Right To Shelter Does Not Mean Right To Government Accommodation: Supreme Court

The right to shelter does not mean right to government accommodation, the Supreme Court observed while setting aside a Punjab and Haryana High Court order allowing a retired Intelligence Bureau Officer to retain Government accommodation.

The court observed that government accommodation is meant for serving officers and officials and not to the retirees as a benevolence and distribution of largesse. The bench of Justices Hemant Gupta and AS Bopanna added that compassion howsoever genuine does not give a right to a retired person from continuing to occupy a government accommodation.

The court also directed the Centre to submit a report of the action taken against the retired Government officials who are in Government accommodation post their retirement by virtue of the orders of the High Courts on or before 15.11.2021.

Background

Onkar Nath Dhar, a Kashmiri migrant, retired on 31.10.2006, after his service as officer of the Intelligence Bureau in Delhi. After retirement, he requested the Government 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. However, proceedings under Public Premises (Eviction of Unauthorised Occupant) Act, 1971, was initiated against him. This was challenged by Dhar before the Faridabad District Court which rejected it.  Later, the Punjab and Haryana High Court, relying on a Supreme Court judgment in J L. Koul v. State of J & K (2010) 1 SCC 371, allowed his plea on the ground that it is not possible for him to return to his own State and that due to which order of eviction shall be kept in abeyance.

The Centre, in its appeal before the Apex Court, challenged the High Court judgment by placing reliance on the Supreme Court judgments in Lok Prahari (I) v. State of Uttar Pradesh (2016) 8 SCC 389 and Lok Prahari (II) v. State of Uttar Pradesh (2018) 6 SCC 1. On the other hand, Dhar referred to a Delhi High Court judgment in Union of India & Ors. v. Vijay Mam which had observed that that national authorities have the primary duty and responsibility to provide protection and humanitarian assistance to internally displaced persons within their jurisdiction.

Agreeing with the Centre's stand, the court, referring to above judgments observed that the Government accommodation could not have been allotted to a person who had demitted office. The court made the following observations. The bench observed that the direction issued in J.L. Kaul that the retirees shall continue to possess the accommodation in their possession was a direction under Article 142 of the Constitution

"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", the Court said while allowing Centre's appeal.

The compassion howsoever genuine does not give a right to a retired person from continuing to occupy a government accommodation

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 Government 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 accommodation 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 continuing to occupy a government accommodation

Displaced persons cannot occupy 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 accommodation. The right of shelter is taken care of when alternative Transit accommodation is made available to the migrants to meet out the emergent 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 government accommodation.

Right of shelter does not and cannot extend to provide a government accommodation.

Dhar had relied on the right of shelter, which is a fundamental right under article 21 of the Indian Constitution. In this regard, the bench said:

A right to shelter is a fundamental right, that may not be disputed, but such a right of shelter 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 condition, where the government should provide government accommodation for an unlimited period. The direction to allow a retired government 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 millions of other citizens who do not have a roof over their heads. The 13 right of shelter to the displaced person is satisfied when accommodation had been provided in the transit accommodation. Such right of shelter does not and cannot extend to provide a government accommodation.

 The government accommodation is not meant for the retirees. 

The court noted that Dhar was an officer of the Intelligence Bureau and has as drawn his salary and availed of alternative accommodation for 15 years after his retirement 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 accommodation 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 conditions 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 without any government accommodation. The right to shelter does not mean right to government accommodation. The government accommodation is meant for serving officers and officials and not to the retirees as a benevolence and distribution of largesse.  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 government accommodation to a retired government servant, who may be victim of terrorism. The orders passed are wholly arbitrary and irrational.

While setting aside the High Court order, the court granted time for 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.

Case: Union of India vs Onkar Nath Dhar ; CA 6619 OF 2014
Citation: LL 2021 SC 372
Coram: Justices Hemant Gupta and AS Bopanna