE JURISDICTION: Civil Appeal No. 6619of 2014.

From the Judgment and Order dated 07.07.2011 of the High Courtof Punjab & Haryana in L.P.A. No. 1128 of 2011(O&M).

Ms. Vimla Sinha, Ms. Seema Bengani, Rajan Kumar Chourasiya,BAmrish Kumar, Ms. Sushma Suri, Advs. for the Appellants.

Yoginder Handoo, Adv. for the Respondents.

The Judgment of the Court was delivered by HEMANT GUPTA, J.C

1. The order passed by the learned Division Bench of the HighCourt of Punjab & Haryana on 07.07.2011 is the subject matter ofchallenge in the present appeal. The learned Single Bench has allowedthe writ petition of a Kashmiri migrant, the respondent[1] who shifted toJammu in the year 1989 or so. He was transferred to the office of theDIntelligence Bureau in Delhi. Later he was transferred to Faridabadwhere he has been allotted a government accommodation. The respondentattained the age of superannuation from service on 31.10.2006.

2. The respondent gave representation to the appellant to allowhim to retain the government accommodation, which was allowed andEDhar was allowed to retain house for another one year. Dhar submittedanother representation on 18.6.2007 to allow him to retain house allottedto him on a nominal licence fee till the circumstances prevailing in Jammu& Kashmir improve and the Government makes it possible for him toreturn to his native place.

F3. Dhar was served with a notice under the Public Premises(Eviction of Unauthorised Occupant) Act, 1971[2]. An order for evictionagainst Dhar was passed but was stayed by the learned Additional DistrictJudge, Delhi. An objection was raised of territorial jurisdiction of theDelhi Court. Dhar withdrew his appeal and filed it in the Court of learnedAdditional District Judge, Faridabad which was dismissed on 19.08.2009.GSuch orders were the subject matter of challenge before the learnedHigh Court of Punjab & Haryana in the civil writ petition, which wasallowed on 24.10.2010.

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1 Onkar Nath Dhar, in short ‘Dhar’

2 For short, the ‘Act’

4. The learned Single Bench relied upon an order passed by thisCourt in J.L. Koul v. State of J & K[3]. It was held, that it is not possiblefor Dhar to return to his own State and that due to which order of evictionshall be kept in abeyance, although the appellants are at liberty to providealternative accommodation to Dhar on nominal licence fee in Faridabad.The same was affirmed by the learned Division Bench of High Court ofPunjab & Haryana.

5. J.L. Koul was a case arising out of residential accommodationallotted to the appellant who was a government servant at Jammu in theyear 1989-90. The appellant therein was permitted to retain the houseallotted at Jammu for safety reasons. In terms of the interim order passedby the Court, the Chief Secretary of the State had filed an affidavit on06.10.2009 and disclosed that out of 54 appellants who were in Court,23 had already vacated government accommodation and the same hadbeen allotted to the government employees whereas 31 migrants are stilloccupying the government accommodation. 37,280 families have beenregistered for the relief including the accommodation and only 5,000families have been provided with the accommodation. The affidavitstipulates providing transit accommodation and alternatively Rupees OneLakh per family towards rental and incidental expenses to those whowere not able to be accommodated in the transit accommodation. Therelevant clause is as under:

“(b) Transit Accommodation: Construction of transitaccommodation at three sites @ Rs.20.00 crore each for totalRs. 60.00 crore. Alternatively, Rs. 1.00 lac per family towardsrental and incidental expenses to those families who may not beaccommodated in transit accommodation.”

6. This Court passed an order in J.L. Koul that no further actionis required, wherein it was held as under:

“8. The aforesaid affidavit makes it clear that the State Authoritieshave framed the rehabilitation scheme and for implementation ofthe same, it got the resources also. In such a fact situation nofurther action/direction is required.

9. In view of the above affidavit/undertaking given by the Stateand after hearing Mrs. Purnima Bhat Kak, Ld. Counsel for theappellants and Mr. Anis Suhrawardy, Ld. Counsel for the State, 3 (2010) 1 SCC 371

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we dispose of the appeal with a pious hope that State shall take allendeavours to rehabilitate the persons who have been victim ofterrorism and till the State is able to rehabilitate and provide theappropriate accommodation to 31 appellants-retirees/oustees, theyshall continue to possess the accommodations which are in theirrespective possession on this date.”

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7. Learned counsel for the appellant refers to the judgment of thisCourt reported as Lok Prahari (I) v. State of Uttar Pradesh & Ors.[4]wherein the executive instructions termed as Ex-Chief MinistersResidence Allotment Rules, 1997 were found to be illegal and LokPrahari (II) v. State of Uttar Pradesh & Ors.[5] wherein an Act enactedCby the Uttar Pradesh Government regularising the allotment of theGovernment houses to the Ex-Chief Ministers was set aside. Referencewas also made to judgments of this Court reported as S.D. Bandi v.Divisional Traffic Officer, Karnataka State Road TransportCorporation & Ors.[6] and Shiv Sagar Tiwari v. Union of India &DOrs.[7]

8. Mr. Handoo, the learned counsel for the respondent referred toa judgment by learned Division Bench of High Court of Delhi reportedas Union of India & Ors. v. Vijay Mam[8]. The order of the learnedSingle Bench which was the subject matter of appeal in which it wasEinter alia ordered that Union shall provide alternative accommodationto the petitioner and his or her family anywhere in Delhi but can be evenin NCR region, subject to payment of normal license fee. The learnedDivision Bench was hearing appeals of Union directed against 24occupants including one, a former Director-General of Border SecurityForce. The Court referred to Section 2(1)(d) of the Protection of HumanFRights Act, 1993 as the rights relating to life, liberty, equality and dignityof the individual guaranteed by the Constitution or embodied in theInternational Covenants and enforceable by Courts in India. Referencewas made to the report of May, 2008 prepared by UN Committee onEconomic, Social and Cultural Rights, inter alia, reporting that nationalGauthorities have the primary duty and responsibility to provide protectionand humanitarian assistance to internally displaced persons within their 4 (2016) 8 SCC 3895 (2018) 6 SCC 16 (2013) 12 SCC 6317 (1997) 1 SCC 444H8 2012 SCC OnLine Del 3218

jurisdiction. Principle 7, inter alia, provides that the authorities shall ensurethat proper accommodation is provided to displaced persons. The Courtalso referred to the judgment in J.L. Koul as a binding precedent. Thelearned Delhi High Court, inter alia, held as under:

“16. No doubt the matter raises certain fundamental issues. It is amix of constitutional rights of the respondents on the one handand the right of the Government to claim back the possession ofthe accommodation after their retirement. It is also necessary tomake a preliminary remark that the issue has arisen in exceptionalcircumstances and exceptional circumstances call for exceptionalremedies. The underlined objective has to be to dispense justice,of course, justice in accordance with law, but at the same timejustice pragmatic with mercy and compassion, wherever it ispossible within the parameters of law and without doing violenceto the legal principles.

17. The simplistic overtures, as perceived by the appellants takingit to be simple cases under PP Act, has to be denounced. TheCourt cannot countenance trivialization of the issue as sought tobe projected. This matter definitely has strong hue of human rights.The approach of learned Single Judge in examining the matterfrom that angle is definitely reasonable, just and proper. The saidapproach is adopted with the purpose of doing justice in the broadersense of the matter keeping aside the narrow and pedanticapproach. Situations may arise when, to do complete justice inthe matter, courts have to ignore the technicalities of law.

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31. We also make it clear that the Central Government would befree to frame a rehabilitation scheme specifically for such retiredemployees like the respondents and in such a scheme, it canspecify the terms and conditions on which such persons would beentitled to rehabilitate/alternate residence, which may include theterm that these respondents or their family members do not haveany residence in any part of the country. It would also be open tothe Government to specify the nature of accommodation to whichsuch retired Government servants would be entitled to or the placewhere they would be rehabilitated which may not necessarily bein Delhi but can be even in the NCR region. After the scheme isframed, the cases of the respondents can be scrutinized in terms A

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202SUPREME COURT REPORTS

Aof that scheme and those not found eligible for rehabilitation interms thereof can be ousted from the present accommodation.Subject to our observations made immediately above, the appealsare hereby dismissed with costs.”

9. We have heard learned counsel for the parties and find that theBorders of the High Court are unsustainable. In Shiv Sagar Tiwari, thelarge-scale allotment of Government houses made out of turn in elevencategories was examined under the Allotment of Government Residences(General Pool in Delhi) Rules, 1963. All such categories were of servingemployees who were given out-of-turn allotments. The then Minister ofUrban Development in the Central Government was asked to pay a sumCof Rs.60 lakhs as exemplary damages by order dated 8.11.1996. TheCourt examining the argument of right to shelter, held as under:

“3. …May we also observe that life, livelihood and shelter are somixed, mingled and fused that it is difficult to separate them. Totake away life, it would be enough to take away livelihood; and toDearn livelihood, which in urban areas is ordinarily at places awayfrom one’s own home and hearth, shelter would be necessary —be it a house or even a pavement. This Court has dealt with casesof pavement-dwellers. The locus classicus in Olga Tellis [OlgaTellis v. Bombay Municipal Corpn., (1985) 3 SCC 545] and theElatest rendering is in Ahmedabad Municipal Corpn. v. NawabKhan 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 subjectmatter of the present petition is providing of residentialaccommodation in quarters built by the Government for itsF—employees highly or lowly paid. (Emphasis Supplied)

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

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46. The arbitrary exercise of power by the authorities in a bigway had led almost to the collapse of the whole system ofallotment. There was a crisis-like situation and this Court had todeal with an extraordinary situation and a special procedure hadto be devised to do justice to all concerned. Natural justice beinga flexible principle and we being concerned with the issue of out-of-turn allotment in thousands, it was felt by us that a collectivehearing would meet the requirement of natural justice as theCommittee had given individual hearing to those who appearedbefore it. This view was taken because the basic question to bedetermined was whether the allotment given to an employee wason out-of-turn basis or not. In case it were to be so, it is apparentthat unless an exception is made, the allottee has no right to stay,no right to occupy the premises. The hearing given by us on twooccasions brought home eloquently to us that the out-of-turnallottees, who were notified and had appeared, had two principalcontentions to advance — the same being the plea not to evicteither on the ground of serious illness of one or the other closerelatives, or to include them in the functional category. Nothingelse could have really been pleaded not to evict them. These twoaspects have been adequately borne in mind by us as would appearfrom the aforesaid discussion.

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

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A10. In S.D. Bandi, the occupation of a government accommodationby the members of three branches of the State i.e., legislature, executiveand the judiciary beyond the period for which the same was allottedcame up for consideration. This Court, inter-alia, held as under: - “33.18 Since allotment of Government accommodation is aBprivilege given to the Ministers and Members of Parliament, thematter of unauthorized retention should be intimated to theSpeaker/Chairman of the House and action should be initiated bythe House Committee for the breach of the privileges which aMember/Minister enjoys and the appropriate Committee shouldrecommend to the Speaker/Chairman for taking appropriate action/Ceviction within a time bound period.

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

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33.20 Henceforth, no memorials should be allowed in future inany Government houses earmarked for residential accommodation.

34. It is unfortunate that the employees, officers, representativesof people and other high dignitaries continue to stay in the residentialEaccommodation provided by the Government of India though theyare no longer entitled to such accommodation. Many of suchpersons continue to occupy residential accommodationcommensurate with the office(s) held by them earlier and whichare beyond their present entitlement. The unauthorized occupantsmust recollect that rights and duties are correlative as the rightsFof one person entail the duties of another person similarly the dutyof one person entails the rights of another person. Observing this,the unauthorized occupants must appreciate that their act ofoverstaying in the premise directly infringes the right of another.No law or directions can entirely control this act of disobedienceGbut for the self realisation among the unauthorized occupants.The matter is disposed of with the above terms and no order isrequired in I.As for impleadment and intervention.”

11. The Uttar Pradesh Government has framed Ex-Chief MinistersResidence Allotment Rules, 1997. This Court in Lok Prahari (I) setaside the allotment of houses to the former Chief Ministers and MinistersH

to retain government accommodation even after they demit office. ThisCourt has approved the judgment in S.D. Bandi’s case, holding as under:

“37. If we look at the position of other constitutional post holderslike Governors, Chief Justices, Union Ministers, and Speaker, etc.all of these persons hold only one “official residence” during theirtenure. The respondents have contended that in a federal set-up,like the Union, the State has also power to provide residentialbungalow to the former Chief Minister. The above submission ofthe respondent State cannot be accepted for the reason that the1981 Act does not make any such provision and the 1997 Rules,which are only in the nature of executive instructions and contraryto the provisions of the 1981 Act, cannot be acted upon.

38. Moreover, the position of the Chief Minister and the CabinetMinisters of the State cannot stand on a separate footing afterthey demit their office. Moreover, no other dignitary, holdingconstitutional post is given such a facility. For the aforestatedreasons, the 1997 Rules are not fair, and more so, when the subjectof “salary and allowances” of the Ministers, is governed by Section4(2)(a) of the 1981 Act.

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46. So far as allotment of bungalow to private trusts or societies isconcerned, it is not in dispute that all those bungalows were allottedto the societies/trusts/organisations at the time when there wasno provision with regard to allotment of government bungalows tothem and therefore, in our opinion, the said allotment cannot beheld to be justified. One should remember here that public propertycannot be disposed of in favour of any one without adequateconsideration. Allotment of government property to someonewithout adequate market rent, in absence of any specialstatutory provision, would also be bad in law because theState has no right to fritter away government property infavour of private persons or bodies without adequateconsideration and therefore, all such allotments, which havebeen made in absence of any statutory provision cannot beupheld. If any allotment was not made in accordance with astatutory provision at the relevant time, it must be discontinuedand must be treated as cancelled and the State shall take AB

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Apossession of such premises as soon as possible and at the sametime, the State should also recover appropriate rent in respect ofsuch premises which had been allotted without any statutoryprovision.”

(Emphasis Supplied)

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12. In Lok Prahari (II), this Court struck down U.P. Ministers(Salaries, Allowances and Miscellaneous Provisions) Act, 1981 asamended in the year 2016 consequent to an order passed by this Courtin the above-mentioned proceedings. The Court held as under:

“16. The Preamble to the Constitution of India embodies, interCalia, the principles of equality and fraternity and it is on the basisof these principles of equality and fraternity that the Constitutionrecognises only one single class of citizens with one singular voice(vote) in the democratic process subject to provisions made forbackward classes, women, children, SC/ST, minorities, etc. ADspecial class of citizens, subject to the exception noted above, isabhorrent to the constitutional ethos.

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36. In the light of the above views, the allocation of governmentbungalows to constitutional functionaries enumerated in SectionE4(3) of the 1981 Act after such functionaries demit public office(s)would be clearly subject to judicial review on the touchstone ofArticle 14 of the Constitution of India. This is particularly so assuch bungalows constitute public property which by itself isscarce and meant for use of current holders of public offices.FThe above is manifested by the institution of Section 4-A in the1981 Act by the Amendment Act, 1997 (8 of 1997). The questionsrelating to allocation of such property, therefore, undoubtedly, arequestions of public character and, therefore, the same would beamenable for being adjudicated on the touchstone of reasonableclassification as well as arbitrariness.” (Emphasis supplied)G

13. In view of the judgments referred above, the Governmentaccommodation could not have been allotted to a person who had demittedoffice. No exception was carved out even in respect of the persons whoheld Constitutional posts at one point of time. It was held that theGovernment accommodation is only meant for in-service officers andHnot for the retirees or those who have demitted office. Therefore, the

view of the learned Delhi High Court and that of the Punjab & HaryanaHigh Court is erroneous on the basis of compassion showed to displacedpersons on account of terrorist activities in the State. The compassioncould be shown for accommodating the displaced persons for one ortwo months but to allow them to retain the Government accommodationalready allotted or to allot an alternative accommodation that too with anominal licence fee defeats the very purpose of the Governmentaccommodation which is meant for serving officers. The compassionhowsoever genuine does not give a right to a retired person fromcontinuing to occupy a government accommodation.

14. According to a policy framed by the government, a displacedperson is to be lodged in a transit accommodation and if it is not availablethen cash compensation is to be provided. But the displaced personscannot occupy government accommodation. If a retired governmentemployee had no residence, they have an option to avail transitaccommodation or to receive cash compensation in the place of transitaccommodation. The right of shelter is taken care of when alternativeTransit accommodation is made available to the migrants to meet out theemergent situation. There is no policy of the Central Government or theState Government to provide accommodation to displaced persons onaccount of terrorism in the State of Jammu & Kashmir. Such directionsof the Delhi High Court and of the Punjab & Haryana High Court is dehors any policy of allotting accommodation to the migrants under theguise of the right to shelter which is clearly in excess of jurisdictionvested with the Courts. The hardship faced by them does not lead to acorresponding duty of the State to provide them alternative governmentaccommodation.

15. It was argued by Mr. Handoo that the right of shelter is afundamental right under article 21 of the Indian Constitution. A right toshelter is a fundamental right, that may not be disputed, but such a rightof shelter is granted to millions of Indians who do not have shelter. Asection of society, more so retired government employees, who hadearned pension, drawn retirement benefits cannot be said to be in suchcondition, where the government should provide governmentaccommodation for an unlimited period. The direction to allow a retiredgovernment servant to retain government accommodation for an indefiniteperiod, to say the least, is a distribution of state largesse without anypolicy of the State. A section of the migrants cannot be treated as A

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Apreferential citizens to give them the right to shelter at the cost of millionsof other citizens who do not have a roof over their heads. The right ofshelter to the displaced person is satisfied when accommodation hadbeen provided in the transit accommodation. Such right of shelter doesnot and cannot extend to provide a government accommodation.

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16. J.L. Koul is a case, accepting the rehabilitation scheme framedby the State authorities based on which appropriate accommodation wasprovided to 31 appellants and was given accommodation which was intheir possession. Such direction was in terms of Article 142 of theConstitution. This Court in a judgment reported as Indian Bank v. ABSCMarine Products (P) Ltd.[9] held that the High Courts repeatedly followeda direction issued under Article 142, by treating it as the law declared bythis Court. It was held that the Courts should therefore be careful toascertain and follow the ratio decidendi, and not the relief given on thespecial facts. This Court held as under:

D“26. One word before parting. Many a time, after declaring thelaw, this Court in the operative part of the judgment, gives somedirections which may either relax the application of law or exemptthe case on hand from the rigour of the law in view of the peculiarfacts or in view of the uncertainty of law till then, to do completeEjustice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommonto find that courts have followed not the law declared, but theexemption/relaxation made while moulding the relief in exerciseof power under Article 142. When the High Courts repeatedlyfollow a direction issued under Article 142, by treating it as theFlaw declared by this Court, incongruously the exemption/relaxationgranted under Article 142 becomes the law, though at variancewith the law declared by this Court. The courts should thereforebe careful to ascertain and follow the ratio decidendi, and notthe relief given on the special facts, exercising power under Article142. One solution to avoid such a situation is for this Court toGclarify that a particular direction or portion of the order is in exerciseof 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 specialfacts, in the exercise of jurisdiction under Article 142, is not a bindingprecedent. This Court held as under:

“23. The appellant next submitted that this Court, in some cases,has directed absorption in similar circumstances. Reliance is placedon the decision in G. Govinda Rajulu v. A.P. State ConstructionCorpn. Ltd. [1986 Supp SCC 651 : 1987 SCC (L&S) 71] Weextract below the entire judgment: (SCC p. 651, paras 1-2)

“1. We have carefully considered the matter and after hearinglearned counsel for the parties, we direct that the employeesof the Andhra Pradesh State Construction Corporation Limitedwhose services were sought to be terminated on account ofthe closure of the Corporation shall be continued in service onthe same terms and conditions either in the governmentdepartments or in the government corporations.

2. The writ petition is disposed of accordingly. There is noorder as to costs.”

The tenor of the said order, which is not preceded by any reasonsor consideration of any principle, demonstrates that it was an ordermade under Article 142 of the Constitution on the peculiar factsof that case. Law declared by this Court is binding under Article141. Any direction given on special facts, in exercise of jurisdictionunder Article 142, is not a binding precedent. Therefore, thedecision in Govinda Rajulu [1986 Supp SCC 651 : 1987 SCC(L&S) 71] cannot be the basis for claiming relief similar to whatwas granted in that case. A similar contention was negatived bythe Constitution Bench in Umadevi (3) [(2006) 4 SCC 1 : 2006SCC (L&S) 753] : (SCC p. 39, para 46)

“The fact that in certain cases the court had directedregularisation of the employees involved in those cases cannotbe made use of to found a claim based on legitimateexpectation.”

18. Therefore, the direction issued in J.L. Kaul that the retireesshall continue to possess the accommodation in their possession is a 10 (2006) 8 SCC 381

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Adirection under Article 142 of the Constitution. This Court had acceptedthe rehabilitation scheme finalized by the State Government.

19. Dhar was an officer of the Intelligence Bureau. He has drawnhis salary and availed of alternative accommodation for 15 years afterhis retirement along with pensionary benefits. There is no indefeasibleBright in any citizen for allotment of government accommodation on anominal licence fee. The government accommodation is meant for theserving government employees to facilitate the discharge of their duties.The government accommodation is not meant for the retirees. Theaccommodation to the retirees is at the cost of serving officers. In termsof the policy which was considered in J.L. Koul, the Kashmiri migrantsCare entitled to transit accommodation and if transit accommodation couldnot be provided then money for residence and expenses. Dhar and suchlike persons are not from the poorest section of the migrants but haveworked in the higher echelons of the bureaucracy. To say that they areenforcing their right to shelter only till such time the conditions areDconducive for their safe return is wholly illusory. No one is sure that atwhat point of time the condition will be conducive to the satisfaction ofthe migrants. Such benevolence and preferential right to section of thecitizens is unfair to the serving officers. Dhar like persons should havecompassion for their fellow employees who may be without anygovernment accommodation. The right to shelter does not mean right toEgovernment accommodation. The government accommodation is meantfor serving officers and officials and not to the retirees as a benevolenceand distribution of largesse.

20. Thus, we find that the orders passed by the High Court areabsolutely without any basis and in the absence of any policy of allotmentFof government accommodation to a retired government servant, whomay be victim of terrorism. The orders passed are wholly arbitrary andirrational. We are unable to agree with the reasoning recorded by Delhiand Punjab & Haryana High Courts.

21. Consequently, the present appeal is allowed. The order passedGby the High Court is set aside and the writ petition challenging the orderunder the Act is restored. However, the respondent- Dhar is grantedtime to hand over vacant physical possession of the premises on or before31.10.2021, i.e., after 15 years of his attaining the age of superannuation.

H

22. The appellant shall submit a report of the action taken againstthe retired Government officials who are in Government accommodationpost their retirement by virtue of the orders of the High Courts on orbefore 15.11.2021.

Nidhi Jain

Appeal allowed.

A

B

C

D

E

F

G

H